THE EARLY HISTORY OF TESTAMENTARY SUCCESSION
If an attempt were made to demonstrate in England the superiority of
the historical method of investigation to the modes of inquiry
concerning Jurisprudence which are in fashion among us, no department
of Law would better serve as an example than Testaments or Wills. Its
capabilities it owes to its great length and great continuity. At the
beginning of its history we find ourselves in the very infancy of the
social state, surrounded by conceptions which it requires some effort
of mind to realise in their ancient form; while here, at the other
extremity of its line of progress, we are in the midst of legal
notions which are nothing more than those same conceptions disguised
by the phraseology and by the habits of thought which belong to modern
times, and exhibiting therefore a difficulty of another kind, the
difficulty of believing that ideas which form part of our everyday
mental stock can really stand in need of analysis and examination. The
growth of the Law of Wills between these extreme points can be traced
with remarkable distinctness. It was much less interrupted at the
epoch of the birth of feudalism, than the history of most other
branches of law. It is, indeed, true that, as regards all provinces of
jurisprudence, the break caused by the division between ancient and
modern history, or in other words by the dissolution of the Roman
empire, has been very greatly exaggerated. Indolence has disinclined
many writers to be at the pains of looking for threads of connection
entangled and obscured by the confusions of six troubled centuries,
while other inquirers, not naturally deficient in patience and
industry, have been misled by idle pride in the legal system of their
country, and by consequent unwillingness to confess its obligations to
the jurisprudence of Rome. But these unfavourable influences have had
comparatively little effect on the province of Testamentary Law. The
barbarians were confessedly strangers to any such conception as that
of a Will. The best authorities agree that there is no trace of it in
those parts of their written codes which comprise the customs
practised by them in their original seats, and in their subsequent
settlements on the edge of the Roman empire. But soon after they
became mixed with the population of the Roman provinces they
appropriated from the Imperial jurisprudence the conception of a Will,
at first in part, and afterwards in all its integrity. The influence
of the Church had much to do with this rapid assimilation. The
ecclesiastical power had very early succeeded to those privileges of
custody and registration of Testaments which several of the heathen
temples had enjoyed; and even thus early it was almost exclusively to
private bequests that the religious foundations owed their temporal
possessions. Hence it is that the decrees of the earliest Provincial
Councils perpetually contain anathemas against those who deny the
sanctity of Wills. Here, in England, Church influence was certainly
chief among the causes which by universal acknowledgment have
prevented that discontinuity in the history of Testamentary Law, which
is sometimes believed to exist in the history of other provinces of
Jurisprudence. The jurisdiction over one class of Wills was delegated
to the Ecclesiastical Courts, which applied to them, though not always
intelligently, the principles of Roman jurisprudence; and, though
neither the courts of Common Law nor the Court of Chancery owned any
positive obligation to follow the Ecclesiastical tribunals, they could
not escape the potent influence of a system of settled rules in course
of application by their side. The English law of testamentary
succession to personalty has become a modified form of the
dispensation under which the inheritances of Roman citizens were
administered.
It is not difficult to point out the extreme difference of the
conclusions forced on us by the historical treatment of the subject
from those to which we are conducted when, without the help of
history, we merely strive to analyse our _prima facie_ impressions. I
suppose there is nobody who, starting from the popular or even the
legal conception of a Will, would not imagine that certain qualities
are necessarily attached to it. He would say, for example, that a Will
necessarily takes effect _at death only_--that it is _secret_, not
known as a matter of course to persons taking interests under its
provisions--that it is _revocable_, _i.e._ always capable of being
superseded by a new act of testation. Yet I shall be able to show
that there was a time when none of these characteristics belonged to a
Will. The Testaments from which our Wills are directly descended at
first took effect immediately on their execution; they were not
secret; they were not revocable. Few legal agencies are, in fact, the
fruit of more complex historical agencies than that by which a man's
written intentions control the posthumous disposition of his goods.
Testaments very slowly and gradually gathered round them the qualities
I have mentioned; and they did this from causes and under pressure of
events which may be called casual, or which at any rate have no
interest for us at present, except so far as they have affected the
history of law.
At a time when legal theories were more abundant than at
present--theories which, it is true, were for the most part gratuitous
and premature enough, but which nevertheless rescued jurisprudence
from that worse and more ignoble condition, not unknown to ourselves,
in which nothing like a generalisation is aspired to, and law is
regarded as a mere empirical pursuit--it was the fashion to explain
the ready and apparently intuitive perception which we have of certain
qualities in a Will, by saying that they were natural to it, or, as
the phrase would run in full, attached to it by the Law of Nature.
Nobody, I imagine, would affect to maintain such a doctrine, when once
it was ascertained that all these characteristics had their origin
within historical memory; at the same time, vestiges of the theory of
which the doctrine is an offshoot, linger in forms of expression which
we all of us use and perhaps scarcely know how to dispense with. I may
illustrate this by mentioning a position common in the legal
literature of the seventeenth century. The jurists of that period very
commonly assert that the power of Testation itself is of Natural Law,
that it is a right conferred by the Law of Nature. Their teaching,
though all persons may not at once see the connection, is in substance
followed by those who affirm that the right of dictating or
controlling the posthumous disposal of property is a necessary or
natural consequence of the proprietary rights themselves. And every
student of technical jurisprudence must have come across the same
view, clothed in the language of a rather different school, which, in
its rationale of this department of law, treats succession _ex
testamento_ as the mode of devolution which the property of deceased
persons ought primarily to follow, and then proceeds to account for
succession _ab intestato_ as the incidental provision of the lawgiver
for the discharge of a function which was only left unperformed
through the neglect or misfortune of the deceased proprietor. These
opinions are only expanded forms of the more compendious doctrine that
Testamentary disposition is an institution of the Law of Nature. It is
certainly never quite safe to pronounce dogmatically as to the range
of association embraced by modern minds, when they reflect on Nature
and her Law; but I believe that most persons, who affirm that the
Testamentary Power is of Natural Law, may be taken to imply either
that, as a matter of fact, it is universal, or that nations are
prompted to sanction it by an original instinct and impulse. With
respect to the first of these positions, I think that, when explicitly
set forth, it can never be seriously contended for in an age which has
seen the severe restraints imposed on the Testamentary Power by the
_Code Napoleon_, and has witnessed the steady multiplication of
systems for which the French codes have served as a model. To the
second assertion we must object that it is contrary to the
best-ascertained facts in the early history of law, and I venture to
affirm generally that, in all indigenous societies, a condition of
jurisprudence in which Testamentary privileges are _not_ allowed, or
rather not contemplated, has preceded that later stage of legal
development in which the mere will of the proprietor is permitted
under more or less of restriction to override the claims of his
kindred in blood.
