Roman Public Life

by A. H. J. Greenidge

The second kind of public will was the military testament (in procinctu),[106] but our authorities leave us in doubt as to whether this testament could be made in any gathering of the soldiers prepared to meet the enemy and in any place, or whether it was a formal act possible only in the great gathering of the exercitus in the Campus Martius—that gathering which was finally organised as a legislative assembly, existed by the side of the assembly of the Curies, and came to be known as the comitia centuriata.

In the first case it may have been an old patrician form of testament, an informal will permitted in an emergency, perhaps to enable a childless soldier to transmit his inheritance. We do not know whether it had absolute validity, or only a validity dependent on circumstances, such as the absence of direct heirs, or the satisfaction of religious conditions approved by subsequent pontifical scrutiny; on this hypothesis the comrades of the testator could hardly have acted other than as witnesses to the will.

On the second hypothesis it would have a closer analogy to the testament made in the comitia calata, and may have been introduced only when Plebeians were admitted to political rights in this assembly. It is true that this is not a necessary conclusion, for the patres gathered armed for war in the Campus long before the enrolment of the Plebs for military duties or their admission to political rights; but we may at least say that, when this enrolment and admission were effected, this form of testament could be used by the Plebeians. If we accept the traditional date for the Servian constitution, it was common to the two orders before the close of the monarchy.

But there was a third type of will, one purely plebeian, which from the comparative simplicity of its form and the readiness with which it could be employed (since it did not depend either on chance or formal gatherings of the people) gradually came, in its subsequent developments, to replace all others, and became the prevailing Roman form of testament-making. This was the testament per aes et libram, one use of the mancipatio or solemn transference of property “by the copper and the scales.” In the form in which it is known to us, it is a late development, for the sale of the property has entirely ceased to be a real, and has become a fictitious sale; the mancipation in fact has become a mere formality, and its employment is said to have been dependent on the condition that the testator “subita morte urguebatur”[107]—a condition which implies that the comitial testament could in ordinary cases be resorted to. But as the Plebs had originally no access to this form of will, the testament per aes et libram must have been in use among them long before its recognition as a form valid for the whole community. It was then regarded as a mere formal application of the mancipation to a special emergency, and as supplementary to the comitial testament; until its superior utility came to be recognised, the sentiment in favour of a free disposition of property grew to be strong, and the Twelve Tables, which effected the triumph of plebeian over patrician forms of procedure, recognised it as the normal mode of testate disposition.

By this act the testator, in the presence of five witnesses and the libripens, transferred the whole of his patrimony (familia) into the custody and guardianship of a person called “the purchaser of the family” (familiae emptor). In order to make a legal disposition of his property the vendor makes a formal announcement of the purport of the sale, and the buyer, as he pays the single copper coin for the patrimony, repeats the same form of words, “Let my custody and guardianship of your patrimony be purchased by this coin, to the effect that you may make a legal testament in accordance with public law.”[108] The words, which may not represent the most ancient formula, show that the familiae emptor is a mere trustee. Although the transference does not appear to have been conditioned by any express stipulation on the part of the vendor,[109] it was understood that it should only take effect on the death of the testator. On this the familiae emptor becomes guardian of the patrimony. He is not an heir but an executor, who distributes the property in accordance with the instructions of the testator from whom he has purchased.

The second stage is reached by the added importance given to the form of instruction (nuncupatio) uttered by the vendor. The Twelve Tables gave absolute validity to such instructions,[110] and the mere expression of the will of the testator came to be considered the essential part of the testament. In this announcement a true heir (heres) could be mentioned, and the familiae emptor sinks into the background. It is true that his presence is still necessary to the ceremony; he still professes to take the patrimony into his guardianship; but, like the man who holds the scales and the five witnesses, he is merely a formal assistant. The testament has ceased to be a contract; it is a one-sided expression of will and an arbitrary disposition of property. It may be either verbal or written; the last stage in the history of the civil testament is reached when the testator is allowed to exhibit a document to the witnesses of the mancipation with these words, “These waxen tablets contain my will and bequest; I ask you, Quirites, for your testimony.”[111]

Thus at a very early stage of Roman history, perhaps as early as the middle of the fifth century B.C., a man could exercise the most absolute power over the disposal of his goods. The only limitation was that the direct heirs (sui heredes) must be formally disinherited if they were to lose their rights. A mere passing over of a filius familias without formal disinheritance (exheredatio) rendered the will invalid; and in this case the sui succeeded to the vacant estate.

The social and political effects of such a dangerous liberty as the right of arbitrary testamentary disposition depend upon its use, and its use depends on the character of the people. The Roman character was, at all periods of history, devoted to the hereditary theory. It is one that was so strongly believed in that it asserted itself in spheres where it was never contemplated—during the later Republic in succession to office, in the early Empire in the succession to the Principate—and as applied to property it was an essential condition of the permanence of the Roman family. For the maintenance of a house a rigid system of intestate inheritance is bad; it may not produce great wealth, but it often produces great poverty. The only satisfactory system is a minute examination of each particular case by the state or by individuals. Such a control by the state was utterly alien to the laisser faire principles of the Roman, and history shows that the Decemvirs were right when they entrusted this discretionary power wholly to the pater. His functions as trustee were but extended to a period beyond his lifetime, and freedom of bequest was used as a means of equitable adjustment of property to the circumstances of the members of the family. The son who had made a rich marriage need not receive so much; the one destined to carry on the family traditions of office might receive more than the others. To him the heredium might be given, while the younger sons were drafted into colonies. We do not know the principles; but that the principles tended to the preservation of the family is proved by the long traditions of the noble Roman houses.

A legal view of the Roman family would be incomplete without consideration of the rights or infringement of rights dependent on it.