Testamentary law is the application of a principle which may beexplained on a variety of philosophical hypotheses as plausibleas they are gratuitous: it is interwoven with every part ofmodern society, and it is defensible on the broadest grounds ofgeneral expediency. But the warning can never be too oftenrepeated, that the grand source of mistake in questions ofjurisprudence is the impression that those reasons which actuateus at the present moment, in the maintenance of an existinginstitution, have necessarily anything in common with thesentiment in which the institution originated. It is certainthat, in the old Roman Law of Inheritance, the notion of a willor testament is inextricably mixed up, I might almost sayconfounded, with the theory of a man's posthumous existence inthe person of his heir.
The conception of a universal succession, firmly as it hastaken root in jurisprudence, has not occurred spontaneously tothe framers of every body of laws. Wherever it is now found, itmay be shown to have descended from Roman law; and with it havecome down a host of legal rules on the subject of Testamentsand.Testamentary gifts, which modern practitioners apply withoutdiscerning their relation to the parent theory. But, in the pureRoman jurisprudence, the principle that a man lives on in hisHeir -- the elimination, if we may so speak, of the fact of death-- is too obviously for mistake the centre round which the wholeLaw of Testamentary and Intestate succession is circling. Theunflinching sternness of the Roman law in enforcing compliancewith the governing theory would in itself suggest that the theorygrew out of something in the primitive constitution of Romansociety; but we may push the proof a good way beyond thepresumption. It happens that several technical expressions,dating from the earliest institution of Wills at Rome, have beenaccidentally preserved to us. We have in Gaius the formula ofinvestiture by which the universal successor was created. We havethe ancient name by which the person afterwards called Heir wasat first designated. We have further the text of the celebratedclause in the Twelve Tables by which the Testamentary power wasexpressly recognised, and the clauses regulating IntestateSuccession have also been preserved. All these archaic phraseshave one salient peculiarity. They indicate that what passed fromthe Testator to the Heir was the Family, that is, the aggregateof rights and duties contained in the Patria Potestas and growingout of it. The material property is in three instances notmentioned at all; in two others, it is visibly named as anadjunct or appendage of the Family. The original Will orTestament was therefore an instrument, or (for it was probablynot at first in writing) a proceeding, by which the devolution ofthe Family was regulated. It was a mode of declaring who was tohave the chieftainship, in succession to the Testator. When Willsare understood to have this for their original object, we see atonce how it is that they came to be connected with one of themost curious relics of ancient religion and law, the sacra, orFamily Rites. These sacra were the Roman form of an institutionwhich shows itself wherever society has not wholly shaken itselffree from its primitive clothing. They are the sacrifices andceremonies by which the brotherhood of the family iscommemorated, the pledge and the witness of its perpetuity.
Whatever be their nature, -- whether it be true or not that inall cases they are the worship of some mythical ancestor, -- theyare everywhere employed to attest the sacredness of thefamily-relation; and therefore they acquire prominentsignificance and importance, whenever the continuous existence ofthe Family is endangered by a change in the person of its chief.
