23.22. 22. Of the Exposing of Children.
The Roman policy was very good in
respect to the exposing of children. Romulus, says Dionysius
Halicarnassus,
[110]
laid the citizens under an obligation to educate all
their male children, and the eldest of their daughters. If the infants
were deformed and monstrous, he permitted the exposing them, after
having shown them to five of their nearest neighbours.
Romulus did not suffer them to kill any infants under three years old:
[111]
by which means he reconciled the law that gave to fathers the
right over their children of life and death with that which prohibited
their being exposed.
We find also in Dionysius Halicarnassus
[112]
that the law which
obliged the citizens to marry, and to educate all their children, was in
force in the 277th year of Rome; we see that custom had restrained the
law of Romulus which permitted them to expose their younger daughters.
We have no knowledge of what the law of the Twelve Tables (made in
the year of Rome 301) appointed with respect to the exposing of
children, except from a passage of Cicero,
[113]
who, speaking of the
office of tribune of the people, says that soon after its birth, like
the monstrous infant of the law of the Twelve Tables, it was stifled;
the infant that was not monstrous was therefore preserved, and the law
of the Twelve Tables made no alteration in the preceding institutions.
"The Germans," says Tacitus,
[114]
"never expose their children;
among them the best manners have more force than in other places the
best laws." The Romans had therefore laws against this custom, and yet
they did not follow them. We find no Roman law that permitted the
exposing of children;
[115]
this was, without doubt, an abuse introduced
towards the decline of the republic, when luxury robbed them of their
freedom, when wealth divided was called poverty, when the father
believed that all was lost which he gave to his family, and when this
family was distinct from his property.
Footnotes
[110]
"Antiquities of Rome," lib. ii.
[113]
De Leg., lib. iii, 19.
[114]
"De Moribus Germanorum," 19.
[115]
There is no title on this subject in the "Digest"; the title of
the "Code" says nothing of it, any more than the "Novels."
