and gently inclined the scale in favour of the guiltless and injured party. Augustus, who united the powers of both magistrates, adopted their different modes of repressing or chastising the licence of divorce. 128 The presence of seven Roman witnesses was required for the validity of this solemn and deliberate act: if any adequate provocation had been given by the husband, instead of the delay of two years, he was compelled to refund immediately, or in the space of six months: but if he could arraign the manners of his wife, her guilt or levity was expiated by the loss of the sixth or eighth part of her marriage portion. The Christian princes were the first who specified the just causes of a private divorce; their institutions, from Constantine to Justinian, appear to fluctuate between the custom of the empire and the wishes of the church, 129 and the author of the Novels too frequently reforms the jurisprudence of the Code and Pandects. In the most rigorous laws, a wife was condemned to support a gamester, a drunkard, or a libertine, unless he were guilty of homicide, poison, or sacrilege, in which cases the marriage, as it should seem, might have been dissolved by the hand of the executioner. But the sacred right of the husband was invariably maintained, to deliver his name and family from the disgrace of adultery: the list of mortal sins, either male or female, was curtailed and enlarged by successive regulations; and the obstacles of incurable impotence, long absence, and monastic profession, were allowed to rescind the matrimonial obligation. Whoever transgressed the permission of the law was subject to various and heavy penalties. The woman was stript of her wealth and ornaments, without excepting the bodkin of her hair: if the man 'introduced a new bride into his bed, her fortune might be lawfully seized by the vengeance of his exiled wife. Forfeiture was sometimes commuted to a fine; the fine was sometimes aggravated by transportation to an island, or imprisonment in a monastery; the injured party was released from the bonds of marriage; but the offender, during life, or a term of years, was disabled from the repetition of nuptials. The successor of Justinian yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent: the civilians were unanimous, 130 the theologians were divided, 131 and the ambiguous word, which contains the precept of Christ, is flexible to any interpretation that the wisdom of a legislator can demand.

128 See the laws of Augustus and his successors, in Heineccius, ad Legem Papiam-Poppaam, c. 19. in Opp. tom. vi. P. i. p. 323-333. 129 Aliæ sunt leges Cæsarum, aliæ Christi; aliud Papinianus, aliud Paulus noster præcipit (Jerom, tom. i. p. 198. Selden, Uxor Ebraica, 1. iii. c. 31. p. 847-853.).

130 The Institutes are silent, but we may consult the Codes of Theodosius (1. iii. tit. xvi. with Godefroy's Commentary, tom. i. p. 310-315.) and Justinian (1. v. tit. xvii.), the Pandects (1. xxiv. tit. ii.) and the Novels (xxii. cxvii. cxxvii. cxxxiv. cxl.). Justinian fluc. tuated to the last between civil and ecclesiastical law.

'31 In pure Greek, wopveca is not a common word; nor can the proper meaning, fornication, be strictly applied to matrimonial sín. In a figurative sense, how far, and to what offences, may it be extended? Did Christ speak the Rabbinical or Syriac tongue? Of what original word is wopveta the translation? How variously is that Greek word translated in the versions ancient and modern! There are two (Mark, x. 11. Luke, xvi. 18.) to one (Matthew, xix. 9.) that such ground of divorce was not excepted by Jesus. Some critics

:

diments. An instinct, almost innate and universal, appears to prohibit the incestuous commerce 132 of parents and children in the infinite series of ascending and descending generations. Concerning the oblique and collateral branches, nature is indifferent, reason mute, and custom various and arbitrary. In Egypt, the marriage of brothers and sisters was adınitted without scruple or exception: a Spartan might espouse the daughter of his father; an Athenian, that of his mother and the nuptials of an uncle with his niece were applauded at Athens as an happy union of the dearest relations. The profane lawgivers of Rome were never tempted by interest or superstition to multiply the forbidden degrees: but they inflexibly condemned the marriage of sisters and brothers, hesitated whether first cousins should be touched by the same interdict; revered the parental character of aunts and uncles, and treated affinity and adoption as a just imitation of the ties of blood. According to the proud maxims of the republic, a legal marriage could only be contracted by free citizens; an honourable, at least an ingenuous birth, was required for the spouse of a senator: but the blood of kings could never mingle in legitimate nuptials with the blood of a Roman; and the name of Stranger degraded Cleopatra and Berenice, 133 to live the concubines of Marc Antony and Titus. 194 appellation, indeed, so injurious to the majesty, cannot without indulgence be applied to the manners, of these Oriental queens. A concubine, in the strict sense of the civilians, was a woman of servile or plebeian extraction, the sole and faithful companion of a Roman citizen, who continued in a state of celibacy. Her modest station, below the honours of a wife, above the infamy of a prostitute, was acknowledged 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 connection, 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 re

This

have presumed to think, by an evasive answer, he avoided the giving offence either to the school of Sammai or to that of Hillel (Selden, Uxor Ebraica, 1. iii. c. 18-22. 28. 31.).

