Law and Religion in the Roman Republic

Mnemosyne
Supplements

History and Archaeology

of Classical Antiquity

Edited by
Susan E. Alcock, Brown University
Thomas Harrison, Liverpool
Willem M. Jongman, Groningen

VOLUME 336

The titles published in this series are listed at brill.nl/mns

Law and Religion in the
Roman Republic

Edited by
Olga Tellegen-Couperus

LEIDEN • BOSTON
2012
This book is printed on acid-free paper.

Library of Congress Cataloging-in-Publication Data

Law and religion in the Roman republic / edited by Olga Tellegen-Couperus.

p. cm. – (Mnemosyne. Supplements. history and archaeology of classical antiquity, ISSN
0169-8958 ; v. 336)
Includes bibliographical references and index.
Text in Greek with introduction and commentary in English.
ISBN 978-90-04-21850-5 (hardcover : alk. paper)
1. Religion and law–Rome. 2. Religion and state–Rome. 3. Ecclesiastical law–Rome. 4.
Rome–Religion. 5. Priests–Legal status, laws, etc.–Rome. I. Tellegen-Couperus, O. E. (Olga
Eveline) II. Title. III. Series.

KJA3060.L39 2011
344.456'32096–dc23
2011034733

ISSN 0169-8958
ISBN 978 90 04 21850 5 (hardback)
ISBN 978 90 04 21920 5 (e-book)

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 CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Olga Tellegen-Couperus

PART I
LAW AND RELIGION AS
MEANS TO CONTROL THE FUTURE

Divine Law and the Penalty of Sacer Esto in Early Rome. . . . . . . . . . . . . 11

Leon ter Beek
Law and Divination in the Late Roman Republic . . . . . . . . . . . . . . . . . . . . 31
Federico Santangelo

PART II
PRIESTS, MAGISTRATES, AND THE STATE

The Curiate Law and the Religious Nature of the Power of Roman
Magistrates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Michel Humm
Rationalizing Religious Practices: The Pontifical Calendar and the
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Jörg Rüpke
The Jurisdiction of the Pontiffs at the End of the Fourth Century bc 107
Jan Hendrik Valgaeren
The Longevity of the Fetial College . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Linda Zollschan

PART III
SACRED LAW, CIVIL LAW, AND THE CITIZEN

Sacred Law and Civil Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

Olga Tellegen-Couperus
vi contents

Control of the Sacred in Roman Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

James Rives
The Immortality of the Soul and Roman Law . . . . . . . . . . . . . . . . . . . . . . . . 181
Jan Willem Tellegen

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Index of Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
 INTRODUCTION

Olga Tellegen-Couperus

Roman law is generally regarded as basically differing from other legal

systems in Antiquity in that it reached, at an early stage in its develop-
ment, a very high level of secularisation. However, as late as the first
century bc, the Romans were regarded (and regarded themselves) as the
most religious people in the world.1 Is this a paradox or is the commonly
held view really at variance with the sources? The easy way out is to opt for
the paradox and to reduce the relevance of religion for law by stressing the
fact that Roman religion had no theology and did not prescribe conduct.
It is true that the state religion did not give rise to an ethical system of
behaviour as did for instance the Torah. Such a system was provided first
by the mos maiorum and, from the second century bc onwards, by the
Hellenistic philosophies that conquered Rome. However, there are rea-
sons to assume that, during the Republic, Roman law was not secularised
at all, on the contrary, that its connections with religion were never really
severed.
First, it was the pontiffs who developed sacred law as well as civil law;
only in the first century bc, did civil law become the domain of legal
experts who were not necessarily pontiffs. Second, it is striking that well
into the second century ad religious rules about, for instance, death and
burial were still as much alive as they had been in the early days of the
Republic; legal problems would arise, and so sacred law met civil law.
Moreover, recent research has shown that, during the Republic, the major
priesthoods and the magistracies were closely connected in matters of
government as well as law.
Research into these questions seems to have suffered from one-sided-
ness: legal historians tend to marginalise religion, whereas scholars of
Roman religion tend to narrow down law. An interesting example of the
latter category is a fairly recent volume on law and religion in classical
and Christian Rome; the contributions written by historians deal with
religion and public law, whereas the bulk of Roman law concerns private

1 Cicero, De haruspicum responsis, .; De natura deorum, ..

 olga tellegen-couperus

law.2 As to the former category: so far, Alan Watson has been the only
legal historian to dedicate a monograph to the subject.3 He explains the
important role of the pontiffs in Roman private law in the context of
the struggle between the patricians and plebeians. Until  bc, only
patricians could be pontiffs. According to Watson, they developed the ius
civile from the interpretation of the Law of the Twelve Tables. By giving
advice to the magistrate who operated the court system they and their
successors, the jurists, created an autonomous system of law that was
different from anywhere else in the world. It seems that Watson’s views on
the relationship between law and religion are—indirectly—inspired by
Mommsen and the Historical School. However, the idea that Roman law
had developed into an autonomous legal system is no longer generally
supported. It is time to look at Roman law and religion from both sides.
In December , an expert meeting was held at Tilburg University
(the Netherlands) to discuss the relationship between law and religion
in the time of the Republic. It was the first time that both scholars of
Roman religion and of Roman law came together. Admittedly, historians
of Roman religion were more willing and able to participate in this
project than the legal historians. Since then, contacts between the various
disciplines have become more easy and frequent. The results have been
put together in this volume.
Of course, several approaches to the interaction of law and religion are
possible. Here, three aspects are prominent, and the book is accordingly
divided into three parts. The first part focuses on the shared basis of law
and religion as means to deal with the future. In the second part of the
book, the relationship between law, religion, and the state is explored, by
highlighting the religious basis of the magistracies and the legal duties of
the various priests. The third part of the book deals with the interaction
between religion and private law, by means of a discussion of subjects
ranging from the concept of noxae deditio to the building of funerary
monuments.
How should we deal with the uncertainties of life? In modern times
as well as in early Rome, that question has triggered all sorts of activities
by individuals and communities. On a societal level, it may lead to the
development of common rules that, if properly kept, would ward off
danger. This is what happened at Rome. Leon ter Beek states that, in

2 Religion and Law in Classical and Christian Rome, eds. Clifford Ando and Jörg Rüpke

(Stuttgart, ).
3 Alan Watson, The State, Law and Religion: Pagan Rome (Athens, Georgia-London,

).
 introduction 

early Rome, religion permeated all aspects of society including law. At

the same time, Roman law was of a secular and casuistic nature, just
like the legislation of almost all the peoples in the Ancient Near East.
This ambivalence can very well be illustrated by the penalty of sacer
esto, ‘he must be cursed’. These words occur in a religious as well as a
secular context. An example of the former is the inscription on the stele
underneath the famous lapis niger. On the basis of a thorough discussion
of the extant  lines of the inscription, Ter Beek suggests that the lapis
niger marked a sacred spot, maybe the grave of Romulus or of his foster
father Faustulus, and that the inscription warned the people to keep this
place clean so as to avoid a bad omen. The penalty of sacer esto was also
used in a secular context, i.e., in the leges regiae and the Laws of the Twelve
Tables. The clauses mentioning this penalty all deal with wrongs against
other human beings involving a breach of trust. Ter Beek suggests that
such wrongs were regarded as a threat to Roman society that could only
be warded off by means of a religious penalty.
Since divine law was, in early Rome, one means by which the future
could be controlled, it is but a small step to another way of dealing
with the future, divinatio. Federico Santangelo studies the connection
between law and divination in the later Roman Republic, making ample
use of Cicero’s De divinatione and De legibus. The verb divinare and, later,
the noun divinatio were used in different ways, varying from the gen-
eral (making a divinely inspired guess) to the specific (the speech by a
prospective prosecutor before the jury in a criminal trial). According to
Santangelo, there may have been some line of contact between divina-
tion and prudentia. The translation of prudentia may be problematical,
but it clearly derives from pro-videre, seeing before, seeing ahead. In this
connection, the adjective prudens is also interesting: it could be accom-
panied by a genitive to refer to a kind of knowledge, for instance iuris
prudens, ‘a legal expert, a jurist’, or it could be used as a noun; in legal
jargon, the noun prudens came to mean ‘legal expert’. Santangelo draws
a parallel between the responsa of the jurists and those of the haruspices,
the priests who in the second and first centuries bc acquired a prominent
role in Roman public divination: in both contexts, the responsa were used
as precedents that laid the basis of a ‘jurisprudence’, but, most impor-
tantly, they both originated in a typically divinatory practice. According
to Santangelo, the boundaries between divinatio and prudentia are more
porous than it has often been thought.
The close connection between law and religion had a considerable
impact on the functioning of the state, and particularly on the magistrates
 olga tellegen-couperus

and the priests. Roman religion was an integral part of the state and there
was no incompatibility between holding political and religious offices
simultaneously. Religion chiefly focused on keeping man in proper con-
tact with the gods. Since any disturbance of those relations could lead to
disasters and diseases, religion was a constituent part of public life. Meet-
ings of the senate or assemblies of the people could not begin without
the proper ceremonies and rituals being performed. However, the per-
formance of these rituals was not the monopoly of priests but was often
assigned to magistrates. Moreover, the latter were responsible for dedi-
cating new temples and for making vows for the senate. The priests, on
the other hand, could be involved in performing public duties of a legal
nature, such as determining the calendar, supervising legal proceedings,
and declaring war and making peace. Priests, unlike the annual magis-
trates held office for life.
Michel Humm focuses on the magistrates. He uses the enigmatic lex
curiata to show how, during the time of the Republic, the Roman mag-
istrates derived their powers from the gods of the city, and particularly
from Jupiter. In modern literature, the curiate law has been associated
with the concept of imperium and, therefore, with the higher magistrates;
so far, the nature of this connection has remained controversial. However,
according to Humm, the curiate law is not only used for higher magis-
trates with imperium, but for all magistrates elected by one of the elec-
toral assemblies of the populus. It served to define the magistrate’s field of
competence (potestas and, for greater magistrates, imperium) and, conse-
quently, to confer on him the right to take the auspices. There were several
situations in which magistrates had to take the auspices, the first being the
moment they came into office: these auspices of investiture were impor-
tant, because it was only when a magistrate had thus obtained Jupiter’s
assent that his full power of command (imperium) as well as his iuris dic-
tio were conferred on him. There were also ‘departure auspices’ that were
to be taken by the higher magistrates on whom the senate or the populus
had conferred the command of an army: they enabled the magistrate to
be directly entrusted with imperium militiae and war auspices by Jupiter.
Humm concludes that the magistrates did not receive their civil, legal, or
military powers from the people that had elected them or from the lex
curiata that enabled them to go and take the auspices, but from Jupiter
himself.
Jörg Rüpke turns to the pontiffs. One of their duties was to supervise
the calendar, determining the days on which markets and popular assem-
blies could be held and legal cases could be heard. Rüpke explains that,
 introduction 

around  bc, the Roman calendar changed from a lunar to a solar sys-
tem. In the Mediterranean world, the calendar used to be determined by
observation of the moon. Shifting to a solar calendar was attractive for
reasons of agriculture, sailing, and—last but not least—for going to war.
However, a solar calendar requires significantly greater observational
efforts, an institutionalised memory, and specialists. Because the results
are less obvious, it also requires power of enforcement. In Rome, these
conditions were fulfilled at the end of the fourth century bc. The change
of the calendar triggered another innovation in that, for the first time, the
calendar including all the days of the year was written down and pub-
lished. Almost every day was categorised as either Nefas or Fas, indicat-
ing which days were market days, assembly days, and / or days to initiate
legal proceedings. According to Rüpke, this change also affected the rit-
ual elements of Roman law. Until then, the pontiffs had decided on which
formulae had to be pronounced to start legal proceedings. Now, the for-
mulae were summarized in the form of a table and published. This pub-
lication was part of the logic of the calendar reform. Rüpke argues that
these innovations cannot be described as secularization nor as sacralisa-
tion but rather as rationalization of religious practices.
It could be expected that the publication of the dies fasti and the legal
formulae would affect the position of the pontiffs in their capacity as
supervisors of civil procedure. Indeed, many historians think it did. Jan
Hendrik Valgaeren argues that it did not. On the contrary, it may have
led to an increase in the number of lawsuits. The fourth century bc had
seen the expansion of Roman territory and the ensuing growth of the
Roman economy. Moreover, the publication was not meant to weaken
the pontiffs’ position but was part of the logic of the calendar reform
as described by Rüpke. The lex Ogulnia of  bc, which doubled the
number of pontiffs, may have been introduced in order to help the
pontiffs cope with the increase in their legal duties.
Of old, the Fetial priests had been charged with declaring war and
making peace but they ceased to function after  bc. That, at least,
is the commonly held view, and the college is supposed to have been
revived only by Augustus in  bc. Linda Zolschann, however, takes a
stand against this view. In her contribution, she shows that between
 and  bc the Fetial priests continued to perform most of their
traditional duties. These duties involved first and foremost the conclusion
of treaties (foedera). Such treaties were sealed with mutual oaths. Ten
treaty inscriptions discovered in the last two centuries furnish evidence
that, in the second and first centuries bc, it was a Fetial priest who
 olga tellegen-couperus

swore the oath on behalf of the Roman people. In this period, the Fetials
also performed other traditional duties including the annual renewal of
treaties, the organisation of annual games for Jupiter Feretrius, and the
guarding of Fetial law. The fact that the names of Fetial priests begin to
be recorded only in the first half of the first century ad does not support
the argument that Augustus revived this ancient priestly college, nor does
their disappearance around ad  show that the Fetials ceased to exist.
According to Zollschan, it only mirrors the rise and fall of the ‘epigraphic
habit’. She concludes that the Fetial priesthood continued to function in
the middle and late Republic and that we must await further discoveries
in order to know when they really died out.
The third part of the book deals with the interaction between religion
and civil law. The persons dealing with legal problems between citizens
were traditionally the same as the persons dealing with problems between
the citizens and their gods. It was not until the first century bc that a
new phenomenon arose: the legal expert or jurist who was not necessar-
ily involved in one of the priestly colleges. These jurists were not ‘profes-
sionals’. They belonged to the elite, serving as magistrates and priests, act-
ing as advocates, giving legal advice, and collecting and publishing their
opinions. Some of them were experts in sacred law as well as in civil law.
It is these jurists that were responsible for the rationalization of Roman
law, at the same time guarding its religious roots.
Sacred law and civil law differ immensely as to our knowledge about
them. Roman civil law has been relatively well documented in Jus-
tinian’s Digest, which was compiled in the sixth century, but there is
no such collection of sacred law. During the last two centuries, quite a
few attempts have been made to reconstruct Roman sacred law. Olga
Tellegen-Couperus discusses the most recent one, made by the well
known expert in Roman religion, John Scheid. Focusing on pontifical
law, Scheid reconstructed two elements of the punishment of a religious
offence: the designation of the guilty person and the establishment of
guilt. For the first element, he used a concept known from civil law,
noxae deditio, for the second one he used a regula of the jurist and pon-
tiff Q. Mucius Scaevola (cos.  bc). However, from the point-of-view of
Roman law, this way of working does not convince. First, Scheid does
not distinguish between the forms of deditio in early Roman law, about
which next to nothing is known, and the noxae deditio of classical Roman
law. The latter is well-attested in the sources and has nothing in common
with the early deditio. Therefore the comparison does not hold and can-
not support the reconstruction of the first element. Secondly, Scaevola
 introduction 

modified the extant distinction between intentional and unintentional

wrongdoing in sacred law in order to relax the rules. In a civil law case,
however, he is known to have introduced the same distinction in order
to tighten the rules. Therefore, it is clear that, in the second century bc,
sacred law and civil law had become two separate sets of law that, as far
as we know now, cannot easily be used to fill up a lack of knowledge on
either side. Moreover, the jurists started to publish their responsa and so
made it possible for a body of civil law to come into being. Unfortunately,
this did not happen for sacred law.
Important for understanding how law and religion operated, is an
appreciation of the sacred in Roman life and society. James Rives sets
to work almost like an archaeologist to discover the earlier layers of
the trichotomy sacer-sanctus-religiosus mentioned by the second century
jurist Gaius. These words were used to indicate respectively a temple, a
city-wall, and a grave. As res divini iuris, they were not susceptible to
human ownership. However, it was people who made them into res divini
iuris: magistrates and priests created res sacrae and sanctae, whereas res
religiosae were made by private people. The elite to which magistrates and
priests of old belonged controlled the res sacrae et sanctae, but not the res
religiosae. According to Rives, the latter may have even included more
than graves. Festus, for instance, declared a place that was struck by a
lightning bolt to be immediately religiosus. Such an event was completely
outside any human control. Originally, even the adjective sacer may have
applied to anything perceived as having some inherent connection with
the divine. Rives suggests that the elite through the magistrates and the
priests first appropriated what was sacer and sanctus, and in the time of
the Empire also res religiosae. They did so by recognizing as such only a
few specific cases, and in the end only graves.
Grave monuments were an important means to secure the immortality
of the soul. However, after a person’s death, it was (and still is) difficult
to ensure that his descendants would keep his memory alive, for instance
by erecting a monument for him. To this end, people often inserted a
fideicommissum in their will or codicil with instructions regarding burial
or cremation and the monument. Among the living, such a clause would
be binding but, in the case of funerary monuments, the interested party
was the deceased person who could not ensure that the request was
executed. Jan Willem Tellegen discusses three different kinds of sources
that deal with this problem: a letter by Pliny the Younger about a case in
which the request was not carried out, two inscriptions on monuments
which record instances when it was, and three responsa on the subject
 olga tellegen-couperus

that have been included in Justinian’s Digest. It seems that, to a certain

extent, the jurists were willing to support the attempts of testators to make
their heirs build a sepulchral monument for them. However, there was a
limit: the first century bc jurist Alfenus Varus denied that disinheritance
could be used as a punishment for not erecting a monument. The liberty
of the heirs to accept or forego the inheritance must never be curtailed.
According to Tellegen, it is necessary to combine various kinds of sources
in order to understand the paradoxical nature and the importance of
the legal problems involved and to appreciate the common sense of the
Roman jurists in solving these problems.
In conclusion, I hope that this volume will make clear that the Roman
people were remarkable, but not for—at an early stage—secularising their
law. In the first centuries of the Republic, religion permeated society.
Magistrates received their power from the gods, priests performed sec-
ular as well as religious duties, and religious penalties were imposed for
both religious and secular wrongs. A large part of this tradition remained
intact well into the Empire. Around  bc, when the Roman territory
had come to include the whole of central Italy, an important step towards
rationalization was taken by the pontiffs introducing the solar calendar.
The ensuing publication of the calendar and of the legal formulae enabled
the Roman citizens to know when there would be market days and when
assembly days, and when and how they could start legal proceedings. In
the second century bc, civil law crystallized into a set of rules that differed
from sacred law. Legal experts, and these were no longer necessarily pon-
tiffs, began to publish their responsa, turning Roman law into a fixed set
of concepts that for the centuries to come could (and would) be applied
to a large variety of legal problems. The fact that this did not happen for
sacred law does not mean that religion lost most or even some of its rel-
evance to Roman law and society. It does mean that it is less easy to see
the lasting connection between Roman law and religion. In my view, this
connection can only be fully discerned when legal historians and histori-
ans of Roman religion work together more closely. I hope this book may
inspire them to do so.
 PART I

LAW AND RELIGION AS

MEANS TO CONTROL THE FUTURE
 DIVINE LAW AND
THE PENALTY OF SACER ESTO IN EARLY ROME

Leon ter Beek

. The Concept of “Divine Law”

Much has been said and written on the topic of divine law in the Roman
Republic. In this paper I shall focus on the subject of divine law in early
Rome until the first decades of the Roman Republic.
It has often been noted that, already at an early stage, Roman law
had a distinctly secular character. However, the situation regarding law
in early Roman society is not so unambiguous. One has to realize that
archaic Rome did not distinguish between divine and human law or jus-
tice. Rather religion permeated all aspects of archaic Roman society.1 To
start with, the expression “divine law” can be understood in more than
one way. It can be understood as referring to cultic or ritual laws, which
means laws concerning the way in which the gods are worshipped. It
is also possible to speak of “divine law” in cases in which legal provi-
sions regarding human interaction contain some religious element. Yet
another distinction that can be made in this respect is that between rules
attributed to the gods and those reaching back to human lawmakers. Very
often these distinctions appear to be blurred. Modern scholars, following
the Roman sources, generally distinguish between fas and ius. Servius
states that “fas refers to religion, iura to human beings”.2 In other words:
fas is “divine law”, “sacred law”, whereas ius is “human law”.3
According to tradition, the first laws in Rome were made by the first
kings. In the sources, we find laws going back to and, in fact, attributed to

1 Cf. William Warde Fowler, The Religious Experience of the Roman People from the

Earliest Times to the Age of Augustus (, repr. New York, ), p.  who stated that
“it is most important to grasp the fact that procedure in the ius civile was originally of
precisely the same nature as procedure in the ius divinum, and that precisely the same
rigid exactness is indispensable in both.”
2 Servius, In Vergilii Georgica .: Ad religionem fas, ad homines iura pertinent.
3 This distinction can also be found in Dionysius Halicarnassus, Roman Antiquities

.. (oute hosion oute themis). See Karl Georg Bruns, Fontes Iuris Romani Antiqui, th
ed. by O. Gradenwitz (; repr. Aalen ), p. .
 leon ter beek

Romulus and his successors. Now can we call these laws “divine”? After
all, Romulus (who according to tradition ruled from  to  bc) as
the son of the god Mars was a demigod. His successor, Numa Pompilius
(who, as tradition has it, was elected king in  bc and ruled until his
death in  bc) enacted laws which tradition claimed to be inspired by
the nymph, Egeria.4 Livy states that Numa Pompilius pretended that he
met Egeria during nights; he claimed that, on her advice, he established
the religious ceremonies that the gods approved of most and appointed
the right priests to every one of the gods.5 In one sense, these laws can be
called “divine laws”.
Of course, the question whether these so-called “laws of the kings”, the
leges regiae, are, in fact, historical is still debated. However, one should
bear in mind that the tradition of the transmission of these leges regiae
is by no means less reliable than the tradition of the transmission of the
oldest legislation in the Republic, the Laws of the Twelve Tables.6 Direct
citations from the leges regiae in the Roman (and Greek) sources are by
no means fewer than direct citations from the Twelve Tables. Of course,
frequency of citations is no guarantee of reliability, but the idea of legis-
lation for the period before the Republic is in itself perfectly plausible.7

4 The name Egeria means ‘the Deliverer’. On the relations between Numa and Egeria,

see H.J. Edwards, Titi Livi ab urbe condita libri. Praefatio, liber primus (Cambridge, ),
p. ; on Numa’s pia fraus, see Robert Maxwell Ogilvie, A Commentary on Livy Books
– (Oxford, ), p. .
5 Livy, Ab urbe condita ..: Simulat sibi cum dea Egeria congressus nocturnos esse;

eius se monitu, quae acceptissima diis essent, sacra instituere, sacerdotes suos cuique deorum
praeficere.
6 A relevant text is Livius, Ab urbe condita ..: In primis foedera ac leges—erant

autem eae xii tabulae et quaedam regiae leges—conquiri, quae conparerent, iusserunt. Alia
ex eis edita etiam in volgus; quae autem ad sacra pertinebant, a pontificibus maxime, ut
religione obstrictos haberent multitudinis animos, suppressa. On this text, see Moritz Voigt,
Über die leges regiae II. Quellen und Authentie der leges regiae (Leipzig, ), pp. –
, and more recently: Alan Watson, “Roman Private Law and the Leges regiae,” Journal
of Roman Studies  () , note ; Zika Bujuklić, “Leges regiae: pro et contra,”
Revue Internationale des Droits de l’ Antiquité  () –, n. .
7 Thus, convincingly, Voigt, Leges regiae II, pp. –; also S. Tondo, “Introduzione

alle ‘leges regiae’,” Studia et Documenta Historiae et Iuris  () –; Watson, “Leges
regiae,” p. ; and Bujuklić, “Leges regiae,” pp. –. To my mind, after Voigt in the
nineteenth century had already proved that the claims of the spuriousness of the leges
regiae were not well-founded, Alan Watson, The State, Law and Religion. Pagan Rome
(Athens, Georgia-London, ), especially pp. –, has all but proven positively the
authenticity of these leges. For an opposite view, see (as two examples among many)
Jochen Bleicken, Lex publica. Gesetz und Recht in der römischen Republik (Berlin-New
York, ), pp. –, who, however, fails to present any argument for his position, and
T.P. Wiseman, The Myths of Rome (Exeter, ), p. .
 divine law and the penalty of sacer esto 

In my view, early Roman law can be qualified as divine provided that it

is regarded as having a religious as well as secular character. There is one
concept that may help illustrate this ambivalence, i.e. the penalty of sacer
esto, ‘he must be cursed’. This penalty has a clearly religious connotation.
The words sacer esto occur on the stele found beneath the famous lapis
niger as well as in the leges regiae and the Laws of the Twelve Tables.
Therefore, it will be interesting to ascertain whether they are used for
wrongs committed against gods and / or humans.
In the following, I shall first compare early Roman law with the laws
of two other and older civilizations, that of Israel and that of Babylon, in
order to demonstrate that there is nothing unusual in early Roman law
combining religious and secular elements (section ). Next, I shall focus
on the words sacer esto. I want to demonstrate that the lapis niger was
a res divini iuris and that, here, the penalty of sacer esto was applied in
a religious context (section ). Then, I shall discuss those provisions of
the leges regiae and the Twelve Tables that include the penalty of sacer
esto and show that, there, it was used in a secular context (section ).
My conclusion will be that the law of early Rome had a secular-religious
character but that the religious penalty of sacer esto allows us to qualify
it as divine law.

. Early Roman Law, Torah,

and the Code of Hammurabi: A Comparative Approach

As I have already mentioned, many scholars emphasize the fact that, from
its inception, Roman law was almost exclusively secular in nature. And
certainly, the secular character of the Laws of the Twelve Tables must be
clear to anyone studying the citations from and the comments on these
laws which have come down to us. Many scholars attach great importance
to this observation. Watson for instance states: “The Twelve Tables [ . . . ]
omitted altogether public law and sacred law. We have here, apparently,
the beginning of the famous distinction between public and private law
that has been so prominent in subsequent Western law.”8 Obviously,
modern scholars are a little bit surprised to find that Roman law is so
secular in nature. I think that one of the reasons for their surprise is the
fact that we, living in the modern world of the twenty-first century, are
subconsciously and unintentionally inclined to compare Roman law to

8 Watson, Pagan Rome, p. .

 leon ter beek

another tradition which has shaped and formed our civilization, namely
the Biblical tradition of the covenant between the one God and his chosen
people, the Jews, which is especially embodied in the books of Exodus
and Deuteronomy.
These books—the second and fifth book of the Torah—describe how
God gave his laws to the Jewish people. When we compare the laws from
these books to Roman law, as we know it since the Twelve Tables, it
is immediately obvious that we have two different kinds of legislation.
The laws in the Bible are believed to have been directly issued by God
himself and are divine laws without any form of human interference.
Consequently, the laws in these books of the Bible, especially the Ten
Commandments, are formulated in a way that differs greatly from what
we see in Roman law. In Roman law, we find mostly casuistic law. More
often than not a regulation begins with si, ‘if ’. In this manner, a concrete
case is posed. “If this or that happens, then this or that action should
be taken.” We find this kind of legislation in Rome from the earliest
times, even in a lex regia supposedly going back to Romulus.9 Also
according to Festus, king Numa Pompilius enacted a law which stated:
“If a person with wrongful intent and knowingly kills a free man, he will
be a paricidas”.10
Some decades ago, Cloud and MacCormack showed that this law
intended to put the legal consequences of knowingly and with wrongful
intent killing a free man not belonging to the ‘clan’ of the killer on a par
with the consequences of knowingly and with wrongful intent killing
a free man who belonged to the ‘clan’ of the killer.11 In this way, the
lawmaker aimed at preventing blood feuds, the perpetrator was declared
sacer.

9 Cf. Festus, De verborum significatu  L.: Si nurus, sacra divis parentum estod. I will

discuss this text later.

10 Festus, De verborum significatu  L: Si qui hominem liberum dolo sciens morti

duit, paricidas esto. For instance, in Fontes Iuris Romani Antejustiniani , Leges (= FIRA),
ed. Salvatore Riccobono (, repr. Florence, ), p. . On this text, see for instance
Roberto Fiori, Homo sacer. Dinamica politico-costituzionale di una sanzione giuridico-
religiosa (Naples, ), p. ; Giorgio Agamben, Homo sacer. Sovereign Power and Bare
Life (Stanford, ), p. ; Leon ter Beek, Dolus. Een semantisch-juridische studie, 
(Nijmegen, ), pp. – with literature.
11 J.D. Cloud, “Parricidium: from the Lex Numae to the Lex Pompeia de parricidiis,”

Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, romanistische Abteilung  (), –

; Geoffrey MacCormack, “A Note on a Recent Interpretation of “Paricidas esto”,” Labeo
 (), . See also Jörg Rüpke, “You shall not kill. Hierarchies of Norms in Ancient
Rome,” Numen  (), , note ; Ter Beek, Dolus, pp. –.
 divine law and the penalty of sacer esto 

Not only in the leges regiae, but also in the Twelve Tables this kind of
casuistic law is prominent. As we know from various sources, the opening
words of the Laws of the Twelve Tables are:
If the plaintiff summons the defendant to court, he shall go. If he does
not go, the plaintiff shall call witnesses thereto. Then only shall he take
the defendant by force. If the defendant shirks or takes to heels, the
plaintiff shall lay hand on him. If disease or old age shall be impediment,
he [who shall summon the defendant to court] shall grant him team;
if he shall not so desire, he should not spread with cushions covered
carriage.12
From the cited examples, the casuistic character of these ancient Roman
laws is evident.13 When we compare this kind of legislation to the legisla-
tion that we find in the book of Exodus, we see that there is a completely
different style of legislation. In the Decalogue (Exodus .–), and also
in the smaller equivalent in Deuteronomy .–, the divine lawgiver
addresses us directly.14 The Decalogue opens with: “I am the Lord thy
God” (verse ). Verse  through  run: “Thou shalt not kill. Thou shalt
not commit adultery. Thou shalt not steal. Thou shalt not bear false wit-
ness against thy neighbour.”15 This is not casuistic, this is apodictic. Here
a concrete case is not posed followed by the course of action that should
be taken if this case arises, but there is a direct command from God to

12 Lex XII tabularum .– Si in ius vocat, ito. Ni it, antestamino. Igitur em capito.

Si calvitur pedemve struit, manum endo iacito. Si morbus aevitasve vitium escit, {qui in
ius vocabit,} iumentum dato; si nolet, arceram ne sternito. For instance, in FIRA, p. .
On this text, see Dieter Flach-Andreas Flach, Das Zwölftafelgesetz. Leges XII tabularum.
Herausgegeben, übersetzt und kommentiert (Darmstadt, ), pp. –.
13 Cf. David Daube, Forms of Roman Legislation (; repr. Westport ), p. :

“First then, in early Roman legislation, the form ‘If a man murders another man, he
shall be put to death’ predominates, whereas later, the form ‘Whoever murders a man
shall be put to death’ is no less usual. This change reflects an evolution from what we
might call folk-law to a legal system. ‘If a man does this or that’ tells you a story—
though of something yet to come. It puts forward a situation which may arise, and
informs you how to meet it. ‘Whoever does this or that’ refers, not to a situation, but
to a category, a person defined by his action. It does not inform you how to meet a
contingency, but declares the proper treatment of a murderer. It is more general, abstract,
detached.”
14 On these decalogues, see Friedrich Horst, Gottes Recht. Gesammelte Studien zum

Recht im Alten Testament, ed. Hans Walter Wolff (Munich, ), pp.  and ;
J. Blenkinsopp, “Deuteronomy,” The Jerome Biblical Commentary I. The Old Testament
(Englewood Cliffs, ), p. .
15 See M.J. Paul, G. van den Brink, and J.C. Bette, Studiebijbel Oude Testament, 

(Veenendaal, ), pp. –.

 leon ter beek

man.16 This apodictic style can also be found in Roman law, even in the
leges regiae, but it is far less frequent than the casuistic style.17
So we have seen that there is a big difference between ancient Roman
law and the law of the Israelites in the Torah. But we must not forget that
there were numerous other law systems in Antiquity, with some of which
we are quite familiar. The most well-known is the law of the Babylonians
established by king Hammurabi and dating from around  bc. This
law code is written on a stele; the top of this column has the shape of the
land-lending-columns we know from later times, the so-called kudurrus;
it has been reserved for a relief which, in the general opinion of scholars,
captures the moment in which the Sun-god Shamash, seated to the right
on a throne, hands over his laws to king Hammurabi, who is depicted on
the left hand side. Shamash is considered to be the god of justice probably
due to the fact that he sees all. The laws consist of almost  “paragraphs”,
headed by a poetical preface and concluded by an epilogue which is no
less epic. Both preface and epilogue were probably written by a court
poet.
When we take a closer look at the picture of Shamash and Ham-
murabi,18 we perhaps start to doubt that Shamash is really depicted as
handing over his laws to the king. After all, the god is not handing over
any clay tablets to Hammurabi. Now what is he handing over? Probably
he is handing over symbols. Recently, scholars amongst whom I should
mention Demsky have suggested that the symbols handed over to Ham-
murabi are the divine values called meshārum (‘that which is true, truth’)
and kinnātum, which means something like ‘correctness’.19 In this famous
picture, the Sun-god Shamash is depicted as handing over these values
of ‘truth’ and ‘correctness’ in a very concrete form to king Hammurabi.
The king is receiving them from Shamash and so he is able to implement
them. His implementation is however completely subjective and human
in its formulation. Only the underlying value system is divine. That is also
the reason why the laws of the Code of Hammurabi are all casuistic.20

16 See J.E. Huesman sj, “Exodus,” The Jerome Biblical Commentary I. The Old Testament

(Englewood Cliffs, ), pp. –.

