Funerary Law I:
Mysia — Troad — Ionia — Caria
The geographical scope of the first project on funerary law and the protection of graves was the western coast of Asia Minor, i.e. Mysia and the Troad, Ionia and Caria. I have deliberately chosen the landscape in which the “classical” Greek poleis were typical, although it was clear from the outset, that the first prohibitions and sanctions were found on epitaphs from Lycia. During my work on my habilitation thesis I gathered information on public law and administration in the Greek poleis under Roman rule, including texts from the Roman province Asia, therefore the framework for the analysis of the relevant sepulchral texts was already at hand. Roughly 1000 texts containing information on funerary law or the protection of the grave in the broadest sense were included in our database, the following map shows the distribution of texts. map
The relation of texts with “legally relevant content” to the overall number of grave inscriptions ranges between 15-25 % in the northern regions of the study area, as opposed to 25-50 % in Caria, showing that the phenomenon is more common in the south. The first survey of the texts from southwestern Asia Minor has shown, that the percentage increases in Lycia, Pisidia and Pamphylia. Aphrodisias, Ephesos, Smyrna, Miletos and Kyzikos each render a significant amount of texts enabling us to establish certain patterns and will therefore be dealt with separately in the final publication. Moreover preliminary studies have already been published during the course of the project (see publication list).
In western Asia Minor the first examples of prohibitions and sanctions on epitaphs, that are so typical already for late Hellenistic Lycia, date to the 1st cen. CE, with a clear peak in the late 2nd and the 3rd cent. CE. Texts that were to be included in our database have to provide information on one or more of the following categories: the acquisition or possession of a grave, the entitlement to use it, different categories of prohibitions, the sanctions accompanying them, the recipients of the fines and the possible exaction of the money or other ways of prosecuting a trespasser of the directives of the grave-owner. Basically we were thus dealing with two different legal aspects, in many cases even legal acts: the acquisition of a site or a grave and the specification of regulations effective for this grave, drawn up by the grave-owner.
Acquisition of a site or a grave
Many texts explain right at the beginning that „this is the grave of“, that the monument „belonged to“ the person who established it. This was usually phrased with εἶναι and the possessive genitive but cannot be seen as proof of actual legal ownership. It is rather used quite colloquial, just as the corresponding English phrase “This is my …” or the German “Das gehört mir.”. Still there is enough information on the right of property too, especially in those cases, where the ownership was transferred from one person to the other, or from the polis to a private person. In Smyrna, 28 out of 124 texts in our study (compared to the total of ca. 560 grave-inscriptions) explicitly mention the purchase of the grave by the person now establishing it. A similar ration is seen in Herakleia Salbake (6 out of 20 texts in our study). On the other hand there is no comparable phrase in Ephesos, although we have 276 texts with legally relevant content. Of course graves will have been bought and sold there too (and the prohibition of alienation of a grave proves that), but the original acquisition was not important enough to be stressed in the grave inscription.
Apart from the sale, graves could be inherited, which constitutes a non-remunerated form of transfer of ownership. Again there is not much positive evidence (apart from a few inscriptions from Smyrna and Aphrodisias), but the common phrase HMHNS (hoc monumentum heredem non sequetur), clearly imported from Roman law and in many cases translated into Greek, shows that the exclusion of a grave from the inheritance had to be stated explicitly and was thus often mentioned on the grave inscription.
Another way of legally occupying a grave was with an entitlement to do so given by the grave-owner, the so called synchoresis. This concession did not convey ownership but only the right to bury a corpse, still it has to be seen as an important form of transaction that was regularly done in writing and very often with the help of the local archives. As far as we know the synchoresis did not require any remuneration and could be given to members of the family as well as to outsiders. There were two different kinds: one granted solely to the person or persons named in the deed, and the other one enabling the person named to grant the right of interment themselves, sometimes explicitly to anybody they wished. The synchoresis is a typical phenomenon for Caria and often Aphrodisians will state right at the beginning of the epitaph, that they acquired the right to use the grave from a fellow-citizen. In Ionia this form of transaction occurs rarely, a few examples are known from Smyrna (2), Teos (2) and Ephesos (8). Still Ephesos provides us with an invaluable document: a personal letter of Claudia Antonia Tatiane granting her brother the right to bury his wife in her heroon, formulated in the first person and even stating the witnesses to the draft of the document (IEph 2121). We will have to assume a document like this for every synchoresis, and many funerary inscriptions show that the local archives played a role in the issuing of the entitlement.
The biggest fear of all grave owners, that is clearly stated in the inscriptions we treated, is the fear of unauthorized use of the grave by either family-members or strangers. Thus most inscriptions state explicitly, who was allowed to use the grave and who was not. On the one hand we often found ‘whitelists’, naming the individual family-members designated to get access to the grave, on the other hand there are general remarks “to my children and my descendants”, leaving the actual number and identity of the persons open. These last phrases indicate a family-tomb that would then be subject to the regulations of inheritance law given in each city. As indicated above, some texts explicitly entitled certain family members to dispose of the grave as they wished, with the exception of alienating the site. The fact that these lists were seen as final once they were either deposited in the archive or set up on stone, is shown by texts, in which the grave owners found it necessary to reserve for themselves the right to alter their wishes and to grant the right of interment to other persons not named at the time of the establishment of the grave. Equally interesting are texts, in which a concession of burial was withdrawn, usually this becomes clear when erasures of one or more names are found on the stone. Next to the practical information, that certain children were not allowed to the grave anymore, these inscriptions can be seen as examples of private damnationes memoriae.
