Chapter 5

Primitive Society and Ancient Law
    The necessity of submitting the subject of jurisprudence to
scientific treatment has never been entirely lost sight of in
modern times, and the essays which the consciousness of this
necessity has produced have proceeded from minds of very various
calibre, but there is not much presumption, I think, in asserting
that what has hitherto stood in the place of a science has for
the most part been a set of guesses, those very guesses of the
Roman lawyers which were examined in the two preceding chapters.
A series of explicit statements, recognising and adopting these
conjectural theories of a natural state, and of a system of
principles congenial to it, has been continued with but brief
interruption from the days of their inventors to our own. They
appear in the annotations of the Glossators who founded modern
jurisprudence, and in the writings of the scholastic jurists who
succeeded them. They are visible in the dogmas of the canonists.
They are thrust into prominence by those civilians of marvellous
erudition, who flourished at the revival of ancient letters.
Grotius and his successors invested them not less with brilliancy
and plausibility than with practical importance. They may be read
in the introductory chapters of our own Blackstone, who has
transcribed them textually from Burlamaqui, and wherever the
manuals published in the present day for the guidance of the
student or the practitioner begin with any discussion of the
first principles of law, it always resolves itself into a
restatement of the Roman hypothesis. It is however from the
disguises with which these conjectures sometimes clothe
themselves, quite as much as from their native form, that we gain
an adequate idea of the subtlety with which they mix themselves
in human thought. The Lockeian theory of the origin of Law in a
Social Compact scarcely conceals its Roman derivation, and indeed
is only the dress by which the ancient views were rendered more
attractive to a particular generation of the moderns; but on the
other hand the theory of Hobbes on the same subject was purposely
devised to repudiate the reality of a law of nature as conceived
by the Romans and their disciples. Yet these two theories, which
long divided the reflecting politicians of 


 into hostile
camps, resemble each other strictly in their fundamental
assumption of a non-historic, unverifiable, condition of the
race. Their authors differed as to the characteristics of the
prae-social state, and as to the nature of the abnormal action by
which men lifted themselves out of it into that social
organisation with which alone we are acquainted, but they agreed
in thinking that a great chasm separated man in his primitive
condition from man in society, and this notion we cannot doubt
that they borrowed, consciously or unconsciously, from the
Romans. If indeed the phenomena of law be regarded in the way in
which these theorists regarded them -- that is, as one vast
complex whole  -- it is not surprising that the mind should often
evade the task it has set to itself by falling back on some
ingenious conjecture which (plausibly interpreted) will seem to
reconcile everything, or else that it should sometimes abjure in
despair the labour of systematization. 
    From the theories of jurisprudence which have the same
speculative basis as the Roman doctrine two of much celebrity
must be excepted. The first of them is that associated with the
great name of Montesquieu. Though there are some ambiguous
expressions in the early part of the Esprit des Lois, which seem
to show its writer's unwillingness to break quite openly with the
views hitherto popular the general drift of the book is certainly
to indicate a very different conception of its subject from any
which had been entertained before. It has often been noticed
that, amidst the vast variety of examples which, in its immense
width of survey, it sweeps together from supposed systems of
jurisprudence, there is an evident anxiety to thrust into
especial prominence those manners and institutions which astonish
the civilised reader by their uncouthness, strangeness, or
indecency. The inference constancy suggested is, that laws are
the creatures of climate, local situation, accident, or imposture
-- the fruit of any causes except those which appear to operate
with tolerable constancy. Montesquieu seems, in fact, to have
looked on the nature of man as entirely plastic, as passively
reproducing the impressions, and submitting implicitly to the
impulses, which it receives from without. And here no doubt lies
the error which vitiates his system as a system. He greatly
underrates the stability of human nature. He pays little or no
regard to the inherited qualities of the race, those qualities
which each generation receives from its predecessors, and
transmits but slightly altered to the generation which follows
it. It is quite true, indeed, that no complete account can be
given of social phenomena, and consequently of laws, till due
allowance has been made for those modifying causes which are
noticed in the Esprit des Lois; but their number and their force
appear to have been overestimated by Montesquieu. Many of the
anomalies which he parades have since been shown to rest on false
report or erroneous construction, and of those which remain not a
few prove the permanence rather than the variableness of maw's
nature, since they are relics of older stages of the race which
have obstinately defied the influences that have elsewhere had
effect. The truth is that the stable part of our mental, moral,
and physical constitution is the largest part of it, and the
resistance it opposes to change is such that, though the
variations of human society in a portion of the world are plain
enough, they are neither so rapid nor so extensive that their
amount, character, and general direction cannot be ascertained.
An approximation to truth may be all that is attainable with our
present knowledge, but there is no reason for thinking that is so
remote, or (what is the same thing) that it requires so much
future correction, as to be entirely useless and uninstructive. 
    The other theory which has been adverted to is the historical
theory of Bentham. This theory which is obscurely (and, it might
even be said, timidly) propounded in several parts of Bentham's
works is quite distinct from that analysis of the conception of
law which he commenced in the "Fragment on Government," and which
was more recently completed by Mr John Austin. The resolution of
a law into a command of a particular nature, imposed under
special conditions, does not affect to do more than protect us
against a difficulty -- a most formidable one certainly -- of
language. The whole question remains open as to the motives of
societies in imposing. these commands on themselves, as to the
connexion of these commands with each other, and the nature of
their dependence on those which preceded them, and which they
have superseded. Bentham suggests the answer that societies
modify, and have always modified, their laws according to
modifications of their views of general expediency. It is
difficult to say that this proposition is false, but it certainly
appears to be unfruitful. For that which seems expedient to a
society, or rather to the governing part of it, when it alters a
rule of law is surely the same thing as the object, whatever it
may be, which it has in view when it makes the change. Expediency
and the greatest good are nothing more than different names for
the impulse which prompts the modification; and when we lay down
expediency as the rule of change in law or opinion, all we get by
the proposition is the substitution of an express term for a term
which is necessarily implied when we say that a change takes
    There is such wide-spread dissatisfaction with existing
theories of jurisprudence, and so general a conviction that they
do not really solve the questions they pretend to dispose of, as
to justify the suspicion that some line of inquiry necessary to a
perfect result has been incompletely followed or altogether
omitted by their authors. And indeed there is one remarkable
omission with which all these speculations are chargeable, except
perhaps those of Montesquieu. They take no account of what law
has actually been at epochs remote from the particular period at
which they made their appearance. Their originators carefully
observed the institutions of their own age and civilisation, and
those of other ages and civilisations with which they had some
degree of intellectual sympathy, but, when they turned their
attention to archaic states of society which exhibited much
superficial difference from their own, they uniformly ceased to
observe and began guessing. The mistake which they committed is
therefore analogous to the error of one who, in investigating the
laws of the material universe, should commence by contemplating
the existing physical world as a whole, instead of beginning with
the particles which are its simplest ingredients. One does not
certainly see why such a scientific solecism should be more
defensible in jurisprudence than in any other region of thought.
It would seem antecedently that we ought to commence with the
simplest social forms in a state as near as possible to their
rudimentary condition. In other words, if we followed the course
usual in such inquiries, we should penetrate as far up as we
could in the history of primitive societies. The phenomena which
early societies present us with are not easy at first to
understand, but the difficulty of grappling with them bears no
proportion to the perplexities which beset us in considering the
baffling entanglement of modern social organisation. It is a
difficulty arising from their strangeness and uncouthness, not
from their number and complexity. One does not readily get over
the surprise which they occasion when looked at from a modern
point of view; but when that is surmounted they are few enough
and simple enough. But even if they gave more trouble than they
do, no pains would be wasted in ascertaining the germs out of
which has assuredly been unfolded every form of moral restraint
which controls our actions and shapes our conduct at the present
    The rudiments of the social state, so far as they are known
to us at all, are known through testimony of three sorts accounts
by contemporary observers of civilisations less advanced than
their own, the records which particular races have preserved
conceding their primitive history, and ancient law. The first
kind of evidence is the best we could have expected. As societies
do not advance concurrently, but at different rates of progress,
there have been epochs at which men trained to habits of
methodical observation have really been in a position to watch
and describe the infancy of mankind. Tacitus made the most of
such an opportunity; but the 


, unlike most celebrated
classical books, has not induced others to follow the excellent
example set by its author, and the amount of this sort of
testimony which we possess is exceedingly small. The lofty
contempt which a civilised people entertains for barbarous
neighbours has caused a remarkable negligence in observing
therein, and this carelessness has been aggravated at times by
fear, by religious prejudice, and even by the use of these very
terms -- civilisation and barbarism -- which convey to most
persons the impression of a difference not merely in degree but
in kind. Even the 


 has been suspected by some critics of
sacrificing fidelity to poignancy of contrast and picturesqueness
of narrative. Other histories too, which have been handed down to
us among the archives of the people to whose infancy they relate,
have been thought distorted by the pride of race or by the
religious sentiment of a newer age. It is important then to
observe that these suspicions, whether groundless or rational, do
not attach to a great deal of archaic law. Much of the old law
which has descended to us was preserved merely because it was
old. Those who practised and obeyed it did not pretend to
understand it; and in some cases they even ridiculed and despised
it. They offered no account of it except that it had come down to
them from their ancestors. If we confine our attention, then, to
those fragments of ancient institutions which cannot reasonably
be supposed to have been tampered with, we are able to gain a
clear conception of certain great characteristic of the society
to which they originally belonged. Advancing a step further, we
can apply our knowledge to systems of law which, like the Code of
Menu, are as a whole of suspicious authenticity; and, using the
key we have obtained, we are in a position to discriminate those
portions of them which are truly archaic from those which have
been affected by the prejudices, interests, or ignorance of the
compiler. It will at least be acknowledged that, if the materials
for this process are sufficient, and if the comparisons be
accurately executed, the methods followed are as little
objectionable as those which have led to such surprising results
in comparative philology. 
    The effect of the evidence derived from comparative
jurisprudence is to establish that view of the primeval condition
of the human race which is known as the Patriarchal Theory. There
is no doubt, of course, that this theory was originally based on
the Scriptural history of the Hebrew patriarchs in 
Lower Asia
but, as has been explained already, its connexion with Scripture
rather militated than otherwise against its reception as a
complete theory, since the majority of the inquirers who till
recently addressed themselves with most earnestness to the
colligation of social phenomena, were either influenced by the
strongest prejudice against Hebrew antiquities or by the
strongest desire to construct their system without the assistance
of religious records. Even now there is perhaps a disposition to
undervalue these accounts, or rather to decline generalising from
them, as forming part of the traditions of a Semitic people. It
is to be noted, however, that the legal testimony comes nearly
exclusively from the institutions of societies belonging to the
Indo-European stock, the Romans, Hindoos, and Sclavonians
supplying the greater part of it; and indeed the difficulty at
the present stage of the inquiry, is to know where to stop, to
say of what races of men it is not allowable to lay down that the
society in which they are united was originally organised on the
patriarchal. model. The chief lineaments of such a society, as
collected from the early chapters in Genesis, I need not attempt
to depict with any minuteness, both because they are familiar to
most of us from our earliest childhood, and because, from the
interest once attaching to the controversy which takes its name
from the debate between Locke and Filmer, they fill a whole
chapter, though not a very profitable one, in English literature.
The points which lie on the surface of the history are these: --
The eldest male parent the eldest ascendant -- is absolutely
supreme in his household. His dominion extends to life and death,
and is as unqualified over his children and their houses as over
his slaves; indeed the relations of sonship and serfdom appear to
differ in little beyond the higher capacity which the child in
blood possesses of becoming one day the head of a family himself.
The flocks and herds of the children are the flocks and herds of
the father, and the possessions of the parent, which he holds in
a representative rather than in a proprietary character, are
equally divided at his death among his descendants in the first
degree, the eldest son sometimes receiving a double share under
the name of birthright, but more generally endowed with no
hereditary advantage beyond an honorary precedence. A less
obvious inference from the Scriptural accounts is that they seem
to plant us on the traces of the breach which is first effected
in the empire of the parent. The families of Jacob and Esau
separate and form two nations; but the families of Jacob's
children hold together and become a people. This looks like the
immature germ of a state or commonwealth, and of an order of
rights superior to the claims of family relation. 
