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 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]
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.
“SUFFER THE LITTLE CHILDREN TO COME UNTO ME”
No distinction was made by the Fathers between infanticide and exposure.[369] Both were murderous acts, particularly bitterly condemned by the Christians because their enemies had charged them with murdering infants at secret rites. The letter attributed to Barnabas by Clement of Alexandria and Origen, and which in any case goes back to the earliest days of the religion, severely condemned infanticide. “Thou shalt not slay the child by procuring abortion, nor again shalt thou destroy it after it is born.”[370] By such protests as these, made with one cannot tell what frequency, the Christians took their stand on the basic principles.
Justin, whose vigorous manner of addressing the Emperor is so attractive, succumbed, at the age of seventy-four, to the calumnies of the cynic Crescentius, and became a martyr; but his example and fervour left an indelible mark upon his time.
“As for us,” he says, “we have been taught that to expose newly born children is the part of wicked men; and this we have been taught lest we should do any one an injury, and lest we should sin against God; first, because we see that almost all so exposed (not only the girls, but also the males) are brought up to prostitution.... Now we see you rear children only for this shameful use; and for this pollution a multitude of females and hermaphrodites, and those who commit unmentionable iniquities are found in every nation. And you receive the hire of these, and duty and taxes from them, whom you ought to exterminate from your realm.”[371]
And again he says: “We fear to expose children, lest some of them be not picked up, but die, and we become murderers. But whether we marry, it is only that we may bring up children; or whether we decline marriage, we live continently.”[372]
Athanagoras,[373] the Athenian philosopher, who presented to Marcus Aurelius and to Commodus an apology for the Christians, in 166 A. D., asked the logical Romans to use their famous common sense in weighing false charges made against Christians.
“What man of sound mind,” he said, “will affirm that we, who abhor murder, are murderers; we who condemn as murder the use of drugs for abortion, and declare that those who even expose a child are chargeable with murder.”[374]
Tertullian, whose apology was written in the year 200, or 205, of our era, was equally bold.
“Riders of the Roman Empire,” he began, “seated for the administration of justice on your lofty tribunal”—and then made the charge direct: “You first of all expose your children, that they may be taken up by any compassionate passer-by, to whom they are quite unknown; or you give them away to be adopted by those who will act better to them the part of parents.”[375]
Later, in another address, this time to the pagan people, he returns to the charges.
“Although you are forbidden by the laws to slay new-born infants, it so happens that no laws are evaded with more impunity or greater safety, with the deliberate knowledge of the public and the suffrages of this entire age, ... You make away with them in a more cruel manner, because you expose them to cold and hunger, and to wild beasts, or else you get rid of them by the slower death of drowning [sic].”[376]
“Man is more cruel to his offspring than animals,” said the learned Clement of Alexandria. “Orpheus tamed the tiger by his songs, but the God of the Christians, in calling men to their true religion, did more, since he tamed and softened the most ferocious of all animals—men themselves.”[377]
No abler pleader for the new order of things was there than Minucius Felix, a Roman lawyer of education, who, on his conversion to the new faith, became one of the eloquent founders of Latin Christianity. A disciple of Cicero, he has been called the “precursor of Lactantius in the graces of style.”
“How I should like to meet him,” he exclaims, indignantly, “who says or believes that we are initiated by the slaughter and blood of an infant ... no one can believe this except one who can dare do it. And I see that you at one time exposed your begotten children to wild beasts and to birds; and another, that you crush them when strangled with a miserable kind of death ... and these things assuredly come down from the teachings of your gods. For Saturn did not expose his children, but devoured them. With reason were infants sacrificed to him by parents in some part of Africa, caresses and kisses repressing their crying, that a weeping victim might not be sacrificed. Moreover, among the Tauri of Pontus, and to the Egyptian Busiris, it was a sacred rite to immolate their guests, and for the Galli to slaughter to Mercury human, or rather inhuman, sacrifices. The Roman sacrifices buried living a Greek man and a Greek woman, a Gallic man and a Gallic woman; and to this day, Jupiter Latiaris is worshipped by them with murder; and, what is worthy of the son of Saturn, he is gorged with the blood of an evil and criminal man.”[378]
To drive home the awful character of a crime that was so common we have the vision of Paul, who sees the man and woman who have exposed children, suffering in hell the terrible tortures of the damned.
