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,246 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,247 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 made248 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, puell? alimentari? faustinian?—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 puell? faustinian? 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, ?clanum, allif?, 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 lightened249 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 ?lius antoninus, pius, augustus, c?sar;
to his son verissimus, philosopher;
to lucius, philosopher,
son of c?sar by birth and of antoninus by adoption,
a prince friendly to literature;
to the sacred senate and to the entire roman people,
250in 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 pr?torian 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,251 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 (c?lebs) 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 of252 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
253
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 with254 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 not255 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 ?dipus 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 the256 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.
