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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 af. fected 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.” 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.” 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 curiae 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 praetor 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. I}ut 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 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 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 dyin
149 See the law of succession in the Institutes of Caius (l. ii. tit. viii. pp. 120144), and Justinian (l. iii. tit. i.-vi., with the Greek version of Theophilus, pp. 515–575,588–600), the Pandects (l. xxxviii. tit. vi.-xvii.), the Code (1. vi. tit. lv. lx.), and the Novels (cxviii.
* That succession was the rule, testament the erception, is proved by Taylor' so 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 (CEuvres, tom. i. p. 275) wishes his countryman Domat in the place of Tribonian. Yet covenants before successions is not surely the matural order of the civil laws.
* Prior examples of testaments are perhaps fabulous. At Athens a childless o only could make a will (Plutarch, in Soioue, tom. i. p. 164. See Isaeus and
* The testament of Augustus is specified by Suetonius (in August. } 101, in Neron. c. 4), who may be studied as a code of Roman antiquities. Plutarch (Opuscul, tom. li. p. 976), is surprised oraw & Staënkaš ypéówatv, & répov; ov ofoxei Tovost k^mpovéuovo, erepot 3e moodge Taç, oùortag. The language of Ulpian onent. tit. xx. p. 627, edit, Schulting) is almost too exclusive—solum in usû test.
man might exhaust the inheritance, and leave only risk an
labor 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 ab'. solute 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. Conquest and the formalities of law 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 honor, 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 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 honor 154 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. pp. 347-383. Denissart, Décisions de Jurisprudence, tom. iv. R. 577-604). They were stretched to §on degree by an abuse of the clixth Novel; a partial, perplexed, declama
.* Justinian (Novem. cxy. 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.
* Dion Cassius (tom. ii. l. lvi. p. 814, with Reimar's Notes) specifies in Greek money the sum of 25,000 drachms.
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. 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.” I. The goddess of faith (of human 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 W. formance of the most burdensome engagements.” Ct 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 revolutions of the Roman laws of inheritance are finely, though sometimes fancifully, deduced by Montesquieu (Esprit des Loix, i. xxvii.). !" Of the civil jurispridence of successions, testaments, codicils, legacies, and trusts, the principles are ascertained in the Institutes of Caius (i.'ii, tit. ii." iš. pp. 91-14), Justinian (l. ii. tit. x.-xxv.), and Theophilus (pp. 328–514); and the immense detail occupies twelve books (xxviii.-xxxix.) of the Pandects. . * The Institutes of Caius (l. ii. tit. ix. x. pp. 144-214), of justinian (l. iii. tit. xiv:-xxx. l. iv. tit. i.-vi.), and of Theophilus (pp. 616–837), distinguish four sorts of obligations—aut re, aut verbis, aut literis, aut consensu; but I confess myself partial to my own division.* "...How much is the cool, rational evidence of Polybius (l. vi. p. 693, l. xxxi. 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 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 labored to convert simple engagements into the form of solemn stipulations. The praetors, 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.” 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 100. The Jus Praetorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt (Qpp. tom. i. pp. 483-564). And I will here observe, that the universities of Holland and Brandenburg, in the beginning of the pres
PP: 1459, 1460) superior to vague, indiscriminate applause—omnium maxime et Præcipue fidem coluit (A. Gellius, xx. 1). .
* It is not at all applicable to the Roman system of contracts, even if it were allowed to be good.—M.
ent century, appear to have studied the civil law on the most just and liberal principles.”
161 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.f
* Simple agreements (pacta) formed as valid an obligation as a solemn contract. Only an action, or the right to a direct judicial prosecution, was not liermitted in every case of compact. In all other respects, the judge was bound to maintain an agreement made by pactum. The stipulation was a form common to every kind of agreement, by which the right of action was given to this.-W.
t. This is erroneously called “benefits.” Gibbon enumerates various kinds of contracts, of which some alone are properly called benefits.-W.