Beacon Lights of History, Volume 03: Ancient Achievements. John Lord

by emperors. Alexander Severus limited the right of the father to simple correction, and Constantine declared the father who should kill his son to be guilty of murder. The rigor of parents in reference to the disposition of the property of children was also gradually relaxed. Under Augustus, the son could keep absolute possession of what he had acquired in war; under Constantine, he could retain any property acquired in the civil service, and all property inherited from the mother could also be retained. In later times, a father could not give his son or daughter to another by adoption without their consent. Thus this patria potestas was gradually relaxed as civilization advanced, though it remained a peculiarity of Roman law to the latest times, and was severer than is ever seen in the modern world. Fathers were bound to maintain their children when they had no separate means to supply their wants, and children were also bound to maintain their parents if in want. These reciprocal duties, creditable to the Roman lawgivers, are recognized in the French Code, but not in the English, which also recognizes the right of a father to bequeath his whole estate to strangers,–a thing which Roman fathers had not power to do. The age when children attained majority among the Romans was twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians, as it was supposed they never could attain to the age of reason and experience. The relation of guardian and ward was strictly observed by the Romans. They made a distinction between the right to govern a person and the right to manage his estate, although the tutor or guardian could do both. If the pupil was an infant, the tutor could act without the intervention of the pupil; if the pupil was above seven years of age, he was considered to have an imperfect will. The youth ceased to be a pupil, if a boy, at fourteen; if a girl, at twelve. The tutor managed the estate of the pupil, but was liable for loss occasioned by bad management. He could sell movable property when expedient, but not real estate, without judicial authority. The tutor named by the father was preferred to all others.

      The Institutes of Justinian pass from persons to things, or the law relating to real rights; in other words, that which pertains to property. Some things common to all, like air, light, the ocean, and things sacred, like temples and churches, are not classed as property.

      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 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 relatives 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 dispose of only half his estate by will; if he leaves two children, he can dispose only of one third; if he leaves three or more children, then he can dispose by will of only one fourth of his estate. In England, a man can disinherit both his wife and children. These, and many other matters,–bequests in trust, succession of men dying intestate, heirs at law, etc.,–were regulated by the Romans in ways on which our modern legislators have improved little or none.

      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 obligations,–aut re, aut verbis, aut literis, aut consensu. 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,–security for indebtedness. Till the subject is actually lent, deposited, or pledged, it does not form the special contract of loan, deposit, or pledge."

      Next to the perfection of contracts by re,–the intervention of things,–were obligations contracted by verbis, spoken words, and by literis, or writings. The verborum obligatio was contracted by uttering certain words of formal style,–an interrogation being put by one party, and an answer given by the other. These stipulations were binding. In England all guarantees must be in writing.

      The obligatio literis was a written acknowledgment of debt, chiefly employed when money was borrowed; but the creditor could not sue upon a note within two years from its date, without being called upon also to prove that the money was in fact paid to the debtor.

      Contracts perfected by consent, consensu, had reference to sale, hiring; partnership, and mandate, or orders to be carried out by agents. All contracts of sale were good without writing.

      Acts which caused damage to another opened a new class of cases. The law obliged the wrong-doer to make reparation, and this responsibility extended to damages arising not only from positive acts, but from negligence or imprudence. In cases of libel or slander, the truth of the allegation might be pleaded in justification. In all cases it was necessary to show that an injury had been committed maliciously; but if damage arose in the exercise of a right, as killing a slave in self-defence, no claim for reparation could be maintained. If any one exercised a profession or trade for which he was not qualified, he was liable to all the damage his want of skill or knowledge might occasion,–a provision that some of our modern laws might advantageously revive. When any damage was done by a slave or an animal, the owner of the same was liable for the loss, though the mischief was done without his knowledge and against his will. If anything was thrown from a window giving on the public thoroughfare so as to injure any one by the fall, the occupier was bound to repair the damage, though done by a stranger. Legal claims might be transferred to a third person by sale, exchange, or donation; but to prevent speculators from purchasing debts at low prices, it was ordered that the assignee should not be entitled to exact from the debtor more than he himself had paid to acquire the debt, with interest,–a wise and just regulation.

      By the ancient constitution, the king had the prerogative of determining civil causes. The right then devolved on the consuls, afterward on the praetor, and in certain cases on the curule and plebeian ediles, who were charged with the internal police of the city.

      The praetor, a magistrate next in dignity to the consuls, acted as supreme judge of the civil courts, assisted by a council of jurisconsults to determine questions in law. At first one praetor was sufficient, but as the