CHAPTER IV FAMILY AND SUCCESSION

In modern English the word �family’, when we are not just using it as a general term for all our relatives (ascendants on mother’s or father’s side, descendants and collaterals), means a household—a man and wife and their unmarried children, a single conjugal group.

With the one further proviso that Roman law did not interfere with the internal structure of the peregrine family, and that what follows is about the families of Roman citizens, we can examine Roman family law more closely.

The family begins with marriage,³ to understand which it is important (but not easy) for the reader to make a clean break with all the Christian notions of marriage. To the Romans marriage was an honourable estate, for the purpose of concordant life together and the begetting of children ;* many a tomb inscription testifies to a bene concordans matritnonium. But it was not sacra­mental, not â€?holy’ matrimony; it was not thought to be main­tained or sanctioned by anything beyond the will of those who were parties to it—or their heads of families. The opposite of iustae nuptiae was not â€?living in sin’.

The status requirement of iustae nuptiae, conubiutn, has been explained in Chapter II. There were certain other requirements. First, there existed certain statutory bars to marriage between people who would not otherwise have lacked conubiutn. (a) By an Augustan statute, senators and their sons could not have iustae nuptiae with freedwomen or other women of undignified con­dition; Paulus quotes a section of the statute,⁵ mentioning specifically freedwomen and actresses (which included prostitutes) and showing that the law applied vice versa to women of sena­torial rank and men of low condition, (t) Ordinary soldiers could not, until the time of Septimius Severus, marry during their service, and even children of marriages contracted before entry, if bom during service, did not count as bom of iustae nuptiae; the prefect of Egypt is found affirming this principle in ad 115 and 117:⁶

�Martialis could not have a legitimate son during his military service; though he quite legitimately made him his heir....

(c) Officials in the provinces could not marry women of their province, nor (by a constitution of Marcus and Commodus) could guardians marry their wards. Secondly, there were, as in all societies, certain â€?taboo’ or â€?prohibited’ degrees—ascendants and descendants, and in our period anything nearer than first cousins. Marriage of an uncle with his brother’s daughter was allowed on the precedent of Claudius and Agrippina.⁷ Thirdly, there was a minimum marriageable age, based on the general notion of puberty but fixed at twelve for females and fourteen for males (although in the case of males some held that it must depend on physical inspection). If either of the parties was younger the union simply counted as an engagement until the legal age was reached;⁸ it was in no way an offence to enter upon such a union. The striking thing is the extremely low minimum age of marriage for girls. It has been shown by statistical study of inscriptions that females in Roman society did in fact marry extremely early; the latest survey gives a modal marriage-age for women of twelve to fifteen, and argues forcibly the unlikelihood that the age of puberty of Roman girls was as low as twelve.⁹ This is an impor­tant set of facts for the understanding of Roman society. It made the likelihood of early widowhood great, and second marriages of women common (Antonia the wife of Drusus was regarded as exceptional in remaining a widow) ;^{x 0} and whether or not it was possible in law for a father to force his daughter to marry, little girls of twelve or less cannot have had much practical freedom of choice.¹¹

Consummation was not a necessary requirement of a valid marriage.¹² What is more, although marriage was normally begun to the accompaniment of many forms and ceremonies, none of these was of the essence. Marriage was a matter of intention; if you lived together â€?as’ man and wife, man and wife you were.

�The same woman cannot be married to two men, nor the same man have two wives.’

But bigamy was not an offence; the situation is similar to â€?marriage below the legal age’. The law simply assumed that people could not have the necessary intention to live as man and wife with more than one partner, so only one would count as a iustum matrimonium. Cicero records the problem raised by a man who left his wife in Spain and married another in Rome; it turned, in the Republic, on whether there was an automatic divorce even though nothing had been said, and, if there was not, the second â€?wife’ was just a concubine.¹⁴ Gellius says that paelex was the ancient name (implying disesteem) of a woman who cohabited with a man who had a wife in tnanu.¹* Under the Augustan marriage legislation, though bigamy as such was still not an offence, a married woman who cohabited with someone other than her husband would be committing the grave criminal offence of adultery (and so would the man who cohabited with her) and a man who had non-marital sexual relations with an unmarried woman of high class would be committing criminal fornication, stuprum.

If you did not intend (or the rules did not allow you) to live together as man and wife you could live together as something else. Concubinage was regular and accepted in the life of Rome, and was in no sense thought sinful. It did not carry the respect attendant upon marriage, but this was because one of the partners was usually socially inferior; as Ulpian said, â€?the differ­ence is only in dignity’.¹⁶ Emperors sometimes had concubines. Vespasian, after his wife’s death, lived faithfully with a freed­woman, but never counted her as a wife;¹⁷ and Marcus Aurelius, when his wife died, refused to marry the woman (almost certainly freeborn) with whom he subsequently lived, â€?so as not to introduce a stepmother over all his children’.¹⁸ We hear of persons who, having lived in concubinage, subsequently enter into iustae nuptiae,¹⁹ and there is plenty in the Digest about legacy to concubines.

Marriage, then, was a condition of fact dependent on the intention of the parties. How did you prove that you were married? Normally there would be the evidence of all those ceremonies that are described in the books on �Daily Life in Rome’.

�Taking a wife, eh, Postumus? There you are, in this generation, preparing pacts and agreements and betrothal ceremonies and getting a master-barber’s haircut.’

There would be the actual marriage ceremony itself, of great elaboration. Above all there would be the evidence of dowry, to which we shall come.

But first it must be explained that in the time of the Republic there were two kinds of marriage (or rather two sets of effects of marriage), according to what the parties decided. In one (doubt­less the earlier and original) form the woman passed into the manus, the hand, of her husband; which is to say that she left the agnatic family of her birth entirely and became part of that of her husband just as if she had been adopted. Whatever property she took with her (for she might own property if she was already sui iuris, not in the power of a paterfamilias) belonged henceforth to her husband or his paterfamilias. In the second form of marriage the woman did not pass into her husband’s manus or his agnatic family. She stayed entirely in her own (though of course she and her husband formed a new matrimonial home), was not agnatic- ally related to her husband or children, and continued to be in the power of her own paterfamilias, or, if none existed, remained legally independent, sui iuris, and in ownership of her own property. This second, non-manus form of marriage gradually prevailed over the former kind. We do not know how com­pletely it had prevailed by Cicero’s day; there were certainly still wanus-marriages, referred to casually and not as freaks.²⁹ But within our period it became to all intents and purposes the only form of marriage; for simplicity’s sake, therefore, in all that follows marriage will mean marriage without manus.

It is not possible to evaluate satisfactorily in general terms the much-asserted (or implied) independence of Roman women in the late Republic. The pieces of evidence that can be adduced point in different directions, or not unequivocally in any direction, and one must beware of generalizing from the notorious political women and the antics of Roman â€?night-club’ society. Manus- and non-manus marriage are really neutral here, for the choice in first marriages must normally have been made by the woman’s family, not by herself with an eye to ultimate independence. It has been argued that non-manus marriage was actually unfavour­able to the wife, since she would acquire no share in her husband’s acquisitions during the marriage;³⁰ so the fact that it prevailed would suggest that it was the families of the males who, on average, determined the marriage pattern. In any case, non-mawus marriage is attested in Rome for quite early times, long before there can be any question of feminine â€?emancipation’. Divorce is equally neutral; again, it must normally have been at the decision not of the man and wife but of their families, and in upper-class circles, where divorce seems frequent, the decisions were often political ones, while in humbler circles we do not know whether it was frequent. The family limitation of the upper classes, deplored by Augustus, is likely to have been at least as much for reasons of property and succession as because women were able to make their distaste for childbirth prevail. The early age of marriage tells, if anything, against â€?emancipa­tion’. So, at first sight, does the Roman dowry system, in which only the woman’s side made a contribution to the marriage (not until after our period do legal rules appear about â€?gift in contem­plation of marriage’ by the bridegroom); it suggests that it was the women who had to compete for husbands. But here too there are complicating considerations.