    If I were attempting for the more special purposes of the
jurist to express compendiously the characteristics of the
situation in which mankind disclose themselves at the dawn of
their history, I should be satisfied to quote a few verses from
the Odyssee of Homer : 


"They have neither assemblies for consultation nor themistes, but
every one exercises jurisdiction over his wives and his children,
and they pay no regard to one another." These lines are applied
to the Cyclops, and it may not perhaps be an altogether fanciful
idea when I suggest that the Cyclops is Homer's type of an alien
and less advanced civilisation; for the almost physical loathing
which a primitive community feels for men of widely different
manners from its own usually expresses itself by describing them
as monsters, such as giants, or even (which is almost always the
case in Oriental mythology) as demons. However that may be, the
verses condense in themselves the sum of the hints which are
given us by legal antiquities. Men are first seen distributed in
perfectly insulated groups, held together by obedience to the
parent. Law is the parent's word, but it is not yet in the
condition of those themistes which were analysed in the first
chapter of this work. When we go forward to the state of society
in which these early legal conceptions show themselves as formed,
we find that they still partake of the mystery and spontaneity
which must have seemed to characterise a despotic father's
commands, but that at the same time, inasmuch as they proceed
from a sovereign, they presuppose a union of family groups in
some wider organisation. The next question is, what is the nature
of this union and the degree of intimacy which it involves. It is
just here that archaic law renders us one of the greatest of its
services and fills up a gap which otherwise could only have been
bridged by conjecture. It is full, in all its provinces, of the
clearest indications that society in primitive times was not what
it is assumed to be at present, a collection of individuals. In
fact, and in the view of the men who composed it, it was an
aggregation of families. The contrast may be most forcibly
expressed by saying that the unit of an ancient society was the
Family, of a modern society the Individual. We must be prepared
to find in ancient law all the consequences of this difference.
It is so framed as to be adjusted to a system of small
independent corporations. It is therefore scanty because it is
supplemented by the despotic commands of the heads of households.
It is ceremonious, because the transactions to which it pays
regard. resemble international concerns much more than the quick
play of intercourse between individuals. Above all it has a
peculiarity of which the full importance cannot be shown at
present. It takes a view of life whol1y unlike any which appears
in developed jurisprudence. Corporations never die, and
accordingly primitive law considers the entities with which it
deals, i.e. the patriarchal or family groups, as perpetual and
inextinguishable. This view is closely allied to the peculiar
aspect under which, in very ancient times, moral attributes
present themselves. The moral elevation and moral debasement of
the individual appear to be confounded with, or postponed to, the
merits and offences of the group to which the individual belongs.
If the community sins, its guilt is much more than the sum of the
offences committed by its members; the crime is a corporate act.
and extends in its consequences to many more persons than have
shared in its actual perpetration. If, on the other hand. the
individual is conspicuously guilty, it is his children, his
kinsfolk, his tribesmen, or his fellow-citizens, who suffer with
him, and sometimes for him. It thus happens that the ideas of
moral responsibility and retribution often seem to be more
clearly realised at very ancient than at more advanced periods,
for, as the family group is immortal, and its liability to
punishment indefinite, the primitive mind is not perplexed by the
questions which become troublesome as soon as the individual is
conceived as altogether separate from the group. One step in the
transition from the ancient and simple view of the matter to the
theological or metaphysical explanations of later days is marked
by the early Greek notion of an inherited curse. The bequest
received by his posterity from the original criminal was not a
liability to punishment, but a liability to the commission of
fresh offences which drew with them a condign retribution; and
thus the responsibility of the family was reconciled with the
newer phase of thought which limited the consequences of crime to
the person of the actual delinquent.
    It would be a very simple explanation of the origin of
society if we could base a general conclusion on the hint
furnished us by the Scriptural example already adverted to, and
could suppose that communities began to exist wherever a family
held together instead of separating at the death of its
patriarchal chieftain. In most of the Greek states and in Rome
there long remained the vestiges of an ascending series of groups
out of which the State was at first constituted. The Family,
House, and Tribe of the Romans may be taken as the type of them,
and they are so described to us that we can scarcely help
conceiving them as a system of concentric circles which have
gradually expanded from the same point. The elementary group is
the Family, connected by common subjection to the highest male
ascendant. The aggregation of Families forms the Gens or House.
The aggregation of Houses makes the Tribe. The aggregation of
Tribes constitutes the Commonwealth. Are we at liberty to follow
these indications, and to lay down that the commonwealth is a
collection of persons united by common descent from the
progenitor of an original family? Of this we may at least be
certain, that all ancient societies regarded themselves as having
proceeded from one original stock, and even laboured under an
incapacity for comprehending any reason except this for their
holding together in political union. The history of political
ideas begins, in fact, with the assumption that kinship in blood
is the sole possible ground of community in political functions;
nor is there any of those subversions of feeling, which we term
emphatically revolutions, so startling and so complete as the
change which is accomplished when some other principle -- such as
that, for instance, of local contiguity -- establishes itself for
the first time as the basis of common political action. It may be
affirmed then of early commonwealths that their citizens
considered all the groups in which they claimed membership to be
founded on common lineage. What was obviously true of the Family
was believed to be true first of the House, next of the Tribe,
lastly of the State. And yet we find that along with this belief,
or, if we may use the word, this theory, each community preserved
records or traditions which distinctly showed that the
fundamental assumption was false. Whether we look to the Greek
states, or to Rome, or to the Teutonic aristocracies in Ditmarsh
which furnished Niebuhr with so many valuable illustrations, or
to the Celtic clan associations, or to that strange social
organisation of the Sclavonic Russians and Poles which has only
lately attracted notice, everywhere we discover traces of
passages in their history when men of alien descent were admitted
to, and amalgamated with, the original brotherhood. Adverting to
Rome singly, we perceive that the primary group, the Family, was
being constantly adulterated by the practice of adoption, while
stories seem to have been always current respecting the exotic
extraction of one of the original Tribes and concerning a large
addition to the houses made by one of the early kings. The
composition of the state, uniformly assumed to be natural, was
nevertheless known to be in great measure artificial. This
conflict between belief or theory and notorious fact is at first
sight extremely perplexing; but what it really illustrates is the
efficiency with which Legal Fictions do their work in the infancy
of society. The earliest and most extensively employed of legal
fictions was that which permitted family relations to be created
artificially, and there is none to which I conceive mankind to be
more deeply indebted. If it had never existed, I do not see how
any one of the primitive groups, whatever were their nature,
could have absorbed another, or on what terms any two of them
could have combined, except those of absolute superiority on one
side and absolute subjection on the other. No doubt, when with
our modern ideas we contemplate the union of independent
communities, we can suggest a hundred modes of carrying it out,
the simplest of all being that the individuals comprised in the
coalescing groups shall vote or act together according to local
propinquity. but the idea that a number of persons should
exercise political rights in common simply because they happened
to live within the same topographical limits was utterly strange
and monstrous to primitive antiquity. The expedient which in
those times commanded favour was that the incoming population
should feign themselves to be descended from the same stock as
the people on whom they were engrafted; and it is precisely the
good faith of this fiction, and the closeness with which it
seemed to imitate reality, that we cannot now hope to understand.
One circumstance, however, which it is important to recollect, is
that the men who formed the various political groups were
certainly in the habit of meeting together periodically, for the
purpose of acknowledging and consecrating their association by
common sacrifices. Strangers amalgamated with the brotherhood
were doubtless admitted to these sacrifices; and when that was
once done we can believe that it seemed equally easy, or not more
difficult, to conceive them as sharing in the common lineage. The
conclusion then which is suggested by the evidence is, not that
all early societies were formed by descent from the same
ancestor, but that all of them which had any permanence and
solidity either were so descended or assumed that they were. An
indefinite number of causes may have shattered the primitive
groups, but wherever their ingredients recombined, it was on the
model or principle of an association of kindred. Whatever were
the fact, all thought, language, and law adjusted themselves to
the assumption. But though all this seems to me to be established
with reference to the communities with whose records we are
acquainted, the remainder of their history sustains the position
before laid down as to the essentially transient and terminable
influence of the most powerful Legal Fictions. At some point of
time -- probably as soon as they felt themselves strong enough to
resist extrinsic pressure -- all these states ceased to recruit
themselves by factitious extensions of consanguinity. They
necessarily, therefore, became Aristocracies, in all cases where
a fresh population from any cause collected around them which
could put in no claim to community of origin. Their sternness in
maintaining the central principle of a system under which
political rights were attainable on no terms whatever except
connexion in blood, real or artificial, taught their inferiors
another principle, which proved to be endowed with a far higher
measure of vitality. This was the principle of local contiguity
now recognised everywhere as the condition of community in
political functions. A new set of political ideas came at once
into existence, which, being those of ourselves, our
contemporaries, and in great measure of our ancestors, rather
obscure our perception of the older theory which they vanquished
and dethroned. 
    The Family then is the type of an archaic society in all the
modifications which it was capable of assuming; but the family
here spoken of is not exactly the family as understood by a
modern. In order to reach the ancient conception we must give to
our modern ideas an important extension and an important
limitation. We must look on the family as constantly enlarged by
the absorption of strangers within its circle, and we must try to
regard the fiction of adoption as so closely simulating the
reality of kinship that neither law nor opinion makes the
slightest difference between a real and an adoptive connexion. On
the other hand, the persons theoretically amalgamated into a
family by their common descent are practically held together by
common obedience to their highest living ascendant, the father,
grandfather, or great-grandfather. The patriarchal authority of a
chieftain is as necessary an ingredient in the notion of the
family group as the fact (or assumed fact) of its having sprung
from his loins; and hence we must understand that if there be any
persons who, however truly included in the brotherhood by virtue
of their blood-relationship, have nevertheless de facto withdrawn
themselves from the empire of its ruler, they are always, in the
beginnings of law, considered as lost to the family. It is this
patriarchal aggregate -- the modern family thus cut down on one
side and extended on the other which meets us on the threshold of
primitive jurisprudence. Older probably than the State, the
Tribe, and the House, it left traces of itself on private law
long after the House and the Tribe had been forgotten, and long
after consanguinity had ceased to be associated with the
composition of States. It will be found to have stamped itself on
all the great departments of jurisprudence, and may be detected,
I think, as the true source of many of their most important and
most durable characteristics. At the outset, the peculiarities of
law in its most ancient state lead us irresistibly to the
conclusion that it took precisely the same view of the family
group which is taken of individual men by the systems of rights
and duties now prevalent throughout Europe. There are societies
open to our observation at this very moment whose laws and usages
can scarcely be explained unless they are supposed never to have
emerged from this primitive condition; but in communities more
fortunately circumstanced the fabric of jurisprudence fell
gradually to pieces, and if we carefully observe the
disintegration we shall perceive that it took place principally
in those portions of each system which were most deeply affected
by the primitive conception of the family. In one all-important
instance, that of the Roman law, the change was effected so
slowly, that from epoch to epoch we can observe the line and
direction which it followed, and can even give some idea of the
ultimate result to which it was tending. And, in pursuing this
last inquiry, we need not suffer ourselves to be stopped by the
imaginary barrier which separates the modern from the ancient
world. For one effect of that mixture of refined Roman law with
primitive barbaric usage, which is known to us by the deceptive
name of feudalism, was to revive many features of archaic
jurisprudence which had died out of the Roman world, so that the
decomposition which had seemed to be over commenced again, and to
some extent is still proceeding. 
    On a few systems of law the family organisation of the
earliest society has left a plain and broad mark in the lifelong
authority of the Father or other ancestor over the person and
property of his descendants, an authority which we may
conveniently call by its later Roman name of Patria Potestas. No
feature of the rudimentary associations of mankind is deposed to
by a greater amount of evidence than this, and yet none seems to
have disappeared so generally and so rapidly from the usages of
advancing communities. Gaius, writing under the Antonines,
describes the institution as distinctively Roman. It is true
that, had he glanced across the Rhine or the Danube to those
tribes of barbarians which were exciting the curiosity of some
among his contemporaries, he would have seen examples of
patriarchal power in its crudest form; and in the far East a
branch of the same ethnical stock from which the Romans sprang
was repeating their Patria Potestas in some of its most technical
incidents. But among the races understood to be comprised within
the Roman empire, Gaius could find none which exhibited an
institution resembling the Roman "Power of the Father," except
only the Asiatic Galatae. There are reasons, indeed, as it seems
to me, why the direct authority of the ancestor should, in the
greater number of progressive societies, very shortly assume
humbler proportions than belonged to it in their earliest state.
The implicit obedience of rude men to their parent is doubtless a
primary fact, which it would be absurd to explain away altogether
by attributing to them any calculation of its advantages; but, at
the same time, if it is natural in the sons to obey the father,
it is equally natural that they should look to him for superior
strength or superior wisdom. Hence, when societies are placed
under circumstances which cause an especial value to be attached
to bodily and mental vigour, there is an influence at work which
tends to confine the Patria Potestas to the cases where its
possessor is actually skilful and strong. When we obtain our
first glimpse of organised Hellenic society, it seems as if
supereminent wisdom would keep alive the father's power in
Persons whose bodily strength had decayed; but the relations of
Ulysses and Laertes in the Odyssee appear to show that, where
extraordinary valour and sagacity were united in the son, the
father in the decrepitude of age was deposed from the headship of
the family. In the mature Greek jurisprudence, the rule advances
a few steps on the practice hinted at in the Homeric literature;
and though very many traces of stringent family obligation
remain, the direct authority of the parent is limited, as in
European codes, to the nonage or minority of the children, or, in
other words, to the period during which their mental and physical
inferiority may always be presumed. The Roman law, however, with
its remarkable tendency to innovate on ancient usage only just so
far as the exigency of the commonwealth may require, preserves
both the primeval institution and the natural limitation to which
I conceive it to have been subject. In every relation of life in
which the collective community might have occasion to avail
itself of his wisdom and strength, for all purposes of counsel or
of war, the filius familias, or Son under Power, was as free as
his father. It was a maxim of Roman jurisprudence that the Patria
Potestas did not extend to the Jus Publicum. Father and son voted
together in the city, and fought side by side in the field;
indeed, the son, as general, might happen to command the father,
or, as magistrate, decide on his contracts and punish his
delinquencies. But in all the relations created by Private Law;
the son lived under a domestic despotism which, considering the
severity it retained to the last, and the number of centuries
through which it endured, constitutes one of the strangest
problems in legal history. 