17 For instance in Numa, : Vino rogum ne respargito. In FIRA, p. .
18 See J.B. Pritchard, The Ancient Near East, . An Anthology of Texts and Pictures

(Princeton, ), figure .

19 Seminar in Jerusalem, January .
20 Suffice it to cite Codex Hammurabi –: ‘If a seignior (awēlum) accused a(nother)

seignior and brought a charge of murder against him, but has not proved it, his accuser
shall be put to death. | If a seignior brought a charge of sorcery against a(nother) seignior,
but has not proved it, the one against whom the charge of sorcery was brought, upon going
 divine law and the penalty of sacer esto 

The gods want evil and chaos driven out of the world. They want law
and order among mankind. Therefore they give to the king the divine
values of meshārum and kinnātum, which the king implements in his law
code. So this is the position of law in the Mesopotamian world. Law is not
absolute. It is dependent upon the lawgiver, who is a human figure. There
do not appear to have been divine lawgivers in the Mesopotamian world.
Another thing which strikes us when we read the law code of Ham-
murabi is the fact that it contains no regulation regarding divine wor-
ship or religion whatsoever. Religion is completely absent. The Code of
Hammurabi is purely social in nature. Of course, the total absence of
prescriptions concerning divine worship cannot be due to chance. It is
therefore generally assumed that this law code illustrates Hammurabi’s
aspirations to separate ‘church’ and state as clearly as possible. In this law
code, jurisdiction therefore lies not with the priests, but with civil ser-
vants appointed by the king himself.21
All this serves to show that the semi-secular character of Roman law is
no exception. The vast majority of the laws of the peoples in the Ancient
Near East is secular in nature, but based on divine values. This holds
equally for the laws of Sumeria, those of the Hittites, the Assyrians, or
the Babylonians.22 The only exception to this rule is the divine law of
the Torah, the Bible. Therefore there is no reason to be astonished by the
semi-secular nature of Roman law; the exception to the rule, the odd one
out, is Israel, not Rome.

. The Lapis Niger and the Clause Sacer Esto

In the year  an interesting discovery was made in Rome. On the

boundary-line between the Forum and the Comitium, the remains of
a black-coloured pavement were discovered. It was a square made of

to the river, shall throw himself into the river, and if the river has then overpowered him,
his accuser shall take over his estate; if the river has shown that seignior to be innocent
and he has accordingly come forth safe, the one who brought the charge of sorcery against
him shall be put to death, while the one who threw himself into the river shall take over
the estate of his accuser. | If a seignior came forward with false testimony in a case, and has
not proved the word which he spoke, if that case was a case involving life, that seignior
shall be put to death. | If he came forward with [false] testimony concerning grain or
money, he shall bear the penalty of that case.’ Translation by Th.J. Meek, in Pritchard,
Ancient Near East, p. .
21 See H.A. Brongers, Oud-oosters en bijbels recht (Nijkerk, ) p. .
22 See Huesman, “Exodus,” pp. –.
 leon ter beek

black marble slabs fenced in by a wall of white marble. The surface of the
black pavement had been damaged in several places and, in one place,
patched together with a piece of an inscription, but the patching had
been done with great care. About five feet beneath the level of the Julio-
Augustan pavement there was discovered a group of monuments from a
very ancient period that had been covered over in late Antiquity and in
part deliberately destroyed.
In the first place, covered only in part by the black pavement, are to
be seen two bases of tufa, which seem especially appropriate for two
reclining statues of lions. Between the two bases there lies (possibly not
in its original position) a single block of stone. Behind, the two bases
run against a foundation, a small sacellum (. by . feet).23 Under the
black pavement stands a rectangular stele covered with inscriptions on all
four faces. The letters show a great resemblance to the Greek alphabet.
The inscription is dated to around  bc.24 When the sacellum was
excavated, the plinths of the bases were found packed in a layer of gravel
which had been brought there intentionally: in this layer were found
numerous dedicatory gifts, small idols of clay, bone, and bronze, pieces of
terracotta bas reliefs, fragments of vases, bones of animal sacrifices and so
forth. The objects come mainly from very ancient times, from the eighth
to the sixth centuries bc.25
The antiquarian Pompeius Festus, whose work is an abridgement of
a larger work by Verrius Flaccus, the court-grammarian of emperor
Augustus, says that ‘the black stone (lapis niger) in the Comitium marks
an unlucky spot; according to some it was intended to serve as the grave
of Romulus, but this intention was not carried out, and in the place of
Romulus his foster-father Faustulus was buried’.26

23 This sacellum (shrine) is usually considered identical with the (intended) grave of

Romulus mentioned by ancient writers. On this shrine, see F. Leifer, Zum Problem der
Foruminschrift unter dem Lapis Niger I. Zwei neuere Lösungsvorschläge (Graffunder und
Stroux) (; repr. Aalen ), p. .
24 See T. Frank, “On the Stele of the Forum,” Classical Philology  () –.
25 On the archaeological evidence, see C. Smith, “The ‘Tomb of Romulus’,” Classical

Review  () –; Samuel Ball Platner, “sep. Romuli,” in A Topographical Dictio-
nary of Ancient Rome. Completed and revised by Thomas Ashby, (London, ), pp. –
; J. Stroux, “Die Foruminschrift beim Lapis niger,” Philologus  () pp. –;
Filippo Coarelli, Il Foro Romano. Periodo arcaico (Roma, ), pp. –; Pietro
Romanelli, Ricerche intorno ai monumenti del “Niger Lapis” al Foro Romano (),
(Roma, ), passim; R. Ross Holloway, The Archaeology of early Rome and Latium,
(London-New York, ), pp. –; A.J. Ammermann, “The Comitium in Rome from
the Beginning,” American Journal of Archaeology  () – with literature.
26 Festus, De verborum significatu  L.: Niger lapis in comitio locum funestum
 divine law and the penalty of sacer esto 

Thus, the Roman sources supply evidence of the fact that in the
Comitium there was a spot near the Rostra, identified by tradition as
the place where either Faustulus or Romulus,27 or both, were buried,
that this spot was marked by a black stone, and possibly by one or
two sculptured lions. Perhaps the lapis niger was a natural stone, and
sculpture (and even inscriptions) were added at a comparatively late
period, when the tradition had been fixed.28 Let’s take a look at what
remains of this inscription. Although the inscription has been preserved
only fragmentarily, nevertheless some words can be read:29
 quoi hoi . . . | . . . sakros es|ed sor . . .
 . . . ia. ias | recei | ic . . . | . . . evam | quos | re . . .
 . . . m | kalato|rem | hai . . . | iod | iouxmen|ta | kapia | dotau . . .
 m | ite | rit . . . | . . . m | quoi ha|velod | nequ . . . |od | iouvestod
 loiuquiod . . . 30
It is an inscription that is written boustrophedon, ‘in the way an ox
ploughs’: the first line from right to left, the second line back again from
left to right, the third line from right to left and so on.31

significat, ut ali, Romuli morti destinatum, sed non usu ob in [. . .] [Fau]stulum nutr[. . .]
[Quinc]tilium avum tu [. . .] cuius familiae [. . . tionem eius. On this text, see Bujuklić,
“Leges regiae,” p. , note ; Paolo Pieroni, Marcus Verrius Flaccus’ De significatu ver-
borum in den Auszügen von Sextus Pomponius Festus und Paulus Diaconus. Einleitung
und Teilkommentar (, –,  Lindsay) (Frankfurt am Main, ), pp. –.
27 According to others, it was the grave of Hostus Hostilius, the father of the third king

Tullus Hostilius. Dionysius of Halicarnassus, who wrote in the time of Augustus, states
that ‘some people think that the stone lion, which was in the noblest place in the Forum
Romanum, close by the Rostra, was a monument for Faustulus, who was buried on the
spot where he had fallen in battle’ (Antiquitates Romanae ..); see Carmine Ampolo,
“La storiografia su Roma arcaica e i documenti,” in Tria corda. Scritti in onore di Arnaldo
Momigliano, ed. E. Gabba (Como, ), pp. –; Pieroni, Flaccus, pp. –.
28 The fact that the stone was black would seem to strengthen this view; natural stones

or aerolites of this kind—venerated in antiquity—were almost always black. Such, for

instance, was the lapis niger brought to Rome from Pessinus in  bc and worshipped
as Magna mater (cf. Livy, Ab urbe condita ..–). See Smith, “Tomb of Romulus,”
p. ; Warde Fowler, Religious Experience, pp. –. Perhaps the place was originally
a Volcanal, a sanctuary of the god Vulcanus; see Rüpke, Religion, p. .
29 See Warmington, Remains, pp. –.
30 CIL I2 , in various editions, e.g., FIRA, pp. – and, most recently, R. Wachter,

Altlateinische Inschriften. Sprachliche und epigraphische Untersuchungen zu den Doku-

menten bis etwa  v. Chr. (Bern-Frankfurt am Main-New York-Paris, ), pp. –.
31 See R.E.A. Palmer, The King and the Comitium. A Study of Rome’s Oldest Public

Document (Wiesbaden, ), p. : ‘The writing is boustrophedon, which is to say that

it preserves the very old sense of versus: one line ‘turns’ into the next’; T.P. Wiseman,
Unwritten Rome (Exeter, ), pp. –.
 leon ter beek

Line  starts with the relative pronoun quoi, which is the archaic
equivalent of the classical qui, meaning ‘he who’. This, in itself, suggests
the common opening of a legal formula.32 The second word, on the same
line, starts with ho- or hoi- or perhaps hon-. It may well be that we have to
read this word as a form of the demonstrative pronoun hic, ‘this’.33 On the
border of lines  and , which is at the end of line  and at the beginning
of line , we read the words sakros esed. This is perfectly good archaic
Latin for sacer erit,34 ‘he shall be cursed’ or ‘he must be cursed’, which
is to be understood as “dedicated to a certain god, forfeited to a certain
deity”.35 In archaic Roman law, we mostly find the expression sacer esto
rather than sacer erit.36
After sakros esed we read the letters sor-, which are followed by at least
one more letter. Many suggestions have been made how to read this word.
Interesting possibilities are Sor[anoi], ‘to Soranus’, and sor[des], ‘dirt’.37 If
we read Sor[anoi], then the inscription may be understood as ‘must be
forfeited to Soranus’, Soranus being the Sabine god of the underworld
whose cult, according to tradition, had been introduced to Rome by the
Sabine king Titus Tatius, who ruled together with Romulus.38 If we read
sordes, then we have a prohibition to dirty the place of the inscription.
This possibility also has its parallels in archaic law.39
In line , from right to left, we read recei, which is the archaic dative
of rex, ‘king’. Immediately after the discovery of the lapis niger in ,
this word in particular caused great excitement among scholars. Natu-

32 Cf. Lex XII tabularum . (Flach-Flach, Zwölftafelgesetz): Cui testimonium defugerit

. . .; ibid. . (Flach-Flach, Zwölftafelgesetz): Qui fruges excantass{i}[e]t . . .; ibid. .

(Flach-Flach, Zwölftafelgesetz): Qui se sierit testarier libripensve fuerit . . .; see L. Adams
Holland, “Qui terminum exarasset,” American Journal of Archaeology  (), .
33 See M. Warren, “The Stele Inscription in the Roman Forum,” American Journal of

Philology  (), .

34 See Warren, “Stele Inscription,” pp. –; H. van den Brink, Ius fasque. Opmer-

kingen over de dualiteit van het archaïsch-Romeins recht (Amsterdam, ), p. .
35 See Agamben, Homo sacer, p. .
36 See Albanese, “Sacer esto”, p. .
37 E. Goldmann, Zum Problem der Foruminschrift unter dem Lapis Niger II. Deu-

tungsversuch (, repr. Aalen, ), p.  restores the line as follows: Sor[des quoi faxe].
38 Cf. Servius, In Vergilii Aeneidem .: Sorani vero a Dite, nam Ditis pater Soranus

vocatur; see Leifer, Foruminschrift, pp. –. J. Stroux, “Die Foruminschrift beim Lapis
niger,” Philologus  () p.  restores line  as follows: quoi ho[mce lapidem violased
(violasit)] sakros esed So[ranoi] and remarks: “Möglich, daß die Verfluchung geholfen hat,
den Stein durch die Jahrhunderte zu retten”.
39 See Goldmann, Foruminschrift, pp. –.
 divine law and the penalty of sacer esto 

rally, many scholars initially thought that it referred to Romulus, whose

(intended) grave, according to the ancient sources referred to above, was
situated in exactly this part of the Forum.40
In line  we again read the relative pronoun quos. In the next lines,
we can read the word kalatorem.41 Festus states, correctly, that this sub-
stantive is derived from the verb calare, ‘to call, announce’.42 However, his
explanation that slaves were called calatores because they could always be
called or summoned obviously is wrong; calator rather, actively, means
‘summoner’. In archaic Latin, this word referred to a kind of sacrificial
servant, a servant of the priest.43 The presence of this word diminishes
the plausibility that recei actually refers to one of the kings of Rome, be it
Romulus or one of his successors. Rather the word denotes the rex sacri-
ficulus.44
The function of rex sacrificulus originated by the end of the Monarchy.
To the best of our knowledge, Rome was initially ruled by kings. Accord-
ing to tradition, the first Roman king was Romulus, who had founded
the city. After the unification of Rome with the Sabines he ruled together
with Titus Tatius, who was said to be his Sabine counterpart. As far as we
know, the Roman kings did not have absolute power. They were the polit-
ical representatives of the Latin-Sabine people and they also supervised
the state sacra.45 After the expulsion of Tarquin the Proud, the religious

40 F.H. Marshall, Livy book VI (Cambridge, ), pp. – thought it possible that

the inscription of the lapis niger was an actual specimen of the leges regiae.
41 See Palmer, The King and the Comitium, p. .
42 Festus, De verborum significatu  L.: ‘Calatores’ dicebantur servi, ‘apo tou kalein’,

quod est ‘vocare’, quia semper vocari possent ob necessitatem servitutis. On the calatores,
see M. Horster, “Living on Religion: Professionals and Personnel,” in: A Companion to
Roman Religion, ed. J. Rüpke (Malden-Oxford-Carlton, ), p. .
43 In In Vergilii Georgica ., Servius informs us about the functions of the calatores.

In other sources, these calatores are termed praecones, cf. Macrobius, Saturnalia ...
A further parallel is probably offered by Festus, De verborum significatu  L. and  L.
who, in this connection, discusses the word praeciamitatores. In these texts, the process
of modernization of archaic expressions can be clearly seen. It leads us to think that
†praeciamitatores† should be restored to praeclamitatores. See Goldmann, Foruminschrift,
pp. –; Van den Brink, Ius fasque, p. . Both the terms praeclamitator and praeco
can probably be seen as modernizations of the archaic name calator, which was no longer
understood.
44 See Stroux, “Foruminschrift,” p. : “Ohne jeden Zweifel also leitet der kalator

der historisch klaren Zeiten auf einer priesterlichen apparitor und zwingt den rex [. . .]
zunächst in dem sazerdotalen rex, der zum collegium der pontifices gehörte, wieder-
zuerkennen”. See also Van den Brink, Ius fasque, pp. –. On the apparitores, see
Horster, “Living on Religion,” pp. –.
45 See A. König–I. König, Der römische Festkalender der Republik. Feste, Organisation

und Priesterschaften (Stuttgart, ), p. .

 leon ter beek

functions of the king were transferred to a so-called rex sacrificulus. This

is apparent from the testimony of Festus, who says: “Sacrificial king was
his name, because he had taken on the habit of performing the religious
rituals that the kings had performed”.46 Festus informs us that the rex
sacrificulus, after he had sacrificed, went to the Comitium.47 Perhaps the
inscription of the lapis niger must be seen as referring to such an occa-
sion.
So we can see that the inscription speaks about a priest (the rex sac-
rificulus) and his servant (the kalator),48 and by combining this with the
evidence from the next lines, lines  and , we arrive at a meaning-
ful interpretation. In these lines, we can read: iouxmenta kapia,49 which
surely means iumenta capiat,50 ‘he must take draught-cattle’51 or ‘he must
take horses that have been put under the yoke’.52 Perhaps the kalator is
prescribed to take away the oxen or horses.
If so, we have a parallel in Cicero’s work De divinatione, ‘On prophesy’.
Here, Cicero states that there are two ways not to hear Jupiter’s warning:
one can prevent the auspicium from taking place or one can avoid seeing
it. According to Cicero, the augures (of whose college Cicero himself
was a member) sometimes prevented a iuges auspicium: “which we, the
augures, order, that no iuges auspicium takes place”.53 Festus tells us that
iuges auspicium means that the two horses that have been put under the
yoke both at the same time defecate.54 Of course, this is a bad omen. So

46 Festus, De verborum significatu  L.: Sacrificulus [rex appellabatur] qui ea sacra

quae [reges facere a]ssueverant facit, supplemented from Festus, De verborum significatu
 L.: Sacrificulus rex appellatus est, qui ea sacra quae reges facere adsueverant fecisset.
See John North, Roman Religion (Oxford, ), p. ; C. Smith, “The Religion of Archaic
Rome,” in: A Companion to Roman Religion, ed. J. Rüpke (Malden-Oxford-Carlton, ),
pp. –; Horster, “Living on Religion,” p. .
47 Cf. Festus, De verborum significatu  L.: Quandoc rex comitiavit fas, in fastis notari

solet, et hoc videtur significare, quando rex sacrificulus divinis rebus perfectis in comitium
venit.
48 See Leifer, Foruminschrift, p. .
49 See Stroux, “Foruminschrift,” pp. –.
50 Palmer, King and Comitium, p. , however, interprets iouxmenta kapia as ‘teams of

animals’.
51 See Goldmann, Foruminschrift, pp. –; Adams Holland, “Qui terminum exaras-

set,” p. .
52 See Stroux, “Foruminschrift,” p. ; Leifer, Foruminschrift, p. .
53 Cicero, De divinatione ..: quod nos augures praecipimus, ne iuges auspicium

obveniat.
54 Festus, De verborum significatu  L.: Iuges auspicium est, cum iunctum iumentum

stercus fecit.
 divine law and the penalty of sacer esto 

it is possible that the inscription of the lapis niger at this point orders the
calator to remove the yoke from the oxen in order to prevent such an
auspicium from taking place.
Now we have reached the last lines of the inscription. In line , we
read for the third time the relative pronoun quoi, followed by the word
havelod, which has been interpreted in various ways, none of which is
really satisfactory.55
After neque, ‘and not’, which we read in line , we find in line 
the word iovestod, which is either a contraction of Iovi estod, ‘must
be . . . to Jupiter’ or, more probably, an archaic form of the classical
iusto.56 In the latter case, it would point to a provision which prescribes
something to be done in the proper, correct way. The term iusto fits well
into the inscription; like sakros esed it belongs to the realm of sacred
law.
Finally in line  we read loiuquiod, which some scholars interpret
as an archaic ablative of Lucius, which could perhaps refer to Lucius
Tarquinius, the king who was expelled from Rome in  bc. Perhaps
it is best to interpret this word as a form of the substantive lucus, in
archaic Latin louqos or as a form of the substantive locus, in archaic Latin
stloqos.57
Let us have a look at the inscription of the lapis niger as a whole.
Perhaps it says: “He who . . . [does something] . . . shall be forfeited
to Soranus”, or: “He who dirties this place . . . shall be cursed”. These
are lines  to . Then, in lines  to , we understand that there is a
rex sacrificulus and his calator, who is ordered to take away the oxen
which have been put under the yoke, perhaps to prevent a bad auspicium.
Finally, in line  we read iusto: something should be done in the proper
way.
As a parallel and partly as a corroboration of these assumptions, we
have two texts from inscriptions, dating from the later Republic, in

55 Lines – are very unclear; a most tempting reading would be quom iter rited

facit ad quomitiom; see Leifer, Foruminschrift, p. ; Goldmann, Foruminschrift, p. 

restores these lines as iter rited fakit rex. See also Palmer, King and Comitium, pp. –
.
56 See Festus, De verborum significatu  L.: ‘Ioviste’ compositum a ‘Iove’ et ‘iuste’.

Palmer, King and Comitium, p. . Parallels are offered by Warren, “Stele Inscription,”
pp. –.
57 Leifer, Foruminschrift, p.  and FIRA, p.  note  opt for the former, Palmer, King

and Comitium, pp. – prefers the latter.

 leon ter beek

which we find similar regulations. Firstly, we have an inscription from

Spoletium in Umbria which was found in . It reads:
Honce loucom | ne qu[i]s violatod | neque exvehito neque | exferto quod
louci | siet neque cedito || nesei quo die res deina | anua fiet; eod die | quod
rei dinai causa [f]iat sine dolo cedre | licetod. Sei quis || violasit, Iove bovid
| piaclum datod; | seiquis scies | violasit dolo malo, | Iovei bovid piaclum
|| datod et a[sses] ccc | moltai suntod. Eius piacli | moltaique dicator[ei] |
exactio est[od].58

Let no one (ne quis) damage (violatod) this grove (honce loucom). No one
must cart (exvehito) or carry away (neque exferto) anything that belongs to
the grove (quod louci siet), or cut wood in it (neque cedito), except (nesei)
on the day when holy worship takes place every year (res deina anua). On
that day (eod die) it shall be permitted (licetod) without prejudice (sine
dolo) to cut wood (cedre) so far as it may be done for the purpose of
sacred worship (quod rei dinai causa [f]iat). If anyone does damage (seiquis
violasit), he shall make sin-offering (piaclum) to Jupiter (Iove) with an ox
(bovid); if anyone does damage knowingly (scies) and with wrongful intent
(dolo malo), he shall make sin-offering to Jupiter with an ox (Iovei bovid
piaclum datod), and moreover let there be a fine (moltai suntod) of  as-
pieces. The duty of exacting the said sin-offering and fine shall rest with
the dicator.59
The inscription is probably to be dated not long after  bc, when
Spoletium became a Latin colony.60 It records a lex dicta which aimed
at protecting a grove. The word “loucom” suggests that this grove is a
religious spot.61 Apparently, the causing of damage to the grove did not
lead to the perpetrator being declared sacer, a sin-offering and a fine
sufficed.62 Yet, these penalties, i.e. at least the first one, clearly had a
religious character.

58 Lex Spoletina; CIL I2  = XI , most recently in A. de Rosalia, Iscrizioni latine

arcaiche (Palermo, ) p. .

59 The dicator is probably the magistrate performing the rituals; see Th. Mommsen,

Römisches Strafrecht (; repr. Graz, ), p. , note . On this text, see P. Voci,
“Diritto sacro romano in età arcaica,” Studia et Documenta Historiae et Iuris  (),
–; Palmer, King and Comitium, p. ; Ter Beek, Dolus :–; John Scheid, An
Introduction to Roman Religion (Edinburgh, ), p. .
60 On the date of this text, see F. Bücheler, “Altes Latein,” Rheinisches Museum 

(), .
61 Thus, for instance, Scheid, Roman Religion, p. : “Strictly speaking, a lucus was

a clearing in a wood, and it would be in such a clearing, ritually cleared and tended,
that the deity’s cult would be celebrated. In some cases, temples and porticoes would be
constructed there.”
62 On the concept of piaculum, see J. Rüpke, Die Religion der Römer. Eine Einführung

(Munich, ), p. .

 divine law and the penalty of sacer esto 

Secondly, we have an inscription from Luceria in Apulia, which also

aimed at protecting a grove.63 It reads:
In hoce loucarid | stercus | ne [qu]is fundatid, neve cadaver | proiecitad
neve parentatid. || Sei quis arvorsu hac faxit, [in] ium | quis volet pro
ioudicatod n(ummum) l | manum iniect[i]o estod: seive | mac[i]steratus
volet moltare | [li]cetod.64

In this grove (in hoce loucarid) let no one tip dung (stercus ne quis fundatid)
or cast a dead body (neve cadaver proiecitad) or perform sacrifices for dead
relations (neve parentatid). If anyone shall have acted contrary to this, let
there be, as for a judgment rendered (pro ioudicatod), laying of hands upon
him (manum iniectio estod), to an amount of  pieces, on the part of
anyone who shall so desire. Or if a magistrate shall see fit to inflict a fine,
he shall be allowed to do so.65
The opening words “In hoce loucarid” suggest that the grove referred to
is also a sacred spot. Unlike the lex Spoletina, the penalty for committing
certain prohibited acts consists only of paying a fine.
Both inscriptions are relevant for two reasons. Firstly, they contain a
reference to the place involved. The inscription from Spoletium refers to
honce loucom, ‘this grove’, whereas the inscription from Luceria refers to
in hoce loucarid, ‘in this grove’. Perhaps the lapis niger also opened with a
similar phrase: quoi honce loucom, ‘he who . . . this grove’ or quoi honce
stloqom, ‘he who . . . this place’.66 If so, we may assume that the inscription
belonging to the lapis niger refers to a grave or at least to a res divini iuris.
Secondly, the inscriptions from Spoletium and Luceria contain as
penalties a sin-offering and fines, so more or less religious penalties. The
clause sacer esto in the inscription belonging to the lapis niger was also a
penalty for someone who desecrated a religious spot. Apparently, in the
third century bc, these penalties were less severe than in early Roman
law.

63 This inscription was published in , but the stone on which it was carved

has disappeared, so we cannot be sure whether the text has been correctly read and
transcribed.
64 Lex Lucerina; CIL I2  = IX , most recently in De Rosalia, Iscrizioni, p. .
65 On this text, see Palmer, King and Comitium, p. .
66 Warren, “Stele Inscription,” pp. –, suggests reading quoi honce kipom, ‘he

who . . . this cippus’, offering parallels. Palmer, King and Comitium, p.  translates:
‘Whosoever [will violate] this [grove], let him be cursed.’
 leon ter beek

. The Concept of Sacer in the Leges Regiae and the Twelve Tables

As I already mentioned briefly, the phrase sakros esed has parallels in

Roman law. We have several testimonies which attribute this phrase
to the laws of the kings, the leges regiae. Festus says that in the laws
of Romulus and Tatius it was decreed that “if a daughter-in-law had
maltreated her parents-in-law, she was forfeited to the gods of her parents
(sacra divis parentum estod)”.67 It is clear that the wrong was committed
against human beings, but that the penalty had a religious character.
The Greek historian Dionysius of Halicarnassus tells us that Romulus
enacted a law which forbade a patronus and his cliens to press charges,
testify or cast a vote against one another. “If a person is proved guilty of
such a thing, he was liable under the law on treason, which Romulus had
enacted, and everyone had the right to kill this person as an offering to
Jupiter of the nether world (tou katachthoniou Dios)”.68 The phrasing of
this remark by Dionysius suggests that the original Latin text contained
the words sacer Ditis.69 Again, the wrong is committed against a human
being, either the cliens or the patronus, but the penalty had a religious
character.
The phrase sacer esto is also ascribed to the second king of Rome,
Numa Pompilius. Festus explains that the Romans used to make offerings
to Terminus, because the guarding of the fields was thought to be under
his patronage. Therefore, Numa decreed that a person who had removed
a boundary stone by ploughing was forfeit (sacros esse), both he himself
and his oxen.70 In such a case, they were probably forfeited to Iuppiter
Terminus.71

67 Festus, De verborum significatu  L: In Romuli et Tatii legibus: “Si nurus, sacra

divis parentum estod”. For instance, in FIRA, p. . On this text, recently, Fiori, Homo
sacer, pp. – with literature.
68 Dionysius of Halicarnassus, Roman Antiquities ..; For instance, in FIRA, p. .

See Fiori, Homo sacer, – with literature. On the legislation of Romulus as described
in Dionysius of Halicarnassus, Roman Antiquities .– in general, see E. Gabba,
“Studi di Dionigi da Alicarnasso,” Athenaeum  (), –; also J.P.V.D. Balsdon,
“Dionysius on Romulus: a Political Pamphlet?”, Journal of Roman Studies  (), –
.
69 For Dis pater, the god of the underworld, see Scheid, Roman Religion, p. .
70 Festus, De verborum significatu  L.; Termino sacra faciebant, quod in eius tutela

fines agrorum esse putabant. Denique Numa Pompilius statuit eum qui terminum exarasset
et ipsum et boves sacros esse. For instance, in FIRA, p. . On this text, see Fiori, Homo
sacer, pp. – with literature.
71 Thus, Albanese, “Sacer esto,” p. .
 divine law and the penalty of sacer esto 

Dionysius of Halicarnassus follows the same tradition. According to

him, Numa decreed that “if a person had removed or changed the
position of the boundary stones, the offender was hieros72 (forfeit) to the
god”.73 The moving of a boundary stone would only harm the neighbour,
a human being, yet the penalty was owed to a god.
Next, we have a direct citation from the laws of Numa Pompilius
by Festus, who states that “if a person shall act otherwise (aliuta), he
himself (ipsos) shall be forfeit (sacer esto) to Jupiter”.74 The context of this
citation is unknown to us, so we cannot be sure about the nature of the
wrong addressed here. However, it is clear that the penalty has a religious
character.
And finally, again Festus informs us of a law enacted by king Servius
Tullius, in which the phrase sacer esto is used: ‘if a boy shall have mal-
treated (verberit) his parent, and this parent shall have turned to the
court, the boy shall be forfeit to the gods of his parents’.75 Again, in this
case, the wrong is committed against a human being, but the punishment
is owed to a god.
Also in the early Republic we find a trace of the phrase sacer esto.
The Laws of the Twelve Tables decreed that ‘if a patron shall have done
harm to a client, he is to be cursed’.76 This law refers to the lex regia that
Romulus had enacted and that was also mentioned above. The Laws of
the Twelve Tables confirm the rule that a wrong between patronus and
cliens, so between human beings, led to a religious punishment.
Apart from these specimens of the phrase sacer esto, Festus also intro-
duces the concept of leges sacratae: in his view, “they are laws ordaining

72 This is the Greek equivalent of sacer.

73 Dionysius of Halicarnassus, Roman Antiquities ... See Bruns, Fontes, ; Fiori,
Homo sacer, pp. – with literature.
74 Festus, De verborum significatu  L.: Si quis aliuta faxit, ipsos Iovi sacer esto. For

instance, in FIRA, p.  On the archaic style, see Voigt, Leges regiae II, p. . See also
Fiori, Homo sacer, pp. – with literature.
75 Festus, De verborum significatu  L.: In Servi Tulli haec est: Si parentem puer

verberit, ast olle plorassit paren(s) puer divis parentum sacer esto. In FIRA, p.  =
Ancient Roman Statutes. A translation with introduction, commentary, glossary, and
index. General editor Clyde Pharr (Austin ), p. , nr. VI . On the word verberit, see
Voigt, Leges regiae II, pp. –; Fiori, Homo sacer, pp. –. Obviously, Vergilius,
Aeneis .: pulsatusve parens refers to precisely this lex regia.
76 Leges XII tabularum . (Flach-Flach): Patronus si clienti fraudem f{eceri}[axsi]t,

sacer esto. See Van den Brink, Ius fasque, –, , and ; also Watson, Pagan Rome,
–. Again, in Vergilius, Aeneis .: aut fraus innexa clienti should be taken as a
reference to the law enacted by Romulus.
 leon ter beek

that a person who has done something contrary to its provisions shall
be forfeited (sacer) to one of the gods (alicui deorum) together with his
slaves and property”.77
In the leges regiae and in the Laws of the Twelve Tables, we found three
cases of wrongs committed against a human being that led to a religious
punishment: the woman who maltreats her parents-in-law, the patron
who violates the rights of his cliens or vice versa, and the person who
removes a boundary stone. It seems that these cases all deal with a breach
of trust that threatened society or, rather, the survival of the Roman
people. Those who break that trust incur the penalty of being sacer.78
Of the meaning of sacer in these cases there can be little doubt. It puts
a man apart from his fellow citizens and marks him as the property of
a god.79 Accordingly, Macrobius says: “for everything that is destined
or intended for the gods is called sacer”.80 Being sacer means that all
forms of protection enjoyed by all other people are lifted; in fact, a homo
sacer is excommunicated from society and anyone may kill such a person
without being punished. Moreover, the consequence of being sacer comes
about immediately, without any kind of trial or judicial sentence. It is up
to the gods to decide what will happen to the sacer person.

. Conclusion

In the first part of this paper we have seen that the mixed secular-religious
character of Roman law is no exception in the ancient world. Almost
all the other law systems from Antiquity we know of, with the notable
exception of the Torah, are secular in nature but based on divine values.

