The Early History of Testamentary SuccessionIf an attempt were made to demonstrate in England thesuperiority of the historical method of investigation to themodes of inquiry concerning Jurisprudence which are in fashionamong us, no department of Law would better serve as an examplethan Testaments or Wills. Its capabilities it owes to its greatlength and great continuity. At the beginning of its history wefind ourselves in the very infancy of the social state,surrounded by conceptions which it requires some effort of mindto realise in their ancient form; while here, at the otherextremity of its line of progress, we are in the midst of legalnotions which are nothing more than those same conceptionsdisguised by the phraseology and by the habits of thought whichbelong to modern times, and exhibiting therefore a difficulty ofanother kind, the difficulty of believing that ideas which formpart of our everyday mental stock can really stand in need ofanalysis and examination. The growth of the Law of Wills betweenthese extreme points can be traced with remarkable distinctness.
It was much less interrupted at the epoch of the birth offeudalism, than the history of most other branches of law. It is,indeed, true that, as regards all provinces of jurisprudence, thebreak caused by the division between ancient and modern history,or in other words by the dissolution of the Roman empire, hasbeen very greatly exaggerated. Indolence has disinclined manywriters to be at the pains of looking for threads of connectionentangled and obscured by the confusions of six troubledcenturies, while other inquirer, not naturally deficient inpatience and industry, have been misled by idle pride in thelegal system of their country, and by consequent unwillingness toconfess its obligations to the jurisprudence of Rome. But theseunfavourable influences have had comparatively little effect onthe province of Testamentary Law. The barbarians were confessedlystrangers to any such conception as that of a Will. The bestauthorities agree that there is no trace of it in those parts oftheir written code which comprise the customs practised by themin their original seats, and in their subsequent settlements onthe edge of the Roman empire. But soon after they became mixedwith the population of the Roman provinces they appropriated fromthe Imperial jurisprudence the conception of a Will, at first inpart, and afterwards in all its integrity. The influence of theChurch had much to do with this rapid assimilation. Theecclesiastical power had very early succeeded to those privilegeof custody and registration of Testaments which several of theheathen temples had enjoyed; and even thus early it was almostexclusively to private bequests that the religious foundationsowed their temporal possessions. Hence it is that the decrees ofthe earliest Provincial Councils perpetually contain anathemasagainst those who deny the sanctity of Wills. Here, in England,Church influence was certainly chief among the causes which byuniversal acknowledgment have prevented that discontinuity in thehistory of Testamentary Law, which is sometimes believed to existin the history of other provinces of Jurisprudence. Thejurisdiction over one class of Wills was delegated to theEcclesiastical Courts, which applied to them, though not alwaysintelligently, the principles of Roman jurisprudence; and, thoughneither the courts of Common Law nor the Court of Chancery ownedany positive obligation to follow the Ecclesiastical tribunals,they could not escape the potent influence of a system of settledrules in course of application by their side. The English law oftestamentary succession to personalty has become a modified formof the dispensation under which the inheritances of Romancitizens w ere administered.
It is not difficult to point out the extreme difference ofthe conclusions forced on us by the historical treatment of thesubject from those to which we are conducted when, without thehelp of history, we merely strive to analyse our prima facieimpressions. I suppose there is nobody who, starting from thepopular or even the legal conception of a Will, would not imaginethat certain qualities are necessarily attached to it. He wouldsay, for example, that a Will necessarily take effect at deathonly -- that it is secret, not known as a matter of course topersons taking interests under its provisions that it isrevocable, i.e. always capable of being superseded by a new actof testation. Yet I shall be able to show that there was a timewhen none of these characteristic belonged to a Will. TheTestaments from which our Wills are directly descended at firsttook effect immediately on their execution; they were not secret;they were not revocable. Few legal agencies are, in fact, thefruit of more complex historical agencies than that by which aman's written intentions control the posthumous disposition ofhis goods. Testaments very slowly and gradually gathered roundthem the qualities I have mentioned; and they did this fromcauses and under pressure of events which may be called casual,or which at any rate have no interest for us at present, exceptso far as they have affected the history of law.