Dowry, dos₉ was a transfer (or promise to transfer) of things having a money value from the bride’s side—her family or friends—to the husband. In so far as it consisted of land or such other things as were susceptible of full ownership, the husband became owner during the marriage, though there was an Augustan rule that he could not alienate land in Italy that was dotal.³¹ The scale of dowry would naturally depend on the wealth and rank of the parties, but it was not trivial—not just a sort of wedding-present. There was no rule that it had to be the bride’s â€?intestate portion’, i.e. what she could expect from her father’s estate in any event, but that this was at least the socially expected order of magnitude is suggested by the rules of collatio dotis,³² whereby a woman claiming a share of a paternal inheritance might have to bring her dowry into account. A clear figure is given by Apuleius; his bride, the widow Pudentilla, had a fortune of four million sesterces, and he says he was content with a very modest dowry of three hundred thousand (and only promised at that).³³ A good deal of negotiation prior to a marriage would be about dowry agreements, pacta dotalia.³⁴ Almost any sort of agreements could be made, depending on the relative bargaining position of the parties. Some might secure that the wife would maintain herself out of her own, or her father’s, property;³³ others might involve acceptance of the dotal property at a cash valuation—a weak position for the husband.³⁶ It is these variations that make it difficult to deduce an overall dominance by the male side. Most important of the dotal arrangements were those settling what was to happen to the dowry on dissolution of the marriage;³⁷ this was the crucial question. In default of any specific arrangement there was a rule of law, roughly as follows: if the wife died, her family would recover what they had given as dowry, except for a fraction for children, but the husband could keep any dowry that came from outside the wife’s family; if the marriage came to an end for any other reason, including divorce, everything went back, except again a fraction for children and certain other fractions, mostly penalties for mis­conduct by the wife.³⁸ Return of dowry was, of course, vitally important when women married young and were liable to be widowed young, to secure them a second marriage.

If the Romans were matter-of-fact about marriage, they were equally so about divorce. It could take place at any time, either by mutual consent or by the unilateral decision of either party (or their paterfamilias). In the Republican age marriages were often an aspect of politics amongst the upper class; marriages cemented political alliances and divorces uncemented them. Valerius Maximus quotes cases of divorce for causes so petty that one suspects that politics may have lain behind them,³⁹ and although there is a tendency to believe that the rules about return of dowry may have imposed some curb on frivolous divorce, readers of

Cicero’s correspondence who remember his long financial embarrassments over returning Terentia’s dowry and getting back Tullia’s will be conscious that he proceeded in his courses undeterred by them. It may be that the frequency of upper-class divorce in the late Republic testifies to the political rather than the moral weakness of Roman society, but Augustus at any rate thought that their family life left something to be desired. How much social effect the leges luliae de tnaritandis ordinibus and de adulteriis and the lex Papia Poppaea had is hard to decide, but they certainly complicated the law of family and inheritance.⁴⁰ What concerns us here is that Augustus for the first time made adultery by a woman, and condonation of it by her husband, a crime; he must divorce her, and he or someone else must prose­cute her. And extra-marital intercourse with any free woman of high status, â€?living honourably’, also became a crime. It conse­quently became vital to be able to prove that you were not married—for a man to show that he was not condoning adultery, and for a woman, when she married, to show that she was not married already. Hence a new formal procedure for divorce:⁴¹

�No divorce is valid unless made in the presence of seven adult Roman citizens...’

One gets the impression that marriages were â€?steadier’ amongst the upper class during the Principate. Augustus’ settling of the rights of retention of dowry may have helped, but it was perhaps more due to the dying out of political faction. Antoninus Pius, for example, prohibited fathers from breaking up a bene concordans matritnonium.*²

Of legal relations between husband and wife one other rule needs mention: gifts between them were forbidden. A long title in the Digest deals with the boring details of this subject;⁴³ the only one worth mentioning is that a wife was allowed to bestow on her husband such property as would enable him to rise in rank where a fixed census was required.⁴⁴ The purpose of the prohibition was for the sake of family property, to prevent either party from parting with it to the other.

Children bom of iustae nuptiae had the status of their fathers and were subject to patria potestas. This potota-relationship expresses completely the agnatic principle of the Roman family; every member, male and female, was in the potestas of the oldest surviving male ascendant, the paterfamilias {i.e. if your grandfather was alive you and your father were in his potestas). Wwes not in rnanu, it must be remembered, were not part of their husband’s agnatic family; your wife was in the potestas of her oldest male ascendant. We have seen that a man might well have children bom otherwise than of iustae nuptiae, â€?natural’ or illegitimate sons and daughters. No disgrace attached to them, though it will be recalled that they might well be slaves, and if he was a freedman with children bom of a slave mother during his slavery they would still be slaves until he could obtain their manumission.⁴⁵ Quite a lot is said about natural children in the Digest.⁴⁶ Twice, for example, we are told that if a man’s whole property is sold up or pledged this does not include his concubine and her children (all obviously slaves) ;⁴⁷ and one case is discussed of a man instituting as heirs his legitimate and his natural son.⁴⁸ Surprisingly, we never hear of quarrels over great estates between bastards and legitimate sons. Bastards, not being in potestate, would have a very low claim on a man’s succession unless he made a will and instituted them as heirs. One imagines that if a man had left his property to a bastard to the exclusion of legitimate children they would have had an â€?action of undutiful will’, but no such case is discussed, and the Romans, whose society was non-feudal and who had no primo­geniture, tended to institute all their children.

Patria potestas was lifelong. Those subject to it could have no property of their own, and their lives were almost wholly controlled by their paterfamilias. His potestas included the well- known â€?power of life and death’, which was undoubtedly a reality in Republican times. His household jurisdiction, with a family council, dealt with offences of its members (such as sexual offences) that threatened the reputation of the family, and he could inflict chastisements and even death. This extreme is rarely heard of in the period of the Principate—only as a concession by the government to avoid odium (which had happened also in the Republic—you handed over criminous women to their families for punishment), as in the case of Aulus Plautius’ domestic trial of his wife recorded by Tacitus:⁴⁹

�She was accused of foreign superstition, and her husband was allowed to try her; and so in the old style, before a family council, he held trial over his wife’s life and reputation—and declared her not guilty.’

In one sense, though not what the Romans meant by ius vitae et necis, a â€?power of life and death’ was regularly exercised: it was the right of the paterfamilias to decide whether new-born children should be reared or exposed (their mother had no voice in the matter), and exposure was common and not a crime. The pater­familias could force his married children to divorce,⁵⁰ and they could not marry in the first place without his consent. Whether he could force them to marry particular persons is a slightly more complex question. He could not do so in the case of sons; not only is Digest 23. 2. 21 formal on the point,⁵¹ but it is implied by Gellius, discussing the moral (n.b. not the legal) duty of a son:⁵²

�... he ought to obey; but if his father orders him to take a shameful or criminal wife... he should not obey, for if turpitude enters into the question these things are no longer “indifferent”/

Of course, fathers might be jolly angry and make things difficult:⁵³ â€?Father blazes with wrath when his son, mad on some tart, refuses to wed a wife with a huge dowry;’

all the more might they make things difficult for daughters. The law is less clear about this; Digest 23. 1. n-12 says a daughter’s consent is necessary for betrothal, but adds that anything short of positive resistance is taken for consent, and consent can only be refused if the proposed bridegroom is morally unfit. Little girls of twelve can have had small practical chance to refuse; but it must be remembered that your children in potestate might not be little girls or boys.

This lifelong power over children, however extraordinary it may seem (and did to the Romans),⁵⁴ was a reality, and we must not water it down. It did not apply in the sphere of public affairs:⁵⁵

�A filius familias counts as a paterfamilias in public affairs, eg. for holding magistracies or guardianships/

We hear in the Digest of sons in potestate as consuls and provincial governors, as senators, and as local magistrates;⁵⁶ and a famous disquisition of Gellius arose out of a courtesy visit paid by a provincial governor and his father to a private house and the question who should sit on the one chair provided—which led to the telling of a story about how Quintus Fabius Maximus the proconsul dismounted from his horse on the orders of his son who was consul.⁵*⁷ But in private life it mattered nothing that you might be forty years old or married or consul of the Roman people; if you were in potestate you owned nothing, whatever you acquired accrued automatically to your paterfamilias, you could make no gifts,⁵⁸ and if you borrowed money to give a dowry to your daughter it was a charge on your paterfamilias.⁵⁹ Loans of money to sons in potestate produced various frauds, as can be imagined, and so in Vespasian’s principate a senatuscon- sultum Macedonianum made it impossible for a lender to sue on most loans so made—and therefore unlikely that anyone would make them; and Ulpian in the Digest title on the rule expressly says:⁶⁰

�even if the son is consul, or has any other position of standing, the senatusconsultum applies/

One might well wonder how such a society can possibly have worked. How did thejilius familias with a wife and family and separate conjugal home and so on run his life and his household, if he could own nothing? An answer might be sought in two directions, but it is an irritating fact that we cannot back it with positive evidence. First one might look at â€?emancipation’, emancipatio, which, as will be seen below, took you out ofpotestas. Were adult sons, then, normally emancipated? On the whole the evidence suggests that this was not so in the Republican age— that emancipation was usually a penalty for misbehaviour;⁶¹ and that the same was true in the rest of our period is suggested by a letter of Pliny in which he tells how his bete noire Regulus emancipated his son in order that the son might take an inheri­tance from his mother. This was clearly a special case, the mother having imposed it as a condition of making her son her heir, since otherwise the property would simply accrue to Regulus.⁶²

