第54章

The history of jurisprudence must be followed in its wholecourse, if we are to understand how gradually and tardily societydissolved itself into the component atoms of which it is nowconstituted -- by what insensible gradations the relation of manto man substituted itself for the relation of the individual tohis family and of families to each other. The point now to beattended to is that even when the revolution had apparently quiteaccomplished itself, even when the magistrate had in greatmeasure assumed the place of the Pater-familias, and the civiltribunal substituted itself for the domestic forum, neverthelessthe whole scheme of rights and duties administered by thejudicial authorities remained shaped by the influence of theobsolete privileges and coloured in every part by theirreflection. There seems. little question that the devolution ofthe Universitas Juris, so strenuously insisted upon by the RomanLaw as the first condition of a testamentary or intestatesuccession, was a feature of the older form of society whichmen's minds had been unable to dissociate from the new, thoughwith that newer phase it had no true or proper connection. Itseems, in truth, that the prolongation of a man's legal existencein his heir, or in a group of co-heirs, is neither more nor lessthan a characteristic of the family transferred by a fiction tothe individual. Succession in corporations is necessarilyuniversal, and the family was a corporation. Corporations neverdie. The decease of individual members makes no difference to thecollective existence of the aggregate body, and does not in anyway affect its legal incidents, its faculties or liabilities. Nowin the idea of a Roman universal succession all these qualitiesof a corporation seem to have been transferred to the individualcitizen. His physical death is allowed to exercise no effect onthe legal position which he filled, apparently on the principlethat that position is to be adjusted as closely as possible tothe analogies of a family, which, in its corporate character, wasnot of course liable to physical extinction.

I observe that not a few continental jurists have muchdifficulty in comprehending the nature of the connection betweenthe conceptions blended in a universal succession, and there isperhaps no topic in the philosophy of jurisprudence on whichtheir speculations, as a general rule, possess so little value.

But the student of English law ought to be in no danger ofstumbling at the analysis of the idea which we are examining.

Much light is cast upon it by a fiction in our own system withwhich all lawyers are familiar. English lawyers classifycorporations as Corporations aggregate and Corporations sole. ACorporation aggregate is a true Corporation, but a Corporationsole 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 asinstances of Corporations sole. The capacity or office is hereconsidered apart from the particular person who from time to timemay occupy it, and, this capacity being perpetual, the series ofindividuals who fill it are clothed with the leading attribute ofCorporations-Perpetuity. Now in the older theory of Roman Law theindividual bore to the family precisely the same relation whichin the rationale of English jurisprudence a Corporation solebears to a Corporation aggregate. The derivation and associationof ideas are exactly the same. In fact, if we say to ourselvesthat for purposes of Roman Testamentary Jurisprudence eachindividual citizen was a Corporation sole, we shall not onlyrealise the full conception of an inheritance, but haveconstantly at command the clue to the assumption in which itoriginated. It is an axiom with us that the King never dies,being a Corporation sole. His capacities are instantly filled byhis successor, and the continuity of dominion is not deemed tohave been interrupted. With the Romans it seemed an equallysimple and natural process, to eliminate the fact of death fromthe devolution of rights and obligations. The testator lived onin his heir or in the group of his co-heir. He was in law thesame person with them, and if any one in his testamentarydispositions had even constructively violated the principle whichunited his actual and his posthumous existence, the law rejectedthe defective instrument, and gave the inheritance to the kindredin blood, whose capacity to fulfil the conditions of heirship wasconferred on them by the law itself, and not by any documentwhich 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 scalewhich will be presently described. The person or class of personswho succeeded did not simply represent the deceased, but, inconformity with the theory just delineated, they continued hiscivil life, his legal existence. The same results followed whenthe order of succession was determined by a Will, but the theoryof the identity between the dead man and his heirs was certainlymuch older than any form of Testament or phase of Testamentaryjurisprudence. This indeed is the proper moment for suggesting adoubt which will press on us with greater force the further weplumb the depths of this subject, -- whether wills would everhave come into being at all if it had not been for theseremarkable ideas connected with universal succession.