Sources of Neonatal Medicine Neonatology 2016;109:56–61 DOI: 10.1159/000440875
Received: August 17, 2015 Accepted: September 6, 2015 Published online: October 28, 2015
From Right to Sin: Laws on Infanticide in Antiquity Michael Obladen Department of Neonatology, Charité – University Medicine Berlin, Berlin, Germany
Abstract This is the first of three papers investigating changes in infanticide legislation as indicators of the attitude of states towards the neonate. In ancient East Asian societies in which the bride’s family had to pay an excessive dowry, selective female infanticide was the rule, despite formal interdiction by the law. In Greece and Rome children’s lives had little value, and the father’s rights included killing his own children. The proportion of men greatly exceeding that of women found in many cultures and epochs suggests that girls suffered infanticide more often than boys. A kind of social birth, the ritual right to survive, rested on the procedure of name giving in the Roman culture and on the start of oral feeding in the Germanic tradition. Legislative efforts to protect the newborn began with Trajan’s ‘alimentaria’ laws in 103 CE and Constantine’s laws following his conversion to Christianity in 313 CE. Malformed newborns were not regarded as human infants and were usually killed immediately after birth. Infanticide was formally outlawed in 374 CE by Emperor Valentinian. © 2015 S. Karger AG, Basel
© 2015 S. Karger AG, Basel 1661–7800/15/1091–0056$39.50/0 E-Mail [email protected] www.karger.com/neo
Introduction
Infanticide is common among primates, extinguishing firstborns, especially infants born by females with whom the (new) herd leader did not have intercourse [1]. It was a behavior common to all human cultures, but for various reasons and in various forms. Infanticide is influenced by fertility control, gender preference, socioeconomic situation, societal and religious attitude towards illegitimate pregnancy, and the state’s interest reflected by the law. To get rid of superfluous offspring, various methods evolved: (1) adoption, usually to a wealthy childless family; (2) abandonment at a church door or foundling institution; (3) oblation (‘offering’) to a monastery [2]; (4) exposure in a hostile environment, and (5) direct killing (infanticide). Undesired infants included the legitimate of the poor, the illegitimate of the rich, the malformed of all, girls in cultures where dowry was mandatory, twins, and premature infants.
Aims and Focus
This is the first of three articles investigating how infanticide legislation reflected the attitude of states towards the neonate and how societies valued the health Prof. Dr. Michael Obladen Department of Neonatology, Charité – University Medicine Berlin Augustenburger Platz 1 DE–13353 Berlin (Germany) E-Mail michael.obladen @ charite.de
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Key Words Infant · Newborn · History · Infanticide · Legislation
Table 1. Sex ratios in adult populations (unless specified otherwise by italics) obtained from various epochs and study methods
Time
Material studied
n
Males/100 females
Ref.
2,000,000 – 30,000 BCE 4500 – 3300 BCE 228 – 220 BCE 3rd century BCE 50 BCE–200 CE 757 – 855 CE 801 – 829 CE 1066 – 1509 1377 1733 – 1734 1792 – 1840 1812 1902
Fossils of Pithecanthropus, Neanderthal, Paleolithic homo Skeletons from Paloma, Peru: adults >15 years Anatolian-Greek tombstone inscriptions in Miletos Burned bones of (sacrificed?) neonates in urns of Carthago cemetery City of Rome, tombstone inscriptions Carolingean tax registry, 20 German villages St. Germain/Paris polyptich, estate and population register Children of the 18 first Kings of England Poll tax during the great plague, 12 English locations Parochial registry of the Serbian sector of Belgrade Birth registry of rural Liaoning, China Government report on Jádejá villages in Kathiawar, India Demographic data of children, 3 Netsilik Inuit locations
122 49 146 67 8,065 1,061 8,304 94 12,515 1,172 1,871 458 287
148 227 421 68 131 119 110 – 253 109 99 106 214 527 (!) 202 (!)
12 13 10 4 14 15 16 17 17 18 19 20 21
Frequency and Sex Ratio
Estimating the frequency of infanticide is notoriously unreliable, as the neonate’s corpse decays rapidly and court records represent but the tip of the iceberg. Birdsell [8] estimated a prevalence of 15–50% of all births in prehistoric time. Dickemann [9] estimated that 5–50% of infants born in recent agrarian cultures fell victim to infanticide. Tarn [10] found 118 sons and 28 daughters in 79 families living in Miletos in 228–220 BCE. Normally, slightly more males are born than females (106:100), but due to elevated male mortality rates the natural sex ratio in adults is expected to be below 100. Table 1 shows sex ratios from different cultures and epochs, with high ratios suggesting the possibility of selective female infanticide. As Hirschfeld et al. [11] pointed out, unbalanced sex raInfanticide Legislation in Antiquity
tios must be interpreted with caution, as they may be influenced by cultural and economic factors, especially in data collected for tax purposes.
