Page:Harvard Law Review Volume 8.djvu/58

42 42 HARVARD LAW REVIEW. as the jurists held that their legal identity was so complete as to render such a proceeding equivalent to the father suing himself. For the same reason, contracts between them were impossible. An injury done the son was done the father, who alone could bring suit for the proper damages. The father, was, however, responsible for his son's torts; but he could escape the legal penalties in such cases by surrendering the person of the wrong- doer to the complainant.-^ Thus, we see that the authority of the father over the son was in nowise constrained by law. What few checks there were, were imposed by religion. A man who sold his married son was given over to the infernal gods. When a father contemplated the death of a child, he was required to summon a council of its blood rela- tives, maternal as well as paternal, to whom he was to submit the question of the child's death. But the power of this council was merely advisory. If-the father had the hardihood to brave public opinion and to defy reUgious excommunication, he could in no way be prevented from even the severest exercise of his paternal power. We have given this somewhat lengthy exposition of the patria potestas, and the son's place under it, because from the status of the son we have already learned, to a great extent, the condition of the daughter. For, as long as ikiQ paterfamilias lived, whatever difference there was in the conditions of the son and daughter, as far as their private rights were concerned, was entirely in favor of the son. The unmarried daughter, like the son, was entirely at the disposal of the father, who could sell her or condemn her to death ; and while an early law prohibited altogether the exposure of male infants, except in cases of deformity, the only restriction placed upon the exposure of female infants was the rule that the father should rear at least his first-born daughter. Custom in some respects was favorable to girls, as it was early looked upon as a most barbarous and inhuman act to make a noxal surrender of a daughter. And in the inheritance of her father's estate the daughter took an equal share with the son, provided she had not by marriage left her father's family. On the other hand, the public law of Rome did not recognize woman at all. Women were answerable for their misdeeds to the family judge, the father or husband, as is proven by Livy's account ^ In Roman law, noxae deditio (noxal surrender).