When we pass from intestate to testamentary succession our difficulties in ascertaining the state of the law at the time of the XII Tables become much greater. We know that a will of some sort existed, and this is in itself a noteworthy fact, for most peoples have not yet invented a will at a parallel stage in their legal development. The existence of a will means that a man's power over his property extends beyond his lifetime, that he can take it away from those to whom the law would give it at his death and say that someone else is to have it. We are so accustomed to this extreme development of the right of property that it seems natural to us, but it is in fact a development which comes as a rule only late in a people's legal history. We know also that the XII Tables dealt with testamentary before intestate succession, and that throughout their history the Romans continued to regard testamentary succession as normal. Beyond these facts however all is more or less plausible conjecture. We can tabulate the chief points on which there is difference of opinion as follows.
- To what type of will did the words in the XII Tables refer?
We know from Gaius that "in the beginning there were two kinds of will, one made comitiis calatis, the other in procinctu". The former was made in the comitia curiata, summoned twice a year for the purpose probably under the presidency of the pontifex maximus and known as the comitia calata. The testamentum in procinctu was made when the citizens were met, not in the assembly, but in military array, "for", says Gaius, "procinctus is the host ready and armed". "Thus", he continues, "they made the one sort of will in peace and ease and the other when they were about to proceed to battle". It appears from other sources that the moment for making the will in procinctu was between the two takings of the auspices, and that the citizen-soldier made it in the hearing of three or four comrades. To these two public forms of will was afterwards added a private form, that per aes et libram (mancipatory will) which consisted of the mancipation of the whole of the testator's fortune at a nominal price to a friend (hence called familiae emptor) who was asked to dispose of the property after the testator's death in accordance with his instructions. At first an expedient adopted in cases of emergency when there was no time to wait for the next meeting of the comitia calata, the mancipatory will developed into a true will and was in the later republic, and still in classical times, the usual form.
In all probability, though we cannot be certain, the mancipatory will was not yet in existence at the time of the XII Tables and the famous words about wills referred to the public forms alone. The chief reasons on which this now generally accepted view is based are: (a) Gaius says of the mancipatory will that "it was added to the earlier forms". As the Romans always regard the law of the XII Tables as fundamental, this way of speaking indicates that the mancipatory will is a subsequent introduction. (b) The better versions of the XII Tables speak only of dispositions over the pecunia, not the familia, so that it is unlikely that they can have referred to a proceeding in which the central point was the mancipation of the familia. (c) In the formula of the mancipatory will occur the words secundum legem publicam; these are almost certainly a reference to the XII Tables, which must consequently have been in existence already when the mancipatory will was invented. (d) If it had been referred to in the XII Tables it would have been the first will free from pontifical interference, but Gaius does not mention this advantage.
- Was the part played by the people in the comitial will that of legislators or merely that of witnesses?
At first sight it would seem obvious that their part was that of legislators, i.e. that they had to ratify by their votes the will which the testator proposed to make. A will generally means an interference with the legal rights of a man's family, or gens, to this property after his death, and it seems natural enough that such an interference should first of all have been allowed only if sanctioned by the sovereign people itself in a sort of private Act of Parliament, just as was an adrogation, where voting certainly took place. Many scholars are however of the opposite opinion and think that there was no voting and that the people were summoned only to witness the testator's declaration. The chief arguments for this view are: (a) The word testamentum itself is connected with testis, a witness, and the formula of the later mancipatory will, which is in all probability taken from the comitial will, includes an appeal to witnesses –ita do ita lego ita testor, itaque vos, Quirites, testimonium mihi perhibetote–. (b) According to Labeo the comitial will was made in populi contione, and there was never any voting in a contio.
Two intermediate opinions are also possible. One is that the function of the people was originally legislative but degenerated later into that of witnessing merely, the other that the words of the XII Tables dispense the testator from the necessity of securing the people's consent to mere particular gifts to individuals (legacies), while leaving him still bound to obtain it if he wished anyone other than his natural successor to succeed him as heres.
- Was the comitial will one in which, as in the will of the developed law, a universal successor (heres) was appointed, or did it merely contain legacies, i.e. particular dispositions?
