¹ N. Lewis, ‘“Greco-Roman Egypt” fact or fiction?’, Proc. XIIth Int. Congr. Papyrology 1968 (1970); Keenan, J., ‘Papyrology and Roman history: 1956–1980’, The Classical World 76 (1982–1983), 30–1CrossRefGoogle Scholar; Lewis, N., ‘The Romanity of Roman Egypt: a growing consensus’, Atti del XVII Con. Int. di Papirologia (1984)Google Scholar. For the legal situation in Egypt in the first two centuries after the Roman conquest, see Modrzejewski, J., ‘La règle de droit dans l'Egypte romaine’, Proc. XIIth Int. Congr. Papyrology 1968 = American Studies in Papyrology 7 (1970), 317–77Google Scholar; and see now Bowman, A. K. and Rathbone, D., ‘Cities and administration in Roman Egypt’, JRS 82 (1992), 107–27Google Scholar and Rathbone, D., ‘Egypt, Augustus and Roman taxation’, Cahiers du Centre G. Glotz 4 (1993), 81–112CrossRefGoogle Scholar.

² e.g. H. J. Wolff, ‘Römisches Provinzialrecht in der Provinz Arabia’, ANRW 11.13 (1980), 763–806, most poignantly on p. 785: ‘Wie konnte ein so spezifisch römisches Gebilde wie eine Prozessformel überhaupt in das peregrine Rechtsleben dieser entlegenen und erst kürzlich eingerichteten Provinz gelangen?’

³ Lewis, N., The Documents from the Bar Kokhba Period in the Cave of Letters. Greek Papyri (1989)Google Scholar = P.Yadin; henceforth ‘Lewis’. This volume contains also ‘Aramaic and Nabataean Subscriptions’ to the Greek documents edited by Y. Yadin and J. C. Greenfield. The Aramaic and Nabataean documents themselves — P.Yadin 1–4; 6-10 — have not yet been published.

⁴ Lewis 16ff. and 27ff. It should be noted that the unpublished Aramaic documents (P.Yadin 6–10), as I am kindly informed by J. C. Greenfield, also carry consular dates, in addition to the era of the province and the regnal year of the emperor (the latter replaces the regnal year of the Nabataean kings of the Nabataean documents P. Yadin 1–4; see also Revue Biblique 61 (1954), 163Google Scholar, frag, a, l.1 with note 9 below).

⁵ Goodman's arguments for her possible non-Jewishness (‘Babatha's Story’, review of Lewis JRS 81 (1991), 170 [her name]; 175) seem to me far less convincing than the genealogical table in Lewis, 25.

⁶ It is interesting to note that the deeds concerning his guardianships were tied together in the leather purse where the archive was found; see Y. Yadin, ‘Expedition D – The Cave of the Letters’, IEJ 12 (1962), 235. One would like to know if P.Yadin 28–30, the three copies of the actio tutelae, were tied together with them.

⁷ P. Yadin 7 assumes that Babatha was still married to her first husband on 24 Tammuz 120: it declares that if she were to become a widow she could live in one of the houses on her father's property. There is no mention of a son. Since she acknowledges the receipt of money from guardians on 19 April 132, the boy must have been quite young in 124, when the guardians were first appointed. It is less likely that by then she had already been married to her second husband.

⁸ ‘Verified exact copy of one item of [guardianship] from the minutes of the council of Petra the metropolis … and it is as appended below: “And of Jesus, a Jew, son of Jesus of the village Maoza, ‘Abdobdas son of Illouthas and John son of Eglas [are appointed guardians]”’.

⁹ cf. e.g.P.Yadin 13, ll. 19–21 (); 14, ll. 23–4; 15, ll. 4–5 = 18–19. The verb ϰαίστημι is commonly used in Egyptian papyri for the appointment of guardians: e.g.P.Ryl. 121 (ii C.E.), ll. 11–12: ; ll. 15–16: ; P.Oxy. 898 (123 C.E.), ll. 28–9: .

¹⁰ So H. J. Polotsky, ‘The Greek papyri from the Cave of Letters’, IEJ 12 (1962), 260, but not for the whole province, as assumed by Wolff, op. cit. (n. 2), 789f. The occurrence of ‘metropolis’ in the title of Petra does not make it into the capital of the province, see G. Bowersock, ‘The Babatha papyri, Masada and Rome’, JRA 4 (1991), 340, n. 7 summing up his previous references. On administrative divisions and boundaries, see B. Isaac, ‘The Babatha archive’, IEJ 42 (1992), 63–4; 67–70.

¹¹ The need to appoint a guardian by a magistrate arose only when no guardian had been nominated in the will of the deceased (tutor testamentarius) and there was no agnate available to be tutor legitimus, see A. Watson, The Law of Persons in the Later Roman Republic (1967), 114–30.

¹² For Latinisms in the archive, see Lewis, Introduction III.2, pp. 16ff. However, we do find elsewhere, e.g.OGIS 595 (Tyre, 174 C.E.): for more examples for the use of acta in connection with aboulê see Mason, H. J., Greek Terms for Roman Institutions (1984), 20Google Scholar, s. v.; see now in Sh. Dar and N. Kokkinos, ‘The Greek inscription from Senaim on Mount Hermon’, PEQ 124 (1992), p. 13: No. 2, line 4 and p. 16.

¹³ cf. Dig. XXVI. 5. 24; XXXVIII. 17. 2. 23: ‘quoniam et magistratibus municipalibus dandi [sc. tutores] necessitas iniungitur’, and the whole tenor of Dig. XXVII.8 (suits against magistrates). Admittedly there are texts which suggest that the municipal magistrates had but a limited authority for appointing guardians: e.g. Dig. XXVI.7.46.6: ‘praesidis provinciae praecepto a magistratibus alius tutor datus est’; XXVII. 8.1.5: ‘si curatores fuerunt minus idonei dati, dicendum est teneri magistrates oportere, si ex suggestu eorum vel nominibus ab eis acceptis praeses dederit’; XXVI. 5.24 (when the city magistrates have to look elsewhere for suitable guardians) ‘nomina praesidi provinciae mittere, non ipsos arbitrium dandi sibi vindicare’; XXVII. 10.2; CJ V. 34. 6.

¹⁴ FIRA I², no. 23.

¹⁵ JRS 76 (1986), 157.