The conception of a Will or Testament cannot be considered by itself.
It is a member, and not the first, of a series of conceptions. In
itself a Will is simply the instrument by which the intention of the
testator is declared. It must be clear, I think, that before such an
instrument takes its turn for discussion, there are several
preliminary points to be examined--as, for example, what is it, what
sort of right or interest, which passes from a dead man on his
decease? to whom and in what form does it pass? and how came it that
the dead were allowed to control the posthumous disposition of their
property? Thrown into technical language, the dependence of the
various conceptions which contribute to the notion of a Will is thus
expressed. A Will or Testament is an instrument by which the
devolution of an inheritance is prescribed. Inheritance is a form of
universal succession. A universal succession is a succession to a
_universitas juris_, or university of rights and duties. Inverting
this order we have therefore to inquire what is a _universitas juris_;
what is a universal succession; what is the form of universal
succession which is called an inheritance? And there are also two
further questions, independent to some extent of the points I have
mooted, but demanding solution before the subject of Wills can be
exhausted. These are, how came an inheritance to be controlled in any
case by the testator's volition, and what is the nature of the
instrument by which it came to be controlled?
The first question relates to the _universitas juris_; that is, a
university (or bundle) of rights and duties. A _universitas juris_ is
a collection of rights and duties united by the single circumstance of
their having belonged at one time to some one person. It is, as it
were, the legal clothing of some given individual. It is not formed by
grouping together _any_ rights and _any_ duties. It can only be
constituted by taking all the rights and all the duties of a
particular person. The tie which so connects a number of rights of
property, rights of way, rights to legacies, duties of specific
performance, debts, obligations to compensate wrongs--which so
connects all these legal privileges and duties together as to
constitute them a _universitas juris_, is the _fact_ of their having
attached to some individual capable of exercising them. Without this
_fact_ there is no university of rights and duties. The expression
_universitas juris_ is not classical, but for the notion jurisprudence
is exclusively indebted to Roman law; nor is it at all difficult to
seize. We must endeavour to collect under one conception the whole set
of legal relations in which each one of us stands to the rest of the
world. These, whatever be their character and composition, make up
together a _universitas juris_; and there is but little danger of
mistake in forming the notion, if we are only careful to remember that
duties enter into it quite as much as rights. Our duties may
overbalance our rights. A man may owe more than he is worth, and
therefore if a money value is set on his collective legal relations he
may be what is called insolvent. But for all that the entire group of
rights and duties which centres in him is not the less a "juris
universitas."
We come next to a "universal succession." A universal succession is a
succession to a _universitas juris_. It occurs when one man is
invested with the legal clothing of another, becoming at the same
moment subject to all his liabilities and entitled to all his rights.
In order that the universal succession may be true and perfect, the
devolution must take place _uno ictu_, as the jurists phrase it. It is
of course possible to conceive one man acquiring the whole of the
rights and duties of another at different periods, as for example by
successive purchases; or he might acquire them in different
capacities, part as heir, part as purchaser, part as legatee. But
though the group of rights and duties thus made up should in fact
amount to the whole legal personality of a particular individual, the
acquisition would not be a universal succession. In order that there
may be a true universal succession, the transmission must be such as
to pass the whole aggregate of rights and duties at the _same_ moment
and in virtue of the _same_ legal capacity in the recipient. The
notion of a universal succession, like that of a juris universitas, is
permanent in jurisprudence, though in the English legal system it is
obscured by the great variety of capacities in which rights are
acquired, and, above all, by the distinction between the two great
provinces of English property, "realty" and "personalty." The
succession of an assignee in bankruptcy to the entire property of the
bankrupt is, however, a universal succession, though as the assignee
only pays debts to the extent of the assets, this is only a modified
form of the primary notion. Were it common among us for persons to
take assignments of _all_ a man's property on condition of paying
_all_ his debts, such transfers would exactly resemble the universal
successions known to the oldest Roman Law. When a Roman citizen
_adrogated_ a son, _i.e._ took a man, not already under Patria
Potestas, as his adoptive child, he succeeded _universally_ to the
adoptive child's estate, _i.e._ he took all the property and became
liable for all the obligations. Several other forms of universal
succession appear in the primitive Roman Law, but infinitely the most
important and the most durable of all was that one with which we are
more immediately concerned, Haereditas or Inheritance. Inheritance was
a universal succession occurring at a death. The universal successor
was Haeres or Heir. He stepped at once into all the rights and all the
duties of the dead man. He was instantly clothed with his entire legal
person, and I need scarcely add that the special character of the
Haeres remained the same, whether he was named by a Will or whether he
took on an Intestacy. The term Haeres is no more emphatically used of
the Intestate than of the Testamentary Heir, for the manner in which a
man became Haeres had nothing to do with the legal character he
sustained. The dead man's universal successor, however he became so,
whether by Will or by Intestacy, was his Heir. But the Heir was not
necessarily a single person. A group of persons considered in law as a
single unit, might succeed as _co-heirs_ to the Inheritance.
Let me now quote the usual Roman definition of an Inheritance. The
reader will be in a position to appreciate the full force of the
separate terms. _Haereditas est successio in universum jus quod
defunctus habuit_ ("an inheritance is a succession to the entire legal
position of a deceased man"). The notion was that, though the physical
person of the deceased had perished, his legal personality survived
and descended unimpaired on his Heir or Co-heirs, in whom his identity
(so far as the law was concerned) was continued. Our own law, in
constituting the Executor or Administrator the representative of the
deceased to the extent of his personal assets, may serve as an
illustration of the theory from which it emanated, but, although it
illustrates, it does not explain it. The view of even the later Roman
Law required a closeness of correspondence between the position of the
deceased and of his Heir which is no feature of an English
representation; and in the primitive jurisprudence everything turned
on the continuity of succession. Unless provision was made in the will
for the instant devolution of the testator's rights and duties on the
Heir or Co-heirs, the testament lost all its effect.
