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 p701  Lex Voconia

Article by George Long, M.A., Fellow of Trinity College
on pp701‑702 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

LEX VOCO′NIA, was enacted on the proposal of Q. Voconius Saxa, a Tribunus Plebis. In the "De Senectute" of Cicero, Cato the elder is introduced as saying that he spoke in favour of the lex when he was sixty-five years of age, and in the consul­ship of Caepio and Philippus (B.C. 169). Gellius also speaks of the oration in which Cato recommended this Lex (Cic. pro Balbo, 8, Cato Major, 5; Gellius, VI.13, XVII.6).

One provision of the Lex was that no person who should be included in the census, after the census of that year (post eos censores; the Censors of that year were A. Postumius and Q. Fulvius), should make any female (virginem neve mulierem) his heres (Cic. In Verrem, I.41, 42). Cicero does not state that the Lex fixed the census at any sum; but it appears from Gaius (II.274) that a woman could not be made heres by any person who was rated in the census at 100,000 asses or upwards (centum millia aeris), though she could take the hereditas per fideicommissum. Dion Cassius (LVI.10) names the sum as 25,000 drachmae, which is 100,000 sestertii. The lex allowed no exceptions even in favour of an only daughter (Augustin. de Civit. Dei, III.21). The Lex only applied to testaments, and therefore a daughter or other female could inherit ab intestato to any amount. The Vestal Virgins could make women their heredes in all cases, which was the only exception to the provisions of the Lex (Cic. de Rep. III.10; Gell. I.12).

If the terms of the Lex are correctly reported by Cicero, a person who was not census might make a woman his heres, whatever was the amount of his property, and so Cicero understands the Lex (in Verr. II.41). Still there is a difficulty about the meaning of census. If it is taken to mean that a person whose property was above 100,000, and who was not included in the census, could dispose of his property as he pleased by testament, the purpose of the Lex would be frustrated; and further "the not being included in the census" (neque census esset) seems rather vague. Still, according to the terms of the Lex, any person who had ever been included in the census, would be affected by this legal incapacity. Sometimes it is assumed that the last census is meant. The Edict extended the rule of the Voconia Lex to the Bonorum Possessio (Dig. 37 tit. 1 s12).

Another provision of the Lex forbade a person, who was census, to give more in amount in the form of a legacy or a donatio mortis causa, to any person than the heres or heredes should take. This provision secured something to the heres or heredes, but still the provision was ineffectual, and the object of this lex was only accomplished by the Lex Falcidia [Legatum]. Gaius (II.226), in quoting this provision of the Lex, does not mention the condition of being census, but this is stated by Cicero (in Verr. I.43).

Some writers suppose that this Lex also contained a provision by which a testator was forbidden to give a woman more than half of his property by way of legacy; and it appears from Cicero that  p702 the Lex applied to legacies (de mulierum legatis et hereditatibus, Cic. de Repub. III.10). But this provision is not allowed by some of the best critics to have been a part of the Lex. Quintilian (Declam. 264) states that by the Lex (Voconia) a woman could not take by testament more than half of a person's property; but Quintilian says nothing of the provisions of this Lex, which incapacitated women altogether from taking under a will in certain cases, and in the passage referred to he is speaking of two women being made heredes of a property in equal shares. The dispute between the cognati and the two women turned on the words of the Lex, "ne liceat mulieri plusquam dimidiam partem bonorum suorum relinquere," the cognati contending that the Lex did not allow the whole property to be thus given to two women in equal shares, though it was admitted that if half of the property had been given to one woman, there would have been no ground for dispute. It is quite consistent that the Lex might have allowed a woman to take half of a man's property in certain cases, and in others to take none, though the object of the Lex, which was to prevent large properties from coming into women's hands, would have been better secured by other provisions than those of the Lex as they are known to us; for it appears from Quintilian, that a woman might take by will one half of as many properties as there were testators. It might be conjectured that the clause of the Lex which forbade a woman being made heres, signified sole heres, and then the clause which forbade her taking more than half would be fitly framed to prevent an evasion of the law by making a woman heres ex deunce, for instance, and giving the rest to another person. And this conjecture derives some support from the provision of the Lex Voconia which prevented the giving nearly all the property in legacies to the detriment of the heres; which provision, however, it must be observed, does not apply to women only (Gaius, II.226). The case of Fadia, mentioned by Cicero (de Fin. II.17), shows that there was a provision in the Lex by which, in certain cases at least, a woman might take something; and it also shows that the Lex prevented a man from making even his own daughter sole heres.

According to Gaius and Pliny (Paneg. 42), the provisions of the Voconia Lex were in force at the time when they were writing, though Gellius (XX.1) speaks of them as being either obsolete or repealed. The provisions of the Lex Julia et Papia Poppaea may have repealed some of the clauses of the Voconia Lex.

The subject of the Voconia Lex is one of considerable difficulty, owing to the imperfect statements that remain of its contents and provisions, which were probably numerous. The chief modern authorities on the matter are referred to by Rein (Das Röm. Privat. Recht, p367, &c.), and in Orellii Onomasticon. The latest essay on it that the writer has seen is "Die Lex Voconia &c." by Dr. J. J. Bachofen, Basel, 1843; but the essay does not settle all the difficulties.

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