Sos. I don’t know; unless you enquire of herself whence she got it, if that can possibly be discovered.
Chrem. Is this woman living to whom you delivered the child?
Sos. I don’t know.
Chrem. What account did she bring you at the time?
Sos. That she had done as I had ordered her.
Chrem. Tell me what is the woman’s name, that she may be inquired after.
Sos. Philtere.
Chrem. Sostrata follow me this way indoors.
Sos. How much beyond my hopes has this matter turned out! How dreadfully afraid I was, Chremes, that you would now be of feelings as unrelenting as formerly you were on exposing the child.
Chrem. Many a time a man cannot be such as he would be333 if circumstances do not admit of it. Time has now so brought it about, that I should be glad of a daughter; formerly I wished for nothing less.
There is no evidence that the Romans as a people at any time approved of the sale of children, and while the suggestion is made by Gibbon that early in the days of the kings impoverishing conditions occasionally made it necessary to dispose of members of the family, from the time of the adoption of the Twelve Tables as the codified law of Rome there is not a single indication that the power of the father over grown-up children was used otherwise than sparingly, and with a view to strengthening the stern and military character of the Roman idea of family. The main use of the provision for the sale of children, in time of prosperity at least, was to put the boy out to business, this being in general more a form that took the place of what was later apprenticeship and, still later, the labour contract. As late as Constantine this was permitted, even of new-born children, but only in cases of extreme need (propter nimiam paupertatem),334 and then when it seemed the only way to prevent their parents from murdering them.
CHAPTER XV
HUMANITARIAN MEASURES OF AUGUSTUS—LIFE IN THE IMPERIAL CITY—FIRST ATTEMPTS OF THE STATE TO CHECK INFANTICIDE—TRAJAN AND THE VELEIA LOAN—STOIC SPIRIT IN PLINY’S CHARITY.
ASTONISHING depravity marked the last days of the Republic, to the point where it was even said that annual divorces were as much the fashion in Rome as voluntary celibacy.335 Seneca says there were women who reckoned their years by their husbands. In the severe, early period of the Republic, celibacy was considered censurable and even guilty,336 whereas later it was not only condoned but wittily approved, to judge by the quips of the dramatist, Plautus, whose cynical references to marriage and the burden of a wife read not unlike our own scoffing and immoral dramatists of the eighteenth century.337
Civil wars and proscriptions had left great voids in Roman families; more prolific foreigners, freedmen, and slaves began to dominate the noisy city now beginning to earn her title of Mistress of the World. The visitor to Pompeii today, noting the large and heavy paving blocks, the narrow sidewalks, the deep ruts made in these solid streets by the heavy wagons, the open shops, the indecent signs, sees Rome in miniature. All this cosmopolitan disorder marked the greater town that had not twenty thousand inhabitants but a million; the noise and the congestion increased out of all proportion to its size because of the character of its dwellers, for Rome had a large foreign population. As in modern New York or London, it was in the foreign quarters that were found the discomforts, the loud misunderstandings, and the noisy, tragic fights for small things.
The stranger arriving in Rome had hardly entered its gates when he was being jostled and shoved. The narrow streets were filled with pedlars calling their wares of all kinds, from matches (sulphurata), in exchange for broken glass where money was scarce, to a dish of boiled peas for an as, or fine smoking sausages for those who had more money. Idlers filled the streets at all hours, but especially at the lunch hour (the sixth) when business ceased and those who patronized the cafés (tabernæ) were hurrying to get to their accustomed tables.338
Around billboards (programmata) announcing new plays or exhibitions, crowds gathered while other groups watched acrobats, who beat themselves for the comic effects produced; dancers, jugglers, snake charmers, and performers of every kind and nation abounded. Heavily loaded wagons rumbled noisily along while their drivers cursed and lashed the tired beasts of burden, or the appearance of a tamed bear threw an entire street into wild and joyous confusion. Or perhaps a new troupe of gladiators entered town, to the complete cessation of all business and pastimes.339 Here and there in the streets, money-changers and others set up tables in convenient places where they were least apt to be driven away, and hawked loudly the bargains that they offered. Money from all the world was then flowing Romeward, and in nothing was this shown more than in expensive funerals, with their hired and vociferous mourners, blocking the streets and putting an end for the time being, to other business—and amusements.340 Narrow as were the streets, they were made more so by the tabernæ, built up against the houses, this practice becoming so much of a nuisance (as in modern times) that the Emperor Domitian caused a decree to be issued against them, forcing the owners to remove the encroachments and confine themselves to the area of the house.341
A drunken man taking the entire via in his navigation—to the amusement of the crowd; a member of the city guard hurrying some offender to the court; or, reclining in his lectica, a noble, carried by six uniformed slaves, his other numerous attendants clearing the way for him—all these added to the noise and confusion—while through it all children crowded the curb with their games.
