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Puberty. Minus plena. Males fourteen, fe- CHAP. males twelve. Puberty. fourteen.
Plena. Males eighteen, females
Majority. Plena ætas. At twenty-five years.
In their civil capacity their state is denominated from respect to 1. Liberty.
The first division of persons in a civil consideration is into freemen and slaves.
Slavery in the Civil law had three origins. Origins of 1. Captivity in war. 2. Birth. 3. The sale of a man's self to another. None of these are justifiable causes of slavery.
Slavery is thus defined. "Servitus est consti- Servitus. tutio juris gentium qua quis dominio alieno contra naturam subjicitur'.'
The Roman slave was a mere human being without the smallest civil right, and he was, therefore, regarded as a chattel; res, a thing, which might be sold, or be bequeathed as a legacy to whomsoever his owner pleased. Being endowed with a rational mind in a human body he was homo; but he was not persona.
"Persona est homo cum statu quodam conside- Persona. ratus. Status est qualitas cujus ratione homines diverso jure utuntur.
Quicunque igitur nullo statu gaudet, jure Romano, non persona sed res est"."
I. As to captivity in war. It is declared by the Roman law, that " quæ ex hostibus capiuntur, jure gentium statim capientium fiunts." They who were captured pugnantes in acie were reduced to slavery, and sold sub corona as a part of the plunder.
2. Slavery by birth. The children of slaves could be in no better position than their parents. These were the verna, born in the house of the 2 Hein. El. 75. 76.
1 D. I. 5. 4. I.
3 D. XLI. I. 5. 7.
BOOK master of those slaves who were living in contuburnio.
3. Slavery by the sale of a man's self to another. Persons who allowed themselves to be sold by another for the sake of sharing the money of which the buyer was thus defrauded, were declared to be slaves; nor, if afterwards manumitted, could they ever recover their ingenuitas1.
None of these were justifiable causes of slavery. the Law of With regard to the first, it was said the conqueror unjustifi had a right to the life of his captive, and having spared his life he had a right to sell him into slavery; but if he could subdue his enemy without taking his life in self-defence, he had no right to kill him. The selling of a prisoner of war into perpetual slavery is contrary to the law of nations, because by the Jus postliminii, on the re-establishment of peace, all things resume their former state, and the prisoner of war is entitled to return to his country. At the same time, it must be admitted, that though slavery is contrary to the law of nature, it is not, therefore, contrary to the positive law of any state where it is imposed as a punishment for crimes; it must also be remembered that lawful war is not a crime, and that an alien enemy taken in arms against the state of his captor, is no violator of the Civil law.
Secondly, in the case of slavery by birth, if the parents be unjustly slaves, the children must be so likewise.
Thirdly, self-sale is absurd, because since a slave could possess no property, for whatever he obtained belonged to his master, and he would become a slave as soon as the price was agreed upon, the master paid nothing, and the slave received nothing. But it is evident from the passage in the Digest, "ad pretium participandum venire passus est," that the buyer was deceived by a third party who offered the supposed slave, and received the
price; and as the sale of a freeman was void, the CHAP. party sold took the earliest opportunity to proclaim his liberty, and received his share of the money thus fraudulently obtained. To suppress this it became necessary to consign such an one to perpetual slavery; but the buyer, must be ignorant of his being free1.
The following were also reduced to slavery as a slavery by punishment by the Civil law.
1. They who refused to register their names on the census, or to serve in the army. 2. They who were condemned to work in the mines, or to fight with beasts in the circus. 3. Freed men and women whose manumissions were cancelled for ingratitude to their patrons. 4. Free women cohabiting with slaves. 5. Outlaws. These are all cases of penal servitude lawfully imposed by the Civil law.
Aristotle's opinion of natural slavery is ground- Aristotle's
Aristotle, in his Politics, contends that there is a providential distribution of the abilities of mankind, and that in every community may be found those whom the Creator has intended for slaves by denying them all fitness for any higher position. Were this so the offices of the Roman slave would in every case have been menial; on the contrary, we find them holding situations which required talent to discharge the duties attached to them: they were literati, medici, amanuenses, &c., and yet politically there was no difference between them.
Slaves were: 1. Ordinary. 2. Peculiar; otherwise vicarial.
The servus ordinarius was the slave who was Servus Or either purchased by his owner, or who came into his dinarius. possession by bequest or inheritance. The ordinary slave had some particular duty assigned him; he was a cook, or a baker, or a fuller, or a tailor, &c. The servus vicarius was the slave of a slave; he Vicarius.
1 D. XL. 10. 12. 2. 2 Hein. Ant. I. 3. 5.
3 Polit. I. c. 2.
BOOK was purchased with the peculium of the servus ordinarius: Peculium est pusilla pecunia, quam Peculium. filius familias vel servus a rationibus paternis vel dominicis seperatam habet': a very small sum of money which a son or a slave is allowed to retain from his father's or master's accounts. For though a slave could possess nothing legally, all that his labour produced being his master's, yet as many of the slaves held situations of trust, it became advisable to allow them a certain amount of property as an encouragement to fidelity. The servus vicarius therefore represented the peculium of the servus ordinarius, and like it he would be liable to be seized for the debts of the master in case of his insolvency.
The power of the master over his slave consisted the Master in three things. 1. He could put him to death. 2. He could transfer him by sale or gift to whom he pleased. 3. Whatever the slave acquired belonged to the master.
In the early period of the Republic the master might put his slave to death, induced by mere passion or revenge; and so late as the time of Juvenal it appears by the following passage that the barbarity of masters was carried to a great extent:
"O demens, ita servus homo est2?"
After the Republic the unbounded license of slaveowners was repressed by imperial constitutions, and they were not allowed in "servos suos sævire supra modum, et sine causa legibus cognita." Hadrian banished a woman of the name of Umbricia for five years, who, upon the slightest excuse, had treated her slaves with great atrocity'. The slave being classed among the mancipia, the chattels of the Roman law, was therefore an article of commerce, and the subject of gift or bequest. He was sold in the public market, and the seller
was expected to give a warranty if he declared him CHAP. sound1.
Since the slave could possess nothing but his peculium, whatever was acquired by his work and labour belonged to his master.
"The decline of domestic slavery in Europe Decline of was greatly owing to the Christian religion." Slavery atThe establishment of Christianity had doubtless tributed to a powerful effect in lessening the rigours of slavery ity. as it had previously existed. It is from Christianity that we learn the duty of doing as we would be done by, as well as the great truth that all are equal in the sight of God. Whatever has been done in the world to lessen the evils of slavery has arisen from the spread of these principles, and not till these are triumphant will slavery be extinct in the world. Some of the Roman emperors, from a high moral feeling, did much to lessen the miseries of slavery, but no system of morality could effect its suppression.
Freemen were, 1. Ingenui. 2. Libertini. The condition of the mother determined the state of her child as to freedom or slavery. The law of England differs in this respect from the Civil law.
Ingenuus est qui statim ut natus est liber est. Ingenuus. The ingenuus was he who was born of a mother who, at the time of conception, or of birth, or at any time between conception and birth, was free*. The maxim of the Roman law is Partus sequitur ventrem, the child follows the condition of the mother; but this applies only to cases extra matrimonium; for if the child be conceived in matrimonio its condition dates from its conception. By the law of England "partus sequitur patrem." He is pater whom nuptiæ demonstrant. If there be no nuptiæ there can be no pater; hence the term filius nullius.
If an ingenuus fell into slavery and afterwards regained his liberty he did not become libertus, 3 Gai. 1. 89 and 92.
1 D. XXI. 2. 31.
2 I. I. 4.