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Christianity and the Legal Status of Abandoned Children in the Later Roman Empire

Published online by Cambridge University Press:  24 April 2015

Joshua C. Tate
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A.H.M. Jones, the great British historian of the later Roman Empire, was once asked what difference conversion to Christianity made to Rome. His answer: None. Brutal gladiatorial contests continued to be held, slavery was not abolished, and cruel penalties were laid down for seemingly minor moral infractions. Thus, Jones reasoned, the actual impact of Christianity on secular Roman society is difficult to see. Jones's view, however, has not been universally shared, particularly when it comes to the Roman legal system. Biondo Biondi saw Christianity as bringing about “un profundo rivolgimento” in late Roman law, which had ramifications in many different areas. As a religion, Christianity differed in unmistakable ways from its pagan competitors, and it would be quite surprising if these differences did not have some impact on Roman law and society when Christianity was adopted as the official state religion. The late Roman era offers a fertile testing ground for the impact a nascent religion might have on a society and its legal institutions.

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Articles
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Journal of Law and Religion , Volume 24 , Issue 1 , 2008 , pp. 123 - 141
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Copyright © Center for the Study of Law and Religion at Emory University 2008

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References

1. MacMullen, Ramsay, Christianizing the Roman Empire (A.D. 100-400), at 154 n. 25 (Yale U. Press 1984)Google Scholar.

2. See e.g. MacMullen, Ramsay, What Difference Did Christianity Make?, 35 Historia: Revue d'Histoire Ancienne 322, 322–343 (1986)Google Scholar. On the legal aspects of the question, see Evans-Grubbs, Judith, Law and Family in Late Antiquity: The Emperor Constantine's Marriage Legislation (Oxford U. Press 1995)Google Scholar.

3. 1 Biondo Biondi, Diritto Romano Cristiano 1 (Giuffrè 1952) (Italian).

4. See e.g. Brown, Peter, The Cult of the Saints 21 (U. Chi. Press 1981)Google Scholar; Fox, Robin Lane, Pagans and Christians 22 (Knopf 1987)Google Scholar.

5. For an introductory bibliography, see Harris, William V., Child-exposure in the Roman Empire, 84 JRS 1 n. 2–3 (1994)Google Scholar. For the most recent treatment of the issue, see Miller, Timothy S., The Orphans of Byzantium: Child Welfare in the Christian Empire 148–152 (Cath. U. Am. Press 2003)Google Scholar.

6. D. 20.3.5; D 21.2.39.3; Sent. Paul. 5.1.1; CJ 8.16(17).l (197); CJ 7.16.1 (Caracalla); CJ 8.16(17).6 (293); CJ 7.16.37 (294); CJ 2.4.26 (294); CJ 4.43.1 (294); Frag. Vat. 33-4 (Constantine); CT 11.27.2 (322); CT 4.8.6 (323); CT 5.10.1 (329?); CJ 4.43.2 (329?); CT 3.3.1 (391); Sirm. Const. 5 (419); Nov. Val. 33 (451). The two issues of sale and exposure are often treated side by side in Roman legal sources, and are also usually discussed together in the modern secondary literature. Cf. Vanzetti, Maria Bianchi Fossati, Vendita ed esposizione degli infanti da Costantino a Giustiniano, 49 SDHI 179, 188 (1983)Google Scholar (Italian). I have focused my discussion on issues regarding simple abandonment as opposed to sale.

7. Boswell prefers the term “abandonment” over “exposure,” believing that the English word “exposure” conveys “a sense of risk or harm … which is absent from the ancient terms.” Boswell, John, The Kindness of Strangers: The Abandonment of Children in Western Europe from Late Antiquity to the Renaissance 24–25 (Penguin Press 1988)Google Scholar. I have used the two terms interchangeably, following Harris, supra n. 5.

8. Memmer, Michael, Ad servitutem aut ad lupanar … Ein Beitrag zur Rechtsstellung von Findelkindern nach römischen Recht—unter besonderer Berücksichtigung von §§ 77, 98 Sententiae Syriacae, 108 ZRG:RA 79–80 (1991) (German)Google Scholar; Vanzetti, supra n. 6, at 202.

9. CT 5.9.1.

10. CJ 8.51(52).2 (374); CT 5.9.2 (412); Sirm. Const. 5 (419).

11. CJ 8.51(52)3 (529); Nov. Just. 153 (541).

12. Some readers may object to my occasional use of the emperor's name to describe “his” legislation. The convention persists despite our new attentiveness to the complex process by which legislation was created.

