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liand said : " Haec ita lit in his tabulis cerisque 1 (or cerisve) scripta sunt ita do ita lego ita tester itaque vos Quirites testimonium mihi perhibetote." This was called the Nuncupatio or publishing of the will ; in other words the testator's general confirmation of all that he had written in his will.
As the Familiae emtio was supposed to be a real transaction between the Emtor and Testator, the testimony of their several families was excluded, and consequently a person who was in the power of the Familiae Emtor, or in the power of the Testator could not be a witness. If a man who was in the power of another was the familiae emtor, it followed that his father could not be a witness, nor his brother, if the brother was in the power of the father. A filiusfamilias who after his Missio disposed of his Castrense peculium by testament, could not have his father as witness nor any one who was in the power of his father. The same rules applied to the libripens, for he was a witness. • A person who was in the power of the heres or of a legatee or in whose power the heres or legatee was, or who was in the power of the same person as the heres or a legatee, and also the heres or a legatee could all be witnesses ; for as Ulpian observes, there is no objection to any number of witnesses Jrom the same family. But Gains observes that this ought not to be considered as law with respect to the heres, and him who is in the power of the heres and him in whose power the heres is. According to Gains, wills were originally made only at Calata Comitia, and In Procinctu. The Gomitia were held twice a year for the purpose of making wills, and a will not made there was invalid. It is sometimes assumed that these Comitia were held in order that the Gentes'might consent to the testamentary disposition, in which it is implied that they might refuse their consent. But there is no direct evidence for this opinion, and it derives no support from a consideration of the mode of disposing of property per aes et libram. The form per aes et libram was a form introduced in cases when the will had not been made at the Calata Comitia nor In Procinctu. It had eifect because it was an alienation of property inter vivos without the consent of any parties except the buyer and seller, which alienation must be assumed to have been a legal transaction at the time when this new form of will was introduced. This new form was a sale and the familiae emtor undertook a trust; he resembled the heres fiduciarius of later times. It is probable enough that there were originally no means of compelling him to execute the trust, but opinion would be a sufficient guarantee that the testator's will would be observed, and thus would arise one of those parts of Law which had its source in Mos. Now when the Romans introduced new legal forms, they always assimilated them to old forms, whence we have a probable conclusion that the form of mancipatio was also observed at the Calata Comitia; and if so, the consent of the Genteswas not necessary, unless it was necessary to every alienation of property, which in the absence of evidence must not be assumed, though such may have been the fact. The difference then between the will made at the Calata Comitia and the will per aes et libram, consisted in the greater solemnity and notoriety of the former, and the consequent greater security that the testator's intentions would be observed. Written yvills are not spoken of with reference to this time,
nor is it probable that wills were written : it does not appear that a written will was ever required by law. The testator's disposition of his property would be short and simple in those early times, and easily remembered ; but there would be greater security for an unwritten will made at the Comitia than for an unwritten will made per aes et libram; whence in course of time Tabulae became a usual part of the ceremony of a will.
As we are ignorant of the true nature of private property among the Romans, viewed with respect to its historical origin, we cannot determine with certainty such questions as these respecting testamentary disposition, but it is of some importance to exclude conjectures which are devoid of all evidence. Rein (Das Rom. Privatrecht, p. 373, note) has referred to the modern writers who have discussed this subject: he has adopted the opinion of Niebuhr, according to which " as the property of an extinct house escheated to the cury, that of an extinct cury to the publicum of the citizens a,t large, the consent of the whole populus was requisite ; and this is the origin of the rule that testaments were to be made in the presence of the pontiff and the curies." (Hist, of Rome ^ vol. ii. p. 338.) But there is no evidence of the assertion contained in the first part of this passage ; and if this rule as to escheat is admitted to be a fact, the rule that testaments must be confirmed by the pontiff and curies is no necessary conclusion. Niebuhr further observes that " the plebeian houses were not so connected ; but the whole order had a public coffer in the temple of Ceres ; and when the army, being assembled in centuries, either on the field of Mars, or before a battle, passed the last will of a soldier into a law, it thereby resigned the claims of the whole body to the property." This assertion also is not supported by evidence, and is therefore a mere conjecture against the probability of which there are sufficient reasons.
The Testamentum in procinctu is, for anything we know to the contrary, as old as the testament at the Calata Comitia. In this case the forms of the Calata Comitia were of necessity dispensed with, or the soldier would often have died intestate. This power of disposition in the case of a Testamentum in procinctu could not depend on the consent of the whole populus, in each particular instance ; for the nature of the circumstances excluded such consent. He had therefore full power of disposition In Procinctu, a circumstance which leads to the probable conclusion that the will made at the Calata Comitia differed only from the other will in its forms and not in its substance. Some writers assert that the Testamentum in Procinctu could only be made after the auspices were taken, which gave the testament the religious sanction, and that when the auspices ceased to be taken in the field, this kind of testament ceased to be made; and that the military testaments mentioned about the latter part of the republic (as by Caesar, Bell. Gall. i. 39 ; Veil. Pat. ii. 5, &c.) were not the same kind of testaments, but purely military testaments made without any form, which in the Imperial period became in common use and of which Julius Caesar probably introduced the practice. (Dig. 29. tit. 1. De Testamento Militis.} Cicero however speaks of the will In procinctu (de Or. i. 53) as then in use, and he describes it as made " sine libra et tabulis," that is, without the forms which were used after the introduction of the testamentuin