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 controversy[356]
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 edict[364] 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 Institutes_[365]:
“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]