The Roman jurisconsult of the better times of the empire crystallized
into legal form the sense of justice and equity inherent in the Roman,
nay, in human society. He expounded the law for the _de facto_ existing
society, and therefore generally in favor of the owner, slaveholder,
etc., and against the thing, the _res_, which was the chattel. The
object of the Roman law was only to regulate existing relations, and
such was domestic slavery. But with all its unbending severity, the
Roman law, through the conscientious voice of the Roman jurisconsult,
declared slavery a condition, "_qua quis dominio alieno contra naturam
subiicitur_," and rarely missed an occasion to favor the slave, to
alleviate his status, and to facilitate his emancipation. No clause
or decision of the law re-enslaved, in any case, the chattel once
emancipated. Even if a will provided for the emancipation of a slave in
terms like these: "I will and command that my slave A becomes free; but
upon condition that he live with my son, and if he refuses or neglects
to do this he returns to slavery," the law decided, that "A, being
emancipated by the first paragraph of the will, cannot be re-enslaved
by the subsequent conditional paragraph; therefore A is free, and he
may or may not fulfil the condition."
The child also followed the condition of the mother when born from
illicit intercourse, _nisi lex specialis alius inducit_. If the father
was a slave and the mother a free woman, the child was free, _quia non
debet calamitas matris ei noceri qui in utero est_--"the misfortune
of the mother shall not bear on the product of the womb." A change of
the status of the mother from liberty to slavery during pregnancy was
always construed favorably to the child, who thus might be born free
if the mother was free for even the shortest time during the period of
pregnancy.
Under the emperors, freemen began to sell themselves into slavery--a
thing unknown during the existence of the republic. But a freeman who
sold himself into slavery, if afterward manumitted, could not become
again a full citizen. And whoever was once emancipated could on no
pretence be re-enslaved, under penalty of death.
Modern pro-slavery legislators and jurisconsults boldly overthrow all
these Roman ideas of justice and equity.
The law established various _just_ causes for emancipation. Among these
were, natural relationships, as children, brothers, sisters, mothers,
cousins, grandparents, etc., when slaves; and whoever _ad impudicitiam
turpemque violationem servos compellat_, lost his _potestas_, or power,
over the slave.
Public-domain text, read in full here on John Shaqi.
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