Such was the Rome that Augustus found, its proud citizens masters of the world, luxurious, sensual, disdainful of the very idea of duty, idling days away while they scoffed at marriage. But the foreigners, the freedmen, and the slaves married, and when the burden of a new child was too much for the small income made by amusing or serving some Roman citizen, the little newcomer was thrown into the Tiber or left unmarked on a busy thoroughfare. One of the first undertakings of Augustus was to try to remedy these evil conditions by laws and fiscal measures, his principal endeavour being to put an end to the corruption of morals and the exhaustion of the legitimate population.
From the day of the battle of Actium (B. C. 31) when the Roman world practically lay at his feet, Octavius, or Augustus as he was afterward called, while gratifying his ambition in adding to his power, studiously and ostentatiously observed the forms of popular government. In this he was paying heed to the fate of his uncle and also conciliating the people, though with every ingratiating move he increased his power.
One of the first laws he proposed was the lex Julia (de maritandis ordinibus) which was rejected by the comitia tributa, B. C. 18, but was adopted in A. D. 4. To this was added as a supplement the lex Papia Poppæa, the two being known as the lex Julia et Papia or as novæ leges, or simply leges, the latter reference indicating that they were referred to as the laws par excellence. Not only marriage, but everything connected with it was treated in these two laws, which really constituted a code, the most extensive after the laws of the Twelve Tables.
These laws made a great impression on Roman society. How completely customs had swung to extremes since the days of Romulus is shown in this lex Papia, as Gaius calls it. Instead of securing the father in his right over the life of children, as the stern head of the house who might decide at will whether he should let his offspring live, the law now decreed that it was through the children that he gained a status in the community. Persons who were not married and had no children were unable to inherit; the unmarried person not being able to take any part of what had been left to him, and the married person without children (orbus) being able to take only one half.342 Among the provisions of the lex Julia, or the leges, were those entitling that candidate for office who had the greatest number of children to preference. Of the two consuls it was decreed that he should be the senior whose children were the most numerous; a relief from all personal taxes and burdens was granted to citizens who had three children if they lived in Rome, four if they lived in Italy, and five if they lived in the provinces.
With the establishment of the caduca, by which there was instituted a punishment for sterility and a reward for legitimate procreation, it can be seen that there would follow some diminution in the number of children exposed, though according to Tacitus,343 “marriages and the rearing of children did not become more frequent, so powerful are the attractions of the childless state.”
By giving the people, or the common treasury, the benefit of the clause forfeiting the inheritance on account of sterility, the law was recognizing the populus as the common father, a legal concept that is becoming more and more the attitude of the twentieth century, and was then first trenchantly expressed.
Suppressed in part by the constitution of Caracalla as to the privileges of paternity to the claim upon the caduca, and by Constantine as to the penalties for celibacy, these laws were not completely and textually abrogated until Justinian. They were the beginning, however, of the new movement; out of the degeneration and degradation of the waning days of the Republic there had come at least this forward step, though the patricians complained that these provisions gave rise to despised informers and opportunities for tyrannical misuse of power.
The child now had some other than a future use; it had an immediate value. Occasionally, in times past, strangers had picked up children exposed by their parents and had reared them as slaves, or maimed and blinded them for the profession of begging. Augustus set aside a reward of two thousand sesterces (about $40.00) for the person who would rear an orphan. This was the seed of a growing humanity, the first intimation of an inclination to treat children with kindness, though it contrasts with Augustus’s own personal conduct when his anger was aroused. Both his daughter and granddaughter were so profligate that he banished them; when his granddaughter Julia was delivered of a child after sentence, he ordered that the child be “neither owned as a relative nor brought up.”344
From the death of Augustus, 14 A. D., to the reign of Nerva, 96 A. D., the violent sway of the army and the tragic fate of successive emperors cloud the history of Roman law and progress.
