Ancient Law Chapter 6

the family， and the family had the distinctive characteristic of a corporation —— that it never died. Creditors would have the same remedies against the new ch

ieftain as against the old， for the liability being that of the still existing family would be absolutely unchanged. All rights available to the family would be as available after the demise of the headship as before it —— except that the Corporation would be obliged —— if indeed language so precise and technical can be properly used of these early times —— would be obliged to sue under a slightly modified name.

　　The history of jurisprudence must be followed in its whole course， if we are to understand how gradually and tardily society dissolved itself into the component atoms of which it is now constituted —— by what insensible gradations the relation of man to man substituted itself for the relation of the individual to his family and of families to each other. The point now to be attended to is that even when the revolution had apparently quite accomplished itself， even when the magistrate had in great measure assumed the place of the Pater-familias， and the civil tribunal substituted itself for the domestic forum， nevertheless the whole scheme of rights and duties administered by the judicial authorities remained shaped by the influence of the obsolete privileges and coloured in every part by their reflection. There seems. little question that the devolution of the Universitas Juris， so strenuously insisted upon by the Roman Law as the first condition of a testamentary or intestate succession， was a feature of the older form of society which men's minds had been unable to dissociate from the new， though with that newer phase it had no true or proper connection. It seems， in truth， that the prolongation of a man's legal existence in his heir， or in a group of co-heirs， is neither more nor less than a characteristic of the family transferred by a fiction to the individual. Succession in corporations is necessarily universal， and the family was a corporation. Corporations never die. The decease of individual members makes no difference to the collective existence of the aggregate body， and does not in any way affect its legal incidents， its faculties or liabilities. Now in the idea of a Roman universal succession all these qualities of a corporation seem to have been transferred to the individual citizen. His physical death is allowed to exercise no effect on the legal position which he filled， apparently on the principle that that position is to be adjusted as closely as possible to the analogies of a family， which， in its corporate character， was not of course liable to physical extinction.

　　I observe that not a few continental jurists have much difficulty in comprehending the nature of the connection between the conceptions blended in a universal succession， and there is perhaps no topic in the philosophy of jurisprudence on which their speculations， as a general rule， possess so little value. But the student of English law ought to be in no danger of stumbling at the analysis of the idea which we are examining. Much light is cast upon it by a fiction in our own system with which all lawyers are familiar. English lawyers classify corporations as Corporations aggregate and Corporations sole. A Corporation aggregate is a true Corporation， but a Corporation sole is an individual， being a member of a series of individuals， who is invested by a fiction with the qualities of a Corporation. I need hardly cite the King or the Parson of a Parish as instances of Corporations sole. The capacity or office is here considered apart from the particular person who from time to time may occupy it， and， this capacity being perpetual， the series of individuals who fill it are clothed with the leading attribute of Corporations-Perpetuity. Now in the older theory of Roman Law the individual bore to the family precisely the same relation which in the rationale of English jurisprudence a Corporation sole bears to a Corporation aggregate. The derivation and association of ideas are exactly the same. In fact， if we say to ourselv

es that for purposes of Roman Testamentary Jurisprudence each individual citizen was a Corporation sole， we shall not only realise the full conception of an inheritance， but have constantly at command the clue to the assumption in which it originated. It is an axiom with us that the King never dies， being a Corporation sole. His capacities are instantly filled by his successor， and the continuity of dominion is not deemed to have been interrupted. With the Romans it seemed an equally simple and natural process， to eliminate the fact of death from the devolution of rights and obligations. The testator lived on in his heir or in the group of his co-heir. He was in law the same person with them， and if any one in his testamentary dispositions had even constructively violated the principle which united his actual and his posthumous existence， the law rejected the defective instrument， and gave the inheritance to the kindred in blood， whose capacity to fulfil the conditions of heirship was conferred on them by the law itself， and not by any document which by possibility might be erroneously framed.

　　When a Roman citizen died intestate or leaving no valid Will， his descendants or kindred became his heirs according to a scale which will be presently described. The person or class of persons who succeeded did not simply represent the deceased， but， in conformity with the theory just delineated， they continued his civil life， his legal existence. The same results followed when the order of succession was determined by a Will， but the theory of the identity between the dead man and his heirs was certainly much older than any form of Testament or phase of Testamentary jurisprudence. This indeed is the proper moment for suggesting a doubt which will press on us with greater force the further we plumb the depths of this subject， —— whether wills would ever have come into being at all if it had not been for these remarkable ideas connected with universal succession. Testamentary law is the application of a principle which may be explained on a variety of philosophical hypotheses as plausible as they are gratuitous： it is interwoven with every part of modern society， and it is defensible on the broadest grounds of general expediency. But the warning can never be too often repeated， that the grand source of mistake in questions of jurisprudence is the impression that those reasons which actuate us at the present moment， in the maintenance of an existing institution， have necessarily anything in common with the sentiment in which the institution originated. It is certain that， in the old Roman Law of Inheritance， the notion of a will or testament is inextricably mixed up， I might almost say confounded， with the theory of a man's posthumous existence in the person of his heir.

　　The conception of a universal succession， firmly as it has taken root in jurisprudence， has not occurred spontaneously to the framers of every body of laws. Wherever it is now found， it may be shown to have descended from Roman law； and with it have come down a host of legal rules on the subject of Testaments and.Testamentary gifts， which modern practitioners apply without discerning their relation to the parent theory. But， in the pure Roman jurisprudence， the principle that a man lives on in his Heir —— the elimination， if we may so speak， of the fact of death —— is too obviously for mistake the centre round which the whole Law of Testamentary and Intestate succession is circling. The unflinching sternness of the Roman law in enforcing compliance with the governing theory would in itself suggest that the theory grew out of something in the primitive constitution of Roman society； but we may push the proof a good way beyond the presumption. It happens that several technical expressions， dating from the earliest institution of Wills at Rome， have been accidentally preserved to us. We have in Gaius the formula of investiture by which the universal succes

sor was created. We have the ancient name by which the person afterwards called Heir was at first designated. We have further the text of the celebrated clause in the Twelve Tables by which the Testamentary power was expressly recognised， and the clauses regulating Intestate Succession have also been preserved. All these archaic phrases have one salient peculiarity. They indicate that what passed from the Testator to the Heir was the Family， that is， the aggregate of rights and duties contained in the Patria Potestas and growing out of it. The material property is in three instances not mentioned at all； in two others， it is visibly named as an adjunct or appendage of the Family. The original Will or Testament was therefore an instrument， or （for it was probably not at first in writing） a proceeding， by which the devolution of the Family was regulated. It was a mode of declaring who was to have the chieftainship， in succession to the Testator. When Wills are understood to have this for their original object， we see at once how it is that they came to be connected with one of the most curious relics of ancient religion and law， the sacra， or Family Rites. These sacra were the Roman form of an institution which shows itself wherever society has not wholly shaken itself free from its primitive clothing. They are the sacrifices and ceremonies by which the brotherhood of the family is commemorated， the pledge and the witness of its perpetuity. Whatever be their nature， —— whether it be true or not that in all cases they are the worship of some mythical ancestor， —— they are everywhere employed to attest the sacredness of the family-relation； and therefore they acquire prominent significance and importance， whenever th

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