CONDITIONS AMONG THE PEOPLES WHO CONQUERED THE ROMAN
EMPIRE—IRISH SACRIFICED FIRST BORN—THE WERGELD—THE SALIC
LAW—CODE OF THE VISIGOTHS ON EXPOSED CHILDREN—THEODORIC
AND CASSIODORUS.
With Church and State united in defence of the child’s right to live,
we turn to the barbaric hordes that were then enfilading the Roman
civilization. For the first time in the history of man the religious
law was the same as the civil law, and for the first time in the
history of man both represented human law.
With Diocletian’s division of the Empire into four almost equal parts
under two Augusti and two Cæsars, there was frank acknowledgment that
the great Roman Empire was at an end. With him, too, ended the fiction
of a popular sovereignty. The Roman Emperor became an Eastern despot.
He was no longer a man of the people easily to be seen and showing his
democracy in frequent unofficial parade.
[Illustration: THE HOLY FAMILY
(AFTER RUBENS)
(REPRODUCED BY PERMISSION OF MUSEUM OF ART, NEW YORK)]
He was now a secluded person wearing the dress of the Orientals,
surrounded by servile officials; and the Orientalism of the
government went further when Constantine, at the farthest limit
of Europe, built a new city, Constantinople, named after himself.
Nominally it was but to divide with Rome the honours of being the
capital; in reality it was to dim the even now fading lustre of the
Seven Hills.
From the frontiers of China to the Baltic there came pressing down on
the fast disintegrating Roman Empire armies of barbarians. Amid all the
disorder, the calamities without number, when civilization, science,
and the arts were all obscured, the Church gained strength, its tenets
held sway, its humanities were accepted as the conquerors in their turn
became the conquered. The Christian religion slowly gripped them all as
out of the convulsions of government there was born the modern Europe.
To the Romans and their adopted allies it was a world of terror—to the
Christians it was a friendly world, for the barbarians were known to
the Church long before they were known to the soldiers who tried to
repulse them.
It has been the fashion to decry the value of the check that the
Church put on the barbarous tribes in the early part of the Christian
era.[388] Up to the very door of the Church there was, it is true,
slaughter—there it stopped. Had it not been for the Church upholding
what it did of civilization and humanity, it is difficult to say what
would have been the outcome of the hordes of Ostrogoths, Visigoths,
Gephids, Longobards, Vandals, Burgundians, Franks, and Saxons who, at
one time or another, fell upon Rome.
But from the third century these invaders in their very triumph came
face to face with a moral force that checked them as no army could,
softened their manners, and uniting their rude strength with the last
remains of the glory of Rome, gave to the world the civilized nations
that now practically control both hemispheres.
Of the first missionary efforts little is known. Jesus himself had
said, “Go ye therefore and teach all nations.... Teach them to observe
all things whatsoever I have commanded you,”[389] and was indeed
himself the first missionary of the new faith. Of his immediate
followers only three undertook missionary work.
After the death of Jesus, the Apostles scattered over the whole world.
“Thomas,” says Eusebius, “received Parthia as his alloted region;
Andrew received Scythia, and John, Asia.... Peter appears to have
preached through Pontus, Galatia, Bithynia, Cappadocia, and Asia ...
and Paul spread the Gospel from Jerusalem to Illyricum.”[390]
From another source we are told that Matthew went into Æthiopia, but
in the following century there is little light as to who were the
missionaries; but that they were everywhere successful is shown by the
reports of the Roman governors to the emperors. Undisputed claims of
Tertullian and Justin also show that the work of conversion, despite
the proscriptions, was going on rapidly enough. Ulfilas, “the Apostle
of the Goths,” translated the Bible into their language in 325;
Eusebius, Bishop of Vercelli in 370, made his cathedral the centre
of missionary work. Chrysostom trained people in the Gothic language
and in missionary work and sent them among the Goths according to
Theodoretius.[391]
It was harder work in the West but it was more lasting. From Berins,
an islet off the roadstead of Toulon where, in 410 A.D., a Roman
patrician, Honoratus, had founded a monastic home, there were sent
bishops to Arles, Avignon, Lyons, Troyes, Metz, and Nice, and many
other places in southern and western Gaul, all to become the centres of
missionary work.[392]
The proselyting spirit among these Frankish bishops gave rise to a
great movement in the north. The preaching of Patrick was followed by
what has been described as a marvellous burst of enthusiasm; and Celtic
enthusiasm was from now to be counted on. Columba, the founder of Iona,
was the missionary for the Northern Picts and the Albanian Scots; Aidan
for the Northumbrian Saxons; Columbanus for the Burgundians of the
Vosges; Callich or Gallus for north-eastern Switzerland and Germany;
Kilian for Thuringia; Virgilius for Carinthia; Fridolin in Suabia and
Alsace; Magnoald founded a monastery in Fingen; Trudpert penetrated as
far as the Black Forest, where he was killed.
