CHAP. proved an agrarian law as a false and dangerous XLAV. 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 m'les 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 on 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 †. A citizen could only

* The heredium of the first Romans is defined by Varro (de Re Rustica, 1. i. c. ii. p. 141. c. x. p. 160, 161. edit. Gesner), and clouded by Priny's declamation (Hist. Natur. xviii. 2.). A just and learned comment is given in the Administration des Terres chez les Romains (p. 12-66.).

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+ The res mancipe is explained from faint and remote lights by Ulpian (Fragment. tit. xviii. p. 618, 619.), and Bynker

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only forfeit his rights by apparent dereliction, and CHAP. such dereliction of a valuable interest could not XLIV. 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 proprie tor *. 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 I. imposed for the benefit of a neighbour on lands

and

shoek (Opp. tom. i. p. 306-315.). The definition is somewhat arbitrary; and as none except myself have assigned a reas son, I am diffident of my own.

* 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 civil ian of his adversary Wallace, he is reproached, and not without reason, for overlooking the conditions (Institut. l. ii. tit vi.).

+ See the Institutes (l. i. tit. iv, v.), and the Pandects (1. vii.). Noodt has composed a learned and distinct treatise de Usufructu (Opp. tom. i. p. 387-478.).

‡ The questions de Servitutibus are discussed in the Institutes (1. ii. tit. iii.), and Pandects 1. viii.). Cicero (pro Marena, c. 9.) and Lactantius (Institut. Divin. 1. i. c. 1.). affect to laugh at the insignificant doctrine, de aqua pluvia arcenda, &c. Yet it might be of frequent use among litigious neighbours, both in town and country.

CHAP. and houses, are abundantly explained by the preXLIV. fessors of jurisprudence. The claims of property,

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Of inherit. ance and succession.

as far as they are altered, by the mixture, the division, or the transformation of substances, are investigated with mety physical subtlety by the same civilians.

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The personal title of the first proprietor must be determined by his death: but the possession, with out any appearance of change, is peaceably continued in his children, the associates of his toil and the partners of his wealth. This natural inherit. ance has been protected by the legislators of every climate and age, and the father is encouraged to persevere in slow and distant improvements, by the tender hope, that a long posterity will enjoy the fruits of his labour. The principle of hereditary succession is universal, but the order has been variously established by convenience or caprice, by the spirit of national institutions, or by some partial example, which was originally decided by fraud or violence. The jurisprudence of the Romans appears to have deviated from the equality of * nature, much less than the Jewish *, the Atheniant, or the English institutions I. On the death

*** Among the the patriarchs, the first-born enjoyed a mystie and spiritual primogeniture (Genesis, xxv. 31.). In the land of Canaan he was entitled a to a double portion of inheritance (Deuteronomy, xxi. 17. with Le Clerc's judicious Commentary).

+ At Athens the sons were equal, but the poor daughters were endowed at the discretion of their brothers. See the κληρικοι pleadings of Isæus (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.

‡ In England, the eldest son alone inherits all the land; a law, says the orthodox judge Blackstone (Commentaries on the

*

grees of

death of a citizen, all his descendants, unless they CHA P. were already freed from his paternal power, were XLIV. 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 Civil de of the direct line, the right of succession must kindred 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 X 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 X every rank, without excepting the dear relation of a mother

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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.

* 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 (xxxviii. tit. x.). In the seventh degrees he computes (No. 18) 1024 persons.

CHAP. a mother and a son, were disinherited by the XLIV. 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 marriege, 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 rigour of the decemvirs was tempered by the equity of the prætors. Their edicts restored, emancipated, and post

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

+ 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.