Chapter 6. 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 inquirer， 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 code 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 privilege 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 w ere 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 take 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 characteristic 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 characteristic 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