Several other forms of universal succession appear in the primitive Roman Law， but infinitely the most important and the most durable of all was that one with which we are more immediately concerned， Hareditas or Inheritance. Inheritance was a universal succession occurring at a death. The universal successor was Hares or Heir. He stepped at once into all the rights and all the duties of the dead man. He was instantly clothed with his entire legal person， and I need scarcely add that the special character of the Hares remained the same， whether he was named by a Will or whether he took on an Intestacy. The term Hares is no more emphatically used of the Intestate than of the Testamentary Heir， for the manner in which a man became Hares had nothing to do with the legal character he sustained. The dead man's universal successor， however he became so， whether by Will or by Intestacy， was his Heir. But the Heir was not necessarily a single person. A group of persons considered in law as a single unit， might succeed as co-heirs to the Inheritance.
Let me now quote the usual Roman definition of an Inheritance. The reader will be in a position to appreciate the full force of the separate terms. Haereditas est successio in universum jus quod defunctus habuit （"an inheritance is a succession to the entire legal position of a deceased man"）。 The notion was that， though the physical person of the deceased had perished， his legal personality survived and descended unimpaired on his Heir or Co-heirs， in whom his identity （so far as the law was concerned） was continued. Our own law， in constituting the Executor or Administrator the representative of the deceased to the extent of his personal assets， may serve as an illustration of the theory from which it emanated， but， although it illustrates， it does not explain it. The view of even the later Roman Law required a closeness of correspondence between the position of the deceased and of his Heir which is no feature of an English representation； and in the primitive jurisprudence everything turned on the continuity of succession. Unless provision was made in the will for the instant devolution of the testator's rights and duties on the Heir or Co-heir， the testament lost all its effect. In modern Testamentary jurisprudence， as in the later Roman law， the object of first importance is the execution of the testator's intentions. In the ancient law of Rome the subject of corresponding carefulness was the bestowal of the Universal Succession. One of these rules seems to our eyes a principle dictated by common sense， while the other looks very much like an idle crotchet. Yet that without the second of them the first would never have come into being is as certain as any proposition of the kind can be.
In order to solve this apparent paradox， and to bring into greater clearness the train of ideas which I have been endeavouring to indicate， I must borrow the results of the inquiry which was attempted in the earlier portion of the preceding chapter. We saw one peculiarity invariably distinguishing the infancy of society. Men are regarded and treated， not as individuals， but always as members of a particular group. Everybody is first a citizen， and then， as a citizen， he is a member of his order —— of an aristocracy or a democracy， of an order of patricians or plebeians； or， in those societies which an unhappy fate has afflicted with a special perversion in their course of development， of a caste. Next， he is a member of a gens， house， or clan； and lastly he is a member of his family. This last was the narrowest and most personal relation in which he stood； nor， paradoxical as it may seem， was he ever regarded as himself， as a distinct individual. His individuality was swallowed up in his family. I repeat the definition of a primitive society given before. It has for its units， not individuals， but groups of men united by the reality or the fiction of blood-relationship.
It is in the peculiarities of an undeveloped society that we seize the first trace of a universal succession. Contrasted with the organisation of a modern state， the commonwealth of primitive times may be fairly described as consisting of a number of little despotic governments， each perfectly distinct from the rest， each absolutely controlled by the prerogative of a single monarch. But though the Patriarch， for we must not yet call him the Pater-familias， had rights thus extensive， it is impossible to doubt that he lay under an equal amplitude of obligations. If he governed the family， it was for its behoof. If he was lord of its possessions， he held them as trustee for his children and kindred. He had no privilege or position distinct from that conferred on him by his relation to the petty commonwealth which he governed. The Family， in fact， was a Corporation； and he was its representative or， we might almost say， its Public officer. He enjoyed rights and stood under duties， but the rights and the duties were， in the contemplation of his fellow-citizens and in the eye of the law， quite as much those of the collective body as his own. Let us consider for a moment the effect which would be produced by the death of such a representative. In the eye of the law， in the view of the civil magistrate， the demise of the domestic authority would be a perfectly immaterial event. The person representing the collective body of the family and primarily responsible to municipal jurisdiction would bear a different name； and that would be all. The rights and obligations which attached to the deceased head of the house would attach， without breach of continuity， to his successor； for， in point of fact， they would be the rights and obligations of the family， and the family had the distinctive characteristic of a corporation —— that it never died. Creditors would have the same remedies against the new chieftain as against the old， for the liability being that of the still existing family would be absolutely unchanged. All rights available to the family would be as available after the demise of the headship as before it —— except that the Corporation would be obliged —— if indeed language so precise and technical can be properly used of these early times —— would be obliged to sue under a slightly modified name.
