Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/716

692 ROMAN LAW [JUS CIVILE. The difficulty was overcome by accepting the principle of agnation upon which the patrician gens was constructed, and establishing an agnatic circle of kinsmen within the sixth degree, to which the gens as a corporation should be postponed in the case of the patricians, and which should come in place of it in the case of the plebeians. It was not perfect equalization, but the nearest approach to it that the circumstances permitted. The difference was that, when the agnates of a plebeian intestate failed, his inherit- ance was vacant, whereas, on failure of those of a patrician, there was devolution to his gens in its collective capacity. And this devolution was rendered all the more frequent by two "interpretations" put upon the statute, (1) that, if the nearest agnates in existence declined the succession, those next in degree were not allowed to take it ; and (2) that no female agnate could take it except a sister of the deceased intestate. The division among two or more agnates was always per capita, not per stirpes. The order of intestate succession thus established by the XII. Tables, which prevailed until amended by the praetors probably in the 8th century of the city, was first to the sui heredes of the deceased, next to his nearest agnate or agnates, and finally, if the deceased was a patri- cian, to his gens. His sui heredes included those of his de- scendants in his potestas when he died who by that event (or even after it, but before his intestacy became manifest) became sui juris, together with his wife in manu (who, as regarded his succession, was reckoned as a daughter) ; but they did not include children whom lie had emancipated or daughters who had passed in manum of a husband. Eman- cipated children did not even come in as agnates on failure of sui ; for emancipation severed the tie of agnation as well as that of potestas. For the same reason no kinsman who had been emancipated, and so cut off from the family tree, could claim as an agnate ; for those only were agnates who were subject to the same patria potestas, or would have been had the common family head been still alive. Position The opening of a succession (technically dclatio Jiereditatis) in of heirs, favour of sui heredes, whether in virtue of a testamentary institu- tion or by operation of law on intestacy, at once invested them with the character, rights, and responsibilities of heirs. No accept- ance was necessary, nor, according to the rules of the jus civile, was any declinature competent. They had been all along in a manner joint owners with their parent of the family estate, which by his death had become, nominally at least, an inheritance ; and, as he had not thought fit to terminate their interest in it by emancipat- ing or disinheriting them, they were not now allowed to disown it. Hence they were spoken of as necessary heirs (heredes sui et necessarii). A slave, too, whom his owner had instituted in his testament was a necessary heir : he could not decline, and was invested with the character of heir the moment the testator died. Not so with stranger institutes or agnates taking on intestacy : they were free to take or reject the inheritance as they saw fit ; consequently an act of acceptance (aditio) was necessary on their part to make them heirs. It was not unusual for a testator, in instituting an heir, to require that he should make a formal de- claration of acceptance within a limited time, failing which his right should pass to a substitute, who in turn was required to enter within a certain time ; and so on with any number of substitutes, the series ending with one of his slaves, who became heir without entry, and thus saved the testator from the disgrace of post mortem bankruptcy in the event of the inheritance proving insolvent. The uti legassit of the Tables, as already remarked, conferred upon a testator very great latitude of testamentary disposition, even to the extent of disherison of sui heredes. This was a course, how- ever, that was rarely resorted to unless when a child had been guilty of gross ingratitude, or when the parent had reason to believe his estate was insolvent and desired to protect his children from the responsibilities of inheritance. Usually his sui, if he had any, would be his institutes, and the purpose of the testament either to apportion the estate amongst them as he thought expedient, or to give him an opportunity of appointing tutors, bequeathing legacies, or enfranchising slaves. On intestacy the sui took equally, but per stirpes ; that is to say, grandchildren by a son who had predeceased or been emancipated, but who themselves had been retained in their grandfather's potestas, took amongst them the share to which their father would otherwise have been entitled, instead of taking equal shares with their surviving uncles. It was by no means uncommon, when the whole inheritance descended to sons, for them to hold it in common for many years as partners (consortes) ; but any one of them was entitled at any moment to claim a partition, which was effected judicially, by an arbitral procedure introduced, termed a judicium (or arbitrium) familiac ei'ciscundae. Where two or more strangers were instituted testainentarily, whether to equal or unequal shares, if one of them failed either by predecease or declinature his share accrued ipso jure to the others ; for it was a rule that very early became proverbial that a man could not die partly testate and partly intestate. There was the same accrual among agnates on intestacy ; and both they and stranger testament- ary institutes had the same action for division of the inheritance that was made use of by sui heredes. According to Gaius it was as a stimulus to heirs to enter as soon Usuca as possible to an inheritance that had opened to them, and thus pro mal<e early provision alike for satisfying the claims of creditors of heredc the deceased and attending to his family sacra, that the law came to recognize the somewhat remarkable institution of usucapion or prescriptive acquisition of the inheritance in the character of heir (usucapio pro herede). Such usucapion was impossible there was no room for it if the deceased had left sui heredes; for the inherit- ance vested in them the moment he died. But, if there were no sui heredes, then any person taking possession of the property that had belonged to the deceased, and holding it for twelve months without interruption, thereby acquired it as if he were heir : in fact, according to the views then held, he acquired the inheritance itself. Gaius characterizes it as a dishonest acquisition, inasmuch as the usucapient knew that what he had taken possession of was not his. But, as already explained, the usucapion of the XII. Tables did not require bona fides on the part of the usucapient ; he might acquire ownership by prolonged possession of what he knew did not belong to him so long as he did not appropriate it theftu- ously, i.e., knowing that it belonged to another. But an inherit- ance unappropriated by an heir who had nothing more than a right to claim it belonged in strictness to no one ; and there was no theft, therefore, vhen a person took possession of it with a view to usucapion in the character of heir. There can be little doubt that on the completion of his possession he was regarded as heir just as fully as if he had taken under a testament or as heir-at-law on in- testacy, that is to say, that lie was held responsible to creditors of the deceased and required to charge himself with the family sacra. Gaius does not say as much ; but both the Coruncanian and the Mucian edict imposed the latter burden upon him who had usucapted by possession the greater part of a deceased person's estate ; and it is but reasonable to suppose that the burden of debts must in like manner have fallen on the usucapient or usucapients in proportion to the shares they had taken of the deceased's property. The Law of Obligations. The jurists of the classical Law period attribute obligation either to contract, or delict, or . miscellaneous causes (variae causarum figurae) ; and those arising from contract fill a place in the later jurisprudence vastly greater than those arising from delict. In the XII. Tables it was very different. In them delicts were much more prominent than contracts, wrongs entitling the sufferer to demand the imposition of penalties upon the wrongdoer that in most cases covered both reparation and punishment. The disproportion in the formulated provisions in reference to the two sources of obligation, however, is not surprising. For, first of all, the purpose of the decemviral code was to remove uncertainties and leave as little as possible to the arbitrariness of the magis- trates. In nothing was there more scope for this than in the imposition of penalties ; and, as different offences re- quired to be differently treated, the provisions in reference to them were necessarily multiplied. In the next place, the intercourse that evokes contract was as yet very limited. Agriculture was the occupation of the great majority ; trade and commerce were more backward than in the later years of the regal period ; coined money was just beginning to be used as a circulating medium. Lastly, the safeguards of engagement then lay to a great extent in the sworn oath or the plighted faith, of which the law had hardly begun to take cognizance, but which found a protection quite as potent in the religious and moral sentiments that had so firm a hold on the people. It may be asked If a man purchased sheep or store cattle, a plough, a toga, a jar of wine or oil, had he no action to compel i delivery, the vendor no action for payment of the price ? Did the hire of a horse or the loan of a bullock create no obligation ? Was partnership unknown and deposit and pledge and suretyship in tions