1845.] Ways in which Slavery could take place. 569 opinion of antiquity, that they were subject, it is true, contrary to their natural destination, but yet not the less jure, to the power and dominion of another.4 In relation to his servitude, the slave was called servus, in Greek, dovlos; to the master's right of property in him, mancipium (ávdoáπodov); in respect to his employment and services, famulus, puer (oixérys, nais). Slavery was established among the Romans upon a two-fold basis, jure gentium, by the law of nations, and jure civili, by the civil law. Institutiones, L. 3. 3. (by Justinian) Servi aut nascuntur, aut fiunt. Nascuntur ex ancillis nostris fiunt, aut jure gentium, aut jure civili. The same is otherwise expressed in the Digesta (Pandects), I. 5. 5. Servi autem in dominium nostrum rediguntur, aut jure civili, aut gentium. Jure civili, si quis se major viginti annis ad pretium participandum venire passus est; (the pretium means the price of his freedom, in reference to the case of a free person fraudulently allowing himself to be sold as a slave for the sake of a share in the purchase-money) jure gentium servi nostri sunt, qui ab hostibus capiuntur, aut qui ex ancillis nostris nascuntur. The former of these divisions explains the origin of slavery, in its relation to the slave, the latter has regard to the legal title of the master. The latter is the more useful and logically correct, for the distinction aut nascuntur, aut fiunt has no practical value, and those qui nascuntur, belong to the class of slaves jure gentium. Accordingly, slavery could take place : 1. Jure gentium, by the law of nations, and a) By capture in war, since the captured enemy, in common with all that was taken, became the property of the victor. Such prisoners of war were either destined, as servi publici, to the service of the State, or sold, as in the majority of cases, for the benefit of the public treasury.5 4 Florentius, Digesta I. 5. 4. Servitus est constitutio juris gentium, qua quis dominio alieni contra naturam subjicitur. So Inst. 1.3. Theophilus 1. 3. 2. Δουλεία δέ ἐστιν ἐθνικοῦ νομίμου διάτυπωσις ἐξ ἧς τις υποβάλλεται τῇ ἑτέρον δεσποτεία, ύ πεναντίον τοῦ φυσικοῦ νομίμου. In regard to the efforts of Greek philosophers to justify slavery, see Charicles II. p. 21 sqq. [a work on the Private Life of the Greeks, by Becker, the author of the present article, and resembling in plan and character Gallus, the corresponding work on Roman life, which has already been translated in England, though not yet re-published in this country.] The expression for the sale of prisoners of war was sub corona venire, as Livy, II. 17. IV. 34. IX. 42. Caesar, Bellum Gallicum, [II. 16. Sometimes the more general expression occurs, sub hasta venire. The words sub corona b) By birth. All who were born of a female slave, were slaves by birth, and belonged to the master of the mother, whoever might be the father, and whether a slave or not.6 Some exceptions to this rule were made by particular laws (Lex Aelia Sentina, Senatus Consultum Claudianum), by which in certain cases the child of a free person became a slave, and vice versâ of a slave became free. (See above, Note 3.) The special name for slaves by birth, is verna.7 2. By the civil law. A free-born Roman could become a slave on several grounds: when unfaithful to his duties towards the State; when an insolvent debtor (since, according to the earliest legislation, the creditor could sell the debtor); and also when he had been guilty of certain crimes. Here, too, belongs the case of a free person fraudulently participating in the act of selling himself as a slave, for the sake of gain. But all these cases do not here deserve special notice, because it is very doubtful, whether a free-born Roman could ever become the slave of a Roman citizen. These various instances have respect to the loss or deterioration of the position of a free citizen in the State, by which he became more or less liable to certain civil and social disabilities. The practical servitude resulting from mancipatio, nexus, and addictio (as in case of debtors), cannot be considered genuine slavery. are to be understood literally. As in Caelius Sabinus, in Gellius VII. 4.— Mancipua-coronis induta-idcirco dicebantur venire sub corona. So Cato in Gellius, and also Festus, p. 306. Sub corona venire dicuntur, quia captivi coronati solent venire, etc. [Thus it appears that the captives were brought to market crowned with garlands, like the victims destined for sacrifice in the temples, and hence sub corona venire.] 6 According to the principle, that in the cases, where there is no connubium (i. e. lawful wedlock, marriage between free persons) the children followed the mother, partus sequitur matrem. Ulpian, (a jurist in the time of Constantine,) Digesta, I. 5. 