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Oldest documents illustrating laws of inheritance

The speeches of Isaeos are the oldest documents
Peculiar interest of these speeches.
in the world which illustrate with minuteness of detail the workings of a Testamentary Law1. It has been shown beyond reasonable doubt that the idea of a man's legal existence being prolonged in his heir, or in a group of co-heirs, sprang from the attribution to the individual of that perpetuity which is the characteristic of the family2. The idea of
Origin of testation.
continuing the family is that in which the testament begins. Now, in primitive societies, religious rites are the symbols and warrants of the family's continuity. The father of the Indo-European house was its priest as well as its master: the sacrifices which, in life, he offered at the hearth could, after his death, be offered only by the son in whom his personality survived3. These sacrifices were at once the most solemn obligations of his successor and the most sacred pledges of an inviolable succession. What, then, was to happen if there was no heir duly qualified by nearness in blood? To meet
The Faculty of Adoption.
this case, primitive society invented Adoption, that is, the authorized fiction of kinship. The faculty of adoption was the germ of testamentary power. But there is no proof that any ancient society, except the Roman, got beyond the faculty of adoption to a true power of testation. The Athenian Will
Athenian law of succession.
was only an inchoate Testament. Permission to execute a will was first given to Athenian citizens by the laws of Solon4. But it was expressly restricted to those citizens who had no direct male descendants. Those illustrations of Athenian testamentary succession which are supplied by the speeches of Isaeos have one general characteristic of striking interest, and it is in this, more than in the light which they throw on Attic details, that their great and lasting value resides. The Hindoo system of succession shows
The Hindoo system.
the primitive religious element completely predominant. When the childless Hindoo adopts a child, it is with a view to ‘the funeral cake, the water, and the solemn sacrifice5.’ The Roman testamentary
The Roman.
law of Cicero's time, on the other hand, has broken free of religion; the sacra have passed under the separate jurisdiction of the Pontifical College; the obligation imposed by the Civil Law has become independent of the theological sanction6. The Athenian
Relation of the Athenian to these, in form:
system belongs essentially to the same stage as the Hindoo system. It has not, like the Roman law of Cicero's time, passed that point of development at which testation proper begins. But, in spirit, the
in spirit.
Athenian system, may be regarded as intermediate between the Hindoo and the Roman. The Athenian exercise of adoptive power retains, indeed, as its nominal first principle, the religious continuity of the family. ‘Succour him who is with the dead,’ cries the speaker to the jurors,—‘do not allow him— I beseech you by the gods and the immortal spirits— to be treated with contumely by these men:’ ‘think,’ he exclaims, ‘for what you will become responsible if you are persuaded by Kleon to give a different verdict:—first of all, you will send the worst enemies of Astyphilos to celebrate the rites at his grave.’ It would be an utter mistake to suppose that these pathetic or stately commonplaces are altogether hollow. The sentiment is real enough. But, at the same time, there is a difference between the Hindoo and the Athenian feeling. The Hindoo adopts a son primarily in order that his departed spirit may enjoy higher spiritual benefits than it could enjoy if the offerings at the grave were made by a relative less near than a son7. The Athenian of the days of Isaeos adopted a son primarily because he wished to leave his property to a person who would not otherwise get it. For the Hindoo, that religious motive in which adoption originated is still foremost. For the Athenian of the days of Isaeos, the faculty of adoption, though necessarily associated with religion, is chiefly significant in its civil aspect, as a limited form of testamentary power.

1 It is scarcely necessary to except, with Sir W. Jones (Commentary, p. 165), the Aeginetikos of Isokrates (Or, XIX. 394-3 B.C.)— which throws no light on legal points.

2 Maine's Ancient Law, ch. VI. on ‘The Early History of Testamentary Succession.’

3 See Cox's Hist. of Greece, Vol. I. pp. 14 ff.

4 Grote, c. XI. vol. III. 186.

5 Maine, l.c. p. 192.

6 Gaius II. § 57, in speaking of the case where Roman law allowed possession to be taken of a vacant inheritance by the usucaptive title called pro herede, suggests this explanation—“quod voluerunt veteres maturius hereditates adiri, ut essent qui sacra facerent: quorum illis temporibus summa observatio fuit; et ut creditores haberent a quo suum consequerentur” — showing how far back in the past the old religious feeling was to him.

7 Isae. Or. II. § 47: IX. § 36. See the Tagore Law Lectures for 1870, by Mr Herbert Cowell, (formerly Tagore Law Professor,) Lect. IX., On the Rite of Adoption, pp. 208 f. The original idea, that the son, by performing funeral rites, delivers the father from torment, has been partly lost sight of; but it is still held that the son can thus admit the father to some particular heaven which no other sacrificer could open to him.

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    • Sir Richard C. Jebb, Selections from the Attic Orators, 5.7
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