Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.279
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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 characterized 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 recognizable, 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.