Montesquieu

This mat­ter stems from esta­blish­ments of very remote anti­quity, and to get to the bot­tom of it, allow me to search in the ear­liest laws of the Romans for what I do not know that anyone has seen until now.

We know that Romulus divi­ded the lands of his lit­tle state among his citi­zens1 ; that, it seems to me, is the ori­gin of the laws of Rome on suc­ces­sions.

The law on the divi­sion of lands requi­red that the assets of one family not pass to ano­ther family ; from this it fol­lo­wed from that there should be but two orders of heirs esta­bli­shed by law2 : the chil­dren and all the des­cen­dants who lived under father’s autho­rity, whom they cal­led sui hære­des ; and in their absence, the clo­sest rela­ti­ves on the male side, who were cal­led agnati.

It fur­ther fol­lo­wed that the rela­ti­ves on the female side, who were cal­led cognati, should not inhe­rit : they would have taken the assets into ano­ther family ; and it was was esta­bli­shed thus.

It fur­ther fol­lo­wed from this that chil­dren should not suc­ceed to their mother, nor the mother to her chil­dren : that would have trans­fer­red the assets of one family to ano­ther. Thus they were exclu­ded in the law of the Twelve Tables : it cal­led to suc­ces­sion only the agnati, and the son and mother toge­ther were not agnati.3

But it was indif­fe­rent whe­ther the suus hæres or, in his absence, the clo­sest agna­tus, be male or female, because, since rela­ti­ves on the mater­nal side did not inhe­rit, even if a female heir mar­ried, the assets still retur­ned to the family from which they had come. That is why in the law of the Twelve Tables there is no dis­tinc­tion made whe­ther the per­son who suc­cee­ded was male or female.4

As a result, although the grand­chil­dren by the son suc­cee­ded to the grand­fa­ther, the grand­chil­dren by the daugh­ter did not ; for to keep the assets from pas­sing into ano­ther family, the agnati took pre­ce­dence over them. Thus the daugh­ter suc­cee­ded to her father, and not her chil­dren.5

Thus, among the early Romans, women suc­cee­ded when that coin­ci­ded with the law of the divi­sion of lands ; and they did not suc­ceed when it could clash with it.

Such were the laws of suc­ces­sions among the early Romans ; and as they were natu­rally depen­dent on the cons­ti­tu­tion, and deri­ved from the divi­sion of lands, it is clear that they did not have a foreign ori­gin, and were not among those which the depu­ties sent to the Greek vil­la­ges brought back with them.

Dionysius of Halicarnassus tells us 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 older ones new weight.6 Thus there can be no doubt that the laws which we have just men­tio­ned, made in func­tion of that divi­sion, are the work of those three legis­la­tors of Rome.

The order of suc­ces­sion having been esta­bli­shed in func­tion of a poli­ti­cal law, a citi­zen should not dis­rupt it by an act of indi­vi­dual will, which is to say that in the ear­liest times of Rome the making of a tes­ta­ment must not have been allo­wed. Nevertheless, it would have been harsh to be depri­ved in one’s last moments of the com­mu­ni­ca­tion of bene­fits.

A way was found to reconcile the laws in this res­pect with the will of indi­vi­duals. One was allo­wed to dis­pose of one’s pro­perty in an assem­bly of the peo­ple, and each tes­ta­ment was in some sense an act of the legis­la­tive autho­rity.

The law of the Twelve Tables allo­wed the per­son making his tes­ta­ment to choose as his heir any citi­zen he wished. The rea­son why the Roman laws so res­tric­ted the num­ber of those who could suc­ceed in the absence of a will was the law on divi­sion of lands ; and the rea­son why they thus exten­ded the abi­lity to make a will was that the father, having the right to sell his chil­dren,7 could a for­tiori deprive them of his pro­perty. They were thus dif­fe­rent effects, since they flo­wed from sepa­rate prin­ci­ples : and such is the spi­rit of the Roman laws on this sub­ject.

