he subject of Testaments and Testamentary gifts, which
modern practitioners apply without discerning their relation to the
parent theory. But, in the pure Roman jurisprudence, the principle
that a man lives on in his Heir--the elimination, if we may so speak,
of the fact of death--is too obviously for mistake the centre round
which the whole Law of Testamentary and Intestate succession is
circling. The unflinching sternness of the Roman law in enforcing
compliance with the governing theory would in itself suggest that the
theory grew out of something in the primitive constitution of Roman
society; but we may push the proof a good way beyond the presumption.
It happens that several technical expressions, dating from the
earliest institution of Wills at Rome, have been accidentally
preserved to us. We have in Gaius the formula of investiture by which
the universal successor was created. We have the ancient name by which
the person afterwards called Heir was at first designated. We have
further the text of the celebrated clause in the Twelve Tables by
which the Testamentary power was expressly recognised, and the clauses
regulating Intestate Succession have also been preserved. All these
archaic phrases have one salient peculiarity. They indicate that what
passed from the Testator to the Heir was the _Family_, that is, the
aggregate of rights and duties contained in the Patria Potestas and
growing out of it. The material property is in three instances not
mentioned at all; in two others, it is visibly named as an adjunct or
appendage of the Family. The original Will or Testament was therefore
an instrument, or (for it was probably not at first in writing) a
proceeding, by which the devolution of the _Family_ was regulated. It
was a mode of declaring who was to have the chieftainship, in
succession to the Testator. When Wills are understood to have this for
their original object, we see at once how it is that they came to be
connected with one of the most curious relics of ancient religion and
law, the _sacra_, or Family Rites. These _sacra_ were the Roman form
of an institution which shows itself wherever society has not wholly
shaken itself free from its primitive clothing. They are the
sacrifices and ceremonies by which the brotherhood of the family is
commemorated, the pledge and the witness of its perpetuity. Whatever
be their nature,--whether it be true or not that in all cases they are
the worship of some mythical anc