always to encourage, while the Greek policy was rather to restrain population, and infanticide never appears to have been common in Rome till the corrupt and sensual days of the Empire. The legislators then absolutely condemned it, and it was indirectly discouraged by laws which accorded special privileges to the fathers of many children, exempted poor parents from most of the burden of taxation, and in some degree provided for the security of exposed infants. Public opinion probably differed little from that of our own day as to the fact, though it differed from it much as to the degree, of its criminality. It was, as will be remembered, one of the charges most frequently brought against the Christians, and it was one that never failed to arouse popular indignation. Pagan and Christian authorities are, however, united in speaking of infanticide as a crying vice of the Empire, and Tertullian observed that no laws were more easily or more constantly evaded than those which condemned it.1 A broad distinction was popularly drawn between infanticide and exposition. The latter, though probably condemned, was certainly not punished by law;2 it was practised on a

1 Ad Nat. i. 15.

2 The well-known jurisconsult Paulus had laid down the proposition, 'Necare videtur non tantum is qui partum perfocat sed et is qui abjicit et qui alimonia denegat et qui publicis locis misericordiæ causa exponit quam ipse non habet.' (Dig. lib. xxv. tit. iii. 1. 4.) These words have given rise to a famous controversy between two Dutch professors, named Noodt and Bynkershoek, conducted on both sides with great learning, and on the side of Noodt with great passion. Noodt maintained that these words are simply the expression of a moral truth, not a judicial decision, and that exposition was never illegal in Rome till some time after the establishment of Christianity. His opponent argued that exposition was legally identical with infanticide, and became, therefore, illegal when the power of life and death was withdrawn from the father. (See the works of Noodt (Cologne, 1763) and of Bynkershoek (Cologne, 1761). It is at least certain that exposition was notorious and avowed, and the law against it, if it existed, inoperative. Gibbon (Decline and Fall, ch. xliv.) thinks the law censured but did not punish exposition. See, too, Troplong, Influence du Christianisme sur le Droit, p 271.

gigantic scale and with absolute impunity, noticed by writers with the most frigid indifference, and at least, in the case of destitute parents, considered a very venial offence.1 Often, no doubt, the exposed children perished, but more frequently the very extent of the practice saved the lives of the victims. They were brought systematically to a column near the Velabrum, and there taken by speculators who educated them as slaves, or very frequently as prostitutes.2

1 Quintilian speaks in a tone of apology, if not justification, of the exposition of the children of destitute parents (Decl. cccvi.), and even Plutarch speaks of it without censure. (De Amor. Prolis.) There are several curious illustrations in Latin literature of the different feelings of fathers and mothers on this matter. Terence (Heauton, Act. iii. Scene 5) represents Chremes as having, as a matter of course, charged his pregnant wife to have her child killed provided it was a girl. The mother, overcome by pity, shrank from doing so, and secretly gave it to an old woman to expose it, in hopes that it might be preserved. Chremes, on hearing what had been done, reproached his wife for her womanly pity, and told her she had been not only disobedient but irrational, for she was only consigning her daughter to the life of a prostitute. In Apuleius (Metam. lib. x.) we have a similar picture of a father starting for a journey, leaving his wife in childbirth, and giving her his parting command to kill her child if it should be a girl, which she could not bring herself to do. The girl was brought up secretly. In the case of weak or deformed infants infanticide seems to have been habitual. 'Portentos fœtus extinguimus, liberos quoque si debiles monstrosique editi sunt, mergimus. Non ira sed ratio est a sanis inutilia secernere.'-Seneca, De Ira, i. 15. Terence has introduced a picture of the exposition of an infant into his Andria, Act iv. Scene 5. August. lxv. According to Suetonius (Calig. v.), on the manicus, women exposed their new-born children in sign of grief. Ovid had dwelt with much feeling on the barbarity of these practices. It is a very curious fact, which has been noticed by Warburton, that Chremes, whose sentiments about infants we have just seen, is the very personage into whose mouth Terence has put the famous sentiment, Homo sum humani nihil a me alienum puto.'

See, too, Suet. death of Ger

2 That these were the usual fates of exposed infants is noticed by several writers. Some, too, both Pagan and Christian (Quintilian, Decl. cccvi.; Lactantius, Div. Inst. vi. 20, &c.), speak of the liability to incestuous marriages resulting from frequent exposition. In the Greek poets there are several allusions to rich childless men adopting foundlings, and Juvenal says it was common for Roman wives to palm off foundlings on their husbands for their sons. (Sat. vi. 603.) There is an extremely horrible declamation in Seneca the Rhetorician (Controvers. lib. v. 33) about exposed children

