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 c?sars, 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.

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; 273and 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 would274 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 ?thiopia, but in the following century there is little light as to who were the missionaries; but that they were everywhere successful is shown275 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 northumbrian276 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 c?sar 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 vit? necisque habent potesta277tem, wrote c?sar, 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 did394 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, notably278 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 potestas279 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 law397 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 600280 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 kern399 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, child281bert, 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 went282 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.

evening recreation centre for boys, new york city

meeting of an “evening centre,” new york city

among the anglo-saxons there was a law (domas) of ina, king of wessex, which declared 283that 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 picture284 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 inter285twined: 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 286year. 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.”