法律辅导：AncientLawChapter7

In Hindoo law there is no such thing as a true Will. The place filled by Wills is occupied by Adoptions. We can now see the relation of the Testamentary Power to the Faculty of Adoption， and the reason why the exercise of either of them could call up a peculiar solicitude for the performance of the sacra. Both a Will and an Adoption threaten a distortion of the ordinary course of Family descent， but they are obviously contrivances for preventing the descent being wholly interrupted， when there is no succession of kindred to carry it on. Of the two expedients Adoption， the factitious creation of blood-relationship， is the only one which has suggested itself to the greater part of archaic societies. The Hindoos have indeed advanced one point on what was doubtless the antique practice， by allowing the widow to adopt when the father has neglected to do so， and there are in the local customs of Bengal some faint traces of the Testamentary powers. But to the Romans belongs pre-eminently the credit of inventing the Will， the institution which， next to the Contract， has exercised the greatest influence in transforming human society. We must be careful not to attribute to it in its earliest shape the functions which have attended it in more recent times. It was at first， not a mode of distributing a dead man's goods， but one among several ways of transferring the representation of the household to a new chief. The goods descend no doubt to the Heir， but that is only because the government of the family carries with it in its devolution the power of disposing of the common stock. We are very far as yet from that stage in the history of Wills in which they become powerful instruments in modifying society through the stimulus they give to the circulation of property and the plasticity they produce in proprietary rights. No such consequences as these appear in fact to have been associated with the Testamentary power even by the latest Roman lawyer. It will be found that Wills were never looked upon in the Roman community as a contrivance for parting Property and the Family， or for creating a variety of miscellaneous interests， but rather as a means of making a better provision for the members of a household than could be secured through the rules of Intestate succession. We may suspect indeed that the associations of a Roman with the practice of willmaking were extremely different from those familiar to us nowadays. The habit of regarding Adoption and Testation as modes of continuing the Family cannot but have had something to do with the singular laxity of Roman notions as to the inheritance of sovereignty It is impossible not to see that the succession of the early Roman Emperors to each other was considered reasonably regular， and that， in spite of all that had occurred， no absurdity attached to the pretension of such Princes as Theodosius or Justinian to style themselves Caesar and Augustus.

When the phenomena of primitive societies emerge into light， it seems impossible to dispute a proposition which the jurists of the seventeenth century considered doubtful， that Intestate Inheritance is a more ancient institution than Testamentary Succession. As soon as this is settled， a question of much interest suggests itself， how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household， and consequently the posthumous distribution of property. The difficulty of deciding the point arises from the rarity of Testamentary power in archaic communities. It is doubtful whether a true power of testation was known to any original society except the Roman. Rudimentary forms of it occur here and there， but most of them are not exempt from the suspicion of a Roman origin. The Athenian will was， no doubt， indigenous， but then， as will appear presently， it was only an inchoate Testament. As to the Wills which are sanctioned by the bodies of law which have descended to us as the codes of the barbarian conquerors of Imperial Rome， they are almost certainly Roman. The most penetrating German criticism has recently been directed to these leges Barbarorum， the great object of investigation being to detach those portions of each system which formed the customs of the tribe in its original home from the adventitious ingredients which were borrowed from the laws of the Romans. In the course of this process， one result has invariably disclosed itself， that the ancient nucleus of the code contains no trace of a Will. Whatever testamentary law exists， has been taken from Roman jurisprudence. Similarly， the rudimentary Testament which （as I am informed） the Rabbinical Jewish law provides for， has been attributed to contact with the Romans. The only form of testament， not belonging to a Roman or Hellenic society， which can reasonably be supposed indigenous， is that recognised by the usages of the province of Bengal； and the testament of Bengal is only a rudimentary Will.

