Jean Bart
1If property is a power over the things one possesses, that power can only be complete insofar as, after death, it is extended to the benefit of those who the law or the owner’s will considers ought to succeed him. That is why the right of property and the right of succession can be envisaged together, even if they do not rest on the same foundation in the eyes of Montesquieu.
2As was then the fashion, Montesquieu wondered about the origin of the private appropriation of things, in other words about the passage from the state of nature to civil society. For him, in the earliest times, men lived in “natural independence”, and goods were the object of an equally “natural community”. At a certain moment, different according to places and peoples, the first of these was abandoned by humans “to live under political laws”, the second “to live under civil laws”. The birth of civil law is thus linked to the appearance of private property, as that of public law is to the formation of society, since when the lands were not yet divided up, men hardly needed law. At this stage, moreover, the important thing was “mores rather than laws” (“des mœurs plutôt que des lois”, EL, XVIII, 13). This primitive state of humanity corresponds to the pastoral economy, but when peoples settled down, taking up agriculture which itself “requires the use of money” (ibid., p. 15), the things of nature became objects of property.
3If, in Enlightenment thought, such a vision is hardly original, the very concept of property defined by Montesquieu holds more interest, so out of phase does it appear with certain of his preferences and hence ahead of its time. Indeed, while he admires “the fine spectacle […] of feudal laws” (EL, X, 1), not only is this admiration limited to their political aspects, but it also seems to ignore the division of property, characteristic of feudalism, into “eminent domain” and “useful domain”, well known to the jurists and publicists of the 18th century, whether they allowed or fought it. Reading L’Esprit des lois, one has the impression that, once it appeared, property had always been full and entire, as in the ancient world. No doubt we should not see in this conception the influence of Montesquieu’s studies of Roman law. The preoccupations of the owner of La Brède seem more determining, understanding that the development of his prerogatives could not result from increasing his manorial rights, as some thought, but from the free utilization of his holdings, the unfettered exploitation of which would be a source of greater profits. Thus his conception of property rights refers back to the principles of liberal juridical individualism and prefigures that which would triumph beginning with the French Revolution. Is it not significant that Portalis, presenting the project for a Civil Code in the name of the governmental commission entrusted with drafting it, on 1 Pluviôse year IX (21 January 1801), picked up the very terms used in L’Esprit des lois (XXVI, 15), to affirm that civil societies constitute the “palladium [safeguard] of property”?
4Still more symptomatic is Montesquieu’s concern for reducing the cases where an owner could be stripped of his rights. He devotes an entire chapter (ch. 15 of book XXVI of L’Esprit des lois), entitled “That things that depend on the principles of civil law ought not be determined by principles of political law” (“Qu’il ne faut point régler par les principes du droit politique les choses qui dépendent des principes du droit civil”), to reducing the range of what he will later call expropriation for reasons of public utility (or necessity). If the expression did not yet exist, the thing itself indeed did, permitting the monarchical state to improve paths of communication, to conduct a public works policy, or cities to realize urban projects. In this hypothesis, our author first posits, playing somewhat on words, that “it is a paralogism to say that the individual good must yield to the public good […] because the public good is always that each one preserve invariably the property that the civil laws give him” (“c’est un paralogisme de dire que le bien particulier doit céder au bien public [...] parce que le bien public est toujours que chacun conserve invariablement la propriété que lui donnent les lois civiles”). So when “the public” needs to take possession of a building or piece of land belonging to an individual, it must never apply “the rigor of the political law” (today we would say of administrative authority), but “the civil law which, with a mother’s eyes, watches each individual as well at the whole City” (“la loi civile qui, avec des yeux de mère, regarde chaque particulier comme toute la Cité même”)! Whence a fair indemnity when “the political magistrate wants to build some public building, some new road” (“le magistrat politique veut faire quelque édifice public, quelque nouveau chemin”). Again, here we have a claim that was to find its response among the Consituants at the end of the century, in Article 17, the last of the Declaration of the rights of man and the citizen, reinforcing the sacrosanct right of property: “Property being an inviolable and sacred right, no one may have it taken from him, except when public necessity, legally ascertained, manifestly requires it, and under the condition of fair and prior indemnization” (“La propriété étant un droit inviolable et sacré, nul ne peut en être privé, si ce n’est lorsque la nécessité publique, légalement constatée, l’exige évidemment, et sous la condition d’une juste et préalable indemnité”). In short, for Montesquieu, property indeed seems to be a natural right which, as such, does not vary with location or « climate ».
