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Penalties in Lycian Epitaphs of Hellenistic and Roman Times

Published online by Cambridge University Press:  23 December 2013

W. Arkwright
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Extract

It is well known that a large proportion of the Greek epitaphs of Lycia contain a clause by which any person making any burial unauthorised by the founder of the tomb becomes liable to pay a named sum to some corporation, whether public (as the δῆμος, the πόλις, or the imperial treasury) or religious (as the temple of some god), or a powerful association (as the γερουσία).

This liability was not (as might be supposed) a fine imposed by the state in punishment of a criminal offence. Illegal burial was indeed (at least under the Roman government) a crime at law, and was punishable by a fine; but this fine is expressly distinguished from the sum due to the πόλις and the δῆμος. The penalty in question does not, in fact, represent a fine at all, but damages to be recovered by a civil action. This explains the wide variation in the sums specified, and the otherwise unaccountable fact that the amount is fixed by the builder of the tomb. It stands for the value which he placed on the possession of the tomb, modified, probably, by his estimate of the damages which the court was likely to grant.

Type
Research Article
Information
The Journal of Hellenic Studies , Volume 31 , November 1911 , pp. 269 - 275
Copyright
Copyright © The Society for the Promotion of Hellenic Studies 1911

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References

1 The standard authority may be said to be Hirschfeld, 's essay, ‘Ueber die griechischen Grabinschriften welche Geldstrafen anordnen,’ Königaberger Historisch-philologischen Studien, i. 1887Google Scholar. A most full and careful analysis of all inscriptions of the kind from Lycia, which were then known, is given in Treuber, 's Beiträge zur Geschichte der Lykier, Part ii. Tübingen, 1881Google Scholar. Great numbers have been published since. I have used this work so freely that a general acknowledgment of obligation must serve instead of incessant citation. If any similar work dealing especially with this province has been published in recent years, I must apolo gise to its author for not being able to refer to it.

2 The system is common to most countries of Asia Minor, but the evidence in the case of Lycia is both earlier and more complete. For Phrygia, see Ramsey, , Cities and Bishoprics, vol. i. p. 98Google Scholar.

3 There does not appear to be any distinct allusion earlier than A.D. 43 to any law against ἀσέβειαof τυμβωρυχία

4 J.H.S. xv. p. 112, No. 25. ἄλλω δὲ οὐδενὶ ἔξεσται ἐνταφῆναι ἤ ἐπιτρέψαι ἑτέρω, ἤ ὑποκείσε ται τοῖς ἐκ τῶν διαταξέων ἐπι[τειμί]οις , καὶ ἔχωθεν ὀφειλέσει τῆ Κυανειτῶν πόλει δηνάρια τρισ χίλια, κ.τ.λ. ᾿´Εξωθεν is ‘besides,’ i.e. a distinct payment. The διατάξεις are the imperial enactments. Also C.I.G. 4290, ὁ ἐνθάψας ὑπεύθυνος ἔσται ἀσεβεία[ς ] καταχθονίοις θεοῖς καὶ ὑποκείσεται τοῖς διατεταγμένοις κ[αὶ ἔ]ξωθεν ᾿Απερ[λ]ειτῶν τῶ δήμω δηνάρια δισμύρια. This explains C.I.G. 4207, ὁ θείς τινα ἀσεβὴς ἔστω θεοῖς καταχθονίοις καὶ ἐκτὸς ὀφειλέτω τῶ Τελ μησσέων δήμω (δηνάρια πεντακισχίλια) and C.I.G. 4224, d.

There is then a γραφὴ ἀσεβείας involving a known and unvarying amount of fine which need not be named; cf. C.I.G. 4292, ὀφειλέσει τοῖς καταχθπνίοις θεοῖς δίκαια

There is also a variable penalty to varying corporations.

5 They vary from 250 to 10,000 and even 20,000 denarii. There is no indication of any fixed scale.

6 Any man committing to others not his personal heirs the duty of bringing, after his death, a private action for damages against anyone making a wrongful use of the property bequeathed by him, would be compelled to name in his lifetime the damages to be claimed, and he would almost certainly name more than the market-value of the property. Otherwise he could not be sure that the damages would be deterrent, or guard against collusive actions, or fictitious sales under the pretext of claims for damages.

7 It is not improbable that the court could only award the full sum claimed, just as Blackstone held that in an action of debt the plaintiff must prove the whole debt he claims, or recover nothing at all (Book V. ch. 9).

8 Lycian rocktombs, as everyone knows, are a reproduction of the living-house. The native word prñnawa, a tomb, probably means simply a house, and in the neighbouring Cibyra sarcophagi are several times called οἶκος Reisen, ii. pp. 191, 192. In Phrygia the dead man is ‘conceived as living on as a god,’ and the tomb ‘is the temple, i.e. the home of the god,’ Ramsay, , Cities and Bishoprics of Phrygia, i. p. 100Google Scholar. Compare ῾μετὰ τὸ ἀποθεωθῆναι τοὺς προδηλουμένους at Aplirodisias in Caria, , C.I.G. 2831Google Scholar. In Lycia the adoration of the heroified dead is represented at a very early period in reliefs of sepulchral banquets (Smith, A. H., Catalogue of Greek Sculpture, i. 298Google Scholar), and often later. These are sculptured on the tomb, and probably are supposed to take place within it.

