Theozotides on Adopted Sons (Lysias fr. 6)

Abstract. Theozotides' proposal to exclude adopted sons from the ceremony honoring war orphans at the City Dionysia is not grounded in ideology but is much more likely to be motivated by real or potential abuse of the city's benefits through unique features of Greek adoptions.
The parade of war orphans at the City Dionysia has recently drawn renewed attention as an example of the Athenian civic ideology.1 The ceremony seems to have been one of considerable importance and emotional affect in its portrayal of the parental state which raised and provided for the sons of its fallen soldiers.2 In this light, however, a proposal which Lysias (Against Theoz. fr. 6) attributes to Theozotides becomes even more curious than it has always seemed: the exclusion of adopted sons from the ceremony along with bastards (tn poihtn ka tn nyvn). An exclusion of bastard sons is consistent with the Periclean citizenship legislation of 451 (reenacted in 403),3 but the exclusion of adopted sons has no obvious ideological rationale.
One is entitled to wonder how large the category in question was in any case. Adoption in Greece was for the benefit of the adopter, not the adoptee.4 A man without sons adopted in order to perpetuate his oikos. Consequently, one would normally not adopt until the likelihood of producing legitimate sons in marriage seemed small; moreover, one would often adopt a son who had survived the dangers of childhood and was therefore himself likely to carry on the oikos (although adoptions of children seem to be known5). In light of the likely ages of adoptive fathers and sons, the number of adopted sons likely to be left orphaned by the death of the adopter in war might initially seem extremely small.
We must keep in mind that there were three forms of adoption at Athens: adoption inter vivos such as we are familiar with today, testamentary adoption, and posthumous adoption. Testamentary adoptions would certainly have increased the group of sons who were left technically orphans by war. A man could provide in his will for adoption of an heir which would take effect only after the testator's death. In fact, of ten such adoptions in the fourth century where the testators are definitely identified, five did die in war.6 A testamentary adoption was clearly a reasonable precaution for a man going to war who had no sons and wished to provide for the perpetuation of his oikos. Still, one might conjecture that most testamentary adoptions would also be of heirs already adult and therefore beyond participation in the war orphans' ceremony at the Dionysia.
Why did Theozotides find the case worth legislating against? His motivation is usually held to have been financial, based on the belief that Lysias was attacking a single proposal by Theozotides which also dealt with military pay. R. S. Stroud has suggested rather that two separate proposals by Theozotides, one dealing with orphans and the other with military pay, may be involved.7 If so, the presumption that provisions about orphans were financially motivated is not inherently obvious. Nonetheless, in the absence of an ideological explanation for the exclusion of adopted sons from public benefits, we should look for a financial issue here.
Those benefits were not inconsiderable. The state supported war orphans to maturity. The exact provision for their trof is not directly recorded, but Stroud suggests they were paid an obol a day.8 They were also outfitted with a war panoply upon entering the ephebeia.9 These provisions create a significant potential benefit, even in the case of an estate which otherwise might be without value.
At the same time the city faced serious financial problems. In 406/405, for example, the city resorted to synchoregia to produce the plays at the Dionysia.10 Tax revenues from the Peiraeus were also very low in the aftermath of the war.11 In short, both the people and the city were hard pressed at this period.
I suggest the issue may lie in abuse of that striking feature of the Greek legal system, the third of the forms mentioned above, posthumous adoption.12 Posthumous adoption remains a somewhat obscure topic, although Lene Rubinstein's treatment has greatly improved our state of understanding. Rubinstein may well be correct in her contention that only the person who was the intestate heir and had already been awarded the deceased's property by pidikasa was eligible to be posthumously adopted. In any case it is clear that posthumous adoption was a matter of family initiative, not subject to initial review by a magistrate, and ratified simply by introduction of the adoptee to the phratry, just as legitimate sons of the body were.13 Thus the way lay open for boys under age to become the adopted sons of soldiers who died without issue. For families of modest means (and perhaps others), this would have been a very strong incentive, especially in the trying period immediately following the Peloponnesian War.
We must consider one possible ideological explanation for Theozotides' proposal: an attack on the policies of the Thirty Tyrants. Ath. Pol. 35 records that the Thirty began their rule with some popular measures, including a revision of Solon's law on adoptions. Solon's law provided that adoptions could be overturned if the adopter was shown to have acted under the influence of madness or old age or the undue influence of a woman.14 The result, at least immediately preceding the Thirty, had been to burden the law courts with litigation charging these abuses. The Thirty abolished the exceptions in order to decrease litigation, and the Ath. Pol. gives this as an example of one of their useful measures. In the fourth century, however, the Solonic exceptions once again were grounds for litigation, so the "reform" under the Thirty did not last.15 We might wish to see in Theozotides' action then an expression of the belief that adoption had been abused under the Thirty and those not adopted in strict adherence to Solonic law were not entitled to benefits.
Most likely, however, is an explanation based on dire family circumstances at war's end. While testamentary adoption was theoretically open to abuse (e.g., if testators chose under-age heirs when they would normally have chosen adults or no heirs, simply in order to provide the heir with state benefits), families' attempts to take advantage of posthumous adoption to gain access to state benefits seem a far more likely problem for the city. Despite the state's emphasis on legitimacy as a basis for citizenship, we should not imagine Theozotides as an ideologue of fifth century "family values" which he hoped to promote through attacking adopted sons but rather as a welfare reformer. This potential for abuse may also partially explain the disappearance of the war orphans' ceremony itself in the next century.16

