Monday, January 13, 2003

The Spirit of Laws - Book XXVII

From “The Spirit of Laws” – by the Baron De Montesquieu


1.--Of the Origin and Revolutions of the Roman Laws on Successions

.... 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 wars, they began to perceive the evil and made the Voconian law;28 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 endeavor to clear it up.

Cicero has preserved a fragment, which forbids the instituting a woman an heiress, whether she was married or unmarried.29 The epitome of Livy, where he speaks of this law, says no more:30 it appears from Cicero31 and St. Augustin,32 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.33 Aulus Gellius cites a fragment of a speech,34 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....

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...

At the time the Voconian law was passed, the Romans still preserved some remains of their ancient purity of manners .. But latterly their morals were corrupted ...

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,35 tells us, that in his time the Voconian law was almost abolished; it was buried under the opulence of the city ...

The ancient laws of Rome began to be thought severe ...

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 ...

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 praetors 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.36 In short, the Emperor Justinian37 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 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.

[Justinian's reign began in 527 A. D., about the same time that the Dark Ages began; "The regulations made by the Romans to increase the number of their citizens had their effect while the republic, in the full vigour of her constitution, had nothing to repair but the losses she sustained by her courage, by her intrepidity, by her firmness, her love of glory and of virtue. But soon the wisest laws could not re-establish what a dying republic, what a general anarchy, what a military government, what a rigid empire, what a proud despotic power, what a feeble monarchy, what a stupid, weak, and superstitious court had sucessively pulled down. It might, indeed, be said that they conquered the world only to weaken it, and to deliver it up defenseless to barbarians." Montesquieu.]



28 It was proposed by Quintus Voconius, Tribune of the people. See Cicero's "Second Oration against Verres. In the "Epitome" of T. Livy, lib. XLI., we read Voconius, instead of Voluminus.

29 "Sanxit ... ne quis haeredem virginem neve mulierem faceret."-- Cicero's "Second Oration against Verres."

30 "Legem tulit, ne quis haeredem mulierem institueret."--Lib. IV.

31 "Second Oration against Verres." 32 "Of the City of God," lib. III.

33 "Epitome" of Livy, lib. XL.

34 Lib. XXVII. cap. vi.

35 Lib. XX. cap. i.

36 Lib. 9. Cod. "de suis et legitimis haeredibus."

37 Lib. XIV. Cod. " de suis et legitimis haeredibus," et "Nov." 118 and 127.
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