But by placing the making of the law in the hands of the jurists, men
who were thinkers and scholars and under the influence of the spreading
Stoic philosophy, many disciples of Zeno and Chrysippus, and some later
to be under the influence of the Christian philosophy, Hadrian was
laying a broad foundation for the complete passing of the Roman idea
of the unimportance of the child as a child, and making way for the
Christian idea which was to take its place.
By a _senatus consultum_, passed before the Edict of Julianus, the
right of fathers to expose their children was for the first time taken
away; _durante matrimonio_ they were compelled to rear their children
instead of exposing them, while later regulations made it necessary to
maintain even those children born after divorce.[355]
This was the first attempt to prohibit the exposing of children.
As we have seen, the right of the father to reject his offspring was
restricted in earliest times to weak and deformed children, and then
only after there had been a conference with five neighbours, but the
frequent reference to the exposure of children under the Republic and
under the emperors indicates that there was little regard for this
legal restraint. Even Augustus himself did not hesitate to expose the
child of his granddaughter.
The law of Hadrian has not been placed by scholars and commentators as
the first law against exposing children, partly no doubt because it
was too new to be really effective. In an interesting controversy[356]
between Gerardus Noodt and Cornelius Van Binkershoek, as to whether
there were any prohibitory laws prior to those of Valentinian, Valens,
and Gratian (367 A.D.), Binkershoek maintains with great show of
authority, what is undoubtedly true, that there were. Interesting,
too, is the fact that we find in the Code of Justinian (vii., 16, 1)
reference to a rescript of Hadrian in which the sale of children is
referred to as “_res illicita et inhonesta_,” which is assumed by
Walker to refer to the sales not being properly conducted,[357] but
which, judging from the temper of the Emperor, referred to the thing
itself.
As the war-loving Trajan was succeeded by the lover of peace, the
nomadic Hadrian was succeeded by the home-loving Antoninus Pius, who
did not leave Rome for almost a quarter of a century, except for
one rapid tour through Asia. He made it possible for children to
inherit from their parents even though they had neglected to imitate a
father in becoming a Roman citizen. He further showed his humanity by
compelling cruel masters to sell slaves they had maltreated.
Public-domain text, read in full here on John Shaqi.
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