Ancient Law Chapter 6

two further questions， independent to some extent of the points I have mooted， but demanding solution before the subject of Wills can be exhausted. These are， how came an inheritance to be controlled in any case by the testator's volition， and what is the nature of the instrument by which it came to be controlled？

　　The first question relates to the universitas juris； that is， a university （or bundle） of rights and duties. A universitas juris is a collection of rights and duties united by the single circumstance of their having belonged at one time to some one person. It is， as it were， the legal clothing of some given individual. It is not formed by grouping together any rights and any duties. It can only be constituted by taking all the rights and all the duties of a particular person. The tie which so connects a number of rights of property， rights of way， rights to legacies， duties of specific performance， debts， obligations to compensate wrongs —— which so connects all these legal privileges and duties together as to constitute them a universitas juris， is the fact of their having attached to some individual capable of exercising them. Without this fact there is no university of rights and duties. The expression universitas juris is not classical， but for the notion jurisprudence is exclusively indebted to Roman law； nor is it at all difficult to seize. We must endeavour to collect under one conception the whole set of legal relations in which each one of us stands to the rest of the world. These， whatever be their character and composition， make up together a universitas juris； and there is but little danger of mistake in forming the notion， if we are only careful to remember that duties enter into it quite as much as rights. Our duties may overbalance our rights. A man may owe more than he is worth， and therefore if a money value is set on his collective legal relations he may be what is called insolvent. But for all that the entire group of rights and duties which centres in him is not the less a "juris universitas."

　　We come nex

t to a "universal succession." A universal succession is a succession to a universitas juris. It occurs when one man is invested with the legal clothing of another， becoming at the same moment subject to all his liabilities and entitled to all his rights. In order that the universal succession may be true and perfect， the devolution must take place uno ictu， as the jurists phrase it. It is of course possible to conceive one man acquiring the whole of the rights and duties of another at different periods， as for example by successive purchases； or he might acquire them in different capacities， part as heir， part as purchaser， part as legatee. But though the group of rights and duties thus made up should in fact amount to the whole legal personality of a particular individual， the acquisition would not be a universal succession. In order that there may be a true universal succession， the transmission must be such as to pass the whole aggregate of rights and duties at the same moment and in virtue of the same legal capacity in the recipient. The notion of a universal succession， like that of a juris universitas， is permanent in jurisprudence， though in the English legal system it is obscured by the great variety of capacities in which rights are acquired， and， above all， by the distinction between the two great provinces of English property "realty" and "personalty." The succession of an assignee in bankruptcy to the entire property of the bankrupt is， however， a universal succession， though as the assignee only pays debts to the extent of the assets， this is only a modified form of the primary notion. Were it common among us for persons to take assignments of all a man's property on condition of paying all his debts， such transfers would exactly resemble the universal successions known to the oldest Roman Law. When a Roman citizen adrogated a son， i.e. took a man， not already under Patria Potestas， as his adoptive child， he succeeded universally to the adoptive child's estate， i.e. he took all the property and became liable for all the obligations. Several other forms of universal succession appear in the primitive Roman Law， but infinitely the most important and the most durable of all was that one with which we are more immediately concerned， Hareditas or Inheritance. Inheritance was a universal succession occurring at a death. The universal successor was Hares or Heir. He stepped at once into all the rights and all the duties of the dead man. He was instantly clothed with his entire legal person， and I need scarcely add that the special character of the Hares remained the same， whether he was named by a Will or whether he took on an Intestacy. The term Hares is no more emphatically used of the Intestate than of the Testamentary Heir， for the manner in which a man became Hares had nothing to do with the legal character he sustained. The dead man's universal successor， however he became so， whether by Will or by Intestacy， was his Heir. But the Heir was not necessarily a single person. A group of persons considered in law as a single unit， might succeed as co-heirs to the Inheritance.

　　Let me now quote the usual Roman definition of an Inheritance. The reader will be in a position to appreciate the full force of the separate terms. Haereditas est successio in universum jus quod defunctus habuit （"an inheritance is a succession to the entire legal position of a deceased man"）。 The notion was that， though the physical person of the deceased had perished， his legal personality survived and descended unimpaired on his Heir or Co-heirs， in whom his identity （so far as the law was concerned） was continued. Our own law， in constituting the Executor or Administrator the representative of the deceased to the extent of his personal assets， may serve as an illustration of the theory from which it emanated， but， although it illustrates， it does not explain it. The view of even the later Roman Law required a closeness of corresponde

nce between the position of the deceased and of his Heir which is no feature of an English representation； and in the primitive jurisprudence everything turned on the continuity of succession. Unless provision was made in the will for the instant devolution of the testator's rights and duties on the Heir or Co-heir， the testament lost all its effect. In modern Testamentary jurisprudence， as in the later Roman law， the object of first importance is the execution of the testator's intentions. In the ancient law of Rome the subject of corresponding carefulness was the bestowal of the Universal Succession. One of these rules seems to our eyes a principle dictated by common sense， while the other looks very much like an idle crotchet. Yet that without the second of them the first would never have come into being is as certain as any proposition of the kind can be.

　　In order to solve this apparent paradox， and to bring into greater clearness the train of ideas which I have been endeavouring to indicate， I must borrow the results of the inquiry which was attempted in the earlier portion of the preceding chapter. We saw one peculiarity invariably distinguishing the infancy of society. Men are regarded and treated， not as individuals， but always as members of a particular group. Everybody is first a citizen， and then， as a citizen， he is a member of his order —— of an aristocracy or a democracy， of an order of patricians or plebeians； or， in those societies which an unhappy fate has afflicted with a special perversion in their course of development， of a caste. Next， he is a member of a gens， house， or clan； and lastly he is a member of his family. This last was the narrowest and most personal relation in which he stood； nor， paradoxical as it may seem， was he ever regarded as himself， as a distinct individual. His individuality was swallowed up in his family. I repeat the definition of a primitive society given before. It has for its units， not individuals， but groups of men united by the reality or the fiction of blood-relationship.

　　It is in the peculiarities of an undeveloped society that we seize the first trace of a universal succession. Contrasted with the organisation of a modern state， the commonwealth of primitive times may be fairly described as consisting of a number of little despotic governments， each perfectly distinct from the rest， each absolutely controlled by the prerogative of a single monarch. But though the Patriarch， for we must not yet call him the Pater-familias， had rights thus extensive， it is impossible to doubt that he lay under an equal amplitude of obligations. If he governed the family， it was for its behoof. If he was lord of its possessions， he held them as trustee for his children and kindred. He had no privilege or position distinct from that conferred on him by his relation to the petty commonwealth which he governed. The Family， in fact， was a Corporation； and he was its representative or， we might almost say， its Public officer. He enjoyed rights and stood under duties， but the rights and the duties were， in the contemplation of his fellow-citizens and in the eye of the law， quite as much those of the collective body as his own. Let us consider for a moment the effect which would be produced by the death of such a representative. In the eye of the law， in the view of the civil magistrate， the demise of the domestic authority would be a perfectly immaterial event. The person representing the collective body of the family and primarily responsible to municipal jurisdiction would bear a different name； and that would be all. The rights and obligations which attached to the deceased head of the house would attach， without breach of continuity， to his successor； for， in point of fact， they would be the rights and obligations of

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