filment made by one superseded all fulfilment by the others.

But there was a case in which a relation essentially the same as the correal might be established without being explicitly declared, or even aimed at, by the parties. Suppose that Titius by stipulation had promised Aulus that he would give him his slave Pamphilus, but before fulfilling the promise died, leaving two heirs of his estate. The obligation imposed by the contract would fall with equal weight upon the two. The fulfilment, if it were divisible, would have to be divided between them. The slave might indeed be divided and given in parts: this would be physically possible, but it would be no fulfilment of the contract. The division would change the nature and uses of the thing promised. The two halves of a dead slave would not be equivalent to the whole of a living one. was to be done under these circumstances? The answer of the Roman law was that one of the two heirs must make the complete fulfilment. Aulus might demand the slave from either one according to his pleasure: if he failed to comply, Aulus might sue him and obtain the slave himself or his full value. And when the claim of Aulus had been satisfied by one of the two, the other was released from obligation-that is, from the obligation to Aulus: to his fellow-heir he was bound, by rule of law, to share in the burden of his fulfilment, to pay him half the estimated value of

What

the slave. The same would be true if Titius had promised to make a house for Aulus. A house, like a slave, was an indivisible object: it could not be divided without an essential change in its nature and uses. If you take a house to pieces, the pieces are not quarters of a house, or tenths, or hundredths; they are fragments, not fractions; boards and bricks and stones, buildingmaterials, things essentially different from a house. Aulus, therefore, would demand the whole service, the whole making of the house, from one of the two heirs of Titius; and this one could then look to his fellowheir for half the estimated cost of the edifice. The general principle was, that where two or more persons owed an indivisible service they stood in a correal relation to each other: each one was liable for the whole service, and by his fulfilment discharged the obligation for the rest; but these could be compelled to pay him their money shares of the value of his service.

I am afraid that the details given in this lecture and the last may have seemed to you unimportant and tedious. But I hope they will have contributed toward two objects, neither of which may be without value: to make you acquainted with the circle of business transactions and relations in the ancient Roman world; and to illustrate the modes of conception and reasoning among the jurists to whom we owe the scientific construction of the Roman law.

LECTURE XI.

LAW OF INHERITANCE.

THE interests of property required that one's estate (aggregate of rights and obligations) should not perish with him, but live on under a successor (heres) designated in his testament, or by law if he died intestate.

GENERAL PRINCIPLES of inheritance: 1. It was a universal succession (though family rights, and some others strictly personal, were not included in it). 2. It could not be partly testamentary, partly intestate. The testament either created a universal successor, or it had no effect at all. 3. The testamentary heir took the inheritance with obligation to pay the legacies ordered in the will. 4. The estates of the deceased and the heir were blended into one; whence-5. The heir was liable in his whole property for the debts of the inheritance; though by the beneficium inventarii, under Justinian, the liability might be restricted to the assets of the inheritance. 6. There were certain necessarii heredes, who, when appointed heirs by testament or law, could not refuse; such were the sui heredes (descendants under potestas; to whom, however, the prætor allowed a jus abstentionis), and slaves of deceased, made free and heirs by testament (often to bear infamia of expected bankruptcy). 7. The inheritance might be divided among several heirs, but only in fractional parts of the whole, the fractions being equal, unless otherwise ordered by testament.

INTESTATE INHERITANCE often came in where a testament had been made, this being invalid from the first, or rendered inoperative afterward (as by subsequent incapacity or death or refusal of the appointed heir,

by failure of a prescribed condition, etc.). The intestate heir was the person entitled by law at testator's death, or, if failure of the testament was not then certain, at the time when it became so. But no one born (conceived) after another's death could be his heir.

The early law of inheritance disregarded cognation (blood-relation; lineal or collateral; the degrees determined by number of steps, up, down, or both ways, necessary in tracing connection), and considered agnates only (Lecture VI). It offered inheritance-1. To sui heredes: sons and daughters under potestas shared equally; children of a deceased son were admitted to his share. If no sui, then-2. To nearest collateral agnate (or agnates, when there were several in the same degree). Father and mother of deceased, why excluded; mother in stricter marriage could succeed, but only as sister. If nearest agnate refused, then (not to remoter agnates, but)-3. To the gens, group of connected families, with common gentile name: succession of the gens very imperfectly understood.

Gradual changes of this system, all in the interest of cognates. First, the prætors allowed emancipated children to succeed (as bonorum possessores; compare Lecture IV.) along with sui heredes; but not until the former had added their own acquisitions to property of deceased (collatio bonorum). Again, on failure of descendants and nearest agnates, the prætors, setting aside the gens, called in the cognates, one degree after another, until a bonorum possessor was found, but not going beyond the sixth degree. A senatus consultum Orphitianum (178 A.D.) gave the mother's estate to her surviving children as heirs (children of a deceased child being excluded until two hundred years later). And a senatus consultum Tertullianum (158 a. D.) allowed the mother (in freer marriage) to precede the nearest collateral agnates, unless these were brothers and sisters (if there were sisters only, she shared with them); but the privilege was confined to mothers (with jus trium liberorum) who had borne children three times, or (if freed women) four times.

Other changes in the same direction were made by Justinian, who at length in Novel 118 introduced a new system, founded on cognation. He arranged all cognates in four successive classes of heirs: 1. All descendants, of both sexes: sons and daughters sharing equally; children of a deceased descendant take the share that would have come to their lost parent. 2. Ascendants, with full brothers and sisters: all sharing equally; children of deceased brother or sister taking their parent's share; if there were only ascendants, those on father's and mother's side each take half. 3. Half brothers and sisters, with children of deceased ones:

sharing as in Number 2. 4. Other cognates of all degrees, the nearer degree excluding the remoter, those of the same degree sharing equally. No preference of male sex or elder birth. Difference between this system and the old Germanic one of successive stocks (of deceased, of his father, of his father's father, etc.), with unlimited right of representation, as seen in English inheritance of lands.

IN the last four lectures we have considered the elements which make up the estate. What we call the estate is an aggregate of rights and obligations vested in the person of the owner-rights of property, rights in the property of others, rights to particular services from others with obligation on their part to render them, obligations on his part to render such services to others who have a right to demand them. We have now to ask, What becomes of this estate, this complex of rights and obligations, when the person in whom they were vested had ceased to exist? Do they perish with him? Is his property left without owner, to become the property of any one who first takes it for his own? Are his debtors relieved from all the payments or other services which they were bound to render him? Are his creditors debarred from all hope of obtaining those which they were entitled to claim of him? Under such a state of things, civilization would hardly be possible. The interests of property require, above all things, stability and security. They need to be guarded from the ever-recurring shocks, the perpetual agitation and uncertainty, which death would cause, if it were the dissolution of property as well as