less than a right given by positive law—a right which is founded on convenience and concession.

For a very obvious reason, we do not find this right in the early constitution of society, either given or exercised. Society, in early times, was founded on the family as the initial unit or group, which was only recognized by the State as entitled to maintenance. Naturally, by right of this principle in early society, the property acquired by an individual went into the general stock of the family, as a necessary appanage, and was in the name of the head of that family, and at his decease, by a principle of early law, devolved in due course upon the successor, or the hæres of the Roman law, who took it with all the obligations of the deceased. Society had not yet so advanced as to make the individual an object of its care and government, and recognize him as a distinct unit apart from the family; and succession—“universal succession,” as it was called—to the property in the family, was the usual disposition of property. It took a long while before society permitted the individual to dispose of his property out of his family, because this was so abnormal and unnatural as to be only dictated by caprice, passion, or prejudice, insomuch that whenever attempted among the Romans, the will was set aside as inofficious, and it was not permitted at all in the early English law; and even now is a presumed ground of imbecility or insanity in a testator.

The will, as we understand it, is unquestionably of Roman origin—it is purely a creature of that law, the corpus juris, “the public reason of the Romans.” The laws of Solon only permitted wills when the testator had no children.[5] Among the Hindoos, the right of adoption as a succession to property effected the same purpose as a will,[6] while among the Teutonic nations wills were unknown, and the children inherited.[7]

At first, among the Romans, a will was neither secret, revocable, nor of effect, until after death—characteristics which we necessarily associate with a will in modern times. A will then was more like a conveyance in a man’s lifetime—a sale of the family rights, property, and obligations, in the presence of witnesses, to a person known as the Emptor Familiæ, who assumed the place of the testator as head of the family. He might be compared to an assignee under our law, with this difference, that the latter is only liable as far as he has assets. Wills were usually witnessed by seven witnesses, who sealed outside upon a thread, and after some time, deposited in the archives during the life of the testator, and opened in the presence of the prætor or other officer, after decease, and any person might have a copy, being matter of record.[8]

The Roman law did not permit the entire disposition of property by will, if a man had a family. By a law of Justinian, one-fourth, at least, was required for the children, and when there were four children, they could claim one-third, which became a general law throughout Europe.[9]

The Roman influence, connection, and dominion in Great Britain necessarily introduced Roman laws and usages. It was a connection lasting fully three hundred years, during which time the country was visited by Roman jurists, and the people became familiarized with the administration of the civil law, both through the civil courts and the churches. Accordingly, while wills were not in use among kindred Teutonic people in the north of Europe, they were well known and general in the Saxon period in England, where an unlimited and absolute right of devise was given. In the laws of King Canute, provision is made for the disposition of property in cases of intestacy, which makes it evident that testamentary dispositions were recognized;[10] and Canute himself left a will.[11] There are notices of some twenty-five Anglo-Saxon wills extant. Nearly all of the testators were people of prominence and distinction, and these wills are preserved in monastic houses to which they devised property. King Alfred’s will, from its antiquity and its formal character, is one of the most interesting ancient documents existing. (He died A. D. 900.) It opens thus: “I, Alfred, King by God’s grace, and with Ethered’s the Archbishop’s counsel, and all the West Saxon Wights, witness, have considered about my soul’s thrift, and about the inheritance that to me, God and mine Ancestors did give, and about the inheritance that Ethulf, King, my father to us, three brothers, bequeathed, Ethelbold, Etherad and me.” He provides for masses thus: “And so divide for me and my father, and for the friends that be interceded for, and I intercede for, two hundred of pounds, fifty to the mass priests over all my kingdom, fifty to God’s poor ministers, fifty to the distressed poor, fifty to the church that I at shall rest; and know not certainly whether the money so much is, nor I know not but of it more may be, but so I ween.”

It appears that King Alfred’s will was prepared by the Archbishop’s counsel, and published in the presence of the West Saxon Wights, or Wise Men. This gives us a glimpse at the interference of the clergy in such important affairs, and leads us on a most interesting and important inquiry as to the connection of wills with ecclesiastical courts.

The clergy of that time possessed a monopoly of the learning of the day, and especially of the learning of the civil law, having made it a matter of study. Reasonably they would be consulted on subjects on which the civil or Roman law had such a bearing; and as a matter of fact, they soon became presiding judges with the civil magistrate in cases of probate of wills. In the early Saxon period, the bishop sat with the earl in the county court in the administration of testamentary matters; and this was the case up to the time of the Normans. But the clergy had occasion to interfere on other grounds, at a very early period. At a very early day, they sought jurisdiction in probate matters. The practice was probably favored by the sanction given by the civil law to the intervention of the bishop to compel the execution of a will where there were legacies in pios usus—to pious uses.[12] When any legacy was disposed of to pious uses, for the use of the church, for monasteries, or for the poor, the bishops were to sue for the same, and see to the administration thereof.