CHAP. XLIV. The Institutes, A. D. 533, I OF PERSONS. century; an edict so pregnant with injustice and disorder, that after serving this occasional purpose, it was prudently abolished in the same reign.96 If candour will acquit the emperor himself, and transfer the corruption to his wife and favourites, the suspicion of so foul a vice must still degrade the majesty of his laws; and the advocates of Justinian may acknowledge, that such levity, whatsoever be the motive, is unworthy of a legislator and a man. Monarchs seldom condescend to become the preceptors of their subjects; and some praise is due to Justinian, by whose command an ample system was reduced to a short and elementary treatise. Among the various institutes of the Roman law,97 those of Caius98 were the most popular in the East and West; and their use may be considered as an evidence of their merit. They were selected by the imperial delegates, Tribonian, Theophilus, and Dorotheus: and the freedom and purity of the Antonines was incrusted with the coarser materials of a degenerate age. The same volume which introduced the youth of Rome, Constantinople, and Berytus, to the gradual study of the Code and Pandects, is still precious to the historian, the philosopher, and the magistrate. The INSTITUTES of Justinian are divided into four books; they proceed, with no contemptible method, from, I. Persons, to, II. Things, and from things, to, III. Actions; and the article IV. of Private Wrongs, is terminated by the principles of Criminal Law. I. The distinction of ranks and persons, is the firmest basis of a mixed and limited government. In France, the and slaves. remains of liberty are kept alive by the spirit, the honours, Freemen 96 Procopius, Anecdot. c. 28. A similar privilege was granted to the church of Rome (Novel. ix). For the general repeal of these mischievous indulgences, see Novel. cxi. and Edict. v. 97 Lactantius, in his Institutes of Christianity, an elegant and specious work, proposes to imitate the tile and method of the civilians. Quidam prudentes et arbigi æquiratis Institutiones Civilis Juris compositas ediderunt (Institut. Divin. 1. i. c. 1). Such as Ulpian, Paul, Fiorentinus, Marcian. 98 The emperor Justinian calls him suum, though he died before the end of the second century. His Institutes are quoted by Servius, Boethius, P.scian, &c. and the Epitome by Arrian is sill extant. (See the Prolegomena and Notes to the dision of Schling, in the Jurisprudentia Ante-Justinianea, Lugd. Bat. 1717. Heineccius, Hist. J. R. No. 313. Ludewig, in Vit. Just. p. 199). and even the prejudices, of fifty thousand nobles.99 Two hundred families supply, in lineal descent, the second branch of the English legislature, which maintains, between the king and commons, the balance of the constitution. A gradation of patricians and plebeians, of strangers and subjects, has supported the aristocracy of Genoa, Venice, and ancient Rome. The perfect equality of men is the point in which the extremes of democracy and despotism are confounded; since the majesty of the prince or people would be offended, if any heads were exalted above the level of their fellow-slaves or fellow-citizens.... In the decline of the Roman empire, the proud distinctions of the republic were gradually abolished, and the reason or instinct of Justinian completed the simple form of an absolute monarchy. The emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth or the memory of famous ancestors. He delighted to honour with titles and emoluments, his generals, magistrates, and senators; and his precarious indulgence communicated some rays of their glory to the persons of their wives and children. But in the eye of the law, all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was degraded to an obsolete and empty The voice of a Roman could no longer enact his laws, or create the annual ministers of his power: his constitutional rights might have checked the arbitrary will of a master; and the bold adventurer from Germany or Arabia was admitted, with equal favour, to the civil and military command, which the citizen alone had been once entitled to assume over the conquests of his fathers. The first Cæsars had scrupulously guarded the distinction of ingenuous, and servile birth, which was decided by the condition of the mother; and the candour of the laws was satisfied, if her freedom could be ascertained during a sin 99 See the Annales Politiques de l'Abbé de St. Pierre, tom. i. p. 25. who dates in year 1735. The most ancient families claim the immemorial possession of arms and fiefs. Since the Crusades, some, the most truly respectable, have been created by the king for merit and services. The recent and vulgar crowd is derived from the multitude of venal offices without trust or dignity, which continually ennoble the wealthy plebeians. CHAP. XLIV. XLIV. CHAP. gle moment between the conception and the delivery..... The slaves, who were liberated by a generous master, immediately entered into the middle class of libertines, or freedmen: but they could never be enfranchised from the duties of obedience and gratitude: whatever were the fruits of their industry, their patron and his family inherited the third part; or even the whole of their fortune, if they died without children and without a testament. Justinian respected the rights of patrons; but his indulgence removed the badge of disgrace from the two inferior orders of freedmen: whoever ceased to be a slave, obtained, without reserve or delay, the station of a citizen; and at length the dignity of an ingenuous birth, which nature had refused, was created, or supposed, by the omnipotence of the emperor. Whatever restraints of age, or forms, or numbers, had been formerly introduced to check the abuse of manumissions, and the too rapid increase of vile and indigent Romans, he finally abolished; and the spirit of his laws promoted the extinction of domestic servitude.... Yet the eastern provinces were filled, in the time of Justinian, with multitudes of slaves, either born or purchased for the use of their masters; and the price, from ten to seventy pieces of gold, was determined by their age, their strength, and their education.100 But the hardships of this dependent state were continually diminished by the influence of government and religion; and the pride of a subject was no longer elated by his absolute dominion over the life and happiness of his bondsman.10 Fathers and children. The law of nature instructs most animals to cherish 100 If the option of a slave was bequeathed to several legatees, they drew lots, a d the losers were entitled to their share of his value: ten pieces of gold for a common servant or maid under ten years; if above that age, twenty; if they knew a trade, thirty; notaries or writers, fifty; midwives or pn.sicians, sixty; eunuchs under ten years, thirty pieces; above, fifty; if tradesmen, seven'y (Ccd. I. vi. tit. xliii. leg. 3). These legal prices are ge nerally below those of the market. 