Chapter 66
22 It must not; however, be inferred from this that infanticide increases in direct proportion to the unchast.i.ty of a nation.
Probably the condition of civilised society in which it is most common, is where a large amount of actual unchast.i.ty coexists with very strong social condemnation of the sinner, and where, in consequence, there is an intense anxiety to conceal the fall. A recent writer on Spain has noticed the almost complete absence of infanticide in that country, and has ascribed it to the great leniency of public opinion towards female frailty. Foundling hospitals, also, greatly influence the history of infanticide; but the mortality in them was long so great that it may be questioned whether they have diminished the number of the deaths, though they have, as I believe, greatly diminished the number of the murders of children. Lord Kames, writing in the last half of the eighteenth century, says: "In Wales, even at present, and in the Highlands of Scotland, it is scarce a disgrace for a young woman to have a b.a.s.t.a.r.d. In the country last mentioned, the first instance known of a b.a.s.t.a.r.d child being destroyed by its mother through shame is a late one. The virtue of chast.i.ty appears to be thus gaining ground, as the only temptation a woman can have to destroy her child is to conceal her frailty."-_Sketches of the History of Man-On the Progress of the Female s.e.x._ The last clause is clearly inaccurate, but there seems reason for believing that maternal affection is generally stronger than want, but weaker than shame.
23 See Warburton's _Divine Legation_, vii. 2.
24 aelian, _Varia Hist._ ii. 7. Pa.s.sages from the Greek imaginative writers, representing exposition as the avowed and habitual practice of poor parents, are collected by Terme et Monfalcon, _Hist. des Enfans trouves_, pp. 39-45. Tacitus notices with praise (_Germania_, xix.) that the Germans did not allow infanticide. He also notices (_Hist._ v. 5) the prohibition of infanticide among the Jews, and ascribes it to their desire to increase the population.
25 Dion. Halic. ii.
_ 26 Ad Nat._ i. 15.
27 The well-known jurisconsult Paulus had laid down the proposition, "Necare videtur non tantum is qui partum perfocat sed et is qui abjicit et qui alimonia denegat et qui publicis locis misericordiae causa exponit quam ipse non habet." (_Dig._ lib. xxv. t.i.t. iii. 1.
4.) These words have given rise to a famous controversy between two Dutch professors, named Noodt and Bynkershoek, conducted on both sides with great learning, and on the side of Noodt with great pa.s.sion. Noodt maintained that these words are simply the expression of a moral truth, not a judicial decision, and that exposition was never illegal in Rome till some time after the establishment of Christianity. His opponent argued that exposition was legally identical with infanticide, and became, therefore, illegal when the power of life and death was withdrawn from the father. (See the works of Noodt (Cologne, 1763) and of Bynkershoek (Cologne, 1761)).
It was at least certain that exposition was notorious and avowed, and the law against it, if it existed, inoperative. Gibbon (_Decline and Fall_, ch. xliv.) thinks the law censured but did not punish exposition. See, too, Troplong, _Influence du Christianisme sur le Droit_, p. 271.
28 Quintilian speaks in a tone of apology, if not justification, of the exposition of the children of dest.i.tute parents (_Decl._ cccvi.), and even Plutarch speaks of it without censure. (_De Amor. Prolis._) There are several curious ill.u.s.trations in Latin literature of the different feelings of fathers and mothers on this matter. Terence (_Heauton._ Act. iii. Scene 5) represents Chremes as having, as a matter of course, charged his pregnant wife to have her child killed provided it was a girl. The mother, overcome by pity, shrank from doing so, and secretly gave it to an
Scene 5. See, too, Suet. _August._ lxv. According to Suetonius (_Calig._ v.), on the death of Germanicus, women exposed their new-born children in sign of grief. Ovid had dwelt with much feeling on the barbarity of these practices. It is a very curious fact, which has been noticed by Warburton, that Chremes, whose sentiments about infants we have just seen, is the very personage into whose mouth Terence has put the famous sentiment, "h.o.m.o sum, humani nihil a me alienum puto."
29 That these were the usual fates of exposed infants is noticed by several writers. Some, too, both Pagan and Christian (Quintilian, _Decl._ cccvi.; Lactantius, Div. Inst. vi. 20, &c.), speak of the liability to incestuous marriages resulting from frequent exposition. In the Greek poets there are several allusions to rich childless men adopting foundlings, and Juvenal says it was common for Roman wives to palm off foundlings on their husbands for their sons. (_Sat._ vi. 603.) There is an extremely horrible declamation in Seneca the Rhetorician (_Controvers._ lib. v. 33) about exposed children who were said to have been maimed and mutilated, either to prevent their recognition by their parents, or that they might gain money as beggars for their masters.
30 See pa.s.sages on this point cited by G.o.defroy in his _Commentary to the Law __"__De Expositis,__"__ Codex Theod._ lib. v. t.i.t. 7.
_ 31 Codex Theod._ lib. xi. t.i.t. 27.
_ 32 Codex Theod._ lib. v. t.i.t. 7, lex. 1.
_ 33 Ibid._ lib. v. t.i.t. 8, lex 1.
