Ancient Law Chapter 6

riptions of property， and on these only， that the Testaments borrowed from Rome were at first allowed to operate.

　　These few indications may serve to lend additional plausibility to that which in itself appears to be the most probable explanation of an ascertained fact in the early history of Roman Wills. We have

it stated on abundant authority that Testaments， during the primitive period of the Roman State， were executed in the Comitia Calata， that is， in the Comitia Curiata， or Parliament of the Patrician Burghers of Rome， when assembled for Private Business. This mode of execution has been the source of the assertion， handed down by one generation of civilians to another， that every Will at one era of Roman history was a solemn legislative enactment. But there is no necessity whatever for resorting to an explanation which has the defect of attributing far too much precision to the proceedings of the ancient assembly The proper key to the story concerning the execution of wills in the Comitia Calata must no doubt be sought in the oldest Roman Law of intestate succession. The canons of primitive Roman jurisprudence regulating the inheritance of relations from each other were， so long as they remained unmodified by the Edictal Law of the Praetor， to the following effect： —— First， the sui or direct descendants who had never been emancipated succeeded. On the failure of the sui， the Nearest Agnate came into their place， that is， the nearest person or class of the kindred who was or might have been under the same Patria Potestas with the deceased. The third and last degree came next， in which the inheritance devolved on the gentiles， that is on the collective members of the dead man's gens or House. The House， I have explained already， was a fictitious extension of the family， consisting of all Roman Patrician citizens who bore the same name， and who， on the ground of bearing the same name， were supposed to be descended from a common ancestor. Now the Patrician Assembly called the Comitia Curiata was a Legislature in which Gentes or Houses were exclusively represented. It was a representative assembly of the Roman people， constituted on the assumption that the constituent unit of the state was the Gens. This being so， the inference seems inevitable， that the cognizance of Wills by the Comitia was connected with the rights of the Gentiles， and was intended to secure them in their privilege of ultimate inheritance. The whole apparent anomaly is removed， if we suppose that a Testament could only be made when the testator had no gentiles discoverable， or when they waived their claims， and that every Testament was submitted to the General Assembly of the Roman Gentes， in order that those aggrieved by its dispositions might put their veto upon it if they pleased， or by allowing it to pass might be presumed to have renounced their reversion. It is possible that on the eve of the publication of the Twelve Tables this vetoing power may have been greatly curtailed or only occasionally and capriciously exercised. It is much easier， however， to indicate the meaning ad origin of the jurisdiction confided to the Comitia Calata， than to trace its gradual development or progressive decay.

　　The Testament to which the pedigree of all modern Wills may be traced is not， however， the Testament executed in the Calata Comitia， but another Testament desired to compete with it and destined to supersede it. The historical importance of this early Roman Will， and the light it casts on much of ancient thought， will excuse me for describing it at some length.

　　When the Testamentary power first discloses itself to us in legal history， there are signs that， like almost all the great Roman institutions， it was the subject of contention between the Patricians and the Plebeians. The effect of the political maxim， Plebs Gentem non habet， "a Plebeia cannot be a member of a House，" was entirely to exclude the Plebeians from the Comitia Curiata. Some critics have accordingly supposed that a Plebeian could not have his Will read or recited to the Patrician Assembly， and was thus deprived of Testamentary privileges altogether. Others have been satisfied to point out the hardships of having to submit a proposed Will to the unfriendly jurisdiction of an assembl

y in which the Testator was not represented. Whatever be the true view， a form of Testament came into use， which has all the characteristics of a contrivance intended to evade some distasteful obligation. The Will in question was a conveyance inter vivos， a complete and irrevocable alienation of the Testator's family and substance to the person whom he meant to be his heir. The strict rules of Roman law must always have permitted such an alienation， but， when the transaction was intended to have a posthumous effect， there may have been disputes whether it was valid for Testamentary purposes without the formal assent of the Patricia Parliament. If a difference of opinion existed on the point between the two classes of the Roman population， it was extinguished， with many other sources of heartburning， by the great Decemviral compromise. The text of the Twelve Tables is still extant which says， "Pater familias uti de pecunia tutelave rei suae legassit， ita jus esto" —— a law which can hardly have had any other object than the legalisation of the Plebeian Will.

　　It is well known to scholars that， centuries after the Patrician Assembly had ceased to be the legislature of the Roman State， it still continued to hold formal sittings for the convenience of private business. Consequently， at a period long subsequent to the publication of the Decemviral Law， there is reason to believe that the Comitia Calata still assembled for the validation of Testaments. Its probable functions may be best indicated by saying that it was a Court of Registration， with the understanding however that the Wills exhibited were not enrolled， but simply recited to the members， who were supposed to take note of their tenor and to commit them to memory. It is very likely that this form of Testament was never reduced to writing at all， but at all events if the Will had been originally written， the office of the Comitia was certainly confined to hearing it read aloud， the document being retained afterwards in the custody of the Testator， or deposited under the safeguard of some religious corporation. This publicity may have been one of the incidents of the Testament executed in the Comitia Calata which brought it into popular disfavour. In the early years of the Empire the Comitia still held its meetings， but they seem to have lapsed into the merest form， and few Wills， or none， were probably presented at the periodical sitting.

　　It is the ancient Plebeian Will —— the alternative of the Testament just described —— which in its remote effects has deeply modified the civilisation of the modern world. It acquired at Rome all the popularity which the Testament submitted to the Calata Comitia appears to have lost. The key to all its characteristics lies in its descent from the mancipium， or ancient Roman conveyance， a proceeding to which we may unhesitatingly assign the parentage of two great institutions without which modern society can scarcely be supposed capable of holding together， the Contract and the Will. The mancipium， or as the word would exhibit itself in later Latinity， the Mancipation， carries us back by its incidents to the infancy of civil society. As it sprang from times long anterior， if not to the invention， at all events to the popularisation， of the art of writing， gestures， symbolical acts， and solemn phrases take the place of documentary forms， and a lengthy and intricate ceremonial is intended to call the attention of the parties to the importance of the transaction， and to impress it on the memory of the witnesses. The imperfection too of oral， as compared with written， testimony necessitates the multiplication of the witnesses and assistants beyond what in later times would be reasonable or intelligible limits.

　　The Roman Mancipation required the presence first of all of the parties， the vendor and vendee， or we should perhaps rather say， if we are to use modern legal language， the grantor and grantee. There were als

o no less than five witnesses； and an anomalous personage， the Libripens， who brought with him a pair of scales to weigh the uncoined copper money of ancient Rome. The Testament we are considering —— the Testament per aes et libram， "with the copper and the scales，" as it long continued to be technically called —— was an ordinary Mancipation with no change in the form and hardly any in words. The Testator was the grantor； the five witnesses and the libripens were present； and the place of grantee was taken by a person known technically as the familiae emptor， the Purchaser of the Family. The ordinary ceremony of a Mancipation was then proceeded with. Certain formal gestures were made and sentences pronounced. The Emptor familiae simulated the payment of a price by striking the scales with a piece of money， and finally the Testator ratified what had been done in a set form of words called the "Nuncupatio" or publication of the transaction， a phrase which， I need scarcely remind the lawyer， has had a long history in Testamentary jurisprudence. It is necessary to attend particularly to the character of the person called familiae emptor. There is no doubt that at first he was the Heir himself. The Testator conveyed to him outright his whole "familia，" that is， all the rights he enjoyed over and through the family； his property， his slaves， and all his ancestral privileges， together， on the other hand， with all his duties and obligations.

　　With these data before us， we are able to note several remarkable points in which the Mancipatory Testam

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