more compendious doctrine that
Testamentary disposition is an institution of the Law of Nature. It is
certainly never quite safe to pronounce dogmatically as to the range
of association embraced by modern minds, when they reflect on Nature
and her Law; but I believe that most persons, who affirm that the
Testamentary Power is of Natural Law, may be taken to imply either
that, as a matter of fact, it is universal, or that nations are
prompted to sanction it by an original instinct and impulse. With
respect to the first of these positions, I think that, when explicitly
set forth, it can never be seriously contended for in an age which has
seen the severe restraints imposed on the Testamentary Power by the
_Code Napoleon_, and has witnessed the steady multiplication of
systems for which the French codes have served as a model. To the
second assertion we must object that it is contrary to the
best-ascertained facts in the early history of law, and I venture to
affirm generally that, in all indigenous societies, a condition of
jurisprudence in which Testamentary privileges are _not_ allowed, or
rather not contemplated, has preceded that later stage of legal
development in which the mere will of the proprietor is permitted
under more or less of restriction to override the claims of his
kindred in blood.

The conception of a Will or Testament cannot be considered by itself.
It is a member, and not the first, of a series of conceptions. In
itself a Will is simply the instrument by which the intention of the
testator is declared. It must be clear, I think, that before such an
instrument takes its turn for discussion, 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 what form does it pass? and how came it that
the dead were allowed to control the posthumous disposition of their
property? Thrown into technical language, the dependence of the
various conceptions which contribute to the notion of a Will is thus
expressed. A Will or Testament is an instrument by which the
devolution of an inheritance is prescribed. Inheritance is a form of
universal succession. A universal succession is a succession to a
_universitas juris_, or university of rights and duties. Inverting
this order we have therefore to inquire what is a _universitas juris_;
what is a universal succession; what is the form of universal
successi