Page images

law, and were called Lex Imperii or Regia: and they probably gained this title in imitation of the ancient lex regia, by which the Romans conferred the supreme power upon Romulus in the infancy of their state, Liv. lib. 34 c 6. Elementa Juris per Rob. Eden. p. 17."

Edicta magistratuum; seu Prcetorum ; jus honorarium. Praetor was at first a word synonimous with chief or commander (Cor. Nepos in Miltiade.) The office of Praetor (partaking of the English offices of mayor and recorder) was first created A. U. C. 387. This was the Praetor urbanus, or city-magistrate. In the year A. U. C. 511. A Praetor peregrinus, was appointed, after the model of the Athenian n«A=«a{£®- to decide causes, wherein aliens were concerned: though sometimes one man, held both offices either by original election, or subsequent delegation, or by substitution in case of death. (Taylor 211.) The branches of law, were afterwards so divided and subdivided certainly not without reason and foresight, that the Praetors amounted to eighteen in number. They had for the most part equitable jurisdiction. Jusprcctorium, adjuvandi vel supplendi, vel corrigendi juris chilis gratia, propter utilitatem publicamintroductam, Dig. 1. 1. 7. 1.

It was also their duty, at the annual commencement of their office, to publish the forms of proceeding, and the rules of court, (if I may so say) which should operate during their Praetorship. For I do not understand this practice to extend to the legal maxims, by which their decision should be guided.

Hence, the actiones chiles, were not the same with the actiones pratorite. In the time of the emperor Hadrian, Ann. 884, a selection from Praetorian determinations was made, called the Perpetual edict, and enacted as part of the Roman law: not from its own authority as jus honorarium magistratuum, but under the sanction of the imperial constitution.

The Praetorian annual edicts or forms of proceeding, were published, on a Tabula gypso dealbata, or Album; a board plaistered with gypsum yinrra *ki>*ififMfr (the gypsum of the Greeks and Romans was the same with our plaister of Paris, that is a sulphat of lime.)

These Leges annua;, according as their expedience was discovered were continued; and then became edicta translatitia. Occasionally also, the Curule iEdiles published edicts, which as their expedience seemed to merit, were also incorporated in the jus honorarium. See dig. de iEdilitio edicto. 31. 1. 1. 38. 40. 41. 42.

Responsa prudentum. Many lawyers whose particular application and abilities, had rendered them eminent in the profession, undertook to give answers to such questions as were proposed to them. But these insurers were of no weight in the time of the Republic, not even under Augustus, who empowered the lawyers to give their opinions, by a general commission; which yet did not procure them any great authority, Dig. 1. £'. 2. 46. But their opinions grew into considerable credit in the reign of Tiberius, who prohibited any person from presuming te give an opinion in matters of law, without a special licence. Still the answers of the lawyers had not the force of the laws, for Tiberius in his licences, laid no injunction upon his judges, to regard these answers. It is therefore highly probable that the answers of the lawyers were first considered as law, under Valentinian the third; because he confirmed the writings of Gains, Ulpian, Paul, Papinian, and others, nominally; and forbad the judges to swerve from the opinions of these lawyers in points of law: and because many inconveniences arose from the various opinions which even these lawyers gave on the same question, the.emperor ordained that the judges should be governed by a majority, and that in case of an equality they should follow the opinion of those to whom Papiniah adhered, vbi diver see sententice proferuhtur,potius iiumerus vincat attctorum: vei si numervs cquaRs sit, ejus partis prcvedat auctoritas in qua excellentis ingenii vir Papinianus emineat. Cod. 1 Theod. t. 4.1 un. de responsis prudentum. (Harris in loc.)

The Patroni were for a long time Patricians; gratis advocates, and agents. Their clients were bound to relieve them from captivity if taken, and to portion their daughters. Hence at first, the fee of a lawyer, as the fee of a counsel and a physician yet is, in England, was quiddam honorarium: afterwards, it became a profession, and fees were taken, which were regulated by the Lex Cincia.

From their vigilant watching over the cases of their clients, they were called cautores. Hence Dr. Taylor after Scaliger, fancifully derives Cavilling, Cavillari, Cavilatio, from Cavere.

Suchare the various kinds of the Roman or civil law; of which the present book is asummary, containing the general principles that pervade it. Great indeed have been the obligations that Justinian's posterity owed to that emperor, for the laborious, and invaluable digest of law compiled under his auspices. A work that no succeeding age Has hitherto equalled. The Russian code drawn up under the directions of the empress Catharine, and the Tuscan code of Leopold, have merit indeed, but they are trifles compared to the great work now under consideration. Something approaching to it, has been attempted by the emperor Napoleon; and the code Napoleon of Cambaceres, as well as the introductory orations in defence of the leading articles contained in it, have great merit.

The British, and of course the American code, is now becoming what the Roman code was, previous to the labours of Tribonian and his coadjutors: <«<©- M^mxci «-oaa*f, many cart loads. Cannot the same condensed view be taken of our law, as was taken by Justinian of the Roman, and by Napoleon of the French code? I suspect the generality of the profession are of opinion this cannot be done: I am not so. Half a dozen men of talents dividing the labour, under the superintending guidance of some one person to whom the pen should be ultimately committed, might finish the work in four years, according to my view of the subject: and a consummation it would indeed 1>e, devoutly to be wished.

Tit. 3. De jure personarum. Aut liberi sunt aut Scrui. It would require a volume to enter into the great question of slavery, which has been well discussed of late years. I would observe briefly,

That throughout the whole of the Jewish History, from the days of Nimrod downwards, there was no controversy, but that captives taken in war could be made slaves, and that their posterity were considered as slaves also. All the patriarchs counted their slaves among their goods and chattels, among their oxen, their horses, their camels, &c.