132 The principles of the Roman jurisprudence are exposed by Justinian (Institut. I. i. tit. x.); and the faws and manners of the different nations of antiquity concerning forbidden degrees, &c. are copiously explained by Dr. Taylor in his Elements of Civil Law (p. 108. 314-339.), a work of amusing, though various, reading; but which cannot be praised for philosophical precision.

133 When her father Agrippa died (A.D. 44.), Berenice was sixteen years of age (Joseph. tom. i. Antiquit. Judaic. I. xix. c. 9. p. 952. edit. Havercamp.). She was therefore above fifty years old when Titus (A. D. 79.) invitus invitam invisit. This date would not have adorned the tragedy or pastoral of the tender Racine.

134 The Egyptia conjunx of Virgil (Eneid, viii. 688.) seems to be numbered among the monsters who warred with Marc Antony against Augustus, the senate, and the gods of Italy.

luctantly 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, 135

Guardians and

The relation of guardian and wards. ward, or, in Roman words, of tutor and pupil, which covers so many titles of the Institutes and Pandects, 136 is of a very simple and uniform nature. The 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, or the 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 burdened, 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 consent, no act of the pupil could bind himself to his own prejudice, though it might oblige others for his personal benefit. It is needless to observe, that the tutor often gave security, and always rendered an account, and that the want of diligence or integrity exposed him to a civil and almost criminal action for the violation of his sacred trust. age of puberty had been rashly fixed by the civilians at fourteen; but as the faculties of the mind ripen more slowly than those of the body, a curator was interposed to guard the fortunes of a Roman youth from his own inexperience and headstrong passions. Such a trustee had been first instituted by the prætor, to save a family from the blind havoc of a prodigal or madman: and the minor was compelled, by the laws, to solicit the same protection, to give validity to his acts till he accomplished the full period of twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians; a sex created to please and obey was never supposed to have attained

The

135 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. xxv.), and the Novels (lxxiv. lxxxix.). The researches of Heineccius and Giannone (ad Legem Juliam et Papiam-Poppam, c. iv. p. 164-175. Opere Posthume, p. 108-158.) illustrate this interesting and domestic subject.

136 See the article of guardians and wards in the Institutes (l. i.

the age of reason and experience. Such at least was the stern and haughty spirit of the ancient law, which had been insensibly mollified before the time of Justinian.

II. The original right of pro- II. OF THINGS. perty can only be justified by the Right of proaccident or merit of prior occu- perty. pancy; and on this foundation it is wisely established by the philosophy of the civilians. 157 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 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 encloses 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 land-marks 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. 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

Except in

tit. xiii.-xxvi.), the Pandects (1. xxvi. xxvii.), and the Code (1. v. tit. xxviii. lxx.).

137 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. 207-265.). The opinions of Ulpian are preserved in the Pandects (1. i. tit. viii. leg. 41. No. 1.).

zen. 139

But

tradition, and an obsolete statute; a tradition that the poorest follower of Romulus had been endowed with the perpetual inheritance of two jugera ;138 a statute 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 consisted only of some miles of wood and meadow along the banks of the Tyber; and domestic exchange could add nothing to the national stock. 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 fellow-citiA 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, 140 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. 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,141 of servitudes,142 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.

Of inheritance

The personal title of the first and succession. proprietor must be determined by his death: but the possession, without any appearance of change, is peaceably continued in

138 The heredium of the first Romans is defined by Varro (de Re Rustica, l. 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.).

139 The res mancipe 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. 140 From this short prescription, Hume (Essays, vol. i. p. 423.) infers, that there could not then be more order and settlement in Italy than nore amongst the Tartars. By the civilian of his adversary Wallace, he is reproached, and not without reason, for overlooking the conditions (Institut. 1. ii. tit. vi.).

