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out indulgence be applied to the manners, of these Orientalqueens. A concubine, in the strict sense of the civilian, was a woman of servile or plebeian extraction, the sole and faithful companion of a Roman citizen, who continued. in a state of celibacy. Her modest station, below the honors of a wife, above the infamy of a prostitute, was acknowledged and approved by the laws: from the age of Augustus to the tenth century, the use of this secondary marriage prevailed both in the West and East; and the humble virtues of a concubine were often preferred to the pomp and insolence of a noble matron. In this connection, the two Antonines, the best of princes and of men, enjoyed the comforts of domestic love the example was imitated by many citizens impatient of celibacy, but regardful of their families. If at any time they desired to legitimate their natural children, the conversion was instantly performed by the celebration of their nuptials with a partner whose fruitfulness and fidelity they had already tried.* By this epithet of natural, the offspring of the concubine were distinguished from the spurious brood of adultery, prostitution, and incest, to whom Justinian reluctantly grants the necessary aliments of life; and these natural children alone were capable of succeeding to a sixth part of the inheritance of their reputed father. According to the rigor of law, bastards were entitled to the name and condition of their mother, from whom they might derive the character of a slave, a stranger, or a citizen. The outcasts of every family were adopted without reproach as the children of the state.185

135 The humble but legal rights of concubines and natural children are stated in the Institutes (1. i. tit. x.), the Pandects (1. i. tit. vii.), the Code (1. v. tit. xxv.), and the Novels (lxxiv. lxxxix.). The researches of Heineccius and Giannone (ad Legem Juliam et Papiam-Poppæam, c. iv. pp. 164-175. Opere Posthume, pp. 108158) illustrate this interesting and domestic subject.

*The Edict of Constantine first conferred this right; for Augustus had prohibited the taking as a concubine a woman who might be taken as a wife; and if marriage took place afterwards, this marriage made no change in the rights of the children born before it; recourse was then had to adoption, properly called arrogation.-G.

+ See, however, the two fragments of laws in the newly-discovered extracts from the Theodosian Code, published by M. A. Peyron, at Turin. By the first law of Constantine, the legitimaate offspring could alone inherit; where there were no near legitimate relatives, the inheritance went to the fiscus. The son of a certain Licinianus, who had inherited his father's property under the supposition that he was legitimate, and had been promoted to a place of dignity, was to be degraded, his property confiscated, himself punished with stripes and imprisonment. By the second, all persons, even of the highest rank, senators, perfectissimi, decemvirs, were to be declared infamous, and out of the protection of the Roman law, if born ex ancillà, vel ancillæ filia, vel libertâ, vel libertæ filiâ, sive Romanâ factâ, seu Latinâ, vel scænicæ filiâ, vel ex tabernariâ, vel ex tabernariæ filiâ, vel humili vel abjectà, vel lenonis, aut arenarii filiâ, vel quæ merci. moniis publicis præfuit. Whatever a fond father had conferred on such children

The relation of guardian and ward, or in Roman words of tutor and pupil, which covers so many titles of the Institutes and Pandects,186 is of a very simple and uniform nature. The person and property of an orphan must always be trusted to the custody of some discreet friend. If the deceased father had not signified his choice, the agnats, or paternal kindred of the nearest degree, were compelled to act as the natural guardians: the Athenians were apprehensive of exposing the infant to the power of those most interested in his death; but an axiom of Roman jurispru dence has pronounced that the charge of tutelage should constantly attend the emolument of succession. If the choice of the father, and the line of consanguinity, afforded no efficient guardian, the failure was supplied by the nomination of the prætor of the city, or the president of the province. But the person whom they named to this public office might be legally excused by insanity or blindness, by ignorance or inability, by previous enmity or adverse interest, by the number of children or guardianships with which he was already burdened, and by the immunities which were granted to the useful labors of magistrates, lawyers, physicians, and professors. Till the infant could speak, and think, he was represented by the tutor, whose authority was finally determined by the age of puberty. Without his consent, no act of the pupil could bind himself to his own prejudice though it might oblige others for his personal benefit. It is needless to observe, that the tutor often gave security, and always rendered an account, and that the want of diligence or integrity exposed him to a civil and almost criminal action for the violation of his sacred trust. The age of puberty had been rashly fixed by the civilians at fourteen; but as the faculties of the mind ripen more slowly than those of the body, a curator was interposed to guard the fortunes of a Roman youth from his own inex

