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 Catot 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 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 affec

* The Voconian law was enacted in the year of Rome 584. The younger Scipio, who was then seventeen years of age (Freinshemius, Supplement. Livian. 46. 40), found an occasion of exercising his generosity to his mother, sisters, &c. (Polybius, tom. ii, 1. 31, p. 1453— 1464, edit. Gronov.-a domestic witness.)

+ Legem Voconiam (Ernesti, Clavis Ciceroniana) magna voce bonis lateribus (at sixty-five years of age) suasissem, says old Cato. (De Senectute, c. 5.) Aulus Gellius (7, 13, 17, 6) has saved some passages.

tion, succeeded to 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 lawgiver; 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 the 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 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,§ which excited the wonder of the Greeks, was still practised in the age of Severus; but the prætors had already approved a more simple testament, for which they required the seals and signatures of seven witnesses, free from all legal exception,

* See the law of succession in the Institutes of Caius (1. 2, tit. 8, p. 130—144), and Justinian (1. 3, tit. 1-6 with the Greek version of Theophilus, p. 515-575, 588-600), the Pandects (1. 38, tit. 6—17), the Code (1. 6, tit. 55-60), and the Novels (118).

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 second and third books the method of the Institutes is doubtless preposterous; and the chancellor Duquesseau (Euvres, tom. i, p. 275) wishes his countryman Domat in the place of Tribonian. Yet covenants before successions is not surely the natural order of the civil laws.

Prior examples of testaments are perhaps fabulous. At Athens, a childless father only could make a will. (Plutarch, in Solon, tom. i, p. 164. See Isæus and Jones.) § 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 orav dè diałýkas ypápwolv τέρους μὲν απολείπουσι κληρονόμους, ἔτεροι δὲ πωλοῦσι τὰς οὐσίας. The language of Ulpian (Fragment. tit. 20, p. 627, edit. Schulting) is

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 labour 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

almost too exclusive-solum in usu est.

* Justinian

(Novel. 115, No. 3, 4) enumerates only the public and private crimes, for which a son might likewise disinherit his father.

[After the Twelve Tables had allowed the free testamentary disposition of property, the privilege was greatly abused, to the injury of families and lawful heirs. So early as the year A.U.C. 450, an attempt was made to check this by the Lex Furia Testamentaria (Niebuhr's Lectures, 1. 303). In the last days of the republic, about A.U.c. 715, the tribune Falcidius proposed and carried a law, prohibiting a citizen to dispose of more than three-fourths of his property by his will, and thus securing at least the other fourth to his rightful heir or

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 honour, 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 fellowcitizen, could act as his heir. The Voconian law, which abolished female succession, restrained the legacy or inheirs. This is the "Falcidian portion" to which Gibbon has alluded. -ED.]

*The substitutions 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 François, tom. i, p. 347-383. Denissart, Décisions de Jurisprudence, tom. iv, p. 577-604.) They were stretched to the fourth degree by an abuse of the one hundred and fifty-ninth Novel; a partial, perplexed,

heritance 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 honour 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 strictly 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 declamatory law. * Dion Cassius (tom. ii, 1. 56, p. 814, with Reimar's Notes) specifies in Greek money the sum of twenty-five thousand drachms. [Many and widely different have been the interpretations of this law. Gibbon, by "female succession," evidently means the general right of inheriting intestate property. Doujat, in his edition of Livy, "Ad usum Delphini," maintains, by a long note on Epitome, c. 41, that the exclusion extended only to the heiresses of first-class citizens-"non quorumvis civium, sed locupletiorum, primæ classis, qui 125 millia æris, ampliusve, censi erant." Niebuhr, on the other hand, makes it prohibit even legacies of any amount. He must have overlooked the passage in Dion Cassius. The law, in relation to an only daughter, is thus explained by him in his Lectures (2. 225). "The Lex Voconia forbade all bequests of property to females, except in the case of an only daughter. This clause was founded on the relations of the clans, such a child being bound, as in Attica, to marry within her own gens, so that the fortune did not go into another."-ED.] The revolutions of the Roman laws of inheritance are finely, though sometimes fancifully, deduced by Montesquieu. (Esprit des Loix, 1. 27.) Of the civil jurisprudence of successions, testaments, codicils, legacies, and trusts, the principles are ascertained in the Institutes of Caius (1. 2, tit. 2--9, p. 91-144), Justinian (1. 2,