Ancient Law Chapter 6

ent， as it may be called， differed in its primitive form from a modern will. As it amounted to a conveyance out-and-out of the Testator's estate， it was not revocable. There could be no new exercise of a power which had been exhausted.

　　Again， it was not secret. The Familia Emptor， being himself the Heir， knew exactly what his rights were， and was aware that he was irreversibly entitled to the inheritance； a knowledge which the violences inseparable from the best-ordered ancient society rendered extremely dangerous. But perhaps the most surprising consequence of this relation of Testaments to Conveyances was the immediate vesting of the inheritance in the Heir. This has seemed so incredible to not a few civilians， that they have spoken of the Testator's estate as vesting conditionally on the Testator's death or as granted to him from a time uncertain， i.e. the death of the grantor. But down to the latest period of Roman jurisprudence there was a certain class of transactions which never admitted of being directly modified by a condition， or of being limited to or from a point of time. In technical language they did not admit conditio or dies. Mancipation was one of them， and therefore， strange as it may seem， we are forced to conclude that the primitive Roman Will took effect at once， even though the Testator survived his act of Testation. It is indeed likely that Roman citizens originally made their Wills only in the article of death， and that a provision for the continuance of the Family effected by a man in the flower of life would take the form rather of an Adoption than of a Will. Still we must believe that， if the Testator did recover， he could only continue to govern his household by the sufferance of his Heir.

　　Two or three remarks should be made before I explain how these inconveniences were remedied， and how Testaments came to be invested with the characteristics now universally associated with them. The Testament was not necessarily written： at first， it seems to have been invariably oral， and， even in later times， the instrument declaratory of the bequests was only incidentally connected with the Will and formed no essential part of it. It bore in fact exactly the same relation to the Testament， which the deed leading the uses bore to the Fines and Recoveries of old English law， or which the charter of feoffment bore to the feoffment itself. Previously， in

deed， to the Twelve Tables， no writing would have been of the slightest use， for the Testator had no power of giving legacies， and the only persons who could be advantaged by a will were the Heir or Co-heirs. But the extreme generality of the clause in the Twelve Tables soon produced the doctrine that the Heir must take the inheritance burdened by any directions which the Testator might give him， or in other words， take it subject to legacies. Written testamentary instruments assumed thereupon a new value， as a security against the fraudulent refusal of the heir to satisfy the legatees； but to the last it was at the Testator's pleasure to rely exclusively on the testimony of the witnesses， and to declare by word of mouth the legacies which the familiae emptor was commissioned to pay.

　　The terms of the expression Emptor familiae demand notice. "Emptor" indicates that the Will was literally a sale， and the word "familiae，" when compared with the phraseology in the Testamentary clause in the Twelve Tables， leads us to some instructive conclusions. "Familia，" in classical Latinity， means always a man's slaves. Here， however， and generally in the language of ancient Roman law it includes all persons under his Potestas， and the Testator's material property or substance is understood to pass as an adjunct or appendage of his household. Turning to the law of the Twelve Tables， it will be seen that it speaks of tutela rei suae， "the guardianship of his substance，" a form of expression which is the exact reverse of the phase just examined. There does not therefore appear to be any mode of escaping from the conclusion， that， even at an era so comparatively recent as that of the Decemviral compromise， terms denoting "household" and "property" were blended in the current phraseology. If a man's household had been spoken of as his property we might have explained the expression as pointing to the extent of the Patria Potestas， but， as the interchange is reciprocal， we must allow that the form of speech caries us back to that primeval period in which property is owned by the family， and the family is governed by the citizen， so that the member of the community do not own their property and their family， but rather own their property through their family.

　　At an epoch not easy to settle with precision， the Roman Praetors fell into the habit of acting upon Testaments solemnised in closer conformity with the spirit than the letter of the law. Casual dispensations became insensibly the established practice， till at length a wholly new form of Will was matured and regularly engrafted on the Edictal Jurisprudence. The new or Praetorian Testament derived the whole of its impregnability from the Jus Honorarium or Equity of Rome. The Praetor of some particular year must have inserted a clause in his inaugural Proclamation declaratory of his intention to sustain all Testaments which should have been executed with such and such solemnities； and， the reform having been found advantageous， the article relating to it must have been again introduced by the Praetor's successor， and repeated by the next in office， till at length it formed a recognised portion of that body of jurisprudence which from these successive incorporations was styled the Perpetual or Continuous Edict. On examining the conditions of a valid Praetorian Will they will be plainly seen to have been determined by the requirements of the Mancipatory Testament， the innovating Praetor having obviously prescribed to himself the retention of the old formalities just so far as they were warrants of genuineness or securities against fraud. At the execution of the Mancipatory Testament seven persons had been present besides the Testator. Seven witnesses were accordingly essential to the Praetorian Will： two of them corresponding to the libripens and familiae emptor， who were now stripped of their symbolical character， and were merely present for the purpose of supplying their tes

timony. No emblematic ceremony was gone through； the Will was merely recited； but then it is probable （though not absolutely certain） that a written instrument was necessary to perpetuate the evidence of the Testator's dispositions. At all events， whenever a writing was read or exhibited as a person's last Will， we know certainly that the Praetorian Court would not Sustain it by special intervention， unless each of the seven witnesses had severally affixed his seal to the outside. This is the first appearance of sealing in the history of jurisprudence， considered as a mode of authentication. It is to be observed that the seals of Roman Wills， and other documents of importance， did not simply serve as the index of the presence or assent of the signatory， but were literally fastenings which had to be broken before the writing could be inspected.

　　The Edictal Law would therefore enforce the dispositions of a Testator， when， instead of being symbolised through the forms of mancipation， they were simply evidenced by the seals of seven witnesses. But it may be laid down as a general proposition， that the principal qualities of Roman property were incommunicable except through processes which were supposed to be coeval with the origin of the Civil Law. The Praetor therefore could not confer an Inheritance on anybody. He could not place the Heir or Co-heirs in that very relation in which the Testator had himself stood to his own rights and obligations. All he could do was to confer on the person designated as Heir the practical enjoyment of the property bequeathed， and to give the force of legal acquittances to his payments of the Testator's debts. When he exerted his powers to these ends， the Praetor was technically said to communicate the Bonorum Possessio. The Heir specially inducted under these circumstances， or Bonorum Possessor had every proprietary privilege of the Heir by the Civil Law. He took the profits and he could alienate， but then， for all his remedies for redress against wrong， he must go， as we should phrase it， not to the Common Law， but to the Equity side of the Praetorian Court. No great chance of error would be incurred by describing him as having an equitable estate in the inheritance； but then， to secure ourselves against being deluded by the analogy， we must always recollect that in one year the Bonorum Possessio was operated upon a principle of Roman Law known as Usucapion， and the Possessor became Quiritarian owner of all the property comprised in the inheritance.

　　We know too little of the older law of Civil Process to be able to strike the balance of advantage and disadvantage between the different classes of remedies supplied by the Praetorian Tribunal. It is certain， however， that， in spite of its many defects， the Mancipatory Testament by which the universitas juris devolved at once and unimpaired was never entirely superseded by the new Will； and at a period less bigoted to antiquarian forms， and perhaps not quite alive to their significance， all the ingenuity of the Jurisconsults seems to have been expended on the improvement of the more venerable instrument. At the era of Gaius， which is that of the Antonine Caesars， the great blemishes of the Mancipatory Will had been removed. Originally， as we have seen， the essential character of the formalities had required that the Heir himself should be the purchaser of the Family， and the consequence was that he not only instantly acquired a vested inte

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