reformation. To 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, 93
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 Many of his acts were rescinded by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, 94 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. 95 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. 96 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.
93 (return) [ Apud Homerum patrem omnis virtutis, (1st Praefat.
ad Pandect.) A line of Milton or Tasso would surprise us in an
act of parliament. Quae omnia obtinere sancimus in omne aevum. Of
the first Code, he says, (2d Praefat.,) in aeternum valiturum.
Man and forever!]
94 (return) [ Novellae is a classic adjective, but a barbarous
substantive, (Ludewig, p. 245.) Justinian never collected them
himself; the nine collations, the legal standard of modern
tribunals, consist of ninety-eight Novels; but the number was
increased by the diligence of Julian, Haloander, and Contius,
(Ludewig, p. 249, 258 Aleman. Not in Anecdot. p. 98.)]
95 (return) [ Montesquieu, Considerations sur la Grandeur et la
Decadence des Romains, c. 20, tom. iii. p. 501, in 4to. On this
occasion he throws aside the gown and cap of a President a
Mortier.]
96 (return) [ 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.]
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 Caius
98 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. 9811
97 (return) [ Lactantius, in his Institutes of Christianity, an
elegant and specious work, proposes to imitate the title and
method of the civilians. Quidam prudentes et arbitri aequitatis
Institutiones Civilis Juris compositas ediderunt, (Institut.
Divin. l. i. c. 1.) Such as Ulpian, Paul, Florentinus, Marcian.]
98 (return) [ The emperor Justinian calls him suum, though he
died before the end of the second century. His Institutes are
quoted by Servius, Boethius, Priscian, &c.; and the Epitome by
Arrian is still extant. (See the Prolegomena and notes to the
edition of Schulting, in the Jurisprudentia Ante-Justinianea,
Lugd. Bat. 1717. Heineccius, Hist. J R No. 313. Ludewig, in Vit.
Just. p. 199.)]
9811 (return) [ Gibbon, dividing the Institutes into four parts,
considers the appendix of the criminal law in the last title as a
fourth part.—W.]
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.
Section 61—W.]
106 (return) [ By Justinian, the old law, the jus necis of the
Roman father (Institut. l. iv. tit. ix. No. 7) is reported and
reprobated. Some legal vestiges are left in the Pandects (l.
xliii. tit. xxix. leg. 3, No. 4) and the Collatio Legum Romanarum
et Mosaicarum, (tit. ii. No. 3, p. 189.)]
107 (return) [ 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 Atticae, ii. 2.) The Lessons of the
philosopher Taurus 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 Quadri
garius the annalist.]
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. 108 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. 109 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. 110 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. 111 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. 112 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 113 and Christianity
had been insufficient to eradicate this inhuman practice, till
their gentle influence was fortified by the terrors of capital
punishment. 114
108 (return) [ See the gradual enlargement and security of the
filial peculium in the Institutes, (l. ii. tit. ix.,) the
Pandects, (l. xv. tit. i. l. xli. tit. i.,) and the Code, (l. iv.
tit. xxvi. xxvii.)]
109 (return) [ The examples of Erixo and Arius are related by
Seneca, (de Clementia, i. 14, 15,) the former with horror, the
latter with applause.]
110 (return) [ Quod latronis magis quam patris jure eum
interfecit, nam patria potestas in pietate debet non in
atrocitate consistere, (Marcian. Institut. l. xix. in Pandect. l.
xlviii. tit. ix. leg.5.)]
111 (return) [ The Pompeian and Cornelian laws de sicariis and
parricidis are repeated, or rather abridged, with the last
supplements of Alexander Severus, Constantine, and Valentinian,
in the Pandects (l. xlviii. tit. viii ix,) and Code, (l. ix. tit.
xvi. xvii.) See likewise the Theodosian Code, (l. ix. tit. xiv.
xv.,) with Godefroy’s Commentary, (tom. iii. p. 84—113) who pours
a flood of ancient and modern learning over these penal laws.]
112 (return) [ When the Chremes of Terence reproaches his wife
for not obeying his orders and exposing their infant, he speaks
like a father and a master, and silences the scruples of a
foolish woman. See Apuleius, (Metamorph. l. x. p. 337, edit.
Delphin.)]
113 (return) [ The opinion of the lawyers, and the discretion of
the magistrates, had introduced, in the time of Tacitus, some
legal restraints, which might support his contrast of the boni
mores of the Germans to the bonae leges alibi—that is to say, at
Rome, (de Moribus Germanorum, c. 19.) Tertullian (ad Nationes, l.
i. c. 15) refutes his own charges, and those of his brethren,
against the heathen jurisprudence.]
114 (return) [ The wise and humane sentence of the civilian Paul
(l. ii. Sententiarum in Pandect, 1. xxv. tit. iii. leg. 4) is
represented as a mere moral precept by Gerard Noodt, (Opp. tom.
i. in Julius Paulus, p. 567—558, and Amica Responsio, p.
591-606,) who maintains the opinion of Justus Lipsius, (Opp. tom.
ii. p. 409, ad Belgas. cent. i. epist. 85,) and as a positive
binding law by Bynkershoek, (de Jure occidendi Liberos, Opp. tom.
i. p. 318—340. Curae Secundae, p. 391—427.) In a learned out
angry controversy, the two friends deviated into the opposite
extremes.]
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. 115 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, 116 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 117 (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, 118 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: 119 but as polygamy was
unknown, he could never admit to his bed a fairer or a more
favored partner.
115 (return) [ Dionys. Hal. l. ii. p. 92, 93. Plutarch, in Numa,
p. 140-141.]
116 (return) [ Among the winter frunenta, the triticum, or
bearded wheat; the siligo, or the unbearded; the far, adorea,
oryza, whose description perfectly tallies with the rice of Spain
and Italy. I adopt this identity on the credit of M. Paucton in
his useful and laborious Metrologie, (p. 517—529.)]
117 (return) [ Aulus Gellius (Noctes Atticae, xviii. 6) gives a
ridiculous definition of Aelius Melissus, Matrona, quae semel
materfamilias quae saepius peperit, as porcetra and scropha in
the sow kind. He then adds the genuine meaning, quae in
matrimonium vel in manum convenerat.]
118 (return) [ It was enough to have tasted wine, or to have
stolen the key of the cellar, (Plin. Hist. Nat. xiv. 14.)]
119 (return) [ Solon requires three payments per month. By the
Misna, a daily debt was imposed on an idle, vigorous, young
husband; twice a week on a citizen; once on a peasant; once in
thirty days on a camel-driver; once in six months on a seaman.
But the student or doctor was free from tribute; and no wife, if
she received a weekly sustenance, could sue for a divorce; for
one week a vow of abstinence was allowed. Polygamy divided,
without multiplying, the duties of the husband, (Selden, Uxor
Ebraica, l. iii. c 6, in his works, vol ii. p. 717—720.)]
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. 120 They declined the solemnities of the old nuptiais;
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; 121 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. 122
120 (return) [ On the Oppian law we may hear the mitigating
speech of Vaerius Flaccus, and the severe censorial oration of
the elder Cato, (Liv. xxxiv. l—8.) But we shall rather hear the
polished historian of the eighth, than the rough orators of the
sixth, century of Rome. The principles, and even the style, of
Cato are more accurately preserved by Aulus Gellius, (x. 23.)]
121 (return) [ For the system of Jewish and Catholic matrimony,
see Selden, (Uxor Ebraica, Opp. vol. ii. p. 529—860,) Bingham,
(Christian Antiquities, l. xxii.,) and Chardon, (Hist. des
Sacremens, tom. vi.)]
122 (return) [ The civil laws of marriage are exposed in the
Institutes, (l. i. tit. x.,) the Pandects, (l. xxiii. xxiv.
xxv.,) and the Code, (l. v.;) but as the title de ritu nuptiarum
is yet imperfect, we are obliged to explore the fragments of
Ulpian (tit. ix. p. 590, 591,) and the Collatio Legum Mosaicarum,
(tit. xvi. p. 790, 791,) with the notes of Pithaeus and
Schulting. They find in the Commentary of Servius (on the 1st
Georgia and the 4th Aeneid) two curious passages.]
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; 123 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. 1231 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: 124
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. 125
123 (return) [ According to Plutarch, (p. 57,) Romulus allowed
only three grounds of a divorce—drunkenness, adultery, and false
keys. Otherwise, the husband who abused his supremacy forfeited
half his goods to the wife, and half to the goddess Ceres, and
offered a sacrifice (with the remainder?) to the terrestrial
deities. This strange law was either imaginary or transient.]
1231 (return) [ Montesquieu relates and explains this fact in a
different marnes Esprit des Loix, l. xvi. c. 16.—G.]
124 (return) [ In the year of Rome 523, Spurius Carvilius Ruga
repudiated a fair, a good, but a barren, wife, (Dionysius Hal. l.
ii. p. 93. Plutarch, in Numa, p. 141; Valerius Maximus, l. ii. c.
1; Aulus Gellius, iv. 3.) He was questioned by the censors, and
hated by the people; but his divorce stood unimpeached in law.]
125 (return) [—Sic fiunt octo mariti Quinque per autumnos.
Juvenal, Satir. vi. 20.—A rapid succession, which may yet be
credible, as well as the non consulum numero, sed maritorum annos
suos computant, of Seneca, (de Beneficiis, iii. 16.) Jerom saw at
Rome a triumphant husband bury his twenty-first wife, who had
interred twenty-two of his less sturdy predecessors, (Opp. tom.
i. p. 90, ad Gerontiam.) But the ten husbands in a month of the
poet Martial, is an extravagant hyperbole, (l. 71. epigram 7.)]
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, 126 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; 127 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 proetor, 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. 128 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,
129 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, 130 the theologians were divided,
131 and the ambiguous word, which contains the precept of Christ,
is flexible to any interpretation that the wisdom of a legislator
can demand.
