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Monday, December 3, 2012



far too much precision to the proceedings of the
ancient assembly. The proper key to the story
concerning the execution of Wills in the Comitia
Calata must no doubt be sought in the oldest
Roman law of intestate succession. The canons
of primitive Roman jurisprudence regulating the
inheritance of relations from each other were,
so long as they remained unmodified by the
Edictal Law of the Praetor, to the following
effect : First, the sui or direct descendants who
had never been emancipated succeeded. On the
failure of the sui, the Nearest Agnate came into
their place, that is, the nearest person or class
of the kindred who was or might have been under
the same Patria Potestas with the deceased. The
third and last degree came next, in which the
inheritance devolved on the Gentiles, that is, on
the collective members of the dead man's gens
or House. The House, I have explained already,
was a fictitious extension of the family, consisting
of all Roman Patrician citizens who bore the same
name, and who on the ground of bearing the
same name, were supposed to be descended from
a common ancestor. Now the Patrician Assembly
called the Comitia Curiata was a Legislature in
which Gentes or Houses were exclusively repre-
sented. It was a representative assembly of the
Roman people, constituted on the assumption
that the constituent unit of the state was the Gens.
This being so, the inference seems inevitable,
that the cognisance 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.

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