In modern Testamentary jurisprudence, as in the later Roman law, the
object of first importance is the execution of the testator's
intentions. In the ancient law of Rome the subject of corresponding
carefulness was the bestowal of the Universal Succession. One of these
rules seems to our eyes a principle dictated by common sense, while
the other looks very much like an idle crotchet. Yet that without the
second of them the first would never have come into being is as
certain as any proposition of the kind can be.
In order to solve this apparent paradox, and to bring into greater
clearness the train of ideas which I have been endeavouring to
indicate, I must borrow the results of the inquiry which was attempted
in the earlier portion of the preceding chapter. We saw one
peculiarity invariably distinguishing the infancy of society. Men are
regarded and treated, not as individuals, but always as members of a
particular group. Everybody is first a citizen, and then, as a
citizen, he is a member of his order--of an aristocracy or a
democracy, of an order of patricians or plebeians; or, in those
societies which an unhappy fate has afflicted with a special
perversion in their course of development, of a caste. Next, he is a
member of a gens, house, or clan; and lastly, he is a member of his
_family_. This last was the narrowest and most personal relation in
which he stood; nor, paradoxical as it may seem, was he ever regarded
as _himself_, as a distinct individual. His individuality was
swallowed up in his family. I repeat the definition of a primitive
society given before. It has for its units, not individuals, but
groups of men united by the reality or the fiction of blood-relationship.
It is in the peculiarities of an undeveloped society that we seize the
first trace of a universal succession. Contrasted with the
organisation of a modern state, the commonwealths of primitive times
may be fairly described as consisting of a number of little despotic
governments, each perfectly distinct from the rest, each absolutely
controlled by the prerogative of a single monarch. But though the
Patriarch, for we must not yet call him the Pater-familias, had rights
thus extensive, it is impossible to doubt that he lay under an equal
amplitude of obligations. If he governed the family, it was for its
behoof. If he was lord of its possessions, he held them as trustee for
his children and kindred. He had no privilege or position distinct
from that conferred on him by his relation to the petty commonwealth
which he governed. The Family, in fact, was a Corporation; and he was
its representative or, we might almost say, its Public officer. He
enjoyed rights and stood under duties, but the rights and the duties
were, in the contemplation of his fellow-citizens and in the eye of
the law, quite as much those of the collective body as his own. Let us
consider for a moment the effect which would be produced by the death
of such a representative. In the eye of the law, in the view of the
civil magistrate, the demise of the domestic authority would be a
perfectly immaterial event. The person representing the collective
body of the family and primarily responsible to municipal jurisdiction
would bear a different name; and that would be all. The rights and
obligations which attached to the deceased head of the house would
attach, without breach of continuity, to his successor; for, in point
of fact, they would be the rights and obligations of the family, and
the family had the distinctive characteristic of a corporation--that
it never died. Creditors would have the same remedies against the new
chieftain as against the old, for the liability being that of the
still existing family would be absolutely unchanged. All rights
available to the family would be as available after the demise of the
headship as before it--except that the Corporation would be
obliged--if indeed language so precise and technical can be properly
used of these early times--would be obliged to _sue_ under a slightly
modified name.
The history of jurisprudence must be followed in its whole course, if
we are to understand how gradually and tardily society dissolved
itself into the component atoms of which it is now constituted--by
what insensible gradations the relation of man to man substituted
itself for the relation of the individual to his family and of
families to each other. The point now to be attended to is that even
when the revolution had apparently quite accomplished itself, even
when the magistrate had in great measure assumed the place of the
Pater-familias, and the civil tribunal substituted itself for the
domestic forum, nevertheless the whole scheme of rights and duties
administered by the judicial authorities remained shaped by the
influence of the obsolete privileges and coloured in every part by
their reflection. There seems little question that the devolution of
the Universitas Juris, so strenuously insisted upon by the Roman Law
as the first condition of a testamentary or intestate succession, was
a feature of the older form of society which men's minds had been
unable to dissociate from the new, though with that newer phase it had
no true or proper connection. It seems, in truth, that the
prolongation of a man's legal existence in his heir, or in a group of
co-heirs, is neither more nor less than a characteristic of _the
family_ transferred by a fiction to _the individual_. Succession in
corporations is necessarily universal, and the family was a
corporation. Corporations never die. The decease of individual members
makes no difference to the collective existence of the aggregate body,
and does not in any way affect its legal incidents, its faculties or
liabilities. Now in the idea of a Roman universal succession all
these qualities of a corporation seem to have been transferred to the
individual citizen. His physical death is allowed to exercise no
effect on the legal position which he filled, apparently on the
principle that that position is to be adjusted as closely as possible
to the analogies of a family, which, in its corporate character, was
not of course liable to physical extinction.
I observe that not a few continental jurists have much difficulty in
comprehending the nature of the connection between the conceptions
blended in a universal succession, and there is perhaps no topic in
the philosophy of jurisprudence on which their speculations, as a
general rule, possess so little value. But the student of English law
ought to be in no danger of stumbling at the analysis of the idea
which we are examining. Much light is cast upon it by a fiction in our
own system with which all lawyers are familiar. English lawyers
classify corporations as Corporations aggregate and Corporations sole.
A Corporation aggregate is a true Corporation, but a Corporation sole
is an individual, being a member of a series of individuals, who is
invested by a fiction with the qualities of a Corporation. I need
hardly cite the King or the Parson of a Parish as instances of
Corporations sole. The capacity or office is here considered apart
from the particular person who from time to time may occupy it, and,
this capacity being perpetual, the series of individuals who fill it
are clothed with the leading attribute of Corporations--Perpetuity.
