and partial wills, which prolong the dominion of] the testator beyond the grave." 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 authorized by the twelve tables. Before the time of the decemvirs," a Roman citizen exposed his wishes and motives to the assembly of the thirty curiæ or parishes, and the general law of inheritance was suspended by an occasional act of the legislature. After the permission of the decemvirs, each private lawgiver promulgated his verbal or written testament in the presence of five citizens, who represented the five classes of the Roman people; a sixth witness attested their concurrence; a seventh weighed the copper money, which was paid by an imaginary purchaser; and the estate was emancipated by a fictitious sale and immediate release. This singular ceremony," which excited the wonder of the Greeks, was still practised in the age of Severus; but the prætors had already approved a more simple testament, for which they required the seals and signatures of seven witnesses, free from all legal exception, and purposely summoned for the execution of that important act. A domestic monarch, who reigned over the lives and fortunes of his children, might distribute their respective shares according to the degrees of their merit or his affection: his arbitrary displeasure chastised an unworthy son by the loss of his inheritance, and the mortifying preference of a stranger. But the experience of unnatural parents recommended some limitations of their testamentary powers. A son, or, by the laws of Justinian, even a daughter, could no longer be disinherited by their silence: they were compelled to name the criminal, and to specify the offence; and the justice of the emperor enumerated the sole causes that could justify such a violation of the first principles of nature and society. Unless a legitimate portion, a fourth part, had been reserved for the children, they were entitled to institute an action or complaint of inofficious testament; to suppose that their father's understanding was impaired by sickness or age; and respectfully to appeal from his rigorous sentence to the deliberate wisdom of the magistrate. In the Roman jurisLegacies. prudence, an essential distinction was admitted between the inheritance and the legacies. The heirs who succeeded to the entire unity, or to any of the twelve fractions of the substance of the testator, represented his civil and religious charac

m 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 second and third books the method of the Institutes is doubtless preposterous; and the chancellor Duquesseau (Euvres, 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.

n Prior examples of testaments are perhaps fabulous. At Athens a childless father only could make a will. (Plutarch, in Solon, tom. i. p. 164. See Isæus and Jones.)

The testament of Augustus is specified by Suetonius, (in August. c. 101. in Neron. c. 4.) who may be studied as a code of Roman antiquities. Plutarch (Opuscul. tom. ii. p. 976.) is surprised órav de dialŋkas γράφωσιν ἑτερους μεν απολείπουσιν κληρονόμους, έτεροι δε πωλουσι τας

ter, asserted his rights, fulfilled his obligations, and discharged the gifts of friendship or liberality, which his last will had bequeathed under the name of legacies. But as the imprudence or prodigality of a dying man might exhaust the inheritance, and leave only risk and labour to his successor, he was empowered to retain the Falcidian portion; to deduct, before the payment of the legacies, a clear fourth for his own emolument. A reasonable time was allowed to examine the proportion between the debts and the estate, to decide whether he should accept or refuse the testament; and if he used the benefit of an inventory, the demands of the creditors could not exceed the valuation of the effects. The last will of a citizen might be altered during his life, or rescinded after his death: the persons whom he named might die before him, or reject the inheritance, or be exposed to some legal disqualification. In the contemplation of these events, he was permitted to substitute second and third heirs, to replace each other according to the order of the testament; and the incapacity of a madman or an infant to bequeath his property, might be supplied by a similar substitution. But the power of the testator expired with the acceptance of the testament: each Roman of mature age and discretion acquired the absolute dominion of his inheritance, and the simplicity of the civil law was never clouded by the long and intricate entails which confine the happiness and freedom of unborn generations.

trusts.

Conquest and the formalities of law Codicils and established the use of codicils. If a Roman was surprised by death in a remote province of the empire, he addressed a short epistle to his legitimate or testamentary heir; who fulfilled with honour, or neglected with impunity, this last request, which the judges before the age of Augustus were not authorized to enforce. A codicil might be expressed in any mode, or in any language; but the subscription of five witnesses must declare that it was the genuine composition of the author. His intention, however laudable, was sometimes illegal ; and the invention of fidei-commissa, or trusts, arose from the struggle between natural justice and positive jurisprudence. A stranger of Greece or Africa might be the friend or benefactor of a childless Roman, but none, except a fellow-citizen, could act as his heir. The Voconian law, which abolished female succession, restrained the legacy or inheritance of a woman to the sum of one hundred thousand sesterces; and an only daughter

ουσίας.

