In Judea, the creditor could take the children of the debtor, and keep
them as his slaves, to labour until the debt was paid; and among the
Gentiles this right was not only in existence, but in most cases the
child could be subjected to perpetual slavery, and in many instances the
debtor himself could thus be reduced to bondage. Improvement had been
made in this respect, as will be seen by the following document, found
in lib. iii. indic. xii. epist. xliii.
* * * * *
GREGORIUS, Fantino Defensori:
_De Cosma Syro multis debitis obligato._
Lator præsentium, Cosmas Syrus, in negotio quod agebat, debitum se
contraxisse perhibuit, quod, et multis aliis et lacrymis ejus
attestantibus, verum esse credidimus. Et quia 150 solidos debebat, volui
ut creditores illius cum eo aliquid paciscerentur: quoniam et lex habet,
ut homo liber pro debito nullatenus teneatur, si res defuerint, quæ
possunt eidem debito addici, creditores ergo suos, ut asserit, ad 80
solidos consentire possibile est. Sed quia multum est ut a nil habente
homine 80 solidos petant, 60 solidos per notarium tuum tibi
transmisimus; ut cum eisdem creditoribus subtiliter loquaris, rationem
reddas, quia filium ejus quem tenere dicuntur, secundum leges tenere non
possunt. Et si potest fieri, ad aliquod minus quam nos dedimus,
condescendant. Et quidquid de eisdem 60 solidis remanserit, ipsi trade,
ut cum filio suo exinde vivere valeat. Si autem nil remanet, ad eamdem
summam debitum ejus incidere stude, ut possit sibi libere postmodum
laborare. Hoc tamen solerter age, ut acceptis solidis ei plenariam
munitionem scripto faciant.
* * * * *
“GREGORY, to the Proctor Fantinus:
_Of Cosmas, the Syrian, deeply in debt._
“The bearer hereof, Cosmas the Syrian, has informed us that he
contracted many debts in the business in which he was engaged. We
believe it to be true; he has testified it with many tears and
witnesses. And, as he owes 150 shillings, I wish his creditors would
make some composition with him. And as the law regulates that no freeman
shall be held for a debt, if there be no goods which can be attached for
that debt, he says that his creditors may be induced to accept 80
shillings; but it is extravagant on their part to ask 80 shillings from
a man who has nothing. We have sent you 60 shillings by your notary,
that you may have a discrete conference with his creditors, and explain
matters to them, because they cannot legally hold his son, whom they are
said to keep. And if they will come down to any thing less, by your
efforts, than the sum that we send, should any thing remain of the 60
shillings, give it to him to help to support himself and his son; should
nothing be left, exert yourself to have his debt cancelled by that
amount sent, so that henceforth he may be free to exert himself for his
own benefit. But be careful, in doing this, to get for him a full
receipt and discharge in writing for this money that they get.”
The law to which the pope refers, and by which the persons of the
unfortunate debtor and his family were protected, is found in Novell.
134, c. vii., and was enacted by Justinian I. in 541.
_Ne quis creditor filium debitoris pro debito retinere præsumat._
Quia verò et hujuscemodi iniquitatem in diversis locis nostræ reipublicæ
cognovimus admitti, quia, creditores filios debitorum præsumunt retinere
aut in pignus, aut in servile ministerium, aut in conductionem: hoc
modis omnibus prohibemus: et jubemus ut si quis hujusmodi aliquid
deliquerit, non solum debito cadat, sed tantam aliam quantitatem
adjiciat dandam ei qui retentus est ab eo, aut parentibus ejus, et post
hoc etiam corporalibus pœnis ipsum subdi a loci judice; quia personam
liberam pro debito præsumpserit retinere aut locare aut pignorare.
“That no creditor should presume to retain for debt the son of the
debtor.
“And because we have known that this sort of injustice has been allowed
in several places of our commonwealth,—that creditors presume to keep
the children of their debtors, either in pledge or in slavish
employment, or to hire them out. We by all means forbid all this: and we
order that, if any person shall be guilty of any of these things, not
only shall he lose the debt, but he shall in addition give an equal sum,
to be paid to the person that was held by him, or to the parents of such
person; and, beyond this, he shall be subjected to corporal punishment
by the local judge, because he presumed to restrain or to hire out, or
keep in pledge, a free person.”
