spouse of a senator: but the blood of kings could ch a p never mingle in legitimate nuptials with the blood XLIV. of a Roman; and the name of Stranger degraded Cleopatra and Berenice *, to live the concubines of Mark Antony and Titus +. 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 honours 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 celebra * When her father Agrippa died (A. D. 44.), Berenice was sixteen years of age (Joseph. tom. i. Antiquit. Judaic. I. xixa 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. The Egyptia conjunx of Virgil (Æneid, viii. 688.) seems to be numbered among the monsters who warred with Mark Antony against Augustus, the senate, and the gods of Italy. XLIV. CHA P. tion of their nuptials with a partner whose fruitfulness and fidelity they had already tried. 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 rigour 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 *. Guardians The relation of guardian and ward, or in Roman and wards. words, of tutor and pupil, which covers so many titles of the Institutes and Pandects †, 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; *The humble but legal rights of concubines and natural children, are stated in the Institutes (1. i. tit, x.), the Pandects 1. i. tit. vii.), the Code (1. v. tit. xv.), and the Novels lxxiv. lxxxix.). The researches of Heineccius and Giannone (ad Legem Juliam et Papiam-Poppæam, c. iv. p. 164–175. Opere Posthume, p. 108-158) illustrate this interesting and domestic subject. + See the article of guardians and wards in the Institutes (1. i. tit. xiii-xxvi.), the Pandects (1. xxvi, xxvii.), and the Code (1. v. tit. xxviii-lxx.). death; but an axiom of Roman jurisprudence CHA P. has pronounced, that the charge of tutelage should XLIV 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 prætor 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 burthened, and by the immunities which were granted to the useful labours 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; but as the faculties of the mind ripen more slowly than those of the body, a curator was interposed to guard the fortunes of the Roman youth from his own inexperience and headstrong passions. Such a trustee had been first instituted by the prætor, to save a family from the blind havock of a prodigal or madman; F 3 CHA P. madman; and the minor was compelled by the ALIV. 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 to 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. fl. Or THINGS. Bight of property. 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 The savage by the philosophy of the civilians *. 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 * Institut. 1. ii. tit. i, ii. Compare the pure and precise reasoning of Caius and Heineccius (1. ii. tit. i. p. 69-91.) with the loose prolixity of Theophilus (p. 207-265). The opinions of Ulpian are preserved in the Pandects (1. i. tit. viii. leg. 41. No. ..). In derives its existence from him alone. If he incloses CHA P. and cultivates a field for their sustenance and his XLIV, own, a barren waste is converted into a fertile soil; the seed, the manure, the labour, create a new value, and the rewards of harvest are painfully earned by the fatigues of the revolving year. 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 land-marks 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 havé disapproved F 4 |