of kindred institutions. 150 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 Civil degrees Surviving children. On the failure of the direct line, the right of succession must diverge to the collateral branches. The degrees of kindred 151 are numbered by the civilians, ascending from 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 computation, a distinction was made, essential to the laws and even the constitution of Rome. 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 religion and property. A similar principle dictated the Voconian law,152 which abolished The 150 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. 151 Blackstone's Tables (vol. ii. p. 202) represent and compare the degrees of the 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 seventh degrees he computes (No. 18) 1024 persons. 152 The Voconian law was enacted in the year of Rome 584. The younger Scipio, who was then 17 years of age (Freinshemius, Supplement. Livian. xlvi. 40 [leg. 44]), found an occasion of exercising his generosity to his mother, sisters, &c. (Polybius, tom. ii. l. xxxi. p. 1453-1464, edit. Gronov. (B. xxxii. c. 12], a domestic witness). the right of female inheritance. As long as virgins were given or sold in marriage, the adoption 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 153 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 rigour of the decemvirs was tempered by the equity of the prætors. Their edicts restored emancipated and 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 sons was established in the Tertullian and Orphitian decrees by the [A.D. 543] 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.154 and liberty The order of succession is regulated by nature, or at least by Introduction the general and permanent reason of the lawgiver; but this of testaments order is frequently violated by the arbitrary and partial wills which prolong the dominion of the testator beyond the grave.155 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 authorised by the Twelve Tables. Before the 158 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, 154 See the law of succession in the Institutes of Caius (1. ii. tit. viii. p. 130-144), and Justinian (1. iii. tit. i.-vi. with the Greek version 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.). [143, ed. Zach. Accarias regards this law as Justinian's chefd'œuvre (i. p. 1282).] 155 That succession was the rule, testament 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 preposterous; and the Chancellor Daguesseau (Oeuvres, 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. [A.D. 542] time of the decemvirs, 156 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 occa sional 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, 157 which excited the wonder of the Greeks, was still practised in the age of Severus; but the prætors 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. 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 156 Prior examples of testaments are perhaps fabulous. At Athens a childless father only could make a will (Plutarch. in Solone, tom. i. 164 [c. 21]. See Isæus and Jones). 157 The testament of Augustus is specified by Suetonius (in August. c. 101, in Neron. c. 4), who may be studied as a code of Roman antiquities. Plutarch (Opuscul. tom. ii. p. 976) is surprised ὅταν δὲ διαθήκας γράφωσιν ἑτέρους μὲν ἀπολείπουσι κληρονόμους, ἕτεροι δὲ πωλοῦσι τὰς οὐσίας. The language of Ulpian (Fragment. tit. xx. p. 627, edit. Schulting) is almost too exclusive-solum in usu est. 158 Justinian (Novell. cxv. [136, ed. Zachar.] No. 3, 4) enumerates only the public and private crimes, for which a son might likewise disinherit his father. [This Novel enumerates, no. 3, fourteen cases in which a parent (grandparent, &c.) might validly exclude the children, and, no. 4, nine cases in which the children might legitimately exclude their parents. Justinian had already (A.D. 536, Nov. 42) raised the legitimate portion from th to 3rd in case the children were four or fewer, to in case they were more. The defect in this arrangement was that one of a family of 5 would have a larger portion than one of a family of 4. Cp. Accarías, i. p. 964.] 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 Legacies 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 dying man might exhaust the inheritance and leave only risk and labour 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, 159 But the power of the testator expired with the acceptance of the testament; each Roman of mature age and discretion acquired the absolute 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 and 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 honour, or neglected with 159 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. p. 347-383; Denissart, Décisions de Jurisprudence, tom. iv. p. 577-604). They were stretched to the fourth degree by an abuse of the clixth Novel; a partial, perplexed, declamatory law. trusts III. Of actions impunity, this last request, which the judges before the age of Au- 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. 160 Dion Cassius (tom. ii. 1. lvi. p. 814 [c. 10] with Reimar's Notes) specifies in Greek money the sum of 25,000 drachms. 161 The revolutions of the Roman laws of inheritance are finely, though sometimes fancifully, deduced by Montesquieu (Esprit des Loix, 1. xxvii.). 162 Of the civil jurisprudence of successions, testaments, codicils, legacies, and trusts, the principles are ascertained in the Institutes of Caius (1. ii. tit. ii.-ix. p. 91-144), Justinian (1. ii. tit. x-xxv.), and Theophilus (p. 328-514); and the immense detail occupies twelve books (xxviii-xxxix.) of the Pandects. |