    The Patria Potestas of the Romans, which is necessarily our
type of the primeval paternal authority, is equally difficult to
understand as an institution of civilised life, whether we
consider its incidence on the person or its effects on property.
It is to be regretted that a chasm which exists in its history
cannot be more completely filled. So far as regards the person,
the parent, when our information commences, has over his children
the jus vitae necisque, the power of life and death, and a
fortiori of uncontrolled corporal chastisement; he can modify
their personal condition at pleasure; he can give a wife to his
son; he can give his daughter in marriage; he can divorce his
children of either sex; he can transfer them to another family by
adoption; and he can sell them. Late in the Imperial period we
find vestiges of all these powers, but they are reduced within
very narrow limits. The unqualified right of domestic
chastisement has become a right of bringing domestic offences
under the cognisance of the civil magistrate; the privilege of
dictating marriage has declined into a conditional veto; the
liberty of selling has been virtually abolished, and adoption
itself, destined to lose almost all its ancient importance in the
reformed system of Justinian, can no longer be effected without
the assent of the child transferred to the adoptive parentage. In
short, we are brought very close to the verge of the ideas which
have at length prevailed in the modern world. But between these
widely distant epochs there is an interval of obscurity, and we
can only guess at the causes which permitted the Patria Potestas
to last as long as it did by rendering it more tolerable than it
appears. The active discharge of the most important among the
duties which the son owed to the state must have tempered the
authority of his parent if they did not annul it. We can readily
persuade ourselves that the paternal despotism could not be
brought into play without great scandal against a man of full age
occupying a high civil office. During the earlier history,
however, such cases of practical emancipation would be rare
compared with those which must have been created by the constant
wars of the Roman republic. The military tribune and the private
soldier who were in the field three-quarters of a year during the
earlier contests, at a later period the proconsul in charge of a
province, and the legionaries who occupied it, cannot have had
practical reason to regard themselves as the slaves of a despotic
master; and all these avenues of escape tended constantly to
multiply themselves. Victories led to conquests, conquests to
occupations; the mode of occupation by colonies was exchanged for
the system of occupying provinces by standing armies. Each step
in advance was a call for the expatriation of more Roman citizens
and a fresh draft on the blood of the failing Latin race. We may
infer, I think, that a strong sentiment in favour of the
relaxation of the Patria Potestas had become fixed by the time
that the pacification of the world commenced on the establishment
of the Empire. The first serious blows at the ancient institution
are attributed to the earlier Caesars, and some isolated
interferences of Trajan and Hadrian seem to have prepared the
ground for a series of express enactments which, though we cannot
always determine their dates, we know to have limited the
father's powers on the one hand, and on the other to have
multiplied facilities for their voluntary surrender. The older
mode of getting rid of the Potestas, by effecting a triple sale
of the son's person, is evidence, I may remark, of a very early
feeling against the unnecessary prolongation of the powers. The
rule which declared that the son should be free after having been
three times sold by his father seems to have been originally
meant to entail penal consequences on a practice which revolted
even the imperfect morality of the primitive Roman. But even
before the publication of the Twelve Tables it had been turned,
by the ingenuity of the jurisconsults, into an expedient for
destroying the parental authority wherever the father desired
that it should cease. 
    Many of the causes which helped to mitigate the stringency of
the father's power over the persons of his children are doubtless
among those which do not lie upon the face of history. We cannot
tell how far public opinion may have paralysed an authority which
the law conferred, or how far natural affection may have rendered
it endurable. But though the powers over the person may have been
latterly nominal, the whole tenour of the extant Roman
jurisprudence suggests that the father's rights over the son's
property were always exercised without scruple to the full extent
to which they were sanctioned by law. There is nothing to
astonish us in the latitude of these rights when they first show
themselves. The ancient law of Rome forbade the Children under
Power to hold property apart from their parent, or (we should
rather say) never contemplated the possibility of their claiming
a separate ownership. The father was entitled to take the whole
of the son's acquisitions, and to enjoy the benefit of his
contracts; without being entangled in any compensating liability.
So much as this we should expect from the constitution of the
earliest Roman society, for we can hardly form a notion of the
primitive family group unless we suppose that its members brought
their earnings of all kinds into the common stock while they were
unable to bind it by improvident individual engagements. The true
enigma of the Patria Potestas does not reside here, but in the
slowness with which these proprietary privileges of the parent
were curtailed, and in the circumstance that, before they were
seriously diminished, the whole civilised world was brought
within their sphere. No innovation of any kind was attempted till
the first year of the Empire, when the acquisitions of soldiers
on service were withdrawn from the operation of the Patria
Potestas, doubtless as part of the reward of the armies which had
overthrown the free commonwealth. Three centuries afterwards the
same immunity was extended to the earnings of persons who were in
the civil employment of the state. Both changes were obviously
limited in their application, and they were so contrived in
technical form as to interfere as little as possible with the
principle of Patria Potestas. A certain qualified and dependent
ownership had always been recognised by the Roman law in the
perquisites and savings which slaves and sons under power were
not compelled to include in the household accounts, and the
special name of this permissive property, Peculium, was applied
to the acquisitions newly relieved from Patria Potestas, which
were called in the case of soldiers Castrense Peculium, and
quasi-castrense Peculium in the case of civil servants. Other
modifications of the parental privileges followed, which showed a
less studious outward respect for the ancient principle. Shortly
after the introduction of the Quasicastrense Peculium,
Constantine the Great took away the father's absolute control
over property which his children had inherited from their mother,
and reduced it to a usufruct, Or life-interest. A few more
changes of slight importance followed in the Western Empire, but
the furthest point reached was in the East, under Justinian, who
enacted that unless the acquisitions of the child were derived
from the parent's own property, the parent's rights over them
should not extend beyond enjoying their produce for the period of
his life. Even this, the utmost relaxation of the Roman Patria
Potestas, left it far ampler and severer than any analogous
institution of the modern world. The earliest modern writers on
jurisprudence remark that it was only the fiercer and ruder of
the conquerors of the empire, and notably the nations of
Sclavonic origin, which exhibited a Patria Potestas at all
resembling that which was described in the Pandects and the Code.
All the Germanic immigrants seem to have recognised a corporate
union of the family under the mund, or authority of a patriarchal
chief; but his powers are obviously only the relic of a decayed
Patria Potestas, and fell far short of those enjoyed by the Roman
father. The Franks are particularly mentioned as not having the
Roman Institution, and accordingly the old French lawyers, even
when most busily engaged in filling the interstices of barbarous
custom with rules of Roman law, were obliged to protect
themselves against the intrusion of the Potestas by the express
maxim, Puyssance de pere en France n'a lieu. The tenacity of the
Rowans in maintaining this relic of their most ancient condition
is in itself remarkable, but it is less remarkable than the
diffusion of the Potestas over the whole of a civilisation from
which it had once disappeared. While the Castrense Peculium
constituted as yet the sole exception to the father's power over
property, and while his power over his children's persons was
still extensive, the Roman citizenship, and with it the Patria
Potestas,were spreading into every corner of the empire. Every
African or Spaniard, every Gaul, Briton, or Jew, who received
this honour by gift, purchase, or inheritance, placed himself
under the Roman Law of Persons, and, though our authorities
intimate that children born before the acquisition of citizenship
could not be brought under Power against their will, children
born after it and all ulterior descendants were on the ordinary
footing of a Roman filius familias. It does not fall within the
province of this treatise to examine the mechanism of the later
Roman society but I may be permitted to remark that there is
little, foundation for the opinion which represents the
constitution of Antoninus Caracalla conferring Roman citizenship
on the whole of his subjects as a measure of small importance.
However we may interpret it, it must have enormously enlarged the
sphere of the Patria Potestas, and it seems to me that the
tightening of family relations which it effected is an agency
which ought to be kept in view more than it has been, in
accounting for the great moral revolution which was transforming
the world. 
    Before this branch of our subject is dismissed, it should be
observed that the Paterfamilias was answerable for the delicts
(or torts) of his Sons under Power. He was similarly liable for
the torts of his slaves; but in both cases he originally
possessed the singular privilege of tendering the delinquent's
person in full satisfaction of the damage. The responsibility
thus incurred on behalf of sons, coupled with the mutual
incapacity of parent and Child under Power to sue one another,
has seemed to some jurists to be best explained by the assumption
of a "unity of person" between the Paterfamilias and the
Filius-familias. In the chapter on Successions I shall attempt to
show in what sense, and to what extent, this "unity" can be
accepted as a reality. I can only say at present that these
responsibilities of the Paterfamilias, and other legal phenomena
which will be discussed hereafter, appear to me to point at
certain duties of the primitive Patriarchal chieftain which
balanced his rights. I conceive that, if he disposed absolutely
of the persons and fortune of his clansmen, this representative
ownership was coextensive with a liability to provide for all
members of the brotherhood out of the common fund. The difficulty
is to throw ourselves out of our habitual associations
sufficiently for conceiving the nature of his obligation. It was
not a legal duty, for law had not yet penetrated into the
precinct of the Family. To call it moral is perhaps to anticipate
the ideas belonging to a later stage of mental development; but
the expression "moral obligation" is significant enough for our
purpose, if we understand by it a duty semi-consciously followed
and enforced rather by instinct and habit than by definite
    The Patria Potestas, in its normal shape, has not been, and,
as it seems to me, could not have been, a generally durable
institution. The proof of its former universality is therefore
incomplete so long as we consider it by itself; but the
demonstration may be carried much further by examining other
departments of ancient law which depend on it ultimately, but not
by a thread of connexion visible in all its parts or to all eyes.
Let us turn for example to Kinship, or in other words, to the
scale on which the proximity of relatives to each other is
calculated in archaic jurisprudence. Here again it will be
convenient to employ the Roman terms, Agnatic and Cognatic
relationship. Cognatic relationship is simply the inception of
kinship familiar to modern ideas; it is the relationship arising
through common descent from the same pair of married persons,
whether the descent be traced through males or females. Agnatic
relationship is something very different : it excludes a number
of persons whom we in our day should certainly consider of kin to
ourselves, and it includes many more whom we should never reckon
among our kindred. It is in truth the connexion existing between
the member of the Family, conceived as it was in the most ancient
times. The limits of this connexion are far from conterminous
with those of modern relationship. 
    Cognates then are all those persons who can.trace their.
blood to a single ancestor and ancestress; or, if we take the
strict technical meaning of the word in Roman law, they are all
who trace their blood to the legitimate marriage of a common
pair. "Cognation" is therefore a relative term, and the degree of
connexion in blood which it indicates depends on the particular
marriage which is selected as the commencement of the
calculation. If we begin with the marriage of father and mother,
Cognation will only express the relationship of brothers and
sisters; if we take that of the grandfather and grandmother, then
uncles, aunts, and their descendants will also be included in the
notion of Cognation, and following the same process a larger
number of Cognates may be continually obtained by choosing the
starting point higher and higher up in the line of ascent. All
this is easily understood by a modern; but who are the Agnates?
In the first place, they are all the Cognates who trade their
connexion exclusively through males. A table of Cognates is, of
course, formed by taking each lineal ancestor in turn and
including all his descendants of both sexes in the tabular view;
if then, in tracing the various branches of such a genealogical
table or tree, we stop whenever we come to the name of a female
and pursue that particular branch or ramification no further, all
who remain after the descendants of women have been excluded are
Agnates, and their connexion together is Agnatic Relationship. I
dwell a little on the process which is practically followed in
separating them from the Cognates, because it explains a
memorable legal maxim, "Mulier est finis familia" -- a woman is
the terminus of the family. A female name closes the branch or
twig of the genealogy in which it occur. None of the descendants
of a female are included in the primitive notion of family
    If the system of archaic law at which we are looking be one
which admits Adoption, we must add to the Agnate thus obtained
all persons, male or female, who have been brought into the
Family by the artificial extension of its boundaries. But the
descendants of such persons will only be Agnates, if they satisfy
the conditions which have just been described. 
