Scanned text contains errors.

1116

TEST AMENTUM.

per aes et libram. Thus the Testamentum in Pro-cinctu always retained its characteristic of being exempted from legal forms, but as to the capacity of the Testator it was always subject to the same rules of law as other wills, so far as we know.

The form of Mancipatio owed its origin to posi­tive enactments : it was a form of alienation ac­companied with certain public ceremonies, the pre­sumed object of which was to secure evidence of the transfer. The form of Mancipatio as applied to a will was exactly the same form as Mancipatio ap­plied to any other purpose : it was an alienation of the property, and according to strict principles it must have been irrevocable. It may be con­cluded then that Roman wills were originally irre­vocable. It is sometimes assumed that the five witnesses to the Testament (cives Romani puberes) were representatives of the five Classes of Servius Tullius. If this is true (which is a mere assump­tion) the classes were represented as witnesses only, not as persons who gave their consent to the act. Engelbach states: " Mancipation was originally a formal sale in which the publicness of the transaction constituted the essential character­istic. When the seller had transferred to the buyer the ownership of a thing before the five representatives of the five classes of the Roman People, this was as valid as any other Lex which was brought before the assembly of the People and passed into a Lex." (Ueber die Usucapion zur Zeil tier Zwolf Tafeln, p. 80.) The whole meaning of this is not clear, but so far as this it is clear and true : the Testamentum per aes et libram differed in no respects as to the capacity of the alienor, from any other Mancipation. Now we must either sup­pose that the assumed consent of the populus to the Testamentary disposition at the Calata Comitia, was expressed by a special enactment which should transfer the property according to the Testator’s wish, or that the consent only must have been given to the transfer, and the transfer must have been made in the usual way : the latter is the only conceivable case of the two. In assuming this original necessity of consent on the part ot the populus to the testamentary disposition, we as­sume that Roman property was originally inalien­able at the will of the owner. This may be true, but it is not yet shown to be so.

The Twelve Tables recognize a man’s power to dispose of his property by will as he pleased: " Uti legassit super pecunia tutelave suae rei ita jus esto." (Ulp. Frag. tit. xi. 14.) It is generally admitted, and the extant passages are consistent with the opinion, that the new testamentary form per aes et libram existed while the two original forms were still in use. Now in the testamentum per aes et libram there is no pretence for saying that any consent was required except that of the buyer and seller; and the Twelve Tables recognize the testa­tor’s power of disposition. If then the form of testament at Comitia Calata subsisted after the Twelve Tables, we have, according to the views of some writers, a form of testamentum to which the consent of the testator was sufficient and another form in which it was not. There still remains to those who support this opinion, the power of saying that the consent of the sovereign people had become a form, and therefore it was indifferent, so far as concerns this consent, whether the will was made at the Comitia where it would be fully witnessed, or per aes et libram where it would be witnessed

TESTAMENTUM.

by the five representatives. But it is easy to sug­gest possibilities ; less easy to weigh evidence ac­curately and to deduce its legitimate consequences. As already observed, there seems to have been no rule of law that a testament must be written. The mancipatio required no writing, nor did the in­stitution of a heres, and the number of witnesses was probably required in order to secure evidence of the testator’s intentions. Thus it is said (Dig. 28. tit. 1. s. 21) that the heres might either be made by oral declaration (nuncupatio) or by writing. Written wills however were the common form among the Romans at least in the later republican and in the imperial periods. They were written on tablets of wood or wax, whence the word " cera" is often used as equivalent to "tabella;’ and the expressions prima, secunda cera are equi­valent to prima, secunda pagina. The will might be written either by the testator or any other person with his consent, and sometimes it was made with the advice of a lawyer. It was written in the Latin language, until a. D. 439 when it was enacted that wills might be in Greek. (Cod. 6. tit. 23. s. 21.) B}*- the old law a legacy could not be given in the Greek language, though a fideicommissum could be so given. It does not appear that there was origi­nally any signature by the witnesses. The will was sealed, but this might be done by the testator in secret, for it was not necessary that the witnesses should know the contents of the will; they were witnesses to the formal act of mancipatio, and to the testator’s declaration that the tabulae which ha held in his hand contained his last will. It must however have been in some way so marked as to be recognized, and the practice of the witnesses (testes] sealing and signing the will became common. (As to the will of Claudius, see Suetonius, Claudius, 44.) It was necessary for the witnesses both to seal (signare that is, to make a mark with a ring (annulus) or something else on the wax and to add their names (adscribere). The five witnesses signed their names with their own hand, and their ad-scription also declared whose will it was that they sealed. (Dig. 28. tit. 1. s. 30.) The seals and adscriptions were both on the outside. A Senatus–consultum, which applied to wills among other in­struments, enacted that they should be witnessed and signed as follows : they were to be tied with a triple thread (linuni) on the upper part of the margin which was to be perforated at the middle part, and the wax was to be put over the thread and sealed. Tabulae which were produced in any other way had no validity. (Compare Paulus, S. R. v. tit. 25. s. 6, where impositae seems to be the true reading, with Sueton. Ner. 17.) A man might make several copies of his will, which was often done (ut vulgo fieri solet. Dig. 31. tit. 1. s. 47; a case put to Proculus) for the sake of caution. Both Augustus and Tiberius made two copies of their wills. (Sueton. Aug. 101, Tiber. 76.) When sealed, it was deposited with some friend, or in a temple, or with the Vestal Virgins; and after the testator’s death it was opened (resignare) in due form. The witnesses or the major part were present, and after they had acknowledged their seals, the thread (linum) was broken and the will was opened and read, and a copy was made ; the original was then sealed with the public seal and placed in the archium, whence a fresh copy might be got, if the first copy should ever be lost. (Paulus, iv. 6.) This practice described by Paulus may have been of