Now in the older theory of Roman Law the individual bore to the family
precisely the same relation which in the rationale of English
jurisprudence a Corporation sole bears to a Corporation aggregate. The
derivation and association of ideas are exactly the same. In fact, if
we say to ourselves that for purposes of Roman Testamentary
Jurisprudence each individual citizen was a Corporation sole, we shall
not only realise the full conception of an inheritance, but have
constantly at command the clue to the assumption in which it
originated. It is an axiom with us that the King never dies, being a
Corporation sole. His capacities are instantly filled by his
successor, and the continuity of dominion is not deemed to have been
interrupted. With the Romans it seemed an equally simple and natural
process, to eliminate the fact of death from the devolution of rights
and obligations. The testator lived on in his heir or in the group of
his co-heirs. He was in law the same person with them, and if any one
in his testamentary dispositions had even constructively violated the
principle which united his actual and his posthumous existence, the
law rejected the defective instrument, and gave the inheritance to the
kindred in blood, whose capacity to fulfil the conditions of heirship
was conferred on them by the law itself, and not by any document which
by possibility might be erroneously framed.
When a Roman citizen died intestate or leaving no valid Will, his
descendants or kindred became his heirs according to a scale which
will be presently described. The person or class of persons who
succeeded did not simply _represent_ the deceased, but, in conformity
with the theory just delineated, they _continued_ his civil life, his
legal existence. The same results followed when the order of
succession was determined by a Will, but the theory of the identity
between the dead man and his heirs was certainly much older than any
form of Testament or phase of Testamentary jurisprudence. This indeed
is the proper moment for suggesting a doubt which will press on us
with greater force the further we plumb the depths of this
subject,--whether _wills_ would ever have come into being at all if it
had not been for these remarkable ideas connected with universal
succession. Testamentary law is the application of a principle which
may be explained on a variety of philosophical hypotheses as plausible
as they are gratuitous; it is interwoven with every part of modern
society, and it is defensible on the broadest grounds of general
expediency. But the warning can never be too often repeated, that the
grand source of mistake in questions of jurisprudence is the
impression that those reasons which actuate us at the present moment,
in the maintenance of an existing institution, have necessarily
anything in common with the sentiment in which the institution
originated. It is certain that, in the old Roman Law of Inheritance,
the notion of a will or testament is inextricably mixed up, I might
almost say confounded, with the theory of a man's posthumous existence
in the person of his heir.
The conception of a universal succession, firmly as it has taken root
in jurisprudence, has not occurred spontaneously to the framers of
every body of laws. Wherever it is now found, it may be shown to have
descended from Roman law; and with it have come down a host of legal
rules on the subject of Testaments and Testamentary gifts, which
modern practitioners apply without discerning their relation to the
parent theory. But, in the pure Roman jurisprudence, the principle
that a man lives on in his Heir--the elimination, if we may so speak,
of the fact of death--is too obviously for mistake the centre round
which the whole Law of Testamentary and Intestate succession is
circling. The unflinching sternness of the Roman law in enforcing
compliance with the governing theory would in itself suggest that the
theory grew out of something in the primitive constitution of Roman
society; but we may push the proof a good way beyond the presumption.
It happens that several technical expressions, dating from the
earliest institution of Wills at Rome, have been accidentally
preserved to us. We have in Gaius the formula of investiture by which
the universal successor was created. We have the ancient name by which
the person afterwards called Heir was at first designated. We have
further the text of the celebrated clause in the Twelve Tables by
which the Testamentary power was expressly recognised, and the clauses
regulating Intestate Succession have also been preserved. All these
archaic phrases have one salient peculiarity. They indicate that what
passed from the Testator to the Heir was the _Family_, that is, the
aggregate of rights and duties contained in the Patria Potestas and
growing out of it. The material property is in three instances not
mentioned at all; in two others, it is visibly named as an adjunct or
appendage of the Family. The original Will or Testament was therefore
an instrument, or (for it was probably not at first in writing) a
proceeding, by which the devolution of the _Family_ was regulated. It
was a mode of declaring who was to have the chieftainship, in
succession to the Testator. When Wills are understood to have this for
their original object, we see at once how it is that they came to be
connected with one of the most curious relics of ancient religion and
law, the _sacra_, or Family Rites. These _sacra_ were the Roman form
of an institution which shows itself wherever society has not wholly
shaken itself free from its primitive clothing. They are the
sacrifices and ceremonies by which the brotherhood of the family is
commemorated, the pledge and the witness of its perpetuity. Whatever
be their nature,--whether it be true or not that in all cases they are
the worship of some mythical ancestor,--they are everywhere employed
to attest the sacredness of the family-relation; and therefore they
acquire prominent significance and importance, whenever the continuous
existence of the Family is endangered by a change in the person of its
chief. Accordingly we hear most about them in connection with demises
of domestic sovereignty. Among the Hindoos, the right to inherit a
dead man's property is exactly co-extensive with the duty of
performing his obsequies. If the rites are not properly performed or
not performed by the proper person, no relation is considered as
established between the deceased and anybody surviving him; the Law of
Succession does not apply, and nobody can inherit the property. Every
great event in the life of a Hindoo seems to be regarded as leading up
to and bearing upon those solemnities. If he marries, it is to have
children who may celebrate them after his death; if he has no
children, he lies under the strongest obligation to adopt them from
another family, "with a view," writes the Hindoo doctor, "to the
funeral cake, the water, and the solemn sacrifice." The sphere
preserved to the Roman _sacra_ in the time of Cicero, was not less in
extent. It embraced Inheritances and Adoptions. No Adoption was
allowed to take place without due provision for the _sacra_ of the
family from which the adoptive son was transferred, and no Testament
was allowed to distribute an Inheritance without a strict
apportionment of the expenses of these ceremonies among the different
co-heirs. The differences between the Roman law at this epoch, when we
obtain our last glimpse of the _sacra_, and the existing Hindoo
system, are most instructive. Among the Hindoos, the religious element
in law has acquired a complete predominance. Family sacrifices have
become the keystone of all the Law of Persons and much of the Law of
Things. They have even received a monstrous extension, for it is a
plausible opinion that the self-immolation of the widow at her
husband's funeral, a practice continued to historical times by the
Hindoos, and commemorated in the traditions of several Indo-European
races, was an addition grafted on the primitive _sacra_, under the
influence of the impression, which always accompanies the idea of
sacrifice, that human blood is the most precious of all oblations.
