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, 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
praetor 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; 1361 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 praetor, 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.

136 (return) [ See the article of guardians and wards in the
Institutes, (l. i. tit. xiii.—xxvi.,) the Pandects, (l. xxvi.
xxvii.,) and the Code, (l. v. tit. xxviii.—lxx.)]

1361 (return) [ Gibbon accuses the civilians of having “rashly
fixed the age of puberty at twelve or fourteen years.” It was not
so; before Justinian, no law existed on this subject. Ulpian
relates the discussions which took place on this point among the
different sects of civilians. See the Institutes, l. i. tit. 22,
and the fragments of Ulpian. Nor was the curatorship obligatory
for all minors.—W.]

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. 137 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; 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. 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 manicipium, 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. 139 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. 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 servitude, 142 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.

137 (return) [ Institut. l. ii. tit i. ii. Compare the pure and
precise reasoning of Caius and Heineccius (l. ii. tit. i. p.
69-91) with the loose prolixity of Theophilus, (p. 207—265.) The
opinions of Ulpian are preserved in the Pandects, (l. i. tit.
viii. leg. 41, No. 1.)]

138 (return) [ 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.) Note: On
the duo jugera, compare Niebuhr, vol. i. p. 337.—M.]

139 (return) [ The res mancipi is explained from faint and remote
lights by Ulpian (Fragment. tit. xviii. p. 618, 619) and
Bynkershoek, (Opp tom. i. p. 306—315.) The definition is somewhat
arbitrary; and as none except myself have assigned a reason, I am
diffident of my own.]

