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 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 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

* Institut. 1. 2, tit. 1, 2. Compare the pure and precise reasoning of Caius and Heineccius (1. 2, tit. 1, p. 69-91) with the loose prolixity of Theophilus (p. 207-265). The opinions of Ulpian are preserved in the Pandects (1 1, tit. 8, leg. 41, No. 1).

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 Tiber; and

*The heredium of the first Romans is defined by Varro (de Re Rustica, 1. 1, c. 2, p. 141; c. 10, p. 160, 161, edit. Gesner), and clouded by Pliny's declamation. (Hist. Natur. 18, 2.) A just and learned comment is given in the Administration des Terres chez les Romains (p. 12-66). [Niebuhr's dissertations on the Jus Agrarium (Lectures, vol. i, p. 249-257, 398; ii, p. 271-277) are worthy of attention, as this subject led him to his Critical Researches in Roman history. He there shows, that the limitations here referred to by Gibbon, applied only to the ager publicus, or public lands, which were the portions of conquered territories-generally a third-that were taken possession of by the State. Wherever it seemed to be desirable, three hundred colonists, one from each gens, were sent, and to each of them a garden of two jugera was allotted. But they could hire parts of the remaining lands to cultivate, these being let or granted by the State, for an annual payment of decuma, or a tenth part on corn, quinta, or a fifth of fruit, and other rates on pasture grounds and cattle. Favoured by the authorities, the patricians divided so large a share of these among themselves, that it gave rise to the well-known protracted disputes between them and the plebes. About the year A.U.C. 380, the Licinian law was enacted, prohibiting any one individual to hold more than 500 jugera. This law being evaded or neglected, long dis cussions again followed, and about 240 years afterwards, it was revived by Tiberius Gracchus, but so far modified, that in addition to his own share, a father of a family might hold 250 jugera for each of two sons still in patria potestate, making a thousand in all. This was not, therefore, such a violation or restriction of private property as has been supposed, as it secured only a more general distribution of the ager pablicus. Any other estate a citizen was at liberty to acquire as he could. To this Niebuhr adds: “Five hundred jugera are equal to seventy rubbii now, which in Italy is considered to be a respectable property. In that country a larger is not required. Where the district is fertile, such an estate, well managed, produces a net annual income of five thousand crowns, by letting it out in farms."-ED.]

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.* 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 moveables, and of two years for immoveables, abolished the claim of the ancient master, if

A

The res mancipi is explained, from faint and remote lights, by Ulpian (Fragment. tit. 18, 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. [To determine ownership, the Roman law held no transfers to be valid that did not take place publicly, or in the presence of duly appointed commissioners. This was found to be impracticable in such transactions as the purchase of provisions, clothing, &c., and was, therefore, dispensed with. Hence arose the distinction between res mancipi, or property, in the acquisition of which the ceremony had been observed, and the nec mancipi, which pertained to that enjoyed by the common tenure of possession. The former included all articles of value, such as lands, houses, slaves, and cattle; and as buildings in the midst of Rome were so classed, this disproves Gibbon's theory of their being the spoils of war. None but a citizen was competent to go through the forms of mancipation, so that aliens were excluded from holding such property.-HUGO.] [M. Warnkönig's note on this subject is too long to be added here, and was intended only for the lawyers of his country. He has drawn from the Institutes of Gaius many minute details not generally useful. M. Hugo's shorter explanation is clear, but does not give the real signification of the term. The mancipatio required the presence of five full-aged Roman citizens as witnesses, and a sixth, called the libripens, to hold a pair of brass scales. The purchaser placed his money in these, and laid his hand on what he bought, repeating a prescribed form of words. This was the in manum capere, whence the term was derived. In a following page Gibbon has referred to this ceremony, as observed in the disposal of estates. But mancipia continued to denote servi homines in the middle ages (Ducange, 4, 390), and hence liberation from servitude was designated manumissio and emancipatio.-ED.]

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 servitudes, imposed for the benefit of a neighbour on lands and houses, are abundantly explained by the professors cf 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 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

* 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. 2, tit. 6.) See the Institutes (1. 1, tit. 4, 5), and the Pandects (1. 7). 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. 2, tit. 3), and Pandects (1. 8). Cicero (pro Murena, c. 9) and Lactantius (Institut. Divin. 1. 1, c. 1) affect to laugh at the insignifi cant doctrine, de aqua pluvia arcenda, &c. Yet it might be of fre quent use among litigious neighbours, both in town and country.

VOL. V.

F

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

Among the patriarchs, the first-born enjoyed a mystic and spiritual primogeniture. (Gen. xxv. 31.) In the land of Canaan he was entitled to a double portion of inheritance. (Deut. 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 Kýpuroi 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.

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. [Gibbon here refers to heritable lands, not those devised by will. He should have added, that unsettled landed property can be divided by a parent among all his children, and that even entails may be barred. There are also manors, in which the old Kentish law or custom of Gavelkind still divides unwilled lands equally among all the sons of the deceased lord; and others, in which that of Borough English gives them to the youngest.-ED.]

§ Blackstone's Tables (vol. ii, p. 202) represent and compare the degrees 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. 38, tit. 10). In the seventh degrees he computes (No. 18) one thousand and twenty-four persons.