The following document will exhibit in some degree the origin of the
principle of escheats to be found in slavery. The slave being freed upon
certain conditions, if they were not fulfilled the master of course
re-entered upon his rights. The manumitted slave was sometimes allowed,
not only freedom, but a certain gift, and often with the condition that,
if he had not lawful issue, the gift, and its increase by his industry,
should revert to the master or his heir. So, in after times, the lord of
the soil, or the monarch, gave portions of land to his vassals upon
condition of service, and, upon failure of service or of heirs, his land
escheated, or went back to the lord of the soil.
The document is found in lib. v. indic. xiv. epist. xii.
* * * * *
GREGORIUS, Montanæ et Thomæ:
_Libertatem dat, et eos cives Romanos efficit._
Cum Redemptor noster totius conditor creaturæ ad hoc propitiatus humanam
voluerit carnem assumere, ut divinitatis suæ gratia, dirupto quo
tenebamur captivi vinculo servitutis, pristinæ nos restitueret
libertati: salubriter agitur, si homines quos ab initio natura liberos
protulit, et jus gentium jugo substituit servitutis, in eâ naturâ in quâ
nati fuerant, manumittentis beneficio, libertati reddantur. Atque ideo
pietatis intuitu, et hujus rei consideratione permoti, vos Montanam
atque Thomam famulos sanctæ Romanæ ecclesiæ, cui, Deo adjutore,
deservimus, liberos ex hac die, civesque Romanos efficimus, omneque
vestrum vobis relaxamus servitutis peculium. Et quia tu, Montana, animum
te ad conversionem fateris appulisse monachicam: idcirco duas uncias,
quas tibi quondam Gaudiosus presbyter per supremæ suæ voluntatis
arbitrium institutionis modo noscitur reliquisse, hac die tibi donamus,
atque concedimus omnia scilicet monasterio Sancti Laurentii cui
Constantina abbatissa præest, in quo converti Deo miserante festinas,
modis omnibus profutura. Si quid vero de rebus suprascripti Gaudiosi te
aliquomodo celasse constituerit, id totum ecclesiæ nostræ juri sine
dubio mancipetur. Tibi autem, suprascripto Thomæ, quem pro libertatis
tuæ cumulo etiam inter notarios volumus militare, quinque uncias, quas
præfatus Gaudiosus presbyter per ultimam voluntatem hereditario tibi
nomine dereliquit, simul et sponsalia quæ matri tuæ conscripserat,
similiter hac die per hujus manumissionis paginam donamus, atque
concedimus, eâ sane lege, atque conditione subnexâ, ut si sine filiis
legitimis, hoc est, de legitimo susceptis conjugio, te obire contigerit,
omnia quæ tibi concessimus, ad jus sanctæ Romanæ ecclesiæ sine
diminutione aliquâ revertantur. Si autem filios de conjugio, sicut
diximus, cognitos lege susceperis, eosque superstites reliqueris,
earumdem to rerum dominum sine quadam statuimus conditione persistere,
et testamentum de his faciendi liberam tibi tribuimus potestatem. Hæc
igitur, quæ per hujus manumissionis chartulam statuimus, atque
concessimus, nos successoresque nostros, sine aliquâ scitote
refragatione servare. Nam justitiæ ac rationis ordo suadet, ut qui sua a
successoribus desiderat mandata servari, decessoris sui proculdubio
voluntatem et statuta custodiat. Hanc autem manumissionis paginam
Paterio notario scribendam dictavimus, et propriâ manu unà cum tribus
presbyteris prioribus et tribus diaconis pro plenissimâ firmitate
subscripsimus, vobisque tradidimus. Actum in urbe Româ.
* * * * *
“GREGORY to Montana and Thomas:
“He emancipates them, and makes them Roman citizens.
“Since our Redeemer, the Maker of every creature, mercifully vouchsafed
to take human flesh, that, breaking the chain by which we were held
captive, he may, by the grace of his divinity, restore us to our first
liberty, it is then salutary that they whom he at first made free by
nature, and whom the law of nations subjected to the yoke of slavery,
should in the nature in which they were born be restored to liberty by
that kindness of their emancipator. And therefore, moved by this
consideration, and in respect to piety, we make you, Montana and Thomas,
slaves of the holy Roman church, in whose service we are by God’s help
engaged, from this day forward free and Roman citizens. And we release
to you all your allowance of slavery.
“And because you, Montana, have declared that it was your wish to enter
into the monastic state, we give and grant to you this day two ounces,
which it is well known were formerly left as a legacy to you for
inheritance by the priest Gaudiosus, to be by all means available to the
monastery of St. Lawrence, over which Constantina is superioress, and
into which you desire anxiously by God’s mercy to be admitted. But
should it appear that you have concealed any of the effects of the said
Gaudiosus, the entire thereof doubtless is by right for the service of
our church.
