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Ancient Law - CHAPTER VI continue






6. CHAPTER V continue


8. CHAPTER VI continue



11. CHAPTER VIII continue


13. CHAPTER IX continue


Both a Will and an Adoption
threaten a distortion of the ordinary course of
Family descent, but they are obviously contriv-
ances for preventing the descent being wholly
interrupted, when there is no succession of kindred
to carry it on. Of the two expedients Adoption,
the factitious creation of blood-relationship, is the
only one which has suggested itself to the greater
part of archaic societies. The Hindoos have indeed
advanced one point on what was doubtless the
antique practice, by allowing the widow to adopt
when the father has neglected to do so, and there
are in the local customs of Bengal some faint
traces of the Testamentary powers. But to the
Romans belongs pre-eminently the credit of in-
venting the Will, the institution which, next to
the Contract, has exercised the greatest influence
in transforming human society. We must be
careful not to attribute to it in its earliest shape
the functions which have attended it in more
recent times. It was at first, not a mode of
distributing a dead man's goods, but one among
several ways of transferring the representation of
the household to a new chief. The goods descend
no doubt to the Heir, but that is only because the
government of the family carries with it in its
devolution the power of disposing of the common
stock. We are very far as yet from that stage in
the history of Wills in which they become powerful
instruments in modifying society through the


stimulus they give to the circulation of property
and the plasticity they produce in proprietary
rights. No such consequences as these appear in
fact to have been associated with the Testamentary
power even by the latest Roman lawyers. It will
be found that Wills were never looked upon in
the Roman community as a contrivance for parting
Property and the Family, or for creating a variety
of miscellaneous interests, but rather as a means
of making a better provision for the members of
a household than could be secured through the
rules of Intestate succession. We may suspect
indeed that the associations of a Roman with the
practice of will-making were extremely different
from those familiar to us nowadays. The habit
of regarding Adoption and Testation as modes
of continuing the Family cannot but have had
something to do with the singular laxity of Roman
notions as to the inheritance of sovereignty. It
is impossible not to see that the succession of the
early Roman Emperors to each other was con-
sidered reasonably regular, and that, in spite of
all that had occurred, no absurdity attached to
the pretension of such Princes as Theodosius or
Justinian to style themselves Csesar and Augustus.
When the phenomena of primitive societies
emerge into light, it seems impossible to dispute
a proposition which the jurists of the seventeenth
century considered doubtful, that Intestate In-
heritance is a more ancient institution than
Testamentary Succession. As soon as this is
settled, a question of much interest suggests
itself, how and under what conditions were the
directions of a will first allowed to regulate the


devolution of authority over the household, and
consequently the posthumous distribution of pro-
perty. The difficulty of deciding the point arises
from the rarity of Testamentary power in archaic
communities. It is doubtful whether a true
power of testation was known to any original
society except the Roman. Rudimentary forms
of it occur here and there, but most of them are
not exempt from the suspicion of a Roman origin.
The Athenian Will was, no doubt, indigenous,
but then, as will appear presently, it was only an
inchoate Testament. As to the Wills which are
sanctioned by the bodies of law which have
descended to us as the codes of the barbarian
conquerors of imperial Rome, they are almost
certainly Roman. The most penetrating German
criticism has recently been directed to these
leges Barbarorum, the great object of investigation
being to detach those portions of each system
which formed the customs of the tribe in its
original home from the adventitious ingredients
which were borrowed from the laws of the Romans.
In the course of this process, one result has
invariably disclosed itself, that the ancient nucleus
of the code contains no trace of a Will. Whatever
testamentary law exists, has been taken from
Roman jurisprudence. Similarly, the rudimen-
tary Testament which (as I am informed) the
Rabbinical Jewish law provides for, has been
attributed to contact with the Romans. The only
form of Testament, not belonging to a Roman
or Hellenic society, which can with any reason
be supposed indigenous, is that recognised by
the usages of the province of Bengal ; and the


Testament of Bengal, which some have even
supposed to be an invention of Anglo-Indian
lawyers, is at most only a rudimentary Will.