The Orient
In East Asian societies, selective female infanticide was the rule, despite formal interdiction by the law [22]. In the Zhou dynasty, the statesman Guan Zhong (died 645 BCE) appointed guardians to ensure that orphans were provided for and remitted taxes contributing to their support [23]. Confucianism, Chinese belief since the 5th century BCE, attributed little value to women. In the 3rd century BCE, philosopher Fung You-Lan reported [24]: ‘A father and mother when they produce a boy congratulate one another, but when they produce a girl they put her to death … This is because the parents think of their later convenience, and calculate about what is profitable in the long run.’ In 235 BCE, the Han law decreed [25]: ‘Unauthorizedly to kill a child (is punished by) tattooing and [hard work]. When the child is newly born and has strange things on its body, as well when it is deformed, to kill it is not to be considered a crime.’ In Japan, infanticide was called ‘mabiki’ (thinning rice seedlings) since antiquity, and was more or less legal until replaced by liberalized abortion in 1948. In India, female infanticide resulted from the low esteem of girls in Hinduism and by the need of the bride’s family to pay a dowry to the groom’s family. This could amount to several annual family incomes and easily ruined a wealthy family of a girl, let alone of sevNeonatology 2016;109:56–61 DOI: 10.1159/000440875
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and safety of infants. These papers focus on written laws concerning postnatal infanticide by the child’s own mother. Other forms of child killing, although important but without specific laws, have been omitted, such as ritual or religious sacrifice [3, 4], immurement of live infants in buildings [5], suicide by proxy [6], postneonatal homicide of older children, and state-organized murder of handicapped infants [7]. Abortion has also been excluded, and twin infanticide will be treated separately. Sources include court records, historic reports, demographic statistics, and analyses of inscriptions and gravestones. In the legislative context, antiquity is defined herein up to the Justinian enactments in 534 CE.
the immortality of the soul.’ By excess Romans meant any infant born to a ‘paterfamilias’ who already had an heir by birth or adoption. The Jewish attitude was adopted in Christianity: ‘And who so shall receive one such little child in my name receiveth me’ (Matthew 18.5).
Greek and Macedonian Era
the sea. Marble temple frieze from Ostia, 2nd century BCE (Staatliche Museen Berlin, Antikensammlung) [56].
eral girls [26]. Mesopotamian societies worshipped the mother goddess Ishtar. The birth of malformed infants prognosticated bad omens, but neither the Summa Izbu nor the Hammurabi Code suggests that Babylonians killed malformed infants. Adoption and the sale of infants ‘raised from the dog’s mouth’ (foundlings) were common and regulated by clay tablet contracts [27]. Egyptian society was, to some degree, matriarchal. The goddesses Isis, Hathor, Nekhebet, Meskhenet, and Taweret were believed to protect childbirth and the neonate. Diodorus Siculus [28] reported the punishment of parents in Egypt before Roman rule: ‘Parents that killed their children were not to die, but were forced for three subsequent days and nights to hug them continually in their arms, and had a guard all the while over them …’ Claudius Aelianus [29] also described infant protection in Egypt in the 5th century BCE: ‘It was a law, that a Theban could not expose his child on waste land. But if the father of the infant was very poor, whether the child was male or female, he had to take it immediately after birth in its clothing to the magistrates, who turned it over to the person who accepted the lowest payment. A contract was made … whereby [the adopter] pledged to foster the child, and retain it as a slave when it grew up, receiving its services as the reward for having reared it.’ Hebrews strictly condemned any practice of infanticide: ‘But the midwives feared God, and did not do as the king of Egypt had commanded them, but let the boys live’ (Exodus 1.17). Describing Jews, Tacitus emphasized [30]: ‘Population growth is one of their concerns; in fact it is a sacrilege to kill any infant which is born in excess; and they believe in 58
Neonatology 2016;109:56–61 DOI: 10.1159/000440875
Roman Empire: ‘Patria Potestas’
In 451 BCE, the Law of 12 Tables commanded: ‘A dreadfully malformed child shall be quickly killed’ [35]. ‘Patria potestas’ originated at the same time, which mainly regulated inheritance but included the father’s right to kill his children ‘jus vitae ac necis’: ‘The children whom we have begotten in lawful wedlock are under our power … The power which we have over our children is peculiar to the citizens of Rome’ [36]. The mother had no influence on this decision. Paternal rejection usually reObladen