The ancient laws of Athens did not allow the citi­zen to make a will. Solon allo­wed it, except for those who had chil­dren8 ; and the legis­la­tors of Rome, imbued with the notion of pater­nal autho­rity, allo­wed wills even to the pre­ju­dice of the chil­dren. It must be admit­ted that the ancient laws of Athens were more consis­tent than the laws of Rome. The unli­mi­ted per­mis­sion to make a will, gran­ted by the Romans, ulti­ma­tely undid the poli­ti­cal pro­vi­sion on the divi­sion of lands ; it intro­du­ced, more than any­thing else, the omi­nous dif­fe­rence bet­ween wealth and poverty : seve­ral sha­res were com­bi­ned in the same per­son ; some citi­zens got too much, and an infi­nite num­ber of others got nothing. And so the peo­ple, conti­nually depri­ved of their share, conti­nually cal­led for a new dis­tri­bu­tion of lands. They cal­led for it at a time when fru­ga­lity, par­si­mony, and poverty cons­ti­tu­ted the dis­tinc­tive cha­rac­ter of Romans, as at the times when their luxury was still more impres­sive.

Testaments being pro­perly a law made in the assem­bly of the peo­ple, men who were away with the army found them­sel­ves depri­ved of the abi­lity to make a will. The peo­ple gave sol­diers the power9 to make in the pre­sence of some of their com­pa­nions the dis­po­si­tions they would have made before them.10

The great assem­blies of the peo­ple were held but twice a year ; besi­des, the peo­ple had grown and its busi­ness as well : they jud­ged it appro­priate to allow all citi­zens to make their will before a few adult Roman citi­zens, who could repre­sent the body of the peo­ple11 ; five citi­zens12 were cho­sen before whom the heir13 pur­cha­sed his family, which is to say his inhe­ri­tance, from the tes­ta­tor ; ano­ther citi­zen brought a balance to weigh its value, for the Romans as yet had no coi­nage.14

To all appea­ran­ces, those five citi­zens repre­sen­ted the five clas­ses of the peo­ple, and the sixth, com­po­sed of per­sons who had nothing, was not coun­ted.

We should not say with Justinian that these sales were ima­gi­nary : they became so, but at the begin­ning they were not. Most of the laws that sub­se­quently regu­la­ted wills ori­gi­nate in the rea­lity of these sales ; the proof of this is indeed to be found in Ulpian’s frag­ments.15 The deaf, the dumb, and the pro­di­gal could not make a will : the deaf, because he could not hear the words of the pur­cha­ser of the family ; the dumb, because he could not pro­nounce the terms of nomi­na­tion ; the pro­di­gal, because, being ban­ned from all mana­ge­ment of busi­ness, he could not sell his family. I omit the other exam­ples.

Wills being made in the assem­bly of the peo­ple, they were rather acts of poli­ti­cal law than of civil law, of public law rather than pri­vate law : whence it fol­lo­wed that the father could not allow his son who was under his autho­rity to make a will.

Among most peo­ples, wills are not sub­jec­ted to grea­ter for­ma­li­ties than ordi­nary contracts, because the ones and the others are no more than expres­sions of the will of the per­son who contracts, which belong equally to pri­vate law. But among the Romans, where wills deri­ved from public law, there were grea­ter for­ma­li­ties than for other acts16 ; and that still sub­sists today in the regions of France that are gover­ned by Roman law.

Wills being, as I have said, a law of the peo­ple, they were sup­po­sed to be made with the force of com­mand, and by words that were cal­led direct and impe­ra­tive. From this a rule was for­med that a per­son could nei­ther give nor trans­mit his inhe­ri­tance except by words of com­mand17 : whence it fol­lo­wed that one could well, in cer­tain cases, make a sub­sti­tu­tion,18 and order that the inhe­ri­tance pass on to ano­ther heir, but that one could never make a trust,19 in other words enjoin someone, in the form of a request, to remit the inhe­ri­tance, or a part of it, to ano­ther heir.