24. Lex naturae haec est, ut qui nascitur sine legitimo matrimonio, matrem sequatur, nisi lex specialis aliud inducat. Gaius I. 82. [Connubium is the word for the marriage-relation viewed from the position of the State, valid, lawful marriage, to which it was necessary that both parties be free persons matrimonium has, properly, reference to the position of the wife (from mater, mother), meaning the honorable connection of a woman with a man as her husband. The word for the marriage connection between slaves, is contubernium.] 7 [Dr. Becker introduces here a long and learned note upon the etymology of verna; which, however, goes no further than to make out the above fundamental meaning of the word. Döderlein, V. 137. considers it as exactly corresponding to the Gothic word barn, one born, a child.] 8 [The author has here a paragraph of considerable length on the supposed import of injusta servitus, as opposed to justa servitus, the servitus being injusta, e. g. when a free-born Roman was taken prisoner in war. But he contends 1845.] Power of a Master over his Slaves. 571 With the Romans, a slave passed indeed for a human being, but one without any personal rights; in the legal sense he had no caput, no legal rights, no legal capacity.9 He was in the potestas (power) of the master; but in a different manner from the case of children, in the power of the head of a family-with the slave it is a potestas dominica, dominium.10 In consequence of this dominium, the master had entire right of property in the slave, and could do just as he pleased with his person and his life, his powers and his earnings.11 In regard to the power of life and death, it was unlimited. The master could use the slave for any purpose that suited his own pleasure. He could punish him, put him to pain and torture, and, free from all obligation to give an account of his actions, could put him to death in any way that pleased him. This right of unlimited dominion continued down to a late time, and certainly through the whole period of the Republic; and it can even be safely assumed that it was in less actual exercise in the earlier than in the later periods of Roman history. The arbitrary exercise of this power, which had been previously only subject to censorial animadversion, was gradually limited, at first by the operation of the Lex that the expression never occurs in such sense either in classic or in legal use; and that, on the contrary, where it does occur, it has an entirely different sense. Justa servitus means regular, lawful slavery. If one is emancipated from such slavery, he becomes libertinus, a freedman. On the other hand, in cases where a person serves as a slave, but in such circumstances that, if he is freed, he becomes not libertinus, but returns to the class of the ingenui, the free-born, the condition cannot be called injusta servitus, but only not justa servitus, because to this latter is necessary not only servire, but also jure servire or servitutem servire. The true distinction of injusta servitus, on the contrary, is established upon a different, upon a philosophical basis. It is the Aristotelian justification of slavery on the ground of the original destination of some to be slaves and of others to be masters, of some to be rulers, and of others to be subjects, etc. De Rep. 1. 6. According to the view of Aristotle, there occurs an adɩkoç dovλɛía, injusta servitus, when the ȧvážios dovλevet, i. e. the individual serves as a slave, who was designed άρχειν and δεσπόζειν, to be the master. To such an injusta servitus, there can indeed be the antithesis of a justa servitus, but not at all in the sense of Roman law; it would mean a servitus in which the pure dovλos, i. e. the slave by nature-intended to be such-dikaiwç dovλɛɛ, serves justly.]—TR. Digesta 1. 19. 32. Quod attinet ad jus civile, servi pro nullis habentur; non tamen et jure naturali, quia, quod ad jus naturale attinet, omnes homines aequales sunt. IV. 5. 3. quia servile caput (civil condition of a slave) nullum jus habet, ideo nec minui potest. 10 Potestates verbo plura significantur, in persona magistratuum imperium ; in persona liberorum patria potestas; in persona servi dominium. Dig. L. 15, 215. 11 See Becker's Charicles, II. p. 25. Petronia, which forbade that any one should give up his slave, arbitrarily (sine judice), ad bestias depugnandas (to fight with wild beasts); perhaps even in the time of Augustus, though the story of the cruelty of Vedius Pollio (Dio Cass. LIV. 23. Seneca de Irâ, III. 40) seems to prove, that up to that time there was no legal restriction on the right of the master. We find that Claudius took some measures to arrest the hard-heartedness of masters; but for the first time under Adrian, and afterwards more rigidly under Antoninus Pius, was it determined by legal enactment, that any one who should, of his own will, put a slave to death, should be just as liable to punishment, as if he had taken the life of any