    What then is the reason of this arbitrary inclusion and
exclusion? Why should a conception of Kinship, so elastic as to
include stranger brought into the family by adoption, be
nevertheless so narrow as to shut out the descendants of a female
member? To solve these questions, we must recur to the Patria
Potestas. The foundation of Agnation is not the marriage of
Father and Mother, but the authority of the Father. All persons
are Agnatically connected together who are under the same
Paternal Power, or who have been under it, or who might have been
under it if their lineal ancestor had lived long enough to
exercise his empire. In truth, in the primitive view,
Relationship is exactly limited by Patria Potestas. Where the
Potestas begins, Kinship begins; and therefore adoptive relatives
are among the kindred. Where the Potestas ends, Kinship ends; so
that a son emancipated by his father loses all rights of
Agnation. And here we have the reason why the descendants of
females are outside the limits of archaic kinship. If a woman
died unmarried, she could have no legitimate descendants. If she
married, her children fell under the Patria Potestas, not of her
Father, but of her Husband, and thus were lost to her own family.
It is obvious that the organisation of primitive societies would
have been confounded, if men had called themselves relatives of
their mother's relatives. The inference would have been that a
person might be subject to two distinct Patriae Potestates; but
distinct Patriae Potestates implied distinct jurisdictions, so
that anybody amenable to two of them at the same time would have
lived under two different dispensations. As long as the Family
was an imperium in imperio, a community within the commonwealth,
governed by its own institutions of which the parent was the
source, the limitation of relationship to the Agnates was a
necessary security against a conflict of laws in the domestic
    The Parental Powers proper are extinguished by the death of
the Parent, but Agnation is as it were a mould which retains
their imprint after they have ceased to exist. Hence comes the
interest of Agnation for the inquirer into the history of
jurisprudence. The Powers themselves are discernible in
comparatively few monuments of ancient law, but Agnatic
Relationship, which implies their former existence, is
discoverable almost everywhere. There are few indigenous bodies
of law belonging to communities of the Indo-European stock, which
do not exhibit peculiarities in the most ancient part of their
structure which are clearly referable to Agnation. In Hindoo law,
for example, which is saturated with the primitive notions of
family dependency, kinship is entirely Agnatic, and I am informed
that in Hindoo genealogies the names of women are generally
omitted altogether. The same view of relationship pervades so
much of the laws of the races who overran the Roman Empire as
appears to have really formed Part of their primitive usage, and
we may suspect that it would have perpetuated itself even more
than it has in modern European jurisprudence, if it had not been
for the vast influence of the later Roman law on modern thought.
The Praetors early laid hold on Cognation as the natural form of
kinship, and spared no pains in purifying their system from the
older conception. Their ideas have descended to us, but still
traces of Agnation are to be seen in many of the modern rules of
succession after death. The exclusion of females and their
children from governmental functions, commonly attributed to the
usage of the Salian Franks, has certainly an agnatic origin,
being descended from the ancient German rule of succession to
allodial property. In Agnation too is to be sought the
explanation of that extraordinary rule of English Law, only
recently repealed, which prohibited brothers of the half-blood
from succeeding to one another's lands. In the Customs of
Normandy the rule applies to, by the same mother uterine brothers
only, that is, to brothers but not by the same father; and,
limited in this way, it is a strict deduction from the system of
Agnation, under which uterine brothers are no relations at all to
one another. When it was transplanted to England, the English
judges, who had no clue to its principle, interpreted it as a
general prohibition against the succession of the half-blood, and
extended it to consanguineous brothers, that is to sons of the
same father by different wives. In all the literature which
enshrines the pretended philosophy of law, there is nothing more
curious than the pages of elaborate sophistry in which Blackstone
attempts to explain and justify the exclusion of the half-blood. 
    It may be shown, I think, that the Family, as held together
by the Patria Potestas, is the nidus out of which the entire Law
of Persons has germinated. Of all the chapters of that Law the
most important is that which is concerned with the status of
Females. It has just been stated that Primitive Jurisprudence,
though it does not allow a Woman to communicate any rights of
Agnation to her descendants, includes herself nevertheless in the
Agnatic bond. Indeed, the relation of a female to the family in
which she was born is much stricter, closer, and more durable
than that which unites her male kinsmen. We have several times
laid down that early law takes notice of Families only; this is
the same thing as saying that it only takes notice of persons
exercising Patria Potestas, and accordingly the only principle on
which it enfranchises a son or grandson at the death of his
Parent, is a consideration of the capacity inherent in such son
or grandson to become himself the head of a new family and the
root of a new set of Parental Power. But a woman, of course, has
no capacity of the kind, and no title accordingly to the
liberation which it confers. There is therefore a peculiar
contrivance of archaic jurisprudence for retaining her in the
bondage of the Family for life. This is the institution known to
the oldest Roman law as the Perpetual Tutelage of Women, under
which a Female, though relieved from her Parent's authority by
his decease, continues subject through life to her nearest male
relations as her Guardians. Perpetual Guardianship is obviously
neither more nor less than an artificial prolongation of the
Patria Potestas, when for other purposes it has been dissolved.
In India, the system survives in absolute completeness, and its
operation is so strict that a Hindoo Mother frequently becomes
the ward of her own sons. Even in Europe, the laws of the
Scandinavian nations respecting women preserved it until quite
recently. The invaders of the Western Empire had it universally
among their indigenous usages, and indeed their ideas on the
subject of Guardianship, in all its forms, were among the most
retrogressive of those which they introduced into the Western
world. But from the mature Roman jurisprudence it had entirely
disappeared. We should know almost nothing about it, if we had
only the compilations of Justinian to consult; but the discovery
of the manuscript of Gaius discloses it to us at a most
interesting epoch, just when it had fallen into complete
discredit and was verging on extinction. The great jurisconsult
himself scouts the popular apology offered for it in the mental
inferiority of the female sex, and a considerable part of his
volume is taken up with descriptions of the numerous expedients,
some of them displaying extraordinary ingenuity, which the Roman
lawyers had devised for enabling Women to defeat the ancient
rules. Led by their theory of Natural Law, the jurisconsults had
evidently at this time assumed the equality of the sexes as a
principle of their code of equity. The restrictions which they
attacked were, it is to be observed, restrictions on the
disposition of property, for which the assent of the woman's
guardians was still formally required. Control of her person was
apparently quite obsolete.
    Ancient Law subordinates the woman to her blood-relations,
while a prime phenomenon of modern jurisprudence has been her
subordination to her husband. The history of the change is
remarkable. It begins far back in the annals of Rome. Anciently,
there were three modes in which marriage might be contracted
according to Roman usage, one involving a religious solemnity,
the other two the observance of certain secular formalities. By
the religious marriage or Confarreation; by the higher form of
civil marriage, which was called Coemption; and by the lower
form, which was termed Usus, the Husband acquired a number of
rights over the person and property of his wife, which were on
the whole in excess of such as are conferred on him in any system
of modern jurisprudence. But in what capacity did he acquire
them? Not as Husband, but as Father. By the Confarreation,
Coemption, and Usus, the woman passed in manum viri, that is, in
law she became the Daughter of her husband. She was included in
his Patria Potestas. She incurred all the liabilities springing
out of it while it subsisted, and surviving it when it had
expired. All her property became absolutely his, and she was
retained in tutelage after his death to the guardian whom he had
appointed by will. These three ancient forms of marriage fell,
however, gradually into disuse, so that, at the most splendid
period of Roman greatness, they had almost entirely given place
to a fashion of wedlock -- old apparently but not hitherto
considered reputable -- which was founded on a modification of
the lower form of civil marriage. Without explaining the
technical mechanism of the institution now generally popular, I
may describe it as amounting in law to little more than a
temporary deposit of the woman by her family. The rights of the
family remained unimpaired, and the lady continued in the
tutelage of guardians whom her parents had appointed and whose
privileges of control overrode, in many material respects, the
inferior authority of her husband. The consequence was that the
situation of the Roman female, whether married or unmarried,
became one of great personal and proprietary independence, for
the tendency of the later law, as I have already hinted, was to
reduce the power of the guardian to a nullity, while the form of
marriage in fashion conferred on the husband no compensating
superiority. But Christianity tended somewhat from the very first
to narrow this remarkable liberty. Led at first by justifiable
disrelish for the loose practices of the decaying heathen world,
but afterwards hurried on by a passion of asceticism, the
professors of the new faith looked with disfavour on a marital
tie which was in fact the laxest the Western world has seen. The
latest Roman law, so far as it is touched by the constitutions of
the Christian Emperors, hears some marks of a reaction against
the liberal doctrines of the great Antonine jurisconsults. And
the prevalent state of religious sentiment may explain why it is
that modern jurisprudence, forged in the furnace of barbarian
conquest, and formed by the fusion of Roman jurisprudence with
patriarchal usage, has absorbed, among its rudiments, much more
than usual of those rules concerning the position of women which
belong peculiarly to an imperfect civilisation. During the
troubled era which begins modern history, and while the laws of
the Germanic and Sclavonic immigrants remained superposed like a
separate layer above the Roman jurisprudence of their provincial
subjects, the women of the dominant races are seen everywhere
under various forms of archaic guardianship, and the husband who
takes a wife from any family except his own pays a money-price to
her relations for the tutelage which they surrender to him. When
we move onwards, and the code of the middle ages has been formed
by the amalgamation of the two systems, the law relating to women
carries the stamp of its double origin. The principle of the
Roman jurisprudence is so far triumphant that unmarried females
are generally (though there are local exceptions to the rule)
relieved from the bondage of the family; but the archaic
principle of the barbarians has fixed the position of married
women, and the husband has drawn to himself in his marital
character the powers which had once belonged to his wife's male
kindred, the only difference being that he no longer purchases
his privileges. At this point therefore the modern law of Western
and Southern Europe begins to be distinguished by one of its
chief characteristic, the comparative freedom it allows to
unmarried women and widows, the heavy disabilities it imposes on
wives. It was very long before the subordination entailed on the
other sex by marriage was sensibly diminished. The principal and
most powerful solvent of the revived barbarism of Europe was
always the codified jurisprudence of Justinian, wherever it was
studied with that passionate enthusiasm which it seldom failed to
awaken. It covertly but most efficaciously undermined the customs
which it pretended merely to interpret. But the Chapter of law
relating to married women was for the most part read by the
light, not of Roman, but of Canon Law, which in no one particular
departs so widely from the spirit of the secular jurisprudence as
in the view it takes of the relations created by marriage. This
was in part inevitable, since no society which preserves any
tincture of Christian institution is likely to restore to married
women the personal liberty conferred on them by the middle Roman
law, but the proprietary disabilities of married females stand on
quite a different basis from their personal incapacities, and it
is by keeping alive and consolidating the former that the
expositors of the Canon Law have deeply injured civilisation.
There are many vestiges of a struggle between the secular and
ecclesiastical principles, but the Canon Law nearly everywhere
prevailed. In some of the French provinces married women, of a
rank below nobility, obtained all the powers of dealing with
property which Roman jurisprudence had allowed, and this local
law has been largely followed by the Code Napoleon; but the state
of the Scottish law shows that scrupulous deference to the
doctrines of the Roman jurisconsults did not always extend to
mitigating the disabilities of wives. The systems however which
are least indulgent to married women are invariably those which
have followed the Canon Law exclusively, or those which, from the
lateness of their contact with European civilisation, have never
had their archaisms weeded out. The Scandinavian laws, harsh till
lately to all females, are still remarkable for their severity to
wives. And scarcely less stringent in the proprietary
incapacities it imposes is the English Common Law, which borrows
far the greatest number of its fundamental principles from the
jurisprudence of the Canonists. Indeed, the part of the Common
Law which prescribes the legal situation of married women may
serve to give an Englishman clear notions of the great
institution which has been the principal subject of this chapter.
I do not know how the operation and nature of the ancient Patria
Potestas can be brought so vividly before the mind as by
reflecting on the prerogatives attached to the husband by the
pure English Common Law, and by recalling the rigorous
consistency with which the view of a complete legal subjection on
the part of the wife is carried by it, where it is untouched by
equity or statutes, through every department of rights, duties,
and remedies. The distance between the eldest and latest Roman
law on the subject of Children under Power may be considered as
equivalent to the difference between the Common Law and the
jurisprudence of the Court of Chancery in the rules which they
respectively apply to wives. 
    If we were to lose sight of the true origin of Guardianship
in both its forms and were to employ the common language on these
topics, we should find ourselves remarking that, while the
Tutelage of Women is an instance in which systems of archaic law
push to an extravagant length the fiction of suspended rights,
the rules which they lay down for the Guardianship of Male
Orphans are an example of a fault in precisely the opposite
direction. All such systems terminate the Tutelage of males at an
extraordinary early period. Under the ancient Roman law which may
be taken as their type, the son who was delivered from Patria
Potestas by the death of his Father or Grandfather remained under
guardianship till an epoch which for general purposes may be
described as arriving with his fifteenth year,. but the arrival
of that epoch placed him at once in the full enjoyment of
personal and proprietary independence. The period of minority
appears therefore to have been as unreasonably short as the
duration of the disabilities of women was preposterously long.
