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the dumb； because he could not pronounce the terms of nomination； the prodigal； because as he was excluded from the management of all affairs； he could not sell his inheritance。 I omit any further examples。
Wills being made in the assembly of the people were rather the acts of political than of civil laws； a public rather than a private right； whence it followed that the father； while his son was under his authority； could not give him leave to make a will。
Among most nations； wills are not subject to greater formalities than ordinary contracts； because both the one and the other are only expressions of the will of him who makes the contract； and both are equally a private right。 But among the Romans； where testaments were derived from the public law； they were attended with much greater formalities than other affairs；＇16＇ and this is still the case in those provinces of France which are governed by the Roman law。
Testaments being； as I have said； a law of the people； they ought to be made with the force of a command； and in such terms as are called direct and imperative。＇17＇ Hence a rule was formed； that they could neither give nor transmit an inheritance without making use of the imperative words： whence it followed； that they might very justly in certain cases make a substitution；＇18＇ and ordain； that the inheritance should pass to another heir； but that they could never make a fiduciary bequest；＇19＇ that is； charge any one in terms of entreaty to restore an inheritance； or a part of it； to another。
When the father neither instituted his son his heir； nor disinherited him； the will was annulled； but it was valid； though he did not disinherit his daughter； nor institute her his heiress。 The reason is plain： when he neither instituted nor disinherited his son； he did an injury to his grandson； who might have succeeded ab intestato to his father； but in neither instituting nor disinheriting his daughter； he did no injury to his daughter's children； who could not succeed ab intestato to their mother； because they were neither sui h？redes； nor agnati。＇20＇
The laws of the ancient Romans concerning successions； being formed with the same spirit which dictated the division of lands； did not sufficiently restrain the riches of women； thus a door was left open to luxury； which is always inseparable from this sort of opulence。 Between the second and third Punic war； they began to perceive the evil and made the Voconian law；＇21＇ but as they were induced to this by the most important considerations； as but few monuments have reached us that take notice of this law； and as it has hitherto been spoken of in a most confused manner； I shall endeavour to clear it up。
Cicero has preserved a fragment； which forbids the instituting a woman an heiress； whether she was married or unmarried。＇22＇
The Epitome of Livy； where he speaks of this law； says no more：＇23＇ it appears from Cicero＇24＇ and St。 Augustine＇25＇ that the daughter； though an only child； was comprehended in the prohibition。
Cato； the elder； contributed all in his power to get this law passed。＇26＇ Aulus Gellius cites a fragment of a speech；＇27＇ which he made on this occasion。 By preventing the succession of women； his intent was to take away the source of luxury； as by undertaking the defence of the Oppian law； he intended to put a stop to luxury itself。
In the Institutes of Justinian＇28＇ and Theophilus；＇29＇ mention is made of a chapter of the Voconian law which limits the power of bequeathing。 In reading these authors； everybody would imagine that this chapter was made to prevent the inheritance from being so exhausted by legacies as to render it unworthy of the heir's acceptance。 But this was not the spirit of the Voconian law。 We have just seen that they had in view the hindering women from inheriting an estate。 The article of this law； which set bounds to the power of bequeathing entered into this view： for if people had been possessed of the liberty to bequeath as much as they pleased； the women might have received as legacies what they could not receive by succession。
The Voconian law was made to hinder the women from growing too wealthy； for this end it was necessary to deprive them of large inheritances； and not of such as were incapable of supporting luxury。 The law fixed a certain sum to be given to the women whom it deprived of the succession。 Cicero；＇30＇ from whom we have this particular； does not tell us what was the sum； but by Dio we are informed it was a hundred thousand sesterces。＇31＇
The Voconian law was made to regulate opulence； not to lay a restraint upon poverty； hence Cicero＇32＇ informs us that it related only to those whose names were registered in the censors' books。
This furnished a pretence for eluding the law： it is well known that the Romans were extremely fond of set forms； and we have already taken notice that it was the spirit of the republic to follow the letter of the law。 There were fathers who would not give in their names to be enrolled by the censors； because they would have it in their power to leave the succession to a daughter： and the pr？tors determined that this was no violation of the Voconian law since it was not contrary to the letter of it。
One Anius Asellus had appointed his daughter his sole heir and executrix。 He had a right to make this disposition； says Cicero；＇33＇ he was not restrained by the Voconian law； since he was not included in the census。 Verres； during the time of his pr？torship； had deprived Anius' daughter of the succession； and Cicero maintains that Verres had been bribed； otherwise he would not have annulled a disposition which all the other pr？tors had confirmed。
What kind of citizens then must those have been； who were not registered in the census in which all the freemen of Rome were included？ According to the institution of Servius Tullius； mentioned by Dionysius of Halicarnassus；＇34＇ every citizen not enrolled in the census became a slave； even Cicero himself observes＇35＇ that such a man forfeited his liberty； and the same thing is affirmed by Zonaras。 There must have been therefore a difference between not being in the census according to the spirit of the Voconian law； and not being in it according to the spirit of Servius Tullius' institutions。
They whose names were not registered in the first five classes；＇36＇ in which the inhabitants ranked in proportion to their fortunes； were not comprised in the census according to the spirit of the Voconian law： they who were not enrolled in one of these six classes； or who were not ranked by the censors among such as were called ？rarii； were not included in the census according to the spirit of Servius' institutions。 Such was the force of nature； that to elude the Voconian law fathers submitted to the disgrace of being confounded in the sixth class with the proletarii and capite censi； or perhaps to have their names entered in the C？rites tabul？。＇37＇
We have elsewhere observed that the Roman laws did not admit of fiduciary bequests。 The hopes of evading the Voconian law were the cause of their being introduced： they instituted an heir qualified by the law； and they begged he would resign the succession to a person whom the law had excluded； this new method of disposition was productive of very different effects。 Some resigned the inheritance； and the conduct of Sextus Peduccus on an occasion of this nature was very remarkable。＇38＇ A considerable succession was left him； and nobody living knew that he was desired to resign it to another； when he waited upon the widow of the testator and made over to her the whole fortune belonging to her late husband。
Others kept possession of the inheritance； and here the example of P。 Sextilius Rufus is also famous； having been made use of by Cicero in his disputations against the Epicureans。＇39＇ 〃In my younger days；〃 says he； 〃I was desired by Sextilius to accompany him to his friends； in order to know whether he ought to restore the inheritance of Quintus Fadius Gallus to his daughter Fadia。 There were several young people present； with others of more maturity and judgment； and not one of them was of opinion that he should give more to Fadia than the lady was entitled to by the Voconian law。 In consequence of this； Sextilius kept possession of a fine estate； of which he would not have retained a single sestertius had he preferred justice to utility。 It is possible； added he； that you would have resigned the inheritance； nay it is possible that Epicurus himself would have resigned it； but you would not have acted according to your own principles。〃 Here I shall pause a little to reflect。
It is a misfortune inherent in humanity that legislators should be sometimes obliged to enact laws repugnant to the dictates of nature： such was the Voconian law。 The reason is； the legislature considers the society rather than the citizen； and the citizen rather than the man。 The law sacrificed both the citizen and the man； and directed its views to the prosperity of the republic。 Suppose a person made a fiduciary bequest in favour of his daughter； the law paid no regard to the sentiments of nature in the father； nor to the filial piety of the daughter； all it had an eye to was the person to whom the bequest was