the point, it explains to
some extent the singular horror of Intestacy which always
characterised the Roman. No evil seems to have been considered a
heavier visitation than the forfeiture of Testamentary privileges; no
curse appears to have been bitterer than that which imprecated on an
enemy that he might die without a Will. The feeling has no
counterpart, or none that is easily recognisable, in the forms of
opinion which exist at the present day. All men at all times will
doubtless prefer chalking out the destination of their substance to
having that office performed for them by the law; but the Roman
passion for Testacy is distinguished from the mere desire to indulge
caprice by its intensity; and it has of course nothing whatever in
common with that pride of family, exclusively the creation of
feudalism, which accumulates one description of property in the hands
of a single representative. It is probable, _a priori_, that it was
something in the rules of Intestate Succession which caused this
vehement preference for the distribution of property under a Testament
over its distribution by law. The difficulty, however, is, that on
glancing at the Roman Law of Intestate Succession, in the form which
it wore for many centuries before Justinian shaped it into that scheme
of inheritance which has been almost universally adopted by modern
lawgivers, it by no means strikes one as remarkably unreasonable or
inequitable. On the contrary, the distribution it prescribes is so
fair and rational, and differs so little from that with which modern
society has been generally contented, that no reason suggests itself
why it should have been regarded with extraordinary distaste,
especially under a jurisprudence which pared down to a narrow compass
the testamentary privileges of persons who had children to provide
for. We should rather have expected that, as in France at this moment,
the heads of families would generally save themselves the trouble of
executing a Will, and allow the Law to do as it pleased with their
assets. I think, however, if we look a little closely at the
pre-Justinianean scale of Intestate Succession, we shall discover the
key to the mystery. The texture of the law consists of two distinct
parts. One department of rules comes from the Jus Civile, the
Common-Law of Rome; the other from the Edict of the Praetor. The Civil
Law, as I have already stated for another purpose, calls to the
inheritance only three orders