other person, over whom he had no control whatever. In addition to this, it may be observed, that the Grecian principle was introduced by Antoninus, that slaves who had sought refuge in a sanctuary from the excessive severity of a master, could not be brought back by force, but the master was compelled to sell them. a κτῆμα (α mere instru In reference to the second point already mentioned, that all which the slave earned, belonged to the master, the Roman was much more rigid than the Grecian law. Although in Greece the slave was considered ἔμψυχον ὄργανον or ment endowed with life, or a possession), yet there were there many slaves, who worked as tradesmen, and paid their master only a trifling tax upon the results of their labor; and apart from such a tax, the slaves in these cases had an independent title to the work of their hands. In Rome, on the contrary, the slave could indeed, by great diligence and economy, acquire a scanty property (peculium); but strictly considered, all this together with the slave himself, belonged to the master, and might be retained by him even at the period of manumission. The limitations of this legal provision were only of a practical nature, and grew out of the indulgence of the masters; so that the master not only allowed a slave to acquire property, but also took special occasion to bring about such a result. In these cases, the master either suffered the slave to retain the property, or to purchase with it his freedom. The slave was not capable of a legal marriage connection, either with free persons or with slaves. The only sexual connection was a contubernium, (a mere living together) without any of the legitimate rights of marriage. See above, page 570. The slave had no regular legal name, none except that which happened to be given him by his master. Thus he was called Marcipor, (Marci puer) Publipor, Quintipor, etc., according to the 1845.] Treatment of Slaves. 573 name of the master. In other cases, some arbitrary name was given, or one borrowed from his native country, as Lydus, Syrus, a Lydian, a Syrian. Among the Greeks, a slave could bear any name belonging to a freeman, because with the Greeks the name itself was something accidental and changing; whereas with the Romans, as a name was a mark of a free citizen and a family inheritance, it could not be given to a slave. Thus the slave was treated among the Romans, not as a person, but as a thing, yet always as a human being. He was destitute of all legal capacity; every injury, every offence done to him concerned only the master, and to him alone satisfaction was given, restitution was made. But not all that would have passed for an injury in reference to a free person, was so considered in reference to a slave; on the contrary, a slave could be insulted, and even be struck with the hand, with impunity. On the other hand, too, the master was held responsible for all offences committed by the slave; he could free himself from such responsibility, in cases of private injury, by giving up the slave to the injured party. In regard to offences committed against the master, the punishment was in general left with himself; but in case of the murder of the master in his own house, the punishment was administered by the State, (publica quaestio habebatur,) and on this point, owing to the great number of masters whose lives were threatened by slaves, the barbarous practice was thought necessary, of putting to death, without a single exception, all the slaves who were under the roof of the deceased at the time of the commission of the murder. ¡2 12 The necessity of this practice was argued on the ground, that only thus could the murder of masters be prevented, and their lives held secure. It was held the duty of every slave to hinder by all means the murder of his master, and he was kept bound to this duty by the application of the principle of fear for his personal safety. The first decree of the Senate on this point was the Silanianum, under Augustus, 763 of Rome. Its provisions were increased by Nero. (Tacitus, Ann. 13, 42.) We give it in English: "A decree passed the Senate to protect the lives of masters by the punishment of offending slaves. With this view it was decreed, that in the case of a master slain by his slaves, execution should be done, not only upon all actual slaves, but also upon all who had received their freedom, but were s'ill living under the roof of the deceased, at the time when the murder was committed." This decree was executed with the utmost rigor, notwithstanding the tumult of the people, in the case of the Prefect of the city, Pedanius Secundus, slain by one of his slaves, in the year 61 A. D. Tacitus, in Annals, 14. 42. thus writes: According to usage, every slave in the family was subject to capital punishment; but the people, pitying the fate of so many innocent men, assembled in VOL. II. No. 7. 49 |