13. MacMullen, supra n. 2.

14. Cameron, Averil, Christianity and the Rhetoric of Empire: The Development of Christian Discourse 5 (U. Cal. Press 1991)Google Scholar. Or, for that matter, that paganism did not remain alive and well throughout much of the period.

15. Augustine, Epistle 24*.

16. The fact that Augustine, as a religious authority, seems to have been engaged in active correspondence with a secular jurist points to a manner in which the two discourses were becoming interlinked. While we should never assume that the views of the church fathers were identical to those of lawyers and imperial officials, it would be equally misguided to suppose that the one had no effect upon the other.

17. Due to the limited source material that has come down to us, this discussion will necessarily focus on the strands of Christianity that later came to be termed “orthodox.” This does not imply, however, that other Christian traditions, such as Pelagianism, where not also at certain stages in a position to influence imperial legislation.

18. Such as Athenagoras, Legatio pro Christianis 35 (PG 6.969), Justin Martyr, 1 Apology 27 (PG 6.369-372), and Minucius Felix, Octavius 31 (PL 3.336-337).

19. In particular Basil of Caesarea, Homilia in Illud Lucae, Destruam 4 (PG 31.268-269), and Ambrose, De Tobia 1.8.29 (PL 14.769-770).

20. Boswell, supra n. 7, at 157-172.

21. Id. at 160-161.

22. Lactantius, Divine Institutes 6.20 (PL 6.708-709).

23. Id.

24. As noted by Basil of Caesarea, Homilia VIII in Hexaemeron 6 (PG 29.177-180).

25. Hexaemeron 18.61 (PL 14.232).

26. Boswell, supra n. 7, at 168.

27. Matt 1:2-17; Luke 3:23-38 (all Biblical citations are taken from the RSV).

28. Augustine, Sermon 51:16 (PL 38.348). Here as elsewhere, I give my own English translation of quotations from the Latin sources.

29. Id. at 51:18 (PL 38.349). The reason for the exposure of Moses, according to the Biblical account, was to protect him from being killed under an Egyptian law ordering that all male Hebrew infants be put to death. Exod 1:16-22.

30. John 1:11-13.

31. Ambrose, Epistle 75 (PL 16.1257-1259); Cyril of Alexandria, Commentarius in S. Joannis Evangelium 1:9 (PG 73.149-157)Google Scholar.

32. Ambrose, Epistle 75:4 (PL 16.1258).

33. Rom 8:12-17.

34. Ambrose, Epistle 75:5 (PL 16.1258).

35. Chrysostom, John, Homilia XIV in Joannem 2 (PG 59.93)Google Scholar.

36. John Chrysostom, Homilia XIV in Epist. ad Romanos (PG 60.525-526).

37. Chrysostom, John, Baptismal Instructions 2:29, 3:5 & 5:22Google Scholar, in Sources Chrétiennes 50:150, 153 & 311Google Scholar.

38. Id. at 3:5, in Sources Chrétiennes 50:153.

39. Pliny Ep. 10.65-66; D. 22.6.1.2; D. 40.4.29; CJ 8.51(52). 1 (224).

40. Vanzetti, supra n. 6, at 182-183.

41. Memmer, supra n. 8, at 47.

42. CJ 8.51(52).l (224); CJ 5.4.16 (Tetrarchie); but see also Pliny, Ep. 10.65.6, which seems however to have been applicable only to Bithynia.

43. Vanzetti, supra n. 6, at 184-187.

44. CT 11.27.1-2. CT 11.27.1 (329?) is directed to Italy, while CT 11.27.2 (322) is aimed at Africa. On the dating of CT 11.27.2, see Harris, supra n. 5, at 20 n. 175.

45. Evans-Grubbs, Judith, Constantine and Imperial Legislation on the Family, in The Theodosian Code: Studies in the Imperial Law of Late Antiquity 135 (Harries, Jill & Wood, Ian eds., Duckworth 1993)Google Scholar.

46. Seeck, Otto, Regesten der Kaiser unde Päpste 65 (J.B. Metzler 1919) (German)Google Scholar. Seeck's view is endorsed by Vanzetti, supra n. 6, at 195, but Harris, supra n. 5, at 20 n. 179, is unconvinced.

47. CT 5.10.1. Vanzetti, supra n. 6, at 196-198, holds that “vel nutriendum putaverit” does not refer to the exposure of children, but rather to a kind of gratuitous transfer. But see Memmer, supra n. 8, at 62-64.

