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But it was the Will of the Eastern Empire only; and the researches of Savigny have shown that in Western Europe the old Mancipatory Testament, with all its apparatus of conveyance, copper, and scales, continued to be the form in use far down in the Middle Ages.
At the era of Gaius, which is that of the Antonine Cæsars, the great blemishes of the Mancipatory Will had been removed.
Like the Testament of the Prætor, it required no Mancipation, and was invalid unless sealed by seven witnesses. Like the Mancipatory Will, it passed the Inheritance and not merely a Bonorum Possessio.
This ancient Will has, however, manifold defects, which are remedied, though only indirectly, by the Prætorian law. Meantime the ingenuity of the Jurisconsults effects, in the Common-Law Will or Mancipatory Testament, the very improvements which the Prætor may have concurrently carried out in Equity.
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defects, the Mancipatory Testament by which the universitas juris devolved at once and unimpaired was never entirely superseded by the new Will; and at a period less bigoted to antiquarian forms, and perhaps not quite alive to their significance, all the ingenuity of the Jurisconsults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 execution of the Mancipatory Testament seven persons had been present besides the Testator. Seven witnesses were accordingly essential to the Prætorian Will: two of them corresponding to the libripens and familiæ emptor, who were now stripped of their symbolical character, and were merely present for the purpose of supplying their testimony.
With these data before us, we are able to note several remarkable points in which the Mancipatory Testament, as it may be called, differed in its primitive form from a modern will. As it amounted to a conveyance out-and-out of the Testator's estate, it was not revocable. There could be no new exercise of a power which had been exhausted. Again, it was not secret.
On examining the conditions of a valid Prætorian Will they will be plainly seen to have been determined by the requirements of the Mancipatory Testament, the innovating Prætor having obviously prescribed to himself the retention of the old formalities just so far as they were warrants of genuineness or securities against fraud.
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