“If a father gives his son leave to marry a woman who, by law, is
to partake of his sacrifices and fortunes, he shall no longer have
power of selling his son”—such was the amendment of Numa for which
Plutarch commends the Sabine lawmaker; but in amending the law of
Romulus permitting a father to sell his children, the second king of
Rome was actuated by the idea of making it attractive for the young
women to marry; doubtless he was having no easy time in eradicating the
differences between the two warlike tribes first brought together under
his predecessor. Lessening the power of the parents, as he did in the
most material degree,[326] it was for the purpose of general polity and
the accomplishment of his own harmonious designs, rather than for what
I like to call, even in that early day, humanitarian reasons. There
was no consideration of the child, or the female as such in Numa’s
amendment. His object was to make marriages more desirable that there
might be more _male_ Romans.[327]
As a matter of fact, declaration of the power of the father over
the women and children of his family was nothing more on the part
of Romulus than the codification of the laws of the past, with the
softening provisos to which I have already referred. The power of the
father to imprison, scourge, or sell his son for a slave, or put him
to death, was not lessened even when that son had risen to the highest
honours of the State, as we shall see later.
Expulsion of the kings and the establishment of the Republic is dated
B. C. 509, some two hundred and fifty years after the reputed founding
of the city. With this stern period begins a series of thrilling
examples of the use made of the _patria potestas_—stories that in
themselves show how the power of the father extended over the life
of the child, even when the child had become a man, and that man had
been honoured by the State as was Cassius Viscellinus. The latter,
although a tribune of the people and the author of the first Agrarian
Law, was tried in the house of his own father, who, after having him
whipped, “commanded him to be put to death and his estate consecrated
to Ceres.”[328]
That there was little progress made in the next great step in the
history of Roman law, by which of course one refers to the adoption of
the laws of the Twelve Tables, was because those laws were practically
the codification of the ancient customary law of the people, despite
the story that the patricians dispatched three commissioners to Athens
to bring home a copy of the laws of Solon. Acrid political fights,
uncertain and sometimes corrupt administration of the law, led to the
commission empowered to draw up what afterward became the Twelve Tables
and the foundation of the whole fabric of the Roman law.
Public-domain text, read in full here on John Shaqi.
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