101 For the state of slaves and freedmen, see Institutes, l. i. tit. iii...viii. 1. ii. tit. ix. l. iii. tit. viii. ix. Pandects or Digest, 1. i. tit. v, vi. 1. xxxviii. tit. i...iv. and the whole of the xlth book. Code. 1. vi. tit. iv, v. 1. vii. tit. i...xxiii. Be it henceforwards understood that, with the original text of the Institutes and Pandects, the correspondent articles in the Antiquities and Elements of Heineccius are implici ly quoted; and, with the xxvii first books of the Pandects, the learned and rational Commentaries of Gerard Noodt (Opera, tom. ii. p. 1...590. the end. Lug. Bat. 1724). and educate their infant progeny. The law of reason inculcates to the human species the returns of filial piety. But the exclusive, absolute, and perpetual dominion of the father over his children, is peculiar to the Roman jurisprudence,102 and seems to be coeval with the foundation of the city.103 The paternal power was instituted or confirmed by Romulus himself; and after the practice of three centuries, it was inscribed on the fourth table of the Decemvirs. In the forum, the senate, or the camp, the adult son of a Roman citizen enjoyed the public and private rights of a person: in his father's house, he was a mere thing; confounded by the laws with the moveables, the cattle, and the slaves, whom the capricious master might alienate or destroy, without being responsible to any earthly tribunal. The hand which bestowed the daily sustenance might resume the voluntary gift, and whatever was acquired by the labour or fortune of the son, was immediately lost in the property of the father. His stolen goods (his oxen or his children) might be recovered by the same action of theft;104 and if either had been guilty of a trespass, it was in his own option to compensate the damage, or resign to the injured party the obnoxious animal. At the call of indigence or avarice, the master of a family could dispose of his children or his slaves. But the condition of the slave was far more advantageous, since he regained by the first manumission his alienated freedom: the son was again restored to his unnatural father; he might be condemned to servitude a second and a third time, and it was not till after the third sale and deliverance,105 that 102 See the patria potestas in the Institutes (1. i. tit. ix.) the Pandects (1. i. tit. vi, vii.) and the Code (1. viii. tit. xlvii, xlviii, xlix.) Jus potestatis quod in liberos habemus proprium est civium Romanorum. Nulli enim alii sunt homines, qui talem in liberos habeant potestatem qualem nos habemus. 103 Dionysius Hal. 1. ii. p. 94, 95. Gravina (Opp. p. 286.) produces the words of the twelve tables. Papinian (in Collatione Legum Roman. et. Mosaicarum, tit. iv. p. 204.) stiles this patria potestas, lex regia: Ulpian (ad Sabin. 1. xxvi. in Pandect. I. i. tit. vi. leg. 8.) says, jus potestatis moribus receptum; and furiosus filium in potestate habebit. How sacred....or rather how absurd! 104 Pandect. 1. xlvii. tit. ii. leg. 14. No. 13. leg. 38. No. 1. Such was the decision of Ulpian and Paul. 105 The trina mancipatio is most clearly defined by Ulpian (Fragment. x. p. 591, 592. edit. Schulting); and best illustrated in the Antiquities of Heineccius. CHAP. XLIV. XLIV. CHAP. he was enfranchised from the domestic power, which had been so repeatedly abused. According to his discretion, a father might chastise the real or imaginary faults of his children, by stripes, by imprisonment, by exile, by sending them to the country to work in chains among the meanest of his servants. The majesty of a parent was armed with the power of life and death;106 and the examples of such bloody executions, which were sometimes praised and never punished, may be traced in the annals of Rome, beyond the times of Pompey and Augustus. Neither age, nor rank, nor the consular office, nor the honours of a triumph, could exempt the most illustrious citizen from the bonds of filial subjection :107 his own descendants were included in the family of their common ancestor; and the claims of adoption were not less sacred or less rigorous than those of nature. Without fear, though not without danger of abuse, the Roman legislators had reposed an unbounded confidence in the sentiments of paternal love; and the oppression was tempered by the assurance, that each generation must succeed in its turn to the awful dignity of parent and master. Limitations of the paternal authority. The first limitation of paternal power is ascribed to the justice and humanity of Numa; and the maid who, with his father's consent, had espoused a freeman, was protected from the disgrace of becoming the wife of a slave. In the first ages, when the city was pressed and often famished by her Latin and Tuscan neighbours, the sale of children might be a frequent practice; but as a Roman could not legally purchase the liberty of his fellow-citizen, the market must gradually fail, and the trade would be destroyed by the conquest of the republic. An 106 By Justinian, the old law, the jus necis of the Roman father (Insti tut. l. iv. tit. ix. No. 7.) is reported and reprobated. Some legal vestiges are left in the Pandects (1. xliii. tit. xxix. leg. 3. No. 4.) and the Collatio Legum Romanarum et Mosaicarum (tit ii No. 3. p. 189). 107 Except on public occasions, and in the actual exercise of his office. In publicis locis atque muneribus, atque actionibus patrum, jura cum filiorum qui in magistratu sunt, potestatibus collata interquiescere paullulum et connivere, &c. (Aul. Gellius, Noctes Atticæ, ii. 2. The lessons of the philosopher Tauris were justified by the old and memorable example of Fabius; and we may contemplate the same story in the style of Livy (xxiv. 44.) and the homely idiom of Claudius Quadrigarius the annalist. |