[1.1] A book here follows the end of this volume, which shall not without rational cause be called the Mirra, since this title has been meaningfully and regularly assigned. For myhrr is a very bitter gum, whose smell, however aromatic it may be, is of a very strong odor. Thus it was used in ancient times in the funerals of the dead, on account of a certain analogy. For the precious unguent with which the bodies of the dead are embalmed is principally made from myhrr and aloe. Indeed the Magi offered myhrr to the Lord in the cradle, which signified the mortality of the flesh He had assumed from the womb of the Virgin, according to the exposition of the holy father.1 This analogy comes forth from myhrr's great acridness, because death is acrid, which can be seen most manifestly in the dissolution of bodies.
[1.2] And not only death, but even the memory of death seems to be bitter. Thus Solomon, who outshined all other mortals in the splendor of his wisdom, averted to the memory of death when he said "O death, how bitter is your memory to a man having peace in his substances".2 Thus it seems that this is probable, rather necessary that mortals are so astounded through the bitterness of this memory, that they strive to construct testaments for the salvation of each man, lest perchance, preoccupied on the day of their death, they seek a space for penance and they cannot find it. Indeed, in testaments they take care of their souls and and warn their heirs.3 Whence this book of testaments is deservedly called the Mirra, since it contains in itself the funerals of the dead.4
[1.3] In this book I propose to exercize the office of the orator,5 not that of the jurisprudent, showing how anyone in dictating testaments can regularly compose preambles and narrations, which are afterwards put forward by the testator. Moreover, whatever those damned by the spite of jealousy may feel, it is my special intention to note down in this work <a doctrine> by which the rawness of simple notaries may be illuminated. For what would be more solemn, what would be done more venerably than by the mistery of the testament, in which the testator, hesitating to be dissolved from the coruptible bond of flesh, desires first6 to give a portion from his temporal goods to the paupers of Christ, so that for transitory <goods> he may receive eternal <rewards> in the consortium of the holy resurrection, and so that he may enjoy the joys of paridise for the providing of fleeting things; and he afterwards wishes to institute a principal heir or heirs, lest some discord arise by occasion for dividing the inheritance.7
[1.4] And although I said above that it was my proposal to teach those learning how to make preambles and how to narrate, yet I do not propose to omit the principal things, without which a regular narration cannot be made. Thus, these things should be distinguished by means of chapters.
[1.5] What a testament is. The etymology of the word 'testament'. Who may lawfully make a testament. How may different types of testaments there are. How testaments should be made and corroborated.
[2.1] Some say that the testament is a disposition of the last will. Others say that the testament is a sworn deposition of the mind [testatio mentis]. And although these definitions could be sufficient enough, I wish to add to them two more definitions, which seem to come forth from the letter itself and from the purest truth. For example: A testament is a fearful or a last herald of death, because every testator trembles to incurr the danger of death; or: A testament is a testimony or a sworn deposition of the mind, that is of the soul, according to which anyone will be judged in the future.
[2.2] The law of the Hebrews is called the Old Testament, and it should be called this not without cause. For Moses received the Old Testament on a mountain, according to whose precepts the Israelite people were required to live. Truly, the Lord spoke from this testament: "This is the testament that I will make with them after those days, giving my laws in their hearts, and I will inscribe these in their minds, and I will no longer remember their sins and iniquities."8 But the transgressors of this testament, like those who made a calf in Horeb and adored a molded image, exchanging their glory9 for the likeness of a calf eating hay, were struck by a true bodily plague and thus did temporally perish.
[2.3] What is more, all people, from Adam up to the advent of the Highest, could not enjoy eternal blessedness, because of the crime ob the first parents, but instead were consigned to the Hell, where the evil ones were tortured and eternally damned. Indeed the good, that is patriarchs, prophets and all those who legally maintained the testament, did not feel the punishments of Hell, because the testimony of their mind was a defense for them against the punishment, nor did the Enemy of mankind dare to touch them, since they were protected by the sheild of the testament which they observed.