When the father nei­ther desi­gna­ted nor disin­he­ri­ted his son, the will was abro­ga­ted ; but it was valid even if he nei­ther disin­he­ri­ted nor desi­gna­ted his daugh­ter. I see the rea­son for this. When he nei­ther desi­gna­ted nor disin­he­ri­ted his son, he was har­ming his grand­son, who would have suc­cee­ded ab intes­tato to his father, but by nei­ther desi­gna­ting nor disin­he­ri­ting his daugh­ter, he did no harm to his daugh­ter’s chil­dren, who would not have suc­cee­ded ab intes­tato to their mother,20 because they were nei­ther sui hære­des nor agnati.

As the laws of the early Romans on suc­ces­sions had in mind only to fol­low the spi­rit of the divi­sion of lands, they did not suf­fi­ciently res­train the wealth of women, and the­reby left a door open to luxury, which is always inse­pa­ra­ble from wealth. Between the second and third Punic Wars, they began to sense the evil : they made the Voconian law21 ; and as very great consi­de­ra­tions made them do it, as few records of it remain to us, and as it has up to now been spo­ken of only very confu­sedly, I shall now cla­rify it.

Cicero has pre­ser­ved a frag­ment for us which for­bids desi­gna­ting a woman as heir,22 whe­ther or not she was mar­ried.

The Epitome of Livy, where this law is men­tio­ned, says nothing more about it23 ; it seems from Cicero24 and St. Augustine25 that the daugh­ter, and even the only daugh­ter, were inclu­ded in the pro­hi­bi­tion.

Cato the Elder contri­bu­ted with all his power to get­ting this law accep­ted.26 Aulus Gellius quo­tes a frag­ment of the speech he deli­ve­red on that occa­sion.27 By pre­ven­ting the suc­ces­sion of women, he wan­ted to avoid the cau­ses of luxury, as in under­ta­king the defense of the Oppian law he wan­ted to check luxury itself.

Mention is made in the Institutes of Justinian and Theophilus of a chap­ter of the Voconian law that res­tric­ted the abi­lity to bequeath.28 Reading these wri­ters, there is no one who does not think this chap­ter was made to avoid the suc­ces­sion’s being so exhaus­ted by lega­cies that the heir might refuse to accept it. But the spi­rit of the Voconian law was not that. We have just seen that its pur­pose was to pre­vent women from recei­ving any suc­ces­sion. The chap­ter of that law that put limits on the abi­lity to bequeath ente­red into this pur­pose : for if one had been able to bequeath as much as one would have wished, women could have recei­ved as legacy what they could not obtain as a suc­ces­sion.

The Voconian law was made to pre­vent the exces­sive wealth of women ; it was the­re­fore of large suc­ces­sions that they had to be depri­ved, and not of those that could not sup­port luxury.29Thus do we find in Cicero30 that women were exclu­ded only from the suc­ces­sion of those whose assets were in the cens.31

The civil wars cau­sed the loss of an infi­nite num­ber of citi­zens. Rome under Augustus was almost empty ; it had to be repo­pu­la­ted. The Papian laws were made, in which nothing was omit­ted that could encou­rage citi­zens to marry and have chil­dren.32 One of the prin­ci­pal means was to raise the hopes of suc­ces­sion for those who lent them­sel­ves to the inten­tions of the law, and to lower them for those who would not com­ply ; and as the Voconian law had made women ine­li­gi­ble to inhe­rit, the Papian law in cer­tain cases put an end to this pro­hi­bi­tion.