“But to you, the said Thomas, whom, in addition to the bestowal of
freedom, we desire to be enrolled in service among our notaries, we
likewise this day give and grant, by this charter of manumission, five
ounces which the same Gaudiosus the priest left to you by name in his
last will, and the portion which he assigned for your mother, but upon
this ground and condition well attached, that, should you die without
issue by lawful marriage, all those goods which we have granted to you
shall come back, without any diminution, under the dominion of the holy
Roman church; but should you leave behind you children lawfully
recognised from your marriage, we give to you full power to hold the
same effects as their owner, and without any condition, and to make free
disposition of the same by will.
“Know you, therefore, that what we have thus, by this charter of
manumission, enacted and granted to you, bind, without any gainsay,
ourselves and our successors for its observance. For the order of
justice and of reason requires that he who desires his own commands to
be observed by his successors, should also doubtless observe the will
and the statutes of his predecessor.
“We have dictated this writing of manumission to be copied by our notary
Paterius, and have for its most perfect stability subscribed it with our
hand, and with those of three of the more dignified priests and three
deacons, and delivered them to you.
“Done in the city of Rome, &c.”
* * * * *
One of the subjects which at all times caused slavery to be surrounded
with great difficulties was the result of marriage. The liability to
separation of those married was a more galling affliction in the
Christian law, where the Saviour made marriage indissoluble, and it
often happened that an avaricious or capricious owner cared as little
for the marriage bond as he did for the natural tie of affection. Hence,
as Christianity became the religion of the state, or of the great body
of the people, it was imperatively demanded that some restraint should
be placed upon that absolute power which the owners sometimes abused, of
wantonly making these separations. On the other hand, the association of
the sexes made marriage desirable: it was ordained by God to be the
general state of the bulk of mankind, and even the self-interest or the
avarice of the master calculated upon its results. Then again the slave
dreaded separation, not only because of the violence committed on the
most sacred affections, but also because, though the husband and wife
should be separated by impassable barriers, yet the bond of their union
subsisted, and could be severed by death alone.
This was a strong temptation to both master and slave to prefer
concubinage to wedlock.
Another difficulty arose, in cases of the colonist, by reason of the
claims of the several owners where colonists of distinct estates and
different owners intermarried. In the case of perfect slaves, the child
generally followed the mother, both as regarded condition and property.
This was not, however, universally the case. But the owners of colonized
lands set up different claims. At length the dispute was settled in the
Roman Empire by a law of Justinian, in 539, Novell. clxii. cap. iii.,
and confirmed by a decision in a case brought up by the church-wardens
of Apamea, in Phrygia, in 541, on the kalends of March, by dividing
equally the progeny between the estates to which the parents belonged,
giving the preference, in all cases of uneven number, to that estate to
which the mother was attached. Nov. clvii. tit. xxxix.
The following law concerning marriages and the separation of married
persons from each other, and of children from their parents, is of the
same date.
NOVELL. CLVII. _De Rusticis qui in alienis prædiis nuptias contrahunt._
Tit. xl.
Imp. Justin. August. Lazaro Comiti Orientis.
Præfatio. Ex his quæ diverso modo ad nos relata sunt, didicimus in
Mesopotamiâ et Osdroenâ provinciis quidquam delinqui, nostris plane
temporibus indignum: consuetudinem etiam apud ipsos esse, ut qui ex
diversis originem trahant prædiis, nuptias inter se contrahant. Inde
sane conari dominos, de facto jam contractas nuptias dissolvere, aut
procreatos filios a parentibus abstrahere, exindeque totum ilium locum
misere affligi, dum et rusticani viri et mulieres ex unâ parte
distrahantur, et proles his adimitur, qui in lucem produxerunt, et solâ
nostrâ opus esse providentiâ.
Cap. I. Sancimus igitur, ut prædiorum domini de cætero rusticos suos,
prout voluerint, conservent: neque quisquam eos qui jam conjuncti sunt
possit secundum consuetudinem prius obtinentem divellere, aut compellere
ut terram ad ipsos pertinentem colant, abstrahereve a parentibus filios
prætextu conditionis colonariæ. Sed et si quid hujusmodi forte jam
factum est, corrigi hoc simul, et restitui efficies, sive filios
abstrahi contigerit, sive etiam mulieres, nempe vel a parentibus, vel
contubernii consortibus: eo, qui reliquo deinceps tempore hujusmodi
aliquid facere præsumpserit, etiam de ipso prædio in periculum vocando.
