V. But a gift from the husband to the wife became CHAP. valid at his death, so far that the heir could not recall it where the donor had not done so in his lifetime1. Father and A gift from a father to his unemancipated son Between was also invalid on account of the Unitas persona, Son. and at the death of the father would go to the Heres, unless he made it a legacy to the son in his will. Besides those methods of acquiring property by the Civil law which we have now explained, viz. mancipatio, usucapio, præscriptio, and donatio, the following must also be noticed, though they are omitted by Dr Hallifax. These are In jure cessio, Sub corona emptio, Auctio, Adjudicatio, and Lex. cessio. In jure cessio. This was, in fact, the conveyance In jure of property from one to another by means of a fictitious suit. Three persons were concerned in the ceremony-the sham plaintiff, the sham defendant, and the Prætor. The plaintiff, who was either vendee or donee, vindicabat rem. The defendant, who was vendor or donor, cedebat rem, and the Prætor, in whose presence this was done, addicebat, decreed that the property belonged to the plaintiff. This gave the vendee or donee the strongest legal title he could acquire. emptio. Sub corona emptio. This was the public sale Sub corona of prisoners and plunder taken from the enemy, and gave the buyer full legal possession3. Auctio was nothing but the modern sale by Auctio. auction. Qui plurimum augeret, he who bid the highest had the lot knocked down to him. These two last-mentioned modes of acquisition necessarily took place before a number of witnesses, which gave the transaction sufficient notoriety. Adjudicatio. Here property was acquired, or Adjudicaaccurately defined, by the decision of a judge, and 1 C. v. 16. 35. 3 Hein. Ant. 2. i. 24. 2 Ulp. Fr. 19. 9; Gai. II. 24. 4 Id. II. I. 25. tio. II. BOOK principally applied to the three actions, 1. Familiæ erciscunda, the dividing an estate among a certain number of coheirs. 2. Communi dividundo, the apportioning the property of partners according to their respective shares. 3. Finibus regundis, settling the boundaries of estates. By this, property immediately vested in the person to whom it was adjudged'. And, lastly, Lege. A legacy is an example of this. If the testator leave a Lege. legacy in a will rightly made, it vests by law in the legatee at his death. 1 Ulp. Fr. 19. 16. CHAPTER VI. Of Succession by Testament. VI. 3. PROPERTY naturally ceases at the death of CHAP. the proprietor, but by the civil law it may be continued by him after his decease, in such persons as he shall expressly name, provided he strictly observes those forms and ceremonies which the law deems requisite; and, therefore, a testament in the Roman law is the legal declaration of a man's intentions, which he wills to be performed upon the event of his death, with the direct appointment of an heir. Ulpian thus defines a testament: Testa- Definition mentum est mentis nostræ justa contestatio, in id of a tessolenniter facta, ut post mortem nostram valeat1; the force of which definition the reader will better understand when he has considered the formalities required by the law when Ulpian wrote. tament. Wills would naturally exist in every community long before the Civil law invested them with those legal formalities, which have been imposed for the purpose of preventing fraud, and insuring the observance of the testator's Ultima voluntas. According to Vinnius, testaments have their Origin of origin from the law of nations, but derive their forms from the Civil law. testaments. Before the Twelve Tables the Roman Law did not recognize the right of private testamentary disposition. The law prescribed the rule of succession, which it was not competent for a private citizen to alter, because nihil tum naturale est Testaments before the quam eo genere, quidve dissolvere quo colligatum est3; 12 Tables. and, therefore, it was necessary for a childless 1 Ulp. Frag. xx. I See also Modestinus. D. XXVIII. I. I. 3 D. L. 17. 35. IV. BOOK citizen to obtain the sanction of the legislature to constitute a stranger successor to his estate. This was done in the Comitia Calata, before the whole legislative body, the Pontifices being pre 1. In comitiis calatis. cinctu. tum per æs before 12 Tables. sent. The presiding magistrate put the question in this form: Velitis jubeatis quirites uti L. Valerius L. Titio tam jure legeque filius sibi sit quam si ex eo patre matreque familias ejus natus esset utique ei vita necisque in eum potestas sit uti patri endo filio 4 Hæc ita uti dixi ita vos Quirites rogo1. As it was a matter of no importance to any one, but the proposed successor, how the estate of Lucius Titius was disposed of, the vote passed as a matter of course. The Comitia for making wills were held twice a year2. Coeval with this form of testament 2. In Pro- was that made by soldiers in Procinctu stantes, in marching order, preparing for battle; they named their heirs in the hearing of three or four witnesses, and these wills were valid as long as the expedition lasted. Gaius informs us that another mode of Testamen making a will existed, called per æs et libram, and et libram which was contemporary with those made in comitiis and in procinctu. Since the former could only be made twice a year persons in fear of imminent death mancipated their estates to some friend per æs et libram requesting him, who was called familiæ emptor, to dispose of it according to their directions after their death. This person was heres, and administered the estate according to the directions received from the deceased; but, this private arrangement could not have been recognized as a will by the law before the time of the Twelve Tables. The free right of private testamentary disposition dates from the year U.c. 304. The Twelve Enactment Tables declared as follows:-Paterfamilias uti legassit super familia pecunia tutelave suæ rei ita jus esto. The execution of a will is a most essential of 12 Tables. 1 Hein. Ant. II. 10. 3: 2 Gai. II. 101. 3 Id. 4 Id. 102. VI. part of it, but the above laconic law was altogether CHAP. silent on that point, and therefore it devolved upon the Jurisconsulti to devise the ceremonial formalities which the testator should be bound to observe if he wished his will to be valid. They adapted the existing mode of transfer per æs et libram, of which Gaius speaks, to the first legal private will of the Romans, which was therefore called Testamentum per æs et libram. tum per æs Tables. There were present at the ceremony the Fami- Testamenliæ emptor, the imaginary purchaser of the here- et libram, ditas, the Libripens, the Antestatus, and five wit- after 12 nesses, Roman citizens of full age, in whose presence How made. the sale took place. The sale having been duly made per æs et libram, the testator then made his nuncupatio testamenti in the presence of the witnesses in this form: holding up the waxed tablets in his hand upon which he had written his will, he said as follows: Hæc uti in his tabulis cærisve scripta sunt, ita do, ita lego, ita testor, itaque vos Quirites testimonium præbitote1. The antestatus then stepped forward and touched the ears of the witnesses; but neither their seals nor signatures were required. It was therefore like the ceremony of mancipation in which the hereditas was mancipated to the familia emptor, who was an imaginary purchaser like the Pater fiduciarius. We have observed that before the Twelve Familiæ Tables the familia emptor performed the part of Emptor. heres, and administered the testamentary bequests of the Paterfamilias, but after the Twelve Tables he became a mere man of straw as necessary for the formal ceremony of the mancipatio per as et libram'; but the will then contained the name of him who was appointed by the testator as heres, and who administered the estate of the deceased. tim Præ In process of time the Prætor introduced a Testamenchange. The formal mancipation was discontinued, and the testator nuncupabat testamentum in the |