ract_.

CHAPTER VI

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 inquirers, 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 codes 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