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_).
Public-domain text, read in full here on John Shaqi.
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