The Emperor Claudius distinguished himself by ordering that Claudia, a child by his first wife, “who was in truth the daughter of his freedman Boter, be thrown naked at her mother’s door.”345
There were no successors to the great jurists of the type of Capito and Labeo, whose opinions in Augustan days were accepted by even the emperor himself. With the coming of Nerva there was a great change in the attitude toward children. Despite a short reign of two years and a reputation for a weak will, it was to his initiative that the State owed the movement to put an end to the practice of abandoning infants, by having the government subsidize poor parents.
Apparently there was no other way of stopping this ruinous custom in a degenerate day. It was useless to appeal to the rich to rear families, and the poor who were still producing children were becoming poorer. One of Nerva’s noteworthy acts to alleviate conditions was the founding of colonies, and it was in accordance with the same general plan that, a few months before he died, he ordered that assistance should be given parents who found themselves without the means of bringing up their offspring.
This order was issued in the year 97, and so successful was the experiment under his successor, who accepted and enlarged the plan, that in the year 100, five thousand children were receiving aid from the State. Much credit is given to Trajan for following up the ideas of Nerva, but it was to Nerva that Rome owed Trajan, one of the most humane of her emperors.
Another evidence of the humanity of Nerva was the fact that he prohibited the making of eunuchs, a practice that had met with the disfavour of the Emperor Domitian years before, and a practice that led the Pope Clement XIV., to decree, centuries later, that no more castrats should sing in churches. And these things he did when the extravagance of his predecessors had made it necessary for him to sell the imperial furniture and jewels in order to replenish the treasury. One of his coins shows him seated in the curule chair, dispensing charity to a boy and girl, the mother standing near, with the legend “Tutela Italia.”
One need only to read the gentle replies of the Emperor Trajan to the younger Pliny, to see that, in that reign at least, there was a great change and that the conception of duty in the modern sense was creeping into a military world. Pliny himself, in a letter to Cannius, describes how he settled five hundred thousand sesterces (about $20,000) on the city of Como for the maintenance of children, “who were born of good families”—an act as traceable to the growing protective tendency as to Pliny’s patriotism and love of glory.
According to the tablet of Velia346 to the Emperor Trajan, the landed proprietors of the place received on mortgage at five per cent.,347 less than half the usual rate of that time, what would be about $50,000 of our money, the interest of which was to go to the maintenance of three hundred poor children.
The means employed to help parents and prevent them from exposing their children were skilfully contrived. Through the municipality, Trajan lent money to certain proprietors to improve their land, and the interest paid on this loan constituted a benevolent fund by which the children were taken care of, or rather, by which their parents were rewarded for not murdering them. From the table of Velia we learn also that fifty-one proprietors of that section received on land twelve times the value of the loan, or 1,116,000 sesterces ($52,820) the annual interest of which, 55,800 sesterces ($2,650), constituted a fund for the support of three hundred children, two hundred and sixty-four boys and thirty-six girls. The boys received annually 192 sesterces, and the girls 144 sesterces. Illegitimate children were given less, the boys 144 sesterces, and the girls 120 sesterces, although in the tablet there were only two illegitimate children, one boy and one girl. The fact that the number of girls assisted was only one-tenth the number of boys, goes to show, that this new institution was not due so much to the fact that the sentiment of charity had infiltrated through pagan society, as to the fact that pagan society was endeavouring to repair the ravages of degenerate and pauperistic days, shown in the diminution of the class of freedmen in Rome.348
Writing to Pliny at Bithynia, to which place he had been sent by Trajan as imperial legate, the Emperor mildly answers an inquiry as to what the law shall be in that province regarding deserted children. Trajan rules that deserted children, who are found and brought up, shall be allowed their freedom without being obliged to repay the money expended for their maintenance.
“The question concerning such children who were exposed by their parents,” says Trajan, “and afterward preserved by others, and educated in a state of servitude, though born free, has been frequently discussed; but I do not find in the constitutions of the princes, my predecessors, any general regulation upon this head extending to all the provinces. There are, indeed, some rescripts of Domitian to Avidius Niguinus and Armenius Brocchus, which ought to be observed; but Bithynia is not comprehended in the provinces therein mentioned. I am of opinion, therefore, that the claims of those who assert their right of freedom upon this principle, should be allowed, without compelling them to purchase their liberty by repaying the money advanced for their maintenance.”349
A new note this, for in order to encourage the saving of children who had been exposed, the custom had been rigidly followed that the person who saved a child was able to regard it as his slave, without regard to what its condition had been previous to exposure.