[2.4] When Christ descended to Hell, all those who had observed the testament, that is for whom a testimony of mind had pleaded, he pulled out of the pit of hell and brought into the joys of paradise. We who after the advent of Christ are reborn from water and the Holy Spirit, if we shall observe the New Testament, that is the Gospels and the apostolic traditions, we shall be able to expect eternal joys from a testimony of mind. The apostle Paul said of this testament: "This is our glory, a testimony of our conscience,"10 that is, we can glory in this if we observe the New Testament according to a pure conscience.
[3.1] Testament is derived from 'testor, testaris' or from 'testator'. Or testament is derived from 'testes', because a testament should not be made without the display of witnesses. Or testament is derived from 'testimonium mentis' because a testament is said to be a testimony of the mind.
[4.1] I do not fully know for whom it is lawfull to make a testament, whence I reserve a solution to such questions for those more skilled.11 However, legal scholars say that all those who enjoy liberty can make a testament, unless they are under the authority of a father or guardian, or unless they are serfs or proscribed to servile condition, or unless they have renounced earthly things for the sake of the fervor of some religious order, such as hermits, monks or canons regular.12
[5.1] The diversities of testaments are infinite, which no one can know, unless he regally traversed the entire world, which would be impossible. For there are as many diversities of testaments as there are customs of the provinces.
[5.2] Some have their testaments redacted in writing by a public notary and these testaments are confirmed by lawful witnesses, and this custom rules in the lands of Italy.
[5.3] Elsewhere a testament is not redacted in writing by great and approved persons. Even if it is redacted in writing, it is not done by a public notary, because there are none there. But it is written by priests or clerics, or by others who know how to write. This is the custom in Germany, that the priest who offers penance to a sick person, writes or has written what he leaves for his sould or for his heirs. And both free men and serfs make testaments there, but it is not always redacted in writing.
[5.4] For in many parts of Italy testaments are not written, but sick persons say "I leave for my soul 100 (or 40) pounds, half among the parishes and chapels and from the other half expenses shall be paid for the burial and what remains shall be distributed to the poor." And from this he gives an executorship to a priest, who firmly promises by book and priestly stole to carry this out. Afterwards he leaves moveable and immoveable property to the heirs, according to the custom of the region. In some parts of Tuscany a testament is called 'iudicium' [judgment] in the vernacular, whether it is contained is writing or not. Whence often one says to sick persons "What do you adjudge to me?" Sometimes the sick person responds "I adjudge to you 10 pounds" or that which the testator pleases, and in such 'judgments', that is in such testaments, any witnesses are admitted, even if they criminous, on account of an approved custom.
[6.1] Whence it should be noted that some testaments are simple and others are solemn.13 A simple testament is one in which two or three witnesses are employed without writing and legal formality. A solemn testament is that which is written by a public notary and seven witnesses are employed, Roman citizens, that is who are understood to be subjects of the Roman empire, who are adults, not legally infamed, not subject to foreign justice, with certain formalities which are found in Roman law. According to Roman law women are not admitted as witnesses in testaments.
[6.2] If an preamble should be utilized before testaments, it is right that the dictator should carefully consider offices and status of lofty persons. If it is right to compose a preamble or narration for the emperor, for kings or for princes, solemn words should be used for an emperor, as follows:
[7.1] However much the celestial Father makes us abound among all mortals in the temporal dignity of marvels and in affluence of possessions, we should in like amount specially prepare for the last day with pious works and just actions, lest the day of the Lord, coming15 like a thief for the weighing of our sins, might take away from us the power to make a testament.
[7.2] Thus we constitute as our testamentary executor the archbishop of Mainz, who shall recieve from our treasury 10,000 marks of pure silver, from which sum he shall not postpone to construct a monastery in a wooded area under the congregation of Clairvaux. If indeed, buffetted by waves of sickness, we shall have paid our debt of humanity, let 2000 pounds of gold be bestowed upon widows, paupers, orphans, Hospitallers, Templars, lepers and to others suffering need, so that if any stains of earthly contagious adheres to us, they shall be washed away through gifts of alms and the prayers of paupers.
