176 HISTORY OF TESTAMENTARY SUCCESSION ICHA*. VI

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

_easilyalienated

than

_they,

and

follow

much more

lenient rules of devolution.

Women and

the descendants of

women

succeedto

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

CHAP, _vi]

COMITIA CALATA

₁₇₇

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 unitof thestate

was

theGens.

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

12

178

HISTORY OF TESTAMENTARY SUCCESSION

[CHAP,^vi

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

CHAP,_vi]

PLEBEIAN WILLS

₁₇₉ 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

l8o

HISTORY OF TESTAMENTARY SUCCESSION

ICHAP.^vi

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

CHAP,_vi]

THE MANCIPATION

l8l

supposed

capable^ofholdingtogether, 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, ^ifnot 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.