按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
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 us＇6＇ 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 companions＇9＇ 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 form