As shown in the correspondence of Pliny and Trajan, there is much truth, in the contention that the Emperor shows up better than the philosopher and poet.
The noteworthy thing about this remarkable exchange of letters is that a new spirit is revealed. It is a living, working philosophy that we discover, practical results of that philosophy bringing a kindlier treatment of slaves, a greater respect for women, a more thoughtful regard for the education of the young, and a gentler assistance of the helpless and distressed.
True, Cicero, a century and a half before had preached doctrines that paved the way, and for generations earlier there had been such a kindlier spirit in the air. But not until now do we find a man of Pliny’s dominating prominence, or nearness to power, suggesting that he will pay a third of the expenses of the cost of founding a university in his own town. His reason, he says, is to save youths from going to Milan for their education and thereby getting away from the proper home influences.
Tracing the thin thread of child progress through these livid days we are brought in touch with the little known but better side of Roman life; for despite the general debauchery of the upper classes and the unwholesome pictures of Juvenal, there is evidence that there were Roman families untouched by the general immorality where women of the type of Marcia or Helvia, addressed in the letters of Seneca, presided over homes in which there was an atmosphere of virtue and self-restraint, and where tales of deeds of the Romans of the earlier days still had their charm and their influence.
CHAPTER XVI
REFORMS OF HADRIAN—PUNISHMENT OF FATHERS—VALERIUS MAXIMUS—FAVOURITE STREETS IN ROME FOR LEAVING ABANDONED CHILDREN—MUTILATING CHILDREN FOR PROFIT.
NEVER, it has been said, had the human race enjoyed a state of prosperity equal to that under the reign of Hadrian, the successor to Trajan, and like him a philosopher among emperors. From Nerva to Marcus Aurelius—the five emperors, Nerva, Trajan, Hadrian, Antoninus Pius, and Marcus Aurelius—there was a reign of philosophy. Indeed they may also be called the emperors of the children for the reforms they accomplished and initiated—working as they did, contrary to the entire law and tradition of their country, and without the inspiration of complete knowledge of the intellectual and spiritual conditions that were governing them.
To appreciate all that Hadrian did, one must remember that he had Plutarch for a master, Suetonius for his secretary, and Phlegon, his freedman, as amanuensis to write the history of his reign. As a youth he had studied all the philosophic systems including that of Epictetus, and showed an acquisitive spirit. Had he lived in our age of private railway cars probably he would have spent little time at the Capitol: in a time when travel was both disagreeable and dangerous he journeyed back and forth over his great domain, to the dissatisfaction of the Romans, but to his own greater knowledge of his people and consequent greater humanitarianism.
Out of that philosophy, that association, and that teaching, out of the character of Hadrian—for, despite the attempts of his biographers, Startianus and Dion Cassius, to make him a cruel and vain tyrant, his whole life shows an abhorrence of bloodshed—there was born a new rule.350
He closed the ergastula, or workhouses, where so many men, carried off by surprise, were detained and tortured; he protected slaves against the cruelty and murderous punishments of masters, prohibiting their sale to houses of prostitution or schools for gladiators, and also declaring against the indiscriminate torture of slaves whose masters had been assassinated. Up to that time even those who had not been within sight or hearing of a murder were liable to punishment. A woman who had ill-treated her female slaves he sentenced to five years’ imprisonment—an unheard-of thing in those days.
Once before, during the reign of Tiberius, Carthaginian priests had been crucified by the Emperor for the sacrifice of children to their god Moloch, but apparently the punishment had not acted as a deterrent, for we find a similar provision in the laws of Hadrian.
Going further and, as Duruy says, “employing logic in the service of humanity,” he ruled that any woman who had been free at the time of pregnancy must naturally give birth to a free child, a ruling not important in itself but closely in touch with what we will come to see was the argument of the Christian Fathers in behalf of the lives of little children.
He ameliorated the condition of women, allowing them to make wills, and for the first time softened the law of the Twelve Tables which, according to Ulpian, had given a mother no rights in the property of a son dying intestate. Hadrian, however, following a senatus consultum Tertullianum, gave the mother, under the jus trium liberorum, the right to inherit when she had had three sons, and, if a freed woman, when she had had four.
But the great blow Hadrian struck at the theories that had hitherto held sway was the condemning to banishment a father who had killed his son. From time immemorial the boast of Rome had been fathers who, in the ardour of patriotism, and sometimes in the heat of anger or resentment, had sacrificed their sons, no matter how famous or important their sons were.
