法律辅导：AncientLawChapter7

会计考友 · 发表于 2012-8-16 08:34:12

　　The conception of a universal succession， firmly as it has taken root in jurisprudence， has not occurred spontaneously to the framers of every body of laws. Wherever it is now found， it may be shown to have descended from Roman law； and with it have come down a host of legal rules on the subject of Testaments and.Testamentary gifts， which modern practitioners apply without discerning their relation to the parent theory. But， in the pure Roman jurisprudence， the principle that a man lives on in his Heir —— the elimination， if we may so speak， of the fact of death —— is too obviously for mistake the centre round which the whole Law of Testamentary and Intestate succession is circling. The unflinching sternness of the Roman law in enforcing compliance with the governing theory would in itself suggest that the theory grew out of something in the primitive constitution of Roman society； but we may push the proof a good way beyond the presumption. It happens that several technical expressions， dating from the earliest institution of Wills at Rome， have been accidentally preserved to us. We have in Gaius the formula of investiture by which the universal successor was created. We have the ancient name by which the person afterwards called Heir was at first designated. We have further the text of the celebrated clause in the Twelve Tables by which the Testamentary power was expressly recognised， and the clauses regulating Intestate Succession have also been preserved. All these archaic phrases have one salient peculiarity. They indicate that what passed from the Testator to the Heir was the Family， that is， the aggregate of rights and duties contained in the Patria Potestas and growing out of it. The material property is in three instances not mentioned at all； in two others， it is visibly named as an adjunct or appendage of the Family. The original Will or Testament was therefore an instrument， or （for it was probably not at first in writing） a proceeding， by which the devolution of the Family was regulated. It was a mode of declaring who was to have the chieftainship， in succession to the Testator. When Wills are understood to have this for their original object， we see at once how it is that they came to be connected with one of the most curious relics of ancient religion and law， the sacra， or Family Rites. These sacra were the Roman form of an institution which shows itself wherever society has not wholly shaken itself free from its primitive clothing. They are the sacrifices and ceremonies by which the brotherhood of the family is commemorated， the pledge and the witness of its perpetuity. Whatever be their nature， —— whether it be true or not that in all cases they are the worship of some mythical ancestor， —— they are everywhere employed to attest the sacredness of the family-relation； and therefore they acquire prominent significance and importance， whenever the continuous existence of the Family is endangered by a change in the person of its chief. Accordingly we hear most about them in connection with demises of domestic sovereignty. Among the Hindoos， the right to inherit a dead man's property is exactly co-extensive with the duty of performing his obsequies. If the rites are not properly performed or not performed by the proper person， no relation is considered as established between the deceased and anybody surviving him； the Law of Succession does not apply， and nobody can inherit the property. Every great event in the life of a Hindoo seems to be regarded as leading up to and bearing upon those solemnities. If he marries， it is to have children who may celebrate them after his death； if he has no children， he lies under the strongest obligation to adopt them from another family， "with a view，" writes the Hindoo doctor， "to the funeral cake， the water， and the solemn sacrifice." The sphere preserved to the Roman sacra in the time of Cicero， was not less in extent. It embraced Inheritances and Adoptions. No Adoption was allowed to take place without due provision for the sacra of the family from which the adoptive son was transferred， and no Testament was allowed to distribute an Inheritance without a strict apportionment of the expenses of these ceremonies among the different co-heirs. The differences between the Roman law at this epoch， when we obtain our last glimpse of the sacra， and the existing Hindoo system， are most instructive. Among the Hindoos， the religious element in law has acquired a complete predominance. Family sacrifices have become the keystone of all the Law of Persons and much of the Law of Things. They have even received a monstrous extension， for it is a plausible opinion that the self-immolation of the widow at her husband's funeral， a practice continued to historical times by the Hindoos， and commemorated in the traditions of several Indo-European races， was an addition grafted on the primitive sacra， under the influence of the impression， which always accompanies the idea of sacrifice， that human blood is the most precious of all oblations. With the Romans， on the contra， the legal obligation and the religious duty have ceased to be blended. The necessity of solemnising the sacra forms no part of the theory of civil law but they are under the separate jurisdiction of the College of Pontiffs. The letters of Cicero to Atticus， which are full of allusions to them， leave no doubt that they constituted an intolerable burden on Inheritances； but the point of development at which law breaks away from religion has been passed， and we are prepared for their entire disappearance from the later jurisprudence.

