THE TRANSMISSION OF RIGHTS, AND
THEIR CONSEQUENT MODIFICATIONS

Chapter 2 (Part two)

Transmissions of rights which change their subject but not their form

1377. We return now to the question of wills, to which we must apply these teachings. First, we have to affirm that testaments have no force as contracts. Calling them `quasi-contracts', therefore, simply obscures their concept. Indeed, I think that the immense difficulty experienced by authors in accepting wills as acts pertaining to rational Right springs from this very point. This would explain the crowded ranks of those who, having despaired of showing that wills belong to natural right, have forced themselves to conclude that testaments are a merely positive institution and a creation of civil laws. This is certainly the case with those who call wills quasi-contracts, because, as we have seen, the quasi-contract is a fiction of law.

1378. Some authors attempted to make testaments contracts, but this was soon abandoned as unsustainable because a contract requires the simultaneous consent of stipulator and accepter.(370) In a will, however, the heir does not accept until after the death of the testator. Finding it impossible, therefore, to make wills natural through lack of contractual qualities, these authors saw no other way out of the dilemma than that of considering wills as a product of positive law.(371)

1379. But if nature did not speak so clearly to them, as it speaks to us, history could have educated them if they had wished to listen. Only that which is natural(372) can be universal, and present at all times and in all places; and the practice of making wills is indeed immemorial and universal.

1380. Nevertheless, this historical argument, although finally permitting us to know something originating from human nature, does not offer any reason for the information it provides. Searching for this reason is our next task.

As long as we were dealing with natural succession, we found its moral-jural foundation in the natural feeling of our nearest kin, in their affection and in their natural persuasion that the ownership held by blood-relations and in-laws whose eyes they closed should devolve on themselves and not on others. In the present case, however, in which we are no longer dealing with natural heirs, we cannot appeal to natural inclination and volition. The reason for the efficacy of such a testament can be sought only in the validity of the will of the testator. Everything depends upon whether this will should be respected by others and is capable of imposing a jural obligation upon them. If it can be shown that the will of a testator is authoritative and holy, and able to posit a jural obligation that the survivors have to uphold, it is clear that there is a right in nature to make a will

1381. This is what we maintain, and we intend to prove it with two reasons which follow as consequences from the same principle that we have posited as the foundation of all rights. This principle is invariably the extremely simple, ethical maxim: `Whatever naturally displeases a human being is to be avoided; the bond of feeling with which the human being naturally attaches things to himself is not to be severed; in other words, ownership must not be taken from others.' Our conclusion was that ownership (the bond of natural feeling we have described), considered in relationship with the obligation existing in other people, is that which constitutes the right of ownership.
Granted this, it is clear that the right has the same extension as the obligation, and that the obligation extends as far as the natural displeasure which others cause by attempting to disunite a person from the things which he has united to himself in the feeling we have described.(373)

1382. This principle provides two consequences which are clear reasons proving the right to make a will.

First reason. Human beings naturally make acts expressing their final will and want them fulfilled. Precisely because we are persuaded that we are able to dispose of our goods after death, we insist that others put our dispositions into effect. If we knew that our directions (indicated by the use of the phrase `I will' in reference to what has to be done with our estate after our death) would be totally ignored, we would, while still alive, experience a sense of sorrow. In a word, it is naturally painful for us not to dispose efficaciously of our goods after our death. The hurt arises from our desire that such an act of ownership on our part should produce its effect, and from the affection that we bear towards those we have chosen as our heirs and have made one person with ourselves.

All our surviving neighbours, therefore, must agree to respect this inclination of nature and maintain the dispositions that the dead make about what belongs to them. They have to agree not to violate these dispositions, and this has always happened in fact, in order to avoid harming living testators who may anticipate lack of respect for their wishes. The inclination to dispose of ownership after death is as natural and normal to people as the inclination to own many things during life, and the former must be respected in the same way as the latter.(374) If all do, in fact, respect it, everyone will benefit; all can enjoy the satisfaction which human nature offers of being able to pass beyond the grave in thought and desire, and foresee that each person's dispositions are carried out and respected. A lasting trace of one's own power and a naturally attractive extension of ownership is left in the world. If this were not the case, a natural, human propensity would be sacrificed. But everything which leaves human nature devoid of some natural inclination, of some inborn feeling, is against natural Right.

1383. The second reason is based upon an observation by Leibniz, Germany's greatest philosopher. This great, generous-hearted man noted that the tendency and right to make a will is a consequence of the immortality of the soul.

1384. This noble idea was rejected, but unworthily. The `republic of souls', to use a phrase employed by this great man, is not a chimera. Granted the immortality of souls, it is impossible to believe that once deprived of their bodies, they are denuded of all the relationships they have naturally acquired with other persons of the same species. Nor can we believe that they lay aside what is natural to them, such as the desire to see their will esteemed amongst their fellows. Human beings naturally desire power, and all their power consists in the efficacy of their act of will in obtaining what it commands and desires. It is therefore an affront to the natural desire of the human person, which does not perish, and a lack of respect for personal will when what it decides about the things it has taken as its own `with the intention of using them in life and disposing of them after death' is set aside. It is A FACT that all this is contained in the single, moral-physical act of the ap propriation of things, and it is there for all to see.(375)

1385. Moreover, the right to make a will arises so intimately from the union between the living and those who come in the future that if it were not accepted it would be impossible to understand how civil society would have the right, or even the idea of instituting wills and making laws about them. These laws are intended solely for the benefit of those who are to come. Legislators start, therefore, from the principle that human beings, although succeeding one another on the stage of this world, form a single, continuous whole. The same principle which makes us think of those to come also dictates our respect for those who have preceded us (cf. 1383-1384).

1386. It is impossible, therefore, to take as true the affirmation of many authors that all rights perish together with the present life. Just as we have sacred duties to fulfil towards those who have preceded us duties accepted unanimously by all mankind so we have to acknowledge that rights subsist corresponding to those duties, even if the active exercise of these rights has been blocked and suspended for our predecessors. It has not been blocked for the living, whose respect they gratefully receive. In this passive manner the dead come to exercise their rights by approving, as we must suppose, the reverence paid to their person and will by their survivors.

1387. It is possible that some will deny jural, but not ethical value to duties binding the living with those who have passed to the next life. They will argue that the dead can no longer exercise rights or impose sanctions on this earth. But it is not good for those who believe in the immortality of the soul and in a just God to affirm so easily and indubitably, as they do, that the injustices carried out against the persons of the dead pass without punishment of any kind whether applied in a hidden way by the dead themselves, or by God and his Providence, who may punish on behalf of the dead.

I repeat, relative to the exercise of rights (and ignoring that right is one thing, and its exercise another), that the deceased exercise their rights very well when their surviving heirs enjoy on their behalf the ownership they have left in virtue of their will. This enjoyment is a virtual exercise of their rights because it is the efficacious effect of their last wills. If these desires are not observed, their exercise is lacking, but only in the same way that an owner cannot exercise his right to use something stolen from him by thieves. In a word, the deceased have some rights not per se, but by means of their dear ones. They exercise these rights through their heirs if the survivors allow them the exercise.(376)

1388. Nor would the same reasoning be sound relative to the heirs if duties towards the dead were considered simply as ethical because of the condition in which the deceased found themselves, that is, beyond the senses of those who live on earth. The heirs can be seen; they eat, drink and dress. If the duty of respecting the will of the dead were only ethical relative to the dead, it would nevertheless be jural relative to the living who, in virtue of that ethical duty, are called to succeed; that right is jural whose infraction harms a person's ownership.(377) But those named as successors already consider themselves in the place of the dead testator and intend through natural affection to be substituted for this person, holding the same bonds of ownership as he held. This natural affection and expectation establish the right of ownership which, as we endlessly repeat, has its root always in affection.(378)

1389. It may be objected that heirs cannot have this feeling if the contents of the will have been kept hidden from them, nor be owners of the bequeathed estate until they have accepted the inheritance. My reply is that the will of the testator confers on the heirs the right 1. to know the will; 2. to accept it if they wish to do so. Thus, they would be harmed in their rights if anyone wished to conceal the will from them or occupy the inheritance before they declared their non-acceptance of it.

1390. As we have said, there are rights ad rem which are acquired without need for acceptance or consent. The right to give and deny acceptance is one of these rights.

1391. I would be offended jurally if a donation made me were concealed to prevent my accepting it. Anyone doing this would steal what was mine in the sense that he would impede me from making my own that which I have the right to appropriate before anyone else does (jural freedom). The same would be true if a testamentary disposition were hidden from me or a legacy withheld from me. The inheritance must be made known to the named heir, and once made known, restored as soon as he claims it. If it is not restored, he can vindicate it forcefully.

