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patriation has been hitherto inflicted ? Is it, and why is it, very unlikely that any punishment short of death can be effectual ? Is it, and why is it, likely that death itself will be effectual ? Shall a rare and almost solitary example of clemency, supplied to us by the laws of Scotland be snatched away, so as to be no longer a model for imitation or a subject for praise to their English neighbours? In the intercourse of legal exchange shall the inhabitants of Scotland, instead of imparting their lenity for our rigour be compelled to accept our rigour for their lenity? Shall it be said of the party which solicits, and the party which grants this unprecedented partnership in severity, that in the same island, and in the same age, though subjects are progressive in the knowledge, governors are retrograde in the practice of legislation ?
μη γένοιτο. .
A wise man, if compelled to chuse between extremes, will make his choice with reluctance ; nor would he venture upon making it before he had carefully and impartially surveyed all circumstances, under all aspects of positive and comparative utility. But there are intelligent, humane, and serious persons to whom the severities long exercised against unhappy mothers in one part of the kingdom, and now meditated in another, may, as an alternative, appear on some occasions not much less objectionable than the legalised xurplopós* of the Athenians, which, after all, does not seem to have been very often practiced.t
* Contemplating, as I do, with satisfaction, the improved sentiments and habits of Christian countries, I cannot slightly pass over the impunity granted to infanticide, even among the polished and enlightened Athenians. What Pliny says of the natural world is true in the moral. Quædam pudenda dictu tanta auctorum asseveratione commendantur, ut præterire fas non sit.”—Nat. Hist. lib. xxix, cap. 5. It were absurd to deny the reality of the practice. But humanity would dispose us to believe that it was not very frequent. It has not fallen in my way to meet with any instances of it in the writings of the Greek orators or Greek historians, and little stress is to be laid on the case of
+ Vid. Petit. Leg. Attic. p. 220, edit. Wesseling.
The nobility, and it pains me to add, the clergy of Sweden, as I have stated in page 467, resisted the humane wishes of a
Ion in the tragedy of Euripides, and a few other similar stories which have been take up by poets. I have to confess farther, that of the law which is said to have permitted the exposure
of children at Athens, I have never been able to find the contents, or the origin, or the name of the author. Let us, however, examine the evidence which has come down to us, and the use which has been made of it by scholars.
Turnebus, in lib. xxxviii. cap. 38 of his Adversaria, gives no example, but contents himself with noticing the word xUtplopòs, and referring to Hesychius. But in lib. ii. tit. 4, of the Commentary on the Leges Atticæ, Petit says, Quemadmodum liberos tollere in patris erat positum potestate, ita etiam necare et exponere, idque, meo judicio, non tam moribus, quam lege receptum fuit Athenis, non cum hac summi Philosophi exceptione Polit. Libro VΙΙ. cap. 16. περί δε αποθέσεως και τροφής των γιγνομένων, έστω νόμος, μηδέν πεπηρωμένον τρέφειν. Νam non tantum liberorum τους πεπηρωμένους, sed etiam quos libebat sanguinolentos licebat vel necare, vel exponere, quod certe idem est : etenim Necare, inquit Paulus Libro 11. Sententiarum [Tit. xxiv. 10.] videtur non tantum is, qui partum perfocat : sed et is, qui abjicit : et qui alimonia denegat : et is, qui publicis locis misericordiæ causa exponit, quam ipse non habet. I. 4. D. de agnoscendis liberis." Petit here gives his own judgment, unsupported by the express testimony of any