Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

I 86 UNIVERSAL SUCCESSION

12. SUCCESSION TO FREEDMEN

It should be noted that Roman law presents one case of succession on intestacy which has no connexion with relationship or marriage. It is the succession to freedmen. We need not state the rules, which were varied greatly from time to time by the Praetor and by legislation. It will suffice to say that broadly speaking the patron, and his children if he was dead, were entitled to the property of the freedman in default of issue to him: he could have no relatives but issue, since cognatio servilis was not recognised. The matter is complicated by the fact that these rules applied only to freedmen who were cives. The goods of freedmen who were Latins reverted to the patron or his children in any case, but it was a reversion of what was regarded as a mere peculium^ and not a succession, so that, e.g., it did not carry with it liability for debts beyond the available fund. The fullness with which this matter is treated in so small and elementary a book as the Institutes of Gaius is an indication of its importance: it is well known that in the early Empire freedmen often attained to high position and great wealth: they were probably the most intelligent class of the community. It is a far cry from the Roman freedman to the English bastard, but they possess one curious feature in common, namely, that in the eye of the law they have no ancestors or collaterals and their only relatives must be posterity.1 The Legitimacy Act, 1926, in addition to introducing legitimation by subsequent marriage, as described above,2 has given a bastard and his

13. BONORUM POSSESS 10

The most remarkable characteristic of the Roman law of succession, by will or on intestacy, as compared with ours, is the existence, side by side, from the later Republic to the time of Justinian, of two systems of succession, the civil, which alone is concerned with the hereditas strictly so called, and the praetorian, under which the claimant gets, not hereditas (* praetor heredem facere non potest'), but bonorum possession with a scheme of remedies quite distinct from those of civil law. Each has a definite order of claims, the praetorian to some extent coinciding with, to some extent differing from, that of the civil law. The praetorian scheme is more rational: it may be, and commonly is, thought of as * equity* intervening in a region which the Chancellor has not entered. The Praetor's original purpose does not indeed seem to have been reform but, here as in other branches of the law, to provide a summary means of obtaining actual possession for those who appeared, prima facie^ to be entitled. The first step in reform was to give bonorum possessio to relatives who had no civil law claim where no one was civilly entitled, so that there was no one to attack the possession given by the Praetor. The next step was to allow persons not entitled at civil law to claim with those so entitled, e.g. emancipated children with sui heredeS) and here the bonorum possessio seems to have been effective (cum re). The final stage is to allow persons with no civil title to claim to the exclusion of civil heredesy e.g. those claiming under a purely praetorian will. But, in such cases, the bonorum possessio was, at first, purely provisional, capable of being upset by the civil claimant, if there was one (bonorum possessio sine re\ and it was made effective (cum re) not usually by the authority of the Praetor himself,

so far as the texts show, but by enactments of the Emperor or the Senate.1 In Justinian's time the two systems are more or less fused—it is usually merely a matter of choice of remedies, though, as with our so-called fusion of law and equity, there were still cases in which the distinction was material. Into this it is not necessary to go. The feature of bonorum possessio which interests the English lawyer is that, while it occurred in a sphere in which the Court of Chancery did not intervene, it presents, in its system of praetorian remedies parallel to the civil law remedies, and in its effect as an agent for the reform of the civil law of succession, certain striking resemblances to the activity and influence of the Chancellor.

14. CURA PRODIGI

A Roman institution which is entirely unknown to the common law and indeed to the law of England generally, and which may be conveniently considered here by reason of its effect on the power of testation, is the cura prodigi. In Rome, as early as the XII Tables, a man who wasted hereditary property received on an intestacy could by certain machinery be interdicted from dealing with his property, this being placed in the hands of an administrator with very large powers, curatorprodigi. This was extended, still in early law, to prodigi wasting what they had received by will, and, ultimately, as it seems, to any case of prodigality. Apparently the prodigus could apply at any time to have the interdiction removed, but, so long as it lasted, he could make no alienation whatever of his capital. We are not well informed, but it is clear that he could not make a will.2 The father could not set up such a curatio by his will, but, if he purported to do so, there was a question whether the magistrate was bound to confirm it, settled in the affirmative under Justinian.3 Thus it seems that the institu-