The history of jurisprudence must be followed in its whole course， if we are to understand how gradually and tardily society dissolved itself into the component atoms of which it is now constituted —— by what insensible gradations the relation of man to man substituted itself for the relation of the individual to his family and of families to each other. The point now to be attended to is that even when the revolution had apparently quite accomplished itself， even when the magistrate had in great measure assumed the place of the Pater-familias， and the civil tribunal substituted itself for the domestic forum， nevertheless the whole scheme of rights and duties administered by the judicial authorities remained shaped by the influence of the obsolete privileges and coloured in every part by their reflection. There seems. little question that the devolution of the Universitas Juris， so strenuously insisted upon by the Roman Law as the first condition of a testamentary or intestate succession， was a feature of the older form of society which men's minds had been unable to dissociate from the new， though with that newer phase it had no true or proper connection. It seems， in truth， that the prolongation of a man's legal existence in his heir， or in a group of co-heirs， is neither more nor less than a characteristic of the family transferred by a fiction to the individual. Succession in corporations is necessarily universal， and the family was a corporation. Corporations never die. The decease of individual members makes no difference to the collective existence of the aggregate body， and does not in any way affect its legal incidents， its faculties or liabilities. Now in the idea of a Roman universal succession all these qualities of a corporation seem to have been transferred to the individual citizen. His physical death is allowed to exercise no effect on the legal position which he filled， apparently on the principle that that position is to be adjusted as closely as possible to the analogies of a family， which， in its corporate character， was not of course liable to physical extinction.
I observe that not a few continental jurists have much difficulty in comprehending the nature of the connection between the conceptions blended in a universal succession， and there is perhaps no topic in the philosophy of jurisprudence on which their speculations， as a general rule， possess so little value. But the student of English law ought to be in no danger of stumbling at the analysis of the idea which we are examining. Much light is cast upon it by a fiction in our own system with which all lawyers are familiar. English lawyers classify corporations as Corporations aggregate and Corporations sole. A Corporation aggregate is a true Corporation， but a Corporation sole is an individual， being a member of a series of individuals， who is invested by a fiction with the qualities of a Corporation. I need hardly cite the King or the Parson of a Parish as instances of Corporations sole. The capacity or office is here considered apart from the particular person who from time to time may occupy it， and， this capacity being perpetual， the series of individuals who fill it are clothed with the leading attribute of Corporations-Perpetuity. Now in the older theory of Roman Law the individual bore to the family precisely the same relation which in the rationale of English jurisprudence a Corporation sole bears to a Corporation aggregate. The derivation and association of ideas are exactly the same. In fact， if we say to ourselves that for purposes of Roman Testamentary Jurisprudence each individual citizen was a Corporation sole， we shall not only realise the full conception of an inheritance， but have constantly at command the clue to the assumption in which it originated. It is an axiom with us that the King never dies， being a Corporation sole. His capacities are instantly filled by his successor， and the continuity of dominion is not deemed to have been interrupted. With the Romans it seemed an equally simple and natural process， to eliminate the fact of death from the devolution of rights and obligations. The testator lived on in his heir or in the group of his co-heir. 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.
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