140 (return) [ From this short prescription, Hume (Essays, vol.
i. p. 423) infers that there could not then be more order and
settlement in Italy than now amongst the Tartars. By the civilian
of his adversary Wallace, he is reproached, and not without
reason, for overlooking the conditions, (Institut. l. ii. tit.
vi.) * Note: Gibbon acknowledges, in the former note, the
obscurity of his views with regard to the res mancipi. The
interpreters, who preceded him, are not agreed on this point, one
of the most difficult in the ancient Roman law. The conclusions
of Hume, of which the author here speaks, are grounded on false
assumptions. Gibbon had conceived very inaccurate notions of
Property among the Romans, and those of many authors in the
present day are not less erroneous. We think it right, in this
place, to develop the system of property among the Romans, as the
result of the study of the extant original authorities on the
ancient law, and as it has been demonstrated, recognized, and
adopted by the most learned expositors of the Roman law. Besides
the authorities formerly known, such as the Fragments of Ulpian,
t. xix. and t. i. 16. Theoph. Paraph. i. 5, 4, may be consulted
the Institutes of Gaius, i. 54, and ii. 40, et seq. The Roman
laws protected all property acquired in a lawful manner. They
imposed on those who had invaded it, the obligation of making
restitution and reparation of all damage caused by that invasion;
they punished it moreover, in many cases, by a pecuniary fine.
But they did not always grant a recovery against the third
person, who had become bona fide possessed of the property. He
who had obtained possession of a thing belonging to another,
knowing nothing of the prior rights of that person, maintained
the possession. The law had expressly determined those cases, in
which it permitted property to be reclaimed from an innocent
possessor. In these cases possession had the characters of
absolute proprietorship, called mancipium, jus Quiritium. To
possess this right, it was not sufficient to have entered into
possession of the thing in any manner; the acquisition was bound
to have that character of publicity, which was given by the
observation of solemn forms, prescribed by the laws, or the
uninterrupted exercise of proprietorship during a certain time:
the Roman citizen alone could acquire this proprietorship. Every
other kind of possession, which might be named imperfect
proprietorship, was called “in bonis habere.” It was not till
after the time of Cicero that the general name of Dominium was
given to all proprietorship. It was then the publicity which
constituted the distinctive character of absolute dominion. This
publicity was grounded on the mode of acquisition, which the
moderns have called Civil, (Modi adquirendi Civiles.) These modes
of acquisition were, 1. Mancipium or mancipatio, which was
nothing but the solemn delivering over of the thing in the
presence of a determinate number of witnesses and a public
officer; it was from this probably that proprietorship was named,
2. In jure cessio, which was a solemn delivering over before the
praetor. 3. Adjudicatio, made by a judge, in a case of partition.
4. Lex, which comprehended modes of acquiring in particular cases
determined by law; probably the law of the xii. tables; for
instance, the sub corona emptio and the legatum. 5. Usna, called
afterwards usacapio, and by the moderns prescription. This was
only a year for movables; two years for things not movable. Its
primary object was altogether different from that of prescription
in the present day. It was originally introduced in order to
transform the simple possession of a thing (in bonis habere) into
Roman proprietorship. The public and uninterrupted possession of
a thing, enjoyed for the space of one or two years, was
sufficient to make known to the inhabitants of the city of Rome
to whom the thing belonged. This last mode of acquisition
completed the system of civil acquisitions. by legalizing. as it
were, every other kind of acquisition which was not conferred,
from the commencement, by the Jus Quiritium. V. Ulpian. Fragm. i.
16. Gaius, ii. 14. We believe, according to Gaius, 43, that this
usucaption was extended to the case where a thing had been
acquired from a person not the real proprietor; and that
according to the time prescribed, it gave to the possessor the
Roman proprietorship. But this does not appear to have been the
original design of this Institution. Caeterum etiam earum rerum
usucapio nobis competit, quae non a domino nobis tradita fuerint,
si modo eas bona fide acceperimus Gaius, l ii. 43. As to things
of smaller value, or those which it was difficult to distinguish
from each other, the solemnities of which we speak were not
requisite to obtain legal proprietorship. In this case simple
delivery was sufficient. In proportion to the aggrandizement of
the Republic, this latter principle became more important from
the increase of the commerce and wealth of the state. It was
necessary to know what were those things of which absolute
property might be acquired by simple delivery, and what, on the
contrary, those, the acquisition of which must be sanctioned by
these solemnities. This question was necessarily to be decided by
a general rule; and it is this rule which establishes the
distinction between res mancipi and nec mancipi, a distinction
about which the opinions of modern civilians differ so much that
there are above ten conflicting systems on the subject. The
system which accords best with a sound interpretation of the
Roman laws, is that proposed by M. Trekel of Hamburg, and still
further developed by M. Hugo, who has extracted it in the
Magazine of Civil Law, vol. ii. p. 7. This is the system now
almost universally adopted. Res mancipi (by contraction for
mancipii) were things of which the absolute property (Jus
Quiritium) might be acquired only by the solemnities mentioned
above, at least by that of mancipation, which was, without doubt,
the most easy and the most usual. Gaius, ii. 25. As for other
things, the acquisition of which was not subject to these forms,
in order to confer absolute right, they were called res nec
mancipi. See Ulpian, Fragm. xix. 1. 3, 7. Ulpian and Varro
enumerate the different kinds of res mancipi. Their enumerations
do not quite agree; and various methods of reconciling them have
been attempted. The authority of Ulpian, however, who wrote as a
civilian, ought to have the greater weight on this subject. But
why are these things alone res mancipi? This is one of the
questions which have been most frequently agitated, and on which
the opinions of civilians are most divided. M. Hugo has resolved
it in the most natural and satisfactory manner. “All things which
were easily known individually, which were of great value, with
which the Romans were acquainted, and which they highly
appreciated, were res mancipi. Of old mancipation or some other
solemn form was required for the acquisition of these things, an
account of their importance. Mancipation served to prove their
acquisition, because they were easily distinguished one from the
other.” On this great historical discussion consult the Magazine
of Civil Law by M. Hugo, vol. ii. p. 37, 38; the dissertation of
M. J. M. Zachariae, de Rebus Mancipi et nec Mancipi Conjecturae,
p. 11. Lipsiae, 1807; the History of Civil Law by M. Hugo; and my
Institutiones Juris Romani Privati p. 108, 110. As a general
rule, it may be said that all things are res nec mancipi; the res
mancipi are the exception to this principle. The praetors changed
the system of property by allowing a person, who had a thing in
bonis, the right to recover before the prescribed term of
usucaption had conferred absolute proprietorship. (Pauliana in
rem actio.) Justinian went still further, in times when there was
no longer any distinction between a Roman citizen and a stranger.
He granted the right of recovering all things which had been
acquired, whether by what were called civil or natural modes of
acquisition, Cod. l. vii. t. 25, 31. And he so altered the theory
of Gaius in his Institutes, ii. 1, that no trace remains of the
doctrine taught by that civilian.—W.]

