maintain the text of the Pandects, the Institutes, and the Code, the use
of ciphers and abbreviations was rigorously proscribed; and as Justinian
recollected, that the perpetual edict had been buried under the weight
of commentators, he denounced the punishment of forgery against the rash
civilians who should presume to interpret or pervert the will of their
sovereign. The scholars of Accursius, of Bartolus, of Cujacius, should
blush for their accumulated guilt, unless they dare to dispute his right
of binding the authority of his successors, and the native freedom of
the mind. But the emperor was unable to fix his own inconstancy; and,
while he boasted of renewing the exchange of Diomede, of transmuting
brass into gold, discovered the necessity of purifying his gold from the
mixture of baser alloy. Six years had not elapsed from the publication
of the Code, before he condemned the imperfect attempt, by a new and
more accurate edition of the same work; which he enriched with two
hundred of his own laws, and fifty decisions of the darkest and
most intricate points of jurisprudence. Every year, or, according
to Procopius, each day, of his long reign, was marked by some legal
innovation. Many of his acts were rescinded by himself; many were
rejected by his successors; many have been obliterated by time; but the
number of sixteen Edicts, and one hundred and sixty-eight Novels, has
been admitted into the authentic body of the civil jurisprudence. In the
opinion of a philosopher superior to the prejudices of his profession,
these incessant, and, for the most part, trifling alterations, can be
only explained by the venal spirit of a prince, who sold without shame
his judgments and his laws. The charge of the secret historian is indeed
explicit and vehement; but the sole instance, which he produces, may
be ascribed to the devotion as well as to the avarice of Justinian. A
wealthy bigot had bequeathed his inheritance to the church of Emesa;
and its value was enhanced by the dexterity of an artist, who subscribed
confessions of debt and promises of payment with the names of the
richest Syrians. They pleaded the established prescription of thirty or
forty years; but their defence was overruled by a retrospective edict,
which extended the claims of the church to the term of a century; an
edict so pregnant with injustice and disorder, that, after serving this
occasional purpose, it was prudently abolished in the same reign. If
candor will acquit the emperor himself, and transfer the corruption
to his wife and favorites, 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, those of Caius 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_.
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. Two hundred families 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 CÊsars 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. 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.
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, and seems to be coeval with the foundation of the city.
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 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; 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,
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; 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: 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.
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 neighbors, 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 conquests of the republic. An imperfect
right of property was at length communicated to sons; and the threefold
distinction of _profectitious_, _adventitious_, and _professional_ was
ascertained by the jurisprudence of the Code and Pandects. Of all that
proceeded from the father, he imparted only the use, and reserved the
absolute dominion; yet if his goods were sold, the filial portion
was excepted, by a favorable interpretation, from the demands of
the creditors. In whatever accrued by marriage, gift, or collateral
succession, the property was secured to the son; but the father, unless
he had been specially excluded, enjoyed the usufruct during his life.
As a just and prudent reward of military virtue, the spoils of the enemy
were acquired, possessed, and bequeathed by the soldier alone; and the
fair analogy was extended to the emoluments of any liberal profession,
the salary of public service, and the sacred liberality of the emperor
or empress. The life of a citizen was less exposed than his fortune
to the abuse of paternal power. Yet his life might be adverse to the
interest or passions of an unworthy father: the same crimes that flowed
from the corruption, were more sensibly felt by the humanity, of the
Augustan age; and the cruel Erixo, who whipped his son till he expired,
was saved by the emperor from the just fury of the multitude. The Roman
father, from the license of servile dominion, was reduced to the
gravity and moderation of a judge. The presence and opinion of Augustus
confirmed the sentence of exile pronounced against an intentional
parricide by the domestic tribunal of Arius. Adrian transported to
an island the jealous parent, who, like a robber, had seized the
opportunity of hunting, to assassinate a youth, the incestuous lover of
his step-mother. A private jurisdiction is repugnant to the spirit of
monarchy; the parent was again reduced from a judge to an accuser;
and the magistrates were enjoined by Severus Alexander to hear his
complaints and execute his sentence. He could no longer take the life
of a son without incurring the guilt and punishment of murder; and the
pains of parricide, from which he had been excepted by the Pompeian
law, were finally inflicted by the justice of Constantine. The same
protection was due to every period of existence; and reason must applaud
the humanity of Paulus, for imputing the crime of murder to the father
who strangles, or starves, or abandons his new-born infant; or exposes
him in a public place to find the mercy which he himself had denied.