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Fig. 1. Hera and Zeus throw their clubfooted son Hephaistos into
The third ‘Homeric’ Hymn to Apollo, written in the 6th century BCE, described Hera’s attempt to kill her clubfooted infant, as shown in figure 1 [31]: ‘But my son Hephaestus whom I bare was weakly among all the blessed gods and shrivelled of foot, a shame and disgrace to me in heaven, whom I myself took in my hands and cast out so that he fell in the great sea.’ Stone-carved in the 5th century BCE, the Cretan Law of Gortyna [32] (fig. 2, left) obliged the (divorced) woman to ‘carry [the newborn] to the husband, in the presence of 3 witnesses; and if he do not receive the child, it shall be in the power of the mother either to bring up or expose.’ Aristotle proposed in his ‘politics’ in the 4th century BCE [33]: ‘let there be a law that no deformed child shall be reared; but on the ground of number of children … there must be a limit fixed to the procreation of offspring, and if any people have a child in excess of these regulations, abortion must be practised on it before it has developed sensation and life.’ Greeks usually did not rear more than one daughter [10], and during the Alexandrian Empire Polybius associated infanticide with population decline [34]: ‘In our own time the whole of Greece has been subject to a low birth-rate and a general decrease of the population, owing to which cities have become deserted and the land has ceased to yield fruit, although there have neither been continuous wars nor epidemics … If [men] married, [they did not wish] to rear the children born to them, or at most one or two of them, so as to leave these in affluence …’
pyrus Oxyrhynchus 744, Thomas Fisher Rare Book Library, Toronto) [38]. Right: detail of bronze tablet from Veleia/Emilia-Romagna of 103 CE. The Latin inscription regulated the support of poor or exposed infants by Trajan’s alimentation law (National Archaeological Museum of Parma) [44].
sulted from an abundance of (female) children, the infant’s malformation, suspected maternal adultery, and birth on ‘dies ater’ (‘fateful day’) [37]. Patria potestas could be enacted from afar: in June of 1 BCE, the Roman soldier Hilarion sent a papyrus letter from Alexandria to his wife Alis in Oxyrhynchus, 300 km upstream of the Nile: ‘I urge you, care for the [elder] child, and if I soon get pay, I will send it to you. If perhaps you give birth, then if it is male, let it be; if it is female, throw it out.’ [38] (fig. 2, center). Patria potestas was considered obsolete in late antiquity [39], but it prevented effective legislative protection of the newborn for centuries. Next to exposure, a typical Roman method of infanticide was drowning in a bucket, as reported by Seneca in the 1st century CE [40]: ‘Unnatural progeny we destroy; we drown even children who at birth are weakly and abnormal. Yet it is not anger, but reason that separates the harmful from the sound.’ Soranus of Ephesus taught in Rome in the 2nd century CE: ‘The infant which is worth rearing will be distinguished by the fact that its mother spent the period of pregnancy in good health, for conditions which require medical care, also harm the fetus. Second, by the fact that it was born at the due time, best at the end of nine months, and if it so happens, later; but also after only sev-
en months … Also by the fact that it is perfect in all its parts, members and senses … And by conditions contrary to those mentioned, the infant not worth rearing is recognized’ [41]. Obviously, many newborns did not meet all these criteria, as Tertullian complained in 197 CE [42]: ‘How many of you [Guardians of the Roman Empire] might I deservedly charge with Infant-murther? And not only so, but among the different Kinds of Death, for choosing some of the cruellest for their own Children, such as drowning, or starving with Cold or Hunger, or exposing them to the Mercy of Dogs.’ Change began when Trajan extended the ‘alimentaria’ instituted by Emperor Nerva: Governmental loans were given to landowners in small inland towns of Italy, and the interest of 5% per year was used to maintain children of poor families [43]. The goal was to raise the birth rate and reduce infanticide. A large bronze tablet from Veleia (fig. 2, right) explains that Trajan loaned the sum of 1.044 million sesterces (HS), equaling the price of 500 slaves, to this small community in 103 CE. From the annual interest of 52,200 HS, ‘245 legitimate boys are to receive 192 HS each, 34 legitimate girls 144 HS each, 1 illegitimate boy 144 HS and 1 illegitimate girl 120 HS.’ [44] (fig. 2, right). On the tablet follow 52 lists of proprietors and their mortgaged
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Color version available online