5It is altogether different where the right of succession is concerned. To be sure, every society foresees the fate of the property of every owner after his death, but that fate is not spelled out in a uniform manner. Chapter 6 of book XXVI of L’Esprit des lois is meant to show “that the order of successions depends on the principles of political or civil law and not on the principles of natural law” (“que l’ordre des successions dépend des principes du droit politique ou civil et non pas des principes du droit naturel”). These principles are thus not unique or unchangeable. The proof is in the divergent attitudes which one can have with respect to the succession of women. At various moments in history and in various places, women have been deprived of the right of succeeding or, at the least, their successional calling has been reduced in comparison with that of male heirs. This was not to everyone’s taste: Roman law that forbade the richest citizens to appoint a woman heir had been qualified as “unjust” by St. Augustine, “barbaric” by the emperor Justinian. Similarly, the privilege of masculinity reserving to boys the property of a deceased father, was considered “impious” by Marculfe, a monk who drafted a famous juridical formulary in the Merovingian period. In short, it was generally accepted that all that was unnatural. But, Montesquieu tells us, that is because “they regarded the right of children to succeed their father as a consequence of natural law, which it is not. Natural law orders fathers to feed their children, but does not oblige them to make them heirs” (“l’on a regardé le droit que les enfants ont de succéder à leur père, comme une conséquence de la loi naturelle, ce qui n’est pas. La loi naturelle ordonne aux pères de nourrir leurs enfants, mais elle n’oblige pas de les faire héritiers”, EL, XXVI, 6). If he concedes that the succession of parents to children is usual, he observes that this rule is not general. Thus whether succession of individuals – by will, known to certain peoples but not others, or by the effect of law or custom – or the prince’s succession to the crown, one encounters all sorts of different systems according to localities and time frames. The right to inherit furnishes, indeed, an excellent illustration of our author’s theory of climates and the relativism. It is significant that most developments devoted to it in L’Esprit des lois are in book XXVI entitled “On laws in the relation they must have with the order of the things which they legislate about” (“Des lois dans le rapport qu’elles doivent avoir avec l’ordre des choses sur lesquelles elles statuent”).
6To understand well a civil or political law, one must not isolate it from the political, economic, and social context in which it comes into being: “How can one apply a law without knowing the country for which it was made and the circumstances in which it was made? Most of those who study jurisprudence follow the course of the Nile, flooding with it and not knowing the cause” (“Comment peut-on appliquer une loi si on ne savait pas le pays pour lequel elle a été faite et les circonstances dans lesquelles elle a été faite ? La plupart de ceux qui étudient la jurisprudence [la science du droit], suivent le cours du Nil, se débordent avec lui et en ignorent la cause”, Pensées, no. 1827). The good jurist, the law historian, must always seek the cause, the multiple causes, of the norm. In so doing, it is well to avoid using foreign criteria for the civilization under study. Thus, under certain Chinese dynasties, the power of a deceased emperor devolved to his brother and not to his son. This is perfectly explainable by the concern to choose a successor who is old enough to possess some experience, and thus avoid multiple and dangerous regencies in a country where the court is peopled by eunuchs tempted to place “children successively on the throne”. Yet that surprised “some writers [including Father Du Halde] who spoke as if there brothers were usurpers”, but that is because “they judged based on notions found in the laws of these countries” (“ls ont jugé sur des idées prises des lois de ces pays-ci”, EL, XXVI, 6). The same applies to a custom of Numidia which also called for a relative rather than a descendant, or again among the Arabs of Barbary who preferred the uncle.
