Death, Taxes and Status in Pliny's Panegyricus

JANE F GARDNER (READING)

At some point in his lengthy reign—the year, according to Dio (55.25), was AD 5—the emperor Augustus introduced a law, or rather re-enacted an earlier one, previously repealed, establishing a 5 per cent tax upon inheritances by will.

In exempting close relatives, it resembled the restrictions on receiving inheri­tances imposed by the earlier Augustan law intended to encourage marriage and procreation, the lex Julia de maritandis ordinibus. Dio does not specify what degrees of relationship were originally exempted from payment of the tax; it does not appear, however, that the exemption extended so far as the capacity to receive inheritances under the marriage legislation. The latter embraced the first six degrees of kinship;^[118] the lex vicesimaria, however, appears, as will be seen presently, to have exempted no more than the first two.^[119] The reference made to the exemption by the younger Pliny in Panegyricus 37.1 is imprecise.

“In his (sc. vectigalibus) vicesima reperta est, tributum tolerabile ac facile heredibus dumtaxat extraneis, domesticis grave. Itaque illis inrogatum est, his remissum.”

[“Among these is found the 5 per cent tax, one tolerable and acceptable in so far as it affects external heirs, but a burden for �?domestic’ heirs. Therefore it was exacted from the former, but waived for the latter.”]

Those exempted, he says, were domestici, “of the family”, whom he describes as having a right to expect untrammelled inheritance, on grounds of “blood and kinship and participation in family rites” (the last itself a phrase of dubious sig­nificance for Pliny’s time), sanguine gentilitate sacrorum denique societate meruissent.

The law imposing the tax applied to inheritances left by all Romans. The exemption on grounds of kinship, however, applied initially only to existing Roman citizens.

“Haec mansuetudo legis veteribus civibus servabatur: novi, seu per Latium in civi­tatem, seu beneficio principis venissent, nisi simul cognationis iura impetravissent, alienissimi habebantur, quibus coniunctissimi fuerant.” (Paneg. 37.3)

[“This easing of the law was reserved for citizens of long-standing. New citizens, whether they achieved the status through Latin rights or by special grant from the emperor, unless at the same time they had succeeded in obtaining rights of kinship, were regarded as com­pletely unrelated to those with whom they were most closely connected”.]

Pliny credits Trajan and his predecessor Nerva with a number of modifica­tions, extending the exemption to some at least of these new citizens. Nerva was the principal reformer, introducing five concessions:

(1) Mothers and children were exempted from paying the tax on property passing between them, in either direction, by way of inheritance.

(2) Sons who had come under patria potestas were exempted from paying.⁵

(3) In addition, exemption was extended beyond parents and children to the second degree of kinship, i.e., between siblings, and between grandparents and grandchildren.

(4) The same concession—presumably exemption for relatives up to the sec­ond degree—was granted also to those gaining citizenship through Latin rights.

(5) At the same time, legal recognition of cognatic relationships was made automatic upon the grant of citizenship. Hitherto this had been dependent on individual application to the emperor by those newly made citizens and had usually been unsuccessful—at least, this is asserted by Pliny, who is, however, determined to contrast Trajan and his adoptive father favourably with their predecessors.

It is useful now to examine the texts:

(i) “Pater tuus sanxit, ut quod ex matris ad liberos, ex liberorum bonis pervenisset ad matrem, etiamsi cognationum iura non recepissent, cum civitatem apiscerentur, eius vicesimam ne darent.” (Paneg. 37.6)

⁴G. 2.156-61.

⁵ The Loeb translation (Radice) misleadingly and inaccurately renders reductus esset in patris potestatem as “he is still in his father’s power”. On this see further infra.

[“Your father ordained that for property passing from a mother to her children, or from children to their mother, even if they had not been given rights of cognation when they achieved citizenship, they should not pay the 5 per cent tax”.]

(ii) “Eandem immunitatem in paternis bonis filio tribuit, si modo reductus esset in patris potestatem.”

[“He granted the same exemption to a son inheriting his father’s property, provided he had been brought into his father’s potestas”.]

(iii) “Nec vero contentus primum cognationis gradum abstulisse vicesimae, secundum quoque exemit cavitque ut in sororis bonis frater, et contra in fratris soror, utque avus avia in neptis nepotisque, et invicem illi servarentur immunes.” (Paneg. 39.1-2)

[“Not content with having exempted the first degree of relationship from the tax, he also exempted the second, allowing a brother immunity for property received from a sister, and likewise a sister from a brother, and a grandfather or grandmother for the property of a grandson or granddaughter, and vice versa”.]