Fig. 2. Early documents of infant exposure and protection. Left: detail of stone-carved Law of Gortyna/Crete in Greek Bustrophedon text (5th century BCE), regulating the exposure of infants [32]. Center: Hilarion’s papyrus letter (1 BCE) from Alexandria/Roman Egypt, ordering his wife to kill the expected newborn if female (Pa-
Celtic and Germanic Peoples
In his Germania, Tacitus, somewhat astonished, reported in the 4th century CE [57]: ‘To limit the number of children or to kill an offspring born after the first is considered a sacrilege, and good morals there [in Germania] are stronger than good laws are elsewhere.’ Despite the benevolent judgement of Tacitus, several Germanic tribes practiced infanticide, such as Friesians and Visigoths. Infanticide was so common among the latter that King Chindasvinth (in 643 CE) announced severe penalties for perpetrators [50]. The Lex Visigothorum ordered that the killing of a newborn by the mother be pun60
Neonatology 2016;109:56–61 DOI: 10.1159/000440875
ished by death or blinding, regardless of the baby’s legitimacy [51, 52]. The Salian-Frankish code of 507 CE decreed [53]: ‘He who kills an infant in its mother’s womb or before it has a name shall be liable to pay one hundred solidi.’ The penalty for killing a free Frank was 200, a Roman aristocrat 300 solidi.
Social Birth, the Permit to Live
In the absence of laws, rites evolved to protect the newborn during the dangerous days after birth. Romans and Inuit linked the right to live with ‘naming’ an infant (‘dies lustricus’), an act deeply rooted in most cultures [54]. The Salic Law 511 CE also offered less protection to a newborn until a name was given [55], whereas for some Germanic tribes the right to life was associated with the start of oral feeding.
Conclusions
The literature of antiquity, without feelings of guilt about abandoning or killing infants, seems callous today. Patria potestas was a privilege of Roman males, whereas abortion or postnatal infanticide by females was regarded as immoral and was forbidden. Raising foundlings to become slaves, gladiators, or prostitutes was motivated by profit rather than mercy. The frequency of infanticide and its influence on demography is difficult to evaluate because the infant mortality rate was very high anyway. Laws intended to protect the life of infants were issued by the Roman emperors after Christianization. As unmarried mothers continued to be defamed and punished, such legislation was ineffective. Acknowledgments The author is grateful to the following: the Archeological site and Museum of Veleia, Italy and the Archeological Museum in Parma for access to the tabula alimentaria; Prof. Dr. Wolfgang Kaiser, director of the Romanistic Department at the Institute for History of Law, University of Freiburg, for friendly and guided access to that Institute’s extensive library; Sieghard Irrgang, Kassel, for help with Latin, and Carole Cürten, University of Freiburg, for English language editing.
Obladen
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estates. In 104 CE, Trajan wrote to Pliny [45]: ‘Children born free, then exposed by their parents, and afterwards taken up by others and educated in slavery … you must not deny their freedom; nor ought they to pay for their maintenance, in order to enjoy their liberty.’ But in no way did the law protect sick or malformed infants: Julius Paulus decreed in 230 CE [46]: ‘Not among children rank those born untoward the human frame, e.g. if a woman brings forth a malformed or monstrous infant …’ Another law, the Lex Pompeia de Parricidiis passed in the consulship of Pompeius (52 BCE), inflicted a singular punishment on the most horrible of crimes [36]: ‘Who hastened the death of a parent or child, or of any other relation whose murder is legally termed parricide, whether he acts openly or secretely … He will be punished, not by the sword, nor by fire, nor by any ordinary mode of punishment, but he is to be sown up in a sack with a dog, a rooster, a viper, and an ape, and inclosed in this horrible prison thrown into the sea, or into a river.’ Most probably parricide law was not applied to neonates until the Milan edict, when Emperor Constantine adopted the Christian faith and issued a series of laws to stop infanticide: in 313 CE he authorized the sale of infants [47]. His law of 315 CE ‘intended to keep the parents’ hands away from infanticide’ [48]: ‘Immediate and sufficient aid be given by magistrates to parents who produced children that they were too poor to bring up.’ In 319, the Lex Pompeia was extended to include newborns. In 374 CE, co-emperors Valentinian, Valens, and Gratian formally outlawed infanticide: ‘Who comitted the crime of killing a newborn shall know that he will be punished by death’ [49]. In 410 CE the Visigoths sacked Rome. The collapsing Roman Empire could not reinforce Constantine’s laws and handed infanticide over to the church, like other carnal delicts. The Justinian plague of 541 CE marked the end of antiquity.