会计考友 · 发表于 2012-8-16 08:34:13

　　In Hindoo law there is no such thing as a true Will. The place filled by Wills is occupied by Adoptions. We can now see the relation of the Testamentary Power to the Faculty of Adoption， and the reason why the exercise of either of them could call up a peculiar solicitude for the performance of the sacra. Both a Will and an Adoption threaten a distortion of the ordinary course of Family descent， but they are obviously contrivances for preventing the descent being wholly interrupted， when there is no succession of kindred to carry it on. Of the two expedients Adoption， the factitious creation of blood-relationship， is the only one which has suggested itself to the greater part of archaic societies. The Hindoos have indeed advanced one point on what was doubtless the antique practice， by allowing the widow to adopt when the father has neglected to do so， and there are in the local customs of Bengal some faint traces of the Testamentary powers. But to the Romans belongs pre-eminently the credit of inventing the Will， the institution which， next to the Contract， has exercised the greatest influence in transforming human society. We must be careful not to attribute to it in its earliest shape the functions which have attended it in more recent times. It was at first， not a mode of distributing a dead man's goods， but one among several ways of transferring the representation of the household to a new chief. The goods descend no doubt to the Heir， but that is only because the government of the family carries with it in its devolution the power of disposing of the common stock. We are very far as yet from that stage in the history of Wills in which they become powerful instruments in modifying society through the stimulus they give to the circulation of property and the plasticity they produce in proprietary rights. No such consequences as these appear in fact to have been associated with the Testamentary power even by the latest Roman lawyer. It will be found that Wills were never looked upon in the Roman community as a contrivance for parting Property and the Family， or for creating a variety of miscellaneous interests， but rather as a means of making a better provision for the members of a household than could be secured through the rules of Intestate succession. We may suspect indeed that the associations of a Roman with the practice of willmaking were extremely different from those familiar to us nowadays. The habit of regarding Adoption and Testation as modes of continuing the Family cannot but have had something to do with the singular laxity of Roman notions as to the inheritance of sovereignty It is impossible not to see that the succession of the early Roman Emperors to each other was considered reasonably regular， and that， in spite of all that had occurred， no absurdity attached to the pretension of such Princes as Theodosius or Justinian to style themselves Caesar and Augustus.
　　When the phenomena of primitive societies emerge into light， it seems impossible to dispute a proposition which the jurists of the seventeenth century considered doubtful， that Intestate Inheritance is a more ancient institution than Testamentary Succession. As soon as this is settled， a question of much interest suggests itself， how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household， and consequently the posthumous distribution of property. The difficulty of deciding the point arises from the rarity of Testamentary power in archaic communities. It is doubtful whether a true power of testation was known to any original society except the Roman. Rudimentary forms of it occur here and there， but most of them are not exempt from the suspicion of a Roman origin. The Athenian will was， no doubt， indigenous， but then， as will appear presently， it was only an inchoate Testament. As to the Wills which are sanctioned by the bodies of law which have descended to us as the codes of the barbarian conquerors of Imperial Rome， they are almost certainly Roman. The most penetrating German criticism has recently been directed to these leges Barbarorum， the great object of investigation being to detach those portions of each system which formed the customs of the tribe in its original home from the adventitious ingredients which were borrowed from the laws of the Romans. In the course of this process， one result has invariably disclosed itself， that the ancient nucleus of the code contains no trace of a Will. Whatever testamentary law exists， has been taken from Roman jurisprudence. Similarly， the rudimentary Testament which （as I am informed） the Rabbinical Jewish law provides for， has been attributed to contact with the Romans. The only form of testament， not belonging to a Roman or Hellenic society， which can reasonably be supposed indigenous， is that recognised by the usages of the province of Bengal； and the testament of Bengal is only a rudimentary Will.