“Lucius Brutus,” says Valerius Maximus, giving suitable incidents of the father’s power, “who equalled Romulus in honour, for he founded Rome and thus the Roman liberty, coming to the supreme power, and understanding that his sons endeavoured to restore Tarquin, caused them to be apprehended, and to be whipped with rods before the Tribuna; and, after that, caused them to be tied to a stake, and then ordered the sergeant to cut off their heads. He put off the relation of a father, that he might act like a consul; rather chose to live childless, than to be remiss in public duty.
“Cassius, following his example, though his son was a tribune of the people, and was the first that had promulgated the Agrarian law, and by many other popular acts had won the hearts of the people, when he had laid down his command, by advice of his kindred and friends, condemned him in his own house for affecting the kingdom; and after he was whipped, commanded him to be put to death; and consecrated his estate to Ceres.
“Titus Manlius Torquatus, famous for his many great dignities, and a person of rare experience in the civil law and the pontifical ceremonies, did not think it necessary to consult his friends in an act of the same nature. For when the Macedonians had by their ambassadors complained to the Senate of D. Silanus, his son, who was governor of that province, he besought the Senate that they would determine nothing in that affair till he had heard the difference betwixt his son and the Macedonians. Then, with the general consent of the conscript fathers, and of them that came to complain, he sat and heard the cause in his own house, wherein he spent two whole days alone, and the third day, after he had diligently examined the testimonies on both sides, he pronounced this sentence: ‘Whereas it hath been proved that Silanus, my son, has taken money of our allies, I think him unworthy to live either in the commonwealth, or in my house, and I command him forthwith to get out of my sight.’ Silanus, struck with the sharp and cruel sentence of his father, would not endure to live any longer, but the next night hanged himself.
“But M. Scaurus, the light and ornament of his country, when the Roman cavalry was worsted by the Cimbrians and deserting the proconsul, Catullus, took their flight toward the city, sent one to tell his son, who was one of those that fled, that he had rather meet with his carcass slain in the field, than see him guilty of such a shameful flight. And therefore if there were any shame remaining in his breast, degenerate as he was, he should shun the sight of his enraged father; for by the remembrance of his youth, he was admonished what kind of son was to be owned or contemned by such a father as Scaurus. Which message being delivered him, the young man was forced to make a more fatal use of his sword against himself, than against his enemies.
“No less imperiously did A. Fulvius, one of the Senatorian Order, keep back his son from going into the field, than Scaurus chid his for running away. For he caused his son, eminent among his equals for his wit, learning, and beauty, to be put to death because he took part with Catiline, being seduced by ill-counsel; having brought him back by force, as he was going to Catiline’s army, and uttering these words before his death, that he ‘did not beget him to join with Catiline against his country, but to serve his country against Catiline.’ He might have kept him till the heat of the war had been over, but that would have been only the act of a cautious, this was the deed of a severe father.”
The father who was brought before Hadrian under the old conditions would have been honoured—he had killed a son who befouled his name. Nevertheless this man was ordered to be deported, “because he had killed as a thief rather than as one using the power (jure) of father; nam patria potestas in pietate debet, non atrociate consistere.”351 Whatever the excuse given, he was punished. That he had not observed the forms in killing his son by calling a consultation of the members of his family, was the nominal reason for punishing him, but the unchecked power of the father over the life of his children, even when they had become adults, was ended.
Modern sensibility will be shocked at the thought that there had been sufficient social “advance” for distinct places to become established for the exposure of children. But advance it was when no longer were children left in unfrequented highways, no longer were they thrown into the Tiber.
There were two places where it was the custom to leave abandoned children. One was near the Velabrum, a street on the western slope of the Aventine Hill between the Vicus Tuscus and the Forum Boarium where the oil dealers and the cheese mongers made a practice of selling their wares; and the other, in the vegetable market, where there rose a column round which the children were placed. Because of this practice, according to Festus, the column was called the Lactaria.352 It was said that courtesans favoured the Velabrum.
What happened to the children even in this “advanced” age was doubtless little different from the treatment they received when they were found on the highways. The elder Seneca has given a vivid account of the practice of the day in the “Thirty-third Controversy,” book five, headed “Debilitans Expositos.”353
Difficult as it is to believe that the people who eventually charged themselves with the rearing of the foundlings made a business of mutilating them, there is no doubt but that such was the case.