1392. The matter becomes even more clear if we consider that the virtual consent to the acceptance of an inheritance must be presumed in accordance with natural equity. `In the natural act by which human beings desire what is good they virtually accept all favourable conditions; such acceptance must therefore be presumed unless the contrary is proved.'

1393. No presumption is more reasonable and fairer than this; and even presumption of consent, when reason indicates this, is a jural duty whenever the contrary would place in danger the right or substance of another person. As we have said, and must repeat, moral duty is always jural if it `can be the cause of disuniting our fellow human beings from that which is united to them with the feeling of ownership.'

1394. Does the right to make a will, which we have defended in the preceding pages, still hold even to the detriment of heirs who would naturally succeed? This is a serious question that needs to be dealt with separately. In fact, it seems to me that the confusion of ideas often apparent in authors on natural Right when they discuss testaments depends on their failure to distinguish this question from the preceding one.

1395. Baroli writes: `In right, testaments have been given and must be given precedence over hereditary succession through intestacy because they are founded solely on the presumed will of the deceased.' (379) What we have said so far shows that in the case of intestacy succession receives its value not from the presumed will of the deceased, but from natural human feeling. Consequently, this kind of succession is proper to natural Right and is prior chronologically to testaments which are acts of will. History confirms what reason indicates in this matter.

1396. As long as only one family existed on earth, the abundance around them together with their few natural needs prevented their feeling the necessity of separate ownership. For the same reason, testaments had no place. Rather, successive generations succeeded one another in the ownership common to all.

1397. A century after the Flood, however, when the number of human beings had greatly increased, families and their ownership, especially their land ownership, had to be divided. The Bible speaks about this as taking place under Peleg, who lived to the age of 239. It would seem that the construction of the tower of Babel, which preceded the division of the families, began when Peleg was 14 years old. The division, decided upon by others, was perhaps carried out in great part by this man.(380)

1398. It was natural, after families and ownership had been divided, that each family would think of itself, not of others. It was also natural for fathers, when they began to make wills, to limit the division of goods to their own children and other members of the house without leaving anything to other families. In fact, remotest antiquity provides no example of goods being left to another family. As time went on, such dispositions came substantially to follow natural succession, which it further helped to strengthen.

1399. It was clearly recognised that fathers had the right to send away from the house one or more members of the family. In this case, the person who left lost the right to inherit and formed a new family. This happened not only in the case of daughters who were given in marriage, but also with male children and any other member of the house. Thus, Abraham sent away Agar and Ismael. Jacob himself left Isaac's family, and was totally deprived of the paternal estate which fell to the hands of Esau, who had remained at home. All Jacob's sons inherited, however, because they were all at home at the death of their father, who in making his will mentioned Joseph in particular, adopting his two sons as his own and assigning them an equal share with his very own sons. As we said, there is no example of any inheritance leaving a house. Natural succession was substantially maintained.

1400. This principle explains almost all ancient legislation about succession. The laws were intended to preserve natural succession in its substantial part in so far as `the members of a family should succeed to the estate of the same family', that is, `patrimony was not to pass from one family to another.' Everything differing from this principle was introduced later by civil law, and as an exception.

1401. As we know, Hebrew laws took great care to ensure that every tribe and every family should retain the same portion of land assigned to it in the first division carried out when Palestine was conquered. No one could sell or in any way transfer to others the full dominion of the lands belonging to his own family.(381) The land always had to be recoverable; if it was not bought back before, it was returned to the first owners not later than every 50th year. Daughters who inherited had to marry a man of their own tribe so that the inheritance would not be lost to the tribe. The brother of a man who died without leaving children had to marry the widow and consider any children he might have from her as successors to his brother, whose family thus continued to exist as part of the feeling amongst the living, and before the law.(382)

1402. The first division of land carried out by the Hebrew conquerors of Palestine and the laws they established for preserving the division as far as humanly possible are to be found in all the conquests of ancient colonies which entailed the expulsion of the former inhabitants and the establishment of a new people.(383)
The Carthaginians, who could have been the Canaanites defeated by Josuah, had similar laws. Phales, their legislator, wished especially to establish and preserve equality amongst family patrimonies.(384) The Locri, like the Hebrews, were also forbidden to sell ancestral possessions. This was intended, says Aristotle, `to preserve ancient heritages'.(385) It is said that Oxylus, king of Elis, promulgated the same law. When the Dorians took possession of Laconica, they divided the land into equal portions, as the Hebrews did with Palestine; Plato called Sparta fortunate because it was able to establish a certain equality amongst the patrimonies.(386)

1403. Aristotle, however, considers Spartan legislation unfavourably because it did not attempt to maintain the equality which had been established. According to him, the cause of distortion of the equality introduced into ownership was that

1404. The laws of Sparta did not change after the time of Aristotle. The law of Epitadeus permitted everyone to will their fields to people indiscriminately, or to donate them inter vivos.(388) As a result, riches accumulated in a few families so that the 700 families who possessed land in Lacedaemon had fallen to only 100 at the time of Agis III.(389)
The Thebans also had laws (the work of Philolaus of Corinth) dedicated to preserving a certain number of inheritances. Aristotle notes, however, that this legislator did nothing to remove inequality in patrimonies.(390) The inhabitants of Calcide were provided by king Andradama with laws regulating heritages.(391) The ancient laws of Athens did not permit citizens to make wills, but preserved natural succession in all its vigour. Solon later permitted it, but only to persons who had no children.(392) This shows that the legislator did not believe that one could or should overthrow the order of natural succession in the case of children.
The laws regulating succession in Rome contained the same spirit, and were as far as possible directed to defend natural succession against free choice by testators.

1405. Montesquieu notes that these laws sprang from the division of lands carried out by Romulus and his companions.(393) This is precisely what we have observed in the various oriental and Greek legislations that we have glimpsed so far. He says (L'Esprit des Lois):

1406. All this is true. We differ from Montesquieu only in the point of view from which we regard the laws regulating succession.(398) Montesquieu stops at the division of lands, which he considers as a merely civil law, and concludes that the order of succession amongst the Romans was simply the consequence of a civil law.(399) Our own view is that we should not confine ourselves to what the Romans decided about succession, but consider the substantial uniformity and similar tendency found in all previous legislations. It is true that we find land divided everywhere, but we should go beyond this and not take it as the first reason for laws about succession. We have to arrive at a more elevated principle which explains both the division of land and the laws of succession. This principle is neither political nor civil, but natural; it is the principle of `separation between families, and the uni ty of each family. Land is divided because families split up; laws were made with the intention of maintaining succession in families precisely because this is the natural order emanating from the unity of each family' society.

1407. Montesquieu, in taking the Roman division of land as his starting point and considering it as a merely civil law, encountered irreconcilable contradictions in Roman laws. On the one hand, we have the laws already mentioned which were intended to maintain ownership in families, and on the other, ample power to make wills in favour of any citizen, even outside the family. Such contradictions vanish in face of our principle of the natural constitution of the family. If succession is intestate, it follows naturally the thread of generations; if it is the result of a will, it must be as extensive as the concept of patria potestas. The principle governing the division of families gave rise to laws about intestate succession which are intended to restrict every family within its own limits and conserve its goods; the principle of the unity of every family as dependent upon the unity and full power of its head gave rise to the laws that allowed the head to make h is will freely.

1408. It was an established principle of Roman legislation that anyone subject to the power of another was unable to make a will. Power over a person involved power or dominion over the things belonging to that person. As a result, wills by children still living under their fathers' power were not permitted.(400)
It is clear from a complete study of ancient Roman legislation, which Montesquieu interpreted badly by subjecting it to his own system, that the right to make a last testament was a consequence of the Roman concept of patria potestas and derived, therefore, from natural Right. Civil and political Right added at first only a sanction and differing forms to natural Right.

1409. Because wills were formulated imperatively, Montesquieu wished to deduce that wills were acts of political authority on the part of the people.(401) The contrary was, in fact, the case: it is clear that a testament, as the word indicates, was always held to express an act of will(402) and power on the part of the testator. It was not the people but the testator who used the imperative form in establishing his heir.

1410. When, therefore, a bond-servant was made an heir, it was understood that he was thereby free; the testament was always thought to transmit some authority and dominion from which the right of ownership flowed as a consequence.(403)

1411. The same principle explains the form of testaments per aes et libram [by money and weight], and phrases such as `selling the family' and `emancipation of the family', which were used to indicate the establishment of an heir. In other words, the testament made under this form was considered as an act by which a person sold his own family, that is, the power or dominion he had within his own family, and consequently ownership over all the goods pertaining to the family. This was called emancipation precisely because it was intended to free the family from one's own authority and make it pass to the authority of someone else.(404) Here, too, the right of ownership appears indivisibly joined to that of seigniory. `Testament', therefore, is an act of one's own natural power.

