Ancient Law Chapter 6

rest in the Testator's Property， but was formally made aware of his rights. But the age of Gaius permitted some unconcerned person to officiate as Purchaser of the Family. The heir， therefore， was not necessarily informed of the succession to which he was destined； and Wills thenceforward acquired the property of secrecy. The substitution of a stranger for the actual Heir in the functions of "Familiae Emptor" had other ulterior consequences. As soon as it was legalised， a Roman Testament came to

consist of two parts or stages —— a conveyance， which was a pure form， and a Nuncupatio， or Publication. In this latter passage of the proceeding， the Testator either orally declared to the assistants the wishes which were to be executed after his death， or produced a written document in which his wishes were embodied. It was not probably till attention had been quite drawn off from the imaginary Conveyance， and concentrated on the Nuncupation as the essential part of the transaction， that Wills were allowed to become revocable.

　　I have thus carried the pedigree of Wills some way down in legal history. The root of it is the old Testament "with the copper and the scales，" founded on a Mancipation or Conveyance. This ancient Will has， however， manifold defects， which are remedied， though only indirectly， by the Praetorian law Meantime the ingenuity of the Jurisconsults effects， in the Common-Law Will or Mancipatory Testament， the very improvements which the Praetor may have concurrently carried out in Equity. These last ameliorations depend， however， on mere legal dexterity， and we see accordingly that the Testamentary Law of the day of Gaius or Ulpian is only transitional. What changes next ensued we know not； but at length， just before the reconstruction of the jurisprudence by Justinian， we find the subjects of the Eater Roman Empire employing a form of Will of which the pedigree is traceable to the Praetorian Testament on one side， and to the Testament "with the copper and the scales" on the other. Like the Testament of the Praetor， it required no Mancipation， and was invalid unless sealed by seven witnesses. Like the Mancipatory Will， it passed the Inheritance and not merely a Bonorum Possessio. Several， however， of its most important features were annexed by positive enactments， and it is out of regard to this threefold derivation from the Praetorian Edict， from the Civil Law， and from the Imperial Constitutions， that Justinian speaks of the Law of Wills in his own day as Jus Tripertitum. The new Testament thus described is the one generally known as the Roman Will. But it was the Will of the Eastern Empire only and the researches of Savigny have shown that in Western Europe the old Mancipatory Testament， with all its apparatus of conveyance， copper， and scales， continued to be the form in use far down in the Middle Ages

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