person were allowed to share alike in the inheritance. Nor was any distinction made on the ground of age. Indeed, from first to last we find no trace of primogeniture in the legal ideas and habits of the Roman people.

As to primogeniture in the common law of England, it seems to have sprung up with the development of the feudal system: it was favored certainly, if not absolutely required, by the conditions of feudalism. Not less favored by feudal interests was the preference of male heirs and stocks before female, which is another prominent feature of English inheritance; we have reason, however, to believe that this preference for male succession, unlike primogeniture, was among the primitive usages of the Germanic tribes, before their conquest of the Roman Empire. If on these points we recognize the superiority of the Justinian system, we must admit that in another point, in the consistency with which the successive classes of intestate heirs are constituted, the advantage lies with the English law. And in speaking thus of the English law, it is real estate that I refer to, the inheritance of land with its appurtenances; as to the personal property of intestates, the English rules for its distribution are comparatively recent, and are evidently founded on civil-law principles. But for real estate, the English law, which in this respect appears to have only kept up the primitive Germanic usage, calls first the de

scendants of the deceased himself; next the other descendants of his father, those who are not also his descendants; next the other descendants of his father's father (i. e., his paternal grandfather), those who are not also his father's descendants; and so on, each new class bringing in descendants of an ancestor one degree more remote than the preceding. And in every class the principle of representation, by which children of a deceased parent come in as his representatives for the right which he would have had if living-this is carried out to the fullest extent. Now, the Justinian system agrees with this for the first class, the descendants of the deceased himself. It agrees also in great part for the second class, where it calls in the other descendants of the father, the brothers and sisters and the children of brothers and sisters. But here it stops short in the path which consistency should have caused it to pursue it does not call in at the same time the grandchildren and remoter descendants of brothers and sisters. The same inconsistency appears again in the third class, in relation to the descendants of half brothers and sisters. Beyond this point, the Justinian system takes up a new principle, that of nearness in degree, which excludes representation, and produces a series of classes which stand in no natural or symmetrical relation to the preceding. It may be said, however, with justice, that the defect here is little more than a want of logical consistency; there does not

seem to have been any thing unjust or oppressive in its practical working.

The subject of the next lecture will be testamentary inheritance.

LECTURE XII.

LAW OF INHERITANCE (CONTINUED).

TESTAMENTARY INHERITANCE established later than intestate, yet in primitive times. Romans eminently a will-making people. First testaments made calatis comitiis, at semi-annual meetings of the curiae, hence confined to patricians; and in procinctu, before army marshalled for battle, where plebeians also could make them. Both these early superseded by testamentum per aes et libram, in form (Lecture IV.) a sale of the estate by mancipation to a familiae emptor, who at first was the appointed heir: this testament might be oral, and in later times became exclusively So. But the prætors gave force to a written testament, made without form of mancipation, only sealed by seven competent witnesses. Under Justinian this was the ordinary form, but the witnesses must also subscribe; so, too, the testator. The transaction must be uninterrupted, before witnesses assembled for the purpose and free from the potestas of testator or familiae emptor (and, by Justinian law, of heres).

No man wholly deaf or dumb could make a will, until Justinian's time. No alien could make one or receive by one. A slave might receive by one, but only for his master: by his master's testament he might receive inheritance with freedom (Lecture XI). Unable to receive by will were also corporations (exceptions in favor of municipal bodies, some temples, Christian churches, and monasteries, etc.), and other uncertain persons; but these last Justinian admitted, if at opening of the will they had become certain; thus especially postumi alieni (other people's children born after date of will). Excluded from Justinian's system were the lex Voconia (169 B. C.), forbidding inheritance of women to large estates; as well as the lex Julia and lex Papia Poppaea of Augustus's time, the former forbidding unmarried persons to receive any thing by will, the latter forbidding married but childless persons to receive more than half

the inheritance, unless in each case the testator was a near relative (within sixth degree). To escape the last-named law a woman must have the jus trium liberorum (Lecture XI).

A testator might appoint a succession of persons, each to be heir if the preceding ones failed to become so (substitutio vulgaris); and he might appoint a person to be heir of a surviving child, if the latter should die before puberty (substitutio pupillaris).

In early times a testator could disinherit his child by simple omission from his will. By later law, any descendant (including postumi sui) who by intestate inheritance would receive a share, must have express mention in the will. And as early as Cicero's time, such a descendant who without good ground received nothing in the will or less than his due part (fixed, at length, as the quarter of his intestate share) could overthrow the will as inofficious; but not if he had in any way recognized its validity, nor if any other remedy was open to him. Similar right of a parent over the will of his child.

Legacies.-Broad distinction between heir and legatee; yet legatee must be a person capable of heirship. Legacies always beneficial. Must be preceded by appointment of heir. Could be created in four ways, with subtle differences of effect. Always failed if the appointed heir refused to serve, as he naturally would when the legacies exhausted the estate. This danger removed (after a Furian and a Voconian law) by a Falcidian (40 B. C.), which limited legacies (by proportional reductions, if necessary) to three-fourths of net value of the estate, leaving at least one-fourth to the heir.

Fideicommissa, freer form of legacies, which sprung up in later republic, originally mere recommendations to the heir (committed to his faith), but from time of Augustus enforceable by law. Free from almost all restrictions: could be made in any part of will, or separate from will, or when there was no will; in favor of any person, and in any amount consistent with claims of creditors. But afterward confined to nearly the same persons as legacies were, and limited by the Falcidian fourth of the heir. At the same time, legacies were gradually made freer, and in the Justinian system differed little from fideicommissa.

Ir can hardly be doubted that intestate inheritance is older than inheritance by testament. In patriarchal times, it must have been the recognized authoritative usage, that when the patriarch (the paterfamilias)