[8.1] Some make testaments at the time of their prosperity. Some when then go across the sea. Some when they visit the dwelling of the Apostles. Some when they join the army. Some during youth. Some during old age. Some at extreme old age and some in imminent danger of death. Preambles may thus be arranged according to rules in all these cases, as follows:
[9.1] Since earthly glory is deceptive and quickly passes away like the field's flower and vapor,17 I do not wish to trust in temporal prosperity nor in the health which I now, the Lord permitting, hope to enjoy. Why shouldn't I make a testament concerning my property, so that if by a supervening mortal judgement I was carried away from the midst of life, the Lord calling, no one would would find cause for maligning from my property and possessions. Thus is is etc. Or otherwise:
[10.1] Since man born of woman lives for a brief time, one should not confide in momentary health and prosperity, that he might approach penitance and the final disposition of his property with diligently prepared steps. Hence it is etc. Or otherwise:
[11.1] Although after Adam and Eve's Fall no safe place for mortals may be found within mechanism of the world,19 yet even more risky is passaged on the wave-tossed sea, in which many are often suddenly submerged and drowned on account of the inevitable20 collisions of winds. Thence it is that I have disposed to make a testament for the soul's redemption, legitimately dividing my property and possessions among co-heirs. Or otherwise:
[12.1] Since the human condition may easily be endangered among stormy and flood-tossed clashes of waves, the most safe thing for me and or anyone wishing to cross the sea to do is to first make a testament concerning property and possessions for the salvation of mind and body, lest while in the water we are forced to beg for a space of time to make a testament, which we were seen to have abundantly on land according to the course of temporal events. Whence it is etc.
[13.1] Since, on account of the fragility21 of the human condition, there is no one who should not fear the danger of temporal death in his own house, that much more strongly should one hesitate to make a transit through the savage and frosty Alps, to cross tempestuous rivers and woodlands, in which many have already perished on account of slackness of body and distemper of spirit.
[13.2] Whence it is that since I have proposed to visit the dwelling of Saint James the Apostle,22 I desire to first make a testament of my possessions and property. Or otherwise:
[14.1] For special reverence and alleviation of my sins, I have proposed to soon visit the dwelling of saint James the Apostle. Indeed because human fragility is accustomed to succumb to temporal death in a short space of time, therefore I have proposed to make a testament concerning the possessions and all my property which I possess and to first assign a fitting portion to the church and to the poor for the redemption of my soul. Thus I leave etc.
[15.1] Since we see by effect that those hastening to war constantly succumb to temporal death, I, Guido de Castello Novo,23 who is required by a special mandate to hasten to the king's army, wish to make a testament concerning moveable and real property and to institute heirs, because if it would happen that I would die intestate, let it be so, a cause of altercations would arise among many concerning said property. Thus I leave for the remedy of my soul etc.
[16.1] Since all die and death would spare no age of life, I should not nor can I confide in the flower of youth, because every age is like hay, which is here today and tomorrow is thrown into the fire,24 just as can be seen assiduously by the result. Or otherwise:
[17.1] Since temporal death has not been accustomed to spare any age, there is none who should hope on account of youth to be accorded protection of life or to draw out the armistice of his vocation into some length of days. Or otherwise:
[18.1] Since the Saviour of mankind, who is God and man, and in whom there is life through the incarnation of flesh, the Deity of human flesh, which it assumed from a virginal womb, wished a part from the community of the Deity, asif a temporal death had been given to Him in the full flower of youth, if there is anyone who should or could trust in the armor of youth.
[19.1] Although children and youths may easily succumb to temporal death, yet because of the fragility of age the very old are even more susceptible to destruction are dissolved by a slight breeze of light illness. Or otherwise:
[20.1] Just as foliage blooms in the temperate morning air and shrivels up and falls off in the evening, so men flourish during their youth and decline and shrivel in old age, because a senile age is more susceptible to destruction.
