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Progress of the Law.

ALIENATIONS to take effect after death, can only be the practice of an advanced period in the progress of society; after the hand that held and maintained the possession is withdrawn, to permit the will of the proprietor to direct the succession, implies a conception of the sacredness of property, and a state of order and security which does not exist in the beginnings of nations (1). It appears

(1) Omnino rationi naturali repugnat, alicui jus esse statuendi de rebus suis ita, ut voluntas post mortem valere incipiat; ubi jam velle desiit et mors omnia solvit. Hert. Elem. Polit. pars 2. sect. 11. § 53. Vid. Vinn. Comm. tit. de test. ordin.


Progress of the testamenti factio, in the Roman jurisprudence.

doubtful whether among the Romans, before the introduction of the laws of the twelve tables, or among the Athenians before the legislation of Solon, the direct testamentary disposition even of moveables was allowed; and among the ancient Germans it appears that the children succeeded to the possessions of the parent, and that he had no power to alienate them by his will. If he had no children, the steps in the order of inheritance and succession were the patres patrui avunculi (2).

(2) The succession to the heirs of the body, and in case of the defect of such representatives, to the next in proximity of blood, if not a law of nature, seenis so to correspond with its dictates, that history hardly carries us back to a time when the notion and admission of this claim did not prevail among mankind. The suggestions of a common feeling appear, therefore, to have made this an universal rule of transmission, and to have established it in communities widely separated by time and place. Thus the representation in the channel of blood and proximity seems to have had its foundation higher than any positive institutions, though to positive institutions we must of course refer the modifications of this rule of succession; which, indeed, has been so variously ordered, that no two nations exactly resemble each other in their institutions regarding it.

That the right of controuling this succession by the private will of the possessor, was the product of an improved period of legislation, there is much concurrent testimony to shew. Till the legislation of Solon, the Athenians did not possess this privilege, as it appears from many authorities, particularly from Plutarch, in his life of Solon, page 196, edit. Bryan, and the orations of Isæus, especially de Philoctemonis Hereditate; nor according to Selden de Success de bon. Hebr. c. 24. did it exist among the ancient Jews; nor as we learn from Tacitus de mor. Germ. c. 20, among the Germans in his day. The tenderness which continued to prevail among the Romans for the legal heir is strongly displayed in their provisions by the laws

If the power of disposing of land by will was exercised by our Anglo-Saxon ancestors, it seems

Furia, Voconia, and Falcidia, and more pointedly perhaps by their remedy of querela inofficiosi testamenti, wherever a will was made against the order of natural affection, without reasonable cause.

With respect to the question how far the right of disposition by will existed among the Romans, before the laws of the Twelve Tables, there seems to be much variety of opinion. The text of Justinian propounds the order in which the form of the testamenti factio proceeded, which the student will consult, with pleasure, in the Commentary of Vinnius, edited, with notes, by Heineccius, in the title de Testamentis Ordinandis. It appears that the most ancient mode of making a testament, among the Romans, was, by converting a man's private will into a public law, for such seems to have been the object and intention of the promulgation or celebration of a testament in the calatis comitiis, i. e. in the presence of the Roman people summoned before the Sacerdotal College per curias. And, according to Heineccius, these assemblies were not convened specially for the purpose of giving sanction to wills, sed legum ferendarum magistratuumque creandorum causa immo et ob alia negotia publica, bellum, pacem, judicia, &c.

Thus was this private disposition by testament of the property of an individual promulged and ratified in the same manner as a public law; and for this reason the testamenti factio has, in the text of the imperial law, been said to be non privati sed publici juris, D. 28. c. 3. and again by Ulpian, it is said, legatum est, quod lègis modo-testamento relinquitur, Ulp. tit. 24. § 1.

Another form of testament which existed antecedently to the laws of the Twelve Tables, was that called testamentum procinctum or in procinctu, which was the privilege only of those who were on the eve of going to battle, or girt for the war, with the uncertainty on their minds of their ever returning, and was among the immunities in regard to property conferred by the Romans upon the defenders of their country.