With the Romans, on the contrary, the legal obligation and the
religious duty have ceased to be blended. The necessity of solemnising
the _sacra_ forms no part of the theory of civil law, but they are
under the separate jurisdiction of the College of Pontiffs. The
letters of Cicero to Atticus, which are full of allusions to them,
leave no doubt that they constituted an intolerable burden on
Inheritances; but the point of development at which law breaks away
from religion has been passed, and we are prepared for their entire
disappearance from the later jurisprudence.
In Hindoo law there is no such thing as a true Will. The place filled
by Wills is occupied by Adoptions. We can now see the relation of the
Testamentary Power to the Faculty of Adoption, and the reason why the
exercise of either of them could call up a peculiar solicitude for the
performance of the _sacra_. Both a Will and an Adoption threaten a
distortion of the ordinary course of Family descent, but they are
obviously contrivances for preventing the descent being wholly
interrupted, when there is no succession of kindred to carry it on. Of
the two expedients Adoption, the factitious creation of
blood-relationship, is the only one which has suggested itself to the
greater part of archaic societies. The Hindoos have indeed advanced
one point on what was doubtless the antique practice, by allowing the
widow to adopt when the father has neglected to do so, and there are
in the local customs of Bengal some faint traces of the Testamentary
powers. But to the Romans belongs pre-eminently the credit of
inventing the Will, the institution which, next to the Contract, has
exercised the greatest influence in transforming human society. We
must be careful not to attribute to it in its earliest shape the
functions which have attended it in more recent times. It was at
first, not a mode of distributing a dead man's goods, but one among
several ways of transferring the representation of the household to a
new chief. The goods descend no doubt to the Heir, but that is only
because the government of the family carries with it in its devolution
the power of disposing of the common stock. We are very far as yet
from that stage in the history of Wills in which they become powerful
instruments in modifying society through the stimulus they give to the
circulation of property and the plasticity they produce in proprietary
rights. No such consequences as these appear in fact to have been
associated with the Testamentary power even by the latest Roman
lawyers. It will be found that Wills were never looked upon in the
Roman community as a contrivance for parting Property and the Family,
or for creating a variety of miscellaneous interests, but rather as a
means of making a better provision for the members of a household than
could be secured through the rules of Intestate succession. We may
suspect indeed that the associations of a Roman with the practice of
will-making were extremely different from those familiar to us
nowadays. The habit of regarding Adoption and Testation as modes of
continuing the Family cannot but have had something to do with the
singular laxity of Roman notions as to the inheritance of sovereignty.
It is impossible not to see that the succession of the early Roman
Emperors to each other was considered reasonably regular, and that, in
spite of all that had occurred, no absurdity attached to the
pretension of such Princes as Theodosius or Justinian to style
themselves Caesar and Augustus.
When the phenomena of primitive societies emerge into light, it seems
impossible to dispute a proposition which the jurists of the
seventeenth century considered doubtful, that Intestate Inheritance is
a more ancient institution than Testamentary Succession. As soon as
this is settled, a question of much interest suggests itself, how and
under what conditions were the directions of a will first allowed to
regulate the devolution of authority over the household, and
consequently the posthumous distribution of property. The difficulty
of deciding the point arises from the rarity of Testamentary power in
archaic communities. It is doubtful whether a true power of testation
was known to any original society except the Roman. Rudimentary forms
of it occur here and there, but most of them are not exempt from the
suspicion of a Roman origin. The Athenian will was, no doubt,
indigenous, but then, as will appear presently, it was only an
inchoate Testament. As to the Wills which are sanctioned by the bodies
of law which have descended to us as the codes of the barbarian
conquerors of Imperial Rome, they are almost certainly Roman. The most
penetrating German criticism has recently been directed to these
_leges Barbarorum_, the great object of investigation being to detach
those portions of each system which formed the customs of the tribe in
its original home from the adventitious ingredients which were
borrowed from the laws of the Romans. In the course of this process,
one result has invariably disclosed itself, that the ancient nucleus
of the code contains no trace of a Will. Whatever testamentary law
exists, has been taken from Roman jurisprudence. Similarly, the
rudimentary Testament which (as I am informed) the Rabbinical Jewish
law provides for, has been attributed to contact with the Romans. The
only form of testament, not belonging to a Roman or Hellenic society,
which can reasonably be supposed indigenous, is that recognised by the
usages of the province of Bengal; and the testament of Bengal is only
a rudimentary Will.
The evidence, however, such as it is, seems to point to the conclusion
that Testaments are at first only allowed to take effect on failure of
the persons entitled to have the inheritance by right of blood genuine
or fictitious. Thus, when Athenian citizens were empowered for the
first time by the Laws of Solon to execute Testaments, they were
forbidden to disinherit their direct male descendants. So, too, the
Will of Bengal is only permitted to govern the succession so far as it
is consistent with certain overriding claims of the family. Again, the
original institutions of the Jews having provided nowhere for the
privileges of Testatorship, the later Rabbinical jurisprudence, which
pretends to supply the _casus omissi_ of the Mosaic law, allows the
Power of Testation to attach when all the kindred entitled under the
Mosaic system to succeed have failed or are undiscoverable. The
limitations by which the ancient German codes hedge in the
testamentary jurisprudence which has been incorporated with them are
also significant, and point in the same direction. It is the
peculiarity of most of these German laws, in the only shape in which
we know them, that, besides the _allod_ or domain of each household,
they recognise several subordinate kinds or orders of property, each
of which probably represents a separate transfusion of Roman
principles into the primitive body of Teutonic usage. The primitive
German or allodial property is strictly reserved to the kindred. Not
only is it incapable of being disposed of by testament but it is
scarcely capable of being alienated by conveyance _inter vivos_. The
ancient German law, like the Hindoo jurisprudence, makes the male
children co-proprietors with their father, and the endowment of the
family cannot be parted with except by the consent of all its members.
But the other sorts of property, of more modern origin and lower
dignity than the allodial possessions, are much more easily alienated
than they, and follow much more lenient rules of devolution. Women
and the descendants of women succeed to them, obviously on the
principle that they lie outside the sacred precinct of the Agnatic
brotherhood. Now, it is on these last descriptions of property, and on
these only, that the Testaments borrowed from Rome were at first
allowed to operate.