But, in point of fact, there was no element either of excess or
of shortcoming in the circumstances which gave their original
form to the two kinds of guardianship. Neither the one nor the
other of them was based on the slightest consideration of public
or private convenience. The guardianship of male orphans was no
more desired originally to shield them till the arrival of years
of discretion than the tutelage of women was intended to protect
the other sex against its own feebleness. The reason why the
death of the father delivered the son from the bondage of the
family was the son's capacity for becoming himself the head of a
new family and the founder of a new Patria Potestas; no such
capacity was possessed by the woman and therefore she was never
enfranchised. Accordingly the Guardianship of Male Orphans was a
contrivance for keeping alive the semblance of subordination to
the family of the Parent, up to the time when the child was
supposed capable of becoming a parent himself. It was a
prolongation of the Patria Potestas up to the period of bare
physical manhood. It ended with puberty, for the rigour of the
theory demanded that it should do so. Inasmuch, however, as it
did not profess to conduct the orphan ward to the age of
intellectual maturity or fitness for affairs, it was quite
unequal to the purposes of general convenience; and this the
Romans seem to have discovered at a very early stage of their
social progress. One of the very oldest monuments of Roman
legislation is the Lex Laetoria or Plaetoria which placed all
free males who were of full years and rights under the temporary
control of a new class of guardians, called Curatores, whose
sanction was required to validate their acts or contracts. The
twenty-sixth year of the young man's age was the limit of this
statutory supervision; and it is exclusively with reference to
the age of twenty-five that the terms "majority" and "minority"
are employed in Roman law. Pupilage or wardship in modern
jurisprudence had adjusted itself with tolerable regularity to
the simple principle of protection to the immaturity of youth
both bodily and mental. It has its natural termination with years
of discretion. But for protection against physical weakness and
for protection against intellectual incapacity, the Romans looked
to two different institutions, distinct both in theory and
design. The ideas attendant on both are combined in the modern
idea of guardianship. 
    The Law of Persons contains but one other chapter which can
be usefully cited for our present purpose. The legal rules by
which systems of nature jurisprudence regulate the connection of
Master and Slave, present no very distinct traces of the original
condition common to ancient societies. But there are reasons for
this exception. There seems to be something in the institution of
Slavery which has at all times either shocked or perplexed
mankind, however little habituated to reflection, and however
slightly advanced in the cultivation of its moral instincts. The
compunction which ancient communities almost unconsciously
experienced appears to have always resulted in the adoption of
some imaginary principle upon which a defence, or at least a
rationale, of slavery could be plausibly founded. Very early in
their history the Greeks explained the institution as grounded on
the intellectual inferiority of certain races and their
consequent natural aptitude for the servile condition. The
Romans, in a spirit equally characteristic, derived it from a
supposed agreement between the victor and the vanquished in which
the first stipulated for the perpetual services of his foe; and
the other gained in consideration the life which he had
legitimately forfeited. Such theories were not only unsound but
plainly unequal to the case for which they affected to account.
Still they exercised powerful influence in many ways. They
satisfied the conscience of the Master. They perpetuated and
probably increased the debasement of the Slave. And they
naturally tended to put out of sight the relation in which
servitude had originally stood to the rest of the domestic
system. The relation, though not clearly exhibited, is casually
indicated in many parts of primitive law; and more particularly
in the typical system -- that of ancient 


    Much industry and some learning have been bestowed in the
United States of America on the question whether the Slave was in
the early stages of society a recognised member of the Family
There is a sense in which an affirmative answer must certainly be
given. It is clear, from the testimony both of ancient law and of
many primeval histories, that the Slave might under certain
conditions be made the Heir, or Universal Successor, of the
Master, and this significant faculty, as I shall. explain in the
Chapter on Succession, implies that the government and
representation of the Family might, in a particular state of
circumstances, devolve on the bondman. It seems, however, to be
assumed in the American arguments on the subject that, if we
allow Slavery to have been a primitive Family institution, the
acknowledgment is pregnant with an admission of the moral
defensibility of Negro-servitude at the present moment. What then
is meant by saying that the Slave was originally included in the
Family? Not that his situation may not have been the fruit of the
coarsest motives which can actuate man. The simple wish to use
the bodily powers of another person as a means of ministering to
one's own ease or pleasure is doubtless the foundation of
Slavery, and as old as human nature. When we speak of the Slave
as anciently included in the Family, we intend to assert nothing
as to the motives of those who brought him into it or kept him
there; we merely imply that the tie which bound him to his master
was regarded as one of the same general character with that which
united every other member of the group to its chieftain. This
consequence is, in fact, carried in the general assertion already
made that the primitive ideas of mankind were unequal to
comprehending any basis of the connection inter se of
individuals, apart from the relations of family. The Family
consisted primarily of those who belonged to it by consanguinity.
and next of those who had been engrafted on it by adoption; but
there was still a third class of persons who were only joined to
it by common subjection to its head, and these were the Slaves.
The born and the adopted subjects of the chief were raised above
the Slave by the certainty that in the ordinary course of events
they would be relieved from bondage and entitled to exercise
powers of their own; but that the inferiority of the Slave was
not such as to place him outside the pale of the Family, or such
as to degrade him to the footing of inanimate property, is
clearly proved, I think, by the many traces which remain of his
ancient capacity for inheritance in the last resort. It would, of
course, be unsafe in the highest degree to hazard conjectures how
far the lot of the Slave was mitigated, in the beginnings of
society, by having a definite place reserved to him in the empire
of the Father. It is, perhaps, more probable that the son was
practically assimilated to the Slave, than that the Slave shared
any of the tenderness which in later times was shown to the son.
But it may be asserted with some confidence of advanced and
matured codes that, wherever servitude is sanctioned, the Slave
has uniformly greater advantages under systems which preserve
some memento of his earlier condition than under those which have
adopted some other theory of his civil degradation. The point of
view from which jurisprudence regards the Slave is always of
great importance to him. The Roman law was arrested in its
growing tendency to look upon him more and more as an article of
property by the theory of the Law of Nature; and hence it is
that, wherever servitude is sanctioned by institutions which have
been deeply affected by Roman jurisprudence, the servile
condition is never intolerably wretched. There is a great deal of
evidence that in those American States which have taken the
highly Romanised code of Louisiana as the basis of their
jurisprudence, the lot and prospects of the negro-population are
better in many material respects than under institutions founded
on the English Common Law, which, as recently interpreted, has no
true place for the Slave, and can only therefore regard him as a
    We have now examined all parts of the ancient Law of Persons
which fall within the scope of this treatise, and the result of
the inquiry is, I trust, to give additional definiteness and
precision to our view of the infancy of jurisprudence. The Civil
laws of States first make their appearance as the Themistes of a
patriarchal sovereign, and we can now see that these Themistes
are probably only a developed form of the irresponsible commands
which, in a still earlier condition of the race, the head of each
isolated household may have addressed to his wives, his children,
and his slaves. But, even after the State has been organised, the
laws have still an extremely limited application. Whether they
retain their primitive character as Themistes, or whether they
advance to the condition of Customs or Codified Texts, they are
binding not on individuals,but on Families. Ancient
jurisprudence, if a perhaps deceptive comparison may be employed,
may be likened to International Law, filling nothing, as it were,
excepting the interstices between the great groups which are the
atoms of society. In a community so situated, the legislation of
assemblies and the jurisdiction of Courts reaches only to the
heads of families, and to every other individual the rule of
conduct is the law of his home, of which his Parent is the
legislator. But the sphere of civil law, small at first, tends
steadily to enlarge itself. The agents of legal change, Fictions,
in turn to bear on the Equity, and Legislation, are brought
primeval institutions, and at every point of the progress, a
greater number of personal rights and a larger amount of property
are removed from the domestic forum to the cognisance of the
public tribunals. The ordinances of the government obtain
gradually the same efficacy in private concerns a in matters of
state, and are no longer liable to be overridden by the behests
of a despot enthroned by each hearthstone. We have in the annals
of Roman law a nearly complete history of the crumbling away of
an archaic system, and of the formation of new institutions from
the recombined materials, institutions some of which descended
unimpaired to the modern world, while others, destroyed or
corrupted by contact with barbarism in the dark ages, had again
to be recovered by mankind. When we leave this jurisprudence at
the epoch of its final reconstruction by Justinian, few traces of
archaism can be discovered in any part of it except in the single
article of the extensive powers still reserved to the living
Parent. Everywhere else principles of convenience, or of
symmetry,or of simplification -- new principles at any rate have
usurped the authority of the jejune considerations which
satisfied the conscience of ancient times. Everywhere a new
morality has displaced the canons of conduct and the reasons of
acquiescence which were in unison with the ancient usages,
because in fact they were born of them. 
    The movement of the progressive societies has been uniform in
one respect. Through all its course it has been distinguished by
the gradual dissolution of family dependency and the growth of
individual obligation in its place. The Individual is steadily
substituted for the Family, as the unit of which civil laws take
account. The advance has been accomplished at varying rates of
celerity, and there are societies not absolutely stationary in
which the collapse of the ancient organisation can only be
perceived by careful study of the phenomena they present. But,
whatever its pace, the change has not been subject to reaction or
recoil, and apparent retardations will be found to have been
occasioned through the absorption of archaic ideas and customs
from some entirely foreign source. Nor is it difficult to see
what is the tie between man and man which replaces by degrees
those forms of reciprocity in rights and duties which have their
origin in the Family. It is Contract. Starting, as from one
terminus of history, from a condition of society in which all the
relations of Persons are summed up in the relations of Family, we
seem to have steadily moved towards a phase of social order in
which all these relations arise from the free agreement of
Individuals. In Western Europe the progress achieved in this
direction has been considerable. Thus the status of the Slave has
disappeared -- it has been superseded by the contractual relation
of the servant to his mater. The status of the Female under
Tutelage, if the tutelage be understood of persons other than her
husband, has also ceased to exist; from her coming of age to her
marriage all the relations she may form are relations of
contract. So too the status of the Son under Power has no true
place in law of modern European societies. If any civil
obligation binds together the Parent and the child of full age,
it is one to which only contract gives its legal validity The
apparent exceptions are exceptions of that stamp which illustrate
the rule. The child before years of discretion, the orphan under
guardianship, the adjudged lunatic, have all their capacities and
incapacities regulated by the Law of Persons. But why? The reason
is differently expressed in the conventional language of
different systems, but in substance it is stated to the same
effect by all. The great majority of Jurists are constant to the
principle that the classes of persons just mentioned are subject
to extrinsic control on the single ground that they do not
possess the faculty of forming a judgment on their own interests;
in other words, that they are wanting in the first essential of
an engagement by Contract. 
    The word Status may be usefully employed to construct a
formula expressing the law of progress thus indicated, which,
whatever be its value, seems to me to be sufficiently
ascertained. All the forms of Status taken notice of in the Law
of Persons were derived from, and to some extent are still
coloured by, the powers and privileges anciently residing in the
Family. If then we employ Status, agreeably with the usage of the
best writers, to signify these personal conditions only, and
avoid applying the term to such conditions as are the immediate
or remote result of agreement, we may say that the movement of
the progressive societies has hitherto been a movement from
Status to Contract. 


Chapter 6

The Early History of Testamentary Succession

    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. 
    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. 
    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? 
    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 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.
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 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. 
    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 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. 
    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 successor 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 the continuous existence of
the Family is endangered by a change in the person of its chief.
Accordingly we hear most about them in connection with demises of
domestic sovereignty. Among the Hindoos, the right to inherit a
dead man's property is exactly co-extensive with the duty of
performing his obsequies. If the rites are not properly performed
or not performed by the proper person, no relation is considered
as established between the deceased and anybody surviving him;
the Law of Succession does not apply, and nobody can inherit the
property. Every great event in the life of a Hindoo seems to be
regarded as leading up to and bearing upon those solemnities. If
he marries, it is to have children who may celebrate them after
his death; if he has no children, he lies under the strongest
obligation to adopt them from another family, "with a view,"
writes the Hindoo doctor, "to the funeral cake, the water, and
the solemn sacrifice." The sphere preserved to the Roman sacra in
the time of Cicero, was not less in extent. It embraced
Inheritances and Adoptions. No Adoption was allowed to take place
without due provision for the sacra of the family from which the
adoptive son was transferred, and no Testament was allowed to
distribute an Inheritance without a strict apportionment of the
expenses of these ceremonies among the different co-heirs. The
differences between the Roman law at this epoch, when we obtain
our last glimpse of the sacra, and the existing Hindoo system,
are most instructive. Among the Hindoos, the religious element in
law has acquired a complete predominance. Family sacrifices have
become the keystone of all the Law of Persons and much of the Law
of Things. They have even received a monstrous extension, for it
is a plausible opinion that the self-immolation of the widow at
her husband's funeral, a practice continued to historical times
by the Hindoos, and commemorated in the traditions of several
Indo-European races, was an addition grafted on the primitive
sacra, under the influence of the impression, which always
accompanies the idea of sacrifice, that human blood is the most
precious of all oblations. With the Romans, on the contra, the
legal obligation and the religious duty have ceased to be
blended. The necessity of solemnising the sacra forms no part of
the theory of civil law but they are under the separate
jurisdiction of the College of Pontiffs. The letters of Cicero to
Atticus, which are full of allusions to them, leave no doubt that
they constituted an intolerable burden on Inheritances; but the
point of development at which law breaks away from religion has
been passed, and we are prepared for their entire disappearance
from the later jurisprudence. 
