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490
THE DECLINE AND FALL
time of the decemvirs,[1] a Roman citizen exposed his wishes and motives to the assembly of the thirty curiæ or parishes, and the general law of inheritance was suspended by an occasional act of the legislature. After the permission of the decemvirs each private lawgiver promulgated his verbal or written testament in the presence of five citizens, who represented the five classes of the Roman people; a sixth witness attested their concurrence; a seventh weighed the copper money which was paid by an imaginary purchaser: and the estate was emancipated by a fictitious sale and immediate release. This singular ceremony,[2] which excited the wonder of the Greeks, was still practised in the age of Severus; but the prætors 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.D. 542] 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.[3] Unless a legitimate portion, a fourth part, had been reserved for the children, they were entitled
- ↑ Prior examples of testaments are perhaps fabulous. At Athens a childless father only could make a will (Plutarch. in Solone, tom. i. 164 [c. 21]. See Isæus and Jones).
- ↑ The testament of Augustus is specified by Suetonius (in August. c. 101, in Neron. c. 4), who may be studied as a code of Roman antiquities. Plutarch (Opuscul. tom. ii. p. 976) is surprised ὄταν δὲ διαθήκαι γράϕωσιν ἐτ έρους μὲν ἀπολείπουσι κληρονόμους, ἔτεροι δὲ πωλον̂σι τὰς οὐσίας. The language of Ulpian (Fragment. tit. xx. p. 627, edit. Schulting) is almost too exclusive — solum in usu est.
- ↑ Justinian (Novell. cxv. [136, ed. Zachar.] No. 3, 4) enumerates only the public and private crimes, for which a son might likewise disinherit his father. [This Novel enumerates, no. 3, fourteen cases in which a parent (grandparent, &c.) might validly exclude the children, and, no. 4, nine cases in which the children might legitimately exclude their parents. Justinian had already (A.D. 536, Nov. 42) raised the legitimate portion from ¼th to ⅓rd in case the children were four or fewer, to ½ in case they were more. The defect in this arrangement was that one of a family of 5 would have a larger portion than one of a family of 4. Cp. Accarias, i. p. 964.]