¹⁶ The city council participates in the duovir's appointment of guardians only in cases in which he was unable to make the appointment in consultation with his fellow-magistrates, ibid., ll. 22ff. For the participation of the decurions, see Dig. XXVI.5. 19 pr.; 6.3; XXVII. 8.1 pr.

¹⁷ ibid., ll. 25–9: ‘Is a quo … postulatum erit, causa cognita in diebus X proxumis, ex decreto decurionum … eum, qui nominatus erit … ei [sc. pupillo pupillaeve] tutorem dato’; ‘the person from whom the request has been made, once the case has been examined, within ten days, according to the decree of the decurions … is to grant as guardian to him (or her) the person who has been nominated’.

¹⁸ Corte, M. della, ‘Tabelle cerate ercolanesi’, Parola del Passato 6 (1951), 228Google Scholar, no. 13; for the reconstructed text, see Arangio-Ruiz, V., ‘Due nuove tavolette di Ercolano relative alia nomina di tutori muliebri’, Studi P. de Francisci I (1954), 3–12Google Scholar.

¹⁹ Lewis, N. in ‘Two Greek documents from the Provincia Arabia’, Illinois Classical Studies 3 (1978), 110Google Scholar rightly cites Ulpian, Dig. XXVII. 8. I: ‘si a magistratibus municipalibus tutor datus sit, non videtur per ordinem electus’, for ‘possible involvement’ of the entire city council.

²⁰ There is nothing to suggest that Petra even had the constitution of a Greek polis before 114, see Bowersock, G., JRS 72 (1982), 198Google Scholar. Note, however, that it became a colonia under Elagabalus, see Ben-Dor, S., ‘Petra Colonia’, Berytus 9 (1948–1949), 41–3Google Scholar; Millar, F., ‘The Roman coloniae of the Near East: a study of cultural relations’, in Solin, H. and Kajava, M. (eds), Roman Eastern Policy and Other Studies (1990), 51Google Scholar.

²¹ Taubenschlag, R., The Law of Greco-Roman Egypt in the Light of the Papyri (332 B.c.–640 A.D.) (2nd edn, 1955), 161Google Scholar; Mitteis, Grundzüge I, 254.

²² P. Brem. 39 (113/120 C.E.); P.Oxy. 898 (123 c.E.)

²³ P.Oxy. 487 = M.Chr. 322 (156 C.E.), but see Hunt's reservation in P.Ryl. 121 about the grammateus' authority to appoint guardians.

²⁴ P.Mich. 232 = JEA 18 (1933), 139 (36 C.E.) = SB 7568; P.Ryl. 121(ii C.E.); M.Chr. 323 (218 C.E.).

²⁵ cf. N. Lewis, BASP 7 (1970), 116–18.

²⁶ But see now Bowman and Rathbone, op. cit. (n. 1).

²⁷ M. Kaser, RP ² (1971), §85 and n. 5; Taubenschlag, op. cit. (n. 21), 153–5; 158f.; Mitteis, Grundzüge I, 253. By virtue of provisions laid down in the father's will or in the marriage contract, the mother could either share the guardianship with a male relative, or even exercise it alone: for appointment by will, see e.g. SB 9065 (i B.C.E. = Wegener, E. P., ‘Petition concerning the dowry of a widow’, Mnemosyne 13 (1947), 302–16Google Scholar), ll. 5–8; and for marriage contracts, see P.Oxy. 265 (81–95 c.E.), ll. 28–30, 496 (127 C.E.), l. 12 and 497 (ii C.E.), ll. 12–13. In BGU 1813 (62/1 B.C.E.), P.Minch. 232 (= SB 7568, 36 C.E.) and P.Oxy. 898 (123 C.E.) the mother is designated ὲπίτϱοπος with no mention of a will or a marriage contract.

²⁸ See Montevecchi, O., ‘Una donna “prostatis” del figlio minorenne in un papiro del II^a’, Aegyptus 61 (1981), 114Google Scholar and see below at n. 36.

²⁹ ‘There was no exception’: see Buckland, W. W. and Stein, P., A Text-Book of Roman Law from Augustus to Justinian (3rd edn, 1966), 150Google Scholar.

³⁰ Yadin, Y., Bar Kokhba (1971), 247Google Scholar; and see the ingenious reconstruction by T. Ilan, ‘Julia Crispina daughter of Berenecianus, a Herodian princess in the Babatha archive — a case study in historical identification’, JQR 82 (1992), 361–84.

³¹ (ll. 6–8, see ll. 27–9).

³² (ll. 12–13, see ll. 34–6).

³³ (ll. 13–16, see ll. 36–9). The switch from plural to singular (i.e. from ‘we’ to ‘I’) may be nothing more than inadvertence; it is quite common in Egyptian papyri (as pointed out to me by N. Lewis); thus the τευχίσω may not prove that, unlike Besas, Iulia Crispina could not register land with the authorities.

³⁴ (ll. (1–6).

³⁵ In P.Petr. iii 36 (a) (= M.Chr. 5), ll. 16–17: ἐπὶ τῶν It is used ‘to describe the judges specially qualified to judge complaints made against officials’ (so Turner in P.Hib. 2, p. 109), but this belongs to the iii B.C.E., as does P.Hib. 2.198, l. 242, where ὲπισϰοπεῖν … is said to ‘evoke the idea of an administrative enquiry’ (p. 109). Cf. also in P.Rev. (259 B.C.E.), col. 33, l. 2 (re-edited by Bingen, J. in SB Beiheft I (1952)Google Scholar) and επισϰοπεῖν in P.Tebt. 3.1.703, ll. 47; 183 (late iii B.C.E.) instructions of the dioiketes to the oikonomos ‘to look into controversies between the farmers and the village scribes or the comarch’ Finally in P.Oxy. 46, 3285, l. 34 appears in a second-century C.E. copy of a Greek translation of a demotic legal code which itself goes back to the Pharaonic period;see J. Rea's introduction in P.Oxy. vol. 46, pp. 30–1.