[21.1] The very old, whose time of life is notwithstanding fruitful for many, are required to carefully make a testament for the soul's redemption. I, who having traversed in some way the period of old age have come to extreme old age, which measures the years to the end of life, should make a testament as carefully as my life has become more onerous to all and my bodily powers are annulled with descreasing natural warmth, and so theh connections of my limbs having been dissolved, constantly trembling I await the day of my final dissolution.
[22.1] Some say that the foundation of the testament is the institution of heirs, which could be true according to temporal laws. Nevertheless, if the nature of the word is first inspected, a testator ought to give to the church and to the paupers which he has in mind, because a testament is a testimony of the mind, that is of the soul, and that which is given to the church and to paupers, will be a testimony for him before God. Another reason is certainly quite obvious, namely that spiritual things should always be placed first before temporal things.25
[23.1] Preambles should not be used for <the testaments of> sick persons, because it would be manifestly repugnant to the truth, since sick persons rarely or never use preambles, but are forced to carry out their business with groans and pain. Thus you who would speak for a sick person should not employ lengthiness of words, but should construct a testament quickly and narrate those things which are proposed by him under appropriate brevity. For example:
[24.1] I, Johannes, seeing that the danger of death threatens me, desire to make a testament concerning my estate.
[24.2] Thus for the soul's redemption, I first26 leave to the church of S. Benedict27 the houses and vineyards which I have in the territory of Panicalis.28
[24.3] Secondarily, I institute all my sons as my principal heirs in all other possessions and my property, both moveable and real, yet retaining this condition, that they should furnish 100 imperial pounds to my daughter B. when she attains marraigeable age, which money I give and bequeath to her by hereditary right.
[24.4] If it would happen that I die from this sickness, I wish my wife to be owner and have usufruct in all my possessions so long as she lives, if she shall wish to remain a widow, providing she cares for sons and daughters with maternal affection. Otherwise, she may receive at the time of her remarriage her dowry, namely 40 marks of silver and one quarter of the moveable property which I granted her at the time of our betrothals as a bride gift.
[24.5] I establish my brother P. as the guardian of my sons so long as they are of minor age. Or otherwise:
[25.1] I Johannes, under the immense weight of a mortal debility, believe that the day of my dissolution approaches, in which this mortal body will pay back the debt of nature. Whence I desire to construct a testament concerning my property and possessions.
[25.2] Therefore to begin with, because spiritual things are set over temporal things, for the remedy of my soul I leave to the Camaldolese hermitage 10 ounces of gold and all the woodlands which I have on the Ravona hill. I bequeath 100 imperial pounds to churches, religious houses, paupers, widows, orphans, lepers and to others suffering need. For the purpose of distributing all this, I constitute P. and I. as my testamentary executors, so that they should distribute this money to each and every one as they see fit.
[25.3] Indeed I hand over a full and free authority to them, so that notwithstanding any contradiction of the heirs, they may take and sell from my property as much as is required to pay the legatees.
[25.4] I wish that 100 imperial pounds should be restored to my wife at the time of her remarriage, which I held for her as dowry, and moreover, that at that time she has from my estate one pound of gold.
[25.5] Furthermore, I constitute her owner and usufruct of all the things in my house, if she would wish to observe a vow of chastity and care for my sons with maternal affection. When for instance she is willing to pass over to second vows, or she otherwise wishes to take care for herself, I order that she may have the aforesaid dowry and legacy. I institute my daughter Sempronia as heir with 100 silver marks, which I granted to her as dowry with which I have joined her to her husband in matrimonial bonds.
25.6] In addition, and as a sign of paternal benediction, I leave her two pounds of purest gold and order her to be content with these. I leave 100 imperial pounds to my daughter Altruda, when whe comes to marraigeable age. In all my other property I institute my sons A. and B. as heirs for the male portion.
[25.7] If either one of them dies before me, I institute the sons or heirs in place of the father.
