We know too little of the older law of Civil Process to be able to
strike the balance of advantage and disadvantage between the different
classes of remedies supplied by the Praetorian Tribunal. It is certain,
however, that, in spite of its many defects, the Mancipatory Testament
by which the _universitas juris_ devolved at once and unimpaired was
never entirely superseded by the new Will; and at a period less
bigoted to antiquarian forms, and perhaps not quite alive to their
significance, all the ingenuity of the Jurisconsults seems to have
been expended on the improvement of the more venerable instrument. At
the era of Gaius, which is that of the Antonine Caesars, the great
blemishes of the Mancipatory Will had been removed. Originally, as we
have seen, the essential character of the formalities had required
that the Heir himself should be the Purchaser of the Family, and the
consequence was that he not only instantly acquired a vested interest
in the Testator's Property, but was formally made aware of his rights.
But the age of Gaius permitted some unconcerned person to officiate as
Purchaser of the Family. The heir, therefore, was not necessarily
informed of the succession to which he was destined; and Wills
thenceforward acquired the property of _secrecy_. The substitution of
a stranger for the actual Heir in the functions of "Familiae Emptor"
had other ulterior consequences. As soon as it was legalised, a Roman
Testament came to consist of two parts or stages--a conveyance, which
was a pure form, and a Nuncupatio, or Publication. In this latter
passage of the proceeding, the Testator either orally declared to the
assistants the wishes which were to be executed after his death, or
produced a written document in which his wishes were embodied. It was
not probably till attention had been quite drawn off from the
imaginary Conveyance, and concentrated on the Nuncupation as the
essential part of the transaction, that Wills were allowed to become
_revocable_.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account