“‘They [the parents] gave us for food to dogs and to be turned out to swine. Some of us they threw into the river,’ exclaimed these children; “and so now the guilty are condemned to eternal punishment while the children are committed to the angels.”[379]
We have quoted already the eloquent Lactantius. Basil the Great thundered against infanticide and the spectacle of free children being sold by avaricious creditors of their fathers. The same Ambrosius, who, although only a Christian Bishop, castigated the Emperor Theodosius for the massacre at Thessalonica, brought his force and courage to play against the law which permitted a debtor to satisfy his claim, at the cost of the liberty of his son, or the debauchery of his daughter, as the fisc was then authorized to sell infants to pay unsatisfied taxes.
A new religion in one of the least important provinces of the Roman Empire, Christianity, in three centuries, pushed its doctrines to the very end of the vast Roman domain, and even made the conquest of the imperial throne itself.
Its impassioned preachers and apostles vaunted the humanity of their new faith; for cast-out infants and the despised slaves the new priests fought such a battle of perseverance and martyrdom as the world had never seen before.
In the name of their new God, Jesus, himself admittedly a poor Jew and a carpenter, they took all the truth there was in the aristocratic philosophy of the Romans and their emperors, and made it live indeed—they applied it to the lowest, and the most humble—even to children. “Nothing human is alien”—this was a verity in the lives of the men who fought the first battles of Christianity.
Every human being had a soul—that was a vital point in their fight. They asserted that children had souls, to which religious doctrine probably more is due in the way of checking the practice of infanticide than any other single idea. We have seen how Plutarch, the polished philosopher, had gone as far as the pagan mind could under its philosophy, in directing thought as to man’s responsibility for actions toward the child, by collecting opinions of the philosophers as to when an unborn child became a human being.
The Fathers won the battle in that they convinced the Roman world that children had souls—but the economic battle was one not yet to be won by preaching. But it was not by orations and preaching alone that they had won as much as they had.
Constantine, in the year 315, as we have seen, had put forth the proclamation:
“Let a law be at once promulgated in all the towns of Italy, to turn parents from using a parricidal hand on their new-born children, and to dispose their hearts to the best sentiments. Watch with care over this, that, if a father brings his child, saying that he cannot support it, someone should supply him without delay with food and clothing; for the cares of the new-born suffer no delay, and we order that our revenue, as well as our treasure, aid in this expense.”[380]
To this he added, in 321, including the provinces:
“We have learned that the inhabitants of provinces, suffering from scarcity of food, sell and put in pledge their children. We command then that those found in this situation, without any personal resource, and being able only with great trouble to support their children, be succoured by our treasury before they fall under the blows of poverty; for it is repugnant to our morals that any one under our Empire should be pushed by hunger to commit a crime.”[381]
Ten years later, Constantine had to modify the laws in relation to children—so acute were the sufferings in the Empire—by permitting those who “took up” children to have the right of property in them.[382]
“Whoever,” said Constantine in his latest law, “has taken in a new-born boy or girl, exposed by the order and with the knowledge of its father or master, outside of the house of the one or the other, has the power to keep him as son or slave without fear that those who rejected him can reclaim him.”
The conditions of the times, as Dugour points out, are well shown by the frequency with which these conditions are referred to. Julius Firmicus, an astrologer of the fourth century, devotes a chapter of his work to revealing combinations of planets that will tell what will be the fate of the child that is exposed. Under certain signs the child will perish through lack of food; under others it will drown; under still another it will be eaten by dogs, and another combination indicated that it would find a saviour and a second father.
In 374, the Emperors Valentinian, Valens, and Gratian declared that the exposure of all infants was punishable, and ordered that parents see to it that their children were fed. The main question that seemed to agitate both the Empire of the East and the Empire of the West was that of the rights of the adoptive parent, as against those who owned the land where the child had been abandoned.
“Let men look to it that they nourish their children. If they expose them, they may be punished in conformity with the law. If other persons take the children up they cannot be reclaimed; as people cannot take again children they have wilfully permitted to perish.”
In 391, Valentinian, Theodosius, and Arcadius permitted, by other law, the child sold by its father to become a free man after a short term of servitude, without reimbursing a master.[383]
In 409, Honorius and Theodosius issued an edict in favour of Romans sold to other Romans, limiting the period of slavery to five years. Nevertheless, in 412, Honorius and Theodosius confirmed the law of Constantine concerning the sale of infants purchased or taken up with the knowledge of the bishop of the diocese.
An edict of the emperors maintained the rights of the adoptive parents. The right of the latter to their property was also confirmed in cases where the parent or master willingly and knowingly had allowed the child to be exposed.
