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an evidence of their merit. They were selected by the Im. perial 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 ter. minated by the principles of Criminal Law.” The distinction of ranks and persons is the firmest basis of a mixed and limited government. In France, the remains of liberty are kept alive by the spirit, the honors, and even the prejudices, of fifty thousand nobles.” Two hundred families f 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 fellowslaves 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 libertimes 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 atrons; but his indulgence removed the badge of disgrace rom the two inferior orders of freedmen : whoever ceased to be a slave, obtained, without reserve or delay, the station of a citizen; and at length the dignity of an ingenuous birth, which nature had refused, was created, or supposed, by the omnipotence of the emperor. Whatever restraints of age, or forms, or numbers, had been formerly introduced to check the abuse of manumissions, and the too rapid increase of vile and indigent Romans, he finally abolished; and the spirit of his laws promoted the extinction of domestic servitude. Yet the eastern provinces were filled, in the time of Justinian, with multitudes of slaves, either born or purchased for the use of their masters; and the price, from ten to seventy pieces of gold, was determined by their age, their strength, and their education.” But the hardships of this dependent state were continually diminished by the influence of government and religion; and the pride of a subject was no longer elated by his absolute dominion over the life and happiness of his bondsman.” The law of nature instructs most animals to cherish and educate their infant progeny. The law of reason inculcates to the human species the return of filial piety. But the exclusive, absolute, and perpetual dominion of the father over his children, is peculiar to the Roman jurisprudence,” and seems to be cočval with the foundation of the city.” The paternal power was instituted or confirmed by, Romulus himself; and, after the practice of three centuries, it was inscribed on the fourth table of the Decemvirs. In the forum, the senate, or the camp, the adult son of a Roman citizen enjoyed the public and private rights of a person : in his father's house he was a mere thing ; # confounded by the laws with the movables, the cattle, and the slaves, whom the capricious master might alienate or destroy, without being responsible to any earthly tribunal. The hand which bestowed the daily sustenance might resume the voluntary gift, and whatever was acquired by the labor or for. tune of the son was immediately lost in the property of the father. His stolen goods (his oxen or his children) might be recovered by the same action of theft;" and if either had been guilty of a trespass, it was in his own option to compensate the damage, or resign to the injured party the obnoxious animal. At the call of indigence or avarice, the master of a family could dispose of his children or his slaves. But the condition of the slave was far more advantageous, since he regained, by the first manumission, his alienated freedom: the son was again restored to his unnatural father; he might be condemned to servitude a second and a third time, and it was not till after the third sale and deliverance,” that he was enfranchised from the domestic power which had been so repeatedly abused. According to his discretion, a father might chastise the real or imaginary faults of his children, by stripes, by imprisonment, by exile, by sending them to the country to work in chains among the meanest of his servants. The majesty of a parent was armed with the power of life and death; " and the examples of such bloody executions, which were sometimes raised and never punished, may be traced in the annals of me beyond the times of Pompey and Augustus. Neither age, nor rank, nor the consular office, nor the honors of a triumph, could exempt the most illustrious citizen from the bonds of filial subjection: ” his own descendants were in:luded in the family of their common ancestor; and the *laims of adoption were not less sacred or less rigorous than Those of nature. Without fear, though not without danger of abuse, the Roman legislators had reposed an unbounded confidence in the sentiments of paternal love; and the oppression was tempered by the assurance, that each generation must succeed in its turn to the awful dignity of parent and master. The first limitation of paternal power is ascribed to the justice and humanity of Numa, and the maid who, with his father's consent, had espoused a freeman, was protected from the disgrace of becoming the wife of a slave. In the first ages, when the city was pressed, and often famished, by her Latin and Tuscan neighbors, the sale of children might be a frequent practice; but as a Roman could not legally purchase the liberty of his fellow-citizen, the market must gradually fail, and the trade would be destroyed