Chapter 7. Ancient and Modern Ideas Respecting Wills and Successions

Although there is much in the modern European Law of Wills which is intimately connected with the oldest rules of Testamentary disposition practised among men， there are nevertheless some important differences between ancient and modern ideas on the subject of Wills and Successions. Some of the points of difference I shall endeavour to illustrate in this chapter.

At a period， removed several centuries from the era of the Twelve Tables， we find a variety of rules engrafted on the Roman Civil Law with the view of limiting the disinherison of children； we have the jurisdiction of the Praetor very actively exerted in the same interest； and we are also presented with a new remedy very anomalous in character and of uncertain origin， called the Querela Inofficiosi Testamenti， "the Plaint of an Unduteous Will，" directed to the reinstatement of the issue in inheritances from which they had been unjustifiably excluded by a father's Testament. Comparing this condition of the law with the text of the Twelve Tables which concedes in terms the utmost liberty of Testation， several writers have been tempted to interweave a good deal of dramatic incident into their history of the Law Testamentary. They tell us of the boundless license of disinherison in which the heads of families instantly began to indulge， of the scandal and injury to public morals which the new practices engendered， and of the applause of all good men which hailed the courage of the Praetor in arresting the progress of paternal depravity.

This story， which is not without some foundation for the principal fact it relates， is often so told as to disclose very serious misconceptions of the principles of legal history. The Law of the Twelve Tables is to be explained by the character of the age in which it was enacted. It does not license a tendency which a later era thought itself bound to counteract， but it proceeds on the assumption that no such tendency exists， or， perhaps we should say， in ignorance of the possibility of its existence. There is no likelihood that Roman citizens began immediately to avail themselves freely of the power to disinherit. It is against all reason and sound appreciation of history to suppose that the yoke of family bondage， still patiently submitted to， as we know， where its pressure galled most cruelly， would be cast off in the very particular in which its incidence in our own day is not otherwise than welcome. The Law of the Twelve Tables permitted the execution of Testaments in the only case in which it was thought possible that they could be executed， viz. on failure of children and proximate kindred. It did not forbid the disinherison of direct descendants， inasmuch as it did not legislate against a contingency which no Roman lawgiver of that era could have contemplated. No doubt， as the offices of family affection progressively lost the aspect of primary personal duties， the disinherison of children was occasionally attempted. But the interference of the Praetor， so far from being called for by the universality of the abuse， was doubtless first prompted by the fact that such instances of unnatural caprice were few and exceptional， and at conflict with the current morality.

The indications furnished by this part of Roman Testamentary Law are of a very different kind. It is remarkable that a Will never seems to have been regarded by the Romans as a means of disinheriting a Family， or of effecting the unequal distribution of a patrimony. The rules of law preventing its being turned to such a purpose， increase in number and stringency as the jurisprudence unfolds itself； and these rules correspond doubtless with the abiding sentiment of Roman society， as distinguished from occasional variations of feeLing in individuals. It would rather seem as if the Testamentary Power were chiefly vaLued for the assistance it gave in making provision for a Family， and in dividing the inheritance more evenly and fairly than the Law of Intestate Succession would have divided it. If this be the true reading of the general sentiment on the point， it explains to some extent the singular horror of Intestacy which always characterised the Roman. No evil seems to have been considered a heavier visitation than the forfeiture of Testamentary privileges； no curse appears to have been bitterer than that which imprecated on an enemy that he might die without a Will.

The feeling has no counterpart， or none that is easily recognisable， in the forms of opinion which exist at the present day. All men at all times will doubtless prefer chalking out the destination of their substance to having that office performed for them by the law； but the Roman passion for Testacy is distinguished from the mere desire to indulge caprice by its intensity； and it has of course nothing whatever in common with that pride of family， exclusively the creation of feudalism， which accumulates one description of property in the hands of a single representative. It is probable， a priori， that it was something in the rules of Intestate Succession which caused this vehement preference for the distribution of property under a Testament over its distribution by law. The difficulty， however， is， that on glancing at the Roman Law of Intestate Succession， in the form which it wore for many centuries before Justinian shaped it into that scheme of inheritance which has been almost universally adopted by modern lawgivers， it by no means strikes one as remarkably unreasonable or inequitable.