These few indications may serve to lend additional plausibility to
that which in itself appears to be the most probable explanation of an
ascertained fact in the early history of Roman Wills. We have it
stated on abundant authority that Testaments, during the primitive
period of the Roman State, were executed in the Comitia Calata, that
is, in the Comitia Curiata, or Parliament of the Patrician Burghers of
Rome, when assembled for Private Business. This mode of execution has
been the source of the assertion, handed down by one generation of
civilians to another, that every Will at one era of Roman history was
a solemn legislative enactment. But there is no necessity whatever for
resorting to an explanation which has the defect of attributing far
too much precision to the proceedings of the ancient assembly. The
proper key to the story concerning the execution of Wills in the
Comitia Calata must no doubt be sought in the oldest Roman Law of
_intestate_ succession. The canons of primitive Roman jurisprudence
regulating the inheritance of relations from each other were, so long
as they remained unmodified by the Edictal Law of the Praetor, to the
following effect:--First, the _sui_ or direct descendants who had
never been emancipated succeeded. On the failure of the _sui_, the
Nearest Agnate came into their place, that is, the nearest person or
class of the kindred who was or might have been under the same Patria
Potestas with the deceased. The third and last degree came next, in
which the inheritance devolved on the _gentiles_, that is on the
collective members of the dead man's _gens_ or _House_. The House, I
have explained already, was a fictitious extension of the family,
consisting of all Roman Patrician citizens who bore the same name, and
who, on the ground of bearing the same name, were supposed to be
descended from a common ancestor. Now the Patrician Assembly called
the Comitia Curiata was a Legislature in which Gentes or Houses were
exclusively represented. It was a representative assembly of the Roman
people, constituted on the assumption that the constituent unit of the
state was the Gens. This being so, the inference seems inevitable,
that the cognizance of Wills by the Comitia was connected with the
rights of the Gentiles, and was intended to secure them in their
privilege of ultimate inheritance. The whole apparent anomaly is
removed, if we suppose that a Testament could only be made when the
testator had no _gentiles_ discoverable, or when they waived their
claims, and that every Testament was submitted to the General Assembly
of the Roman Gentes, in order that those aggrieved by its dispositions
might put their veto upon it if they pleased, or by allowing it to
pass might be presumed to have renounced their reversion. It is
possible that on the eve of the publication of the Twelve Tables this
vetoing power may have been greatly curtailed or only occasionally and
capriciously exercised. It is much easier, however, to indicate the
meaning and origin of the jurisdiction confided to the Comitia Calata,
than to trace its gradual development or progressive decay.
The Testament to which the pedigree of all modern Wills may be traced
is not, however, the Testament executed in the Calata Comitia, but
another Testament designed to compete with it and destined to
supersede it. The historical importance of this early Roman Will, and
the light it casts on much of ancient thought, will excuse me for
describing it at some length.
When the Testamentary power first discloses itself to us in legal
history, there are signs that, like almost all the great Roman
institutions, it was the subject of contention between the Patricians
and the Plebeians. The effect of the political maxim, _Plebs Gentem
non habet_, "a Plebeian cannot be a member of a House," was entirely
to exclude the Plebeians from the Comitia Curiata. Some critics have
accordingly supposed that a Plebeian could not have his Will read or
recited to the Patrician Assembly, and was thus deprived of
Testamentary privileges altogether. Others have been satisfied to
point out the hardships of having to submit a proposed Will to the
unfriendly jurisdiction of an assembly in which the Testator was not
represented. Whatever be the true view, a form of Testament came into
use, which has all the characteristics of a contrivance intended to
evade some distasteful obligation. The Will in question was a
conveyance _inter vivos_, a complete and irrevocable alienation of the
Testator's family and substance to the person whom he meant to be his
heir. The strict rules of Roman law must always have permitted such an
alienation, but, when the transaction was intended to have a
posthumous effect, there may have been disputes whether it was valid
for Testamentary purposes without the formal assent of the Patrician
Parliament. If a difference of opinion existed on the point between
the two classes of the Roman population, it was extinguished, with
many other sources of heartburning, by the great Decemviral
compromise. The text of the Twelve Tables is still extant which says,
"_Pater familias uti de pecunia tutelave rei suae legassit, ita jus
esto_"--a law which can hardly have had any other object than the
legalisation of the Plebeian Will.
It is well known to scholars that, centuries after the Patrician
Assembly had ceased to be the legislature of the Roman State, it still
continued to hold formal sittings for the convenience of private
business. Consequently, at a period long subsequent to the publication
of the Decemviral Law, there is reason to believe that the Comitia
Calata still assembled for the validation of Testaments. Its probable
functions may be best indicated by saying that it was a Court of
Registration, with the understanding however that the Wills exhibited
were not _enrolled_, but simply recited to the members, who were
supposed to take note of their tenor and to commit them to memory. It
is very likely that this form of Testament was never reduced to
writing at all, but at all events if the Will had been originally
written, the office of the Comitia was certainly confined to hearing
it read aloud, the document being retained afterwards in the custody
of the Testator, or deposited under the safeguard of some religious
corporation. This publicity may have been one of the incidents of the
Testament executed in the Comitia Calata which brought it into popular
disfavour. In the early years of the Empire the Comitia still held its
meetings, but they seem to have lapsed into the merest form, and few
Wills, or none, were probably presented at the periodical sitting.
It is the ancient Plebeian Will--the alternative of the Testament just
described--which in its remote effects has deeply modified the
civilisation of the modern world. It acquired at Rome all the
popularity which the Testament submitted to the Calata Comitia appears
to have lost. The key to all its characteristics lies in its descent
from the _mancipium_, or ancient Roman conveyance, a proceeding to
which we may unhesitatingly assign the parentage of two great
institutions without which modern society can scarcely be supposed
capable of holding together, the Contract and the Will. The
_mancipium_, or as the word would exhibit itself in later Latinity,
the Mancipation, carries us back by its incidents to the infancy of
civil society. As it sprang from times long anterior, if not to the
invention, at all events to the popularisation, of the art of writing,
gestures, symbolical acts, and solemn phrases take the place of
documentary forms, and a lengthy and intricate ceremonial is intended
to call the attention of the parties to the importance of the
transaction, and to impress it on the memory of the witnesses. The
imperfection too of oral, as compared with written, testimony
necessitates the multiplication of the witnesses and assistants beyond
what in later times would be reasonable or intelligible limits.
