When the phenomena of primitive societies emerge into light,it seems impossible to dispute a proposition which the jurists ofthe seventeenth century considered doubtful, that IntestateInheritance is a more ancient institution than TestamentarySuccession. As soon as this is settled, a question of muchinterest suggests itself, how and under what conditions were thedirections of a will first allowed to regulate the devolution ofauthority over the household, and consequently the posthumousdistribution of property. The difficulty of deciding the pointarises from the rarity of Testamentary power in archaiccommunities. It is doubtful whether a true power of testation wasknown to any original society except the Roman. Rudimentary formsof it occur here and there, but most of them are not exempt fromthe suspicion of a Roman origin. The Athenian will was, no doubt,indigenous, but then, as will appear presently, it was only aninchoate Testament. As to the Wills which are sanctioned by thebodies of law which have descended to us as the codes of thebarbarian conquerors of Imperial Rome, they are almost certainlyRoman. The most penetrating German criticism has recently beendirected to these leges Barbarorum, the great object ofinvestigation being to detach those portions of each system whichformed the customs of the tribe in its original home from theadventitious ingredients which were borrowed from the laws of theRomans. In the course of this process, one result has invariablydisclosed itself, that the ancient nucleus of the code containsno trace of a Will. Whatever testamentary law exists, has beentaken from Roman jurisprudence. Similarly, the rudimentaryTestament which (as I am informed) the Rabbinical Jewish lawprovides for, has been attributed to contact with the Romans. Theonly form of testament, not belonging to a Roman or Hellenicsociety, which can reasonably be supposed indigenous, is thatrecognised by the usages of the province of Bengal; and thetestament of Bengal is only a rudimentary Will.
The evidence, however, such as it is, seems to point to theconclusion that Testaments are at first only allowed to takeeffect on failure of the persons entitled to have the inheritanceby right of blood genuine or fictitious. Thus, when Atheniancitizens were empowered for the first time by the Laws of Solonto execute Testaments, they were forbidden to disinherit theirdirect male descendants. So, too, the Will of Bengal is onlypermitted to govern the succession so far as it is consistentwith certain overriding claims of the family. Again, the originalinstitutions of the Jews having provided nowhere for theprivileges 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 kindredentitled under the Mosaic system to succeed have failed or areundiscoverable. The limitations by which the ancient German codeshedge in the testamentary jurisprudence which has beenincorporated with them are also significant, and point in thesame direction. It is the peculiarity of most of these Germanlaws, in the only shape in which we know them, that, besides theallod or domain of each household, they recognise severalsubordinate kinds or orders of property, each of which probablyrepresents a separate transfusion of Roman principles into theprimitive body of Teutonic usage. The primitive German orallodial property is strictly reserved to the kindred. Not onlyis it incapable of being disposed of by testament but it isscarcely capable of being alienated by conveyance inter vivos.
The ancient German law, like the Hindoo jurisprudence, makes themale children co-proprietor with their father, and the endowmentof the family cannot be parted with except by the consent of allits members. But the other sorts of property, of more modernorigin and lower dignity than the allodial possessions, are muchmore easily alienated than they, and follow much more lenientrules of devolution. Women and the descendants of women succeedto them, obviously on the principle that they lie outside thesacred precinct of the Agnatic brotherhood. Now it is on theselast descriptions of property, and on these only, that theTestaments borrowed from Rome were at first allowed to operate.
These few indications may serve to lend additionalplausibility to that which in itself appears to be the mostprobable explanation of an ascertained fact in the early historyof Roman Wills. We have it stated on abundant authority thatTestaments, during the primitive period of the Roman State, wereexecuted in the Comitia Calata, that is, in the Comitia Curiata,or Parliament of the Patrician Burghers of Rome, when assembledfor Private Business. This mode of execution has been the sourceof the assertion, handed down by one generation of civilians toanother, that every Will at one era of Roman history was a solemnlegislative enactment. But there is no necessity whatever forresorting to an explanation which has the defect of attributingfar too much precision to the proceedings of the ancient assemblyThe proper key to the story concerning the execution of wills inthe Comitia Calata must no doubt be sought in the oldest RomanLaw of intestate succession. The canons of primitive Romanjurisprudence regulating the inheritance of relations from eachother were, so long as they remained unmodified by the EdictalLaw of the Praetor, to the following effect: -- First, the sui ordirect descendants who had never been emancipated succeeded. Onthe failure of the sui, the Nearest Agnate came into their place,that is, the nearest person or class of the kindred who was ormight have been under the same Patria Potestas with the deceased.
