Ancient Law Chapter 7

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.

　　I regard， therefore， the Roman horror of Intestacy as a monument of a very early conflict between ancient law and slowly changing ancient sentiment on the subject of the Family. Some passages in the Roman Statute-Law， and one statute in particular which limited the capacity for inheritance possessed by women， must have contributed to keep alive the feeling； and it is the general belief that the system of creating Fidei-Commissa， or bequests in trust， was devised to evade the disabilities imposed by those statutes. But the feeling itself， in its remarkable intensity， seems to point back to some deeper antagonism between law and opinion； nor is it at all wo

nderful that the improvements of jurisprudence by the Praetor should not have extinguished it. Everybody conversant with the philosophy of opinion is aware that a sentiment by no means dies out， of necessity， with the passing away of the circumstances which produced it. It may long survive them； nay， it may afterwards attain to a pitch and climax of intensity which it never attained during their actual continuance.

　　The view of a Will which regards it as conferring the power of diverting property from the Family， or of distributing it in such uneven proportions as the fancy or good sense of the Testator may dictate， is not older than that later portion of the Middle Ages in which Feudalism had completely consolidated itself. When modern jurisprudence first shows itself in the rough， Wills are rarely allowed to dispose with absolute freedom of a dead man's assets. Wherever at this period the descent of property was regulated by Will —— and over the greater part of Europe moveable or personal property was the subject of Testamentary disposition —— the exercise of the Testamentary power was seldom allowed to interfere with the right of the widow to a definite share， and of the children to certain fixed proportions， of the devolving inheritance. The shares of the children， as their amount shows， were determined by the authority of Roman law. The provision for the widow was attributable to the exertions of the Church， which never relaxed its solicitude for the interest of wives surviving their husbands —— winning， perhaps， one of the most arduous of its triumphs when， after exacting for two or three centuries an express promise from the husband at marriage to endow his wife， it at length succeeded in engrafting the principle of Dower on the Customary Law of all Western Europe. Curiously enough， the dower of lands proved a more stable institution than the analogous and more ancient reservation of certain shares of the personal property to the widow and children. A few local customs in France maintained the right down to the Revolution， and there are traces of similar usages in England； but on the whole the doctrine prevailed that moveables might be freely disposed of by Will， and， even when the claims of the widow continued to be respected， the privileges of the children were obliterated from jurisprudence. We need not hesitate to attribute the change to the influence of Primogeniture. As the Feudal law of land practically disinherited all the children in favour of one， the equal distribution even of those sorts of property which might have been equally divided ceased to be viewed as a duty. Testaments were the principal instruments employed in producing inequality， and in this condition of things originated the shade of difference which shows itself between the ancient and the modern conception of a Will. But， though the liberty of bequest， enjoyed through Testaments， was thus an accidental fruit of Feudalism， there is no broader distinction than that which exists between a system of free Testamentary disposition and a system， like that of the Feudal land-law， under which property descends compulsorily in prescribed lines of devolution. This truth appears to have been lost sight of by the authors of the French Codes. In the social fabric which they determined to destroy， they saw Primogeniture resting chiefly on Family settlements， but they also perceived that Testaments were frequently employed to give the eldest son precisely the same preference which was reserved to him under the strictest of entails. In order， therefore， to make sure of their work， they not only rendered it impossible to prefer the eldest son to the rest in marriage-arrangements， but they almost expelled Testamentary succession from the law， lest it should be used to defeat their fundamental principle of an equal distribution of property among children at the parent's death. The result is that they have established a system of small perpetual entails，

which is infinitely nearer akin to the system of feudal Europe than would be a perfect liberty of bequest. The land-law of England， "the Herculaneum of Feudalism，" is certainly much more closely allied to the land-law of the Middle Ages than that of any Continental country， and Wills with us are frequently used to aid or imitate that preference of the eldest son and his line which is a nearly universal feature in marriage settlements of real property. But nevertheless feeling and opinion in this country have been profoundly affected by the practice of free Testamentary disposition； and it appears to me that the state of sentiment in a great part of French society， on the subject of the conservation of property in families， is much liker that which prevailed through Europe two or three centuries ago than are the current opinions of Englishmen.

　　The mention of Primogeniture introduces one of the most difficult problems of historical jurisprudence. Though I have not paused to explain my expressions， it may have been noticed that I have frequently spoken of a number of "coheirs" as placed by the Roman Law of Succession on the same footing with a single Heir. In point of fact， we know of no period of Roman jurisprudence at which the place of the Heir， or Universal Successor， might not have been taken by a group of co-heirs. This group succeeded as a single unit， and the assets were afterwards divided among them in a separate legal proceeding. When the Succession was ab intestato， and the group consisted of the children of the deceased， they each took an equal share of the property； nor， though males had at one time some advantages over females， is there the faintest trace of Primogeniture. The mode of distribution is the same throughout archaic jurisprudence. It certainly seems that， when civil society begins and families cease to hold together through a series of generations， the idea which spontaneously suggests itself is to divide the domain equally among the members of each successive generation， and to reserve no privilege to the eldest son or stock. Some peculiarly significant hints as to the close relation of this phenomenon to primitive thought are furnished by systems yet more archaic than the Roman. Among the Hindoos， the instant a son is born， he acquires a vested right in his father's property， which cannot be sold without recognition of his joint ownership. On the son 's attaining full age， he can sometimes compel a partition of the estate even against the consent of the parent； and， should the parent acquiesce， one son can always have a partition even against the will of the others. On such partition taking place， the father has no advantage over his children， except that he has two of the shares instead of one. The ancient law of the German tribes was exceedingly similar. The allod or domain of the family was the joint-property of the father and his sons. It does not， however， appear to have been habitually divided even at the death of the parent， and in the same Way the possessions of a Hindoo， however divisible theoretically， are so rarely distributed in fact， that many generations constantly succeed each other without a partition taking place， and thus the Family in India has a perpetual tendency to expand into the Village Community， under conditions which I shall hereafter attempt to elucidate. All this points very clearly to the absolutely equal division of assets among the male children at death as the practice most usual with society at the period when family-dependency is in the first stages of disintegration. Here then emerges the historical difficulty of Primogeniture. The more clearly we perceive that， when the Feudal institutions were in process of formation， there was no source in the world whence they could derive their elements but the Roma

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