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 hæredes, 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 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 hæredes, nor
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 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 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 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
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
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
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 child44
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 Justinian53
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.
1. Dionysius Halicarnassus, ii. 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.,
§ 8, tit. 26. Institutes, tit. 3, In præmio ad S.C.
4. Paul, Sentences, tit. 8,
5. Institutes, iii, tit. 1,
6. Book iv, p. 276.
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 librâ et tabulis,
as Cicero says, De Orat., i.
11. Institutes, ii, tit. 10,
§ 1. Aulus Gellius, xv. 27. They called this form of testament per
æs et libram.
12. Ulpian, tit. 10, § 2.
13. Theophilus, Institutes,
ii, tit. 10.
14. Livy, iv, Nondum argentum
signatum erat. He speaks of the time of the siege of Veii.
15. Tit. 20, § 13.
16. Institutes, ii, tit. 10,
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, ii, tit. 23, § 1.
20. Ad liberos matris intestatæ
hæredit as, leg. 12 Tab., non pertinebat, quia, fæminæ
suos hæredes non habent. Ulpian, Fragment., tit. 26,
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,
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 xli.
24. Second Oration against
25. City of God, iii. 21.
26. Epitome of Livy, xli.
27. Book xvii, 6.
28. Institutes, ii, tit. 22
30. Nemo censuit plus Fadiæ
dandum, quam posset ad cam lege Voconia pervenire. De Finib. boni et mali,
31. Cum lege Voconia mulieribus
prohiberetur, ne qua majorem centum millibus nummum hæreditatem
posset adire. Book lvi.
32. Qui census esset. Second
Oration against Verres.
33. Census non erat. Ibid.
34. Book iv.
35. Oratio 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, ii. 58.
40. Sextilius said he had sworn to
observe it. — Cicero, De Finib. boni et mali, ii. 55.
41. See what has been said in xxiii.
42. The same difference occurs in
several regulations of the Papian law. See Ulpian, Fragment. tit.
ult., §§ 4, 5, 6.
43. See Ulpian, Fragment.,
tit. 15, § 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., § 6, and tit. 29, § 3.
46. Ulpian, Fragment., tit.
16, § 1. Sozomenus, i. 29.
47. Book xx. 1.
48. Book iv, tit. 8, § 3.
49. Tit. 26, § 6.
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, § 4, de senatus consult.
52. Leg. 9, Cod. de suis
et legitimis liberis.
53. Leg. 12, ibid.,
and Nov. 118, 127.
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