Latin
Ancient Law, lines 2.1.247-2.1.249
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.247-249
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The Testament to which the pedigree of all modern Wills may be traced is not, however, the Testament executed in the Calata Comitia, but another Testament destined to compete with it and destined to supersede it. The historical importance of this early Roman 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 in legal history, there are signs that, like almost all the great Roman institutions, it was the subject of contention between the Patricians and the Plebeians. The effect of the political maxim, Plebs Gentem non habet, "a Plebeia cannot be a member of a House," was entirely to exclude the Plebeians from the Comitia Curiata. Some critics have accordingly supposed that a Plebeian could not have his Will read or recited to the Patrician Assembly, and was thus deprived of Testamentary privileges altogether. Others have been satisfied to point out the hardships of having to submit a proposed Will to the unfriendly jurisdiction of an assembly in which the Testator was not represented. Whatever be the true view, a form of Testament came into use, which has all the characteristics of a contrivance intended to evade some distasteful obligation. The Will in question was a conveyance inter vivos, a complete and irrevocable alienation of the Testator's family and substance to the person whom he meant to be his heir. The strict rules of Roman law must always have permitted such an alienation, but, when the transaction was intended to have a posthumous effect, there may have been disputes whether it was valid for Testamentary purposes without the formal assent of the Patricia Parliament. If a difference of opinion existed on the point between the two classes of the Roman population, it was extinguished, with many other sources of heartburning, by the great Decemviral compromise. The text of the Twelve Tables is still extant which says, "Pater familias uti de pecunia tutelave rei suae legassit, ita jus esto" --a law which can hardly have had any other object than the legalization of the Plebeian Will.