Front Page Titles (by Subject) NOTE M.: TESTAMENTARY SUCCESSION. - Ancient Law, its connection with the early history of society and its relation to modern ideas
Return to Title Page for Ancient Law, its connection with the early history of society and its relation to modern ideas
The Online Library of Liberty
A project of Liberty Fund, Inc.
NOTE M.: TESTAMENTARY SUCCESSION. - Sir Henry Sumner Maine, Ancient Law, its connection with the early history of society and its relation to modern ideas 
Ancient Law, its connection with the early history of society and its relation to modern ideas, with an introduction and notes by Sir Frederick Pollock. 4th American from the 10th London edition (New York: Henry Holt and Co., 1906).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The burden of this chapter is that the Will or Testament of modern law, with its specific characters of being secret, revocable, and posthumous in operation, is unknown to archaic law, and is of comparatively recent introduction wherever we find it. Maine’s position is amply confirmed by later historical research, and one or two seeming exceptions which he felt bound to notice have been removed.
Jurists of the seventeenth century, we read in Maine’s text, resorted to the law of nature to explain and justify testamentary power. This is almost enough of itself to show that no such power was commonly found in customary law. For the doctrine of natural law was, as we have already seen, a progressive and rationalist doctrine. Its use was to override the commonplace objections founded on lack of authority or even on the existence of contrary custom; and at the time of the Renaissance and even earlier it served speculative publicists in much the same way as the principle of utility (with which it has considerable affinities) has served modern reformers. In fact, the whole conception of individual succession to property, even without a will, is relatively modern. The archaic Indo-European family was, Maine tells us, a corporation, of which the patriarch for the time being was the representative or public officer—or at most, we may add, managing director. Evidently we are not meant to take this statement as if a definite legal doctrine of persons, much less artificial persons, was to be ascribed to the patriarchal stage of society. For in that stage, as Maine also says, a man was not yet regarded as an individual, but only as a member of his family and class; and this is still true to a great extent in Hindu law. Now the modern doctrine of corporations assumes that the “natural person” or individual, considered as a subject of rights and duties, or “lawful man,” as our English books say, is the normal unit of legal institutions, and that the collective personality of a group of men acting in a common interest or duty and behaving like an individual is something which needs to be explained. But for archaic society the collective body and not the individual is the natural person.
We find the same conditions existing in full force among the German tribes in a much later period of time than that which Maine is directly considering in this chapter. A recent learned writer in France, dealing with precisely the same subject as it occurs in the medieval history of French law, has forcibly contrasted the Roman conception, as it was established in the classical law of the empire, with the German.
“Le droit romain consacre le triomphe de l’individualisme; la volonté personnelle du chef de famille, voilà le facteur juridique essentiel, l’agent de toutes les transactions, la force créatrice de tous les droits. Cette volonté est si respectée et si puissante, qu’elle continue d’agir après la disparition de celui qui l’a exprimée. Le père règle le sort de sa fortune et de sa famille pour le temps où il ne sera plus, et cela par un acte souverainement libre, qu’il est toujours à même de modifier. . . . . L’individu sui juris est, dans le monde romain, l’unité juridique et social.
“Chez les Germains, c’est bien plutôt la famille. Il serait sans doute excessif, surtout pour le temps des Leges [the custumals collectively known as ‘Leges Barbarorum’], de déclarer en termes absolus que la famille est tout et que l’individu n’est rien; la vérité sous cette forme serait exagérée et dénaturée. Mais il est certain cependant que l’exaltation de l’individu est beaucoup moins complète qu’à Rome, et que d’autre part la famille forme une association, une sorte d’être collectif armé de droits inconnus des jurisconsultes de l’Empire. L’énergie individuelle est limitée dans le temps, et les Germains ne peuvent pas concevoir qu’elle s’exerce au delà de la tombe; sitôt l’homme mort, toutes ses volontés s’évanouissent. Au même moment ses prérogatives juridiques sont recouvertes et absorbées par celles de ses parents, car de son vivant même sa famille jouissait de droits autonomes qu’il ne dépendait pas de lui de supprimer: sa mort les développe, mais elle ne les crée pas” (Auffroy, “Evolution du testament en France,” Paris, 1899, pp. 173-4. Cf. Brunner, “Grundzuge der deutschen Rechtsgeschichte,” § 56; “Das germanische Erbrecht war ein Familienrecht.” For examples of analogous customs among various uncivilised tribes, see Lord Avebury, “Origin of Civilisation,” 6th ed. pp. 489-91.
The suggestion in Maine’s text of regarding the Roman ancestor in his representative character as a kind of corporation sole may be helpful to English students, but we can hardly trust it to throw light on the actual formation of Roman legal ideas. For our English category of corporations sole is not only, as Maine calls it, a fiction, but modern, anomalous, and of no practical use. When a parson or other solely corporate office-holder dies, there is no one to act for the corporation until a successor is appointed, and, when appointed, that successor can do nothing which he could not do without being called a corporation sole. In the case of the parson even the continuity of the freehold is not saved, and it is said to be in abeyance in the interval. As for the king, or “the Crown,” being a corporation sole, the language of our books appears to be nothing but a clumsy and, after all, ineffective device to avoid openly personifying the State. The problems of federal politics in Canada and Australia threaten to make the fiction complex. Is “the Crown” a trustee for Dominion and Province, for Commonwealth and State, with possibly conflicting interests? or is there one indivisible Crown being or having several persons for different purposes? (F. W. Maitland, L.Q.R. xvi. 335, xvii. 131; W. Harrison Moore, L.Q.R. xx. 351; Markby, “Elements of Law,” §145). The whole thing seems to have arisen from the technical difficulty of making grants to a parson and his successors after the practice of making them to God and the patron saint had been discontinued, as tending to bring the saints into the unseemly position of litigants before secular courts. All this we may now think makes for historical curiosity rather than philosophical edification.
