[241] St. Augustine, Questiones in Exodum, 80; Idem, Questiones Veteris et Novi Testamenti, 23 (Migne, op. cit. xxxiv.-xxxv. 626, 2229).
[242] Gratian, Decretum, ii. 32. 2. 8 sq.
[243] As regards the time from which the fetus was considered to be animate a curious distinction was drawn between the male and the female fetus. The former was regarded as animatus forty days after its conception, the latter eighty days. This theory, however—which was derived, as it seems, either from an absurd misinterpretation of Leviticus, xii. 2-5, or from the views of Aristotle (De animalibus historiæ, vii. 3; cf. Pliny, Historia naturalis, vii. 6)—was not accepted by the glossarist of the Justinian Code, who fixed the animation of the female, as well as of the male, fetus at forty days after its conception; and this view was adopted by later jurists (Spangenberg, in Neues Archiv des Criminalrechts, ii. 37 sqq.).
[244] von Fabrice, op. cit. p. 202 sq. Berner, op. cit. p. 501. Wilda, op. cit. p. 720 sqq.
[245] Fleta, i. 23. 12 (England). Charles V’s Peinliche Gerichts Ordnung, art. 133. Spangenberg in Neues Archiv des Criminalrechts, ii. 16.
The criminality of artificial abortion was increased by the belief that an embryo formatus, being a person endowed with an immortal soul, was in need of baptism for its salvation. In his highly esteemed treatise De fide, written in the sixth century, St. Fulgentius says, “It is to be believed beyond doubt, that not only men who are come to the use of reason, but infants, whether they die in their mother’s womb, or after they are born, without baptism, in the name of the Father, Son, and Holy Ghost, are punished with everlasting punishment in eternal fire, because though they have no actual sin of their own, yet they carry along with them the condemnation of original sin from their first conception and birth.”[246] And in the Lex Bajuwariorum this doctrine is expressly referred to in a paragraph which prescribes a daily compensation for children killed in the womb on account of the daily suffering of those children in hell.[247] Subsequently, however, St. Fulgentius’ dictum was called in question, and no less a person than Thomas Aquinas suggested the possibility of salvation for an infant who died before its birth.[248] Apart from this, the doctrine that the life of an embryo is equally sacred with the life of an infant was so much opposed to popular feelings, that the law concerning feticide had to be altered. Modern legislation, though treating the fetus as a distinct being from the moment of its conception,[249] punishes criminal abortion less severely than infanticide.[250] And the very frequent occurrence of this crime[251] is an evidence of the comparative indifference with which it is practically looked upon by large numbers of people in Christian countries.
[246] St. Fulgentius, De fide, 27 (Migne, op. cit. lxv. 701).
[247] Lex Bajuwariorum, viii. 21 (vii. 20).
[248] Lecky, History of the Rise and Influence of the Spirit of Rationalism in Europe, i. 360, n. 2.
[249] Henke, Lehrbuch der gerichtlichen Medicin, 99, p. 75. Berner, op. cit. p. 502.