On the whole, what was demanded on this subject was not any clearer moral teaching, but rather a stronger enforcement of the condemnation long since passed upon infanticide, and an increased protection for exposed infants. By the penitential sentences, by the dogmatic considerations I have enumerated, and by the earnest exhortations both of her preachers and writers, the Church laboured to deepen the sense of the enormity of the act, and especially to convince men that the guilt of abandoning their children to the precarious and doubtful mercy of the stranger was scarcely less than that of simple infanticide.1 In the civil law her influence was also displayed, though not, I think, very advantageously. By the counsel, it is said, of Lactantius, Constantine, in the very year of his conversion, in order to prevent the frequent instances of infanticide by destitute parents, issued a decree applicable in the first instance to Italy, but extended in A.D. 322 to Africa, in which he ordered that those children whom their parents were unable to support should be clothed and fed at the expense of the State,2 a policy which had already been pursued on a large scale under the Antonines. In A.D. 331, a law intended to multiply the chances of the exposed child being taken charge of by some charitable or interested person, provided that the foundling should remain the absolute property of its saviour, whether he adopted it as a son or employed it as a slave, and that the parent should not have power at any future time to reclaim it.3 By another

who were said to have been maimed and mutilated, either to prevent their recognition by their parents, or that they might gain money as beggars for their masters.

1 See passages on this point cited by Godefroy in his Commentary to the Law De Expositis, Codex Theod. lib. v. tit. 7.

2 Codex Theod. lib. xi. tit. 27.

3 Ibid. lib. v. tit. 7, lex 1.

law, which had been issued in A.D. 329, it had been provided that children who had been not exposed but sold, might be reclaimed upon payment by the father.1

The two last laws cannot be regarded with unmingled satisfaction. That regulating the condition of exposed children, though undoubtedly enacted with the most benevolent intentions, was in some degree a retrograde step, the Pagan laws having provided that the father might always withdraw the child he had exposed from servitude, by payment of the expenses incurred in supporting it,2 while Trajan had even decided that the exposed child could not become under any circumstance a slave. The law of Constantine, on the other hand, doomed it to an irrevocable servitude, and this law continued in force till A.D. 529, when Justinian, reverting to the principle of Trajan, decreed that not only the father lost all legitimate authority over his child by exposing it, but also that the person who had saved it could not by that act deprive it of its natural liberty. But this law applied only to the Eastern Empire; and in part at least of the West 4 the servitude of exposed infants continued for centuries, and appears only to have terminated with the general extinction of slavery in Europe. The law of Constantine concerning the sale of children was also a step, though perhaps a necessary step, of retrogression. A series of emperors, among whom Caracalla was conspicuous, had denounced and endeavoured to abolish as 'shameful,' the traffic in free children, and Diocletian had expressly and absolutely condemned it.5 The extreme misery, however, resulting from the civil wars under Constantine, had

1 Codex Theod. lib. v. tit. 8, lex 1.

2 See Godefroy's Commentary to the Law.

3 In a letter to the younger Pliny. (Ep. x.72.)

4 See on this point Muratori, Antich. Italian. Diss. xxxvii.

5 See on these laws, Wallon, Hist. de l'Esclavage, tome iii. pp. 52-53.

rendered it necessary to authorise the old practice of selling children in the case of absolute destitution, which, though it had been condemned, had probably never altogether ceased. Theodosius the Great attempted to take a step in advance, by decreeing that the children thus sold might regain their freedom without the repayment of the purchase-money, a temporary service being a sufficient compensation for the purchase; but this measure was repealed by Valentinian III. The sale of children in case of great necessity, though denounced by the Fathers, continued long after the time of Theodosius, nor does any Christian emperor appear to have enforced the humane enactment of Diocletian.

Together with these measures for the protection of exposed children, there were laws directly condemnatory of infanticide. This branch of the subject is obscured by much ambiguity and controversy; but it appears most probable that the Pagan legislature reckoned infanticide as a form of homicide, though, being deemed less atrocious than other forms of homicide, it was punished, not by death, but by banishment.3 A law of Constantine, intended principally, and perhaps exclusively, for Africa, where the sacrifices of children to Saturn were very common, assimilated to parricide the murder of a child by its father; and finally, Valentinian, in A.D. 374, made all infanticide a capital offence, and especially enjoined the

1 See Cod. Theod. lib. iii. tit. 3, lex 1, and the Commentary.

2 On the very persistent denunciation of this practice by the Fathers, see many examples in Terme et Monfalcon.

3 This is a mere question of definition, upon which lawyers have expended much learning and discussion. Cujas thought the Romans considered infanticide a crime, but a crime generically different from homicide. Godefroy maintains that it was classified as homicide, but that, being esteemed less heinous than the other forms of homicide, it was only punished by exile. See the Commentary to Cod. Theod. lib. ix. tit. 14, 1. 1.

+ Col. Theod. lib. ix. tit. 15.

5 Ibid. lib. ix. tit. 14, lex 1.