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

1116 TESTAMENT UM. TESTAMENTU M.
per aes et libram. Thus the Testamentum in Pro- by tlie five representatives. But it is easy to sug-.
cinctu always retained its characteristic of being gest possibilities; less easy to weigh evidence acexempted from legal foorms, but as to the capacity curately and to deduce its legitimate consequences.
of the Testator it was always subject to the same As already observed, there seems to have been
mlules of law as other wills, so far as we know. no rule of law that a testament must be written.
The form of 1Mancipatio owed its origin to posi- The mancipatio required no writing, nor did the intive enactments: it was a form of alienation ac- stitution of a heres, and the number of witnesses
companied with certain public ceremonies, the pre- was probably required in order to secure evidence
sumed object of which was to secure evidence of the of the testator's intentions. Thus it is said (Dig. 28.
transfer. The form of Mancipatio as applied to a tit. 1. s. 21) that the heres might either be made
will was exactly the same form as Mancipatio ap- by oral declaration (nuncupatio) or by writing.
plied to any other purpose: it was an alienation Written wills however were the common form
of the property, and according to strict principles among the Romans at least in the later republican
it must have been irrevocable. It may be con- and in the imperial periods. They were written
eluded then that Roman wills were originally irre- on tablets of wood or wax, whence the word
vocable. It is sometimes assumed that the five " cera" is often used as equivalent to "tabella;'
witnesses to the Testament (cives Romani puzeres) and the expressions prima, secunda cera are equiwere representatives of the five Classes of Servius valent to prima, secunda pagina. The will might be
Tullius. If this is true (which is a mere assump- written either by the testator or any other person
tion) the classes were represented as witnesses with his consent, and sometimes it was made with
only, not as persons who gave their consent to the advice of a lawyer. It was written in the Latin.
the act. Engelbach states: " Mancipation was language, until A. D. 439 when it was enacted that
originally a formal sale in which the publicness of wills might be in Greek. (Cod. 6. tit. 23. s. 21.)
the transaction constituted the essential character- By the old law a legacy could not be given in the
istic. When the seller had transferred to the Greek language, though a fideicommissum could be
buyer the ownership of a thing before the five so given. It does not appear that there was origirepresentatives of the five classes of the Roman nally any signature by the witnesses. The will was
People, this was as valid as any other Lex which sealed, but this might be done by the testator in
was brought before the assembly of the People and secret, for it was not necessary that the witnesses
passed into a Lex." (Ueber die Uszacapion zur Zeit should know the contents of the will; they were
de? Zwi;lf T,/fels, p. 80.) The whole meaning of witnesses to the formal act of mancipatio, and to
this is not clear, but so far as this it is clear and the testator's declaration that the tabulae which he
true: the Testamentum per aes et libram differed held in his hand contained his last will. It must
in no respects as to the capacity of the alienor, from however have been in some way so marked as to
any other Mancipation. Now we must either sup- be recognized, and the practice of the witnesses
pose that the assumed consent of the populus to the (testes) sealing and signing the will became common.
Testamentary disposition at the Calata Comitia, (As to the will of Claudius, see Suetonius, Claudius,
was expressed by a special enactment which should 44.) It was necessary for the witnesses both to
transfer the property according to the Testator's seal (signare), that is, to make a mark with a ring
wish, or that the consent only must have been (annulus) or something else on the wax and to add
given to the transfer, and the transfer must have their names (adscribere). The five witnesses signed
been made in the usual way: the latter is the only their names with their own hand, and their adconceivable case of the two. In assuming this scription also declared whose will it was that they
original necessity of consent on the part ot the sealed. (Dig. 28. tit. 1. s. 30.) The seals and
populus to the testamentary disposition, -we as- adscriptions were both on the outside. A Senatussame that Roman property was originally inalien- consultum, which applied to wills among other inable at the will of the owner. This may be true, struments, enacted that they should be witnessed
but it is not yet shown to be so. and signed as follows: they were to be tied with a
The Twelve Tables recognize a man's power to triple thread (linuon) on the upper part of the
dispose of his property by will as he pleased: " Uti nmargin which was to be perforated at the middle
legassit super pecunia tutelave suae rei ita jus esto." part, and the wax was to be put over the thread
(Ulp. Frag. tit. xi. 14.) It is generally admitted, and sealed. Tabulae which were produced in any
and the extant passages are consistent with the other way had no validity. (Compare Paulus,
opinion, that the new testamentary form per aes S. R. v. tit. 25. s. 6, where impositae seems to be
et libram existed while the two original forms were the true reading, with Sueton. Ner. 17.) A man
still in use. Now in the testamentum per aes et might make several copies of his will, which was
libram there is no pretence for saying that any often done (at vulgo fieri solet, Dig. 31. tit. 1.
consent was required except that of the buyer and s. 47; a case put to Proculus) for the sake of
seller; and the Twelve Tables recognize the testa- caution. Both Augustus and Tiberius made two
tor's power of disposition. If then the form of copies of their wills. (Sueton. Aug. 101, Tiber. 76.)
testament at Comitia Calata subsisted after the When sealed, it was deposited with some friend, or
Twelve Tables, we have, according to the views of in a temple, or with the Vestal Virgins; and after the
some writers, a form of testamenturn to which the testator's death it was opened (resignare) in due
consent of the testator was sufficient and another form. The witnesses or the major part were present,
form in which it was not. There still remains to and after they had acknowledged their seals, the
those who support this opinion, the power of saying thread (linum) was broken and the will was opened
that the consent of the sovereign people had become and read, and a copy was made; the original was
a form, and therefore it was indifferent, so far as then sealed with the public seal and placed in the
concerns this consent, whether the will was made archium, whence a fresh copy might be got, if the
at the Comitia where it would be fully witnessed, first copy should ever be lost. (Paulus, iv. 6.) This
or per aes et libram where it would be witnessed practice described by Paulus may have been of