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 connexion, 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 rigour of law, bastards were entitled only 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.1 136 The and wards The relation of guardian and ward, or in Roman words, of Guardians tutor and pupil, which covers so many titles of the Institutes and Pandects,137 is of a very simple and uniform nature. 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 jurisprudence 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 138 or the 136 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. xv.), and the Novels (lxxiv. lxxxix.). The researches of Heineccius and Giannone (ad Legem Juliam et Papiam-Poppæam, c. iv. p. 164-175. Opere Posthume, p. 108158) illustrate this interesting and domestic subject. [All previous studies have been superseded by Paul Meyer's treatise, Der römische Konkubinat, 1895.] 137 See the article of guardians and wards in the Institutes (l. i. tit. xiii.-xxvi.), the Pandects (1. xxvi. xxvii), and the Code (1. v. tit. xxviii. lxx). 138 [Marcus Aurelius instituted a special office for this purpose, the prætor tutelaris. Justinian divided the functions between him and the præfect of the city (Rome or Constantinople).] II. Of things. Right of property 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 burthened, and by the immunities which were granted to the useful labours 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 con It is sent, no act of the pupil could bind himself to his own prejudice, 140 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. 141 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 139 [It was first fixed at this age (in accordance with the opinion of the Proculians) by Justinian.] 140 [Here tutelage is used in a wider sense than tutela. Every woman sui iuris (i.e., neither under potestas, nor in manus) was under the tutela of a guardian. Every freedman was under the tutela of his patron.] 141 Institut. 1. ii. tit. i. ii, Compare the pure and precise reasoning of Caius and Heineccius (1. ii. tit. i. p. 69-91), with the loose prolixity of Theophilus (p. 207265). The opinions of Ulpian are preserved in the Pandects (1. i. tit. viii., leg. 41, No. 1). 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 incloses and cultivates a field for their sustenance and his own, a barren waste is converted into a fertile soil; the seed, the manure, the labour, 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 engrossed by the bold and crafty; each field and forest is circumscribed 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 government 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 disproportion 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 142 142 The heredium of the first Romans is defined by Varro (de Re Rusticâ, 1 i. c. ii. p. 141, c. x. p. 160, 161, edit. Gesner), and clouded by Pliny's declamation (Hist. Natur. xviii. 2). A just and learned comment is given in the Administration des Terres chez les Romains (p. 12-66). 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 Tiber; 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, or 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 fellowcitizen.143 A citizen could only forfeit his rights by apparent dereliction, and such dereliction of a valuable interest could not easily be presumed. 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 master, if the actual possessor had acquired them by a fair transaction from the person whom he believed to be the lawful proprietor.14 143 The res mancipi is explained from faint and remote lights by Ulpian (Fragment. tit. xviii. p. 618, 619), and Bynkershoek (Opp. tom. i. p. 306-315). The definition is somewhat arbitrary; and, as none except myself have assigned a reason, I am diffident of my own. [The distinction of res mancipi and res nec mancipi does not admit of an exact definition, but can be shown only by enumeration. Res mancipi were (1) immoveables situated in Italy, (2) rural servitudes in Italy, (3) oxen, mules, horses, and asses (quæ collo dorsove domantur), (4) slaves. All other things are res nec mancipi. The legal importance of this distinction was that res mancipi alone could be acquired by the process of mancipation (which process, applied to res nec mancipi, was void) and that they could not be acquired by Delivery (traditio). Thus res mancipi meant things that admitted of mancipation (mancipii). The different modes of acquiring property (apart from the original and primary mode: occupation) were six : (1) mancipation, a fictitious sale; (2) in jure cessio, a fictitious process before a magistrate (in which the alienator was assimilated to the defendant), and applicable to both res mancipi and res nec mancipi; (3) traditio, or simple delivery (implying, of course, certain conditions), confers full right of property (dominium) in case of res nec mancipi; but places a res mancipi not in dominio, but in bonis of the receiver, who may convert this incomplete into complete proprietorship by usucapio; (4) usucapio, the prescription mentioned in the text; (5) adjudicatio, a magistrate's award in the case of a partition of property; (6) lex; this included certain cases connected with inheritance, and also treasure-trove.] 144 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. l. ii. tit. `vi.). Such conscientious 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 Justinian, are more suitable to the latitude of a great empire.145 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,146 of servitudes,147 imposed for the benefit of a neighbour 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. ance and The personal title of the first proprietor must be determined of inheritby his death; but the possession, without any appearance of succession 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 labour. 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,148 the Athenian,149 or the English 145 [This transformed usucapio, or prescription, of Justinian was really a combination of the usucapio of the Civil Law, which only applied to Italian soil, and the longi temporis præscriptio, the analogous institution of prætorian law, which applied to provincial soil. The innovation of Justinian was the logical result of the obliteration of the distinction between Italian and provincial soil.] 146 See the Institutes (1. i. [leg. ii.] tit. iv. v.), and the Pandects (1. vii.). Noodt has composed a learned and distinct treatise de Usufructu (Opp. tom. i. p. 387-478). 147 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 pluviâ arcendâ, &c. Yet it might be of frequent use among litigious neighbours, both in town and country. 148 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). 149 At Athens the sons were equal, but the poor daughters were endowed at the discretion of their brothers. See the Anpixo 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. |