会计考友 · 发表于 2012-8-16 08:34:14

　　The evidence， however， such as it is， seems to point to the conclusion that Testaments are at first only allowed to take effect on failure of the persons entitled to have the inheritance by right of blood genuine or fictitious. Thus， when Athenian citizens were empowered for the first time by the Laws of Solon to execute Testaments， they were forbidden to disinherit their direct male descendants. So， too， the Will of Bengal is only permitted to govern the succession so far as it is consistent with certain overriding claims of the family. Again， the original institutions of the Jews having provided nowhere for the privileges of Testatorship， the later Rabbinical jurisprudence， which pretends to supply the casus omissi of the Mosaic law， allows the Power of Testation to attach when all the kindred entitled under the Mosaic system to succeed have failed or are undiscoverable. The limitations by which the ancient German codes hedge in the testamentary jurisprudence which has been incorporated with them are also significant， and point in the same direction. It is the peculiarity of most of these German laws， in the only shape in which we know them， that， besides the allod or domain of each household， they recognise several subordinate kinds or orders of property， each of which probably represents a separate transfusion of Roman principles into the primitive body of Teutonic usage. The primitive German or allodial property is strictly reserved to the kindred. Not only is it incapable of being disposed of by testament but it is scarcely capable of being alienated by conveyance inter vivos. The ancient German law， like the Hindoo jurisprudence， makes the male children co-proprietor with their father， and the endowment of the family cannot be parted with except by the consent of all its members. But the other sorts of property， of more modern origin and lower dignity than the allodial possessions， are much more easily alienated than they， and follow much more lenient rules of devolution. Women and the descendants of women succeed to them， obviously on the principle that they lie outside the sacred precinct of the Agnatic brotherhood. Now it is on these last descriptions of property， and on these only， that the Testaments borrowed from Rome were at first allowed to operate.
　　These few indications may serve to lend additional plausibility to that which in itself appears to be the most probable explanation of an ascertained fact in the early history of Roman Wills. We have it stated on abundant authority that Testaments， during the primitive period of the Roman State， were executed in the Comitia Calata， that is， in the Comitia Curiata， or Parliament of the Patrician Burghers of Rome， when assembled for Private Business. This mode of execution has been the source of the assertion， handed down by one generation of civilians to another， that every Will at one era of Roman history was a solemn legislative enactment. But there is no necessity whatever for resorting to an explanation which has the defect of attributing far too much precision to the proceedings of the ancient assembly The proper key to the story concerning the execution of wills in the Comitia Calata must no doubt be sought in the oldest Roman Law of intestate succession. The canons of primitive Roman jurisprudence regulating the inheritance of relations from each other were， so long as they remained unmodified by the Edictal Law of the Praetor， to the following effect： —— First， the sui or direct descendants who had never been emancipated succeeded. On the failure of the sui， the Nearest Agnate came into their place， that is， the nearest person or class of the kindred who was or might have been under the same Patria Potestas with the deceased.
　　The third and last degree came next， in which the inheritance devolved on the gentiles， that is on the collective members of the dead man's gens or House. The House， I have explained already， was a fictitious extension of the family， consisting of all Roman Patrician citizens who bore the same name， and who， on the ground of bearing the same name， were supposed to be descended from a common ancestor. Now the Patrician Assembly called the Comitia Curiata was a Legislature in which Gentes or Houses were exclusively represented. It was a representative assembly of the Roman people， constituted on the assumption that the constituent unit of the state was the Gens. This being so， the inference seems inevitable， that the cognizance of Wills by the Comitia was connected with the rights of the Gentiles， and was intended to secure them in their privilege of ultimate inheritance. The whole apparent anomaly is removed， if we suppose that a Testament could only be made when the testator had no gentiles discoverable， or when they waived their claims， and that every Testament was submitted to the General Assembly of the Roman Gentes， in order that those aggrieved by its dispositions might put their veto upon it if they pleased， or by allowing it to pass might be presumed to have renounced their reversion. It is possible that on the eve of the publication of the Twelve Tables this vetoing power may have been greatly curtailed or only occasionally and capriciously exercised. It is much easier， however， to indicate the meaning ad origin of the jurisdiction confided to the Comitia Calata， than to trace its gradual development or progressive decay.

