Графични страници
PDF файл
ePub

THE

APPENDIX

TO THE

FIFTY-SIXTH VOLUME

OF THE

MONTHLY REVIEW

ENLARGED.

FOREIGN LITERATURE.

ART. I. Code Napoleon, &c.; i. e. Discussions respecting the Civil Code, in the Council of State.

[Article concluded from the Appendix to our 55th Vol.]

N opening the second volume of this interesting work, our attention was immediately attracted by a discussion on the Law of Inheritance and Successions. As this is a subject which forms one of the most important branches of civil legislation, and, in a particular manner, "comes home to men's business and bosoms," we shall enter into some discussion of this article.

Mr. Gibbon (vol. iv. chap. 4.) introduces his exposition of the law of Justinian on this point, by observing "that the personal title of a first proprietor must be determined by his death: but the possession, without any appearance of change, is peaceably continued in his children, the associates of his toil, and the partners of his wealth. This natural inheritance is protected by the legislatures of every climate and age; and the father is encouraged to persevere in slow and distant improvements by the tender hope, that a long posterity will enjoy the fruits of his labour. The principle of hereditary succession is universal; but the order has been variously established, by convenience or caprice, by the spirit of national APP. REV. VOL. LVI.

Gg

institu

institutions, or by some partial example, which was originally decided by fraud or violence."

Among the Jews, the sons succeeded to the father's landed property, in exclusion of the daughters; so that the only fund for the provision of the daughters was the father's personal estate. The father might dispose of that part of his possessions to whom he pleased; and if he made no disposition of it, his children were intitled to it, in equal shares. If he left no son, his landed property descended to his daughters; and, if he had more than one daughter, it was divided equally among them. If he left neither son nor daughter, his father inherited; if he left no father, his brothers succeeded; and if he left no brother, the succession devolved to his sisters: but, on all occasions, the descendants represented their ancestors, and were called to the succession before their collaterals. The eldest son was invested with peculiar privileges; he had a right to a double portion of the estate, to the priesthood, and to the principal authority, or, as the Rabbins express it, to the kingdom among his brethren. The husband succeeded to the wife, but the wife did not succeed to the husband. If the husband had children by different wives, each of whom brought him landed property, the children of each mother were primarily intitled to her succession; and, on failure of those, the children of the other mother were called to it. On a general failure of heirs in the descending, ascending, and collateral lines, the land devolved to the state.

At Athens, females were entirely excluded from the succession. By the original jurisprudence of Rome, males and females participated equally in the inheritance; the Voconian law excluded females: but its provisions were gradually superseded by the riches and manners of the republic, first in favour of daughters, and afterward in favour of such female collaterals as were nearly related to the intestate. The law of Justinian admitted males and females equally to the succession, and an unqualified right of representation attended every line of the inheritance.

The Feudal Polity introduced a succession wholly unknown to any former system of jurisprudence. Under the successive appellations of Munera, Beneficia, and Feuda, fiefs were held, first, at the will of the donor; then, during the life of the feudatory; then, by the feudatory and his lineal heirs ; and finally his collateral heirs were admitted into the inheritance. In most countries on the continent, the ascending is called to the inheritance before the collateral line: but, in England, the parent was never allowed to succeed to the child. In countries Overned by the feudal law, the preference of males to females

is very common; and generally, females are received into the tenure in default of males: but the distinctive mark of feudal succession is the splendid prerogative assigned by it to primcgeniture. The policy of most feudal countries allows a portion of the inheritance to the younger sons: but the great bulk of it is the patrimony of the eldest son; he represents the fief, is intitled to all its honours and profits, and is liable to all its burthens.

Our English law of succession is still more favourable to the eldest son. Originally, the sons inherited equally.

A law of Edward the Confessor directs that, on the decease of an intestate, all his sons shall inherit his property. It is supposed that William the Conqueror first established the right of primogeniture: but, so low as in the reign of Henry 1st, a law is found, which shews that, if the intestate had several fiefs, they were s verally inherited by his sons, the eldest retaining the principal or first fief of his father. This is the last vestige of any favour shewn by our law to the younger males. As the law now stands, and has immemorially stood, their provision depends on the will of the parent. The feudal institutions of France were much more favourable to them. During the Carlovingian race, fiefs were devisible among all the sons under the succeeding dynasty, traces of the prerogative of primogeniture are discoverable; in an early period. of the Capetian dynasty, they became general; the final settlement of them was made by a constitution of Philip Augustus in 1210, which assigned the representation of the fief and the bulk of its possessions to the eldest son: but under the rights of frerâge and apanâge, some provision was made by it for the younger children.