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Received: August 17, 2015 Accepted: September 6, 2015 Published online: October 28, 2015
From Right to Sin: Laws on Infanticide in Antiquity Michael Obladen Department of Neonatology, Charité – University Medicine Berlin, Berlin, Germany
Abstract This is the first of three papers investigating changes in infanticide legislation as indicators of the attitude of states towards the neonate. In ancient East Asian societies in which the bride’s family had to pay an excessive dowry, selective female infanticide was the rule, despite formal interdiction by the law. In Greece and Rome children’s lives had little value, and the father’s rights included killing his own children. The proportion of men greatly exceeding that of women found in many cultures and epochs suggests that girls suffered infanticide more often than boys. A kind of social birth, the ritual right to survive, rested on the procedure of name giving in the Roman culture and on the start of oral feeding in the Germanic tradition. Legislative efforts to protect the newborn began with Trajan’s ‘alimentaria’ laws in 103 CE and Constantine’s laws following his conversion to Christianity in 313 CE. Malformed newborns were not regarded as human infants and were usually killed immediately after birth. Infanticide was formally outlawed in 374 CE by Emperor Valentinian. © 2015 S. Karger AG, Basel
© 2015 S. Karger AG, Basel 1661–7800/15/1091–0056$39.50/0 E-Mail [email protected] www.karger.com/neo
Introduction
Infanticide is common among primates, extinguishing firstborns, especially infants born by females with whom the (new) herd leader did not have intercourse [1]. It was a behavior common to all human cultures, but for various reasons and in various forms. Infanticide is influenced by fertility control, gender preference, socioeconomic situation, societal and religious attitude towards illegitimate pregnancy, and the state’s interest reflected by the law. To get rid of superfluous offspring, various methods evolved: (1) adoption, usually to a wealthy childless family; (2) abandonment at a church door or foundling institution; (3) oblation (‘offering’) to a monastery [2]; (4) exposure in a hostile environment, and (5) direct killing (infanticide). Undesired infants included the legitimate of the poor, the illegitimate of the rich, the malformed of all, girls in cultures where dowry was mandatory, twins, and premature infants.
Aims and Focus
This is the first of three articles investigating how infanticide legislation reflected the attitude of states towards the neonate and how societies valued the health Prof. Dr. Michael Obladen Department of Neonatology, Charité – University Medicine Berlin Augustenburger Platz 1 DE–13353 Berlin (Germany) E-Mail michael.obladen @ charite.de
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Key Words Infant · Newborn · History · Infanticide · Legislation
Table 1. Sex ratios in adult populations (unless specified otherwise by italics) obtained from various epochs and study methods
Time
Material studied
n
Males/100 females
Ref.
2,000,000 – 30,000 BCE 4500 – 3300 BCE 228 – 220 BCE 3rd century BCE 50 BCE–200 CE 757 – 855 CE 801 – 829 CE 1066 – 1509 1377 1733 – 1734 1792 – 1840 1812 1902
Fossils of Pithecanthropus, Neanderthal, Paleolithic homo Skeletons from Paloma, Peru: adults >15 years Anatolian-Greek tombstone inscriptions in Miletos Burned bones of (sacrificed?) neonates in urns of Carthago cemetery City of Rome, tombstone inscriptions Carolingean tax registry, 20 German villages St. Germain/Paris polyptich, estate and population register Children of the 18 first Kings of England Poll tax during the great plague, 12 English locations Parochial registry of the Serbian sector of Belgrade Birth registry of rural Liaoning, China Government report on Jádejá villages in Kathiawar, India Demographic data of children, 3 Netsilik Inuit locations
122 49 146 67 8,065 1,061 8,304 94 12,515 1,172 1,871 458 287
148 227 421 68 131 119 110 – 253 109 99 106 214 527 (!) 202 (!)
12 13 10 4 14 15 16 17 17 18 19 20 21
Frequency and Sex Ratio
Estimating the frequency of infanticide is notoriously unreliable, as the neonate’s corpse decays rapidly and court records represent but the tip of the iceberg. Birdsell [8] estimated a prevalence of 15–50% of all births in prehistoric time. Dickemann [9] estimated that 5–50% of infants born in recent agrarian cultures fell victim to infanticide. Tarn [10] found 118 sons and 28 daughters in 79 families living in Miletos in 228–220 BCE. Normally, slightly more males are born than females (106:100), but due to elevated male mortality rates the natural sex ratio in adults is expected to be below 100. Table 1 shows sex ratios from different cultures and epochs, with high ratios suggesting the possibility of selective female infanticide. As Hirschfeld et al. [11] pointed out, unbalanced sex raInfanticide Legislation in Antiquity
tios must be interpreted with caution, as they may be influenced by cultural and economic factors, especially in data collected for tax purposes.
