Book XXVII. 1. 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 Romulus1 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 h?redes, 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 h?res, 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 us6 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 companions9 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 h?redes, 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 Cicero24 and St. Augustine25 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 Justinian28 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 Cicero32 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 pr?tors 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 pr?torship, 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 pr?tors 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 observes35 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 no, t 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 ?rarii, 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 C?rites tabul?.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.