第51章

At a time when legal theories were more abundant than atpresent -- theories which, it is true, were for the most partgratuitous and premature enough, but which nevertheless rescuedjurisprudence from that worse and more ignoble condition, notunknown to ourselves, in which nothing like a generalisation isaspired to, and law is regarded as a mere empirical pursuit -- itwas the fashion to explain the ready and apparently intuitiveperception which we have of certain qualities in a Will, bysaying that they were natural to it, or, as the phrase would runin full, attached to it by the Law of Nature. Nobody, I imagine,would affect to maintain such a doctrine, when once it wasascertained that all these characteristic had their origin withinhistorical memory; at the same time, vestiges of the theory ofwhich the doctrine is an offshoot, linger in forms of expressionwhich we all of us use and perhaps scarcely know how to dispensewith. I may illustrate this by mentioning a position common inthe legal literature of the seventeenth century. The jurists ofthat period very commonly assert that the power of Testationitself is of Natural Law, that it is a right conferred by the Lawof Nature. Their teaching, though all persons may not at once seethe connection, is in substance followed by those who affirm thatthe right of dictating or controlling the posthumous disposal ofproperty is a necessary or natural consequence of the proprietaryrights themselves. And every student of technical jurisprudencemust have come across the same view, clothed in the language of arather different school, which, in its rationale of thisdepartment of law, treats succession ex testamento as the mode ofdevolution which the property of deceased persons ought primarilyto follow, and then proceeds to account for succession abintestato as the incidental provision of the lawgiver for thedischarge of a function which was only left unperformed throughthe neglect or misfortune of the deceased proprietor. Theseopinions are only expanded forms of the more compendious doctrinethat Testamentary disposition is an institution of the Law ofNature. It is certainly never quite safe to pronouncedogmatically as to the range of association embraced by modernminds, when they reflect on Nature and her Law. but I believethat most persons, who affirm that the Testamentary Power is ofNatural Law may be taken to imply either that, as a matter offact, it is universal, or that nations are prompted to sanctionit by an original instinct and impulse. With respect to the firstof these positions, I think that, when explicitly set forth, itcan never be seriously contended for in an age which has seen thesevere restraints imposed on the Testamentary Power by the CodeNapoleon, and has witnessed the steady multiplication of systemsfor which the French codes have served as a model. To the secondassertion we must object that it is contrary to thebest-ascertained facts in the early history of law, and I ventureto affirm generally that, in all indigenous societies, acondition of jurisprudence in which.Testamentary privileges arenot allowed, or rather not contemplated, has preceded that laterstage of legal development in which the mere will of theproprietor is permitted under more or less of restriction tooverride the claims of his kindred in blood.

The conception of a Will or Testament cannot be considered byitself. It is a member, and not the first, of a series ofconceptions. In itself a Will is simply the instrument by whichthe intention of the testator is declared. It must be clear, Ithink, that before such an instrument takes its turn fordiscussion, 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 whatform does it pass? and how came it that the dead were allowed tocontrol the posthumous disposition of their property? Thrown intotechnical language, the dependence of the various conceptionswhich contribute to the notion of a Will is thus expressed. AWill or Testament is an instrument by which the devolution of aninheritance is prescribed. Inheritance is a form of universalsuccession. A universal succession is a succession to auniversitas juris, or university of rights and duties. Invertingthis order we have therefore to inquire what is a universitasjuris; what is a universal succession; what is the form ofuniversal succession which is called an inheritance. And thereare also two further questions, independent to some extent of thepoints I have mooted, but demanding solution before the subjectof Wills can be exhausted. These are, how came an inheritance tobe controlled in any case by the testator's volition, and what isthe nature of the instrument by which it came to be controlled?