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

162 The Roman Army
did make his will in this way without putting it in writing, and that his
wishes should be honoured. But if, as often happens in casual
conversation, the soldier said to some one: “I make you my heir”, or “I
leave you my property”, this should not be regarded as a valid will. It
benefits no one more than the soldiers to whom this privilege was given,
that cases like this should not be allowed. For otherwise it would not
be difficult for witnesses to appear after the death of a soldier and
declare that they had heard him say that he was leaving his property to
some one whom they wanted to benefit, and in this way the true wishes
of the soldier would be frustrated.’
265 Titles from Ulpian 23. 10
The wills of soldiers are valid regardless of how they have been executed,
that is, even if they lack strict legal form. For soldiers have been
permitted by the decisions of emperors to make a will in whatever way
they wish and in whatever way they can. But a will executed by a
soldier in contravention of strict legal form is valid only if he died
while in service or within a year following his discharge.
In making a will soldiers were privileged in three main areas; first, the execution
of the will did not have to conform to normal legal rules, so that even an unfinished
will or one completed without witnesses was valid; this was important since
Roman testamentary procedure was strict. Second, soldiers were free from many
constraints concerning those to whom they could leave property (see text no.
259) and were permitted to disinherit by passing over in silence (normally an act
of specific disherison was necessary). Third, since for a soldier a mere expression
of wish was a will, (D 29. 1. 34. 2), he could alter his testament with a minimum
of formality. These privileges were granted to all soldiers, not merely those involved
in campaigns, and were valid during service and for one year after; more senior
officers, such as prefects and military tribunes, apparently had the right to make
a military will, but it was restricted to the duration of their service (D 29. 1. 21;
CJ 6. 21. 4). The special testamentary privileges of soldiers developed
unsystematically through the decisions of emperors and the benevolent attitude
of jurists, who were influenced by imperial goodwill. In legal practice there was
a clear distinction between civilians (pagani) and soldiers (milites), which may
also be significant for attitudes to soldiers in court (nos. 275–8). The importance
of the testamentary privileges of the army can also be seen from the long chapter
in the Digest (29. 1) on this theme, and the number of petitions directed to
emperors seeking explanation or confirmation (CJ 6. 21).
266 CJ 6. 21. 2, AD 213
The same Emperor (Antoninus) to Septimus, soldier. If a soldier
instituted his comrade as heir to his camp property alone, then it is