It is not difficult to point out the extreme difference of the conclusions forced on us by the historical treatment of the subject from those to which we are conducted when， without the help of history， we merely strive to analyse our prima facie impressions. I suppose there is nobody who， starting from the popular or even the legal conception of a Will， would not imagine that certain qualities are necessarily attached to it. He would say， for example， that a Will necessarily take effect at death only —— that it is secret， not known as a matter of course to persons taking interests under its provisions that it is revocable， i.e. always capable of being superseded by a new act of testation. Yet I shall be able to show that there was a time when none of these characteristic belonged to a Will. The Testaments from which our Wills are directly descended at first took effect immediately on their execution； they were not secret； they were not revocable. Few legal agencies are， in fact， the fruit of more complex historical agencies than that by which a man's written intentions control the posthumous disposition of his goods. Testaments very slowly and gradually gathered round them the qualities I have mentioned； and they did this from causes and under pressure of events which may be called casual， or which at any rate have no interest for us at present， except so far as they have affected the history of law.
At a time when legal theories were more abundant than at present —— theories which， it is true， were for the most part gratuitous and premature enough， but which nevertheless rescued jurisprudence from that worse and more ignoble condition， not unknown to ourselves， in which nothing like a generalisation is aspired to， and law is regarded as a mere empirical pursuit —— it was the fashion to explain the ready and apparently intuitive perception which we have of certain qualities in a Will， by saying that they were natural to it， or， as the phrase would run in full， attached to it by the Law of Nature. Nobody， I imagine， would affect to maintain such a doctrine， when once it was ascertained that all these characteristic had their origin within historical memory； at the same time， vestiges of the theory of which the doctrine is an offshoot， linger in forms of expression which we all of us use and perhaps scarcely know how to dispense with. I may illustrate this by mentioning a position common in the legal literature of the seventeenth century. The jurists of that period very commonly assert that the power of Testation itself is of Natural Law， that it is a right conferred by the Law of Nature. Their teaching， though all persons may not at once see the connection， is in substance followed by those who affirm that the right of dictating or controlling the posthumous disposal of property is a necessary or natural consequence of the proprietary rights themselves. And every student of technical jurisprudence must have come across the same view， clothed in the language of a rather different school， which， in its rationale of this department of law， treats succession ex testamento as the mode of devolution which the property of deceased persons ought primarily to follow， and then proceeds to account for succession ab intestato as the incidental provision of the lawgiver for the discharge of a function which was only left unperformed through the neglect or misfortune of the deceased proprietor. These opinions are only expanded forms of the more compendious doctrine that Testamentary disposition is an institution of the Law of Nature. It is certainly never quite safe to pronounce dogmatically as to the range of association embraced by modern minds， when they reflect on Nature and her Law. but I believe that most persons， who affirm that the Testamentary Power is of Natural Law may be taken to imply either that， as a matter of fact， it is universal， or that nations are prompted to sanction it by an original instinct and impulse. With respect to the first of these positions， I think that， when explicitly set forth， it can never be seriously contended for in an age which has seen the severe restraints imposed on the Testamentary Power by the Code Napoleon， and has witnessed the steady multiplication of systems for which the French codes have served as a model. To the second assertion we must object that it is contrary to the best-ascertained facts in the early history of law， and I venture to affirm generally that， in all indigenous societies， a condition of jurisprudence in which.Testamentary privileges are not allowed， or rather not contemplated， has preceded that later stage of legal development in which the mere will of the proprietor is permitted under more or less of restriction to override the claims of his kindred in blood.
The conception of a Will or Testament cannot be considered by itself. It is a member， and not the first， of a series of conceptions. In itself a Will is simply the instrument by which the intention of the testator is declared. It must be clear， I think， that before such an instrument takes its turn for discussion， there are several preliminary points to be examined —— as， for example， what is it， what sort of right or interest， which passes from a dead man on his decease？ to whom and in what form does it pass？ and how came it that the dead were allowed to control the posthumous disposition of their property？ Thrown into technical language， the dependence of the various conceptions which contribute to the notion of a Will is thus expressed. A Will or Testament is an instrument by which the devolution of an inheritance is prescribed. Inheritance is a form of universal succession. A universal succession is a succession to a universitas juris， or university of rights and duties. Inverting this order we have therefore to inquire what is a universitas juris； what is a universal succession； what is the form of universal succession which is called an inheritance. And there are also two further questions， independent to some extent of the points I have mooted， but demanding solution before the subject of Wills can be exhausted. These are， how came an inheritance to be controlled in any case by the testator's volition， and what is the nature of the instrument by which it came to be controlled？
The first question relates to the universitas juris； that is， a university （or bundle） of rights and duties. A universitas juris is a collection of rights and duties united by the single circumstance of their having belonged at one time to some one person. It is， as it were， the legal clothing of some given individual. It is not formed by grouping together any rights and any duties. It can only be constituted by taking all the rights and all the duties of a particular person. The tie which so connects a number of rights of property， rights of way， rights to legacies， duties of specific performance， debts， obligations to compensate wrongs —— which so connects all these legal privileges and duties together as to constitute them a universitas juris， is the fact of their having attached to some individual capable of exercising them. Without this fact there is no university of rights and duties. The expression universitas juris is not classical， but for the notion jurisprudence is exclusively indebted to Roman law； nor is it at all difficult to seize. We must endeavour to collect under one conception the whole set of legal relations in which each one of us stands to the rest of the world. These， whatever be their character and composition， make up together a universitas juris； and there is but little danger of mistake in forming the notion， if we are only careful to remember that duties enter into it quite as much as rights. Our duties may overbalance our rights. A man may owe more than he is worth， and therefore if a money value is set on his collective legal relations he may be what is called insolvent. But for all that the entire group of rights and duties which centres in him is not the less a "juris universitas."
We come next to a "universal succession." A universal succession is a succession to a universitas juris. It occurs when one man is invested with the legal clothing of another， becoming at the same moment subject to all his liabilities and entitled to all his rights. In order that the universal succession may be true and perfect， the devolution must take place uno ictu， as the jurists phrase it. It is of course possible to conceive one man acquiring the whole of the rights and duties of another at different periods， as for example by successive purchases； or he might acquire them in different capacities， part as heir， part as purchaser， part as legatee. But though the group of rights and duties thus made up should in fact amount to the whole legal personality of a particular individual， the acquisition would not be a universal succession. In order that there may be a true universal succession， the transmission must be such as to pass the whole aggregate of rights and duties at the same moment and in virtue of the same legal capacity in the recipient. The notion of a universal succession， like that of a juris universitas， is permanent in jurisprudence， though in the English legal system it is obscured by the great variety of capacities in which rights are acquired， and， above all， by the distinction between the two great provinces of English property "realty" and "personalty." The succession of an assignee in bankruptcy to the entire property of the bankrupt is， however， a universal succession， though as the assignee only pays debts to the extent of the assets， this is only a modified form of the primary notion. Were it common among us for persons to take assignments of all a man's property on condition of paying all his debts， such transfers would exactly resemble the universal successions known to the oldest Roman Law. When a Roman citizen adrogated a son， i.e. took a man， not already under Patria Potestas， as his adoptive child， he succeeded universally to the adoptive child's estate， i.e. he took all the property and became liable for all the obligations.
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