Book XXVII. Of the Origin and Revolutions of the Roman Laws on Successions.
This affair derives its establishment from the most distant antiquity,
and to penetrate to its foundation, permit me to search among the first
laws of the Romans for what, I believe, nobody yet has been so happy as
to discover.
We know that Romulus
[1]
divided the land of his little kingdom among
his subjects; it seems to me that hence the laws of Rome on successions
were derived.
The law of the division of lands made it necessary that the property
of one family should not pass into another: hence it followed that there
were but two orders of heirs established by law, the children and all
the descendants that lived under the power of the father, whom they
called sui hredes, or his natural
heirs; and, in their default, the nearest relatives on the male side, whom
they called agnati.
[2]
It followed likewise, that the relatives on the female side, whom
they called cognati, ought not to
succeed; they would have conveyed the estate into another family, which was
not allowed.
Thence also it followed that the children ought not to succeed to
the mother, nor the mother to her children; for this might carry the
estate of one family into another. Thus we see them excluded by the law
of the Twelve Tables:
[3]
it called none to the succession but the agnati,
and there was no agnation between the son and the mother.
But it was indifferent whether the suus hæres,
or, in default of such, the nearest by agnation, was male or female; because, as the relatives on the mother's side could not succeed, though a woman who was
an heiress should happen to marry, yet the estate always returned into
the family whence it came. On this account, the law of the Twelve Tables
does not distinguish, whether the person who succeeded was male or
female.
[4]
This was the cause that, though the grandchildren by the son
succeeded to the grandfather, the grandchildren by the daughter did not
succeed; for, to prevent the estate from passing into another family,
the agnati were preferred to them. Hence
the daughter, and not her children, succeeded to the father.
[5]
Thus among the primitive Romans, the women succeeded, when this was
agreeable to the law of the division of lands, and they did not succeed,
when this might suffer by it.
Such were the laws of succession among the primitive Romans; and as
these had a natural dependence on the constitution, and were derived
from the division of lands, it is easy to perceive that they had not a
foreign origin, and were not of the number of those brought into the
republic by the deputies sent into the cities of Greece.
Dionysius Halicarnassus tells us
[6]
that Servius Tullius, finding
the laws of Romulus and Numa on the division of lands abolished,
restored them, and made new ones to give the old a greater weight. We
cannot therefore doubt but that the laws we have been speaking of, made
in consequence of this division, were the work of these three Roman
legislators.
The order of succession having been established in consequence of a
political law, no citizen was allowed to break in upon it by his private
will; that is, in the first ages of Rome he had not the power of making
a testament. Yet it would have been hard to deprive him, in his last
moments, of the friendly commerce of kind and beneficent actions.
They therefore found a method of reconciling, in this respect; the
laws with the desires of the individual. He was permitted to dispose of
his substance in an assembly of the people; and thus every testament
was; in some sort; an act of the legislative power.
The law of the Twelve Tables permitted the person who made his will
to choose which citizen he pleased for his heir. The reason that induced
the Roman laws so strictly to restrain the number of those who might
succeed ab intestato was the law
of the division of lands; and the reason why they extended so widely the
power of the testator was that, as the father might sell his children,
[7]
he might with greater reason
deprive them of his substance. These were therefore different effects,
since they flowed from different principles; and such is, in this
respect, the spirit of the Roman laws.
The ancient laws of Athens did not suffer a citizen to make a will.
Solon permitted it, with an exception to those who had children;
[8]
and
the legislators of Rome, filled with the idea of paternal power, allowed
the making a will even to the prejudice of their children. It must be
confessed that the ancient laws of Athens were more consistent than
those of Rome. The indefinite permission of making a will which had been
granted to the Romans, ruined little by little the political regulation
on the division of lands; it was the principal thing that introduced the
fatal difference between riches and poverty: many shares were united in
the same person; some citizens had too much, and a multitude of others
had nothing. Thus the people being continually deprived of their shares
were incessantly calling out for a new distribution of lands. They
demanded it in an age when the frugality, the parsimony and the poverty
of the Romans were their distinguishing characteristics; as well as at a
time when their luxury had become still more astonishing.
Testaments being properly a law made in the assembly of the people,
those who were in the army were thereby deprived of a testamentary
power. The people therefore gave the soldiers the privilege of making
before their companions
[9]
the dispositions which should have been made
before them.
