Chapter XLIV: Idea Of The Roman Jurisprudence.—Part V

The distinction of ranks and persons is the firmest basis of a
mixed and limited government. In France, the remains of liberty
are kept alive by the spirit, the honors, and even the
prejudices, of fifty thousand nobles. 99 Two hundred families
9911 supply, in lineal descent, the second branch of 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 honor, 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 name. 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 favor, to the civil and military command,
which the citizen alone had been once entitled to assume over the
conquests of his fathers. The first Caesars had scrupulously
guarded the distinction of ingenuous and servile birth, which was
decided by the condition of the mother; and the candor of the
laws was satisfied, if her freedom could be ascertained, during a
single 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.
101

99 (return) [ See the Annales Politiques de l’Abbe de St. Pierre,
tom. i. p. 25 who dates in the 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.]

9911 (return) [ Since the time of Gibbon, the House of Peers has
been more than doubled: it is above 400, exclusive of the
spiritual peers—a wise policy to increase the patrician order in
proportion to the general increase of the nation.—M.]

100 (return) [ If the option of a slave was bequeathed to several
legatees, they drew lots, and 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
physicians, sixty; eunuchs under ten years, thirty pieces; above,
fifty; if tradesmen, seventy, (Cod. l. vi. tit. xliii. leg. 3.)
These legal prices are generally below those of the market.]

101 (return) [ For the state of slaves and freedmen, see
Institutes, l. i. tit. iii.—viii. l. ii. tit. ix. l. iii. tit.
viii. ix. Pandects or Digest, l. i. tit. v. vi. l. xxxviii. tit.
i.—iv., and the whole of the xlth book. Code, l. vi. tit. iv. v.
l. vii. tit. i.—xxiii. Be it henceforward understood that, with
the original text of the Institutes and Pandects, the
correspondent articles in the Antiquities and Elements of
Heineccius are implicitly 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. Lugd. Bat. 1724.)]

The law of nature instructs most animals to cherish 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;
1031 confounded by the laws with the movables, 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 labor 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 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 honors 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.

102 (return) [ See the patria potestas in the Institutes, (l. i.
tit. ix.,) the Pandects, (l. i. tit. vi. vii.,) and the Code, (l.
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. * Note: The newly-discovered Institutes of Gaius name
one nation in which the same power was vested in the parent. Nec
me praeterit Galatarum gentem credere, in potestate parentum
liberos esse. Gaii Instit. edit. 1824, p. 257.—M.]

103 (return) [ Dionysius Hal. l. ii. p. 94, 95. Gravina (Opp. p.
286) produces the words of the xii. tables. Papinian (in
Collatione Legum Roman et Mosaicarum, tit. iv. p. 204) styles
this patria potestas, lex regia: Ulpian (ad Sabin. l. xxvi. in
Pandect. l. i. tit. vi. leg. 8) says, jus potestatis moribus
receptum; and furiosus filium in potestate habebit How sacred—or
rather, how absurd! * Note: All this is in strict accordance with
the Roman character.—W.]

1031 (return) [ This parental power was strictly confined to the
Roman citizen. The foreigner, or he who had only jus Latii, did
not possess it. If a Roman citizen unknowingly married a Latin or
a foreign wife, he did not possess this power over his son,
because the son, following the legal condition of the mother, was
not a Roman citizen. A man, however, alleging sufficient cause
for his ignorance, might raise both mother and child to the
rights of citizenship. Gaius. p. 30.—M.]

104 (return) [ Pandect. l. xlvii. tit. ii. leg. 14, No. 13, leg.
38, No. 1. Such was the decision of Ulpian and Paul.]

105 (return) [ The trina mancipatio is most clearly defined by
Ulpian, (Fragment. x. p. 591, 592, edit. Schulting;) and best
illustrated in the Antiquities of Heineccius. * Note: The son of
a family sold by his father did not become in every respect a
slave, he was statu liber; that is to say, on paying the price
for which he was sold, he became entirely free. See Hugo, Hist.