The Will of Gnaeus Magius

Kathryn F. Williams (Canisius College)

Cicero’s Pro Cluentio is famous as a narrative so convoluted and complex that it enabled Cicero himself to boast se tenebras offudisse iudicibus (Quint., Inst. 2.17.21). Amid the confusion of marriages, pregnancies, greed and murder, Cicero interweaves a number of references to wills, heirs, and legacies. Many of these allusions target Oppianicus, the deceased father of the plaintiff. Cicero makes every attempt to portray Oppianicus as the epitome of villainy (Kirby [1990] 39). According to Cicero, the murderous man had been a genuine source of danger for Aulus Cluentius, Cicero’s client. Such harsh characterization of Oppianicus compels Cicero always to cast him in a negative light. In some instances, this has led to questionable statements on the part of Cicero, statements that his jurors might not have questioned on the spot, but that upon reflection seem improbable. The one I focus upon in this paper concerns the will of Gnaeus Magius.

Cicero refers to Magius’ will in two different passages, Clu. 21 and 33-34. We learn in 21 that Magius named as heir young Oppianicus, the only child of his deceased sister ([Magius]heredem fecit illum adulescentulum Oppianicum, sororis suae filium) and that Magius’ mother, Dinaea, received a share of the estate apparently through a legacy (eumque partiri cum Dinaea matre iussit; Watson [1971 Law of Succession] 129, legatum partitionis; Gardner [1998 Family and Familia] 217). In the later passage, at 33-34, we get a full account of the events surrounding Magius’ announcement of the details of his will near the time of his death. Notably, before friends and his mother, he learned that his wife was pregnant. He then declared that he would leave her a large sum of money as a legacy, if she bore a son. She would receive no legacy, however, if she did not give birth to a son. Rather, a substitute heir – whom we know to be Oppianicus, Jr. – would inherit (Itaque ei testamento legat grandem pecuniam a filio si qui natus esset; ab secundo herede nil legat.). Cicero concludes the account by declaring that Magius showed clearly that he was suspicious of Oppianicus by not naming him as guardian in his will (Nam cuius filium faceret heredem, eum tutorem liberis non adscripsit).

While it was not surprising for a childless man without wife or siblings to leave his estate to a nephew (Champlin [1991 Final Judgments] 126 n. 86), it seems very odd that a man who suspected the heir’s father of multiple murders would not see to it that the man would not control the inheritance. Under Roman law, the father of a son in potestate would have had actual ownership of any inheritance (Gaius, Inst. 2.87). Admittedly, the money in such circumstances was usually placed in a peculium (D. 15.1.7.5) and was “regarded as the son’s ‘quasi-property,’ which the father was … discouraged from rescinding” (Frier–McGinn [2004 Casebook on Roman Family Law] 263), but “there was nothing to stop [the paterfamilias] from withdrawing it” (Crook [1967 Law and Life] 110). Given Oppianicus’ portrayal as a man in no way submissive to community custom and expectation, we should expect Magius to have attached a proviso to the will to protect Oppianicus’ son from the clutches of his father. Wills requiring emancipation prior to acceptance of an inheritance are certainly attested (D 38.6.8; Saller [1994 Patriarchy, Property and Death] 175). Adoption or placing the property in a fideicommissum to be given when the younger Oppianicus became sui iuris were other possibilities. Since the testator was willing to leave his estate virtually in Oppianicus’ control, however, we must conclude that he did not find Oppianicus as objectionable as Cicero asserts.

M. Alexander (2003 Case for the Prosecution, 178-180) suggested two possible flaws in Cicero’s arguments that were not detected by the jury: his description of the conveyance of poison that was supposedly intended for Cluentius, and his explanation for Cluentius’ lack of a will. I propose that we add Cicero’s version of Magius’ will to the list of implausible accounts.