Book Twenty-Seven - Concerning the Origin and Revolutions of The Roman Laws on Successions

Summary

This subject touches establishments from a most distant antiquity, and in order to penetrate to its heart, permit me to search out in the first laws of the Romans that which, until now I do not know that anyone might have seen there.

One knows that Romulus distributed the lands of his small state to its citizens (a). It seems to me that it is thence Rome's laws on succession derived.

The law for partitioning the lands required that the goods of one family would not be transferred into another. From that it followed that there were only two orders of inheritors established by the law (bb.), the children and all the descendants who lived under the father's authority, whom they called his inheritors, and, lacking them, the closest male relatives, whom they called agnatio.

Again, it followed that relatives by the mothers, whom one called cognate, must not inherit; they would have borne the property into another family; and that was thus established.

It further followed from that that the children must neither inherit from their mother, nor the mother from her children. That would have carried the property from one family into another. Also one notes them excluded in the law of the Twelve Tables (c). It summoned to the succession only the agnatio, while between them the son and the mother were not.

But it were indifferent whether his inheritor, or, lacking one, the closest agnatio, be himself male or female; for the relatives on the maternal side did not inherit. Although a woman inheritor should marry, the property always returned to the family out of which they sprang. It is for that reason they did not distinguish in the law of the Twelve Tables whether the person who inherited were male or female (d).

This produced the result that, although grandchildren through the son inherited from their grandfather, grandchildren by the daughters did not inherit. For, in order that property should not transfer into another family, the agnatio were preferred. Thus, the daughter inherited from her father, but not her children (e).

Thus, among the first Romans, women inherited, when that agreed with the law on the partitioning of the land. They did not inherit when to do so could shock it.