We find ἐπίσϰοποι as municipal or village magistrates in the inscriptions (e.g. Sartre, M., Bostra, Bibliothèque Archéologique et Historique CXVII (1985), 81–2Google Scholar and H. I. MacAdam, Studies in the History of the Roman Province of Arabia, BAR 295 (1986), 169f., iii C.E., Trachonitis). See also Dig. L. 4. 18. 7 (Arcadius Charisius' list of civil liturgies): ‘item episcopi, qui praesunt pani et ceteris venalibus rebus, quae civitatium populis <ad> cotidianum victum us<ui> sunt, personalibus muneribus funguntur’ (‘The episcopi, in charge of the daily supply of bread and other victuals to the population of the cities, also perform personal liturgies’). But I do not think that Iulia Crispina was a magistrate.

³⁶ As suggested by O. Montevecchi to explain the term πϱοστάτις acquired by the mother of an orphan by the terms of her marriage contract: (P.Med.Bar. I (142 B.C.E.), ll. 4–6): ‘Prostatis è usato qui ad indicare una funzione di responsibilità della donna nei riguardi del figlio, un potere su di lui, che si avvicina alla tutela pur senza averne il carattere giuridico’, op. cit. (n. 28), 107.

³⁷ Like the faithful shepherd, ὲπίσϰοπος, of the New Testament, on which see G. Kittel, Theologisches Wörterbuch zum neuen Testament (1935), 2, p. 611ff. For the association of ὲπίσϰοπος and Hebrew ‘Mebaqqer’ (e.g. Damascus Covenant 14: 12–16), see now Greenfield, J. C. and Stone, M., ‘Two notes on Aramaic Levi’, in Attridge, H. W. et al. (eds), Of Scribes and Scrolls, Studies in the Hebrew Bible, Intertestamental Judaism and Christian Origins presented to J. Strugnell (1990), 153–61, esp. 158–61Google Scholar.

³⁸ For example P.Mich.Inv. 2922 (JEA 18 (1932), 70 [172/3 C.E.] = SB 7558 = FIRA III², no. 30) a grandmother is appointed in the father's will joint guardian with two other men; they are designated ἐπίτϱοποι (l. 6) whereas she is called (1-7).

³⁹ P.Oxy. 3921. ll. 6; 49 (219 C.E.) and see J. Rea ad loc. I find it hard to believe, though, that she is the mother of the orphans and the widow ofJesus, son of Eleazar. In the Egyptian papyri the relationship of the to the ward(s) is always pointed out. I agree, though, that she may not be a Roman citizen. Had she been one, it would have made it less rather than more likely that she would be exercising the duties of a guardian. For her Roman name, see Rea.

⁴⁰ See Montevecchi, op. cit. (n. 28), 109 and nn. there for a full list.

⁴¹ So Montevecchi, op. cit. (n. 28), 111ff. She points out that all the occurrences of a female ἐπίτϱοπος come from peregrine contexts, and that the terms ἐπίτϱοπος and do not overlap: there is no female ἐπίτϱοπος after 123 C.E.

⁴² Note that in the archive the word ἐπίτϱοπος is used both for the guardian of minors and for that of women; in Greek-speaking lands the traditional term for the latter was ϰύϱιος. See H. J. Wolff (‘Le droit provincial dans la province romaine d'Arabie’, RDIA 23 (1967), 279–83) for the significance of the confusion here. Note, however, that in the Aramaic the guardian of a woman is called — Adon — ϰύριος: e.g. P. Yadin 15, l. 37: ‘Yehudah son of Khthousion “lord” of Babatha’.

⁴³ Babatha is represented by her second husband, Judah son of Khthousion (P.Yadin 14, ll. 22–3; 15, ll. 31–2; 16, ll. 35–6), by Jacob son of Joseph (P. Yadin 17, ll. 4–5 = ll. 22–3), by John son of Makhouthas (P. Yadin 22, ll. 28–9) and by Babelis Son of Menahem (P. Yadin 27, ll. 4–5; 18). Salome (alias Komais) is represented by X son of Menahem (P. Yadin 37, l. 15). Could the mere fact of her literacy — she signs her name in Greek (P. Yadin 20, ll. 43–4) — have made the difference between Iulia Crispina and the other women in the archive? There is no simple answer to this question, see R. Taubenschlag, ‘La compétence du ϰύϱιος dans le droit gréco-égyptien’, Opera Minora II (1959), 353–77Google Scholar; H. C. Youtie, ‘ΑΤΡΑΜ-ΜΑΤΟΣ An aspect of Greek society in Egypt’, HSCP 75 (1971), 166 = Scriptiunculae II (1973), 616Google Scholar.

⁴⁴ Modrzejewski, J., ‘La regie de droit dans l'Egypte ptolémaïque’, Essays in Honor of C. Bradford Welles (1966), 125–73Google Scholar.

⁴⁵ See above all Goodman, M., State and Society in Roman Galilee, A.D. 132–212 (1983)Google Scholar, passim, but esp. 3–24; 93–118; 155–71; 178–81, who thinks that the authority of the Rabbis was slow in evolving and became dominant only from mid-third century onwards. See also Goodenough, E., Jewish Symbols in the Greco-Roman Period (1953–1968), vol. 12, 184–98Google Scholar; contra M. Smith, ‘Goodenough's Jewish Symbols in retrospect’, JBL 86 (1967), 53–68; Urbach, E. E., ‘The rules of ‘Abodah Zara (idolatry) and the archaeological-historical reality in Eretz Israel in the second and third centuries’, Eretz Israel 5 (1958), 180–205Google Scholar = The World of the Sages: Collected Studies (1988), 125–78Google Scholar (Hebrew); Levine, L., The Rabbinic Class of Roman Palestine in Late Antiquity (1989), ch. 3Google Scholar.

⁴⁶ Strack, H. L. and Stemberger, G., Introduction to the Talmud and Midrash (1991), 54–5Google Scholar.

⁴⁷ ‘Aramaic tanna, from Hebrew shanah “to repeat, learn’”, tannaim: ‘the masters of teaching transmitted by continual oral repetition’, Strack-Stemberger, op. cit. (n. 46), 7. The Tannaim were active in the first two and half centuries of our era and were followed ‘by the Amoraim (amar, “to say”, comment: the commentators of the Tannaitic teachings) up to c. 500’ (Strack-Stemberger).

⁴⁸ Strack-Stemberger, op. cit. (n. 46), 123; 155–6.

⁴⁹ ‘Lit. the “outside” teaching (short for Aramaic matnita baraita)’, Strack-Stemberger, op. cit. (n. 46), 195.

⁵⁰ ibid. The term usually refers to Tannaitic teachings quoted verbatim and commented on in the Palestinian and Babylonian Talmuds.