The other institution to look at, with greater hope, is peculium. The son in potestate, like the slave, could have a fund which, though ultimately belonging to the head of the family, was in practice his to manage, and on the basis of which he could con­tract. As an economic device the slave’s peculiutn was of very great importance; we hear much less of the peculiutn of sons and daughters, the rules governing which were the same, so that it is not discussed separately in the Digest. It is, however, overwhelmingly probable that married sons living independently had such a fund; but the limitations must be borne in mind: it belonged to the paterfamilias, there was nothing to stop him withdrawing it, and it was part of his estate when he died. It seems, once again, to have been Augustan legislation that made a substantial modification to this position, by inventing a new extra peculiutn, peculiutn castrense, the â€?military fund’.⁶³ Over this fund, which consisted of what he acquired by or for the purpose of military service, the son in potestate had a right much nearer to ownership; above all, he could leave it by will (which became one of the facts of Roman law which â€?everybody knew’).⁶⁴ If he did not do so it reverted to his paterfamilias as ordinary peculiutn. He could also alienate it at any time, and his paterfamilias could not touch it. It was, however, strictly limited to what was acquired by or in connection with military service. And this is curious; one might have expected this institution to be for the benefit of the sons of the upper classes; but the big salaries were for governorships and procuratorships, whereas it is likely that military service meant here what it meant for the â€?military will’— that is, up to the junior officers, tribunes and prefects, but not beyond. Not until after our period did sons get control over

pecvlivm; adoption hi

official salaries in general. One must conclude that castrense peculiutn was invented as a privilege to encourage volunteer recruitment into Augustus’ new professional army.

The pototas-relationship (or agnatic kinship) could be created otherwise than by birth. First, a man could be given potestas over his children by government grant. Gaius tells us that a peregrine who acquired citizenship for himself and his children by petition did not automatically get potestas over them, but only if it was specifically part of the grant.⁶⁵ He says that Hadrian laid down some rules about this, but we can see the principle working in a petition from Pliny to Trajan:⁶⁶

�Please will you give citizenship to Chrysippus the son of Mithridates and to his wife Stratonice the daughter of Epigonus and to his children Epigonus and Mithridates, so that they may be in the potestas of their father.’

We must confine this to cases of petition. It cannot apply to the great block grants of citizenship to communities, to auxiliary soldiers and so on. Their grants never mention a specific privilege of potestas over their children, but it is inconceivable that they can all have been left without it.^66a

An immensely more important case was adoption. A well- known feature of the social history of Rome is the infertility of the governing class, its failure to rear enough children to maintain its numbers. There were many factors involved: disease and high death-rate, the desire of society women to avoid childbearing, the danger of splitting up estates, and so on; but the point to observe here is that the characteristic remedy for a family in danger of dying out was adoption, and that that was the primary purpose of the institution. It had nothing to do with the welfare of children, and those adopted were often adults. Anyone with a spare son was in a strong position to link his family with some other noble house by giving him in adoption. With the forms we need not be concerned; they are described by Gaius and Gellius.⁶⁷ There were, however, really two institutions of very different

origin: â€?adrogation’ of a person sui iuris, which always required public sanction, since such a person was in principle head of a family (whether he actually had one or not) which, along with its cult, would suffer extinction by being merged in yours; and â€?adoption’ in a technical sense, the transfer of someone alieni iuris from the potestas of his or her paterfamilias into yours. A man adrogated brought all his property and descendants across with him automatically; a man or woman â€?adopted’ came by them­selves, leaving their children (if any) under their original pater­familias—and of course they would own no property to bring. Since the purpose of the institution was to create patria potestas, women could not adrogate or â€?adopt’; they could be â€?adopted’ but not adrogated. Another purpose, or, at least, another result that could be achieved in this way, was the legitimization of natural children. If the child was a civis Romanus you could adrogate it, and if it was a slave you could manumit it and then adrogate it⁶⁸—unless it was a girl, for whom, adrogation being impossible, you could do nothing. If the child was a peregrine you could do nothing either, for this whole institution was confined to cives; but the rules about error and Latinity (described in Chapter II) might sometimes relieve this difficulty. Ulpian seems to have thought it undesirable for people to adopt if they already had legitimate children alive or were still capable of having them,⁶⁹ but Cicero’s furious fuss about the illegality of the adoption of his enemy Clodius⁷⁰ must not be taken too seriously, and the rules about the effect on a will of the arrival of a new son in the family by adoption⁷¹ imply that it was perfectly possible. One thing which the law texts tell us nothing about, but which certainly happened and was accepted in high society, is adoption by will; that is how Augustus’ relationship of son to Julius Caesar came about.⁷² It may have counted technically not as adoption but as â€?inheritance on condition of taking testator’s name’, but the silence of Gaius and the Digest is still strange. The unmarried and the childless were saddled by Augustus’ laws with various penalties, and Tacitus records a fraud which had to be repressed in the time of Nero, whereby, in order to qualify for public office, they hastily carried out adoptions and

EMANCIPATIO

113 then, when the offices were in the bag, equally hastily emanci­pated the adopted persons.⁷³

Having examined the creation patria potestas we must look for a moment at its dissolution. When your paterfamilias died, if you had no other ascendant in the male line into whose potestas you could fall you became independent, sui iuris, irrespective of your age or sex (for example, when grandfather died, if your father was alive you would now be in his potestas, but if not you would be sui iuris). Besides this natural dissolution of potestas there were artificial ones. If the paterfamilias underwent capitis deminutio (either minor, like adoption, or major, like criminal conviction) the tie broke, and equally so if it was the person in potestate who underwent the capitis deminutio (by adoption, for example, or in the case of a woman passing into someone’s manus). And secondly there was a way by which a paterfamilias could actually release his son or daughter into independence: â€?emancipation’. Gaius describes the ancient ceremony which it involved;⁷⁴ it may in early times have helped sons to escape from cruel fathers, but in our period it mostly seems to have been a penalty—cutting your child out of the agnatic family as it were with a shilling (though not necessarily so, since you could always leave him his portion as a legacy or make over property to him on emancipation, and the fact that there was a rule that a son could not force his father to emancipate him implies that it was sometimes desired).⁷⁵ If you performed the rigmarole correctly you could emerge as parens manumissor of your emancipated child, that is, in the same position as a patronus who had manumitted his slave, with patronal rights against his will; the Digest title 37. 12 â€?concerning those manumitted by a parent’ is illuminating about this.

x·

The fact that infants might often, by the death of their pater­familias, be sui iuris threw considerable weight on the Roman institution of guardianship, tutela. Like adoption, this had origin­ally nothing to do with the welfare of orphans, as is sufficiently shown by its application also to women, who had to have a guardian all their fives if they were sui iuris. It originated as a right of agnate relatives to keep a hold over property which, if the

H

infant did not grow up and have heirs, was due to come to them— to see that the infant was not cozened into squandering it; and similarly with the woman sui iuris, to prevent her from disposing of family property. As early as the Twelve Tables a man making a will had the right to appoint a â€?testamentary’ guardian to his children (to the exclusion, if he wished, of the agnate relatives); if he did not do this, or if the will failed, â€?agnatic’ guardianship came into effect automatically. Already in the middle Republic the concept of the welfare of infants began to enter into guardianship, and a third kind, â€?statutory’ guardianship, arose: if no other guardian existed the authorities would appoint one.⁷⁶

Males were released from guardianship when they reached puberty, since they were then capable of having children of their own who would legitimately exclude the agnates; there was dispute as to whether this depended on physical inspection or just meant the standard age of fourteen.⁷⁷ Women were never released (for even if married—except with tnanus—they were sui iuris, and their husband was not their guardian). Astonishment at this fact would be misplaced; subjection of women’s legal acts to some male authority was virtually universal in antiquity. What does need comment is that this lifelong guardianship was whittled away by legal devices, though as a formality it hung grimly on. In the Herculaneum Tablets, for example, when Calatoria Themis went bail to Petronia lusta for appearance in court she promised â€?with authorization of her guardian’ (who was a freedman of her deceased husband). Pudentilla, the wealthy wife of Apuleius, bought a farm; even as a married woman she did so with her guardian’s authorization, and he was brought into court to testify that she had bought it for herself and not for Apuleius.⁷⁸ And a document of ad 198 records the granting of a guardian by the prefect of Egypt:⁷⁹

�Q. Aemilius Saturninus, prefect of Egypt, at the request of C. Terentius Sarapammon, granted a guardian to Maevia Dionysarion in accordance with the lex lulia et Titia and the senatusconsultum, to wit M. lulius Alexander—this grant not being to the prejudice of any legitimate guardian’.... �I, Maevia Dionysarion, have requested the above-named guardian, lulius Alexander, as stated. I, Gaius lulius Heracla, have written this on her behalf, she being illiterate.’