In the “Controversy” of Seneca the question is whether those who mutilated exposed children have done a wrong toward the State. The debate is opened by Porcius Latro, who asks if after having suffered the misfortune of being exposed, it is not a piece of good luck to have someone find them.
Cassius Severus then expresses his opinion.
“Look,” he exclaims, “on the blind wandering about the streets leaning on their sticks, and on those with crushed feet, and still again look on those with broken limbs. This one is without arms, that one has had his shoulders pulled down out of shape in order that his grotesqueries may excite laughter. Let us view the entire miserable family shivering, trembling, blind, mutilated, perishing from hunger—in fact, already half dead. Let us go to the origin of all these ills—a laboratory for the manufacture of human wrecks—a cavern filled with the limbs torn from living children—each has a different profession, a different mutilation has given each a different occupation.”
The conclusion is that inasmuch as the exposed children are slaves, being the property of those who rear them, they have no cause for complaint against the State.
“What wrong has been done to the Republic?” asks Gallio in reply to Severus. “On the contrary, have not these children been done a service inasmuch as their parents had cast them out?”
“Many individuals,” adds F. Claudius, “rid themselves of misformed children defective in some part of their body or because the children are born under evil auspices. Someone else picks them up out of commiseration and, in order to defray the expenses of bringing the child up, cuts off one of its limbs. Today, when they are demanding charity, that life that they owe to the pity of one, they are sustaining at the expense and through the pity of all.”
CHAPTER XVII
PROGRESS UNDER THE ANTONINES—FAUSTINA’S EFFORTS TO SAVE FEMALE CHILDREN—CHRISTIAN SENTIMENT GROWS—PLEA OF LACTANTIUS—ITS EFFECTS—CONSTANTINE.
FROM the strictly legal side the most interesting event of Hadrian’s reign is the fact that the opinions of the jurists, when they were unanimous, were now recognized as written law.354 The constitutions or proclamations of law of the emperors, although none were ascribed to an earlier date, had probably been issued for a century previously, but now what is called the “Perpetual Edict” is finally arranged and authorized, and law proceeds from an intellectual and philosophic source, instead of from an imperial head.
In empowering Salvius Julianus, one of the four greatest lawyers Rome ever produced, to frame an edict, and by a senatus consultum embody this edict in the statute law of Rome, the entire law of the Empire underwent a change in spirit. What had hitherto been done by Augustus, by Nerva, by Trajan, and by Hadrian himself, had furnished only the value of example or of an immediate law passed for the benefit of some particular condition. A succeeding emperor was at liberty to imitate or pass similar laws, or ignore the acts of his predecessors as he might choose. As we shall see, he usually ignored the noble examples of those who had gone before.
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 controversy356 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.
In the name of his wife, Faustina, for whom—despite the assaults on her character—he retained ever affection and respect, he consecrated a protective foundation for the benefit of girls, puellæ alimentariæ Faustinianæ—the first of its kind in the world, and the initial move to save female children other than the first-born. A medal of the time, showing the Empress, bears on the reverse side Antoninus surrounded by children, with the words Puellæ Faustinianæ in the exergue.358 This, together with his continuous support of the pueri alimentarii, entitles him to the credit of saving more children from the “ancient and abominable” custom of being thrown out on the crossroads to die than any of his predecessors.
At the end of his reign it is evident from the inscriptions that endowments similar to those originated by Nerva had been made at Atina, Abellinum, Abella, Vibo, Caieta, Anagnia, Fundi, Cupra Montana, Industria, Brixia, Aquileia, Compsa, Æclanum, Allifæ, Aufidena, Cures, Auximum, and other places. What is more interesting than the point of view of E. E. Bryant, in his Life of Antoninus Pius, that these “endowments undoubtedly pauperized Italians and lightened unwisely the responsibility of parents for the maintenance of their children? But they must certainly have been of assistance to farmers, and have supplied them with the capital necessary for successful agriculture.”359
The progress made in the matter of child history would be incomplete if one did not recall that in this reign appeared that bold and able defender of Christianity, Justin Martyr. The time had gone by for darkness and seclusion, and now, that which had been contemptuously but so well described as the religion of “slaves and women, of children and old men,” strode abroad, proclaiming its right to be heard as a rational and uplifting doctrine. Pleading for the oppressed and the downtrodden, pleading for those the Roman world affected to despise, preaching a religion of humility—there is a fine, robust, masculine note in Justin’s opening words of his apology, the challenging conviction of a man who knowingly throws down the gauntlet to the masters of the world.
