tuent unit of the
state was the Gens. This being so, the inference seems inevitable,
that the cognizance of Wills by the Comitia was connected with the
rights of the Gentiles, and was intended to secure them in their
privilege of ultimate inheritance. The whole apparent anomaly is
removed, if we suppose that a Testament could only be made when the
testator had no _gentiles_ discoverable, or when they waived their
claims, and that every Testament was submitted to the General Assembly
of the Roman Gentes, in order that those aggrieved by its dispositions
might put their veto upon it if they pleased, or by allowing it to
pass might be presumed to have renounced their reversion. It is
possible that on the eve of the publication of the Twelve Tables this
vetoing power may have been greatly curtailed or only occasionally and
capriciously exercised. It is much easier, however, to indicate the
meaning and origin of the jurisdiction confided to the Comitia Calata,
than to trace its gradual development or progressive decay.

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 designed 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 Plebeian 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 mea