cessive states of society, the hunter, the shepherd, the husbandman, may defend their possessions by two reasons which forcibly appeal to the feelings of the human mind: that whatever they enjoy is the fruit of their own industry; and that every man who envies their felicity, may purchase similar acquisitions by the exercise of similar diligence. Such, in truth, may be the freedom and plenty of a small colony cast on a fruitful island. But the colony multiplies, while the space still continues the same; the common rights, the equal inheritance of mankind, are engrossed by the bold and crafty; each field and forest is circumscribed by the land-marks of a jealous master; and it is the peculiar praise of the Roman jurisprudence, that it asserts the claim of the first occupant to the wild animals of the earth, the air, and the waters. In the progress from primitive equity to final injustice, the steps are silent, the shades are almost imperceptible, and the absolute monopoly is guarded by positive laws and artificial reason. The active insatiate principle of self-love can alone supply the arts of life and the wages of industry; and as soon as civil government and exclusive property have been introduced, they become necessary to the existence of the human race. Except in the singular institutions of Sparta, the wisest legislators have disapproved an agrarian law as a false and dangerous innovation. Among the Romans, the enormous disproportion of wealth surmounted the ideal restraints of a doubtful tradition, and an obsolete statute; a tradition that the poorest follower of Romulus had been endowed with the perpetual inheritance of two jugera (138); a statute which confined the richest citizen to the measure of five hundred jugera, or three hundred and twelve acres of land. The original territory of Rome consisted only of some miles of wood and meadow along the banks of the Tiber; and domestic exchange could add nothing to the national stock. But the goods of an alien or enemy were lawfully exposed to the first hostile occupier; the city was enriched by the profitable trade of war; and the blood of her sons was the only price that was paid for the Volscian sheep, the slaves of Britain, or the gems and gold of Asiatic kingdoms. In the language of ancient jurisprudence, which was corrupted and forgotten before the age of Justinian, these spoils were distinguishedby the name of manceps or mancipium, taken with the hand; and whenever they were sold or emancipated, the purchaser required some assurance that they had been the property of an enemy, and not of a fellow-citizen (139). A citizen could only forfeit his rights (138) The heredium of the first Romans is defined by Varro (de Re Rustica, l. i. c. ii. p. 141. c. x. p. 160, 161. edit. Gesner), and clouded by Pliny's declamation (Hist. Natur. xviii. 2.). A just and learned comment is given in the Administration des Terres chez les Romains (p. 12-66.).* (139) The res mancipi is explained from faint and remote lights by Ulpian (Fragment. tit. xviii. * On the duo jugera, compare Niebuhr, vol. i. p. 337.-M. by apparent dereliction, and such dereliction of a valuable interest could not easily be presumed. Yet, according to the Twelve Tables, a prescription of one year for moveables, and of two years for immoveables, abolished the claim of the ancient master, if the actual possessor had acquired them by a fair transaction from the person whom he believed to be the lawful proprietor (140). Such con p. 618, 619.) and Bynkershoek (Opp. tom. i. p. 306–315.). The definition is somewhat arbitrary; and as none except myself have assigned a reason, I am diffident of my own. (140) From this short prescription, Hume (Essays, vol. i. p. 423.) infers, that there could not then be more order and settlement in Italy than now amongst the Tartars. By the civilian of his adversary Wallace, he is reproached, and not without reason, for overlooking the conditions (Institut. 1. ii. tit. vi.).* * Gibbon acknowledges, in the former note, the obscurity of his views with regard to the res mancipi. The interpreters, who preceded him, are not agreed on this point, one of the most difficult in the ancient Roman law. The conclusions of Hume, of which the author here speaks, are grounded on false assumptions. Gibbon had conceived very inaccurate notions of Property among the Romans, and those of many authors in the present day are not less erroneous. We think it right, in this place, to develope the system of property among the Romans, as the result of the study of the extant original authorities on the ancient law, and as it has been demonstrated, recognised, and adopted by the most learned expositors of the Roman law. Besides the authorities formerly known, such as the Fragments of Ulpian, t. xix. and t. i. § 16. Theoph. Paraph. i. 5. § 4., may