第65章

The view of a Will which regards it as conferring the powerof diverting property from the Family, or of distributing it insuch uneven proportions as the fancy or good sense of theTestator may dictate, is not older than that later portion of theMiddle Ages in which Feudalism had completely consolidateditself. When modern jurisprudence first shows itself in therough, Wills are rarely allowed to dispose with absolute freedomof a dead man's assets. Wherever at this period the descent ofproperty was regulated by Will -- and over the greater part ofEurope moveable or personal property was the subject ofTestamentary disposition -- the exercise of the Testamentarypower was seldom allowed to interfere with the right of the widowto a definite share, and of the children to certain fixedproportions, of the devolving inheritance. The shares of thechildren, as their amount shows, were determined by the authorityof Roman law. The provision for the widow was attributable to theexertions of the Church, which never relaxed its solicitude forthe interest of wives surviving their husbands -- winning,perhaps, one of the most arduous of its triumphs when, afterexacting for two or three centuries an express promise from thehusband at marriage to endow his wife, it at length succeeded inengrafting the principle of Dower on the Customary Law of allWestern Europe. Curiously enough, the dower of lands proved amore stable institution than the analogous and more ancientreservation of certain shares of the personal property to thewidow and children. A few local customs in France maintained theright down to the Revolution, and there are traces of similarusages in England; but on the whole the doctrine prevailed thatmoveables might be freely disposed of by Will, and, even when theclaims of the widow continued to be respected, the privileges ofthe children were obliterated from jurisprudence. We need nothesitate to attribute the change to the influence ofPrimogeniture. As the Feudal law of land practically disinheritedall the children in favour of one, the equal distribution even ofthose sorts of property which might have been equally dividedceased to be viewed as a duty. Testaments were the principalinstruments employed in producing inequality, and in thiscondition of things originated the shade of difference whichshows itself between the ancient and the modern conception of aWill. But, though the liberty of bequest, enjoyed throughTestaments, was thus an accidental fruit of Feudalism, there isno broader distinction than that which exists between a system offree Testamentary disposition and a system, like that of theFeudal land-law, under which property descends compulsorily inprescribed lines of devolution. This truth appears to have beenlost sight of by the authors of the French Codes. In the socialfabric which they determined to destroy, they saw Primogenitureresting chiefly on Family settlements, but they also perceivedthat Testaments were frequently employed to give the eldest sonprecisely the same preference which was reserved to him under thestrictest of entails. In order, therefore, to make sure of theirwork, they not only rendered it impossible to prefer the eldestson to the rest in marriage-arrangements, but they almostexpelled Testamentary succession from the law, lest it should beused to defeat their fundamental principle of an equaldistribution of property among children at the parent's death.

The result is that they have established a system of smallperpetual entails, which is infinitely nearer akin to the systemof feudal Europe than would be a perfect liberty of bequest. Theland-law of England, "the Herculaneum of Feudalism," is certainlymuch more closely allied to the land-law of the Middle Ages thanthat of any Continental country, and Wills with us are frequentlyused to aid or imitate that preference of the eldest son and hisline which is a nearly universal feature in marriage settlementsof real property. But nevertheless feeling and opinion in thiscountry have been profoundly affected by the practice of freeTestamentary disposition; and it appears to me that the state ofsentiment in a great part of French society, on the subject ofthe conservation of property in families, is much liker thatwhich prevailed through Europe two or three centuries ago thanare the current opinions of Englishmen.

The mention of Primogeniture introduces one of the mostdifficult problems of historical jurisprudence. Though I have notpaused to explain my expressions, it may have been noticed that Ihave frequently spoken of a number of "coheirs" as placed by theRoman Law of Succession on the same footing with a single Heir.