the
Roman community as a contrivance for parting Property and the Family,
or for creating a variety of miscellaneous interests, but rather as a
means of making a better provision for the members of a household than
could be secured through the rules of Intestate succession. We may
suspect indeed that the associations of a Roman with the practice of
will-making were extremely different from those familiar to us
nowadays. The habit of regarding Adoption and Testation as modes of
continuing the Family cannot but have had something to do with the
singular laxity of Roman notions as to the inheritance of sovereignty.
It is impossible not to see that the succession of the early Roman
Emperors to each other was considered reasonably regular, and that, in
spite of all that had occurred, no absurdity attached to the
pretension of such Princes as Theodosius or Justinian to style
themselves Caesar and Augustus.

When the phenomena of primitive societies emerge into light, it seems
impossible to dispute a proposition which the jurists of the
seventeenth century considered doubtful, that Intestate Inheritance is
a more ancient institution than Testamentary Succession. As soon as
this is settled, a question of much interest suggests itself, how and
under what conditions were the directions of a will first allowed to
regulate the devolution of authority over the household, and
consequently the posthumous distribution of property. The difficulty
of deciding the point arises from the rarity of Testamentary power in
archaic communities. It is doubtful whether a true power of testation
was known to any original society except the Roman. Rudimentary forms
of it occur here and there, but most of them are not exempt from the
suspicion of a Roman origin. The Athenian will was, no doubt,
indigenous, but then, as will appear presently, it was only an
inchoate Testament. As to the Wills which are sanctioned by the bodies
of law which have descended to us as the codes of the barbarian
conquerors of Imperial Rome, they are almost certainly Roman. The most
penetrating German criticism has recently been directed to these
_leges Barbarorum_, the great object of investigation being to detach
those portions of each system which formed the customs of the tribe in
its original home from the adventitious ingredients which were
borrowed from the laws of the Romans. In the course of this process,
one result has invariably disclosed itself, that the ancient