But the exposition of children was the prevailing and stubborn vice of
antiquity: it was sometimes prescribed, often permitted, almost always
practised with impunity, by the nations who never entertained the Roman
ideas of paternal power; and the dramatic poets, who appeal to the human
heart, represent with indifference a popular custom which was palliated
by the motives of economy and compassion. If the father could subdue
his own feelings, he might escape, though not the censure, at least the
chastisement, of the laws; and the Roman empire was stained with the
blood of infants, till such murders were included, by Valentinian and
his colleagues, in the letter and spirit of the Cornelian law. The
lessons of jurisprudence and Christianity had been insufficient to
eradicate this inhuman practice, till their gentle influence was
fortified by the terrors of capital punishment.
Experience has proved, that savages are the tyrants of the female sex,
and that the condition of women is usually softened by the refinements
of social life. In the hope of a robust progeny, Lycurgus had delayed
the season of marriage: it was fixed by Numa at the tender age of twelve
years, that the Roman husband might educate to his will a pure and
obedient virgin. According to the custom of antiquity, he bought his
bride of her parents, and she fulfilled the _coemption_ by purchasing,
with three pieces of copper, a just introduction to his house and
household deities. A sacrifice of fruits was offered by the pontiffs in
the presence of ten witnesses; the contracting parties were seated on
the same sheep-skin; they tasted a salt cake of _far_ or rice; and this
_confarreation_, which denoted the ancient food of Italy, served as an
emblem of their mystic union of mind and body. But this union on the
side of the woman was rigorous and unequal; and she renounced the name
and worship of her father's house, to embrace a new servitude, decorated
only by the title of adoption, a fiction of the law, neither rational
nor elegant, bestowed on the mother of a family (her proper appellation)
the strange characters of sister to her own children, and of daughter to
her husband or master, who was invested with the plenitude of paternal
power. By his judgment or caprice her behavior was approved, or
censured, or chastised; he exercised the jurisdiction of life and death;
and it was allowed, that in the cases of adultery or drunkenness, the
sentence might be properly inflicted. She acquired and inherited for
the sole profit of her lord; and so clearly was woman defined, not as a
_person_, but as a _thing_, that, if the original title were deficient,
she might be claimed, like other movables, by the use and possession
of an entire year. The inclination of the Roman husband discharged or
withheld the conjugal debt, so scrupulously exacted by the Athenian and
Jewish laws: but as polygamy was unknown, he could never admit to his
bed a fairer or a more favored partner.
After the Punic triumphs, the matrons of Rome aspired to the common
benefits of a free and opulent republic: their wishes were gratified
by the indulgence of fathers and lovers, and their ambition was
unsuccessfully resisted by the gravity of Cato the Censor. They declined
the solemnities of the old nuptials; defeated the annual prescription
by an absence of three days; and, without losing their name or
independence, subscribed the liberal and definite terms of a marriage
contract. Of their private fortunes, they communicated the use, and
secured the property: the estates of a wife could neither be alienated
nor mortgaged by a prodigal husband; their mutual gifts were prohibited
by the jealousy of the laws; and the misconduct of either party might
afford, under another name, a future subject for an action of theft.
To this loose and voluntary compact, religious and civil rights were no
longer essential; and, between persons of a similar rank, the apparent
community of life was allowed as sufficient evidence of their nuptials.
The dignity of marriage was restored by the Christians, who derived all
spiritual grace from the prayers of the faithful and the benediction
of the priest or bishop. The origin, validity, and duties of the holy
institution were regulated by the tradition of the synagogue, the
precepts of the gospel, and the canons of general or provincial synods;
and the conscience of the Christians was awed by the decrees and
censures of their ecclesiastical rulers. Yet the magistrates of
Justinian were not subject to the authority of the church: the emperor
consulted the unbelieving civilians of antiquity, and the choice of
matrimonial laws in the Code and Pandects, is directed by the earthly
motives of justice, policy, and the natural freedom of both sexes.