Among these people there had been a variety of conditions before the
coming of, first the Romans, and secondly the Christians. Before the
arrival of St. Patrick and the conversion of the natives there is very
little doubt that part of the pagan worship included human sacrifice.
On a plain in what is now the county of Leitrim which was then called
the Magh-Sleacth, or Field of Slaughter, these primeval rites took
place.
“There on the night of Samhin, the same dreadful tribute which the
Carthaginians are known to have paid to Saturn in sacrificing to him
their first-born, was by the Irish offered up to their chief idol,
Crom-Cruach.”[393]
Of the Gauls and the Germans we learn something from Cæsar and Tacitus,
but both are vague enough when it comes to the subject of children. The
two people, according to Strabo, were as much alike as brothers.
“The two races have much in common,” said Martin, “in their social
organization.” In Gaul the power of the father was absolute—_viri
in uxores sicut in liberos vitæ necisque habent potesta__tem_,
wrote Cæsar, and Tacitus tells us in _Germanicus_ that the husband
had assisted in the execution of his adulterous wife by her nearest
relatives—a condition that would lead one to believe that there was
high regard for the mother of the family, although it has been said
that Tacitus in painting the Germans as virtuous as he did[394]
was following much along the lines of Fenimore Cooper in painting
the Indians a holy pink—he wished to improve the morals of his own
countrymen and sacrificed truth as a detaining cargo.
The Germans of the fourth century represented about the period of
culture that our American Indians did when the English first arrived in
this country. Unlike the Indians, they had the power to learn, whereas
the Indians seemed to be able to learn only the vices of civilization.
Their imagination stirred by the stories that came back to them of
the glory of Rome, they were for pressing forward. With the growing
population that made migration necessary, and with the inimical forces
pushing them from the rear, the “open road” beckoned them on to Rome.
Before the close of the fourth century the Gospel had been carried to
them, especially to those near the Roman border.
We have seen the laws of old Rome become more humane—what were the laws
of this later Rome?
Among some of the German tribes, notably among the Frisians, we learn
that the father had the right to kill and expose his children when
he was unable to provide them with nourishment; but once the child
had taken of milk or eaten honey it could not be killed. The Emperor
Julian, who loved literature more than he loved religion and has been
decorated with the title Apostate, speaks of a custom of some of the
barbarians who lived on the banks of the Rhine, which consisted of
abandoning the new-born children on the waves of the river, believing
that adulterous children would drown and legitimate children would
survive.
The Church was here able “to concord the essentials of two bodies of
law by discarding the elements of formalism and egoism in the Roman law
and the hard and barbaric qualities of the German law; and introduced
as governing principles of social and communal life the grave moral
principles which Christ had proclaimed. The New Testament was the great
law, the legislative ideal for all the Romano-Germanic peoples.”[395]
In the semi-barbarian laws that came out as the result of the blending
of their own customs with the Roman law, the combined product being
softened by the Christian teaching, there is evident always the
Germanic idea of the _wergeld_ by which a man paid for a crime, from
the smallest to the greatest. And instead of the _patria potestas_ we
find the _mundium_, this word (hand) being used to describe all classes
of protection.
Infanticide is not mentioned as frequently as is abortion. To the
belief that the infant had a soul was traceable this phase of
semi-barbarian legislation.
