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And, if the deceased leaves brothers and also nephews by a deceased brother or sister, these nephews shall be called to succeed with their uncles and aunts of the whole blood to the deceased; but, however numerous these nephews are, they shall be entitled only to that share, which their parent would have taken, if alive. From whence it follows, that, if a man dies and is survived by the children of a deceased brother of the whole blood, and also by brothers of the half blood, then his nephews, (that is, children of his brother, by the whole blood,) are to be preferred to their uncles and aunts; for, although such nephews are themselves in the third degree, yet they are preferred, as their parent would have been, if living. And, on the contrary, if a man dies, and is survived by a brother of the whole blood, and by children of a brother of the half blood deceased, these nephews are excluded, as their father would have been, if he had lived. But among collaterals we allow the privilege of representation to the sons and daughters of brothers and sisters, and no farther; and we grant it only to brothers and sisters' children, when they concur with their uncles or aunts, paternal or maternal: for, when ascendants are called to inherit, we by no means permit the children of a deceased brother or sister to share in the succession; although the father or mother was of the whole blood with the deceased brother. But we have so far allowed the right of representation to brothers and sisters' children, that, being only in the third degree, they are called to inherit with those, who are in the second ; and this is evident, because brothers and sisters' children are preferred to the uncles and aunts of the deceased, paternal as well as maternal; although they are all in the third degree of cognation.
But, if a deceased person leaves neither brothers nor brothers' children, we then call all the other collaterals according to the prerogative of their respective degrees, preferring the nearer to the more remote; and, if many are found in the same degree, the inheritance must be divided according to the number of persons; and our laws distinguish this manner of dividing an inheritance, by calling it a division in capita.
Iiqmthi] eupoj iiiv xlriqOVOfttav. Primoe ad hsreditatem vocamus.] We must here observe in relation to the distinction between (he whole blood nnd half blood, that in England the rules of law are different, according to the nature of the estate which is to be taken; lor, in case of lands the whole blood is always preferred, and the half blood is no blood inheritable by descent. 1 Co. inst. 14 a. But, in respect to personal estate, the law bus not always been fixed and certain ; inasmuch as the statute of the 23d of Car. II. (for the better settlement of the estates of intestates,) takes no notice of this distinction between the whole blood and the half-blood, but directs, that distribution shall be made among all those, who are in equal degree of kindred to the intestate. But, it being certain, that brothers and sisters of the half blood are in the same degree with brothers and sisters of the whole blood, it hath been the general opinion, that brothers and sisters of the half blood were entitled, by virtue of the statute,
to an equal share of the intestate's estate, with the brothers and sisters of the whole blood, although there are several precedents of judgments given, since the statute, allowing the half blood to have but an half share. But the law in this respect has been fully settled ever since the decree of the house of lords in the case of Watts and others versus Crooke, upon an appeal from a decree in chancery, which had been given in favor of the half blood, and was affirmed by the house. Vid. Shower's cases in Par. 108, and Stratum's Domat. 683. 2 Mod 204. Harris.
Ovdevi tqonw Nullo mode] "Sancimus, "ut, si quis moriens relinquat ascendentium "aliquem et fratrcs, qui possint, cum parenti"bus vocari, et alterius pramortui fratris fili"os, cum ascendentibus et fratribus vocentur "etiam pramortui fratris filii. et tantum ac"cipiant portionem, quantum eorum futurui "erat pater accipere, si vixisset." Vid. Not. exxvii. cap 1. Harris.
END Of THE INSTITUTES.
PR(EMIUM, OR PREFACE.
DE CONFIRMATIONS INSTITUTIONUM Page 1.
THIS amounts to an imperial constitution, giving a Sanction, to this compilation by Tribonian and his associates.