126 (return) [ Sacellum Viriplacae, (Valerius Maximus, l. ii. c.
1,) in the Palatine region, appears in the time of Theodosius, in
the description of Rome by Publius Victor.]
127 (return) [ Valerius Maximus, l. ii. c. 9. With some propriety
he judges divorce more criminal than celibacy: illo namque
conjugalia sacre spreta tantum, hoc etiam injuriose tractata.]
128 (return) [ See the laws of Augustus and his successors, in
Heineccius, ad Legem Papiam-Poppaeam, c. 19, in Opp. tom. vi. P.
i. p. 323—333.]
129 (return) [ Aliae sunt leges Caesarum, aliae Christi; aliud
Papinianus, aliud Paulus nocter praecipit, (Jerom. tom. i. p.
198. Selden, Uxor Ebraica l. iii. c. 31 p. 847—853.)]
130 (return) [ The Institutes are silent; but we may consult the
Codes of Theodosius (l. iii. tit. xvi., with Godefroy’s
Commentary, tom. i. p. 310—315) and Justinian, (l. v. tit.
xvii.,) the Pandects (l. xxiv. tit. ii.) and the Novels, (xxii.
cxvii. cxxvii. cxxxiv. cxl.) Justinian fluctuated to the last
between civil and ecclesiastical law.]
131 (return) [ In pure Greek, it is not a common word; nor can
the proper meaning, fornication, be strictly applied to
matrimonial sin. In a figurative sense, how far, and to what
offences, may it be extended? Did Christ speak the Rabbinical or
Syriac tongue? Of what original word is the translation? How
variously is that Greek word translated in the versions ancient
and modern! There are two (Mark, x. 11, Luke, xvi. 18) to one
(Matthew, xix. 9) that such ground of divorce was not excepted by
Jesus. Some critics have presumed to think, by an evasive answer,
he avoided the giving offence either to the school of Sammai or
to that of Hillel, (Selden, Uxor Ebraica, l. iii. c. 18—22, 28,
31.) * Note: But these had nothing to do with the question of a
divorce made by judicial authority.—Hugo.]
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 132 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 lawgivers
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, 1321 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, 133 to live the concubines of Mark Antony and Titus.
134 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 civilians, 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 faithfulness and fidelity they had
already tried. 1341 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 only 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. 135
1351
132 (return) [ The principles of the Roman jurisprudence are
exposed by Justinian, (Institut. t. i. tit. x.;) and the laws and
manners of the different nations of antiquity concerning
forbidden degrees, &c., are copiously explained by Dr. Taylor in
his Elements of Civil Law, (p. 108, 314—339,) a work of amusing,
though various reading; but which cannot be praised for
philosophical precision.]
1321 (return) [ According to the earlier law, (Gaii Instit. p.
27,) a man might marry his niece on the brother’s, not on the
sister’s, side. The emperor Claudius set the example of the
former. In the Institutes, this distinction was abolished and
both declared illegal.—M.]
133 (return) [ When her father Agrippa died, (A.D. 44,) Berenice
was sixteen years of age, (Joseph. tom. i. Antiquit. Judaic. l.
xix. c. 9, p. 952, edit. Havercamp.) She was therefore above
fifty years old when Titus (A.D. 79) invitus invitam invisit.
This date would not have adorned the tragedy or pastoral of the
tender Racine.]
134 (return) [ The Aegyptia conjux of Virgil (Aeneid, viii. 688)
seems to be numbered among the monsters who warred with Mark
Antony against Augustus, the senate, and the gods of Italy.]
1341 (return) [ The Edict of Constantine first conferred this
right; for Augustus had prohibited the taking as a concubine a
woman who might be taken as a wife; and if marriage took place
afterwards, this marriage made no change in the rights of the
children born before it; recourse was then had to adoption,
properly called arrogation.—G.]
135 (return) [ The humble but legal rights of concubines and
natural children are stated in the Institutes, (l. i. tit. x.,)
the Pandects, (l. i. tit. vii.,) the Code, (l. v. tit. xxv.,) and
the Novels, (lxxiv. lxxxix.) The researches of Heineccius and
Giannone, (ad Legem Juliam et Papiam-Poppaeam, c. iv. p. 164-175.
Opere Posthume, p. 108—158) illustrate this interesting and
domestic subject.]
1351 (return) [ See, however, the two fragments of laws in the
newly discovered extracts from the Theodosian Code, published by
M. A. Peyron, at Turin. By the first law of Constantine, the
legitimate offspring could alone inherit; where there were no
near legitimate relatives, the inheritance went to the fiscus.
The son of a certain Licinianus, who had inherited his father’s
property under the supposition that he was legitimate, and had
been promoted to a place of dignity, was to be degraded, his
property confiscated, himself punished with stripes and
imprisonment. By the second, all persons, even of the highest
rank, senators, perfectissimi, decemvirs, were to be declared
infamous, and out of the protection of the Roman law, if born ex
ancilla, vel ancillae filia, vel liberta, vel libertae filia,
sive Romana facta, seu Latina, vel scaenicae filia, vel ex
tabernaria, vel ex tabernariae filia, vel humili vel abjecta, vel
lenonis, aut arenarii filia, vel quae mercimoniis publicis
praefuit. Whatever a fond father had conferred on such children
was revoked, and either restored to the legitimate children, or
confiscated to the state; the mothers, who were guilty of thus
poisoning the minds of the fathers, were to be put to the torture
(tormentis subici jubemus.) The unfortunate son of Licinianus, it
appears from this second law, having fled, had been taken, and
was ordered to be kept in chains to work in the Gynaeceum at
Carthage. Cod. Theodor ab. A. Person, 87—90.—M.]
Chapter XLIV: Idea Of The Roman Jurisprudence.—Part VI.
The relation of guardian and ward, or in Roman words of tutor and
pupil, which covers so many titles of the Institutes and
Pandects, 136 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
praetor 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; 1361 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 praetor, 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 ancient law, which had been insensibly mollified
before the time of Justinian.
136 (return) [ See the article of guardians and wards in the
Institutes, (l. i. tit. xiii.—xxvi.,) the Pandects, (l. xxvi.
xxvii.,) and the Code, (l. v. tit. xxviii.—lxx.)]
1361 (return) [ Gibbon accuses the civilians of having “rashly
fixed the age of puberty at twelve or fourteen years.” It was not
so; before Justinian, no law existed on this subject. Ulpian
relates the discussions which took place on this point among the
different sects of civilians. See the Institutes, l. i. tit. 22,
and the fragments of Ulpian. Nor was the curatorship obligatory
for all minors.—W.]
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. 137 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, belongs 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, insatiate 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. Except in the singular institutions of Sparta,
the wisest legislators have disapproved an agrarian law as a
false and dangerous innovation. Among the Romans, the enormous
disproportion of wealth surmounted the ideal restraints of a
doubtful tradition, and an obsolete statute; a tradition that the
poorest follower of Romulus had been endowed with the perpetual
inheritance of two jugera; 138 a statute which confined the
richest citizen to the measure of five hundred jugera, or three
hundred and twelve acres of land. The original territory of Rome
consisted only of some miles of wood and meadow along the banks
of the Tyber; and domestic exchange could add nothing to the
national stock. But the goods of an alien or enemy were lawfully
exposed to the first hostile occupier; the city was enriched by
the profitable trade of war; and the blood of her sons was the
only price that was paid for the Volscian sheep, the slaves of
Briton, or the gems and gold of Asiatic kingdoms. In the language
of ancient jurisprudence, which was corrupted and forgotten
before the age of Justinian, these spoils were distinguished by
the name of manceps or manicipium, taken with the hand; and
whenever they were sold or emancipated, the purchaser required
some assurance that they had been the property of an enemy, and
not of a fellow-citizen. 139 A citizen could only forfeit his
rights by apparent dereliction, and such dereliction of a
valuable interest could not easily be presumed. Yet, according to
the Twelve Tables, a prescription of one year for movables, and
of two years for immovables, abolished the claim of the ancient
master, if the actual possessor had acquired them by a fair
transaction from the person whom he believed to be the lawful
proprietor. 140 Such conscientious injustice, without any mixture
of fraud or force could seldom injure the members of a small
republic; but the various periods of three, of ten, or of twenty
years, determined by Justinian, are more suitable to the latitude
of a great empire. It is only in the term of prescription that
the distinction of real and personal fortune has been remarked by
the civilians; and their general idea of property is that of
simple, uniform, and absolute dominion. The subordinate
exceptions of use, of usufruct, 141 of servitude, 142 imposed for
the benefit of a neighbor on lands and houses, are abundantly
explained by the professors of jurisprudence. The claims of
property, as far as they are altered by the mixture, the
division, or the transformation of substances, are investigated
with metaphysical subtilty by the same civilians.
137 (return) [ Institut. l. ii. tit i. ii. Compare the pure and
precise reasoning of Caius and Heineccius (l. ii. tit. i. p.
69-91) with the loose prolixity of Theophilus, (p. 207—265.) The
opinions of Ulpian are preserved in the Pandects, (l. i. tit.
viii. leg. 41, No. 1.)]
138 (return) [ The heredium of the first Romans is defined by
Varro, (de Re Rustica, l. i. c. ii. p. 141, c. x. p. 160, 161,
edit. Gesner,) and clouded by Pliny’s declamation, (Hist. Natur.
xviii. 2.) A just and learned comment is given in the
Administration des Terres chez les Romains, (p. 12—66.) Note: On
the duo jugera, compare Niebuhr, vol. i. p. 337.—M.]
139 (return) [ The res mancipi is explained from faint and remote
lights by Ulpian (Fragment. tit. xviii. p. 618, 619) and
Bynkershoek, (Opp tom. i. p. 306—315.) The definition is somewhat
arbitrary; and as none except myself have assigned a reason, I am
diffident of my own.]