This is illuminating; for certain legal acts a woman must have authorization, but if she said she had no guardian the authorities would appoint one for the purpose, without enquiry but with a saving clause. The acts needing authorization were alienation of res tnancipi (mainly land and slaves, as will be seen), making a will, and any contract that put the woman under an obligation. If a guardian refused she could apply to the authorities to force him to assent; if he was absent she could get a temporary guardian of her choice. (Calatoria Themis’ guardian was however a witness for Petronia lusta.) Moreover, the automatic guardianship of agnates over women was abolished by the emperor Claudius; and already under Augustus’ legislation to encourage family size, three children (four for a freedwoman) released a woman alto­gether from the requirement of guardian’s authorization. So women sui iuris did in practice, in our period, manage their own property and affairs; it has been pointed out that we hear a good deal about the business transactions of Cicero’s wife Terentia, but never who her guardian was.

Guardianship of infant males was a different matter. It was a necessary institution, involving administration of property as well as mere authorization, and though for agnates there might be advantages it was on the whole regarded as a great burden. Dealing with the fortunes of infants of wealthy families could be an immense task. There might be several guardians, and we hear more than once in the Digest*⁰ of division of the ward’s estate, one set of guardians dealing with property in Italy and another with that abroad. It was the business of the guardian to get in debts to the ward’s estate, to buy landed property if at all possible, and to put any liquid funds out on loan at proper rates of interest.⁸¹ He must also see that the ward received out of the fund of the estate education or training appropriate to his station in society.⁸² At the end of this stewardship there must be an account­ing, and the now adult ward had an action (actio tutelae) against his guardian if the administration had been fraudulent or negligent; it was one of the actions conviction in which resulted in â€?infamy’. Guardians, like stepmothers, were proverbially wicked, and people were for ever complaining and demanding their removal.⁸³ They must have thought themselves fortunate when they secured a clear pact not to sue, like that of 14 bc recorded on a papyrus:⁸⁴

�16th year of Caesar, month Tybi, ?6th day. To Protarchus, from Lucius Pomponius Rufus, son of Lucius, tribe Pollia, and Marcus Cottius Atticus. Since the father of Lucius Pomponius, Lucius Pomponius, in his Roman will made on his deathbed left Marcus Cottius Atticus and also Canuleius as guardians to Lucius Pomponius his son, above named; and since subse­quently Canuleius resigned his guardianship, according to the sealed document, leaving Marcus Cottius Atticus as guardian of Lucius: now Lucius Pomponius agrees that neither he nor anyone else on his behalf will sue Marcus Cottius Atticus or Canuleius,... since Lucius Pomponius has received back from Marcus Cottius Atticus everything that his father had in his estate.’

It was a part of one’s ojficiutn to one’s friends to undertake guardianships, but the principles of mutual duty broke down somewhat in this sphere, exceptionally hard as it was on the tutor dativus, appointed compulsorily by the authorities, and we find growing up in our period an ever longer list of excusationes, circumstances that would let you off.⁸⁵

Having called tutela â€?guardianship’ we are in difficulty for a word to translate another institution, curatio or cura\ â€?caretaker­ship’ is not beautiful, but it will have to do. Caretakership ot minors, lunatics and spendthrifts must briefly occupy us; the last two of these were ancient Roman institutions with an origin like that of tutela, whereas the first grew up within our period to fill in the inadequacies of tutela.³⁶ As early as the middle Republic it was realized that the ending of tutela over males at fourteen left youngsters at a very tender age to be in sole control of great fortunes in a wicked world—not to mention that filii familias were sometimes cheated into doing foolish things with their peculium. A lex Laetoria in the second century bc gave an action to anyone of either sex, below the age of twenty-five, whether sui iuris or not, against persons whom they alleged to have defrauded them, and an exceptio legis Laetoriae if they themselves were sued and wanted to allege fraud. The praetor in his edict went further still:⁸⁷

�Whatever transactions are said to have been made with a person under twenty-five, according to the circumstances I will give relief?

The praetor’s relief was restitutio in integrum, â€?restoration to the status quo⁹; the offending transaction was null and void, any consideration that had passed between the parties must be handed back, and things were as if no such bargain had ever happened. To us this seems excessive; the Romans, having ended their guardianship too early, now take minority and its protection up to too late an age (for at twenty-five a man could hold the first Roman magistracy, the quaestorship). Of course, the young could not escape the consequences of deHets and crimes in this way; and even for commercial bargains there must be some allegation that they had been cheated or imposed upon. As Paulus says:⁸⁸

�Not all transactions with minors can be rescinded. They must be referred to equitable principles, otherwise people of this age will labour under great inconvenience, because no one will enter into any transaction with them and they will in a sense be deprived of cotnmerciutn.’

The latter was seen as a very serious point. It began to be met by the minor concerned bringing in a kind of â€?best friend’ to give sanction to his transactions so that those who hesitated whether to deal with him would have assurance that he was acting with advice. Eventually it became regular for minors to apply to the authorities for a â€?caretaker’ who could thus authorize all their transactions until they reached twenty-five. Ulpian records a case in which some young men had been given a â€?caretaker’ but he had ceased to act; the emperor forced him to resume his function.⁸⁹

The right to caretakership of lunatics and (remarkably) spend­thrifts vested originally in their nearest agnate relative, though later a caretaker could be appointed by the authorities.⁹⁰ The purpose was the protection of family property; the person concerned was henceforward debarred from controlling his property, alienating it, or making a will. Both cases have a good deal of interest. They comprise the only situation in which a man’s relatives could get a complete right to take over his property against his will, and yet, as has been pointed out, the crucial question how to decide whether a man was a lunatic or a spend­thrift (or when he ceased to be so) is never discussed in the law texts.⁹¹ Control of extravagance, it may be added, is unknown to English law; â€?it may be better so in the interests of the com­munity at large,... but a wife or a widow and children will not quite accept this view’.⁹² At any rate, while we are accustomed to see in Rome an extreme development of the principle that a man is entitled to â€?do what he will with his own’, in this sphere the Roman law imposed greater limitations than the English.

*

Out of the fifty books of the Digest, eleven are occupied by the law of succession, lovingly elaborated by the lawyers; one must admit that in will-making the idiosyncrasies of humanity are at their most abundant and generate a lot of law.

It is expedient to begin with intestate succession, not only because it is by definition automatic and not subject to the oddities of individuals, but also because it was almost certainly the oldest— and originally the only—form of succession in Rome;⁹³ the family’s inheritance had to pass down according to ancient custom and the individual could not influence the succession. Many societies do not go beyond this; they do not have will­making, or only have it for the less important part of the family’s substance, the earnings or personal accoutrements of individuals and so on. Roman law of our period had will-making of every­thing, but if there was no will or the will was invalid the old automatic rules applied. To understand them a technical term must be introduced: those persons in a man’s potestas or manus who became sui iuris by his death were his sui heredes. The oldess rule of civil law said that if any sui heredes existed they automatic­ally became heirs (hence, indeed, the name), in equal shares irrespective of sex; if none such existed the agnate relatives, of the nearest degree only, could take the estate; if none of those existed it went to the dead man’s gens or clan. Here is agnatic succession, in the line potestas, at its most rigid; emancipated children, for example, and relatives on your wife’s side, even your wife herself (unless in manti), were excluded. The praetor, exercis­ing ius honorarium, had already modified it a great deal by the beginning of our period; he allowed certain other people to apply for possession of the estate on intestacy’, which they could retain at first only if there were no civil law heirs in the relevant degree of succession, but later even if there were, so as to come into a share alongside them: in the first degree all liberi could claim (technical again: not only sui heredes but those who would have been sui heredes if they or their father had not been emancipated); if there were no liberi then blood-relations down to the sixth degree could claim; and if there was still nobody, at long last a widow could claim her husband’s estate or he hers. This praetorian intestate succession is where collatio bonorutn came in; if you claimed to share with civil law heirs you had to bring into account your property acquired since emancipation (since you had had opportunities of acquisition denied to the sui heredes) or your dowry. Finally by legislation, though not until the second century ad, a mother came to be allowed to succeed to her children on intestacy and children to their mother.