1 See, e.g., G. 2. 119 sqq.\ 2. 143; 2. 151a.

2 Liber sing, regularum, attributed to Ulp. 20. 13; P. Sent. 3. 4a. 12. 3 D. 27. 10. 16. 1.

tion was found useful, for it was continuously strengthened and widened. We are told in Paul's Sententiae^ and the passage is preserved in the Digest,1 that it applied also to women; this cannot be primitive, at earliest it dates from the time when there were tutores with only formal authority,2 for till then women were under a lifelong real tutela.

With us, on the other hand, if a person once gets into control of his property, there is no machinery by which he can be prevented from wasting it and ruining those who are dependent on him, unless it is possible to persuade the Court that he is, through mental infirmity arising from disease or age, incapable of managing his affairs, thus bringing him within the scope of the lunacy laws; but, as has been pointed out,3 there is 'the fundamental distinction that the status created by* the Lunacy Acts and Mental Deficiency Acts * rests on unsoundness of mind, not on extravagance, and accordingly has no penal character'. It is possible that the indifference of English law towards habits of prodigality is to be found in the same conceptions of liberty which until recently enabled a man to disinherit his family completely and still refuse to admit any bairns' part* or widow's legitim. So repellent to the English law is the institution of prodigi interdictio as found in modern systems which have followed Roman law, such as that of France, that our Courts decline to give effect to the decree of a French Court pronouncing a person to be prodigue and appointing a conseiljudiciaire to control his property, and will pay out a fund in Court to the prodigue himself.4 There is no doubt that our system of settlements, creating limited interests, so that the capital cannot be touched, and the not uncommon habit of postponing unlimited control till the age of twenty-five or thirty, frequently averts or postpones the full consequences

of extravagance, and the married woman's restraint on anticipation may often have had the same effect.1 But the principle remains that when once a settlor or testator has conferred an absolute interest on a person sui iuris nothing can be done to protect that person against himself. It may be better so in the interests of the community at large; it may be well that nothing should prevent a man from falling to his proper level, but a wife or a widow and children will not quite accept this view. The ingenuity of conveyancers has, however, devised two methods to which resort may be had when the possibility of the development of prodigal habits is foreseen. The first is the 'spendthrift trust',2 whereby a fund is given to trustees with an absolute discretion as to paying any part of the capital or income to the beneficiary or not; the second is by way of 'protective trusts', under which the beneficiary takes a life interest determinable upon alienation, bankruptcy or execution,3 whereupon the life interest is administered by the trustees for the beneficiary and his or her spouse and children; and there are combinations of both these methods.

In the United States parallels to both the Roman and the English law can be found. The spendthrift trust is known in almost all the States, and the law is much more favourable to the beneficiary than in England. Thus, whether by statute or otherwise, the creator of a trust can almost always effectively provide that although the beneficiary is entitled to require the trustee to pay the income to him, he cannot assign his interest under the trust, and his creditors cannot reach it. There is no need to give any discretionary power to the trustee, but occasionally, as in New York, the restraint is effective only as to so much of the income as is necessary for the education and support

1The restraint on anticipation was abolished by the Married Women (Restraint upon Anticipation) Act, 1949.

2Key and Elphinstone, Precedents in Conveyanting, 15 th ed. ii. pp. 918,

959-

3 Ibid. p. 628; Trustee Act, 1925, sect. 33.

of the beneficiary. In all these cases it is immaterial whether the beneficiary is, or is not, wasteful in his habits.