77 Festus, De verborum significatu  L.: ‘Sacratae leges’ sunt quibus sanctum est,

quicquid adversus eas fecerit, sacer alicui deorum †sicut† familia pecuniaque. The sense
is made clear by Festus, De verborum significatu  L.: Sacratae leges dicebantur, quibus
sanctum erat ut, si quis adversum eas fecisset, sacer alicui deorum esset cum familia
pecuniaque. See Fiori, Homo sacer, p. .
78 See Albanese, “Sacer esto”, p. .
79 Thus Rüpke, Religion, p. : “Es gibt den Begriff des sacer, des Heiligen. Sacer

entstammt der Sprache des Eigentums. Heilig ist, was Eigentum eines Gottes, einer Göt-
tin ist. Zumeist handelt es sich um irgendeinen Grundstück, auf dem ein Tempel errichtet
werden sollte, auf dem dann auch bestimmte Gegenstände, Weihgaben vor allem, Stat-
uen kon-sekriert, somit in das Eigentum einer Gottheit überführt wurden.” In the same
vein, Scheid, Roman Religion, pp. –: “The term sacer, often misunderstood under the
influence of primitivist theories, referred to ownership.”
80 Saturnalia ..: Nam quicquid destinatum est dis sacrum vocatur. See also Macro-

bius, Saturnalia ..: Sacrum est, ut Trebatius libro primo ‘De religionibus’ refert, quicquid
 divine law and the penalty of sacer esto 

Secondly, we have seen that, in archaic Roman law, the phrase sacer
esto was used in religious and secular sources. The lapis niger seems to
have had a religious function and, in the inscription, the words sacer esto
indicate a penalty for a wrong committed against that religious character.
The leges regiae and the laws of the Twelve Tables, on the other hand, had
a predominantly secular character; there, the words sacer esto indicate a
religious penalty for a wrong committed against other citizens.
My conclusion is that the words sacer esto indicated a religious penalty
that was applied to religious wrongs as well as to secular wrongs, thus
demonstrating the secular-religious, “divine” character of early Roman
law.

est quod deorum habetur. This refers to C. Trebatius Testa, the teacher of Labeo and a
friend of Cicero, to whom the latter dedicated his Topica.
 LAW AND DIVINATION
IN THE LATE ROMAN REPUBLIC*

Federico Santangelo

. Introduction

If one types the string “divination law” into a search engine, a range of
references to two fairly recent events will come up. In  a statute
was passed by the North Carolina General Assembly whereby it was
“unlawful for any person to practice the arts of phrenology, palmistry,
clairvoyance, fortune-telling and other crafts of a similar kind in the
counties named herein”.1 In the late Nineties a coalition of practicing
pagans, psychics, and self-proclaimed witches started a campaign for the
abolition of the law, which was eventually passed by the North Carolina
General Assembly in  and endorsed by the State Governor in .
In December  the lower chamber of the Republic of Tajikistan
passed a bill punishing those who indulge in sorcery and fortune-telling
with a fine that equates to approximately  euros (between thirty and
forty times the minimum monthly wage of the country). The bill was
understood to have had the support of the Upper House and of President
Imomali Rakhmon, who earlier in  had passed new laws introducing
fines for extravagant weddings and funerals—a revisitation of the ancient
sumptuary laws, I suppose, although President Rakhmon presented them
as part of an anti-poverty programme.2

* I am very grateful to Olga Tellegen-Couperus and a referee for comments and

criticism on earlier drafts of this paper, and to Fiona Noble for valuable advice and
assistance. I should also like to thank the participants in the Tilburg conference and
audiences in Manchester and Newcastle for their reactions to some of the arguments
presented here. Translations are mine unless otherwise stated.
1 See http://www.oldenwilde.org / oldenwilde / gen_info / blk_rib / nclaw_info.html,

last accessed ... The law included an important limitation: it did not prohibit “the
amateur practice of phrenology, palmistry, fortune-telling or clairvoyance in connec-
tion with school or church socials, provided such socials are held in school or church
buildings.”
2 See http://uk.reuters.com / article / oddlyEnoughNews / idUKL,

last accessed ... I am afraid I could not find evidence for the passing of the law in
 federico santangelo

As is well known, there is evidence for attempts to limit divination

with legal measures under the Roman Republic too. Let us think of
the events of  bc, when the Senate instructed the urban praetor to
take on the “sacrificers and prophets” (sacrificuli ac uates) that were
active in Rome and a number of texts dealing with divinatory and
sacrificial rituals were confiscated; or of the expulsion of the Chaldaean
astrologers in  bc. Cato’s famous dictum that the uilicus should under
no circumstances seek the advice of the haruspex, the augur or the
Chaldaean seer, does not belong in a legal context, of course, but speaks
volumes about the pitfalls that uncontrolled divination presented to
someone in Cato’s position.3
However, in this paper I do not intend to pursue the relationship
between divination and law from the angles of repression and control.
I would like to explore the links and the interaction between divina-
tion and law in a positive sense, so to speak, by discussing the lines of
contact between these two crucial areas of Roman intellectual life. The
affinities between divination and law have been widely explored in the
scholarly literature in a number of different cultures, especially from an
anthropological standpoint. The most widely known example is probably
that of the Azande, the Central African population studied by the British
anthropologist Edward Evans-Pritchard in the s, who used divina-
tory methods in the solution of judiciary disputes: a chicken was thought
to be the agent that could convey the voice of the ancestors. The animal
was asked a question about a crime that had allegedly taken place; it was
then fed with poison; if it died, the answer was considered to be affir-
mative; if it survived, the opposite was thought to be true. The perfor-
mance of this ritual ensured a legitimate decision; as has been noted, the

the Upper House. Cf. also the recent ruling of the Mexican Supreme Court on  June
, in which “the description of specific fraud contained in the Penal Code of the
State of San Luis Potosí, which punishes whomever profits inadequately from the worries,
superstitions or ignorance of people, by means of alleged spirit evocations, divinations or
healings or other procedures lacking technical or scientific validity” is declared constitu-
tional (full text available at http://www.scjn.gob.mx / comunicaprensa / , last accessed
..).
3 Confiscations in  bc: Livy, Ab urbe condita ..–; .. Expulsion of the

Chaldaean astrologers in  bc: Valerius Maximus, Facta et dicta memorabilia ...
Cato, De agricultura .: [vilicus] haruspicem, augurem, hariolum, Chaldaeum nequem
consuluisse uelit. Cf. also, for the imperial period, the numerous attempts to prevent the
consultation of astrologers and diviners de salute principis: see e.g. Ulpian, Collatio ..;
Paul, Sententiae ..; Codex Theodosianus ... For a recent reconsideration of
the place of astrology in Roman society, see Pauline Ripat, “Expelling Misconceptions:
Astrologers at Rome”, Classical Philology  (), pp. –.
 law and divination in the late roman republic 

chickens played a function that is not conceptually dissimilar to that

of the law, in that they conferred legitimacy upon a decision-making
process.4
The role of similar divinatory practices in reaching legal decisions
has been noticed in other cultural contexts. The ritual known as ordeal,
whereby the accused faces potentially fatal injury in order to prove their
innocence, has been studied among the Efik, a population settled in the
Calaba province in Nigeria, and in the Caribbean.5 It would be misguided
to dismiss the ordeal as a pagan practice, or one that is confined to exotic
scenarios. It is also widely attested across early Medieval Europe, where
the “trials by fire and water” were an important feature of the criminal
justice system.6 In England they were abolished only in , when they
were replaced by the advent of the jury system, but the use of divinatory
and magical practices for the detection of criminals continued in private
contexts for several centuries.7
Turning to earlier and completely different contexts, in third-century
bc China the interaction of law and divination comes into play in very
interesting frameworks. The tombs of officials excavated at Yunmeng
and Baoshan show that legal texts played a part in the funerary ritual,
and indeed the texts formed part of the material that was supposed to
accompany the dead into his new life. They could include a set of rules
on official conduct or on matters like public record-keeping. The material
discovered in the Baoshan tomb includes some divinatory texts, which
have to do with procedures of exorcism and purification: the diviner
acts as a physician, or indeed as a judge, in identifying the spirit that
is causing a disease and establishing its relationship with the patient.
A text from the Yunmeng tomb deals with the divinatory techniques

4 Edward Evans-Pritchard, Witchcraft, Oracles, and Magic among the Azande (Oxford,

); Wade Mansell-Alan Thomson-Belinda Meteyard, A Critical Introduction to Law,

rd ed. (London, ), pp. –.
5 Donald C. Simmon, “Efik Divination, Ordeals and Omens”, Southwestern Journal

of Anthropology  (), –, esp. ; Bastiaan D. van der Velden, Een rechts-
geschiedenis van Curaçao: ik lach met Grotius en alle die prullen van boeken (Willemstad,
), pp. – (I am very grateful to Dr. van der Velden for discussion and practical
support).
6 Robert Bartlett, Trial by Fire and Water. The Medieval Judicial Ordeal (Oxford,

).
7 See John H. Baker, An Introduction to English Legal History, rd ed. (London, ),

pp. –, –. In general on the end of the ordeal across Europe, see Barlett, Trial,
pp. –; on later developments, the starting point is Keith Thomas, Religion and the
Decline of Magic. Studies in Popular Beliefs in Sixteenth- and Seventeenth-Century England
(London, ), esp. pp. –.
 federico santangelo

that can enable one to catch a thief; apparently, the time of day when a
crime happened could reveal something about the identity of the villain.8
Recent work on eighth-century ad. Tibet shows that legal decision-
making often involved the use of cleromancy. The use of dice and of
divinatory manuals in legal contexts is well-attested for this period and it
was an essential feature of the making of a complex legal and bureaucratic
system. The use of the dice could play a central part in the decision-
making process: magistrates used it as a tool to legitimate their decisions
by placing agency outside of their remit.9 Interestingly, however, clear
rules were set on whether the roll of the dice could be used or not:
once a contract between two parties had been concluded, cleromancy
could not be used in a legal dispute.10 As is the case in many other
societies, divination only makes sense within a specific framework of
rules and constraints. The conceptual premises of these practices are
clear: by delegating the solution of a legal controversy to a divinatory
procedure divine support is sought and the outcome of the process is
fully legitimised.11
Another aspect of the relationship between divination and law is
brought to the fore by a divinatory ritual known as namburbi, which
is well-attested in the ancient Near East; much of the evidence for it
comes from the library of King Assurbanipal (–c.  bc) in Nineveh.
Namburbis are based on the premise that omens are signs of the anger of
the gods which are sent to men and are expected to elicit an appropriate
ritual response. The gods will then judge on the appropriateness of that
response, like a court of law would do. The person who has received a
hostile sign turns up in front of the court of the gods, asking them to
avert the fate which was allotted to him. If the ritual is successful, the gods
will avert the punishment foretold in the omen. Extispicy rituals have a
similar framework: the diviner’s task is that of establishing a verdict by
addressing the gods and asking them to produce a verdict in the case

8 Mark E. Lewis, The Early Chinese Empires. Qin and Han (London, ), pp. –
.
9 Brandon Dotson, “Divination and Law in the Tibetan Empire: the Role of Dice in

the Legislation of Loans, Interest, Marital Law and Troop Conscription,” in Contributions
to the Cultural History of Early Tibet, eds. Matthew T. Kapstein and Brandon Dotson,
Brill’s Tibetan Studies Library  (Leiden-Boston, ), pp. –, esp. pp. –.
10 Dotson, “Divination and Law,” p. .
11 On the role of the lot in Republican Rome, cf. Nathan Rosenstein, “Sorting Out

the Lot in Republican Rome,” American Journal of Philology  (), pp. – and
Roberta Stewart, Public Office in Early Rome. Ritual Procedure and Political Practice (Ann
Arbor, ), pp. –.
 law and divination in the late roman republic 

under discussion. The terminology used in divinatory contexts is the

same as that used in secular juridical contexts. Shamash, the Sun God
who plays a central role in a number of divinatory consultations, is called
“the lord of verdict” and “Judge of Heaven and Earth”.12 Divination is
the tool that enables the production of divine judgments and provides a
framework in which divine law is set out.
The development of Roman jurisprudence and the complexity of the
social context in which it took shape are in many ways not commensu-
rable to the examples that have been discussed so far. An isolated case
is worth mentioning in passing: a passage of Ulpian shows that when an
astrologer or an illegal diviner (qui aliquam illicitam diuinationem pol-
licetur) alleged that someone was guilty of theft, they were liable to be
punished in case the allegation was incorrect (although they could not be
sued for defamation under the praetorian edict).13 However, the episte-
mological affinity between divination and law deserves to be explored in
the context of Republican Rome too, for a number of reasons. First of all,
both divination and law were important constituencies of Roman intel-
lectual life, and both underwent an exceptional development in Rome,
especially between the second and the first centuries bc. The contribu-
tion that they made to Roman culture, and indeed to the cohesion of the
empire, was truly remarkable. Indeed, it can fairly be said that the place
that divination and law have in Roman society and culture is not matched
in other contexts, and is the outcome of developments that are typical
of, and peculiar to, Rome. They do not have any parallels in any other

12 Stefan M. Maul, “How the Babylonians Protected Themselves against Calamities

Announced by Omens,” in Mesopotamian Magic: Textual, Historical and Interpretive

Perspectives, eds. Tzvi Absuck and Karel van der Toorn, Studies in Ancient Magic and
Divination  (Groningen, ), pp. –; Ulla S. Koch, “Three Strikes and You’re
Out! A View on Cognitive Theory and the First-Millennium Extispicy Ritual”, in Div-
ination and Interpretation of Signs in the Ancient World, ed. Amar Annus (Chicago,
), pp. –, at pp. –. The reference discussion of the namburbi rituals is Ste-
fan M. Maul, Zukunftsbewältigung. Eine Untersuchung altorientalischen Denkens anhand
der babylonisch-assyrischen Löserituale (Namburbi) (Mainz, ); the standard overview
of Mesopotamian divination is id., “Omina und Orakel. A: Mesopotamien,” Reallexicon
der Assyriologie  (Berlin-New York, ), pp. –.
13 Digesta ... (Ulpianus  ad ed.): si quis astrologus vel qui aliquam illicitam

divinationem pollicetur consultus aliquem furem dixisset, qui non erat, iniuriarum cum eo
agi non potest, sed constitutiones eos tenent (‘If some astrologer or one offering some other
unlawful foretelling, on being consulted, should say that someone is a thief when he is not,
there will be no action for insult against him, but he is liable under imperial enactments’,
trans. Joseph A.C. Thomas). On this passage, see Marie Theres Fögen, Die Enteignung der
Wahrsager. Studien zum kaiserlichen Wissensmonopol in der Spätantike (Frankfurt, ),
pp. –.
 federico santangelo

ancient society, and they are an important aspect of Rome’s legacy. Sec-
ondly, divination and law deserve to be discussed in association because
they were both so important to the practice and exercise of power in
the Republic: they both dealt with issues of power, they influenced and
directed the choices of the elites, and were profoundly engaged with the
changes that the very concept of power went through in the last two
centuries of the Republic. Thirdly, divination and law were both deeply
affected by the changes that Roman culture went through in this same
period. They were both affected by the emergence of competing profes-
sional discourses between the second and the first centuries bc. Develop-
ments as diverse as the emergence of Roman jurisprudence, the increas-
ing influence of the haruspices in Roman affairs, the coming of Hellenis-
tic grammatical theories to Rome, the rise of antiquarian and geograph-
ical literature, even the State-sponsored initiative that led to the mak-
ing of the new corpus of the Sibylline books after the fire of  bc are all
aspects of the complex cultural changes that occurred in the last decades
of the Republic. These processes led to a considerable extension of the
scope of the Roman intellectual debate and, on the other hand, to the
emergence of branches of specialised knowledge. Fourthly, both diviners
and lawyers, in Rome and elsewhere, usually expressed their knowledge
through expert utterances and responses—in Latin, responsa. These were
a specific form of expert advice, which could be both specific and generic,
particular and universal, intrusive and non-committal, depending on the
occasion, the climate, and the context in which they were practiced and
produced.14 Finally, and perhaps most significantly, law and divination
are both forms of control of the future or, indeed, attempts to secure
such control.15 They both are specific and specialised forms of predic-
tion.

14 On the place of responsa in late Republican culture, see Elizabeth C. Rawson,

Intellectual Life in the Late Roman Republic (London, ), pp. – and Alessandro
Schiesaro, “Didaxis, Rhetoric, and the Law in Lucretius,” in Classical Constructions.
Papers in Memory of Don Fowler, Classicist and Epicurean, eds. Stephen J. Heyworth, Peta
G. Fowler, and Stephen J. Harrison (Oxford, ), pp. –, at pp. –.
15 Cf. Cicero, De legibus .: itaque arbitrantur prudentiam esse legem, cuius ea vis sit,

ut recte facere iubeat, vetet delinquere, eamque rem illi Graeco putant nomine nomon suum
cuique tribuendo appellatam, ego nostro a legendo. nam ut illi aequitatis, sic nos delectus
vim in lege ponimus, et proprium tamen utrumque legis est. quod si ita recte dicitur, ut mihi
quidem plerumque videri solet, a lege ducendum est iuris exordium. ea est enim naturae
uis, ea mens ratioque prudentis, ea iuris atque iniuriae regula (‘And so they believe that
law is intelligence, whose natural function it is to command right conduct and forbid
wrongdoing. They think that this quality has derived its name in Greek from the idea of
 law and divination in the late roman republic 

Having set this background, in this paper I intend to concentrate

on three problems. First, I will deal with the late Republican debate
on the relationship between augury and divination, which should be
understood as part of a broader reflection on augural law. Secondly, I
will discuss some uses of the word divinatio in a legal context, trying to
consider how the boundaries between divination and law were debated
and defined between the second and the first centuries bc. Finally, I will
explore the concepts of prudentia and prudens, the relationship of which
with the divinatory and legal spheres calls for further scrutiny.

. Augury vs Divination?

Let us start from book  of Cicero’s De divinatione. Whatever line one

takes on the interpretation of the dialogue (and I should perhaps confess
that I am part of a minority that views it as a serious critique of divination
and its pervasive function in Roman politics and society), it is uncontro-
versial that the polemic between Quintus and Marcus becomes at times
rather aggressive.16 Quintus’ strongest point is that Marcus himself is an
augur and cannot credibly make the case against divination (.). In
fact, he should take charge for the “defence” of auspicia: auspiciorum

granting to every man his own, and in our language it has been named from the idea of
choosing. For as they have attributed the idea of fairness to the word law, so we have given
it that of selection, though both ideas properly belong to law. Now if this is correct, as I
think it to be in general, then the origin of justice is to be found in law, for law is a natural
force; it is the mind and reason of the intelligent man, the standard by which justice and
injustice are measured’, trans. Clinton W. Keyes, modified). See the valuable remarks on
the analogy between jurisprudence and augural lore in Jill Harries, Cicero and the Jurists.
From Citizens’ Law to the Lawful State (London, ), pp. –.
16 I am therefore more inclined to follow Jerzy Linderski, “Cicero and Divination,”

Parola del Passato  (), – and Sebastiano Timpanaro, “Alcuni fraintendimenti
del De Divinatione,” in Nuovi contributi di filologia e storia della lingua latina (Bologna,
), pp. –, than Mary Beard, “Cicero and Divination: the Formation of a Latin
Discourse,” Journal of Roman Studies  () – and Malcolm Schofield, “Cicero for
and against Divination,” Journal of Roman Studies  (), –. Quintus repeatedly
blames Marcus for being inconsistent towards divination: De divinatione .. (prodi-
gies announcing Catiline’s conspiracy)—response at ..; De divinatione .. (a
dream featuring Marius)—response at ..; De divinatione .. (his reaction to
an omen before Pharsalus)—response at ... For a different reading of the polemic
between Quintus and Marcus, see Celia E. Schultz, “Argument and Anecdote in Cicero’s
De Divinatione,” in Maxima debetur magistro reverentia: Essays on Rome and the Roman
Tradition in Honor of Russell T. Scott, eds. Paul B. Harvey, Jr. and Catherine Conybeare,
Biblioteca di Athenaeum  (Como, ), pp. –, at –.
 federico santangelo

patrocinium.17 Marcus’s response is extremely interesting: augury may

not be seen as a form of divination. He is a Roman augur, not a Marsian
one, and divination is not part of his brief. He is not the sort of augur who
predicts the future by looking at the flight of birds, or “with the observa-
tion of other signs” (.); later on, he says that foreign augural sciences
are just superstition.18 The duty of the augur is to perform a ritual and to
interpret the signs of the non-hostility of the gods. Marcus admits that
originally augury was assumed to have a divinatory dimension, and that
the augural science was able to predict the future, but this interpretation
is now superseded—antiquity got it wrong in many respects, Marcus says.
Unlike the Etruscan discipline, the augural lore is about ritual, not
about prediction. We need to look at the development of public divina-
tion in Rome, with the coming of the haruspices to the centre of the
Roman political arena and their increasing success in the second cen-
tury bc: it is with their rise that we find explicit and detailed prophecies
becoming part of the public discourse.19 Marcus advocates that augury
is based on a different set of practices. Augurs interpret augural signs,

17 Cicero, De divinatione .. [Quintus speaking]: quid de auguribus loquar? tuae

partes sunt, tuum, inquam, auspiciorum patrocinium debet esse (‘Why need I speak of
augurs? That is your constituency, I say, the defence of the auspices has to be yours’).
John Scheid, “La Parole des dieux: L’ Originalité du dialogue des Romains avec leurs
dieux,” Opus – (–), –, at – stresses that some features of the
de divinatione recall judiciary oratory; the use of the word quaestio is significant in this
respect, and this occurrence of patrocinium may well be too.
18 Cic. De divinatione . [Marcus speaking]: ‘difficilis auguri locus ad contra dicen-

dum.’ Marso fortasse, sed Romano facillumus. non enim sumus ii nos augures, qui avium
reliquorumue signorum observatione futura dicamus. et tamen credo Romulum, qui urbem
auspicato condidit, habuisse opinionem esse in providendis rebus augurando scientiam
(errabat enim multis in rebus antiquitas), quam vel usu iam vel doctrina vel vetustate immu-
tatam uidemus; retinetur autem et ad opinionem vulgi et ad magnas utilitates rei publicae
mos, religio, disciplina, ius augurium, collegio auctoritas (‘ “To argue against auspices is
a hard thing”, you say, “for an augur to do.” Yes, for a Marsian, perhaps; but very easy
for a Roman. For we Roman augurs are not the sort of augurs who foretell the future by
observing the flights of the birds and the other signs. And yet I believe that Romulus,
who founded the city by direction of the auspices, believed that augury was an art useful
in seeing things to come, for the ancients had erroneous views on many subjects; but we
see that the art has undergone a change, due to experience, education, or the long lapse
of time. However, out of respect for the opinion of the masses and because of the great
service to the state the augural practices, discipline, religious rites, laws and the authority
of the augural college are maintained’).
19 The vates who were active in Republican Rome produced prophecies too, but they

were seldom acknowledged or included within the institutional framework of public

divination: cf. the notable exception of the carmina Marciana in Livy, Ab urbe condita
..
 law and divination in the late roman republic 

which are warnings, or signs that an action is permitted by the gods. They
do not reveal the verdict of fate or anticipate the outcome of any action.
This passage is only a moment in a lively and complex technical debate.
Cicero developed the topic at greater length in a work that he appears to
have devoted to the problem, a De auguriis.20 Cicero does not refer to
it in the De divinatione, and the discussion of augural science is closed
by a quick promise to deal with the problem more fully on another
occasion; this probably means that the treatise was still unpublished in
 bc, or even that it had yet to be written. At any rate, it is certain that
Cicero was gathering detailed information on the topic as early as in ,
during his governorship in Cilicia, when he wrote to his fellow augur
Appius Claudius Pulcher and asked to send him a copy of his work on
the augurate.21
The outcome of that background research may be found in an impor-
tant passage of the De legibus (.–), when Atticus explicitly says that
some members of the augural college think that the auspices exist only
for the sake of the Republic, while others claim that they are basically on
a par with divination (disciplina vestra quasi divinare videatur posse).22

20 Evidence for Cicero’s De auguriis: Cicero, De divinatione .; Cicero, Ad familiares

... On the late Republican literature on augury and auspices see Harries, Cicero and
the Jurists, pp. –.
21 Cicero, De divinatione .–; Ad familiares .. (written from Laodicea in  bc).

Cicero had already received what seems to be the first part of the work in June  bc (illo
libro augurali), which bore a dedication to him: Ad familiares ...
22 Cicero, De legibus .–. Atticus: sed est in conlegio vestro inter Marcellum et

Appium optimos augures magna dissensio—nam eorum ego in libros incidi—, cum alteri
placeat auspicia ista ad utilitatem esse rei publicae composita, alteri disciplina vestra quasi
divinari videatur posse. hac tu de re quaero quid sentias. Marcus: egone? divinationem,
quam Graeci mantiken appellant, esse sentio, et huius hanc ipsam partem quae est in avibus
ceterisque signis quod disciplinae nostrae. si enim deos esse concedimus, eorumque mente
mundum regi, et eosdem hominum consulere generi, et posse nobis signa rerum futurarum
ostendere, non video cur esse diuinationem negem. sunt autem ea quae posui, ex quibus id
quod volumus efficitur et cogitur. iam vero permultorum exemplorum et nostra est plena res
publica et omnia regna omnesque populi cunctaeque gentes, ex augurum praedictis multa
incredibiliter vera cecidisse . . . nec vero Romulus noster auspicato urbem condidisset, neque
Atti Navi nomen memoria floreret tam diu, nisi omnes hi multa ad veritatem admirabilia
dixissent. sed dubium non est quin haec disciplina et ars augurum evanuerit iam et vetustate
et neglegentia. ita neque illi adsentior qui hanc scientiam negat umquam in nostro collegio
fuisse, neque illi qui esse etiam nunc putat. quae mihi videtur apud maiores fuisse duplex, ut
ad rei publicae tempus non numquam, ad agendi consilium saepissime pertineret (Atticus:
‘. . . but there is great disagreement in your college between Marcellus and Appius, both
excellent augurs; for I have consulted their books and find that the one thinks that those
auspices were invented to be of practical use to the State, while the other believes that your
art is really capable of divination in some degree. I should like to have your opinion on this
 federico santangelo

Cicero’s answer is complex, and appears at first sight to be at odds with the
view expressed in De divinatione, : divination does exist, and observing
the flight of birds is an aspect of it, and one of the prerogatives of augury.
However, the augural lore (disciplina et ars augurum) has gone through
a clear decline over the centuries—et vetustate et neglegentia. Therefore,
augury no longer has a divinatory remit, despite what his fellow-augur
Appius thinks, although it used to, despite what Marcellus, another mem-
ber of the college, believes. The contradiction with the De divinatione is
not very deep after all. Cicero clearly says that he is not involved in div-
inatory practices; the interpretation of augury in the past is only partly
significant, and fits well in the celebration of early Rome that is typical of
the De legibus. Secondly, the general scope and purpose of the De legibus
must be borne in mind. It is a work that sets out to lay down a series of
principles, rules, and institutions for an ideal community; Cicero thinks
that the augurate is a valuable institution, and needs to justify its existence
using more positive arguments than those he uses in the De divinatione.
The statement in support of the existence of divination is not surprising
either. The De legibus is a work in which the theme of consensus and con-
cord is forcefully set out, as one might expect to be the case in a work that
is supposed to set out general rules; in this context it is not surprising that
Cicero chose not to pursue a divisive issue, and provided a generic praise
of divination. Moreover, it should not be forgotten that there is no evi-
dence that the De legibus was published during Cicero’s lifetime, while
it is certain that the De divinatione was. What has often been seen as a

matter.’ Marcus: ‘My opinion? I feel that an art of divination, called mantike by the Greeks,
really exists, and that a branch of it is that particular art which deals with the observation
of birds and other signs—this branch belonging to our Roman science of augury. For
if we admit that gods exist, and that the universe is ruled by their will, that they are
mindful of the human race, and that they have the power to give us indications of future
events, then I do not see any reason for denying the existence of divination . . . Moreover,
the records of our Republic, as well as those of all kingdoms, peoples and races, are full
of a multitude of instances of the marvellous confirmation of the predictions of augurs
by subsequent events . . . Nor indeed would our own Romulus have taken the auspices
before founding Rome, nor would the name of Attius Navius have been remembered all
these years, had not all these people made many prophecies which were in remarkable
agreement with the truth. But there is no doubt that this art and science of the augurs
has by now faded out of existence on account of the passage of time and men’s neglect.
Therefore I cannot agree with Marcellus, who denies that this art was ever possessed
by our college, nor do I subscribe to Appius’ opinion that we still possess it. What I
believe is that among our ancestors it had a double use, being occasionally employed in
political crises, but most often in deciding on a course of action’, trans. Clinton W. Keyes,
modified).
 law and divination in the late roman republic 

contradiction in Cicero’s views on augury was not perceived as such by

his contemporaries, and it may well be regarded, after all, as just a later
development of Cicero’s approach to the problem. The years that separate
the beginning of the composition of the De legibus from that of De div-
inatione were extremely intense for Cicero, and had a very serious impact
on him. Hence the difference in approach.

. Divinatio

Unsurprisingly, Cicero makes widespread use of the word divinatio in

the De divinatione. Most importantly, he provides a definition of what
the word means in this context at the very beginning of book one:
divinationem, quam Graeci mantiken appellant, id est praesensionem et
scientiam rerum futurarum.23 To a large extent, what we mean by Roman
divination still falls within this definition, and is an outcome of Cicero’s
construction of divinatio. Much of the ambiguity that we find in the
earlier occurrences of the word divinatio in Cicero’s work is reduced,
even neutralised by this definition. First of all, a clear Greek parallel is
produced: mantike, the art of the Greek diviners and soothsayers. The
etymological and conceptual link between divination and gods is not
matched by the Greek parallel, and it is not in the forefront. Divination
is a method that brings about an anticipated perception of the future:
praesensio does not entail the use of logical categories. But it would be
reductive to confine it to this sphere. Divination is also a fully legitimate
form of knowledge: it is a scientia.
The history of the noun divinatio is instructive. It does not appear
before Cicero, and its presence in post-Ciceronian authors is rather
sporadic. It is certainly not comparable to the place that divination has
in Roman culture. The verb divinare appears already in Plautus, in a
context that is quite instructive. Pyrgopolinikes is hiding in a room,

23 Cicero, De divinatione .: vetus opinio est iam usque ab heroicis ducta temporibus,

eaque et populi Romani et omnium gentium firmata consensu, versari quandam inter
homines divinationem, quam Graeci mantiken appellant, id est praesensionem et scientiam
rerum futurarum. magnifica quaedam res et salutaris, si modo est ulla, quaque proxime ad
deorum vim natura mortalis possit accedere (‘There is an ancient belief, handed down to us
even from mythical times and firmly established by the general agreement of the Roman
people and of all nations, that divination of some kind exists among men; this the Greeks
call mantike—that is, the foresight and knowledge of future events. A really splendid and
helpful thing it is—if only such a faculty exists—since by its means men may approach
very near to the power of gods’, trans. William A. Falconer).
 federico santangelo

and Acroteleutium recognises his presence just by noticing his smell

in the room. The miles gloriosus says to himself (Mil. ): quia me
amat, propterea Venus fecit eam ut divinaret. The ability to guess derives
from a form of divine inspiration: even in a context of mockery, the
basic concept behind the act of divining is enunciated very clearly. It is
apparent, at the same time, that the verb divinare already has a twofold
meaning: it can be used to refer to a divinely inspired guess, which may
be predictive too, or it can simply be referred to a very clever guess. One
should not read too much into the occasional use of divinare in a comic
context; on the other hand, it is quite clear that the complex meaning
of the verb was already clear to Plautus, and surely to his audience. We
cannot tell to what extent this awareness already entailed some sort of
critical reflection about the scope and the limits of divination.
The meaning of divinare as “making a difficult guess” appears in a
passing reference in Terence’s Hecyra: plane hic divinat (: “it’s clear
that he guesses right”). It also occurs in a reference that Cicero makes
in the Pro Quinctio, his earliest speech preserved, in which he attacks
Naevius’ way of guessing the intentions of Quinctius: “At what time,
Naevius, do you think Quinctius ought to have been defended in his
absence, or how? Then, when you demanded leave to take possession
of his goods? No one was present, for no one could guess (neque enim
quisquam divinare poterat) that you were going to make such a demand;
nor did it concern anyone to object to that which the praetor ordered not
to be done absolutely, but to be done according to his edict.”24 In this case,
there is a different emphasis on the use of the word—almost a scathing
touch. No one could have reasonably guessed Naevius’ intentions; only a
diviner could have done so.
In a legal context divinare can even have an openly negative conno-
tation. In the Pro Plancio, Cicero blames his counterpart Laterensis for
refusing to have a trial before a panel of judges who could express an
informed opinion on the case. The judges who heard the case were men

24 Cicero, Pro Quinctio .–: quo tempore existimas oportuisse, Naevi, absentem

Quinctium defendi aut quo modo? tum cum postulabas ut bona possideres? nemo adfuit;
neque enim quisquam divinare poterat te postulaturum, neque quemquam attinebat id
recusare quod praetor non fieri, sed ex edicto suo fieri iubebat (‘At what time, Naevius,
do you think Quinctius ought to have been defended in his absence, or how? Then, when
you were demanding leave to take possession of his goods? No one was present, for no
one could guess (divinare) that you were going to make such a demand; nor did it concern
any one to object to that which the praetor ordered not to be done absolutely, but to be
done according to his edict’, trans. Charles D. Yonge).
 law and divination in the late roman republic 

from a different tribe, and could not express a fully informed judge-
ment, because they were not aware of all the circumstances of the case:
they would have to proceed by a divinatory method, rather than using
the information that men of their standing needed in order to make an
informed decision. The wording is quite strong: cur denique se divinare
malueris quam eos qui scirent iudicare?25 It seems that in a judicial context
the ability to “divine” the future is considered an unreasonable expecta-
tion. There are other passages in which Cicero explores the blurry bound-
ary between conjecture and divination: he does it in the Pro Cluentio
and, more openly, in the De inventione, in a passage where he discusses
the limits of ratiocinatio and the interpretation of poorly drafted legal
texts.26
The word divinatio was also a specific legal term: it was used to define
a specific sort of judiciary speech, which was given by a prospective pros-
ecutor before the jury, in order to prove his credentials and be assigned
the task of prosecuting the defendant. Only one divinatio survives, the
divinatio in Q. Caecilium, a speech that Cicero gave before the Verres
trial, in which he attacked Verres’ quaestor Q. Caecilius and gave a sum-
mary of the crimes of Caecilius and Verres, along with a summary of
his own credentials. Suetonius still had access to the divinatio that Cae-
sar delivered in  bc in order to obtain the prosecution of Cn. Cornelius
Dolabella (cos.  bc), a former governor of Macedonia who was accused
of a number of offences against the provincials; according to the biogra-
pher, a significant part of the speech derived from the famous oration of
Strabo Caesar for the people of Sardes.27 It is not surprising that a div-
inatio would be heavily indebted to earlier speeches: it was not about the
evidence that would be discussed in the case, but about the rhetorical
ability of the prospective accuser.
Although we do not have a great deal of ancient evidence for this
kind of speech, we have a number of attempts to define what a divina-
tio was, and to explain the etymology of the word. The starting point
must be Quintilian’s brief reference to divinationes, where he mentions
Cicero’s cause célèbre and his straightforward approach to the speech. In

25 Cicero, Pro Plancio .: ‘why you prefer having them to proceed by guesswork

(divinare), rather than those men to decide who had means of knowing the truth?’ (trans.
Charles D. Yonge).
26 Cicero, Pro Cluentio  and ; Cicero, De inventione .. See also Cicero, Pro

Roscio Amerino ; Pro Tullio ; Pro Rabirio ..