[10]
The great assembly of the people met but twice a year; besides, both
the people and the affairs brought before them were increased; they
therefore judged it convenient to permit all the citizens to make their
will before some Roman citizens of ripe age, who were to represent the
body of the people;
[11]
they took five citizens,
[12]
in whose presence
the inheritor purchased his family, that is, his inheritance, of the
testator;
[13]
another citizen brought a pair of scales to weigh the
value; for the Romans, as yet, had no money.
[14]
To all appearance these five citizens were to represent the five
classes of the people; and they set no value on the sixth, as being
composed of men who had no property.
We ought not to say, with Justinian, that these scales were merely
imaginary; they became, indeed, imaginary in time, but were not so
originally. Most of the laws, which afterwards regulated wills, were
built on the reality of these scales: we find sufficient proof of this
in the fragments of Ulpian.
[15]
The deaf, the dumb, the prodigal, could
not make a will: the deaf, because he could not hear the words of the
buyer of the inheritance; the dumb, because he could not pronounce the
terms of nomination; the prodigal, because as he was excluded from the
management of all affairs, he could not sell his inheritance. I omit any
further examples.
Wills being made in the assembly of the people were rather the acts
of political than of civil laws, a public rather than a private right;
whence it followed that the father, while his son was under his
authority, could not give him leave to make a will.
Among most nations, wills are not subject to greater formalities
than ordinary contracts; because both the one and the other are only
expressions of the will of him who makes the contract, and both are
equally a private right. But among the Romans, where testaments were
derived from the public law, they were attended with much greater
formalities than other affairs;
[16]
and this is still the case in those
provinces of France which are governed by the Roman law.
Testaments being, as I have said, a law of the people, they ought to
be made with the force of a command, and in such terms as are called
direct and imperative.
[17]
Hence a rule was formed, that they could
neither give nor transmit an inheritance without making use of the
imperative words: whence it followed, that they might very justly in
certain cases make a substitution;
[18]
and ordain, that the inheritance
should pass to another heir; but that they could never make a fiduciary
bequest,
[19]
that is, charge any one in terms of entreaty to restore an
inheritance, or a part of it, to another.
When the father neither instituted his son his heir, nor
disinherited him, the will was annulled; but it was valid, though he did
not disinherit his daughter, nor institute her his heiress. The reason
is plain: when he neither instituted nor disinherited his son, he did an
injury to his grandson, who might have succeeded ab
intestato to his father; but in neither instituting nor disinheriting his daughter, he
did no injury to his daughter's children, who could not succeed
ab intestato to their mother, because they were neither
sui hæredes, nor agnati.
[20]
The laws of the ancient Romans concerning successions, being formed
with the same spirit which dictated the division of lands, did not
sufficiently restrain the riches of women; thus a door was left open to
luxury, which is always inseparable from this sort of opulence. Between
the second and third Punic war, they began to perceive the evil and made
the Voconian law;
[21]
but as they were induced to this by the most
important considerations; as but few monuments have reached us that take
notice of this law, and as it has hitherto been spoken of in a most
confused manner, I shall endeavour to clear it up.
Cicero has preserved a fragment, which forbids the instituting a
woman an heiress, whether she was married or unmarried.
[22]
The Epitome of Livy, where he speaks of this law, says no more:
[23]
it appears from Cicero
[24]
and St. Augustine
[25]
that the daughter,
though an only child, was comprehended in the prohibition.
Cato, the elder, contributed all in his power to get this law
passed.
[26]
Aulus Gellius cites a fragment of a speech,
[27]
which he
made on this occasion. By preventing the succession of women, his intent
was to take away the source of luxury; as by undertaking the defence of
the Oppian law, he intended to put a stop to luxury itself.
In the Institutes of Justinian
[28]
and Theophilus,
[29]
mention is
made of a chapter of the Voconian law which limits the power of
bequeathing. In reading these authors, everybody would imagine that
this chapter was made to prevent the inheritance from being so exhausted
by legacies as to render it unworthy of the heir's acceptance. But this
was not the spirit of the Voconian law. We have just seen that they had
in view the hindering women from inheriting an estate. The article of
this law, which set bounds to the power of bequeathing entered into this
view: for if people had been possessed of the liberty to bequeath as
much as they pleased, the women might have received as legacies what
they could not receive by succession.
The Voconian law was made to hinder the women from growing too
wealthy; for this end it was necessary to deprive them of large
inheritances, and not of such as were incapable of supporting luxury.
The law fixed a certain sum to be given to the women whom it deprived of
the succession. Cicero,
[30]
from whom we have this particular, does not
tell us what was the sum; but by Dio we are informed it was a hundred
thousand sesterces.
