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lica seu privata adversus eos exoritur, qui vim vel armatam, vel sine armis, commiserint; sed, siquidem • armata vis arguatur, deportatio ei ex lege Julia de vi publica irrogatur; si verd sine armis, in tertiam partem bonorum suorum publicatio imponitur. Sin autem per vim raptus virginis, vel viduae, vel sanctimonialis, vel alterius, fuerit perpetratus, tunc et raptores, et ii, qui opem huic flagitio dederunt, capite puuiuntur, secundum nostra constitutionis definitionem, ex qua hoc apertius possibile est scire.
public and private force, take place against all, who use force, whether armed or unarmed; but, if proof be made of an armed force, the punishment is deportation by that law; and, if the force be not accompanied with arms, the penalty is confiscation of one third part of the offender's goods: nevertheless, if a rape be committed upon a virgin, a widow, a nun, or upon any other person, both the ravishers and their accomplices are all equally subject to capital punishment, according to the decision of our constitution; from which more may be known of this subject .
De ambitu, repetundis, annona, residuis
$ XI. Sunt praeterea publica judicia: lex Julia de ambitu, lex Julia repetundarum, et lex Julia de annona, et lex Julia de residuiis, quae de certis capitulis loquuntur, et animaequidem amissionem non irrogant; aliis autem poenis eos subjiciunt, quipraeceptaearum neglexerint.
$11. There are also other public judgments; such are the Julian laws de ambitu, repetundarum, de annona, de residuis; which do not punish with death, but inflict other punishments upon those, who offend.
$ XII. Sed de publicis judiciis haec exposuimus, ut vobis possibile sit summo digito, et quasi per indicem, ea tetigisse; alioqui diligentior eorum scientia vobis, ex latioribus digestorum seu pandectarum libris, Deo propitio adventura est.
$ 12. Thus much we have stated
on the subject of public judgments, as an index, to give a general idea of that knowledge, which, through the blessing of God, may be most fully and particularly obtained by perusing the digests with a diligent attention.
LIBRI QUARTI ET ULTIMI INSTITUTIONUM.
CAP. I .
De descendentionum successione.
SI quis igitur descendentium fuerit ei, qui intestatus moritur, cujuslibet naturEB aut gradus, sive ex masculorum genere sive ex fccminarum descendens, et sive suae potestatis, sive sub potestate sit, omnibus ascendentibus et ex latere cognatis pneponatur. Licet enim defunctus sub alterius potestate fuerit, tamen ejus liberos, cujuslibetsexus sint aut gradus, etiam ipsis parentibus praeponi praecipimus, quorum sub potestate fuerit, qui defunctus est, in iilis videlicet rebus, quse, secundum nostras alias leges, patribus non acquiruntur; nam in usu harum rerum, qui debet acquiri aut servari, nostras de his omnibus leges parentibus custodimus: sic tamen, ut, si quem horum descendentium filios reliquentem mori contigerit, illius filios aut filias, aut alios descendentes, in proprii parentis locum succedere, sive sub potestate defuncti, sive suae potestatis inveniantur; tantam de haereditate morientis accipentes partem, quanticunque sint, quantam eorum parens, si viveret, habuisset; quam successio nem in stirpes vocavit antiquitas: in hoc enim ordine gradum quaeri nolumus; sed, cum filiis et iiliabus, ex prsemortuo filio aut filia nepotes vo
Of the succession of descendants. If a man dies intestate, leaving a descendant of either sex or any degree, such descendant, whether he derives his descent from the male or female line, or whether he is under power or not, is to be preferred to all ascendants and collaterals. And, although the deceased was himself under paternal power, yet we ordain, that his children of either sex or any degree shall be preferred in succession to the parents, under whose power the intestate died, in regard to those things, which children do not acquire for their parents, according to our other laws: for we would maintain the laws in respect to the usufruct, which is allowed to parents: so that, if any of the descendants of the deceased should die leaving sons or daughters or other descendants, they shall succeed in the place of their own lather, whether they are under his power or sui juris and shall be entitled to the same share of the intestate's estate. which their father would have had, if he had lived ; and this kind of succession has been termed by the ancient lawyers a succession in stirpes: for in the succession of descendants we allow no priority of degree, but admit the grandchildren of any person by a deceased son or daughter to be called to inherit that person together with his sons or daughters, without making any distinction between males and females, or the descendants of males and females, or between those, who are under power, and those, who are not. Thes e are the rules, which we have established, concerning the succession of descendants.
El Tij lOtvvv. Si quis igitur.] The three first chapters of this novel constitution deserve the attentive consideration of the reader, not only because they contain the latest policy of thu civil law in regard to the disposition of the estates of intestates ; but because they are the foundation of our statute law in that respect. Vid. Holt's cases, p. 259. Peero William's rep. p. 27. Prec. in chan. p. 593. Sir Thom. Raymond's rep. p. 496. And they are still almost of continual use, by being the general guide of the courts in England, which hold cognizance of distributions, in ail those cases, concerning which our own laws have either been silent, or not sufficiently express.
£l( lov Io idia vofeoif. Jn proprii parentis locum succcdant.] Nothing is more clear in the civil law, than that grandchildren, even when alone, (although they descend from various stocks and arc unequal in their numbers,) would take the estate of their deceased grandfather per stirpes, and not per capita. Suppose therefore that Titius should die, leaving grand
children by three different sons, already dead; to wit, three by ona son, six by another, and twelve by another; each of theso classes of grandchildren would take a third of the estate without uny regard to the inequality of the numbers in each class. But, as to this point in England, the law reports mention no judicial determination; yet it seems probable that the courts, in which the distributions are cognizable, would order the division of an estate io snch a case to be made per capita; and this, partly from a motive of equity, and partly from a consideration of the intent of the statute, relating to the estates of intestates ; for the statute directs an equal and just distribution : and, when the act mentions representation, it must be understood to refer to it, in those cases only, where representation is necessary to prevent exclusion, but not to refer to it, in those cases, where all the claimants are in equal degree, and therefore can lake tvoquisque jure, each in his own right. Vid. 23, 24, Gar. 2. cap. 10. Lib. 3. Inst. p 4