9 This is abundantly proved by the variety and precision of the bequests, permissions, and restrictions found at all periods.

10 According to the established formula, a man builds the tomb for himself, his wife, and his children (τέκνοις). That this includes descendants is proved by Heberdey and Kalinka, Bericht, etc., i. No. 59, where Semonis builds for herself καὶ τοῖς τέκνοις a tomb which Lalla daughter of Lysimachus describes in a later inscription as her own προγονικὸν μνημεῖον Often the formula is more explicit, as τέκνοις καὶ ἐνγόνοις or καὶ τῶν τέκνων τέκνοις καὶ τῶν τέκνων τέκνοις or (as in C.I.G. 4208, c.) αὐτῶν καὶ τῇ ἐκ On the other hand tombs (especially those previously uninscribed) are often spoken of in secondary inscriptions as προγονικόν. Compare Reisen, ii. 32. προγονικόν Αὐρήλιος Ἅρπαλος δίς, ὃ ᾑ[ρη]σάμην (= took over) ἐκ προγόνων μον μνημεῖον ἐπἐγραψα ἐαυτῷ, κ.τ.λ.. It may probably be inferred that all tombs were by custom hereditary in the absence of any clause to the contrary effect in the founder's will.

11 Here again the duty very likely continued to devolve on the heirs in the numerous cases where no express clause is inserted delegating it to others, or where there is no epitaph at all.

12 Τελεσίας Τιλομα Διελιτῶν γένους τὸ ἡρῶιον κατεσκεύακεν αὑτῶι, καὶ τῆι γυναικί, καὶ τοίς τέκνοις καὶ ἐγγόνοις αὐτοῦ. ᾿´Αλλωι δὲ μηθενὶ ἐξέστω ἐπανοῖξαι τὸ ἡρῶιον μηδὲ προστάξαι ἑτέρωι. ᾿Εὰν δέ τις παρὰ ταῦτα ποιήση, ἁμαρ τωλὸς ἔστω θεῶν πάντων καὶ Λητοῦς καὶ τῶν τέκνων, καὶ προσαποτεισάτω τάλαντον ἀργυρίου καὶ ἐξέστω τῶι βουλομένωι ἐγδικάζεοθαι περὶ τούτων. C.I.G. 4259, and Reisen in Lykien und Karien, i. 29.

13 C. I. G. 2839, and in several other epitaphs. See Treuber, op. cit. p. 12.

14 Le as-Waddington 1639.

15 C.I.G. 4290. Compare the other passages already quoted, p. 269, note 4. A variant of the usual formula at Aphrodisias, καί προσαποϵισάτω, ἔστω ἐπάρατος (C.I.G. 2824)Google Scholar, must be interpreted in conformity with contemporarylocal custom as loosely equivalent to ἔστω ἀσεβής, i.c. ὑπεύθυνος ὰσεβείας.

16 C.I.G. 4303. This epitaph is very ancient.

17 C.I.G. 4303, e.3; J.H.S. xv. p. 114, No. 31; ibid. p. 104, No. 9; Reisen, ii. 58.

18 This first appears in the first century B.C. and is commonly used until A.D. 43. It is generally combined with a penalty to the δῆμος.

19 This stage in the development of Lycian law is therefore the same as that reached by Roman law under the republic, as quoted by Treuber, op. cit. p. 33. Gujus dolo malo sepulchrum violatum esse dicetur, in eum in factum judicium dabo, ut ei ad quem pertinet quanti ob earn rem aequum videbitur condemnetur. Si nemo erit, ad quem pertineat, sive agere nolet: quicumque agere volet, ei sestertium centum miliuni nummorum actionem dabo.

20 I omit in this paper all discussion of two epitaphs much older than Telesias', that of Perpenenis at Cyaneae, Reisen, ii. 27)Google Scholar, and that of Mosohion at Telmessus (first printed by Imbert, M., Mémoires de la Seciété de linguistiqite, vol x. p. 216)Google Scholar. Their interpretation depends entirely on the meaning of a Lyeian word, mindis, and they cannot be treated apart from the Lycian inscriptions, with which they are, I believe, contemporary. Neither seems to have anything to do with legal penalties. In the first, there is probably only a question of a fine imposed by a corporation on its members (Vertragsmult), in the second of a fee, not a fine.

21 As Reisen, ii. 62, and 94.

22 As Reisen, ii. 58; C. I. G. 4303; J. H. S. xv. p, 114.

23 There are perhaps not more than about 15 in all older than the latter date, and of these some half-dozen are to be dated before 300 or little after. Before 300, over 150 Lyeian and Greek epitaphs are known. The new wealth created under Roman protection (from B.C. 168 onward) required new family tombs; in the bad times of Greek rule the old were sufficient.