1412. Error will always result when legislation is judged on the basis of arguments which presuppose that the first customs and laws of nations are political or civil. This is not the case. The first laws of nations (with the exception of those imported from mature or ancient peoples) are founded in natural laws; they are never political or civil.
This obviously does not mean that such laws, dictated to primitive peoples by reason and nature, are of necessity always correct. They are in fact the expression of what, `according to the people, conforms to natural Right.' Consequently these laws follow the sometimes erroneous opinions of the people who form them, and depend in part upon their traditions. Nevertheless, these opinions are concerned with what is just and unjust considered in nature according to the power and development of minds, and the conditions of spirit which have such an influence on judgments passed by understanding.

At the beginning politics is involved only in so far as obvious, urgent necessity requires, and no further; free choice and civil foresight also play little part. In a word, the positive aspect of such laws is concerned with the words in which the opinion or custom is clothed; very few forms, modifications or cautions are introduced by civil and political prudence.

This prudence gradually intervenes more strongly as abuses manifest themselves; the desire to abolish all abuses, the presumptuous hope that this can be brought about by the multiplication of laws and dispositions, the open frivolity with which the legislature thinks it can obliterate the primitive traces of nature without causing harm (the interests of special classes who have reached power and form laws for their own benefit are not considered here) as time goes on, all these causes act together to increase deviations from rational Right within codes of law. Dispositions pile up one upon another which may not be totally arbitrary, but are certainly the fruit of false human prudence rather than the wisdom of nature. In the end, the natural element, constantly decreasing, is rendered almost invisible, indiscernible and weighed down under the burden of the commandments of the infallible, supremely wise power of human legislators.(405)

1413. But leaving this aside for now, we shall offer only a few examples which serve to illustrate our point. They show how political and civil laws in the proper sense of the phrase are gradually introduced amongst nations which in their customs and written laws originally followed laws believed to be in conformity with rational Right.

Naturally enough, patria potestas was of overwhelming importance in the opinion of the Romans. Fathers could dispose even of their children's life. For this very reason, political laws limited themselves to regulating relationships between families which had to be bonded into civil society itself. These laws did not, however, affect the internal constitution of the family. Inside the house, the father was everything, in accord with what he was thought to be by nature. In such a state of legislation, the offspring ceased to fall under the patria potestas only through an act on the part of the father. In fact, to show that the father was as much owner of the child as he was of everything else he possessed, the child was emancipated under the form of sale; and to show that the child was the father's property even more strictly than other things were, this sale was repeated three times. Emancipation through the will of the father was, therefore, the primitive law, entirely conformed to natural Right as it was understood at the time.(406)

If we want to see what happened as civil and political laws succeeded one another, it is sufficient to note how emancipation was brought about in many different ways: for example, through imperial rescript,(407) through privileges attached to great dignities such as the patriciate,(408) by judges and magistrates(409) these were all political and civil laws which followed upon the primitive, natural law of emancipation.

1414. The same is to be said about the laws regulating wills. Such laws are natural in the first instance; later they became political and civil.

1415. At this point, Montesquieu may object that the first form of testaments amongst the Romans was that made at gatherings of the people (comitiis calatis, as they said). This, however, does not mean that wills were made by an act of political authority. On the contrary, this form of testament expresses, I think, the true nature of testament according to the natural law, for which a last testament is neither an act of public authority nor even a contract. It is an act of will on the part of a testator; and it is an authoritative act of will in so far as the testator possesses dominion and ownership. A master, an owner, can make laws about his own seigniory and about what belongs to him.

This natural principle was accepted by the ancient Romans; it followed that the testator was in charge. A will made in favour of his children, or descendants, or servants had to be accepted by them, because they were subject to his power. Such heirs were, therefore, called necessary heirs.(410) If on the other hand the heir was not subject to the power of the testator, the latter could not oblige the named heir (the extraneous heir, as he was called) to accept the inheritance. If, however, he did accept the inheritance, he came under the law of the testator and was obliged to carry out his dispositions. Whatever happened, the will of the testator was acknowledged as something to be respected, as is the will of any owner when he makes use of what belongs to him. In this sense, such a will is a law for all mankind.(411)

The Roman people, when gathered in their assemblies, carried out two apparently opposite functions, that of receiving the law and that of confirming it. The people received the law which the testator promulgated in the assembly and gave it their public testimony;(412) at the same time, they took it upon themselves to maintain, defend and sanction this law with their own power. Receiving the law was proper to all human beings considered individually and in the state of nature; guaranteeing and defending it physically was, even when individuals found themselves in the state of nature, proper to an assembly which acknowledged right and justice in what had been resolved. But sanctioning it as public, inviolable law was a political element added by an assembly already bound together by social ties.

1416. The testament made during assemblies of the Roman people and the testament per aes et libram are, therefore, two forms which show the concept of testament the Romans instituted for themselves according to the principles of rational Right. Other forms of testament differ from the first (which consisted in a testament made in the presence of the people) only in the manner of their promulgation. Because assemblies of the Roman people were held only twice a year, it was not always possible for testaments to be declared so publicly and solemnly as on those occasions. The promulgation of the testator's will was, therefore, rendered easier by the need for a smaller assembly and a lesser number of witnesses.

First, soldiers leaving for war were allowed to testify in the presence of their companions; this was called a will in procinctu. Later, praetors allowed wills in the presence of seven witnesses who had to put their signature to the act recording the testament. Later still, civil right was content with the presence of seven witnesses, without seal or signature [App., no. 9]. Finally, the imperial Constitutions required the testator and witnesses to sign, and either testator or witnesses to write the name of the heir. All these later dispositions certainly pertain to positive Right, that is, to praetorian edict, to civil and imperial right, as Justinian expressly declares.(413)

1417. The Voconian law, which deprived women of the right to inherit in order to curb effectively the luxury and influence they had attained, pertains to political Right. It was in part one of the laws dealing with expenditure, and as such vigorously defended by Cato the Elder.(414)

1418. The difference between civil and political laws is this. Civil laws are not normally opposed to natural law, but clothe it with formalities to protect it from fraud. However, when the formalities grow too numerous, they no longer attain the end in view. Natural laws become submerged in formalities with the result that acts which would be totally valid in natural law are now invalidated through lack of one or other of the formalities which have been positively commanded.

1419. Political laws on the contrary often contradict natural laws not only indirectly and by accident as, for example, when legislators lack foresight or act against their own intention, but directly. Montesquieu himself affirms this in the case of the Voconian law.(415)

1420. As a result, people are always more eager and ingenious in avoiding political laws than merely civil laws. And sooner or later, they almost always succeed. This seems to have been the case with the Voconian law which was easily avoided by not having one's name inserted on the register, or by not including in the census those properties which persons wished to leave to daughters.(416)

1421. When political law opposed to nature comes to be frequently avoided by human nature's own cunning, the law undergoes another slow, corroding action dependent upon interpretation by legal practitioners. Epikeia and equity on the part of magistrates and judges then intervenes to weaken political law; these functions of jural reason eventually amend the law in a way unknown to public consciousness. Finally, if the nation is capable of being healed, the legislative power itself undertakes the unanimously desired correction of the law until everyone realises that correction is useless. At this point, it becomes obvious that the law, contrary to nature, has to be abrogated, and another put in its place in order to re-establish nature. The legislator who arrives at this final point congratulates himself on having remedied the crudity or harshness of his ancient predecessors and, as rights are restored to humanity, attributes to himself the painstaking work prope r to humanity. And this is indeed the history of the Voconian law.

1422. The word `registered' used by this law was soon interpreted as referring to a person having goods which had been registered, rather than to a person listed on the register of citizens. According to Cicero, the praetors favoured those who had chosen to elude the law in this way.(417) Then the legislators began first to attack the law indirectly, as did Augustus for example, by the institution of fidei-commissa.(418) This was followed by a partial, but direct attack from the Julian and Papian laws,(419) and from the Tertullian(420) and Orphitian(421) decrees. Finally, the Voconian law was totally eliminated by the reform under Justinian who was happy to announce, with a certain degree of truth, that he had purged Roman legislation of many difficulties, and brough t it back to nature.(422)

1423. We must now draw together the threads of our argument. We said that the natural law constitutes the primitive fount of positive laws; the older these laws, the more they retain of the characteristics of natural Right. Time passes, and this Right is gradually modified by civil and political prudence as the number of dispositions increases. People thus withdraw further from their natural state and eventually find themselves in very distressing circumstances. Nature itself, however, rebels against these repugnant conditions and frees itself from them either through peaceful reform (if legislators act when need arises) or violent reform (if the people undertake the work).