To the Emperor Titus Ælius Antoninus, Pius, Augustus, Cæsar;
to his Son Verissimus, Philosopher;
to Lucius, Philosopher,
Son of Cæsar by Birth and of Antoninus by Adoption,
a Prince Friendly to Literature;
to the Sacred Senate and to the Entire Roman People,
In the Name of those who, among All Men,
Are unjustly Hated and Persecuted;
I, One of Them,
Justin ... Have Written this Discourse.
It was during the reign of Antoninus that Tertullian was born.
Under Antoninus’s philosophic successor the alimentary institution was further developed, Marcus Aurelius showing his interest by putting the supervision under a person of prætorian or consular rank.360 He upheld the rights of children, going one step further in the direction of freedom by ending the tyrannical power of the father to oblige his son to put away his wife, if the latter were disagreeable to the head of the family.
With Marcus Aurelius vanished the humane emperors—they had reigned long. Culminating in his beneficent sway the Stoic philosophy, from Aristotle to Marcus Aurelius, kept developing, in the midst of surroundings the least encouraging. The Stoics, with their ideas of humanity, of mutual good will and moral equality, arrived at almost the same conclusions regarding religion and the same sentiment regarding humanity as did the followers of the Christian religion, although working from an entirely different source. The one reached its conclusion through the medium of patrician orators, philosophers, and emperors, the other through the slaves, the distressed, and those for whom life faced an unbroken wall.
From Aurelius to Septimus Severus there is little but bloodshed in Roman history. The selection of Papinian, the greatest of Roman jurists, as his adviser is in a way the greatest claim to fame that Severus has.361 Among his many laws was one that permitted the sons of a condemned criminal to retain the rights the father had over freedmen, which was considered a great indulgence—benignissime rescripsit. He condemned to temporary exile the woman who, by practising abortion, had deprived her husband of the hope of children.
Of the bloody reign of Caracalla it is to be noted principally that he changed the lex Julia in such a way as to deprive paternity of its privileges. Those who were not married (cœlebs) and those who were married and had no children (orbus) suffered in regard to their inheritances as they had under the old law, but Caracalla filled his treasury by sweeping into the fiscus all the caduca.
While the barbarians are now beginning to press down on the northern frontiers of the Empire and the Christians beginning to rapidly and swiftly permeate the vast domain, there is little but a bloody chronicle of making and unmaking of emperors up to Diocletian. Even when persecuted and proscribed, says Ortolan, Christianity had a liberalizing and softening effect on the progress of jurisprudence and legislation. The softening effect was also the effect of a new understanding. Trajan, one of the greatest of the humane emperors, had come from Spain, and Diocletian, who temporarily braced up the Roman legions, put energy into the government, and held the barbarians in check, was himself from a family of freedmen. The best of the patrician blood had become thoroughly impregnated with Stoic ideas, although it was true that the jurists who had obtained their philosophy from Greece and were given the task of defending existing law and institutions were still against the new religion. Though the persecutors under Diocletian were unusually severe, theirs was the final burst of oppression before the new religion was to triumph in having the head of the great Roman Empire, Diocletian’s own successor, Constantine, accept the despised faith.
It matters little whether Constantine’s conversion was a political move, based on a desire to absorb a growing and powerful organization. This was a century in which things were happening and his was a reign (306 or 313–337) that marked a long turn in the road in the attitude of the State toward the child. Despite the progress that had been made, the practice of murdering and exposing new-born children was becoming more and more frequent in the provinces, and especially in Italy.362
It was due to poverty, says Gibbon,363 and the principal causes of distress were the unendurable taxes. The historian declares that “moved by some recent and extraordinary instances of despair,” Constantine addressed an edict364 to all the cities of Italy and afterward to those of Africa, directing that immediate and sufficient aid be given by magistrates to parents who produced children that they were too poor to bring up. Against the opinion of Gibbon is set that of Godefroy that it was not some unusual bit of misery, some “Mary Ellen case,” that moved the Emperor to take this significant step.