⁵¹ This assumption sometimes proves to be wrong: some baraytot were either mistakenly or falsely ascribed to the Tannaim, see Strack-Stemberger, op. cit. (n. 46), 216–17, see also 54.

⁵² Strack-Stemberger, op. cit. (n. 46), 168–9.

⁵³ Strack-Stemberger, op. cit. (n. 46), 168–77. Both the Mishnah and the Tosefta as we now have them consist of six main divisions or orders(sedarim), each of which consists of tractates, subdivided into chapters and sentences. The method of citation is by work (m or t), tractate, chapter and sentence, but the ‘order’ is omitted. The two Talmuds are also cited by work (y for Yerushalmi, i.e. the Palestinian Talmud and b for the Babylonian Talmud), and respective Mishnaic tractate. In the Babylonian Talmud tractate is followed by page number, with the front and back of each leaf counted as a and b; in the Palestinian Talmud (the Venice edition) the tractate is followed by page number; each page has four columns (a–d). The Talmuds, being later commentaries on Tannaitic material by the Amoraim (see above, n. 46), are cited here only to corroborate Tannaitic traditions, but never as evidence for the status of Jewish law in the earlier period.

⁵⁴ There are no absolute dates; chronology is determined by the relationship of one rabbi to another as his teacher: ‘in this way generations of rabbis can be co-ordinated’ Strack-Stemberger, op. cit. (n. 46), 63; however attributions are not always reliable or certain, ibid., 63ff.

⁵⁵ Rendering it — epitropos; — — apotropos; –epitropa, etc. see Sperber, D., A Dictionary of Greek and Latin Legal Terms in Rabbinic Literature (1984), 56ff.Google Scholar This is the term used to this very day in modern Hebrew.

⁵⁶ A. Gulak, Principles (Institutions) of Jewish Law III: Family Law (1922), ch. 7, p. 146 (Hebrew); Z. W. Falk, ‘Zum fremden Einfluss auf das jüdische Recht’, RIDA 18 (1971), 11–23, is much more affirmative.

⁵⁷ See Reinitz, Y. K., ‘The Guardian of Orphans in Jewish Law: His Responsibility, Methods of Supervision’, (unpub. Ph.D. dissertation, the Hebrew University of Jerusalem 1984)Google Scholar, introduction, pp. ivf. and bibliography cited in the notes; Block, M., Die Vormundschaft nach Mosaïsch-Talmudischem Rechte (1904)Google Scholar.

⁵⁸ Reinitz, op. cit. (n. 57), ix puts it earlier: ‘by the first half. In evidence he mentions the controversy between Abba Saul and R. Eliezer b. Jacob about the taking of the oath by the guardian of orphans at the end of his term of office(bGittin (‘divorce certificates’) 52b); however, R. Eliezer b. Jacob (the Younger) and Abba Saul belonged to the third generation of Tannaites, c. 130–160 C.E., see Strack-Stemberger, op. cit. (n. 46), 83–6; see also Heiman, A. M., History of the Tannaim and Amoraim (1964), IGoogle Scholar, s.vv. (Hebrew).

⁵⁹ cf. mKetubboth (= Ket. ‘marriage contracts’) 9.4: ‘If a man set up his wife as a shopkeeper or appointed her as a guardian (epitropa) he may exact of her an oath whensoever he will’. The presence of Rabbi Eliezer ben Hyrcanus in this Mishnah dates it to the early ii century (see Strack-Stemberger, op. cit. (n. 46), 77); cf. tKet. 9.6; bKet. 86b; yKet. 54a; cf. bBaba Bathra (= BB ‘last gate’ i.e. the last tractate of Seder Nezikqn ‘Damages’) 131b: ‘If a [dying] man gave all his property to his wife in writing, he [thereby] only appointed her guardian (. – apotropa)’; cf. bBB 144a; bGittin 14a. See also yShevu'ot (‘oaths’) 93a, where both the guardian and the woman who manages her husband's property are required to take an oath: ‘And these [must] take an oath [even] when there is no claim [laid against them]: (1) partners (2) tenants (3) guardians (4) a woman who manages her household and (5) son of the household’.

⁶⁰ ci. mKet. 9.6: ‘If she was made a guardian [i.e. in her husband's lifetime], the heirs may exact an oath from her concerning [her trust during] the time after [her husband's death], but not the time before’. After the husband's death, the widow is entitled to continue holding the guardianship over his property which has now become the orphans’; cf. bKet. 86b–88b; yKet. 55a.

⁶¹ Ter. ‘levies’ or ‘heave offerings’ (e.g. priestly heave offering).

⁶² I have adopted Cohen's, B. translation, Jewish and Roman Law I (1966), 243Google Scholar; see S. Lieberman, Tosefta Kifeshutah Part I: Order Zera'im (‘Seeds’) (1955), 304 (Hebrew, the most important modern commentary on the Tosefta) cf. tBB 8.17.

⁶³ ‘Minors’ must be a mistake, see Lieberman, op. cit. (n. 62), 303.

⁶⁴ The Rashba (R. Shlomo b. Aderet, 1235–1310) in his Commentary on the Babylonian Talmud ( — hiddushim on the SHAS) on bGittin 52a suggests reading ‘they are at liberty to do so (lit. ‘in their hands’ )’, i.e. the courts, thus bringing the barayta into line with tTer. 1.11. His reading of the Barayta leaves us with no Tannaitic authority for the appointment of a woman as a guardian in the father's will. His proposed correction of the text of bGittin 52a from (‘in his hand’, i.e. the father's) to (‘in their hands’, i.e. the courts') is minuscule: the mere lengthening of the waw () to produce a final num ().

⁶⁵ See Assaf, S., ‘The appointment of women as guardians’, Ha-Mishpat Ha-'Ivri (1927), 75–81 (Hebrew)Google Scholar; Reinitz, Y. K., ‘The appointment of women as guardians’, Bar-Ilan Law Studies 4 (1986), 167–203 (Hebrew)Google Scholar.

⁶⁶ P.Yadin 13–15 (124–5 C.E.); 27 (132 C.E.).

⁶⁷ Note that a similar provision for the children to stay with their mother till they come of age is found in Egyptian marriage contracts: e.g. P.Oxy. 497 (early ii century), l. 13: see also P.Oxy. 496 (127 C.E.), l. 12; Roman orphans also tended to be brought up by their mothers, see J. F. Gardner, Women in Roman Law and Society (1986), 147.

