Discordant

views as to

90 BRITISH LAW ON SUBJECTS AND ALIENS. [PART I.

character, it ought to be accompanied with the loss of the old. In principle, no one should be a citizen of two nations at the same time, because, in the event of a war arising between them, he would be involved in conflicting duties by a divided allegiance. Yet, with singular inconsistency, some of the states which readily admit foreigners as citizens, strenuously insist on the perpetual allegiance of their own subjects.

In Britain, as well as in America, allegiance is regarded allegiance. as a perpetual obligation, or at least one that cannot be renounced or dissolved without the mutual consent of sovereign and subject.1 We have already shown that an opposite doctrine of a national character, freely chosen by the person, was recognised by the Roman law; and the same principle is adopted in the French Civil Code, which declares the character of a French subject to be lost by naturalisation in a foreign country, by accepting public employment from a foreign government without the sanction of the sovereign of France, and by every establishment made in a foreign country without the intention of returning, in which light, however, no establishments for commercial purposes are to be regarded.2 Similar regulations exist in other Continental states.

1 Westlake's Private International on American Law, 10th ed., p. 10. Law, p. 21. 2 Kent's Commentaries 2 Code Civil, art. 17.

CHAPTER IV.

OF SLAVERY.

In this country, labour, being voluntary, rests upon contract, and the master's authority over the servant extends no farther than the terms of the contract permit. For this reason slavery possesses for us only a sort of historical interest; but it enters so deeply into the public and private life of the Romans, that some brief notice of it may not be without its use.

In principle, the Roman jurists acknowledge that all men are originally free by natural law; and they ascribe the power of masters over their slaves entirely to the law and general custom of nations. Slavery is accordingly defined, "constitutio juris gentium, qua quis, dominio alieno, contra naturam, subjicitur."1

arose.

Among the Romans slavery had its origin chiefly in three How ways. 1st, Prisoners of war were considered the absolute slavery property of the captors, and were either retained for the service of the State and employed in public works, or were sold by auction, sub corona, as part of the plunder. 2d, All the children of a female slave followed the condition of their mother, and belonged to her master, according to the principle applicable to the offspring of the lower animals,-Partus sequitur ventrem. Slaves born in the house of the master were called verna, as opposed to those acquired by purchase or otherwise. 3d, By judicial sentence Roman citizens might be condemned to slavery as a punishment for heinous offences, like the galley-slaves of modern times. 2

1 D. 1. 5. 4. I. 1. 3. 2.

* Marezoll, § 71.

Condition

of slaves at Rome.

According to strict rule a Roman could not be the slave of another Roman. For, although by the Twelve Tables an insolvent debtor might be made over to his creditor, the law required that the debtor should be sold abroad or trans Tiberim. However, if a free man above twenty allowed himself to be sold as a slave by an accomplice, in order to share the price, he forfeited his liberty as a penalty for the fraud. A free woman who "cohabited with a slave was liable to be reduced to slavery under the senatus-consultum Claudianum, but this law was repealed by Justinian.1

In the earlier ages of the republic the number of slaves was small, but after the Roman conquests had extended beyond Italy, the influx of captives became very great, and slaves were sold by dealers in the public market. A large portion of the wealth of the Romans consisted of slaves, among whom many were artisans, whose labour yielded a highly profitable return. All slaves were under the power of their master. He had absolute control over their actions, their industry, and their labour; whatever they acquired belonged to him; and he could transfer them, like his goods. and chattels, by sale, gift, or legacy to any one he pleased. They had no political or civil rights, and were in most respects considered in law as things rather than as persons. If they were sometimes allowed to retain a portion of their gains as a peculium, this was regarded as a favour rather than a right.

