Page:Ancient Law.djvu/189

176 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 Napoléon, and has witnessed the steady multiplication of systems for which the French codes have served as a model. To the