CASE 171: The Mancipatory Will*
Gaius, Institutiones 2.104
Eaque res ita agitur: qui facit, adhibitis, sicut in ceteris mancipationibus, V testibus civibus Romanis puberibus et libripende, postquam tabulas testamenti scripserit, mancipat alicui dicis gratia familiam suam; in qua re his verbis familiae emptor utitur: “familiam pecuniamque tuam endo mandatela tua custodelaque mea, quo tu iure testamentum facere possis secundum legem publicam, hoc aere,” et ut quidam adiciunt, “aeneaque libra, esto mihi empta”; deinde aere percutit libram idque aes dat testatori velut pretii loco; deinde testator tabulas testamenti tenens ita dicit: “haec ita ut in his tabulis cerisque scripta sunt, ita do, ita lego, ita testor, itaque vos, Quirites, testimonium mihi perhibetote”; et hoc dicitur nuncupatio: nuncupare est enim palam nominare, et sane quae testator specialiter in tabulis testamenti scripserit, ea videtur generali sermone nominare atque confirmare.
(Gaius in the second book of his Institutes')
This procedure (for making a mancipatory will) goes as follows: The person making the will, after collecting, as with other forms of mancipation, five adult Roman citizens as witnesses plus a person to hold a scale, and after writing out the text of the will, mancipates his estate to someone only as a matter of form.
In this procedure the “purchaser” of the estate uses the following formula: “I declare that your household and resources are entrusted by you to my care, and that these things, under that right by which you are empowered to make a will according to the public statute, are purchased by me with this piece of bronze,” and, as some add, “and this bronze scale.” Next, he strikes the scale with the piece of bronze and gives it to the testator as though in payment.
At that point the testator, holding the text of the will in his hand, makes the following declaration: “Just as these things are written on the wax tablets, thus I convey, thus I bequeath, thus I declare; and thus shall you, fellow citizens, bear witness for me.” And this is called the attestation; for to attest is to proclaim openly, and in fact he is deemed by his blanket pronouncement to proclaim and affirm those particulars which he has written in the text of the will.
1. Fictive Sale.
Gaius makes clear that the validity of the will (as a document) depends on its ratification through a ceremony of pretended sale with a notional payment by a “purchaser of the estate” (familiae emptor). The “piece of bronze” became a small bronze coin after coinage was introduced in the third century B.C. Why rely on this fictive sale as a means of ratifying a will? Gaius points out that the procedure is the same as for other types of mancipatio, a form primarily used to convey ownership of certain types of property known as res mancipi (a category that included slaves, most farm animals, and land in Italy). Mancipatio was also used for many other purposes, such as manumitting slaves, constituting a dowry, and emancipating children or giving them in adoption (Case 149). Why was the same ceremony employed for making a will? Why were so many witnesses summoned, in this as in other types of mancipationname=bookmark942>2. Archaic Form. Does the familiae emptor actually acquire the property in exchange for his notional payment? Might this have been possible at a very early stage in the history of the mancipatory will? Suppose that, as some scholars think, the making of the will tended to precede the testators death by only a brief time. Would that suggest that actual transfer of the property in some form took place? Gaius (Inst. 2.105; cf. 103) even says that the familiae emptor stood “in place of an heir” (heredis loco); but in classical law there is no sign that the fictive purchaser took the role of an executor. Why would this have changed? What do you make of Gaius's odd comment about “attestation,” that the blanket statement confirms the particulars in the will? Does this suggest that originally those particulars might have been stated openly in the attestation itself, so that the will was once entirely oral? If so, why do you think that the Romans stopped giving the particulars openly? And once the written will became customary, why did they continue with the entire, rather awkward ritual of the mancipatory will?
3. Form over Function.
Suppose some legal defect in the fictive sale was later discovered, for example, that one or more of the witnesses were not Roman citizens (for other rules regarding the witnesses, see Gaius 2.105-108). Would this render the will invalid? Yes; but eventually the praetor was prepared to grant bonorum possessio in accordance with the terms of the will (secundum tabulas) to the heir named in the will, provided it had the seals of seven witnesses (ibid. 2.119-120). All the same, at least until the reign of Antoninus Pius (A.D. 138-161), this grant would not withstand a challenge from an intestate heir entitled under the ius civile. Does this seem like formalism run amok?4. The Written Will. Roman wills were customarily written out on tablets that were then sealed by the witnesses and only opened after the testators death. Why is it helpful if testators write out their wishes? What problems can arise from writing? The written will had a required form, and failure to observe the rules could render the entire will invalid, even when the testator's wishes were easily discernible. For example, the heirs usually had to be named at or very near the start of the will. If this was postponed, the entire will could fail. Why insist on such formalism?
5. A Specimen Will. The Appendix to this chapter gives a specimen will illustrating the draftsmanship of Roman wills. You should note especially that the will provides for a division of the entire inheritance (the heirs receive fractions adding up to the entire estate), but that the inheritance is then diminished by various legacies going either to the heirs or to third parties. The will also provides for the validity of subsequent addenda, called “codicils,” if the testator wishes to make changes in his will; codicils became legally acceptable during the reign of Augustus (31 B.C. to A.D. 14; see Justinian, Inst. 2.25 pr.).