[31]
The Voconian law was made to regulate opulence, not to lay a
restraint upon poverty; hence Cicero
[32]
informs us that it related only
to those whose names were registered in the censors' books.
This furnished a pretence for eluding the law: it is well known that
the Romans were extremely fond of set forms; and we have already taken
notice that it was the spirit of the republic to follow the letter of
the law. There were fathers who would not give in their names to be
enrolled by the censors, because they would have it in their power to
leave the succession to a daughter: and the prætors determined that this
was no violation of the Voconian law since it was not contrary to the
letter of it.
One Anius Asellus had appointed his daughter his sole heir and
executrix. He had a right to make this disposition, says Cicero;
[33]
he
was not restrained by the Voconian law, since he was not included in the
census. Verres, during the time of his prætorship, had deprived Anius'
daughter of the succession; and Cicero maintains that Verres had been
bribed, otherwise he would not have annulled a disposition which all the
other prætors had confirmed.
What kind of citizens then must those have been, who were not
registered in the census in which all the freemen of Rome were included?
According to the institution of Servius Tullius, mentioned by Dionysius
of Halicarnassus,
[34]
every citizen not enrolled in the census became a
slave; even Cicero himself observes
[35]
that such a man forfeited his
liberty, and the same thing is affirmed by Zonaras. There must have been
therefore a difference between not being in the census according to the
spirit of the Voconian law, and not being in it according to the spirit
of Servius Tullius' institutions.
They whose names were not registered in the first five classes,
[36]
in which the inhabitants ranked in proportion to their fortunes, were
not comprised in the census according to the spirit of the Voconian law:
they who were not enrolled in one of these six classes, or who were not
ranked by the censors among such as were called
ærarii, were not included
in the census according to the spirit of Servius' institutions. Such
was the force of nature, that to elude the Voconian law fathers
submitted to the disgrace of being confounded in the sixth class with
the proletarii and
capite censi, or perhaps to have their names entered
in the Cærites tabulæ.
[37]
We have elsewhere observed that the Roman laws did not admit of
fiduciary bequests. The hopes of evading the Voconian law were the cause
of their being introduced: they instituted an heir qualified by the law,
and they begged he would resign the succession to a person whom the law
had excluded; this new method of disposition was productive of very
different effects. Some resigned the inheritance; and the conduct of
Sextus Peduccus on an occasion of this nature was very remarkable.
[38]
A
considerable succession was left him, and nobody living knew that he was
desired to resign it to another, when he waited upon the widow of the
testator and made over to her the whole fortune belonging to her late
husband.
Others kept possession of the inheritance; and here the example of
P. Sextilius Rufus is also famous, having been made use of by Cicero in
his disputations against the Epicureans.
[39]
"In my younger days," says
he, "I was desired by Sextilius to accompany him to his friends, in
order to know whether he ought to restore the inheritance of Quintus
Fadius Gallus to his daughter Fadia. There were several young people
present, with others of more maturity and judgment; and not one of them
was of opinion that he should give more to Fadia than the lady was
entitled to by the Voconian law. In consequence of this, Sextilius kept
possession of a fine estate, of which he would not have retained a
single sestertius had he preferred justice to utility. It is possible,
added he, that you would have resigned the inheritance; nay it is
possible that Epicurus himself would have resigned it; but you would not
have acted according to your own principles." Here I shall pause a
little to reflect.
It is a misfortune inherent in humanity that legislators should be
sometimes obliged to enact laws repugnant to the dictates of nature:
such was the Voconian law. The reason is, the legislature considers the
society rather than the citizen, and the citizen rather than the man.
The law sacrificed both the citizen and the man, and directed its views
to the prosperity of the republic. Suppose a person made a fiduciary
bequest in favour of his daughter; the law paid no regard to the
sentiments of nature in the father, nor to the filial piety of the
daughter; all it had an eye to was the person to whom the bequest was
made in trust, and who on such occasion found himself in a terrible
dilemma. If he restored the estate, he was a bad citizen; if he kept it,
he was a bad man. None but good-natured people thought of eluding the
law; and they could pitch upon none but honest men to help them to elude
it; for a trust of this kind requires a triumph over avarice and
inordinate pleasure, which none but honest men are likely to obtain.
Perhaps in this light to look upon them as bad citizens would have
savoured too much of severity. It is not impossible but that the
legislator carried his point in a great measure, since his law was of
such a nature as obliged none but honest men to elude it.