    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. 
    The Testament to which the pedigree of all modern Wills may
be traced is not, however, the Testament executed in the Calata
Comitia, but another Testament desired to compete with it and
destined to supersede it. The historical importance of this early
Roman Will, and the light it casts on much of ancient thought,
will excuse me for describing it at some length. 
    When the Testamentary power first discloses itself to us in
legal history, there are signs that, like almost all the great
Roman institutions, it was the subject of contention between the
Patricians and the Plebeians. The effect of the political maxim,
Plebs Gentem non habet, "a Plebeia cannot be a member of a
House," was entirely to exclude the Plebeians from the Comitia
Curiata. Some critics have accordingly supposed that a Plebeian
could not have his Will read or recited to the Patrician
Assembly, and was thus deprived of Testamentary privileges
altogether. Others have been satisfied to point out the hardships
of having to submit a proposed Will to the unfriendly
jurisdiction of an assembly in which the Testator was not
represented. Whatever be the true view, a form of Testament came
into use, which has all the characteristics of a contrivance
intended to evade some distasteful obligation. The Will in
question was a conveyance inter vivos, a complete and irrevocable
alienation of the Testator's family and substance to the person
whom he meant to be his heir. The strict rules of Roman law must
always have permitted such an alienation, but, when the
transaction was intended to have a posthumous effect, there may
have been disputes whether it was valid for Testamentary purposes
without the formal assent of the Patricia Parliament. If a
difference of opinion existed on the point between the two
classes of the Roman population, it was extinguished, with many
other sources of heartburning, by the great Decemviral
compromise. The text of the Twelve Tables is still extant which
says, "Pater familias uti de pecunia tutelave rei suae legassit,

ita jus esto" -- a law which can hardly have had any other object
than the legalisation of the Plebeian Will. 
    It is well known to scholars that, centuries after the
Patrician Assembly had ceased to be the legislature of the Roman
State, it still continued to hold formal sittings for the
convenience of private business. Consequently, at a period long
subsequent to the publication of the Decemviral Law, there is
reason to believe that the Comitia Calata still assembled for the
validation of Testaments. Its probable functions may be best
indicated by saying that it was a Court of Registration, with the
understanding however that the Wills exhibited were not enrolled,
but simply recited to the members, who were supposed to take note
of their tenor and to commit them to memory. It is very likely
that this form of Testament was never reduced to writing at all,
but at all events if the Will had been originally written, the
office of the Comitia was certainly confined to hearing it read
aloud, the document being retained afterwards in the custody of
the Testator, or deposited under the safeguard of some religious
corporation. This publicity may have been one of the incidents of
the Testament executed in the Comitia Calata which brought it
into popular disfavour. In the early years of the Empire the
Comitia still held its meetings, but they seem to have lapsed
into the merest form, and few Wills, or none, were probably
presented at the periodical sitting. 
    It is the ancient Plebeian Will -- the alternative of the
Testament just described -- which in its remote effects has
deeply modified the civilisation of the modern world. It acquired
at Rome all the popularity which the Testament submitted to the
Calata Comitia appears to have lost. The key to all its
characteristics lies in its descent from the mancipium, or
ancient Roman conveyance, a proceeding to which we may
unhesitatingly assign the parentage of two great institutions
without which modern society can scarcely be supposed capable of
holding together, the Contract and the Will. The mancipium, or as
the word would exhibit itself in later Latinity, the Mancipation,
carries us back by its incidents to the infancy of civil society.
As it sprang from times long anterior, if not to the invention,
at all events to the popularisation, of the art of writing,
gestures, symbolical acts, and solemn phrases take the place of
documentary forms, and a lengthy and intricate ceremonial is
intended to call the attention of the parties to the importance
of the transaction, and to impress it on the memory of the
witnesses. The imperfection too of oral, as compared with
written, testimony necessitates the multiplication of the
witnesses and assistants beyond what in later times would be
reasonable or intelligible limits. 
    The Roman Mancipation required the presence first of all of
the parties, the vendor and vendee, or we should perhaps rather
say, if we are to use modern legal language, the grantor and
grantee. There were also no less than five witnesses; and an
anomalous personage, the Libripens, who brought with him a pair
of scales to weigh the uncoined copper money of ancient Rome. The
Testament we are considering -- the Testament per aes et libram,
"with the copper and the scales," as it long continued to be
technically called -- was an ordinary Mancipation with no change
in the form and hardly any in words. The Testator was the
grantor; the five witnesses and the libripens were present; and
the place of grantee was taken by a person known technically as
the familiae emptor, the Purchaser of the Family. The ordinary
ceremony of a Mancipation was then proceeded with. Certain formal
gestures were made and sentences pronounced. The Emptor familiae
simulated the payment of a price by striking the scales with a
piece of money, and finally the Testator ratified what had been
done in a set form of words called the "Nuncupatio" or
publication of the transaction, a phrase which, I need scarcely
remind the lawyer, has had a long history in Testamentary
jurisprudence. It is necessary to attend particularly to the
character of the person called familiae emptor. There is no doubt
that at first he was the Heir himself. The Testator conveyed to
him outright his whole "familia," that is, all the rights he
enjoyed over and through the family; his property, his slaves,
and all his ancestral privileges, together, on the other hand,
with all his duties and obligations. 
    With these data before us, we are able to note several
remarkable points in which the Mancipatory Testament, as it may
be called, differed in its primitive form from a modern will. As
it amounted to a conveyance out-and-out of the Testator's estate,
it was not revocable. There could be no new exercise of a power
which had been exhausted. 
    Again, it was not secret. The Familia Emptor, being himself
the Heir, knew exactly what his rights were, and was aware that
he was irreversibly entitled to the inheritance; a knowledge
which the violences inseparable from the best-ordered ancient
society rendered extremely dangerous. But perhaps the most
surprising consequence of this relation of Testaments to
Conveyances was the immediate vesting of the inheritance in the
Heir. This has seemed so incredible to not a few civilians, that
they have spoken of the Testator's estate as vesting
conditionally on the Testator's death or as granted to him from a
time uncertain, i.e. the death of the grantor. But down to the
latest period of Roman jurisprudence there was a certain class of
transactions which never admitted of being directly modified by a
condition, or of being limited to or from a point of time. In
technical language they did not admit conditio or dies.
Mancipation was one of them, and therefore, strange as it may
seem, we are forced to conclude that the primitive Roman Will
took effect at once, even though the Testator survived his act of
Testation. It is indeed likely that Roman citizens originally
made their Wills only in the article of death, and that a
provision for the continuance of the Family effected by a man in
the flower of life would take the form rather of an Adoption than
of a Will. Still we must believe that, if the Testator did
recover, he could only continue to govern his household by the
sufferance of his Heir. 
    Two or three remarks should be made before I explain how
these inconveniences were remedied, and how Testaments came to be
invested with the characteristics now universally associated with
them. The Testament was not necessarily written: at first, it
seems to have been invariably oral, and, even in later times, the
instrument declaratory of the bequests was only incidentally
connected with the Will and formed no essential part of it. It
bore in fact exactly the same relation to the Testament, which
the deed leading the uses bore to the Fines and Recoveries of old
English law, or which the charter of feoffment bore to the
feoffment itself. Previously, indeed, to the Twelve Tables, no
writing would have been of the slightest use, for the Testator
had no power of giving legacies, and the only persons who could
be advantaged by a will were the Heir or Co-heirs. But the
extreme generality of the clause in the Twelve Tables soon
produced the doctrine that the Heir must take the inheritance
burdened by any directions which the Testator might give him, or
in other words, take it subject to legacies. Written testamentary
instruments assumed thereupon a new value, as a security against
the fraudulent refusal of the heir to satisfy the legatees; but
to the last it was at the Testator's pleasure to rely exclusively
on the testimony of the witnesses, and to declare by word of
mouth the legacies which the familiae emptor was commissioned to
    The terms of the expression Emptor familiae demand notice.
"Emptor" indicates that the Will was literally a sale, and the
word "familiae," when compared with the phraseology in the
Testamentary clause in the Twelve Tables, leads us to some
instructive conclusions. "Familia," in classical Latinity, means
always a man's slaves. Here, however, and generally in the
language of ancient Roman law it includes all persons under his
Potestas, and the Testator's material property or substance is
understood to pass as an adjunct or appendage of his household.
Turning to the law of the Twelve Tables, it will be seen that it
speaks of tutela rei suae, "the guardianship of his substance," a
form of expression which is the exact reverse of the phase just
examined. There does not therefore appear to be any mode of
escaping from the conclusion, that, even at an era so
comparatively recent as that of the Decemviral compromise, terms
denoting "household" and "property" were blended in the current
phraseology. If a man's household had been spoken of as his
property we might have explained the expression as pointing to
the extent of the Patria Potestas, but, as the interchange is
reciprocal, we must allow that the form of speech caries us back
to that primeval period in which property is owned by the family,
and the family is governed by the citizen, so that the member of
the community do not own their property and their family, but
rather own their property through their family. 
    At an epoch not easy to settle with precision, the Roman
Praetors fell into the habit of acting upon Testaments solemnised
in closer conformity with the spirit than the letter of the law.
Casual dispensations became insensibly the established practice,
till at length a wholly new form of Will was matured and
regularly engrafted on the Edictal Jurisprudence. The new or
Praetorian Testament derived the whole of its impregnability from
the Jus Honorarium or Equity of Rome. The Praetor of some
particular year must have inserted a clause in his inaugural
Proclamation declaratory of his intention to sustain all
Testaments which should have been executed with such and such
solemnities; and, the reform having been found advantageous, the
article relating to it must have been again introduced by the
Praetor's successor, and repeated by the next in office, till at
length it formed a recognised portion of that body of
jurisprudence which from these successive incorporations was
styled the Perpetual or Continuous Edict. On examining the
conditions of a valid Praetorian Will they will be plainly seen
to have been determined by the requirements of the Mancipatory
Testament, the innovating Praetor having obviously prescribed to
himself the retention of the old formalities just so far as they
were warrants of genuineness or securities against fraud. At the
execution of the Mancipatory Testament seven persons had been
present besides the Testator. Seven witnesses were accordingly
essential to the Praetorian Will: two of them corresponding to
the libripens and familiae emptor, who were now stripped of their
symbolical character, and were merely present for the purpose of
supplying their testimony. No emblematic ceremony was gone
through; the Will was merely recited; but then it is probable
(though not absolutely certain) that a written instrument was
necessary to perpetuate the evidence of the Testator's
dispositions. At all events, whenever a writing was read or
exhibited as a person's last Will, we know certainly that the
Praetorian Court would not Sustain it by special intervention,
unless each of the seven witnesses had severally affixed his seal
to the outside. This is the first appearance of sealing in the
history of jurisprudence, considered as a mode of authentication.
It is to be observed that the seals of Roman Wills, and other
documents of importance, did not simply serve as the index of the
presence or assent of the signatory, but were literally
fastenings which had to be broken before the writing could be
    The Edictal Law would therefore enforce the dispositions of a
Testator, when, instead of being symbolised through the forms of
mancipation, they were simply evidenced by the seals of seven
witnesses. But it may be laid down as a general proposition, that
the principal qualities of Roman property were incommunicable
except through processes which were supposed to be coeval with
the origin of the Civil Law. The Praetor therefore could not
confer an Inheritance on anybody. He could not place the Heir or
Co-heirs in that very relation in which the Testator had himself
stood to his own rights and obligations. All he could do was to
confer on the person designated as Heir the practical enjoyment
of the property bequeathed, and to give the force of legal
acquittances to his payments of the Testator's debts. When he
exerted his powers to these ends, the Praetor was technically
said to communicate the Bonorum Possessio. The Heir specially
inducted under these circumstances, or Bonorum Possessor had
every proprietary privilege of the Heir by the Civil Law. He took
the profits and he could alienate, but then, for all his remedies
for redress against wrong, he must go, as we should phrase it,
not to the Common Law, but to the Equity side of the Praetorian
Court. No great chance of error would be incurred by describing
him as having an equitable estate in the inheritance; but then,
to secure ourselves against being deluded by the analogy, we must
always recollect that in one year the Bonorum Possessio was
operated upon a principle of Roman Law known as Usucapion, and
the Possessor became Quiritarian owner of all the property
comprised in the inheritance. 