By our period, Romans could—and probably normally did— set aside these automatic rules by making a will. With the history of how testation grew up we are not concerned; by Cicero’s day Roman patresfamilias had wide freedom to dispose as they liked of all the family owned, limited only by the pressure of what was socially expected (which is a powerful limitation). What they could not do was what in many legal systems is normal and actually unavoidable; they could not make a will as to part of their estate and leave the rest to devolve by the rules of intestacy. This is because of the Roman concept of an heir, heres. Your heir or heirs were not just people to whom you left particular bits of pro­perty; the heir was â€?universal successor’, stepping into almost the entire legal role of the deceased, including responsibility for the family cult and for his debts as well as his assets (and debts in full, not merely as far as the assets would go). The primary function of a will was to appoint one or more heirs; it need do no more, but if that was not done, and not done first, the will was null and void. If there was more than one heir they were not inheritors of particular things but joint â€?universal successors’ to everything, according to the fractions named by the testator. They might very well continue in common owner­ship, if they were brothers and sisters, for example; but at any time any one of them could get an action in the courts for division according to the fractions (which would mean a valuation). If the testator had given a â€?prior legacy’, legatum per praeceptionem, of some particular thing to any one of them, he would get it without it counting against his share in the division. â€?Prior legacy’ was important,⁹⁴ because the joint universal succession insisted on by the law ran counter to the natural desire of testators to leave the house to John and the best tea-set to Mary, and so on.

There were numerous limitations on who could make a will and who could be heir under a will (or otherwise). We shall not consider them exhaustively.⁹⁵ First, as to making a will: some people were barred as a penalty for conviction in the courts; some others we have already noted—lunatics, spendthrifts, Junian Latins; infants could not make wills; and women not only had to have guardian’s authorization but, until Hadrian,⁹⁶ also had to go through a complicated rigmarole ofchanging guardians by coemptio—the â€?Gnomon of the Idiologos’ is formal as to this:⁹⁷

�It is not allowed for a Roman woman to make a will without a so-called coemption and a legacy left by a Roman woman to a female Roman infant was forfeited.’

One of Cicero’s letters also reveals the late Republican lawyers engaged in a wrangle over it.⁹⁸ Secondly, as to heirship; some people were debarred simply from being heirs, others from taking legacies also. Most important is that peregrines could neither be heirs of, nor take in any way from, a Roman citizen. Perhaps equally important (for reasons which will appear) is that â€?uncer­tain persons’, incertae personae, could not be made heirs or take under a will—which meant, above all, unborn generations, persons not already at least physically conceived when the will was made. In Cicero’s day women could not be instituted heirs by people in the highest property class; this ceased to be true under the Principate. Corporations (cities and guilds) could not be made heirs, but they could take legacies (though not per praeceptioneni),⁹⁹ from Nerva’s time onwards. Finally, there were complicated rules, stemming from Augustus’ attempt to encourage larger families amongst the upper class, imposing disabilities on the unmarried and the childless. They could take little or nothing, not even childless husbands and wives as between one another. â€?Now you are a father and can be heir in a will, as a result of my activities’, says the adulterer to the husband in Juvenal; â€?You get legacies whole, and even luscious lapsed bequests.’¹⁰⁰ The unmarried and the childless could certainly make wills; one of the evils of Roman society most familiar to readers of the classics is captatio, the way in which â€?legacy-hunters’ ingratiated themselves with the unmarried, the childless, and the senile. The fifth Satire of Horace’s second book is about nothing else.

The testator could make as many people heirs as he liked, in any fractions he liked. He could also provide for the possibility that named heirs might predecease him or be unwilling to accept the inheritance, by â€?substitution’: â€?let Titius be my heir, or if he has not accepted within x days let him be disinherited and let Seius be my heir’. Thus a will might contain grades of heirs, the lower only coming in if the higher did not take; it was customary to mention friends (or the emperor) in a will in this sort of way, in second or third grade, as a politesse—no doubt what Trimalchio meant when he said he was â€?co-heir with the emperor’ in his master’s will.¹⁰¹ What testators could not do was tie the hands of an heir who did accept; they could not say â€?let Titius be my heir and when he dies (or â€?when my son grows up’) let my son be my heir’. Only one such thing was allowed, namely to substitute for infant children by saying â€?Let my son be my heir, but if he does not reach the end of his period of wardship then let Titius be my heir? The reason for these rules, coupled with the rule that you could not make unborn generations heirs, was the great reluctance of Roman law to permit entailing—the tying up of property by a man in ways that could not be untied by his successors. Each generation must have its unimpaired right to make its own decisions and dispositions. It is feudalism that fosters the entail, and Rome was fundamentally un-feudal; nevertheless, testators hanker after power over the future, and it will presently be seen that the law was here standing against a strong current.

The Roman paterfamilias in our period was also entirely free in law to disinherit his children. It is true that formalities had to be observed, which amounted to this, that he could not just pass them over in silence; any liberi in the technical sense, existing when the will was opened, who were not specifically accounted for in it either by institution or by express disherison (either because they had been passed over or because they had come into the agnatic line since the will was drafted, by birth or tnanus or adoption) had the effect of upsetting the will and were brought in to shares in the estate.¹⁰² Wills therefore commonly contained a clause â€?and let all others be disinherited’. Provided this was seen to, disherison was perfectly valid. On the other hand, social feeling in Rome was against a man cutting out his children, unless they were plainly bad and unfilial. So there arose during our period (the exact history of the matter is, as usual, hotly disputed) an important action that could be brought against the heirs named in a will by a man’s (or woman’s) children who claimed they had been unjustly disinherited, the querela inofficiosi testamenti or â€?complaint of undutiful will’.¹⁰³ It was one of the suits that came before the centumviri; Pliny gives an account of a celebrated querela in which he represented the plaintiffs.¹⁰⁴ The chance to upset wills in this way had dangers, indicated by Ulpian:¹⁰⁵

�It must be realized that suits of undutiful will are frequent; for everybody, parents and children, can argue what constitutes “undutifulness”.’

What the plaintiff actually got if the action succeeded was his intestate portion; but he could not bring the action at all if he had been left a quarter of that amount.¹⁰⁶

Many other things could be done in a will besides the making of heirs, such as granting freedom to slaves and appointing guardians to infants and women, and especially leaving legacies. Legacy was the leaving of specific things to people—what testators of every age spend most of their time doing—and was an entirely different matter from making heirs, though the fate of the whole will, including the legacies, depended on the due entry of heirs. Since every legacy was a diminution of the inheritance, if their total was too great the heirs might not wish to enter. The interest for social history is to see the wide variety of things besides just pieces of property that were left, and could be left under all sorts of conditions, by legacy.¹⁰⁶* We hear a good deal about legacy of life-interests and of the right to occupy houses, left to widows¹⁰⁷ or widowers:¹⁰⁸

�he is to have the habitation and the remaining rooms of the house and courtyard for the term of his life without house-tax’,

or to freedmen:¹⁰⁹

�I request you to allow Negidius and Titius and Dio my freedmen, who are aged and infirm, to live out their old age in the places where they now dwell.’

We get annuities and pensions (a whole title on them, Digest 33. 1), which might have to be given a cash value on a life­expectancy basis;¹¹⁰ on the humblest scale they are alimenta, â€?keep’ (with another whole title, 34. 1), or the purchase of a ticket of entitlement to the free com distribution at Rome.¹¹¹ Then there is legacy of the operae of a freedman, legacy of her dowry to a wife, legacy in the form of a release from debts owed to the testator. As for pieces of property, there is fascinating social background information (and Latin vocabulary) in the minute analyses by the lawyers of what was included when a man gave a legacy of â€?my house’ or â€?my books’ or â€?my furniture’ or â€?my farm fully stocked’ or â€?my dye-factory with all appurtenances’.¹¹² Through a mass of legacies or a mass of debts, or both, heirs might find themselves with a datnnosa hereditas, an inheritance â€?more expense than it was worth’. They might simply decide not to accept heirship; thus, as to debts, Pliny writes to a lady called Calvina:¹¹³

�If your father had owed money to several people, or indeed to anyone but me, you might well have had a problem whether to enter an inheritance that even a man would find burden­some.’

As to legacies, the praetor would not allow heirs to exercise a dodge by letting the will go void by their non-entrance and then taking their shares of the estate as an intestacy; he promised an action to legatees to secure their legacies in this event.¹¹⁴ But already in the Republican period there was a run of legislation, culminating in a lex Falcidia of 40 bc, which may have improved but certainly complicated the law by laying down that a quarter of the assets must be left to the heirs, so that if legacies exceeded three-quarters each of them must be cut down pro rata (that is one reason why such things as annuities might have to be calculated out actuarially). Even then heirs might not be keen. Quite apart from the rule that legatees could demand security,¹¹⁵ Ulpian points out that:¹¹⁶

�people’s motives are various: some are frightened by the business side, some of the trouble they will be put to, some of the mound of debts (even if the estate is a rich one), some of the quarrels and jealousies that may arise..