be consulted the Institutes of Gaius, i. § 54. and ii. § 40. et seqq. The Roman laws protected all property acquired in a lawful manner. They imposed on those who had invaded it, the obligation of making restitution and reparation of all damage caused by that invasion; they punished it, moreover, in many cases, by a pecuniary fine. But they did not always grant a recovery against the third person, who had become bona fide possessed of the property. He who had obtained possession of a thing belonging to another, knowing nothing of the prior rights of that person, maintained the possession. The law had expressly determined those cases, in which it permitted property to be reclaimed from an innocent possessor. In these cases, possessions had the characters of absolute proprietorship, called mancipium, jus Quiritium. To possess this right, it was not sufficient to have entered into possession of the thing in any manner; the acquisition was bound to have that character of publicity, which was given by the observation of solemn forms, prescribed by the laws, or the uninterrupted exercise of proprietorship during a certain time: the Roman citizen alone could acquire this proprietorship. Every other kind of possession, which might be named imperfect proprietorship, was called "in bonis habere." It was not till after the time of Cicero that the general name of Dominium was given to all proprietorship. tion, which the moderns have called Civil (Modi adquirendi Civiles). These modes of acquisition were, 1. Mancipium or mancipatio, which was nothing but the solemn delivering over of the thing in the presence of a determinate number of witnesses and a public officer: it was from this probably that proprietorship was named, 2. In jure cessio, which was a solemn delivering over before the prætor. 3. Adjudicatio, made by a judge, in a case of partition. 4. Lex, which comprehended modes of acquiring in particular cases determined by law; probably the law of the xii tables; for instance, the sub corona emptio and the legatum. 5. Usus, called afterwards usucapio, and by the moderns prescription. This was only a year for moveables; two years for things not moveable. Its primary object was altogether different from that of prescription in the present day. It was originally introduced in order to transform the simple possession of a thing (in bonis habere) into Roman proprietorship. The public and uninterrupted possession of a thing, enjoyed for the space of one or two years, was sufficient to make known to the inhabitants of the city of Rome, to whom the thing belonged. This last mode of acquisition completed the system of civil acquisitions, by legalising, as it were, every other kind of acquisition which was not conferred, from the commencement, by the Jus Quiritium. V. Ulpian. Fragm. i. $ 16. Gaius, ii. § 14. We believe, according to Gaius, § 43., that this usucaption was extended to the case, where a thing had been acquired from a person not the real proprietor; and that, according to the time prescribed, it gave to the possessor the Roman proprietorship. But this does not appear to have been the original design of this Institution. Cæterum etiam earum rerum usucapio nobis competit, quæ non a domino nobis tradita fuerint, si modo eas bona fide acceperimus. Gaius, 1. ii. § 43. As to things of smaller value, or those which it was difficult to distinguish from each other, the solemnities of which we speak were not requisite to obtain legal proprietorship. In this case simple delivery was sufficient. In proportion to the aggrandizement of the Republic, this latter principle became more important from the increase of the commerce and It was then the publicity which constituted the wealth of the state. It was necessary to know distinctive character of absolute dominion. This what were those things of which absolute propublicity was grounded on the mode of acquisi-perty might be acquired by simple delivery, and of inheritance and succession. scientious injustice, without any mixture of fraud or force, could seldom injure the members of a small republic; but the various periods of three, of ten, or of twenty years, determined by Justinian, are more suitable to the latitude of a great empire. It is only in the term of prescription that the distinction of real and personal fortune has been remarked by the civilians; and their general idea of property is that of simple, uniform, and absolute dominion. The subordinate exceptions of use, of usufruct (141), of servitudes (142), imposed for the benefit of a neighbour on lands and houses, are abundantly explained by the professors of jurisprudence. The claims of property, as far as they are altered by the mixture, the division, or the transformation of substances, are investigated with metaphysical subtlety by the same civilians. The personal title of the first proprietor must be determined by his death: but the possession, without any appearance of change, is peaceably continued in his children, the associates of his toil, and the partners of his wealth. This natural inheritance has been pro (141) See the Institutes (1. i. tit. iv, v.), and the Pandects (l. vii.). Noodt has composed a learned and distinct treatise de Usufructu (Opp. tom. i. p. 387--478.). (142) The questions de Servitutibus are discussed in the Institutes (1. ii. tit. iii.), and Pandects 1. viii.). Cicero (pro Murena, c. 9.) and Lactantius (Institut. Divin. 