Epiclerus

• An Only Daughter and Heiress, title of a comedy of Menander, Cic. Lael. 26, 99; Quint. 10, 1, 70.

EPICLE´RUS(ἐπίκληρος, ἐπικληρῖτιςin Solon and Isaeus: cf. Harpocr. s. v. ἐπίδικος, and Pollux, 3.33; ἔγκληρος, Eur. Iph. T. 682; Hippol. 1011), the name given to the daughter or daughters (γνήσιαι, Isae. Pyrrh. § 67, etc.) of an Athenian citizen who had no son (γνήσιος: cf. Arist. Av. 1649 f.) to inherit his estate, or whose sons had died without leaving male issue (Thalheim, Rechtsalterth. p. 8, n. 2). When there was but one daughter, she was called ἐπίκληρος ἐπὶ παντὶ τῷ οἴκῳ (Isae. Aristarch. § 4); if there were more, they inherited equally, like our co-parceners (Isae. Philoct. § 47 ; Ciron. § 40f.). The ἐπίκληρος was never, in our sense, an heiress; she was, strictly speaking, a person who went with the estate ( qui est à côté de l'héritage, Fustel de Coulanges, La Cité Antique, p. 82, n. 4). The heir was either the person to whom her father had devised the property on condition of marrying her, or her son or sons. It was deemed an object of importance at Athens to preserve the οἶκος. This was effected, where a man had no child, by adoption (εἰσποίησις); if he had no sons or grandsons, but a daughter, he might bequeath his property to any person, but the devisee was obliged to marry her (Isae. Pyrrh. § 68; [Dem.] c. Macart. p. 1067.51); on the other hand, if he died intestate, her nearest relative in order of ἀγχιστεία might claim her in marriage, and the inheritance was transmitted through her to a grandson, who was, when of full age, adopted into the maternal grandfather's family (Isae. Pyrrh. § 73; [Dem.] c. Macart. p. 1053.12). Such an epiclerus might be claimed in marriage by her father's brothers, or in default of such by their sons or by the sons of her father's sisters (Isae. Aristarch. § 5; Pyrrh. § 72), or by her father's uncles (Isae. Pyrrh. § § 63, 74; see also Plat. Legg. 11.924 E-925 A). If the daughter was poor (θῆσσα), the nearest of kin was bound by law (Isae. Cleon. § 39; Lex in [Dem.] c. Macart. p. 1067.54; Aristoph. Byz. in Miller's Mélanges, p. 432, ἀναγκάζει δὲ τοὺς συγγενεῖς ὁ Σόλωνος νόμος πέντε μνᾶς, etc.) either to marry her himself or to portion her, the law fixing a sliding scale for the different classes of the census: e. g. 500 drachmas, if he be of the highest class, etc. It is true, Harpocration (s. v. ἐπίδικος, θῆτες) mentions five minas as the fixed amount to be given in any case, but he probably does so because that sum happened to occur in the speech from which he quoted, and this passage does not in any way serve to show that the above law is spurious, as Caillemer (Le Droit de Succession Légitime, p. 58) supposes. According to Aristophanes Byz., l. c., the sum was at a later period raised from five to ten minas. If there were several in the same degree of consanguinity, each of them had to contribute their share (πρὸς μέρος). The passage of the law referring to the case when there were several θῆσσαι, is difficult of explanation. K. Fr. Hermann (Zeitschr. f. Alterthumsw. 1840, p. 23) reading μὴ ἐπάναγκες εἶναι πλέον ἢ μίαν ἐκδοῦναι τῷ γ' ἑνί instead of τῷ γένει, and removing as a gloss to τῷ γένει the words ἀλλὰ τὸν ἐγγύτατα . . . ἔχειν, suggests that in case of their being several θῆσσαι and only one next of kin, it was incumbent upon him to portion only one of them. Perhaps the state came to the help of the others (Plut. Arist. 27). Caillemer, on the other hand, retaining the reading of the MSS., explains the passage to mean that the family (γένος) had to portion not more than one of them, and that the nearest relations had either to marry or to portion the rest. Upon the nearest relative making his claim (λῆξις, ἐπιδικασία) before the archon (ἐπικλήρων καὶ ὀρφανῶν κύριος, Lys. de Evandr. Prob. § 12; Lex in [Dem.] c. Macart. p. 1076.75, etc.) in case of metoecs before the polemarch ([Dem.] c. Steph. 2. p. 1135.22), public notice was given of the claim: it was written on the σανίς, and read out in the following assembly (Pollux, 8.95), and at a later day, fixed either by law or arrangement, the herald put the question εἴ τις ἀμφισβητεῖν ἢ παρακαταβάλλειν βούλεται ([Dem.] c. Macart. p. 1051.5, cf. HERESiv.). If no one appeared to dispute the claim, the archon (or polemarch) adjudged the heiress to him (ἐπεδίκασεν αὐτῷ τὴν ἐπίκληρον); if other claimants appeared (ἀμφισβητεῖν τῆς ἐπικλήρου), the archon instituted an anakrisis, and a court was held for the decision of the right (διαδικασία τῆς ἐπικλήρου), which was determined according to the Athenian law of consanguinity. We are not informed what happened when several in the same degree of consanguinity claimed an heiress; was she adjudged to the eldest or were the claims decided by lot? (Platner, Proc. u. Klagen, 2. p. 255 ; cf. Aristoph. Vesp. 586, and Andoc. de Myst. § 117 f., ἐπεδικασάμεθα ἄμφω κατὰ τὴν πρὸς ἡμᾶς ὁμολογίαν.) Even when a woman was already married, her husband was obliged to give her up to a man with a better title; and men sometimes put away their former wives in order to marry heiresses (Isae. Pyrrh. § 64; Dem. c. Eubul. p. 1311.41, c. Onet. 1. p. 866.7). In Isae. Aristarch. § 19 the speaker's father was deterred from taking proceedings by the fear of losing his wife, whom the next of kin threatened to claim at law, if he claimed the estate. And even after the decision of the court had been given in favour of one claimant, any other person who could show a better title might bring an action against the husband and claim the heiress ([Dem.] c. Macart. p. 1054.16). The limit of time for making such a claim we do not know ; Caillemer suggests that an heiress could not be claimed after having given birth to a son (l. c. p. 42 f.). The estate never passed into the possession of the husband of the heiress (Isae. Ciron. § 31 ; Aristarch. § 12, etc.); their son when of full age (ἐπὶ διετὲς ἡβήσας) was adopted into his maternal grandfather's family (Isae. Pyrrh. § 73; [Dem.] c. Macart. p. 1053.12), and took possession of the estate. He then became his mother's legal protector (κύριος), and was bound to find her maintenance (σῖτος). If there were more sons, they shared the property equally ([Dem.] c. Steph. 2. p. 1135.20; Hyperid. fr. 194 Bl.). An heiress was under the special protection of the archon [(Dem. c. Macart. p. 1076.75), and the law gave anyone the right to bring a criminal prosecution called κακώσεως εἰσαγγελία in certain cases, viz. if an adopted son refused to marry her (Isae. Pyrrh. § 45 f.) or in case she was poor, if the next of kin did not marry her himself or portion her, or if she was injured or neglected by her husband (Plut. Sol. 20), or if she was injured by strangers ejecting her from her estate (Dem. c. Pantaen. p. 979.45). (Att. Process, ed. Lipsius, pp. 357 f., 575-577, 614-617; Maine, Early Law and Custom, p. 104 f.)

