[Sidenote: Laws of succession.]
[Sidenote: The laws in inheritance.]
Two things were required for the transfer of property, for it is the essence of property that the owner of a thing should have the right to transfer it,—first, the consent of the former owner to transfer the thing upon some just ground; and secondly, the actual delivery of the thing to the person who is to acquire it. Movables were presumed to be the property of the possessors, until positive evidence was produced to the contrary. A prescriptive title to movables was acquired by possession for one year, and to immovables by possession for two years. Undisturbed possession for thirty years constituted in general a valid title. When a Roman died, his heirs succeeded to all his property, by hereditary right. If he left no will, his estate devolved upon his relations in a certain order prescribed by law. The power of making a testament only belonged to citizens above puberty. Children under the paternal power could not make a will. Males above fourteen, and females above twelve, when not under power, could make wills without the authority of their guardian; but pupils, lunatics, prisoners of war, criminals, and various other persons, were incapable of making a testament. The testator could divide his property among his heirs in such proportions as he saw fit; but if there was no distribution, all the heirs participated equally. A man could disinherit either of his children by declaring his intentions in his will, but only for grave reasons, such as grievously injuring his person or character or feelings, or attempting his life. No will was effectual unless one or more persons were appointed heirs to represent the deceased. Wills were required to be signed by the testator, or some person for him, in the presence of seven witnesses who were Roman citizens. If a will was made by a parent for distributing his property solely among his children, no witnesses were required, and the ordinary formalities were dispensed with among soldiers in actual service, and during the prevalence of pestilence. The testament was opened in the presence of the witnesses, or a majority of them; and after they had acknowledged their seals, a copy was made, and the original was deposited in the public archives. According to the Twelve Tables, the powers of a testator in disposing of his property were unlimited, but in process of time laws were enacted to restrain immoderate or unnatural bequests. By the Falcidian law, in the time of Augustus, no one could leave in legacies more than three fourths of his estate, so that the heirs could inherit at least one fourth. Again a law was passed, by which the descendants were entitled to one third of the succession, and to one half if there were more than four. In France if a man die leaving one lawful child, he can only dispose of half of his estate by will; if he leaves two children, the third; if he leaves three or more, the fourth. [Footnote: Code Civil, Art. 913.] In England a man can cut off both his wife and children. [Footnote: Williams, Exec., p. 3.] The Romans recognized bequests in trust, besides testaments, by which property descended directly to the heir. The person charged with a trust was bound to restore the subject at the time appointed by the testator. The trustee could not alienate an estate without the consent of all the parties interested, except for the payment of debts. All persons capable of making a will could leave legacies, real or personal, but these were not due if the testator died insolvent. When a man died intestate, the succession devolved on the descendants of the deceased; but, these failing, the nearest ascendants were called; if there were brothers and sisters, they were entitled to succeed together along with the ascendants in the same class. Children succeeded to property, if their father died intestate, in equal portions, without distinction of sex, and if there was only one child he took the whole estate. A descendant of either sex, or any degree, was preferred to all ascendants and collaterals. The descendants of a son or daughter, who had predeceased, took the same share of the succession that their parent would have done had he been alive. In England, if all the children are dead, and only grandchildren exist, they all take, not by families, but per capita, equal shares in their own right as next of kin, and Mackenzie thinks this arrangement is more equitable than the Roman. [Footnote: Mackenzie, p. 288] If there were no descendants, the Roman father and mother, and other ascendants, excluded all collaterals from the succession except brothers and sisters of the whole blood, and the children of deceased brothers and sisters. When ascendants stood alone, the father and mother succeeded in equal portions, and if only one survived, he or she succeeded to the whole, so that grandparents were excluded. If there were brothers and sisters of the whole blood, the estate was divided among them in capita, according to the number of persons, including the father and mother. The children of a deceased brother were not admitted to the succession along with ascendants and surviving brothers and sisters. [Footnote: Ibid. 290] If a person died leaving neither ascendants nor descendants, his brothers and sisters succeeded to his estate in equal shares. And if the intestate left also nephews and nieces by a deceased brother or sister, these succeeded, along with their uncles and aunts, to the share their parent would have taken. On the failure of brothers and sisters by the whole blood, the brother and sisters by the half blood succeeded, and if any of these brothers and sisters have died leaving children, the right of representation was extended to them also, just as in the case of children of brothers-german. When husband or wife died, without leaving relations, the survivor was called to the succession. A widow who was poor and unprovided for had a right to share in the succession of her deceased husband. When he left more than three descendants, she was entitled to participate with them equally. If there were only three or fewer, she was entitled to one fourth of the estate. If she had children by the deceased, she had only the usufruct of her portion during her life, and was bound to preserve it for them. If a man had no legitimate children, he could leave his whole inheritance to his natural children, or to their mother; but if he had lawful children, he could leave only one twelfth to the natural children and their mother. If the father died intestate, without leaving a lawful wife or issue, his natural children and their mother were entitled to one sixth of the succession, and the rest was divided among the lawful heirs.