(iv) “his quoque quibus per Latium civitas Romana patuisset, idem indulsit”

[“He also granted the same allowance to those who had obtained access to citizenship through Latin right”.]

(v) “omnibusque inter se cognationum iura commisit, simul et pariter et more natu­rae, quae priores principes a singulis rogari gestiebant, non tam praestandi animo quam negandi.”

[“And he granted to all of them, at the same time, without distinction and in confor­mity with the law of nature, the legal rights of cognation which previous emperors had insisted on making the object of special requests by individuals—with the intention rather of refusing than of granting them”.]

All these concessions applied to new citizens only, and presumably only in respect of relationships based on legitimate marriage—that is marriages legiti­mate under those laws which applied to them in their previous status.

Among existing citizens, at the time when Pliny was writing, only parents and their legitimate children were intended to benefit under Roman succession laws. Cognation was never recognised in classical law, for purposes of inheritance rights, between illegitimate children and their fathers, and was not yet recog­nised between illegitimate children and their mothers; whether, when it was (eventually) so recognised, they were allowed to benefit from the exemption, is something on which our sources provide no information, although it seems not improbable in the light of the way in which the law of succession between mother and child developed up to the later second century.

In the final form of the praetor’s edict, as consolidated under Hadrian, the clause unde cognati had been extended to allow illegitimate children to inherit from their mothers, and vice versa. This is first attested by Gaius, and later con­firmed by Ulpian.⁷ It is highly unlikely, given the proclaimed moral purposes of Augustan legislation on marriage and inheritance, and the incentives it offered to procreation of legitimate offspring, that illegitimate relationships will have been recognised for any inheritance rights in his reign, or indeed for some time thereafter. Hadrian’s reign, which is characterised by a number of other enlight­ened reforms benefiting illegitimate children as well as the offspring of mixed- status marriages not valid in Roman law,⁸ seems a more likely time than that of Augustus, or any of the intervening emperors (whose record on such matters is unimpressive), for this change, which was perhaps part of the general overhaul of the edict involved in Julian’s final codification.

Matters had not progressed so far by the reign of Nerva’s successor. The civil law on intestate inheritance and the modifications to it in the praetor’s edict dur­ing the late Republic were concerned only with persons of legitimate birth.¹⁰ At the time at which Pliny was writing, legitimate children could inherit from their fathers as sui heredes in civil law. Under the edict they could inherit as liberi (which included emancipated children) from fathers only, but not yet from mothers, and as cognati from both fathers and mothers.

This perhaps accounts for the legally somewhat imprecise, but factually accu­rate, language of Pliny in Paneg. 37.1, with reference to the Augustan law: In his vicesima reperta est, tributum tolerabile et facile heredibus dumtaxat extraneis, domesticis grave (“Among these is found the 5 per cent tax, one tolerable and acceptable to outside heirs, but burdensome to family”). For Pliny, “outside heirs” does not include everyone who is not a suus heres (contrast the definition of extranei in civil law: G. 2.161). By describing those contrasted with sui here­des as domestici, a less precise term and one without technical legal significance in this connection, he admits the possibility of exemption not only for those admitted under the broader praetorian category liberi (which would include

⁷ D. 38.8.2 (Gaius); 38.8.4 (Ulpian).

⁸ Gardner, supra n.6.

⁹ D. 38.17.1.2; 38.17.2.1.

¹⁰ On the chronology of these changes, it is argued in J F Gardner, Family and Familia in Roman Law and Life (Oxford, 1998), Part I.5(a) and (b), that praetorian inheritance unde cognati was intro­duced some time between 71 and 66 BC and unde liberi later, in the latter part of the first century BC and possibly not before the ascendance of Augustus.

Nerva’s first two concessions to the families of new citizens cover only the first degree of kinship. Only one category of extranei (in the strict sense) is men­tioned—cognate inheritance between mother and child—and inheritance by children from fathers is confined to sui heredes; it is specified that they must have been brought into paternal power (reductus esset in patris potestatem).

Why was a special imperial ruling necessary? And why mention only these particular categories?