140 (return) [ From this short prescription, Hume (Essays, vol.
i. p. 423) infers that there could not then be more order and
settlement in Italy than now amongst the Tartars. By the civilian
of his adversary Wallace, he is reproached, and not without
reason, for overlooking the conditions, (Institut. l. ii. tit.
vi.) * Note: Gibbon acknowledges, in the former note, the
obscurity of his views with regard to the res mancipi. The
interpreters, who preceded him, are not agreed on this point, one
of the most difficult in the ancient Roman law. The conclusions
of Hume, of which the author here speaks, are grounded on false
assumptions. Gibbon had conceived very inaccurate notions of
Property among the Romans, and those of many authors in the
present day are not less erroneous. We think it right, in this
place, to develop the system of property among the Romans, as the
result of the study of the extant original authorities on the
ancient law, and as it has been demonstrated, recognized, and
adopted by the most learned expositors of the Roman law. Besides
the authorities formerly known, such as the Fragments of Ulpian,
t. xix. and t. i. 16. Theoph. Paraph. i. 5, 4, may be consulted
the Institutes of Gaius, i. 54, and ii. 40, et seq. The Roman
laws protected all property acquired in a lawful manner. They
imposed on those who had invaded it, the obligation of making
restitution and reparation of all damage caused by that invasion;
they punished it moreover, in many cases, by a pecuniary fine.
But they did not always grant a recovery against the third
person, who had become bona fide possessed of the property. He
who had obtained possession of a thing belonging to another,
knowing nothing of the prior rights of that person, maintained
the possession. The law had expressly determined those cases, in
which it permitted property to be reclaimed from an innocent
possessor. In these cases possession had the characters of
absolute proprietorship, called mancipium, jus Quiritium. To
possess this right, it was not sufficient to have entered into
possession of the thing in any manner; the acquisition was bound
to have that character of publicity, which was given by the
observation of solemn forms, prescribed by the laws, or the
uninterrupted exercise of proprietorship during a certain time:
the Roman citizen alone could acquire this proprietorship. Every
other kind of possession, which might be named imperfect
proprietorship, was called “in bonis habere.” It was not till
after the time of Cicero that the general name of Dominium was
given to all proprietorship. It was then the publicity which
constituted the distinctive character of absolute dominion. This
publicity was grounded on the mode of acquisition, which the
moderns have called Civil, (Modi adquirendi Civiles.) These modes
of acquisition were, 1. Mancipium or mancipatio, which was
nothing but the solemn delivering over of the thing in the
presence of a determinate number of witnesses and a public
officer; it was from this probably that proprietorship was named,
2. In jure cessio, which was a solemn delivering over before the
praetor. 3. Adjudicatio, made by a judge, in a case of partition.
4. Lex, which comprehended modes of acquiring in particular cases
determined by law; probably the law of the xii. tables; for
instance, the sub corona emptio and the legatum. 5. Usna, called
afterwards usacapio, and by the moderns prescription. This was
only a year for movables; two years for things not movable. Its
primary object was altogether different from that of prescription
in the present day. It was originally introduced in order to
transform the simple possession of a thing (in bonis habere) into
Roman proprietorship. The public and uninterrupted possession of
a thing, enjoyed for the space of one or two years, was
sufficient to make known to the inhabitants of the city of Rome
to whom the thing belonged. This last mode of acquisition
completed the system of civil acquisitions. by legalizing. as it
were, every other kind of acquisition which was not conferred,
from the commencement, by the Jus Quiritium. V. Ulpian. Fragm. i.
16. Gaius, ii. 14. We believe, according to Gaius, 43, that this
usucaption was extended to the case where a thing had been
acquired from a person not the real proprietor; and that
according to the time prescribed, it gave to the possessor the
Roman proprietorship. But this does not appear to have been the
original design of this Institution. Caeterum etiam earum rerum
usucapio nobis competit, quae non a domino nobis tradita fuerint,
si modo eas bona fide acceperimus Gaius, l ii. 43. As to things
of smaller value, or those which it was difficult to distinguish
from each other, the solemnities of which we speak were not
requisite to obtain legal proprietorship. In this case simple
delivery was sufficient. In proportion to the aggrandizement of
the Republic, this latter principle became more important from
the increase of the commerce and wealth of the state. It was
necessary to know what were those things of which absolute
property might be acquired by simple delivery, and what, on the
contrary, those, the acquisition of which must be sanctioned by
these solemnities. This question was necessarily to be decided by
a general rule; and it is this rule which establishes the
distinction between res mancipi and nec mancipi, a distinction
about which the opinions of modern civilians differ so much that
there are above ten conflicting systems on the subject. The
system which accords best with a sound interpretation of the
Roman laws, is that proposed by M. Trekel of Hamburg, and still
further developed by M. Hugo, who has extracted it in the
Magazine of Civil Law, vol. ii. p. 7. This is the system now
almost universally adopted. Res mancipi (by contraction for
mancipii) were things of which the absolute property (Jus
Quiritium) might be acquired only by the solemnities mentioned
above, at least by that of mancipation, which was, without doubt,
the most easy and the most usual. Gaius, ii. 25. As for other
things, the acquisition of which was not subject to these forms,
in order to confer absolute right, they were called res nec
mancipi. See Ulpian, Fragm. xix. 1. 3, 7. Ulpian and Varro
enumerate the different kinds of res mancipi. Their enumerations
do not quite agree; and various methods of reconciling them have
been attempted. The authority of Ulpian, however, who wrote as a
civilian, ought to have the greater weight on this subject. But
why are these things alone res mancipi? This is one of the
questions which have been most frequently agitated, and on which
the opinions of civilians are most divided. M. Hugo has resolved
it in the most natural and satisfactory manner. “All things which
were easily known individually, which were of great value, with
which the Romans were acquainted, and which they highly
appreciated, were res mancipi. Of old mancipation or some other
solemn form was required for the acquisition of these things, an
account of their importance. Mancipation served to prove their
acquisition, because they were easily distinguished one from the
other.” On this great historical discussion consult the Magazine
of Civil Law by M. Hugo, vol. ii. p. 37, 38; the dissertation of
M. J. M. Zachariae, de Rebus Mancipi et nec Mancipi Conjecturae,
p. 11. Lipsiae, 1807; the History of Civil Law by M. Hugo; and my
Institutiones Juris Romani Privati p. 108, 110. As a general
rule, it may be said that all things are res nec mancipi; the res
mancipi are the exception to this principle. The praetors changed
the system of property by allowing a person, who had a thing in
bonis, the right to recover before the prescribed term of
usucaption had conferred absolute proprietorship. (Pauliana in
rem actio.) Justinian went still further, in times when there was
no longer any distinction between a Roman citizen and a stranger.
He granted the right of recovering all things which had been
acquired, whether by what were called civil or natural modes of
acquisition, Cod. l. vii. t. 25, 31. And he so altered the theory
of Gaius in his Institutes, ii. 1, that no trace remains of the
doctrine taught by that civilian.—W.]
141 (return) [ See the Institutes (l. i. tit. iv. v.) and the
Pandects, (l. vii.) Noodt has composed a learned and distinct
treatise de Usufructu, (Opp. tom. i. p. 387—478.)]
142 (return) [ The questions de Servitutibus are discussed in the
Institutes (l. ii. tit. iii.) and Pandects, (l. viii.) Cicero
(pro Murena, c. 9) and Lactantius (Institut. Divin. l. i. c. i.)
affect to laugh at the insignificant doctrine, de aqua de pluvia
arcenda, &c. Yet it might be of frequent use among litigious
neighbors, both in town and country.]
The personal title of the first proprietor must be determined by
his death: but the possession, without any appearance of change,
is peaceably continued in his children, the associates of his
toil, and the partners of his wealth. This natural inheritance
has been protected by the legislators of every climate and age,
and the father is encouraged to persevere in slow and distant
improvements, by the tender hope, that a long posterity will
enjoy the fruits of his labor. The principle of hereditary
succession is universal; but the order has been variously
established by convenience or caprice, by the spirit of national
institutions, or by some partial example which was originally
decided by fraud or violence. The jurisprudence of the Romans
appear to have deviated from the inequality of nature much less
than the Jewish, 143 the Athenian, 144 or the English
institutions. 145 On the death of a citizen, all his descendants,
unless they were already freed from his paternal power, were
called to the inheritance of his possessions. The insolent
prerogative of primogeniture was unknown; the two sexes were
placed on a just level; all the sons and daughters were entitled
to an equal portion of the patrimonial estate; and if any of the
sons had been intercepted by a premature death, his person was
represented, and his share was divided, by his surviving
children. On the failure of the direct line, the right of
succession must diverge to the collateral branches. The degrees
of kindred 146 are numbered by the civilians, ascending from the
last possessor to a common parent, and descending from the common
parent to the next heir: my father stands in the first degree, my
brother in the second, his children in the third, and the
remainder of the series may be conceived by a fancy, or pictured
in a genealogical table. In this computation, a distinction was
made, essential to the laws and even the constitution of Rome;
the agnats, or persons connected by a line of males, were called,
as they stood in the nearest degree, to an equal partition; but a
female was incapable of transmitting any legal claims; and the
cognats of every rank, without excepting the dear relation of a
mother and a son, were disinherited by the Twelve Tables, as
strangers and aliens. Among the Romans agens or lineage was
united by a common name and domestic rites; the various cognomens
or surnames of Scipio, or Marcellus, distinguished from each
other the subordinate branches or families of the Cornelian or
Claudian race: the default of the agnats, of the same surname,
was supplied by the larger denomination of gentiles; and the
vigilance of the laws maintained, in the same name, the perpetual
descent of religion and property. A similar principle dictated
the Voconian law, 147 which abolished the right of female
inheritance. As long as virgins were given or sold in marriage,
the adoption of the wife extinguished the hopes of the daughter.