⁶⁸ In the barayta it says explicitly: ‘they leave him with his mother’, bKet. 102b.

⁶⁹ mGittin 5.4 : ‘If orphan s were supported (samkhu) by a householder, or if their father appointed a guardian for them, he must give tithe from the produce that belongs to them. If a guardian was appointed by the orphans’ father he must take an oath; if he was appointed by the court he need not take an oath. Abba Saul says: ‘The rule is to the contrary etc.’; cf. tTer. 1.12; tBB 8.13.

⁷⁰ See Falk, op. cit. (n. 56) : ‘Das erste Verhältnis, das man vielleicht proto-epitropé nennen kann …’, p. 14 and passim; cf. Reinitz, Y. K., ‘Guardianship by virtue of “orphans boarding with the householder”’, Bar-Ilan Law Studies I (1980), 219–50Google Scholar. Gradually this de facto sort of guardianship was assimilated into the legal institution of guardianship and made equal with the other two forms: ‘The householder with whom the orphans boarded has all the legal rights possessed by guardians appointed by the court or by the orphans' father’, R. Asher b. Yehiel (1250–1327), Responsa, 87a; cf. Reinitz, op. cit. (n. 57), 93ff.

⁷¹ As some interpret the famous story of the old woman (), bGittin 52a: ‘Certain orphans who boarded with an old woman had a cow which she took and sold. Their relatives appealed to R. Nahman (third generation of Amoraim in Babylonia) saying: what right had she to sell it? He said to them: we learn “if orphans boarded with the householder”’. Set the Rashba's (see above, n. 64) Responsa (), II, no. 49: ‘And even if they boarded with a woman whom the court does not appoint as guardian … she is like a guardian to them, as we learn from the story of the old woman [bGittin 52a], and it seems to be the same in the case of a mother …’; see also Responsa II, no. 285; cf. Reinitz, , ‘Guardianship by virtue of “orphans boarding with the householder”’, Bar-Ilan Law Studies I (1980), 223–4Google Scholar, and esp. 243–7: ‘The Guardianship of the widow by virtue of the orphans boarding with her’.

⁷² of P.Yadin 12 is clearly a Nabataean: see P. Yadin 15, l. 38; p. 139 (Yadin and Greenfield, op. cit. (n. 3), no. 15), and pl. 12.

⁷³ It thus contrasts with Roman law which demands that the guardian should come from the same nationality as his ward, see Taubenschlag, op. cit. (n. 21), 158; Mitteis, , Grundzüge I, 252–3Google Scholar, on Egypt. Juster, J. (Les Juifs dans l'empire romain II (1914), 24Google Scholar, n. 1) takes Dig. XXVII.1.15.6: , to refer to Jews who possessed Roman citizenship, and thus not to constitute an infringement of the principle of personality; see Juster, 62–4; Linder, A., The Jews in Roman Imperial Legislation (1987)Google Scholar, no. 4.

⁷⁴ See Lewis p. 48 on P. Yadin 12. See below Appendix I.

⁷⁵ The one clear exception is CPJ II no. 143 which mentions the depositing of a will (διαθήϰην) in the τὸ τῶν ll. 7–8; for Jewish archives in Asia Minor, see CIJ 741 (burial inscription from Smyrna): 775 (Hierapolis) mentions ; see also 776; 778; 779. See also Jos., BJ VI. 354.

⁷⁶ Strabo apud Jos., AJ XIV. 117 (= Stern, M., Greek and Latin Authors on Jews and Judaism I (1974)Google Scholar, no. 105; tKethubboth 3.1 = tPeah (‘corner’) 4.6; CPJ, II. pp. 4–5; Bowman and Rathbone, op. cit. (n. 1), 117.

⁷⁷ CPJ I (Prolegomena), 33; see also II, 4–5.

⁷⁸ ibid., 33–4; cf. V. Tcherikover, The Jews in Egypt in the Hellenistic-Roman Age in the Light of the Papyri (1963), 103–15 (Hebrew).

⁷⁹ See Rajak, T., ‘Was there a Roman charter for the Jews?’, JRS 74 (1984), 107–23Google Scholar.

⁸⁰ I refer of course to the famous charters mentioned in Josephus, AJ XIV. 185–267. Admittedly an explicit grant of judicial autonomy is attested only for Sardis, where the Jews claimed before L. Antonius that they used to adjudicate cases between themselves in a court of their own: , Jos., AJ XV.235); as a result of this appeal the city council issued a ruling that the Jews were to: (ibid. 260). I rind it hard to believe with Rajak, op. cit. (n. 79), 116 and n. 35 there, that this was unique to Sardis. See Roth-Gerson, L., ‘The Civil and Religious Status of the Jews in Asia Minor from Alexander the Great to Constantine 336 B.C.–A.D. 337’ (unpub. Ph.D. dissertation, the Hebrew University of Jerusalem, 1972), 65–92Google Scholar (Hebrew); Rajak, T., ‘Jewish rights in the Greek cities under Roman rule: a new approach’, in Green, W. S. (ed.), Approaches to Ancient Judaism (1985), 19–36Google Scholar.

⁸¹ ‘En-gedi–the patria of Babatha's second husband, Judah son of Eleazar, where he owned property (P. Yadin 11; 19–20) and where his first wife was living (P. Yadin 26) – is already in the province of Judaea: (P. Yadin 16.l. 16).

⁸² The two marriage contracts in the archive (P.Yadin 18 and 37) have nothing distinctly Jewish about them; see Wasserstein, A., ‘A marriage contract from the province of Arabia Nova: Notes on Papyrus Yadin 18’, Jewish Quarterly Review 80 (1989), 105–30Google Scholar and J. Geiger, ‘A note on P.Yadin 18’, ZPE 93 (1992), 67–8; contra R. Katzoff in N. Lewis, R. Katzoff and J. Greenfield, ‘Papyrus Yadin 18’, IEJ 37 (1987), 236–47; N. Lewis rallies to Katzoff's defence in ‘The world of P.Yadin’, BASP 28 (1991), 35–41; see also Katzoff, ‘Papyrus Yadin 18 again: A rejoinder’, JQR 82 (1991), 171–6 (where the interpretatio Hebraica is modified); idem, ‘P. Yadin 19: A gift after death from the Judaean desert’, Proceedings of the Tenth World Congress of Jewish Studies, Jerusalem 1989 Div. C, vol. I (1990), 1–8 (Hebrew); ‘An interpretation of P. Yadin 19 … etc.’, Proc. XXth Int. Congr. Papyrology 1992 (forthcoming).