会计考友 · 发表于 2012-8-16 08:34:15

</p>
　　The Testament to which the pedigree of all modern Wills may be traced is not， however， the Testament executed in the Calata Comitia， but another Testament desired to compete with it and destined to supersede it. The historical importance of this early Roman Will， and the light it casts on much of ancient thought， will excuse me for describing it at some length.
　　When the Testamentary power first discloses itself to us in legal history， there are signs that， like almost all the great Roman institutions， it was the subject of contention between the Patricians and the Plebeians. The effect of the political maxim， Plebs Gentem non habet， "a Plebeia cannot be a member of a House，" was entirely to exclude the Plebeians from the Comitia Curiata. Some critics have accordingly supposed that a Plebeian could not have his Will read or recited to the Patrician Assembly， and was thus deprived of Testamentary privileges altogether. Others have been satisfied to point out the hardships of having to submit a proposed Will to the unfriendly jurisdiction of an assembly in which the Testator was not represented. Whatever be the true view， a form of Testament came into use， which has all the characteristics of a contrivance intended to evade some distasteful obligation. The Will in question was a conveyance inter vivos， a complete and irrevocable alienation of the Testator's family and substance to the person whom he meant to be his heir. The strict rules of Roman law must always have permitted such an alienation， but， when the transaction was intended to have a posthumous effect， there may have been disputes whether it was valid for Testamentary purposes without the formal assent of the Patricia Parliament. If a difference of opinion existed on the point between the two classes of the Roman population， it was extinguished， with many other sources of heartburning， by the great Decemviral compromise. The text of the Twelve Tables is still extant which says， "Pater familias uti de pecunia tutelave rei suae legassit， ita jus esto" —— a law which can hardly have had any other object than the legalisation of the Plebeian Will.
　　It is well known to scholars that， centuries after the Patrician Assembly had ceased to be the legislature of the Roman State， it still continued to hold formal sittings for the convenience of private business. Consequently， at a period long subsequent to the publication of the Decemviral Law， there is reason to believe that the Comitia Calata still assembled for the validation of Testaments. Its probable functions may be best indicated by saying that it was a Court of Registration， with the understanding however that the Wills exhibited were not enrolled， but simply recited to the members， who were supposed to take note of their tenor and to commit them to memory. It is very likely that this form of Testament was never reduced to writing at all， but at all events if the Will had been originally written， the office of the Comitia was certainly confined to hearing it read aloud， the document being retained afterwards in the custody of the Testator， or deposited under the safeguard of some religious corporation. This publicity may have been one of the incidents of the Testament executed in the Comitia Calata which brought it into popular disfavour. In the early years of the Empire the Comitia still held its meetings， but they seem to have lapsed into the merest form， and few Wills， or none， were probably presented at the periodical sitting.
　　It is the ancient Plebeian Will —— the alternative of the Testament just described —— which in its remote effects has deeply modified the civilisation of the modern world. It acquired at Rome all the popularity which the Testament submitted to the Calata Comitia appears to have lost. The key to all its characteristics lies in its descent from the mancipium， or ancient Roman conveyance， a proceeding to which we may unhesitatingly assign the parentage of two great institutions without which modern society can scarcely be supposed capable of holding together， the Contract and the Will. The mancipium， or as the word would exhibit itself in later Latinity， the Mancipation， carries us back by its incidents to the infancy of civil society. As it sprang from times long anterior， if not to the invention， at all events to the popularisation， of the art of writing， gestures， symbolical acts， and solemn phrases take the place of documentary forms， and a lengthy and intricate ceremonial is intended to call the attention of the parties to the importance of the transaction， and to impress it on the memory of the witnesses. The imperfection too of oral， as compared with written， testimony necessitates the multiplication of the witnesses and assistants beyond what in later times would be reasonable or intelligible limits.