In nomine Domini noslri Jesu Chrisli. This is elsewhere used, as in the second and third confirmations of the digests, in the confirmation of the code, and of several of the novels. In nomine Domini nostri Jesu Christi, ad omnia consilia omnesque actus semper progredimur. Cod. 1. 27. 2. pr. Hence the usual solemn form of beginning last wills and testaments, In The Name Of God, Amen. That the ancient Romans, seldom entered on a business of importance sine consilio deorum et ope invocata, I am aware; but I suspect this practice, was rather of Christian origin: 3 Coloss. 17. "Whatever ye do in word or deed, do all in the name of the Lord Jesus, giving thanks to God, and the father by him." See Dr. Taylor's observations on the proemium of the Institutes, Elem. Civ. Law. qto. 28. This form of testamentary introduction, cannot be necessary, unless under some precise and positive institution; of which I know none in the English or American law. I refer to Taylor, (loc. cit.) for a full dissertation on the titles assumed by the emperor, of which the following is a concise account.
Emperor. Imperator. Originally conferred on victorious generals, but first assumed as an imperial title by Augustus Caesar.
Casar. A name that belonged to the family of Julius Caesar as a Cognomen; and adopted by the emperors from Augustus to Nero. It was then given to the next in succession (destinali imperio) who were denominated nobilissimi Casares: it was reassumed by the emperors, on the removal of the government from Rome to Byzantium.
Flavius. Borrowed from the Vespasian family, and retained by many of the emperors after Vespasian; it was then dropt for some time, and reassumed by the fourth predecessor of Justinian. Justinian. The proper name of the emperor.
AUemanicus, Geticus, $■c. From the nations he claimed to have subdued.
Pius. A sir-name or agnomen, first imagined for Tiberius, the heir of Augustus, but not assumed. It was afterwards used by Antoninus and his successors.
Felix. A name which Sylla first took to himself after the death of the younger Marius: among the emperors, first assumed by Commodus.
Triumphalor. From having triumphed in consequence of victories over the Persians and Vandals. Victor and Triumphator, were titles commonly assumed from the time of Constantine.the Great. Justinian was also often in camp, saluted Callinicus by acclamation: a greek title of the same import as victorious. Triumphator, was never given for the recovery of territory, but only when there was accession by conquest. So Q. Fulvius and L. Opimius were denied a triumph, because they only recovered Capua, and Fragellae. 2 Val. Max. 8. 4.
Augustus. A question arose in the senate, (anno urb. cond. 727) whether the title Romulus, or Augustus, should be conferred on Octavian. From 63 Dion. Cassius, it should seem, he would have preferred the former title, but on the motion of Munatius Plancus, the name Augustus was preferred; and adopted by his successors. Though it was also assumed by several of the imperial family (as by Germamcus) who were not emperors. After the time of Diocletian, it was changed into Semper Augustus.
De usu Armorum et legum. Imperiam Majestatem. Majestas, during the time of the republic, meant somewhat like the modern phrase, the majesty of the people: implying the ultimate source of political power. It was afterwards applied to delegated authority, as that of praetors, judges, &c. Then to parental authority when it included the power of life and death: Majestas Patria. xxxiv. Livy. 2. has majestas matronarum: Pliny ix. 60 majestas pueritiae. When the people by the lex regia conferred all power on the emperor, the word majestas was applied to the authority they delegated; as majestas Augusti, Tiberii, &c. Imperatoria majestas, was introduced by Galienus, and from his time continued. (Taylor.)
$ 1. De beUis et legibus, fyc. Barbarica gentes. A name given by the Romans to all other nations but themselves and the Greeks. The five provinces of Africa here alluded to, have been possessed by the Vandals ninety-five years. Cod. 1. 27. de off. Praef. Praet.' Af.
$ 2. De Compositione Codicis et Pandectarum. In the second year of his reign, A. D. 528, Justinian began his reformation of the law. The Justinian code was finished by Tribonian 529. A new edition (Codex repetilas prcelectionis) was published by Justinian in 534. In 530, the Digest was begun. On the 16th December 533 it was finished. The digest is also called the Pandects from nav and Sexofat to include all. Hence the usual reference to the digest (ff): being a careless writing of the Greek letter On the 21st Nov. 533, the Institutes appeared in their present form.
Quasi per medium profundum eurU.es. The books then published on the Roman law, amounted to upwards of two thousand axdog xoifirlhnv nolhav: many camel loads.