At the time when the Voconian law was passed, the Romans still
preserved some remains of their ancient purity of manners. Their
conscience was sometimes engaged in favour of the law; and they were
made to swear they would observe it:
[40]
so that honesty in some measure
was set in opposition against itself. But latterly their morals were
corrupted to such a degree that the fiduciary bequests must have had
less efficacy to elude the Voconian law, than that very legislator had
to enforce its observance.
The civil wars were the destruction of an infinite number of
citizens. Under Augustus, Rome was almost deserted; it was necessary to
re-people it. They made the Papian laws, which omitted nothing that
could encourage the citizens to marry and procreate children.
[41]
One of
the principal means was to increase, in favour of those who gave in to
the views of the law, the hopes of being heirs, and to diminish the
expectations of those who refused; and as the Voconian law had rendered
women incapable of succeeding, the Papian law, in certain cases,
dispensed with this prohibition.
[42]
Women,
[43]
especially those who had children, were rendered capable
of receiving in virtue of the will of their husbands; they even might,
when they had children, receive in virtue of the will of strangers. All
this was in direct opposition to the regulations of the Voconian law:
and yet it is remarkable that the spirit of this law was not entirely
abandoned. For example, the Papian law, which permitted a man who had
one child
[44]
to receive an entire inheritance by the will of a
stranger, granted the same favour to the wife only when she had three
children.
[45]
It must be remarked that the Papian law did not render the women who
had three children capable of succeeding except in virtue of the will of
strangers; and that with respect to the succession of relatives, it left
the ancient laws, and particularly the Voconian, in all their force.
[46]
But this did not long subsist.
Rome, corrupted by the riches of every nation, had changed her
manners; the putting a stop to the luxury of women was no longer minded.
Aulus Gellius, who lived under Adrian,
[47]
tells us, that in his time
the Voconian law was almost abolished; it was buried under the opulence
of the city. Thus we find in the sentences of Paulus,
[48]
who lived
under Niger, and in the fragments of Ulpian,
[49]
who was in the time of
Alexander Severus, that the sisters on the father's side might succeed,
and that none but the relatives of a more distant degree were in the
case of those prohibited by the Voconian law.
The ancient laws of Rome began to be thought severe. The prætors were
no longer moved except by reasons of equity, moderation, and decorum.
We have seen, that by the ancient laws of Rome mothers had no share
in the inheritance of their children. The Voconian law afforded a new
reason for their exclusion. But the Emperor Claudius gave the mother the
succession of her children as a consolation for her loss. The Tertullian
senatus consultum, made under Adrian,
[50]
gave it them when they had
three children if free women, or four if they were freedwomen. It is
evident, that this decree of the senate was only an extension of the
Papian law, which in the same case had granted to women the inheritance
left them by strangers. At length Justinian favoured them with the
succession independently of the number of their children.
[51]
The same causes which had debilitated the law against the succession
of women subverted that, by degrees, which had limited the succession of
the relatives on the woman's side.
These laws were extremely conformable to the spirit of a good
republic, where they ought to have such an influence as to prevent this
sex from rendering either the possession, or the expectation of wealth,
an instrument of luxury. On the contrary, the luxury of a monarchy
rendering marriage expensive and costly, it ought to be there
encouraged, both by the riches which women may bestow, and by the hope
of the inheritances it is in their power to procure. Thus when monarchy
was established at Rome, the whole system of successions was changed.
The prætors called the relatives of the woman's side in default of those
of the male side; though by the ancient laws, the relatives on the
woman's side were never called. The Orphitian senatus consultum called
children to the succession of their mother; and the Emperors
Valentinian, Theodosius, and Arcadius called the grandchildren by the
daughter to the succession of the grandfather.
[52]
In short, the Emperor
Justinian
[53]
left not the least vestige of the ancient right of
successions: he established three orders of heirs, the descendants, the
ascendants, and the collaterals, without any distinction between the
males and females; between the relatives on the woman's side, and those
on the male side; and abrogated all laws of this kind, which were still
in force: he believed that he followed nature, even in deviating from
what he called the embarrassments of the ancient jurisprudence.
Footnotes
[1]
Dionysius Halicarnassus, lib. ii, c. 3. Plutarch's comparison between
Numa and Lycurgus.
[2]
Ast si intestato moritur cui suus hæres nec exhabit, agnatus
proximus familiam habeto. Fragment of the law of the Twelve Tables in
Ulpian, the last title.