[Sidenote: Contracts.]
In the matter of contracts, the Roman law was especially comprehensive, and the laws of France and Scotland are substantially based upon the Roman system. The Institutes of Gaius and Justinian distinguish four sorts of obligation,—aut re, aut verbis, aut literis, aut consenser. Gibbon, in his learned chapter, prefers to consider the specific obligations of men to each other under promises, benefits, and injuries. Lord Mackenzie treats the subject in the order of the Institutes.
"Obligations contracted re—by the intervention of things—are called by the moderns real contracts, because they are not perfected till something has passed from one party to another. Of this description are the contracts of loan, deposit, and pledge. Till the subject is actually lent, deposited, or pledged, it does not form the special contract of loan, deposit, or pledge." [Footnote: Mackenzie.]
[Sidenote: Loans.]
In regard to loans, the borrower was obliged to take care of it as if it were his own. In rebus commodatis tails diligentia proestanda est, qualem quisque diligentissimus paterfamilias suis rebus adhibet. [Footnote: D. 13, 6, 1 pr.] He could only use a thing for the purpose for which it was lent; he could not keep it beyond the time agreed upon, nor detain it as a set-off against any debt. He was bound to restore the article in the same condition as received, subject only to the deterioration arising from reasonable use, whether a horse, a house, or a carriage. And he was required to make good all injuries caused by his own fault or negligence. If the article perished, without any blame or neglect, the loss fell on the owner. If the loan was for consumption, which was called mutuum, like corn, or oil, or wine, the borrower was required to return as much of the same kind and quality, whether the price of the commodity had risen or fallen. In a loan of money, under mutuum, the borrower was not required to pay interest. Interest was only due ex lege, or by agreement. The rate varied at different times; generally, it was eight and one third per cent., and even more than this in the latter years of the republic. Justinian introduced a scale which varied with different classes of society. Persons of illustrious rank could lend money at four per cent., ordinary people at six, and for maritime risks twelve; but it was unlawful to charge interest upon interest. [Footnote: C. 4, 32, 26, Section 1.] Property would double, at eight and one third, in twelve years, not so rapidly as by our system of compound interest, especially at the rate of seven per cent. In England the usury laws of different monarchs limited interest from ten per cent, to five; but these were repealed in 1854. Only five per cent. can now be recovered upon any contract.
[Sidenote: Deposits.]
A deposit differed from a loan in this,—that the depositary was not entitled to any use of a thing deposited, and was bound to preserve it with reasonable care, and restore it on demand. As he derived no advantage, he was entitled to be reimbursed for all necessary charges. Ship-masters, innkeepers, and stablers, were responsible for the luggage and effects of travellers intrusted to their care, which policy is now adopted in both Europe and America, on the ground that if they were not held strictly to their charge, being not a very reputable class of men in ancient times, they might be in league with thieves. An innkeeper was therefore held responsible for loss, or damage, or theft, to secure the protection of travellers, whose patronage was a compensation. In case of robbery, when goods were taken by superior force, he was not responsible, nor was he for loss occasioned by inevitable accident.