New citizens were capitis deminuti, having undergone a change of status.^[121] Those who became citizens by ius Latii, and those peregrines made citizens by individual grant from the emperor, had undergone capitis deminutio minor (or media), having had a change of civitas but without loss of freedom. Their situ­ation was quite distinct from that of those Roman citizens who had undergone capitis deminutio minima, that is, one of those changes of status (i.e. emancipa­tion and adoption, along with the less common fiduciary coemptio, itself predominantly of the early empire, as well as—Gaius, with some conscious archaism, adds—mancipatio of children in power), which not only applied solely to persons who were already citizens, but were also the result of purely private acts.

Capitis deminutio minima destroyed agnatic rights, but left cognatic rights unaffected (G. 1.163). However, capitis deminutio media (and, a fortiori, max­ima, which affected not only civitas but freedom, and therefore applied both to freed slaves and to Romans taken captive, and so in effect enslaved, by foreign powers) destroyed both cognatic and agnatic rights.

This effect of capitis deminutio media, the destruction of cognation, though not explicitly stated in legal sources, is implicit in legal discussion both of postli­minium and of servilis cognatio. The latter, indeed, was recognised mainly for avoidance of incest, and as a ground for claiming “good cause” for manumis­sions not otherwise conforming to the requirements of the lex Aelia Sentia.^[122] For the benefit of the families of citizens taken into captivity, various legal fic­tions (operative when their death was certain) had to be adopted, in effect deny­ing that the captivity had ever occurred.^[123]

Therefore new Roman citizens, likewise, were regarded, in Pliny’s words (Paneg. 37.3) as “completely unrelated” (alienissimi) to those to whom, both by blood and by such ties of legitimacy as were recognised in their own peregrine law, they had formerly been accepted as related. These relationships therefore had to be accorded separate recognition. This was still the case under Hadrian, according to G. 1.93-4, for peregrini seeking Roman citizenship, or those individually admitted, along with wife and child. Hadrian laid down, both by edict and subscriptio, that existing children did not automatically come under potestas; this right had to be conferred by special grant from the emperor, after investigation of the individual case.^[124]

Those admitted in virtue of Latin right, however, automatically received potestas (G. 1.95). This is confirmed as early as the Flavian period by two par­tially surviving texts of the Flavian municipal law relating to municipia in Roman Spain, the lex Salpensana and the better-preserved lex Irnitana. The rel­evant clauses are numbers 21 and 22; these deal with the consequences of indi­viduals having received citizenship by jus Latii, that is in virtue of having held magisterial office in the municipium.^[125] From this text, it has been observed that among the municipes of these Spanish towns there existed certain institutions found among the Romans, in particular the three mentioned, patria potestas, manus and mancipium.^[126] The reason for their existence is clear from clause 93: the legal system in use in these municipia is to follow the forms of Roman civil law. The clause refers specifically to any matters not already covered in the main text of the law; but the presumption must be that there too Roman forms applied (save for litigation, which is to follow the pattern of Roman praetorian jurisdiction: clauses 71, 89, 91).

Clause 21 states that these ex-magistrates are to receive citizenship, together with their parents, wives, and children who were both born in legitimate mar­riage and “have been” (fuerint) in the power of their fathers. Clause 22 confirms that these latter are to remain in the same potestas (or manus or mancipiumj as they would have continued to be in (as Irnitani, Salpensani, or whatever) had they not undergone a change of civitas. In other words, as observed by a recent commentator, the law “transfers the entire family structure intact into the Roman citizen body”.^[127]

Nevertheless, it was still necessary, Pliny tells us (Paneg. 37.3), for some new citizens, whether they had become so by ius Latii or by special grant from the emperor, to make a special request for “rights of kinship” (iura cognationis) unless these had been received at the same time as the civitas—that is, if they wished to be able to inherit under Roman law. The Flavian municipal law granted automatic renewal of relationships of potestas, manus or mancipium, and so of inheritance—but under Roman civil law only, and only to those in the first category, the sui heredes, “those in potestas, manus or mancipium”—in effect, since the latter two institutions were pretty well obsolete, only to filiifa- milias. They were initially the only new citizens who would qualify to inherit from their fathers. Sons of new citizens not brought into patria potestas on enfranchisement apparently did not.

As cognate inheritance was an institution not of civil but of praetorian law, it was not conferred by the Flavian municipal law. New citizens, whether by ius Latii or by individual grant, could not inherit as cognati from their fathers at all, nor even from their mothers, unless application was made to the emperor for iura cognationis.