During the republic, and for a considerable time under the empire, the master had the absolute power of life and death over his slaves. Historians and poets make us acquainted with the dark side of slave life, and draw a lamentable picture of the cruel treatment to which this unhappy class were exposed. The Roman slaves were despised by rich and poor, and, when they grew old, were sometimes left to die of starvation. The jaded voluptuary whose property they were, could scourge, brand, or torture them at pleasure; and even in the Augustan age we read of Vedius Pollio having ordered one of his domestics, who had broken a crystal goblet, to be

1 C. 7. 24.

cast into his fish-pond to feed his lampreys. Female slaves were often barbarously punished by their mistresses from mere caprice, or for the most venial mistakes in arranging the mysteries of the toilet. Ulpian informs us that a Roman damsel called Umbricia was banished for five years by the Emperor Hadrian for atrocious cruelty to her female slaves.1

By a constitution of Antoninus Pius, mentioned in the Institutes, a master who wilfully put his slave to death was declared to be guilty of murder. The same emperor issued a rescript to protect slaves from cruelty and oppression, directing the governors of provinces to inquire into the complaints of all slaves who took refuge in temples or at the statues of the emperor, which were placed in all the principal towns, and if it appeared that they had been treated with unreasonable severity, to order them to be sold, so that they might never return again to the same master.2 By these and similar measures the condition of slaves was in some degree ameliorated; but the master still retained a power of correction over them, which was substantially unlimited, and led to great abuses. For, even if the slave died in consequence of the chastisement inflicted on him, the master had no prosecution to dread, unless it appeared that he intended to kill.3 Between slaves and free men we find, in the Roman em- Coloni or pire, a class of persons who occupied an intermediate position; these are the coloni, sometimes called adscriptitii or servi terra-that is, serfs who were attached to the soil for the purpose of cultivation, and were transferred along with the land when it was sold. Some authors, such as Savigny, are of opinion that this institution goes no farther back than the reign of Diocletian, though they admit traces of it existed at an earlier period. But other writers think serfs are of more ancient origin.

These serfs could contract marriage, and were regarded in law as persons capable of enjoying certain rights. But in other respects their condition strongly resembled that of ordinary slaves. Their master had the power of chastisement, and they could not dispose of their effects without his 1 D. 1. 6. 2. 2 I. 1. 8. 2. 3 Collatio Legum Mosaicarum, tit. 3, c. 2.

serfs.

How slavery was terminated.

Effects of manumis

sion.

Gold ring.

consent. Originally the colonus was so strictly attached to the land that he could not be separated from it by enfranchisement; but afterwards this rigour disappeared.1

Masters were entitled to give liberty to their slaves by manumission. In ancient times this was usually done in three ways. 1st, By the census, or putting the slave's name on the censor's roll. 2d, By the vindicta or lictor's rod, a ceremony performed in presence of the prætor. And, 3d, By the master in his testament conferring freedom on his slave. Some other less solemn forms of emancipation were afterwards introduced by the Roman emperors, such as in ecclesiis, inter amicos, per epistolam, per convivium. At first the power of enfranchisement, being founded on the master's right of property, was absolutely unlimited; it was subsequently restrained by the laws Elia Sentia and Furia Caninia, and indirectly by the law Julia Norbana; but in order to afford every encouragement to freedom these laws were repealed by Justinian.

Originally, all freedmen emancipated according to the proper forms became Roman citizens, though they were naturally looked down upon as inferiors by those who had no taint of servile blood. Under Augustus there were three classes of freedmen. 1st, Those who had the full rights of citizens. 2d, The Latini Juniani, who had only the privileges which the Latins enjoyed before the social war. And, 3d, the dedititii, who had only an inferior degree of liberty conferred on them, subject to various incapacities, one of which was that they were for ever debarred from attaining the rank of Roman citizens. All these distinctions among freedmen were swept away by the bold innovations of Justinian.

The privilege of wearing a gold ring, which was at first reserved to the equestrian order, was extended to all classes of ingenui or free-born subjects. If any one who was free at his birth was reduced to slavery and afterwards recovered his liberty, he did not cease to be considered ingenuus. But a freedman, if born a slave, had no right to wear the gold ring,

1 De Fresquet, vol. i. p. 110-112, 2 I. 1. 5. 2. Ulp. 1. 7-9. Du Colonat.