48. “Liberos” could be read either as an adjective meaning “free” or a noun meaning “children.”

49. CT 5.9.1.

50. Ablabius probably began his career with Constantius Caesar in Ita!y, but moved to the new imperial capital of Constantinople in 330 and stayed at the court of Constantine until 335 or 336. Jones, A.H.M., Martindale, J.R., & Morris, J., The Prosopography of the Later Roman Empire Vol. 1: AD 260-395, at 3 (Cambridge U. Press 1971)Google Scholar.

51. As demonstrated by Frag. Vat. 35 and 249, Constantine's original laws, like those in the Novels appended to the CT, were usually prefaced with lengthy explanations of the reasons that led the emperor to act: see Evans-Grubbs, supra n. 2, at 45. Honoré has explained how the preamble and epilogue were systematically deleted by the Theodosian compilers. Tony Honoré, The Making of the Theodosian Code, 103 ZRG:RA 159-160 (1986).

52. Harris, supra n. 5, at 21.

53. Vanzetti, supra n. 6, at 188 & 200-202.

54. Vanzetti does not spell out this economic argument, but it seems implicit in her statement that “molto realisticamente Costantino ha creato le condizioni più adatte per mitigatre le conseguenze delle frequenti esposizioni: gli effetti giuridici vengono da sé.” Id. at 201.

55. Vanzetti claims that the emperor was likely to have been worried about depopulation of the empire as a result of war and famine, id. at 187, and similar demographic motives have been cited by others, e.g. Memmer, supra n. 8, at 66, and Harris, supra n. 5, at 21. This explanation, however, is not very convincing. On the one hand, Constantine's civil wars against Maxentius and Licinius took place nearly a generation before his decision in 331 to reform the law on expositi: any lingering effects on the population could scarcely have been significant. Regarding the other issue, Vanzetti seems to confiise occasional food crises or shortages with long-term famine: on this distinction, see Peter Garnsey, Famine and the Food Supply in the Graeco-Roman World: Responses to Risk and Crisis 6 (Cambridge U. Press 1988). The notion that the later Roman empire suffered from a long-term manpower shortage, moreover, was effectively refuted some three decades ago by Moses Finley in his review of Boak's, ArthurManpower Shortage and the Fall of the Roman Empire in the West, 48 JRS 156–164 (1958)Google Scholar. Short-term concerns about the population of specific provinces are conceivable, as evidenced by CT 11.27.1-2, but this begs the question of how such localized concerns could lead to an edict regarding the collection of expositi that was binding for the whole empire. In any case, it is doubtful whether Constantine or the imperial officials who served under him applied such sophisticated economic analysis to legislation on exposure.

56. See Evans-Grubbs, supra n. 46, at 136. In general, the extent of Christian influence on Constantinian legislation has been exaggerated; see Evans-Grubbs, supra n. 52, passim.

57. Centuries before Constantine, for example, it was emphasized by the Stoic philosopher Musonius Rufus. See Boswell, supra n. 7, at 86-88.

58. The extant text is probably corrupt. As preserved in the Code of Justinian, CJ 8.51(52).2 (374) reads:

Unusquisque subolem suam nutriat. quod si exponendam putaverit, animadversioni quae constituia est subiacebit. § 1. Sed nec domiais vel patronis repetendi aditum relinquimus, si ab ipsis expositos quodammodo ad mortem voluntas misericordiae amica collegerit: nec enim dicere suum potent, quem pereuntem contempsit.

See. 1 of the text, however, is virtually identical to the beginning of CT 5.9.2 (412): “Nullum dominis vel patronis repetendi aditum relinquimus, si expositos quodammodo ad mortem voluntas misericordiae arnica collegerit, nec enim dicere suum poterit, quern pereuntem contempsit.” This suggests two possibilities: either the author of the Honorian constitution copied the language used in an earlier constitution of Valentinian, or the Justinianic compilers conflated the two constitutions in their Code. The latter view, held by Vanzetti, supra n. 6, at 215-216, seems to me more probable. Such a reference to reclaiming by masters and patrons would be more natural in a constitution that alters the procedure for registration of expositi than in a criminal law about the act of exposure itself, although it is not clear why the Justinianic compilers would have inserted it in the latter. The phrase “voluntas misericordiae arnica collegerit,” moreover, is reminiscent of Sirm. Const. 5, unquestionably attributed to Honorius's reign, although the latter constitution differs in content from CT 5.9.2, as discussed below. I have therefore not treated § 1 of CJ 8.51(52).2 in my discussion of Valentinian's legislation. If the phrase does in fact date from Valentinian, this would move the inception of the rhetorical trends discussed below from the early fifth to the late fourth century, but would not otherwise affect the argument.