27 Suetonius, Divus Julius .. On Dolabella’s trial, see Erich S. Gruen, “The Dolabel-

lae and Sulla”, American Journal of Philology  (), pp. –, at pp. –.
 federico santangelo

Cicero’s view, the main aim of a speech de accusatore constituendo (‘on the
designation of the accuser) must be to prove that a given prosecutor is the
most suitable choice for the party that is launching the prosecution, and
the least desirable one for the defendant.28 Quintilian takes a different
line, and argues that the main concerns must be different: why someone
is keen to act as an accuser on a given case; whether he would be the
strongest patron for a given case; whether he would come across as an
honest prosecutor. In this case, the discussion of divinatio is developed
entirely from the point of view of the jury that must pick the accuser; the
uncertain aspects of the undertaking are emphasised.
More usefully for our purposes, Aulus Gellius offers some informed
speculation about the etymology of the word.29 According to Gavius

28 Quintilian, De institutione oratoria ..: de accusatore constituendo, quae iudicia

divinationes uocantur: in quo genere Cicero quidem, qui mandantibus sociis Verrem defere-
bat, hac usus est divisione: spectandum a quo maxime agi velint ii quorum de ultione quaer-
itur, a quo minime velit is qui accusatur (‘There are cases concerned with the appointment
of a prosecutor, which are known as divinationes. In this connection Cicero, who was
indicting Verres on the instruction of our Sicilian allies, adopts the following division—
to the effect that the main point for consideration is, by whom those the redress of whose
wrongs forms the subject of the trial would prefer to be represented, and by whom the
accused would least desire them to be represented’, trans. Harold E. Butler).
29 Gellius, Noctes Atticae ..: quam ob causam Gavius Bassus genus quoddam iudicii

‘divinationem’ appellari scripserit; et quam alii causam eiusdem vocabuli dixerint. cum de
constituendo accusatore quaeritur iudiciumque super ea re redditur, cuinam potissimum
ex duobus pluribusve accusatio subscriptiove in reum permittatur, ea res atque iudicum
cognitio ‘divinatio’ appellatur. id vocabulum quam ob causam ita factum sit, quaeri solet.
Gavius Bassus in tertio librorum, quos de origine vocabulorum composuit: ‘divinatio’ inquit
‘iudicium appellatur, quoniam divinet quodammodo iudex oportet, quam sententiam sese
ferre par sit.’ nimis quidem est in uerbis Gaui Bassi ratio inperfecta uel magis inops et ieiuna.
sed videtur tamen significare velle idcirco dici ‘divinationem’, quod in aliis quidem causis
iudex ea, quae didicit quaeque argumentis vel testibus demonstrata sunt, sequi solet, in hac
autem re, cum eligendus accusator est, parva admodum et exilia sunt, quibus moveri iudex
possit, et propterea, quinam magis ad accusandum idoneus sit, quasi divinandum est. hoc
Bassus. sed alii quidam ‘divinationem’ esse appellatam putant, quoniam, cum accusator et
reus duae res quasi cognatae coniunctaeque sint neque utra sine altera constare possit, in
hoc tamen genere causae reus quidem iam est, sed accusator nondum est, et idcirco, quod
adhuc usque deest et latet, divinatione supplendum est, quisnam sit accusator futurus (‘The
reason given by Gavius Bassus for calling a certain kind of judicial inquiry divinatio; and
the explanation that others have given of the same term. When inquiry is made about the
choice of a prosecutor, and judgment is rendered on the question to which of two or more
persons the prosecution of a defendant, or a share in the prosecution, is to be entrusted,
this process and examination by jurors is called divinatio. The reason for the use of this
term is a matter of frequent inquiry. Gavius Bassus, in the third book of his work On the
Origin of Terms, says: “This kind of trial is called divinatio because the juror ought in a
sense to divine what verdict it is proper for him to give.” The explanation offered in these
words of Gavius Bassus is far from complete, or rather, it is inadequate and meagre. But
 law and divination in the late roman republic 

Bassus’ De origine vocabulorum, the term derived from the nature of the
judgment that was expected from the jurors: they had to divine what the
best choice would be. Gellius notes that this definition is partly correct, as
the evidence that the jurors can rely upon is so meagre that their decision
may be compared to a divinatory act. He also adds, however, that the
word divinatio may have a different origin: since accuser and defendant
are both integral to the trial, and the one cannot exist without the other,
in the phase preceding the trial the figure of the prosecutor, who has not
been appointed yet, has to be supplied by divination—imagining that a
prosecutor is actually in place.
Pseudo-Asconius has a much more straightforward, and surely more
interesting definition.30 According to the anonymous commentator, who
gives some introductory remarks on the divinatio in Q. Caecilium that
opens the corpus of the Verrines, divinatio is a specific sub-genre of ora-
tory. He then goes on to list several theories about the etymology of
the word, which are in fact relevant for the interpretation of the exer-
cise itself. Stangl may well have been right in noting that the nature of
pseudo-Asconius’ work is compilatory, but it is precisely to this readi-
ness to record different definitions that we owe the mention of these

at least he seems to be trying to show that divinatio is used because in other trials it was
the habit of the juror to be influenced by what he has heard and by what has been shown
by evidence or by witnesses; but in this instance, when a prosecutor is to be selected,
the considerations which can influence a juror are very few and slight, and therefore he
must, so to speak, ‘divine’ what man is the better fitted to make the accusation. Thus
Bassus. But some others think that the divinatio is so called because, while prosecutor and
defendant are two things that are, as it were, related and connected, so that neither can
exist without the other, yet in this form of trial, while there is already a defendant, there is
as yet no prosecutor, and therefore the factor which is still lacking and unknown—namely,
what man is to be the prosecutor—must be supplied by divination’, trans. John C. Rolfe).
Cf. the entry on divinatio in Robert Maltby, A Lexicon of Ancient Latin Etymologies,
ARCA Classical and Medieval Texts, Papers and Monographs  (Leeds, ), pp. –
.
30 Pseudo-Asconius,  Stangl: divinatio dicitur haec oratio, quia non de facto quaer-

itur et coniectura, sed de futuro, quae est divinatio, uter debeat accusare. alii ideo putant
divinationem dici, quod iniurati iudices in hac causa sedeant, ut, quod velint, praesentire
de utroque possint; alii, quod res agatur sine testibus, et sine tabulis, et his remotis, argu-
menta sola sequantur iudices, et quasi divinent (‘This speech is called divinatio, because
it proceeds by conjecture and does not deal with facts, but it deals with the future, as to
who is supposed to lead the prosecution. Others think that it is called divinatio, because
the judges sit on this case without having taken an oath, so that they can get whatever
impression they may be able to form about both accusers. Others argue that, since the
matter is discussed without witnesses and without written evidence, and indeed far away
from that sort of material, the judges follow only the arguments, and almost divine’).
 federico santangelo

theories.31 According to some, who held a view that was very close to that
of Gavius Bassus and Gellius, the speech was an exercise in divination,
because it would have been an informed speculation on the future devel-
opment of the trial, and on the person who would be entrusted with the
prosecution. According to others, the emphasis was on the judges. The
word supposedly derived from the fact that the judges would be listening
to the prospective accusers’ cases without having taken an oath, in order
to be able to form whatever opinion they may want about them. The div-
inatory nature of this exercise is confirmed by the use of the verb praesen-
tire: according to Cicero’s working definition at the beginning of the De
divinatione, divinatio is a praedictio (prediction) and a praesensio (pre-
sentiment) of things that are usually deemed fortuitous. A third group
of interpreters agreed in an important respect, in that the etymology of
the word derived from the nature of the task of the judges: they have the
difficult task of deciding who could be the best prosecutor, despite not
having any evidence before their eyes. They are compelled to follow the
arguments of the orators, and they cannot base their judgement on any-
thing else but them. In this respect their exercise is comparable to a form
of divination. It is not far-fetched to see a negative slant on divination in
this definition. At any rate, it is pretty clear that the role of the diviner and
that of the judge are regarded, according to this definition, as very differ-
ent practices. The judge is supposed to rely on solid evidence; the diviner
is not. We should perhaps not pursue this approach too closely; we have
already seen a series of examples for the use of the general meaning of
divination. However, it is important to note that the analogy between the
diviner and the judge has often been made in a number of cultures, and
has often been observed in anthropological literature. We have no evi-
dence that it was ever explicitly made by any Roman intellectual, except
for this definition of divinatio.
The contrast between the working definition that Cicero gives at the
beginning of De divinatione and the passage of the Pro Plancio where
the knowledge of the diviners is explicitly opposed to that of those who
really have an informed knowledge of a case could hardly be stronger. The
sharp difference of contexts explains the apparent contradiction; there is
no point in trying to solve it. It is, if anything, a clear sign of the complex-

31 Thomas Stangl, Pseudoasconiana. Textgestaltung und Sprache der anonymen Scho-

lien zu Ciceros vier ersten Verrinen auf Grund der erstmals verwerteten ältesten Hand-
schriften, Studien zur Geschichte und Kultur des Altertums .– (Paderborn, ),
p. .
 law and divination in the late roman republic 

ity of the meaning of this word, and of the variety of contexts in which it
could be used: it could range from a vague reference to guesswork, more
or less informed, down to wild speculation, and to divinatory experience.

. Prudentia, Prudens, and Prudentes

The concept of prudentia is in many ways coterminous to divinatio. The

occurrences of prudentia are much more numerous than those of divina-
tio:  in Cicero alone. There are obvious reasons for that: prudentia is a
philosophical concept, one of the most significant virtues, and a personal
quality, which applies very well to the political domain. It may be even
barely more than a by-word for intelligence, or wisdom. With his usual
keenness for identifying Greek parallels for Latin concepts, Cicero noted
that it was the Latin equivalent of phronesis. This is surely a good trans-
lation, but it does not do justice to the obvious relevance that prudentia
can have to divinatory matters: it derives from pro-videre, from “seeing
before, seeing ahead”.
Some passages show that this association was still seen and understood
by some.32 A full survey of this problem does not fall within the remit
of this paper, but I would like to concentrate on a passage of Cicero’s
De haruspicum responsis which shows some of the potential line of con-
tact between divinatio and prudentia. As he embarks upon his state-
ment of loyalty to the main tenets of public divination, Cicero acknowl-
edges the importance of the lesson of the ancestors, who have created
the framework within which divination can make its contribution to
the welfare of the State.33 Cicero introduces his statement with several
terms that evoke concepts of prediction and foresight: the ancestors were

32 See Maltby, Lexicon, p. .

33 Cicero, De haruspicum responsis : ego vero primum habeo auctores ac magistros
religionum colendarum maiores nostros, quorum mihi tanta fuisse sapientia videtur ut satis
superque prudentes sint qui illorum prudentiam non dicam adsequi, sed quanta fuerit
perspicere possint; qui statas sollemnisque caerimonias pontificatu, rerum bene gerundarum
auctoritates augurio, fatorum veteres praedictiones Apollinis vatum libris, portentorum
expiationes Etruscorum disciplina contineri putaverunt; quae quidem tanta est ut nostra
memoria primum Italici belli funesta illa principia, post Sullani Cinnanique temporis
extremum paene discrimen, tum hanc recentem urbis inflammandae delendique imperi
coniurationem non obscure nobis paulo ante praedixerint (the terms that refer directly
to prediction and divination are in bold: ‘But in the first place, I have our ancestors as
my leaders and tutors in paying proper respect to religion—men whose wisdom appears
to me to have been so great, that those men are sufficiently, and more than sufficiently
prudent, who are able—I will not say to equal their prudence, but to be thoroughly
 federico santangelo

prudentes, because they decided to put in place a range of divinatory

practices; Cicero says that, while he cannot hope to equal their prudentia,
he is fully aware of the contribution that it has made to the welfare
of the State. The list that follows confirms the impression that Cicero
is playing on the etymological implication of prudentia: the prophecies
of the Sibylline books are called fatorum veteres praedictiones, and the
haruspices are praised, a few lines below, for having clearly predicted
the recent political developments. However, the praise for the rewards of
divination is not unqualified. The foresight of the ancestors is celebrated
because they decided to limit the potential options of their divinatory
practices. The emphasis is on contineri: augury sets a limit on the use of
power, the Sibylline books provide a framework for ancient prophetic
utterances, and the Etruscan discipline sets rules for the expiation of
prodigies. Cicero certainly gives a favourable assessment of the role of
public divination, but he qualifies it by saying that there is no orderly
and meaningful divination without prudentia—without a sound set of
checks and balances or ultimately without a range of political and legal
practices. In fact, divination is useful and makes sense only because it is
included within a specific and well-established legal framework.
The history of the adjective prudens follows similar lines to that of the
noun prudentia, and its translation is equally problematic.34 Occasionally,
however, we see a reminiscence of the suggestive etymology of the word
resurfacing: in a letter written to Plancius in October , Cicero recalls
his efforts to avoid the civil war and the scepticism that his initiatives met
in the optimate circles.35 His peers failed to realise that his attempt would

aware how great it was; who thought that the stated and regular ceremonies were provided
for by the establishment of the pontificate, that due authority for the performance of all
actions was to be derived from the auspices, that the ancient prophecies of our destinies
were contained in the books of the prophets of Apollo, and the explanations of prodigies
in the doctrine of the Etruscans; and this last is of such weight that within our own
recollection they have predicted to us in no obscure language, first of all those fatal
beginnings of the Italian war, and after that the imminent danger and almost destruction
of the time of Sulla and Cinna, and very lately this recent conspiracy for burning the city
and destroying the empire’, trans. Charles D. Yonge, modified).
34 Maltby, Lexicon, p. .
35 Cicero, Ad familiares ..: quibus si vicissent ii, ad quos ego pacis spe, non belli

cupiditate adductus accesseram, tamen intelligebam, et iratorum hominum et cupidorum

et insolentium quam crudelis esset futura victoria, sin autem victi essent, quantus inter-
itus esset futurus civium partim amplissimorum, partim etiam optimorum, qui me haec
praedicentem atque optime consulentem saluti suae malebant nimium timidum quam satis
prudentem existimari (‘For if those that I have been drawn to join not by any desire for
war, but by a hope for peace, had proved victorious by means of arms, I was none the less
 law and divination in the late roman republic 

have avoided an unprecedented bloodshed: far from being fearful, he was

prudens. What is very interesting is the proximity, not attested elsewhere,
of prudens (wise, but also able to see ahead) and praedicere.
The adjective prudens can be used in a legal sense too—indeed, it
became a legal category of sorts quite early in the development of Roman
jurisprudence. One of the most important responses of the jurist Q.
Mucius Scaevola (cos.  bc) dealt with an important religious issue:
whether the praetor who carried out business on a dies nefastus should
be deemed guilty of a religious crime. The view was that a religious
breach could be expiated with a sacrifice if the praetor had violated
the prohibition unintentionally (imprudens); however, if the violation
had been intentional (si prudens dixit), the offence was not expiable.36
The word prudens is very suitable to convey the concept of a delib-
erate action: it indicates the conduct of someone who is aware of the
implications of an action, and can foresee its consequences. Scaevola
is here applying a general principle, which is of capital importance

aware how sanguinary was bound to be the victory of men so angry, so rapacious, and so
arrogant; and if on the other hand they were to be defeated, how crushing was bound to be
the ruin of my fellow-citizens, some of them men of the highest rank, others of the highest
character too, but who, when I foretold all this and recommended the wisest measures for
their safety, preferred to regard me as unduly timid rather than appropriately prudent’).
36 Varro, De lingua Latina ..: praetor qui tum fatus est, si imprudens fecit, piaculari

hostia facta piatur; si prudens dixit, Quintus Mucius aiebat eum expiari ut impium
non posse (‘The praetor who spoke on that day can purify himself by sacrificing an
expiatory victim, provided that he made an honest mistake. If he deliberately misspoke,
Quintus Mucius affirms that he cannot purify himself in any way, like someone who
has committed an impious act’, trans. Maurizio Bettini). Cf. also Macrobius, Saturnalia
..–: adfirmabant autem sacerdotes pollui ferias, si indictis conceptisque opus aliquod
fieret. praeterea regem sacrorum flaminesque non licebat videre feriis opus fieri: et ideo per
praeconem denuntiabant, ne quid tale ageretur, et praecepti neglegens multabatur. praeter
multam vero adfirmabatur eum qui talibus diebus inprudens aliquid egisset porco piaculum
dare debere: prudentem expiare non posse Scaevola pontifex adseverabat: sed Umbro negat
eum pollui qui opus vel ad deos pertinens sacrorumve causa fecisset uel aliquid urgentem
vitae utilitatem respiciens actitasset. Scaevola denique consultus, quid feriis agi liceret,
respondit: quod praetermissum noceret (‘The priests used to maintain that a rest day was
desecrated if, after it had been duly promulgated and proclaimed, any work was done on
it. Furthermore, the high priest and the flamens might not see work in progress on a rest
day, and for this reason they would give public warning by a herald that nothing of the
sort should be done. Neglect of this command was punished by a fine, and it was said
that one who had inadvertently done any work on such days had, in addition to the fine,
to make atonement by the sacrifice of a pig. For work done intentionally no atonement
could be made, according to the pontiff Scaevola; but Umbro says that to have done work
that concerns the gods or is connected with a religious ceremony, or any work of urgent
and vital importance does not defile the doer’, trans. Percival V. Davies).
 federico santangelo

to the formation of a systematic discourse on legal matters. His interest

in setting general guidelines based on some abstract theoretical tenets
is indirectly confirmed by the point which he made in the same context
that there was another important exception to the prohibition on doing
business on a dies nefastus: anything that would have been harmful not
to do on that particular day had to be attended to. This response is
the symptom of the emergence of a new method. On the one hand, it
is possible to see an effort to devise more sensible solutions that can
facilitate the handling of religious and political business; on the other
hand, there is an attempt to set general principles that can have wide-
ranging implications.37 Indeed, there is evidence for the later use of the
term prudens in legal texts, not just with reference to intentional criminal
behaviour, but also indicating a standard of liability and, more generally,
qualifying someone who is drawing up a will or is making a promise by
stipulation.38
Another use of prudens, however, is even more interesting for our
purposes. We can see in Plautus that the adjective may be accompanied
by the genitive to refer to a kind of knowledge or foresight that is applied
to a specific form of knowledge.39 This use is frequent, sometimes with
the genitive, sometimes with the ablative, and it consistently defines
a form of practical knowledge, an understanding of situations. This
meaning is widely attested, again from the first century bc onwards,
and with a variety of associations: in Cicero’s pro Quinctio, the pater
familias is ceterarum rerum et prudens et attentus (); Nepos’ Conon
is an excellent military commander, because he is prudens rei militaris et
diligens (.); according to Tacitus (Ann. .), Tiberius was occasionally
able to restrain his customary rage and to use some restraint—he was
prudens moderandi. When the mythographer Hyginus touches upon the
figure of Idmon from Argus, the first Argonaut who died during the

37 On this passage see, John Scheid, “Oral Tradition and Written Tradition in the

Formation of Sacred Law in Rome,” in Religion and Law in Classical and Christian
Rome, eds. Clifford Ando and Jörg Rüpke (Stuttgart, ), pp. – and Olga Tellegen-
Couperus’ contribution in this volume. See also, from a different angle, Maurizio Bettini,
“Weighty Words, Suspect Speech: fari in Roman Culture,” Arethusa  (), pp. –
, at pp. –.
38 Gellius, Noctes Atticae .. (quoting Labeo’s treatise on the Twelve Tables). See

also Q. Cervidius Scaevola in Digesta .. on the testator, and Iavolenus in Digesta
... (quoting Labeo) on stipulation; a comprehensive inventory of references in
Vocabularium iurisprudentiae Romanae . / , ed. Marianne Meinhart (Berlin-New York,
), pp. –.
39 E.g. Plautus, Captiva , where prudens boni is used in opposition to insciens boni.
 law and divination in the late roman republic 

expedition, he notes that he was able to foresee his death by looking at

the flight of birds, and yet decided to join the expedition. Hyginus stresses
that Idmon had a divinatory expertise (augurio prudens).40
The word augurium is here used in the more general sense of “fac-
ulty of divination”.41 The use of prudens is also very interesting in sev-
eral respects. Hyginus worked in the Augustan period, and he knew that
by that time the word prudens was customarily associated with forms
of knowledge that had to do with the religious, and indeed the juridical
sphere. He also knew, of course, that from Cicero’s generation (at the lat-
est: there may be earlier attestations that are lost to us) the adjective pru-
dens could sometimes be used as a noun. Arguably, its original meaning
was very close to that of the adjective: the prudens is an expert, someone
who has a special knowledge on a certain issue. This is the meaning that
we encounter at the beginning of the Orator, for instance, where Cicero
mentions the criticism that may come from learned and wise men (.:
reprehensionem doctorum atque prudentium). This definition of prudens
as “the person who knows” soon became part of the legal jargon.42 The
role of the responsa prudentium in Gaius’ division of the constituent parts
of Roman law is well-known: the prudentes are those who are able to talk
about legal matters and to give informed and binding opinions about it.43
If the views of two prudentes on a certain matter are the same, a judge
will be expected to follow that consensus; if there is disagreement, the
judge will be at liberty to choose the course of action that he finds most
suitable. Gaius’ reflection is deeply rooted in a second-century ad con-
text, in which the power of the emperor provides the only framework

40 Hyginus, Fabulae ..

41 Virgil, Aeneis .; Ovid, Metamorphoses ..
42 Jan W. Tellegen—Olga E. Tellegen-Couperus, “Law and Rhetoric in the causa

Curiana,” Orbis Iuris Romani  (), pp. –, esp. pp. – offer a lucid
demonstration of why the analogy between Roman lawyers (iurisprudentes, iurisperiti
and iureconsulti) and modern Fachjuristen is not tenable.
43 Gaius, Institiones .: constant autem iura populi Romani ex legibus, plebiscitis, sen-

atus consultis, constitutionibus principum, edictis eorum, qui ius edicendi habent, responsis
prudentium (‘Roman law consists of statutes, plebiscites, senatusconsulta, constitutions of
the emperors, edicts of magistrates authorized to issue them, and responses of jurists’);
.: responsa prudentium sunt sententiae et opiniones eorum, quibus permissum est iura
condere. quorum omnium si in unum sententiae concurrunt, id, quod ita sentiunt, legis
uicem optinet; si uero dissentiunt, iudici licet quam uelit sententiam sequi; idque rescripto
diui Hadriani significatur (‘The responses of jurists are the decisions and opinions of per-
sons authorized to lay down the law. If they are unanimous their decision has the force of
law; if they disagree, the judge may follow whichever opinion he chooses, as is ruled by a
rescript of the late emperor Hadrian’).
 federico santangelo

within which the solution of legal disputes can take place: the lawyers
can express their opinions because they have been allowed to do so by the
emperor.44 However, the core of the discussion is rooted in a much earlier
learned dispute: Gaius’ exercise is an attempt to offer a list of the sources
of the law and to contribute to a tradition that had started in the early
first century bc, with the attempts to identify the components of ius in
the Rhetorica ad Herennium, and in Cicero’s De inventione and Topica.45
The debate on the partes iuris continued throughout the late Republic and
the early Principate, and the acknowledgement of the role of the lawyers
should probably be seen as a consequence of the increasingly significant
role of precedents in the late Republican discussions.
Again, one could think of parallels in the divinatory practice. Prece-
dents had a significant role in the main areas of Roman public divina-
tion. The haruspices based their responses on a disciplina, a set of the-
oretical knowledge that was also codified in a number of texts (none of
which survives) and was taught under the patronage of the Roman gov-
ernment. The Sibylline Books and the rituals that were performed by the
decemviri s.f. relied on a similar set of expertise: John Scheid has aptly
called into play the concept of “jurisprudence divinatoire”.46 The same
principle applies to the work of re-assembling the material that ended
up in the new corpus of the Books after the fire of  bc: gathering the
texts from a number of communities in Italy and beyond (notably Ery-
thrae in Asia Minor), and establishing which ones were eligible to be
included in the new collection implied a knowledge of the precedents.
Finally, the very procedure that led to the handling and the expiation of
prodigies implied an expert knowledge which encompassed the relevant
precedents. It is not always clear what criteria the Senate used to decide

44 Some recent discussions of the ius respondendi (all referring to earlier bibliography):

Olga Tellegen-Couperus, A Short History of Roman Law (London-New York, ),

pp. –; Aldo Schiavone, IUS. L’ invenzione del diritto in Occidente (Biblioteca di cultura
storica ) (Turin, ), pp. – (esp. : “si respira un’aria già da tardoantico”);
Tessa G. Leesen, Gaius Meets Cicero. Law and Rhetoric in the School Controversies, Legal
History Library  (Leiden-Boston, ), pp. –; Kaius Tuori, “A Place for Jurists in
the Spaces of Justice,” in Spaces of Justice in the Roman World, ed. Francesco de Angelis,
Columbia Studies in the Classical Tradition  (Leiden-Boston, ), pp. –, at –
.
45 See Jean-Louis Ferrary, “Le droit naturel dans les exposés sur les parties du droit

des traités de rhétorique,” in Testi e problemi del giusnaturalismo romano, eds. Dario
Mantovani and Aldo Schiavone, Pubblicazioni del Cedant  (Pavia, ), pp. –.
46 John Scheid, “Les Livres Sibyllins et les archives des quindécemvirs,” in La Mémoire

perdue. Recherches sur l’ administration romaine, ed. Claude Moatti (Rome, ), pp. –
, at p. .
 law and divination in the late roman republic 

whether the haruspices or the (quin)decemviri had to be consulted. It

appears that the (quin)decemviri and the Sibylline books were consulted
when a set of prodigies had occurred, while the haruspices were usually
consulted when a response was needed on a single, specific occurrence—
but this principle applies to the period between  and , which is
covered by Livy’s narrative, and less so to the rest of the second and first
centuries bc, when the role of the haruspices became more prominent.47
Establishing a clear pattern is problematic, but it is clear that the proce-
dure that led to the expiation of a prodigy had legal implications, and that
a set of practices was indeed established.
To conclude, let us go back to the problem of precedents. As far as
we can tell from the Digest, the emergence of the meaning of prudens
as “lawyer” dates to the early Principate. It is not found in the late
Republican jurists like Scaevola, Sulpicius, or even Labeo, but its non-
existence cannot be presumed. We cannot rule out that this was the case,
of course, as so many texts have been lost, in this and in many other
literary genres. Two points, however, should be made in this context.
First of all, the concept of responsa prudentium. It is apparent from
Gaius’ text that it was used and codified some time before Gaius’ defini-
tion. The model that it implies is clear: the jurists act through responses,
through specific utterances given on specific issues. They put their knowl-
edge to use in solving a specific case. We are, of course, in the con-
text of a well studied and well established feature of Roman intellec-
tual life between the late Republic and the early Principate: the emer-
gence and consolidation of a number of specialised branches of knowl-
edge, and the establishment of different professional discourses. The birth
of jurisprudence is a fundamental part of this process. It is a discipline
where the relationship between general and particular, between universal
and local, between principle and practice finds some of its most striking
and instructive outcomes. This paper is not the place for a full explo-
ration of this issue. It is important, however, to stress how the semantic
development of the word prudens fits in this context: we see its evolution
from adjective into noun, and—most strikingly—its application from the
domain of “good sense, wisdom, expertise” to that of the new sciences
that took shape in Rome between the second and the first century bc. The
expression responsa prudentium is interesting for another reason too: its

47 John A. North, The Inter-Relation of State Religion and Politics in Roman Public Life

from the End of the Second Punic War to the Time of Sulla (Diss. Oxford, ), pp. –
.
 federico santangelo

complexity, even its evocative power. We have already discussed the ety-
mology of prudens and prudentia, and its explicit affinity with the sphere
of prediction, and indeed of divination.
Moreover, the word responsum brings to mind the ways in which div-
ination was and is practised, in Rome and elsewhere: it happened, and
still happens, mainly through a series of expert utterances, devoted to a
specific problem, and based on a set of specific observations.48 It is fas-
cinating to see the responsa and the prudentes—two concepts that have
such deep divinatory resonances—juxtaposed to form an intellectual cat-
egory that marks the triumph of Roman jurisprudence, and its transfor-
mation into a major constituent of Roman law. The boundaries between
divinatio and prudentia are more porous than has often been thought.

48 Cf. the important discussion in Schiavone, Ius, pp. –.

 PART II

PRIESTS, MAGISTRATES, AND THE STATE

 THE CURIATE LAW
AND THE RELIGIOUS NATURE OF THE POWER
OF ROMAN MAGISTRATES

Michel Humm

In Rome, a law (lex) is a text submitted for approbation by the citi-

zens (populus) either by acclamation of the crowd or by vote (suffrag-
ium), within the context of an official assembly of the Roman people
(comitia), convened and presided over by a magistrate of the populus.1
The law as the expression of political power and civic community could
have religious implications, or it could testify to the very close con-
nection between politics and religion in Rome. Rome was firstly a city
(civitas), that is to say a community of free men (res publica) associ-
ated with its gods, living in a territory with religiously-defined bound-
aries.2 In Rome, as was the case in all the other cities of the Mediter-
ranean world in Antiquity, the gods were part of the civic community:
according to Scheid, “gods are, in a way, citizens”.3 Consequently, each
“political” act—that is to say, each act regarding the polis or the civitas—
was also a “religious” act, and vice-versa: they were the two sides of the
same coin. The nature of Roman religion was therefore essentially polit-
ical and social: the term “religion” (religio) both refers to “worship of
the gods” (cultus deorum), therefore “what binds (religare) men to the

1 Theodor Mommsen, Le droit public romain (hereafter cited as Mommsen, DPR),

., trans. Paul Frédéric Girard, by permission of the author (Paris, ), pp. – (=
Id., Römisches Staatsrecht [hereafter cited as StR], , rd ed. [Leipzig, ], pp. –);
Giovanni Rotondi, Leges publicae populi romani (Milan, ), pp. –; Jochen Bleicken,
Lex publica. Gesetz und Recht in der römischen Republik (Berlin-New York, ), esp.
pp. –; André Magdelain, La loi à Rome. Histoire d’un concept, Collection d’Études
Latines  (Paris, ), esp. pp. –; Jean Gaudemet, Les institutions de l’ Antiquité,
nd ed. (Paris, ), pp. –; Mario Bretone, Storia del diritto romano (Rome-Bari,
), pp. –. On assemblies and magistrates of the populus, see infra n. .
2 See Pierangelo Catalano, “Aspetti spaziali del sistema giuridico-religioso romano.