By the Code Napoleon, children and their descendants succeed without any distinction of age or sex, or of whole blood or half blood, to their father and mother, grandfather and grandmother, and remote ancestors; and if the inheritance has descended to a child, it is immaterial, (except in respect to the consequences of half blood, which we shall afterward notice,) whether it descend to him from his father or his mother. The descendants inherit by the head, when they are in the same degree, and are called to the succession in their own right; but they succeed by the root, when they take by way of representation. If there be a total failure of lineal heirs, and the intestate survive both his parents, then his brothers and sisters, or the persons representing them in the descending line, are called to the succession, in exclusion of collaterals, and without limitation as to age or sex. If the intestate die without issue in the lifetime of both his parents, his brothers and sisGgz

ters

ters and their representatives in the descending line are intitled to one half of the succession, and the parents may claim the other half; if the intestate survive one only of his parents, his brothers and sisters have a right to three-fourths of the succes sion; and the surviving parent has the other fourth, with the income, during his or her life, of one-third of the remaining three-fourths. If the intestate leave no heir in the descending line, and neither brother nor sister nor representative of brother or sister, the succession is divided in moieties between the paternal and the maternal line: but, if the heir in the ascending line has made any gift of property to the intestate, the property so given, or its value if it has been sold, returns to the donor.

The succession, to which the brothers and sisters become intitled, is devisible among them, if they are all of the whole blood, or all of the half blood, in equal shares; if some of them are of the whole blood, and some of the half blood, the succession is divided into two lines, one for the paternal, the other for the maternal brothers or sisters of the intestate; the brother and sister of the whole blood share in each line, the paternal brothers and sisters in the paternal line only, and the maternal brothers and sisters in the maternal line only.

The antient law of Rome allowed the parent an unlimited power of disposing of his property by will, so that he was at full liberty to disinherit his child; and this was part of the patria potestas which that law so liberally conferred: but, it being found that parents often disinherited their children without cause, the law gave the children, who had been unjustly disinherited, an action of complaint against such wills as inofficious, or in other words as wanting in moral duty, under colour that the parent was not of sound mind when he made his will. This supposed insanity was a mere fiction of law, to avoid the appearance of directly impuguing the authority of the twelve tables, which explicitly gave all persons an absolute and uncontrouled power of devising their property as they might chuse. Parents were intitled to the same action for the inofficious wills of their children; and brothers and sisters, for the inofficious wills of their brothers and sisters. The parent, however, was considered as having satisfied his duty, if he bequeathed to his children a fourth part of his property; and even if he bequeathed them any thing, the complaint of inofficiousness did not lie, but the prætor gave the children an action to have their portion completed. The portion, being secured to them by law, was called the Legitime. By the Novells, Justinian increased it to one-third, if there were not more than four children; and to one half, if there were more

than

than four. In some parts of England, particularly in London, till the 4th and 5th of William and Mary, custom reserved a reasonable part of the deceased's personal estate for his widow and children, for which the law gave them the writ de rationabili parte bonorum. The present law of Scotland secures to children their legitime or bairn's part, which is one-third, if the deceased leave a wife, and one-half, if he leave none. In this respect, the customary law of France was different in different provinces: but, generally speaking, the provincial customs allowed a legitime, and proportioned it to the number of the children. The Chief Consul expresses his approbation of the Roman law. The legislature, he says, should always have in view the preservation of moderate fortunes, which he calls the strength of the state. Too much subdivision reduces them to nothing, particularly if it occasion the sale of the mansion, which is the central point, and the alienation of which usually produces the extinction of the family. Agreeably to these suggestions, the Code Napoleon provides that a parent shall not, by act inter vivos, nor by will, dispose of more than one half of his property, if he leave only one legitimate child; nor of more than one-third, if he leave two or more legitimate chil dren, the descendants of children representing them. If the deceased have no issue, but have heirs in the ascending line, both on the side of his father and the side of his mother, he may dispose of one half of his property; if he leave heirs in the ascending line, on one side only, he may dispose of threefourths if he leave no heir in the ascending line, he may dispose of the whole of his property.

The Code Napoleon expresses that illegitimate children have no right of heirship, but makes some provision for them. If the parent leave lawful issue, the illegitimate child is intitled. to one-third of that portion of the inheritance which the law would have conferred on him, if he had been legitimate; if the parent have no lawful issue, the illegitimate child is intitled to one half of that portion: but the illegitimate child is excluded from this allotment, if the parent has provided for him, or taught him a trade. If the illegitimate child die without issue, the parent, who has acknowleged him, inherits nis property; if no such parent be living, the lawful children of such parent succeed to it,

Our readers are probably apprized of the multiplied modes by which, through the medium of substitutions and fidei commissa in the civil law, and by the operation of entails and redemptions in the feudal law, property has been made inalienable. The code before us prohibits all substitutions, and every other restraint on alienation, with three exceptions; the em

Gg3

peror

« ПредишнаНапред »