The Inestimable Impact of Roman Law
The legal structure of the ancient Romans played a big role in changing the world's legal system. Its influence started across Europe and extended worldwide.
From being an agrarian society, the Roman Empire transformed into commerce.
The reliable laws of inheritance were critical to the continuance of Roman society. Over the years, these laws continued to change. It is due to economic, family and social changes in their society.
Our laws differ from those of the Romans, of course. But we can feel their effects today even here in Sonora, California.
The Evolution of Roman Laws of Inheritance
All civilizations have had laws. But from 451 BC to 450 BC, the Romans took large strides in structuring a codified legal system with the 12 Tables. This was the foundation for the statutes of our legal system.
The 12 Tables were inscribed bronze tablets that were housed in the Roman Forum for everyone to see. Before, laws were based on tradition. Beginning with the 12 Tables, they were passed by a legislative body. It was written down and made accessible to the citizenry.
Now, citizens could learn the law and plan their lives. It includes the distribution of their estates after their death. According to Cicero, the well-known writer and statesman, students studied the 12 Tables. It is a part of their complete education.
The 12 Tables continued to play a role throughout the Roman era. But in the area of inheritance, Praetorian law became predominant as times changed.
The Roman legal system continued to develop for a thousand years. When it reached the time of Emperor Justinian I, from 529 AD to 534 AD, he issued the Corpus Juris Civilis. It became the basis of legal practice in the Byzantine Empire.
The Importance of Wills in Ancient Rome
As in any sophisticated society, the distribution of real and commercial property after death is important for stability. Roman citizens with any amount of property considered it essential to have a will.
Cato the Elder, statesman and orator, exemplified how strongly Romans felt about the importance of executing a will. He said that he had three regrets in his life:
- Revealing a particular secret to his wife (We have to wonder what it was!)
- Paying to take a journey by ship instead of walking (Apparently, Cato was exceedingly frugal), and
- Living one day without a will after becoming an adult. (Cato was clearly not a man to walk on the wild side, but it gets the point across.)
Civil Law vs. Praetorian Law
Property inheritance under civil law was in accordance with the laws outlined in the 12 Tables statutes. The legislation and the interpretations of judges passed the law.
As time went on, praetors (Roman magistrates) issued edicts. It contained important innovations in succession in the face of new circumstances.
The more severe effects of applying the civil law empowered the praetors to mitigate it. Without formally modifying the civil law, praetors introduced important changes. It is to protect relatives in the female lineage, surviving spouses and others. Praetorian law also allowed for flexibility. It is when the agrarian Roman society moved to one that was increasingly based on commerce.
Originally in Roman law, succession was universal according to the 12 Tables. This means that instead of the testator willing specific items to each heir, heirs inherited all the rights and duties of the deceased.
There could be more than one heir. But the testator determines the percentage of the entire estate of each heir. So, Antonius could inherit 1/3 while Julius inherited 2/3. If the testator did not specify the portions, they were assumed to be the same.
This did not just apply to a property. Heirs also inherited the deceased’ debts. As time went on, there was some relief from the testator’s liabilities under Praetorian law.
Who Could Inherit Under Roman Law
Any free Roman citizen, including women, could inherit property. A testator had a great deal of freedom in who they appointed as heirs and the portions each received. There was no hard rule of primogeniture. In most circumstances, it was expected that a father would leave the lion’s share of his estate to his eldest legitimate son.
Types of Heirs
There were two types of heirs in ancient Rome:
- Family heirs were a man’s children and grandchildren whose fathers had already died. It also includes freed slaves and his widow. Designated family heirs succeeded without a voluntary act of acceptance. It is due to the importance the Romans placed on family continuity. They could not refuse. As we have already discussed, this applied to debts as well as to property. As Praetorian law became more developed, a praetor could allow family heirs to avoid the deceased’s debts. As long as they did not claim any of the estates.
- Extraneous or external heirs were not part of the deceased’s household. They had the right to refuse the inheritance.
Women had no children under their power, and children belonged to the husband. If a couple divorced, the children went with their father. Thus, women had no family heirs.
Women and Inheritance
Women were second class citizens in ancient Rome. They could not vote or hold office. If they divorced, their children went to their father. Women even needed the permission of a legal guardian to perform legal transactions.
A woman’s first name was merely the feminization of her father’s family name. In other words, Julius Caesar’s daughter was named “Julia”. What about sisters? They might be called Julia 1 and Julia 2.
The women had severely restricted rights. However, they could own property in their own names. They can also execute wills and inherit property.
Slaves and Inheritance
A slave could be appointed as an heir. Unless they were freed, they could not actually take possession of their inheritance.
If the slave belonged to the testator, the inheritance must have been coupled with a grant of freedom. Otherwise, the inheritance would be voided.
If a slave belonged to someone else, the inheritance would go to the slave’s master.
Testate v. Intestate
Much like our own laws, a Roman testator’s preferences is the priority. What's stated in their will usually take precedence over the laws of intestate succession.
There were exceptions to this. If a testator did not make a close relative an heir or disinherit them, this could nullify the will.
There were also some exceptions to this. Succession could not be both testate and intestate under Roman law.
Testate Succession in the Roman Empire
Any Roman citizen who was of the age of majority and mentally competent could make a will. There were certain requirements for making a will. It includes appointing heirs and having the will witnessed by seven qualified people.
Not only large landowners made wills. In fact, under many Roman emperors, soldiers enjoyed special privileges regarding wills.
Defects of form such as an insufficient number of witnesses could be waived for soldiers. Trajan and his successors even made this a rule. It was distributed to provincial governors. A will that did not abide by proper forms was more likely to be accepted. It is if the soldier was on an expedition at the time he made the will.
Intestate Succession in the Roman Empire
The 12 Tables specified the order of succession should someone die intestate. First in line were the family heirs. But the 12 Tables said that “if someone dies intestate and without family heirs (heredes sui), the nearest agnate shall have the property. If there is no agnate, the member of the family clan (gens) shall have the family property.” An agnate is a blood relative in the patrilineal line.
As time went on, Praetorian law gave more rights to widows and cognates, those in the matrilineal line. Interestingly, the women effectively had no “family” heirs. Since they had no rights to their children, the nearest agnate had the first claim to their estate.
Emperor Justinian introduced major reforms on intestate succession in the sixth century AD. He abolished the distinctions between agnates and blood relatives. Including between male and female heirs.
The new order of succession was:
- Ascendants and brothers and sisters
- Half brothers and sisters
- Other collateral relatives
Trusts in Ancient Rome
The Romans did not exactly have trusts as we know them today. They had an important device called fideicommissum. This served many of the same purposes.
A testator could not will property to one person (such as a wife). Then indicate it should go to someone else (such as their children) upon the first person’s death. However, this could be achieved through a fideicommissum.
A fideicommissum was a testamentary disposition in the form of a request. This requests a person to give something to another or make it available for their use. “Fideicommissum” is, in fact, a combination of two words. “Fides” meaning “trust” and “committere” which means “to commit”. Originally, this could be a particular item. But in the time of Justinian, it became a way to designate universal succession. Including all hereditary rights.
The Romans put great store in the duties of family and friendship. If a person breached their fiduciary duty, they lost their legal and social standing as a Roman citizen. That included being banned from making commercial transactions and testifying in court. This was known as “infamia”.
Just a Glimpse
In this short article, we can only give a quick overview of Roman inheritance laws. It is a complex and sophisticated legal system that evolved over 1,000 years. Though today’s inheritance law has changed along with our society, we can see that its roots are buried in antiquity.