⁸³ See also the Greek remarriage contract from Wadi Murabba'at (DJD II, no. 115 of 124 C.E.): although it comes from Judaea itself, it has nothing to mark it as Jewish apart from the names; the same is true of an unpublished marriage contract in Greek (said to come from Wadi Seiyal, but in all likelihood also from Nahal Hever), now in the Rockefeller Museum in Jerusalem. DJD II, no. 116 is too fragmentary, but I suspect that the same applies to it (see below, n. 89).

⁸⁴ Strack-Stemberger, op. cit. (n. 46), 5f. Furthermore, we still find unresolved disputes in the Mishnah, see S. Cohen, ‘The significance of Yavneh: Pharisees, Rabbis and the end of sectarianism’, HUCA 56 (1984), 27–53 passim.

⁸⁵ P.Yadin 10 (unpub.). This contract is of her second marriage, to Judah son of Eleazar Khthousion, between 122 and 125.

⁸⁶ See Yadin, op. cit. (n. 6), 244–5. See L. J. Archer, Her Price is Beyond Rubies: The Jewish Woman in Graeco-Roman Palestine (1990), 171–88, on the development of the Jewish Kettubah in Tannaitic times. I do not accept, however, her interpretation of DJD 115 as a Jewish instrument.

⁸⁷ The Nabataean contract published sometime ago by Starcky, J. (‘Un contrat Nabatéen sur papyrus’, Revue Biblique 61 (1954), 161–81Google Scholar), may well have been part of the archive; see Yadin, op. cit. (n. 6), 228–9; 242, n.21, and Bowersock, op. cit. (n. 10), 340, since it mentions property ( – ganatha – ‘orchard’) which belonged to Babatha's second husband's family and which later on passed into her hands; see P.Yadin 21, l. 10 and 22, l. 11: This document will be republished as P. Yadin 36.

⁸⁸ With the exception of the unpublished P. Yadin 6–10, but these belong to the early 120s.

⁸⁹ cf. also the marriage contracts in DJD II: two marriage contracts in Aramaic: no. 20 is from 116/7 C.E. (‘the eleventh year of the Province’, i.e. Arabia); no. 21 is probably from 126/7 (assuming that ‘twenty-one’ refers to the province); and two marriage contracts in Greek: nos 115 (124 C.E.) and 116 (first half of ii C.E. according to the editors); the unpublished marriage contract in the Rockefeller Museum in Jerusalem dates from 130 (see above, n. 83). On Jewish marriage contracts, see M. A. Friedman, Jewish Marriage in Palestine: A Cairo Geniza Study: I: The Ketubba Traditions of Eretz Israel; II: The Ketubba: Tets (1980).

⁹⁰ I use ‘Greek’ here in the sense used by Wasserstein, op. cit. (n. 82), to explain the use of in P.Yadin 18 and 37, namely as that amalgam of laws of various origins which seems to be called Hellenic in the Roman East. I suppose Goodman, op. cit. (n. 45), means something similar by ‘simple Semitic common law’ (p. 160) ‘into which some Greek ideas had crept’ (p. 161).

⁹¹ See the of P.Yadin 19, ll. 26–7 and the of P.Yadin 20, l. 13 = ll. 35–6.

⁹² R. Simeon without patronym means R. Simeon ben Yohai (= Yohanan), third generation of Tannaim, c. 130–160, see Strack-Stemberger, op. cit. (n. 46), 83–4, but he is clearly referring to an earlier rule ( they were not mentioned’).

⁹³ cf. tGittin 1.4; bGittin IIa; See Alon, G., The Jews in their Land in the Talmudic Age (70–640 C.E.) II (1984), 553–7Google Scholar; Gulak, A., Towards a Study of the History of Jewish Law in the Talmudic Period I (1929), 54ff. (Hebrew)Google Scholar.

⁹⁴ See Strack-Stemberger, op. cit. (n. 46), 80; Heiman, op. cit. (n. 58), II, 524–9.

⁹⁵ The Hebrew has Agorai'oth () from ἀγοϱά.

⁹⁶ He belonged to the second generation of Tannaim (90–130); contemporary of Rabban Gamaliel II, the leader of rabbinic Judaism between 80/90–110, whom he replaced temporarily, Strack-Stemberger, op. cit. (n. 46), 76; 78.

⁹⁷ Mekhilta ‘is the Aramaic equivalent of Hebrew midda or kelal, “rule, norm” … the derivation of halakhah [‘law’] from Scripture according to certain rules’, Strack-Stemberger, op. cit. (n. 46), 275. The Mekhilta d'R. Ishmael is a commentary on some chapters of Exodus ‘with a core going back to the school of R. Ishmael’ [middle of the second century], although its final redaction took place ‘in the second half of the third century’, Strack-Stemberger, (above, n. 46) 278–9.

⁹⁸ Horovitz, H. S. and Rabin, I. A. (eds), Mekhilta d'R. Ishmael (2nd edn, 1960), 246Google Scholar. The two passages, however, are not unrelated: both refer to mGittin 9.8 and Ex. 21: 1; see Juster, op. cit. (n. 73), 11, 95f.

⁹⁹ The following discussion benefited a great deal from the pertinent criticism of J. F. Gardner.

¹⁰⁰ I refer to the manner of appointing guardians, the tutoris datio described above.

¹⁰¹ ‘Viris bonis conveniet salubre consilium matris admittere …’ etc.

¹⁰² Dig. XXXVIII. 17.2.23 (Ulpian): ‘Si mater non petierit tutores idoneos filiis suis vel prioribus excusatis reiectisve non confestim aliorum nomina ediderit, ius non habet vindicandorum sibi bonorum intestatorum filiorum’; cf. Dig. XXVI. 6.2.2 (Modestinus); XXVI. 6.4.2 (Tryphoninus); Gardner, op. cit. (n. 67), 149, has a different interpretation for the purpose of the injunction; cf. CJ V.31.6: ‘Matris pietas instruere te potest, quos tutores filio tuo petere debes, sed et observare, ne quid secus quam oportet in re filii pupilli agatur’ (224 C.E., ‘Your maternal piety can instruct you which guardians to request for your son, but also to see to it that his property is being looked after properly’; ibid., 8; 9; 11 (even unmarried mothers).

