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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 it.

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 child[44] 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 pr?tors 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 pr?tors 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 Justinian[53] 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.

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1. Dionysius Halicarnassus, ii. 3. Plutarch's comparison between Numa and Lycurgus.

2. Ast si intestato moritur cui suus h?res 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 pr?mio ad S.C. Tertullianum.

4. Paul, Sentences, tit. 8, § 3.

5. Institutes, iii, tit. 1, § 15.

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 libra 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 ?s 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, § 1.

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 intestat? h?redit as, leg. 12 Tab., non pertinebat, quia, f?min? suos h?redes non habent. Ulpian, Fragment., tit. 26, § 7.

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 h?redem virginern neve mulierem faceret. -- Cicero, Second Oration against Verres, 107.

23. Legem tulit, ne quis h?redem mulierem institueret -- Book xli.

24. Second Oration against Verres.

25. City of God, iii. 21.

26. Epitome of Livy, xli.

27. Book xvii, 6.

28. Institutes, ii, tit. 22

29. Ibid.

30. Nemo censuit plus Fadi? dandum, quam posset ad cam lege Voconia pervenire. De Finib. boni et mali, ii. 55.

31. Cum lege Voconia mulieribus prohiberetur, ne qua majorem centum millibus nummum h?reditatem posset adire. Book lvi.

32. Qui census esset. Second Oration against Verres.

33. Census non erat. Ibid.

34. Book iv.

35. Oratio pro C?cinna.

36. These five classes were so considerable, that authors sometimes mention no more than five.

37. In C?ritum tabulas referri; ?rarius fieri.

38. Cicero, De Finib. boni et mali, ii. 58.

39. Ibid.

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. 21.

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 h?res. -- 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. Tertul.

52. Leg. 9, Cod. de suis et legitimis liberis.

53. Leg. 12, ibid., and Nov. 118, 127.

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Book XXVIII. Of the Origin and Revolutions of the Civil Laws among the French

1. Different Character of the Laws of the several People of Germany. After the Franks had quitted their own country, they made a compilation of the Salic laws with the assistance of the sages of their own nation.[1] The tribe of the Ripuarian Franks having joined itself under Clovis[2] to that of the Salians preserved its own customs; and Theodoric,[3] King of Austrasia, ordered them to be reduced to writing. He collected likewise the customs of those Bavarians and Germans, who were dependent on his kingdom.[4] For Germany having been weakened by the migration of such a multitude of people, the Franks, after conquering all before them, made a retrograde march and extended their dominion into the forests of their ancestors. Very likely the Thuringian code was given by the same Theodoric, since the Thuringians were also his subjects.[5] As the Frisians were subdued by Charles Martel and Pepin, their law cannot be prior to those princes.[6] Charlemagne, the first that reduced the Saxons, gave them the law still extant; and we need only read these last two codes to be convinced they came from the hands of conquerors. As soon as the Visigoths, the Burgundians, and the Lombards had founded their respective kingdoms, they reduced their laws to writing, not with an intent of obliging the vanquished nations to conform to their customs, but with a design of following them themselves.

There is an admirable simplicity in the Salic and Ripuarian laws, as well as in those of the Alemans, Bavarians, Thuringians, and Frisians. They breathe an original coarseness and a spirit which no change or corruption of manners had weakened. They received but very few alterations, because all those people, except the Franks, remained in Germany. Even the Franks themselves laid there the foundation of a great part of their empire, so that they had none but German laws. The same cannot be said of the laws of the Visigoths, of the Lombards and Burgundians; their character considerably altered from the great change which happened in the character of those people after they had settled in their new habitations.

The kingdom of the Burgundians did not last long enough to admit of great changes in the laws of the conquering nation. Gundebald and Sigismond, who collected their customs, were almost the last of their kings. The laws of the Lombards received additions rather than changes. The laws of Rotharis were followed by those of Grimoaldus, Luitprandus, Rachis, and Astulphus, but did not assume a new form. It was not so with the laws of the Visigoths;[7] their kings new-moulded them, and had them also new-moulded by the clergy.

The kings indeed of the first race struck out of the Salic and Ripuarian laws whatever was absolutely inconsistent with Christianity, but left the main part untouched.[8] This cannot be said of the laws of the Visigoths.

The laws of the Burgundians, and especially those of the Visigoths, admitted of corporal punishments; these were not tolerated by the Salic and Ripuarian laws;[9] they preserved their character much better.

The Burgundians and Visigoths, whose provinces were greatly exposed, endeavoured to conciliate the affections of the ancient inhabitants, and to give them the most impartial civil laws;[10] but as the Kings of the Franks had established their power, they had no such considerations.[11]

The Saxons, who lived under the dominion of the Franks, were of an intractable temper, and prone to revolt. Hence we find in their laws the severities of a conqueror,[12] which are not to be met with in the other codes of the laws of the barbarians.

We see the spirit of the German laws in the pecuniary punishments, and the spirit of a conqueror in those of an afflictive nature.

The crimes they commit in their own country are subject to corporal punishment; and the spirit of the German laws is followed only in the punishment of crimes committed beyond the extent of their own territory.

They are plainly told that their crimes shall meet with no mercy, and they are refused even the asylum of churches.

The bishops had an immense authority at the court of the Visigoth Kings, the most important affairs being debated in councils. All the maxims, principles and views of the present inquisition are owing to the code of the Visigoths; and the monks have only copied against the Jews the laws formerly enacted by bishops.

In other respects the laws of Gundebald for the Burgundians seem pretty judicious; and those of Rotharis, and of the other Lombard princes, are still more so. But the laws of the Visigoths, those for instance of Recessuinthus, Chaindasuinthus, and Egigas are puerile, ridiculous and foolish; they attain not their end; they are stuffed with rhetoric and void of sense, frivolous in the substance and bombastic in the style.