The Franks were not spoken of in history until 240 A.D. (Aurelianus)
and Salian Franks whose laws Montesquieu declared were much quoted and
seldom read were subdued by Julianus.[396]
According to the Salic law[397] to “kill a child that did not as
yet have a name, that is to say one under eight days of age, was to
be subject to a fine or _wergeld_ of 100 sous or 4000 deniers”[398]
xxiii., 4. _Si utero in ventre matris sui occisus fuerit, aut ante quod
nomen abait, malb anneando, sunt din. iiiM fac. sol. culp. iud._
To kill a boy under ten, according to the early manuscripts, meant
a fine of 24,000 deniers, while the later manuscripts raised the
age to twelve, as there was greater _wergeld_ for killing one who
was then considered a man. Oghlou suggests that while it cost but
200 sous to kill an ordinary free man, the price of an infant under
twelve was 600 because “the cowardice of killing a child that had
not arrived at the twelfth year appealed to the barbarians.” Such an
interpretation would be crediting the Salians with a most humanitarian
and nineteenth-century point of view. As a matter of fact, the fine for
the murder of a child is the same as for the killing of a _sagbaron_
(_Dicuntur quosi senatores_).
The words _puer crintus_ have been shown by Kern[399] to refer not to
the fact that the boy was one of twelve years who had been allowed to
wear his hair long, but one who “by right of birth is allowed to wear
his hair long in contradistinction to slaves and serfs.”[400]
To cut the hair of a boy or girl by force—and apparently against their
will—meant a fine of forty-five sous. To kill a free girl before the
age of twelve cost 200 sous, after the age of twelve, here given as
the age of puberty, meant 600 sous. To kill a woman who was _enceinte_
meant a _wergeld_ of 700 sous; to strike a woman who was _enceinte_
was 200 sous; if the child died, 600 sous, if the woman also died, 900
sous, and if the woman was _in verbo regis_, under the care of the
king, 1200 sous.
The Salic law, which was put together by four chosen seigneurs and
corrected by Clovis, Childbert, and Lothair, is also interesting in
that it put a penalty on murders in such a way as to show that even the
unborn child was given a value. A _wergeld_ of 700 sous was declared
against one who killed a woman who was _enceinte_, and to kill an
unborn child entailed a _wergeld_ of 200 sous.
The law of the Allemands, the people who have passed away but who have
left the name by which the French designate the Germans, differed from
the Salic law in an interesting way.
The tendency and underlying idea of the laws of the time is well shown
in the law of the Angles which punished the murder of a noble girl _non
nubile_ with the same _wergeld_ of 600 sous that it punished the murder
of a noble woman who was no longer able to bear children. The murder
of a woman who was capable of bearing children was punishable by a
_wergeld_ three times the size of this. But the fine for a young girl
or _non fecund_ woman of the plain people was only 160 sous.
The Burgundians in their law had no regulation on either infanticide or
abortion. The Ripurian Francs declared strongly against both in a law
that imposed a fine of 100 sous on “any one who killed a new-born child
that had not been named.”
The code of the Visigoths which was arranged after the middle of the
fifth century is the severest of all in its penalties as to abortion
and those in any way responsible for it.
In the matter of exposed children the law went into details. Parents
could not sell children, it states, nor put them in pawn.
“Whoever nourished a child that had been exposed, gained the value of a
slave, which had to be paid by the parents of the exposed child when it
was reclaimed by its parents. If the parents did not present themselves
but they should be found out, they were forced to pay and might be sent
into exile. If they did not have the means to pay, the one who had
exposed the child became a slave in his place to the rescuer.
“If a slave expose a child unknown to the master and the master swear
that he was ignorant of the act, the person who rescues and brings up
the child can recover only one fourth of its value; but if the exposure
has been with the master’s knowledge, the rescuer can recover the full
value of the child.”[401]
Those to whom a child had been given away to bring up received an
agreed price during the first ten years of the child. After that the
law declared that the service of the child was sufficient compensation
for its nurture—an interesting sidelight on the time when a child
became amenable to the “laws of industry.”
In these laws of the Visigoths it is easy to see the influence of
_Codex Theodosianus_.
