Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/715

Rh JUS CIVILE.] ROMAN LAW 691 it. nata) ; but how they were dealt with when the debtor made default is by no means clear, (ins of Changes in the Law of Succession. The two forms of testament of the regal period (supra, p. 674) still remained in use in the early republic ; but in course of time they were displaced by the general adoption of that executed with the copper and the scales (testamentum per aes et libram). It seems to be the general opinion that it was to the first two that the words applied which stood in the forefront of the provisions of the XII. Tables about in- heritance, " uti legassit suae rei, ita jus esto." Whether resort was to the comitia or to the army, the testator's own will in the matter was henceforth to be supreme. There was to be no more reference to the pontiffs as to the expediency of the testament in view of the interests of the family sacra and of creditors of the testator's ; from legislators, sanctioning a departure from the ordinary rules of succession, the assembled Quirites became merely wit- nesses, recipients of the oral declaration of the testator's will in regard to his inheritance.
 * a- The testament with the copper and the scales is depicted
 * t per by Gaius as a written instrument. But he presents it in

what was apparently the third stage of its history. Its probable origin has been explained in describing the result of the Servian reforms upon the private law. It was then not a testament but only a makeshift for one. A plebeian was not qualified in the regal period to make a testament in the comitia; so, instead, he transferred his estate to a friend on whom he could rely with instructions how to distribute it on his death. The transferee was called familiae emptor, because the conveyance was in form a mancipation for a nominal price. It is not at all unlikely that the same device may occasionally have been resorted to by a patrician who had neglected to make a regular testament, and was seized with mortal illness before he had an opportunity of appealing to the curies. But such a disposition was not a testament, and may not have been so called. A testa- ment was the nomination of a person as the testator's heir, some- times the substitution of an individual of the testator's choice for the heir assigned to him by law, sometimes the acceptance of the latter but in the character of testamentary heir, so that the testator might be able to impose upon him what burdens he pleased as the tacit condition of heirship. It made the person instituted as fully the representative of the testator after his death as his heir-at-law would have been had he died intestate. The mortis causa manci- pation that opened the way for the testament per aes et libram conferred upon the familiae cmptor no such character. Gaius says that he stood in place of an heir (heredis loco), inasmuch as he had such of an heir's rights and duties as the familiae venditor had it in his power to confer and impose ; but the transaction was but a conveyance of estate, with a limitation of the right of the grantee. It has been argued that, as the law did not recognize conditional mancipation, the conveyance must have operated as a complete and immediate divestiture of the grantee. But this does not follow. For it was quite competent for a man, in transferring property by mancipation, to reserve to himself a life interest ; and apparently it was equally competent for him to postpone delivery of possession, without infringing the rule that the mancipation itself could not be ex ccrlo tempore. So far as one can see, therefore, there was nothing to prevent the grantee of the conveyance (or quasi-testator) bargaining that he was to retain the possession till his death ; and, as thefamilia was an aggregate of estate (univcrsitas rerum) which retained its identity notwithstanding any change in its component elements, he must in such case have been as free to operate on it while he survived as if he had never conveyed it by mancipation. Cicero incidentally remarks what indeed the nature of the business of itself very distinctly suggests that the true testament with the copper and the scales had its sta- tutory warrant, not in the uti legassit suae rei of the XII. Tables, but in the provision contained in the words, " cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto." Reflexion on the import and comprehensiveness of these words led the interpreters to the conclusion that there was nothing in them to prevent the direct institution of an heir in the course of the verba nuncujxita engrafted on a mancipation. From the moment this view was adopted and put in practice the familiae mancipatio ceased to be a transfer of the testator's estate to the familiae emptor the latter's purchase was now for form's sake only, though still an indispensable form, since it was it alone that, according to the letter of the statute, imparted efficacy to the nuncupatio. But it was the nuncupatio the oral de- claration addressed to the witnesses that really contained the testamentary disposition, i.e., the institution of an heir, with such other provisions as the testator thought fit to em- body in it. This was the second stage in the history of the testament per aes et libram. The third was marked by the introduction of tablets in which the testamentary provisions were set out in writing, and which the testator displayed to the Avitnesses, folded and tied up in the usual manner, declaring that they contained the record of his last will. Gains narrates the words spoken by the familiae emptor and addressed to the testator as follows : " Your estate and belongings (familia pecuniaque tua), be they mine by purchase with this bit of copper and these copper scales, subject to your instructions, but in my keeping, that so you may lawfully make your testament ac- cording to the statute (quo injure testamentum facere possis secundum legein publicam). " The meaning of the words " in my keeping (cndo custodclam meam) " is not quite obvious ; they may have been rem- nants of an older style, or may be due to a clerical error of the writer of the Verona MS. Certain it is that they no more imported a real custody than a real property in the familiae emptor ; for the testator remained so entirely master of his estate that the very next day if he pleased he might maucipate it anew to a different pur- chaser, and nuncupate fresh testamentary Avritings. The nuncupa- tion was in these terms : " As is written in these tablets so do I give, so do I legate, so do I declare my will ; therefore, Quirites, grant me your testimony" ; and, adds Gaius, "whatever the testa- tor had set down in detail in his testamentary tablets lie was regarded as declaring and confirming by this general statement. " To the appeal of the testator the witnesses responded by giving their testimony in words which unfortunately are not preserved ; and then the testament was sealed by testator, officials, and Avitnesses, the seals being outside according to the early fashion. Although this testament with the copper and the scales was justi- fied in the first instance by the provision of the XII. Tables as to the effect of nuncupative Avords annexed to a mancipation, yet in course of time it came to be subordinated to that other one which dealt directly with testamentary dispositions, uti legassit suae rei, ita jus esto. Upon the Avords uti legassit the widest possible meaning Avas put by the interpreters : not only Avas a testator held entitled on the strength of them to appoint tutors to Avife and children, to enfranchise slaves, and make bequests to legatees, but he might even disinherit his proper heir (suus hcrcs) in favour of a stranger, so long as he did so in express terms. Institution of a stranger Avithout mention of the proper heir, however, was fatal, at least if the latter Avas a sou ; for Avithout express disherison (exheredatio] his father could not deprive him of the interest he had in the family property as in a manner one of its joint owners. It can hardly be supposed that disherison Avas contemplated by the compilers of the Tables : it Avas foreign to the traditional conception of the family and the family estate. But it Avas a right Avhose concession could not be resisted Avhen claimed as embraced in the uti legassit, although generally discountenanced, and as far as possible restrained by the strictness of the rules imposed on its exercise. In the absence of a testament, or on its failure from Intestate any cause, the succession opened to the heirs ab intestato. succes- So notoriously were the sui heredes entitled to the first S10U ' place and that not so much in the character of heirs as of persons noAv entering upon the active exercise of rights hitherto existing, though in a manner dormant that the compilers of the XII. Tables thought it superfluous ex- pressly to declare it. " If a man die intestate, leaving no suus heres, his nearest agnate shall have his estate. If the agnate also fail, his gentiles shall have it." It has been pointed out, in dealing with the tutory of agnates, that the notion of agnation, as a bond distinct from that AA'hich connected the gentile members of a clan, vas due to the de- cemvirs. They had to devise a laAv of intestate tutory and succession suitable alike to the patricians who had gentes and to the plebeians who had none. To put the latter in exactly the same position as the former Avas beyond their pOAver ; for the fact had to be faced that the plebeians had no gentile institutions, and to create them Avas impossible.