Scanned text contains errors.
the Romans sent to give the Carthaginians their choice of peace or war, they sent t\vo tesserae, one marked with a spear, the other with a caduceus, requesting them to take, either the one or the other. (Gellius, x. 27.)
From the application of this term to tokens of various kinds, it was transferred to the word used as a token among soldiers. This was the tessera militaris^ the avvQ^^a. of the Greeks. Before joining battle it was given out and passed through the ranks as a method by which the soldiers might be able to distinguish friends from foes. Thus at the battle of Cunaxa the word was " Zeus the Saviour and Victory," and on a subsequent engagement by the same troops " Zeus the Saviour, Heracles the Leader." (Xen. A nab. i. 8. § 16. vi. 3, § 25.) The soldiers of Xenophon used a verbal sign for the same purpose when they were encamped by night (vii. 3. § 34). Aeneas Tacticus (c. 24) gives various directions necessary to be observed respecting the word. Respecting the tessera or watchword in the Roman camp, see castra, p. 251, a. [J. Y.]
TEST AMENTUM is " mentis nostrae justa contestatio in id solemniter facta ut post mortem nostram valeat." (Ulp. Frag. tit. 20 ; comp. Ulp. Big. 28. tit. 1. s. 1, where he has " justa senten-tia.") In this passage the word Justa means " jure facta," " as required by law." The word Contestatio is apparently used with reference to the origin of the term Testamentum, which is to be referred to 4t Testari," which signifies " to make a solemn declaration of one's will." Gellius (vi. 12) properly finds fault with Servius Sulpicius for saying that the word is compounded " a mentis contestatione." The person who made a Testamentum was Testator. (Sueton. Ner. 17 ; Dig. 28. tit. 3. s. 17.)
In order to be able to make a valid Roman will, the Testator must have the Testamentifactio (Cic. ad Fain. vii. 21), which term expresses the legal capacity to make a valid will: the word has also another signification. [heres, p. 598, b.] The testamentifactio was the privilege only of Roman citizens who were patresfamilias. The following persons consequently had not the testamentifactio : those who were in the Potestas or Manus of another, or in Mancipii causa, as sons and daughters, wives In manu and slaves ; but with respect to his Castrense Peculium [patria potestas] a filius-familias had the privilege of testamentary disposition : Latini Juniani, Dediticii: Peregrin! could not dispose of their property according to the form of a Roman will: a person who was doubtful as to his status, as for instance if his father had died abroad and the fact was not ascertained, could not make a testament: an Impubes could not dispose of his property by will even with the consent of his Tutor ; when a male was fourteen years of age, he obtained the testamentifactio, and ft female obtained the power, subject to certain restraints, on the completion of her twelfth year: muti, surdi, furiosi, and prodigi " quibus lege bonis interdictum est" had not the testamentifactio ; the reasons why these several classes of persons had not the testamentifactio illustrate the Roman mode of deducing legal conclusions from general principles: — the Mutus had not the Testamentifactio, because he could not utter the words of Nuncupatio ; the Surdus, because he could not hear the words of the Emtor familiae ;
the Furiosus, because he had not intellectual capacity to declare his will (iestari) about his property; and the Prodigus, because he was under a legal restraint, so that he had no commercium, and consequently could not exercise the formal act of the familiae mancipatio. (Ulp. Frag. tit. 20. s. 13 ; curator; impubes.) As to the testament which a man has made before he becomes Furiosus, see Dig. 28. tit. 1. s. 20. §4.
Women had originally no testamentifactio, and when they did acquire the power, they could only exercise it with the auctoritas of a Tutor. Of course a daughter in the power of her father, whether she was unmarried or married, and a wife in manu could never make a will. The rules therefore as to a woman's capacity to make a will, could apply only to unmarried women after the death of their father and to widows who were not in the power of a father. This subject requires explanation.
Cicero (Top. 4) observes " if a woman has made a will, and has never undergone a capitis diminutio, it does not appear that the Bonormn Possessio can be granted in pursuance of such will according to the Praetor's Edict ; for if it could, the Edict must give the Possessio in respect of the wills of Servi, Exules, and Pueri." Cicero means to say that if a woman made a will without having sustained a capitis diminutio, the will could have no effect at all: and he derives his argument " ab adjunctis," for if such a will could have any effect, then the wills of other persons, who had not the testamentifactio, might be effectual so far as to give the Bonorum Possessio. It is not a logical inference from the language of Cicero that a Avoman who had sustained a capitis diminutio could make a will ; but this is the ordinary meaning of such language and it appears to be his. Consistently with this, Ulpian says (Frag. tit. 20. s. 15), " women after their twelfth year can make a will with the auctoritas of a Tutor, so long as they are in tutela; " and the comment of Boethius on the passage of the Topica clearly shows that he understood it in this way. A woman then could make a will with the auctoritas of her Tutor and not without. Now if a woman was in Tutela Legitima, it might be correctly said that she could not make a will ; for, if she was Ingenua, the tutela belonged of right to the Agnati and Gentiles, and if she was a Liberia, it belonged to the patron. In these cases a woman could indeed make a valid will with the consent of her Tutores, but as her Tutores were her heirs in case of intestacy, such consent would seldom be given, and though a woman under such circumstances might be allowed to make a will, it may be assumed that it was a circumstance altogether unusual, and thus the rule as to a woman in Tutela Legitima, as above stated, might be laid down as generally true. The passage of Cicero therefore does not apply to the Tutela Legitima, but to something else. Since the discovery of the Institutes of Gains the difficulty has been cleared up, though it had been solved in a satisfactory manner by Savigny before the publication of Gaius. (Beytrag zur Geschichte der Gesclilecfitstutel) Zeitschrift, vol. iii. p. 328.)
A woman could make a " coemptio fiduciae causa," in order to qualify herself to make a will; for "at that time women had not the power, of making a will, except certain persons, unless they made a co-emptio and were remancipated and manumitted ; but on the recommendation of Ha-