7Moreover, the laws of a single nation form a system in which the elements act upon each other. Thus, the rules of successional law cannot be identical in countries that practice polygamy and in those where each man must content himself with a single wife. In the former, indeed, the prince has very many children among whom it is impossible to choose an heir to the throne; that is why it is preferable to place there one of the children of the deceased’s sister: “A prodigious number of children would expose the state to frightful civil wars. The order of succession that gives the crown to the children of the sister, who are not more numerous than would be those of a prince who had but one wife, avoids these disadvantages” (“Un nombre prodigieux d’enfants exposerait l’État à d’affreuses guerres civiles. L’ordre de succession qui donne la couronne aux enfants de la sœur, dont le nombre n’est pas plus grand que ne serait celui des enfants d’un prince qui n’aurait qu’une seule femme, prévient ces inconvénients”, ibid). The search for causes moreover goes farther. The existence of polygamy results from the precocious ageing of the women because of the heat: “The women […] are nubile, in warm climates, at eight, nine and ten years of age. […] They are old at twenty […]” (“Les femmes […] sont nubiles, dans les climats chauds, à huit, neuf et dix ans […]. Elles sont vieilles à vingt […]”, EL, XVI, 2).
8Other factors, of economic nature, can determine, here and there, particularities of successional law. Thus, in countries where the principal activity is livestock raising, it is notmal to call on the last of the male children, the older ones having left the family house with a herd given by the father. That was the way it appeared to be according to the Tartar civil laws. Closer to us, certain Breton customs – which indeed recognize the privilege of birth order between two sons (juveignerie) – would be explained in the same way: “I have heard it said that such a custom was observed in a few small districts in England, and it is still found in Britanny, in the duchy of Rohan, where it applies to commoners. It is doubtless a pastoral law that came from some small Breton people or brought by some German people. We know from Caesar and Tacitus that the latter did little cultivation of the land” (“J’ai ouï dire qu’une pareille coutume était observée dans quelques petits districts d’Angleterre, et on la trouve encore en Bretagne, dans le duché de Rohan, où elle a lieu pour les rotures. C’est sans doute une loi pastorale venue de quelque petit peuple breton ou portée par quelque peuple germain. On sait par César et Tacite que ces derniers cultivaient peu les terres”, EL, XVIII, 21; “and it is still found […] commoners” is an addition of 1757-1758). In short, they were archeological vestiges going back to the era when agriculture was not yet fully developed.
9For the right of succession does not merely vary according to location, it also evolves with the centuries. In this domain, Montesquieu’s historical approach coincides perfectly with his sociogeographical study, and the long Roman history could not give him a better base for demonstration. So he devotes to it the sole chapter of book XXVII of L’Esprit des lois: “On the origin and revolutions of the Romans’ laws on successions.” (All the following quotations, unless otherwise indicated, are from this chapter.) He asserts that what he will say in this chapter “will be a sort of method for those who would like to study jurisprudence” (“sera une espèce de méthode pour ceux qui voudront étudier la jurisprudence”). His research begins with the origins of Rome and the division of lands that Romulus was supposed to have carried out among his compatriots. It the leads as far as the Byzantine Empire, a millenium and a half later. At the start, in order to avoid having the shares conceded to one family pass into the hands of another, the ancient Law recognized only two orders of heirs: the children as well as descendants who were under the power of the pater familias before his decease (heredes sui) and the agnates or closest relatives on the male side. Consequently, “the relatives on the female side, which were called cognates, were not to succeed […] the children were not to succeed their mother, nor the mother her children; that would have transferred the property of one family into another” (“les parents par femmes, qu’on appela cognats, ne devaient point succéder [...] les enfants ne devaient point succéder à leur mère, ni la mère à ses enfants ; cela aurait porté les biens d’une famille dans une autre”). But the women, whether relatives on the male side or agnates, for example the daughters of the pater, were able to inherit, whereas the males, relatives on the female side, for example the maternal cousins, were not. Similarly, the “grandchildren through the son” succeeded the grandfather, but not “the grandchildren through the daughter […] since, in order the property not to pass into another family, the agnates were preferred to them […]. Thus, among the early Romans, the women succeeded whenever that accorded with the law of division of lands, and they did not succeed when that could violate it” (“les petits-enfants par la fille […] car, pour que les biens ne passassent pas dans une autre famille, les agnats leur étaient préférés […]. Ainsi, chez les premiers Romains, les femmes succédaient lorsque cela s’accordait avec la loi de division des terres, et elles ne succédaient pas lorsque cela pouvait la choquer”). Montesquieu also observes that this particular trait of the right of succession resulted from the founding constitution of the City, and that it was therefore not of foreign origin, even if the drafters of the Law of the Twelve Tables tried to inform themselves on the legislation of the Greek cities. Indeed, what suits one country do not necessarily suit another (LP[‣]). Moreover, Roman law had from the earliest times – and this is also one of its original characteristics – tried to reconcile the political imperatives determining the order of heirs according to the law, and the will of the citizens who could choose their heirs by testament, while still respecting conditions of rigorous form and content.