Mundus, semplum, urbs, ager, Latium, Italia”, in Aufstieg und Niedergang der römischen
Welt (hereafter cited as ANRW), .., ed. Wolfgang Haase (Berlin-New York, ),
pp. –, esp. pp. –; J. Linderski, “The Augural Law”, in ANRW, .. (Berlin-
New York, ), pp. –.
3 John Scheid, Religion et piété à Rome, nd ed. (Paris, ), p.  (cf. ibid., pp. –

).
 michel humm

gods”,4 and to “religious scruple” linked to the fear of supernatural pow-

ers (from relegere, i.e. the fact of “ceaselessly worrying about something
or someone, in a process of constant renewal”).5 Thus, in Rome, “reli-
gion” implies a community with the gods, and a system of obligations
inferred by this community; in any case, religio does not indicate the
sentimental, direct or personal bond between an individual and a divin-
ity.6

. The Enigmatic Curiate Law

The curiate law (lex curiata), voted at the time of the investiture of newly-
elected magistrates of the populus,7 shows the intimate links between
Roman public law and the religion of the city during the time of the
Republic. This law was voted by the old assembly of the curiae (comitia

4 Cicero, De natura deorum, ., ed. O. Plasberg (Leipzig, ): Et si conferre volumus

nostra cum externis, ceteris rebus aut pares aut etiam inferiores reperiemur, religione id est
cultu deorum multo superiores. Cf. Georges Dumézil, La religion romaine archaïque, nd
ed. (Paris, ), p. .
5 For Dumézil, La Religion Romaine, p. , “religio, quelle qu’en soit l’ étymologie, a

d’abord désigné le scrupule”; this meaning of the term religio is revealed by its etymo-
logical opposite, since the contrary of the right religio (from re-lego) is neglegentia (from
nec-lego): the fact of “not worrying about . . .” (cf. ibid., p. , n. ).
6 See notably: John Scheid, La religion des Romains (Paris, ), esp. pp. –;

Id., Religion et piété, pp. –; pp. –; pp. –; Id., Quand faire, c’est croire.
Les rites sacrificiels des Romains (Paris, ), pp. –; see also Michel Humm “I
fondamenti della repubblica romana: istituzioni, diritto, religione”, in Storia d’Europa e
del Mediterraneo, ed. Alessandro Barbero, Vol. : La res publica e il Mediterraneo, ed.
Giusto Traina (Rome, ), pp. –, esp. pp. –.
7 In Roman public law, magistrates elected by one of the electoral assemblies of the

populus (named comitia) are called “magistrates of the populus”: in these assemblies,
citizens were distributed in various units of vote (curiae, centuries or tribes, according to
the nature of the comitia), and all the units gathered together formed the electorate (called
the populus) under the presidency of a magistrate. Its sole function was to allow citizens
to express their opinon by acclamation or vote (suffragium), by answering “aye” or “nay”
to a question (rogatio) asked by the magistrate (on the election of another magistrate,
the vote of a law or a legal decision); cf. Mommsen, DPR,  (Paris, ), pp. – (=
Id., StR, , rd ed. [Leipzig, ], pp. –); Id., DPR, . (Paris, ), pp. –
(= Id., StR, , rd ed. [Leipzig, ], pp. –); George Willis Botsford, The Roman
Assemblies from their Origin to the End of the Republic (New York, ), passim; Lily Ross
Taylor, Roman Voting Assemblies from the Hannibalic War to the Dictatorship of Caesar
(Ann Arbor, ); Gaudemet, Les institutions, pp. –; Claude Nicolet, Le métier de
citoyen dans la Rome républicaine (Paris, ), pp. –; Id., Rome et la conquête du
monde méditerranéen, , Les structures de l’ Italie romaine, Nouvelle Clio . (Paris, ),
pp. –; pp. –; Adalberto Giovannini, Consulare imperium, Schweizerische
Beiträge zur Altertumswissenschaft  (Basel, ), pp. – (“Ce qui distingue un
 curiate law, religion, and the roman magistrates’ power 

curiata), which was historically the oldest assembly of Roman citizens

(that is to say, the people of the Quirites, who were, by definition and
in origin at least, members of the curiae):8 in this assembly, the citizens
were divided into thirty voting units that corresponded to the thirty
archaic curiae.9 Towards the end of the Republic, while citizens did not
even remember to which curia they belonged,10 comitia curiata went
on being convened, for which the presence of thirty lictors became

magistrat d’un non-magistrat, c’est que le premier a les auspicia alors que le second ne les
a pas”); Alexander Yakobson, Elections and Electioneering in Rome. A Study in the Political
System of the Late Republic, Historia Einzelschriften  (Stuttgart, ), esp. pp. –.
8 Cf. Robert E.A. Palmer, The Archaic Community of the Romans (Cambridge, ),

pp. –: “What was a curia?”; pp. –: “Quirites”; pp. –: “The curiate
constitution”; Dumézil, La religion romaine, p. ; Jean-Claude Richard, Les origines de
la plèbe romaine. Essai sur la formation du dualisme patricio-plébéien, Bibliothèque des
Écoles Françaises d’Athènes et de Rome  (Rome, ), p. , n. ; Gianmario
Prugni, “Quirites”, Athenaeum  (), –; Michel Humm, Appius Claudius
Caecus. La République accomplie, Bibliothèque des Écoles Françaises d’Athènes et de
Rome  (Rome, ), pp. –; pp. –; pp. –.
9 We know very little about the nature and definition of the curiae, except for the fact

they were probably the oldest institutional structure of the Roman city, in connection to
the primitive gentilice organisation (cf. Laelius Felix, fr.  ed. Huschke: cum ex generibus
hominum suffragium feratur, curiata). They probably date back to the synoecism which
is at the origin of the birth of a city (civitas) in Rome: see Mommsen, DPR, . (Paris,
), pp. – (= Id., StR, , rd ed. [Leipzig, ], pp. –); Jean-Baptiste
Mispoulet, Les institutions politiques des Romains, , La constitution (Paris, ), pp. –
; Arnaldo Momigliano, “An interim report of the origins of Rome”, Journal of Roman
Studies  (), –, esp. pp. – (= Id., Terzo contributo alla storia degli
studi classici e del mondo classico [Rome, ], pp. –); Palmer, The Archaic
Community, pp. –; Francesco De Martino, Storia della Costituzione Romana, , nd
ed. (Naples, ), pp. –; Id., “La costituzione della città-stato”, in Storia di Roma,
, Roma in Italia, eds. A. Momigliano and Aldo Schiavone (Turin, ), p. . Modern
scholars explain the term curia etymologically by co-viria*, which conjures up a picture
of a gathering of armed men, a kind of “fighting fraternity”: cf. Paul Kretschmer, “Lat.
quirites und quiritare”, Glotta  (), –; Prugni, “Quirites”, passim; Carmine
Ampolo, “La nascita della città”, in Storia di Roma, , Roma in Italia, pp. –; Michel
Humbert, Institutions politiques et sociales de l’ Antiquité, th ed. (Paris, ), pp. –
; Christopher John Smith, The Roman Clan: the gens from Ancient Ideology to Modern
Anthropology (Cambridge, ), pp. –.
10 The Roman calendar even had a special day of celebrations, the Quirinalia or

feriae stultorum (Varro, De linga Latina, .; Ovid, Fasti .–; Plutarch, Roman
Quaestions  = Moralia, d; Festus, De verborum significatu – L. and –
L.), to enable those who had not joined the celebrations, because they did not know
to which curia they belonged, to accomplish the ritual sacrifices; the sacrifices were
performed collectively for the Manes within each curia (during the Fornacalia): cf. Kurt
Latte, Römische Religionsgeschichte, nd ed. (Munich, ), p. ; Taylor, Roman Voting
Assemblies, p. ; Dumézil, La religion romaine, pp. –.
 michel humm

sufficient,11 in order to pass the curiate law when magistrates of the pop-
ulus were invested. The voting on the law seems to have been important,
or even necessary, since tribunes of the plebs could sometimes exert their
veto (intercessio), so as to prevent a magistrate they disapproved of from
his investiture.12 To be deprived of investiture led to a number of legal
incapacities that could really thwart a magistrate: for instance, in  bc,
the absence of a curiate law compelled the consul Appius Claudius Pul-
cher to invent a false testimony, so that he could take over the command
of a province at the end of his consulship, and this led to public out-
rage.13 In  bc, the consuls who had followed Pompeius to Thessalonica
renounced their task of presiding over the election of magistrates for the
following year, because they had left Rome without having secured their
investiture from the curiae.14 In other words, a magistrate who had not
procured and secured the vote of the curiate law saw himself hindered to
some degree in exercising his power: as Magdelain has already observed,
“the curiate law, even fictive, resisted desuetude”.15
Yet, what was the actual use of the curiate law, voted right after the
election of a magistrate? Cicero, who was well-informed on the matter
of public law and aware of the constitutional necessity of this law, offers
a peculiar explanation: he considers that, thanks to this law, the people
could express their opinion twice for each magistracy; after the election,
“one would express his opinion a second time on the same candidates, so
that the people had full power to retract, should they resent or regret their
choice”.16 In other words, the vote of the curiate law would have been a
sort of confirmation by the people of the choice that had been made at
the time of the election, following a procedure that allowed them to think
twice, and possibly to retract their choice. Cicero’s explanation was given

11 Cicero, De lege agraria ., ed. André Boulanger (Paris, ): Sint igitur xviri

neque veris comitiis, hoc est, populi suffragiis, neque illis ad speciem atque ad usurpationem
vetustatis per xxx lictores auspiciorum causa adumbratis constituti.
12 Cicero, De lege agraria ., ed. Boulanger: Consulibus legem curiatam ferentibus

a tribunis plebis saepe est intercessum. Cf. Cassius Dio, Roman History .. (on
magistrates in , deprived of curiate law by the tribunes).
13 Cicero, Ad Atticum ..– (st October ); cf. Ad Atticum .. (late October);

Ad familiares .. (December ).

14 Cassius Dio, ...
15 A. Magdelain, Recherches sur l’ « imperium ». La loi curiate et les auspices d’investiture

(Paris, ), p. .
16 Cicero, De lege agraria ., ed. Boulanger: Maiores de singulis magistratibus bis vos

sententiam ferre voluerunt. (. . .), tum iterum de eisdem iudicabatur, ut esset reprehendendi
potestas, si populum benefici sui paeniteret. See also .: Ita cum maiores binis comitiis
voluerint vos de singulis magistratibus iudicare (. . .).
 curiate law, religion, and the roman magistrates’ power 

in the context of a denunciation of the tribune P. Servilius Rullus’ agrarian

bill in  bc. This project proposed the establishment of a commission of
ten members in charge of the settling of colonies and the distribution of
land: according to the bill (rogatio), those “decemviri” were to be elected
by only seventeen tribes selected by lot from the thirty-five tribes—so
they were incomplete comitia, according to Cicero, since the majority
could have been achieved with only nine tribes—yet their powers would
have had to be confirmed by a curiate law introduced by the praetor.17
Those “decemviri” would not have been regularly elected then, but they
nevertheless would have retained the right of taking the auspices (with
pullarii) as well as a praetorian power (potestas praetoria) thanks to the
vote of a curiate law.18 Nevertheless, even if Cicero’s explanation of the
people’s double vote for each magistracy (by electoral comitia during the
election, then by the vote of the curiate law during investiture) is probably
right, the possibility for the people to withdraw their decision expressed
at the electoral comitia, by refuting to vote the lex curiata, matches no
example or institutional reality, since the consuls, both in  and  bc,
were not prevented from practicing their functions in spite of the absence
of a curiate law.19
Cicero’s contemporary Appius Claudius intended for his part to take
up his provincial government in Cilicia immediately after his consulate,
even if he had not obtained a curiate law.20 He even went as far as
asserting that “the vote of a curiate law, for a consul, was useful but not
indispensable.” He added that, from the moment he entered upon his
proconsulate after a senatus consultum, he would automatically gain the
power of command (imperium) by means of a lex Cornelia on provincial
administration. And this, he professed, could exempt him from the
vote of the curiate law.21 Indeed, a provincial governor had to possess
the power of military command (imperium militiae) in order to be
able to command his troops. Appius Claudius’ arguments meant that
people generally accepted the fact that such power of command could

17 Cicero, De lege agraria .–.

18 Cicero, De lege agraria .–.
19 Cf. Nicolet, Le métier de citoyen, pp. –.
20 Cicero, Ad Quintum fratrem ..; Ad Atticum ..; Ad familiares ...
21 Cicero, Ad familiares .., ed. L.-A. Constans (Paris, ): Appius in sermonibus

antea dictitabat, postea dixit etiam in senatu palam sese, si licitum esset legem curiatam
ferre, sortiturum esse cum collega provinciam; si curiata lex non esset, se paraturum cum
collega tibique successurum; legemque curiatam consuli ferri opus esse, necesse non esse;
se, quoniam ex senatus consulto provinciam haberet, lege Cornelia imperium habiturum,
quoad in urbem introisset.
 michel humm

only be practiced once the vote of the curiate law had been secured,
yet he thought he could be exempted from it thanks to constitutional
dispositions dating back to Sulla’s reforms on the administration of
provinces.22 However, his arguments are specious, and only serve his
purpose of finding a legal subterfuge in order to take possession of
his proconsulate, even without a curiate law, as the proconsulate was
expected to be a source of profits and personal enrichment.23
In fact, written testimonies by Cicero and Livy clearly show that the
vote of the curiate law was a compulsory constitutional element for
exercising military command. In the De Republica, Cicero repeatedly
states that the newly-appointed kings presented a curiate law about their

22 Mommsen saw in the lex Cornelia a hint of the thorough reform of the provincial
government he credited Sulla for: Mommsen, DPR,  (Paris, ), p.  and n.  (=
Id., StR, , rd ed. [Leipzig, ], p.  and n. ); see also Mommsen, DPR, , p. 
(= Id., StR, , p. ); Id., DPR,  (Paris, ), p.  and pp. – (= Id., StR, , rd
ed. [Leipzig, ], p.  and pp. –). But rather than the so-called lex Cornelia
de provinciis ordinandis, which is only an invention of contemporary historiography, as
it is now established (Giovannini, Consulare imperium, pp. –; Theodora Hantos,
Res publica constituta. Die Verfassung des Dictators Sulla, Hermes Einzelschriften 
(Stuttgart, ), pp. – (esp. pp. –); Klaus Martin Girardet, “Imperia und
provinciae des Pompeius,” Chiron  (), – (= Id., Rom auf dem Weg von
der Republik zum Prinzipat, Antiquitas: Reihe , Abhandlungen zur alten Geschichte 
[Bonn, ], pp. –); Nathalie Barandon and Frédéric Hurlet, “Les gouverneurs et
l’ Occident romain,” in Rome et l’ Occident (II e siècle av. J.-C.–II e siècle ap. J.-C.). Gouverner
l’ Empire, ed. F. Hurlet (Rennes, ), pp. –, esp. pp. –), it consists in fact in a
Sullan law on the rights and duties of the governors of the provinces: this law forbade
them to leave their province with their troops or start a war without due consent of
the senate or the Roman people, it compelled them to leave their province within thirty
days following the arrival of their successor, and it maintained them in possession of
their imperium until their return to the Capital (Appius Claudius alluded to that in his
argumentation): Giovannini, Consulare imperium, pp. –.
23 In Cicero’s day, and probably also in former centuries, consuls had to have a

province on the day they came into office, and they took possession of this province
during their consulate, as consuls (still, the outgoing governor continued ruling the
province temporarily until the new proconsul arrived): Giovannini, Consulare imperium,
pp. –. However Cicero deplored several times that, at his time, promagistrates often
commanded the armies of Rome without auspices, and he accused the great noble
families of neglecting the science of the augures: Cicero, De natura deorum .; De
divinatione .–. Appius Claudius consequently considered exerting his provincial
command without lex curiata, hence without the full right of auspices (see infra pp.
–), as he had already proceeded for his consulate, following the ill habit that
had become the rule in the government of provinces, much to Cicero’s dismay: see
Pierangelo Catalano, Contributi allo studio del diritto augurale (Turin, ), pp. –;
Giovannini, Consulare imperium, pp. –. At the same time, he must have considered
that the lex Cornelia legally founded the promagistates’ imperium, and that he therefore
did not need a lex curiata: Magdelain, Recherches sur “l’ imperium”, pp. – and n. .
 curiate law, religion, and the roman magistrates’ power 

imperium at the time of their investiture.24 Livy writes, for instance,

that the dictator L. Papirius Cursor (in  bc) presented “the curiate
law concerning his imperium”.25 From such instances, modern historians
invented the expression lex curiata de imperio,26 and generally deduced—
as Heuss did—that the vote of this law was a compulsory preliminary to
the conferment of the power of military command (imperium militiae).27
Latte went even further in asserting that the lex curiata was a survival
of the archaic military organisation, in which coniuratio was used for
the raising of the troops: he saw the curiate law as a military pledge
of allegiance (sacramentum or coniuratio) to the new general in chief
who had been chosen by the army of the citizens.28 But the lex curiata
was definitely a legal text (being a lex rogata et lata), therefore it could

24 Cicero, De republica ., eds. Esther Bréguet and Guy Achard (Paris, ): Qui

(sc. Numa Pompilius) ut huc venit (. . .), ipse de suo imperio curiatam legem tulit. .:
(. . .) rex a populo est Ancus Marcius constitutus itemque de imperio suo legem curiatam
tulit. .: (. . .) iussusque (sc. Servius Tullius) regnare, legem de imperio suo curiatam tulit.
25 Livy, Ab urbe condita .., eds. Wilhelm Weissenborn and H.J. Müller (Berlin,

): Papirius C. Iunium Bubulcum magistrum equitum dixit; atque ei legem curiatam
de imperio ferenti triste omen diem diffidit, quod Faucia curia fuit principium, duabus
insignis cladibus, captae urbis et Caudinae pacis, quod utroque anno eiusdem curiae fuerat
principium.
26 The expression lex curiata de imperio appears in most main textbooks on Roman

public law, for example: De Martino, Storia della Costituzione, pp. –; Bleicken,
Lex publica, p.  and n. , and p. ; Gaudemet, Les institutions, p. ; Eugen Cizek,
Mentalités et institutions politiques romaines (Paris, ), p. , p.  and p. ; etc.
27 Alfred Heuss, “Zur Entwicklung des Imperiums der römischen Oberbeamten,”

Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, romanistische Abteilung  (),

– (= Id., Gesammelte Schriften , Römische Geschichte [Stuttgart, ], pp. –
). The same idea can be found in many other authors’ works: for J. Bleicken (Id., Lex
publica, pp. –), “war die lex curiata de imperio keine normative Bindung, mochte
sie nun das militärische Kommando des Königs begründen, wie man heute allgemein
annimmt, oder aber nur die bestimmte Kriegserklärung sein”; “das Curiatgesetz betraf
die militärischen Kompetenzen des obersten Beamten (rex, praetor, consul)” (Id., “Zum
Begriff der römischen Amtsgewalt: auspicium—potestas—imperium,” Nachrichten der
Akademie der Wissenschaften in Göttingen  (), –, esp. pp. –); for
J. Rüpke (Id., Domi militiae. Die religiöse Konstruktion des Krieges in Rom [Stuttgart,
], pp. –), whose analysis rests mostly upon Appius Claudius’ case in  bc
(see Cicero, Ad familiares ..), “ist die permanente Assoziierung von lex curiata und
imperium auffällig”, therefore “die ursprüngliche, staatsrechtliche Konstruktion ist die
Übertragung von imperium im umfassenden Sinn”; finally, for T. Corey Brennan (Id.,
The Praetorship in the Roman Republic,  [Oxford, ], p. ), “The strong military
associations our sources (particularly Cicero) attach to the lex curiata practically force
us to accept that the law can have conferred only auspicia militiae on dictators, consuls,
praetors, and (so it seems) certain nonmagistrates”.
28 Kurt Latte, “Lex curiata und coniuratio”, Nachrichten der Akademie der Wissen-

schaften in Göttingen, New Series  ( / ), – (= Id., Kleine Schriften zu Religion,
Recht, Literatur und Sprache der Griechen und Römer [Munich, ], pp. –).
 michel humm

hardly have been a military oath.29 It is true that the voting of the law
was “indispensable to the exercise of military command”.30 Cicero had
already emphasized this point when he stated that “a consul was not
allowed to perform military functions if he did not obtain the curiate
law”.31 Likewise, for Livy, the comitia curiata “have military questions
as their of jurisdiction (quae rem militarem continent)”.32 Thus, it was
normally impossible for a superior magistrate to achieve the honors of
the triumph if he did not secure the vote of a curiate law.33
However, as Mommsen has already pointed out, the expression lex
curiata de imperio in itself “neither rests on any text, nor seems accu-
rate”:34 the term lex curiata de imperio is seldom to be found and does not
cover the competence of the law (in technical language, the law is usu-
ally just called lex curiata). The expression can only apply stricto sensu to
greater magistrates who exert imperium, whereas the explicit testimony
of the augur M. Valerius Messala extends the application of the law to
lesser magistrates too (who, by definition, could not hold imperium).35
Mommsen concluded that the curiate law was “the act through which the
people expressly commit to obey” the newly-elected magistrate: accord-
ing to him, the law would then be an act of allegiance by the people to
the magistrate, like an oath of obedience and a mere “formality” that

29 A. Magdelain, “Note sur la loi curiate et les auspices des magistrats”, Revue historique

de droit français et étranger  (), –, esp. p.  (= Id., Jus Imperium Auctoritas.
Études de droit romain, Collection de l’École française de Rome  [Rome, ], p. );
Id., Recherches sur l’ « imperium », p.  (the expression legem ferre applies to it, as well as to
other laws, with reference to occurences); Palmer, The Archaic Community, pp. –
and pp. – (the lex curiata was not an oath, but it had to be adopted unanimously—
this testified to the necessity of periodically renewing a sort of oath by the community).
30 Magdelain, Recherches sur l’ « imperium », p. .
31 Cicero, De lege agraria ., ed. Boulanger: (. . .) consuli, si legem curiatam non

habet, attingere rem militarem non licet.

32 Livy, Ab urbe condita .., ed. Jean Bayet (Paris, ): Comitia curiata, quae rem

militarem continent (. . .).

33 Cicero, Ad Atticum .. (October ); cf. Mommsen, DPR,  (Paris, ), p. 

n.  (= Id., StR, , rd ed. [Leipzig, ], p.  n. ); Hendrik Simon Versnel, Triumphus.
An Inquiry into the Origin, Development and Meaning of the Roman Triumph, (Leiden,
), pp. –; Jean-Luc Bastien, Le triomphe romain et son utilisation politique à
Rome aux trois derniers siècles de la République, Collection de l’École française de Rome
 (Rome, ), pp. –.
34 Mommsen, DPR,  (Paris, ), p.  and n.  (= Id., StR, , rd ed. [Leipzig, ],

p.  n. ); see also Mispoulet, Les institutions politiques, , p.  n. ; Magdelain,
Recherches sur l’ « imperium », p. : “l’ expression lex curiata de imperio, forgée par les
modernes, est trompeuse”.
35 See infra pp. –.
 curiate law, religion, and the roman magistrates’ power 

would enable the people to confirm the conferral of powers on the

newly-elected and invested magistrate.36 De Martino defended a similar
position when he said that the curiate law would have been an act through
which the people acknowledged the greater magistrate and submitted
to his imperium.37 More recently, Lintott alleged that the curiate law
“confirmed” the rights vested in magistrates who had just been elected
by the people (thus following the explanation given by Cicero in the De
lege agraria), even though the real meaning of the law seemed “obscure”
at the end of the Republic.38

. The Curiate Law, the Source of the Right of Auspices

As Magdelain perceived it, the function of the curiate law clearly appears
in an excerpt from the first book of M. Valerius Messala Rufus’ technical
work De auspiciis.39 Messala was truly an expert on that topic since he not
only had been a consul (in  bc), but had also held the office of augur
for fifty-five years.40 Valerius Messala’s text is quoted by Gellius (Noctes
Atticae, ..):
Patriciorum auspicia in duas sunt divisa potestates. Maxima sunt consulum,
praetorum, censorum. Neque tamen eorum omnium inter se eadem aut eius-
dem potestatis, ideo quod conlegae non sunt censores consulum aut praeto-
rum, praetores consulum sunt. Ideo neque consules aut praetores censoribus
neque censores consulibus aut praetoribus turbant aut retinent auspicia; at
censores inter se, rursus praetores consulesque inter se et uitiant et obtinent.
(. . . ) Reliquorum magistratuum minora sunt auspicia. Ideo illi “minores”,
hi “maiores” magistratus appellantur. Minoribus creatis magistratibus trib-
utis comitiis magistratus, sed iustus curiata datur lege; maiores centuriatis
comitiis fiunt.

The auspices of the patricians (patriciorum auspicia) are divided into two
fields of competence (potestates). The greatest (maxima) are those of the
consuls, praetors and censors. Yet the auspices of all these are not the

36 Mommsen, DPR,  (Paris, ), pp. – (= Id., StR, , rd ed. [Leipzig, ],

pp. –); cf. Cicero, De lege agraria .–.

37 De Martino, Storia della Costituzione, , pp. –.
38 Andrew Lintott, The Constitution of the Roman Republic (Oxford, ), pp. –

and p. .
39 Magdelain, Recherches sur l’ « imperium », pp. –.
40 Macrobius, Saturnalia .. (cf. Festus, De verborum significatu  L.;  L.; –

 L.); see Martin Schanz and Carl Hosius, Geschichte der römischen Literatur bis zum
Gesetzgebungswerk des Kaisers Justinian, , Die römische Literatur in der Zeit der Republik,
th ed. (Munich, ), p. .
 michel humm

same or have no bearing with the same field of competence, for the reason
that the censors are not colleagues of the consuls or praetors, while the
praetors are colleagues of the consuls. Therefore neither do the consuls
or the praetors interrupt or hinder the auspices of the censors, nor the
censors those of the praetors and consuls; but the censors may vitiate
and hinder each other’s auspices and again the praetors and consuls those
of one another. (. . .) The lesser auspices (minora auspicia) belong to the
other magistrates. Therefore these are called ‘lesser’ and the others ‘greater’
magistrates (ideo illi minores, hi maiores magistratus appellantur). When
the lesser magistrates (minores magistratus) are elected, their office is
conferred upon them by the assembly of the tribes, but their magistracy
(magistratus) only becomes lawful (iustus) by a curiate law (curiata lege);
the higher magistrates (maiores magistratus) are chosen by the assembly
of the centuries.41

The augur M. Valerius Messala makes a hierarchical distinction between

the “patrician” magistracies (that is to say magistracies of the populus)42
according to the nature of auspices each one had at his disposal: the great-
est auspices (maxima auspicia) for “greater” magistrates (maiores mag-
istratus) elected by comitia centuriata (consuls, praetors and censors),
and lesser auspices (minora auspicia) for the other so-called “lesser”
magistrates (minores magistratus), elected by comitia tributa (aediles
and quaestors). All these magistrates were directly elected by the pop-
ulus (whether within the frame of comitia centuriata or comitia trib-
uta), however their magistracy only became “legal” (iustus, i.e. in con-
formity with the law, the ius) after the vote of the curiate law (sed
magistratus iustus curiata datur lege). Among those magistrates, only
the “greater” ones could exercise imperium; still, all of them had to be
invested after their election by a curiate law (save the censors, who
were invested by a centuriate law).43 On the subject of the ten com-

41 Translated after John C. Rolfe, The Attic Nights of Aulus Gellius , Loeb Classical

Library (London-Cambridge, Mass., ), pp. –.

42 Here, Valerius Messala uses the technical meaning of the expression “patrician

magistracies”, as Cicero did when referring to the voting of the curiate law for magistrates
other than censors (De lege agraria .: see infra n. ): the law concerns all the
magistracies of the people (populus), whether greater or lesser (supra n. ), also named
“patrician” since they were reserved for patricians at the beginning: Mommsen, DPR, 
(Paris, ), p.  (= Id., StR, , rd ed. [Leipzig, ], p. ); Magdelain, Recherches
sur l’ « imperium », p.  n. .
43 Cicero, De lege agraria., ., ed. Boulanger: Nam cum centuriata lex censoribus

ferebatur, cum curiata ceteris patriciis magistratibus (. . .). Magdelain, Recherches sur
l’ « imperium », pp. –, explains that feature of the censors, invested by a centuriate law
rather than a curiate law, both with historical arguments (the censorship was more recent
than the praetorship or the consulate), and with the peculiar nature of the relationships
 curiate law, religion, and the roman magistrates’ power 

missioners that the rogatio agraria proposed to appoint—magistrates

who belonged to the category of magistratus minores—Cicero remarks
that Rullus had well understood that these could not use their potestas
(and so, take possession of their office) without a curiate law.44 Con-
sequently, the curiate law did not confer imperium on a magistrate: it
was necessary, though not sufficient, to gain imperium, but it served
to define the potestas integral to his magistracy: and the same holds
true for all magistrates of the people, be they lesser or greater.45 The
law had to define precisely a magistrate’s field of competence (potes-
tas), like the contingent right to appoint other magistrates, as was the
case for the first quaestors, initially appointed by consuls to take care
of military matters.46 Yet this very field of competence (potestas) corre-
sponded to the one enabling the magistrate to take the auspices.47 The

between the censors and the centuriate assembly. It is not our purpose here to discuss the
nature of the censors’ imperium: this prerogative has often been contested in their case by
the modern historians, since they were not invested by a curiate law and because they did
not have fasces (see Mommsen, DPR,  [Paris, ], p.  [= Id., StR, , rd ed. (Leipzig,
), p. ]; Id., DPR,  (Paris, ), p.  [= Id., StR, , rd ed. (Leipzig, ), p. ];
Id., DPR,  (Paris, ), p.  [= Id., StR, , rd ed. (Leipzig, ), p. ]); however,
the senatus consultum of  (Livy, Ab urbe condita ..) classifies them among the
imperium-endowed magistrates—and A. Magdelain considers censors might have had a
special greater imperium, connected to the major auspices (auspicia maxima) they held
(cf. Valerius Messala’s account) in order to be able to convene the centuriate assembly
(exercitus urbanus): Magdelain, “Auspicia ad patres redeunt,” in Hommages à Jean Bayet,
eds. Marcel Renard and Robert Schilling, Collection Latomus  (Bruxelles-Berchem,
), pp. –, esp. pp. – (= Id, Jus Imperium Auctoritas, p. ).
44 Cicero, De lege agraria ., ed. Boulanger: Vidit et perspexit sine curiata lege xviros

potestatem habere non posse.

45 “Deux pouvoirs caractérisent les magistratures romaines: potestas et imperium”

(Gaudemet): lesser magistrates only possess the former, while greater magistrates (prae-
tors, consuls, dictators) possess both the potestas and the imperium. The potestas desig-
nates “toute forme d’autorité reconnue par le droit à une personne sur une autre personne
ou sur des biens” (Gaudemet); in public law, it implies “the capacity of expressing the
will of the city on the form of prescriptions” that are compulsory (ius edicendi), and “the
possibility to exert a constraining power” (coercitio). As for imperium, it is the power of
absolute command of public power in both the civil and military fields (for the former, it
is the right to convene and preside over the Senate or assemblies of the populus, and also
the right to administer justice; for the latter, it is the fact of commanding the armies). Cf.
Mommsen, DPR,  (Paris, ), pp. – (= Id., StR, , rd ed. [Leipzig, ], pp. –
); Gaudemet, Les institutions, pp. –; Bleicken, “Zum Begriff ”, pp. –.
46 Tacitus, Annales .., ed. Pierre Wuilleumier (Paris, ): Sed quaestores regibus

etiam tum imperantibus instituti sunt, quod lex curiata ostendit ab L. Bruto repetita.
Mansitque consulibus potestas deligendi, donec eum quoque honorem populus mandaret.
47 For J. Bleicken, “Zum Begriff ”, pp. –, the term auspicium is used by Valerius

Messala instead of potestas: this term would be the most ancient way of designing the
public powers.
 michel humm

vote of the curiate law was then indispensable for the magistracy to be
“lawful” (iustus), since this law conferred the auspicium, that is to say the
ius auspiciorum (it was, in a way, a lex curiata auspiciorum causa).48
What was the exact nature of the auspices, and what role did they
play in Roman public law? The auspices (auspicia) were a set of tech-
niques for the observation of omens (auguria) according to precise ritual
rules.49 The interpretation of these omens enabled people to discover the
gods’ will, and particularly that of Jupiter Optimus Maximus: the main
omens under scrutiny were the flight of some species of birds, thunder
and lightning, and also the appetite and behaviour of the sacred chick-
ens; actually, the auspices did not enable one to foresee the future (as most
people commonly believe), but they were used to procure the gods’ con-
sent, and again, especially Jupiter’s, who was “the master of the auspices”.
The consulting of Jupiter through the taking of the auspices was, there-
fore, a highly political act and was always performed by a magistrate who
possessed the right of the auspices (auspicium): it was performed in the
presence of an expert priest (an augur) before each political or military
event that would affect the future of the city.50 First of all, this ceremonial
occurred when a city or a colony was founded. On such occasion, the
“inaugural” taking of the auspices was supposed to reproduce the found-
ing act of Rome: according to the tradition, the city was founded after
Romulus took the auspices (auspicia), i.e. consulted Jupiter by observ-
ing birds flying in the sky (avium spectio) so as to procure his assent and

48 Cf. Cicero, De lege agraria ., ed. Boulanger: comitia curiata auspiciorum causa;

.: xxx lictores auspiciorum causa. Already discussed by: Catalano, Contributi, pp. –
; Magdelain, Recherches sur l’ « imperium », pp. –; Robert Develin, “Lex curiata
and the Competence of Magistrates”, Mnemosyne  (), –; Giovannini, Con-
sulare imperium, pp. –; Cizek, Mentalités et institutions, p. . J.J. Nichols (Id., “The
Content of the Lex curiata”, American Journal of Philology  (), –) claims that
the curiate law did not apply to auspices linked to the imperium, but to auspices belonging
to the curiae: such a distinction between auspices never appears in our sources.
49 See Georg Wissowa, s.v. Augures, in Pauly’s Realencyclopädie der classischen Alter-

tumswissenschaft,  (), col. –; Id., s.v. Auspicium, in Pauly’s Realency-

clopädie,  (), col. –; Dumézil, La religion romaine, pp. –; Catalano,
“Aspetti spaziali,” pp. –.
50 Only magistrates had the right of auspices (Varro, in Nonius, p.  ed. Lindsay:

de caelo auspicari ius nemini est praeter magistratum); augurs (augures) were priests,
with expertise in augural law and techniques, but they could not serve as substitutes
for magistrates in their function, they only took part in the proceedings as consultants,
or for the announcement of oblative omens (i.e. omens not asked for): A. Magdelain,
“L’ inauguration de l’urbs et l’imperium”, Mélanges de l’École française de Rome-Antiquité
 (), pp. –, esp. pp. – (= Id., Jus Imperium Auctoritas, p. ).
 curiate law, religion, and the roman magistrates’ power 

alliance in this founding act.51 The founding act of a city occurred each
time Rome founded a colony, and it was both a political and religious
proceeding.52 Magistrates also had to take auspices before each decision
binding the city’s future, be it before convening an assembly—comitia or
Senate—before appointing another magistrate (for instance a dictator),53
or before engaging in battle. That is why only “inaugurated” places, tem-
pla, where the gods’ will could express itself, could be used as meeting
venues for political assemblies (the Senate, or the assemblies of the pop-
ulus).54 Finally, the magistrates had to take the auspices when they came
into office in order to obtain Jupiter’s assent for the duration of their
magistracy: these were “investing auspices” and they took place on the
auguraculum, on the arx (on the Capitol), facing the city that lay at their
feet (the Sacra Via, on the Forum, formed the line of sight (spectio) in
the direction of the sanctuary of Jupiter Latiaris on the mons Albanus, as
well as the median line splitting the urbs into two parts (regiones), north
and south: fig. , B).55 The ritual of the taking of the auspices shows then

51 Livy, Ab urbe condita ..–.; Dionysius Halicarnassus, Roman Antiquities .–

; Plutarch, Romulus .–..