The Roman Mancipation required the presence first of all of the
parties, the vendor and vendee, or we should perhaps rather say, if we
are to use modern legal language, the grantor and grantee. There were
also no less than _five_ witnesses; and an anomalous personage, the
Libripens, who brought with him a pair of scales to weigh the uncoined
copper money of ancient Rome. The Testament we are considering--the
Testament _per aes et libram_, "with the copper and the scales," as it
long continued to be technically called--was an ordinary Mancipation
with no change in the form and hardly any in words. The Testator was
the grantor; the five witnesses and the libripens were present; and
the place of grantee was taken by a person known technically as the
_familiae emptor_, the Purchaser of the Family. The ordinary ceremony
of a Mancipation was then proceeded with. Certain formal gestures were
made and sentences pronounced. The _Emptor familiae_ simulated the
payment of a price by striking the scales with a piece of money, and
finally the Testator ratified what had been done in a set form of
words called the "Nuncupatio" or publication of the transaction, a
phrase which, I need scarcely remind the lawyer, has had a long
history in Testamentary jurisprudence. It is necessary to attend
particularly to the character of the person called _familiae emptor_.
There is no doubt that at first he was the Heir himself. The Testator
conveyed to him outright his whole "familia," that is, all the rights
he enjoyed over and through the family; his property, his slaves, and
all his ancestral privileges, together, on the other hand, with all
his duties and obligations.
With these data before us, we are able to note several remarkable
points in which the Mancipatory Testament, as it may be called,
differed in its primitive form from a modern will. As it amounted to a
conveyance _out-and-out_ of the Testator's estate, it was not
_revocable_. There could be no new exercise of a power which had been
exhausted.
Again, it was not secret. The Familiae Emptor, being himself the Heir,
knew exactly what his rights were, and was aware that he was
irreversibly entitled to the inheritance; a knowledge which the
violences inseparable from the best-ordered ancient society rendered
extremely dangerous. But perhaps the most surprising consequence of
this relation of Testaments to Conveyances was the immediate vesting
of the inheritance in the Heir. This has seemed so incredible to not a
few civilians, that they have spoken of the Testator's estate as
vesting conditionally on the Testator's death or as granted to him
from a time uncertain, _i.e._ the death of the grantor. But down to
the latest period of Roman jurisprudence there was a certain class of
transactions which never admitted of being directly modified by a
condition, or of being limited to or from a point of time. In
technical language they did not admit _conditio_ or _dies_.
Mancipation was one of them, and therefore, strange as it may seem, we
are forced to conclude that the primitive Roman Will took effect at
once, even though the Testator survived his act of Testation. It is
indeed likely that Roman citizens originally made their Wills only in
the article of death, and that a provision for the continuance of the
Family effected by a man in the flower of life would take the form
rather of an Adoption than of a Will. Still we must believe that, if
the Testator did recover, he could only continue to govern his
household by the sufferance of his Heir.
Two or three remarks should be made before I explain how these
inconveniences were remedied, and how Testaments came to be invested
with the characteristics now universally associated with them. The
Testament was not necessarily written: at first, it seems to have been
invariably oral, and, even in later times, the instrument declaratory
of the bequests was only incidentally connected with the Will and
formed no essential part of it. It bore in fact exactly the same
relation to the Testament, which the deed leading the uses bore to the
Fines and Recoveries of old English law, or which the charter of
feoffment bore to the feoffment itself. Previously, indeed, to the
Twelve Tables, no writing would have been of the slightest use, for
the Testator had no power of giving legacies, and the only persons who
could be advantaged by a will were the Heir or Co-heirs. But the
extreme generality of the clause in the Twelve Tables soon produced
the doctrine that the Heir must take the inheritance burdened by any
directions which the Testator might give him, or in other words, take
it subject to legacies. Written testamentary instruments assumed
thereupon a new value, as a security against the fraudulent refusal of
the heir to satisfy the legatees; but to the last it was at the
Testator's pleasure to rely exclusively on the testimony of the
witnesses, and to declare by word of mouth the legacies which the
_familiae emptor_ was commissioned to pay.
The terms of the expression _Emptor familiae_ demand notice. "Emptor"
indicates that the Will was literally a sale, and the word "familiae,"
when compared with the phraseology in the Testamentary clause in the
Twelve Tables, leads us to some instructive conclusions. "Familia," in
classical Latinity, means always a man's slaves. Here, however, and
generally in the language of ancient Roman law, it includes all
persons under his Potestas, and the Testator's material property or
substance is understood to pass as an adjunct or appendage of his
household. Turning to the law of the Twelve Tables, it will be seen
that it speaks of _tutela rei suae_, "the guardianship of his
substance," a form of expression which is the exact reverse of the
phrase just examined. There does not therefore appear to be any mode
of escaping from the conclusion, that, even at an era so comparatively
recent as that of the Decemviral compromise, terms denoting
"household" and "property" were blended in the current phraseology. If
a man's household had been spoken of as his property we might have
explained the expression as pointing to the extent of the Patria
Potestas, but, as the interchange is reciprocal, we must allow that
the form of speech carries us back to that primeval period in which
property is owned by the family, and the family is governed by the
citizen, so that the members of the community do not own their
property _and_ their family, but rather own their property _through_
their family.