Another imperial edict ordered that no new-born could be taken from the place where it had been found without the presence of witnesses. A form was drawn up which was to be signed by the bishop.
In 438, these regulations were collected by Theodosius the Second under the Code that bears his name.
In 451, Valentinian the Third declared that the nutritor, or person who had taken up the child, should receive an indemnity, independent of the years of service, and fixed the price to be paid him. The Emperor also declared that those who had sold children to barbarians, or who had purchased a free person for the purpose of transporting him across seas, should be compelled to pay to the fisc, six ounces of gold.[384]
Following the preachings of the Fathers, and supplementing and strengthening the laws of the Empire, the Church at various councils, called always for some other purpose, took action and frequently condemned the loose morals of the day.
Not orations, nor apologies and pleas alone, says Labourt, would have brought about the new point of view among people so hard pressed and so thoroughly imbued with the ideas of another civilization. At the Council of Ancyra, the modern city of Angora, in the year 314, it was decreed that the woman guilty of killing her offspring should be punished by being forbidden to enter a church for the rest of her life, a terrible punishment in those days.
At the Council of Elvira, the first one held in Spain, by some held to have met before 250, but by Tillemont placed in the year 300, a decree limited the period of retribution to ten years, of which two were to be passed in weeping, at the end of which time the recreant mother could receive the sacraments.
At a Council in 546, the period of penitence was reduced to seven years. At the Council of Constantinople, in 588, or 592, the crime was compared to homicide, and finally Sixtus Quintus and Gregory the Fourteenth stated that the culprits should suffer capital punishment.
At the Council of Nicaea, in 325,—the famous council at which a controversy between Bishop Arius and Bishop Athanasius was “settled,” with the result that Arius was declared a heretic,—it was prescribed, in Article Seventy of its conclusions, that in each village of the Christian world there should be established an asylum, under the name of the Xenodocheion, the object of which was to assist voyageurs, the sick, and the poor. Without doubt, as Labourt suggests, these places became asylums for abandoned children.
The question of the property right was one that the Church had to face in the Council of Vaison, in 442. Frequently after charitable strangers had taken children off the highways, educated them, and brought them up, their parents or their owners would demand their return. It was a vital question of the day: to whom did these children belong?
The Emperor Constantine had declared that those who received them had a right to them and the Emperor Honorius had added the restriction that the Church must know of the adoption. Many were the arguments and the legal battles that ensued, during which time people were little inclined to rescue the abandoned infants and many perished as victims of the voracity of dogs, many as the victims of hunger and cold.[385]
These conditions were presented to the Council, which ordered the following measures:
“Whoever takes up an abandoned child shall bring him to the Church where that fact will be certified. The following Sunday the priest will announce that a new-born child has been found and ten days will be allowed to the real parents to claim their infant. When these formalities have been complied with, if any one then claims a child or in any way calumniates those who have received it, he will be punished according to the Church laws against homicide.”[386]
Ten years later the act of the Council of Vaison was sanctioned at the Council of Arles and again in 505, by the Council of Agde.
It has been said that this was comparatively little when one thinks of this great union of bishops representing not only the interests of religion but “the moral needs of the epoch.” On the other hand, any criticism would be unjust that did not take into consideration the fact that it was great progress in the face of great poverty and greater barbarity.[387]
Church and State united in the movement for the protection of the child in the laws of Justinian, who, raised to the throne in 527, published in 529, and with considerable changes in 534, a collection of laws that have immortalized his name, in which the great lawyer Tribonian remade the three other codes, the Gregorian, Hermogenian, and the Theodosian.
Justinian proclaimed absolute liberty for foundling children, declaring that they were not the property of either the parents who exposed them or of those who received them.
One of these laws, promulgated in 553, punished severely those who tried to hold as slaves, children who had been exposed. This law stated expressly that all children left at churches or other places were absolutely free. It also stated that the act of exposing a child exceeded the cruelty of an ordinary murder, inasmuch as it struck at the most feeble and the most pitiable.
The imperial edict of 553 invited the Archbishop of Thessalonica and the prefect to give to the foundlings all the help possible and to punish those who disobeyed the injunction with a fine of five livres of gold. In addition, the Justinian Code contained a provision by which a father whose poverty was extreme was allowed to sell his son or his daughter at the moment of birth and to repurchase the infant later. The Emperor also ordered that some organized endeavour be made to take care of children for whom no other provision had been made. Unchanged and little modified, with the exception of those amendments made by the Emperor Leon, the philosopher, these laws and these conditions governed the Eastern Empire from now on until its fall before the arms of the Turks.