Ancient Law Chapter 5

the age of intellectual maturity or fitness for affairs， it was quite unequal to the purposes of general convenience； and this the Romans seem to have discovered at a very early stage of their social progress. One of the very oldest monuments of Roman legislation is the Lex Laetoria or Plaetoria which placed all free males who were of full years and rights under the temporary control of a new class of guardians， called Curatores， whose sanction was required to validate their acts or contracts. The twenty-sixth year of the young man's age was the limit of this statutory supervision； and it is exclusively with reference to the age of twenty-five that the terms "majority" and "minority" are employed in Roman law. Pupilage or wardship in modern jurisprudence had adjusted itself with tolerable regularity to the simple principle of protection to the immaturity of youth both bodily and mental. It has its natural termination with years of discretion. But for protection against physical weakness and for protection against intellectual incapacity， the Romans looked to two different institutions， distinct both in theory and design. The ideas attendant on both are combined in the modern idea of guardianship.

　　The Law of Persons contains but one other chapter which can be usefully cited for our present purpose. The legal rules by which systems of nature jurisprudence regulate the connection of Master and Slave， present no very distinct traces of the original condition common to ancient societies. But there are reasons for this exception. There seems to be something in the institution of Slavery which has at all times either shocked or perplexed mankind， however little habituated to reflection， and however slightly advanced in the cultivation of its moral instincts. The compunction which ancient communities almost unconsciously experienced appears to have always resulted in the adoption of some imaginary principle upon which a defence， or at least a rationale， of slavery could be plausibly founded. Very early in their history the Greeks explained the institution as grounded on the intellectual inferiority of certain races and their consequent natural aptitude for the servile condition. The Romans， in a spirit equally characteristic， derived it from a supposed agreement between the victor and the vanquished in which the first stipulated for the perpetual services of his foe； and the other gained in consideration the life which he had legitimately forfeited. Such theories were not only unsound but plainly unequal to the case for which

they affected to account. Still they exercised powerful influence in many ways. They satisfied the conscience of the Master. They perpetuated and probably increased the debasement of the Slave. And they naturally tended to put out of sight the relation in which servitude had originally stood to the rest of the domestic system. The relation， though not clearly exhibited， is casually indicated in many parts of primitive law； and more particularly in the typical system —— that of ancient Rome.

　　Much industry and some learning have been bestowed in the United States of America on the question whether the Slave was in the early stages of society a recognised member of the Family There is a sense in which an affirmative answer must certainly be given. It is clear， from the testimony both of ancient law and of many primeval histories， that the Slave might under certain conditions be made the Heir， or Universal Successor， of the Master， and this significant faculty， as I shall. explain in the Chapter on Succession， implies that the government and representation of the Family might， in a particular state of circumstances， devolve on the bondman. It seems， however， to be assumed in the American arguments on the subject that， if we allow Slavery to have been a primitive Family institution， the acknowledgment is pregnant with an admission of the moral defensibility of Negro-servitude at the present moment. What then is meant by saying that the Slave was originally included in the Family？ Not that his situation may not have been the fruit of the coarsest motives which can actuate man. The simple wish to use the bodily powers of another person as a means of ministering to one's own ease or pleasure is doubtless the foundation of Slavery， and as old as human nature. When we speak of the Slave as anciently included in the Family， we intend to assert nothing as to the motives of those who brought him into it or kept him there； we merely imply that the tie which bound him to his master was regarded as one of the same general character with that which united every other member of the group to its chieftain. This consequence is， in fact， carried in the general assertion already made that the primitive ideas of mankind were unequal to comprehending any basis of the connection inter se of individuals， apart from the relations of family. The Family consisted primarily of those who belonged to it by consanguinity. and next of those who had been engrafted on it by adoption； but there was still a third class of persons who were only joined to it by common subjection to its head， and these were the Slaves. The born and the adopted subjects of the chief were raised above the Slave by the certainty that in the ordinary course of events they would be relieved from bondage and entitled to exercise powers of their own； but that the inferiority of the Slave was not such as to place him outside the pale of the Family， or such as to degrade him to the footing of inanimate property， is clearly proved， I think， by the many traces which remain of his ancient capacity for inheritance in the last resort. It would， of course， be unsafe in the highest degree to hazard conjectures how far the lot of the Slave was mitigated， in the beginnings of society， by having a definite place reserved to him in the empire of the Father. It is， perhaps， more probable that the son was practically assimilated to the Slave， than that the Slave shared any of the tenderness which in later times was shown to the son. But it may be asserted with some confidence of advanced and matured codes that， wherever servitude is sanctioned， the Slave has uniformly greater advantages under systems which preserve some memento of his earlier condition than under those which have adopted some other theory of his civil degradation. The point of view from which jurisprudence regards the Slave is always of great importance to him. The Roman law was arrested in its growing tendency to look upon him

more and more as an article of property by the theory of the Law of Nature； and hence it is that， wherever servitude is sanctioned by institutions which have been deeply affected by Roman jurisprudence， the servile condition is never intolerably wretched. There is a great deal of evidence that in those American States which have taken the highly Romanised code of Louisiana as the basis of their jurisprudence， the lot and prospects of the negro-population are better in many material respects than under institutions founded on the English Common Law， which， as recently interpreted， has no true place for the Slave， and can only therefore regard him as a chattel.

　　We have now examined all parts of the ancient Law of Persons which fall within the scope of this treatise， and the result of the inquiry is， I trust， to give additional definiteness and precision to our view of the infancy of jurisprudence. The Civil laws of States first make their appearance as the Themistes of a patriarchal sovereign， and we can now see that these Themistes are probably only a developed form of the irresponsible commands which， in a still earlier condition of the race， the head of each isolated household may have addressed to his wives， his children， and his slaves. But， even after the State has been organised， the laws have still an extremely limited application. Whether they retain their primitive character as Themistes， or whether they advance to the condition of Customs or Codified Texts， they are binding not on individuals，but on Families. Ancient jurisprudence， if a perhaps deceptive comparison may be employed， may be likened to International Law， filling nothing， as it were， excepting the interstices between the great groups which are the atoms of society. In a community so situated， the legislation of assemblies and the jurisdiction of Courts reaches only to the heads of families， and to every other individual the rule of conduct is the law of his home， of which his Parent is the legislator. But the sphere of civil law， small at first， tends steadily to enlarge itself. The agents of legal change， Fictions， in turn to bear on the Equity， and Legislation， are brought primeval institutions， and at every point of the progress， a greater number of personal rights and a larger amount of property are removed from the domestic forum to the cognisance of the public tribunals. The ordinances of the government obtain gradually the same efficacy in private concerns a in matters of state， and are no longer liable to be overridden by the behests of a despot enthroned by each hearthstone. We have in the annals of Roman law a nearly complete history of the crumbling away of an archaic system， and of the formation of new institutions from the recombined materials， institutions some of which descended unimpaired to the modern world， while others， destroyed or corrupted by contact with barbarism in the dark ages， had again to be recovered by mankind. When we leave this jurisprudence at the epoch of its final reconstruction by Justinian， few traces of archaism can be discovered in any part of it except in the single article of the extensive powers still reserved to the living Parent. Everywhere else principles of convenience， or of symmetry，or of simplification —— new principles at any rate have usurped the authority of the jej

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