Women, espe­cially those who had chil­dren, were made eli­gi­ble to receive by vir­tue of their hus­bands’ wills33 ; they could, when they had chil­dren, receive by vir­tue of out­si­ders’ wills : all this against the pro­vi­sion of the Voconian law ; and it is nota­ble that the spi­rit of that law was not enti­rely aban­do­ned. For exam­ple, the Papian law34 allo­wed a man who had a child35 to receive the entire inhe­ri­tance from the will of an out­si­der ; it made the same conces­sion to a woman only when she had three chil­dren.36

It must be noted that the Papian law ena­bled women who had three chil­dren to suc­ceed only by vir­tue of out­si­ders’ wills, and that with res­pect to the suc­ces­sion of rela­ti­ves it left the ancient laws and the Voconian law in full force.37 But that did not last.

Rome, sub­ver­ted by the wealth of all nations, had chan­ged its ways ; there was no lon­ger any ques­tion of che­cking women’s luxury. Aulus Gellius, who lived under Adrian, tells us that in his time the Voconian law was almost obli­te­ra­ted ; it was cove­red by the opu­lence of the repu­blic.38 Thus we find in the Sententiæ of Paulus,39 who lived under Niger, and in the Fragments of Ulpian,40 who was in the time of Alexander Severus, that sis­ters on the father’s side could suc­ceed, and that only rela­ti­ves fur­ther remo­ved fell under the pro­hi­bi­tion of the Voconian law.

We see from the pro­ce­du­res of Verres that the præ­tors exten­ded or shrank the Voconian law at will.41 The ancient laws of Rome had begun to seem harsh. Only rea­sons of equity, mode­ra­tion, or decency were able to move the præ­tors ; they under­mi­ned all those laws. For laws often do much well-hid­den good, and lit­tle but very per­cep­ti­ble harm.

We have seen that, by the ancient laws of Rome, mothers had no share in their chil­dren’s suc­ces­sion. The Voconian law was ano­ther rea­son for exclu­ding them. But the empe­ror Claudius gran­ted the mother the suc­ces­sion of her chil­dren as a conso­la­tion for their loss. The Tertullian sena­tus consul­tum issued under Adrian42 gran­ted it to them when they had three chil­dren if they were free­born, or four if they were freed. It is clear that this sena­tus consul­tum was merely an exten­sion of the Papian law, which in the same case had gran­ted to women the suc­ces­sions confer­red on them by non-rela­ti­ves. Finally, Justinian gran­ted them the suc­ces­sion irres­pec­tive of the num­ber of their chil­dren.43

The same cau­ses that led to nar­ro­wing the law pre­ven­ting women from suc­cee­ding led to the gra­dual over­tur­ning of the one that had hin­de­red the suc­ces­sion of rela­ti­ves on the side of women. Those laws were quite consis­tent with the spi­rit of a good repu­blic, where the sex should be pre­ven­ted from taking advan­tage of its wealth or of its expec­ta­tions of wealth for luxury. With the luxury of a monar­chy, on the contrary, making mar­riage one­rous and costly, one must be urged to it, both by the wealth that women can offer, and by the expec­ta­tion of the suc­ces­sions which they can obtain. Thus, when the monar­chy was esta­bli­shed in Rome, the whole sys­tem of suc­ces­sions was chan­ged. In the absence of rela­ti­ves through the male line, præ­tors cal­led rela­ti­ves on the women’s side, whe­reas by the ancient laws rela­ti­ves on the women’s side were never cal­led. The Orphitian sena­tus consul­tum cal­led chil­dren to their mother’s suc­ces­sion, and the empe­rors Valentinian, Theodosius, and Arcadius cal­led their grand­chil­dren by their daugh­ter to the suc­ces­sion of the grand­fa­ther.44 Finally, empe­ror Justinian remo­ved the last ves­tige of the ancient law on suc­ces­sions : he esta­bli­shed three orders of heirs : des­cen­dants, ascen­dants, and col­la­te­rals, with no dis­tinc­tion at all bet­ween males and fema­les, bet­ween rela­ti­ves on the female or the male side, and abro­ga­ted all those that remai­ned in this regard ; he belie­ved he was fol­lo­wing nature itself by lea­ving behind what he cal­led the tan­gles of the old juris­pru­dence.45

Dionysius of Halicarnassus, book II, ch. iii ; Plutarch, in his comparison of Numa and Lycurgus.

