Bryn Mawr Classical Review

Reviewed by Elizabeth Buchanan, University of Findlay (buchanan@findlay.edu)

Version at BMCR home site

This book examines testamentary documents and practice from the Hellenistic period until Egypt became part of the Caliphate in the seventh century CE. It includes not only documents found in Egypt, but also those from the same period from Constantinople, Ravenna and Nessana. Maria Nowak also uses wills written shortly after the end of the seventh century in the written Egyptian vernacular of Coptic as comparanda. The purpose of the book is to "reconstruct not only testamentary models, but also testamentary practice" (page 7). To accomplish this goal, Nowak addresses three primary topics: testamentary requirements, the opening of the wills, and the testamentary model in late antiquity. An important sub-topic is an examination of one of the fundamental issues of late antique Roman legal theory, which is the extent to which the Roman provinces followed Roman law, as opposed to local practices. This last issue is critical to our understanding of the internal communication and cohesion of the late Roman Empire.

There are three chapters and five appendices in this book, plus an exhaustive bibliography and index of sources. Each of the three chapters addresses one of the three primary topics. The first chapter addresses testamentary requirements of the Roman will as it evolved from the Republic and Principate through the seventh century. It begins with a description of the highly formalized testamentum per aes et libram, a method of passing property that involved the nuncupatio, an oral declaration or symbolic acknowledgement of the appointment of an heir and disposition of property, and the mancipatio nummo uno, a symbolic act transferring ownership of the estate into the control of a fictive buyer for execution. Because of the complicated requirements for these steps, Nowak doubts that the mancipatio nummo uno was performed during the composition of wills after the Principate, although remnants of the language remained in Egyptian wills written before the Constitutio Antoniniana, the general grant of Roman citizenship in 212 CE, and shortly thereafter. Nowak then meticulously tracks the changes in Roman legal requirements for wills, discussing at length not only the primary sources but also the secondary discussions among scholars on the meaning of these changes. She also addresses the differences and similarities between the western provinces, which had written wills with either five or seven witnesses, and the eastern provinces, which had developed a standardized written will with seven witnesses (with accommodations for people in rural areas) by the fifth century.

The second chapter concerns the opening of the will after the testator's death. Here Nowak notes that local wills were generally notarial wills that were either made or filed with public officials. Roman wills adopted a similar system after the enactment in 6 CE of the vicesima hereditatum, a five-percent tax on Roman citizens who inherited an estate over a certain value, unless they were part of the immediate family of the testator. The two separate procedures disappeared after the Constitutio Antoniniana in 212 CE, when all citizens were potentially subject to the tax. The tax was abolished at some point in the third or fourth centuries, but its existence caused the opening of the will to become an act done in the presence of public officials. Nowak acknowledges that there are no examples of wills recorded in public archives in Egypt or the East in late antiquity. In part, this may be because very few wills have survived from the period. Most of the wills that have survived are either copies or drafts, or are in such a fragmentary condition that it is hard to say what the document was originally. This has caused much speculation concerning whether public archives still existed in Egypt, or whether the random nature of document survival is such that we just happen to have documents that were drafts and that our lack of documents bearing indicia of the opening of the will is not illustrative of actual practice. Nowak concludes that there is insufficient evidence to support a firm conclusion on this question (page 102).

In the third chapter, which is the longest, Nowak addresses the format of the will. First, she discusses the templates with generic clauses and blank spaces that were created to assist in the preparation of a legal will. She then considers the changes that appeared in the generic clauses after the Constitutio Antoniniana in 212. Prior to this constitution, Roman wills had to be written in Latin and meet Roman legal requirements. Because much of the Empire, especially the eastern provinces, spoke and wrote their wills in Greek, this would have created problems. The language difficulty was resolved shortly thereafter with a constitution by Emperor Alexander Severus authorizing wills to be composed in Greek as well as Latin. But this would have left the difficult technical requirements of the Roman will to be addressed. This led to a transitional phase during the third and fourth centuries in which some standard Latin clauses fell out of usage, and some standard Greek clauses became part of the legal templates, with imperial Roman law trying to keep up by authorizing many of the changes, probably after they had already become customary.

