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 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, to 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.[32] 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 servitudes, 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 subtlety 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 appears to have
deviated from the equality 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 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 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 prætors. 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 to the proximity of blood
and affection, succeeded 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 law-giver: 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 a 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 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
law-giver 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 prætor 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 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, 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.
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 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.
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. 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 equivalent, and the
obligation to restore is variously modified by the nature of the
transaction. The Latin language very happily expresses the fundamental
difference between the _commodatum_ and the _mutuum_, which our poverty
is reduced to confound under the vague and common appellation of a loan.
In the former, the borrower was obliged to restore the same individual
thing with which he had been accommodated for the temporary supply of
his wants; in the latter it was destined for his use and consumption,
and he discharged this mutual engagement by substituting the same
specific value according to a just estimation of number, of weight, and
of measure. In the contract of sale, the absolute dominion is
transferred to the purchaser, and he repays the benefit with an adequate
sum of gold or silver, the price and universal standard of all earthly
possessions.
The obligation of another contract, that of location, is of a more
complicated kind. Lands or houses, labor or talents, may be hired for a
definite term; at the expiration of the time the thing itself must be
restored to the owner, with the additional reward for the beneficial
occupation and employment. In these lucrative contracts, to which may be
added those of partnership and commissions, the civilians sometimes
imagine the delivery of the object, and sometimes presume the consent of
the parties. The substantial pledge has been refined into the invisible
rights of a mortgage or _hypotheca_; and the agreement of sale, for a
certain price, imputes from that moment the chances of gain or loss to
the account of the purchaser. It may be fairly supposed that every man
will obey the dictates of his interest; and if he accepts the benefit,
he is obliged to sustain the expense of the transaction. In this
boundless subject, the historian will observe the _location_ of land and
money, the rent of the one and the interest of the other, as they
materially affect the prosperity of agriculture and commerce.
The landlord was often obliged to advance the stock and instruments of
husbandry, and to content himself with a partition of the fruits. If the
feeble tenant was oppressed by accident, contagion, or hostile violence,
he claimed a proportionable relief from the equity of the laws; five
years were the customary term, and no solid or costly improvements could
be expected from a farmer who at each moment might be ejected by the
sale of the estate. Usury, the inveterate grievance of the city, had
been discouraged by the _Twelve Tables_, and abolished by the clamors of
the people. It was revived by their wants and idleness, tolerated by the
discretion of the prætors, and finally determined by the _Code_ of
Justinian. Persons of illustrious rank were confined to the moderate
profit of 4 per cent. 6 was pronounced to be the ordinary and legal
standard of interest; 8 was allowed for the convenience of manufacturers
and merchants; 12 was granted to nautical insurance, which the wiser
ancients had not attempted to define; but, except in this perilous
adventure, the practice of exorbitant usury was severely restrained.[33]
The most simple interest was condemned by the clergy of the East and
West; but the sense of mutual benefit, which had triumphed over the laws
of the republic, had resisted with equal firmness the decrees of the
Church, and even the prejudices of mankind.[34]
3. Nature and society impose the strict obligation of repairing an
injury; and the sufferer by private injustice acquires a personal right
and a legitimate action. If the property of another be intrusted to our
care, the requisite degree of care may rise and fall according to the
benefit which we derive from such temporary possession; we are seldom
made responsible for inevitable accident, but the consequences of a
voluntary fault must always be imputed to the author. A Roman pursued
and recovered his stolen goods by a civil action of theft; they might
pass through a succession of pure and innocent hands, but nothing less
than a prescription of thirty years could extinguish his original claim.