Some heirs, however, were not allowed to refuse to be heirs. Sui heredes, whether there was a will or an intestacy, could not. If there was a mound of debts what they could do was to apply for a â€?privilege of abstaining’ from the actual physical assets; the creditors would sell up the assets as a bankrupt estate, but could not touch the sui for the remainder. The Romans also practised what seems to us a particularly rotten trick: a man who knew he was dying in debt, in order to save his own name from disgrace, would free a slave and institute him heir, and this freedman could neither refuse the inheritance nor get a â€?privilege of abstaining’, but was liable in full, both to the debts and to the stigma of insolvency. All other heirs could refuse, and as a corollary of this, if they wanted the inheritance they must take specific formal steps to enter, usually by a declaration called for by the testator, a cretio. This process of cernere hereditatem is attested not only by Cicero¹¹⁷ but by an Egyptian document of ad 170 (in very shaky Latin):¹¹⁸

�Valeria Serapias, spinster, of Antinoopolis, testifies through her procurator, to wit her brother Lucius Valerius Lucretianus Matidius, known also as Plutinius, of Antinoopolis, that she has entered upon and formally accepted the inheritance of her mother Flavia Valeria, and is her heir according to the tablets of her will.’

At this point it is necessary to go back and examine one more thing that Roman testators were accustomed to do. Making heirs and giving legacies were formal acts, void if wrongly carried out, with strict legal consequences if carried out correctly, and subject to irksome restrictions. But suppose you just made an informal request to your heir in your will or to the person who would succeed you on intestacy, to carry out some act, entrusting it to his good faith to do so? Suppose you simply said, for example, â€?Please see that my friend Aristo of Chios gets the house’, or â€?It is my earnest hope that you will pass everything to my son when he marries’? Nothing could prevent you making such Jidei conunissa or â€?trusts’, but the law would not originally do anything to help you get them honoured. Nevertheless, for any­one prepared to accept the risk that his trust might be misplaced and his request ignored, fideiconimissa were a means of getting round the restrictions on inheritance and legacy. You could entrust your heir with the passing of property to a peregrine,¹¹⁹ or to a woman (to defeat the lex Voconid);¹²⁰ or you could create the perpetuities so hated by the jurisprudents, or get slaves manumitted in excess of the numbers allowed by the lex Fufia Caninia.¹²¹ You could request your intestate heirs that if your will failed they should carry out the whole of its provisions as a fideicommissum. And by fideicommissum hereditatis, â€?trust of the inheritance’, which meant instituting someone heir with a request to pass the entire estate on (to be an â€?executor’, in fact), you could in effect leave everything to a peregrine or to unborn generations.

Two things happened to the law about fideicommissa during our period. The first is described in Justinian’s Institutes:¹²²

�In early days all trusts were risky, because no one could be forced to carry out the trust if he did not want to.... Augustus, induced more than once by personal favour, or because people were said to have made their requests with a plea “by the safety of Augustus”, or because of notorious cases of breach of trust, for the first time ordered the consuls to interpose their authority. And since this seemed equitable and was popular it gradually turned into a standard jurisdiction.’

So from Augustus onwards trusts became enforceable and a man could, for example, leave his estate to a peregrine in a way protected by the courts—not, be it noticed, the ordinary courts, but first a special consular jurisdiction and, from Claudius onwards, either the consuls or a special â€?fideicommissary praetor’ or the provincial governor.¹²* The fideicommissum hereditatis in particular was given support by further legislation. The senatus­consultum Trebellianum of ad 56 made sure that creditors of the estate would sue the actual beneficiary and not trouble the nominal heir who had handed everything over as requested.¹²⁴ The senatusconsultum Apronianum of Hadrian’s time made fidei- commissum hereditatis to municipalities enforceable;¹²⁵ it was already being done before that, as a remarkable letter of Pliny shows:¹²⁶

�A certain Julius Largus from Pontus, my lord, whom I have never met or even heard of (I suppose he is relying on your judgement of my soundness)... has asked me in his will to be his heir and enter, and then to transfer the whole, less a

127 prior legacy to myself of fifty thousand sesterces, to the cities of Heraclea and Tyana...’

On the other hand, for its support offideicommissa the law exacted a price, no less than the gradual imposition upon them of some of the most important restrictions that applied to legacies. We are told in the â€?Gnomon of the Idiologos’ that fideicommissary inheritance from or to peregrines was stopped by Vespasian,¹²⁷ and a senatusconsultum going by the name of Vespasian’s urban prefect, the Pegasianum, made fideicommissa subject to the rules of the lex Falcidia. Finally, Hadrian laid down that you could not leave by fideicommissum to an â€?uncertain person’, thereby once again stopping the loophole for entails. The law still struggled with what it regarded as the fraud of the â€?tacit fideicommissum', which was not put in writing at all:¹²⁸

�Those persons are making their trust available in fraud of the law who give tacit promises that they will hand over what they have received—or other things—to persons who cannot legitimately take under a will.’

Digest 49. 14 �on fiscal law’ is much taken up with this; it was a fraud on the treasury, which was entitled to pounce on estates to which there was no legitimate heir.

The treasury also came into succession questions in another way. Augustus, looking for an extra source of revenue out of which to pay a professional army, invented a new tax falling exclusively on cives Romani, the vicesima hereditatium or five per cent estate duty. It applied to all but small estates and fell upon all heirs except close relatives; how bitterly it was hated can be seen from the praise lavished by Pliny on Nerva and Trajan for allowing more exemptions for blood relations.¹²⁹ The legislation establishing the tax also laid down rules for the opening of wills (a sort of probate),¹³⁰ presumably because there had to be a clear point at which the companies to whom the tax was farmed for collection could get in and make their valuations. A pair of letters of Pliny are relevant: as heir to five-twelfths of an estate, he sold his share to an old friend for less than its full value, she agreeing

to pay the estate duty; and she had to pay the duty on the full value as assessed by the collectors, not on the purchase price.¹³¹ Normally it was the heirs who paid; they could deduct from legacies accordingly, though out ofbenevolence or at the testator’s request they might not.¹³²

The proper Roman will was not merely a document but a ceremony, an â€?imaginary sale by bronze and balance’, with a â€?purchaser of the estate’, a â€?holder of the balance’ to weigh out the price, and five witnesses who must be citizens and adult.¹³³ The testator held up the written tablets of his dispositions and orally proclaimed their validity. The witnesses did not have to know the contents, but there was no harm in their knowing; when asked to peruse the will, says Horace:¹³⁴

�say no, and put the tablets aside; but get a quick glance at page one line two—whether you are sole heir or co-heir with a multitude.’

So there was nothing to prevent beneficiaries being witnesses, though Gaius said it was better not to use your heirs as witnesses.¹³⁵ It is hard to tell whether people actually went through the ceremony; the surviving wills mostly allege it and refer to it, but that was probably enough. The ius honorarium went a little further; the praetor allowed â€?entry to the estate’ on the basis of any testament properly sealed with the seals of seven witnesses, whether it had the per aes et libram form or not—though even in Gaius’ time such an entry could not be upheld against a counter-claim by any lawful intestate heirs.¹³⁶ Testators were sometimes anxious to keep their dispositions especially secret, and wrote â€?codicils’, informal written dispositions; but the law was strict about these. If they were expressly confirmed in the will such documents counted as part of it; if they were not they could not purport to act as a will and could only pass fidei- commissary requests.¹³⁷

The wills of soldiers came to be free from all formal require­ments. According to Ulpian, Julius Caesar had occasionally allowed anomalous wills by soldiers to stand; astonishingly, Augustus and the Julio-Claudian emperors did not follow suit,

but the Flavians were sometimes indulgent, and the privilege became a rule by a constitution of Trajan which was quoted in Chapter The reason given by Trajan for this privilege to soldiers, their â€?simplicity’, can hardly be the whole story. Soldiers were no simpler than civilians—though they were perhaps the only simple people the law much bothered about; and besides, the privilege extended through centurions right up to the tribunes, who were equites. Genuine emergencies might, of course, occur, and so even governors and legates had the same dispensation if actually on enemy territory.¹³⁹ And unavailability of technical legal advice might be relevant. But the fact is that soldiers’ wills were free from much more than merely formal requirements. Above all, they could make peregrines their heirs or legatees;¹⁴⁰ since during all the long years of their service they could not contract a iustum matritnonium their children must in most cases have been bom of peregrine concubines, and hence peregrine. Soldiers could also institute the unmarried and the childless [e.g. their fellow-soldiers); they could make one heir for a period and substitute another for when the period was up; they could make one will for their property acquired by service and another for their other property; the Falcidian rules did not apply to them, nor did the â€?suit of undutiful will’; and thefiliusfamilias who was a soldier could devise his castrense peculiutn. The basic purpose of these indulgences must have been to stimulate recruitment;¹⁴⁰* Hadrian also allowed intestate â€?entry into the estate’ to children of soldiers bom during service.¹⁴¹ There was one crucial limita­tion: the military will only retained its validity for one year after discharge—so long and no more did you have to put your affairs in order and make a proper ordinary will with all its limitations. Naturally, a soldier who did not wish to exercise his privileges could make an ordinary will at any time, as did the author of the most celebrated surviving will, which will be quoted presently.