Again, we said that if we apply this principle to succession, we do indeed find both natural succession and succession established by the free choice of the testator. Primitive legislations, therefore, had first to determine natural succession, by ensuring either that it took place, or that is was not unduly disturbed. This is in fact, without any exception, the spirit of all ancient legislations about inheritance. Nevertheless, as we saw, legislators recognised the power and the authority of the will of the person who made the testament, which they conceived not as an act of political or civil law, but as a natural act on the part of the will of the testator and an exercise of his right of ownership.

We showed that the first political and civil laws simply sanctioned and guaranteed such acts of will which it required to be public. Sometimes this was done in the presence of the sovereign authority of the people, as at Rome; sometimes in the presence of a certain number of witnesses and furnished with other precautions which, in case of need, would provide testaments with the vigour they required to attain their desired effect. Such acts of will were not considered as contracts, except in the case of donations inter vivos or of successory pacts such as that carried out by the Romans per aes et libram, none of which was a true testament. A testament was considered a private law, which imposed on all and sundry the obligation not to occupy the estate left by a deceased person; it gave the jus ad rem only to the heir. If the heir was able to accept the testator's law, he was also obliged by it to accept ownership and enter into possession.

We concluded therefore that a true testament was not considered a donation (it differed from a legacy which was expressly called a donation)(423), but presupposed the establishment of an heir who had to carry out the legacy;(424) the testament was not a bilateral, but a unilateral act whose efficacy was found to reside solely in the will of the testator.(425)

1424. Natural succession and the force of the testator's will were, therefore, the two elements which attempted to preserve and reconcile all legislations. Our next step is to see the extent to which the testator's will can derogate from natural succession, and the extent to which it can not.

1425. We have distinguished three kinds of natural heirs:
1. those who live in a family which has its own natural head, but have their own peculia;
2. those who live in a family, but have no peculia of their own;
3. separated relatives, to the degree determined by the relationship of feeling in force amongst families still in the state of nature.

1426. I call peculia those goods which a member of a family would possess exclusively under a good title if it were not necessary for every ownership entering a family to devolve on the head of the family. The member furnished with a title making him owner of goods has the ownership of these goods relative to everyone else except the natural head of the family [App., no. 10].

1427. I said that the natural head of the family can make use of all the goods of the family for as long as he lives, and consume then as he pleases, provided he does this reasonably. But he cannot make a will about peculia because at his death there is already a title of ownership in favour of the member whose peculium it is. This member, as owner of the peculium relative to all other human beings and to the other members of the same family, now becomes the complete owner through the act of cessation on the part of the natural head of the family.

1428. Consequently, whoever steals the peculium commits an injustice not only towards the head of the house as representative of all the family, but also towards the relative owner of the peculium who has the right to use in his own name forceful means to gain restitution.

1429. The natural principle about peculia is present deep within Roman legislation although associated and clothed with positive dispositions. The more ancient laws started from the principle that everything acquired by a child or servant was acquired by his parents or his masters. An exception was then made first for the peculium castrense, and secondly for the peculium quasi-castrense. Finally Justinian recognised relative ownership of the children with regard to all the goods which came to them not from their father or from the goods of their father, but from elsewhere (bona adventitia). He decided that the father should have the usufruct, but not the ownership of such goods.(426)

1430. This disposition contains one element pertaining to the law of nature, and another pertaining to the positive law. In accordance with the natural element, the offspring has relative ownership during the father's lifetime, and full ownership after his death; in accordance with the positive element, which is dependent upon civil prudence, the living father is deprived of full ownership, and left with only the usufruct. This is to prevent the father's violating the relative ownership of the offspring by disposing of it unreasonably.(427)

1431. My opinion is that according to natural law, the father (or more generally the natural head of the house) is full owner and, as such, can during his lifetime dispose even of the peculia. But this law makes him the full owner provided he uses this ownership reasonably.

The positive legislator cannot, or better does not see how to take and determine this natural limit in order to render it effective. To preserve it, therefore, he takes ownership from the father and leaves him only usufruct. This is the way in which the human legislator goes about his work. Our study, however, has only rational Right as its object. We have to restrict ourselves to determining what is meant by reasonableness relative to the disposition made by the head of the house about the goods he possesses and administers.

1432. The head of the household, the full owner, is therefore the competent judge of the reasonable use he makes of what is his own. No other judgment is valid against the competent judge except that which is formed with the utmost consideration and maturity, and gives full certainty to the spirit (cf. 611, 612). Neither the family nor any of its members can oppose the use of the family-substance made by the head of thehouse unless there is complete certainty that he is consuming it unreasonably.

1433. Such unreasonableness in using up domestic resources is known when there is proof either
1. that he uses them immorally, for immoral and guilty purposes, or
2. he uses them stupidly, that is, aimlessly (in this case he is called a wastrel), or
3. he uses them capriciously by depriving the family of necessary sustenance or the children of education in order to satisfy some frivolous, superfluous purpose.

1434. The unreasonable use of the family substance (a use to which the owner has no right) consists in these three abuses. Such abuse gives the co-owning, oppressed family, or whoever acts on their behalf,(428) a just title for effectively opposing the head of the house in the most peaceful, least violent way.

1435. But if these abuses are set aside, the father, or the mother in his place, can dispose during his lifetime of all that the family possesses, not only for the family's immediate good, but also in the exercise of beneficence and any moral virtue or decent and useful end whatsoever. But in death he cannot dispose of the peculia because those who possess the title of ownership, whose effectiveness remains suspended by the authority of the parent, are already owners. The father cannot attribute to others the substance which, at his passing, already has a master.(429)

1436. Equally, a member of the family who has a peculium cannot leave it in a will during the life of a predecessor in the direct line, in whose power and family he resides, unless he has descendants. If he dies, his peculium, now naturally free, falls to the head of the house.

1437. The association or non-association of members in a natural family does not depend simply upon their being united physically, but on the power of the father, or of some other person over them in the direct line, who governs them and administers the common patrimony.(430)

1438. Although descendants in the direct line are always dependent upon the predecessors who authored them, they cease to be members of the same family, strictly speaking, when they form another family and no longer depend upon the predecessors as governors of the family and dispensers of its ownership. In this case, they depend upon the predecessors simply as authors of their life.(431)

1439. The predecessor in the direct line may have a reasonable cause for depriving a descendant, who is with him at home, of all or part of the inheritance. If so, he has the right to do it.(432) But if there were no cause, he would seem to violate the law of nature by doing this.(433)

1440. A reasonable cause can only be one of the two following:
1. some grave fault on the part of the children or other descendants which merits such a punishment; or
2. the exercise by the father of some great act of virtue such as gratitude willingly shown towards a friend and benefactor of the house in reduced circumstances who can be recompensed by a legacy or by part of the inheritance. Another example would be public beneficence, which draws a person to leave something for works of general assistance, and so on.

1441. But only the first of these two causes would be sufficient to authorise the parent or predecessor in the direct line to deprive the offspring of the entire inheritance, except perhaps for the part needed for their maintenance or education.

1442. If on the other hand the offspring had sufficient peculia, the father is free to dispose in his will of whatever is his own for either of the two causes we have indicated.

1443. It would seem that the father is, according to natural Right, entirely free to prefer one child in preference to another provided he does so in such a way that the necessities of life are not withheld from anyone without fault, and that there is a good reason for acting in this way.

1444. Nevertheless the testator cannot invert the order of personal power. A grandfather can make a grandson his heir, but cannot deprive the grandson's father of the full ownership of such an inheritance, which thus becomes the peculium of his child.

1445. The substance of the question is left intact whether the inheritance passes directly to the heir required by the law of nature or by means of a trustee, provided the fidei-commissa is put into effect, and is required by some necessity or utility.

1446. The principles we have explained show that the perpetual bonds placed upon family resources, unlimited fidei-commissa, and the total right to inheritance of the nearest of kin are the invention of political and civil jurists. Such laws do not result from natural Right, but are opposed to it because harmful to the personal authority of the head of the family.