At an epoch not easy to settle with precision, the Roman Praetors fell
into the habit of acting upon Testaments solemnised in closer
conformity with the spirit than the letter of the law. Casual
dispensations became insensibly the established practice, till at
length a wholly new form of Will was matured and regularly engrafted
on the Edictal Jurisprudence. The new or _Praetorian_ Testament derived
the whole of its impregnability from the _Jus Honorarium_ or Equity of
Rome. The Praetor of some particular year must have inserted a clause
in his inaugural Proclamation declaratory of his intention to sustain
all Testaments which should have been executed with such and such
solemnities; and, the reform having been found advantageous, the
article relating to it must have been again introduced by the Praetor's
successor, and repeated by the next in office, till at length it
formed a recognised portion of that body of jurisprudence which from
these successive incorporations was styled the Perpetual or Continuous
Edict. On examining the conditions of a valid Praetorian Will they will
be plainly seen to have been determined by the requirements of the
Mancipatory Testament, the innovating Praetor having obviously
prescribed to himself the retention of the old formalities just so far
as they were warrants of genuineness or securities against fraud. At
the execution of the Mancipatory Testament seven persons had been
present besides the Testator. Seven witnesses were accordingly
essential to the Praetorian Will: two of them corresponding to the
_libripens_ and _familiae emptor_, who were now stripped of their
symbolical character, and were merely present for the purpose of
supplying their testimony. No emblematic ceremony was gone through;
the Will was merely recited; but then it is probable (though not
absolutely certain) that a written instrument was necessary to
perpetuate the evidence of the Testator's dispositions. At all events,
whenever a writing was read or exhibited as a person's last Will, we
know certainly that the Praetorian Court would not sustain it by
special intervention, unless each of the seven witnesses had severally
affixed his seal to the outside. This is the first appearance of
_sealing_ in the history of jurisprudence, considered as a mode of
authentication. It is to be observed that the seals of Roman Wills,
and other documents of importance, did not simply serve as the index
of the presence or assent of the signatory, but were literally
fastenings which had to be broken before the writing could be
inspected.
The Edictal Law would therefore enforce the dispositions of a
Testator, when, instead of being symbolised through the forms of
mancipation, they were simply evidenced by the seals of seven
witnesses. But it may be laid down as a general proposition, that the
principal qualities of Roman property were incommunicable except
through processes which were supposed to be coeval with the origin of
the Civil Law. The Praetor therefore could not confer an _Inheritance_
on anybody. He could not place the Heir or Co-heirs in that very
relation in which the Testator had himself stood to his own rights and
obligations. All he could do was to confer on the person designated as
Heir the practical enjoyment of the property bequeathed, and to give
the force of legal acquittances to his payments of the Testator's
debts. When he exerted his powers to these ends, the Praetor was
technically said to communicate the _Bonorum Possessio_. The Heir
specially inducted under these circumstances, or _Bonorum Possessor_,
had every proprietary privilege of the Heir by the Civil Law. He took
the profits and he could alienate, but then, for all his remedies for
redress against wrong, he must go, as we should phrase it, not to the
Common Law, but to the Equity side of the Praetorian Court. No great
chance of error would be incurred by describing him as having an
_equitable_ estate in the inheritance; but then, to secure ourselves
against being deluded by the analogy, we must always recollect that in
one year the _Bonorum Possessio_ was operated upon a principle of
Roman Law known as Usucapion, and the Possessor became Quiritarian
owner of all the property comprised in the inheritance.
We know too little of the older law of Civil Process to be able to
strike the balance of advantage and disadvantage between the different
classes of remedies supplied by the Praetorian Tribunal. It is certain,
however, that, in spite of its many defects, the Mancipatory Testament
by which the _universitas juris_ devolved at once and unimpaired was
never entirely superseded by the new Will; and at a period less
bigoted to antiquarian forms, and perhaps not quite alive to their
significance, all the ingenuity of the Jurisconsults seems to have
been expended on the improvement of the more venerable instrument. At
the era of Gaius, which is that of the Antonine Caesars, the great
blemishes of the Mancipatory Will had been removed. Originally, as we
have seen, the essential character of the formalities had required
that the Heir himself should be the Purchaser of the Family, and the
consequence was that he not only instantly acquired a vested interest
in the Testator's Property, but was formally made aware of his rights.
But the age of Gaius permitted some unconcerned person to officiate as
Purchaser of the Family. The heir, therefore, was not necessarily
informed of the succession to which he was destined; and Wills
thenceforward acquired the property of _secrecy_. The substitution of
a stranger for the actual Heir in the functions of "Familiae Emptor"
had other ulterior consequences. As soon as it was legalised, a Roman
Testament came to consist of two parts or stages--a conveyance, which
was a pure form, and a Nuncupatio, or Publication. In this latter
passage of the proceeding, the Testator either orally declared to the
assistants the wishes which were to be executed after his death, or
produced a written document in which his wishes were embodied. It was
not probably till attention had been quite drawn off from the
imaginary Conveyance, and concentrated on the Nuncupation as the
essential part of the transaction, that Wills were allowed to become
_revocable_.
I have thus carried the pedigree of Wills some way down in legal
history. The root of it is the old Testament "with the copper and the
scales," founded on a Mancipation or Conveyance. This ancient Will
has, however, manifold defects, which are remedied, though only
indirectly, by the Praetorian law. Meantime the ingenuity of the
Jurisconsults effects, in the Common-Law Will or Mancipatory
Testament, the very improvements which the Praetor may have
concurrently carried out in Equity. These last ameliorations depend,
however, on mere legal dexterity, and we see accordingly that the
Testamentary Law of the day of Gaius or Ulpian is only transitional.
What changes next ensued we know not; but at length, just before the
reconstruction of the jurisprudence by Justinian, we find the subjects
of the Eastern Roman Empire employing a form of Will of which the
pedigree is traceable to the Praetorian Testament on one side, and to
the Testament "with the copper and the scales" on the other. Like the
Testament of the Praetor, it required no Mancipation, and was invalid
unless sealed by seven witnesses. Like the Mancipatory Will, it passed
the Inheritance and not merely a _Bonorum Possessio_. Several,
however, of its most important features were annexed by positive
enactments, and it is out of regard to this threefold derivation from
the Praetorian Edict, from the Civil Law, and from the Imperial
Constitutions, that Justinian speaks of the Law of Wills in his own
day as _Jus Tripertitum_. The new Testament thus described is the one
generally known as the Roman Will. But it was the Will of the Eastern
Empire only; and the researches of Savigny have shown that in Western
Europe the old Mancipatory Testament, with all its apparatus of
conveyance, copper, and scales, continued to be the form in use far
down in the Middle Ages.