Letter to Ferdinand Lassalle, July 22, 1861

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To Ferdinand Lassalle in Berlin

[London,] 22 July 1861

Dear Lassalle,

You must attribute my somewhat prolonged silence to sundry ‘attenuating circumstances’. D'abord, I have as yet not succeeded — despite the most positive assurances that have been given me in this respect — in putting my financial affairs in order and thus, which galls me more than anything else, letting you have the remaining £10.

Secundo: For a few weeks now I have been suffering from a horrible inflammation of the eyes (better just during the last day or two) which made all reading and writing exceedingly irksome.

Let me begin by thanking you sincerely for your endeavours with regard to my renaturalisation. At least, we have managed to compromise the Prussian government and demonstrate the emptiness of its so-called amnesty. I believe that O. Becker’s strange attempt at assassination (it’s not clear from the newspapers whether he’s a Russian or a German) will greatly contribute to a frightful termination of the ‘new era’.

I have read the 2nd part of your work (when I wanted to begin on the first, I was prevented by my eye-trouble) and have derived very great pleasure from it. I began with No. II because the subject was more congenial to me; not that this will prevent me from subsequently considering the thing in its totality.

You have misconstrued to some extent the very brief comments in my previous letter — no doubt it was the way I put it that was to blame. D'abord, by ‘testamentary freedom’ I didn’t mean freedom to make a will, but freedom to make it with complete disregard for one’s family. In England, the will as such goes back a very long way, nor can there be the slightest doubt that the Anglo-Saxons adopted it from Roman jurisprudence. That the English, even at a very early date, considered testacy rather than intestacy to be the norm, is evident from the fact that as far back as the Late Middle Ages, if a pater familias died ab intestato only the obligatory portions went to his wife and children, according to circumstances, whereas 1/3 or 1/2 fell to the Church. For the priests assumed that, had he made his will, he would for the salvation of his soul have left a certain amount to the Church. Generally, it seems to be in this sense that wills in the Middle Ages had a religious connotation and were made for the benefit of the deceased rather than the survivors. But the point I was trying to make (I am not, of course, concerned here with feudal property) was that, after the revolution of 1688, the restrictions governing family settlements, to which the testator had till then been legally subject, were lifted. That this was in keeping with the system of free competition and the society based thereon cannot seriously be questioned; nor that Roman law, modified to a greater or lesser extent, was adopted by modern society because the legal idea that the subject of free competition has of himself corresponds to that of the Roman person (not that I have any intention of enlarging at this juncture on what is a most important point, namely that the legal representation of certain property relations, though undoubtedly deriving from them, is not for all that, and cannot be, congruent with them).

You have shown that the adoption of the Roman will originally rested on a misconception (and still does, so far as the sagacity of learned jurists is concerned). But it by no means follows from this that the will in its modern form — no matter with what misconceptions of Roman law modern jurists may construe it — is the misconceived Roman will. If this were so, it might be said that every attainment of an earlier age adopted by a later one is a misunderstanding of the past. It is certain, for instance, that the 3 unities, as theoretically construed by the French dramatists in Louis XIV’s day, rest on a misconception of Greek drama (and of Aristotle as the exponent thereof). On the other hand, it is equally certain that they understood the Greeks in a way that corresponded exactly to their own artistic needs. Hence their continued adherence to this so-called ‘classical’ drama long after Dacier and others had provided them with a correct interpretation of Aristotle. It is also certain that all modern constitutions are largely based on a misconception of the English constitution, adopting as essential precisely that which appears to be declining in the English constitution — and which continues to exist in England in name only per abusum — e.g. a so-called responsible cabinet. The misunderstood form is precisely the general one. It is the one that lends itself to general use at a certain stage in the development of society.

Whether, for example, the English would or would not have had the form of will they now have (which, although it derives directly from the Roman and corresponds to Roman forms is not the Roman) without Rome is, to my mind, neither here nor there. Now, let me put the question another way, e.g.: Might not legacies (and under the so-called will of today the chief beneficiary becomes, in fact, merely a universal legatee) have arisen of themselves out of bourgeois society, even without any reference to Rome? Or, in place of legacies, just written instructions on the part of the defuncti as to the disposal of their assets?

What still seems to me not proven is that the Greek will was imported by Rome, although there would admittedly seem to be every probability that this is so.

You will have seen that Blanqui’s sentence — one of the most outrageous that have ever been pronounced — has been confirmed in the court of appeal. I am now curious to see what his friend in Brussels will have to tell me.

My wife sends her kindest regards.

Your
K. M.

As regards Brockhaus, I shall consider the matter as soon as I have finished [the second instalment of the Critique of Political Economy]. Hitherto I have never sent a manuscript out on spec.