At an epoch not easy to settle with precision, the Roman Prætors 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 Prætorian Testament derived the whole of its impregnability from the Jus Honorarium or Equity of Rome. The Prætor 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 Prætor'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 Prætorian Will they will be plainly seen to have been determined by the requirements of the Mancipatory Testament, the innovating Prætor 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 Prætorian Will: two of them corresponding to the libripens and familiæ 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 Prætorian 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 Prætor 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 Prætor 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 Prætorian 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.
We know too little of the older law of Civil Process to be able to strike the balance of advantage and disadvantage between the different classes of remedies supplied by the Prætorian Tribunal. It is certain, however, that, in spite of its many defects, the Mancipatory Testament by which the universitas juris devolved at once and unimpaired was never entirely superseded by the new Will; and at a period less bigoted to antiquarian forms, and perhaps not quite alive to their significance, all the ingenuity of the Jurisconsults seems to have been expended on the improvement of the more venerable instrument. At the era of Gaius, which is that of the Antonine Cæsars, the great blemishes of the Mancipatory Will had been removed. Originally, as we have seen, the essential character of the formalities had required that the Heir himself should be the Purchaser of the Family, and the consequence was that he not only instantly acquired a vested interest in the Testator's Property, but was formally made aware of his rights. But the age of Gaius permitted some unconcerned person to officiate as Purchaser of the Family. The heir, therefore, was not necessarily informed of the succession to which he was destined; and Wills thenceforward acquired the property of secrecy. The substitution of a stranger for the actual Heir in the functions of "Familiæ Emptor" had other ulterior consequences. As soon as it was legalised, a Roman Testament came to consist of two parts or stages—a conveyance, which was a pure form, and a Nuncupatio, or Publication. In this latter passage of the proceeding, the Testator either orally declared to the assistants the wishes which were to be executed after his death, or produced a written document in which his wishes were embodied. It was not probably till attention had been quite drawn off from the imaginary Conveyance, and concentrated on the Nuncupation as the essential part of the transaction, that Wills were allowed to become revocable.
I have thus carried the pedigree of Wills some way down in legal history. The root of it is the old Testament "with the copper and the scales," founded on a Mancipation or Conveyance. This ancient Will has, however, manifold defects, which are remedied, though only indirectly, by the Prætorian law. Meantime the ingenuity of the Jurisconsults effects, in the Common-Law Will or Mancipatory Testament, the very improvements which the Prætor may have concurrently carried out in Equity. These last ameliorations depend, however, on mere legal dexterity, and we see accordingly that the Testamentary Law of the day of Gaius or Ulpian is only transitional. What changes next ensued we know not; but at length, just before the reconstruction of the jurisprudence by Justinian, we find the subjects of the Eastern Roman Empire employing a form of Will of which the pedigree is traceable to the Prætorian Testament on one side, and to the Testament "with the copper and the scales" on the other. Like the Testament of the Prætor, it required no Mancipation, and was invalid unless sealed by seven witnesses. Like the Mancipatory Will, it passed the Inheritance and not merely a Bonorum Possessio. Several, however, of its most important features were annexed by positive enactments, and it is out of regard to this threefold derivation from the Prætorian Edict, from the Civil Law, and from the Imperial Constitutions, that Justinian speaks of the Law of Wills in his own day as Jus Tripertitum. The new Testament thus described is the one generally known as the Roman Will. But it was the Will of the Eastern Empire only; and the researches of Savigny have shown that in Western Europe the old Mancipatory Testament, with all its apparatus of conveyance, copper, and scales, continued to be the form in use far down in the Middle Ages.
CHAPTER VII
ancient and modern ideas respecting wills and successions
Although there is much in the modern European Law of Wills which is intimately connected with the oldest rules of Testamentary disposition practised among men, there are nevertheless some important differences between ancient and modern ideas on the subject of Wills and Successions. Some of the points of difference I shall endeavour to illustrate in this chapter.