会计考友 · 发表于 2012-8-16 08:34:16

　　The Roman Mancipation required the presence first of all of the parties， the vendor and vendee， or we should perhaps rather say， if we are to use modern legal language， the grantor and grantee. There were also no less than five witnesses； and an anomalous personage， the Libripens， who brought with him a pair of scales to weigh the uncoined copper money of ancient Rome. The Testament we are considering —— the Testament per aes et libram， "with the copper and the scales，" as it long continued to be technically called —— was an ordinary Mancipation with no change in the form and hardly any in words. The Testator was the grantor； the five witnesses and the libripens were present； and the place of grantee was taken by a person known technically as the familiae emptor， the Purchaser of the Family. The ordinary ceremony of a Mancipation was then proceeded with. Certain formal gestures were made and sentences pronounced. The Emptor familiae simulated the payment of a price by striking the scales with a piece of money， and finally the Testator ratified what had been done in a set form of words called the "Nuncupatio" or publication of the transaction， a phrase which， I need scarcely remind the lawyer， has had a long history in Testamentary jurisprudence. It is necessary to attend particularly to the character of the person called familiae emptor. There is no doubt that at first he was the Heir himself. The Testator conveyed to him outright his whole "familia，" that is， all the rights he enjoyed over and through the family； his property， his slaves， and all his ancestral privileges， together， on the other hand， with all his duties and obligations.
　　With these data before us， we are able to note several remarkable points in which the Mancipatory Testament， as it may be called， differed in its primitive form from a modern will. As it amounted to a conveyance out-and-out of the Testator's estate， it was not revocable. There could be no new exercise of a power which had been exhausted.
　　Again， it was not secret. The Familia Emptor， being himself the Heir， knew exactly what his rights were， and was aware that he was irreversibly entitled to the inheritance； a knowledge which the violences inseparable from the best-ordered ancient society rendered extremely dangerous. But perhaps the most surprising consequence of this relation of Testaments to Conveyances was the immediate vesting of the inheritance in the Heir. This has seemed so incredible to not a few civilians， that they have spoken of the Testator's estate as vesting conditionally on the Testator's death or as granted to him from a time uncertain， i.e. the death of the grantor. But down to the latest period of Roman jurisprudence there was a certain class of transactions which never admitted of being directly modified by a condition， or of being limited to or from a point of time. In technical language they did not admit conditio or dies. Mancipation was one of them， and therefore， strange as it may seem， we are forced to conclude that the primitive Roman Will took effect at once， even though the Testator survived his act of Testation. It is indeed likely that Roman citizens originally made their Wills only in the article of death， and that a provision for the continuance of the Family effected by a man in the flower of life would take the form rather of an Adoption than of a Will. Still we must believe that， if the Testator did recover， he could only continue to govern his household by the sufferance of his Heir.
　　Two or three remarks should be made before I explain how these inconveniences were remedied， and how Testaments came to be invested with the characteristics now universally associated with them. The Testament was not necessarily written： at first， it seems to have been invariably oral， and， even in later times， the instrument declaratory of the bequests was only incidentally connected with the Will and formed no essential part of it. It bore in fact exactly the same relation to the Testament， which the deed leading the uses bore to the Fines and Recoveries of old English law， or which the charter of feoffment bore to the feoffment itself. Previously， indeed， to the Twelve Tables， no writing would have been of the slightest use， for the Testator had no power of giving legacies， and the only persons who could be advantaged by a will were the Heir or Co-heirs. But the extreme generality of the clause in the Twelve Tables soon produced the doctrine that the Heir must take the inheritance burdened by any directions which the Testator might give him， or in other words， take it subject to legacies. Written testamentary instruments assumed thereupon a new value， as a security against the fraudulent refusal of the heir to satisfy the legatees； but to the last it was at the Testator's pleasure to rely exclusively on the testimony of the witnesses， and to declare by word of mouth the legacies which the familiae emptor was commissioned to pay.

