Montesquieu

The early Romans had a good policy on the expo­si­tion of chil­dren. According to Dionysius of Halicarnassus, Romulus impo­sed on all citi­zens the obli­ga­tion to raise all male chil­dren and the eldest of girls.1 If the chil­dren were defor­med and mons­trous, he allo­wed them to be expo­sed, after sho­wing them to five of one’s clo­sest neigh­bors.

Romulus did not per­mit the killing of any child under three years of age2 ; that way he reconci­led the law that gave fathers the right of life and death over their chil­dren and the one that fore­bade expo­sing them.

We fur­ther find in Dionysius of Halicarnassus that the law which orde­red citi­zens to marry and raise all their chil­dren was in force in the Roman year 277 ; we see that cus­tom had res­trai­ned the law of Romulus, which allo­wed the expo­si­tion of youn­ger daugh­ters.3

We are aware of what the law of the Twelve Tables, issued in the year of Rome 301, decreed about the expo­si­tion of chil­dren, only from a pas­sage of Cicero who, spea­king of the tri­bu­nate of the peo­ple, says that imme­dia­tely after its birth, like the mons­trous child of the law of the Twelve Tables, it was smo­the­red4 : chil­dren who were not mons­trous were the­re­fore pre­ser­ved, and the law of the Twelve Tables chan­ged nothing about the pre­vious ins­ti­tu­tions.

“The Germans,” says Tacitus, “do not expose their chil­dren, and for them good prac­ti­ces are more influen­tial than good laws are elsew­here.”5 Therefore the Romans did have laws against this cus­tom, and they were no lon­ger fol­lo­wed. We find no Roman law6 that allows the expo­si­tion of chil­dren ; it was doubt­less an abuse intro­du­ced in the lat­ter times, when luxury repla­ced plenty, when sha­red wealth was cal­led poverty, when the father consi­de­red as lost what he gave to his family, and dis­tin­gui­shed that family from his pro­perty.

Roman Antiquities, book II.

Ibid.

De moribus Germanorum.

Book III, De legibus.

De moribus Germanorum.

There is no title for it in the Digest ; the heading in the Codex says nothing about it, nor do the Novelles.