Whether citizenship was acquired through ius Latii or not, legal recognition of all claims to maternal inheritance as cognates would previously have had to be specially obtained—this is the context of Nerva’s first concession. By allow­ing cognates exemption from the tax whether or not iura cognationis had been granted at the time of enfranchisement, he effectively abolished the requirement to apply for it.

The second tax concession specifically mentions sons “brought into” paternal power. The reasoning appears to be as follows. Sons still in paternal power con­tinued to be so when enfranchised by ius Latii along with their fathers; that was provided for in the Flavian municipal law, and they would therefore, as sui heredes, automatically benefit from the exemption from tax already granted in the Julian law. If subsequently emancipated, they could still inherit as liberi, and be exempted from tax on the same grounds. This was not the case where fathers had received individual grants of citizenship; their sons, even if they had also been granted citizenship at the same time, did not automatically re-enter their potestas. They could no longer therefore inherit as sui heredes; nor could they inherit even as liberi (since they had not previously, like emancipated citizen sons, been in potestas and left it merely by capitis deminutio minima). The same would apply when children had for some reason not been in potestate at the time when their fathers received citizenship by ius Latii and had entered it indepen­dently.

In order to qualify for inheritance rights, and for the tax exemption, sons of new citizens, other than those admitted under ius Latii, had to be brought into power (reducti in patris potestatem). If, after separately achieving citizenship, they had simply been adopted under Roman law, they would then, in civil law, be like any other adoptive sons, and should therefore, one would have thought, automatically have been allowed the tax concession. Nerva, however, in the sec­ond of the concessions listed by Pliny, exempted these people from the inheri­tance tax. This perhaps indicates that they were brought into the potestas of their new citizen fathers, and so had their rights of kinship recognised, by some procedure other than normal adoption—for example, testatio to an official as used by Junian Latins obtaining citizenship through anniculi probatio.

These two concessions are summed up by Pliny in the words “not content with having exempted the first degree of cognation from the tax”, “nec vero con­tentus primum cognationis gradum abstulisse vicesimae”. The third and fourth concessions both seem to relate to the same thing, namely, exemption from the tax on inheritance from remoter relatives, those in the second degree. Although only those obtaining citizenship by Latin right are separately mentioned, it is likely that those referred to in the first part of the sentence are new citizens receiving citizenship in some other way, that is, by special grant from the emperor. This is more probable than to suppose that the Julian law had applied only to relatives in the first degree, and that only now, a century after the pass­ing of the original law, were citizens by birth allowed exemption for inheritance other than that between parent and child.

Lastly, we are told that Nerva abolished for “all” the requirement that iura cognationis be obtained by special request to the emperor. Since, on the argu­ment above, new citizens related in the first degree either obtained iura cogna­tionis automatically by being brought into the potestas of their fathers, or had the need for application waived, where inheritance between mother and child was concerned, “all” presumably refers to those granted exemption from taxa­tion under (ii) and (iii), that is, relatives in the second degree also admitted to citizenship, who had hitherto been able to achieve the iura, but only on special request (not always granted).

Nerva’s reforms therefore cancelled the effect of capitis deminutio media for relatives within the first two degrees who had achieved Roman citizenship, and also allowed them exemption from the vicesima hereditatum upon each other’s estates. Pliny makes as much as he can of Nerva’s generosity, since the contri­bution of Trajan, the recipient of his praise in the Panegyricus, was relatively limited:

“[Nerva] went only so far. This was perhaps more sparing than became an excellent princeps, but not more sparing than was appropriate for an excellent father. He intended to adopt you, and in this too acted like the most indulgent of parents. He con­tented himself with merely touching upon, or rather indicating, certain matters, leav­ing to his son an extensive and virtually untouched field for potential benefaction.”

Trajan added what at first sight appear to be two modifications, both con­cerning inheritance between father and son:

(6) no tax was paid on property inherited by a father from his son;

(7) the requirement that the son have been in patria potestas was abolished.

(vi) “Statim ergo muneri eius liberalitas tua adstruxit, ut, quemadmodum in patris fil­ius, sic in hereditate filii pater esset immunis, ne eodem momento quo pater esse desis­set, hoc quoque amitteret quod fuisset” (Paneg. 38.2)

[“Your generosity, then, immediately added to the value of his benefaction by provid­ing that a father should be exempt from tax on an inheritance from his son (just as a son had been on an inheritance from his father) lest he lose simultaneously both fatherhood and also the property which there had been”.]