¹⁰³ ‘Quae autem suspectum tutorem non fecit, nec verbis nec sententia constitutionis incidit, quod eiusmodi facta diiudicare et aestimare virilis animi est et potest etiam delicta ignorare mater…’, see below on the crimen suspecti tutoris.

¹⁰⁴ The crimen suspecti tutoris, see Dig. XXVI. 10; Inst. 1.26. Kaser(RP ² (1971), § 88, p. 364) cautions that the accusatio suspecti may have applied in classical times to testamentary guardians only and not to those appointed by the magistrates.

¹⁰⁵ ‘Quin immo et mulieres admittuntur [suspectos postulare], sed hae solae, quae pietate necessitudinis ductae ad hoc procedunt, ut puta mater’, but also a nurse, a grandmother, a sister as well as others motivated by pietas necessitudinis; cf. Inst. 1.26.3.

¹⁰⁶ About four months later: see P. Yadin 13, ll. 19–21.

¹⁰⁷ P. Yadin 14, ll. 28–9 seem to suggest that ‘Abdobdas son of Ellouthas was not guilty of the same offence in Babatha's eyes; and although P. Yadin 15 is directed against both (‘before the attending witnesses Babatha daughter of Simon son of Menahem deposed against John son of Joseph Eglas and ‘Abdoöbdas son of Ellouthas, guardians of her son Jesus son of Jesus, appointed guardians for the said orphan’), ll. 3–4 = ll. 17–19; cf. 11. 32–3), the actual summons is given only against John son of Eglas: ὲπὶ οὗ (the governor) (‘before whom I, Babatha, summoned the aforesaid John, one of the guardians of the orphan for his refusal of disbursement of the [appropriate] maintenance money’) ll. 11–12 = ll. 28–9. Perhaps at this point she has to serve separate summons to each of them.

¹⁰⁸ , ll. 5–7 = ll. 20–1.

¹⁰⁹ From P.Yadin 13, ll. 19–24: , it follows that they had 400 denarii to invest; see also a receipt for six denarii for three months, P.Yadin 27.

¹¹⁰ P. Yadin 15, ll. 6–7 = l. 22: (for the reading see Lewis ad loc, pp. 62–3). The recent publication of ‘Annual Account of a Guardian’ from 219 C.E.(P.Oxy. 3921–2 see above, n. 39), allows us to compare Jesus' allowance with an early third-century one: the two boys' maintenance came to 99 dr. per month = roughly 8 denarii, i.e. 4 denarii per child; twice as much as that provided for Babatha's son. Babatha might have had grounds for complaint.

¹¹¹ Lewis translates: ‘Otherwise this deposition will serve as documentary evidence of [your] profiteering from the money of the orphan by giving …’, p. 61; see also Lewis, op. cit. (n. 19), 111: ‘[she] is here accusing the guardians of profiting from their trust by pocketing the rest of the interest themselves’.

¹¹² The usual rate seems to be 12 per cent per annum, see P.Yadin 11, ll. 6–7 = ll. 20–2. Lewis suspects that ‘a usurious squeeze’ is concealed in the erasure of forty and the interlinear insertion of sixty in l. 3 of the inner text: ‘he was compelled to sign the note for sixty denarii but actually received only forty denarii in hand’ (p. 41). This would yield an interest of more than 60 per cent per annum, see M. Broshi, ‘Agriculture and economy in Roman Palestine: seven notes on the Babatha archive’, IEJ 42 (1992), 239–40.

¹¹³ (11. 10–11: ) (ll. 10–11 = ll. 26–7). Fergus Millar reminds me of Acts 24:2 (the rhetor Tertullus to Felix): (‘Seeing that by thee we enjoy great quietness and that very worthy deeds are done unto this nation by thy providence’).

¹¹⁴ ‘Ad quam spem [sc. praeturae] … hortatur et natalium splendor et summa integritas in paupertate et ante omnia felicitas temporum, quae bonam conscientiam civium tuorum ad usum indulgentiae tuae provocat et attollit’; cf. Pliny, Ep. X.58.7: ‘Quaedam sine dubio, Quirites, ipsa felicitas temporum edicit’; Tacitus, Agr. 3.1: Hist. 1.1: ‘rara temporum felicitate ubi sentire quae velis et quae sentias dicere licet’.

¹¹⁵ Above, n. 110.

¹¹⁶ ‘Cum tutor non rebus dumtaxat, sed etiam moribus pupilli praeponatur, imprimis mercedes praeceptoribus, non quas minimas poterit, sed pro facultate patrimonii, pro dignitate natalium constituet, alimenta servis libertisque, nonnumquam etiam exteris, si hoc pupillo expediet, praestabit … etc.’; cf. CJ V. 50.2: ‘ut arbitrio praetoris alimenta pro modo facultatum pupillis vel iuvenibus constituantur’; and Dig. XXVII. 2.1: ‘si vero praetor non est aditus, pro modo facultatum pupilli debet arbitrio iudicis aestimari’.

¹¹⁷ ‘Tutor secundum dignitatem facultatesque pupilli modum servorum aestimare debet’. Lewis, op. cit. (n. 19), 110, cites CGL III, 36, 5–14: ‘Adrianus dixit curatori: “propter hoc ergo datus es, ut fame neces pupillum? pro modo ergo facultatis alimenta ei praesta”’ (‘Hadrian said to a guardian: “Was it for this purpose that we appointed you, so that you would starve your ward to death? Give him provisions in accordance with his (your) means!”’).

¹¹⁸ Assuming that nomination implies jurisdiction in matters arising from it, see Isaac, op. cit. (n. 10), 63–4.

¹¹⁹ At nn. 99–100.

¹²⁰ See Buckland and Stein, op. cit. (n. 29), 160.

¹²¹ ‘Damus autem ius removendi suspectos tutores Romae praetoribus, in provinciis praesidibus earum’ (Ulpian, Ad Edictum 35); cf. cInst. 1.26.1.

¹²² ‘Tutor, qui ad alimenta pupillo praestanda copiam sui non faciat, suspectus est poteritque removeri’, Ulpian, Ad Edictum 35.

