Montesquieu

[…] The law fixed a cer­tain sum which was to be given to women whom it depri­ved of suc­ces­sion. Cicero, who informs us of this fact,1 does not say what that sum was, but Dio says it was one hun­dred thou­sand ses­ter­ces.2

The Voconian law was made to regu­late wealth, and not to regu­late poverty, and Cicero tells us that it only deter­mi­ned who was lis­ted in the cens.3

That fur­ni­shed a pre­text for elu­ding the law. We know that the Romans were extre­mely for­ma­lis­tic, and we have said above that the spi­rit of the repu­blic was to fol­low the let­ter of the law. There were fathers who did not have their names regis­te­red for the cens, so they could leave their suc­ces­sion to their daugh­ter, and the præ­tors jud­ged that this was not a vio­la­tion of the Voconian law, since it did not vio­late the let­ter.

A cer­tain Anius Asellus had desi­gna­ted his daugh­ter as sole heir. He could, says Cicero4 : the Voconian law did not pre­vent him, because he was not lis­ted in the cens. Verres, being a præ­tor, had depri­ved the daugh­ter of the suc­ces­sion ; Cicero main­tains that Verres had been cor­rup­ted, because other­wise he would not have rever­sed an order which the other præ­tors had fol­lo­wed.

Who then were these citi­zens who were not in the cens that inclu­ded all citi­zens ? But accor­ding to the ins­ti­tu­tion of Servius Tullius repor­ted by Dionysius of Halicarnassus, every citi­zen who did not enroll in the cens was made a slave5 ; Cicero him­self says that such a man lost his free­dom6 ; Zonaras says the same thing. There had to have been some dif­fe­rence, then, bet­ween not being in the cens accor­ding to the spi­rit of the Voconian law, and not being in the cens accor­ding to the spi­rit of the ins­ti­tu­tions of Servius Tullius.

Those who had not had them­sel­ves enrol­led in the first five clas­ses, where one was pla­ced accor­ding to the pro­por­tion of his assets, were not in the cens accor­ding to the spi­rit of the Voconian law7 ; those who were not lis­ted in the six clas­ses, or who were not pla­ced by the cen­sors among those who were cal­led œra­rii, were not in the cens fol­lo­wing the ins­ti­tu­tions of Servius Tullius. Such was the force of nature that fathers, to elude the Voconian law, were willing to bear the shame of being mixed in the sixth class with the pro­le­ta­rians and those who were taxed by capi­ta­tion, or per­haps even of being rele­ga­ted to the tables of the Cærites.8

We have said that the jurisd­pru­dence of the Romans did not allow for trus­tees. The hope of elu­ding the Voconian law intro­du­ced them : one desi­gna­ted an heir eli­gi­ble to receive by law, and asked him to remit the suc­ces­sion to a per­son whom the law had exclu­ded. This new man­ner of dis­po­sing had very dif­fe­rent effects. Some pas­sed on the inhe­ri­tance, and the act of Sextus Peduceus was remar­ka­ble. He was given a large suc­ces­sion ; there was no one on earth but him who knew that he was asked to pass it on : he went to find the tes­ta­tor’s widow and gave her all her hus­band’s assets.9

The others kept the suc­ces­sion for them­sel­ves, and the exam­ple of P. Sextilius Rufus was also famous, because Cicero uses it in his dis­pu­tes against the Epicurians. “In my youth,” he says, “I was asked by Sextilius to accom­pany him to his friends’ house, to learn from them whe­ther he should pass on the inhe­ri­tance of Quintus Fadius Gallus to his daugh­ter Fadia. He had assem­bled seve­ral youths, along with some very grave per­so­na­ges, and not one expres­sed the opi­nion that he should give more to Fadia than what she was sup­po­sed to receive under the Voconian law. Sextilius had a large inhe­ri­tance, of which he would not have retai­ned one ses­terce if he had cho­sen what was just and honest over what was bene­fi­cial to him. I can believe, he added, that you would have remit­ted the inhe­ri­tance ; I can even believe that Epicurus would have remit­ted it ; but you would not have fol­lo­wed your prin­ci­ples.”10 I shall make a few obser­va­tions here.

It is a mis­for­tune of the human condi­tion that legis­la­tors should be obli­ged to make laws that coun­ter even natu­ral sen­ti­ments : such was the Voconian law. That is because legis­la­tors deter­mine more on society than on the citi­zen, and more on the citi­zen than on the man. The law was sacri­fi­cing both the citi­zen and the man, thin­king only of the repu­blic. A man asked his friend to pass his suc­ces­sion to his daugh­ter ; the law was spur­ning, in the tes­ta­tor, the sen­ti­ments of nature ; it was spur­ning, in the daugh­ter, filial piety ; it had no consi­de­ra­tion for the per­son entrus­ted with pas­sing on the inhe­ri­tance, who was in a deplo­ra­ble situa­tion. If he remit­ted it, he was a bad citi­zen ; if he kept it, he was a disho­nest man. Only peo­ple of good cha­rac­ter thought of eva­ding the law ; there were none but honest men one could choose for eva­ding it, for it is always a triumph to be won over ava­rice and sen­sual delights, and it is only honest men who obtain these sorts of vic­to­ries. Perhaps it would even have been severe to regard them in this as bad citi­zens. It is not impos­si­ble that the legis­la­tor had obtai­ned a good part of his objec­tive, when his law was such that it for­ced only honest men to elude it.

In the time when the Voconian law was made, the ethos had pre­ser­ved some­thing of its ancient purity. The public cons­cience was some­ti­mes soli­ci­ted in favor of the law, and an oath was requi­red that it would be obser­ved,11 so that pro­bity was, so to speak, waging war on pro­bity. But in the lat­ter times, the ethos became cor­rup­ted to the point where trus­tees nee­ded less strength to elude the Voconian law than was in the law to make itself obeyed.

Nemo censuit plus Fadiæ dandum, quam posset ad eam lege Voconia pervenire. (De finibus bon. & mal, book II).

Cum lege Voconia mulieribus prohiberetur ne qua majorem centum millibus nummum hæreditatem posset adire (book LVI).

Qui census esset (second oration against Verres).

census non erat (ibid.).

Book V.

In Oratione pro Cæcinna.

These five first classes were so considerable that sometimes writers record no more than five.

In cæritum tabulas referri ; ærarius fieri.

Cicero, De finib. boni et mali, book II.

Cicero, De finib. boni et mali, book II.

Sextilius said he had sworn to observe it (Cicero, De finib. boni & mali, book II).