52 See Varro, De lingua Latina .; see also Catalano, “Aspetti spaziali,” pp. –.
53 In , for example, the consul Q. Fabius Rullianus appointed L. Papirius Cursor

dictator (dictatorem dixit), “at night, during the silentium (silentio), according to the
custom” (Livy, Ab urbe condita ..), which means, in augural language, that he
practised an auspicial dictio during the augural time for auspices while no technicality was
stated. On the meaning of silentium in the context of auspices, see Cicero, De divinatione
.–; Varro, De lingua Latina .; Festus, De verborum significatu  L.;  L.; 
L.; cf. M. Humm, “Silence et bruits autour de la prise d’auspices”, to be published in the
proceedings of the international conference Les sons du pouvoir: verba, silentia, sonitus
dans les lieux institutionnels, d’Alexandre le Grand à l’ Antiquité tardive (Université de La
Rochelle, les ,  et  novembre ), ed. Maria Teresa Schettino. On dictio dictatoris,
see especially Magdelain, “Auspicia ad patres redeunt,” pp. – (= Id., Jus Imperium
Auctoritas, pp. –).
54 Jyri Vaahtera, “On the Religious Nature of the Place of Assemby,” in Senatus

Populusque Romanus. Studies in Roman Republican Legislation, ed. Unto Paananen et al.,
Acta Instituti Finlandiae  (Helsinki, ), pp. –.
55 The boundaries of auspicia urbana were nevertheless drawn by the line of the

pomerium, which was the religious border of the city, that surrounded the urban space
inaugurated by the founding auspices of the city, and consequently, it delimited the
area of the urban auspices (finis urbani auspicii): cf. Varro, De lingua Latina .;
Livy, Ab urbe condita ..–; Tacitus, Annales .; Gellius, Noctes Atticae ...
See especially Magdelain, Recherches sur l’ « imperium », pp. –; Id., “L’auguraculum
de l’arx à Rome et dans d’autres villes,” Revue des Études Latines  (), –,
esp. pp. – (= Id., Jus Imperium Auctoritas, pp. –); Id., “Le pomerium
archaïque,” pp. – (= Id., Jus Imperium Auctoritas, pp. –); Catalano, “Aspetti
spaziali,” pp. –; Filippo Coarelli, “La doppia tradizione sulla morte di Romolo e
gli auguracula dell’arx e del Quirinale,” in Gli Etruschi e Roma. Atti dell’incontro di studio
 michel humm

Fig. . Observation points for the taking of auspices in Rome.

A: auguratorium of the Palatine; B: auguraculum
of the arx; C: auguraculum of collis Latiaris.
F. Coarelli, “La doppia tradizione sulla morte di Romolo e gli
auguracula dell’arx e del Quirinale”, in Gli Etruschi e Roma.
Atti dell’ incontro di studio in onore di Massimo Pallottino
(Roma, – dicembre ), (Rome ), p. , fig. .

in onore di Massimo Pallottino (Roma, – dicembre ) (Rome, ), pp. –
; Id., Il Foro Romano, , Periodo arcaico, nd ed. (Rome, ), pp. –; Id., s.v.
Auguraculum (arx), in Lexicon Topographicum Urbis Romae (hereafter cited as LTUR), ,
ed. Eva Margareta Steinby (Rome, ); Linderski, “The Augural Law,” pp. –;
Maddalena Andreussi, s.v. Pomerium, in LTUR,  (Rome, ), pp. –.
 curiate law, religion, and the roman magistrates’ power 

precisely the close link between the religious and the political aspects
of archaic and republican Rome—a link that survived until the imperial
period.
The auspicium (i.e. the ius auspiciorum) a priori concerned all the
magistrates of the populus, and not only the main ones (consuls, praetors,
censors and dictators): as is shown by Valerius Messala’s text.56 This is
also what Cicero recommended in the De legibus: “That all magistrates
possess the right of auspices and the right of justice ( . . . )”.57 Augural
right made a clear-cut distinction between the interpretation of omens
on the one hand (nuntiatio), which was left in the hands of the augurs,
and the direct consulting of the gods on the other hand (spectio), which
was the “consuls’ and other magistrates’ ” private matter.58 Consequently,
each magistrate could take the auspices at any time, and thus be able to
prevent another magistrate from convening comitia on that day, by using

56 It has often been emphasized that Valerius Messala’s text as quoted by Gellius seems

truncated, but this is no reason to alter its meaning, as A. Magdelain emphasized (Id.,
Recherches sur l’ « imperium », p. ): “après avoir parlé de l’ élection et de la loi curiate des
magistrats mineurs, il aborde l’ élection des magistrats majeurs et s’arrête brutalement. La
suite sur la loi centuriate des censeurs et la loi curiate des autres magistrats majeurs a été
coupée, soit par Aulu-Gelle lui-même (. . .), soit par le copiste du manuscrit archétype.
De cette coupure résulte une disharmonie, qui a parfois fait soupçonner le texte d’être
corrompu. Des réécritures ont été proposées, elles tendent à renverser les éléments du
texte et à déclarer que les magistrats mineurs n’avaient pas de loi curiate et que les
magistrats majeurs seuls en avaient une. C’est faire dire à Messala exactement le contraire
de ce qu’il dit. Cette voie n’est pas la bonne. La loi curiate des magistrats mineurs (. . .)
est attestée également par Cicéron.” See also Catalano, Contributi, pp. –; Develin,
“Lex curiata,” pp. –. Amongst the attempts at re-constructing the text (which lead
to the opposite meaning), cf. Ulrich von Lübtow, “Die lex curiata de imperio”, Zeitschrift
der Savigny-Stiftung für Rechtsgeschichte, romanistische Abteilung  () –, esp.
p. ; Versnel, Triumphus, p.  and n. .
57 Cicero, De legibus ., ed. Georges de Plinval (Paris, ): Omnes magistratus aus-

picium iudiciumque habento (. . .); cf. .: (. . .) omnibus magistratibus auspicia et iudicia
data sunt; iudicia, ut esset populi potestas ad quam provocaretur, auspicia, ut multos inutiles
comitiatus probabiles impedirent morae. Saepe enim populi impetum iniustum auspiciis di
immortales represserunt. Cicero’s statement probably indicates the institutional reality of
the Republic—as most of the other institutions that one can find in his constitutional
treaty—, or at least the Republic as it was before the institutional decay produced by the
crisis he denounces.
58 Cicero, Philippicae ., eds. A. Boulanger and P. Wuilleumier (Paris, ): Nos

(sc. augures) enim nuntiationem solum habemus, consules et reliqui magistratus etiam
spectionem. Festus, De verborum significatu  L.: Spectio in auguralibus ponitur pro
aspectione et nuntiato, quia omne ius sacrorum habent au[x]guribus. Spectio dumtaxat
quorum consilio rem gererent magistratus, non ut possent impedire nuntiando quae, cum
vidissent; at is spectio sine nuntiatione data est, ut ipsi auspicio rem gererent, non ut alios
impedirent nuntiando.
 michel humm

the right of obnuntiatio (the right of notifying unfavourable auspices to a

magistrate and so prevent him from doing what he intended to do). For
this reason consuls would publish a decree before convening an assembly
of the people, forbiding each lesser magistrate (magistratus minor) to
“observe the sky”.59 So, all the magistrates (of the populus) had the right
of the auspices: that is why “the curiate law was as necessary to lesser
magistrates as to greater ones”.60
Some wished to limit the benefit of the curiate law to greater magis-
trates alone, but in his speech against Rullus’ agrarian law in  bc, Cicero
clearly asserted that, if the censors used to be invested by a centuriate law,
“the other patrician magistrates” were invested by a curiate law (curiata
lex ceteris patriciis magistratibus), and this explicitly refers to all the
other magistrates of the populus, both greater and lesser ones.61 Further-
more, Cicero says that the “decemviri” whom the bill planned to appoint,
should have, thanks to the vote of a curiate law, disposed of pullaries (the
magistrates’ auxiliaries in charge of the sacred chickens), and of praeto-
rian imperium: with the pullaries, they should also have disposed of the
auspices.62
Others contested the idea that the people gathered in comitia curiata
could have the legal capacity to confer the right of auspices on newly-
elected magistrates:63 this, however, is what several extracts from Cicero’s
writings clearly argue when speaking of “auspices conferred by the peo-
ple” (a populo auspicia accepta) or of “auspices of the Roman populus”
(auspicia populi Romani).64 Besides, Cicero strongly asserts that “the

59 Gellius, Noctes Atticae .., ed. R. Marache (Paris, ): In edicto consulum,

quo edicunt, quis dies comitiis centuriatis futurus sit, scribitur ex vetere forma perpetua: ‘ne
quis magistratus minor de caelo servasse velit’. See supra n. ; see also J.-B. Mispoulet,
Les institutions politiques des Romains, , L’ administration (Paris, ), pp. – and
n. .
60 Magdelain, Recherches sur l’ « imperium », p. .
61 Cicero, De lege agraria . (see supra n. ); on the technical meaning of the

expression “patrician magistracies”, see supra n. .

62 Cicero, De lege agraria .–.
63 Versnel, Triumphus, pp. –.
64 Cicero, De divinatione ., ed. O. Plasberg (Leipzig, ): Solebat ex me Deiotarus

percontari nostri augurii disciplinam, ego ex illo sui (. . .). Atque ille iis semper utebatur,
nos nisi dum a populo auspicia accepta habemus quam multum iis utimur? Cicero, De
domo sua , ed. C.F.W. Mueller (Leipzig, ): Ita populus Romanus brevi tempore
neque regem sacrorum neque flamines nec Salios habebit, nec ex parte dimidia reliquos
sacerdotes neque auctores centuriatorum et curiatorum comitiorum, auspiciaque populi
Romani, si magistratus patricii creati non sint, intereant necesse est, cum interrex nullus
sit, quod et ipsum patricium esse et a patriciis prodi necesse est. Cicero, De natura deorum
., ed. O. Plasberg (Leipzig, ): ‘An vos Tusci ac barbari auspiciorum populi Romani
 curiate law, religion, and the roman magistrates’ power 

comitia curiata have only survived thanks to and because of auspices”,65

and he adds (still on the topic of comitia curiata), that “these purely for-
mal comitia, held in order to perpetuate an ancient custom through the
office of thirty lictors, took care of auspices”.66 The orator probably exag-
gerates when saying that comitia curiata only survived for this purpose,
however Valerius Messala also speaks of the curiate law in relation to
magistrates acquiring auspices, and he specifies that it is the only way the
latter can obtain a iustus magistratus. Magdelain sensibly concludes that
“during the investiture of a magistrate by the curiae, the most important
part is his entrusting of the right of auspices”:67 thanks to this ius aus-
piciorum, the greater magistrate (maior magistratus) could take posses-
sion of his civil powers (imperium domi) when coming into office (dur-
ing the ceremony of investiture). Later on, if he were a magistrate with
the greatest auspices (auspicia maxima), he could also take up a military
command (imperium militiae) thanks to the ceremony of “departure aus-
pices”.

. “Investing Auspices” and “Departure Auspices”

Actually, a Roman magistrate took his powers (be they civil, military
or legal) neither from the election that singled him out from other
candidates, nor from the curiate law that conferred on him the right of

ius tenetis et interpretes esse comitiorum potestis?’. Still, there are authors who consider that
the expression auspicia populi Romani came of late and does not correspond to any legal
or institutional reality, since the Roman people would not have been guardians of the
auspices: Versnel, Triumphus, pp. –; Bleicken, “Zum Begriff,” pp. –; contra:
Catalano, Contributi, pp. –; Develin, “Lex curiata,” pp. –, who rightly notes
that if the patres were actually the guardians of the auspicia (cf. the official expression
“auspicia ad patres redeunt”), these were in fact the property of the whole populus,
the Roman state; see also Magdelain, “Auspicia ad patres redeunt”, namely pp. –
and pp. – (= Id., Jus Imperium Auctoritas, pp. – and pp. –): “les
auspicia populi Romani sont l’ alliance entre Jupiter et Rome, passée d’abord avec les rois,
ensuite avec les magistrats;” magistrates were invested auspicato (see Livy, Ab urbe condita
..), this sort of investiture entrusted them with auspicia populi Romani: there was
also “un renouvellement, en la personne des magistrats éponymes, du pacte auspicatoire
entre Rome et Jupiter”; that is why auspicia populi Romani were exclusively conferred on
magistrates, not on augurs.
65 Cicero, De lege agraria ., ed. Boulanger: Nunc, Quirites, prima illa comitia tenetis,

centuriata et tributa, curiata tantum auspiciorum causa remanserunt.

66 Cicero, De lege agraria ., ed. Boulanger: Sint igitur xviri neque veris comitiis,

hoc est, populi suffragiis, neque illis ad speciem atque ad usurpationem vetustatis per xxx
lictores auspiciorum causa adumbratis constituti.
67 Magdelain, Recherches sur l’ « imperium », p. .
 michel humm

auspices, but from the taking of auspices that conferred on him Jupiter’s
initial approbation, through a direct contact with the god. Magdelain
showed in a convincing manner the three steps that a Roman magistrate
had to follow when he took his office:68
– firstly, the election by the comitia that enabled people to choose,
between various candidates, the one who was to be entrusted with
the powers, as defined by the curiate law; originally, it even seems
that such a choice was actually made by his predecessor: the latter
had the new magistrate cheered by the people gathered in comitia
(such cheering would be the etymological sense of suffragium): we
can find instances of this in the republican procedure of renunciatio
of the elected candidate, left to the good will of the president of the
electoral assembly (the Wahlleiter);69
– next came the civil investiture by the comitia curiata; according to
Magdelain, these comitia were convened by the new magistrate’s
predecessor (since the new magistrate did not have the right of
the auspices yet) so as to propose to the curiae the vote of the law
that was to enable him to take the auspices;70 as magistrates of the
people under the Republic always took their office on the day of the
Kalends or the Ides, and as those days were not comitial, this step
had to take place on the day before their official coming into office
(and the previous argument makes their predecessor’s intervention
indispensable);
– finally the religious (or “sacral”) investiture took place, through
which the magistrate, thus newly elected and invested with the
curiate law, obtained Jupiter’s blessing that vested him with the
completeness of his powers; as soon as he received the auspicium,
the magistrate had to take the auspices according to the terms or
prescriptions that were to be found in his curiate law: in other
words, that law had to define the nature of the auspices (minora
or maxima) he was allowed to take, and this would determine the

68 Magdelain, Recherches sur l’ « imperium », passim; Id., “L’ inauguration de l’urbs,”

passim (= Id., Jus Imperium Auctoritas, pp. –).

69 See Rolf Rilinger, Der Einfluss des Wahlleiters bei den römischen Konsulwahlen von

 bis  v. Chr., Vestigia  (Munich, ), passim.

70 According to A. Giovannini (Id., Consulare imperium, p. ), this procedure would

not be indispensable since it was not compulsory to have the auspices in order to propose
a law to the curiae, as is shown by the procedure followed by the pontifex maximus (who
did not have the right of taking the auspices) for claims of adoption.
 curiate law, religion, and the roman magistrates’ power 

nature of his powers: simple potestas for a lesser magistrate, potestas

and imperium for a greater one.71
Literary sources record the importance of the religious investiture: “patri-
cian magistrates created by the populus can only be magistrates after
the consulting of the auspices”, writes Livy.72 Likewise, Dionysius of
Halicarnassus—who undoubtedly uses here an excellent annalistic
source—considers that this procedure was issued from Romulus and was
supposed to have been a model for the investiture of magistrates-to-be
of the Republic to emulate: “When Romulus, therefore, upon the occa-
sion mentioned had received the sanction of Heaven also, he called the
people together in assembly; and having given them an account of these
omens, he was chosen king by them, and established it as a custom to
be observed by all his successors, that none of them should accept the
office of king or any other magistracy until Heaven, too, had given its
sanction. And this custom relating to the auspices long continued to be
observed by the Romans, not only while the city was ruled by kings, but
also after the overthrow of the monarchy, in the elections of their con-
suls, praetors and other legal magistrates”.73 This “inaugural” taking of
the auspices had considerable importance, since direct communication
with Jupiter allowed the auspicatus magistrate to obtain approbation of
the god, in other words, to get Jupiter’s blessing that conferred his full
power of command: his imperium (the civil power), but also his iuris dic-
tio (the legal power). The power of command (imperium) was permanent
as long as he retained his office, and he did not need to take new auspices
before he came out of office.
The nature of such auspices would thus define the nature of a mag-
istrate’s power of command: the “investing auspices” were taken in the
auguraculum of the arx, on the Capitol, facing the city (urbs) lying at the

71 On potestas and imperium, see supra n. .

72 Livy, Ab urbe condita ..: (. . .) quos populus creat patricios magistratus non aliter
quam auspicato creet. See supra n.  about the technical term “patrician magistrates”.
73 Dionysius Halicarnassus, Roman Antiquities ..: ττε δ’ ον
Ρωμ λος πειδ

τ παρ το δαιμονου ββαια προσλαβε, συγκαλσας τν δ μον ε!ς κκλησαν κα#
τ μαντε$α δηλ%σας βασιλε&ς 'ποδεκνυται πρς α(τ)ν κα# κατεστ*σατο ν +-ει
το$ς μετ’ α(τν .πασι μ*τε βασιλεας μ*τε 'ρχς λαμβ0νειν, ν μ κα# τ δαιμνιον
α(το$ς πι-εσπσ1η, διμειν τε μχρι πολλο φυλαττμενον 3π
Ρωμαων τ περ# το&ς
ο!ωνισμο&ς νμιμον, ο( μνον βασιλευομνης τ ς πλεως, 'λλ κα# μετ κατ0λυσιν
τ)ν μον0ρχων ν 3π0των κα# στρατηγ)ν κα# τ)ν 4λλων τ)ν κατ νμους 'ρχντων
α5ρσει. Translation by Earnest Cary, on the basis of the version of Edward Spelman,
The Roman Antiquities of Dionysius of Halicarnassus , Loeb Classical Library (London-
Cambridge, Mass., ).
 michel humm

foot of the hill (fig. , B); consequently, they were taken within the area of
the pomerium and were referred to as “urban” (auspicia urbana).74 From
then on, the power of command obtained from Jupiter would exclusively
be exercised within this urban area. For that very reason, in the case of
major auspices (auspicia maxima), the imperium thus obtained extended
domi (a locative form used to designate the city itself up to a maximum
distance of one Roman mile from the pomerium). The urban space,
where the power of command was exercised, was supposed to have been
determined by the augural ritual of the inauguratio at the time when the
city was founded: this ritual, which was meant to have the city benefit
from a very special favour from the gods, allowed the urban space (urbs)
to be delimited and distinguished from the surrounding rural space
(ager Romanus), both areas being separated by the religious boundary
of the pomerium.75 In the myth of Romulus (in the account given by
Ennius, as well as in Livy’s), the initial taking of the auspices associates
the inauguratio of the urbs with the assumption of the imperium domi
by the new king:76 Romulean auspices, through the famous omen of
the twelve vultures (cf. Octavian again, at the time his auspices had
invested him as a consul, on th August  bc),77 not only vested
him with his power of command (imperium), but furthermore allowed
him, as founder of the city (conditor urbis), to draw the pomerium that
would later delimited the urban space where his command would be
exercised (auspicio augurioque or ad inaugurandum templa capiunt).
The last verses of the excerpt from Ennius’ writings on this event give
evidence of that link between the power of command (imperium) of the
new king and the inauguration of the urbs: “from that omen, Romulus
saw strips of land left unturned by the plough (scamna) that had been
given to him, and the soil of his kindgom strengthened by his taking

74 See supra n. .

75 On the technical meaning of the term inauguratio, see Magdelain, “L’ inauguration
de l’ urbs,” pp. – (= Id., Jus Imperium Auctoritas, pp. –).
76 Ennius, Annales, – ed. Johannes Vahlen, nd ed. (Leipzig, ) = – ed.

Otto Skutsch, nd ed. (Oxford, ): Curantes magna cum cura tum cupientes / regni
dant operam simul auspicio augurioque. Livy, Ab urbe condita .., ed. Jean Bayet (Paris,
): Quoniam, cum gemini essent, nec aetatis verecundia discrimen facere posset, ut di
quorum tutelae ea loca essent auguriis legerent qui nomen novae urbi daret, qui conditam
imperio regeret, Palatium Romulus, Remus Aventinum ad inaugurandum templa capiunt.
77 Suetonius, Augustus .; Cassius Dio, Roman History .; Appian, Civil War

.; Iulius Obsequens, Prodigiorum liber  (); see Frédéric Hurlet, “Les auspices
d’Octavien / Auguste,” Cahiers du Centre Gustave Glotz  (), –.
 curiate law, religion, and the roman magistrates’ power 

of the auspices (auspicio)”.78 The Romulean example hints at the fact

that the auspices conferring the imperium domi on magistrates were also
supposed to renew the inauguratio of the urbs, as if the foundation of the
city was symbolically renewed each time the imperium passed into other
hands.79 These investing auspices, taking place whenever a new (greater)
magistrate came into office, consequently made it possible to define the
imperium domi, that is to say, the power of civil command which, by
definition, could only be exercised in relation to the urban space within
the pomerium, and corresponding to the land whose inauguratio had
been renewed by the same auspices.
By contrast, the power of military command (imperium militiae) was
not permanent since it could not be exercised within the city (domi).
Consequently, it required a new taking of the auspices (the “departure
auspices”) that also took place on the Capitol, but this time this was
oriented towards the ager Romanus (antiquus), i.e. the peri-urban terri-
tory:80 indeed, departure auspices, unlike urban auspices, could not be
exercised within the city as delimited by the pomerium, but their ter-
ritory would stretch as far as the eye could see, past the city and its

78 Ennius, Annales – Vahlen = – Skutsch: Conspicit inde sibi data Romu-

lus esse propritim / auspicio regni stabilita scamna solumque. See Catalano, Contributi,
pp. –; Otto Skutsch, The Annals of Q. Ennius, nd ed. (Oxford, ), pp. –
.
79 Magdelain, Recherches sur l’ « imperium », pp. –; Id., “L’ inauguration de l’urbs,”

pp. – (= Id., Jus Imperium Auctoritas, pp. –).

80 Auspices in agrum were necessary to the departure auspices (before setting out to

war), the repetitio auspiciorum, the convening of the comitia centuriata, the appointment
of the interrex and the dictio dictatoris: see Wissowa, Auspicium, col. ; Catalano,
“Aspetti spaziali,” pp. –. It is likely that, in this case, the observation was not east-
orientated, as it happened for the urban auspices, but south-orientated (taking Jupiter’s
place, as he was sitting in the north). That could offer an explanation for the two traditions
regarding the orientation of the auspices: Varro, in Festus, De verborum significatu  L.
(. . .) A deorum sede cum in meridiem spectes, ad sinistram sunt partes mundi exorientes,
ad dexteram occidentes (. . .); cf. Varro, De lingua Latina .; Cicero, De divinatione .;
Livy, Ab urbe condita ..; Paul. Festus, De verborum significatu – L. (toward
the south); Livy, Ab urbe condita ..; Isidorus, Origines, .. (toward the east);
cf. Magdelain, “L’auguraculum de l’arx,” pp. – (= Id., Jus Imperium Auctoritas,
pp. –); Linderski, “The Augural Law,” pp. –. The spectio in agrum from
the auguraculum of the arx was only possible if orientated to the south, where the
pomerial limit ran through the Ara Maxima (at the Forum Boarium), the Consus’ altar
(at the Circus Maximus) and the Curiae Veteres (Tacitus, Annales ..), offering the
eye a view towards the Aventine hill, outside the pomerium and so, part of the ager (this
could indeed explain why the Aventine remained outside of the pomerium during the
whole Republican period, whereas the hill was included within the area of the Servian
Wall).
 michel humm

pomerium, in the ager effatus et liberatus (the rural territory delimited

“by speech” and freed from “evil spirits”).81 The ager Romanus (out-
side the pomerium) thus had other auspices than those of the urban
space:82 “likewise, in these two sections, namely the city and the country-
side, opposite kinds of imperia are enforced: a civil and a military one”
since “the domi and the militiae powers correspond to spaces which have
independent religious statuses,” they are separated by a line which is also
of a religious nature, the pomerium.83 From a religious point of view, what
tells these two spaces apart is the fact that only the urbs could be “inau-
gurated”, and this “inauguration” (inauguratio) granted it a special char-
acter (it became a locus augustus), with the result that it was forbidden

81 Varro, De lingua Latina ., ed. Pierre Flobert (Paris, ): Hinc effata dicuntur,

qui augures finem auspiciorum caelestum extra urbem agris sunt effati ut esset. Servius,
In Vergilii Aeneidem ., ed. Hermann Hagen and Georgius Thilo (Leipzig, ):
sic effatus proprie effata sunt augurum preces: unde ager post pomeria, ubi captabantur
auguria, dicebatur effatus. The effatio consists of orally delimiting a territory: thus, a locus
effatus is an area delimited by the declaration of an augur for the taking of the auspices; the
liberatio is a form of exorcism aiming at freeing a territory from the evil spirits dwelling
on it (the ager, subject to the taking of the auspices, had to be preliminarily effatus et
liberatus): cf. Magdelain, “L’ inauguration de l’urbs,” pp. – and pp. – (= Id., Jus
Imperium Auctoritas, pp. – and p. ).
82 Livy, Ab urbe condita ..: (. . .) prospectu in urbem agrumque capto (. . .); here,

Livy makes up a tale starting from an old formula of auspices: the distinction between
prospectum in urbem capere and prospectum in agrum capere corresponds in fact to two
opposite inaugural actions concerning respectively the city (defined as a templum, i.e.
an inaugurated area) and the ager (a tescum, i.e. a wild land which will be used to take
auspices and which belongs to the competence of undetermined deities before being effa-
tus et liberatus): Eduard Norden, Aus altrömischen Priesterbüchern Unveränderter Neu-
druck der Erstauflage , mit einem Nachwort von John Scheid (; repr. Stuttgart-
Leipzig, ), pp. – and pp. –; Kurt Latte, “Augur und templum in der var-
ronischen auguralformel,” Philologus  () – (= Id., Kleine Schriften, pp. –
); Magdelain, “L’auguraculum de l’arx,” pp. – (= Id., Jus Imperium Auctoritas,
pp. –); Id. “L’ inauguration de l’urbs,” pp. – (= Id., Jus Imperium Auctoritas,
pp. –); Linderski, “The Augural Law,” pp. – (cf. Varro, De lingua Latina
.–; Festus, De verborum significatu  L.; Paul. Festus, De verborum significatu 
L.). G. Wissowa remains sceptical on the subject of a difference of orientation between
in urbem auspices and in agrum auspices, yet he does not take into account the formula
of auspices, nor the topographical context (cf. supra n. ): Wissowa, Augures, col. –
; Id., Auspicium, col. –.
83 Mommsen, DPR,  (Paris, ), pp. – (= Id., StR, , rd ed. [Leipzig, ],

pp. –); Magdelain, “L’ inauguration de l’urbs,” passim (= Id., Jus Imperium Auctoritas,
pp. –); Rüpke, Domi militiae, pp. –. Contra: Giovannini, Consulare imperium,
pp. –: founding his reasoning on the expressions domi and militiae at the end of
the Republic, the author reckons “il n’est pas possible de comprendre territorialement
la formule domi militiaeque”; it is true that owing to the extension of the ager Romanus
 curiate law, religion, and the roman magistrates’ power 

for military power to be exercised there in normal times. Consequently,

the power of military command (imperium militiae) could not be a per-
manent one, and required specific auspices each time a general was to
leave Rome for the army (it was also renewable outside the normal dura-
tion of a magistracy thanks to the prorogatio imperii, unlike the imperium
domi).84 The greater magistrate on whom had been conferred the com-
mand of an army by the Senate or the populus had to go to the auguracu-
lum of the Capitol in order to take the “departure auspices”. These enabled
the magistrate to be directly entrusted with both the imperium militiae
and the war auspices by Jupiter: through the observation of birds during
the taking of the auspices, the general was subject to a divine addictio that
conferred on him his titles and qualities, as is shown in a passage by the
antiquarian L. Cincius concerning the departure auspices of the Roman
general who was to take command of the army of the Latin league.85
Once auspicatus, the magistrate would put on the military cloak of the
general (paludamentum), he would solemnly make his prayers and vows
to the deity for himself, his army, and the city (solemnis votorum nun-
cupatio), and then he was required to leave the pomerium before sun-
down. When he crossed the pomerium, his lictors would place axes in
their fasces, thereby signifying that, with the imperium militiae, the right
for the citizens to appeal against a legal decision made by this magistrate
(provocatio) came to an end.86 In the event of a technical problem, and

and the integration of the whole of Italy into the Roman citizenship after the Social War,
such a distinction bore no more territorial sense and did not correspond to the (abstract)
distinctions between the civil and military fields; yet the right of the auspices shows that
this distinction originally had a concrete territorial base.
84 Magdelain, “L’ inauguration de l’urbs,” p.  (= Id., Jus Imperium Auctoritas, p. ):

“L’ annalité de la magistrature interdit la prorogation de l’imperium domi. Seul l’imperium

militiae peut être prorogé, lequel s’exerce seulement hors du pomerium. L’ attribution
extraordinaire de l’imperium à un privatus (le privatus cum imperio) ne concerne que
le pouvoir militaire hors les murs.”
85 Festus, De verborum significatu  L.: Praetor ad portam nunc salutatur is qui in

provinciam pro praetore aut pro consule exit: cuius rei morem ait fuisse Cincius in libro
de consulum potestate talem: (. . .) “itaque quo anno Romanos imperatores ad exercitum
mittere oporteret iussu nominis Latini, conplures nostros in Capitolio a sole oriente auspicis
operam dare solitos. Ubi aves addixissent, militem illum, qui a communi Latio missus esset,
illum quem aves addixerant, praetorem salutare solitum, qui eam provinciam optineret
praetoris nomine”. See Franz Peter Bremer, Iurisprudentiae antehadrianae quae supersunt,
, Liberae rei publicae iuris consulti (Leipzig, ), p.  (Cincius, De consulum potestate
liber); Magdelain, Recherches sur l’ « imperium », p. .
86 On the topographical regime of provocatio, based on and complying with the nature

of the imperium and of the auspices, see also Magdelain, Recherches sur l’« imperium »,
p. ; see also Giovannini, Consulare imperium, pp. –.
 michel humm

also as far as delays were concerned, the auspices had to be taken again
on the following day. When he came back, the magistrate would auto-
matically lose his imperium militiae as he crossed the pomerium (save for
exceptional circumstances or special decree of the Senate, for example for
the ceremony of triumph or when the city was under siege). These ritual
obligations are clearly and negatively described in the annalistic account
of the departure in  bc of the consul C. Flaminius, who had left Rome
to join his army without having taken the auspices: for political reasons,
Flaminius was in a conflict with the Senate who opposed him and wanted
to prevent him from taking the command of the army.87 So, the con-
sul left Rome secretly, without taking the departure auspices; nor did he
make his vows to Jupiter, and he left without paludamentum and without
lictors (more specifically, without the axes placed in his lictors’ fasces),
therefore he left without imperium militiae. According to Livy, he left like
a simple citizen (privatus), without regular auspices (inauspicatus), and
this condition marred all his later actions with a religious flaw (and was
also supposed to account for the bitter defeat he suffered with his army at
Lake Trasimene): “an ordinary citizen (privatus), auspices (auspicia) do
not go with him, and once he has gone without auspices (sine auspiciis
profectum), he cannot take new unmarred ones (nova atque integra) on
foreign ground (in externo solo)”.88 This event consequently shows that
the taking of the departure auspices was indispensable in order to obtain
the imperium militiae.
The magistrate who would convene and preside over the comitia cen-
turiata, an assembly of the populus also called the “urban army” (exerci-
tus urbanus) or “centuriate army” (exercitus centuriatus) meeting on the
Field of Mars (that is to say, outside the pomerium),89 also had to have
taken the “departure auspices” or similar auspices:90 a fragment from the
Commentarii consulares quoted by Varro indicates that the convening of
comitia centuriata by a consul was an act of imperium militiae.91 Another

87 Livy, Ab urbe condita ..

88 Livy, Ab urbe condita .., ed. R.S. Conway and C.F. Walters (Oxford, ): nec
privatum auspicia sequi, nec, sine auspiciis profectum, in externo ea solo nova atque integra
concipere posse.
89 Varro, De lingua Latina .; . See G.V. Sumner, “The Legion and the Centuriate

Organization,” Journal of Roman Studies  () –; Luigi Capogrossi Colognesi,

Storia delle istituzioni romane arcaiche (Rome, ), p. .
90 Magdelain, Recherches sur l’ « imperium », pp. –.
91 Varro, De lingua Latina ., ed. P. Flobert: In Commentariis consularibus scriptum

sic inveni: “Qui exercitum imperaturus erit accenso dicit hoc: (. . .). Dein consul eloquitur
ad exercitum: ‘Impero qua convenit ad comitia centuriata’.”
 curiate law, religion, and the roman magistrates’ power 

example is provided by the elections for the consulship in  bc, when
the consul Ti. Sempronius Gracchus (the father of the Gracchi), who
presided over the electoral comitia, made a mistake that led to the cancel-
lation of the elections: in order to take the auspices for the coming comitia
centuriata, he had pitched his augural tent in Scipio’s gardens stretching
over the slopes of the Quirinal, over the Field of Mars, where the peo-
ple had gathered for the comitia (fig. , C); yet, in the meantime, he had
had to go back to the city to consult the Senate, and therefore crossed
the pomerium forgetting that he was thus losing his imperium militiae,
and so he was supposed to take the “departure auspices” again before
he could return to preside over the electoral assembly.92 Scipio’s gardens,
where Ti. Gracchus had his tent pitched, were outside the pomerium
(since they were the horti of a villa): such a place was ideal because it
was located near the auguraculum of the Quirinal on the Latiaris hill—
which is mentioned in the Ceremonial of the Argei quoted by Varro—(see
fig. , C); this auguraculum was suitable for taking the auspices before
the opening of the comitia (in order to ask the divinity to allow them
to take place through assembly auspices).93 Furthermore, the magistrate
who convened the assembly had to possess the imperium militiae, and
for this matter, he had to take the “departure auspices” (or similar ones)
within the urbs, before he crossed the pomerium (cf. Flaminius in  bc):
yet these auspices failed Ti. Gracchus when he came back to the Field of
Mars after consulting the Senate inside the city.