136 See the article of guardians and wards in the Institutes (1. i. tit. xiii.xxvi.), the Pandects (1. xxvi. xxvii.), and the Code (1. v. tit. xxviii.-lxx.).

was revoked, and either restored to the legitimate children, or confiscated to the state; the mothers, who were guilty of thus poisoning the minds of the fathers, were to be put to the torture (tormentis subjici jubemus). The unfortunate son of Licinianus, it appears from this second law, having fled, had been taken, and was ordered to be kept in chains to work in the Gynæceum at Carthage. Cod. Theodos, ab. A. Peyron, 87-90.-M.

* Gibbon accuses the civilians of having "rashly fixed the age of puberty at twelve or fourteen years." It was not so; before Justinian, no law existed on this subject. Ulpian relates the discussions which took place on this point among the different sects of civilians. See the Institutes, 1. i. tit. 22, and the fragments of Ulpian. Nor was the curatorship obligatory for all minors.-W.

perience and headstrong passions. Such a trustee had been first instituted by the prætor, to save a family from the blind havoc of a prodigal or madman; and the minor was com pelled, by the laws, to solicit the same protection, to give validity to his acts till he accomplished the full period of twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands or guardians; a sex created to please and obey was never supposed to have attained the age of reason and experience. Such, at least, was the stern and haughty spirit of the law, which had been insensibly mollified before the time of Justinian.

II. The original right of property can only be justified by the accident or merit of prior occupancy; and on this foundation it is wisely established by the philosophy of the civilians.137 The savage who hollows a tree, inserts a sharp stone into a wooden handle, or applies a string to an elastic branch, becomes in a state of nature the just proprietor of the canoe, the bow, or the hatchet. The materials were common to all, the new form, the produce of his time and simple industry, belongs solely to himself. His hungry brethren cannot, without a sense of their own injustice, extort from the hunter the game of the forest overtaken or slain by his personal strength and dexterity. If his provident care preserves and multiplies the tame animals, whose nature is tractable to the arts of education, he acquires a perpetual title to the use and service of their numerous progeny, which derives its existence from him alone. If he encloses and cultivates a field for their sustenance and his own, a barren waste is converted into a fertile soil; the seed, the manure, the labor, create a new value, and the rewards of harvest are painfully earned by the fatigues of the revolving year. In the successive 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 en

187 Institut. 1. ii. tit. i. ii. Compare the pure and precise reasoning of Caius and Heineccius (1. ii. tit. i. pp. 69-91) with the loose prolixity of Theophilus (pp. 207-265). The opinions of Ulpian are preserved in the Pandects (1. i. tit. viii. leg. 41, No. 1).

138

grossed by the bold and crafty; each field and forest is cir cumscribed by the landmarks 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 govern ment 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 dispropor tion 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; 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 Tyber; 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, to 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 distinguished by 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.189 A citizen could only forfeit his rights by apparent dereliction, and such dereliction of a valuable interest could not

138 The heredium of the first Romans is defined by Varro (de Re Rusticâ. 1. i. c. ii. p. 141, c. x. pp. 160, 161, edit. Gesner), and clouded by Pliny's declamation (Hist. Natur. xviii. 2). A just and learned comment is given in the Administra tion des Terres chez les Romains (pp. 12-66).*

130 The res mancipi is explained from faint and remote lights by Ulpian (Fragment. tit. xviii. pp. 618, 619) and Bynkershoek (Opp. tom. i. pp. 306-315). The definition is somewhat arbitrary; and as none except myself have assigned a reason, I am diffident of my own.

*On the duo jugera, compare Niebuhr, vol. i. p. 337.-M.

easily be presumed. Yet, according to the Twelve Tables, a prescription of one year for movables, and of two years for immovables, 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 conscientious injustice, without any

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 develop 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, recognized, 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 seq.

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 bonâ 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 possession 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.

It was then the publicity which constituted the distinctive character of absolute dominion. This publicity was grounded on the mode of acquisition, 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 coronâ emptio and the legatum. 5. Usus, called afterwards usucapio, and by the moderns prescription. This was only a year for movables; two years for things not movable. 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 legalizing, 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 has 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

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