New Code Relates Inheritance and Slavery

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. . . .

Justinian Code Published, featuring a series of excerpts selected from The History of the Decline and Fall of the Roman Empire by Edward Gibbon published in 1788.

Previously in Justinian Code Published. Now we continue.

Time: 534
Place: Constantinople

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 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 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; 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.

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