法律辅导：AncientLawChapter6

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　　If an attempt were made to demonstrate in England the superiority of the historical method of investigation to the modes of inquiry concerning Jurisprudence which are in fashion among us， no department of Law would better serve as an example than Testaments or Wills. Its capabilities it owes to its great length and great continuity. At the beginning of its history we find ourselves in the very infancy of the social state， surrounded by conceptions which it requires some effort of mind to realise in their ancient form； while here， at the other extremity of its line of progress， we are in the midst of legal notions which are nothing more than those same conceptions disguised by the phraseology and by the habits of thought which belong to modern times， and exhibiting therefore a difficulty of another kind， the difficulty of believing that ideas which form part of our everyday mental stock can really stand in need of analysis and examination. The growth of the Law of Wills between these extreme points can be traced with remarkable distinctness. It was much less interrupted at the epoch of the birth of feudalism， than the history of most other branches of law. It is， indeed， true that， as regards all provinces of jurisprudence， the break caused by the division between ancient and modern history， or in other words by the dissolution of the Roman empire， has been very greatly exaggerated. Indolence has disinclined many writers to be at the pains of looking for threads of connection entangled and obscured by the confusions of six troubled centuries， while other inquirer， not naturally deficient in patience and industry， have been misled by idle pride in the legal system of their country， and by consequent unwillingness to confess its obligations to the jurisprudence of Rome. But these unfavourable influences have had comparatively little effect on the province of Testamentary Law. The barbarians were confessedly strangers to any such conception as that of a Will. The best authorities agree that there is no trace of it in those parts of their written code which comprise the customs practised by them in their original seats， and in their subsequent settlements on the edge of the Roman empire. But soon after they became mixed with the population of the Roman provinces they appropriated from the Imperial jurisprudence the conception of a Will， at first in part， and afterwards in all its integrity. The influence of the Church had much to do with this rapid assimilation. The ecclesiastical power had very early succeeded to those privilege of custody and registration of Testaments which several of the heathen temples had enjoyed； and even thus early it was almost exclusively to private bequests that the religious foundations owed their temporal possessions. Hence it is that the decrees of the earliest Provincial Councils perpetually contain anathemas against those who deny the sanctity of Wills. Here， in England， Church influence was certainly chief among the causes which by universal acknowledgment have prevented that discontinuity in the history of Testamentary Law， which is sometimes believed to exist in the history of other provinces of Jurisprudence. The jurisdiction over one class of Wills was delegated to the Ecclesiastical Courts， which applied to them， though not always intelligently， the principles of Roman jurisprudence； and， though neither the courts of Common Law nor the Court of Chancery owned any positive obligation to follow the Ecclesiastical tribunals， they could not escape the potent influence of a system of settled rules in course of application by their side. The English law of testamentary succession to personalty has become a modified form of the dispensation under which the inheritances of Roman citizens w ere administered.
- n7 m' Z  h# t% ?; {. }7 [　　It is not difficult to point out the extreme difference of the conclusions forced on us by the historical treatment of the subject from those to which we are conducted when， without the help of history， we merely strive to analyse our prima facie impressions. I suppose there is nobody who， starting from the popular or even the legal conception of a Will， would not imagine that certain qualities are necessarily attached to it. He would say， for example， that a Will necessarily take effect at death only —— that it is secret， not known as a matter of course to persons taking interests under its provisions that it is revocable， i.e. always capable of being superseded by a new act of testation. Yet I shall be able to show that there was a time when none of these characteristic belonged to a Will. The Testaments from which our Wills are directly descended at first took effect immediately on their execution； they were not secret； they were not revocable. Few legal agencies are， in fact， the fruit of more complex historical agencies than that by which a man's written intentions control the posthumous disposition of his goods. Testaments very slowly and gradually gathered round them the qualities I have mentioned； and they did this from causes and under pressure of events which may be called casual， or which at any rate have no interest for us at present， except so far as they have affected the history of law.

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　　At a time when legal theories were more abundant than at present —— theories which， it is true， were for the most part gratuitous and premature enough， but which nevertheless rescued jurisprudence from that worse and more ignoble condition， not unknown to ourselves， in which nothing like a generalisation is aspired to， and law is regarded as a mere empirical pursuit —— it was the fashion to explain the ready and apparently intuitive perception which we have of certain qualities in a Will， by saying that they were natural to it， or， as the phrase would run in full， attached to it by the Law of Nature. Nobody， I imagine， would affect to maintain such a doctrine， when once it was ascertained that all these characteristic had their origin within historical memory； at the same time， vestiges of the theory of which the doctrine is an offshoot， linger in forms of expression which we all of us use and perhaps scarcely know how to dispense with. I may illustrate this by mentioning a position common in the legal literature of the seventeenth century. The jurists of that period very commonly assert that the power of Testation itself is of Natural Law， that it is a right conferred by the Law of Nature. Their teaching， though all persons may not at once see the connection， is in substance followed by those who affirm that the right of dictating or controlling the posthumous disposal of property is a necessary or natural consequence of the proprietary rights themselves. And every student of technical jurisprudence must have come across the same view， clothed in the language of a rather different school， which， in its rationale of this department of law， treats succession ex testamento as the mode of devolution which the property of deceased persons ought primarily to follow， and then proceeds to account for succession ab intestato as the incidental provision of the lawgiver for the discharge of a function which was only left unperformed through the neglect or misfortune of the deceased proprietor. These opinions are only expanded forms of the more compendious doctrine that Testamentary disposition is an institution of the Law of Nature. It is certainly never quite safe to pronounce dogmatically as to the range of association embraced by modern minds， when they reflect on Nature and her Law. but I believe that most persons， who affirm that the Testamentary Power is of Natural Law may be taken to imply either that， as a matter of fact， it is universal， or that nations are prompted to sanction it by an original instinct and impulse. With respect to the first of these positions， I think that， when explicitly set forth， it can never be seriously contended for in an age which has seen the severe restraints imposed on the Testamentary Power by the Code Napoleon， and has witnessed the steady multiplication of systems for which the French codes have served as a model. To the second assertion we must object that it is contrary to the best-ascertained facts in the early history of law， and I venture to affirm generally that， in all indigenous societies， a condition of jurisprudence in which.Testamentary privileges are not allowed， or rather not contemplated， has preceded that later stage of legal development in which the mere will of the proprietor is permitted under more or less of restriction to override the claims of his kindred in blood.
　　The conception of a Will or Testament cannot be considered by itself. It is a member， and not the first， of a series of conceptions. In itself a Will is simply the instrument by which the intention of the testator is declared. It must be clear， I think， that before such an instrument takes its turn for discussion， there are several preliminary points to be examined —— as， for example， what is it， what sort of right or interest， which passes from a dead man on his decease？ to whom and in what form does it pass？ and how came it that the dead were allowed to control the posthumous disposition of their property？ Thrown into technical language， the dependence of the various conceptions which contribute to the notion of a Will is thus expressed. A Will or Testament is an instrument by which the devolution of an inheritance is prescribed. Inheritance is a form of universal succession. A universal succession is a succession to a universitas juris， or university of rights and duties. Inverting this order we have therefore to inquire what is a universitas juris； what is a universal succession； what is the form of universal succession which is called an inheritance. And there are also 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？

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　　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."
; {) \$ X1 G0 q& H9 c% j6 R　　We come next 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.</p>
　　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.

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　　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 correspondence 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 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 chieftain 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.

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　　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.
& z% t, d3 I7 O3 D　　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 ourselves 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.

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　　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.</p>