The Orient
In East Asian societies, selective female infanticide was the rule, despite formal interdiction by the law [22]. In the Zhou dynasty, the statesman Guan Zhong (died 645 BCE) appointed guardians to ensure that orphans were provided for and remitted taxes contributing to their support [23]. Confucianism, Chinese belief since the 5th century BCE, attributed little value to women. In the 3rd century BCE, philosopher Fung You-Lan reported [24]: ‘A father and mother when they produce a boy congratulate one another, but when they produce a girl they put her to death … This is because the parents think of their later convenience, and calculate about what is profitable in the long run.’ In 235 BCE, the Han law decreed [25]: ‘Unauthorizedly to kill a child (is punished by) tattooing and [hard work]. When the child is newly born and has strange things on its body, as well when it is deformed, to kill it is not to be considered a crime.’ In Japan, infanticide was called ‘mabiki’ (thinning rice seedlings) since antiquity, and was more or less legal until replaced by liberalized abortion in 1948. In India, female infanticide resulted from the low esteem of girls in Hinduism and by the need of the bride’s family to pay a dowry to the groom’s family. This could amount to several annual family incomes and easily ruined a wealthy family of a girl, let alone of sevNeonatology 2016;109:56–61 DOI: 10.1159/000440875
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and safety of infants. These papers focus on written laws concerning postnatal infanticide by the child’s own mother. Other forms of child killing, although important but without specific laws, have been omitted, such as ritual or religious sacrifice [3, 4], immurement of live infants in buildings [5], suicide by proxy [6], postneonatal homicide of older children, and state-organized murder of handicapped infants [7]. Abortion has also been excluded, and twin infanticide will be treated separately. Sources include court records, historic reports, demographic statistics, and analyses of inscriptions and gravestones. In the legislative context, antiquity is defined herein up to the Justinian enactments in 534 CE.
the immortality of the soul.’ By excess Romans meant any infant born to a ‘paterfamilias’ who already had an heir by birth or adoption. The Jewish attitude was adopted in Christianity: ‘And who so shall receive one such little child in my name receiveth me’ (Matthew 18.5).
Greek and Macedonian Era
the sea. Marble temple frieze from Ostia, 2nd century BCE (Staatliche Museen Berlin, Antikensammlung) [56].
eral girls [26]. Mesopotamian societies worshipped the mother goddess Ishtar. The birth of malformed infants prognosticated bad omens, but neither the Summa Izbu nor the Hammurabi Code suggests that Babylonians killed malformed infants. Adoption and the sale of infants ‘raised from the dog’s mouth’ (foundlings) were common and regulated by clay tablet contracts [27]. Egyptian society was, to some degree, matriarchal. The goddesses Isis, Hathor, Nekhebet, Meskhenet, and Taweret were believed to protect childbirth and the neonate. Diodorus Siculus [28] reported the punishment of parents in Egypt before Roman rule: ‘Parents that killed their children were not to die, but were forced for three subsequent days and nights to hug them continually in their arms, and had a guard all the while over them …’ Claudius Aelianus [29] also described infant protection in Egypt in the 5th century BCE: ‘It was a law, that a Theban could not expose his child on waste land. But if the father of the infant was very poor, whether the child was male or female, he had to take it immediately after birth in its clothing to the magistrates, who turned it over to the person who accepted the lowest payment. A contract was made … whereby [the adopter] pledged to foster the child, and retain it as a slave when it grew up, receiving its services as the reward for having reared it.’ Hebrews strictly condemned any practice of infanticide: ‘But the midwives feared God, and did not do as the king of Egypt had commanded them, but let the boys live’ (Exodus 1.17). Describing Jews, Tacitus emphasized [30]: ‘Population growth is one of their concerns; in fact it is a sacrilege to kill any infant which is born in excess; and they believe in 58
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Roman Empire: ‘Patria Potestas’
In 451 BCE, the Law of 12 Tables commanded: ‘A dreadfully malformed child shall be quickly killed’ [35]. ‘Patria potestas’ originated at the same time, which mainly regulated inheritance but included the father’s right to kill his children ‘jus vitae ac necis’: ‘The children whom we have begotten in lawful wedlock are under our power … The power which we have over our children is peculiar to the citizens of Rome’ [36]. The mother had no influence on this decision. Paternal rejection usually reObladen
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Fig. 1. Hera and Zeus throw their clubfooted son Hephaistos into