Ast si intestato moritur, cui suus hæres nec extabit, agnatus proximus familiam habeto [‘If he has no heir and dies intestate, let the nearest agnate have the inheritance’ – transl. Weston]. Fragment of law of the Twelve Tables in Ulpian, last title.

See Ulpian, Fragmenta, §8, tit. 26 ; Institutes, tit. 3, in prœmio ad Senatus consulto Tertulliano.

Paul the Jurist, book IV De sententiarum, tit. 8, §3.

Institutes, book III, §15.

Book IV, p. 276.

Dionysius of Halicarnassus proves by the law of Numa that the law allowing a father to sell his son three times was a law of Romulus, not of the decemvirs (book II).

See Plutarch, Life of Solon.

This will, called in procinctu, was different from the one called military, which was only established by the constitutions of the emperors (Law 1 following De militari testamento) : it was one of their mollifications of the soldiers.

This will was unwritten, and devoid of formalities, sine libra et tabulis, as Cicero says (book I of De oratore).

Institutes, book II, tit. 10, §1 ; Aulus Gellius, book XV, ch. xxvii. They called this form of will per æs et libram.

Ulpian, tit. 10, §2.

Theophilos, Institutes, book II, tit. 10.

Livy (book IV, nondum argentum signatum erat) ; he speaks of the time of the siege of Veii.

Tit. 20, §13.

Institutes, book II, tit. 10, §1.

Let Titius be my heir.

Vulgar, pupillary, and exemplary.

Augustus, for particular reasons, began to authorize trustees. Institutes, book II, tit. 23 in prœmio.

Ad liberos matris intestatæ hæreditas [‘On the inheretance of an intestate mother’], book XII. The law non pertinebat quia fæminæ suos hæredes non habent, [‘did not apply because women have no proper heirs’] (Ulpian, Fragmenta, tit. 26, §7).

Quintus Voconius, tribune of the people, proposed it. See Cicero, second oration against Verres, in Livy, Epitome, book XLI ; read Voconius instead of Volumnius.

Sanxit…. ne quis hæredem virginem neve mulierem faceret ; Cicero, second oration against Verres.

Legem tulit, ne quis hæredem mulierem institueret, book XLI.

Second oration against Verres.

Book III of The City of God.

Livy, Epitome, book XLI.

Book XVII, ch. vi.

Institutes, book III, tit. 22.

[From here to the paragraph begining “Les guerres civiles,” the edition of 1758 inserts the text of Annex 21.]

Second oration against Verres.

Qui census esset ; which Dio, in book LVI, explains about him who had a hundred thousand, that is, him who had the first cens, as we can see in Livy, book I, and Dionysius of Halicarnassus.

See what I have said about it in book XXIII, ch. xxi.

On this see Ulpian’s Fragmenta, tit. 15, §16.

The same difference is found in several provisions of the Papian law. See Ulpian’s Fragmenta, §4-5, last title, and the same at the same title, §6.

Quod tibi filiolus, vel filia, nascitur ex me, ¶Jura parentis habes ; propter me scriberis hæres. Juvenal, Sat. 9.

See law 9 of Codex Theodosianus, De bonis proscriptorum seu damnatorum ; and Dio, book LV. See Ulpian’s Fragmenta, last tit., §6, and tit. 29, §3.

Book XX, ch. i.

Book XX, ch. i.

[Pauli sententiæ,] Book IV, tit. 8, §3.

Tit. 26, §6.

Cicero, second oration against Verres.

In other words, emperor Pius, who took the name of Adrian by adoption.

Book II, Codex, De jure liberorum, Institutes, tit. 3, §4 of senatus consulta, and book II, Codex, De senatus consulto Tertulliano.

L. IX. Codex, De suis et legitimis liberis ex filia nepotibus ab instetato venientibus.

L. XIV. Codex, ibid. and Novellas 118 and 127.