1Simon Goldhill, "The Great Dionysia and Civic Ideology," Nothing to Do with Dionysos? Athenian Drama in its Social Context, edd. J.J. Winkler and F.I. Zeitlin (Princeton 1990) 97-129 [earlier version in JHS 107 (1987) 58-76]. Cf. more generally W. R. Connor, "City Dionysia and Athenian Democracy," C & M 40 (1989) 7-32.

2See Nicole Loraux, The Invention of Athens (Cambridge, Mass. 1986) 98-102 and passim on the formulae of the epitaphios, including ndrew gayo genmenoi. The language is closely echoed by the passage under discussion, Against Theoz. (P. Hib. I. 14) fr. 6 , cited from Lysias, ed. L. Gernet, M. Bizos (Bud: Paris, 1962)): o patrew peyanon n ti polmvi maxmenoi pr tw patrdow ndrew ntew gayo.

3On the lengthy controversy over the status of the nyow (for which "bastard" is a somewhat misleading translation) and the relation to Pericles' law, see Cynthia B. Patterson, "Those Athenian Bastards," CA 9 (1990) 40-73, esp. 59-63.

4The best discussion of adoption is now the study of Lene Rubinstein, Adoption in IV. Century Athens (Copenhagen 1993) [= OGL 34], who notes (p. 13) "... in Athens ... [adoption] was primarily construed as benefitting the adopter, providing for his need of a descendant." Two other important discussions are A. R. W. Harrison, The Law of Athens: The Family and Property (Oxford 1968) 82-96; D. M. MacDowell, The Law in Classical Athens (Ithaca 1978) 99-108, esp. 100.

5In the adoptions catalogued by Rubinstein [4], all adoptees with known ages were already adults (p. 22), but she sees Samia 695-99 as evidence that Moschion was adopted as a child, which in turn implies that the audience was familiar with such adoptions.

6Rubinstein [4] 23. Others died while travelling.

7See R. S. Stroud, "Greek Inscriptions: Theozotides and the Athenian Orphans," Hesperia 40 (1971) 280-301 esp. 296-301. Stroud suggests that the proposal to reduce the pay of the hippeis came earlier.

8Stroud [7] 290. The inscription he discusses, Agora I 7169, is a decree authored by Theozotides on orphans whose fathers died fighting for the democracy n ti lig[arxai. Stroud believes this may be the same decree attacked in Lysias' speech.

9Later all ephebes were given a panoply: see Aristotle, Ath. Pol. 42.4 and P. J. Rhodes, A Commentary on the Aristotelian Athenaion Politeia (Oxford 1981) 508 ad loc. For the earlier practice, benefitting only the war orphans, see Plato, Menex. 248 E 6-249 B 2 and Aeschines, In Ctes. 154.

10Sir Arthur W. Pickard-Cambridge, The Dramatic Festivals of Athens, 2nd ed. rev. by J. Gould and D. M. Lewis, reissued with supplement and corrections (Oxford 1988) 47f. and 87 discusses the evidence for this, I.G. ii2 3100.

11On the general impoverishment of Athens after the war, see M. M. Austin and P. Vidal-Nacquet, Economic and Social History of Ancient Greece (Berkeley 1977) 140f. E. M. Burke, "Lycurgan Finances," GRBS 26 (1985) 251-64 contains valuable discussion of state finances at this earlier period as well, including comment (with further references) on the Peiraeus revenues reported in Andocides 1.133.

12See particularly the account in Rubinstein [4] 25-28 and 105-112, supplemented by Harrison [4] 90-93. Both Harrison and MacDowell discuss in detail the case of the estate of Hagnias, which illustrates the issue.

13Rubinstein [4] 44; Harrison [4] 92: "...action seems to be initiated by one of the kindred of the de cuius, and though that action had to be confirmed, as in the case of adoption inter vivos or by will, by the phratry and presumably the demesmen, there is no suggestion that any public official was involved ...." One was registered with the deme only on attaining maturity, but Rubinstein [4] 49 notes that the Athenians allowed minor sons to be registered with the phratry. This then would be the only act necessary to make minors the adopted, and therefore orphaned, sons of men deceased in war and so eligible for state benefits. Cf. Demosthenes 39, an example of how confusing and subject to manipulation such registrations were.

14Ath. Pol. 35.2: n m manin grvw < neka > gunaik piymenow. Cf. Rhodes [9] 443f. ad loc. on the minor variations in the phrase.

15See for example Isaeus II, where the speaker repeatedly insists that Menecles properly adopted him, o paranon od gunaik peiymenow (1, 19, 25, 38).

16I am grateful to my colleague Cynthia Patterson and an anonymous referee for most helpful comments on the ideas suggested here.