The third ‘Homeric’ Hymn to Apollo, written in the 6th century BCE, described Hera’s attempt to kill her clubfooted infant, as shown in figure 1 [31]: ‘But my son Hephaestus whom I bare was weakly among all the blessed gods and shrivelled of foot, a shame and disgrace to me in heaven, whom I myself took in my hands and cast out so that he fell in the great sea.’ Stone-carved in the 5th century BCE, the Cretan Law of Gortyna [32] (fig. 2, left) obliged the (divorced) woman to ‘carry [the newborn] to the husband, in the presence of 3 witnesses; and if he do not receive the child, it shall be in the power of the mother either to bring up or expose.’ Aristotle proposed in his ‘politics’ in the 4th century BCE [33]: ‘let there be a law that no deformed child shall be reared; but on the ground of number of children … there must be a limit fixed to the procreation of offspring, and if any people have a child in excess of these regulations, abortion must be practised on it before it has developed sensation and life.’ Greeks usually did not rear more than one daughter [10], and during the Alexandrian Empire Polybius associated infanticide with population decline [34]: ‘In our own time the whole of Greece has been subject to a low birth-rate and a general decrease of the population, owing to which cities have become deserted and the land has ceased to yield fruit, although there have neither been continuous wars nor epidemics … If [men] married, [they did not wish] to rear the children born to them, or at most one or two of them, so as to leave these in affluence …’
pyrus Oxyrhynchus 744, Thomas Fisher Rare Book Library, Toronto) [38]. Right: detail of bronze tablet from Veleia/Emilia-Romagna of 103 CE. The Latin inscription regulated the support of poor or exposed infants by Trajan’s alimentation law (National Archaeological Museum of Parma) [44].
sulted from an abundance of (female) children, the infant’s malformation, suspected maternal adultery, and birth on ‘dies ater’ (‘fateful day’) [37]. Patria potestas could be enacted from afar: in June of 1 BCE, the Roman soldier Hilarion sent a papyrus letter from Alexandria to his wife Alis in Oxyrhynchus, 300 km upstream of the Nile: ‘I urge you, care for the [elder] child, and if I soon get pay, I will send it to you. If perhaps you give birth, then if it is male, let it be; if it is female, throw it out.’ [38] (fig. 2, center). Patria potestas was considered obsolete in late antiquity [39], but it prevented effective legislative protection of the newborn for centuries. Next to exposure, a typical Roman method of infanticide was drowning in a bucket, as reported by Seneca in the 1st century CE [40]: ‘Unnatural progeny we destroy; we drown even children who at birth are weakly and abnormal. Yet it is not anger, but reason that separates the harmful from the sound.’ Soranus of Ephesus taught in Rome in the 2nd century CE: ‘The infant which is worth rearing will be distinguished by the fact that its mother spent the period of pregnancy in good health, for conditions which require medical care, also harm the fetus. Second, by the fact that it was born at the due time, best at the end of nine months, and if it so happens, later; but also after only sev-
en months … Also by the fact that it is perfect in all its parts, members and senses … And by conditions contrary to those mentioned, the infant not worth rearing is recognized’ [41]. Obviously, many newborns did not meet all these criteria, as Tertullian complained in 197 CE [42]: ‘How many of you [Guardians of the Roman Empire] might I deservedly charge with Infant-murther? And not only so, but among the different Kinds of Death, for choosing some of the cruellest for their own Children, such as drowning, or starving with Cold or Hunger, or exposing them to the Mercy of Dogs.’ Change began when Trajan extended the ‘alimentaria’ instituted by Emperor Nerva: Governmental loans were given to landowners in small inland towns of Italy, and the interest of 5% per year was used to maintain children of poor families [43]. The goal was to raise the birth rate and reduce infanticide. A large bronze tablet from Veleia (fig. 2, right) explains that Trajan loaned the sum of 1.044 million sesterces (HS), equaling the price of 500 slaves, to this small community in 103 CE. From the annual interest of 52,200 HS, ‘245 legitimate boys are to receive 192 HS each, 34 legitimate girls 144 HS each, 1 illegitimate boy 144 HS and 1 illegitimate girl 120 HS.’ [44] (fig. 2, right). On the tablet follow 52 lists of proprietors and their mortgaged
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Color version available online
Fig. 2. Early documents of infant exposure and protection. Left: detail of stone-carved Law of Gortyna/Crete in Greek Bustrophedon text (5th century BCE), regulating the exposure of infants [32]. Center: Hilarion’s papyrus letter (1 BCE) from Alexandria/Roman Egypt, ordering his wife to kill the expected newborn if female (Pa-
Celtic and Germanic Peoples
In his Germania, Tacitus, somewhat astonished, reported in the 4th century CE [57]: ‘To limit the number of children or to kill an offspring born after the first is considered a sacrilege, and good morals there [in Germania] are stronger than good laws are elsewhere.’ Despite the benevolent judgement of Tacitus, several Germanic tribes practiced infanticide, such as Friesians and Visigoths. Infanticide was so common among the latter that King Chindasvinth (in 643 CE) announced severe penalties for perpetrators [50]. The Lex Visigothorum ordered that the killing of a newborn by the mother be pun60
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ished by death or blinding, regardless of the baby’s legitimacy [51, 52]. The Salian-Frankish code of 507 CE decreed [53]: ‘He who kills an infant in its mother’s womb or before it has a name shall be liable to pay one hundred solidi.’ The penalty for killing a free Frank was 200, a Roman aristocrat 300 solidi.