1. i. c. i.) affect to laugh at the insignificant doctrine, de aqua pluvia arcenda, &c. Yet it might be of frequent use among litigious neighbours, both in town and country. what, on the contrary, those, the acquisition of Ulpian and Varro enumerate the different But why are these things alone res mancipi? This is one of the questions, which have been most frequently agitated, and on which the opinions of civilians are most divided. M. Hugo has resolved it in the most natural and satisfactory manner. "All things which were easily known individually, which were of great value, with which the Romans were acquainted, and which they highly appreciated, were res mancipi. Of old mancipation or some other solemn form was required for the acquisition of these things, on account of their importance. Mancipation served to prove their acquisition, because they were easily distinguished one from the other." Ou this great historical discussion consult the Magazine of Civil Law by M. Hugo, vol. ii. p. 37, 38. The dissertation of M. J. M. Zachariæ, de Rebus Mancipi Conjecturæ, p. 11. Lipsiæ, 1807. The History of Civil Law by M. Hugo; and my Institutiones Juris Romani Privati, p. 108. 110. As a general rule it may be said, that all things are res nec mancipi, the res mancipi are the exception to this principle. The prætors changed the system of property by allowing a person, who had a thing in bonis, the right to recover before the prescribed term of usucaption had conferred absolute proprietorship. (Pauliana in rem actio.) Justinian went still farther, in times when there was no longer any distinction between a Roman citizen and a stranger. He granted the right of recovering all things which had been acquired, whether by what were called civil or natural modes of acquisition, Cod. 1. vii. t. 25. 31. And he so altered the theory of Gaius in his Institutes, ii. 1., that no trace remains of the doctrine taught by that civilian.-W. tected by the legislators of every climate and age, and the father is encouraged to persevere in slow and distant improvements, by the tender hope, that a long posterity will enjoy the fruits of his labour. The principle of hereditary succession is universal; but the order has been variously established by convenience or caprice, by the spirit of national institutions, or by some partial example which was originally decided by fraud or violence. The jurisprudence of the Romans appears to have deviated from the equality of nature, much less than the Jewish (143), the Athenian (144), or the English institutions (145). On the death of a citizen, all his descendants, unless they were already freed from his paternal power, were called to the inheritance of his possessions. The insolent prerogative of primogeniture was unknown; the two sexes were placed on a just level; all the sons and daughters were entitled to an equal portion of the patrimonial estate; and if any of the sons had been intercepted by a premature death, his person was represented, and his share was divided, by his surviving children. On the failure of the direct line, the right of succession must diverge to the collateral branches. The degrees of kindred (146) are numbered by the civi- Civil degrees lians, ascending from the last possessor to a common parent, and descending from the common parent to the next heir: my father stands in the first degree, my brother in the second, his children in the third, and the remainder of the series may be conceived by fancy, or pictured in a genealogical table. In this computation, a distinction was made, essential to the laws and even the constitution of Rome; the agnats, or persons connected by a line of males, were called, as they stood in the nearest degree, to an equal partition; but a female was incapable of transmitting any legal claims; and the cognats of every rank, without excepting the dear relation of a mother and a son, were disinherited by the Twelve Tables, as strangers and aliens. Among the Romans agens or lineage was united by a common name and domestic rites; the various cognomens or surnames of Scipio, or Marcellus, distinguished from each other the subordinate branches or families of the Cornelian or Claudian race: the default of the