Ancient and Modern Ideas Respecting Wills and SuccessionsAlthough there is much in the modern European Law of Willswhich is intimately connected with the oldest rules ofTestamentary disposition practised among men, there arenevertheless some important differences between ancient andmodern ideas on the subject of Wills and Successions. Some of thepoints of difference I shall endeavour to illustrate in thischapter.
At a period, removed several centuries from the era of theTwelve Tables, we find a variety of rules engrafted on the RomanCivil Law with the view of limiting the disinherison of children;we have the jurisdiction of the Praetor very actively exerted inthe same interest; and we are also presented with a new remedyvery anomalous in character and of uncertain origin, called theQuerela Inofficiosi Testamenti, "the Plaint of an UnduteousWill," directed to the reinstatement of the issue in inheritancesfrom which they had been unjustifiably excluded by a father'sTestament. Comparing this condition of the law with the text ofthe Twelve Tables which concedes in terms the utmost liberty ofTestation, several writers have been tempted to interweave a gooddeal of dramatic incident into their history of the LawTestamentary. They tell us of the boundless license ofdisinherison in which the heads of families instantly began toindulge, of the scandal and injury to public morals which the newpractices engendered, and of the applause of all good men whichhailed the courage of the Praetor in arresting the progress ofpaternal depravity. This story, which is not without somefoundation for the principal fact it relates, is often so told asto disclose very serious misconceptions of the principles oflegal history. The Law of the Twelve Tables is to be explained bythe character of the age in which it was enacted. It does notlicense a tendency which a later era thought itself bound tocounteract, but it proceeds on the assumption that no suchtendency exists, or, perhaps we should say, in ignorance of thepossibility of its existence. There is no likelihood that Romancitizens began immediately to avail themselves freely of thepower to disinherit. It is against all reason and soundappreciation of history to suppose that the yoke of familybondage, still patiently submitted to, as we know, where itspressure galled most cruelly, would be cast off in the veryparticular in which its incidence in our own day is not otherwisethan welcome. The Law of the Twelve Tables permitted theexecution of Testaments in the only case in which it was thoughtpossible that they could be executed, viz. on failure of childrenand proximate kindred. It did not forbid the disinherison ofdirect descendants, inasmuch as it did not legislate against acontingency which no Roman lawgiver of that era could havecontemplated. No doubt, as the offices of family affectionprogressively lost the aspect of primary personal duties, thedisinherison of children was occasionally attempted. But theinterference of the Praetor, so far from being called for by theuniversality of the abuse, was doubtless first prompted by thefact that such instances of unnatural caprice were few andexceptional, and at conflict with the current morality.