But in any case the chief part of Maine’s argument, his insistence on “the theory of a man’s posthumous existence in the person of his heir,” and the intimate connection of that theory with the ancestor’s representative character as head of the family, goes to the root of the matter. Mr. Justice Holmes, now of the Supreme Court of the United States, writing twenty years after Maine, summed this up with concise elegance (“The Common Law,” p. 343):
“If the family was the owner of the property administered by a paterfamilias, its rights remained unaffected by the death of its temporary head. The family continued, although the head died. And when, probably by a gradual change, the paterfamilias came to be regarded as owner, instead of a simple manager of the family rights, the nature and continuity of those rights did not change with the title to them. The familia continued to the heirs as it was left by the ancestor. . . .
“The aggregate of the ancestor’s rights and duties, or, to use the technical phrase, the total persona sustained by him, was early separated from his natural personality. For this persona was but the aggregate of what had formerly been family rights and duties, and was originally sustained by any individual only as the family head. Hence it was said to be continued by the inheritance; and when the heir assumed it, he had his action in respect of injuries previously committed.”
Maine proceeds to trace the development of the Roman testament from a distribution of property, taking effect at once, made in contemplation of impending death or great peril, and requiring, in its earliest form, something like legislative sanction (cp. Girard, “Manuel,” pp. 792-5), through the intermediate stage of a conveyance reserving a life interest, which may be seen in the provincial customs of the Roman Empire, and much later in medieval and even modern systems. Muirhead (“Historical Introduction to the Private Law of Rome,” pp. 66, 168) pointed out a remedy for the difficulty suggested at p. 200, that a will by mancipation must have left the testator penniless. Usufruct might very well be reserved on a mancipation, Gai. ii. 33, “and a reservation of a life interest in one’s own familia would possibly be construed even more liberally than an ordinary usufruct.” Still, usufruct is not among the earliest institutions, and it would be rash to say that the difficulty may not have been real at one time. But men have been driven all over the world, by an imperfect state of property law or by special reasons for avoiding publicity, to put very large trust in the honour of chosen friends and assistants; and there is nothing about the Roman familiae emtor in his most archaic stage to surprise an English student who has made acquaintance with our medieval feoffee to uses. Indian practice will furnish a parallel in the benámi (literally, “anonymous”) conveyances to a nominal purchaser, to hold on a secret trust for the real one, which appear to have survived the original reasons for them. Sohm, however, holds (“Institutes,” § 99, p. 569, in Ledlie’s translation, 2nd ed.) that the testament per aes et libram was coupled with a mandate to the familiae emtor, which was binding under the well-known provision of the Twelve Tables, “uti lingua nuncupassit ita ius esto.” This would of course simplify the matter. The same learned author’s suggestion that the institution of an heir was a modified form of adoption—that is, an adoption deferred to the testator’s death—does not seem to be generally accepted (Girard, “Manuel,” p. 793).
In Scotland we find the most remarkable illustration of the præ-testamentary stage, as we may call it, of property law. Properly there is no such term as Will in Scots law, and there was no true will of lands before 1868. “Heritage could only be transmitted by a deed containing words of de praesenti disposition, and the use of the word ‘dispone’ was essential” (Green’s “Encycl. of the Law of Scotland,” s.v. Will.). The accustomed form was (and apparently still is, notwithstanding that it is no longer necessary) a “trust disposition and settlement,” a present conveyance reserving a life interest to the grantor. Scotland, in fact, is the last home of the old Germanic Vergabung von Todes wegen (Goffin, “The Testamentary Executor,” 1901, pp. 19, 99). It may survive many generations yet, for aught we know, as in the customs of Egypt and other parts of the Roman Empire essentially similar forms continued in use long after true wills had become familiar in the law of Rome. Original examples of the second century ad found at Naucratis might be seen in London some years ago. Notwithstanding the marks of Roman influence which the modern English will bears, its practical scope and effect remain as different as possible from those of the Roman testament. As a rule the wills of Englishmen having any considerable property to dispose of aim not at investing any one person with the whole of the testator’s control over his estate, subject to payment of debts and legacies, but rather at postponing absolute control and preserving the estate under the sanction of a trust which will not be finally determined while any child of the testator is a minor or his widow living. The capital is to be intact as long as possible, while the income is enjoyed or applied according to the testator’s directions. If any one is at all like a Roman heir, it is the executor, who does not necessarily take any beneficial interest, and whose origin is quite different (Goffin, op. cit. p. 33; O. W. Holmes, L.Q.R. i. 165-6; Gierke, “Grundzüge des deutschen Privatrechts,” § 126, in “Encykl. d. Rechtswiss.” i. 555). The Roman horror of intestacy mentioned in the early part of the following chapter was equalled or surpassed among medieval Englishmen (Pollock and Maitland, ii. 356); but the reason was not one that would have occurred to any Roman from the time of Labeo to that of Justinian, being the danger to the intestate’s soul if he died without having assigned a fitting part of his estate to pious uses (Du Cange s. v. intestatio).
Chapter VII. Page 209.