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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

141 See the Institutes (1. i. tit. iv. v.) and the Pandects (1. vii.). Noodt has composed a learned and distinct treatise de Usufructâ (Opp. tom, i. pp. 387-478).

Institution. Cæterum etiam earum rerum usucapio nobis competit, quæ non a domino nobis tradita fuerint, si modo eas bonâ 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 wealth of the state. It was necessary to know what were those things of which absolute property might be acquired by simple delivery, and what, on the contrary, those, the acquisition of which must be sanctioned by these solemnities. This question was necessarily to be decided by a general rule; and it is this rule which establishes the distinction between res mancipi and nec mancipi, a distinction about which the opinions of modern civilians differ so much that there are above ten conflicting systems on the subject. The system which accords best with a sound interpretation of the Roman laws, is that proposed by M. Trekel of Hamburg, and still further developed by M. Hugo, who has extracted it in the Magazine of Civil Law, vol. ii. p. 7. This is the system now almost universally adopted mancipi (by contraction for mancipii) were things of which the absolute property (Jus Quiritium) might be acquired only by the solemnities mentioned above, at least by that of mancipation, which was, without doubt, the most easy and the most usual. Gaius, ii. § 25. As for other things, the acquisition of which was not subject to these forms, in order to confer absolute right, they were called res nec mancipi. See Ulpian, Fragm. xix. § 1, 3, 7.

Res

Ulpian and Varro enumerate the different kinds of res mancipi. Their enumerations do not quite agree; and various methods of reconciling them have been attempted. The authority of Ulpian, however, who wrote as a civilian, ought to have the greater weight on this subject.

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." On this great historical discussion consult the Magazine of Civil Law by M. Hugo, vol. ii. pp. 37, 38; the dissertation of M. J. M. Zachariæ, de Rebus Mancipi et nec Mancipi Conjecturæ, p. 11, Lipsiæ, 1807; the History of Civil Law by M. Hugo; and my Institutiones Juris Romani Privati, pp. 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 further, 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.

of servitudes, 142 imposed for the benefit of a neighbor 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 protected 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 labor. 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,1 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 civilians, ascending from

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143

142 The questions de Servitutibus are discussed in the Institutes (1. ii. tit. iii.) and Pandects (1. viii.) Cicero (pro Murenâ, c. 9) and Lactantius (Institut. Divin. 1. i. c. i.) affect to laugh at the insignificant doctrine, de aquâ pluvià arcendâ, &c. Yet it might be of frequent use among litigious neighbors, both in town and country.

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 Kλýρikot pleadings of Isæus (in the viith volume of the Greek Orators), illustrated 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

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 com. putation, 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 a gens 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 supplied by the larger denomination of gentiles; and the vigilance of the laws maintained, in the same name, the perpetual descent of relig ion 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 adop tion 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 rigor of the decemvirs was tempered by the equity of the prætors. Their edicts restored and emancipated 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

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.

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. (Polyb ius, tom. ii. 1. xxxi. pp. 1453-1464, edit. Gronov., a domestic witness.)

148 Legem Voconiam (Ernesti, Clavis Ciceroniana) magnâ 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.

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 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 be yond 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 authorized by the Twelve Tables. Before the time of the decemvirs,151 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,152 which excited the wonder of the Greeks, was still practised in the age of Severus, but the prætor had already approved a more simple testament, for

149 See the law of succession in the Institutes of Caius (1. ii. tit. viii. pp. 120144), and Justinian (1. iii. tit. i.-vi., with the Greek version of Theophilus, pp. 515-575, 588-600), the Pandects (1. xxxviii. tit. vi.-xvii.), the Code (1. vi. tit. lv. 1x), and the Novels (cxviii.)

150 That succession was the rule, testament the exception, is proved by Taylor' (Elements of Civil Law, pp. 519-527), a learned, rambling, spirited writer. In the id and iiid books, the method of the Institutes is doubtless preposterous; and the Chancellor Daguesseau (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.

151 Prior examples of testaments are perhaps fabulous. At Athens a childless father only could make a will (Plutarch, in Soioue, tom. i. p. 16. See Isæus and Jones).

152 The testament of Augustus is specified by Suetonius (in August. p. 101, în Neron. c. 4), who may be studied as a code of Roman antiquities. Plutarch (Opuscul. tom. ii. p. 976), is surprised όταν δὲ διαθήκας γράφωσιν, ἑτέρους μὲν απολείπουσι κληρονόμους, ἕτεροι δὲ πωλοῦσι τας, οὐσίας. The language of Ulpian Fragment. tit. xx. p. 627, edit, Schulting) is almost too exclusive-solum in usû

est.

which they required the seals and signatures of seven wit nesses, free from all legal exception, and purposely sum moned for the execution of that important act. A domes tic 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.158 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 jurisprudence, 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 character, asserted his rights, fulfilled hist 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 labor to his successor, he was empowered to retain the Fal cidian portion; to deduct, before the payment of the leg acies, 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

153 Justinian (Novell. cxv. No. 3, 4) enumerates only the public and private crimes, for which a son might likewise disinherit his father.

Gibbon has singular notions on the provisions of Novell. cxv. 7, 8, 9, which probably he did not clearly understand.-w.

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