To make this question clear it is necessary to say something of the highly important distinction which exists in the Roman law of historical times between the heir (or "universal successor") and the legatee. In historical times, when a man dies intestate his successor according to the rules of intestacy becomes his heres, that is to say he takes over the legal position of the deceased, all his rights and duties (so far as they are transmissible at all) as a single whole; the heres becomes owner of the things which the deceased owned, he becomes creditor where the deceased was creditor and debtor where the deceased was debtor. The position is similar where there are several heredes, except that in each case the right or the duty is necessarily divided between them. Thus if A dies intestate leaving two sons (sui heredes) B and C, B and C will not get each of them certain particular things that belonged to A but will be co-owners of every single thing that he owned; they will each be entitled to receive a fraction of every debt owed to the deceased, and each be liable for a fraction of every debt, and liability for debts, it must be understood, is not limited to the value of the assets. If the deceased did not leave enough property to pay his debts, the heirs must pay them out of their own pockets. Now when a man makes a will he must nominate one or more heredes, people who will be universal successors in exactly the same way as the intestate heirs; unless it contains such an "institution" of heirs the will is utterly void; but he may, if he wishes, also make specific gifts called "legacies" (legata) to particular individuals, who take only the specific thing or right bequeathed to them, having no share in the other rights or liabilities of the deceased. Such a legacy is always the taking away from the heres of something which would otherwise go to him. A testator may also appoint a guardian (tutor) for his wife (if in manu) and his children, and may manumit his slaves.
Our question is whether the comitial will was already of the same nature as the will of historical times in that it necessarily included the institution of an heir, or merely consisted of legacies.
In the opinion of the last generation of scholars, represented, for instance, by Maine, there was (in spite of important differences in detail) no doubt but that the Roman will was from the beginning the appointment of a universal successor. Maine starts from the point of view that in primitive law the individual counts for nothing, that the unit in the state is not, as in more advanced systems, the individual, but the family. The family is a corporation resting on the religious basis of a common cult of which the paterfamilias is chief priest. All property is family property and, though it may be at the disposal of the paterfamilias, he is not owner of it but trustee or administrator on behalf of all the members. It is the paterfamilias too who represents the family in all its dealings with the state and with other families, being responsible, for instance if a member of the family wrongs a member of another family. When he dies, there is no succession to him in the modern sense; the corporation continues; it merely has a new head. Maine thus sees the origin of the will in the appointment of a new head when there is no one to succeed by right of blood, and the will is thus, lie the artificial creation of blood-relationship by adoption, an institution for perpetuating the family corporation and necessarily, from its inception, a method of universal succession.
In its main conclusion (though not in its detail) Maine's view is still the prevailing one, but mention must be made of an entirely different opinion which is held by some modern scholars, and especially by Lenel. According to Lenel the comitial will had no connection with universal succession but was merely a collection of particular dispositions or legacies. At the time of the XII Tables, he thinks, the only true heres was the successor on intestacy; and the possibility of creating a similar universal successor by will did not come until a late stage in the development of the mancipatory will, when the familiae emptor ceased to have any real importance as executor of the wishes of the deceased and the mancipation to him became a mere piece of ceremonial necessary for passing the rights and duties under the will to the heir mentioned in the written tablets. This change, Lenel thinks, had not yet taken place in the time of Plautus, in whose plays there is, according to his view, no trace of the appointment of an heir by will (heredis institutio). Among the chief arguments in favour of Lenel's view are the following: (a) The fragment of the XII Tables dealing with wills uses the word legare, which of course means, at any rate in later Latin, "to give a legacy"; had the institution of an heir been essential this word could not have been chosen. (b) The words of the "nuncupation" used in the mancipatory will are, as is agreed, probably copied from those of the comitial will, but they too are appropriate only to the giving of legacies, not to the institution of an heir. (c) The solution which supposes that the words uti legassit etc. and merely intended to grant freedom from comitial control in the matter of legacies, while the institution of an heir is still subject to the consent of the assembly, is impossible because this would have meant that a testator might in fact have made the control of the assembly nugatory by giving away all or nearly all his property in legacies. (d) On the usual theory that institution of an heir was a necessary part of the will from its inception, Roman law is unique; no other early system of law knows of a universal succession independent of blood relationship both real and fictitious (i.e. by adoption). What is found both in Greek and in early Germanic law is that testamentary dispositions begin by being of two kinds. On the one hand there is adoption which enables a childless man to provide himself with an heir who will take the position of a natural son, and on the other individual gifts of particular things made during a man's lifetime but taking effect only at his death. If we suppose the comitial will of Roman law to have consisted only of legacies we have in it a parallel to the individual gifts of Greek and Germanic law, whereas the parallel to the adoptions of those systems is to be found in the Roman adrogatio, the method by which a man could, with the consent of the pontiffs and the comitia curiata, take another person into his family as his son and so make him his heir.