Quare libera sunto contubernia metu, qui dudum ipsis immittitur, et
parentes habento ex hac jussione filios suos: nequeuntibus prædiorum
dominis subtilibus contendere rationibus, et vel nuptias contrahentes
vel filios abstrahere. Qui enim tale quid facere præsumpserit, etiam de
ipso prædio in periculum veniet, cui eos vindicare rusticos attentat.
Epilogus. Quæ igitur nobis placuerunt, et per sacram hanc pragmaticam
declarantur fornam, eam providentiam habeto magnificentia tua, tibique
obtemperans cohors, et qui pro tempore eundem magistratum geret; ut ad
effectum deducantur conserventurque, trium librarum auri pœna imminenti
ei, qui ullo unquam tempore hæc transgredi attentaverit. Dat. Kal. Maii,
Constantinop. D.N. Justin. PP. Aug. Bisil. V.C. Cons.
* * * * *
“_Of country persons who contract marriage on divers estates._ The
Emperor JUSTINIAN AUGUSTUS, to Lazarus the Count of the East.
“Preamble. We have learned by relation in various ways, that a
delinquency quite unworthy of our times is allowed in the provinces of
Mesopotamia and of Osdroene. They have a custom of having marriage
contracted between those born on different estates: whence the masters
endeavour to dissolve marriages actually contracted, or to take away
from the parents the children who are their issue; upon which account
that entire place is miserably afflicted, while country people, husbands
and wives, are drawn away from each other, and the children whom they
brought into light are taken away from them; and that there needs for
the regulation only our provision.
“Chapter I. Wherefore, we enact, that otherwise the masters of the
aforesaid keep their colonists as they will; but, it shall not be
allowed, by virtue of any custom heretofore introduced and in existence,
to put away from each other those who were married, or to force them to
cultivate the land belonging to themselves, or to take away children
from their parents, under the colour of colonial condition. And you will
be careful that if any thing of this sort has haply been already done,
the same be corrected and restitution made, whether it be that children
were taken away from their parents or women from their consorts of
marriage. And for any who shall in future presume to act in this way, it
shall be at the hazard of losing the estate itself.
“Wherefore, let marriages of servants be exempt from that fear which has
hitherto hung over them: and from the issue of this order, let the
parents have their children. It shall not be competent for the lords of
the estates to strive by any subtle arguments either to take away those
who contract marriage, or their children. For he who shall presume to do
any such thing shall incur the risk of losing that estate for which he
attempts to claim those colonists.
“Epilogue. That therefore which has been good in our view, and is
declared by this sacred pragmatic form, let your magnificence provide to
have carried into execution, and the cohort which obeys you, as also he
who for the time being shall hold the same magisterial office. To the
end, then, that this edict may produce its effect and continue in force,
let him who may at any time violate its enactments be liable to a
penalty of three pounds of gold.
“Given at Constantinople, on the kalends of May, our most pious lord
Justinian being Augustus, and the most renowned Basil being consul.”
To rectify this, it became a principle, where an estate was large and
the colonists numerous, to confine the choice of the servants within the
bounds of the property; and thus marriage had its full sanctity, and
families remained without separation.
We have an instance of the exercise of this right, by Pope St. Gregory,
in a document found in lib. x. indic. v. epist. 28.
* * * * *
GREGORIUS, Romano Defensori.
_De filiis Petri defensoris extra massam in qua nati sunt non
jungendis._
Petrus quem defensorem fecimus, quia de massa juris ecclesiæ nostræ, quæ
Vitelas dicitur, oriundus sit, experientiæ tuæ bene est cognitum. Et
ideo quia circa eum benigni debemus existere, ut tamen ecclesiæ utilitas
non lædatur: hac tibi præeptione mandamus, ut eum districte debeas
admonere, ne filios suos quolibet ingenio vel excusatione foris alicubi
in conjugio sociare præsumat, sed in eâ massâ, cui lege et conditione
ligati sunt, socientur. In quâ re etiam et tuam omnino necesse est
experientiam esse sollicitam, atque eos terrere, ut qualibet occasione
de possessione cui oriundo subjecti sunt exire non debeant. Nam si quis
eorum exinde, quod non credimus, exire præsumpserit; certum illi est
quia noster consensus nunquam illi aderit, ut foris de massâ in quâ nati
sunt, aut habitare aut debeant sociari, sed et superscribi terram eorum.
