The third and last degree came next, in which the inheritancedevolved on the gentiles, that is on the collective members ofthe dead man's gens or House. The House, I have explainedalready, was a fictitious extension of the family, consisting ofall Roman Patrician citizens who bore the same name, and who, onthe ground of bearing the same name, were supposed to bedescended from a common ancestor. Now the Patrician Assemblycalled the Comitia Curiata was a Legislature in which Gentes orHouses were exclusively represented. It was a representativeassembly of the Roman people, constituted on the assumption thatthe constituent unit of the state was the Gens. This being so,the inference seems inevitable, that the cognizance of Wills bythe Comitia was connected with the rights of the Gentiles, andwas intended to secure them in their privilege of ultimateinheritance. The whole apparent anomaly is removed, if we supposethat a Testament could only be made when the testator had nogentiles discoverable, or when they waived their claims, and thatevery Testament was submitted to the General Assembly of theRoman Gentes, in order that those aggrieved by its dispositionsmight put their veto upon it if they pleased, or by allowing itto pass might be presumed to have renounced their reversion. Itis possible that on the eve of the publication of the TwelveTables this vetoing power may have been greatly curtailed or onlyoccasionally and capriciously exercised. It is much easier,however, to indicate the meaning ad origin of the jurisdictionconfided to the Comitia Calata, than to trace its gradualdevelopment or progressive decay.
The Testament to which the pedigree of all modern Wills maybe traced is not, however, the Testament executed in the CalataComitia, but another Testament desired to compete with it anddestined to supersede it. The historical importance of this earlyRoman Will, and the light it casts on much of ancient thought,will excuse me for describing it at some length.
When the Testamentary power first discloses itself to us inlegal history, there are signs that, like almost all the greatRoman institutions, it was the subject of contention between thePatricians and the Plebeians. The effect of the political maxim,Plebs Gentem non habet, "a Plebeia cannot be a member of aHouse," was entirely to exclude the Plebeians from the ComitiaCuriata. Some critics have accordingly supposed that a Plebeiancould not have his Will read or recited to the PatricianAssembly, and was thus deprived of Testamentary privilegesaltogether. Others have been satisfied to point out the hardshipsof having to submit a proposed Will to the unfriendlyjurisdiction of an assembly in which the Testator was notrepresented. Whatever be the true view, a form of Testament cameinto use, which has all the characteristics of a contrivanceintended to evade some distasteful obligation. The Will inquestion was a conveyance inter vivos, a complete and irrevocablealienation of the Testator's family and substance to the personwhom he meant to be his heir. The strict rules of Roman law mustalways have permitted such an alienation, but, when thetransaction was intended to have a posthumous effect, there mayhave been disputes whether it was valid for Testamentary purposeswithout the formal assent of the Patricia Parliament. If adifference of opinion existed on the point between the twoclasses of the Roman population, it was extinguished, with manyother sources of heartburning, by the great Decemviralcompromise. The text of the Twelve Tables is still extant whichsays, "Pater familias uti de pecunia tutelave rei suae legassit,ita jus esto" -- a law which can hardly have had any other objectthan the legalisation of the Plebeian Will.
It is well known to scholars that, centuries after thePatrician Assembly had ceased to be the legislature of the RomanState, it still continued to hold formal sittings for theconvenience of private business. Consequently, at a period longsubsequent to the publication of the Decemviral Law, there isreason to believe that the Comitia Calata still assembled for thevalidation of Testaments. Its probable functions may be bestindicated by saying that it was a Court of Registration, with theunderstanding however that the Wills exhibited were not enrolled,but simply recited to the members, who were supposed to take noteof their tenor and to commit them to memory. It is very likelythat this form of Testament was never reduced to writing at all,but at all events if the Will had been originally written, theoffice of the Comitia was certainly confined to hearing it readaloud, the document being retained afterwards in the custody ofthe Testator, or deposited under the safeguard of some religiouscorporation. This publicity may have been one of the incidents ofthe Testament executed in the Comitia Calata which brought itinto popular disfavour. In the early years of the Empire theComitia still held its meetings, but they seem to have lapsedinto the merest form, and few Wills, or none, were probablypresented at the periodical sitting.
It is the ancient Plebeian Will -- the alternative of theTestament just described -- which in its remote effects hasdeeply modified the civilisation of the modern world. It acquiredat Rome all the popularity which the Testament submitted to theCalata Comitia appears to have lost. The key to all itscharacteristics lies in its descent from the mancipium, orancient Roman conveyance, a proceeding to which we mayunhesitatingly assign the parentage of two great institutionswithout which modern society can scarcely be supposed capable ofholding together, the Contract and the Will. The mancipium, or asthe word would exhibit itself in later Latinity, the Mancipation,carries us back by its incidents to the infancy of civil society.