141 See the Institutes (1, i. tit. iv. v.), and the Pandects (1. vii.). Noodt has composed a learned and distinct treatise de Usufructi 387-478.).

Ply The questions de Servitutibus are discussed in the Institutes

(1. ii. tit. iii.), and Pandects (1. vill.). Cicero (pro Murena, c. 9.) and Lactantius (Institut. Divin. 1. i. c. i.) affect to laugh at the insignifi

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, 149 the Athenian, 144 or the English institutions. 145 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 surviving children. On the failure of the direct line, the right of succession must diverge to the collateral branches. The de- Civil degrees grees of kindred 146 are numbered of kindred. 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; the 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 Voco

cant doctrine, de aquâ pluvià arcendâ, &c. Yet it might be of frequent use among litigious neighbours, both in town and country.

143 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).

144 At Athens the sons were equal, but the poor daughters were endowed at the discretion of their brothers. See the Anpiros pleadings of Isus (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.

145 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. 146 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 viith degrees he computes (No. 18.) 1024 persons.

nian law, 147 which abolished 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 148 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 cognals 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 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. 149

Introduction

The order of succession is reand liberty of gulated by nature, or at least by the testaments. 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 beyond the grave. 150 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 time of the decemvirs, 151 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 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, 152 which excited the wonder of the Greeks, was still practised in the age of Severus; but the prætors had

147 The Voconian law was enacted in the year of Rome 584. The younger Scipio, who was then 17 years of age (Frenshemius, Supplement. Livian. xlvi. 40.), found an occasion of exercising his generosity to his mother, sisters, &c. (Polybius, tom. ii. 1. xxxi. p. 1453–1464. edit. Gronov. a domestic witness).

148 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. 15. xvii. 6.) has saved some passages.

149 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. 388-600.), the Pandects (1. xxxviii. tit. vi.-xvii.), the Code (1. vi. tit. Iv.-Ix.), and the Novels (cxviii.). 150 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 ijid books the method of the Institutes

Legacies.

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. 153 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 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

is doubtless preposterous; and the chancellor Daguesseau (Œuvres, 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.

151 Prior examples of testaments are perhaps fabulous. At Athens a childless father only could make a will (Plutarch, in Solone, tom. i. p. 161. See Isus and Jones).

152 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 draw & διαθήκας γραφωσιν έτερους μεν απολείπουσι κληρονόμους, έτερον θα Love, Tas ovos. The language of Ulpian (Fragment. tit. XI. p. 627. edit. Schulting) is almost too exclusive solum in usa est. 153 Justinian (Novell. cxv. No. 3, 4.) enumerates only the public and private crimes, for which a son might likewise disinherit his father.

similar substitution. 154 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.

Codicils and

Conquest and the formalities of

trusts. 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 honour, or neglected with impunity, this last request, which the judges before the age of Augustus were not authorised 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; 155 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 honour 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. 156 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. 157

III. OF ACTIONS.

man

III. The general duties of ma kind are imposed by their public and

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. 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. 155 Dion Cassius (tom. ii. 1. lvi. p. 814. with Reimar's notes) specifies in Greek money the sum of 25,000 drachms.

156 The revolutions of the Roman laws of inheritance are finely, though sometimes fancifully, deduced by Montesquieu (Esprit des Loix, l. xxvii.).

157 Of the civil jurisprudence of successions, testaments, codicils, legacies, and trusts, the principles are ascertained in the Institutes of Caius (1. fi. 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.

158 The Institutes of Caius (1. ii. tit. ix. x. p. 144-214.) of Jus

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. 158

1. The goddess of faith (of hu- Promises. man and social faith) was worship

ped, 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 performance of the most burdensome engagements. 159 Yet 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 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 laboured to convert simple engagements into the form of solemn stipulations. The prætors, 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, 160

Benefits.

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. 161 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

tinian (1. iii. tit. xiv.-xxx. 1. iv. tit. i.-vi.), and of Theophilus (p. 616-837.), distinguish four sorts of obligations- aut re, aut verbis, aut literis, aut consensú: but I confess myself partial to my own division.

159 How much is the cool rational evidence of Polybius (1. vi. p. 693. 1. xxxi. p. 1459, 1460.) superior to vague, indiscriminate applause omnium maxime et præcipue fidem coluit (A. Gellius, xx. 1.).

160 The Jus Prætorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt (Opp. tom. i. p. 483-564.). And I will here observe, that the universities of Holland and Brandenburgh, in the beginning of the present 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.