by the conquests of the republic. An imperfect right of property was at length communicated to sons; and the threefold distinction of profectitious, adventitious, and professional was ascertained by the jurisprudence of the Code and Pandects.” Of all that proceeded from the father, he imparted only the use, and reserved the absolute dominion; yet if his goods were sold, the filial portion was excepted, by a favorable Interpretation, from the demands of the creditors. In whatever accrued by marriage, gift, or collateral succession, the property was secured to the son; but the father, unless he had been specially excluded, enjoyed the usufruct during his life. As a just and prudent reward of military virtue, the spoils of the enemy were acquired, possessed, and bequeathed by the soldier alone; and the fair analogy was extended to the emoluments of any liberal profession, the salary of public service, and the sacred liberality of the emperor or empress. The life of a citizen was less exposed than his fortune to the abuse of paternal power. Yet his life might be adverse to the Interest or passions of an unworthy father: the same crimes that flowed from the corruption, were more sensibly felt by the humanity, of the Augustan age; and the cruel Erixo, who whipped his son till he expired, was saved by the emperor from the just fury of the multitude.” The Roman father, from the license of servile dominion, was reduced to the gravity and moderation of a judge. The presence and opinion of Augustus confirmed the sentence of exile pronounced against an intentional parricide by the domestic tribunal of Arius. Adrian transported to an island the jealous parent, who, like a robber, had seized the opportunity of hunting, to assassinate a youth, the incestuous lover of his step-mother.” A private jurisdiction is repugnant to the spirit of monarchy; the parent was again reduced from
* See the Annales Politiques de l'Abbé de St. Pierre, tom. i. p. 25, who dates in the year 1735. Tho most ancient families claim the immemorial possession of arms and siefs. 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.
* Gibbon, dividing the Institutes into four parts, considers the appendix of the criminai law in the last title as a fourth part.—W.
it Since the time of Gibbon, the House of Peers has been more than doubled; it. is above 400, exclusive of the spiritual ers—a wise policy, to increase the P*an order in proportion to the general increase of the nation.—M.
100 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 !o above, fifty; if tradesmen, seventy
(Cod. 1. vi, tit. xliii. leg. 3). These legal prices are generally below those of the Imarket.
10. For the state of slaves and freedmen, see Institutes, l. i tit. iii.-viii. 1. ii. tit. ix. l. iii. tit. viii. ix. PandectS or Fo st, l. i. tit. v. vi. l. xxxviii. tit. i.--iv , and the whole of the xlth book. Code, 1. vi. tit. iv. v. 1. 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. pp. 1-590, the end. Lugd. Bat. 1724).
102 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 |. est civium Romanorum. Nulli enim alii sunt homines, qui talem in liberos habeant potestatem qualem nos habemus.”
* Dionysius Hal. l. ii. pp. 94, 95. Gravina (Opp. #. 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 t
* Pandect. l. xlvii. tit. ii. leg. 14, No. 13, leg. 38, No. 1. Such was the de
ision of Ulpian and Paul.
* The newly-discovered Institutes of Gaius name one nation in which the raine power was vested in the parent. Nec me praeterit Galatarum gentem •redere, in potestate parentum liberos esse. Gaii Instit. edit. 1824, p. 257.-M.
f All this is in strict accordance with the Roman character.—W.
# This parental power was strictly confined to the Roman citizen. The foreigner, or he who had ğ. 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, * raise both mother and child to the rights of citizenship. Gaius, p. 30. 136 The trina mancipatio is most clearly defined by Ulpian (Fragment. x pp. 591, 592, edit. Schulting); and best illustrated in the Antiquities of Heineccius.” 10% By Justinian, the old law, the jus necis of the Roman father (Institut. 1. ... iv. tit. ix. No.7) is reported and reprobated. Some legal yestiges 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 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 ustified by the old and memorable example of Fabius ; and we may contemplate he same story in the style of Livy (xxiv. 44) and the homely idiom of Claudius Quadrigarius the annalist.
* 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, § 61.-W. 10° See the gradual enlargement and security of the filial peculium in the Institutes (l. ii., tit. ix.), the Pandects (l. xv. tit. i. 1. xli. tit. i.), and the Code (l. iv. tit. xxvi. xxvii.).
* The examples of Erixo and Arius are related by Seneca (de Clementia, i. 14, 15), the former with horror, the latter with applause.
*"..Quod latronis magis quam patris jure éum interfecit, nam patria potestas in
Pietàte debet non in atrocitate consistere (Marcian, Institut. i. xix. in Pandect. i. Solviii. tit. ix. leg 5).