59. CJ 8.51(52).2(Mar. 374).

60. Eyben, Emiel, Family Planning in Graeco-Roman Antiquity, 11–12 Ancient Socy. 31 (1980–1981),Google Scholar and Harris, supra n. 5, at 22, suggest that the penalty specified in CJ 8.51(52).2 is “probably” a reference to capital punishment. Boswell, supra n. 7, at 162-163, gives little weight to this interpretation. The statement of Bennet, H., The Exposure of Infants in Ancient Rome, 18 CJ 351 (1923)Google Scholar, that exposure was made a capital crime in 374 is too categorical.

61. CT 9.14.1 (Feb. 374). It is difficult to believe, however, that infanticide and exposure could have been viewed as equivalent, since exposure did not always result in the death of the child.

62. Harris, supra n. 5, at 21-22.

63. CT 5.9.2.

64. Vanzetti, supra n. 6, at 216.

65. Memmer, supra n. 8, at 92.

66. CT 5.9.1 (331); see above.

67. Apart from the dubious constitution CJ 8.51(52).2 discussed above, the word misericordia in all its forms appear only 5 times in the Code of Justinian according to Robert Mayr, Vocabularium Codicis Iustiniani, I: Pars Latina (Hildesheim 1965). Four of these instances date from Justinian (534) and are paired with references to God and the divine (CJ 1.27.1.7 “deus … suam misericordiam”; CJ 1.27.1.8 “dei misericordiam”; CJ 1.27.1.10 “deus … per ipsius misericordiam”; CJ 1.27.2.4a “divina misericordia”); all of them are included under the heading “De officio praefecti praetorio Africae …” The other usage is from a constitution issued by the emperor Justin in 519 on the subject of natural children (CJ 5.27.7.1). The word is never used in the pagan constitutions. One might be able to extend this argument by examining the Digest, but I have not dared to do so because of additional problems of interpolation: see Johnston, David, Justinian's Digest: The Interpretation of Interpolation, 9(2) Oxford J. Leg. Stud. 149–166 (1989)CrossRefGoogle Scholar. Whether the phrase including misericordia might have been interpolated in CT 5.9.2 by the Theodosian compilers is an interesting question, but one for which I am not prepared to suggest an answer.

68. The word appears in Lactantius, Divine Institutes 6.20 (PL 6.708-9), but one would hesitate to suggest this as the inspiration for Honorius's law.

69. Sirm. Const. 5 (419).

70. Vanzetti, supra n. 6, at 218, thinks that the procedure of reclaiming outlined in the latter part of the law cannot relate to exposure, but see Memmer, supra n. 8, at 75 n. 190.

71. CT 5.9.1 (331).

72. D. 1.5.4.2.

73. Conc. Vasense Can. 9, Corpus Christianorum, Ser. Lat. 148: 100-101.

74. Vanzetti, supra n. 6, at 216-217, argues that this canon spells out the procedure whereby the testis episcopalis mentioned in CT 5.9.2 was to be obtained. This is disputed by Boswell, supra n. 7, at 173 n. 115, whose arguments however are not convincing.

75. Conc. Vasense Can. 10, Corpus Christianorum, Ser. Lat. 148:101.

76. Conc. Arelatense Secundum Can. 51, Corpus Christianorum, Ser. Lat. 148:124; Cone. Agathense Can. 24, Corpus Christianorum, Ser. Lat. 148:204.

77. It might also be cited as an argument in favor of the view that the statuta referred to in the canon include CT 5.9.2 (412), though this is conjectural.

78. CJ 8.51(52)3, issued in 529 and summarized in CJ 1.4.24; Nov. Just. 153, issued in 541.

79. CJ 8.51(52),3 is among the laws ascribed by Honoré to the beginning of Tribonian's quaestorship in 529. Honoré, Tony, Tribonian 106 (Duckworth 1978)Google Scholar. Nov. Just. 153 is also alleged to fall within Tribonian's tenure of office, although its use of Greek to specify a fine runs contrary to Honoré's theories about Tribonian's style, id. at 130-137. Honoré's view of the preeminent role played by Tribonian in the drafting of legislation may be somewhat exaggerated. See Maas, Michael, Roman History and Christian Ideology in Justinianic Reform Legislation, 40 Dumbarton Oaks Papers 17, 27 (1986)CrossRefGoogle Scholar. But Honoré suggests that Tribonian was a Christian, Honoré, op. cit. at 65-67, and whether the reform measures passed during Justinian's reign primarily reflect the views and rhetoric of the emperor or his quaestor would not thereby affect the question of Christian influence. In any case, the laws should be judged by their content, not according to preconceived notions about those responsible for drafting them.