agnats, of the same surname, was sup (143) Among the patriarchs, the first-born enjoyed a mystic and spiritual primogeniture (Genesis, xxv. 31.). In the land of Canaan he was entitled to a double portion of inheritance (Deuteronomy, xxi. 17. with Le Clerc's judicious Commentary). (144) At Athens the sons were equal; but the poor daughters were endowed at the discretion of their brothers. See the xλptxot pleadings of Isæus (in the viith volume of the Greek Orators), ilJustrated by the version and comment of Sir William Jones, a scholar, a lawyer, and a man of genius. (145) In England, the eldest son alone inherits all the land; a law, says the orthodox Judge Blackstone (Commentaries on the Laws of England, vol. ii. p. 215 ), unjust only in the opinion of younger brothers. It may be of some political use in sharpening their industry. (146) Blackstone's Tables (vol. ii. p. 202) represent and compare the decrees of the civil with those of the canon and common law. A separate tract of Julius Paulus, de gradibus et affinibus, is inserted or abridged in the Pandects (1. xxxviii. tit. x.). In the viith degrees he computes (No. 18.), 1024 persons. of kindred. Introduction and liberty of plied by the larger denomination of gentiles; and the vigilance of the laws maintained, in the same name, the perpetual descent of religion and property. A similar principle dictated the Voconian law (147), which abolished the right of female inheritance. As long as virgins were given or sold in marriage, the adoption of the wife extinguished the hopes of the daughter. But the equal succession of independent matrons, supported their pride and luxury, and might transport into a foreign house the riches of their fathers. While the maxims of Cato (148) were revered, they tended to perpetuate in each family a just and virtuous mediocrity: till female blandishments insensibly triumphed; and every salutary restraint was lost in the dissolute greatness of the republic. The rigour of the decemvirs was tempered by the equity of the prætors. Their edicts restored emancipated and posthumous children to the rights of nature; and upon the failure of the agnats, they preferred the blood of the cognats to the name of the gentiles, whose title and character were insensibly covered with oblivion. The reciprocal inheritance of mothers and sons was established in the Tertullian and Orphitian decrees by the humanity of the senate. A new and more impartial order was introduced by the novels of Justinian, who affected to revive the jurisprudence of the Twelve Tables. The lines of masculine and female kindred were confounded: the descending, ascending, and collateral series, was accurately defined; and each degree, according to the proximity of blood and affection, succeeded to the vacant possessions of a Roman citizen (149). The order of succession is regulated by nature, or at least by the testaments. general and permanent reason of the lawgiver: but this order is frequently violated by the arbitrary and partial wills, which prolong the dominion of the testator beyond the grave (150). In the simple state of society, this last use or abuse of the right of property is seldom indulged: it was introduced at Athens by the laws of Solon; and the private testaments of the father of a family are authorised by the Twelve Tables. Before the time of the decemvirs (151) a Roman citizen exposed his wishes and motives to the assembly of (147) The Voconian law was enacted in the year of Rome 584. The younger Scipio, who was then 17 years of age (Frenshemius, Supplement. Livian. xlvi. 40.), found an occasion of exercising his generosity to his mother, sisters, &c. (Polybius, tom. ii. l. xxxi. p. 1453–1464, edit. Gronov. a domestic witness). (148) Legem Voconiam (Ernesti, Clavis Ciceroniana) magna voce bonis lateribus (at lxv years of age) suasissem, says old Cato) de Senectute, c. 5.). Aulus Gellius (vii. 13. xvii. 6.) has saved some passages. (149) See the law of succession in the Institutes of Caius (1. ii. tit. viii. p. 130-144.), and Justinian (1. iii. tit. i—vi. with the Greek version of Theophilus, p. 515-575. 588-600.), the Pandects {1. xxxviii. tit. vi-xvii.), the Code (1. vi. tit. Iv-lx.), and the Novels (cxviii.). (150) That succession was the rule, testament the exception, is proved by Taylor (Elements of Civil Law, p. 519-527.), a learned, rambling, spirited, writer. In the iid and iiid books the method of the Institutes is doubtless preposterous; and the chancellor Daguesseau (OEuvres, tom i. p. 275.) wishes his countryman Domat in the place of Tribonian. Yet covenants before successions is not surely the natural order of the civil laws. (151) Prior examples of testaments are perhaps fabulous. At Athens a childless father only could make a will (Plutarch, in Solone, tom. i. p. 164. See Isæus and Jones.). |