ancient writer, that the laws, as well as usage, sanctioned the practice at Athens. It must, indeed, be presumed that if the practice prevailed for a long time, there was at least a tacit consent from the laws. But the passage which Petit has quoted from Aristotle proves nothing to Petit's purpose. Aristotle is delivering his own opinions upon an ideal republic, and says, “ let there be a law,” without any distinction of place, and without the slightest intimation that such a law was in force at Athens. He adds: « Διά δε πλήθος τέκνων, εάν η τάξις των εθνών (legitur, εθών) κωλύη, μηδέν αποτίθεσθαι των γιγνομένων, ωρίσθαι γάρ δεί της τεκνοποιίας το πλήθος,” and if more than the prescribed number be begotten, he states certain circumstances under which « εμποιείσθαι δεί την άμβλωσιν." Not a word is said about any law which permitted infanticide at Athens. But to states where by law it might not be permitted, he gives directions for limitting the number of children, and points out an expedient most shocking to our sensibility for preventing inconvenience to parents when the number was likely to be exceeded. Singular it is, that even the humane Pliny does not seem to differ very widely from Aristotle, for having described a process which
Swedish king. But in Englishmen, considered as individuals, there is a sort of hereditary and instinctive aversion to the de
“ præstabat, ne mulieres conciperent," he adds, “quam solam ex omni atocio dixisse fas sit, quoniam aliquarum fæcunditas plena liberis tali venia indiget."-Lib. xxix. cap. 4. The understanding of man pauses on the general principle on which Aristotle justifies the above-mentioned regulation : “ TÒ yàp őolov* και το μη, διωρισμένον τη αισθήσει και το ξήν έσται." The uncivilized Germans were in this respect more entitled to our approbation than the sagacious Athenians. “ Numerum liberorum finire, aut quemquam ex agnatis necare, flagitium habetur."-Tacitus de moribus German. page 296, edit. Lips.
Petit, then, by his reference to Aristotle, gives us no light upon the Athenian law, and there seems to be little propriety in his explanation of the word erponere, as applied to the laws and usages of Athens, by the authority of a Roman lawyer who was not writing about them.
Petit thus proceeds: “Hinc passim apud Comicos, sive Græcos, sive Latinos in palliatis fabulis suis, in quibus mores Atticos repræsentant, infantum expositiones, ut in Heautontimorumeno Terentii sive Menandri, Actu iv. Scena 1." from which he quotes v. 14, and the four following. Here we gain some light upon mere usage, for comic writers are faithful witnesses to manners, and the Latin play of Terence was founded upon a Greek play of Menander:
“ Ex integra Græca integram Comediam
For the fuller illustration of the practice we may have recourse to Act iv. Scene 1 of the Hecyra, which, as we are told by Donatus in his preface to the play, was taken from a comedy of Apollodorus. We have an additional testimony in the Prologue to the Casina of Plautus, where the puella exposititia is mentioned, and the comedy, we should observe, is founded on the Clerumonoe of Diphilus.--Vid. Prolog. These, I believe, are the proofs which the Latin comic writers will furnish in support of the very strong language used by Petit-passim. The aid it de
* Upon corov, as legally distinguished from ispòr, V. Ammonius, page 104 ; and Valckenaer's Note, page 184; Taylor's Note on Æschines contra Timarch. vol. ii. page 90. ed. quarto ; and on Demosthenes contra Timocrat. vol. iii. page 445 and 457.
struction of human life in cases where custom has not familiarised our minds to the practice, and where personal hopes or fears,
rives from the Greek comic writers is yet more scanty-Petit quotes from the Ranæ of Aristophanes,
« ότε δή πρώτον μεν αυτόν γενόμενον χειμώνος όντος εξέθεσαν εν οστράκω."