The language of Ulpian (Fragment. tit. xx. p. 627. edit. Schulting) is almost too exclusive-solum in usû est.

p Justinian (Novell. cxv. No. 3, 4.) enumerates only the public and private crimes, for which a son might likewise disinherit his father. q The substitutions fidei-commissaires of the modern civil law is a feudal idea grafted on the Roman jurisprudence, and bears scarcely any resemblance to the ancient fidei-commissa. (Institutions du Droit François, tom. i. p. 347-383. Denissart, Decisions de Jurisprudence, tom. iv. p. 577--604.) They were stretched to the fourth degree by an abuse of the hundred and fifty-ninth Novel; a partial, perplexed, declamatory law.

r Dion Cassius (tom. ii. 1. lvi. p. 814. with Reimar's Notes) specifies in Greek money the sum of 25,000 drachms.

was condemned almost as an alien in her father's house. The zeal of friendship, and parental affection, suggested a liberal artifice: a qualified citizen was named in the testament, with a prayer or injunction that he would restore the inheritance to the person for whom it was truly intended. Various was the conduct of the trustees in this painful situation; they had sworn to observe the laws of their country, but honour prompted them to violate their oath; and if they preferred their interest under the mask of patriotism, they forfeited the esteem of every virtuous mind. The declaration of Augustus relieved their doubts, gave a legal sanction to confidential testaments and codicils, and gently unravelled the forms and restraints of the republican jurisprudence. But as the new practice of trusts degenerated into some abuse, the trustee was enabled, by the Trebellian and Pegasian decrees, to reserve one-fourth of the estate, or to transfer on the head of the real heir all the debts and actions of the succession. The interpretation of testaments was strict and literal; but the language of trusts and codicils was delivered from the minute and technical accuracy of the civilians.'

III. OF ACTIONS.

:

III. The general duties of mankind are imposed by their public and private relations but their specific obligations to each other can only be the effect of, 1. a promise, 2, a benefit, or, 3. an injury: and when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice."

1. The goddess of faith (of human

Promises. and social faith) was worshipped, not

only in her temples, but in the lives of the Romans; and if that nation was deficient in the more amiable qualities of benevolence and generosity, they astonished the Greeks by their sincere and simple performance of the most burthensome engagements. Yet among the same people, according to the rigid maxims of the patricians and decemvirs, a naked pact, a promise, or even an oath, did not create any civil obligation, unless it was confirmed by the legal form of a stipulation. Whatever might be the etymology of the Latin word, it conveyed the idea of a firm and irrevocable contract, which was always expressed in the mode of a question and answer. Do you promise to pay me one hundred pieces of gold? was the solemn interrogation of Seius. I do promise-was the reply of Sempronius. The friends of Sempronius, who answered for his ability and inclination, might be separately sued at The revolutions of the Roman laws of inheritance are finely, though sometimes fancifully, deduced by Montesquieu. (Esprit des Loix, 1. xxvii.)

t Of the civil jurisprudence of successions, testaments, codicils, legacies, and trusts, the principles are ascertained in the Institutes of Caius, (I. ii. tit. ii-ix. p. 91-144.) Justinian, (1. ii. tit. x-xxv.) and Theophilus; (p. 328-514.) and the immense detail occupies twelve books (xxviii-xxxix) of the Pandects.

u The Institutes of Caius, (1. ii. tit. ix. x. p. 144-214.) of Justinian, (1. iii. tit. xiv.--xxx. l. iv. tit. i-vi.) and of Theophilus, (p. 616–837.) distinguish four sorts of obligations-aut re, aut verbis, aut literis, aut consensa: but I confess myself partial to my own division.

the option of Seius; and the benefit of partition, or order of reciprocal actions, insensibly deviated from the strict theory of stipulation. The most cautious and deliberate consent was justly required to sustain the validity of a gratuitous promise; and the citizen who might have obtained a legal security, incurred the suspicion of fraud, and paid the forfeit of his neglect. But the ingenuity of the civilians successfully laboured to convert simple engagements into the form of solemn stipulations. The prætors, as the guardians of social faith, admitted every rational evidence of a voluntary and deliberate act, which in their tribunal produced an equitable obligation, and for which they gave an action and a remedy.

