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 savage 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 sheepskin; 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 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 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 generally
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
prætor, 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.
The freedom of love and marriage was restrained among the Romans by
natural and civil impediments. An instinct, almost innate and universal,
appears to prohibit the incestuous commerce of parents and children in
the infinite series of ascending and descending generations. Concerning
the oblique and collateral branches nature is indifferent, reason mute,
and custom various and arbitrary. In Egypt the marriage of brothers and
sisters was admitted without scruple or exception: a Spartan might
espouse the daughter of his father, an Athenian that of his mother; and
the nuptials of an uncle with his niece were applauded at Athens as a
happy union of the dearest relations.
The profane law-givers of Rome were never tempted by interest or
superstition to multiply the forbidden degrees: but they inflexibly
condemned the marriage of sisters and brothers, hesitated whether first
cousins should be touched by the same interdict; revered the parental
character of aunts and uncles, and treated affinity and adoption as a
just imitation of the ties of blood. According to the proud maxims of
the republic, a legal marriage could only be contracted by free
citizens; an honorable, at least an ingenuous birth, was required for
the spouse of a senator: but the blood of kings could never mingle in
legitimate nuptials with the blood of a Roman; and the name of Stranger
degraded Cleopatra and Berenice to live the _concubines_ of Mark Antony
and Titus. This appellation, indeed, so injurious to the majesty, cannot
without indulgence be applied to the manners of these oriental queens. A
concubine, in the strict sense of the civilian, was a woman of servile
or plebeian extraction, the sole and faithful companion of a Roman
citizen, who continued in a state of celibacy. Her modest station, below
the honors of a wife, above the infamy of a prostitute, was acknowledged
and approved by the laws: from the age of Augustus to the tenth century,
the use of this secondary marriage prevailed both in the West and East;
and the humble virtues of a concubine were often preferred to the pomp
and insolence of a noble matron. In this connection the two Antonines,
the best of princes and of men, enjoyed the comforts of domestic love;
the example was imitated by many citizens impatient of celibacy, but
regardful of their families. If at any time they desired to legitimate
their natural children, the conversion was instantly performed by the
celebration of their nuptials with a partner whose fruitfulness and
fidelity they had already tried.[31] By this epithet of _natural_, the
offspring of the concubine were distinguished from the spurious brood
of adultery, prostitution, and incest, to whom Justinian reluctantly
grants the necessary aliments of life; and these natural children alone
were capable of succeeding to a sixth part of the inheritance of their
reputed father. According to the rigor of law, bastards were entitled to
the name and condition of their mother, from whom they might derive the
character of a slave, a stranger, or a citizen. The outcasts of every
family were adopted without reproach as the children of the State.
The relation of guardian and ward, or in Roman words of _tutor_ and
_pupil_, which covers so many titles of the _Institutes_ and _Pandects_,
is of a very simple and uniform nature. The person and property of an
orphan must always be trusted to the custody of some discreet friend. If
the deceased father had not signified his choice, the _agnats_, or
paternal kindred of the nearest degree, were compelled to act as the
natural guardians: the Athenians were apprehensive of exposing the
infant to the power of those most interested in his death; but an axiom
of Roman jurisprudence has pronounced that the charge of tutelage should
constantly attend the emolument of succession. If the choice of the
father and the line of consanguinity afforded no efficient guardian, the
failure was supplied by the nomination of the prætor of the city or the
president of the province. But the person whom they named to this
_public_ office might be legally excused by insanity or blindness, by
ignorance or inability, by previous enmity or adverse interest, by the
number of children or guardianships with which he was already burdened
and by the immunities which were granted to the useful labors of
magistrates, lawyers, physicians, and professors.
Till the infant could speak and think he was represented by the tutor,
whose authority was finally determined by the age of puberty. Without
his consent no act of the pupil could bind himself to his own prejudice,
though it might oblige others for his personal benefit. It is needless
to observe that the tutor often gave security, and always rendered an
account, and that the want of diligence or integrity exposed him to a
civil and almost criminal action for the violation of his sacred trust.
The age of puberty had been rashly fixed by the civilians at fourteen;
but as the faculties of the mind ripen more slowly than those of the
body, a _curator_ was interposed to guard the fortunes of a Roman youth
from his own inexperience and headstrong passions. Such a trustee had
been first instituted by the prætor, to save a family from the blind
havoc of a prodigal or madman; and the minor was compelled by the laws
to solicit the same protection, to give validity to his acts till he
accomplished the full period of twenty-five years. Women were condemned
to the perpetual tutelage of parents, husbands, or guardians; a sex
created to please and obey was never supposed to have attained the age
of reason and experience. Such, at least, was the stern and haughty
spirit of the law, which had been insensibly mollified before the time
of Justinian.
II. The original right of property can only be justified by the accident
or merit of prior occupancy; and on this foundation it is wisely
established by the philosophy of the civilians. The savage who hollows a
tree, inserts a sharp stone into a wooden handle, or applies a string to
an elastic branch becomes in a state of nature the just proprietor of
the canoe, the bow, or the hatchet. The materials were common to all,
the new form, the produce of his time and simple industry, belong solely
to himself. His hungry brethren cannot, without a sense of their own
injustice, extort from the hunter the game of the forest overtaken or
slain by his personal strength and dexterity. If his provident care
preserves and multiplies the tame animals, whose nature is tractable to
the arts of education, he acquires a perpetual title to the use and
service of their numerous progeny, which derives its existence from him
alone. If he encloses and cultivates a field for their sustenance and
his own, a barren waste is converted into a fertile soil; the seed, the
manure, the labor, create a new value, and the rewards of harvest are
painfully earned by the fatigues of the revolving year.
In the successive states of society the hunter, the shepherd, the
husbandman, may defend their possessions by two reasons which forcibly
appeal to the feelings of the human mind: that whatever they enjoy is
the fruit of their own industry; and that every man who envies their
felicity may purchase similar acquisitions by the exercise of similar
diligence. Such, in truth, may be the freedom and plenty of a small
colony cast on a fruitful island. But the colony multiplies, while the
space still continues the same; the common rights, the equal inheritance
of mankind, are engrossed by the bold and crafty; each field and forest
is circumscribed by the landmarks of a jealous master; and it is the
peculiar praise of the Roman jurisprudence that it asserts the claim of
the first occupant to the wild animals of the earth, the air, and the
waters. In the progress from primitive equity to final injustice, the
steps are silent, the shades are almost imperceptible, and the absolute
monopoly is guarded by positive laws and artificial reason. The active,
insatiable principle of self-love can alone supply the arts of life and
the wages of industry; and as soon as civil government and exclusive
property have been introduced, they become necessary to the existence of
the human race.