Slavery among the Jews took place

1. When a man sold himself through poverty, 25 Lev. 3d.

2. When a father sold his children, 21 Ex. 7.

3. When creditors seized and sold their insolvent debtors, or their children, 2 Kings c. 4. v. 1.

4. A thief was sold when he could not pay his fine, 22 Ex. 3, 4.

5. Prisoners of war.

6. A Hebrew slave ransomed from a Gentile might be sold to another Hebrew by his master.

But the Hebrews were slaves to the Hebrews for six years only, or lintil the sabbatical jubilee. 21 Ex. 2. If the slave married however, he could not take away with him his wife and children, which belonged to the master. 21 Ex. 4. If from attachment to the family, the slave refused to be freed at the end of six years, or at the sabbatical year, then his master might bore his ears with an awl before the magistrate, and the slave became bound for life. The Hebrew slaves were treated more as hired servants by the Jews: not so the bondmen procured from among the heathen. But even from the heathen, they were forbidden to acquire a slave by stealth. See 21 and 25 Levit.

The Phenicians, Carthaginians, Egyptians, Greeks, and Romans, all practised slavery without any doubt being entertained of its propriety. Vendere cum pgssis Captivum, occidere noli. Hor.

The situation of slaves was very bad in early times. Hector tells Andromache that she will be condemned on the fall of Troy to draw water as a slave: so Euripides introduces Hecuba as chained to the gate of Agamemnon. The Phenicians seem to have been first in the practice of kidnapping; see 14th Odyss. All nations, trading in slaves seem prone to mean and clandestine villanies; it is this spirit that has tempted the British slave traders to practise and encourage the same base method of procuring cargoes. Slaves were very ill treated among the Carthaginians. The abject state of the Helotes among the Lacedemonians has become proverbial.

Slaves were also in a bad state among the Romans. They were frequently chained to the gate of a great man's house as p*brters.

I copy the following summary of the circumstances of their condition from Dr. Taylor (Elcm. civ. Law 429); the authorities are accurately cited.

"Slaves were held pro nullis: pro mortuis: how this is to be un"derstood consult A. Faber (and Gothofred ad Dig. 50. 17. 32. 209.) "pro §>uadrupedibus: nay, were in a much worse state than any "cattle whatsoever, as the same author (Faber) has shewn. They "had no head in the state, no name, title, or register: they were not "capable of being injured: nor could they take by purchase or de"scent: they had no heirs, and therefore could make no will: exclu"sive of what was called their peculium, whatever they acquired was "their master's: they could not plead nor be pleaded for, but were "excluded from all civil concerns whatever: they could not claim the "indulgence of absence reipublic* causa: they were not entitled to "the rights and considerations of matrimony, and therefore had no "relief in case of adultery: nor were they proper objects of cognation "or affinity, but of quasi-cognation only: they could be sold, trans"ferred or pawned, as goods or personal estate; for goods they were, "and as such they were esteemed: they might be tortured for evi"dencc: punished at the discretion of their lord, or even put to death "by his authority: together with many other civil incapacities which "■ I have not room to enumerate."

The first law in their favour was the lex Cornelia de sicariis, by which the killing even of a slave became punishable. Dig. 48. 8.

The jus vitie et necis claimed by the master, was restrained by Claudius the successor of Caligula. See also Dig. 48. 8. 2.

In 813 ab u. cond. Nero by the ltx Petronia, deprived masters of the power of sending their slaves to fight wild beasts at the public shews.

The Emperor Adrian, prohibited generally cruel treatment toward slaves; and he banished Umbricia a lady of quality, for five years, quod ex levissimis caush suas ancillas atrocissime tractasset.

Antoninus Pius, applied the Lex Cornelia de sicariis, specifically to the masters of slaves: and the same law was strengthened by Severus and by Constantine. Cod. L. 1. de emendant. serv.

Slaves might always induce an investigation by flying to the statues of the princes. Cod. L. 1 de his qui, &c.

■ The prevalence of Christianity, though neither Christ nor his apostles have condemned slavery, (4 Philem. 11,) contributed gradually but greatly to amend the condition of slaves.

Athena-us (L. c.) says there were several persons at Rome who had ten and twenty thousand slaves: and in VI. 20 he states that at a time when the citizens of Athens were only 21,000, the slaves amounted to 400,000, and that the small Island of jEgina contained 470,000. Id Africa, slavery has been established from time immemorial: the Arabs had African slaves, long before the setdements of the Portuguese: and though some additional aggravations have occurred from kidnapping, and incursions made for the express purpose of procuring cargoes, still the Africans, like all the nations of antiquity, were from the earliest ages in the practice of making slaves of prisoners of war: I forbear any discussion of the right of slavery, as a question too metaphysical and abstruse, to be entered upon here. Nor will my view of it, coincide equally with the sentiments of the middle and north eastern, and those of the southern states. In England, the inexpedience of the practice is considered as settled, and there appears but one opinion in that nation on the general subject of the slave trade, which is, that it ought to be abolished. The law respecting slavery is also now fixed. The case of Somerset the negro has determined that no man of whatever colour can be held as a slave in that country. But the abstract question—that which respects the right of reducing a human creature to slavery under any circumstances, has not yet been investigated so profoundly as its importance deserves. But this is not the place to investigate it, nor would it be easy to shake off the bias of previous habits and prejudgments.

After the travels of Park and Hornemann, no man can reasonably pretend that the Africans have a right to complain, who from one end to the other of that quarter of the world, have exercised from the beginning, and still do exercise the right of reducing each other to sla

« PreviousContinue »