Part 26 (1/2)

9 This testament, called ”in procinctu,” was different from that which they styled military, which was established only by the const.i.tutions of the emperors. Leg. I ff. ”de military testamento.” This was one of the artifices by which they cajoled the soldiers.

10 This testament was not in writing and it was without formality, ”sine libra et tabulis,” as Cicero says, lib. I. ”de Oratore.”

11 ”Inst.i.t.” lib. II. t.i.t. 10, sec.1. Aulus Gellius, lib. XV. cap. xxvii. They called this form of testament ”per aes et libram.”

12 Ulpian, t.i.t. 10, sec. 2.

13 Theoph. ”Inst.” lib. II. t.i.t. 10.

14 T. Livy, lib. IV. ”nondum argentum signatum erat.” He speaks of the time of the siege of Veii.

15 t.i.t. 20, sec. 13.

16 ”Inst.i.t.” lib. II. t.i.t. 10, sec. 1.

17 Let t.i.tus be my heir.

18 Vulgar, pupillary, and exemplary.

19 Augustus, for particular reasons, first began to authorize the fiduciary bequest, which, in the Roman law, was called ”fidei commissum.” ”Inst.i.t.” lib. II. t.i.t. 23, ”in praemio.”

20 ”Ad liberos matris intestatae haeredit as,” leg. 12 Tab., ”non pertinebat, quia, fminae suos haeredes non habent.” Ulpian, ”Frag.” t.i.t. 26, sec. 7.

21 It was proposed by Quintus Voconius, Tribune of the people. See Cicero's ”Second Oration against Verres.” In the ”Epitome” of T. Livy, lib. XLI., we should read Voconius, instead of Voluminus.

22 ”Sanxit...ne quis haeredem virginem neve mulierem faceret.”-Cicero's ”Second Oration against Verres.”

23 ”Legem tulit, ne quis haeredem mulierem inst.i.tueret.”-Lib. IV.

24 ”Second Oration against Verres.”

25 ”Of the City of G.o.d,” lib. III.

26 ”Epitome” of Livy, lib. XL.

27 Lib. XXVII. cap. vi.

28 ”Inst.i.t.” lib. III. t.i.t. 22.

29 Ibid.

30 ”Nemo censuit plus Fadiae dandum, quam posset ad eam lege Voconia pervenire.”-”De finibus boni et mali,” lib. VI.

31 ”c.u.m lege Voconia mulieribus prohiberetur, ne qua majorem centum millibus nummum haereditatem posset adire.”-Lib. LXVI.

32 ”Qui census esset.”-”Second Oration against Verres.”

33 ”Census non erat.”-Ibid.

34 Lib. IV.

35 In ”Oratione pro Caecina.”

36 These five cla.s.ses were so considerable, that authors sometimes mention no more than five.

37 ”In Caeritum tabulas referri; aerairius fieri.”

38 Cicero, ”de finib. boni et mali,” lib. II.

39 Ibid.

40 s.e.xtilius said he had sworn to observe it.-Cic. ”de finibus boni et mali,” lib. II.

41 See what has been said in book XXIII. chap. 21.

42 The same difference occurs in several regulations of the Papian law. See the ”Fragments of Ulpian,” secs. 4, 5, and 6.

43 See ”Frag. of Ulpian,” t.i.t. 15, sec.16.

44 ”Quod tibi filiolus, vel filia nascitur ex me, Jura Parentis habes; propter me scriberis haeres.”-Juvenal. Sat. 9.

45 See law 9, C. Theod. ”de bonis proscriptorum,” and Dio, lib. V. See the ”Frag. of Ulpian,” t.i.t. last, sec. 6, and t.i.t. 29, sec. 3.

46 ”Fragments of Ulpian,” t.i.t. 16, sec. 1. Sozomenus, lib. I. cap. ix.

47 Lib. XX. cap. i 48 Lib. IV. t.i.t. 8, sec. 3.

49 t.i.t. 26, sec. 6.

50 That is, the Emperor Pius, who changed his name to that of Adrian by adoption.

51 Lib. II. cod. ”de jure liberorum.” ”Inst.i.t.” t.i.t. 3, sec. 4, ”de senatus consult.”

52 Lib. 9, Cod. ”de suis et legitimis haeredibus.”

53 Lib. XIV. Cod. ”de suis et legitimis haeredibus.” et ”Nov.” 118 and 127.

Book XXVIII

Of the Origin and Revolutions of the Civil Laws Among the French1 In nova fert animus mutatas dicere formas Corpora- -OVID, METAM.

1.-Different Character of the Laws of the several Peoples of Germany AFTER the Franks had quitted their own country, they made a compilation of the Salic laws with the a.s.sistance of the sages of their own nation.2 The tribe of the Ripuarian Franks having joined itself under Clovis3 to that of the Salians preserved its own customs; and Theodoric,4 King of Austrasia, ordered them to be reduced to writing. He collected likewise the customs of those Bavarians and Germans, who were dependent on his kingdom.5 For Germany having been weakened by the migration of such a mult.i.tude of people, the Franks, after conquering all before them, made a retrograde march and extended their dominion into the forests of their ancestors. Very likely the Thuringian code was given by the same Theodoric, since the Thuringians were also his subjects.6 As the Frisians were subdued by Charles Martel and Pepin, their law cannot be prior to those princes.7 Charlemagne, the first that reduced the Saxons, gave them the law still extant; and we need only read these last two codes to be convinced they came from the hands of conquerors. As soon as the Visigoths, the Burgundians, and the Lombards had founded their respective kingdoms, they reduced their laws to writing, not with an intent of obliging the vanquished nations to conform to their customs, but with a design of following them themselves.

There is an admirable simplicity in the Salic and Ripuarian laws, as well as in those of the Alemans, Bavarians, Thuringians, and Frisians. They breathe an original coa.r.s.eness and a spirit which no change or corruption of manners had weakened. They received but very few alterations, because all those peoples, except the Franks, remained in Germany. Even the Franks themselves laid there the foundation of a great part of their empire, so that they had none but German laws. The same cannot be said of the laws of the Visigoths, of the Lombards, and Burgundians; their character considerably altered from the great change which happened in the character of the peoples after they had settled in their new habitations.

The kingdom of the Burgundians did not last long enough to admit of great changes in the laws of the conquering nation. Gundebald and Sigismond, who collected their customs, were almost the last of their kings. The laws of the Lombards received additions rather than changes. The laws of Rotharis were followed by those of Grimoaldus, Luitprandus, Rachis, and Astulphus, but did not a.s.sume a new form. It was not so with the laws of the Visigoths;8 their kings new-molded them, and had them also new-molded by the clergy.