XLIV. nature. The person and property of an orphan must always CHAP. 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 burthened, 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 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 prætor, to save a family from the blind havock 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, xiii....xxvi), the Pandects (1. xxvi, xxvii), and the Code (1. v. tit. xxviii.... lxx). CHAP. II. OF THINGS. Right of property. 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.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 requires a perpetual title to the use and service of their numerous progeny, which derives its existence from him alone. If he incloses 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 187 Institut. I. 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 prescived in the Pandeers (1. i. tit. viii. leg. 41, No. 1). XLIV. by the bold and crafty; each field and forest is circum- CHAP. scribed 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. 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 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-citizen.139 A citizen 138 The heredium of the first Romans is defined by Varro (de Re Rusticâ, l. i. c. 2. p. 141. c. 10. 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 Ul XLIV. CHAP. 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 di vision, or the transformation of substances, are investigated with metaphysical subtlety by the same civilians. Of inheritance and The personal title of the first proprietor must be detersuccession. mined 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 legis lators of every climate and age, and the father is en pian (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 now 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 Usufructà (Opp. tom. i. p. 387...478). 142 The questions de Servitutibus are discussed in the Institutes (1. ii. tit. ii) and Pandects (1. viii). Cicero (pro Murenâ, c. 9). and Lactantius (Institut. Divin. 1. i. c 1.) affect to laugh at the insignificant doctrine, de aqua pluvià arcendâ, &c. Yet it might be of frequent use among litigious neighbours, both in town and country. couraged 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,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 fancy, or pictured in a genealogical table. In this computation, a distinction was made, essential to the laws and even the 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 endow. ed at the discretion of their brothers. See the xλnpixo pleadings of Isæus (in the seventh 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 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 (1. xxxviii. tit. x). In the seventh degrees he computes (No. 18.) 1024 persons. VOL. V. Z z CHAP. Civil de grees of kindred. |