[25.8] If I should have a posthumous29 son or sons, I wish him or them to inherit equally with the aforementioned. If one or more posthumous daughters should be born to me from my wife, each one has by hereditary right 40 ounces of gold, and from this money she shall remain forever content. And lest any son born to me at any time from any legitimate wife could infringe this testament, I institute equally him and all others which are born to me as heirs.
[26.1] But the observers of the Old Law instituted theirs heirs in another way, blessing them just as Isaac did to his son Jacob, who by the forstalling astuteness of Rebecca took the blessing of Esau.30 Whence afterwards he himself could hardly attain for his own institution a blessing from the dew of heaven and the fat of the land. For at that time the institution of heirs was such a blessing, but just as been said before, diverse customs should be observed in making the institutions of heirs according to the diversities of provinces. Indeed the woody Cumani, who worship the first beast which bestially appears to them in the morning,31 make institutions of heirs through the kiss of peace which they furnish each other for confirmation.32 Truly in certain parts of Ethiopia the institution of heirs cannot be made unless it is confirmed by the prince, and both Saracens as well as Christians have a diversity of customs in the institution of heirs.
[27.1] Therefore the testament, unless it should be made by those who have fled the world, revolves circularly like a wheel,33 since the will of the testator is ambulatory until the end of his life. Whence one not wishing to do so cannot impose a law on himself, except at that time in which the stilus of the last will is free and judgment is legal, which cannot return again.34
HERE ENDS THE BOOK WHICH IS CALLED MIRRA.
Top of page-- Table of contents -- Edition
1 See e.g. the sermons by the Latin Fathers on the Epiphany, also those by Bede, Bernard of Clairvaux, and Innocent III.
2 Sir. 41.1.
3 This passage would seem to provide evidence that Boncompagnus prol. 3.1 is indeed a part of his 'literary testament'.
4 For funerals, see Boncompagnus 1.26.
5 Definitions of the orator and the officium oratoris are found in Rhetorica novissima 3.1.9, 3.1.11.
6 A theme repeated throughout this treatise, that in testaments are first made bequeathals for the repose and remedy of the testator's soul, and second comes the institution of the heirs. See below, Mirra 14.1, 22.1, 24.2-3, 25.2. For the subordination of temporal to spiritual things in the grant clauses of privileges, see Oliva 8b.20.
7 See Epistola ad comites palatinos passim on divisions of an inheritance.
8 Hebr. 10.16-17.
9 Psal. 105.19-20.
10 II Cor. 1.12.
11 However, Boncompagno functioned as a witness and occasionally as an arbiter for the court of bishop Nicholas of Reggio in the years 1229-1234.
12 Azo Summa Codicis (Turin 1566) 225: Sunt autem XIII. numero quibus non licet facere testamentum, ut ecce filiusfamilius, impubes, furiosus, prodigus, cecus, mutus, damnatus ad mortem, obses., intestabilis, et de statu incertus, cui lege est in interdictum, servus, et monachus. But there are specifications and exceptions to some of these prohibited classes: a father may grant the right to make a will to a son in his potestas, with his father's permission a son can make a donatio causa mortis, a son might make a military testament; insane people might make testaments during lucid intervals; a deaf-mute person could make a testment if he was mute through an injury and not from birth and if he could write and so wrote his own testament or if he commissioned someone else to do so with the emperor's permission (the case of someone mute but not deaf from nature is considered nearly impossible); a very careful procedure for drawing up the will of a blind man was allowed; a condemned man who shall not lose his status before the execution can make a will. Finally Azo says that a presbyter cannot make a will. Boncompagno's unwillingness to go through all these cases more likely suggests his knowledge of the law than his ignorance of it.
13 The same distinction is made of confirmations in Oliva c.42.
14 For the testaments of German kings and emperors, see GUNTHER WOLF Florilegium testamentorum ab imperatoribus et regibus sive princibus nobilibus conditorum ab anno 1189 usque ad annum Rudolfi illustris regis Romanorum perductum (Heidelberg 1956).
