It is the first care of a reformer to prevent any future 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, 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 Many of his acts were rescinded by himself; many were rejected by his successors; many have been obliterated by time; but the number of sixteen Edicts and one hundred and sixty-eight Novels 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.
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 those of Caius 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 were 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 (1), Persons, to (2) Things, and from things to (3) Actions; and the Article IV of Private Wrongs is terminated by the principles of Criminal Law.[29]
I. The distinction of ranks and persons is the firmest basis of a mixed and limited government. 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 Cæsars 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. 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 coeval 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;[30] 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; 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 praised and never punished, may be traced in the annals of Rome beyond the times of Pompey and Augustus. Neither age nor rank, nor the consular office, nor the honors of a triumph could exempt the most illustrious citizen from the bonds of filial subjection: his own descendants were included in the family of their common ancestor; and the claims of adoption were not less sacred or less rigorous than those of nature. Without fear, though not without danger of abuse, the Roman legislators had reposed an unbounded confidence in the sentiments of paternal love, and the oppression was tempered by the assurance that each generation must succeed in its turn to the awful dignity of parent and master.
The first limitation of paternal power is ascribed to the justice and humanity of Numa, and the maid who, with his father's consent, had espoused a freeman, was protected from the disgrace of becoming the wife of a slave. In the first ages, when the city was pressed and often famished by her Latin and Tuscan neighbors, the sale of children might be a frequent practice; but as a Roman could not legally purchase the liberty of his fellow-citizen, the market must gradually fail, and the trade would be destroyed by the conquests of the republic. An imperfect right of property was at length communicated to sons; and the threefold distinction of profectitious, adventitious, and professional was ascertained by the jurisprudence of the Code and Pandects. Of all that proceeded from the father, he imparted only the use, and reserved the absolute dominion; yet if his goods were sold, the filial portion was excepted by a favorable interpretation from the demands of the creditors. In whatever accrued by marriage, gift, or collateral succession, the property was secured to the son; but the father, unless he had been specially excluded, enjoyed the usufruct during his life.
As a just and prudent reward of military virtue, the spoils of the enemy were acquired, possessed, and bequeathed by the soldier alone; and the fair analogy was extended to the emoluments of any liberal profession, the salary of public service, and the sacred liberality of the emperor or empress. The life of a citizen was less exposed than his fortune to the abuse of paternal power. Yet his life might be adverse to the interest or passions of an unworthy father: the same crimes that flowed from the corruption were more sensibly felt by the humanity of the Augustan age; and the cruel Erixo, who whipped his son till he expired, was saved by the Emperor from the just fury of the multitude. The Roman father, from the license of servile dominion, was reduced to the gravity and moderation of a judge. The presence and opinion of Augustus confirmed the sentence of exile pronounced against an intentional parricide by the domestic tribunal of Arius. Adrian transported to an island the jealous parent who, like a robber, had seized the opportunity of hunting to assassinate a youth, the incestuous lover of his step-mother. A private jurisdiction is repugnant to the spirit of monarchy; the parent was again reduced from a judge to an accuser, and the magistrates were enjoined by Severus Alexander to hear his complaints and execute his sentence. He could no longer take the life of a son without incurring the guilt and punishment of murder; and the pains of parricide, from which he had been excepted by the Pompeian law, were finally inflicted by the justice of Constantine.
The same protection was due to every period of existence; and reason must applaud the humanity of Paulus for imputing the crime of murder to the father who strangles, or starves, or abandons his new-born infant; or exposes him in a public place to find the mercy which he himself had denied. But the exposition of children was the prevailing and stubborn vice of antiquity: it was sometimes prescribed, often permitted, almost always practised with impunity by the nations who never entertained the Roman ideas of paternal power; and the dramatic poets who appeal to the human heart represent with indifference a popular custom which was palliated by the motives of economy and compassion. If the father could subdue his own feelings, he might escape, though not the censure, at least the chastisement of the laws; and the Roman Empire was stained with the blood of infants, till such murders were included by Valentinian and his colleagues in the letter and spirit of the Cornelian law. The lessons of jurisprudence and Christianity had been insufficient to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment.
Experience has proved that savage are the tyrants of the female sex, and that the condition of women is usually softened by the refinements of social life. In the hope of a robust progeny, Lycurgus had delayed the season of marriage: it was fixed by Numa at the tender age of twelve years, that the Roman husband might educate to his will a pure and obedient virgin. According to the custom of antiquity, he bought his bride of her parents, and she fulfilled the coemption by purchasing, with three pieces of copper, a just introduction to his house and household deities. A sacrifice of fruits was offered by the pontiffs in the presence of ten witnesses; the contracting parties were seated on the same sheepskin; they tasted a salt-cake of far or rice; and this confarreation, which denoted the ancient food of Italy, served as an emblem of their mystic union of mind and body.