But the equal succession of independent matrons supported their
pride and luxury, and might transport into a foreign house the
riches of their fathers.
While the maxims of Cato 148 were revered, they tended to
perpetuate in each family a just and virtuous mediocrity: till
female blandishments insensibly triumphed; and every salutary
restraint was lost in the dissolute greatness of the republic.
The rigor of the decemvirs was tempered by the equity of the
praetors. Their edicts restored and emancipated posthumous
children to the rights of nature; and upon the failure of the
agnats, they preferred the blood of the cognats to the name of
the gentiles whose title and character were insensibly covered
with oblivion. The reciprocal inheritance of mothers and sons was
established in the Tertullian and Orphitian decrees by the
humanity of the senate. A new and more impartial order was
introduced by the Novels of Justinian, who affected to revive the
jurisprudence of the Twelve Tables. The lines of masculine and
female kindred were confounded: the descending, ascending, and
collateral series was accurately defined; and each degree,
according to the proximity of blood and affection, succeeded to
the vacant possessions of a Roman citizen. 149
143 (return) [ Among the patriarchs, the first-born enjoyed a
mystic and spiritual primogeniture, (Genesis, xxv. 31.) In the
land of Canaan, he was entitled to a double portion of
inheritance, (Deuteronomy, xxi. 17, with Le Clerc’s judicious
Commentary.)]
144 (return) [ At Athens, the sons were equal; but the poor
daughters were endowed at the discretion of their brothers. See
the pleadings of Isaeus, (in the viith volume of the Greek
Orators,) illustrated by the version and comment of Sir William
Jones, a scholar, a lawyer, and a man of genius.]
145 (return) [ In England, the eldest son also inherits all the
land; a law, says the orthodox Judge Blackstone, (Commentaries on
the Laws of England, vol. ii. p. 215,) unjust only in the opinion
of younger brothers. It may be of some political use in
sharpening their industry.]
146 (return) [ Blackstone’s Tables (vol. ii. p. 202) represent
and compare the decrees of the civil with those of the canon and
common law. A separate tract of Julius Paulus, de gradibus et
affinibus, is inserted or abridged in the Pandects, (l. xxxviii.
tit. x.) In the viith degrees he computes (No. 18) 1024 persons.]
147 (return) [ The Voconian law was enacted in the year of Rome
584. The younger Scipio, who was then 17 years of age,
(Frenshemius, Supplement. Livian. xlvi. 40,) found an occasion of
exercising his generosity to his mother, sisters, &c. (Polybius,
tom. ii. l. xxxi. p. 1453—1464, edit Gronov., a domestic
witness.)]
148 (return) [ Legem Voconiam (Ernesti, Clavis Ciceroniana) magna
voce bonis lateribus (at lxv. years of age) suasissem, says old
Cato, (de Senectute, c. 5,) Aulus Gellius (vii. 13, xvii. 6) has
saved some passages.]
149 (return) [ See the law of succession in the Institutes of
Caius, (l. ii. tit. viii. p. 130—144,) and Justinian, (l. iii.
tit. i.—vi., with the Greek version of Theophilus, p. 515-575,
588—600,) the Pandects, (l. xxxviii. tit. vi.—xvii.,) the Code,
(l. vi. tit. lv.—lx.,) and the Novels, (cxviii.)]
The order of succession is regulated by nature, or at least by
the general and permanent reason of the lawgiver: but this order
is frequently violated by the arbitrary and partial wills, which
prolong the dominion of the testator beyond the grave. 150 In the
simple state of society, this last use or abuse of the right of
property is seldom indulged: it was introduced at Athens by the
laws of Solon; and the private testaments of the father of a
family are authorized by the Twelve Tables. Before the time of
the decemvirs, 151 a Roman citizen exposed his wishes and motives
to the assembly of the thirty curiae or parishes, and the general
law of inheritance was suspended by an occasional act of the
legislature. After the permission of the decemvirs, each private
lawgiver promulgated his verbal or written testament in the
presence of five citizens, who represented the five classes of
the Roman people; a sixth witness attested their concurrence; a
seventh weighed the copper money, which was paid by an imaginary
purchaser; and the estate was emancipated by a fictitious sale
and immediate release. This singular ceremony, 152 which excited
the wonder of the Greeks, was still practised in the age of
Severus; but the praetors had already approved a more simple
testament, for which they required the seals and signatures of
seven witnesses, free from all legal exception, and purposely
summoned for the execution of that important act. A domestic
monarch, who reigned over the lives and fortunes of his children,
might distribute their respective shares according to the degrees
of their merit or his affection; his arbitrary displeasure
chastised an unworthy son by the loss of his inheritance, and the
mortifying preference of a stranger. But the experience of
unnatural parents recommended some limitations of their
testamentary powers. A son, or, by the laws of Justinian, even a
daughter, could no longer be disinherited by their silence: they
were compelled to name the criminal, and to specify the offence;
and the justice of the emperor enumerated the sole causes that
could justify such a violation of the first principles of nature
and society. 153 Unless a legitimate portion, a fourth part, had
been reserved for the children, they were entitled to institute
an action or complaint of inofficious testament; to suppose that
their father’s understanding was impaired by sickness or age; and
respectfully to appeal from his rigorous sentence to the
deliberate wisdom of the magistrate. In the Roman jurisprudence,
an essential distinction was admitted between the inheritance and
the legacies. The heirs who succeeded to the entire unity, or to
any of the twelve fractions of the substance of the testator,
represented his civil and religious character, asserted his
rights, fulfilled his obligations, and discharged the gifts of
friendship or liberality, which his last will had bequeathed
under the name of legacies. But as the imprudence or prodigality
of a dying man might exhaust the inheritance, and leave only risk
and labor to his successor, he was empowered to retain the
Falcidian portion; to deduct, before the payment of the legacies,
a clear fourth for his own emolument. A reasonable time was
allowed to examine the proportion between the debts and the
estate, to decide whether he should accept or refuse the
testament; and if he used the benefit of an inventory, the
demands of the creditors could not exceed the valuation of the
effects. The last will of a citizen might be altered during his
life, or rescinded after his death: the persons whom he named
might die before him, or reject the inheritance, or be exposed to
some legal disqualification. In the contemplation of these
events, he was permitted to substitute second and third heirs, to
replace each other according to the order of the testament; and
the incapacity of a madman or an infant to bequeath his property
might be supplied by a similar substitution. 154 But the power of
the testator expired with the acceptance of the testament: each
Roman of mature age and discretion acquired the absolute dominion
of his inheritance, and the simplicity of the civil law was never
clouded by the long and intricate entails which confine the
happiness and freedom of unborn generations.
150 (return) [ That succession was the rule, testament the
exception, is proved by Taylor, (Elements of Civil Law, p.
519-527,) a learned, rambling, spirited writer. In the iid and
iiid books, the method of the Institutes is doubtless
preposterous; and the Chancellor Daguesseau (Oeuvres, tom. i. p.
275) wishes his countryman Domat in the place of Tribonian. Yet
covenants before successions is not surely the natural order of
civil laws.]
151 (return) [ Prior examples of testaments are perhaps fabulous.
At Athens a childless father only could make a will, (Plutarch,
in Solone, tom. i. p. 164. See Isaeus and Jones.)]
152 (return) [ The testament of Augustus is specified by
Suetonius, (in August, c. 101, in Neron. c. 4,) who may be
studied as a code of Roman antiquities. Plutarch (Opuscul. tom.
ii. p. 976) is surprised. The language of Ulpian (Fragment. tit.
xx. p. 627, edit. Schulting) is almost too exclusive—solum in usu
est.]
153 (return) [ Justinian (Novell. cxv. No. 3, 4) enumerates only
the public and private crimes, for which a son might likewise
disinherit his father. Note: Gibbon has singular notions on the
provisions of Novell. cxv. 3, 4, which probably he did not
clearly understand.—W]
154 (return) [ The substitutions of fidei-commissaires of the
modern civil law is a feudal idea grafted on the Roman
jurisprudence, and bears scarcely any resemblance to the ancient
fidei-commissa, (Institutions du Droit Francois, tom. i. p.
347-383. Denissart, Decisions de Jurisprudence, tom. iv. p.
577-604.) They were stretched to the fourth degree by an abuse of
the clixth Novel; a partial, perplexed, declamatory law.]
Conquest and the formalities of law established the use of
codicils. If a Roman was surprised by death in a remote province
of the empire, he addressed a short epistle to his legitimate or
testamentary heir; who fulfilled with honor, or neglected with
impunity, this last request, which the judges before the age of
Augustus were not authorized to enforce. A codicil might be
expressed in any mode, or in any language; but the subscription
of five witnesses must declare that it was the genuine
composition of the author. His intention, however laudable, was
sometimes illegal; and the invention of fidei-commissa, or
trusts, arose from the struggle between natural justice and
positive jurisprudence. A stranger of Greece or Africa might be
the friend or benefactor of a childless Roman, but none, except a
fellow-citizen, could act as his heir. The Voconian law, which
abolished female succession, restrained the legacy or inheritance
of a woman to the sum of one hundred thousand sesterces; 155 and
an only daughter was condemned almost as an alien in her father’s
house. The zeal of friendship, and parental affection, suggested
a liberal artifice: a qualified citizen was named in the
testament, with a prayer or injunction that he would restore the
inheritance to the person for whom it was truly intended. Various
was the conduct of the trustees in this painful situation: they
had sworn to observe the laws of their country, but honor
prompted them to violate their oath; and if they preferred their
interest under the mask of patriotism, they forfeited the esteem
of every virtuous mind. The declaration of Augustus relieved
their doubts, gave a legal sanction to confidential testaments
and codicils, and gently unravelled the forms and restraints of
the republican jurisprudence. 156 But as the new practice of
trusts degenerated into some abuse, the trustee was enabled, by
the Trebellian and Pegasian decrees, to reserve one fourth of the
estate, or to transfer on the head of the real heir all the debts
and actions of the succession. The interpretation of testaments
was strict and literal; but the language of trusts and codicils
was delivered from the minute and technical accuracy of the
civilians. 157
155 (return) [ Dion Cassius (tom. ii. l. lvi. p. 814, with
Reimar’s Notes) specifies in Greek money the sum of 25,000
drachms.]