The evidence, however, such as it is, seems
to point to the conclusion that Testaments are
at first only allowed to take effect on failure of
the persons entitled to have the inheritance by
right of blood genuine or fictitious. Thus, when
Athenian citizens were empowered for the first
time by the Laws of Solon to execute Testaments,
they were forbidden to disinherit their direct
male descendants, So, too, the Will of Bengal
is only permitted to govern the succession so far
as it is consistent with certain overriding claims
of the family. Again, the original institutions
of the Jews having provided nowhere for the
privileges of Testatorship, the latter Rabbinical
jurisprudence, which pretends to supply the casus
omissi of the Mosaic law, allows the power of
Testation to attach when all the kindred entitled
under the Mosaic system to succeed have failed
or are undiscoverable. The limitations by which
the ancient German codes hedge in the testamen-
tary jurisprudence which has been incorporated
with them are also significant, and point in the
same direction. It is the peculiarity of most of
these German laws, in the only shape in which
we know them, that, besides the allod or domain
of each household, they recognise several sub-
ordinate kinds or orders of property, each of
which probably represents a separate transfusion
of Roman principles into the primitive body of
Teutonic usage. The primitive German or allodial
property is strictly reserved to the kindred. Not


only is it incapable of being disposed of by testa-
ment, but it is scarcely capable of being alienated
by conveyance inter vivos. The ancient German
law, like the Hindoo jurisprudence, makes the
male children co-proprietors with their father,
and the endowment of the family cannot be
parted with except by the consent of all its
members. But the other sorts of property, of
more modern origin and lower dignity than the
allodial possessions, are much more easily alienated
than they, and follow much more lenient rules
of devolution. Women and the descendants of
women succeed to them, obviously on the principle
that they lie outside the sacred precinct of the
Agnatic brotherhood. Now, it is on these last
descriptions 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 Parlia-
ment 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 repre-
sented. 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 cognisance 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 Testa-
ment 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 and 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 designed 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
Plebeian cannot be a member of a house/ 1 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 hard-
ships of having to submit a proposed Will to the
unfriendly jurisdiction of an assembly 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 Patrician Parliament. If a difference of
opinion existed on the point between the two
classes of the Roman population, it was extin-
guished, with many other sources of heartburning,
by the great Decem viral compromise. The text
of the Twelve Tables is still extant which says,
" Pater familias uti de pecunid tuteldve rei su&
legdssit, ita jus esto " a law which can hardly
have had any other object than the legislation
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 Tes-
taments. Its probable functions may be best
indicated by saying that it was a Court of Regis-
tration, 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 convey-
ance, 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 Manci-
pation, 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 also 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 ces et libram, " with the copper and the scales/ 1
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
families 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 families 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 familice 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 Manci-
patory Testament, 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 Familiae 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 consequences
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 juris-
prudence 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

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, indeed,
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 families emptor was com-
missioned to pay.

The terms of the expression Emptor familia
demand notice. " Emptor " indicates that the
Will was literally a sale, and the word " familiar,"
when compared with the phraseology in the Testa-
mentary 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 suce, " the guardianship of his
substance/' a form of expression which is the
exact reverse of the phrase 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 phrase-
ology. 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 carries us back
to the primeval period in which property is owned
by the family, and the family is governed by the
citizen, so that the members 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
Edict al Jurisprudence. The new or Prcztorian
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 Testa-
ments 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 Per-
petual 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
familice emptor, who were now stripped of their
symbolical character, and were merely present for
the purpose of supplying their testimony. 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 evi-
dence 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 authen-
tication. The use of seals, however, as mere


fastenings, is doubtless of much higher antiquity ;
and it appears to have been known to the Hebrews.
We may observe, that the seals of the Roman
Wills, and other documents of importance, did
not only serve as the index of the present or assent
of the signatary, but were also 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 be-
queathed, and to give the force of legal acquit-
tances 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 by
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 advan-
tage 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 in-
stantly acquired a vested interest in the Testator's
Property but was formally made aware of his
rights. But the age of Gaius permitted some un-
concerned 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 pro-
ceeding, 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 Nuncupatio as the essential part of the
transaction, that Wills were allowed to become

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 Eastern


Roman Empire employing a form of Will of which
the pedigree is traceable to the Praetorian Testa-
ment 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 Triper-
titum. 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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