This concession was later described by Pliny (ibid. 6) as “logical” (congruens), and justified by symmetry.

(vii) “Tu quidem, Caesar, illam exceptionem removisti �?si modo filius in potestate fuis­set patris’ ” (Paneg. 38.7)

[“You, indeed, Caesar, removed the qualification, �?provided that the son had been in his father’s potestas’ ”.]

These two mentions are separated by 137 words of Latin. The second, how­ever, appears to be not a separate modification, but an elucidation of the first. In what circumstances would a father inherit the property of his son? Only if the son were (a) recognised as such and (b) no longer in his power. The reference may, indeed, be to sons who had, like their fathers, become Roman citizens, had come under the potestas of the latter, and then had subsequently been emanci- pated.^[128] However, it is difficult to believe that the restriction on “new citizens” would be held to apply to them, since they had duly been reducti in patris potes­tatem (even if they had not remained there) and their second capitis deminutio had been merely minima.

Sons who had become citizens independently of their fathers, by separate grant from the emperor, would not be legally recognised as their sons at all, without special application. It is difficult to suppose, however, that this would have been regarded as acceptable unless there were special considerations. Even for duly manumitted slaves, the only related concession mentioned in legal sources is permission to adrogate (and so bring into their potestas) their natural sons, born in slavery and like them manumitted; adrogation of someone else’s freedman was not normally permitted.^[129] Ulpian says: “A son born to me while I was a slave can be brought into my potestas by special grant of the emperor”.^[130] This comes from Ulpian’s commentary on the Lex Julia et Papia, and may indi­cate that it was instituted by one or other law as a way of giving encouragement to ex-slaves to form traditional Roman familiae, headed by a paterfamilias; there may be the implication that such natural children, if adrogated, were allowed to count towards relief from the penalties of childlessness.^[131] It seems unlikely that former peregrini would be allowed any of the Julian law’s benefits of legal fatherhood without bringing their sons into potestas, unless some spe­cial factors applied.

One rather far-fetched possibility, and unlikely to apply to many people, is that of men who, while Irnitani, Salpensani, or whatever, had already been emancipated under the local simulacrum of Roman law, and then had also, like their fathers before them, managed to become local magistrates, and so Roman citizens. It could be held that a concession was deserved where not just one, but two, generations had shown themselves worthy of citizenship by taking on local office. Rather more likely to exist in practice, and in some numbers, were the sons of discharged veterans, who had become Roman citizens along with their fathers by a special grant which, it was suggested above (n. 14), did not include potestas, and so had never come into potestas as citizens. It might be held that their fathers’ service to the state earned them special consideration.

At any rate, Trajan is extending the scope of the exemption, although only to a restricted range of potential beneficiaries. His contribution, however much Pliny tries to make of it, is minor. Trajan is the subject of Pliny’s eulogy, but the real reformer is his adoptive father, the elderly “caretaker” emperor Nerva.

Although Nerva was the son and grandson of two celebrated jurists, he him­self is not included in Pomponius’ catalogue (D. 1.2). Syme, however, is unduly dismissive:

“Though his grandfather, a close friend of Tiberius Caesar, had been the leading jurist of the day, and his father carried on the tradition, Nerva found that the study of the law was not worth the effort and the rewards. His name is absent from the roll of hon­our of imperial jurisprudence, and the only edict preserved from the period of his rule is feeble and verbose.”^[132]

However, had Syme consulted the Digest, he would have found there references to several other legislative changes attributed to Nerva. He extended in some unspecified way the testamentary capacity of soldiers.^[133] More importantly, he issued an edict banning enquiry into the status of a person once five years had elapsed since that person’s death. This was a very necessary and salutary mea­sure, in view of the status confusion which had developed in the wake of Augustus’s social legislation, especially that on manumission.^[134]

The provisions extending exemption from the vicesima hereditatum likewise show not only a clear understanding of the civil and praetorian laws of inheri­tance, of the effects of capitis deminutio, and the particular effects of the Flavian municipal law, but an appreciation of the ways in which deserving new citizens might be at a disadvantage. Whether these emanated directly from Nerva him­self, or from his advisers, we cannot tell, but he deserves some credit at least for promoting the reforms. It is he, the elderly “caretaker” princeps, rather than the soldier-emperor Trajan praised by Pliny, who deserves the greater credit for eas­ing the tax burden upon the bereaved.