We possess information about the wills of many individual Romans, and some of the actual documents survive in whole or part. There are the wills of the powerful, such as those of Julius Caesar and Augustus, quoted by Suetonius,¹⁴³ or of the eminent in literature, such as Virgil’s will from the Donatus â€?Life of

Virgil’ (heirs: his half-brother to a half, Augustus to a quarter, Maecenas to a twelfth, Varius and Tucca to the residue, with a prior legacy of his manuscripts on condition that they published nothing not already made public by himself).¹⁴³ There are the wills of the wealthy: Cluvius the banker of Puteoli (Cicero’s share, as co-heir with numerous others, was house property bringing in a hundred thousand sesterces a year),¹⁴⁴ Domitius Tullus (â€?such marvellous properties, such staggering riches!’, exclaimed Pliny, who was no pauper),¹⁴⁵ Dasumius, the friend of Pliny and Tacitus, part of whose complex bequests survives on stone,¹⁴⁶ or the unknown provincial magnate from Gaul whose will is partly preserved in a manuscript.¹⁴⁷ (In this category an honourable mention must go to Trimalchio, who read out his entire testamentary dispositions to his dinner guests from begin- ing to end â€?accompanied by the sobs of the household’.)¹⁴⁸ Most impressive and significant, however, are two wills of very ordinary men indeed, a private soldier and a veteran, preserved by the sands of Egypt—significant precisely because they are no botch jobs or humble scraps, but dispose of their little patrimonies with all the formality of the testament per aes et libram exactly as the emperor did.¹⁴⁹ Here first is Augustus’ will, recorded by Suetonius:

�He instituted as heirs: in Grade i Tiberius to two-thirds and Livia to one-third (requiring them to take his name); in Grade 2 Drusus the son of Tiberius to one-third and the residue to Germanicus and his three male children; in Grade 3 various relatives and friends. Legacies: to the Roman people forty million sesterces, to the tribes half a million, to the praetorian guard one thousand each, to the urban cohorts five hundred each, and to every legionary three hundred (all this to be paid at once in cash, for he had it already banked for the purpose); various other legacies, some going up to two million (for which there was a year’s grace for payment, Augustus apologizing that his personal fortune was not large).... He ordered that the two Julias, his daughter and granddaughter, should on decease not be buried in his tomb. In three separate documents he left instructions for his funeral, a list of his achievements to be inscribed on bronze and placed before his mausoleum, and a set of statistics about the empire...’

Elsewhere in Suetonius¹⁵⁰ we learn the famous opening sentence: â€?Since harsh fate has snatched my sons Gaius and Lucius from me, let Tiberius Caesar be my heir to two-thirds of my inheritance/

and the humble position of the future emperor Claudius:

�he was only an heir in Grade 3 amongst what were virtually outsiders, and only to one-sixth,’

and the name of the �purchaser of estate’, confirming that it was a will per aes et libram.

At the opposite pole must be quoted in full that marvellous survival, the five waxed wooden tablets containing the entire will of Antonius Silvanus, dated ad 142, in slightly ungrammatical Latin:¹⁵¹

�Antonius Silvanus, trooper of the 1st Mauretanian squadron of Thracians, prefect’s batman, troop of Valerius, made his will. Of all my property, military and civilian, let M. Antonius Satrianus be my sole heir. Let all others be disinherited. And let him formally accept my inheritance within the first hundred days; if he has not thus accepted let him be disinherited, and then in the second grade let (...) Antonius R(... )lis, my brother, be my heir and formally accept my inheritance within the next sixty days. To him I give as legacy, if he does not become my heir, seven hundred and fifty silver denarii. As agent for my military property, to get in my assets and hand them over to Antonia Thermutha the mother of my heir aforementioned, I appoint Hierax the son of Behex, corporal of the same squadron, troop of Aebutius; and she is to hold the property until my son and heir becomes free of guardian­ship and receives it from her. To Hierax I give as legacy fifty silver denarii. To Antonia Thermutha, mother of my heir aforementioned, I give as legacy five hundred silver denarii.

To my commanding officer I give as legacy fifty silver denarii. As to my slave Cronio after my death, if he shall have dealt correctly with everything and handed all to my heir afore­mentioned or to my agent, I wish him to be free, and I wish the five per cent tax on him [i.e. on his manumission] to be paid out of my estate.

Let all fraud be absent from this testament.

Purchaser of the estate for the purpose of testation: Nemonius, corporal of the troop of Marius; balance-holder: M. lulius Tiberinus, corporal of the troop of Valerius; foreman of witnesses [this is a bit uncertain]: Turbinius, standard-bearer of the troop of Proculus.

Will made at Alexandria-beside-Egypt, in the Augustan camp, winter quarters of legion II Traiana Fortis and the Mauretanian squadron, 27 March, consulships of Rufinus and Quadratus.’

There follows in Greek, presumably in the testator’s own hand:

*1, Antonius Silvanus, the aforementioned, have perused this my will above written, and it has been read and I approve of it as it stands above.’

Ancient families surviving for many generations in genetic and property continuity are not characteristic of Rome; neither society as a whole nor any special noble class practised primo­geniture. The rules of intestate succession reveal a �partible’ inheritance system by which all a man’s agnatic descendants could expect their share, and though the rules of testation made a system of primogeniture conceivable in theory they do not seem to have been used to that end. And if upper-class society had valued property continuity highly it is unlikely that the law could have held out so firmly against perpetuities. The desire not to partition their estates into too many fragments may have been a factor in the notorious infertility of the Roman upper class; but in an era of high mortality if you do not produce many children you may easily be left with none, and then adoption alone will enable you to preserve the family name.

*

We must not leave the subject of family and succession without a few words about Roman tombs and the law that applied to them. It is an aspect of the relation between life and law which was of concern to great numbers of people and a meeting-place of many concepts—the nature of the Roman family, the dicho­tomy of sacred and secular law and of law and custom, the establishment of memorial foundations, and so on.¹*² Also it raises one of the oddest puzzles in all Roman law. In this field especially archaeology and epigraphy come into their own, since actual tombs and their inscriptions survive in large numbers. The emperors had their family mausolea; the nobility had family vaults along the roads leading into the cities; and the middle class, hardly less rich, owned similar vaults forming streets of cemeteries (such as those of the â€?Isola Sacra’ at Ostia¹⁵³ and those recently excavated under St Peter’s itself in Rome);¹⁵⁴ or they too might set up huge free-standing monuments like the â€?baker’s monument’ at the Porta Maggiore.¹⁵⁵ For their slaves and freedmen the nobility sometimes provided columbaria, vaults with niches for scores or hundreds of crematory urns; the most famous is that of Livia Augusta.¹⁵⁶ The rest of the humble plebs and slaves, who in Cicero’s day were still cast into open graves on the Esquiline/⁵⁷ later took to becoming members of funerary societies owning columbaria in which members were entitled to a place, or else they bought a niche in a columbarium constructed by a speculative builder. Many hundreds of inscriptions from all these kinds of tomb, and from others now lost, record their establishment and the rules their founders wished to be applied to them.

The puzzle about Roman tombs derives much of its acuteness precisely from the fact that the majority of them were structures intended to hold many burials or sets of ashes, of people who did not all die at the same time. The most famous rule of Roman funerary law is given by Gaius:¹⁵⁸ the place containing human remains put where they have a right to be is locus religiosus, subject to divine law and therefore not susceptible of human ownership or possession or alienation of any kind (by sale or gift or legacy or anything else). It is res nullius. And yet the tomb inscriptions record people constantly selling and giving away tombs and parts of tombs and shares in tombs and urns in tombs;^15S> and no less frequently they record people imposing prohibitions on their successors against such alienation.¹⁶⁰ One text in the Digest says:¹⁶¹

�Not the whole locus intended for burial is religiosus, only the place where remains actually lie.’