[Illustration: EVENING RECREATION CENTRE FOR BOYS, NEW YORK CITY]
[Illustration: MEETING OF AN “EVENING CENTRE,” NEW YORK CITY]
Among the Anglo-Saxons there was a law (_domas_) of Ina, King of
Wessex, which declared that the nourishment for a child exposed and
recovered should be fixed at six sous for the first year, twelve sous
for the second year, and thirty for the third. Another law of the same
peoples, ascribed to Alfred, made it necessary for the person in charge
of a foundling at the time of its death, to establish the fact that the
death had occurred in a perfectly natural way, a sage precaution and
one centuries ahead of the time.
Theodoric, or Dietrich as Charles Kingsley called him to the chagrin of
Max Müller and others, as King of the Ostrogoths made an interesting
ruling on the subject of the freedom of children in the year 500. We
learn of this through his secretary, Cassiodorus, for, like other
kings, the Ostrogoth was wise enough to have the cleverest literary
man of his day to write his letters and leave behind his own approved
account of his reign.
According to this law, when a father because of poverty was obliged to
sell his child, the child did not therefore lose his liberty.[402]
Showing how nimble was not only the literary talent but the spirit of
Cassiodorus, it is interesting to read in another part of the writings
of the same author a rescript sent in the name of King Athalaric, the
successor of Theodoric and his grandson, to Severus, the governor of
Lucania. As a picture of the times that we are accustomed to think
of as dark, as well as an example of the dexterous literary skill of
Cassiodorus, the letter is worth printing, for while it takes a most
reactionary stand on the matter of the sale of children it suggests the
epistle of Trajan to Pliny.
“KING ATHALARIC TO SEVERUS, Vir Spectabilis.
“We hear that the rustics are indulging in disorderly practices, and
robbing the market-people who come down from all quarters to the chief
fair of Lucania on the day of St. Cyprian. This must by all means be
suppressed, and your Respectability should quietly collect a sufficient
number of the owners and tenants of the adjoining farms to overpower
these freebooters and bring them to justice. Any rustic or other person
found guilty of disturbing the fair should be at once punished with the
stick, and then exhibited with some mark of infamy upon him.
“This fair, which according to the old superstition was named
Leucothea (after the nymph) from the extreme purity of the fountain
at which it is held, is the greatest fair in all the surrounding
country. Everything that industrious Campania, or opulent Bruittii,
or cattle-breeding Calabria, or strong Apulia produces, is there to
be found exposed for sale, on such reasonable terms that no buyer
goes away dissatisfied. It is a charming sight to see the broad
plains filled with suddenly reared houses formed of leafy branches
intertwined: all the beauty of the most leisurely built city, and
yet not a wall to be seen. There stand ready boys and girls; with the
attractions which belong to their respective sexes and ages, whom not
captivity but freedom sets a price upon. These are with good reason
sold by their parents, since they themselves gain by their servitude.
For one cannot doubt that they are benefited even as slaves (or
servants?), by being transferred from the toil of the fields to the
service of the cities.
“What can I say of the bright and many coloured garments? what of the
sleek well-fed cattle offered at such a price as to tempt any purchaser?
“The place itself is situated in a wide and pleasant plain, a suburb of
the ancient city of Cosilinum, and has received the name of Marcilianum
from the founder of these sacred springs.
“And this is in truth a marvellous fountain, full and fresh, and of
such transparent clearness that when you look through it you think
you are looking through air alone. Choice fishes swim about in the
pool, perfectly tame, because if anyone presumes to capture them he
soon feels the Divine vengeance. On the morning which precedes the
holy night (of St. Cyprian), as soon as the priest begins to utter the
baptismal prayer, the water begins to rise above its accustomed height.
Generally it covers but five steps of the well, but the brute element,
as if preparing itself for miracles, begins to swell, and at last
covers two steps more, never reached at any other time of the year.
Truly a stupendous miracle, that streams of water should thus stand
still or increase at the sound of the human voice, as if the fountain
itself desired to listen to the sermon.
“Thus hath Lucania a river Jordan of her own. Wherefore, both for
religion’s sake and for the profit of the people, it behoves that good
order should be kept among the frequenters of the fair, since in the
judgment of all, that man must be deemed a villain who would sully the
joys of such happy days.”[403]