Besides the agreement of the parties, the essence of every rational
contract, the Roman marriage required the previous approbation of the
parents. A father might be forced by some recent laws to supply the
wants of a mature daughter; but even his insanity was not gradually
allowed to supersede the necessity of his consent. The causes of the
dissolution of matrimony have varied among the Romans; but the most
solemn sacrament, the confarreation itself, might always be done away by
rites of a contrary tendency. In the first ages, the father of a family
might sell his children, and his wife was reckoned in the number of his
children: the domestic judge might pronounce the death of the offender,
or his mercy might expel her from his bed and house; but the slavery of
the wretched female was hopeless and perpetual, unless he asserted for
his own convenience the manly prerogative of divorce. The warmest
applause has been lavished on the virtue of the Romans, who abstained
from the exercise of this tempting privilege above five hundred years:
but the same fact evinces the unequal terms of a connection in which the
slave was unable to renounce her tyrant, and the tyrant was unwilling
to relinquish his slave. When the Roman matrons became the equal and
voluntary companions of their lords, a new jurisprudence was introduced,
that marriage, like other partnerships, might be dissolved by the
abdication of one of the associates. In three centuries of prosperity
and corruption, this principle was enlarged to frequent practice and
pernicious abuse. Passion, interest, or caprice, suggested daily motives
for the dissolution of marriage; a word, a sign, a message, a letter,
the mandate of a freedman, declared the separation; the most tender
of human connections was degraded to a transient society of profit
or pleasure. According to the various conditions of life, both
sexes alternately felt the disgrace and injury: an inconstant spouse
transferred her wealth to a new family, abandoning a numerous, perhaps
a spurious, progeny to the paternal authority and care of her late
husband; a beautiful virgin might be dismissed to the world, old,
indigent, and friendless; but the reluctance of the Romans, when they
were pressed to marriage by Augustus, sufficiently marks, that the
prevailing institutions were least favorable to the males. A specious
theory is confuted by this free and perfect experiment, which
demonstrates, that the liberty of divorce does not contribute to
happiness and virtue. The facility of separation would destroy all
mutual confidence, and inflame every trifling dispute: the minute
difference between a husband and a stranger, which might so easily be
removed, might still more easily be forgotten; and the matron, who in
five years can submit to the embraces of eight husbands, must cease to
reverence the chastity of her own person.
Insufficient remedies followed with distant and tardy steps the rapid
progress of the evil. The ancient worship of the Romans afforded a
peculiar goddess to hear and reconcile the complaints of a married life;
but her epithet of _Viriplaca_, the appeaser of husbands, too clearly
indicates on which side submission and repentance were always expected.
Every act of a citizen was subject to the judgment of the _censors_; the
first who used the privilege of divorce assigned, at their command, the
motives of his conduct; and a senator was expelled for dismissing his
virgin spouse without the knowledge or advice of his friends. Whenever
an action was instituted for the recovery of a marriage portion,
the _prtor_, as the guardian of equity, examined the cause and the
characters, and gently inclined the scale in favor of the guiltless
and injured party. Augustus, who united the powers of both magistrates,
adopted their different modes of repressing or chastising the license
of divorce. The presence of seven Roman witnesses was required for the
validity of this solemn and deliberate act: if any adequate provocation
had been given by the husband, instead of the delay of two years, he was
compelled to refund immediately, or in the space of six months; but
if he could arraign the manners of his wife, her guilt or levity
was expiated by the loss of the sixth or eighth part of her marriage
portion. The Christian princes were the first who specified the just
causes of a private divorce; their institutions, from Constantine to
Justinian, appear to fluctuate between the custom of the empire and
the wishes of the church, and the author of the Novels too frequently
reforms the jurisprudence of the Code and Pandects. In the most rigorous
laws, a wife was condemned to support a gamester, a drunkard, or a
libertine, unless he were guilty of homicide, poison, or sacrilege, in
which cases the marriage, as it should seem, might have been dissolved
by the hand of the executioner. But the sacred right of the husband was
invariably maintained, to deliver his name and family from the disgrace
of adultery: the list of _mortal_ sins, either male or female, was
curtailed and enlarged by successive regulations, and the obstacles of
incurable impotence, long absence, and monastic profession, were
allowed to rescind the matrimonial obligation. Whoever transgressed the
permission of the law, was subject to various and heavy penalties. The
woman was stripped of her wealth and ornaments, without excepting the
bodkin of her hair: if the man introduced a new bride into his bed,
_her_ fortune might be lawfully seized by the vengeance of his exiled
wife. Forfeiture was sometimes commuted to a fine; the fine was
sometimes aggravated by transportation to an island, or imprisonment in
a monastery; the injured party was released from the bonds of marriage;
but the offender, during life, or a term of years, was disabled from
the repetition of nuptials. The successor of Justinian yielded to the
prayers of his unhappy subjects, and restored the liberty of divorce
by mutual consent: the civilians were unanimous, the theologians were
divided, and the ambiguous word, which contains the precept of Christ,
is flexible to any interpretation that the wisdom of a legislator can
demand.