Atque tunc sciatis vos non leve periculum sustinere, si vobis
negligentibus quisquam ipsorum quidquam de iis quæ prohibemus facere
qualibet sorte tentaverit.
* * * * *
“GREGORY to the Proctor Romanus.
“_Of not marrying the children of Peter the Proctor, without the limits
of the estate upon which they were born._
“You, experienced sir, are well aware that Peter, whom we made a
proctor, is a native of the estate of our church territory which is
called Vitelas. And as our desire is to act towards him with such favour
as is compatible with avoiding any injury to the church, we command you
by this precept, that you should strictly warn him not to presume, under
any pretext or excuse, to have his children joined in wedlock anywhere
but on that estate to which they may be bound by law or by condition. In
which matter it is quite necessary that you, experienced sir, be very
careful, and instil into them a fear to prevent any of them from going
on any account beyond the estate to which they are subject by origin.
For if any one of them shall presume, as we believe he will not, to go
thence, let him be assured that he shall never have our consent either
to dwell or to associate himself without the estate on which he was
born, but that the land of any such person shall be more heavily charged
(_superscribi_). And know you, that if, by your negligence, any of them
shall attempt to do any of those things which we prohibit, you will
incur no small danger.”
* * * * *
Many of the restrictions on marriage that are found in subsequent ages,
under the feudal system, had their origin in this principle, because
indeed the vassal, in feudal times, was but a slave under a more loose
dominion in a mitigated form.
The following document shows that, in the west, the separation of
married persons was very uncommon, (quam sit inauditum atque crudele,
_unheard of and cruel_.) It is found in lib. iii. indic. iii. ep. xii.
* * * * *
GREGORIUS, Maximiano Episcopo Syracusano.
_De uxore cujusdam ablatâ et alteri venumdatâ._
Tanta nobis subinde mala, quæ aguntur in istâ provinciâ, nunciantur, ut
peccatis facientibus, quod avertat omnipotens Deus, celeriter eam
perituram credamus. Præsentium namque portitor veniens lacrymabiliter
quæstus est, ante plurimos annos ab homine nescio quo de possessione
Messanensis ecclesiæ de fontibus se susceptum, et violenter diversis
suasionibus puellæ ipsius junctum, ex quâ juvenculos filios jam habere
se asseruit, et quam nunc violenter huic disjunctam abstulisse dicitur,
atque cuidam alii venumdedisse. Quod si verum est, quam sit inauditum
atque crudele malum, tua bone dilectio perspicit. Ideoque admonemus, ut
hoc tantum nefas sub ea vivacite, quam te in causis piis habere
certissime scimus, requiras atque discutias. Et si ita, ut supradictus
portitor insinuavit, esse cognoveris, non solum quod male factum est, ad
statum pristinum revocare curabis; sed et vindictam, quæ Deum possit
placare, exhibere modis omnibus festinabis. Episcopum vero, qui homines
suos talia agentes corrigere negligit atque emendare, vehementer
aggredere, proponens, quia si denuo talis ad nos de quoquam qui ad eum
pertinet quærela pervenerit, non in eum qui excesserit, sed in ipsum
canonice vindicta procedet.
* * * * *
“GREGORY to Maximian, Bishop of Syracuse.
“_Concerning the wife of some one that was taken away and sold to
another._
“We are told of so many bad things done in that province, that we are
led to believe, which may God forbid, the place must soon be destroyed.
“Now, the bearer of these presents complained to us in a pitiable
manner, that many years ago, some man whom I know not, belonging to the
church of Messina stood as his sponsor at baptism, and prevailed upon
him by extreme urgency to marry his servant, by whom, he says, he has
now young children, and whom now this man has violently taken away and
sold to another. If this be true, you, our beloved, will see plainly how
unheard of and how cruel is the evil. We therefore admonish you to look
into and to sift so great a crime, with that earnestness which we
assuredly know you have in matters of piety: and should you come to know
that the fact is as the aforesaid bearer has stated, you will be careful
not only to bring back to its former state that which was badly done,
but you will quickly, by all means, have that punishment inflicted which
may appease God. Give a severe lecture to the bishop that neglected to
correct or to amend his people who do such things; setting before him
that if a like complaint comes to us again of any one who belongs to
him, canonical process for punishment shall issue, not against the one
that shall have done wrong, but against himself.”
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