10This primitive successional system suited the City at its origins and in the early centuries of its existence, when the mores had retained their purity and the territory of the Urbs was not yet very extended. But, when the wars of conquest, in particular the Punic wars, had broadened the horizons and exchanges, transformed the old habits, developed wealth and introduced luxury, the legislation had to be amended or transformed. Montesquieu insists on the causes that provoked passage of the famous Lex Voconia(168/169 av. J.-C.), and wants to reveal its real meaning: “as very considerable considerations caused it to be made, and few traces of it remain, or until now it has only been discussed in a very confused manner, I am going to shed light on it” (“comme de très grandes considérations la firent faire, qu’il ne nous en reste que peu de monuments, ou qu’on en a jusqu’ici parlé que d’une manière très confuse, je vais l’éclaircir”). Calling on Cicero, Livy, Aulus Gellius, St. Augustine and many others, he shows that they wanted to struggle against the misdeeds of excessive enrichment of certain citizens and against women’s luxury. In fact, the law voted under the influence of Cato the Elder forbade citizens recorded in the census for a fortune of at lease 100,000 asses from naming a female heir, but without preventing daughters of the same citizens from inheriting ab intestat their father’s succession. Going against the social and moral evolution, the decision, ill received by the aristocracy, was gotten around by various means like not signing up for the census, in principle forbidden but practices: the Lex Voconia then became a dead letter. Unfavorable to the intervention of the City in the private sphere, Montesquieu does not grieve about that, judging that “it is a misfortune of the human condition that legislators are obliged to make laws that combat even natural sentiments. […] It is because legislators enact laws concerning society more than the citizen, and more concerning the citizen than man” (“c’est un malheur de la condition humaine que les législateurs soient obligés de faire des lois qui combattent les sentiments naturels mêmes. [...] C’est que les législateurs statuent plus sur la société que sur le citoyen, et sur le citoyen que sur l’homme”).
11However that may be, the pursuit of wars and the magnitude of their consequences, as much on the economic as moral and demographic level, led the assemblies or the Senate to intervene once more. The mores continued to deteriorate and the civil war at the end of the Republic made clear cuts in the ranks of the citizens, whence the vote on measures to increase the birth rate, as the one on the lex papia poppæa, in 9 CE) recognizing a greater right to receive the property of a testator to mothers of three or more children. A little later, two senate-consults (Tertullien et Orfitien, early and late 2nd century) granted reciprocal successional rights to mothers and their children, under certain conditions, which translated the progress of cognatio with respect to agnatio, relatives on the male side which alone, as we know, founded the right of inheritance in the early period. Finally, it was during the Late Empire that relatives on the female side was fully recognized, on the same plane as agnatio, as the base of successional vocation, and this, in Montesquieu’s eyes, because of the establishment of the “monarchy” (empire). As for Justinian, in the 6th century, he “removed the last vestige of the ancient right of successions: he established three orders of heirs, descendants, ascendants, collaterals, with no distinction whatever between males and females, between relatives on the male or female side […]” (“ôta jusqu’au moindre vestige du droit ancien sur les successions : il établit trois ordres d’héritiers, les descendants, les ascendants, les collatéraux, sans aucune distinction entre les mâles et les femelles, entre les parents par femmes et les parents par mâles [...]”). To be sure, civil laws must always be put in relation to the organization of the City, according to a modern conception when L’Esprit des lois appeared, taken up again by Tocqueville nearly a century later.