156 (return) [ The revolutions of the Roman laws of inheritance
are finely, though sometimes fancifully, deduced by Montesquieu,
(Esprit des Loix, l. xxvii.)]
157 (return) [ Of the civil jurisprudence of successions,
testaments, codicils, legacies, and trusts, the principles are
ascertained in the Institutes of Caius, (l. ii. tit. ii.—ix. p.
91—144,) Justinian, (l. ii. tit. x.—xxv.,) and Theophilus, (p.
328—514;) and the immense detail occupies twelve books
(xxviii.—xxxix.) of the Pandects.] III. The general duties of
mankind are imposed by their public and private relations: but
their specific obligations to each other can only be the effect
of, 1. a promise, 2. a benefit, or 3. an injury: and when these
obligations are ratified by law, the interested party may compel
the performance by a judicial action. On this principle, the
civilians of every country have erected a similar jurisprudence,
the fair conclusion of universal reason and justice. 158
158 (return) [ The Institutes of Caius, (l. ii. tit. ix. x. p.
144—214,) of Justinian, (l. iii. tit. xiv.—xxx. l. iv. tit.
i.—vi.,) and of Theophilus, (p. 616—837,) distinguish four sorts
of obligations—aut re, aut verbis, aut literis aut consensu: but
I confess myself partial to my own division. Note: It is not at
all applicable to the Roman system of contracts, even if I were
allowed to be good.—M.]
Chapter XLIV: Idea Of The Roman Jurisprudence.—Part VII.
1. The goddess of faith (of human and social faith) was
worshipped, not only in her temples, but in the lives of the
Romans; and if that nation was deficient in the more amiable
qualities of benevolence and generosity, they astonished the
Greeks by their sincere and simple performance of the most
burdensome engagements. 159 Yet among the same people, according
to the rigid maxims of the patricians and decemvirs, a naked
pact, a promise, or even an oath, did not create any civil
obligation, unless it was confirmed by the legal form of a
stipulation. Whatever might be the etymology of the Latin word,
it conveyed the idea of a firm and irrevocable contract, which
was always expressed in the mode of a question and answer. Do you
promise to pay me one hundred pieces of gold? was the solemn
interrogation of Seius. I do promise, was the reply of
Sempronius. The friends of Sempronius, who answered for his
ability and inclination, might be separately sued at the option
of Seius; and the benefit of partition, or order of reciprocal
actions, insensibly deviated from the strict theory of
stipulation. The most cautious and deliberate consent was justly
required to sustain the validity of a gratuitous promise; and the
citizen who might have obtained a legal security, incurred the
suspicion of fraud, and paid the forfeit of his neglect. But the
ingenuity of the civilians successfully labored to convert simple
engagements into the form of solemn stipulations. The praetors,
as the guardians of social faith, admitted every rational
evidence of a voluntary and deliberate act, which in their
tribunal produced an equitable obligation, and for which they
gave an action and a remedy. 160
159 (return) [ How much is the cool, rational evidence of
Polybius (l. vi. p. 693, l. xxxi. p. 1459, 1460) superior to
vague, indiscriminate applause—omnium maxime et praecipue fidem
coluit, (A. Gellius, xx. l.)]
160 (return) [ The Jus Praetorium de Pactis et Transactionibus is
a separate and satisfactory treatise of Gerard Noodt, (Opp. tom.
i. p. 483—564.) And I will here observe, that the universities of
Holland and Brandenburg, in the beginning of the present century,
appear to have studied the civil law on the most just and liberal
principles. * Note: Simple agreements (pacta) formed as valid an
obligation as a solemn contract. Only an action, or the right to
a direct judicial prosecution, was not permitted in every case of
compact. In all other respects, the judge was bound to maintain
an agreement made by pactum. The stipulation was a form common to
every kind of agreement, by which the right of action was given
to this.—W.]
2. The obligations of the second class, as they were contracted
by the delivery of a thing, are marked by the civilians with the
epithet of real. 161 A grateful return is due to the author of a
benefit; and whoever is intrusted with the property of another,
has bound himself to the sacred duty of restitution. In the case
of a friendly loan, the merit of generosity is on the side of the
lender only; in a deposit, on the side of the receiver; but in a
pledge, and the rest of the selfish commerce of ordinary life,
the benefit is compensated by an equivalent, and the obligation
to restore is variously modified by the nature of the
transaction. The Latin language very happily expresses the
fundamental difference between the commodatum and the mutuum,
which our poverty is reduced to confound under the vague and
common appellation of a loan. In the former, the borrower was
obliged to restore the same individual thing with which he had
been accommodated for the temporary supply of his wants; in the
latter, it was destined for his use and consumption, and he
discharged this mutual engagement, by substituting the same
specific value according to a just estimation of number, of
weight, and of measure. In the contract of sale, the absolute
dominion is transferred to the purchaser, and he repays the
benefit with an adequate sum of gold or silver, the price and
universal standard of all earthly possessions. The obligation of
another contract, that of location, is of a more complicated
kind. Lands or houses, labor or talents, may be hired for a
definite term; at the expiration of the time, the thing itself
must be restored to the owner, with an additional reward for the
beneficial occupation and employment. In these lucrative
contracts, to which may be added those of partnership and
commissions, the civilians sometimes imagine the delivery of the
object, and sometimes presume the consent of the parties. The
substantial pledge has been refined into the invisible rights of
a mortgage or hypotheca; and the agreement of sale, for a certain
price, imputes, from that moment, the chances of gain or loss to
the account of the purchaser. It may be fairly supposed, that
every man will obey the dictates of his interest; and if he
accepts the benefit, he is obliged to sustain the expense, of the
transaction. In this boundless subject, the historian will
observe the location of land and money, the rent of the one and
the interest of the other, as they materially affect the
prosperity of agriculture and commerce. The landlord was often
obliged to advance the stock and instruments of husbandry, and to
content himself with a partition of the fruits. If the feeble
tenant was oppressed by accident, contagion, or hostile violence,
he claimed a proportionable relief from the equity of the laws:
five years were the customary term, and no solid or costly
improvements could be expected from a farmer, who, at each moment
might be ejected by the sale of the estate. 162 Usury, 163 the
inveterate grievance of the city, had been discouraged by the
Twelve Tables, 164 and abolished by the clamors of the people. It
was revived by their wants and idleness, tolerated by the
discretion of the praetors, and finally determined by the Code of
Justinian. Persons of illustrious rank were confined to the
moderate profit of four per cent.; six was pronounced to be the
ordinary and legal standard of interest; eight was allowed for
the convenience of manufactures and merchants; twelve was granted
to nautical insurance, which the wiser ancients had not attempted
to define; but, except in this perilous adventure, the practice
of exorbitant usury was severely restrained. 165 The most simple
interest was condemned by the clergy of the East and West; 166
but the sense of mutual benefit, which had triumphed over the law
of the republic, has resisted with equal firmness the decrees of
the church, and even the prejudices of mankind. 167
161 (return) [ The nice and various subject of contracts by
consent is spread over four books (xvii.—xx.) of the Pandects,
and is one of the parts best deserving of the attention of an
English student. * Note: This is erroneously called “benefits.”
Gibbon enumerates various kinds of contracts, of which some alone
are properly called benefits.—W.]
162 (return) [ The covenants of rent are defined in the Pandects
(l. xix.) and the Code, (l. iv. tit. lxv.) The quinquennium, or
term of five years, appears to have been a custom rather than a
law; but in France all leases of land were determined in nine
years. This limitation was removed only in the year 1775,
(Encyclopedie Methodique, tom. i. de la Jurisprudence, p. 668,
669;) and I am sorry to observe that it yet prevails in the
beauteous and happy country where I am permitted to reside.]
163 (return) [ I might implicitly acquiesce in the sense and
learning of the three books of G. Noodt, de foenore et usuris.
(Opp. tom. i. p. 175—268.) The interpretation of the asses or
centesimoe usuroe at twelve, the unciarioe at one per cent., is
maintained by the best critics and civilians: Noodt, (l. ii. c.
2, p. 207,) Gravina, (Opp. p. 205, &c., 210,) Heineccius,
(Antiquitat. ad Institut. l. iii. tit. xv.,) Montesquieu, (Esprit
des Loix, l. xxii. c. 22, tom. ii. p. 36). Defense de l’Esprit
des Loix, (tom. iii. p. 478, &c.,) and above all, John Frederic
Gronovius (de Pecunia Veteri, l. iii. c. 13, p. 213—227,) and his
three Antexegeses, (p. 455—655), the founder, or at least the
champion, of this probable opinion; which is, however, perplexed
with some difficulties.]
164 (return) [ Primo xii. Tabulis sancitum est ne quis unciario
foenore amplius exerceret, (Tacit. Annal. vi. 16.) Pour peu (says
Montesquieu, Esprit des Loix, l. xxii. 22) qu’on soit verse dans
l’histoire de Rome, on verra qu’une pareille loi ne devoit pas
etre l’ouvrage des decemvirs. Was Tacitus ignorant—or stupid? But
the wiser and more virtuous patricians might sacrifice their
avarice to their ambition, and might attempt to check the odious
practice by such interest as no lender would accept, and such
penalties as no debtor would incur. * Note: The real nature of
the foenus unciarium has been proved; it amounted in a year of
twelve months to ten per cent. See, in the Magazine for Civil
Law, by M. Hugo, vol. v. p. 180, 184, an article of M. Schrader,
following up the conjectures of Niebuhr, Hist. Rom. tom. ii. p.
