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 desired 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 Plebeia cannot be a member of a House，" 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 hardships 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 Patricia Parliament. If a difference of opinion existed on the point between the two classes of the Roman population， it was extinguished， with many other sources of heartburning， by the great Decemviral compromise. The text of the Twelve Tables is still extant which says， "Pater familias uti de pecunia tutelave rei suae legassit， ita jus esto" —— a law which can hardly have had any other object than the legalisation 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 Testaments. Its probable functions may be best indicated by saying that it was a Court of Registration， 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 conveyance， 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 Mancipation， 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 aes et libram， "with the copper and the scales，" 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 familiae 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 familiae 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 familiae 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 Mancipatory 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 Familia 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 consequence 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 jurisprudence 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 Heir.
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 familiae emptor was commissioned to pay.
The terms of the expression Emptor familiae demand notice. "Emptor" indicates that the Will was literally a sale， and the word "familiae，" when compared with the phraseology in the Testamentary 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 suae， "the guardianship of his substance，" a form of expression which is the exact reverse of the phase 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 phraseology. 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 caries us back to that primeval period in which property is owned by the family， and the family is governed by the citizen， so that the member 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 Edictal Jurisprudence. The new or Praetorian 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 Testaments 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 Perpetual 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 familiae 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 evidence 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 authentication. It is to be observed that the seals of Roman Wills， and other documents of importance， did not simply serve as the index of the presence or assent of the signatory， but were 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 bequeathed， and to give the force of legal acquittances 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 a principle of Roman Law known as Usucapion， and the Possessor became Quiritarian owner of all the property comprised in the inheritance.
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