At a period, removed several centuries from the era of the Twelve Tables, we find a variety of rules engrafted on the Roman Civil Law with the view of limiting the disinherison of children; we have the jurisdiction of the Prætor very actively exerted in the same interest; and we are also presented with a new remedy, very anomalous in character and of uncertain origin, called the Querela Inofficiosi Testamenti, "the Plaint of an Unduteous Will," directed to the reinstatement of the issue in inheritances from which they had been unjustifiably excluded by a father's Testament. Comparing this condition of the law with the text of the Twelve Tables which concedes in terms the utmost liberty of Testation, several writers have been tempted to interweave a good deal of dramatic incident into their history of the Law Testamentary. They tell us of the boundless license of disinherison in which the heads of families instantly began to indulge, of the scandal and injury to public morals which the new practices engendered, and of the applause of all good men which hailed the courage of the Prætor in arresting the progress of paternal depravity. This story, which is not without some foundation for the principal fact it relates, is often so told as to disclose very serious misconceptions of the principles of legal history. The Law of the Twelve Tables is to be explained by the character of the age in which it was enacted. It does not license a tendency which a later era thought itself bound to counteract, but it proceeds on the assumption that no such tendency exists, or, perhaps we should say, in ignorance of the possibility of its existence. There is no likelihood that Roman citizens began immediately to avail themselves freely of the power to disinherit. It is against all reason and sound appreciation of history to suppose that the yoke of family bondage, still patiently submitted to, as we know, where its pressure galled most cruelly, would be cast off in the very particular in which its incidence in our own day is not otherwise than welcome. The Law of the Twelve Tables permitted the execution of Testaments in the only case in which it was thought possible that they could be executed, viz. on failure of children and proximate kindred. It did not forbid the disinherison of direct descendants, inasmuch as it did not legislate against a contingency which no Roman lawgiver of that era could have contemplated. No doubt, as the offices of family affection progressively lost the aspect of primary personal duties, the disinherison of children was occasionally attempted. But the interference of the Prætor, so far from being called for by the universality of the abuse, was doubtless first prompted by the fact that such instances of unnatural caprice were few and exceptional, and at conflict with the current morality.
The indications furnished by this part of Roman Testamentary Law are of a very different kind. It is remarkable that a Will never seems to have been regarded by the Romans as a means of disinheriting a Family, or of effecting the unequal distribution of a patrimony. The rules of law preventing its being turned to such a purpose, increase in number and stringency as the jurisprudence unfolds itself; and these rules correspond doubtless with the abiding sentiment of Roman society, as distinguished from occasional variations of feeling in individuals. It would rather seem as if the Testamentary Power were chiefly valued for the assistance it gave in making provision for a Family, and in dividing the inheritance more evenly and fairly than the Law of Intestate Succession would have divided it. If this be the true reading of the general sentiment on the point, it explains to some extent the singular horror of Intestacy which always characterised the Roman. No evil seems to have been considered a heavier visitation than the forfeiture of Testamentary privileges; no curse appears to have been bitterer than that which imprecated on an enemy that he might die without a Will. The feeling has no counterpart, or none that is easily recognisable, in the forms of opinion which exist at the present day. All men at all times will doubtless prefer chalking out the destination of their substance to having that office performed for them by the law; but the Roman passion for Testacy is distinguished from the mere desire to indulge caprice by its intensity; and it has of course nothing whatever in common with that pride of family, exclusively the creation of feudalism, which accumulates one description of property in the hands of a single representative. It is probable, à priori, that it was something in the rules of Intestate Succession which caused this vehement preference for the distribution of property under a Testament over its distribution by law. The difficulty, however, is, that on glancing at the Roman Law of Intestate Succession, in the form which it wore for many centuries before Justinian shaped it into that scheme of inheritance which has been almost universally adopted by modern lawgivers, it by no means strikes one as remarkably unreasonable or inequitable. On the contrary, the distribution it prescribes is so fair and rational, and differs so little from that with which modern society has been generally contented, that no reason suggests itself why it should have been regarded with extraordinary distaste, especially under a jurisprudence which pared down to a narrow compass the testamentary privileges of persons who had children to provide for. We should rather have expected that, as in France at this moment, the heads of families would generally save themselves the trouble of executing a Will, and allow the Law to do as it pleased with their assets. I think, however, if we look a little closely at the pre-Justinianean scale of Intestate Succession, we shall discover the key to the mystery. The texture of the law consists of two distinct parts. One department of rules comes from the Jus Civile, the Common-Law of Rome; the other from the Edict of the Prætor. The Civil Law, as I have already stated for another purpose, calls to the inheritance only three orders of successors in their turn; the Unemancipated children, the nearest class of Agnatic kindred, and the Gentiles. Between these three orders, the Prætor interpolates various classes of relatives, of whom the Civil Law took no notice whatever. Ultimately, the combination of the Edict and of the Civil Law forms a table of succession not materially different from that which has descended to the generality of modern codes.