up of
his co-heirs. He was in law the same person with them, and if any one
in his testamentary dispositions had even constructively violated the
principle which united his actual and his posthumous existence, the
law rejected the defective instrument, and gave the inheritance to the
kindred in blood, whose capacity to fulfil the conditions of heirship
was conferred on them by the law itself, and not by any document which
by possibility might be erroneously framed.

When a Roman citizen died intestate or leaving no valid Will, his
descendants or kindred became his heirs according to a scale which
will be presently described. The person or class of persons who
succeeded did not simply _represent_ the deceased, but, in conformity
with the theory just delineated, they _continued_ his civil life, his
legal existence. The same results followed when the order of
succession was determined by a Will, but the theory of the identity
between the dead man and his heirs was certainly much older than any
form of Testament or phase of Testamentary jurisprudence. This indeed
is the proper moment for suggesting a doubt which will press on us
with greater force the further we plumb the depths of this
subject,--whether _wills_ would ever have come into being at all if it
had not been for these remarkable ideas connected with universal
succession. Testamentary law is the application of a principle which
may be explained on a variety of philosophical hypotheses as plausible
as they are gratuitous; it is interwoven with every part of modern
society, and it is defensible on the broadest grounds of general
expediency. But the warning can never be too often repeated, that the
grand source of mistake in questions of jurisprudence is the
impression that those reasons which actuate us at the present moment,
in the maintenance of an existing institution, have necessarily
anything in common with the sentiment in which the institution
originated. It is certain that, in the old Roman Law of Inheritance,
the notion of a will or testament is inextricably mixed up, I might
almost say confounded, with the theory of a man's posthumous existence
in the person of his heir.

The conception of a universal succession, firmly as it has taken root
in jurisprudence, has not occurred spontaneously to the framers of
every body of laws. Wherever it is now found, it may be shown to have
descended from Roman law; and with it have come down a host of legal
rules on t