. The Religious Nature of the Power of the Magistrates

The augural law would, therefore, match the two aspects of imperium,
civil and military, with the two zones of the urbs and the ager Romanus,
following a spatial distribution expressed by the locatives domi and mili-
tiae that are still in use at the end of the Republic and at the beginning of
the Principate. This spatial distinction between the two types of pow-
ers that a greater magistrate could possess would depend directly on
the nature of the auspices that the curiate law had vested in him. The

92 Cicero, De divinatione .; .–; De natura deorum .–; Granius Licini-

anus, Annales – ed. Michael Flemisch (Leipzig, ) = , – ed. Nicola Criniti
(Leipzig, ); Valerius Maximus, Facta et dicta memorabilia ...
93 Varro, De lingua Latina .; cf. Coarelli, “La doppia tradizione”, pp. –; Id.,

s.v. Auguraculum (collis Latiaris), in LTUR,  (Rome, ), p. .

 michel humm

prevalence of the auspices for the determination of the type of power

of command that a magistrate could exercise, is expressed in the phrase
auspicio imperioque that can be found on the inscriptions of victorious
generals.94 As Magdelain underlines, “this expression, of an archaic ori-
gin, puts the power and its source side by side: departure auspices gained
for the general the conferment by Jupiter of the imperium”; auspicium is
put in first place as “la cause précède l’ effet”.95 In other words, imperium
has its source in the auspices, and those, in their turn, can only be taken
after the magistrate receives permission from the lex curiata: this is both
true for the imperium domi and for the imperium militiae, since “depar-
ture auspices, like those for coming into office, must be preceded by a
curiate law”.96 It is only in this perspective that we can rightly speak of
a lex curiata de imperio. However, it is not the curiate law that confers
the power of command (imperium) on the magistrate, rather it is exclu-
sively the taking of the auspices: the real, genuine source of the imperium
is not the people, who does not dispose of it, but Jupiter. The imperium is
indeed, first and foremost, a power of absolute command, the power of
Jupiter of which the unique source is Jupiter himself: neither the populus,
convened in the comitia, nor anyone else, could entrust the magistrate
with this power, either by election (which is but a choice among several
candidates), or by the passing of a law. The people gathered in comitia
(even when they are purely formal comitia such as the curiate assembly)
can only give licence to the magistrate to go and take the auspices.97 All
the rest of his attributions, that is to say the civil, military, or legal powers
deriving from his potestas and his imperium, are of religious origin, since
they are provided through Jupiter’s will and certified during the taking of
the auspices.98
In the procedure that finally prevailed, which we can find towards the
end of the Republic, the magistrate recently elected by the comitia pro-

94 E.g. CIL I2,  = ILLRP ; Livy, Ab urbe condita ..; ..–; see Magde-

lain, Recherches sur l’ « imperium », p. ; Id., “L’ inauguration de l’urbs,” pp. – (= Id.,
Jus Imperium Auctoritas, pp. –); Bastien, Le triomphe romain, pp. –.
95 Magdelain, Recherches sur l’ « imperium », p. .
96 Magdelain, Recherches sur l’ « imperium », p. ; cf. Cicero, De lege agraria ., ed.

Boulanger: (. . .) consuli, si legem curiatam non habet, attingere rem militarem non licet.
97 Magdelain, Recherches sur l’ « imperium », p. : “La loi curiate n’est à cet égard

qu’une investiture préalable de nature purement laïque: elle autorise l’ investiture pro-
prement dite par Jupiter.”
98 Contrary to what A. Magdelain asserts (Id., Recherches sur l’ « imperium », pp. –

), the iuris dictio of a magistrate does not derive more from the curiate law than from
his imperium, since his legal capacity directly comes from his imperium (domi).
 curiate law, religion, and the roman magistrates’ power 

ceeds forth to the Capitol in order to take the auspices: the auspices that
had preceded the electoral assembly were considered as a sacral investi-
ture of the magistrate that enabled him to ask for sacral investiture him-
self. In other words, people finally considered that the elected magis-
trate automatically received the auspicium (i.e. the ius auspiciorum) by
the mere fact that he had been elected by an assembly inaugurated by
the auspices and presided by an auspicatus magistrate. This would be,
though, a real “contresens juridique” (Magdelain), as only the curiate law
was able to confer on the elected magistrate the right to take the aus-
pices: the election, which is nothing but a mere choice that confers no real
power, eventually usurped the value of an investiture of powers, and the
vote of the curiate law, as well as the ritual of taking the auspices, turned
out to become mere formalities, whose true meaning had been lost. How-
ever, this political and institutional evolution of the very late Republic did
not prevent the vote of the curiate law from remaining indispensable in
order to obtain military command, and consequently the position of gov-
ernor in a province. On the other hand, the role played by the election
in the appointment of a new magistrate is more recent than the curiate
law, since the curiate assembly is historically more ancient than the other
comitia: before being elected by an assembly of the people, the new mag-
istrate was “named” by his predecessor, following a procedure of archaic
designation of which renunciatio is a trace—that procedure was used long
after in the designation procedure of the dictator by the consul. In other
words, at the beginning of the Republic, the new magistrate was chosen
by his predecessor who later introduced him to the comitia curiata, for
him to be greeted by a unanimous cheer (suffragium), and obtain the vote
of the curiate law that enabled him to go and take the auspices, and be
granted powers by Jupiter.
The preliminary authorisation to take the auspices must have been a
breakthrough of the republican regime, as this principle was foreign to
the regal period when the king took auspices probably by his own author-
ity.99 So the curiate law must have been created after the monarchy had
disappeared in Rome, and the law had to specify the type of auspices to
which the magistrate was entitled (auspicia maxima for a greater magis-
trate or auspicia minora for a lesser one). The extent of his potestas and,
in some cases, of his imperium, derived directly from the nature of his
auspicium (ius auspiciorum). According to Magdelain’s highly suggestive

99 Magdelain, Recherches sur l’ « imperium », pp. –; pp. –.

 michel humm

hypothesis, the curiate law would also have specified or defined the
period of magistracy, which means it would have specified in advance for
how long the magistrate would possess his auspicium.100 In other words,
the lex curiata might have determined the term of a year for magistra-
cies (or six months for a dictator), and this would have been at the origin
of one of the fundamental principles of republican institutions: the lim-
ited period during which magistrates could hold their office. At the same
time, the lex curiata, by officially conferring the auspicium on the mag-
istrate, was the corollary of the principle according to which the powers
he possessed did not really derive from the populus, but ultimately from
Jupiter’s approbation. In other words, the power of command of a greater
Roman magistrate was not conferred by the people electing him (or, for-
merly, by his predecessor who appointed him), but by Jupiter himself,
and the nature of this power originated in the “religious system” of the
city. This is most probably one of the things that hindered the affirmation
of a principle of sovereignty of the people, and the development of a true
democracy in Rome.

100 Magdelain, “Note sur la loi curiate,” pp. – (= Id., Jus Imperium Auctoritas,
pp. –); Id., Recherches sur l’ « imperium », pp. –.
 RATIONALIZING RELIGIOUS PRACTICES:
THE PONTIFICAL CALENDAR AND THE LAW

Jörg Rüpke

. Watching the Moon: The Structure of the Roman Months

Roman antiquarians who wrote between the second century bc and the
fifth century ad permit the drawing of a detailed picture of the oldest
Roman calendar. It consisted of lunar months which had a clear-cut
internal structure based on four ritually marked days.
The start of the month witnessed the most peculiar proceeding. On
a day close to the appearance of the new moon, a ‘scribe’ observed the
moon. This person was an assistant to a group of Roman patricians who
were referred to as pontiffs and were entrusted for life with all manner
of domestic political issues, especially legal and sacral tasks. The goal of
this observation was to estimate how many days remained until the first
quarter of the moon (or a comparable set measurement). Along with the
rex sacrorum, the scribe proceeded to a small shrine on the Capitol, the
Curia Calabra, supposedly thatched by the city founder Romulus himself
(Servius) or located close to the hut of Romulus (Macrobius) in the not
quite correct topography of late ancient writers and thus tied to a corner
stone of historical memory. Both persons there performed a sacrifice.
Afterwards, the scribe (later known as pontifex minor), addressed the
goddess thus:
“I call to you, Juno Covella! I call to you, Juno Covella! I call to you, Juno
Covella! I call to you, Juno Covella! I call to you, Juno Covella!”1

Repeating this call five times signalled to the participants that the public
assembly day, which was determined by the first quarter of the moon,
would be in five days, counting the day on which the sacrifice and address
were performed.2 Depending on the particular phase of the moon, this

1 Varro, De lingua Latina .; Macrobius, Saturnalia ...

2 Verrius Flaccus, Inscriptiones Italiae .. (Fasti Praenestini on  January);
Servius, In Vergilii Aeneidem . (with the notes from the Scholia Danielis, “Servius
Auctus”); Macrobius, Saturnalia ..–.
 jörg rüpke

period of time until the next public assembly could be announced by

four or six, indeed even seven repetitions of the call—not only the five
or seven of the standardized later calendar. The wife of the rex sacrorum,
the queen of the sacrifice (regina sacrorum), sacrificed a sow or a ewe to
the goddess Juno on the same day in the Regia, a cultic building at the
entrance to the forum.3 But it was the act of calling out, kalo in Latin,
which gave the day on which this ritual took place its name, kalendae,
‘calends’.
On the day thus announced, the second structural day, the people
assembled again (probably only a fraction of the few thousand inhabi-
tants of Rome). On this day the announcements were of more substance
than the mere indication of the length of a period. The rex sacrorum
announced the situation of all holidays for that month, presumably not
only the date but also, as relevant, the place where central rituals would
be performed and the festive decorations or offerings of the participants.4
Such announcements in medieval churches were still the most important
act of communication of the calendar at the beginning of each year. We
know nothing of specific rituals, but can assume that this assembly also
served as a forum for markets, legal business, and possibly also political
assemblies. The name of the day on which these detailed announcements
were made is drawn from the interval between it and the day of the full
moon, nonae, ‘nine days’. The day of the full moon itself was referred to
by a word of Etruscan origin as Ides (idus).5 The ‘Nones’ were ‘nine days
before the Ides’, while Roman inclusive counting meant that the nine days
included both the Ides and the Nones.
The Ides, the third day of the monthly structure, were the summit of
the month. The whole day was feriatus, a festive break in some types
of work. The Flamen Dialis, the priest of the extraordinary god Jupiter,
attended by other religious specialists, regularly sacrificed a white ram.6
The colour of the animal relates to the god who was considered the cre-
ator of the bright sky.7 The form of festivities went beyond these rou-
tine rituals, however. The oldest games, wagon racing, two-man compe-

3
Macrobius, Saturnalia ...
4
Varro, De lingua Latina .; Macrobius, Saturnalia ..–.
5 Macrobius, Saturnalia ..–.
6 Ovid, Fasti ., –; Festus, De verborum significatu .– L.
7 Macrobius, Saturnalia ... See also Plutarch, Roman questions ; Lydus, On

months . (p.  Wünsch). Catherine Trümpy, Untersuchungen zu den altgriechischen

Monatsnamen und Monatsfolgen (Heidelberg, ) shows that the days of the full moon
were also the most ancient holidays in Attica.
 rationalizing religious practices 

titions dedicated to Jupiter or Mars, took place on the Ides, as did the ludi
Romani in September, the ludi Capitolini and the ‘October Horse’ (a race
with a pair of horses and a sacrifice to Mars) in October, and later the
ludi plebeii, the ‘plebian games’, in November.8 New Year rituals on the
Ides of March and the sacrifice in May to Maia, the goddess after whom
the month was named, both also show that the religious formulation of
the Ides was lavish and dense.
What about the fourth day of the monthly structure? Eight days (or
nine, by Roman reckoning) after the Ides, such a concentration of old
and even more important festivals was repeated. The later calendars show
evidence of important and popular holidays which were probably very
ancient, such as the day of the dead or Feralia in February, the birthday
of the city or Parilia in April, the feast of booths or Neptunalia in July,
the ancient race in the valley of the Circus Maximus, or Consualia, in
August, and finally the Divalia, a festival related to the winter solstice in
December, dedicated to the goddess Diva Angerona.
For at least two months, these festivals fail to obscure completely
rituals which were originally monthly and then were either abandoned or
continued in the shadow of the larger festivals—for the latter hypothesis,
however, evidence is small.9 In March, as in May, Roman calendars note
a Tubilustrium, a complex of rituals which has many parallels with other
structural days in the month. As on the Calends, a lamb was sacrificed,10
and an assembly was held on the same day or the following day. In later
times, the assembly was led by the pontifex maximus, the leader of the
pontiffs, but the rex sacrorum was also involved in some manner.11 The
very blowing of the trumpet in the waning phase of the month during the
ritual of the Tubilustrium12 is reminiscent of the ritual for strengthening
the moon which was performed repeatedly during lunar eclipses.13 These

8 See Frank Bernstein, “The Games,” in A Companion to Roman Religion, ed. Jörg

Rüpke (Oxford, ), pp. –; on the October Horse, see Jörg Rüpke, “Equus
October und ludi Capitolini: Zur rituellen Struktur der Oktoberiden und ihren antiken
Deutungen,” in Antike Mythen: Medien, Transformationen und Konstruktionen: Fritz Graf
zum . Geburtstag, eds. Ueli Dill and Christine Walde (Berlin, ) pp. –.
9 See Jörg Rüpke The Roman Calendar from Numa to Constantine: Time, History, and

the Fasti, trans. David M.B. Richardson (Oxford, ), p. .

10 Festus, De verborum significatu .– L.
11 Varro, De lingua Latina .; Ovid, Fasti .–; Plutarch, Roman Questions ;

Paulus, ex Festo .– L.

12 Festus, De verborum significatu .– L. and Varro, De lingua Latina .;

Inscriptiones Italiae .. (Fasti Praenestini, also composed by Festus’ main source,
Verrius Flaccus).
13 Juvenal, Saturae .–. Tacitus, Annales ..–.
 jörg rüpke

rituals were performed by a group of religious specialists of the city of

Rome who in terms of prestige were just inside that circle of religious
functionaries which the Romans referred to with the term sacerdotia, or
‘priesthoods’, granting them a special dignity. These were the Tubicines,
trumpet-players commissioned for public sacrifice.14
The calendar, now, consisted of Calends followed by a variable period,
Nones heading the first week of eight days, Ides heading the second,
and the ‘Tubilustria’, the typical festival date eight days after the Ides.
The Tubilustria again headed a week of eight days, another nundinum,
a nine-day unit on Roman reckoning—ending on the Calends. Now the
monthly form of this empirical lunar calendar and its basis in observation
become apparent. The central day was the day of the full moon, the
Ides belonging to Jupiter. Eight days earlier, on the Nones, there was an
assembly of the people, which served, among other things, to announce
the sequence of holidays. This assembly was followed by three eight-day
periods, which respectively ended with the Ides, the feasts and assemblies
of the Tubilustria and with the assembly on the Calends, thus reaching
the new month. The only variable was the time between the Calends
and the Nones. In order to make sure that the Ides fell on the next full
moon, this earliest period of the month was determined empirically and
then announced—and this announcement determined the name of the
day, ‘Calends’. The part of the month after the full moon of the Ides was,
with its two times eight days, significantly longer than that the period
before. Therefore it covered more than half a lunar period. At the end
of the month, there would be one to three days of moonless nights.
On the Calends, the moon was again visible, well enough for a reliable
judgment to be made about the number of days remaining until the next
full moon.
The system allotted the Ides a more important role in establishing a
boundary than it did the Calends: while the preceding days were counted
as days “before the Ides”, there seem to be vestiges of an old way of
counting “after the Ides”.15 In classical Roman calendars the days after
the Ides, in January for example, were called “the ninth day before the
Calends of February”. Thus, the visible or audible name of the month
changed in the middle of January, just after the Ides.

14 Festus, De verborum significatu . – L.

15 See Rüpke, The Roman Calendar, p. .
 rationalizing religious practices 

. From a Lunar to a Solar Calendar

The calendar thus far described was an empirical lunar calendar driven
by observation, similar to the practice found everywhere in Italy and the
Mediterranean world. The Feriale, which is referred to as Tabula Capuana
and is a ritual calendar from the time around  bc, is especially impor-
tant here. This text regulated the cult at the shrine Haema, near Capua,
which must have been a regional cultic centre.16 In contrast to the much
younger Etruscan cultic calendar, which took the form of a written text
on linen and has been preserved on the wrappings of the mummy of
Agram,17 the days on the seal from Capua were not counted out. Only
a few repeated days with proper names were noted for each month. First
come the Ides, which the Romans believed to be originally Etruscan,18
and which here are referred to as iśveita. According to the late antique
source, Macrobius, and his late Republican sources, the Etruscans had
a system of weeks in which the Nones occurred every eight days. If so,
they may, like the Roman calendar just described, also have had ‘weeks’
headed by a sequence of four structuring days (Nones, Ides, Tubilus-
trium, Calends) which began anew each month. The dates given on the
tablet from Capua fit exactly onto this structure. Here, the Ides, which
mark each new month, were followed, one week later, by the day known
as celuta (waning moon, Tubilustrium to the Romans), then came the
tiniana, connected to the celestial deity Tinia (or the Roman Calends,
dedicated in Rome to the goddess Juno), and finally the day called aperta,
with the waxing moon, or the Roman Nones. The only name for a day in
this Etruscan text which has a comparative basis in a number, macvi-
tule, contains the word for five, and thus would have fallen (assuming
Roman inclusive counting) in the middle of a ‘week’. In view of the lim-
ited sources from this time, it is not possible to determine who adopted
which calendar from whom. It suffices to conclude that the calendar used
by the city of Rome can be understood as a variant of middle-Italian cal-
endar customs.

16 Mauro Cristofani, Tabula Capuana: Un calendario festivo di età arcaica. Istituto

nazionale di studi etruschi e italici: biblioteca di Studi Etruschi  (Florence ). The
tabula Capuana is presently held in Berlin. On the following, see my review in Gnomon
 (), –.
17 Karl Olzscha, “Die Kalenderdaten der Agramer Mumienbinde,” Aegyptus  (),

–. Ambros Josef Pfiffig, Studien zu den Agramer Mumienbinden (AM) (Der etrus-
kische liber linteus) (Vienna, ).
18 Macrobius, Saturnalia ..; weeks: ibid., .
 jörg rüpke

Like the other Mediterranean calendars which worked with lunar

months, the Roman calendar also strove after a stable relation with
the solar year, which determined the course of the natural year, for
both agriculture and sailing, and not least for the possibilities for going
to war. The occasional interpolation of a thirteenth month made this
correspondence possible with the solar year in the calendars known to
us, whether it was given a name of its own or consisted of a reduplication
of one of the twelve normal months. If an extra month was included
every two to three years, the relation of the lunar calendar to the solar
year remained stable in the long term. Thus, such systems for reckoning
time should not be called lunar calendars, but rather lunisolar calendars.
They manage to reflect both the periodicity of the satellite orbiting
around the earth and the orbit of the earth around the central star fairly
well.
Mathematically, the formula for determining the leap years can be
found without a problem. The Greeks of the sixth century bc already
knew that three leap years in eight years, the so-called Octaëteris, pro-
duced a very precise result. The remaining discrepancy of about one and
a half days in such a cycle motivated Meton and his student Euktemon to
introduce a more precise cycle around the year . In a nineteen-year
cycle, there were to be a total of  lunar months, of which  had thirty
days and  had  days.19 Apparently, this Metonic Cycle assumes an
established convention for the lunar month: the observation of the moon
is replaced by the scheduled shifting from months with thirty to those
with  days, in order to reflect the lunar cycle with its average of ,
days.
All precise historical data which are known to us contradict the view
that these cycles were applied regularly in the major Greek cities. Those
responsible often succumbed to the temptation to tamper with the system
to extend their own term of office or tenancy, or the period during which
they could exercise authority. In Rome, the fatal consequences of this
practice can be observed especially well.20

19 A brief account can be found in Thomas Vogtherr, Zeitrechnung: von den Sumerern

bis zur Swatch (Munich, ), pp. – and a more extensive one in Alan E. Samuel,
Greek and Roman Chronology: Calendars and Years in Classical Antiquity (Munich, ),
pp. –. For the -year cycle of Kalippos, see Alexander Jones, Astronomical papyri
from Oxyrhynchus (P. Oxy. –a),  vols. (Philadelphia, ).
20 On Greece, see William Kendrick Pritchett, Ancient Athenian Calendars on Stone

(Berkeley-Los Angeles, ), p. ; id. Athenian Calendars and Ekklesias (Amsterdam,
); on early criticism, see Walter Robert Connor, “Tribes, Festivals and Processions:
 rationalizing religious practices 

In Rome, leap years were maintained, occasionally a thirteenth month

being added. This indicates that the Roman calendar aimed at being a
lunisolar calendar, sacrificing the regularity of the annual number of
twelve months to the advantage of a rough correspondence of a certain
month and seasonal features. Attempts to legally regulate intercalation
may have reached back into the fifth century bc.21 This simply shows
how controversial this point was. Even the earliest Roman calendar
revolution, which can hardly be called anything else and will be described
shortly, failed to deliver any change on this point. It is not by chance that
only after the breakdown of the republic the dictator Caesar was the first
to resolve this issue.
In the fifth and fourth centuries bc, the Roman calendar can be
considered fully integrated into the regional and meta-regional context.
The lunar phases were the same everywhere, while the names of the
months, and when and how often monthly or yearly leaps were made,
varied from place to place. Different names for months every fifteen
kilometres were more the rule than the exception in the small-scale
political spaces of Italy and Greece.
Change, however, was imminent. As in the processes just analysed,
we do not know the details of the reform. Not even the date is certain.
Following Humm and retracting my earlier reconstruction of , it
is more plausible to connect the reform of the calendar with certain
evidence for the publication of the calendar at the end of the fourth
century than with dissipated and unclear, possibly fictional information
on the calendar-related activities of the second Roman decemvirate in the
middle of the fifth century.22 The content of the reform can be deduced

Civic Ceremonial and Political Manipulation in Archaic Greece,” Journal of Hellenic

Studies  (), –.
21 Pace second century bc historians quoted by Macrobius, Saturnalia .., in the

fifth century ad.

22 I here follow the arguments of Michel Humm, “Spazio Tempo Civici: Riforma

delle tribu e riforma del calendario alla fine del quarto secolo a. C,” in The Roman
Middle Republic: Politics, Religion, and Historiography c. – B.C., ed. Christer Bruun
(Rome, ) pp. – against Agnes Kirsopp Michels, The Calendar of the Roman
Republic (; repr. Princeton, ) and her dating, which is still accepted in Jörg
Rüpke, Kalender und Öffentlichkeit: Die Geschichte der Repräsentation und religiösen
Qualifikation von Zeit in Rom (Berlin, ); see Michel Humm, Appius Claudius Caecus:
la République accomplie (Rome, ), pp. –, for a summary of the arguments.
Unfortunately, the political contextualisation of the date of reformation claimed by Egon
Flaig, “Kampf um die soziale Zeit—in der römischen Republik,” Historische Anthropologie
 (), – is lacking in Humm. See now Rüpke, The Roman Calendar, pp. –
.
 jörg rüpke

from the form of the pre-Julian calendar, which is known primarily from
the Fasti Antiates maiores, a wall calendar from a building in the Latin
town of Antium, probably painted in the s bc.23
At first sight, this calendar appears to correspond to the Roman lunar
calendar: Calends, Nones, Ides, Tubilustrium are all present, along with a
thirteenth month called Interkalaris, or ‘called between’. The revolution-
ary character of this intervention is only apparent with a second look,
and appears in the last line of the calendar.
The reform affected the length of the months, which were fixed. Jan-
uary had  days, February , March , April , May , and so on.
This produces a sum of  days, one day more than the average lunar
calendar. Initially, this appears simply to be the replacement of empir-
ical lunar months with conventional fixed ones. The resulting error, a
gradual lagging behind the phases of the moon, seems to have been
compensated for by the shorter twenty-seven day ‘leap-month’. To this
extent, everything remains in the framework of customary local varia-
tions. But an examination of this extra month reveals something extraor-
dinary: the last five days of it are identical with the last five days of Febru-
ary. This is confirmed by ancient sources which simply register that the
extra month actually added only twenty-two days (or sometimes twenty-
three),24 rather than twenty-seven, since it simply replaces the last five
days of February. Instead of fleeing on the feast of Regifugium, the ‘flight
of the king’ (interpreted by imperial authors as a remembrance of the
expulsion of the last Roman kings at the end of the sixth century), the
Rex sacrorum simply announced the Calends of the extra month on 
February.25 This, however, will have a fatal result if the months are of fixed
lengths: the following year’s calendar will lag behind the full moon (and
all other phases of the moon) by five to six days, and there is nothing that
can be done about it. Thus, in spite of maintaining the entire terminol-
ogy and also the ritual apparatus, this calendar completely abandoned
correspondence to the moon. The lunisolar calendar had changed into a
strictly solar year, despite its clinging to what seemed to remain an inter-
calary month.

23 Rüpke, Kalender und Öffentlichkeit, pp. –.

24 Censorinus, De die natali ..
25 On flight, see Plutarch, Roman questions . Intercalation after the Terminalia:

Macrobius, Saturnalia ..; Livy ... See Rüpke, Kalender und Öffentlichkeit,
pp. –.
 rationalizing religious practices 

. Making Time and Marking Time

The moon is a democratic clock. Anyone can easily observe its phases.
Appointments made on that basis are not very exact—one can err by one
or two days—but at least one is prepared. Monthly festive gatherings for
the full moon do not require a newspaper, and were just as widespread
in Iron Age Italy as in the Near East. The sun is more demanding.
The observation of the course of the sun and the rising and setting of
stars at dawn or dusk requires significantly greater observational effort,
an institutionalised memory, and specialists. Accordingly, the results of
solar observation are less obvious: the claim that the days are now getting
longer can only be substantiated (without a clock) after a number of
weeks. As a consequence, decisions on the calendar require some power
of enforcement. As Elias has shown, it is a usual trick of the makers
of social time to represent themselves as mere ‘translators’ of heavenly
time. This is achieved by reference to the astronomical markers of time,
legitimising social time regulations. Regulation is called measurement,
not the setting of time or its construction.26
This leads to a surprising insight into the changes in the Roman
calendar as reconstructed so far. An important motif in the reform
is the abbreviation of the leap-period. The old ritual practice used to
consist of announcing the shift on the sixth day before the Calends of
March, by redefining the day as the sixth day before the Calends of
the extra month and bypassing the flight of the king, the Regifugium
(which would be performed only in the end of the intercalated month).27
Just celebrating the Calends of the extra month was a relatively easy
solution. This method also brought with it the mathematical advantage
in that the shortening of the extra month suggested an intercalation
every second year. The fixing of the lengths of the months was the last
part of this package deal. Here again the need for decision-making and
for communication was reduced, and the consequences of decisions
in calendar matters were minimised. Whether the period between the

26 See Norbert Elias, Über die Zeit. Arbeiten zur Wissenssoziologie  (Frankfurt am

Main, ); see also Pitrim A. Sorokin and Robert K. Merton, “Social Time: A Method-
ological and Functional Analysis,” American Journal of Sociology  (), –.
27 On this festival and its interpretation, see Jörg Rüpke, “ ‘Königsflucht’ und Tyran-

nenvertreibung. Zur Historisierung des Regifugium in augusteischer Zeit,” in Tage der

Revolution-Feste der Nation, eds. Rolf Gröschner and Wolfgang Reinhard (Tübingen,
), –.
 jörg rüpke

Nones and the Calends was five or seven days (on Roman reckoning)
could now be known and it was no longer necessary to determine it anew
each month.
The reduction of possible conflicts related to the calendar fits in with
the larger picture of the historical situation at the end of the fourth cen-
tury and the establishment of the patrician-plebeian nobility.28 Internal
trouble spots could be insulated. Traditional, group-based privileges were
reduced or removed. The opportunities for persons drawn only from
the patrician class in priestly positions like that of the rex sacrorum or
pontifices to influence the form of the calendar were decreased. But the
reform also had a foreign-policy component. The Roman solar calendar
became untranslatable, being incompatible with the lunar calendars of
the surrounding peoples. This is where the reform takes on its revolution-
ary colour. It signals concentration on the compact, urban res publica. It
was no longer the extra-Roman contacts of noble families, but rather the
internal cohesion and the coherence of the nobility which was to be deci-
sive. The new calendar impeded external contacts. At the same time, it
established a palpable differentiating mark: the Latin allies had to march
to the beat of a new drummer and military operations could only be coor-
dinated according to the Roman calendar. This makes manifest a state of
feeling, a mentality, which was expressed in many institutions and polit-
ical decisions of the Middle and Late Republic, namely the inability, or,
even more, the unwillingness to sacrifice the image of the self-sufficient
and self-determined city-state to the reality of the formation of ever larger
areas of rule. It was not the last time in the history of the calendar that
the system for marking time would be subordinated to the formation of a
particular identity. The peculiarities of the Jewish and Islamic calendars
are based, as we will see, on similar decisions.

