第60章

"Emptor" indicates that the Will was literally a sale, and theword "familiae," when compared with the phraseology in theTestamentary clause in the Twelve Tables, leads us to someinstructive conclusions. "Familia," in classical Latinity, meansalways a man's slaves. Here, however, and generally in thelanguage of ancient Roman law it includes all persons under hisPotestas, and the Testator's material property or substance isunderstood to pass as an adjunct or appendage of his household.

Turning to the law of the Twelve Tables, it will be seen that itspeaks of tutela rei suae, "the guardianship of his substance," aform of expression which is the exact reverse of the phase justexamined. There does not therefore appear to be any mode ofescaping from the conclusion, that, even at an era socomparatively recent as that of the Decemviral compromise, termsdenoting "household" and "property" were blended in the currentphraseology. If a man's household had been spoken of as hisproperty we might have explained the expression as pointing tothe extent of the Patria Potestas, but, as the interchange isreciprocal, we must allow that the form of speech caries us backto that primeval period in which property is owned by the family,and the family is governed by the citizen, so that the member ofthe community do not own their property and their family, butrather own their property through their family.

At an epoch not easy to settle with precision, the RomanPraetors fell into the habit of acting upon Testaments solemnisedin 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 andregularly engrafted on the Edictal Jurisprudence. The new orPraetorian Testament derived the whole of its impregnability fromthe Jus Honorarium or Equity of Rome. The Praetor of someparticular year must have inserted a clause in his inauguralProclamation declaratory of his intention to sustain allTestaments which should have been executed with such and suchsolemnities; and, the reform having been found advantageous, thearticle relating to it must have been again introduced by thePraetor's successor, and repeated by the next in office, till atlength it formed a recognised portion of that body ofjurisprudence which from these successive incorporations wasstyled the Perpetual or Continuous Edict. On examining theconditions of a valid Praetorian Will they will be plainly seento have been determined by the requirements of the MancipatoryTestament, the innovating Praetor having obviously prescribed tohimself the retention of the old formalities just so far as theywere warrants of genuineness or securities against fraud. At theexecution of the Mancipatory Testament seven persons had beenpresent besides the Testator. Seven witnesses were accordinglyessential to the Praetorian Will: two of them corresponding tothe libripens and familiae emptor, who were now stripped of theirsymbolical character, and were merely present for the purpose ofsupplying their testimony. No emblematic ceremony was gonethrough; the Will was merely recited; but then it is probable(though not absolutely certain) that a written instrument wasnecessary to perpetuate the evidence of the Testator'sdispositions. At all events, whenever a writing was read orexhibited as a person's last Will, we know certainly that thePraetorian Court would not Sustain it by special intervention,unless each of the seven witnesses had severally affixed his sealto the outside. This is the first appearance of sealing in thehistory of jurisprudence, considered as a mode of authentication.

It is to be observed that the seals of Roman Wills, and otherdocuments of importance, did not simply serve as the index of thepresence or assent of the signatory, but were literallyfastenings which had to be broken before the writing could beinspected.