The Spirit of Laws; A Discourse on the Origin of Inequality; A Discourse on Political Economy; The Social Contract

By Charles de Secondat, Baron de Montesquieu; Jean Jacques Rousseau | Go to book overview

Hence it follows, that the laws of an Italian republic,1 where bearing fire-arms is punished as a capital crime and where it is not more fatal to make an ill use of them than to carry them, is not agreeable to the nature of things.

It follows, moreover, that the applauded action of that emperor who caused a baker to be impaled whom he found guilty of a fraud, was the action of a sultan who knew not how to be just without committing an outrage on justice.

25. That we should not follow the general Disposition of the civil Law, in things which ought to be subject to particular Rules drawn from their own Nature. Is it a good law that all civil obligations passed between sailors in a ship in the course of a voyage should be null? Francis Pirard tells us4 that, in his time, it was not observed by the Portuguese, though it was by the French. Men who are together only for a short time, who have no wants, since they are provided for by the prince; who have only one object in view, that of their voyage; who are no longer in society, but are only the inhabitants of a ship, ought not to contract obligations that were never introduced but to support the burden of civil society.

In the same spirit was the law of the Rhodians, made at a time when they always followed the coasts; it ordained that those who during a tempest stayed in a vessel should have ship and cargo, and those who quitted it should have nothing.


BOOK XXVII

1. Of the Origin and Revolutions of the Roman Laws on Successions. This affair derives its establishment from the most distant antiquity, and to penetrate to its foundation, permit me to search among the first laws of the Romans for what, I believe, nobody yet has been so happy as to discover.

We know that Romulus2 divided the land of his little kingdom among his subjects; it seems to me that hence the laws of Rome on successions were derived.

The law of the division of lands made it necessary that the property of one family should not pass into another: hence it followed that there were but two orders of heirs established by law, the children and all the descendants that lived under the power of the father, whom they called sui hæredes, or his natural heirs; and, in their default, the nearest relatives on the male side, whom they called agnati.3

It followed likewise, that the relatives on the female side, whom they called cognati, ought not to succeed; they would have conveyed the estate into another family, which was not allowed.

Thence also it followed that the children ought not to succeed to the mother, nor the mother to her children; for this might carry the estate of one family into another. Thus we see them excluded by the law of the Twelve Tables:5 it called none to the succession but the agnati, and there was no agnation between the son and the mother.

But it was indifferent whether the suus hæres, or, in default of such, the nearest by agnation, was male or female; because, as the relatives on the mother's side could not succeed, though a woman who was an heiress should happen to marry, yet the estate always returned into the family whence it came. On this account, the law of the Twelve Tables does not distinguish, whether the person who succeeded was male or female.6

This was the cause that, though the grandchildren by the son succeeded to the grandfather, the grandchildren by the daughter did not succeed; for, to prevent the estate from passing into another family, the agnati were preferred to them. Hence the daughter, and not her children, succeeded to the father.7

Thus among the primitive Romans, the women succeeded, when this was agreeable to the law of the division of lands, and they did not succeed, when this might suffer by it.

Such were the laws of succession among the primitive Romans; and as these had a natural dependence on the constitution, and were derived from the division of lands, it is easy to

____________________
1
Venice.
2
Dionysius Halicarnassus, ii. 3. Plutarch's comparison between Numa and Lycurgus.
3
Ast si intestato moritur cui suus hæres nec extabit, agnatus proximus familiam habeto. Fragment of the law of the Twelve Tables in Ulpian, the last title.
4
Chapter 14, part XII.
5
See Ulpian, Fragment., § 8, tit. 26. Institutes, tit. 3, In præmio ad S. C. Tertullianum.
6
Paul, Sentences, tit. 8, § 3.
7
Institutes, iii, tit. 1, § 15.

-225-

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