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We may suspect indeed that the associations of a Roman with the practice of will-making were extremely different from those familiar to us nowadays. The habit of regarding Adoption and Testation as modes of continuing the Family cannot but have had something to do with the singular laxity of Roman notions as to the inheritance of sovereignty.
He would say, for example, that a Will necessarily takes effect at death only that it is secret, not known as a matter of course to persons taking interests under its provisions that it is revocable, i.e. always capable of being superseded by a new act of testation. Yet I shall be able to show that there was a time when none of these characteristics belonged to a Will.
It is doubtful whether a true power of testation was known to any original society except the Roman. Rudimentary forms of it occur here and there, but most of them are not exempt from the suspicion of a Roman origin. The Athenian will was, no doubt, indigenous, but then, as will appear presently, it was only an inchoate Testament.
Mancipation was one of them, and therefore, strange as it may seem, we are forced to conclude that the primitive Roman Will took effect at once, even though the Testator survived his act of Testation.
I may illustrate this by mentioning a position common in the legal literature of the seventeenth century. The jurists of that period very commonly assert that the power of Testation itself is of Natural Law, that it is a right conferred by the Law of Nature.
Again, the original institutions of the Jews having provided nowhere for the privileges of Testatorship, the later Rabbinical jurisprudence, which pretends to supply the casus omissi of the Mosaic law, allows the Power of Testation to attach when all the kindred entitled under the Mosaic system to succeed have failed or are undiscoverable.
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