Intestacy in Roman Society

Abstract

The purpose of this paper is to defend a sound old doctrine against a brilliant, amusing and superficially plausible attack by Professor Daube. The doctrine is that propounded – admittedly in an extreme form – by Sir Henry Maine, that Roman society had a ‘singular horror of intestacy’, a ‘passion for testacy’; in his Gray Lectures of 1966, summing up a rather fuller case made in Tulane Law Review, 1965, Professor Daube claimed to demonstrate that the evidence for this doctrine was ludicrously inadequate and the notion in any case a priori absurd. His judgement has been endorsed, with some corroborative arguments, by Professor Watson, and has achieved the approval of Professor Brunt. According to Daube the case in favour of the view that Romans usually made wills and had a dread of dying intestate consists of the following ‘chief’ arguments: that in the Twelve Tables a person who has not made a will is called intestatus, and the negative form of the word implies that it is the exception; secondly that, in Plutarch's famous story, the elder Cato said that one of the three things he regretted in life was to have spent a single day ἀδιάθετος, and finally that in Plautus' Curculio a man is cursed with the words intestatus vivito. With these three arguments Daube has – and gives – a good deal of fun, claiming, in the upshot, to have blown them all sky-high and thus to have demolished the entire positive case for the old view.

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