431.—W. Compare a very clear account of this question in the
appendix to Mr. Travers Twiss’s Epitome of Niebuhr, vol. ii. p.
257.—M.]
165 (return) [ Justinian has not condescended to give usury a
place in his Institutes; but the necessary rules and restrictions
are inserted in the Pandects (l. xxii. tit. i. ii.) and the Code,
(l. iv. tit. xxxii. xxxiii.)]
166 (return) [ The Fathers are unanimous, (Barbeyrac, Morale des
Peres, p. 144. &c.:) Cyprian, Lactantius, Basil, Chrysostom, (see
his frivolous arguments in Noodt, l. i. c. 7, p. 188,) Gregory of
Nyssa, Ambrose, Jerom, Augustin, and a host of councils and
casuists.]
167 (return) [ Cato, Seneca, Plutarch, have loudly condemned the
practice or abuse of usury. According to the etymology of foenus,
the principal is supposed to generate the interest: a breed of
barren metal, exclaims Shakespeare—and the stage is the echo of
the public voice.]
3. Nature and society impose the strict obligation of repairing
an injury; and the sufferer by private injustice acquires a
personal right and a legitimate action. If the property of
another be intrusted to our care, the requisite degree of care
may rise and fall according to the benefit which we derive from
such temporary possession; we are seldom made responsible for
inevitable accident, but the consequences of a voluntary fault
must always be imputed to the author. 168 A Roman pursued and
recovered his stolen goods by a civil action of theft; they might
pass through a succession of pure and innocent hands, but nothing
less than a prescription of thirty years could extinguish his
original claim. They were restored by the sentence of the
praetor, and the injury was compensated by double, or threefold,
or even quadruple damages, as the deed had been perpetrated by
secret fraud or open rapine, as the robber had been surprised in
the fact, or detected by a subsequent research. The Aquilian law
169 defended the living property of a citizen, his slaves and
cattle, from the stroke of malice or negligence: the highest
price was allowed that could be ascribed to the domestic animal
at any moment of the year preceding his death; a similar latitude
of thirty days was granted on the destruction of any other
valuable effects. A personal injury is blunted or sharpened by
the manners of the times and the sensibility of the individual:
the pain or the disgrace of a word or blow cannot easily be
appreciated by a pecuniary equivalent. The rude jurisprudence of
the decemvirs had confounded all hasty insults, which did not
amount to the fracture of a limb, by condemning the aggressor to
the common penalty of twenty-five asses. But the same
denomination of money was reduced, in three centuries, from a
pound to the weight of half an ounce: and the insolence of a
wealthy Roman indulged himself in the cheap amusement of breaking
and satisfying the law of the twelve tables. Veratius ran through
the streets striking on the face the inoffensive passengers, and
his attendant purse-bearer immediately silenced their clamors by
the legal tender of twenty-five pieces of copper, about the value
of one shilling. 170 The equity of the praetors examined and
estimated the distinct merits of each particular complaint. In
the adjudication of civil damages, the magistrate assumed a right
to consider the various circumstances of time and place, of age
and dignity, which may aggravate the shame and sufferings of the
injured person; but if he admitted the idea of a fine, a
punishment, an example, he invaded the province, though, perhaps,
he supplied the defects, of the criminal law.
168 (return) Sir William Jones has given an ingenious and
rational Essay on the law of Bailment, (London, 1781, p. 127, in
8vo.) He is perhaps the only lawyer equally conversant with the
year-books of Westminster, the Commentaries of Ulpian, the Attic
pleadings of Isaeus, and the sentences of Arabian and Persian
cadhis.]
169 (return) [ Noodt (Opp. tom. i. p. 137—172) has composed a
separate treatise, ad Legem Aquilian, (Pandect. l. ix. tit. ii.)]
170 (return) [ Aulus Gellius (Noct. Attic. xx. i.) borrowed this
story from the Commentaries of Q. Labeo on the xii. tables.]
The execution of the Alban dictator, who was dismembered by eight
horses, is represented by Livy as the first and the fast instance
of Roman cruelty in the punishment of the most atrocious crimes.
171 But this act of justice, or revenge, was inflicted on a
foreign enemy in the heat of victory, and at the command of a
single man. The twelve tables afford a more decisive proof of the
national spirit, since they were framed by the wisest of the
senate, and accepted by the free voices of the people; yet these
laws, like the statutes of Draco, 172 are written in characters
of blood. 173 They approve the inhuman and unequal principle of
retaliation; and the forfeit of an eye for an eye, a tooth for a
tooth, a limb for a limb, is rigorously exacted, unless the
offender can redeem his pardon by a fine of three hundred pounds
of copper. The decemvirs distributed with much liberality the
slighter chastisements of flagellation and servitude; and nine
crimes of a very different complexion are adjudged worthy of
death.
1. Any act of treason against the state, or of correspondence
with the public enemy. The mode of execution was painful and
ignominious: the head of the degenerate Roman was shrouded in a
veil, his hands were tied behind his back, and after he had been
scourged by the lictor, he was suspended in the midst of the
forum on a cross, or inauspicious tree.
2. Nocturnal meetings in the city; whatever might be the
pretence, of pleasure, or religion, or the public good.
3. The murder of a citizen; for which the common feelings of
mankind demand the blood of the murderer. Poison is still more
odious than the sword or dagger; and we are surprised to
discover, in two flagitious events, how early such subtle
wickedness had infected the simplicity of the republic, and the
chaste virtues of the Roman matrons. 174 The parricide, who
violated the duties of nature and gratitude, was cast into the
river or the sea, enclosed in a sack; and a cock, a viper, a dog,
and a monkey, were successively added, as the most suitable
companions. 175 Italy produces no monkeys; but the want could
never be felt, till the middle of the sixth century first
revealed the guilt of a parricide. 176
4. The malice of an incendiary. After the previous ceremony of
whipping, he himself was delivered to the flames; and in this
example alone our reason is tempted to applaud the justice of
retaliation.
5. Judicial perjury. The corrupt or malicious witness was thrown
headlong from the Tarpeian rock, to expiate his falsehood, which
was rendered still more fatal by the severity of the penal laws,
and the deficiency of written evidence.
6. The corruption of a judge, who accepted bribes to pronounce an
iniquitous sentence.
7. Libels and satires, whose rude strains sometimes disturbed the
peace of an illiterate city. The author was beaten with clubs, a
worthy chastisement, but it is not certain that he was left to
expire under the blows of the executioner. 177
8. The nocturnal mischief of damaging or destroying a neighbor’s
corn. The criminal was suspended as a grateful victim to Ceres.
But the sylvan deities were less implacable, and the extirpation
of a more valuable tree was compensated by the moderate fine of
twenty-five pounds of copper.
9. Magical incantations; which had power, in the opinion of the
Latin shepherds, to exhaust the strength of an enemy, to
extinguish his life, and to remove from their seats his
deep-rooted plantations.
The cruelty of the twelve tables against insolvent debtors still
remains to be told; and I shall dare to prefer the literal sense
of antiquity to the specious refinements of modern criticism. 178
1781 After the judicial proof or confession of the debt, thirty
days of grace were allowed before a Roman was delivered into the
power of his fellow-citizen. In this private prison, twelve
ounces of rice were his daily food; he might be bound with a
chain of fifteen pounds weight; and his misery was thrice exposed
in the market place, to solicit the compassion of his friends and
countrymen. At the expiration of sixty days, the debt was
discharged by the loss of liberty or life; the insolvent debtor
was either put to death, or sold in foreign slavery beyond the
Tyber: but, if several creditors were alike obstinate and
unrelenting, they might legally dismember his body, and satiate
their revenge by this horrid partition. The advocates for this
savage law have insisted, that it must strongly operate in
deterring idleness and fraud from contracting debts which they
were unable to discharge; but experience would dissipate this
salutary terror, by proving that no creditor could be found to
exact this unprofitable penalty of life or limb. As the manners
of Rome were insensibly polished, the criminal code of the
decemvirs was abolished by the humanity of accusers, witnesses,
and judges; and impunity became the consequence of immoderate
rigor. The Porcian and Valerian laws prohibited the magistrates
from inflicting on a free citizen any capital, or even corporal,
punishment; and the obsolete statutes of blood were artfully, and
perhaps truly, ascribed to the spirit, not of patrician, but of
regal, tyranny.
171 (return) [ The narrative of Livy (i. 28) is weighty and
solemn. At tu, Albane, maneres, is a harsh reflection, unworthy
of Virgil’s humanity, (Aeneid, viii. 643.) Heyne, with his usual
good taste, observes that the subject was too horrid for the
shield of Aencas, (tom. iii. p. 229.)]
172 (return) [ The age of Draco (Olympiad xxxix. l) is fixed by
Sir John Marsham (Canon Chronicus, p. 593—596) and Corsini,
(Fasti Attici, tom. iii. p. 62.) For his laws, see the writers on
the government of Athens, Sigonius, Meursius, Potter, &c.]
173 (return) [ The viith, de delictis, of the xii. tables is
delineated by Gravina, (Opp. p. 292, 293, with a commentary, p.
214—230.) Aulus Gellius (xx. 1) and the Collatio Legum Mosaicarum
et Romanarum afford much original information.]
174 (return) [ Livy mentions two remarkable and flagitious aeras,
of 3000 persons accused, and of 190 noble matrons convicted, of
the crime of poisoning, (xl. 43, viii. 18.) Mr. Hume
discriminates the ages of private and public virtue, (Essays,
vol. i. p. 22, 23.) I would rather say that such ebullitions of
mischief (as in France in the year 1680) are accidents and
prodigies which leave no marks on the manners of a nation.]