会计考友 · 发表于 2012-8-16 08:34:17

　　The terms of the expression Emptor familiae demand notice. "Emptor" indicates that the Will was literally a sale， and the word "familiae，" when compared with the phraseology in the Testamentary clause in the Twelve Tables， leads us to some instructive conclusions. "Familia，" in classical Latinity， means always a man's slaves. Here， however， and generally in the language of ancient Roman law it includes all persons under his Potestas， and the Testator's material property or substance is understood to pass as an adjunct or appendage of his household. Turning to the law of the Twelve Tables， it will be seen that it speaks of tutela rei suae， "the guardianship of his substance，" a form of expression which is the exact reverse of the phase just examined. There does not therefore appear to be any mode of escaping from the conclusion， that， even at an era so comparatively recent as that of the Decemviral compromise， terms denoting "household" and "property" were blended in the current phraseology. If a man's household had been spoken of as his property we might have explained the expression as pointing to the extent of the Patria Potestas， but， as the interchange is reciprocal， we must allow that the form of speech caries us back to that primeval period in which property is owned by the family， and the family is governed by the citizen， so that the member of the community do not own their property and their family， but rather own their property through their family.
　　At an epoch not easy to settle with precision， the Roman Praetors fell into the habit of acting upon Testaments solemnised in closer conformity with the spirit than the letter of the law. Casual dispensations became insensibly the established practice， till at length a wholly new form of Will was matured and regularly engrafted on the Edictal Jurisprudence. The new or Praetorian Testament derived the whole of its impregnability from the Jus Honorarium or Equity of Rome. The Praetor of some particular year must have inserted a clause in his inaugural Proclamation declaratory of his intention to sustain all Testaments which should have been executed with such and such solemnities； and， the reform having been found advantageous， the article relating to it must have been again introduced by the Praetor's successor， and repeated by the next in office， till at length it formed a recognised portion of that body of jurisprudence which from these successive incorporations was styled the Perpetual or Continuous Edict. On examining the conditions of a valid Praetorian Will they will be plainly seen to have been determined by the requirements of the Mancipatory Testament， the innovating Praetor having obviously prescribed to himself the retention of the old formalities just so far as they were warrants of genuineness or securities against fraud. At the execution of the Mancipatory Testament seven persons had been present besides the Testator. Seven witnesses were accordingly essential to the Praetorian Will： two of them corresponding to the libripens and familiae emptor， who were now stripped of their symbolical character， and were merely present for the purpose of supplying their testimony. No emblematic ceremony was gone through； the Will was merely recited； but then it is probable （though not absolutely certain） that a written instrument was necessary to perpetuate the evidence of the Testator's dispositions. At all events， whenever a writing was read or exhibited as a person's last Will， we know certainly that the Praetorian Court would not Sustain it by special intervention， unless each of the seven witnesses had severally affixed his seal to the outside. This is the first appearance of sealing in the history of jurisprudence， considered as a mode of authentication. It is to be observed that the seals of Roman Wills， and other documents of importance， did not simply serve as the index of the presence or assent of the signatory， but were literally fastenings which had to be broken before the writing could be inspected.

会计考友 · 发表于 2012-8-16 08:34:18

　　The Edictal Law would therefore enforce the dispositions of a Testator， when， instead of being symbolised through the forms of mancipation， they were simply evidenced by the seals of seven witnesses. But it may be laid down as a general proposition， that the principal qualities of Roman property were incommunicable except through processes which were supposed to be coeval with the origin of the Civil Law. The Praetor therefore could not confer an Inheritance on anybody. He could not place the Heir or Co-heirs in that very relation in which the Testator had himself stood to his own rights and obligations. All he could do was to confer on the person designated as Heir the practical enjoyment of the property bequeathed， and to give the force of legal acquittances to his payments of the Testator's debts. When he exerted his powers to these ends， the Praetor was technically said to communicate the Bonorum Possessio. The Heir specially inducted under these circumstances， or Bonorum Possessor had every proprietary privilege of the Heir by the Civil Law. He took the profits and he could alienate， but then， for all his remedies for redress against wrong， he must go， as we should phrase it， not to the Common Law， but to the Equity side of the Praetorian Court. No great chance of error would be incurred by describing him as having an equitable estate in the inheritance； but then， to secure ourselves against being deluded by the analogy， we must always recollect that in one year the Bonorum Possessio was operated upon a principle of Roman Law known as Usucapion， and the Possessor became Quiritarian owner of all the property comprised in the inheritance</p>

		自动登录	找回密码
密码			立即注册

[FECT高级考试] 法律辅导：AncientLawChapter7