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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, the 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 u cles 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 th 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 cajtita.
ITpwIwf zspot Thv x>.wfov^tiav. Pnmos ad hxreditatem vocamus.] We must here observe in relation to the di tinction between the whole blood and the half blood, that in England the rules of law are different, according to the nature of the estate, which is to be taken; for, 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 has not always been fixed and certain; inasmuch as the statute of the 2od of Cur. II. [for the better settlement of the estates ofintestates] takes no notice of this distinction between the whole blood and the half blood, but directs, that distribution sh:.ll 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 hulf blond 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 hut an half s are. But the law in this respect has been fully settled ever since the decree of the house of I ids in the case, of Watts and others versus Croote, upon an appeal from a decree in chancery, whirl) had been given in favour of the half blood, and was affirmed by the house. Vid. Stumers't Cases in Har. 108. and Strahun's Domat. 68i. 2 Mod 2(J4. Harris.
OvSin Tgorp. Nullo modo ] "Sancimus, ut, "si quis moriens relinquatascendentium ali"quern et fratres, qui possint cum parenti"bus voc ri, et alterius pramortui fratris fi. "lios, turn ascendentibus et fratrihus vocen"fir etiam pijemortui fratris filii, et tantam *' accipiant portionem, quantum ecrum futu"rus erat iiater accipiere, si vixisset." Vid. Nov.cxxvii. cap. 1. Harris.
END OK THE INSTITUTES.
PROEMIUM, OR PREFACE.
DE CONFIRMATIONE INSTITUTIONUM....Page 1.
THIS amounts to an imperial constitution, giving a Sanction, to this compilation by Tribonian and his associates.
In nomine Domini nostri Jesu Christi. This is elsewhere used, as in the second and third confirmations ofthe digests, in the confirmation of the code, and of several of the novels. In nomine Domini nostri jfesu Christi, ad omnia consilia omnesqtte 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, Elcm. Civ. Law. qto. -18. 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 6n victorious generals, but first assumed as an imperial title by Augustus C«sar.
Casar. A name that belonged to the family of Julius Cssar as a Cognomen ; and adopted by the emperors from Augustus to Nero. It was hen given to the next in succession (destinati imperio) who were denominated nobilissimi Cccsares: it was reassumed by the emperors, on the removal of the government from Rome to Byzantium.
Flavins. 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.
Alletnanicus, Gelicus, &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 Commodua.
Triumphator. From having triumphed in consequence of victories over the Persians and Vandals. Victor and Triumphator, were tides commonly assumed from the time of Constantine the Great. Justinian was also often in camp, saluted Call'inicus by acclamation: a greek title of the same import as victorious. Triumphator, was never given for the recoveru 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 Fragellse. 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 ^lso assumed by several of the imperial family (as by Germanicus) who were not emperors. After the time of Diocletian, it was changed into Semper Augustus.
Dc itsu 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 prators, ju'Iges, &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