141 (return) [ See the Institutes (l. i. tit. iv. v.) and the
Pandects, (l. vii.) Noodt has composed a learned and distinct
treatise de Usufructu, (Opp. tom. i. p. 387—478.)]

142 (return) [ The questions de Servitutibus are discussed in the
Institutes (l. ii. tit. iii.) and Pandects, (l. viii.) Cicero
(pro Murena, c. 9) and Lactantius (Institut. Divin. l. i. c. i.)
affect to laugh at the insignificant doctrine, de aqua de pluvia
arcenda, &c. Yet it might be of frequent use among litigious
neighbors, both in town and country.]

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, 143 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 degrees
of kindred 146 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, 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 rigor of the decemvirs was tempered by the equity of the
praetors. 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 to
the vacant possessions of a Roman citizen. 149

143 (return) [ 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 (return) [ At Athens, the sons were equal; but the poor
daughters were endowed at the discretion of their brothers. See
the pleadings of Isaeus, (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 (return) [ In England, the eldest son also 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 (return) [ Blackstone’s Tables (vol. ii. p. 202) represent
and compare the decrees 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, (l. xxxviii.
tit. x.) In the viith degrees he computes (No. 18) 1024 persons.]

147 (return) [ 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. l. xxxi. p. 1453—1464, edit Gronov., a domestic
witness.)]

148 (return) [ Legem Voconiam (Ernesti, Clavis Ciceroniana) magna
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.]

149 (return) [ See the law of succession in the Institutes of
Caius, (l. ii. tit. viii. p. 130—144,) and Justinian, (l. iii.
tit. i.—vi., with the Greek version of Theophilus, p. 515-575,
588—600,) the Pandects, (l. xxxviii. tit. vi.—xvii.,) the Code,
(l. vi. tit. lv.—lx.,) and the Novels, (cxviii.)]

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. 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 authorized 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 curiae 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 praetors 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. 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 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. 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.

150 (return) [ 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
civil laws.]

151 (return) [ Prior examples of testaments are perhaps fabulous.
At Athens a childless father only could make a will, (Plutarch,
in Solone, tom. i. p. 164. See Isaeus and Jones.)]

152 (return) [ 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. The language of Ulpian (Fragment. tit.
xx. p. 627, edit. Schulting) is almost too exclusive—solum in usu
est.]

153 (return) [ Justinian (Novell. cxv. No. 3, 4) enumerates only
the public and private crimes, for which a son might likewise
disinherit his father. Note: Gibbon has singular notions on the
provisions of Novell. cxv. 3, 4, which probably he did not
clearly understand.—W]

154 (return) [ The substitutions of 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 Francois, tom. i. p.
347-383. Denissart, Decisions 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.]

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; 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 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. 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

155 (return) [ Dion Cassius (tom. ii. l. lvi. p. 814, with
Reimar’s Notes) specifies in Greek money the sum of 25,000
drachms.]

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

157 (return) [ Of the civil jurisprudence of successions,
testaments, codicils, legacies, and trusts, the principles are
ascertained in the Institutes of Caius, (l. ii. tit. ii.—ix. p.
91—144,) Justinian, (l. ii. tit. x.—xxv.,) and Theophilus, (p.
328—514;) and the immense detail occupies twelve books
(xxviii.—xxxix.) of the Pandects.] 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. 158

158 (return) [ The Institutes of Caius, (l. ii. tit. ix. x. p.
144—214,) of Justinian, (l. iii. tit. xiv.—xxx. l. iv. tit.
i.—vi.,) and of Theophilus, (p. 616—837,) distinguish four sorts
of obligations—aut re, aut verbis, aut literis aut consensu: but
I confess myself partial to my own division. Note: It is not at
all applicable to the Roman system of contracts, even if I were
allowed to be good.—M.]