natural and civil impediments. An instinct, almost innate and universal,
appears to prohibit the incestuous commerce 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 admitted 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 a
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 honorable, 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, to live the
_concubines_ of Mark Antony and Titus. This 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 honors 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 faithfulness 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
rigor 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.
Chapter XLIV: Idea Of The Roman Jurisprudence.--Part VI.
The relation of guardian and ward, or in Roman words of _tutor_ and
_pupil_, which covers so many titles of the Institutes and Pandects,
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 prÊtor 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
labors 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.
The 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 prÊtor, 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 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 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. 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 labor, 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 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. 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 Briton, 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-citizen. 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 movables, and of two years for immovables,
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. 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_, of
_servitude_, imposed for the benefit of a neighbor 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
subtilty by the same civilians.
The personal title of the first proprietor must be determined by
his death: but the possession, without any appearance of 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 labor. 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 appear to have
deviated from the inequality of nature much less than the Jewish, the
Athenian, or the English institutions. 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
degrees of kindred 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 a 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 _agens_ 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, 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 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 rigor of the
decemvirs was tempered by the equity of the prÊtors. Their edicts
restored and emancipated 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
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 tot he proximity of blood
and affection, succeeded to the vacant possessions of a Roman citizen.
The order of succession is regulated by nature, or at least by the
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. 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 authorized by the
Twelve Tables. Before the time of the decemvirs, a Roman citizen exposed
his wishes and motives to the assembly of the thirty curiÊ 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, which excited the wonder of the Greeks, was still practised in
the age of Severus; but the prÊtors 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. 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 labor 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. 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_.
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 honor, or neglected with impunity, this last request,
which the judges before the age of Augustus were not authorized 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 form 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; 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 honor 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. 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.
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. 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.
Chapter XLIV: Idea Of The Roman Jurisprudence.--Part VII.
1. The goddess of _faith_ (of human and social faith) was worshipped,
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. 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 labored to convert simple engagements into the
form of solemn stipulations. The prÊtors, 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.