175 (return) [ The xii. tables and Cicero (pro Roscio Amerino, c.
25, 26) are content with the sack; Seneca (Excerpt. Controvers. v
4) adorns it with serpents; Juvenal pities the guiltless monkey
(innoxia simia—156.) Adrian (apud Dositheum Magistrum, l. iii. c.
p. 874—876, with Schulting’s Note,) Modestinus, (Pandect. xlviii.
tit. ix. leg. 9,) Constantine, (Cod. l. ix. tit. xvii.,) and
Justinian, (Institut. l. iv. tit. xviii.,) enumerate all the
companions of the parricide. But this fanciful execution was
simplified in practice. Hodie tamen viv exuruntur vel ad bestias
dantur, (Paul. Sentent. Recept. l. v. tit. xxiv p. 512, edit.
Schulting.)]
176 (return) [ The first parricide at Rome was L. Ostius, after
the second Punic war, (Plutarch, in Romulo, tom. i. p. 54.)
During the Cimbric, P. Malleolus was guilty of the first
matricide, (Liv. Epitom. l. lxviii.)]
177 (return) [ Horace talks of the formidine fustis, (l. ii.
epist. ii. 154,) but Cicero (de Republica, l. iv. apud Augustin.
de Civitat. Dei, ix. 6, in Fragment. Philosoph. tom. iii. p. 393,
edit. Olivet) affirms that the decemvirs made libels a capital
offence: cum perpaucas res capite sanxisent—perpaucus!]
178 (return) [ Bynkershoek (Observat. Juris Rom. l. i. c. 1, in
Opp. tom. i. p. 9, 10, 11) labors to prove that the creditors
divided not the body, but the price, of the insolvent debtor. Yet
his interpretation is one perpetual harsh metaphor; nor can he
surmount the Roman authorities of Quintilian, Caecilius,
Favonius, and Tertullian. See Aulus Gellius, Noct. Attic. xxi.]
1781 (return) [ Hugo (Histoire du Droit Romain, tom. i. p. 234)
concurs with Gibbon See Niebuhr, vol. ii. p. 313.—M.]
In the absence of penal laws, and the insufficiency of civil
actions, the peace and justice of the city were imperfectly
maintained by the private jurisdiction of the citizens. The
malefactors who replenish our jails are the outcasts of society,
and the crimes for which they suffer may be commonly ascribed to
ignorance, poverty, and brutal appetite. For the perpetration of
similar enormities, a vile plebeian might claim and abuse the
sacred character of a member of the republic: but, on the proof
or suspicion of guilt, the slave, or the stranger, was nailed to
a cross; and this strict and summary justice might be exercised
without restraint over the greatest part of the populace of Rome.
Each family contained a domestic tribunal, which was not
confined, like that of the praetor, to the cognizance of external
actions: virtuous principles and habits were inculcated by the
discipline of education; and the Roman father was accountable to
the state for the manners of his children, since he disposed,
without appeal, of their life, their liberty, and their
inheritance. In some pressing emergencies, the citizen was
authorized to avenge his private or public wrongs. The consent of
the Jewish, the Athenian, and the Roman laws approved the
slaughter of the nocturnal thief; though in open daylight a
robber could not be slain without some previous evidence of
danger and complaint. Whoever surprised an adulterer in his
nuptial bed might freely exercise his revenge; 179 the most
bloody and wanton outrage was excused by the provocation; 180 nor
was it before the reign of Augustus that the husband was reduced
to weigh the rank of the offender, or that the parent was
condemned to sacrifice his daughter with her guilty seducer.
After the expulsion of the kings, the ambitious Roman, who should
dare to assume their title or imitate their tyranny, was devoted
to the infernal gods: each of his fellow-citizens was armed with
the sword of justice; and the act of Brutus, however repugnant to
gratitude or prudence, had been already sanctified by the
judgment of his country. 181 The barbarous practice of wearing
arms in the midst of peace, 182 and the bloody maxims of honor,
were unknown to the Romans; and, during the two purest ages, from
the establishment of equal freedom to the end of the Punic wars,
the city was never disturbed by sedition, and rarely polluted
with atrocious crimes. The failure of penal laws was more
sensibly felt, when every vice was inflamed by faction at home
and dominion abroad. In the time of Cicero, each private citizen
enjoyed the privilege of anarchy; each minister of the republic
was exalted to the temptations of regal power, and their virtues
are entitled to the warmest praise, as the spontaneous fruits of
nature or philosophy. After a triennial indulgence of lust,
rapine, and cruelty, Verres, the tyrant of Sicily, could only be
sued for the pecuniary restitution of three hundred thousand
pounds sterling; and such was the temper of the laws, the judges,
and perhaps the accuser himself, 183 that, on refunding a
thirteenth part of his plunder, Verres could retire to an easy
and luxurious exile. 184
179 (return) [ The first speech of Lysias (Reiske, Orator. Graec.
tom. v. p. 2—48) is in defence of a husband who had killed the
adulterer. The rights of husbands and fathers at Rome and Athens
are discussed with much learning by Dr. Taylor, (Lectiones
Lysiacae, c. xi. in Reiske, tom. vi. p. 301—308.)]
180 (return) [ See Casaubon ad Athenaeum, l. i. c. 5, p. 19.
Percurrent raphanique mugilesque, (Catull. p. 41, 42, edit.
Vossian.) Hunc mugilis intrat, (Juvenal. Satir. x. 317.) Hunc
perminxere calones, (Horat l. i. Satir. ii. 44.) Familiae
stuprandum dedit.. fraudi non fuit, (Val. Maxim. l. vi. c. l, No.
13.)]
181 (return) [ This law is noticed by Livy (ii. 8) and Plutarch,
(in Publiccla, tom. i. p. 187,) and it fully justifies the public
opinion on the death of Caesar which Suetonius could publish
under the Imperial government. Jure caesus existimatur, (in
Julio, c. 76.) Read the letters that passed between Cicero and
Matius a few months after the ides of March (ad Fam. xi. 27,
28.)]
182 (return) [ Thucydid. l. i. c. 6 The historian who considers
this circumstance as the test of civilization, would disdain the
barbarism of a European court]
183 (return) [ He first rated at millies (800,000 L.) the damages
of Sicily, (Divinatio in Caecilium, c. 5,) which he afterwards
reduced to quadringenties, (320,000 L.—1 Actio in Verrem, c. 18,)
and was finally content with tricies, (24,000l L.) Plutarch (in
Ciceron. tom. iii. p. 1584) has not dissembled the popular
suspicion and report.]
184 (return) [ Verres lived near thirty years after his trial,
till the second triumvirate, when he was proscribed by the taste
of Mark Antony for the sake of his Corinthian plate, (Plin. Hist.
Natur. xxxiv. 3.)]
The first imperfect attempt to restore the proportion of crimes
and punishments was made by the dictator Sylla, who, in the midst
of his sanguinary triumph, aspired to restrain the license,
rather than to oppress the liberty, of the Romans. He gloried in
the arbitrary proscription of four thousand seven hundred
citizens. 185 But, in the character of a legislator, he respected
the prejudices of the times; and, instead of pronouncing a
sentence of death against the robber or assassin, the general who
betrayed an army, or the magistrate who ruined a province, Sylla
was content to aggravate the pecuniary damages by the penalty of
exile, or, in more constitutional language, by the interdiction
of fire and water. The Cornelian, and afterwards the Pompeian and
Julian, laws introduced a new system of criminal jurisprudence;
186 and the emperors, from Augustus to Justinian, disguised their
increasing rigor under the names of the original authors. But the
invention and frequent use of extraordinary pains proceeded from
the desire to extend and conceal the progress of despotism. In
the condemnation of illustrious Romans, the senate was always
prepared to confound, at the will of their masters, the judicial
and legislative powers. It was the duty of the governors to
maintain the peace of their province, by the arbitrary and rigid
administration of justice; the freedom of the city evaporated in
the extent of empire, and the Spanish malefactor, who claimed the
privilege of a Roman, was elevated by the command of Galba on a
fairer and more lofty cross. 187 Occasional rescripts issued from
the throne to decide the questions which, by their novelty or
importance, appeared to surpass the authority and discernment of
a proconsul. Transportation and beheading were reserved for
honorable persons; meaner criminals were either hanged, or burnt,
or buried in the mines, or exposed to the wild beasts of the
amphitheatre. Armed robbers were pursued and extirpated as the
enemies of society; the driving away horses or cattle was made a
capital offence; 188 but simple theft was uniformly considered as
a mere civil and private injury. The degrees of guilt, and the
modes of punishment, were too often determined by the discretion
of the rulers, and the subject was left in ignorance of the legal
danger which he might incur by every action of his life.
185 (return) [ Such is the number assigned by Valer’us Maximus,
(l. ix. c. 2, No. 1,) Florus (iv. 21) distinguishes 2000 senators
and knights. Appian (de Bell. Civil. l. i. c. 95, tom. ii. p.
133, edit. Schweighauser) more accurately computes forty victims
of the senatorian rank, and 1600 of the equestrian census or
order.]
186 (return) [ For the penal laws (Leges Corneliae, Pompeiae,
Julae, of Sylla, Pompey, and the Caesars) see the sentences of
Paulus, (l. iv. tit. xviii.—xxx. p. 497—528, edit. Schulting,)
the Gregorian Code, (Fragment. l. xix. p. 705, 706, in
Schulting,) the Collatio Legum Mosaicarum et Romanarum, (tit.
i.—xv.,) the Theodosian Code, (l. ix.,) the Code of Justinian,
(l. ix.,) the Pandects, (xlviii.,) the Institutes, (l. iv. tit.
xviii.,) and the Greek version of Theophilus, (p. 917—926.)]