Apart from restrictions of the usage of a grave very direct prohibitions, accompanied by sanctions, are regularly found in funerary texts. The prohibition against unauthorized burial and the prohibition against the alienation of the graves are the two most common categories found in Western Asia Minor. Both contribute to the protection of the property of the grave and are not so much directed at anonymous passer-bys, but at the family and the heirs of the grave-owner. Especially the prohibition against unauthorized burial which complements the restrictions presented above is a good example to illustrate common practice and local variations. It is common practice in all the cities that have grave inscriptions with legally relevant content, to include this prohibition. The wording of the clauses on the other hand comes in different local variations. On the one hand there are “traditional” poleis, in which the same phrase is used in most of the texts. Typical examples are Herakleia Salbake or Aphrodisias. On the other hand we find cities like Smyrna or Ephesos, where different phrasings are found that pertain to the same subject. Especially in Ephesos I was able to trace influences from other communities, both neighboring and areas farther away, thus showing that the city was a melting pot in this aspect of public life as well.
Other prohibitions connected with the general area of unauthorized burial show the fear of the grave-owner that a body might be removed from its grave. It is standard in Aphrodisias, but found rarely in other cities among them Ephesos and — interestingly — Athens. Several texts prohibit the opening of the grave or the removing of the lid of the sarcophagus, which protect a grave from every form of intrusion. Still the texts from Kyzikos, Herakleia Salbake and Apollonia Salbake show the relation between this clause and the unauthorized burial quite clearly. They cover the incitement to open a grave as well and are directed at the possible offenders as well as at the workmen these might hire.
The prohibition against alienation is the second most common prohibition we encounter. As for terminology the same applies as with the prohibitions just mentioned and in about the same areas. Again Ephesos has the greatest diversity, by forbidding the selling of the grave as well as other forms of abalienation. These words comprise both the sale and the synchoresis, which is mentioned separately in other cities. Usually only the seller incurs the fine but occasionally both seller and buyer are threatened. In Smyrna the invalidity of any sale concluded against a prohibition is regulated in grave inscriptions as well. In cities where the sale of site or grave in question is not mentioned in the inscription these prohibitions contain the only information we will find on this form of transfer of ownership.
Sanctions and additional prosecution
Although curses are found throughout western Asia Minor, the typical sanction for the inscriptions from the 1st cent. CE on is the monetary fine. Usually the text states clearly how much money had to be paid and to whom. The sums range from 1000 up to 50000 Denarii, the most common being 2500 or 5000 (there are a few texts designating less than 1000 Denarii to certain beneficiaries). Again this was common practice all over Asia Minor, but the recipients of the fine varied locally. The fiscus is the beneficiary in most of the inscriptions, especially in Ephesos, where the Roman governor resided. On the other hand in Smyrna or Miletos usually more money was awarded to the polis, its civic subdivisions or local sanctuaries than to the Roman treasury. The Ephesian hinterland provides us with an enlightening peculiarity: Although civic institutions are not usually beneficiaries in Ephesos itself, they are regularly recipients of fines in the small villages around Ephesos, the komai and katoikiai. These little communities had developed into small cities in Roman times, had their own administration and in some cases their own coins. Still their populations must have been small enough for the grave-owners to hope that the prospective income would encourage their fellow citizens to keep an eye on their graves. Another category of recipients were local sanctuaries such as the one of Apollon Klarios in grave inscriptions from Kolophon, Meter Sipylene, regularly without any other recipient in Smyrna, or Aphrodite in Aphrodisias and Artemis Kindyas in Bargylia. In these cases the financial administrators of the sanctuary were in charge of exacting the money.
Interestingly enough, grave robbery (tymborychia) is never listed among the offences or forbidden actions, although it is often referred to. It is always used as cross reference to additional prosecution. Whoever trespasses any regulations is to pay a fine and to be prosecuted for tymborychia. Now clearly the selling of a grave or the unauthorized burial of a person are not per se actions that can be compared to grave robbery. But by subsuming them under the criminal offence which was governed by laws in every city the threat became more powerful.
Examples of this practice come from Didyma, Milet and regularly from Aphrodisias. Tymborychia was a public offence and usually everybody who had his full civic rights was invited to indict and prosecute it. Unfortunately we do not know what kind of procedure was used, nor who the judges would have been or even the possible punishment. In comparison with the asebeia which is also used in the same way, we assume both the exclusion from the sacred community as well as other social consequences (atimia), possibly the exclusion from the civic community. We were able to prove that this inclusion of criminal prosecution in the protection of private graves, which was not self-evident but had to be established by subsumption which shows on the other hand how the polis could play a role in the basically voluntary system of prohibitions and sanctions. This is moreover substantiated by the fact that the monetary fines are not penalties payable to the grave owners who suffered the damage, but fines payable to the fiscus or the community.
Often a share of the money payable was directed to those private persons who acted as volunteer prosecutors (boulomenoi) in order to protect the grave. This system is well known from laws and other public enactments and can be seen as an incentive to ensure the participation of the citizens of a community in establishing public order. In the funerary inscriptions the sums range from 1/8 up to 1/2 of the fine. The task of these boulomenoi was on the one hand the denunciation and prosecution of any trespassing, on the other hand in many cases the actual collection of the monetary fines.
Especially these last two aspects, the criminal prosecution and the system of volunteers clearly have their archetypes in the funerary texts from Lycia, which we will analyze in the proposed project. In the monograph in preparation comparison and reference to those late Hellenistic texts from southwestern Asia Minor is provided for.