The edict was published on May 12, 315 A. D., a few months before his victory over Licinius. The Christians had prophesied to Constantine that he would be victorious and he was more than likely to be influenced by their point of view, especially that of Lactantius, the noted rhetorician and teacher, to whom he had entrusted the education of his son, Crispus. Lactantius had just written his work on The Divine Institutes, designed to supersede the less complete treatises of Minucius Felix, Tertullian, and Cyprian. He had dedicated the work to Constantine, and perhaps had conversed with him about it, discussing one particular chapter in which the Christian Father had inveighed, with his accustomed grace but with unusual force, against infanticide and the sale and exposure of infants. A new day, indeed, had come—the proud Emperor of the mighty Romans sits high on his throne, listening to, and moved by—a Christian Father!
This is Lactantius’s plea for the new-born, from the sixth book of his Divine Institutes365:
“Therefore let no one imagine that even this is allowed, to strangle newly born children, which is the greatest impiety; for God breathes into their souls for life, and not for death. But men, that there may be no crime with which they may not pollute their hands, deprive souls, as yet innocent and simple, of the light which they themselves have not given. Any one truly may not expect that they would abstain from the blood of others who do not abstain even from their own. But these are without any controversy wicked and unjust. What are they whom a false piety compels to expose their children? Can they be considered innocent who expose their own offspring as a prey to dogs, and as far as it depends upon themselves, kill them in a more cruel manner than if they had strangled them?
“Who can doubt that he is impious who gives occasion for the pity of others? For, although that which he has wished should befall the child—namely, that it should be brought up—he has certainly consigned his own offspring either to servitude or to the brothel? But who does not understand, who is ignorant what things may happen, or are accustomed to happen, in the case of each sex, even through error? For this is shown by the example of Œdipus alone, confused with twofold guilt. It is therefore as wicked to expose as it is to kill. But truly parricides complain of the scantiness of their means, and allege that they have not enough for bringing up more children; as though, in truth, their means were in the power of those who possess them, or God did not daily make the rich poor, and the poor rich. Wherefore, if any one on account of poverty shall be unable to bring up children, it is better to abstain from marriage than with wicked hands to mar the work of God.”
As an additional protective measure Constantine withdrew the right of liberty that the Antonines had secured to foundling children, and in order to encourage strangers to pick up waifs cast away by parents, the Emperor made them the slaves of those who raised them. The father was punished for rejecting his infant by being no longer able to claim a right that had previously been his. Rather than that there should be murder, the Emperor went further; he gave poor parents the right to sell their new-born children.
One more step and the story of the Roman child ends. The Emperor Valentinian, a strange mixture of cruelty and sense—the same who kept two ferocious she-bears near him and saw that they had human food a-plenty,—is in the books as the author of the law condemning the exposition of new-born infants. It was in 374 that this edict was issued in the name of the Emperors Valentinian, Valens, and Gratian, declaring that whosoever should expose his children should be subject to punishment.366
CHAPTER XVIII
PLEAS OF THE CHRISTIAN FATHERS.
IT has been said that the only way to understand the Middle Ages is to comprehend that the Roman Empire did not die down, or fade away; it remained, or continued to be the centre of civilized government, until comparatively recent times. In fact, nominally the Holy Roman Empire, the direct descendant of the Roman Empire, did not pass away as an idea until 1806, when the Emperor Joseph II. announced to the Germanic Diet his refusal to carry any longer the title of Emperor of the Romans.367
Even when the Roman Empire was at its greatest point of power and wealth, the actual founders of the Holy Roman Empire were at work in Rome itself, in the persons of the Christian Fathers; for, after all, it was the Church that was to rule the world once swayed by Roman legions. The men who, as representatives of Christ, were later to tame the barbarians, really laid the foundations for the future greatness of Christian Rome, amid the very luxury and opulence of the pagan Rome soon to pass away.
The struggles of these Christians among the polished and cruel Romans was, in a way, a preparation for the struggle to come later with the unpolished, but equally cruel, barbarians. In their conquest of the Roman world, the Christian founders saved their religion; in the conquest of the barbarian hordes, they saved civilization; without Christianity the German and Celtic races, with their lustful, revengeful, and passionate natures, either might have overwhelmed Roman civilization entirely, bringing on a night of barbarism, or have been themselves “corrupted and destroyed by the vices and sensuality which surrounded them.”368
Amid all the differences of opinion and doctrine that we find among the early founders of Christianity, there was one thing on which they were unanimous, and that was the attitude toward children. It was a ceaseless war they waged in behalf of children—those early and ofttimes eloquent founders. From Barnabas, contemporary of the Apostles, and by Luke even called one of them, to Ambrosius and Augustine, they did not cease to denounce those who, no matter what their reasons, exposed or killed infants.