Benefits.

2. The obligations of the second class, as they were contracted by the delivery of a thing, are marked by the civilians with the epithet of real. A grateful return is due to the author of a benefit; and whoever is intrusted with the property of another, has bound himself to the sacred duty of restitution. In the case of a friendly loan, the merit of generosity is on the side of the lender only; in a deposit, on the side of the receiver; but in a pledge, and the rest of the selfish commerce of ordinary life, the benefit is compensated by an equivalent, and the obligation to restore is variously modified by the nature of the transaction. The Latin language very happily expresses the fundamental difference between the commodatum and the mutuum, which our poverty is reduced to confound under the vague and common appellation of a loan. In the former, the borrower was obliged to restore the same individual thing with which he had been accommodated for the temporary supply of his wants; in the latter, it was destined for his use and consumption, and he discharged this mutual engagement, substituting the same specific value, according to a just estimation of number, of weight, and of measure. In the contract of sale, the absolute dominion is transferred to the purchaser, and he repays the benefit with an adequate sum of gold or silver, the price and universal standard of all earthly possessions. The obligation of another contract, that of location, is of a more complicated kind. Lands or houses, labour or talents, may be hired for a definite term; at the expiration of the time, the thing itself must be restored to the owner with an additional reward for the beneficial occupation and employment. In these lucrative contracts, to which may be added those of partnership and commissions, the civilians sometimes imagine the delivery of the object, and sometimes presume the consent of the parties. The substantial pledge has been refined x How much is the cool, rational evidence of Polybius (I. vi. p. 693. 1. xxxi. p. 1459, 1460.) superior to vague, indiscriminate applauseomnium maxime et præcipue fidem coluit. (A. Gellius, xx. 1.)

y The Jus Prætorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt. (Opp. tom. i. p. 483-564.) And I will here observe that the universities of Holland and Brandenburgh, in the beginning of the present century, appear to have studied the civil law on the most just and liberal principles,

The nice and various subject of contracts by consent is spread over four books (xvii-xx.) of the Pandects, and is one of the parts best deserving of the attention of an English student.

into the invisible rights of a mortgage or hypotheca; | and the agreement of sale, for a certain price, imputes, from that moment, the chances of gain or loss to the account of the purchaser. It may be fairly supposed, that every man will obey the dictates of his interest: and if he accepts the benefit, he is obliged to sustain the expense, of the transaction. In this boundless subject, the historian will observe the location of land and money, the rent of the one and the interest of the other, as they materially affect the prosperity of agriculture and commerce. The landlord was often obliged to advance the stock and instruments of husbandry, and to content himself with a partition of the fruits. If the feeble tenant was oppressed by accident, contagion, or hostile violence, he claimed a proportionable relief from the equity of the laws: five years were the customary term, and no solid or costly improvements could be expected from a farmer, who, at each moment, might be ejected by the sale Interest of of the estate. Usury, the inveterate grievance of the city, had been discouraged by the twelve tables, and abolished by the clamours of the people. It was revived by their wants and idleness, tolerated by the discretion of the prætors, and finally determined by the Code of Justinian. Persons of illustrious rank were confined to the moderate profit of four per cent.; six was pronounced to be the ordinary and legal standard of interest; eight was allowed for the convenience of manufacturers and merchants; twelve was granted to nautical insurance, which the wiser ancients had not attempted to define; but except in this perilous adventure, the practice of exorbitant usury was severely restrained. The most simple interest was condemned by the clergy of the east and west: but the sense of mutual benefit, which had triumphed over the laws of the republic, have resisted with equal firmness the decrees of the church, and even the prejudices of mankind.

money.