The evidence， however， such as it is， seems to point to the conclusion that Testaments are at first only allowed to take effect on failure of the persons entitled to have the inheritance by right of blood genuine or fictitious. Thus， when Athenian citizens were empowered for the first time by the Laws of Solon to execute Testaments， they were forbidden to disinherit their direct male descendants. So， too， the Will of Bengal is only permitted to govern the succession so far as it is consistent with certain overriding claims of the family. Again， the original institutions of the Jews having provided nowhere for the privileges of Testatorship， the later Rabbinical jurisprudence， which pretends to supply the casus omissi of the Mosaic law， allows the Power of Testation to attach when all the kindred entitled under the Mosaic system to succeed have failed or are undiscoverable. The limitations by which the ancient German codes hedge in the testamentary jurisprudence which has been incorporated with them are also significant， and point in the same direction. It is the peculiarity of most of these German laws， in the only shape in which we know them， that， besides the allod or domain of each household， they recognise several subordinate kinds or orders of property， each of which probably represents a separate transfusion of Roman principles into the primitive body of Teutonic usage. The primitive German or allodial property is strictly reserved to the kindred. Not only is it incapable of being disposed of by testament but it is scarcely capable of being alienated by conveyance inter vivos. The ancient German law， like the Hindoo jurisprudence， makes the male children co-proprietor with their father， and the endowment of the family cannot be parted with except by the consent of all its members. But the other sorts of property， of more modern origin and lower dignity than the allodial possessions， are much more easily alienated than they， and follow much more lenient rules of devolution. Women and the descendants of women succeed to them， obviously on the principle that they lie outside the sacred precinct of the Agnatic brotherhood. Now it is on these last descriptions of property， and on these only， that the Testaments borrowed from Rome were at first allowed to operate.

These few indications may serve to lend additional plausibility to that which in itself appears to be the most probable explanation of an ascertained fact in the early history of Roman Wills. We have it stated on abundant authority that Testaments， during the primitive period of the Roman State， were executed in the Comitia Calata， that is， in the Comitia Curiata， or Parliament of the Patrician Burghers of Rome， when assembled for Private Business. This mode of execution has been the source of the assertion， handed down by one generation of civilians to another， that every Will at one era of Roman history was a solemn legislative enactment. But there is no necessity whatever for resorting to an explanation which has the defect of attributing far too much precision to the proceedings of the ancient assembly The proper key to the story concerning the execution of wills in the Comitia Calata must no doubt be sought in the oldest Roman Law of intestate succession. The canons of primitive Roman jurisprudence regulating the inheritance of relations from each other were， so long as they remained unmodified by the Edictal Law of the Praetor， to the following effect： —— First， the sui or direct descendants who had never been emancipated succeeded. On the failure of the sui， the Nearest Agnate came into their place， that is， the nearest person or class of the kindred who was or might have been under the same Patria Potestas with the deceased. 

The third and last degree came next， in which the inheritance devolved on the gentiles， that is on the collective members of the dead man's gens or House. The House， I have explained already， was a fictitious extension of the family， consisting of all Roman Patrician citizens who bore the same name， and who， on the ground of bearing the same name， were supposed to be descended from a common ancestor. Now the Patrician Assembly called the Comitia Curiata was a Legislature in which Gentes or Houses were exclusively represented. It was a representative assembly of the Roman people， constituted on the assumption that the constituent unit of the state was the Gens. This being so， the inference seems inevitable， that the cognizance of Wills by the Comitia was connected with the rights of the Gentiles， and was intended to secure them in their privilege of ultimate inheritance. The whole apparent anomaly is removed， if we suppose that a Testament could only be made when the testator had no gentiles discoverable， or when they waived their claims， and that every Testament was submitted to the General Assembly of the Roman Gentes， in order that those aggrieved by its dispositions might put their veto upon it if they pleased， or by allowing it to pass might be presumed to have renounced their reversion. It is possible that on the eve of the publication of the Twelve Tables this vetoing power may have been greatly curtailed or only occasionally and capriciously exercised. It is much easier， however， to indicate the meaning ad origin of the jurisdiction confided to the Comitia Calata， than to trace its gradual development or progressive decay.