    We know too little of the older law of Civil Process to be
able to strike the balance of advantage and disadvantage between
the different classes of remedies supplied by the Praetorian
Tribunal. It is certain, however, that, in spite of its many
defects, the Mancipatory Testament by which the universitas juris
devolved at once and unimpaired was never entirely superseded by
the new Will; and at a period less bigoted to antiquarian forms,
and perhaps not quite alive to their significance, all the
ingenuity of the Jurisconsults seems to have been expended on the
improvement of the more venerable instrument. At the era of
Gaius, which is that of the Antonine Caesars, the great blemishes
of the Mancipatory Will had been removed. Originally, as we have
seen, the essential character of the formalities had required
that the Heir himself should be the purchaser of the Family, and
the consequence was that he not only instantly acquired a vested
interest in the Testator's Property, but was formally made aware
of his rights. But the age of Gaius permitted some unconcerned
person to officiate as Purchaser of the Family. The heir,
therefore, was not necessarily informed of the succession to
which he was destined; and Wills thenceforward acquired the
property of secrecy. The substitution of a stranger for the
actual Heir in the functions of "Familiae Emptor" had other
ulterior consequences. As soon as it was legalised, a Roman
Testament came to consist of two parts or stages -- a conveyance,
which was a pure form, and a Nuncupatio, or Publication. In this
latter passage of the proceeding, the Testator either orally
declared to the assistants the wishes which were to be executed
after his death, or produced a written document in which his
wishes were embodied. It was not probably till attention had been
quite drawn off from the imaginary Conveyance, and concentrated
on the Nuncupation as the essential part of the transaction, that
Wills were allowed to become revocable. 
    I have thus carried the pedigree of Wills some way down in
legal history. The root of it is the old Testament "with the
copper and the scales," founded on a Mancipation or Conveyance.
This ancient Will has, however, manifold defects, which are
remedied, though only indirectly, by the Praetorian law Meantime
the ingenuity of the Jurisconsults effects, in the Common-Law
Will or Mancipatory Testament, the very improvements which the
Praetor may have concurrently carried out in Equity. These last
ameliorations depend, however, on mere legal dexterity, and we
see accordingly that the Testamentary Law of the day of Gaius or
Ulpian is only transitional. What changes next ensued we know
not; but at length, just before the reconstruction of the
jurisprudence by Justinian, we find the subjects of the Eater
Roman Empire employing a form of Will of which the pedigree is
traceable to the Praetorian Testament on one side, and to the
Testament "with the copper and the scales" on the other. Like the
Testament of the Praetor, it required no Mancipation, and was
invalid unless sealed by seven witnesses. Like the Mancipatory
Will, it passed the Inheritance and not merely a Bonorum
Possessio. Several, however, of its most important features were
annexed by positive enactments, and it is out of regard to this
threefold derivation from the Praetorian Edict, from the Civil
Law, and from the Imperial Constitutions, that Justinian speaks
of the Law of Wills in his own day as Jus Tripertitum. The new
Testament thus described is the one generally known as the Roman
Will. But it was the Will of the Eastern Empire only and the
researches of Savigny have shown that in Western Europe the old
Mancipatory Testament, with all its apparatus of conveyance,
copper, and scales, continued to be the form in use far down in
the Middle Ages. 


Chapter 7

Ancient and Modern Ideas Respecting Wills and Successions

    Although there is much in the modern European Law of Wills
which is intimately connected with the oldest rules of
Testamentary disposition practised among men, there are
nevertheless some important differences between ancient and
modern ideas on the subject of Wills and Successions. Some of the
points of difference I shall endeavour to illustrate in this
    At a period, removed several centuries from the era of the
Twelve Tables, we find a variety of rules engrafted on the Roman
Civil Law with the view of limiting the disinherison of children;
we have the jurisdiction of the Praetor very actively exerted in
the same interest; and we are also presented with a new remedy
very anomalous in character and of uncertain origin, called the
Querela Inofficiosi Testamenti, "the Plaint of an Unduteous
Will," directed to the reinstatement of the issue in inheritances
from which they had been unjustifiably excluded by a father's
Testament. Comparing this condition of the law with the text of
the Twelve Tables which concedes in terms the utmost liberty of
Testation, several writers have been tempted to interweave a good
deal of dramatic incident into their history of the Law
Testamentary. They tell us of the boundless license of
disinherison in which the heads of families instantly began to
indulge, of the scandal and injury to public morals which the new
practices engendered, and of the applause of all good men which
hailed the courage of the Praetor in arresting the progress of
paternal depravity. This story, which is not without some
foundation for the principal fact it relates, is often so told as
to disclose very serious misconceptions of the principles of
legal history. The Law of the Twelve Tables is to be explained by
the character of the age in which it was enacted. It does not
license a tendency which a later era thought itself bound to
counteract, but it proceeds on the assumption that no such
tendency exists, or, perhaps we should say, in ignorance of the
possibility of its existence. There is no likelihood that Roman
citizens began immediately to avail themselves freely of the
power to disinherit. It is against all reason and sound
appreciation of history to suppose that the yoke of family
bondage, still patiently submitted to, as we know, where its
pressure galled most cruelly, would be cast off in the very
particular in which its incidence in our own day is not otherwise
than welcome. The Law of the Twelve Tables permitted the
execution of Testaments in the only case in which it was thought
possible that they could be executed, viz. on failure of children
and proximate kindred. It did not forbid the disinherison of
direct descendants, inasmuch as it did not legislate against a
contingency which no Roman lawgiver of that era could have
contemplated. No doubt, as the offices of family affection
progressively lost the aspect of primary personal duties, the
disinherison of children was occasionally attempted. But the
interference of the Praetor, so far from being called for by the
universality of the abuse, was doubtless first prompted by the
fact that such instances of unnatural caprice were few and
exceptional, and at conflict with the current morality. 
    The indications furnished by this part of Roman Testamentary
Law are of a very different kind. It is remarkable that a Will
never seems to have been regarded by the Romans as a means of
disinheriting a Family, or of effecting the unequal distribution
of a patrimony. The rules of law preventing its being turned to
such a purpose, increase in number and stringency as the
jurisprudence unfolds itself; and these rules correspond
doubtless with the abiding sentiment of Roman society, as
distinguished from occasional variations of feeLing in
individuals. It would rather seem as if the Testamentary Power
were chiefly vaLued for the assistance it gave in making
provision for a Family, and in dividing the inheritance more
evenly and fairly than the Law of Intestate Succession would have
divided it. If this be the true reading of the general sentiment
on the point, it explains to some extent the singular horror of
Intestacy which always characterised the Roman. No evil seems to
have been considered a heavier visitation than the forfeiture of
Testamentary privileges; no curse appears to have been bitterer
than that which imprecated on an enemy that he might die without
a Will. The feeling has no counterpart, or none that is easily
recognisable, in the forms of opinion which exist at the present
day. All men at all times will doubtless prefer chalking out the
destination of their substance to having that office performed
for them by the law; but the Roman passion for Testacy is
distinguished from the mere desire to indulge caprice by its
intensity; and it has of course nothing whatever in common with
that pride of family, exclusively the creation of feudalism,
which accumulates one description of property in the hands of a
single representative. It is probable, a priori, that it was
something in the rules of Intestate Succession which caused this
vehement preference for the distribution of property under a
Testament over its distribution by law. The difficulty, however,
is, that on glancing at the Roman Law of Intestate Succession, in
the form which it wore for many centuries before Justinian shaped
it into that scheme of inheritance which has been almost
universally adopted by modern lawgivers, it by no means strikes
one as remarkably unreasonable or inequitable. On the contrary,
the distribution it prescribes is so fair and rational, and
differs so Little from that with which modern society has been
generally contented, that no reason suggests itself why it should
have been regarded with extraordinary distaste, especially under
a jurisprudence which pared down to a narrow compass the
testamentary privileges of persons who had children to provide
for. We should rather have expected that, as in France at this
moment, the heads of families would generally save themselves the
troubLe of executing a Will, and allow the Law to do as it
pleased with their assets. I think, however, if we look a little
closely at the pre-Justinianean scale of Intestate Succession, we
shall discover the key to the mystery. The texture of the law
consists of two distinct parts. One department of rules comes
from the Jus Civile, the Common-Law of Rome; the other from the
Edict of the Praetor. The Civil Law, as I have already stated for
another purpose, calLs to the inheritance only three orders of
successors in their turn; the Unemancipated children, the nearest
class of Agnatic kindred, and the Gentiles. Between these three
orders, the Praetor interpolates various classes of relatives, of
whom the Civil Law took no notice whatever. Ultimately, the
combination of the Edict and of the Civil Law forms a table of
succession not materially different from that which has descended
to the generality of modern codes. 
    The point for recollection is that there must anciently have
been a time at which the rules of the Civil Law determined the
scheme of Intestate Succession exclusively, and at which the
arrangements of the Edict were non-existent, or not consistently
carried out. We cannot doubt that, in its infancy, the Praetorian
jurisprudence had to contend with formidable obstructions, and it
is more than probable that, long after popular sentiment and
legal opinion had acquiesced in it, the modifications which it
periodically introduced were governed by no certain principles,
and fluctuated with the varying bias of successive magistrates.
The rules of Intestate Succession, which the Romans must at this
period have practised, account, I think -- and more than account
-- for that vehement distaste for an Intestacy to which Roman
society during so many ages remained constant. The order of
succession was this : on the death of a citizen, having no will
or no valid will, his Unemancipated children became his Heirs.
His emancipated sons had no share in the inheritance. If he left
no direct descendants living at his death, the nearest grade of
the Agnatic kindred succeeded, but no part of the inheritance was
given to any relative united (however closely) with the dead man
through female descents. All the other branches of the family
were excluded, and the inheritance escheated to the Gentiles, or
entire body of Roman citizens bearing the same name with the
deceased. So that on failing to execute an operative Testament, a
Roman of the era under examination left his emancipated children
absolutely without provision, while, on the assumption that he
died childless, there was imminent risk that his possessions
would escape from the family altogether, and devolve on a number
of persons with whom he was merely connected by the sacerdotal
fiction that assumed all members of the same gens to be descended
from a common ancestor. The prospect of such an issue is in
itself a nearly sufficient explanation of the popular sentiment;
but, in point of fact, we shall only half understand it, if we
forget that the state of things I have been describing is likely
to have existed at the very moment when Roman society was in the
first stage of its transition from its primitive organisation in
detached families. The empire of the father had indeed received
one of the earliest blows directed at it through the recognition
of Emancipation as a legitimate usage, but the law, still
considering the Patria Potestas to be the root of family
connection, persevered in looking on the emancipated children as
strangers to the rights of Kinship and aliens from the blood. We
cannot, however, for a moment suppose that the limitations of the
family imposed by legal pedantry had their counterpart in the
natural 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 wonderful 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
    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 Roman law of the provincials on the one hand and
the archaic customs of the barbarians on the other, the more are
we perplexed at first sight by our knowledge that neither Roman
nor barbarian was accustomed to give any preference to the eldest
son or his line in the succession to property. 
    Primogeniture did not belong to the Customs which the
barbarians practised on their first establishment within the
Roman Empire. It is known to have had its origin in the benefices
or beneficiary gifts of the invading chieftains. These benefices,
which were occasionally conferred by the earlier immigrant kings,
but were distributed on a great scale by Charlemagne, were grants
of Roman provincial land to be holden by the beneficiary on
condition of military service. The allodial proprietors do not
seem to have followed their sovereign on distant or difficult
enterprises, and all the grander expeditions of the Frankish
chiefs and of Charlemagne were accomplished with forces composed
of soldiers either personally dependent on the royal house or
compelled to serve it by the tenure of their land. The benefices,
however were not at first in any sense hereditary. They were
held, at the pleasure of the grantor, or at most for the life of
the grantee; but still, from the very outset, no effort seems to
have been spared by the beneficiaries to enlarge the tenure, and
to continue their lands in their family after death. Through the
feebleness of Charlemagne's successors these attempts were
universally successful, and the Benefice gradually transformed
itself into the hereditary Fief. But, though the fiefs were
hereditary, they did not necessarily descend to the eldest son.