The Gortyn Code gives detailed directions as to heiresses (πατρῳῶχοι). It defines (8.40) one shall be heiress, if there be no father or brother from the same father, but the father's estate passed into her possession and remained with her to her death, and had not to be given up, as at Athens, to her son or sons when of full age; her father's surviving brothers in order of age, or in default of such their sons, might claim her in marriage, but by handing over to the nearest applicant a portion of her estate, she might set herself free and marry whomsoever of the tribe she pleased. If the heiress and the rightful claimant (ὁ ἐπιβάλλων) were too young to marry, the heiress was to have her father's house and he half the income of all the property (7.29-35); but he lost his share, if when both were grown up (ἡβίων, ἡβίουσα) he refused to marry her. A girl was marriageable at twelve years of age (12.31 f.). When the claimant reached a further age and was admitted to the public athletic exercises (δρόμοι), then, if he still refused to marry her, the kinsmen of the heiress were to bring an action and the judge was to order him to marry her within two months ; and if he did not do so, he forfeited his claims altogether, and the next of kin succeeded to them (7.40-50). If, on the other hand, the heiress refused to wait till the claimant was grown up, or refused to marry him at all, she retained the house and its contents and half of the other property, but was bound to marry some one of the tribe, whom she chose; but if no one was willing, then some one else. The other half of her property went to the rightful claimant (7.52-8.5). If a married woman became heiress (e. g. by the death of her brother), it would seem that her marriage was regarded as dissolved; if children had been born, it rested with her either to re-marry, as it were, her husband, or on surrendering to him half the property to marry anyone else of the tribe; in any case where there were children, the relations had no right to claim the heiress. On the other hand, if no children had been born, the nearest relative might claim her in marriage (8.20-30), and she could only release herself from this claim by yielding to him half the property. In case her husband died, the nearest of kin could claim her only if there were no children. There is no mention in this code of an institution corresponding to the enforced portioning of a θῆσσα on the part of her next of kin, as Solon's and Charondas' laws enjoined (Diod. Sic. 12.18).

