Appendix 7. (1290).
Was the right of relative ownership, which we have introduced here and shall use as we go along [1290 ss.], recognised by civil legislators? We could bring forward innumerable examples of positive laws that could not have entered legislators' minds if they had been ignorant of the right of the relative ownership which we have shown to exist in nature. However, we shall limit ourselves to certain laws about dowries taken from Roman legislation.
Whatever the wife brought into a house, provided it did not come from her father, was called dos adventitia [fortuitous dowry] (Leg. unic. accedit Cod. De rei uxor. action.) and formed part of the husband's succession if no other convention had been established (L. dotis 7 si res ff. De jur. dot.). However, the dowry provided by the father, dos profectitia [the established dowry] (L. profectitia 5 Cod. De jur. dot.) was returned to the father if his daughter died without offspring (L. dos a patre 4 Cod. solut. matrim. L. jure 6 ff. De jure dot. L. haeres 37 ff. de acquir. vel omit. haered. It was Martino and other jurisconsults who restricted Justinian law to the case of the wife who left no living children). It is clear that a law of this kind entails acknowledgement of some relative ownership in the father.
It is also true according to us that the person holding relative ownership cannot prevent another with full ownership of a thing from using it up (provided this is done within certain reasonable limits). To this extent, the action attributed to the father over the dowry of his deceased daughter by Roman laws differs from our relative ownership.
Roman laws stated that the established dowry could not be alienated or used up by the spouses (Cf. Brisonio ad legem juliam De Adulter., c. 20, opp. minor. p. 224, Louvain, 1749. Paulus recept. sentent., bk 2, tit. 21, n. 2, in Schultingio jurispr. et ret. ante-justinan. t. 1, p. 309, Leipzig, 1737); our opinion, dependent upon our attempt to establish only that which seems in accord with the Right of natural reason without reference to any convention or civic view of things, states that the head of the house has the obligation simply to indicate what belongs to the spouse so that whatever remains (all of it, or any part) may be identified at the spouse's death. Moreover, the dowry of the deceased daughter should not be returned to the father, according to us, but should remain with the surviving husband, as we said.
In the same way, according to Roman laws, the established dowry was returned to the father at the death of the husband because it was thought that the daughter herself should return. But according to rational Right, the widow is free to return to her father's family, from which she was already divided, or to remain on her own. However, the father was forbidden to use up the daughter's dowry, which he had to restore to her if she wished to marry again (L. dotium 1 ff. solut. matrim. Cf. Brisonio, c. 1, and Danello, De jur. civil., 1, 9, c. 10, n. 23, and Hilliger's notes in the same place). This shows that the father was not considered as the full owner of the widowed daughter's dowry as long as she lived, but as its defender and tutor. Moreover, he was considered as the owner relative to others, but not relative to the daughter herself or to her family if she remarried. In his condition as relative owner, the father had the right, ac cording to Roman right, to succeed the daughter who, in fact, was the principal and full owner.
We have a clear indication, therefore, in these laws about dowries, in laws about private property, and in innumerable other instances, of the obvious traces of that right of relative and full ownership that we have laid down in our treatise on rational Right. The Roman legislators, however, did not give this ownership a name.