The rules of succession which they followed were entirely
determined by the terms agreed upon between the grantor and the
beneficiary, or imposed by one of them on the weakness of the
other. The original tenures were therefore extremely various; not
indeed so capriciously variouS as is sometimes asserted, for all
which have hitherto been described present some combination of
the modes of succession familiar to Romans and to barbarians, but
still exceedingly miscellaneous. In some of them, the eldest son
and his stock undoubtedly succeeded to the fief before the
others, but such successions, so far from being universal, do not
even appear to have been general. Precisely the same phenomena
recur during that more recent transmutation of European society
which entirely substituted the feudal form of property for the
domainial (or Roman) and the allodial (or German). The allods
were wholly absorbed by the fiefs. The greater allodial
proprietors transformed themselves into feudal lords by
conditional alienations of portions of their land to dependants;
the smaller sought an escape from the oppressions of that
terrible time by surrendering their property to some powerful
chieftain, and receiving it back at his hands on condition of
service in his wars. Meantime, that vast mass of the population
of Western Europe whose condition was servile or semi-servile --
the Roman and German personal slaves, the Roman coloni and the
German lidi -- were concurrently absorbed by the feudal
organisation, a few of them assuming a menial relation to the
lords, but the greater part receiving land on terms which in
those centuries were considered degrading. The tenures created
during this era of universal infeudation were as various as the
conditions which the tenants made with their new chiefs or were
forced to accept from them. As in the case of the benefices, the
succession to some, but by no means to all, of the estates
followed the rule of Primogeniture. No sooner, however, has the
feudal system prevailed throughout the West, than it becomes
evident that Primogeniture has some great advantage over every
other mode of succession. It spread over Europe with remarkable
rapidity, the principal instrument of diffusion being Family
Settlements, the Pactes de Famille of France and Haus-Gesetze of
Germany, which universally stipulated that lands held by knightly
service should descend to the eldest son. Ultimately the law
resigned itself to follow inveterate practice, and we find that
in all the bodies of Customary Law, which were gradually built
up, the eldest son and stock are preferred in the succession to
estates of which the tenure is free and military. As to lands
held by servile tenures (and originally all tenures were servile
which bound the tenant to pay money or bestow manual labour), the
system of succession prescribed by custom differed greatly in
different countries and different provinces. The more general
rule was that such lands were divided equally at death among all
the children, but still in some instances the eldest son was
preferred, in some the youngest. But Primogeniture usually
governed the inheritance of that class of estates, in some
respects the most important of all, which were held by tenures
that, like the English Socage, were of later origin than the
rest, and were neither altogether free nor altogether servile. 
    The diffusion of Primogeniture is usually accounted for by
assigning what are called Feudal reasons for it. It is asserted
that the feudal superior had a better security for the military
service he required when the fief descended to a single person,
instead of being distributed among a number on the decease of the
last holder. Without denying that this consideration may
partially explain the favour gradually acquired by Primogeniture,
I must point out that Primogeniture became a custom of Europe
much more through its popularity with the tenants than through
any advantage it conferred on the lords. For its origin,
moreover, the reason given does not account at all. Nothing in
law springs entirely from a sense of convenience. There are
always certain ideas existing antecedently on which the sense of
convenience works, and of which it can do no more than form some
new combination; and to find these ideas in the present case is
exactly the problem. 
    A valuable hint is furnished to us from a quarter fruitful of
such indications. Although in India the possessions of a parent
are divisible at his death, and may be divisible during his life,
among all his male children in equal shares, and though this
principle of the equal distribution of property extends to every
part of the Hindoo institutions, yet wherever public office or
political power devolves at the decease of the last Incumbent,
the succession is nearly universally according to the rules of
Primogeniture. Sovereignties descend therefore to the eldest son,
and where the affairs of the Village Community, the corporate
unit of Hindoo society, are confided to a single manager, it is
generally the eldest son who takes up the administration at his
parent's death. All offices, indeed, in India, tend to become
hereditary, and, when their nature permits it, to vest in the
eldest member of the oldest stock. Comparing these Indian
successions with some of the ruder social organisations which
have survived in Europe almost to our own day, the conclusion
suggests itself that, when Patriarchal power is not only domestic
but political, it is not distributed among all the issue at the
parent's death, but is the birthright of the eldest son. The
chieftainship of a Highland clan, for example, followed the order
of Primogeniture. There seems, in truth, to be a form of
family-dependency still more archaic than any of those which we
know from the primitive records of organised civil societies. The
Agnatic Union of the kindred in ancient Roman law, and a
multitude of similar indications, point to a period at which all
the ramifying branches of the family tree held together in one
organic whole; and it is no presumptuous conjecture, that, when
the corporation thus formed by the kindred was in itself an
independent society it was governed by the eldest male of the
oldest line. It is true that we have no actual knowledge of any
such society. Even in the most elementary communities,
family-organisations, as we know them, are at most imperia in
imperio. But the position of some of them, of the Celtic clans in
particular, was sufficiently near independence within historical
times to force on us the conviction that they were once separate
imperia, and that Primogeniture regulated the succession to the
chieftainship. It is, however, necessary to be on our guard
against modern associations with the term of law. We are speaking
of a family-connection still closer and more stringent than any
with which we are made acquainted by Hindoo society or ancient
Roman law. If the Roman Paterfamilias was visibly steward of the
family possessions, if the Hindoo father is only joint-sharer
with his sons, still more emphatically must the true patriarchal
chieftain be merely the administrator of a common fund. 
    The examples of succession by Primogeniture which were found
among the Benefices may, therefore, have been imitated from a
system of family-government known to the invading races, though
not in general use. Some ruder tribes may have still practised
it, or, what is still more probable, society may have been so
slightly removed from its more archaic condition that the minds
of some men spontaneously recurred to it, when they were called
upon to settle the rules of inheritance for a new form of
property, But there is still the question, Why did Primogeniture
gradually supersede every other principle of succession? The
answer, I think, is, that European society decidedly retrograded
during the dissolution of the Carlovingian empire. It sank a
point or two back even from the miserably low degree which it had
marked during the early barbarian monarchies. The great
characteristic of the period was the feebleness, or rather the
abeyance, of kingly and therefore of civil authority,. and hence
it seems as if, civil society no longer cohering, men universally
flung themselves back on a social organisation older than the
beginnings of civil communities. The lord with his vassals,
during the ninth and tenth centuries, may be considered as a
patriarchal household, recruited, not as in the primitive times
by Adoption, but by Infeudation; and to such a confederacy,
succession by Primogeniture was a source of strength and
durability. So long as the land was kept together on which the
entire organisation rested, it was powerful for defence and
attack; to divide the land was to divide the little society, and
voluntarily to invite aggression in an era of universal violence.
We may be perfectly certain that into this preference for
Primogeniture there entered no idea of disinheriting the bulk of
the children in favour of one. Everybody would have suffered by
the division of the fief. Everybody was a gainer by its
consolidation. The Family grew stronger by the concentration of
power in the same hands; nor is it likely that the lord who was
invested with the inheritance had any advantage over his brethren
and kinsfolk in occupations, interests, or indulgences. It would
be a singular anachronism to estimate the privileges succeeded to
by the heir of a fief, by the situation in which the eldest son
is placed under an English strict settlement. 
    I have said that I regard the early feudal confederacies as
descended from an archaic form of the Family, and as wearing a
strong resemblance to it. But then in the ancient world, and in
the societies which have not passed through the crucible of
feudalism, the Primogeniture which seems to have prevailed never
transformed itself into the Primogeniture of the later feudal
Europe. When the group of kinsmen ceased to be governed through a
series of generations by a hereditary chief, the domain which had
been managed for all appears to have been equally divided among
all. Why did this not occur in the feudal world? If during the
confusions of the first feudal period the eldest son held the
land for the behoof of the whole family, why was it that when
feudal Europe had consolidated itself, and regular communities
were again established, the whole family did not resume that
capacity for equal inheritance which had belonged to Roman and
German alike? The key which unlocks this difficulty has rarely
been seized by the writers who occupy themselves in tracing the
genealogy of Feudalism. They perceive the materials of the feudal
institutions, but they miss the cement. The ideas and social
forms which contributed to the formation of the system were
unquestionably barbarian and archaic, but, as soon as Courts and
lawyers were called in to interpret and define it, the principles
of interpretation which they applied to it were those of the
latest Roman jurisprudence, and were therefore excessively
refined and matured. In a patriarchally governed society, the
eldest son may succeed to the government of the Agnatic group,
and to the absolute disposal of its property. But he is not
therefore a true proprietor. He has correlative duties not
involved in the conception of proprietorship, but quite undefined
and quite incapable of definition. The later Roman jurisprudence,
however, like our own law, looked upon uncontrolled power over
property as equivalent to ownership, and did not, and, in fact,
could not, take notice of liabilities of such a kind, that the
very conception of them belonged to a period anterior to regular
law. The contact of the refined and the barbarous notion had
inevitably for its effect the conversion of the eldest son into
legal proprietor of the inheritance. The clerical and secular
lawyers so defined his position from the first; but it was only
by insensible degrees that the younger brother, from
participating on equal terms in all the dangers and enjoyments of
his kinsman, sank into the priest, the soldier of fortune, or the
hanger-on of the mansion. The legal revolution was identical with
that which occurred on a smaller scale, and in quite recent
times, through the greater part of the Highlands of Scotland.
When called in to determine the legal powers of the chieftain
over the domains which gave sustenance to the clan, Scottish
jurisprudence had long since passed the point at which it could
take notice of the vague limitations on completeness of dominion
imposed by the claims of the clansmen, and it was inevitable
therefore that it should convert the patrimony of many into the
estate of one. 
    For the sake of simplicity I have called the mode of
succession Primogeniture whenever a single son or descendant
succeeds to the authority over a household or society. It is
remarkable, however, that in the few very ancient examples which
remain to us of this sort of succession, it is not always the
eldest son, in the sense familiar to us, who takes up the
representation, The form of Primogeniture which has spread over
Western Europe has also been perpetuated among the Hindoos, and
there is every reason to believe that it is the normal form.
Under it, not only the eldest Son, but the eldest line is always
preferred. If the eldest son fails, his eldest son has precedence
not only over brothers but over uncles; and, if he too fails, the
same rule is followed in the next generation. But when the
succession is not merely to civil but to political power, a
difficulty may present itself which will appear of greater
magnitude according as the cohesion of society is less perfect.
The chieftain who last exercised authority may have outlived his
eldest son, and the grandson who is primarily entitled to succeed
may be too young and immature to undertake the actual guidance of
the community, and the administration of its affairs. In such an
event, the expedient which suggests itself to the more settled
societies is to place the infant heir under guardianship till he
reaches the age of fitness for government. The guardianship is
generally that of the male Agnates; but it is remarkable that the
contingency supposed is one of the rare cases in which ancient
societies have consented to the exercise of power by women,
doubtless out of respect to the overshadowing claims of the
mother. In India, the widow of a Hindoo sovereign governs in the
name of her infant son, and we cannot but remember that the
custom regulating succession to the throne of France -- which,
whatever be its origin, is doubtless of the highest antiquity --
preferred the queen-mother to all other claimants for the
Regency, at the same time that it rigorously excluded all females
from the throne. There is, however, another mode of obviating the
inconvenience attending the devolution of sovereignty on an
infant heir, and it is one which would doubtless occur
spontaneously to rudely organised communities. This is to set
aside the infant heir altogether, and confer the chieftainship on
the eldest surviving male of the first generation. The Celtic
clan-associations, among the many phenomena which they have
preserved of an age in which civil and political society were not
yet even rudimentarily separated, have brought down this rule of
succession to historical times. With them, it seems to have
existed in the form of a positive canon, that, failing the eldest
son, his next brother succeeds in priority to all grandsons,
whatever be their age at the moment when the sovereignty
devolves. Some writers have explained the principle by assuming
that the Celtic customs took the last chieftain as a sort of root
or stock, and then gave the succession to the descendant who
should be least remote from him; the uncle thus being preferred
to the grandson as being nearer to the common root. No objection
can be taken to this statement if it be merely intended as a
description of the system of succession; but it would be a
serious error to conceive the men who first adopted the rule as
applying a course of reasoning which evidently dates from the
time when feudal schemes of succession begun to be debated among
lawyers. The true origin of the preference of the uncle to the
grandson is doubtless a simple calculation on the part of rude
men in a rude society that it is better to be governed by a grown
chieftain than by a child, and that the younger son is more
likely to have come to maturity than any of the eldest son's
descendants. At the same time, we have some evidence that the
form of Primogeniture with which we are best acquainted is the
primary form, in the tradition that the assent of the clan was
asked when an infant heir was passed over in favour of his uncle.
There is a tolerably well authenticated instance of this ceremony
in the annals of the Macdonalds. 
    Under Mahometan law which has probably preserved an ancient
Arabian custom, inheritances of property are divided equally
among sons, the daughter taking a half share; but if any of the
children die before the division of the inheritance, leaving
issue behind, these grandchildren are entirely excluded by their
uncles and aunts. Consistently with this principle, the
succession, when political authority devolves, is according to
the form of Primogeniture which appears to have obtained among
the Celtic societies. In the two great Mahometan families of the
West, the rule is believed to be, that the uncle succeeds to the
throne in preference to the nephew, though the latter be the son
of an elder brother; but though this rule has been followed quite
recently in Egypt, I am informed that there is some doubt as to
its governing the devolution of the Turkish sovereignty The
policy of the Sultans has in fact hitherto prevented cases for
its application from occurring, and it is possible that their
wholesale massacres of their younger brothers may have been
perpetuated quite as much in the interest of their children as
for the sake of making away with dangerous competitors for the
throne. It is evident, however, that in polygamous societies the
form of Primogeniture will always tend to vary. Many
considerations may constitute a claim on the succession, the rank
of the mother, for example, or her degree in the affections of
the father. Accordingly, some of the India Mahometa sovereigns,
without pretending to any distinct testamentary power, claim the
right of nominating the son who is to succeed. The blessing
mentioned in the Scriptural history of Isaac and his sons has
sometimes been spoken of as a will, but it seems rather to have
been a mode of naming an eldest son. 

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