child of the marriage was to be reared (liberi susceptio) belonged to the father, but was, in the interest of the state, subjected at an early period to certain modifications. The "laws of Romulus"—that is, the early pontifical law—enjoined the rearing of every male child and of the first-born of the females; the exposure of offspring was to receive the assent of five neighbours,[1] and disobedience of these canons was to be visited with severe penalties on the parent who neglected the welfare of the state. The children and their descendants are never released from the absolute rule of the father as long as he lives. They cannot own property; for all that they acquire belongs to the common stock and is at the disposal of the head of the family. At best the father might permit the son, as he might permit the slave, to employ his own earnings for his own use. This is the peculium. Yet the grant is a mere concession, and one which may be withdrawn at any moment. If the son dies it lapses to the father; if the father dies it falls to the heir.
The child, as having no property, cannot give satisfaction for wrongs which he has committed. He is regarded as irresponsible, and responsibility for his conduct devolved on the father, who might either give compensation to the injured man, or surrender the delinquent for him to visit with his vengeance, or to use as a means of working out the damage (noxae deditio);[2] in the latter case the child becomes for ever the property of another. The father might sell him; if beyond the limits of the country, the son becomes a slave; if within the limits, he is one in private though not in public law (in causa mancipii), and exchanges servitude to the father for that to the purchaser. In an age which recognised no free contract of labour, the sale of the son was a means of putting him out to business.[3] The injunction of the Twelve Tables (perhaps the recognition of a custom far earlier than this law) that the thrice-repeated sale of a son involved loss of the patria potestas,[4] was an attempt to put an
- ↑ Dionys. ii. 15.
- ↑ This jus noxae dationis first disappears finally in the law of Justinian (Inst. iv. 8, 7; Dig. 43, 29, 3, 4). Before its abolition a modification had been introduced by the rule that, when the child had acquired an equivalent for the damage he had caused (quantum damni dedit), the owner should be forced to manumit him.
- ↑ Even by Constantine the sale of new-born children (sanguinolenti) was permitted, but only propter nimiam paupertatem (Cod. 4, 43, 2).
- ↑ "Pater si filium ter venum duuit, filius a patre liber esto." It has been thought, however, that by the time of the Twelve Tables the sale had become merely fictitious.