On the other hand, some States, including the important States of Massachusetts and New York, have made specific legislative provisions for the appointment of guardians for spendthrifts, and a large majority of the States have provided for guardians or conservators of persons who, for one reason or another, such as intemperance or old age or infirmity, are, though not actually insane, incapable of looking after their property.1

15. DISLIKE OF INTESTACY

As we have said, in Rome intestacy seems to have been so far as possible avoided, not only by the habits of man, but also by legal rule. Wills are far more prominent. No doubt the desire to exercise power after death is always present, especially where, as until recently with us, there is a free power of testation. In Rome this did not exist in the Empire, but the feeling was very strong. Maine speaks of this as a 'horror of intestacy'. But it has been pointed out that there is no justification for this suggestion,2 which rests mainly on the common form of curse: intestabilts esto$ but to be intestabilis meant a great deal more than to have no will. It meant exclusion from acting as a witness, and, as some said, from having a witness, which would amount to something like outlawry. The reason for the dislike of intestacy is probably the fact that the civil law of succession was intensely artificial, not corresponding in the least to the impulses of natural affection, so that everything reasonably possible to avoid the operation of that law ought to be done. For instance, it insisted on agnation. That a son who has been emancipated

1 We are indebted for this information to Professor A. W. Scott of Harvard University.

2 Maine, Ancient Law, p. 218; Radin, Roman Law, pp. 414, 456.

3 See Lewis and Short, Latin Dictionary, s.v. intestabilis.

192 UNIVERSAL SUCCESSION

should have no claim does not perhaps much matter. If the emancipation was meant as a punishment, the result was reasonable. If it was a reward, provision for him would be made at the time. However, the slow and reluctant way in which steps were taken to remove the hardships affecting mothers and their children, widows, and relatives whose agnatic tie had been broken,1 accounts sufficiently for the fact that throughout the history there was a very strong sentiment in favour of testation.

In England, on the other hand, it appears2 that both before the Norman Conquest and for some time after it, there was a genuine horror of intestacy, or, to be more accurate, of deliberate, wilful, intestacy, for the intestate who died suddenly was the object of sympathy rather than reprobation. Intestacy was frequently penalised by confiscation of the deceased's goods. Whether or not the early horror of intestacy has left any trace upon our rules for the construction of wills it would be difficult to say; there is a leaning, if not a presumption, against intestacy,^ which may, however, merely be due to the influence of the ut magis valeat quam pereat rule.

As we have seen, the feudal system of tenure had crushed out the will of real property, but it is worthy of note that, when once the system of uses had been recognised by the Court of Chancery, it was seized upon as a means of re-establishing the power of devising lands by will. Indeed, long after any superstitious or religious dislike of intestacy had disappeared, the awkward and piecemeal character of our law of intestate succession made it the practice of most persons possessing an appreciable amount of property to make a wilL It is perhaps too early to ascertain whether the more rational rules introduced by the Administration of Estates Act, 1925,4 have modified the practice.

rights on the other, and although there is evidence to show that bilateral contracts were concluded by means of reciprocal stipulationes, the stipulation standing alone, would have been very inadequate for the purposes of commerce. Apart from stipulation all the contracts recognised by law are contracts for some one specific purpose, loan, pledge, sale, hire, and so forth. Hence we get, not a theory of contract, but a theory of contracts, a number of contracts, each with its own theory.1 Thus the attitude of the Roman law can be fairly stated by the proposition that an agreement is not a contract unless the law, for some reason, erects it into one.

The contrast is not unlike that between the two conflicting views held by English lawyers2 upon the theory of the law of torts or tort: the first that all damage is actionable in the absence of some cause, justification or excuse, recognised by law, and the second that no action will lie in respect of an act or omission unless the circumstances bring it under the rubric of some specific tort recognised by law.

The terminology of the two laws is curiously parallel on two points. A contract is, as ordinarily understood, any enforceable agreement of parties, but in both systems the name is applied where the so-called contract, though in form an agreement, is actually imposed on the party by the force of public authority. As with us 'recognizances', in form agreements, can be required by the Court with detention as an alternative, and are called 'contracts of record', so in Roman law promises could be required by the

Court, stipulationes praetoriae^ with missio in possessionem,

1 But these contracts have so wide a range that they cover almost all the normal business transactions of the Roman world. Moreover, the law became sufficiently generalised to product, apart from some peculiarities in the law of sale, only two theories of contract, one for contracts enforced in a strieturn iudicium and the other for those with a bonaefideiiudicium

(see p. 238, post). % Pp. 338 sqq.,post.