3. Nature and society impose the Injuries. strict obligation of repairing an injury; and the sufferer by private injustice, acquires a personal right and a legitimate action. If the property of another be intrusted to our care, the requisite degree of care may rise and fall according to the benefit which we derive from such tempo

a The covenants of rent are defined in the Pandects, (1. xix.) and the Code, (1. iv. tit. lxv.) The quinquennium, or term of five years, appears to have been a custom rather than a law; but in France all leases of land were determined in nine years. This limitation was removed only in the year 1775, (Encyclopédie Méthodique, tom. i. de la Jurisprudence, p. 668, 669.) and I am sorry to observe that it yet prevails in the beauteous and happy country where I am permitted to reside.

b I might implicitly acquiesce in the sense and learning of the three books of G. Noodt, de fœnore et usuris. (Opp. tom. i. p. 175-268.) The interpretation of the asses or centesima usura at twelve, the unciaria at one per cent. is maintained by the best critics and civilians: Noodt, (1. ii. c. 2. p. 207.) Gravina, (Opp. p. 205, &c. 210.) Heineccius, (Antiquitat. ad Institut. 1. iii. tit. xv.) Montesquieu, (Esprit des Loix, I. xxii. c. 22. tom. ii. p. 36. Defense de l'Esprit des Loix, tom. iii. p. 478, &c.) and above all John Frederic Gronovius, (de Pecunia Veteri, 1. iii. c. 13. p. 213-272. and his three Antexegeses, p. 455-655.) the founder, or at least the champion, of this probable opinion; which is, however, perplexed with some difficulties.

c Primo xii tabulis sancitum est ne quis unciario fœnore amplius exerceret. (Tacit. Annal. vi. 16.) Pour peu (says Montesquieu, Esprit des Loix, 1. xxii. c. 22.) qu'on soit versé dans l'histoire de Rome, on verra qu'une pareille loi ne devoit pas être l'ouvrage des decemvirs. Was Tacitus ignorant-or stupid? But the wiser and more virtuous

rary possession; we are seldom made responsible for inevitable accident, but the consequences of a voluntary fault must always be imputed to the author. A Roman pursued and recovered his stolen goods by a civil action of theft; they might pass through a succession of pure and innocent hands, but nothing less than a prescription of thirty years could extinguish his original claim. They were restored by the sentence of the prætor, and the injury was compensated by double or three-fold, or even quadruple, damages, as the deed had been perpetrated by secret fraud or open rapine, as the robber had been surprised in the fact, or detected by a subsequent research. The Aquilian law defended the living property of a citizen, his slaves and cattle, from the stroke of malice or negligence; the highest price was allowed that could be ascribed to the domestic animal at any moment of the year preceding his death; a similar latitude of thirty days was granted on the destruction of any other valuable effects. A personal injury is blunted or sharpened by the manners of the times and the sensibility of the individual: the pain or the disgrace of a word or blow cannot easily be appreciated by a pecuniary equivalent. The rude jurisprudence of the decemvirs had confounded all hasty insults, which did not amount to the fracture of a limb, by condemning the aggressor to the common penalty of twenty-five asses. But the same denomination of money was reduced, in three centuries, from a pound to the weight of half an ounce; and the insolence of a wealthy Roman indulged himself in the cheap amusement of breaking and satisfying the law of the twelve tables. Veratius ran through the streets striking on the face the inoffensive passengers, and his attendant purse-bearer immediately silenced their clamours by the legal tender of twenty-five pieces of copper, about the value of one shilling. The equity of the prætors examined and estimated the distinct merits of each particular complaint. In the adjudication of civil damages, the magistrate assumed a right to consider the various circumstances of time and place, of age and dignity, which may aggravate the shame and sufferings of the injured person; but if he admitted the idea of a fine, a punishment, an example, he invaded the province, though, perhaps, he supplied the defects, of the criminal law.

patricians might sacrifice their avarice to their ambition, and might attempt to check the odious practice by such interest as no lender would accept, and such penalties as no debtor would incur.

d Justinian has not condescended to give usury a place in his Insti. tutes; but the necessary rules and restrictions are inserted in the Pandects (1. xxii. tit. i. ii.) and the Code, (l. iv. tit. xxxii. xxxiii.)