15 I Thess. 5.2,4, also quoted in Boncompagnus prol. 2.1
16 This chapter does not have a rubric, probably because c. 8 is itself a list of the rubrics for cc. 9-21.
17 I Peter 1.24 and Jac. 4.14. Cf. Boncompagnus 5.20.1 §10.
18 See WENTWORTH S. MORRIS "A Crusader's Testament" Speculum 27 (1952) 197-198.
19 For this phrase, see Lucretius De rerum natura 5.96, Innocent III PL 217.433, Liber Augustalis, prooem. (POWELL tr. 3). Cf. De amicita 5, Boncompagnus 1.21.4, 1.25.3, 1.25.11§1, 5.22.1§1, Rhetorica novissima 9.3.1.
20 For medieval preachers' discussion of sudden death (mors repentina), see J.C. PAYEN "Le Dies irae dans le predication de la mort et des fins dernerieres au moyen age" Romania 86 (1965) 66-73.
21 The concept of fragilitas humana, which can be traced back to Cicero (pro. Marcell. 22, Tusc.5.3, De), appears frequently in the formulas of late Roman and early medieval testaments. See WILHELM JOHN "Formale Beziehungen der privaten Schenkungsurkunden Italians und des Frankenreichs und die Wirksamkeit der Formulare" Archiv für Urkundenforschung 14 (1936) 1-104 at 18-20 and HEINRICH FICHTENAU Arenga: Spätantike und Mittlelalter im Spiegel von Urkundenformeln (Cologne 1957) 126-8. It appears twice again here (Mirra 14.1 and 19.1) and in Boncompagnus 1.25.3, 1.25.11, 1.25.19, 2.1.1, 3.12.1, 5.10.11, 5.10.16, 5.12.3; it is also used there with special reference to lepers (4.6.5, 5.3.4) and to women (1.25.8, 3.15.16, 4.4.16, 5.4.19). Women and adolescents are also described as flexibilis (1.25.9, 5.20.1, 5.20.9, 5.22.1), an adjective Boncompagno applied to himself as a layman in Oliva 1.4.
22 On pilgrimage to Santiago de Compostela, see De amicitia 26, Boncompagnus 3.16.8, 5.13.1.
23 This man, apparently a vassal of marquis Boniface of Monteferrato, is also mentioned in Quinque tabule salutationum 5.12. See also Rota veneris 2.1.
24 Matt. 6.30.
25 See above, Mirra 1.3.
26 For other didactic features found within Boncompagno's models: Isagoge 3.75.
27 Not identified.
28 South of the Lago Trasimeno and east of Chiusi.
29 For posthumous children as heirs, see Boncompagnus prol. 2.3, with literature there cited.
30 Gen. 25.33
31 For the religion of the Cumani, see Boncompagnus 5.22.4 and Rhetorica novissima 1.1; their burial practices are described in Boncompagnus 1.27.4. Letters of Gregory IX which deal with the Cumani: Po. 7984, 8153-5, 8375, 8454, 8457, 8669, 9725, 9750, 9827, 10042, 10045, 10068, 10368, 10505, 10507-8, 10585, 10631-9, 10763.
32 Aurea Gemma <Gallica> 2.11: Omne testamentum morte testatoris confirmatur. See also above, Mirra 5.2.
33 For Boncompagno's use of wheel imagery, see Rhetorica novissima 9.3 and Rota veneris 1.
34 Codex 1.2.1: Habeat unusquisque licentiam, sanctissimo actholicae venerabilique concilio decedens bonorum, quod optavit, relinquere. Non sint cassa iudicia. Nihil est, quod magis hominibus debetur, quam ut supremae voluntatis, postquam iam aliud velle non possunt, liber sit stilus et licitum, quod iterum non redit, arbitrium. This is also quoted in Boncompagnus prol. 1.2 and cf. Alexander Neckam De naturis rerum 2.173 (WRIGHT ed. 297): Liber enim debet esse supreme voluntatis stilus, et liberum quod iterum non redit arbitrium.