Juries aren’t universally involved in settling court cases but many aspects of the trial experience are, and one of them is the matter of witnesses.
In the Byzantine Empire, which we explore in our historical mystery series, oral wills were legal provided certain requirements were met, most importantly a set number of witnesses. It was this that caught our attention and formed the basis of the plot for Five For Silver, published by Poisoned Pen Press in 2004. Set during the 542 CE Justinianic plague, our protagonist John’s investigations begin after his servant Peter relates a vision of an angel, who revealed Peter’s old military friend Gregory had been murdered — as indeed proved to be the case.
In order to find the culprit John begins to trace Gregory’s movements, discovering that not long before Gregory died he had been among those who witnessed an oral will made by wealthy shipping merchant Nereus on his deathbed. The necessary seven witnesses had been hastily gathered together by Archdeacon Palamos, who was visiting Nereus to offer spiritual comfort. Due to the unusual circumstances, the assembled men form a remarkably motley band. In addition to the archdeacon himself, there was Gregory, who was there to see Nereus on a matter of business, and the courtier Crinagoras, who had escorted Gregory through the plague-ridden streets. There was also Aristotle, a purveyor of somewhat suspect oracular devices who had brought another prophetic artifact he was hoping to sell to Nereus. Nereus’ house steward was also chosen as a witness, but since he was ill his place was taken by another of Nereus’ servants, Cador. There was also a holy fool who happened to be passing by the house at the time so he and Byzos, the driver of the cart he was riding in, were also conscripted as witnesses. Despite the solemnity of the occasion, the holy fool insisted in dancing with the archdeacon although this was not the strangest event that occurred in the course of John’s quest, which was exacerbated by the plague’s frightful death toll. For it was entirely possible any or all of the remaining six witnesses sought might have fled the city or be dead themselves.
One of the most far reaching legacies of sixth century emperor Justinian I, ruler of the Eastern Roman Empire, namely was his codification of Roman law. The resulting Corpus Iurus Civilis, or Body of Civil Law, included the Codex Justinianus (529), a compilation of then current law; the Pandects (533), the writings of generations of Roman jurists; and the Institutes (535), which included extracts from the previous two works and were intended as a kind of text book. Title X of Justinian’s Institutes was devoted to wills and inheritance. Among other matters relating to this topic, it provided guidance on dealing with persons incapable of making a will, disinheritance, heirs, voided wills, legacies, and codicils. J. B. Moyle’s 1913 translation of the Institutes states that to be valid, a will had to be executed at one time in the presence of seven witnesses who must sign their names and affix their seals to the document. They could, however, all use the same seal or one belonging to someone else. Persons barred from acting as witnesses included women, slaves, those who were deaf and dumb, and lunatics. Furthermore, a will could not be witnessed by an heir and certain relatives of the heir. The Institutes stated it did not matter on which substance a will was written, and it was also legal to make an oral will by declaration before seven witnesses. Moyle translates this important passage as follows:
- When, however, one wishes to make a will binding by the civil law, but not in writing, he may summon seven witnesses, and in their presence orally declare his wishes; this, it should be observed, being a form of will which has been declared by constitutions to be perfectly valid by civil law.
This type of will is known as a nuncupative will, from the Latin meaning roughly name-to-take. Title XI of the Institutes provides for oral wills executed by soldiers, exempting them from the usual requirements under which wills were normally made “in consideration of their extreme ignorance of law”. However, these oral wills must have been made while the soldiers were on active service. In other circumstances they could not make a will in this fashion.
The notion of oral wills has persisted for centuries. During the two World Wars British soldiers about to be sent to the fighting lines or who were already there could write their wills using forms provided by the various service branches or use a form in their pay books, assuming they had not already made a will in civilian life. According to he National Archives of Scotland, the commonest kind was the unwitnessed will written on the soldiers’ pay book forms. A nuncupativewill was accepted if none of these documents were available, and in such cases the War Office accepted statements from fellow soldiers, the deceased’s family, and friends as to what the testator had said were his wishes. The Scottish archive has examples of the paperwork associated with this type of will, a sample of which can be viewed at http://www.nas.gov.uk/guides/soldiersWillsExample4.asp . Letters in which the soldier stated his wishes as regards his property were also considered nuncupative, but were more commonly seen in the First World War than the second.
Justinian’s codification played an important role in the development of civil law in many European nations, beginning in the late eleventh century. From there the civil law spread to the colonies of continental countries. Here in the US Louisiana’s legal system includes elements of civil law based upon Justinian’s code through its status as a former French territory. Not all US states accept oral wills although some permit them in special circumstances. However, generally speaking they must have been made on a person’s deathbed or by members of the military or marine services while serving in an armed conflict. In addition, a specified number of witnesses are required and the testator’s wishes must have been written down within a set time after they were made, with application for probate filed within a certain period after death. In some cases there are limitations on bequests made in this fashion, such as a stated amount for the total value of personal property. States that have or had statutes allowing for oral wills include New York, Ohio, Missouri, Oklahoma, and Washington State. The ability to make this type of will is recorded before the founding of the United States. Two examples of colonial oral wills dating from the 1750s are briefly noted on the Fredericksburg Genealogy Regional Society’s website at:
In both these cases, legacies were confirmed on oath by two witnesses.
THE BIO NOTES:
The husband and wife team of Mary Reed and Eric Mayer published several short John the Eunuch detections in mystery anthologies and in Ellery Queen Mystery Magazine prior to their first full length novel, One For Sorrow (1999). Their protagonist’s adventures continued in Two For Joy (2000), a Glyph Award winner in the Best Mystery category. Two For Joy also gained an Honorable Mention in the Glyph Best Book Award list and in addition was a finalist for the IPPY Best Mystery Award. Three For A Letter (2001), Four For A Boy (2003), and Five For Silver (2004) followed. The latter two novels were nominees for the Bruce Alexander History Mystery Award. Five For Silver won the 2005 Glyph Award for Best Book Series. In June 2003 the American Library Association’s Booklist Magazine named the John the Eunuch novels as one of its four Best Little Known Series. Six For Gold appeared in 2005 and Seven For A Secret in 2008. They are currently writing the as yet untitled next novel in the series. Their website can be viewed at http://home.epix.net/~maywrite/