[3]
See Ulpian, Fragment., section 8, tit. 26. Institutes, tit. 3, In
præmio ad S.C. Tertullianum.
[4]
Paul, Sentences, tit. 8, section 3.
[5]
"Institutes," lib. iii, tit. 1, section 15.
[7]
Dionysius Halicarnassus proves, by a law of Numa, that the law
which permitted a father to sell his son three times was made by
Romulus, and not by the Decemvirs. — Book ii.
[8]
See Plutarch, "Solon."
[9]
This testament, called in procinctu, was different from that
which they styled military, which was established only by the
constitutions of the emperors. Leg. 1, ff. de militari testamento. This
was one of the artifices by which they cajoled the soldiers.
[10]
This testament was not in writing, and it was without formality,
sine libr et tabulis, as Cicero says, "De Orat.," lib. i.
[11]
"Institutes," lib. ii, tit. 10, section 1. Aulus Gellius, xv. 27. They
called this form of testament per æs et libram.
[12]
Ulpian, tit. 10, section 2.
[13]
Theophilus, "Institutes," lib. ii, tit. 10.
[14]
Livy, lib. iv, Nondum argentum signatum erat. He speaks of the time
of the siege of Veii.
[15]
Tit. 20, section 13.
[16]
"Institutes," lib. ii, tit. 10, section 1.
[17]
Let Titus be my heir.
[18]
Vulgar, pupillary, and exemplary.
[19]
Augustus, for particular reasons, first began to authorise the
fiduciary bequest, which, in the Roman law, was called fidei commissum.
"Institutes," lib. ii, tit. 23, section 1.
[20]
Ad liberos matris intestatæ hæredit as, leg. 12 Tab., non
pertinebat, quia, fœminæ suos hæredes non habent. Ulpian,
"Fragment.," tit. 26, section 7.
[21]
It was proposed by Quintus Voconius, tribune of the people, in
the year 585 of Rome, 169 B.C. See Cicero, "Second Oration against
Verres." In the "Epitome" of Livy, lib. xli we should read Voconius, instead of
Voluminus.
[22]
Sanxit . . . . . ne quis hæredem virginern neve mulierem faceret.
-- Cicero, "Second Oration against Verres," 107.
[23]
Legem tulit, ne quis hæredem mulierem institueret — Book iv.
[24]
"Second Oration against Verres."
[25]
"City of God," lib. iii. 21.
[26]
Epitome of Livy, lib. xl.
[28]
"Institutes," lib. iii, tit. 22
[30]
Nemo censuit plus Fadiæ dandum, quam posset ad cam lege Voconia
pervenire. "De Finib. boni et mali," lib. vi. 55.
[31]
"Cum lege Voconia mulieribus prohiberetur, ne qua majorem centum
millibus nummum hæreditatem posset adire." Book lxvi.
[32]
Qui census esset. "Second Oration against Verres."
[33]
Census non erat. Ibid.
[35]
In "Oratione pro Cæcinna."
[36]
These five classes were so considerable, that authors sometimes
mention no more than five.
[37]
In Cæritum tabulas referri; ærarius fieri.
[38]
Cicero, De Finib. boni et mali, lib. ii. 58.
[40]
Sextilius said he had sworn to observe it. — Cicero, De Finib.
boni et mali, lib. ii, 55.
[41]
See what has been said in Book xxiii, chap. 20.
[42]
The same difference occurs in several regulations of the Papian
law. See Ulpian, "Fragment," tit. ult., sections 4, 5, 6.
[43]
See Ulpian, "Fragment.," tit. 15, section 16.
[44]
Quod tibi filiolus, vel filia nascitur ex me, Jura Parentis
habes; propter me scriberis hæres. -- Juvenal, Sat. ix. 5, 83, 87.
[45]
See Leg. 9, Cod. Theod. De bonis proscriptorum, and Dio, lv. See
Ulpian, "Fragment.," tit. ult., section 6, and tit. 29, section 3.
[46]
Ulpian, "Fragment.," tit. 16, section 1. Sozomenus, lib. i, chapl. 29.
[48]
Book iv, tit. 8, section 3.
[50]
That is, the Emperor Pius who changed his name to that of Adrian
by adoption.
[51]
Leg. 2, Cod. de jure liberorum. "Institutes," tit. 3, section 4, de
senatus consult. Tertul.
[52]
Leg. 9, Cod. de suis et legitimis hæredibus.
[53]
Leg. 14, ibid., and Nov. 118, 127.
