Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

TESTAMENTUM. TESTAMIENTUM. I 115
Hand said: " Haec ita ut in his tabulis cerisque! nor is it probable that wills were written: it does
(or cerisve) scripta sunt ita do ita lego ita testor not appear that a written will was ever required
itaque vos Quirites testimonium mihi perhibetote." I by law. The testator's disposition of his property
This was called the Nuncupatio or publishing of would be short and simple in those early times,
the will; in other words the testator's general con- and easily remembered; but there would be greater
firmation of all that he had written in his will. security for an unwritten will made at the Comitia
As the Familiae emtio was supposed to be a real than for an unwritten will made per aes et libram;
transaction between the Emtor and Testator, the whence in course of time Tabulae became a usual
testimony of their several families was excluded, part of the ceremony of a will.
and consequently a person who was in the power As we are ignorant of the true nature of private
of the Familiae Emtor, or in the power of the property among the Romans, viewed with respect
Testator could not be a witness. If a man who to its historical origin, we cannot determine with
was in the power of another was the familiae certainty such questions as these respecting testaemtor, it followed that his father could not be a mentary disposition, but it is of some importance
witness, nor his brother, if the brother was in the to exclude conjectures which are devoid of all evipower of the father. A filiusfamilias who after his dence. Rein (Das RImz. Privatrechlt, p. 373, note)
Missio disposed of his Castrense peculium by testa- has referred to the modern writers who have disment, could not have his father as witness nor any cussed this subject: he has adopted the opinion of
one who was in the power of his father. The samne Niebuhr, according to which " as the property of
rules applied to the libripens, for he was a witness. an extinct house escheated to the cury, that of an
A person who was in the power of the heres or of extinct cury to the publicum of the citizens at large,
a legatee or in whose power the heres or legatee the consent of the whole populus was requisite; and
was, or who was in the power of the siae person this is the origin of the rule that testaments were
as the heres or a legatee, and also the heres or a to be made in the presence of the pontiff alid the
legatee could all be witnesses; for as Ulpian ob- curies." (Hlist. of Rome, vol. ii. p. 338.) But there
serves, there is no objection to any number of wit- is no evidence of the assertion contained in the first
nesses from the same family. But Gaius observes part of this passage; and if this rule as to escheat
that this ought not to be considered as law with is admitted to be a fact, the rule that testaments
respect to the heres, and him who is in the power must be confirmed by the pontiff and curies is no
of the heres and him in whose power the heres is. necessary conclusion. Niebuhr fuirther observes
According to Gaius, wills were originally made that " the plebeian houses were not so connected;
only at Calata Comitia, and In Procinctu. The but the whole order hald a public coffer in the
Comitia were held twice a year for the purpose of temple of Ceres; and when the army, being asmaking wills, and a will not made there was in- sembled in centuries, either on the field of Mars,
valid. It is sometinmes assumed that these Comitia or before a battle, passed the last will of a soldier
were held in order that the Gentes'might consent into a law, it thereby resigned the claims of the
to the testamentary disposition, in which it is im- whole body to the property." This assertion also
plied that they might refuse their consenlt. But is not supported by evidence, and is therefore a
there is no direct evidence for this opinion, and it mere conjecture against the probability of which
derives no support from a consideration of the there are sufficient reasons.
mode of disposing of property per aes et libramin. Th'l'e Testamentum in procinctu is, for anything
The form per aes et libram was a fornm introduced we know to the contrary, as old as the testament
in cases when the will had not been made at the at the Calata Comitia. In this case the forms of
Calata Comitia nor In Procinctu. It had effect the Calata Comitia were of necessity dispensed
because it was an alienation of property inter ~vivos with, or the soldier would often have died inteswithout the consent of any parties except the buyer tate. This power of disposition in the case of a
and seller, which alienation must be assumned to Testamentumn in procinctu could not depend on the
have been a legal transaction at the time when this consent of the whole populus, in each particular
new form of will was introduced. This new form instance; for the nature of the circumstances exwas a sale and the familiae emtor undertook a c!uded such consent. I-e had therefore full power
trust; he resembled the heres fiduciarius of later of disposition In Procinctu, a circumstance which
times. It is probable enough that there were leads to the probable conclusion that the will made
originally no means of compelling him to execute at the Calata Comitia differed only from the other
the trust, but opinion would be a sufficient gua- will in its forms and not in its substance. Some
rantee that the testator's will would be observed, writers assert that the Testamentum in Procinctu
and thus would arise one of those parts of Law could only be made after the auspices were taken,
which had its source in Mos. Now when the which gave the testament the religious sanction,
Romans introduced new legal forms, they always and that when the auspices ceased to be taken in
assimilated them to old forms, whence we have a the field, this kind of testament ceased to be made;
probable conclusion that the form of mancipatio was and that the military testaments mentioned about
also observed at the Calata Conlitia; and if so, the the latter part of the republic (as by Caesar, Bell.
consent of the Gentes was not necessary, unless it GCall. i. 39; Vell. Pat. ii. 5, &c.) were not the same
was necessary to every alienation of property, which kind of testaments, but purely military testaments
in the absence of evidence must not be assumed, made without any form, which in the Imperial
though such may have been the fact. The dif- period became in common use and of which Julius
ference then between the will made at the Calata Caesar probably introduced the practice. (Dig. 29.
Comitia and the will per aes et libram, consisted tit. 1. De Testam7zeeto Militis.) Cicero however
in the greater solemnity and notoriety of the speaks of the will In procinctu (de Or. i. 53) as
former, and the consequent greater security that the then in use, and he describes it as made " sine
testator's intentions would be observed. Written libra et tabulis," that is, without the forms whichu
wills are not spoken of with reference to this time, were used after the introduction of the testamenturn