12It must still be acknowledged that this illumination of private law by politics is hardly used when it comes to the feudal period. If he proclaims that the causes – “the roots” – must be sought for this “antique oak” of feudalism (EL, XXX, 1), Montesquieu is not interested in the different successional customs, very different from the Roman laws that arose in the West after the fall of the Empire. To be sure, in book XVIII (“On laws in the relation they have with the nature of the terrain”) he evokes the disposition of the law of the Salic Franks which excluded women from succession to ancestral land, under the name of “Salic law”, was used in the 14th century in a wholly different context, to counter the pretensions to the French throne of Edward III, king of England, related by women to the last Capetian, Charles IV. But for him, this particularity is solely explained by the system of exploitation of the riches of nature by a people in the process of settling down. At this stage, the lands were divided up each year among the different families, only the house and a small plot around it were the object of private appropriation and, in order to avoid their passage to other families into which they married, the daughters were deprived of it. Once the Franks were well installed in Gaul, while all the lands were individualized, this exclusion was at first maintained. But it seemed unfair and was abandoned under the effect of multiple recalls to succession of daughters decided upon by fathers of families. Playing again on words, Montesquieu explains that the object of the Salic law was not “a certain preference for one sex over another […] it was a purely economic law” (“pour objet une certaine préférence d’un sexe sur l’autre [...] c’était une loi purementéconomique”, EL, XVIII, 22).
13Nevertheless, it became political insofar as much later the rule it contained was transposed to assure the good and preservation of the state. All the laws that determine the inheritance of the crown belong, indeed, to the category of political laws. But that did not make the norms governing the succession of princes adhere to uniformity. We also find a certain diversity in this matter : there are realms, England for example, where women inherit the crown. Moreover, in a single state, the political law fixing the order of devolution can even change when it “becomes destructive of the body politic for which it was made”, for, adds Montesquieu, in apparently revolutionary terms, to which the printer in 1748 applied small capitals : “The Welfare of the People is the Supreme Law!” However, frightened by his audacity, he immediately added: “men hold prodigiously to their laws and their customs; they make the felicity of each nation. It is rare that they are changed without great upheavals and an outpouring of blood, as the histories of all countries show” (“[...] les hommes tiennent prodigieusement à leurs lois et à leurs coutumes ; elles font la félicité de chaque nation. Il est rare que l’on les change sans de grandes secousses et une grande effusion de sang, comme les histoires de tous les pays le font voir”, EL, XXVI, 23).
14In conclusion, if the concept of property seems unique in Montesquieu, the right of succession presents, according to place and time, great diversity. One should not in this respect as in many others seek for models, even in ancient Rome. Everything that is explained concerning the transmission of properties in L’Esprit des lois brings us back to what is asserted at the outset: “The political and civil laws of each nation […] must be so specific to the people for which they are made, that it is a great coincidence if those of one nation are suitable for another” (“Les lois politiques et civiles de chaque nation [...] doivent être tellement propres au peuple pour lequel elles sont faites, que c’est un très grand hasard si celles d’une nation peuvent convenir à une autre”, EL, I, 3).
Bibliography
Pierre Jaubert, “Montesquieu et le droit romain”, Revue juridique et économique du Sud-Ouest, Annales de la Faculté de droit et des sciences économiques de Bordeaux, 1966, 3-4, p. 177.
François Monnier, “L’expropriation sous l’Ancien Régime”, Revue juridique du Centre-Ouest 19 (Feb. 1997), p. 7-20.
Jean Bart, “La Révolution française et l’expropriation”, ibid., p. 21-29.
Jean Bart, Histoire du droit privé de la chute de l’Empire romain au XIXe siècle, Paris: Montchrestien, 1998: “La propriété”, p. 256-263, “La transmission des biens à cause de mort”, p. 353-379.