Montesquieu

Laws that give guar­dian­ship to the mother prio­ri­tize the pre­ser­va­tion of the ward’s per­son ; those that give it to the clo­sest heir prio­ri­tize the pre­ser­va­tion of pro­perty. Among peo­ples whose ethos is cor­rupt, it is bet­ter to award guar­dian­ship to the mother. Where the laws must show confi­dence in the citi­zens’ ethos, guar­dian­ship is given to the inhe­ri­tor of the pro­perty, or to the mother, and some­ti­mes to both.

If we reflect on Roman laws, we will find that their spi­rit is consis­tent with what I am saying. At the time when the law of the Twelve Tables was made, the ethos in Rome was admi­ra­ble. Guardianship was confer­red on the ward’s clo­sest rela­tive, thin­king that the per­son who could bene­fit from the suc­ces­sion ought to have the res­pon­si­bi­lity of guar­dian­ship. The life of the ward was not thought to be in dan­ger, although it was pla­ced in the hands of the per­son whom the child’s death was to bene­fit. But when the ethos in Rome chan­ged, the legis­la­tors also chan­ged their way of thin­king. If the tes­ta­tor, in the sub­sti­tu­tion of the child’s guar­dian, say Caius1 and Justinian,2 fears lest the guar­dian create traps for the ward, he can leave open the vul­gar sub­sti­tu­tion3 and place the child’s guar­dian­ship in a part of the will that can be ope­ned only after a cer­tain time. These are fears and pre­cau­tions unk­nown to the early Romans.

Institutes, book II, tit. 6, §2, Ozel compilation, Leyden, 1658

Institutes, book II, De pupillari substitutione, §3.

The vulgar substitution is : If so-and-so does not choose an heir, I substitute for him, etc. ; the pupillary substitution is : If so-and-so dies before puberty, I substitute for him, etc.