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).