1447. Let us imagine that a testator obliges his descendants to hand on some possession from first-born to first-born without their being able to alienate it. In doing so, he reduces the fullness of their patria potestas which requires that during the father's lifetime he may dispose as he pleases of all the goods of the family itself, and even of his children's peculia.(434)

1448. It is true that the predecessor in the direct line can make successory agreements with his linear descendant, but in this case the bond arises from the free will of the latter, and is confined to him. The recommendations left by the predecessor to his linear descendants would not constitute jural duties. Nevertheless, civil laws should be careful not to place the least impediment to their spontaneous execution on the part of the successors.

1449. The will of the testator is entirely free relative to kindred who are separated from the family and thus no longer hold any co-ownership. Moral duty will indeed require the testator to follow what is suitable, but separated kindred can never reasonably infringe his dispositions.

1450. According to the principles previously established, the human person is an inviolable activity. Persons can enjoy and suffer. Whoever makes a person suffer when there is no just cause to do so, violates and offends that person.

1451. Human beings enjoy:
1. what is joined to them by nature;
2. their own activity;
3. what they join to themselves by their own activity.

No one can detach from human beings, without injuring them, what they have joined to themselves with a jural bond; no one can directly impede the activity of human beings if this activity does not attempt to detach what others have joined to self by means of a jural bond, nor attempt to cause others suffering.

1452. The primordial rights of human beings are the faculty of enjoying that which is united to persons by nature, and the faculty of joining to themselves that which is not joined to others (cf. 246-262). Activity is necessary both for enjoying and for doing. Right, therefore, which relative to its form is a moral activity, supposes prior to itself a real activity or faculty for acquiring and disposing of the object of right.

It would be madness to assert that anyone has the right to do those things which are and always will be completely outside the sphere of the capacity of his nature; it would be insane for anyone to say that he had the right to carry on his shoulders a weight one hundred thousand times greater than his strength, or that he had a right to walk on air, or dance on the tip of a church spire.

1453. But if a right, a faculty, cannot be conceived without some real faculty, it is not however necessary that such a faculty extend as far as the moral faculty, nor that it be a direct faculty. It is sufficient for it to be a real, virtual faculty. This needs explaining.

Relative to enjoyment, although I may not have the physical faculty for drinking all the wine in my cellar, or eating all the grain in my barn, my right still extends to all the wine and all the grain. I can in fact consume by means of others the part I find impossible to consume for myself. I have the moral-physical faculty to have these foods used and consumed. And that is sufficient for me to possess the right of ownership over them.

Relative to doing, if I do not have the direct physical power to do one particular thing, but do have the power to do another, and with this done, the power to do another and so on until I arrive at the last thing, which is what I set out to do in the first place, I can justly say that I have the faculty for doing the last thing of all, although my power to achieve it is not direct. This chain of faculties or varied length of means, is present in practically all operations of some importance. I cannot, for instance, build a house in the bat of an eyelid; I have to pass through a long series of operations which gradually lead to the completion of the house or even of a palace. I can, therefore, say that I have the physical power to do this, even though the faculty is not direct. An indirect physical faculty is sufficient to constitute the matter of rights.

1454. Two physical powers correspond to the two primordial rights: the power to enjoy what is joined(435) to my person (ownership); and the power of joining to my person other things which are free, in other words of making them my own (freedom).(436)

1455. Both these powers can be direct or indirect. I have the direct physical power of enjoyment if I find the pleasure I am seeking in an operation which I myself do. I have the direct physical power of making something my own if I can unite anything to myself by the bond of ownership. On the other hand, I have only indirect power to enjoy something or make it my own if, in order to reach the enjoyment I seek or make something my own, I have to perform successive operations or make others do them.

1456. The state of my rights can, therefore, be altered in two ways: either relative to the matter of right or relative to the form of right. The matter of right is the physical activity or power; and the form is the moral faculty or power.

1457. The physical power of right varies
1. according to the aim to which the physical power is referred (making something one's own, or enjoyment);
2. according to the nature of the physical power itself (direct or indirect, more or less indirect, in a variety of ways and degrees).

1458. Therefore, in order to say that a right passes from one subject to another without undergoing any alteration (in other words, the only modification is the change of subject), we have to be able to affirm that nothing, either in the physical power or the moral power, changes in the right.

1459. We say `in the right' because we are consistently dealing with the power which constitutes right, not with a physical power which can vary accidently in the persons forming the subjects of rights. The physical power accidentally adhering to persons is relative to the exercise of right, not to the right itself in its substance. Thus, if I sell my horse, the buyer acquires through the sale a right over the horse exactly equal to the right that I had. It is of no consequence that I can ride the horse because I am well, and that he cannot because he is sick. My physical power, as inherent in the right, has passed to him; he has the horse in his possession and can use it as I used it, even though he is forced to exercise this faculty by means of others.

If, however, I sell my horse, receive the price for it, but do not consign it to the buyer, he does not have the same right over it that I had. Before being able to make use of the horse as I did, he needs another fact, that is, he has to enter into possession of his horse. In this case, his physical faculty differs from that which I had in using the animal. This difference is inherent to the state of the transmitted right, not accidental to the person. In other words, limitation of the physical power proceeds from the right, from the incomplete act of transmission, not from the conditions of the person to whom the right has passed.

1460. To be able to say that a right, in passing from one subject to another, has not undergone alteration, the same right, when found in the second subject, must be in the exact state in which it was found in the first. This applies both to the moral faculty and the physical faculty supposed by the right.

1461. If the act of transmission remains doubtful or defective in any way, the second subject will lack the full jural faculty present in the first. If the first subject had not only the right of ownership but also possession of the thing in question, and this possession is lacking in the second subject, it cannot be said that the transmitted right is the same as it was in the previous state.

1462. Hence contracts, by which an entire right passes from one subject to another, have to be put into effect in order that the right in question may be passed without alteration.

1463. There are, therefore, two species of contracts, one of which transmits rights from one person to another, but with certain alterations to the rights; the other transmits rights which remain unaltered, although they do undergo alteration during transmission and until transmission is complete.

1464. To discover which rights are transmitted from one person to another without alteration, we have to compare the state of the two persons before the beginning of the contract and after its fulfilment. The comparison will show that contracts which of their nature transmit rights without altering them are:
1. Amongst gratuitous contracts, simple donation which aims merely at passing the gift from one owner to another.
2. Amongst onerous contracts, barter and sale. Barter aims at passing something I own to the ownership of another, and something he owns to me; a sale also does this, but one of the parties, instead of passing some thing into the other's ownership, passes instead the money-value of what he receives.

1465. We need to note that not only rights, but their corresponding obligations are transmitted from one subject to another. First, it is clear that when a right is transmitted from one subject to another, the obligation to respect the right has also passed between the subjects: the person having the right prior to its transmission acquires the obligation to respect the same right in the person to whom he has transmitted it; the other person, who had the obligation, now acquires the right in exchange.

1466. Another change arises in the jural condition relative to all other persons. Previously, they had to pay the respect owed to the right to the subject originally possessing it; now, they are obliged to devote the same respect to the subject to whom the right has been transmitted.

1467. These changes in the subjects of the obligations correspond exactly with the changes in the subjects of the rights, and are their consequence. But we have to note that changes can arise in subjects of jural obligations without change in subjects of corresponding rights. In other words, changes in subjects of jural obligation may take place differently from changes in subjects of corresponding rights.

Mankind, for example, changes every time new people are born and old people die; subjects of obligation change, but there is no change in rights corresponding to them. All have to respect the rights of each so that as people are born and die, the number of subjects to be respected increases or decreases; but my rights, and those of every other person who is the object of such a duty, are not necessarily changed.

1468. We have spoken about rights relative to different persons; we have said that right is always a relationship in which the terms, that is, the person having the right and the person having the obligation, can change; we have said that rights can cease relative to one or several persons without their ceasing relative to every person or to other persons; and rights towards new persons can come into being in the same way. All this shows that subjects of obligations can and do change without difficulty, independently of change in the subjects of the rights corresponding to these obligations.

Notes

(370) We grant the necessity of simultaneous consent in contracts. We cannot in any way favour the opinion of certain modern authors who deny this.

(371) An incredibly deep impression is made upon peoples by long lasting legislation. As a result, positive legislation - up to the present, far more restrictive than rational Right - has also restricted intelligences which for a long time have been incapable of seeing anything legitimate and just outside the written law which, in turn, has served as the source of a debased rational Right. Although freer minds come to realise that it is now time to enlarge the boundaries of thought and destroy the barriers arbitrarily erected by ancient legislators around societies in order to defend them from danger, restricted legislations continue to exercise their secret influence on normal thinking and even on those who have realised what legislators have done, and seen how ancient laws have generated prejudiced opinions and errors. Blackstone is a case in point. No one was more persuaded of the defects inherent in Roman legislation and of its unhappy i nfluence on modern nations. Nevertheless, Blackstone himself was subject to its pressure. Unable to reduce testaments to natural contracts, he did not hesitate to declare that the right to make a will (along with the right to inherit) was simply an effect of positive law. Another contradiction in the same sense can be observed in his Commentaries on the Laws of England in which he acknowledges testatory acts as a universal institution and custom, but goes on to deny that wills are natural. It is almost as though he wanted a more certain sign than universality of place and time by which to recognise nature and human reason (Cf. Blackstone, t. 2, p. 312 ss., French ed.).