The information we possess as to heiresses in Sparta (πατροῦχοι, Hdt. 6.57; Pollux, 3.33; Timaeus, s. v.: Cobet reads παμοῦχοι, Mnemosyn. 12. p. 157; or ἐπιπαματίδες, Suid.; ἐμπάμονες, αὐτοπάμονες, Hesych.) is very scanty and contradictory. Besides Herodotus' remark, that it was one of the privileges of the kings to decide to whom among the various claimants for marriage with the heiress the best legal title belonged, we have Aristotle's statement (Polit. 2.6 (9 Bk.), 10, 11 S.): Although the legislator rightly holds up to shame the sale or purchase of an inheritance, he allows anybody who likes to give and bequeath it. Yet both practices lead to the same result, and nearly two-fifths of the whole country are held by women; and this is owing to the number of heiresses and to the large dowries which are customary. It would surely have been better to have given no dowries at all; or if any, but small or moderate ones. [Here Susemihl supposes a lacuna: moreover, it would have been necessary for him to define who was entitled and obliged to marry the heiress.] As the law now stands, a man may bestow his heiress on anyone whom he pleases; and if he die intestate, the privilege of giving her away descends to his heir (Jowett). We read also in Plut. Agis 5, of a certain ephor Epitadeus (in the first decades of the 4th century, Duncker, Monatsb. d. Berl. Akad. 1881, p. 150), who on account of some quarrel with his son proposed a law, that any person should have liberty to give away his house and lot during his lifetime, and also to leave it as he chose by will. O. Müller (Dorians, 2. p. 206) suggests that Aristotle confounds the state of things as it existed in his time (in consequence of Epitadeus' law) with the ancient legislation of Lycurgus; Göttling (on Arist. L. C.), to free Aristotle from this charge, supposes that the subject of ἐποίησεν οὐ καλὸν is not Lycurgus (as Susemihl supplies from § 8), but in general the lawgiver, and that under this term Aristotle comprises the later innovators of the constitution; Schulin (d. griech. Testam. veryl. m. d. röm. p. 39 f.) tries to reconcile the two statements by saying, that Lycurgus' legislation gave the father a limited testamentary power, e. g. if he had a son, the κλῆρος went with him, and that the law of Epitadeus removed this restriction; Grote (2. p. 411, n. f.) and Susemihl (n. 299) uphold Aristotle's authority and discredit Plutarch's story. Jannet (Les Institutions Sociales et le Droit Civil à Sparte, pp. 90 f., 134 f.) thinks that originally the father had to choose a husband for the heiress from amongst the ἀγχιστεῖς; if he died without having done so, the heiress was claimed as of right by the next of kin, and it was one of the privileges of the kings to decide which of various claimants had the best title (Hdt. 8.57. Leonidas compelled Agiatis, the widow of Agis, to marry his son Cleomenes, though at that time too young for a wife, because he was unwilling that anyone else should have her, being heiress to her father Gylippus's great estate: Plut. Cleom. 1). Thus uncles marry their nieces (Leonidas married Gorgo, his brother's only child, Hdt. 5.48; 7.205-Z2, 239), nephews marry their aunts (Archidamus the grandson of Leotychides married Lampito, his grandfather's only child by a second wife, Hdt. 6.71). It was one of the provisions of Epitadeus's law, that a father might bestow his heiress on anyone whom he pleased. O. Müller concludes from Heracl. Pont. 2 that the Spartan lot of land was indivisible in respect of inheritance: this necessarily required that there should be only one heir, probably always the eldest son, and that the daughters should marry without receiving any dowry; in case there was no son, but only daughters, probably the eldest of these became heiress, and was given in marriage to some person who had no lot of his own, such as the descendant of a younger brother, those nearest of kin having the first claim. This assertion that the Spartan lot of land was indivisible in respect of inheritance is based on a wrong reading in Heracl. Pont. τῆς ἀρχαίας μοίρας ἀνανέμεσθαι οὺδὲν ἔξεστι: Schneidewin has restored from MISS. the passage to πωλεῖν δὲ γῆν Λακεδαιμονίοις αἰσχρὸν νενόμισται τῆς δὲ ἀρχαίας μοίρας οὐδὲ ἔξεστιν, and shown that the passage relates to sale of land and not to division.

Aristotle speaks of ἐπίκληροι in Mitylene and Phocis (Polit. 8.3, 3 S.=5.4 B). In a Theraean inscr. (C. L. G. No. 2448, 100.30 f.= Cauer2 148) the ἐπίκλαροι are mentioned as having privileges over other married daughters. In Heracl. Pont. Polit. 32 Schneidewin accepts the conjecture ἐπίκληρος for the MS. reading ἐπικλέως or ἐπὶ κλέος, without giving any explanation of this peculiar case. In an inscr. of the 5th century (Achaian according to Fick, Bezzenberger's Beitr. 5. p. 324; Laconian according to Kirchhoff, Monatsb. d. Berl. Akad. 1870, p. 51 f., and Roehl, I. G. A. No. 68) it is directed that the legitimate daughters could take from the temple, which served as a bank, their father's property after the legitimate sons had died. With the Lycians the daughters alone could inherit (τάς τε κληρονομίας ταῖς θυγατράσι λείπουσιν οὐ τοῖς υἱοῖς, Nicol. Damasc. in Müller, Fragm. Hist. Gr. 3.461; cf. C. I. G. No. 4244). See also Nymph. Heracl. in Müller, l. c., p. 15; Hdt. 1.173.