But as the comitia were held but twice a year, so that a man might be surprised by sickness without having the opportunity of thus solem

much less likely that it originated with themselves, than that they adopted it from those laws which

nizing his last will, and the attendance upon these public assemblies was often difficult or impossible to the aged and infirm; and furthermore, as women were by these forms precluded from making any testament, as not having any communion with these comitia, according to Gellius, lib. 5. c. 19, a third method was struck out, which might facilitate the ultimate disposal of private property to all descriptions of persons, otherwise competent; and this last method was called the testamentum per as et libram, which was a fictitious purchase of the family inheritance or heirship, by money weighed in a balance, and tendered by the intended inheritor to the testator, before witnesses.

Thus it is said to be imago vetusti moris in venditione atque alienatione rerum mancipi, quæ uno verbo, mancipatio dicitur, nimirum ut is in quem ha res transferebantur, eas emeret domino ære et libra, appenso ei vous xaqw nummo uno. And it seems that this fictitious proceeding was still retained after the promulgation of the law of the Twelve Tables had authorized the making of wills by the clause of paterfam. uti legassit &c. ita jus esto; for it was still regarded as necessary, to raise the will of a private man to a level with the laws of the state, that it should take the shape of a strict legal transaction inter vivos; for testandi de pecunia sua legibus certis facultas est permissa, non autem juris dictionis mutare formam, vel juri publico derogare cuiquam permissum est. C. 6. 23. 13. The two former methods, by the testamentum in procinctu, and calatis comitiis, were thrown into total disuse, by the testamentum per æs et libram ; but this last form of willing again made way for others of a more convenient description.

The methods above-mentioned were referible to the jus civile, or as we express it, the law of the land; but from the edict of the prætor, other forms at length were brought into practice, by virtue of which jus honorarium, the mancipatio, and the weighing and delivering of money, were dispensed with, and, in their stead, the solemnity of signing by seven witnesses, was introduced; the presence only and not the signature of witnesses being necessary by the jus civile.

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At length, however, by gradual use and progressive alterations, as the text of Justinian informs us, the lex pratoria and the jus civile were in some degree, incorporated; and a compounded regulation took place, whereby it became requisite to the valid constitution of a will, that the witnesses should be present (the presence of witnesses being the rule of the jus civile); that they and also the testator should sign, according to the superadded institution of positive law; and lastly, that in virtue of the prætorian edict, their seals should be affixed, and that the number of witnesses should be.


Afterwards, the further solemnity of naming the heir in the testament was added by Justinian, and again taken away by the same emperor, in Nov..119. c. 9. and at length, the excess of testimony was corrected by the canon law in the pontificate of Alexander the Third, by which it was, declared sufficient to, prove a testament by two or three. witnesses, the parochial minister being added; improbata constitutione juris civilis de septem testibus adhibendis ut nimis longe recedente ab eo quod scriptum est—in ore duorum vel trium testium stet omne verbum, Swinb. 64. Deut. c. 18. Matth. c. 18. which reformation obtained the sanction of general usage.

Swinburn says, that this institution has also been reformed by the general custom of this realm, "which distinctly requires no more than two witnesses, so they be free from any just cause of exception;" which observation he repeats in several places of his treatise on wills, on the authority of Linwood, in Statut. Verb. Prob. de Test. l. 3. Provincial Constit. Cant. Bracton also has the following passage: "Fieri autem debet testamentum liberi hominis ad minus coram duobus vel pluribus viris legalibus et honestis, clericis vel laicis ad hoc specialiter convocatis, ad probandum testamentum defuncti si opus fuerit, si de testamento dubitatur." Bract. lib. 32. fol. 61. but these words import a recommendation, and not an imperative rule; and nothing seems now to be better understood, than that a will of personalty needs neither the attestation of witnesses, or the testator's seal or signature; and though written in another hand, yet if proved to

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