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