187 (return) [ It was a guardian who had poisoned his ward. The
crime was atrocious: yet the punishment is reckoned by Suetonius
(c. 9) among the acts in which Galba showed himself acer,
vehemens, et in delictis coercendis immodicus.]
188 (return) [ The abactores or abigeatores, who drove one horse,
or two mares or oxen, or five hogs, or ten goats, were subject to
capital punishment, (Paul, Sentent. Recept. l. iv. tit. xviii. p.
497, 498.) Hadrian, (ad Concil. Baeticae,) most severe where the
offence was most frequent, condemns the criminals, ad gladium,
ludi damnationem, (Ulpian, de Officio Proconsulis, l. viii. in
Collatione Legum Mosaic. et Rom. tit. xi p. 235.)]
A sin, a vice, a crime, are the objects of theology, ethics, and
jurisprudence. Whenever their judgments agree, they corroborate
each other; but, as often as they differ, a prudent legislator
appreciates the guilt and punishment according to the measure of
social injury. On this principle, the most daring attack on the
life and property of a private citizen is judged less atrocious
than the crime of treason or rebellion, which invades the majesty
of the republic: the obsequious civilians unanimously pronounced,
that the republic is contained in the person of its chief; and
the edge of the Julian law was sharpened by the incessant
diligence of the emperors. The licentious commerce of the sexes
may be tolerated as an impulse of nature, or forbidden as a
source of disorder and corruption; but the fame, the fortunes,
the family of the husband, are seriously injured by the adultery
of the wife. The wisdom of Augustus, after curbing the freedom of
revenge, applied to this domestic offence the animadversion of
the laws: and the guilty parties, after the payment of heavy
forfeitures and fines, were condemned to long or perpetual exile
in two separate islands. 189 Religion pronounces an equal censure
against the infidelity of the husband; but, as it is not
accompanied by the same civil effects, the wife was never
permitted to vindicate her wrongs; 190 and the distinction of
simple or double adultery, so familiar and so important in the
canon law, is unknown to the jurisprudence of the Code and the
Pandects. I touch with reluctance, and despatch with impatience,
a more odious vice, of which modesty rejects the name, and nature
abominates the idea. The primitive Romans were infected by the
example of the Etruscans 191 and Greeks: 192 and in the mad abuse
of prosperity and power, every pleasure that is innocent was
deemed insipid; and the Scatinian law, 193 which had been
extorted by an act of violence, was insensibly abolished by the
lapse of time and the multitude of criminals. By this law, the
rape, perhaps the seduction, of an ingenuous youth, was
compensated, as a personal injury, by the poor damages of ten
thousand sesterces, or fourscore pounds; the ravisher might be
slain by the resistance or revenge of chastity; and I wish to
believe, that at Rome, as in Athens, the voluntary and effeminate
deserter of his sex was degraded from the honors and the rights
of a citizen. 194 But the practice of vice was not discouraged by
the severity of opinion: the indelible stain of manhood was
confounded with the more venial transgressions of fornication and
adultery, nor was the licentious lover exposed to the same
dishonor which he impressed on the male or female partner of his
guilt. From Catullus to Juvenal, 195 the poets accuse and
celebrate the degeneracy of the times; and the reformation of
manners was feebly attempted by the reason and authority of the
civilians till the most virtuous of the Caesars proscribed the
sin against nature as a crime against society. 196
189 (return) [ Till the publication of the Julius Paulus of
Schulting, (l. ii. tit. xxvi. p. 317—323,) it was affirmed and
believed that the Julian laws punished adultery with death; and
the mistake arose from the fraud or error of Tribonian. Yet
Lipsius had suspected the truth from the narratives of Tacitus,
(Annal. ii. 50, iii. 24, iv. 42,) and even from the practice of
Augustus, who distinguished the treasonable frailties of his
female kindred.]
190 (return) [ In cases of adultery, Severus confined to the
husband the right of public accusation, (Cod. Justinian, l. ix.
tit. ix. leg. 1.) Nor is this privilege unjust—so different are
the effects of male or female infidelity.]
191 (return) [ Timon (l. i.) and Theopompus (l. xliii. apud
Athenaeum, l. xii. p. 517) describe the luxury and lust of the
Etruscans. About the same period (A. U. C. 445) the Roman youth
studied in Etruria, (liv. ix. 36.)]
192 (return) [ The Persians had been corrupted in the same
school, (Herodot. l. i. c. 135.) A curious dissertation might be
formed on the introduction of paederasty after the time of Homer,
its progress among the Greeks of Asia and Europe, the vehemence
of their passions, and the thin device of virtue and friendship
which amused the philosophers of Athens. But scelera ostendi
oportet dum puniuntur, abscondi flagitia.]
193 (return) [ The name, the date, and the provisions of this law
are equally doubtful, (Gravina, Opp. p. 432, 433. Heineccius,
Hist. Jur. Rom. No. 108. Ernesti, Clav. Ciceron. in Indice
Legum.) But I will observe that the nefanda Venus of the honest
German is styled aversa by the more polite Italian.]
194 (return) [ See the oration of Aeschines against the catamite
Timarchus, (in Reiske, Orator. Graec. tom. iii. p. 21—184.)]
195 (return) [ A crowd of disgraceful passages will force
themselves on the memory of the classic reader: I will only
remind him of the cool declaration of Ovid:— Odi concubitus qui
non utrumque resolvant. Hoc est quod puerum tangar amore minus.]
196 (return) [ Aelius Lampridius, in Vit. Heliogabal. in Hist.
August p. 112 Aurelius Victor, in Philippo, Codex Theodos. l. ix.
tit. vii. leg. 7, and Godefroy’s Commentary, tom. iii. p. 63.
Theodosius abolished the subterraneous brothels of Rome, in which
the prostitution of both sexes was acted with impunity.]
Chapter XLIV: Idea Of The Roman Jurisprudence.—Part VIII.
A new spirit of legislation, respectable even in its error, arose
in the empire with the religion of Constantine. 197 The laws of
Moses were received as the divine original of justice, and the
Christian princes adapted their penal statutes to the degrees of
moral and religious turpitude. Adultery was first declared to be
a capital offence: the frailty of the sexes was assimilated to
poison or assassination, to sorcery or parricide; the same
penalties were inflicted on the passive and active guilt of
paederasty; and all criminals of free or servile condition were
either drowned or beheaded, or cast alive into the avenging
flames. The adulterers were spared by the common sympathy of
mankind; but the lovers of their own sex were pursued by general
and pious indignation: the impure manners of Greece still
prevailed in the cities of Asia, and every vice was fomented by
the celibacy of the monks and clergy. Justinian relaxed the
punishment at least of female infidelity: the guilty spouse was
only condemned to solitude and penance, and at the end of two
years she might be recalled to the arms of a forgiving husband.
But the same emperor declared himself the implacable enemy of
unmanly lust, and the cruelty of his persecution can scarcely be
excused by the purity of his motives. 198 In defiance of every
principle of justice, he stretched to past as well as future
offences the operations of his edicts, with the previous
allowance of a short respite for confession and pardon. A painful
death was inflicted by the amputation of the sinful instrument,
or the insertion of sharp reeds into the pores and tubes of most
exquisite sensibility; and Justinian defended the propriety of
the execution, since the criminals would have lost their hands,
had they been convicted of sacrilege. In this state of disgrace
and agony, two bishops, Isaiah of Rhodes and Alexander of
Diospolis, were dragged through the streets of Constantinople,
while their brethren were admonished, by the voice of a crier, to
observe this awful lesson, and not to pollute the sanctity of
their character. Perhaps these prelates were innocent. A sentence
of death and infamy was often founded on the slight and
suspicious evidence of a child or a servant: the guilt of the
green faction, of the rich, and of the enemies of Theodora, was
presumed by the judges, and paederasty became the crime of those
to whom no crime could be imputed. A French philosopher 199 has
dared to remark that whatever is secret must be doubtful, and
that our natural horror of vice may be abused as an engine of
tyranny. But the favorable persuasion of the same writer, that a
legislator may confide in the taste and reason of mankind, is
impeached by the unwelcome discovery of the antiquity and extent
of the disease. 200
197 (return) [ See the laws of Constantine and his successors
against adultery, sodomy &c., in the Theodosian, (l. ix. tit.
vii. leg. 7, l. xi. tit. xxxvi leg. 1, 4) and Justinian Codes,
(l. ix. tit. ix. leg. 30, 31.) These princes speak the language
of passion as well as of justice, and fraudulently ascribe their
own severity to the first Caesars.]
198 (return) [ Justinian, Novel. lxxvii. cxxxiv. cxli. Procopius
in Anecdot. c. 11, 16, with the notes of Alemannus. Theophanes,
p. 151. Cedrenus. p. 688. Zonaras, l. xiv. p. 64.]
199 (return) [ Montesquieu, Esprit des Loix, l. xii. c. 6. That
eloquent philosopher conciliates the rights of liberty and of
nature, which should never be placed in opposition to each
other.]
200 (return) [ For the corruption of Palestine, 2000 years before
the Christian aera, see the history and laws of Moses. Ancient
Gaul is stigmatized by Diodorus Siculus, (tom. i. l. v. p. 356,)
China by the Mahometar and Christian travellers, (Ancient
Relations of India and China, p. 34 translated by Renaudot, and
his bitter critic the Pere Premare, Lettres Edifiantes, tom. xix.
p. 435,) and native America by the Spanish historians,
(Garcilasso de la Vega, l. iii. c. 13, Rycaut’s translation; and
Dictionnaire de Bayle, tom. iii. p. 88.) I believe, and hope,
that the negroes, in their own country, were exempt from this
moral pestilence.]