(372) `Haller ... notes the present sad condition of the writer on natural Right who is every day obliged to prove the most obvious elements of his science without ever being allowed to suppose certain principles as impregnable and universally accepted. Everything is doubted; everything is brought under attack. This scepticism and spirit of destruction has not spared what was universally admitted; it has dominated in recent times even in the sciences. As a result we now have to use the force of reason to uphold a principle which at other times was admitted of itself as an obvious truth.

`We must first reflect that the ordinary reason of the human race (the reason that judges about concrete things) is altogether opposed to the assertion that dispositions of last wills have no value without a positive law. The opposition between ordinary reason and this assertion must arouse serious doubt about the truth of the latter. Anyone claiming that hereditary succession is opposed to natural Right, or at least that it does not derive from, nor have its lawful foundation in natural Right but in civil-positive law, has to prove why it is present at all times and everywhere. No one in good faith can ignore this. But does not this show that it is founded in the natural law? This universality is indeed a shining confirmation of the dictate of ordinary reason relative to the matter in hand. It is impossible for positive legislators to have introduced it, and with it removed the pretended right of occupancy from others. Finally, why is it held in honour even amongst independent per sons who live without subjection to positive laws in the so-called state of nature, or extra-social state?' (Baroli, Diritto naturale privato e pubblico, §205).

(373) Not all displeasure caused to others is jural injury, but only that which consists in removing or attempting to remove from the person the thing he has united naturally to himself with the feeling of ownership (Cf. ER, 332-339, 360).

(374) Genovesi (Diceosina, vol. 2, f. 57) denies that donations mortis causa, testaments, legacies and succession in the case of intestacy are valid in primitive natural Right. He simply asserts that they are facts common to all nations. The reason for his claim is that the right of ownership springs from a right to use, which in its turn depends upon the needs of the present life. But this shows that he has not considered human nature in all its extension. Human nature's needs and exigencies, dependent upon its natural feelings, are not limited to the simple use of things. Ownership or dominion satisfies a deeper need, rooted in the essence of human beings.

This, I maintain, is the need to feel powerful, to feel one's own greatness and to feel in possession of an effective will. Moreover, because human beings have intelligence and affection, they draw close to their neighbours; they are made for friendship and society. And perhaps there is a secret bond uniting individuals of the same species more closely than we imagine (Cf. what we have said about human instinct in AMS, 683-686). It would be impossible to explain the miser's insatiable desire to accumulate rather than enjoy unless he considered dominion as a kind of means for satisfying his need of greatness. Again, by means of their affections, human beings do not acquire goods for themselves alone, but for all those whom they hold dear, relatives and friends alike. Their sense of ownership allows them to attribute these things not to themselves alone, but to all those who are joined to their person through affection, and outlive them. Genovesi's ideas would perhaps be correct if human beings were constrained by nature to withdraw within themselves. His teaching supposes that they are essentially egoists. It is, therefore, essentially sensistic because it sees in human beings only the senses and what is good for the senses, all of which pe rish with the body.

(375) Roman laws without exception acknowledge that the transference of goods according to the will of their owner is a principle which conforms with equity, that is, with natural justice. `Nothing is more fitting to NATURAL EQUITY than that the WILL of an owner should be ratified when he wishes to transfer what he has to someone else.' If Genovesi were correct in maintaining that the right of ownership comes from a right to use, how could he possibly explain the right to donate one's own goods? What is given away is clearly not used by oneself, but disposed for the use of others by the owner who deprives himself of its use.

(376) Nature itself suggested the sentiment expressed by Roman laws: `the heir forms a single person with the testator' (bk. 59, De R. J. et Nov. 48 pr.).

(377) We need to keep in mind that an ethical duty can give rise to a jural duty, and does so whenever the violation of an ethical duty causes harm to the feeling of ownership in another (Cf. ER, 275-292).

(378) Roman laws express this very well: `Account is to be taken of the AFFECTION of the possessor in questions about loss of possession' (bk 3, §6, ff. de acquiren. et amit. poss.). - `He has lost possession immediately if he HAS NOT WISHED to possess' (bk. 1, §4, ff. de acquir. et amitt. poss.; bk. 1 and 2, ff. pro derelicto). The same is substantially true in the case of acquisition, according to the known rule: `Things cease to be ours in exactly the same way as they are acquired' (bk. 1, ff. pro derelicto - R. Jur. Can., c. 1).

(379) Diritt. Nat. Priv. e Pubbl., Diritto Privato, §205.

(380) Scripture says that he was given the name of Peleg, which means division, because the land had been divided up in his days. `To Eber were born two sons: the name of the one was Peleg, for in his days the earth was divided' (1 Chron 1: 19). Why did he, rather than one of his contemporaries, bear this name unless he played a great part in carrying out the division?

(381) The usufruct was sold, for the years remaining until the jubilee year, but not the dominion (Cf. Lev 25).

(382) This law of Moses is somewhat similar to Solon's law at Athens which permitted an heiress to marry one of the near blood-relations of her impotent husband (Cf. Plutarch, Life of Solon).

(383) Aristotle notes that it was easy to establish equality amongst patrimonies when peoples were first constituted, but more difficult after they had been established. He suggests a curious remedy for the situation. According to him, the rich should be obliged to endow their daughters, but to marry daughters without dowries; the poor should receive as wives girls with dowries, but not give dowries when their own daughters married. - This great man had seen the difficulty we have mentioned (cf. 1293) (Polit., 2, c. 5).

(384) Aristotle. Polit., 5: 2.

(385) Ibid.

(386) - isthta tina thV ousiaV in Laws, 3. - Müller notes that the Spartans are called omoioi, that is, equals, as though it were their characteristic.

(387) Polit., 2: 7.

(388) It seems, according to Plutarch, that this law of Epitadeus was formulated after the time of Lysander. However, it could not have been totally new in Sparta, and may simply have confirmed an existing custom which had arisen despite the laws of Lycurgus. And it would seem reasonable for people to have complained about it after they have seen the damage caused by this freedom to hand over and accumulate patrimonies. The possessors won, however, and succeeded in sanctioning through law what they had previously done through abusive custom.

(389) However, as Cantù notes, the loss of Messenia, which the Spartans suffered after the battle of Leuctra, must have contributed considerably to lowering the number of those holding possessions. - Aristotle had already foreseen this in a certain way. He reproves the admission and provision on behalf of the commune of a great number of new men in an attempt to make up for the scarcity of population (he may be alluding to the distribution of lands carried out especially after the conquest of Messenia at the time of the king, Polidorus). `It would have been better', he says, `to fill the city with men by satisfying passion.' (Polit., 2: 7).

(390) Polit., 2: 9.

(391) Ibid. - We note that klhronomoV, `heir', presupposes a division in equal shares drawn by lot amongst siblings. The word comes from klhroV and nemw. It was used, therefore, to indicate natural heirs. The Romans used haeres, or haeres suus, for the same purpose.

(392) `Solon acquired a good deal of credit for his law about wills. Previously, testaments had been forbidden. The wealth and everything of value possessed by the deceased had to remain in his family. Solon, however, allowed anyone without children to dispose of his estate and give it to whomsoever he pleased. He put friendship before relationships and favour before necessity. In this way riches were totally at the disposition of the will of their possessors' (Plutarch, Life of Solon, from Pompei's translation).

(393) Dionys. of Halicarnassus, 2: 3. - Plutarch, Comparison between Numa and Lycurgus.

(394) `But if anyone dies intestate, without any HEIR of his own, the next in the family line will be considered as the AGNATE' (Fragment of the XII Tables, in Ulpian, tit. ult.).

(395) Cf. Fragments of Ulpian, §8, tit. 26. - Instit., tit. 3, in proem. ad S. C. Tertullianum.