80. Justinian's reform actually had two provisions: the first affirming the established rule that former masters and patrons could not reclaim those exposed with their knowledge or consent, and the second breaking precedent by preventing the collector from retaining the child in a position of servitude. The first aspect of the reform is indeed harmonious with classical ideas (Suetonius, , Claudius 25Google Scholar; cf. CJ 8.51 (52). 1), and this connection is drawn in Nov. Just. 153. The provisions relating to the collector, however, are completely novel.

81. CJ 8.51(52).3.

82. Nov. Just. 153.

83. Rom 8:12-17.

84. Boswell, supra n. 7, at 191; see also Miller, supra n. 5, at 152.

85. See e.g. Blair, D. Marianne, Safeguarding the Interests of Children in Intercountry Adoption: Assessing the Gatekeepers, 34 Cap. U. L. Rev. 349, 353 n. 18 (2005)Google Scholar (citing recent literature); Hubing, Bridget M., International Child Adoptions: Who Should Decide What Is in the Best Interests of the Family, 15 Notre Dame J.L., Ethics & Pub. Policy 655, 663–667 (2001)Google Scholar (discussing arguments for and against intercountry adoption); Maldonado, Solangel, Discouraging Racial Preferences in Adoptions, 39 U.C. Davis L. Rev. 1415, 1420–1430Google Scholar (arguing that race plays a role in the decisions of Americans to adopt children from abroad); Ryan, Elisabeth J., Note, For the Best Interests of the Children: Why the Hague Convention on Intercountry Adoption Needs To Go Farther as Evidenced by Implementation in Romania and the United States, 29 B.C. Intl. & Comp. L. Rev. 353, 363–374 (2006)Google Scholar (discussing the Hague Convention on Intercountry Adoption and its pending ratification in the United States); Smolin, David M., The Two Faces of Intercountry Adoption: The Significance of the Indian Adoption Scandals, 35 Seton Hall L. Rev. 403, 450–474 (2005)Google Scholar (discussing recent scandals in Andhra Pradesh, India).

86. Laxmi Kant Pandey v. Union of India (1984) (citing Pindat, Nirmala, Inter-Country Adoption: The Indian View, in Parenthood and Modern Society: Legal and Social Issues for the Twenty-First Century, 268 (Eekelaar, John & Sarcevic, Petar eds., Martinus Nijhoff 1993)Google Scholar). The decision resulted in the creation of a Central Adoption Resource Agency in 1990, which plays a comprehensive regulatory role in matters relating to adoption in India. See Smolin, supra n. 88, at 443-445.

87. Eekelaar & Sarcevic, supra n. 88, at 272.

88. Convention on the Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44 Sess., U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990.

89. Landes, Elisabeth M. & Posner, Richard A., The Economics of the Baby Shortage, 7 J. Leg. Stud. 323–339 (1978)CrossRefGoogle Scholar, defended in Posner, Richard A., The Regulation of the Market in Adoptions, 67 B.U. L. Rev. 59–72 (1987)Google Scholar.

90. For some criticisms, see Robert, J.Prichard, S., A Market for Babies?, 34 U. Toronto L.J. 347–355 (1984)Google Scholar; but see Goodwin, Michele, The Free-Market Approach to Adoption: The Value of a Baby, 26 B.C. Third World L.J. 61, 65 (2006)Google Scholar (arguing that there is a “de facto, largely unregulated, adoption free market” already in place).

91. The notion of legislative “interest” is an ambiguous one, and cannot easily be delineated in purely economic terms Even the most refined and inclusive economic model cannot capture all the direct and indirect effects of a particular law, and attempts to derive the intention of the law from its perceived economic results or vice versa can lead to absurd conclusions.

92. See e.g. Children, Rights, and the Law (Alston, P., Parker, S., & Seymour, J. eds., Clarendon Press 1992)Google Scholar; Smolin, David M., Overcoming Religious Objections to the Convention on the Rights of the Child, 20 Emory Intl. L. Rev. 81 (2006)Google Scholar. A conference held at the University of Ottawa from March 15-17, 2007, addressed the many issues that have arisen with respect to the Convention since its adoption.