One might argue, therefore, that the unoccupied parts of a tomb are still locus purus, susceptible of ownership and buying and selling. This is attacked as absurd: â€?what? a tomb two-thirds of which is not sacred and can at any moment be sold as a pigeon loft or a dwelling?’ And yet the contrary is equally absurd: â€?what, a columbarium built for profit which becomes locus religiosus as a whole the moment the first niche is filled and can no longer be owned by anyone?’ Many attempts have been made to answer this dilemma. Unless we are to suppose that there was a complete opposition between what the law said and what people did, which went on without compromise or adjustment for century after century, the only alternative is to conclude that in some way the law and the public were talking about different things. One answer is that what was being bought and sold was not the tomb itself but the right to dispose of a place in it, the ius sepulchri. The praetor in his edict recognized such rights,¹⁶² and they were probably regulated as a part of sacred law, not civil law, by the pontijices,¹⁶* who certainly had functions connected with tombs (for example, you had to have their permission to repair tombs, otherwise you were committing violatio sepulchri).¹⁶⁴ But although some inscriptions speak in these terms:¹⁶⁵

\.. Aelius Dignus, Paccius Charito and their partners have been in possession of this garden cemetery with its surrounding wall, with all its rights according to the authority and decision of the pontifices,'

most talk baldly about buying and selling the tomb, not the rights in it. The latest answer¹⁶⁶ says, rather differently, â€?Tombs were indeed unsusceptible of human ownership, but only in one special sense, that they could never be diverted to non-sepulchral uses; once a tomb, always a tomb. Apart from this, they were as subject to ordinary ownership and alienation as anything else? About this too the difficulty is that the legal and inscriptional texts show no sign that they are using words like â€?buy’ and â€?sell’ of tombs in any but the same sense¹⁶⁷ (though in one recently discovered inscrip­tion from the â€?Isola Sacra’ a man describes a piece of a hereditary tomb which he has walled off for his own descendants as aediculatn puram, i.e. not locus purus in the civil law sense, free of all taboo, but purus so far as he is concerned, unencumbered with other burials)?⁶⁸

Public authority did not concern itself much with sepulchral law. There was a rule, going back to the Twelve Tables, that no one’s remains must rest within the pomeriutn of the city of Rome, and the cities generally had the same rule,¹⁶⁹ which explains the lines of tombs outside the walls. The praetor gave actions to ensure that people’s proper funeral expenses would be met,¹⁷⁰ and that corpses should not be dumped on other men’s land;¹⁷¹ he also gave the popularis actio for â€?misuse of a tomb’ (which included living in it)?⁷² But as to the determination of who was entitled to dispose of tombs and space in them there was certainly conflict between the public and the law.

The Roman family of early days carried with it from generation to generation a cult of tutelary spirits, which included upkeep of a family tomb. One of the main reasons for having an heir was to secure perpetuation of these sacra, and as long as the heir was automatically a member of the agnatic family upkeep of the sacra coincided with perpetuation of the family name. With the growth of free testament, and the resulting possibility of â€?extraneous’ heirs, there arose the problem that, the heir having the sacra, in which he might take little interest (for they involved some trouble and cost), there would be no one to uphold the memory of the family name. Consequently there came to be, in our period, two recognized regimes of right to the tomb?⁷³

�Tombs which a man has set up for himself and his familia are called familiaria sepulchral tombs which he has set up for himself and his heirs are called hereditaria sepulchra’

The â€?family tomb* (overwhelmingly the commonest from Augustus on, to judge from the inscriptions) was intended to descend specifically and exclusively to those who bore the family name. It commonly bore the words â€?this tomb will not follow the heir’¹⁷⁴ or. the extraneous heir’; and it is of this category of tomb that alienation was usually prohibited by the founder. Those who bore the family name included—and might soon include nobody but—your freedmen and their descendants:¹⁷⁵

�L. Hostilius Fortunatus made this tomb for himself and his daughter Hostilia lanuaria and for their freedmen and freed­women and their posterity?

This reception of the freedmen into the family tomb is indeed in a sense evidence of the solidarity of the patron-freedman relation­ship; those who had been unfaithful were sometimes excluded.¹⁷⁶ As usual, however, there is another side to the question. The freedmen had imposed on them the onus of maintaining the tomb when other members of the family had gone. As the valuable right of burial in the family vault might not be sufficient inducement, one means of further assurance of perpetuity was to impose a penalty for non-compliance, to be paid to some per­manent body—the local municipality or the pontijices or the treasury—which would thus have an interest in keeping an eye on the monument:¹⁷⁷

. and if anyone after me raises any controversy about this tomb or tries to remove it from my name, let him pay to the treasury of the Roman people five thousand sesterces.’

In addition you could create a reversion:¹⁷⁸

�T. Aelius Primitivus, freedman of the emperor, senior chef, and Aelia Tyche, freedwoman of the emperor, his wife, erected this for themselves and their children, their freedmen and freedwomen and their posterity. Let no one interfere with residence for custody of the tomb [meaning a bit uncertain].

But if no one of this our memory survives it shall belong to the guild of imperial chefs, headquarters the palace. We do not permit it to be given or sold; if anyone contravenes the above rule he shall owe to the said guild fifty thousand sesterces.’

A yet further device, which coincided with the desire of the rich to create whole cemetery areas, with gardens and buildings in which sacrifices could be prepared and sacral meals consumed, was to add to all this properties bearing revenue, such as shops and houses, from the income of which the costs of upkeep and of regular sacrifices might be reimbursed:¹⁷⁹

�The street called Spurianus... is attached to this tomb’; �this shop with building attached is support for the tomb’; \. so that from the income of the flats they shall celebrate his memory with sacrifices four times a year.’

From such arrangements as these it is scarcely a step further to those perpetual foundations for poor-relief, local games, cash distributions and the like, in memory of the deceased, which have been the object of important legal and social studies.¹⁸⁰ Two splendid examples of funerary foundations have recently been added to the sum of our knowledge: the cemetery of Pompeia Musa at Alexandria¹⁸¹ and that of lunia Libertas at Ostia. There is room to quote only the latter, in a rather abbre­viated translation:¹⁸²

�lunia Libertas has given and granted to her freedmen and freedwomen and those manumitted by them, and their posterity, her right in, and the usufruct of, the gardens, houses and shops known as luniani, enclosed in their own boundary wall. None of the beneficiaries is to sell, alienate or grant away the usufruct of his share until the said usufruct descends to one survivor only. In which event I wish the entire property to pass into the ownership of the people of the Colonial City of Ostia. From the income of it I wish sums to be spent by the City of Ostia for the adornment of the tomb and for sacrifices, as follows...’

The law had doubts about much of this. Quite apart from conceptual difficulties about permanent foundations in general, it was reluctant to see these sepulchral foundations as unitary institutions. On the one hand it insisted that tombs, as res religiosae, were inalienable anyway, while on the other hand it insisted that, whatever people might say, all these appurtenances could not just be â€?attached to the tomb’ but were subject to ordinary property rights and rules, and could be bought and sold¹⁸³ and sold up for debt (which was important, because people evidently tried to save valuable properties from lapsing to creditors or the treasury by â€?attaching’ them to res religiosae; Trajan had to put a stop to this).¹⁸⁴ The law was also suspicious of the legal status of tomb-inscriptions; after all, sepulchra familiaria claimed to derogate from the ordinary rules of succession. Were they simply copies of provisions in wills? Certainly they sometimes were; the funeral inscription of Dasumius was in fact his entire will, and a recent inscription from the Vatican cemetery begins:¹⁸³

�From the triple codicils of Popilius Heracla. C. Popilius Heracla to his heirs, greeting. I request and require and commit to the faith of you, my heirs, that you build me a tomb.. ?

But it is unlikely that all the hundreds of tomb inscriptions were duplicates of testamentary provisions, though people perhaps conceived of them as a kind of codicil on stone establishing fideicommissa. To perpetuities created by fideicommissum the law, as we have seen, was hostile, and the authorities were in conflict with the public; a rescript of Severus Alexander is characteristic:¹⁸⁶

�Tomb inscriptions do not transfer either rights over tombs or ownership of non-religious land to freedmen.’

The public proceeded in this battle undeterred, doing what the law said was null and void and hoping (which would no doubt usually be the case) that their arrangements would never have to be put to the test of the courts—undeterred, but sometimes a little nervous, as we can see from the inscriptions:¹⁸⁷

�From this tomb let all fraud and all lawyers be absent.’ �From all these things let fraud and the civil law be absent.’