$ 3. De tempore, auctoritatibus, 6fc. magistro et exqucestore sacri palatii nostri. Magister Palatii or Officiorum, was an officer, somewhat, like the lord Chamberlain, or perhaps Master of the Household of England. The officers of the lower ages of the empire were generally called magistri, as magistri libellorum, scriniorum, officiorum. Hence the master of the rolls, masters in chancery, master of the Crown office, &c. of the English system. The great officers of the republic, and of the. early times of the empire, are described in several titles of the first book of the digest: the officers of the tower empire, in the first and last book of the code.
Exquceslore, is an undeclinable ablative: the other cases, exquaestor, exquaestoris, exconsulis, &c. do not appear to be used. The quaestor of the Palace, was somewhat like the lord Chancellor, os imperatoris, armarium legum, tifc. That is under the emperors: for the office of quaestor at first, was of the same kind with our secretary of the treasury. (Taylor 38. 228.) Constantine instituted the office of Quaestor Palatii. The Quaesitores or Inquisitors, were magistrates long known, whose jurisdiction embraced only criminal cases. (Zozimus and Procopius de bello Persico.) Antecessor, a teacher and professor of law: the Jurisperiti, were practitioners.
Post Quadriennium. Five years, seem formerly to have been the term usually (indeed universally) allowed for the study of the law. For the instructions, as to the division of time allotted for studying the various parts of the civil law, viz. the Dupondii, Edictales, Papinianistae, Lytae, and Prolytae, see the constitution (omnem republicce nostrce, $*c.) prefixed to the digests.
$ 6. Ex quibus libris Noster Caius. Caius lived under the emperor Marcus Aurelius, and his institutes were read in the schools. Beside the institutes of Caius, there were the institutes of Paulus, of Ulpian, of Callistratus, Florentinus, and Marcian. There were also prior codes, and digests: as the digests of Alfenus, Julianus, Celsus, Marcellus, Ulpian, the Pandects of Modestinus, &c.
Constitutional authority. I have retained Harris's expression, although there may be some ambiguity attached to it in this country, where the term implies something founded on our written constitutions, or fundamental laws, paramount to legislative acts: a distinction, that does not seem likely to last very long, in states where the power of the legislature like the power of the British parliament, is omnipotent. But in this passage, the word must be understood secundum subjectam materiem, as alluding to a particular species of Roman law. Inst. L. 1 Tit. 2. $ 6. page 9. of the present work.
It. 1. (page 5.) Definitio Juslitue. Justice, is used, not only for the disposition to render every man his due, but sometimes also for the act by which this is done: as when we do a man justice.
$ 1. Definitio Jurisprudentia;. This definition is very convenient for the alliance between church and state: an alliance that I hope will never take place in these states. I know of no things that ought to be kept more distinct, because they are so, than the affairs of this world, and those of the world to come: nor do I know of any two things that despotism has so sedulously laboured to intertwine. I would not so construe the old advice, Deorum Injurice Diis curce, as to protect gross violations of public decorum on religious subjects, or to pass over, irritating and offensive outrages against the religious opinions, or ceremonies of any persuasion. The defendant in The people against Ruggles, 8 Johnson's New York reports, 290, deserved to be punished; but the doctrine laid down in that case by the court, may be carried to a length, that would authorize any species of ecclesiastical tyranny, and prohibit any kind of religious discussion. Nor is it strengthened by citing cases from the jurisprudence of a country where there is a religion by law established; or by quoting the present passage from the civil law. It will have little weight with those who have perused the ecclesiastical history of the times of Justinian, and the three or four centuries immediately preceding, and subsequent. Are we at this day, to regulate the rights of conscience, and modify our system of religious toleration, by the notions of a Roman emperor of the 6th century? or adopt the church-andstate law of Great Britain?
Tit. 2. De jure naturali. Jus, here, is taken for the general system of natural, national and civil law, in contra-distinction, to the positive laws of each species. I consider all law, of whatever kind, as deduced, either from extensive and long-adopted usage, furnishing presumptive evidence of general expedience—or from reasonings founded on the nature and circumstances of human society, and pointing out the conclusions best adapted to general expedience.
Jus, Jussum, Jura, Jussa, mean a rule of action including an obligation, or duty to conform to it: therein differing from advice. Or, it may mean an attribute or quality of actions or persons; what