(396) Paul, bk. 4, De Sentent., tit. 8, §3. - This shows that although the Romans had a clear idea of paternal authority, they nevertheless lacked the right idea of indissoluble union in marriage. But this is true of all peoples, not only the Romans. It was Christianity which restored honour, dignity and force to the weak sex, and reconciled the two beings, man and woman, who although made for one another, had been separated through the discord resulting from overwhelming force on the one hand, and baseness of spirit on the other. Christianity made a single being of the two, restored them to their original state and made them happy in their unity. This was how Christ brought about the restoration of marriage, after which the possessions of each of the spouses were necessarily the possessions of them both, and one naturally succeeded the other.

(397) This law, and others in the XII Tables which restricted natural succession in the female line, made force the arbiter of weakness. In Christian times Justinian declared these laws to be against nature. He says: `The old law favoured descendants on the male side by allowing succession only to male or female grandchildren who descended on the male side, and by giving them precedence over the law of agnates. The daughter's grandchildren, and the children of female grandchildren, were numbered amongst cognates and called (when there was a question of succession to the grandfather, or the maternal grandfather, or the grandmother or maternal grandmother on the paternal or maternal side) to succeed by law after the line of agnates. But wealthy princes did not allow such an injury AGAINST NATURE to continue without emendation, etc (Instit. Just., bk. 3, t. 1, 15 ss.).

(398) Montesquieu claims that Roman laws about succession were not numbered amongst those which the legates of the Greek cities brought to Rome because, as he says, `they were a natural consequence of the constitution and derived from the division of lands.' But what we have said about oriental and Greek laws shows rather that the constitution itself, the very division of lands amongst families, was an imitation of what had first been done in Greece, or rather wherever colonisation had taken place, and even throughout the whole world, beginning with Peleg and continuing through Indian and Egyptian castes down to the laws of Moses, the Phoenicians, the Carthaginians and the Greeks. It may indeed be that the division of lands carried out by Romulus preserved some faint consignment or some suggestion dependent upon the nature of things. Nevertheless, it is certain that there is a great likeness between this division and divisions of land made b y other peoples before Romulus, and between the Roman laws of succession and those of more ancient peoples. And we have to remember that, according to Dionysius of Halicarnassus, the greater part of the Latin cities were Spartan colonies, and that the Decemviri went in search of laws not only in Greece, but throughout the various cities of Italy.

(399) I think that Montesquieu is mistaken when he writes: `The law of nature requires fathers to nourish their children, but does not oblige them to make them their heirs. The division of goods, laws about this division, succession after the death of a person holding a portion of goods, can be regulated only by society and consequently by political and civil laws' (L'Esprit des Lois, bk. 26, c. 6). But according to the order of ideas occupancy carried out by single individuals precedes the division of lands. Ownership, the family, natural succession in the family, paternal authority which modifies natural succession: all these pre-exist political and civil laws. Civil, political dispositions can only follow and modify customs which have already been formed according to the light of reason and natural instinct.

(400) `Those subject to the rule of another have no right to make a will. Even if they are allowed to do so by their parents, such wills are invalid according to law (Inst. Just., bk. 2, tit. 12). The inability of fathers to allow their children to make wills would seem to have been a political decision. However, it is more truly a consequence of the different notion, prevalent amongst the Romans, of patria potestas. It seemed contradictory to the Romans that a child could be subject to this power and still retain the faculty of making a will.

(401) `As I have said, wills were a law of the people. They had to be made with the force of an imperative as "direct commands"' (77).

(402) Ulpian defines a `will' as follows: `A testament is a just decision of will which a person wishes should come about after his death' (Digest., bk. 28, tit 1, leg. 1). The jurisconsult Sulpician falsely held that testamentum originated from mentis testatio. This etymology was inserted in Justinian's Institutes, where we read (bk. 2, tit. 10): `A testament is given that name because it testifies to the mind of a person.' A. Gellius is correct in finding fault with this etymology (bk. 6, c. 12) because `testament' is a manifestation and prolongation of testamen. Nevertheless, the false derivation of the word indicates the nature of the Romans' concept of a testament, and shows that they considered it AN AUTHORITATIVE ACT of the testator's will. And this is precisely the notion that natural Right gives of a testament.

(403) `According to the opinion of many, it was once lawful to establish justly (as heirs) one's own (bond-servants) who by that very fact received their freedom - the bond-servant who had been established as heir by his master was freed by the testament to become the heir desired by the testator' (Instit. Just., bk. 2, tit. 14). A later disposition of Roman law allowed a bond-servant remaining in servitude to inherit. But, as we shall see, he acquired only a certain relative ownership. In any case, this was a step towards the distinction between dominion over persons and ownership of things which the ancient Romans united very closely. It was also a step towards the acknowledgement of human dignity which was gradually gaining ground relative to bond-servants through the light shed by Christianity. The bond-servants to whom Justinian gave the right to inherit were already different from those to whom ancient laws had forbidden such a right, although the word `bond-servant' had been retained.

(404) According to Festus, `"emancipate" may be understood in two ways: as the condition of those who have ceased to fall under paternal right, and of those who are within the dominion of others. [Freedom] for both depends upon "emancipation".'

(405) Cf. SP, where I distinguished between a nation's early and later legislators, and between laws originating from the good state of nature at the beginning of societies, and laws destined to impede abuse in aging societies (bk. 3, c. 13).

(406) Before the formation of civil society, the patria potestas contained what was later to be civil power. At the origin of civil societies, therefore, laws respected fathers, whom they found in possession of such power, which was abrogated only a little at a time. Thus, when well understood, the distinction between the state of nature and the state of civil society is not a chimera, but an historic fact. It provides the necessary explanation on the one hand of the gradual development of nations, and on the other hand of the laws imposed upon them.

(407) `Emancipation came about in the first place through the ancient observance of law which was carried out through imaginary sales and appellant manumission, or by imperial rescript' (Instit. Just., bk 1, tit. 12).

(408) `According to our constitution, the great dignity of the patriciate, dependent upon imperial decisions, frees the son from patria potestas.' The reasoning behind this statement is as follows: `A father is allowed to liberate his son from his own power by way of emancipation. It is, therefore, even more proper that the imperial majesty should be able to free from the power of another the person who chose him as his father' (Instit. Just., bk 1, tit. 12).

(409) Instit. Just., bk. 1, tit. 12.

(410) `Necessary heirs are those who, in accordance with the laws of the XII Tables, are heirs whether they want to be or not, both in the case of intestacy or of a will' (Instit., bk. 2, tit. 19). The unity of the family was so great amongst the Romans, and the child considered to be so at one with his father, that (it was claimed) the child had to take on the person of the dying father and all his obligations. Money lenders, for example, lent not to the father alone, but to the family as a whole; and it was the family which was obliged in every way to restitution after the death of the father.

(411) In so far as it is imposed on others that they `should not occupy the inheritance, but leave it to be occupied by the heir.'

(412) The word testament itself, that is, testamen, comes from testor, which means I affirm, I profess, as well as I call or use witnesses. But both in affirming something and professing anything, and when calling others as witnesses, some kind of assembly is needed, or at least the presence of several people. Not only testaments, but sales contracts were done in public in antiquity, as we see from the story of Abraham when he bought the field with the double cave (Gen 23 [Douai]). The people served as witnesses for one another about the promulgation of the natural law which each person received and acknowledged. As a sale was an act of ownership carried out in public, so too was a testament amongst the Romans.

(413) `Gradually, as a result of custom and amendments of the Constitutions, civil and praetorian right began to merge. It was then established that seven witnesses should be present contemporaneously (this was the requirement of CIVIL RIGHT) and that seals should be placed on the testaments by the signature of the witnesses (this requirement was found both in the CONSTITUTIONS and in the PRAETORIAN EDICT). This right thus took on a THREEFOLD aspect: the witnesses, and their contemporary presence for the sake of the will, was due to civil right; the signatures of the testator and the witnesses depended upon the observance of the sacred constitutions; the seals and the number of witnesses sprang from the praetorian edict. And we have added in our constitution, to ensure the sincerity of the witnesses and avoid fraud, that the name of the heir should be expressed in writing by the testator or the witnesses' (Instit., bk. 2, tit. 10: 3, 4). Justinian continues to maintain that the heir is at one with the ancient `buyer of the family': `because he takes on the image, found in antiquity, of the buyer of the family' (bk. 2, tit. 10: 10).

(414) A. Gellius quotes a brief passage from Cato's speech (N. A. bk. 22, c. 6. - Cf. Epit. Titi Livii, bk. 41).

