security of rc.i' mmicipi}' the creditor accepted ownership of the pledged property, and, since as owner his security was great, he could allow the debtor to continue to possess and use the pledged propertw d'he usage was a benefit to both. But the Romans came to use the ceremon\' of maucipatio \ ery ereati\ ely well outside the realmof the transfer of rc.t' mancipi. One \ ariation was to permit in early law the making of a will, the so-called tcstanuiitHmper aes et lihnini. 'fhis is described b\’ the jurist (iaius in the mid-second centur\’ A.i^., in his Institutes riie proceedings are as follows: the person making the will, as in other mancipations. takes fix e Roman citizens aho\ e pnhertx as witnesses and a halance-holder and, after Inn ing written his will, mancipates his familiti |i.e., his propertx' considered as a unit|.‘'ln the mamipatio, the recipient of the /</w//w uses these words: "I declare x’our fuwiliu and x'our propertx' to he sidxject to x'our instructions under mx' guardianship so that x'ou max' laxvfxdlx' make a XX ill according t(x the public statute, and let it hax e been bought Iw me xx ith this bronze (and some add) xxith this bronze scale." I hen he strikes the balance xx ith the bronze and gix es the bronze to the testator as if in lieu of the price. I hen the testator, holding the tablets of the xvill, saxs: "As it is xx ritten on these tablets and in this xx ill, so I gix e, .so I legate, .so I call to xx itness, and so, citizen.s, do x<>u bear me xx itness." 'I'his is called tiui/cupiitio, tiuucuparc meaning to declare publiclx'. .\nd bx' these general xvords the testator is thought to declare and confirm xxhat he had specificallx' xx ritten in the tablets of the xx ill. By the .second century b.c. (and indeed, long before), this testamenturn per lies et libram, as it is called, had become a proper will in which an heir could be appointed, 'fhis xvas not the original position. In early Rome before the Tzve/ve rubles, a xxill could be made publich’ before the assembly known as the eomitiu culutu, xyhich met twice a year, on 24 March and 24 Max’, for the purpose of making xx ills. 'Phis was obx iously x erx' inconx enient, and the practice grexv up of ma12 For the argument, see Watson, Obligations, pp. 72ff; cf. Kaser, Privatrecht i, p. 460. 13 For the argument see Watson, XII Tables, p. 57. 69
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