XLIV. its existence from him alone. If he inclofes and CHAP. cultivates a field for their fuftenance and his own, a barren waste is converted into a fertile foil; the F 4 XLIV. CHAP. proved an agrarian law as a falfe and dangerous innovation. Among the Romans, the enormous difproportion of wealth furmounted the ideal reftraints of a doubtful tradition and an obsolete fta. tute; a tradition that the pooreft follower of Romulus had been endowed with the perpetual inheritance of two jugera 38, a ftatute 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 confifted only of fome miles of wood and meadow along the banks of the Tyber; and domestic exchange could add nothing to the national ftock. But the goods of an alien or enemy were lawfully expofed to the first hostile occupier; the city was enriched by the profitable trade of war; and the blood of her fons was the only price that was paid for the Volfcian fheep, the flaves of Britain, or the gems and gold of Afiatic kingdoms. In the language of ancient jurifprudence, which was corrupted and forgotten before the age of Juftinian, these spoils were diftinguifhed by the name of manceps or mancipium, taken with the hand; and whenever they were fold or emancipated, the purchaser required fome affurance that they had been the property of an enemy, and not of a fellow citizen 39. A citizen could only 138 The heredium of the first Romans is defined by Varro (de Re -Rufticâ, 1. i. c. 2. p. 141. c. 10. p. 160, 161 edit. Gefner), and clouded by Pliny's declamation (Hift. Natur. xviii. 2.). A juft and learned comment is given in the Administration des Terres chez les Romains (p. 12–66.). 139 The res mancipe is explained from faint and remote lights by Ulpian (Fragment. tit. xviii. p. 618,619.) and Bynkerfhock (Opp. tom. XLIV. only forfeit his rights by apparent dereliction, and CHAP. fuch dereliction of a valuable intereft could not easily be prefumed. 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 mafter, if the actual poffeffor had acquired them by a fair tranfaction from the person whom he believed to be the lawful proprietor 140. Such confcientious 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 Juftinian, are more fuitable to the latitude of a great empire. It is only in the term of prescription that the distinction of real and perfonal fortune has been remarked by the civilians, and their general idea of property is that of fimple, uniform, and abfolute dominion. The fubordinate exceptions of use, of ufufruct*, of fervitudes 42, imposed for the benefit of a neighbour on lands tom. i. p. 306–315.). The definition is somewhat arbitrary ; and as none except myself have affigned a reason, I am diffident of my own. 140 From this fhort prescription, Hume (Effays, vol. i. p. 423.) infers that there could not then be more order and fettlement 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 (Inftitut. I. ii. tît. vi.). 141 See the Institutes (1. i. tit. iv, v.) and the Pandects (1. vii.). Noodt has composed a learned and distinct treatise de Ufufruclû (Opp. tom. p. 387-478). 142 The questions de Servitutibus are difcuffed in the Inftitutes (1. ii. tit. iii.) and Pandects (1. viii.). Cicero (pro Murenâ, c. 9) and Lactantius (Inftitut. Divin. l. i. c. 1.) affect to laugh at the infignifi. cant doctrine, de aquâ pluviâ arcendâ, &c. Yet it might be of frequent ufe among litigious neighbours, both in town and country. and CHAP. and houses, are abundantly explained by the pro XLIV. Of inheritance and feffors of jurisprudence. The claims of property, as far as they are altered by the mixture, the divifion or the transformation of fubftances, are inveftigated with metaphyfical fubtlety by the fame civilians. The perfonal title of the first proprietor must be fucceffion. determined by his death: but the poffeffion, with. out any appearance of change, is peaceably continued in his children, the affociates 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 perfevere in flow and distant improvements, by the tender hope, that a long pofterity will enjoy the fruits of his labour. The principle of hereditary fucceflion is univerfal, but the order has been variously established by convenience or caprice, by the spirit of national inftitutions, or by fome partial example, which was originally decided by fraud or violence. The jurifprudence of the Romans appears to have deviated from the equality of nature, much less than the Jewish 143, the Athenian ***, or the English inftitutions 143. On the death 143 Among the patriarchs, the first born enjoyed a mystic and fpiritual primogeniture (Genefis, 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 fons were equal, but the poor daughters were endowed at the difcretion of their brothers. See the xanpino pleadings of Ifæus (in the viith volume of the Greek Orators), illustrated by the verfion and comment of Sir William Jones, a fcholar, a lawyer, and a man of genius. 145 In England, the eldest son alone inherits all the land, a law, fays the orthodox judge Blackstone (Commentaries on the Laws of England, XLIV. grees of death of a citizen, all his defcendants, unless they CHAP. were already freed from his paternal power, were called to the inheritance of his poffeffions. The infolent prerogative of primogeniture was unknown: the two fexes were placed on a juft level; all the fons and daughters were entitled to an equal portion of the patrimonial estate; and if any of the fons had been intercepted by a premature death, his person was reprefented, and his fhare was divided, by his furviving children. On the failure Civil de of the direct line, the right of fucceffion muft kindred. diverge to the collateral branches. The degrees of kindred' are numbered by the civilians, afcending from the laft poffeffor to a common parent, ànd defcending 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 feries may be conceived by fancy, or pictured in a genealogical table. In this computation, a distinction was made, effential to the laws and even the conftitution of Rome; the agnats, or perfons 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 tranfmitting any legal claims; and the cognats of every rank, without excepting the dear relation of England, vol. ii. p. 215) unjust only in the opinion of younger brothers. It may be of fome political use in sharpening their induftry. 146 Blackstone's Tables (vcl. ii. p. 202.) represent and compare the degrees of the civil with thofe 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 ke computes (No 18) 1024 persons. a mother |