jurisprudence it developed into the carefully regulated positive prescription which has to a greater or less extent found a place in every modern system.
The conception of the abstract notion of a real right in (or over) the property of another person (jus in re aliena) Jura in re aliena. is not to be looked for at so early a period in the history of the law as that now under consideration. The rural servitudes of way and water were no doubt very early recognized, for they ranked as res mancipi, and the XII. Tables contained various regulations in reference to the former. Usufruct, too, was probably not unknown; but the urban praedial servitudes bear the impress of a somewhat later jurisprudence. Pignorate and hypothecary rights were certainly unknown as rights protected by action.[1] Between private parties the only thing legally recognized of the nature of a real security was the fiducia that is described above. Approaching more nearly to the modern idea of a mortgage was the security praedibus praediisque required by the state from those indebted to it in assurance of their obligations. Here there was the double guarantee of sureties (praedes) and mortgages of lands of theirs (praedia subsignata); but how they were dealt with when the debtor made default is by no means clear.
Changes in the Law of Succession.—The two forms of testament of the regal period, viz., that made in the comitia of Forms of testament. the curies and that by soldiers on the eve of battle, still remained in use in the early Republic; though before the end of the Republic they were displaced by the general adoption of that executed with the copper and scales (testamentum per aes et libram). It seems to be the general opinion that it was to the first two alone that the words applied which stood in the forefront of the provisions of the XII. Tables about inheritance: “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 witnesses—recipients of the oral declaration of the testator's will in regard to his inheritance.[2]
The testament with the copper and the scales is depicted by Gaius as a written instrument. But he presents it in what Testament per aes et libram. might be described as the third stage of its history. Its probable origin has been explained (supra, p. 534). It was originally 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 emancipation 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.[3] But such a disposition was not a testament, and may not have been so called. A testament was the nomination of a person as the testator's heir. 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 original mortis causa mancipation that opened the way for the testament per aes et libram conferred upon the familiae emptor 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 emancipation, 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 certo tempore. So far as one can see, therefore, there was nothing to prevent the grantor of the conveyance (or quasi-testator) bargaining that he was to retain the possession till his death; and, as the familia was an aggregate of estate (universitas 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[4]—what indeed the nature of the transaction of itself very distinctly suggests—that the true testament with the copper and the scales had its statutory 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.” Reflection on the import and comprehensiveness of these words led the pontifical interpreters to the conclusion that there was nothing in them to prevent the direct institution of an heir in the course of the verba muncupata 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 declaration 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 embody 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 witnesses, folded and tied up in the usual manner, declaring that they contained the record of his last will.
Gaius 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 according to the statute (quo tu jure testamentum facere possis secundum legem publicam).” The meaning of the words “in my keeping (endo custodelam meam)” is not quite obvious; they are probably remnants of an older style, but 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 mancipate it anew to a different purchaser, and nuncupate fresh testamentary writings. The nuncupation by the testator 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 testator had set down in detail in his testamentary tablets he 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 witnesses, the seals being outside according to the early fashion.[5]
Although this testament with the copper and the scales was justified in the first instance by the provision of the XII. Tables as to the effect of nuncupative words 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 esta. Upon the words uti legassit the widest possible meaning was put by the interpreters: not only was a testator held entitled on the strength of them to appoint tutors to wife and children, to enfranchise slaves and make bequests to legatees, but he might
- ↑ Hypothecary rights were unknown until near the end of the Republic. But Festus (s.v. “Nancitor”; see Bruns, Fontes, 6th ed., iii. 16) speaks of a provision in the Cassian league between Rome and the Latin states of the year 262 U.C.—“ Si quid pignoris nasciscitur, sibi habeto”—which may suggest that the Romans at this period were not altogether unacquainted with pledge or pawn of movables as a transaction of some value de facto if not de jure.
- ↑ See Girard, Manuel de droit romain, 4th ed. p. 800. On the “uti legassit” law of the Tables see ibid. p. 782, and cf. Cuq, Institutions Juridiques, 2nd ed. pp. 124-125.
- ↑ The comitia, Gaius tells us (ii. § 102), met only twice a year to sanction testaments. In Mommsen's view, Röm. Chronologie (1859), pp. 241 seq., these days were the 24th of March and the 24th of May.
- ↑ Cic. De Orat. i. 57, § 245.
- ↑ On the above passage of Gaius, see Sohm, Inst. § 99.