24 In this inscription two erasures appear to have been made, in the first and third lines, so as to remove the name of the first of the two original builders, and remove also the mention of the heirs of the second original builder, Hegias. Instead of these the name of Thrasymachus and the mention of his heirs are appended at the end of the inscription, which is therefore to be read thus:

Τὸν τάφον κατεσκευάσαντο (erasure) ῾Ηγίας Σεδεπλεμιος ἑαυτῶι καὶ τῆι γυναικὶ αὐτοῦ (erasure seq. 1. 6) καὶ Θρασύμαχος ᾿Αρχίηυ ἑαυτῶι καὶ τῆι γυναικὶ αὺτοῦ Νο[σ]σί[δι] Μενεκράτου καὶ τοῖς τέκνοις αὺτῶν καὶ[το]ῖς τούτ[ω]ν ἐγγόνοις (1.3) ἄλλωι δὲ μηι ἐξέστωι θάψαι, ἤ ὀφειλήσει ὁ παρὰ ταῦτα θάψας ἐπιτίμιον καθάπερ ἐγ δίκης Θρασυμάχωι ἢ τοῖς ἐγγόνοις αὐτοῦ δραχμὰς χιλίας The alteration was made at the moment of engraving: lines 6 and 7 are not a later addition. In 1. 3 καὶ τοῖς τέκνοις αὐτοῦ were probably the words erased.

25 ‘Die Inschrift ist gut geschrieben und gehört wohl noch in das letzte vorchristliche Jahrhundert’ (Petersen). There seems no de finite indication that it may not be even some what earlier.

26 If there had been only one builder, the damages would probably have gone to his descendants by ordinary right, and not have been mentioned in the epitaph.

27 For himself, wife, and children. Ἄγγωι δὲ μηθενὶ ἐξέστω ταΦῆναι ἐν τῶι προλελραμμένωι τάΦωι, ἤ ἀποτισάτω ὁ θάψας τῶι υἱωνῶι μοῦ Ἐρμολάωι δραχμάς τρισχιλίας καθάπερ ἐκ δίκης, καὶ τῶι δήμωι τὸ ἴσον πλῆθος, καὶ ἁμαρτωλὸς ἔστω κ.τ.λ. J.H.S. xv. p. 104Google Scholar. The restorations, not here marked, are due to Mr. Davies and are certain. No reward is offered to a private prosecutor or to an informer.

28 C.I.G. 4300, v. line 9. ἐἀν δέ τις παρὰ τὰ προγεγραμμένα πράξη τι, ἁμαρτωιλὸς ἔστωι θεοῖς χθονίοις, καὶ ἀποτισάτωι ἐπιτίμιον τῶι δήμωι δραχμἀς ἐξακισχιλίας τῆς προσαγγελίας οὔσης παντὶ τῶι βουλομένωι ἐπὶ τῶι ἠμίσει καθάπερ ἐκ δίκης.

The founder seems to have left no descendants, tor the use of the tomb is only given to his wife, and parents, and a θρεπτή (θρεπτοί and ἀπελεύθεροι in the ὑπόσοριον). The delegation to the δῆμος is probably due to the incapacity of some to plead, and the improbability that the others would survive him.

29 Reisen, ii. 108a (= C.I.G. 4303 e).

The inscription belongs to the first century B.C.; the form indicates a date later than B.C. 70.

30 C.I.G. 4300, s, in which the end of the last line should be restored,

31 During this period in three-fourths of the examples the damages are payable to the Permission to prosecute still continued to be given to private persons, who receive one-half of the penalty. After A.D. 43, the penalty is stated in denarii instead of drachmae, and onethird is generally promised to the informer, or the witness who secures a conviction.

32

33 ἀποτισάτω―τῶι μἱωνῶι μοῦ―δραχμὰς τρισχιλίας καθάπερ ἐκ δίκης. κ.τ.λ.

34

35 Treuber (p. 19) translates ‘ganz wie auf Grund eines durchgeführten Privatprozesses.’ He compares an inscription at Aphrodisias (Lebas-Waddington 1639) where offenders have to pay to the Imperial fiscus 10,000 denarii, He suggests that ‘bei dem Gerichtsverfahren, das durch eine derartige Anzeige veranlasst wurde, die litis aestimatio sowie die actio judicati und vielleicht noch anderes von vornherein wegfiel, und dazu, dass die Busse verwirkt war und rechtskräftig wurde, es genügte, wenn der Richter sich dahin ausprach, dass die gegen die Bestimmungen verstossende That von der bezeichneten Person begangen war.’ He knew only the last of the three epitaphs.

36 See above, p. 269.

37 Also the recovery of arrears of taxation, etc.

38 It is not probable that the actual recovery of damages which had already been awarded by a court could have been left to any private person. More probably all necessity for such an award was eliminated by something analo gous to a justices' warrant. The public registration of the damages claimed, as well as the title to the tomb (C.I.G. 4274), would facilitate a summary jurisdiction.

39 Only one of the oldest epitaphs (that of Telesias) comes under the second class, and there the curse precedes the penalty. Two others (C.I.G. 4303 and J.H.S. xv. p. 114) have the curse only.

40 With the Lycian are to be classed, not only the bilingual, but also a few very early Greek epitaphs, such, as the two mentioned on p. 272, note 20.