e The fathers are unanimous: (Barbeyrac, Morale des Peres, p. 144, &c.) Cyprian, Lactantius, Basil, Chrysostom, (see his frivolous argu. ments in Noodt, 1. i. c. 7. p. 188.) Gregory of Nyssa, Ambrose, Jerom, Augustin, and a host of councils and casuists.

f Cato, Seneca, Plutarch, have loudly condemned the practice or abuse of usury. According to the etymology of fanus and TOKOs, the principal is supposed to generate the interest: a breed of barren metal, exclaims Shakspeare-and the stage is the echo of the public voice.

g Sir William Jones has given au ingenious and rational Essay on the Law of Bailment. (London, 1781, p. 127. in 8vo.) He is perhaps the only lawyer equally conversant with the year-books of Westminster, the Commentaries of Ulpian, the Attic pleadings of Isæus, and the sentences of Arabian and Persian cadhis.

h Noodt (Opp. tom. i. p. 137–172.) has composed a separate treatise ad Legem Aquiliam. (Pandect. I. ix. tit. ii.)

i Aulus Gellius (Noct. Attic. xx. i.) borrowed his story from the Commentaries of Q. Labeo on the xii tables.

The execution of the Alban dicta

man.

Punishments. tor, who was dismembered by eight horses, is represented by Livy as the first and the last instance of Roman cruelty in the punishment of the most atrocious crimes. But this act of justice, or revenge, was inflicted on a foreign enemy in the heat of victory, and at the command of a single The twelve tables afford a more Severity of the twelve tables. decisive proof of the national spirit, since they were framed by the wisest of the senate, and accepted by the free voices of the people: yet these laws, like the statutes of Draco,' are written in characters of blood." They approve the inhuman and unequal principle of retaliation; and the forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, is rigorously exacted, unless the offender can redeem his pardon by a fine of three hundred pounds of copper. The decemvirs distributed with much liberality the slighter chastisements of flagellation and servitude; and nine crimes of a very different complexion are adjudged worthy of death. 1. Any act of treason against the state, or of correspondence with the public enemy. The mode of execution was painful and ignominious: the head of the degenerate Roman was shrouded in a veil, his hands were tied behind his back, and, after he had been scourged by the lictor, he was suspended in the midst of the forum on a cross, or inauspicious tree. 2. Nocturnal meetings in the city; whatever might be the pretence, of pleasure, or religion, or the public good. 3. The murder of a citizen; for which the common feelings of mankind demand the blood of the murderer. Poison is still more odious than the sword or dagger; and we are surprised to discover, in two flagitious events, how early such subtle wickedness had infected the simplicity of the republic, and the chaste virtues of the Roman matrons." The parricide who violated the duties of nature and gratitude, was cast into the river or the sea, enclosed in a sack; and a cock, a viper, a dog, and a monkey, were successively added as the most suitable companions." Italy produces no monkeys; but the want could never be felt, till the middle of the sixth century first revealed the guilt of a parricide. 4. The malice of an incendiary. After the previous ceremony of whipping, he himself was delivered to the flames; and in this example alone our reason is tempted to

k The narrative of Livy (i. 28.) is weighty and solemn. At tu dictis Albane maneres is a harsh reflection, unworthy of Virgil's humanity. (Æneid, viii. 643.) Heyne, with his usual good taste, observes that the subject was too horrid for the shield of Eneas, (tom. iii. p. 229)

1 The age of Draco (Olympiad xxxix. 1.) is fixed by Sir John Marsham (Canon Chronicus, p. 593–596.) and Corsini. (Fasti Attici, tom. iii. p. 62.) For his laws, see the writers on the government of Athens, Sigonius, Meursius, Potter, &c.

m The eighth, de delictis, of the xii tables is delineated by Gravina. (Opp. p. 292, 293. with a commentary, p. 214-230.) Aulus Gellius, (xx. 1.) and the Collatio Legum Mosaicarum et Romauarum afford much original information.

