An imperial constitutio, which we ourselves have recently published, extends to those who have received as a gift anything from our palace, or that of the empress, the provisions of the constitutio of Zeno relative to the alienations of the fiscus.
X. The Making of Wills.
The word testament is derived from testatio mentis; it testifies the determination of the mind.
1. That nothing belonging to antiquity may be altogether unknown, it is necessary to observe, that formerly there were two kinds of testaments in use: the one was employed in times of peace, and was named calatic comitiis, the other was employed at the moment of setting out in battle, and was termed procinctum.
A third species was afterwards added, called per aes libram; being effected by mancipatio, that is, an imaginary sale in the presence of five witnesses, and the libripens, all citizens of Rome, above the age of puberty, together with him who was called the emptor familiae. The two former kinds of testament fell into disuse even in ancient times; and that made per aes libram also, although it has continued longer in practice, has now in part ceased to be made use of.
2. These three kinds of testament belonged to the civil law, but afterwards another kind was introduced by the edict of the praetor. By the ius honorarium no sale was necessary but the seals of seven witnesses were sufficient. The seals of witnesses were not required by the civil law.
3. But when the progress of society and the imperial constitutiones had produced a fusion of the civil and the praetorian law, it was established that the testament should be made all at one time, in the presence of seven witnesses (two points required by the civil law), with the subscription of the witnesses (a formality introduced by the constitutiones), and with their seals appended, according to the edict of the praetor.
Thus the law of testament seems to have had a triple origin. The witnesses, and their presence at one continuous time for the purpose of giving the testament the requisite formality, are derived from the civil law; the subscriptions of the testator and witnesses, from the imperial constitutiones; and the seals of the witnesses and their number, from the edict of the praetor.
4. To all these formalities we have enacted by our constitutio, as an additional security for the genuineness of testaments, and to prevent fraud, that the name of the heir shall be written in the handwriting either of the testator or of the witnesses; and that everything shall be done according to the tenor of that constitutio.
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