The Roman Army, 31 BC–AD 337: A Sourcebook

The army, the local community, the law 161
followed this, and from that time onwards the following section began
to be inserted in the instructions to governors; section from the
instructions: ‘It has been brought to my attention that wills made by
my fellow-soldiers are frequently being produced which would be the
subject of dispute if the full rigour of the law were to be strictly applied
to them. Therefore in response to the justness of my feelings for my
excellent and outstandingly loyal fellow-soldiers, I have decided that
due consideration must be given to their simple-minded ignorance, so
that, regardless of the way in which their wills have been drawn up,
their wishes are to be considered valid. So, they may draw up their
wills in whatever way they wish, and in whatever way they can, and
the mere wish of the testator is to be sufficient for the division of his
property.’ Now the word ‘soldier’ is said to have been derived from
militia, that is the hardship (duritia) which they endure on our account,
or from the word ‘multitude’, or from the evil from which soldiers
customarily protect us, or from the number of one thousand men…
(Gaius (2nd C.AD), Book XV On the Provincial Edict)
The proconsul issues a separate edict in respect of the wills of soldiers,
because he knows very well that in accordance with the decisions of the
emperors, unique and extraordinary regulations are applied to their wills.
Trajan’s remarkably expansive language will certainly have persuaded governors
to take a special interest in testamentary cases involving soldiers, and gave the
troops privileges not enjoyed by other Roman citizens, no matter how socially
distinguished. These passages also reveal what may have been the official
explanation of military privileges—the soldiers endured hardships on behalf of
the state and had a simple-minded ignorance of legal technicalities. Later, Trajan
found that he had gone too far.
264 D 29. 1. 24
(Florentinus (3rd C.AD), Book X The Institutes)
The divine Trajan stated in a rescript to Statilius Severus: ‘The privilege
conferred on soldiers, which renders their wills valid regardless of how
they have been executed, should be interpreted as follows. The first
point to be ascertained is that the will was executed, and that can be
done without putting the will in writing and also applies to those who
are not soldiers. Therefore, if a soldier, in respect of whose property
the case before you is concerned, called together persons to witness his
will, and specifically declared whom he wished to be his heir and on
which slave he wished to confer liberty, then you may conclude that he