They were restored by the sentence of the prætor, and the injury was
compensated by double, or threefold, or even quadruple damages, as the
deed had been perpetrated by secret fraud or open rapine, as the robber
had been surprised in the fact or detected by a subsequent research. The
Aquilian law defended the living property of a citizen, his slaves and
cattle, from the stroke of malice or negligence: the highest price was
allowed that could be ascribed to the domestic animal at any moment of
the year preceding his death; a similar latitude of thirty days was
granted on the destruction of any other valuable effects. A personal
injury is blunted or sharpened by the manners of the times and the
sensibility of the individual: the pain or the disgrace of a word or
blow cannot easily be appreciated by a pecuniary equivalent.
The rude jurisprudence of the decemvirs had confounded all hasty
insults, which did not amount to the fracture of a limb by condemning
the aggressor to the common penalty of twenty-five _asses_. But the same
denomination of money was reduced in three centuries from a pound to the
weight of half an ounce: and the insolence of a wealthy Roman indulged
himself in the cheap amusement of breaking and satisfying the law of the
_Twelve Tables_. Veratius ran through the streets striking on the face
the inoffensive passengers, and his attendant purse-bearer immediately
silenced their clamors by the legal tender of twenty-five pieces of
copper, about the value of one shilling. The equity of the prætors
examined and estimated the distinct merits of each particular complaint.
In the adjudication of civil damages the magistrate assumed the right to
consider the various circumstances of time and place, of age and
dignity, which may aggravate the shame and sufferings of the injured
person: but if he admitted the idea of a fine, a punishment, an example,
he invaded the province, though, perhaps, he supplied the defects of the
criminal law.
IV. The execution of the Alban dictator, who was dismembered by eight
horses, is represented by Livy as the first and the last instance of
Roman cruelty in the punishment of the most atrocious crimes. But this
act of justice, or revenge, was inflicted on a foreign enemy in the heat
of victory and at the command of a single man. The _Twelve Tables_
afford a more decisive proof of the national spirit, since they were
framed by the wisest of the senate, and accepted by the free voices of
the people; yet these laws, like the statutes of Draco, are written in
characters of blood. They approve the inhuman and unequal principle of
retaliation; and the forfeit of an eye for an eye, a tooth for a tooth,
a limb for a limb, is rigorously exacted, unless the offender can redeem
his pardon by a fine of three hundred pounds of copper. The decemvirs
distributed with much liberality the slighter chastisements of
flagellation and servitude; and nine crimes of a very different
complexion are adjudged worthy of death.
1. Any act of treason against the state, or of correspondence with the
public enemy. The mode of execution was painful and ignominious: the
head of the degenerate Roman was shrouded in a veil, his hands were tied
behind his back, and after he had been scourged by the lictor, he was
suspended in the midst of the Forum on a cross or inauspicious tree.
2. Nocturnal meetings in the city; whatever might be the pretence, of
pleasure, or religion, or the public good.
3. The murder of a citizen; for which the common feelings of mankind
demand the blood of the murderer. Poison is still more odious than the
sword or dagger; and we are surprised to discover in two flagitious
events how early such subtle wickedness has infected the simplicity of
the republic, and the chaste virtues of the Roman matrons.[35] The
parricide, who violated the duties of nature and gratitude, was cast
into the river or the sea, enclosed in a sack; and a cock, a viper, a
dog, and a monkey were successively added as the most suitable
companions. Italy produces no monkeys; but the want could never be felt
till the middle of the sixth century first revealed the guilt of a
parricide.[36]
4. The malice of an incendiary. After the previous ceremony of whipping,
he himself was delivered to the flames; and in this example alone our
reason is tempted to applaud the justice of retaliation.
5. Judicial perjury. The corrupt or malicious witness was thrown
headlong from the Tarpeian Rock to expiate his falsehood, which was
rendered still more fatal by the severity of the penal laws and the
deficiency of written evidence.
6. The corruption of a judge who accepted bribes to pronounce an
iniquitous sentence.
7. Libels and satires, whose rude strains sometimes disturbed the peace
of an illiterate city. The author was beaten with clubs, a worthy
chastisement, but it is not certain that he was left to expire under the
blows of the executioner.