This singular ceremony, which excited the wonder of the Greeks, was still practised in the age of Severus, but the prætor had already approved a more simple testament, for which they required the seals and signatures of seven witnesses, free from all legal exception 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 labor 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 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 The last will of a citizen might be altered during his life or rescinded after his death; the persons whom he named might die before him, or reject the inheritance, or be exposed to some legal disqualification.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 honor, 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 fellow-citizen, could act as his heir.
The Voconian law, which abolished female succession, restrained the legacy or inheritance 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 honor 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 strict and 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 public and private relations: but their specific obligations to each other can only be the effect of (1) a promise, (2) a benefit, or (3) an injury; and when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice.
1. The goddess of faith (of human and social faith) was worshipped, not only in her temples, but in the lives of the Romans; and if that nation was deficient in the more amiable qualities of benevolence and generosity, they astonished the Greeks by their sincere and simple performance of the most burdensome engagements. Yet among the same people, according to the rigid maxims of the patricians and decemvirs, a naked pact, a promise, or even an oath, did not create any civil obligation, unless it was confirmed by the legal form of a stipulation. Whatever might be the etymology of the Latin word, it conveyed the idea of a firm and irrevocable contract, which was always expressed in the mode of a question and answer. Do you promise to pay me one hundred pieces of gold? was the solemn interrogation of Seius. I do promise, was the reply of Sempronius. The friends of Sempronius, who answered for his ability and inclination, might be separately sued at the option of Seius; and the benefit of partition, or order of reciprocal actions, insensibly deviated from the strict theory of stipulation. The most cautious and deliberate consent was justly required to sustain the validity of a gratuitous promise; and the citizen who might have obtained a legal security, incurred the suspicion of fraud and paid the forfeit of his neglect. But the ingenuity of the civilians successfully labored to convert simple engagements into the form of solemn stipulations. The prætors, as the guardians of social faith, admitted every rational evidence of a voluntary and deliberate act, which in their tribunal produced an equitable obligation, and for which they gave an action and a remedy.
2. The obligations of the second class, as they were contracted by the delivery of a thing, are marked by the civilians with the epithet of real. A grateful return is due to the author of a benefit; and whoever is intrusted with the property of another has bound himself to the sacred duty of restitution. In the case of a friendly loan, the merit of generosity is on the side of the lender only; in a deposit, on the side of the receiver; but in a pledge, and the rest of the selfish commerce of ordinary life, the benefit is compensated by an equivalent, and the obligation to restore is variously modified by the nature of the transaction. The Latin language very happily expresses the fundamental difference between the commodatum and the mutuum, which our poverty is reduced to confound under the vague and common appellation of a loan. In the former, the borrower was obliged to restore the same individual thing with which he had been accommodated for the temporary supply of his wants; in the latter it was destined for his use and consumption, and he discharged this mutual engagement by substituting the same specific value according to a just estimation of number, of weight, and of measure. In the contract of sale, the absolute dominion is transferred to the purchaser, and he repays the benefit with an adequate sum of gold or silver, the price and universal standard of all earthly possessions.
The obligation of another contract, that of location, is of a more complicated kind. Lands or houses, labor or talents, may be hired for a definite term; at the expiration of the time the thing itself must be restored to the owner, with the additional reward for the beneficial occupation and employment. In these lucrative contracts, to which may be added those of partnership and commissions, the civilians sometimes imagine the delivery of the object, and sometimes presume the consent of the parties. The substantial pledge has been refined into the invisible rights of a mortgage or hypotheca; and the agreement of sale, for a certain price, imputes from that moment the chances of gain or loss to the account of the purchaser. It may be fairly supposed that every man will obey the dictates of his interest; and if he accepts the benefit, he is obliged to sustain the expense of the transaction. In this boundless subject, the historian will observe the location of land and money, the rent of the one and the interest of the other, as they materially affect the prosperity of agriculture and commerce.
The landlord was often obliged to advance the stock and instruments of husbandry, and to content himself with a partition of the fruits. If the feeble tenant was oppressed by accident, contagion, or hostile violence, he claimed a proportionable relief from the equity of the laws; five years were the customary term, and no solid or costly improvements could be expected from a farmer who at each moment might be ejected by the sale of the estate. Usury, the inveterate grievance of the city, had been discouraged by the Twelve Tables, and abolished by the clamors of the people. It was revived by their wants and idleness, tolerated by the discretion of the prætors, and finally determined by the Code of Justinian. Persons of illustrious rank were confined to the moderate profit of 4 per cent. 6 was pronounced to be the ordinary and legal standard of interest; 8 was allowed for the convenience of manufacturers and merchants; 12 was granted to nautical insurance, which the wiser ancients had not attempted to define; but, except in this perilous adventure, the practice of exorbitant usury was severely restrained.[33] The most simple interest was condemned by the clergy of the East and West; but the sense of mutual benefit, which had triumphed over the laws of the republic, had resisted with equal firmness the decrees of the Church, and even the prejudices of mankind.[34]
3. Nature and society impose the strict obligation of repairing an injury; and the sufferer by private injustice acquires a personal right and a legitimate action. If the property of another be intrusted to our care, the requisite degree of care may rise and fall according to the benefit which we derive from such temporary possession; we are seldom made responsible for inevitable accident, but the consequences of a voluntary fault must always be imputed to the author. A Roman pursued and recovered his stolen goods by a civil action of theft; they might pass through a succession of pure and innocent hands, but nothing less than a prescription of thirty years could extinguish his original claim. They were restored by the sentence of the prætor, and the injury was compensated by double, or threefold, or even quadruple damages, as the deed had been perpetrated by secret fraud or open rapine, as the robber had been surprised in the fact or detected by a subsequent research. The Aquilian law defended the living property of a citizen, his slaves and cattle, from the stroke of malice or negligence: the highest price was allowed that could be ascribed to the domestic animal at any moment of the year preceding his death; a similar latitude of thirty days was granted on the destruction of any other valuable effects. A personal injury is blunted or sharpened by the manners of the times and the sensibility of the individual: the pain or the disgrace of a word or blow cannot easily be appreciated by a pecuniary equivalent.