Page:1909historyofdec04gibbuoft.djvu/588

 520 THE DECLINE AND FALL [Chap, xliv wife extinguished the hopes of the daughter. But the equal succession of independent matrons supported their pride and luxury, and might transport into a foreign house the riches of their fathers. While the maxims of Cato 158 were revered, they tended to perpetuate in each family a just and virtuous mediocrity : till female blandishments insensibly triumphed, and every salu- tary restraint was lost in the dissolute greatness of the republic. The rigour of the decemvirs was tempered by the equity of the praetors. Their edicts restored emancipated and posthumous children to the rights of nature; and, upon the failure of the agnats, they preferred the blood of the cognats to the name of the gentiles, whose title and character were insensibly covered (a.d- 543] with oblivion. The reciprocal inheritance of mothers and sons was established in the Tertullian and Orphitian decrees by the humanity of the senate. A new and more impartial order was introduced by the novels of Justinian, who affected to revive the jurisprudence of the Twelve Tables. The lines of masculine and female kindred were confounded ; the descending, ascend- ing, and collateral series, was accurately denned ; and each de- gree, according to the proximity of blood and affection, succeeded to the vacant possessions of a Eoman citizen. 154 introduc- The order of succession is regulated by nature, or at least tion and t ., ° liberty of by the general and permanent reason of the lawgiver ; but this testaments _ . ° * . o » order is frequently violated by the arbitrary and partial wills which prolong the dominion of the testator beyond the grave. 156 In the simple state of society, this last use or abuse of the right of property is seldom indulged : it was introduced at Athens by the laws of Solon ; and the private testaments of the father of a family are authorised by the Twelve Tables. Before the time 163 Legem Voconiam (Ernesti, Clavis Ciceroniana) magna voce bonis lateribus (at lxv. years of age) suasissem, says old Cato (de Senectute, c. 5). Aulus Gellius (vii. 13, xvii. 6) has saved some passages. 154 See the law of suooessionin the Institutes of Caius (1. ii. tit. viii. p. 130-144), and Justinian (1. iii. tit. i.-vi. with the Greek version of Theophilus, p. 515-575, 588-600), the Pandects (1. xxxviii. tit. vi.-xvii.), the Code (1. vi. tit. lv.-lx.), and the Novels (cxviii.) [143, ed. Zach. Accarias regards this law as Justinian's ohef- d'cEUvre (i. p. 1282)]. 155 That succession was the rule, testament the exception, is proved by Taylor (Elements of Civil Law, p. 519-527), a learned, rambling, spirited writer. In the iid and iiid books the method of the Institutes is doubtless preposterous ; and the Chancellor Daguesseau (Oeuvres, torn. i. p. 275) wishes his countryman Domatin the place of Tribonian. Yei covenants before successions is not surely the natural order of the civil laws.