Social Birth, the Permit to Live
In the absence of laws, rites evolved to protect the newborn during the dangerous days after birth. Romans and Inuit linked the right to live with ‘naming’ an infant (‘dies lustricus’), an act deeply rooted in most cultures [54]. The Salic Law 511 CE also offered less protection to a newborn until a name was given [55], whereas for some Germanic tribes the right to life was associated with the start of oral feeding.
Conclusions
The literature of antiquity, without feelings of guilt about abandoning or killing infants, seems callous today. Patria potestas was a privilege of Roman males, whereas abortion or postnatal infanticide by females was regarded as immoral and was forbidden. Raising foundlings to become slaves, gladiators, or prostitutes was motivated by profit rather than mercy. The frequency of infanticide and its influence on demography is difficult to evaluate because the infant mortality rate was very high anyway. Laws intended to protect the life of infants were issued by the Roman emperors after Christianization. As unmarried mothers continued to be defamed and punished, such legislation was ineffective. Acknowledgments The author is grateful to the following: the Archeological site and Museum of Veleia, Italy and the Archeological Museum in Parma for access to the tabula alimentaria; Prof. Dr. Wolfgang Kaiser, director of the Romanistic Department at the Institute for History of Law, University of Freiburg, for friendly and guided access to that Institute’s extensive library; Sieghard Irrgang, Kassel, for help with Latin, and Carole Cürten, University of Freiburg, for English language editing.
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estates. In 104 CE, Trajan wrote to Pliny [45]: ‘Children born free, then exposed by their parents, and afterwards taken up by others and educated in slavery … you must not deny their freedom; nor ought they to pay for their maintenance, in order to enjoy their liberty.’ But in no way did the law protect sick or malformed infants: Julius Paulus decreed in 230 CE [46]: ‘Not among children rank those born untoward the human frame, e.g. if a woman brings forth a malformed or monstrous infant …’ Another law, the Lex Pompeia de Parricidiis passed in the consulship of Pompeius (52 BCE), inflicted a singular punishment on the most horrible of crimes [36]: ‘Who hastened the death of a parent or child, or of any other relation whose murder is legally termed parricide, whether he acts openly or secretely … He will be punished, not by the sword, nor by fire, nor by any ordinary mode of punishment, but he is to be sown up in a sack with a dog, a rooster, a viper, and an ape, and inclosed in this horrible prison thrown into the sea, or into a river.’ Most probably parricide law was not applied to neonates until the Milan edict, when Emperor Constantine adopted the Christian faith and issued a series of laws to stop infanticide: in 313 CE he authorized the sale of infants [47]. His law of 315 CE ‘intended to keep the parents’ hands away from infanticide’ [48]: ‘Immediate and sufficient aid be given by magistrates to parents who produced children that they were too poor to bring up.’ In 319, the Lex Pompeia was extended to include newborns. In 374 CE, co-emperors Valentinian, Valens, and Gratian formally outlawed infanticide: ‘Who comitted the crime of killing a newborn shall know that he will be punished by death’ [49]. In 410 CE the Visigoths sacked Rome. The collapsing Roman Empire could not reinforce Constantine’s laws and handed infanticide over to the church, like other carnal delicts. The Justinian plague of 541 CE marked the end of antiquity.
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