After this discussion, Nowak considers the principal clauses of the Roman will in turn, commenting upon the changes that occurred between the Constitutio Antoniniana and the seventh century. The clauses that she discusses include: the dating clause; identification of the testator; revocation clause; appointment of the heir(s); the cretio clause; disinheritance; legacies; emancipations; funerals, tombs and commemorations; codicillary clauses; penal clauses; the dolus clause; the stipulation clause; and the kyria clause. Nowak's analysis of the clauses for appointment of the heir(s) and legacies is particularly useful because she describes in detail the original Roman view of an heir, who stepped into the shoes of the testator for the estate, and the subsequent view of an heir taking specified things. Thus, the distinction between heirs and legatees started to break down. Nowak concludes by stating that the concept of appointing an heir to the entire estate, or a large portion of it, was never fully adopted in the testamentary practices of Egypt and perhaps in the East in general (page 146). Further, she states that in late antiquity, testamentary practice moved towards local legal practices because they were more intuitive to execute for those with limited legal knowledge.

Following the three chapters, Nowak has provided five appendices, four of which contain the Greek or Latin transcription of wills from one of four periods: Hellenistic, local wills from the Roman period, Roman wills, and late Roman and Byzantine wills, with English translations of all but the documents which are so fragmentary that translation is impossible. The fifth appendix includes a list of Merovingian wills with the source in which they appear. These are followed by a detailed bibliography and index of Sources. The transcriptions appear to have the most recent updates. I appreciated the availability of the transcriptions even when the text was too fragmentary to translate because the transcriptions often contain words or clauses that are useful for tracking the frequency or dating of those words or clauses.

Nowak convincingly tracks the process of change in Roman wills, especially after the Constitutio Antoniniana. She notes that the process was long and not uniform, and that transitional wills show evidence of an attempt to use the appropriate language but with frequent errors demonstrating a lack of understanding of the underlying concepts. She also observes that wills written after the Constitutio Antoniniana are much less uniform than previous wills, although she believes that a common, centrally or locally issued testamentary model was used; and that 'the guiding presence of notaries is particularly visible in wills from Ravenna … and those written in Aphrodito by Abraham son of Apollo, preserved in the archives of Dioskoros' (page 206). Finally, she concludes by saying that the notarial practice continued in both the East and West, and that the wills demonstrate a remarkable continuity with previous practice, even as both areas fell away from the Eastern Roman Empire.

One disappointment with the book is that Nowak raises many important questions that are not answered. Examples include: (1) did legal knowledge decline in late antiquity, and if so, why (page 167), (2) why was there an escalation of legal jargon used in the wills (page 167), (3) why did testators move from passing primarily land and money to listing their property in detail (page 173), and (4) why do we see both a common testamentary format and a proliferation of words used to implement that format (page 206)? These questions are undoubtedly hard to answer because of the survival pattern of documents available to us, but they remain important to our understanding of what was happening during this pivotal time. It is to be hoped that Nowak and other scholars will continue to move forward towards answering these questions. I noted very few errors or inconsistencies. The citation for SB VIII 9642 4, which lacks a volume number in the index of Sources (page 489), is one of the rare exceptions. Given the numerous citations, this is a remarkable achievement.

This book is a very careful work of scholarship and will prove invaluable, especially but by no means solely for English-speaking audiences. Native English speakers are very fortunate that Nowak chose to write this text in English not only because of the convenient translations of wills from the Hellenistic period through late antiquity, but because she provides much easier access to European scholarship on Roman law, which has traditionally been found in texts written in French, German, Italian and most recently in Polish that are not always easy to find. In this regard, both her discussion and the bibliography are very helpful. Another advantage to this book is that, unlike many earlier works on the Roman legal impact on provincial testamentary practice, it continues to the seventh century, rather than ending in the fourth century. In doing so, Nowak is contributing to the integration of classical and post-classical studies on the Roman Empire and its laws and society. Finally, the book integrates a discussion of testamentary law and practice, plus compilations of source documents and their translations, providing a very useful platform for future research.