Page:The Green Bag (1889–1914), Volume 02.pdf/595

 548

ist; but, in the earliest ages, it has so far been assumed that they were never written, but were nuncupatory, or delivered orally, probably at the death-bed of the testator. Among the Hindus to this day the law of succession hinges upon the due solemniza tion of fixed ceremonies at the dead man's funeral, not upon any written will. And it is because early wills were verbal only that their history is so obscure. It has been as serted that among the barbarian races the bare conception of a will was unknown; that we must search for the infancy of testa mentary dispositions in the early Roman law. Indeed, until the ecclesiastical power assumed the prerogative of intervening at every break in the succession of the family, wills did not come into vogue in the West. But Mr. Petrie's papyrus seems to show that the system of settlement or disposition by deed or will was long antecedently practised in the East. And this archaic instrument is also re markable as the first recognition of the power of woman to acquire and exercise rights of property, a fact which in itself affords evi dence of the advanced code of thought that prevailed in Egypt with regard to woman's rights. The story of Hatshepsu, the Elizabeth of Egyptian history (whose throne is now preserved in the British Museum), sup ports this view, although it is true that that energetic queen long reigned in the name of the brother whose throne she had usurped. It was only when the fraud was discovered that she resorted to the expedient of cloth ing herself in man's attire, and adorning her self with all the insignia of royalty. Since she is represented on the sculptures at ElAssaseef as bearded, and most of the allu sions to her have the masculine prefix, we must, however, assume that she had exceeded the rights of her sex. But this gift of prop erty to the wife of a priest of Osiris by her lord and master shows, unless the lady pos sessed peculiar ecclesiastical privileges, that in Egypt women actually enjoyed, long be fore the time of Hatshepsu, very solid rights. It is further clear that no known will —

not the Roman will, nor the indigenous will of Bengal — can any longer be accepted as the most primitive form. Among the Jews we all know that there was no provision for the privileges of testatorship. It was a cansus omissi in the Mosaic law, and it was only the later Rabbinical jurisprudence that allowed the power of disposition to attach when all the kindred entitled under the Mosaic sys tem to succeed had failed or become undiscoverable. Again, allodial property was, among the primitive Teutons, strictly re served to the kindred, and was incapable of being disposed of by testament, or even by conveyance. Among the early Germans, as among the Hindus, male children were coproprietors with their father, and the endow ment of the family could not be varied except by common consent. It is, therefore, not surprising to find that in Teutonic countries it was only other sorts of property of a more modern character — chattels and the like. — that could be dis posed of in this way, or be succeeded to by women at all. This papyrus illustrates a phenomenally early variation from the rule of succession. According to ancient usage, it would have been supposed that the princi ple of inheritance, which was a fundamental part of the patriarchal system, would have insured the succession of the sons to the very property which is by this settlement given to their mother for life; so that the whole history of the family becomes unset tled by this bold departure from what has been believed to be immemorial custom. Even in the early days of modern jurispru dence, wills were rarely allowed to dispose absolutely of a dead man's assets. And yet here we have an instrument which seems to indicate the possession of an absolute power of disposition over property of all kinds, in cluding lands and nouses, recognized both in theory and practice more than four thou sand years ago. The survival of a will executed, as alleged, before the time of Abraham, overturns, of course, the notion which has hitherto been