1992. Scholiastes : “έπει έν χύτραις εξετίθεσαν τα παιδία, διό και χυτρίξειν έλεγoν.”
To a person who is inquiring for Athenian instances, the verses of Aristophanes, even by Petit's own confession, afford no information. He says, . apud Aristophanem, de Edipo, non e Thebanorum instituto, quod plane huic adversabatur; and for this he quotes a decisive passage in Ælian's Various History, lib. ii. cap. 7. The commendation bestowed upon the Theban law, which denounced death against him who was known « έκθείναι το παιδίον, ή εις ερεμίαν αυτό ρίψαι," implies that some other states had not a similar law—but it does not specify any law at Athens which permitted the practice, and Aristophanes might have written, as he has, about Edipus, though no such law, and even no such practice were known among his own countrymen. The Scholiast, indeed, here and elsewhere, is a competent witness to the practice. But it does not furnish any testimony from particular instances, nor upon the age, or directions, or framer of the law. My opinion is, that in the comedies of Aristophanes there is no direct and unequivocal evidence on the subject, though, as explained by the Scho. Jiasts, the foregoing one or two other passages supply a strong presumption in favour of the fact. I have already stated the tes. timony which Terence and Plautus may furnish. But in the fragments, either of Philemon or Menander, which have come down to us in the original, there is no vestige of the practice—let us return to Aristophanes. In the Thesmophor. line 512, we thus read :
« τότ' εισέφερε γραύς εν χύτρα το παιδίον." Here was no intention to expose the child. The old woman is sent out by the mother to buy an infant and impose upon her husband—the nurse brings it in,“ év xúrpą," and this was often done, as it was here, when they gave children a sponge with honey to stop their crying—see line 462 of the Acharnensians, to which the Scholiast on the Thesmoph. refers, and upon which the Scholiast ad locum mentions the custom.
In the Vespæ, 1. 288, we have the word éyxurpreis, which the Scholiast explains thus : “ αντί του, φονεύσεις, εκ του παρε
political animosities, the supposed interests of commerce, or the contagious pride and jealousy of professions do not operate I
novuévov," and after giving other interpretations, he adds, « έτι γε μην και τάς μαίας τάς εκτιθείσας εν χύτραις τα βρέφη.” But the various explanations given in the Scholiast will suit the word for all the various purposes for which children were put by nurses év xúrpą, and to expose them was one.
I do not recollect any other part of Aristophanes which can throw the smallest light on the subject: and the silence of a writer who was severe enough in censuring the vices of his countrymen may lead us to suppose that infanticide was not very common. It may not be amiss to remark, that Flor. Christian. in his Note on the foregoing line of the Vespæ, refers to the Minos of Plato for evidence which is not to be found in it. The éyxurpial of whom Plato there speaks, were præficæ who attended burials, “ not obstetrices quæ in ollis infantes exponebant."
Potter, in his Greek Antiquities, vol. ii. p. 333, speaks of infanticide, and quotes, as from Posidippus, these two lines :
« Υιόν τρέφει τις, κάν πένης τις ών τύχη,
θυγατέρα δ' εκτίθησι κάν η πλούσιος. Here we have direct proof of the practice, though not of the law. What reason Potter had for assigning these verses to Posidippus, I know not. I do not find them in Grotius's excerpta (see pages 812 and 900), nor in the passages which Athenæus cites from ten comedies of Posidippus.
The Greek lexicographers furnish pretty full evidence. 'Εγχυτριείς, φονεύσεις, μετενήνεκται δε από των εν ταίς χύτραις εκτιθεμένων παίδων."-Ηesychius.
* Χυτρισμός ή των βρεφών εν ταίς χύτραις έκθεσης."Hesychius.
« 'Εγχυτρισμός, ή του βρέφους έκθεσης, επεί εν χύτραις é feridevto."-Moeris, p. 138.
The Note of Pierson contains much valuable matter. But I shall quote the conclusion. “ Illud meretur observari, et apud Scholiastum Aristoph. Vesp. 288. et apud Etymologum, p. 313. et apud Suidam 1. c. καταχυτρίσαι exponi βλάψαι, in Lexico autem Regio, quod Parisiis evolvit Cl. Ruhnkenius, legi Bátal. Quod mihi quidem non temere videtur damnandum.'
If Bayai be admitted as the true reading, we may among the Lacedemonians find a custom, which may induce us to apply the word not to children exposed, but to children preserved : ουδέ ύδατι τα βρέφη, άλλ' οίνω περιέλουον αι γυναίκες, βάσανόν, τινα ποιούμεναι της κράσεως αυτών." Here it may be proper to remark, that we have decisive testimony for the law which tole