XLIV. CHAP. a mother and a fon, were difinherited by the twelve tables, as ftrangers and aliens. Among the Romans, a gens or lineage was united by a common name and domestic rites; the various cognomens or furnames of Scipio, or Marcellus, diftinguifhed from each other the fubordinate branches or families of the Cornelian or Claudian race: the default of the agnats, of the fame furname, was fupplied by the larger denomination of gentiles; and the vigilance of the laws maintained, in the fame name, the perpetual defcent of religion and property. A fimilar principle dictated the Voconian law 47, which abolished the right of female inheritance. As long as virgins were given or fold in marriage, the adoption of the wife extinguished the hopes of the daughter. But the equal fucceffion of independent matrons, fupported their pride and luxury, and might transport into a foreign house the riches of their fathers. While the maxims of Cato' were revered, they tended to perpetuate in each family a just and virtuous mediocrity: till female blandifhments infenfibly triumphed; and every falutary restraint was loft in the diffolute greatnefs of the republic. The rigour of the decemvirs was tempered by the equity of the prætors. Their edicts restored emancipated and 147 The Voconian law was enacted in the year of Rome 584. The younger Scipio, who was then xvii years of age (Frenfhemius, Supplement. Livian. xlvi. 45.), found an occasion of exercising his generofity to his mother, fifters, &c. (Polybius, tom. ii. l. xxxi. p. 1453 -1464. edit. Gronov. a domestic witness). 148 Legem Voconiam (Ernefti, Clavis Ciceroniana) magnâ voce bonis lateribus (at lxv years of age) suasissem, fays old Cato (de Senectute, c. 5.). Aulus Gellius (vii. 13. xvii. 6.) has saved fome paffages. post. XLIV. pofthumous children to the rights of nature; and CHAP. upon the failure of the agnats, they preferred the blood of the cognats to the name of the gentiles, whose title and character were infenfibly covered with oblivion. The reciprocal inheritance of mothers and fons was established in the Tertullian and Orphitian decrees by the humanity of the fenate. A new and more impartial order was introduced by the novels of Juftinian, who affected to revive the jurifprudence of the twelve tables. The lines of mafculine and female kindred were confounded: the defcending, afcending, and collateral feries, was accurately defined; and each degree, according to the proximity of blood and affection, fucceeded to the vacant poffeffions of a Roman citizen 149. The order of fucceffion is regulated by nature, Introducor at least by the general and permanent reafon of tion and liberty of the lawgiver but this order is frequently violated teftaments. by the arbitrary and partial wills which prolong the dominion of the teftator beyond the grave In the fimple state of fociety, this laft ufe or abufe of the right of property is feldom indulged it was introduced at Athens by the laws of Solon; and 150 149 See the law of fucceffion in the Inftitutes of Caius (1. ii. tit. viii. p. 130-144.) and Juftinian (1. iii. tit. i-vi. with the Greek verfion of Theophilus, P. 515-575. 588-600.), the Pandects (1. xxxviii. tit. vi-xvii.), the Code (1. vi. tit. lv.-lx), and the Novels (cxviii.). 159 That fucceffion was the rule, teftament the exception, is proved by Taylor (Elements of Civil Law, p. 519-527.), a learned, rambling, spirited, writer. In the iid and iiid books the method of the Institutes is doubtless prepofterous; and the Chancellor Du queffeau (Oeuvres, tom. i. p.275.) wishes his countryman Domat in the place of Tribonian. Yet covenants before fucceffions is not furely the natural order of the civil laws. the XLIV. CHAP. the private teftaments of the father of a family are authorised by the twelve tables. Before the time of the decemvirs """. a Roman citizen exposed his wishes and motives to the affembly of the thirty curiæ or parishes, and the general law of inheritance was fufpended by an occafional act of the legiflature. After the permiffion of the decemvirs, each private lawgiver promulgated his verbal or written testament in the prefence of five citizens, who represented the five claffes of the Roman people; a fixth witness attefted their concurrence; a feventh weighed the copper money, which was paid by an imaginary purchaser; and the estate was emancipated by a fictitious fale and immediate release. This fingular ceremony 852 which excited the wonder of the Greeks, was ftill practised in the age of Severus; but the prætors had already approved a more simple teftament, for which they required the feals and fignatures of feven witneffes, free from all legal exception, and purposely fummoned for the execution of that important act. A domestic monarch, who reigned over the lives and fortunes of his children, might distribute their refpective fhares according to the degrees of their merit or his affection: his arbitrary 151 Prior examples of teftaments are perhaps fabulous. At Athens a childless father only could make a will (Plutarch, in Solone, tom. i. p. 164. See Ifæus and Jones). 152 The teftament of Auguftus is specified by Suetonius (in Auguft. c. 101. in Neron. c 4.), who may be studied as a code of Roman antiquities. Plutarch (Opuscul. tom. ii. p. 976.) is surprised όταν δε διαθήκας γραφασιν έτερες μεν απολείπεσε κληρονόμος, έτεροι δε πωλέσι τας εσίας. The language of Ulpian (Fragment. tit. xx. P. 627. edit. Schulting) is almost too exclufive-folum in ufû eft. dif XLIV. displeasure chastised an unworthy son by the lofs of CHA P. his inheritance and the mortifying preference of a stranger. But the experience of unnatural parents recommended fome limitations of their testamentary powers. A fon, or, by the laws of Juftinian, even a daughter, could no longer be difinherited by their filence: they were compelled to name the criminal, and to specify the offence; and the justice of the emperor enumerated the fole causes that could justify such a violation of the first principles of nature and fociety 53. Unless a legitimate portion, a fourth part, had been referved for the children, they were entitled to inftitute an action or complaint of inofficious teftament, to fuppofe that their father's understanding was impaired by fickness or age; and respectfully to appeal from his rigorous fentence to the deliberate wisdom of the magistrate. In the Roman jurifprudence, an Legacies, effential distinction was admitted between the inheritance and the legacies. The heirs who fucceeded to the entire unity, or to any of the twelve fractions of the fubftance of the teftator, represented his civil and religious character, afferted 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 fucceffor, he was empowered to retain the Falcidian portion; to deduct, before 153 Juftinian (Novell.cxv. No 3, 4.) enumerates only the public and private crimes, for which a fon might likewife difinherit his father. the XLIV. CHAP. 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 refcinded after his death: the perfons whom he named might die before him, or reject the inheritance, or be exposed to fome legal difqualification. In the contemplation of these events, he was permitted to fubftitute fecond and third heirs, to replace each other according to the order of the teftament; and the incapacity of a madman or an infant to bequeath his property, might be supplied by a fimilar fubftitution 14. But the power of the teftator expired with the acceptance of the teftament: each Roman of mature age and difcretion acquired the abfolute dominion of his inheritance, and the fimplicity of the civil law was never clouded by the long and intricate entails which confine the happiness and freedom of unborn generations. Codicils Conquest and the formalities of law eftablished and trufts. the ufe of codicils. If a Roman was surprised by death in a remote province of the empire, he addreffed a fhort epiftle to his legitimate or tefta 154 The substitutions fidei-commissaires of the modern civil law is a feudal idea grafted on the Roman jurifprudence, and bears fcarcely any refemblance to the ancient fidei-commiffa (Inftitutions du Droit François, tom. i. p. 347-383. Deniflart, Decifions de Jurifprudence, tom. iv. p 577-604.). They were stretched to the fourth degree by an abuse of the clixth Novel; a partial, perplexed, decla→ matory law. |