¹²³ ‘Pupillus, si ei alimenta a tutore suo non praestantur, praesidem provinciae adeat’, see Lemosse, M., ‘Le procès de Babatha’, The Irish Jurist 3 (1968), 372ff.Google Scholar, who finds in this claim the explanation for her approaching the governor rather than the boule who appointed the guardians. Lewis, op. cit. (n. 111), maintains that she is charging the guardians with fraud.

¹²⁴ Introduction to Jewish Law of the Second Commonwealth II (1978), 330Google Scholar.

¹²⁵ ‘Die Stellung der Frau in Judentum: Rabbinische Initiative oder Legitimation? Demonstriert am Beispiel des jüdischen Vormundschaftsrechts’ (unpub. Magisterarbeit, Hochschule für Jüdische Studien, Heidelberg, 1991), 44–5.

¹²⁶ P.Yadin 15, ll. 23–6 = ll. 7–10: ϰτλ. (‘as I have property equivalent in value to this money of the orphan's that you have, therefore I previously deposed in order that you might decide to give me the money on security … involving a hypothec of my property’, etc.).

¹²⁷ Wolff, op. cit. (n. 2), 801; Wolff, op. cit. (n.42), 287.

¹²⁸ A similar case of tutors refusing to pay the amount of maintenance money stipulated in the will to the person with whom the orphans are living is mentioned in Dig. XXXIII.1.7pr, discussed by Watson, op. cit. (n. 11), 143f.; but the implication of the ruling there, if I understand it correctly, is that such conduct does not give rise to actio tutelae; in fact, the tutors run the risk (periculum) of being sued by means of the actio if they spend too much on living expenses.

¹²⁹ For the norm, see Kaser, Das römische Zivilprozessreckt (1966), 119f.; for speculations on P. Yadin 28–30, see Wolff, op. cit. (n. 2), 784–8 with the older literature cited in the notes.

¹³⁰ ‘Nisi finita tutela sit tutelae agi non potest: finitur autem non solum pubertate, sed etiam morte tutoris vel pupilli’; cf. XXVII. 3.9.4.

¹³¹ [c. 16 letters missing] (‘Babathas (sic) daughter of Simon … to Simon the hunchback son of John son of Eglas, of the said Maoza, greetings. You having been appointed by the council of Petra to be the second guardian of my orphan son Jesus son of Jesus’). Lewis rightly holds that ‘the lacuna is likely to have been . Even without that explicit statement, the names alone are sufficient to reveal that the son had succeeded the father as the second guardian of Babatha's son’ (p. 117).

¹³² Lemosse, op. cit. (n. 59), 375–6; Seidl, E., ‘Ein Papyrusfund zum klassischen Zivilprozessrecht’, Studi G. Grosso II (1968), 345–61Google Scholar.

¹³³ Taubenschlag, op. cit. (n. 21), 168 and n. 60. However, only one of the examples cited there is of an actio tutelae, and even this one (BGU 136 (135 c.E.) = M.Cr. 86) takes place after the ward came of age, see Gradenwitz, O., ‘Protocol von Memphis aus Hadrianischer Zeit’, Hermes 28 (1893), 321–34Google Scholar; Biscardi, A., ‘Nuove testimonialize di un papiro arabo-giudaico per la storia del processo provinciale romano’, Studi in Onore di Gaetano Scherillo I (1972), 116–17 has no other evidenceGoogle Scholar.

¹³⁴ See Biscardi, op. cit. (n. 133), 140–51 for conjectures on the origin of such copies.

¹³⁵ See below, Appendix II.

¹³⁶ On the parangelia in Egypt, see Kaser, op. cit. (n. 129), 374; Taubenschlag, op. cit. (n. 21), 500ff; G. Foti Talamanca, Ricerche sul processo nell’ Egitto Greco-Romano II. 1: Introduzione del giudizio (1979), 65ff.Google Scholar and 81–2, n. 72 for a list.

¹³⁷ A much later example of this is P. Colt 29 (590C.E.), where the editor observes that ‘The document is unique, since παϱαγγελίαι have hitherto been known only by reference, principally in petitions containing a request that a summons to appear in court be served to the accused’.

¹³⁸ P. Yadin 14 (11 or 12 October 125): (ll. 20–32). A reference to the summons in P. Yadin 14 can be found in P.Yadin 15 (of the same date): (ll. 28–9 = 11–12, see above, n. 107).

¹³⁹ (ll. 6–8).

¹⁴⁰ (ll. 15–21).

¹⁴¹ Thus I cannot agree with Isaac, op. cit. (n. 10), 64–5 that ‘this demonstrates the hardships caused by the Roman judicial system, which forced provincials to travel to assize cities’ (italics mine); there does not seem to be any question of coercion.

¹⁴² P. Yadin 23 (17 November 130), ll. 1–5 = ll. 10–16: ‘Besas son of Jesus … .

¹⁴³ See Lewis on ll. 21 and 55 (p. 112).

¹⁴⁴ P. Yadin 26, 11. 2–11: ‘Babatha … summoned Miriam … to accompany her in person before Haterius Nepos … . I translate by ‘wherever he happens to be exercising justice in the province’ in agreement with what Lewis says on p. 115: it does not mean here a subdivision of the province, and pace Isaac it can hardly be used as evidence that ‘Arabia was divided into districts called hyparcheia’, cf. Isaac, op. cit. (n. 10), 69. One would have expected something like παϱονσία here, as in P.Yadin 14, l. 14: (cf. ll. 32–3 and Lewis, p. 57 on παϱονσία), but the v before παϱ[ is very clear.

¹⁴⁵ See above, at n. 109.

¹⁴⁶ Goodman, op. cit. (n. 5), 172, quite rightly draws attention to the absence from the documents of evidence ‘for an effective local ruling class interposed between ordinary provincials and the machinery of the Roman state’; this observation should make it easier to accept the view of the governor's accessibility and involvement in the legal affairs of the peregrini in the provinces put forward some time ago by Burton, G. in ‘Proconsuls, assizes and the administration of justice under the empire’, JRS 63 (1973)Google Scholar, esp. 101–2. As far as jurisdiction is concerned, no distinction should be made between proconsuls and legati.

¹⁴⁷ cf. Wolff, op. cit. (n. 2), 788ff.; Isaac, op. cit. (n. 10), 64–5 and seen. 141 above.