Livy mentions two remarkable and flagitious æras, of 3000 persons accused, and of 190 noble matrous convicted, of the crime of poisoning, (xl. 43. viii. 18.) Mr. Hume discriminates the ages of private and pub. lic virtue. (Essays, vol. i. p. 22, 23.) I would rather say that such ebullitions of mischief (as in France in the year 1680) are accidents and prodigies which leave no marks on the manners of a nation.

o The xii Tables and Cicero (pro Roscio Amerino, c. 25, 26.) are content with the sack; Seneca (Excerpt. Controvers. v. 4.) adorns it with serpents; Juveual pities the guiltless monkey, (innoxia simia-Satir.

approve the justice of retaliation. 5. Judicial perjury. The corrupt or malicious witness was thrown headlong from the Tarpeian rock to expiate his falsehood, which was rendered still more fatal by the severity of the penal laws, and the deficiency of written evidence. 6. The corruption of a judge, who accepted bribes, to pronounce an iniquitous sentence. 7. Libels and satires, whose rude strains sometimes disturbed the peace of an illiterate city. The author was beaten with clubs, a worthy chastisement, but it is not certain that he was left to expire under the blows of the executioner. 8. The nocturnal mischief of damaging or destroying a neighbour's corn. The criminal was suspended as a grateful victim to Ceres. But the sylvan deities were less implacable, and the extirpation of a more valuable tree was compensated by the moderate fine of twenty-five pounds of copper. 9. Magical incantations; which had power, in the opinion of the Latian shepherds, to exhaust the strength of an enemy, to extinguish his life, and remove from their seats his deep-rooted plantations. The cruelty of the twelve tables against insolvent debtors still remains to be told; and I shall dare to prefer the literal sense of antiquity, to the specious refinements of modern criticism. After the judicial proof or confession of the debt, thirty days of grace were allowed before a Roman was delivered into the power of his fellow-citizen. In this private prison, twelve ounces of rice was his daily food; he might be bound with a chain of fifteen pounds' weight; and his misery was thrice exposed in the marketplace, to solicit the compassion of his friends and countrymen. At the expiration of sixty days, the debt was discharged by the loss of liberty or life; the insolvent debtor was either put to death, or sold in foreign slavery beyond the Tiber: but if several creditors were alike obstinate and unrelenting, they might legally dismember his body, and satiate their revenge by this horrid partition. The advocates for this savage law have insisted, that it must strongly operate in deterring idleness and fraud from contracting debts which they were unable to discharge; but experience would dissipate this salutary terror, by proving, that no creditor could be found to exact this unprofitable penalty of life or limb. As the manners of Rome were insensibly polished, the criminal code of the decemvirs was

xiii. 156.) Hadrian, (apud Dositheum Magistrum, 1. iii. c. 16. p. 874— 876. with Schulting's Note,) Modestinus, (Pandect. xlviii. tit. ix. leg. 9.) Constantine, (Cod. 1. ix. tit. xvii.) and Justinian, (Institut. I. iv. tit. xviii.) enumerate all the companions of the parricide. But this fanci ful execution was simplified in practice. Hodie tamen vivi exuruntur vel ad bestias dantur. (Paul. Sentent. Recept. 1. v. tit. xxiv. p. 512. edit. Schulting.)

p The first parricide at Rome was L. Ostius, after the second Punic war. (Plutarch in Romulo, tom. i. p. 57.) During the Cimbric, P. Malleolus was guilty of the first matricide. (Liv. Epitom. I. Ixviii.)

q Horace talks of the formidine fustis, (1. ii. epist. ii. 154.) but Cicero (de Republicâ, I. iv. apud Augustin. de Civitat. Dei, ix. 6. in Fragment. Philosoph, tom. iii, p. 393. edit. Olivet) affirms that the decem. virs made libels a capital offence; cum perpaucas res capite fauxissent -perpaucas.

Bynkershoek (Observat. Juris Rom. 1. i. c. i. in Opp. tom. i, p. 9-11.) labours to prove that the creditors divided not the body, but the price, of the insolvent debtor. Yet his interpretation is one perpetual harsh metaphor; nor cau he surmount the Roman authorities of Quintilian, Cæcilius, Favonius, and Tertullian. See Aulus Gellius, Noct. Attic. xxi.