On the contrary， the distribution it prescribes is so fair and rational， and differs so Little from that with which modern society has been generally contented， that no reason suggests itself why it should have been regarded with extraordinary distaste， especially under a jurisprudence which pared down to a narrow compass the testamentary privileges of persons who had children to provide for. We should rather have expected that， as in France at this moment， the heads of families would generally save themselves the troubLe of executing a Will， and allow the Law to do as it pleased with their assets. I think， however， if we look a little closely at the pre-Justinianean scale of Intestate Succession， we shall discover the key to the mystery. The texture of the law consists of two distinct parts. One department of rules comes from the Jus Civile， the Common-Law of Rome； the other from the Edict of the Praetor. The Civil Law， as I have already stated for another purpose， calLs to the inheritance only three orders of successors in their turn； the Unemancipated children， the nearest class of Agnatic kindred， and the Gentiles. Between these three orders， the Praetor interpolates various classes of relatives， of whom the Civil Law took no notice whatever. Ultimately， the combination of the Edict and of the Civil Law forms a table of succession not materially different from that which has descended to the generality of modern codes.

The point for recollection is that there must anciently have been a time at which the rules of the Civil Law determined the scheme of Intestate Succession exclusively， and at which the arrangements of the Edict were non-existent， or not consistently carried out. We cannot doubt that， in its infancy， the Praetorian jurisprudence had to contend with formidable obstructions， and it is more than probable that， long after popular sentiment and legal opinion had acquiesced in it， the modifications which it periodically introduced were governed by no certain principles， and fluctuated with the varying bias of successive magistrates. The rules of Intestate Succession， which the Romans must at this period have practised， account， I think —— and more than account —— for that vehement distaste for an Intestacy to which Roman society during so many ages remained constant. The order of succession was this ： on the death of a citizen， having no will or no valid will， his Unemancipated children became his Heirs. His emancipated sons had no share in the inheritance. If he left no direct descendants living at his death， the nearest grade of the Agnatic kindred succeeded， but no part of the inheritance was given to any relative united （however closely） with the dead man through female descents. All the other branches of the family were excluded， and the inheritance escheated to the Gentiles， or entire body of Roman citizens bearing the same name with the deceased. So that on failing to execute an operative Testament， a Roman of the era under examination left his emancipated children absolutely without provision， while， on the assumption that he died childless， there was imminent risk that his possessions would escape from the family altogether， and devolve on a number of persons with whom he was merely connected by the sacerdotal fiction that assumed all members of the same gens to be descended from a common ancestor.

The prospect of such an issue is in itself a nearly sufficient explanation of the popular sentiment； but， in point of fact， we shall only half understand it， if we forget that the state of things I have been describing is likely to have existed at the very moment when Roman society was in the first stage of its transition from its primitive organisation in detached families. The empire of the father had indeed received one of the earliest blows directed at it through the recognition of Emancipation as a legitimate usage， but the law， still considering the Patria Potestas to be the root of family connection， persevered in looking on the emancipated children as strangers to the rights of Kinship and aliens from the blood. We cannot， however， for a moment suppose that the limitations of the family imposed by legal pedantry had their counterpart in the natural affection of parents. Family attachments must still have retained that nearly inconceivable sanctity and intensity which belonged to them under the Patriarchal system； and， so little are they likely to have been extinguished by the act of emancipation， that the probabilities are altogether the other way. It may be unhesitatingly taken for granted that enfranchisement from the father's power was a demonstration， rather than a severance， of affection —— a mark of grace and favour accorded to the best-beloved and most esteemed of the children.

If sons thus honoured above the rest were absolutely deprived of their heritage by an Intestacy， the reluctance to incur it requires no farther explanation. We might have assumed a priori that the passion for Testacy was generated by some moral injustice entailed by the rules of Intestate succession； and here we find them at variance with the very instinct by which early society was cemented together. It is possible to put all that has been urged in a very succinct form. Every dominant sentiment of the primitive Romans was entwined with the relations of the family. But what was the Family？ The Law defined it one way —— natural affection another. In the conflict between the two，the feeling we would analyse grew up， taking the form of an enthusiasm for the institution by which the dictates of affection were permitted to determine the fortunes of its objects.