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Ancient Law, lines 2.1.273-2.1.277
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.273-277
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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 practiced 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 chapter.
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.