34 See G.o.defroy's _Commentary to the Law_.
35 In a letter to the younger Pliny. (_Ep._ x. 72.)
36 See on this point Muratori, _Antich. Ital._ Diss. x.x.xvii.
37 See on these laws, Wallon, _Hist. de l'Esclavage_, tome iii. pp. 52, 53.
38 See _Cod. Theod._ lib. iii. t.i.t. 3, lex 1, and the Commentary.
39 On the very persistent denunciation of this practice by the Fathers, see many examples in Terme et Monfalcon.
40 This is a mere question of definition, upon which lawyers have expended much learning and discussion. Cujas thought the Romans considered infanticide a crime, but a crime generically different from homicide. G.o.defroy maintains that it was cla.s.sified as homicide, but that, being esteemed less heinous than the other forms of homicide, it was only punished by exile. See the Commentary to _Cod. Theod._ lib. ix. t.i.t. 14, l. 1.
_ 41 Cod. Theod._ lib. ix. t.i.t. 15.
_ 42 Ibid._ lib. ix. t.i.t. 14, lex 1.
_ 43 Corp. Juris_, lib. viii. t.i.t. 52, lex 2.
_ 44 Leges Wisigothorum_ (lib. vi. t.i.t. 3, lex 7) and other laws (lib.
iv. t.i.t. 4) condemned exposition.
45 "Si quis infantem necaverit ut homicida teneatur."-_Capit._ vii.
168.
46 It appears, from a pa.s.sage of St. Augustine, that Christian virgins were accustomed to collect exposed children and to have them brought into the church. See Terme et Monfalcon, _Hist. des Enfans trouves_, p. 74.
47 Compare Labourt, _Rech. sur les Enfans trouves_, pp. 32, 33; Muratori, _Antichita Italiane_, Dissert. x.x.xvii. Muratori has also briefly noticed the history of these charities in his _Carita Christiana_, cap. xxvii.
48 The first seems to have been the hospital of Sta. Maria in Sa.s.sia, which had existed with various changes from the eighth century, but was made a foundling hospital and confided to the care of Guy of Montpellier in A.D. 1204. According to one tradition, Pope Innocent III. had been shocked at hearing of infants drawn in the nets of fishermen from the Tiber. According to another, he was inspired by an angel. Compare Remacle, _Hospices d'Enfans trouves_, pp. 36-37, and Amydemus, _Pietas Romana_ (a book written A.D. 1624, and translated in part into English in A.D. 1687), Eng. trans, pp. 2, 3.
49 For the little that is known about this missionary of charity, compare Remacle, _Hospices d'Enfans trouves_, pp. 34-44; and Labourt, _Recherches historiques sur les Enfans trouves_, pp. 38-41.
50 E.g. the amphitheatre of Verona was only built under Diocletian.
51 "Quid hoc triumpho pulchrius?... Tantam captivorum mult.i.tudinem bestiis objicit ut ingrati et perfidi non minus doloris ex ludibrio sui quam ex ipsa morte patiantur."-Incerti, _Panegyricus Constant_.
"p.u.b.eres qui in ma.n.u.s venerunt, quorum nec perfidia erat apta militiae nec ferocia servituti ad pnas spectaculo dati saevientes bestias mult.i.tudine sua fatigarunt."-Eumenius, _Paneg. Constant._ xi.
_ 52 Cod. Theod._ lib. xv. t.i.t. 12, lex 1. Sozomen, i. 8.
53 This, at least, is the opinion of G.o.defroy, who has discussed the subject very fully. (_Cod. Theod._ lib. xv. t.i.t. 12.)
54 Libanius, _De Vita Sua_, 3.
_ 55 Cod. Theod._ lib. xv. t.i.t. 12, l. 2.
56 Ibid. lib. ix. t.i.t. 40, l. 8.
57 Ibid. lib. ix. t.i.t. 40, l. 11.
58 Ibid. lib. xv. t.i.t. 12, l. 3.
59 Symmach. _Ex._ x. 61.
60 M. Wallon has traced these last shows with much learning. (_Hist. de l'Esclavage_, tome iii. pp. 421-429.)
61 He wavered, however, on the subject, and on one occasion condemned them. See Wallon, tome iii. p. 423.
62 Theodoret, v. 26.
63 Muller, _De Genio aevi Theodosiani_ (1797), vol. ii. p. 88; Milman, _Hist. of Early Christianity_, vol. iii. pp. 343-347.
64 See on these fights Ozanam's _Civilisation in the Fifth Century_ (Eng. trans.), vol. i. p. 130.
65 Nieupoort, _De Ritibus Romanorum_, p. 169.
66 See a very unequivocal pa.s.sage, _Inst. Div._ vi. 20. Several earlier testimonies on the subject are given by Barbeyrac, _Morale des Peres_, and in many other books.
67 See two laws enacted in A.D. 380 (_Cod. Theod._ ix. t.i.t. 35, l. 4) and A.D. 389 (_Cod. Theod._ ix. t.i.t. 35, l. 5). Theodosius the Younger made a law (ix. t.i.t. 35, l. 7) excepting the Isaurian robbers from the privileges of these laws.
68 There are, of course, innumerable miracles punis.h.i.+ng guilty men, but I know none a.s.sisting the civil power in doing so. As an example of the miracles in defence of the innocent, I may cite one by St.