In spite of the eminence of its author, Lenel's thesis has not found general acceptance. The great difficulty is to see how, on his assumption as to its origin, the Roman will ever developed the characteristics which we know it to have possessed in the late law, in particular how the rule that the validity of the whole depends on that of the nomination of the heir came to be regarded as so fundamental. In later law too it is a fundamental rule that the heir alone is liable for debts and that his liability is unlimited, whereas in Lenel's view originally all legatees were liable but only up to the value of what they received; there must thus, according to him, have been a complete change in two essential points between the earlier and later periods, and yet it is extraordinarily difficult to believe that any system, once having the principle of liability limited to the assets, should have thereafter adopted the highly inconvenient one on unlimited liability; one of the most important of the innovations in the latest stage of Roman law under Justinian consisted precisely in the possibility of limiting the liability of the heir to the value of the assets he received, and was introduced because of the inconvenience of the other system. It is also very difficult to believe that the peremptory heres esto (the words by which the heir is appointed) originated, as Lenel thinks, in the mancipatory will, which was an expedient invented by practitioners for cases in which it was not possible to use the comitial form, and not in the original comitial form itself, where in a quasi-legislative act such a form appears quite natural. To Lenel's argument, that freedom to give legacies would have made nugatory any limitation of the testator's right to choose his heir as he wished, it may be answered that the same difficulty must have occurred in Athenian law, where a man with children could not disinherit them, but could make a "legacy will"; it was presumably a matter for judicial discretion in each case to decide whether the amount given away in legacies was so great as to amount to a disinheritance of the children.
Very different from Lenel's view is that of Bonfante. For Bonfante the appointment of an heir is, in accordance with the usual view, an integral part of the original will, and for him, as for Maine, the function of the will was to provide for the distribution of property (except incidentally) but to appoint a new chief who should succeed to the "sovereignty" of the testator. Maine, however, thought that the will was not, even at Rome, a primitive institution, and that it originated in the appointment of a stranger where there was no son who would succeed by right of blood, whereas Bonfante regards the will as extremely ancient, and as having for its original purpose the designation of one son out of several as the successor. It thus took the place which in some other systems is taken by the principle of primogeniture. Designation by a predecessor always played an important part in the succession to public office at Rome, and since the chieftainship was analogous to a public office, it is natural to suppose that the Romans, among whom primogeniture was quite unknown, used designation to provide for this case too. Only thus, in Bonfante's opinion, can we account for the predominance of testamentary over intestate succession even in the earliest times, and only on the supposition that the heir succeeds to a type of sovereignty can we explain the rule nemo pro parte testatus, pro parte intestatus decedere potest. This maxim has no justification in a system which looks at succession merely from the point of view of property, but it is perfectly intelligible that a family cannot have two heads, one appointed by will and the other by direct operation of law. Legacies are quite a different matter; they are a development of donationes mortis causa and it is to them that the words of the XII Tables, uti legassit etc., are to be applied. Not until long afterwards did it become possible to appoint an heir who was not a member of the family.
Bonfante's theory has the great merit of accounting for the will as an immemorial institution without the assumption that there could be, even in primitive times, a "universal successor" unconnected with the deceased by blood or adoption, but it raises as many difficulties as it solves. It cannot, for instance, explain the rule that sui must be disinherited expressly if they are not to succeed. This rule must in fact rest on an original right to succession vested in all sui, which could only be defeated by a direct exercise of despotic power by the head of the family. On Bonfante's theory that succession of one son under a will was normal, there can have been no such right, and the further rule that the birth of a suus (postumus) after the making of a will, upset it, becomes quite incomprehensible. If a man had made a will appointing one son, it would have been nonsensical to invalidate that will because a child was born whom no one would certainly think of appointing to "sovereignty" at least if others were available, until he had grown up. The successoral rights of woman are also difficult, if not impossible, to explain on Bonfante's theory. The riddle is unsolved, but it still seems more probable that with the Romans, as with other peoples, the will, in so far as it appoints a "universal successor", could only be made originally where there was no natural descendant to succeed as of course.
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- The law of the family and of succession at the time of the XII Tables
+ Marriage
+ Patria potestas
+ Guardianship
+ The agnatic family
+ Intestate succession
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 125 - 134.