(415) `It is an unhappy part of the human condition that legislators are obliged to make laws which oppose natural feelings. Such is the case with the Voconian law. What happens is that legislators take more account of society than of the citizen, and more account of the citizen than the human being. The law sacrificed both the citizen and the human being; its only consideration was the republic' (L'Esprit des Lois, bk. 27). This is without doubt the wisdom claimed by political legislators. Their wisdom, however, is false because opposed to the greater wisdom of nature. The author of The Spirit of the Laws has a very poor understanding of this great truth. For the most part, natural justice is overshadowed for him by the false splendour of human cunning. He believes in the boldness characteristic of his century and the prostitution to which men of State subject themselves. How mankind suffers!

(416) It may be objected that all Roman citizens had to be registered. - Montesquieu thinks that in the Voconian law `registered' means inscribed in one of the five classes of the people, but not in the proletariat, the sixth class. - Perhaps the following observation could be added to Montesquieu's conjecture: not all goods were subject to registration, but only those pertaining to Italic right alone. Cf. Cicero, Pro Flacco, c. 32.

(417) In Verrem, 2.

(418) Instit. Just., bk. 2, tit. 23.

(419) These laws began to encourage marriages and the rearing of offspring.

(420) The law instigated by Ovidius Tertullus under the Emperor Hadrian (Cf. Instit. Just., bk. 3, tit. 3).

(421) The law instigated under the consuls Orphitius and Rufus (cf. Instit. Just., bk. 3, tit. 4).

(422) Cod., bk. 6, t. 55; 12. - Novell., 118, 127. - Instit., bk. 3, tit. 3.

(423) `Making a legacy before the heir has been established is useless. Testaments take their force from the establishment of an heir. Consequently the head and the foundation of the whole testament is the establishment of the heir.' (Inst., bk. 2, tit. 20: 34).

(424) `A legacy, therefore, is a DONATION left by a deceased person which has to be carried through by the heir' (bk. 3, tit. 2 , c. 20: 1).

(425) This is Justinian's starting principle; his laws are always aimed at supporting the will of the testator: `We desire the will of the deceased to be given more weight, and we favour their will rather than their words' (Inst. Just., bk. 2, tit. 20:2). `Following what has been written as a norm while spurning the will of the testator is, we think, opposed to what is civil' (ibid. 34). Declarations of this kind are constantly being made by Justinian.

(426) `At one time, whatever came to your children of either sex while they were still under the power of their parents, was acquired by their parents indifferently (with the exception of peculia castrensia). It belonged to the parents in such a way that they could give it, whether it belonged to a son or a daughter, to another child or to an outsider; they could also sell it, or indeed apply it in any way whatsoever. To us, this seems inhuman, and we have set forth a general constitution which will spare children and retain the dignity due to fathers. We have indeed decided that if anything has come to a child from its father, it is, according to ancient observance, acquired in its entirety by the parent. There can be no cause for envy if what came from the father should now revert to him. But if the child has acquired anything for himself in some other way, the usufruct of this is acquired by the father, while the dominion of it rem ains with the child. In this way, what the child has obtained through its work or good fortune will not pass to others to the child's detriment (Inst. Just., bk. 2, tit. 9: 1).

(427) According to the ancient Romans' concept of filiation, family members in direct line, ascendant or descendant, formed a single, undying person. In this way, all members of the family were together under an obligation to creditors. As time passed, this family solidarity appeared excessive, in accordance with a law governing the course of humanity, that is: `The individual element, first absorbed by the species, gradually emerges and asserts itself.' As a result, the praetors, who were responsible for so many deviations from the laws of the XII Tables, successively permitted offspring not to accept the paternal heritage when it was overburdened with debt. `They are called "necessary heirs" because the law of the XII Tables makes them heirs whether they like it or not, both in cases of intestacy and when a will has been left. But the praetor permitted those wishing to decline the inheritance to do so in order that the goods of the parent, rather than his own, should be seized by creditors.' (Inst. Just., bk. 2, tit. 19: 2). Equally it was permitted that a bond-servant should be established as the heir so that creditors should distrain the bond-servant's goods rather than the testator's (Inst. Just., bk. 2, tit. 19). As a result, the bond-servant could have ownership relative to everyone else, as far as the Romans were concerned, but not full ownership as long as he remained in servitude when he, too, was considered as belonging to the master.

(428) Civil society, if already instituted, has to undertake the defence of the family. The history of primitive nations shows that grown-up sons were called to govern the family with the father. This came about on the father's part because he naturally desired, and had to desire, to be helped in the government of the house by the wisdom of his sons, and wished to have them as witnesses to justify his administration. It came about on the part of the grown offspring because they wished to see some achievement of their own, and felt that they had the forces necessary to make their achievements prevail in the house. Daughters, who lacked such a force, remained in an inferior condition. We have an example of this amongst the Hebrews where the father invariably married off his daughters with the consent of their brothers (Gen 24: 50; 34: 5 ss.; 2 Sam 13: 20, 29). Giovanni Jahn, in his Archeologia biblica, defines betrothal am ongst the Hebrews as: `A pact between the father and the brothers german of the bride, and the father of the bridegroom.' Again: `In the betrothal were established not only the marriage but also the gifts which were to be given to the brothers german of the bride and the price of the bride which was to be presented to her father' (§153). Moreover, at the father's death the daughters themselves belonged to the inheritance of the brothers, who sold them as wives.

(429) According to natural Right, the patria potestas, springing from the title of generation, is the reason why the father disposes during life of the peculia (cf. 781-790). But this power cannot, as something personal, be transmitted as an inheritance. The same applies to the father's ownership of the peculia. Roman laws themselves, which gave fathers the right to sell their children and even put them to death, recognised that the patria potestas was personal and could not be handed on through testament. Hence `those who are under the patria potestas become sui juris at his death' (Inst. Just., bk. 1, tit. 12).

(430) The Romans, too, recognised this. Their laws prevented the loss of rights on the part of a person who was taken as a slave by the enemy. This was called the jus postliminium, and enabled the captured person to be considered as present: `Postliminium is a fiction that treats the person taken captive as though he were always in the city' (Inst. Just., bk. 1, tit. 12: 5).

(431) Thus the emancipated offspring themselves were called extraneous heirs by the Romans. `So our children also who are no longer under our power are considered as heirs established by and extraneous to us (Inst. Just., bk. 2, tit. 19: 3).

(432) Roman laws, too, declared inoperative any testament which disinherited the son without cause. `Often parents disinherit or omit their children from their wills without cause. Hence, we give leave for an action to be brought by children who complain that they themselves have been wrongfully disinherited or excluded. For instance, they might claim that those who drew up the will were not mentis compotes at that moment. This is said not because the testator was out of his mind, but because the will, although correctly made, did not result from THE DUTY OF PIETY' (Inst. Just., bk. 2, tit. 18). I wanted to offer this quotation here to show once more how Roman common sense founded right on moral obligation, as we do constantly. Another point to notice is that the same cause (the need for a valid reason if offspring were to be disinherited without injustice) impelled Roman laws to require that the disinherit ance be expressly declared in the will. If it was passed over in silence, the will was invalid. This was first required for male offspring alone, then required by the praetors for female offspring. They made an exception, however, for already emancipated offspring who did not form a single family with the father. `It is not necessary to establish or disinherit emancipated offspring by civil right because they are not HIS heirs (Inst. Just., bk. 2, tit. 13: 3). This shows how much force was attributed to co-ownership in the family society.

(433) Domat (Lois civiles, c. 11, §16) teaches that the obligation of fathers to leave their goods to their children pertains to natural law. According to Montesquieu fathers are obliged only to feed their children (L'Esprit des Lois, bk. 26, c. 9).

(434) The reason for believing that the head of a family can bind all his descendants in their use of the goods he leaves is the patria potestas, which first presents itself to the human spirit as something absolute and unlimited. We have seen this occur relative to ownership (cf. 921-953). Such persuasion arises in the parent or owner because persons are from the beginning totally intent upon themselves alone and place themselves at the centre of everything. As a result, persons consider all that is within their power as their very own. Only later do they come to realise that there are other persons outside themselves, equal to them and essentially respectable. The reverence due to them puts limits to their own power and ownership. At that point, ownership takes on moral limits and changes into right. In the same way, the power of parents becomes right, authority, moral power when it is enclosed in restrictions dependent upon the respect due to the offspring as persons. We have to distinguish, therefore, between patria potestas and the right of patria potestas as we have distinguished between ownership and the right of ownership.

(435) The mere faculty of acting when the action is not aimed at enjoying anything, or at joining anything to the person, has no reference to any right. But in so far as the pleasure joined to the activity is kept in mind, mere activity is also included in the physical power or faculty for enjoyment, and is referred to ownership, the first of the two primordial rights.

(436) By `joining something to a person' I always mean `uniting it with the bond of ownership'. This bond has been the object of lengthy analysis in the preceding books.