. Calendar and Enscripturation

Roman tradition unanimously states that the calendar was first published
by Gnaeus Flavius.29 We know little about him. He was a scribe of
Appius Claudius Caecus, one of the most important politicians around

28 In general, Karl Joachim Hölkeskamp, Die Entstehung der Nobilität: Studien zur

sozialen und politischen Geschichte der römischen Republik im . Jhdt. v. Chr. (Stuttgart,
).
29 Cicero, ad Atticum ..; Livy, Ab urbe condita ..; Macrobius, Saturnalia ...
 rationalizing religious practices 

the turn from the fourth to the third century,30probably stemming from
Praeneste.31 Since Appius was pontiff, the post of scribe had probably
been the position of scriba pontificius, which means Gnaeus held exactly
that office to which the observation of the moon on the Calends was
attached. In  bc, he was elected, in the face of stiff competition, as
curule aedile, thus taking the most important step up the ladder in a
Roman official career.
It was probably in the context of these developments that the calendar
was written down with the reform of the comitia tributa, dated to  bc,
offering the terminus post quem.32 Such an enscripturation was new, not
only for Rome, but also for the whole of Mediterranean Antiquity. In
Egypt there was literature which explained whether each day of the year
was good or bad, appropriate or inappropriate for particular activities.33
This literature constituted reference works for specialists. In Greece there
were “sacrificial calendars” in the form of inscriptions, open to the public,
which documented which groups were financially responsible for which
cults.34 These were lists of festivals which documented obligations and
contributions to the rituals of these days. They were not calendars. In
contrast, at Rome a proper calendar text was published, with an overview
of all the days of the years, which may have had the same form as can
be found in the Late Republican wall calendar from Antium. The fact
that the length of the months had been fixed and that the procedure
for leap-years and months had been changed did not in itself require a
written calendar. All the other users of conventional lunar months in the
Mediterranean world managed without any such.
The Roman reform, however, went beyond what was customary in one
respect. A continuous sequence of weeks was introduced, an uninter-
rupted eight-day rhythm which continued across the ends of months.
Where this rhythm had previously been readjusted on the Calends and
only continued from the Nones to the next Calends, a new system was
made which corresponds more closely to our own present-day handling
of weeks, or more precisely, the astrological and Judeo-Christian week

30 See Humm, Appius Claudius Caecus, for details.

31 See Françoise-Hélène Massa-Pairault, “Relations d’Appius Claudius Caecus avec
l’ Etrurie,” in Le censeur et les Samnites: sur Tite-Live, livre IX, eds. Dominique Briquel and
Jean-Paul Thuiller (Paris, ), pp. –; see pp. – for the specific relationship
with Ap. Claudius Caecus.
32 Humm, Appius Claudius Caecus, p. .
33 Christian Leitz, Studien zur ägyptischen Astronomie (Wiesbaden, ).
34 Alfred North Whitehead, Wie entsteht Religion?, trans. Hans Günter Holl (Frankfurt

am Main, ), pp. –.

 jörg rüpke

which we inherited from Rome in a form shortened by one day. As obvi-

ous as that may seem today, it must have been completely revolutionary in
Rome at the end of the fourth century. Even the Greek calendars known
to us used “weeks”, but those were “decades” (periods of ten days) struc-
tured to give rhythm to social, political, and religious activities (although
many such activities were only performed in the first decade). These were
not, however, continuous. They started again at the beginning of each
month, when necessary facilitated by the shortening of the last decade
by one day in those months with twenty-nine days. On this point, Rome
created a remarkable parallel to the Jewish Sabbath, developed during the
Babylonian exile.35
Minority status and exile, however, were not exactly characteristic
of the Roman situation. The newly established nine-day, or ‘nundinal’,
rhythm was not determined by religion. The nundinae at the end of each
nine-day period were primarily market days, when legal business could
also be done.36 If we are to search for a motive for the new convention,
we must search in the area of the regulations of the public use of these
days. What was essential to the Roman change was, in any case, that the
new rhythm augmented rather than replaced the old. The old structure of
monthly orienting days remained. The calendar of holidays was oriented
to this structure, and this structure also determined the position of
feasts and rituals.37 The new system only had a minimal religious accent:

35 This also was probably originally a holiday which was connected to lunar cycles,

presumably the full moon and the new moon. Accordingly, an average of fourteen or
fifteen days elapsed between such festivities. Only in the situation of Babylonian exile,
in the sixth and fifth centuries bc did a continuous seven-day week arise out of the
two-sabbaths per month. In the context of exile in Mesopotamia, as a minority, this
regulation may have been aimed at constructing a strong identity as a religiously separate
group. Even more than participating in particular feasts, the new structuring of everyday
life must have had a distinguishing and alienating effect. This thesis is from Johannes
Meinhold () and is not uncontroversial. The counter-position is formulated by
Andreasen (). See also Arnold and Daniel J. Lasker, “The Jewish Prayer for Rain
in Babylonia,” Journal for the Study of Judaism in the Persian, Hellenistic and Roman
Period  (), –; Bernard Goldstein and Alan Cooper, “The Festivals of Israel
and Judah and the Literary History of the Pentateuch,” Journal of the American Oriental
Society  (), –. On the presence of the Babylonian calendar in Egyptian
Elephantine prior to the Jewish settlers, see Sascha Stern, “The Babylonian Calendar at
Elephantine,” Zeitschrift für Papyrologie und Epigraphik  (), –. For the
Jewish calendar in general, see Sacha Stern, Calendar and Community: a History of the
Jewish Calendar, second century bce to tenth century ce (Oxford, ).
36 Macrobius, Saturnalia ..–, quoting numerous earlier jurists.
37 There lies the difference with the Jewish reform.
 rationalizing religious practices 

similarly to the routine rituals of the monthly structuring days, a ram was
sacrificed to Jupiter in the Regia by the Flaminica Dialis, the wife of the
priest of Jupiter.38
The apparent aim of the reform was thus the separation of social func-
tion from particular dates. We can, along with the Roman antiquarians,
historians, and ethnographers like Licinianus Gracchanus, Varro, and
Verrius Flaccus, assume that the monthly structuring days, as market
days, brought together all manner of things. But we can also assume that,
as early as the early Republican calendar, some functions were separated
out. On the Nones the assembly was dominant and cult was lacking. The
Ides were ruled by cult, and we have no evidence of political assemblies.
The Tubilustrium, a week later, shows evidence of a two-day structure,
with cult on the first day, the ninth day after the Ides, and the assembly
postponed to the following day with the ominous letters QRCF. It was
similar to the Calends.39
The reform completely removed the economic function of the market
days from such complexities. Market day was market day, every eight
days, regardless. Thus the structuring days and their rituals certainly lost
something of their attraction and could only offer a different festival each.
Sociologists would describe this as a process of differentiation: diverse
social realms are assigned their own institutions. Rome at the end of
the fourth century bc had become a major city. The decisive impulse
may however have been political and should be seen in the context of
the new definition of the patricio-plebeian nobility. Public space and
public institutions were reassessed, and the rules of political and legal
communication and decision were established or clarified. The attempt
to separate politics, law, and religion from economic matters and from
each other is part of this. It was not a matter of “secularisation”. When
religion was defined clearly in its boundaries and its relation to the gods,
it offered quite new possibilities for legitimising political institutions
from outside.40 Religious specialists, recruited previously from among

38 Macrobius, Saturnalia ...

39 To be precise, they were not made up of an assembly on the ninth day after the
Tubilustria, but the assembly actually took place on the tenth. We do not know which
ritual acts attached it to the previous, ninth day. We can see very well, however, in the
densely commentated calendar of the Fasti Praenestini, that Caesar, when extending the
months to their presently conventional lengths, did not insert the extra days between this
ninth day and the Calends, at the end of the month, but rather directly before each last
day of the month. The cultic connection between the end of the month (the ninth day)
and the Calends thus remained undisrupted.
40 See Jörg Rüpke, The Religion of the Romans: An Introduction, trans. Richard Gordon

(Oxford, ).
 jörg rüpke

the patricians only, now had more limited privileges, and their positions
were integrated into the new nobility.41 The year  bc saw the passing
of an “Ogulnian plebiscite” which opened the priesthoods to the plebs as
well.42
The juxtaposition of both calendar systems required written represen-
tation. The new nundinal system had to be derivable from the old struc-
ture. Accordingly, repetitive symbols form the framework for the entire
representation of the calendar, as illustrated by the pre-Julian calendar
from Latin Antium. At the beginning of the line for each day there is a
letter which appears in the repeating sequence A, B, C, D, E, F, G and
H. The eight-day Roman week, continuing across monthly and yearly
boundaries, is characterised by these nundinal letters. The days of the
week do not have names but are defined only by the nundinae, the mar-
ket days repeating every eight days (in Roman terms, counting both the
first and the last date inclusively makes nine). A new letter each year cor-
responded to the nundinae, so that a calendar could be used for several
years. The letter marked the nundinae throughout the year, much like
Sundays are often shaded in a different colour in today’s calendars, but
changed at the end of the year, as the dates of Sunday will change from
year to year in our calendar.

41 The comparison with the Jewish developments is revealing. In both Mesopotamia

and Rome, it was a prohibition, a radical separation in the social use of time which was the
common motive for the (from a contemporary perspective) revolutionary introduction
of contiguous weeks. In the one case, priestly groups, under the banner of religion, won
for themselves a decisive position, in spite of the loss of their basis in the Temple in
Jerusalem. In the other case, as well, the position of the priests was newly defined, but
under a different banner.
42 Ap. Claudius is given an opposing speech by Livy (..) and used by Cicero

as a model of outdated conservatism; thus, David Christenson, “Unbearding Morality:

Appearance and Persuasion in ‘Pro Caelio’,” Classical Journal  (), . The latter
might have influenced the former invention. If the authenticity of an opposition towards
the plebiscite is assumed (despite the anachronistic supposition of late Republican issues
by Livy, thus Rüpke, Kalender und Öffentlichkeit, p. , n. ; see e.g. Joseph Georg Wolf,
Die literarische Überlieferung der Publikation der Fasten und Legisaktionen durch Gnaeus
Flavius (Göttingen, ), p. , n. ), this might either be related to an opposition
against specific individuals (who were to become members of the colleges of the augurs
and pontiffs as a consequence) rather than plebeians as such (see Humm, Appius Claudius
Caecus, pp. –) or it is to be understood as opposition against a conservative
pontifical position of securing specific prerogatives and functions (as knowing about the
fasti) which would be strengthened by a broader patricio-plebeian basis (see Federico
d’Ippolito, “Das ius Flavianum und die lex Ogulnia,” Zeitschrift der Savigny-Stiftung für
Rechtsgeschichte, romanistische Abteilung  (), – and id., Giuristi e sapienti
in Roma arcaica (Roma, ), pp. –; cf. Filippo Cassola, I gruppi politici romani
nell III secolo A.C. (Trieste, ), pp. –).
 rationalizing religious practices 

. Calendar and Law

The image of Gnaeus Flavius painted so far does not quite correspond
to the evaluation in Roman tradition. Apparently he was accused by
some contemporary politicians as well as by some later authors of having
committed treason by publishing the calendar and thus breaking the
monopoly of this knowledge so far held by the pontiffs.43 Livy, the
canonical teller of Roman history, narrates the story like this:
In the same year, Cn. Flavius, the son of Gnaeus, a scribe and from humble
origins—his father was a freedman—, but otherwise an intelligent and
eloquent man, was elected as curule aedile . . . He made the civil law, stored
in the arcanum of the pontiffs, common knowledge and set up calendars of
juridical days around the forum on a whiteboard, in order to make anyone
know when he could bring an action.44
What had happened? The Romans saw the foundation of their civil and
penal law in the Laws of the Twelve Tables which were supposed to have
been written down in the middle of the fifth century bc. We do not know
exactly how the codification of Roman law into the form of the Twelve
Tables had happened. The known fragments of this fundamental text of
Roman legal history come from commentaries from the early second
century bc, but it is not known how much authenticity can be ascribed to
the texts they used.45 Possibly the texts of the Twelve Tables only took on
their final form in this period. Pomponius, an imperial lawyer, recounts
the story in his Handbook thus:
After that, to put an end to this state of affairs, it was decided that there
be appointed, on the authority of the people, a commission of ten men by
whom were to be studied the laws of the Greek city-states and by whom
their own city was to be endowed with laws. They wrote out the laws in
full on ivory tablets and put the tablets together in front of the rostra, to

43 See Cicero, Ad Atticum .. and in particular Cicero, Pro Murena , also Pliny the

Elder, Naturalis historia . and Pomponius, Digesta ... (subreptum); Livy, Ab urbe
condita ..– (followed by Valerius Maximus, Facta et dicta memorabilia .. and
Macrobius, Saturnalia ..). Critically against the notion of ‘monopoly’ Jan Hendrik
Valgaeren, “The Jurisdiction of the Pontiffs at the End of the Fourth Century bc,” in this
book, who, however, does not point to any evidence against a monopoly in calendarical
definitions.
44 Livy, Ab urbe condita ..–: . . . () civile ius, repositum in penetralibus pontifi-

cum, evolgavit fastosque circa forum in albo proposuit, ut, quando lege agi posset, sciretur.
My translation.
45 Arguments, but no full line of argumentation against the historicity of the Twelve

Tables can be found in Marie Theres Fögen, Römische Rechtsgeschichten: über Ursprung
und Evolution eines sozialen Systems (Göttingen, ).
 jörg rüpke

make the laws all the more open to inspection. They were given during
that year sovereign right in the civitas, to enable them to correct the laws,
if there should be a need for that, and to interpret them without liability
to any appeal such as lay from the rest of the magistracy. They themselves
discovered a deficiency in that first batch of laws, and accordingly, they
added two tablets to the original set. It was from this addition that the
laws of the Twelve Tables got their name. Some writers have reported that
the man behind the enactment of these laws by the Ten Men was one
Hermodorus from Ephesus, who was then in exile in Italy.46
Both stories are well known—because they are stories. Whereas the first
directly relates to the juridical calendar, the second does not speak about
it, but only about the Twelve Tables. And yet, at least for Cicero, both
stories were related. He could not imagine that the publication of the
basic laws did not entail the publication of the calendar, and he is so sure
that he rather doubts the priority of Flavius.47 The enactment of Roman
law was in need of time in the calendar.
An important element in legal practice, even before Flavius, was def-
initely the legal actions. These played a decisive role in the initiation of
a trial. The actual trial only began when the object of dispute, whether
that was property or an obligation to make compensation on the part of
an individual, had been clearly defined and accepted by both parties. For
this proceeding, formulae had been developed which gradually became
more and more finely differentiated. Gaius records a formula for such a
proceeding in his legal textbook from the second century ad, for the case
of a legis actio sacramento in rem, or “regarding property”:
If it was a real action, they vindicated before the court movable and living
property, which could be carried or led into the court, in this way. The
claimant would hold a rod; then he would take hold of the actual property,
for instance a slave and say: “I declare that this slave is mine by Quirite
right in accordance with my case. As I have spoken, see, I have imposed
the claim”, and at the same time he laid the rod on the slave. His opponent
likewise said and did the same. When each of them had made his claim
the praetor would say: “Both of you let go the slave.” They then let go of
him. The first claimant would then say. “Inasmuch as you have claimed
wrongfully, I challenge you on oath for five hundred “asses”.” His opponent
then said likewise: “And I you.” If the property was worth less than a
thousand “asses”, the sworn penalty that they named would be for fifty.48

46 Pomponius, Digesta ..., translation by D.N. MacCormick in The Digest of

Justinian, ed. A. Watson (Philadelphia, ).

47 Cicero, Ad Atticum .. and .
48 Gaius, Institutiones .; translated by W.M. Gordon and O.F. Robinson, The Insti-

tutes of Gaius (London, ).

 rationalizing religious practices 

This somewhat peculiar procedure came to an end when the sum in

question was deposited with the pontiff. It was clear that one or both
parties had sworn an oath, and that the oath was to be kept before
the gods. For that purpose, the sums originally deposited were made
available and the winner of the proceedings got his ‘bet’ back.
It was the pontiffs who at the end of the fourth century administrated
these formulae and who prepared them for legal proceedings.49 They
were also the ones who determined the correct time for proceedings
to be opened. Constructing legal proceedings around a conscious oath,
the sacramentum, did allow for a procedure based on argumentation
and evidence within that framework. At the same time, however, such a
framework was precarious from a religious perspective, because it had to
be coordinated with other religious dates, especially holidays. This was
the second task of the pontiff, namely determining the days on which
legal proceedings of this kind could be carried out.
Flavius intervened on both points, publishing the formulae, the legis
actiones, as well as the fasti, the calendar consisting of a “list of days, or
fas, appropriate for the opening of legal proceedings”.50 Cicero sees this
publication as the result of Flavius having peeked at the documents of the
pontiffs and memorised them clandestinely.51 This is a manifestation of
his historical imagination, not of his historical sense of reality.
In the context of the waning fourth century, a calendar reform must
have been supported by a broad consensus among the nobility. The
specifics of the decision-making process are not known to us. We know
neither the pace nor the sequence with which particular elements were
decided. It is highly probable that the point of departure was located in
the intercalation, the rules for the leap-years and the number of days
involved. Regulation of the market days was probably part of the same
package, as one did not revolutionise the calendar every other year. With
that regulation, however, enscripturation and publication of the calendar
became unavoidable. If, however, there was some idea about a clear
differentiation of social uses of time behind the separation of market days
(nundinae) and monthly structuring days, it would have been worthwhile
including just that in the representation of the calendar. One cannot

49 For the fourth century, I follow Olga Tellegen-Couperus, “Pontiff, praetor, and

iurisdictio in the Roman Republic”, Tijdschrift voor Rechtsgeschiedenis  (), –

in attributing iurisdictio to the pontiffs.
50 Dies nefasti, accordingly, are days inappropriate for these procedures.
51 Cicero, Pro Murena .
 jörg rüpke

speak of absolute necessity at any point in this chain, and each point may
have been coloured by conflicts of detail. The linking of an individual
name with the publication of the fasti indicates that there was indeed a
situation of conflict, but that is no reason to see Flavius’ action either as
the criminal behaviour of an individual or as a pontifical conjuration.
Publication was part of the logic of the calendar reform.
Even the connection to Appius Claudius52 (who later went blind and
was given the nickname “Caecus”) shows how grounded Flavius was.
Claudius had been censor in  bc and thus had supervised the com-
position of the citizenry just as much as that of the Senate. Even if his
expansion of the social groups represented in the Senate was rejected53
he was equally successful in his reform of the voting units of Roman
citizens, known as tribus. Apparently, he was aiming for a broad rep-
resentation of the new nobility as well as of the expanded population
in the central political committees. In sacred matters, he transferred the
cult of Hercules, which had previously been maintained by specific fam-
ilies at the Ara maxima, an altar in the Forum Boarium, to publicly-
owned slaves. Himself a priest, his resistance to the Ogulnia plebiscite
on the expansion of the priesthoods, if historical, was not concerned
with the defence of pontifical or patrician special interests.54 His politi-
cal orientation was more towards the impairment of secondary centres
of religious power which would be in concurrence with the patricio-
plebeian magistrates forming the senate. Flavius’ publication fits in here.
Publication was, furthermore, also to the personal liking of Claudius:
he was the first to disseminate his political speeches and views in writ-
ten form, probably the first Roman prose, perhaps even poetic author.55
Another hundred years would pass before that became truly fashion-
able.
Flavius’—to stay with the individualized version of annalistic histori-
ography—publication was simply the last step in a more significant pro-
cess, that of enscripturation of the calendar. Regulations, which had so far

52 For Appius, see the comprehensive discussion of earlier research in Humm, Appius

Claudius Caecus.
53 For the date of the reform, probably  rather than , see John D. Muccigrosso,

“The Brindisi ‘Elogium’ and the Rejected ‘Lectio Senatus’ of Appius Claudius Caecus,”
Historia  (), –.
54 See above, p. .
55 Emmanuel Dupraz, “Appius Claudius Caecus comme fondateur de la littérature

latine,” in Commencer et finir: débuts et fins dans les littératures grecque, latine et néolatine,
eds. B. Bureau and Ch. Nicolas (Paris, ), pp. –.
 rationalizing religious practices 

been occasional decisions or derived from various other rules, were—this

is my claim—summarized in the form of a table. That excluded footnotes
and included abbreviations. Essential information was to be recorded
with a minimum of different short forms.
The name which was given to the calendar—fasti—reveals something
essential. Almost every day was categorised as either Nefas or Fas, and
was marked with an N or an F. A day marked as N for Nefas was
not available for initiating legal proceedings nor for decision-making
assemblies of the people. If, on such a day, a Praetor accidentally started
a trial with the formula do, dico, addico (I give, I say, I confirm) he
was at fault, even though the trial itself was not invalidated. A similar
lapse was ascribed to an official who led an assembly. The decision of
the assembly was thus made vulnerable, even if it was not formally
invalidated, and interestingly this case is not discussed in the antiquarian
sources.
The days categorised as N also have sub-categories. The most impor-
tant of these were the N holidays, marked as NP, which constituted proper
feriae. The P stood for the word piaculum, or ‘atoning sacrifice’, which had
to be offered if the official accidentally transgressed the prohibitions for
that day. A deliberate transgression could not be atoned.56 A few other
days were designated EN. This stands for Endoitio Exitio Nefas and means
that the day concerned was only Nefas in the evening and morning, but
not for the main part of the day. Complicated and protracted cultic acts
are the background here.57 The finer details of pontifical considerations
about the co-occurrence of oaths in legal actions and public sacrifices are
revealed here, as is the loss of information resulting from condensation
into table format and the use of abbreviations. Other cases could not be
grouped in categories. Formulae like Quando rex comitiavit Fas (‘as soon
as the Rex sacrorum opens the Comitium Fas’), or Quando stercus dela-
tum Fas (‘as soon as the manure has been removed, Fas’) suggest further
ritual details which remain beyond our ken. In the latter case, at least,
some connection to the cleaning of the temple of Vesta in the middle of
June can be found.

56 Varro, De lingua Latina . and . See on this text, Olga Tellegen-Couperus,

below, pp. –.

57 Varro, ibid. .; Ovid, Fasti .–.
 jörg rüpke

. Tricking Time

In some cases, the Fasti went too far in their systematization of time. This
held especially true for the political consequences of the Fas regulations.
The conflict, that became notorious, probably arose from the decision to
classify the nundinae, the market days, as nefas.58 This decision makes
sense if the classification was done in analogy to the monthly structuring
days. There was a sacrifice to Jupiter, comparable to that which took place
on the Ides. On both the Tubilustria and the Calends, assemblies were
very restricted or held on a second day. These factors all point toward
an established status before the reform that was comparable to nefas
rather than fas. In the systematized form of the fas-nefas-classification
the resulting limitations went too far, however. A market day like the
Nundines was especially convenient for the population from the sur-
rounding area to also do their legal business. Classifying these days as fas
would, however, have allowed decision-making assemblies of the people
to take place, too. This risk was considered too great. What was to be
done?
The solution was found in an additional differentiation. As with other
activities, there were also days considered especially appropriate for
assemblies, known as assembly-days or dies comitiales. These constituted
just one, although significant, portion of the dies fasti. By adopting the
abbreviation C for the schedule of fasti (which made up the majority
of the days) the problem of the nundinae could be solved. They were
categorised as dies fasti, since this allowed legal actions to be initiated,
but excluded the sitting of committees and decision-making assemblies
of the people.
This new regulation is recorded in the lex Hortensia, the law of the
people’s tribune Hortensius, in  bc which also regulated another mat-
ter. The resolutions of assemblies led by the tribunes, who had once been
the revolutionary defenders of the rights of the plebs, were given equal
status to the proper assemblies led by consuls. Where is the connection?
The formal equivalence of the plebeian contiones and the actual comitia
granted the former a higher degree of legitimacy and commitment. Res-
olutions of the plebs were thus binding for the entire population, includ-
ing patricians.59 At the same time, this equality made the concilia plebis

58 Macrobius, Saturnalia ..–.

59 Pliny the Elder, Naturalis Historia .; Gellius, Noctes Atticae .. (Laelius
Felix).
 rationalizing religious practices 

(assembly of the plebs) subject to the same conditions as the comitia—

they could only assemble on the days newly formulated in the calendar
as dies comitiales, or assembly days, and no longer on the Nundines.
Thus the spontaneity of the assemblies was lost, and this special tool of
tribunician action was integrated into the framework of rules formulated
for the regular comitia.60
The Hortensian law also warns, along with the divided days, against
over-estimating the precision of calendrical regulations. The process of
enscripturation is connected to increased generality. What appears as
a highly accurate and precise system of classifying time, it seems, was
often hardly more than an image of the complicated cultic, legal, and
political reality, with an inadequately small number of abbreviations and
symbols. At the same time, we must not forget that this small number
of different classes of calendars also achieved a systematisation which
developed its own effects and created new cultic, legal, and political
realities.

. Conclusion

I will try to summarize my findings. Based on a few late sources and

the actual text of the first century Roman calendar, recent research has
produced a fairly detailed image of the process that led to some impor-
tant political and juridical structures of time that were valid in the late
Republic. Spatially, temporally, procedurally, and personally, Roman law
had elements or aspects of ritual. These informed—and were formed
by—the observed processes of systematization and enscripturation that
I take to be indicative of “rationalization”. This process created differ-
entiation and new interdependencies that could be described neither
as secularization nor as sacralisation. Codification, of course, changed
the role of the specialists. It did not necessarily diminish it. In the third
century bc, a pontifex maximus publicly advertised legal counselling;61

60 See Rüpke, Kalender und Öffentlichkeit, pp. – for an extensive account, contra

Karl Joachim Hölkeskamp, “Das plebiscitum Ogulnium de sacerdotibus: Überlegungen

zu Authentizität und Interpretation der livianischen Überlieferung,” Rheinisches Museum
 (), –.
61 Cicero, Pro Murena ; Jörg Rüpke, Fasti sacerdotum: Die Mitglieder der Priester-

schaften und das sakrale Funktionspersonal römischer, griechischer, orientalischer und

jüdisch-christlicher Kulte in der Stadt Rom von  v.Chr. bis  n.Chr., Potsdamer alter-
tumswissenschaftliche Beiträge  / –, (Wiesbaden, ), pp. –.
 jörg rüpke

in the second century, a law entrusted the pontiffs with new intrica-
cies of the intercalation, as tradition has it.62 Of course, today we have
to challenge traditional narratives constantly—and our own assump-
tions.

62 Macrobius, Saturnalia ..; Rüpke, Kalender und Öffentlichkeit, pp. –.

 THE JURISDICTION OF THE PONTIFFS
AT THE END OF THE FOURTH CENTURY BC

Jan Hendrik Valgaeren

. Introduction

In modern literature, the publication in  bc of the legis actiones and

the dies fasti by Gnaeus Flavius is often used as evidence that, at the end
of the fourth century bc, the pontiffs lost their monopolistic control of
civil law.1 Until then, only the pontiffs as supervisors of litigation had
had a—jealously guarded—knowledge of the legis actiones and the dies
fasti. According to some authors, the publication marked the beginning
of the secularization of Roman civil law; others explained the publication
in the context of the factional politics that divided Rome by the end of
the fourth century bc. In this connection, some authors also referred to
the lex Ogulnia of  bc that opened the pontificate and the augurate to
the plebeians.2
In my view, considerable confusion has been caused by the use of
the term ‘monopoly’. It is not clear what, in this connection, is meant
by this term, why it was broken, and how. In the following, I shall use
the publication of the legis actiones and dies fasti by Flavius in order to
argue that the pontiffs did not have a monopoly, that it was not broken,
and that the publication of the legis actiones and the dies fasti was only
a matter of modernization of public life that took place at the end of
the fourth century bc. Moreover, I shall argue that the clauses of the lex
Ogulnia support my view that the pontiffs continued to be supervisors of
litigation.

1 See, for instance, Gary Forsythe, A Critical History of Early Rome. From Prehistory

to the First Punic War (Berkeley-Los Angeles-London, ), p. . According to most
Romanists, the pontiffs already lost their monopoly in  bc, when an urban praetor
was set up underneath the consuls to relieve them from civil jurisdiction. See Jacques
Heurgon, The Rise of Rome, to  B.C., trans. James Wills (London, ), p. . In the
same vein: Franz Wieacker, Römische Rechtsgeschichte,  vols. (Munich, ), :–.
2 For an overview, see Federico D’Ippolito, “Das Ius Flavianum und die Lex Ogulnia,”

Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, romanistische Abteilung  (),

–.
 jan hendrik valgaeren

First, I shall deal with the publication of the legis actiones and dies fasti
by Flavius; then, I shall focus on the Lex Ogulnia and its connection with
the publication by Flavius.

. The Publication of
the Legis Actiones and Dies Fasti by Gnaeus Flavius

.. Sources
Nine sources inform us on the publication by Flavius, but they differ as
to what Flavius actually published. Some relate that Flavius published
the legis actiones.3 According to other sources, Flavius published the
dies fasti.4 Again other sources tell us that Flavius published both the
legis actiones and the dies fasti.5 The most reliable source seems to be
a letter written by Cicero to his friend T. Pomponius Atticus. In this
letter of  February  bc, Cicero refers to a question Atticus had asked
in one of his previous letters, insinuating that Flavius lived in the fifth
century bc. Cicero’s answer runs as follows:
Cicero, Ad Atticum ...:6
E quibus unum iστορικòν requiris de Cn. Flavio, Anni filio. Ille vero ante
decemviros non fuit, quippe qui aedilis curulis fuerit, qui magistratus multis
annis post decemviros institutus est. Quid ergo profecit, quod protulit fastos?
Occultatam putant quodam tempore istam tabulam, ut dies agendi peteren-
tur a paucis; nec vero pauci sunt auctores Cn. Flavium scribam fastos pro-
tulisse actionesque composuisse, ne me hoc vel potius Africanum (is enim
loquitur) commentum putes.
You raise a historical query in one of them concerning Cn. Flavius, son
of Annius. He did not live before the Decemvirs, for he became Curule
Aedile, an office created long after their time. So what did he achieve
by publishing the fasti? The answer is that at one time the list is sup-
posed to have been kept a secret so that business days could only be
known by application to a few persons. There are plenty of authorities for

3 Cicero, De oratore .; Pomponius, Digesta ....

4 Cicero, Pro Murena ; Pliny the Elder, Naturalis Historia .–; Macrobius,
Saturnalia ...
5 Cicero, Ad Atticum ..; Valerius Maximus, Facta et dicta memorabilia ..; Livy,

Ab urbe condita ..–.

6 Text and translation by David Roy Shackleton Bailey, Cicero, Letters to Atticus, Loeb

Classical Library (London-Cambridge, Mass., ), pp. –.

 the jurisdiction of the pontiffs 

the statement that Cn. Flavius the Secretary published the fasti and drew
up a list of the formulae of judicial procedure, so you need not think that
I, or rather Africanus7 since he is talking, made this up.
On the basis of this letter, it is now generally assumed that Flavius
published both the dies fasti and the legis actiones and not only one or
the other of them.8 What this letter and the other sources do not tell is
just what it was that Flavius actually published. Yet, that information may
help us to understand the effects of the publication of the legis actiones
and dies fasti by Flavius.
Knowledge of the legis actiones became available only in , when
the Institutes of the classical jurist Gaius (second century ad) were
discovered by Niebuhr.9 According to Gaius, the legis actiones (literally
the actions based on the law), were oral formulas that were used to start
a private lawsuit.10 There were only four legis actiones in Flavius’ days. A
fifth one was added in the third century bc. The legis actio procedure was
the oldest procedure for civil law claims. It consisted of two phases: the
first phase took place before the pontiff and the second one before a iudex.
The plaintiff set the proceeding in motion by pronouncing his claim in
a set form of words prescribed for the case in question. The defendant,
then, had to reply also in prescribed phrases, and, finally, the pontiff
intervened, again by means of specific formulas so the case might be sent
for trial before the iudex. The judge, who was a private citizen appointed

7 Publius Cornelius Aemilianus Scipio Africanus. Cicero corresponds with Atticus

about his new book De republica, in the form of a dialogue between several famous per-
sons like Rutilius Rufus, Tubero, Mucius Scaevola and Scipio Africanus. Unfortunately,
the passage of De republica in which Atticus is mentioned is lost. See P.G. Walsh, Cicero,
Selected Letters (Oxford, ), p. .
8 Thus, for instance, Richard E. Mitchell, “Roman History, Roman Law, and Roman

Priests: The Common Ground,” University of Illinois Law Review  (), ; Alan
Watson, International Law in Archaic Rome: War and Religion (Baltimore-London, ),
p. ; Michel Humm, Appius Claudius Caecus, La République accomplie (Rome, ),
p. ; Michael C. Alexander, “Law in the Roman Republic,” in A Companion to the Roman
Republic, eds. Nathan Stewart Rosenstein and Robert Morstein-Marx (Oxford, ),
p. .
9 Wieacker, Römische Rechtsgeschichte, : –, , and –.
10 Gaius, Institutes .–. The legis actio procedure was rather formalistic: in Gaius,

Institutes ., Gaius tells the story of a man who lost his case because he used the word
‘vines’ in a legis actio procedure. He ought to have used the word ‘trees’, because the Twelve
Tables under which the action for cutting down vines was available spoke in general terms
about cutting down trees.
 jan hendrik valgaeren

by both the pontiff and the parties, pronounced the judgment.11 In the
late Republic, the pontiff ’s duties were entrusted to a magistrate, usually
the praetor.12
The dies fasti were also relevant for civil procedure. Our knowledge
of them is even more recent than our knowledge of the legis actiones. In
 several fragments of the only pre-Julian calendar, the so-called fasti
of Antium (ca.  bc) were discovered at the site of Nero’s villa in modern
Anzio (province of Lazio). Other calendars, of which the fasti Praenestini
(ca. ad ) must have been the largest, date from the time of Augustus
and Tiberius. Altogether, more than forty calendars survive, some almost
complete, others only in fragments.13 The calendar of Antium indicated
among other things the dies fasti and the dies nefasti.
Courts of law could only be held on specific days, dies fasti. No legal
activities were allowed on the dies nefasti, which were considered to be
inappropriate for these procedures.14 It was one of the pontiffs’ duties
to determine which days would be fasti and which ones nefasti. People
who had a legal problem and wanted to start a civil procedure relied
on the pontiffs to tell them when this procedure could take place. The
publication of the dies fasti and legis actiones by Flavius made citizens
less dependent on the pontiffs.

.. Modern Interpretation of the Sources

Several questions regarding the publication of the legis actiones and dies
fasti by Flavius have been discussed by modern scholars. It has been
asked, first of all, just how Flavius was able to gather the informa-
tion necessary to compile and publish the legis actiones and dies fasti.15
Perhaps Flavius was scriba to Appius Claudius who may have been a

11 Max Kaser and Karl Hackl, Das römische Zivilprozessrecht, nd ed. (Munich, ),
p. .
12 Luigi Capogrossi Colognesi, Diritto e potere nella storia di Roma (Naples, ),

pp. –.
13 Encrica Sciarrino, “A Temple for the Professional Muse: The Aedes Herculis Musa-

rum and Cultural Shifts in Second-Century bc Rome,” in Rituals in Ink: a conference

on Religion and Literary Production, eds. Alessandro Barchiesi, Jörg Rüpke, and Susan
Stephens (Stuttgart, ), p. .
14 Simon R.F. Price and Alexander Hugh McDonald, “Fasti,” in The Oxford Classical

Dictionary, eds. Simon Hornblower and Antony Spawforth, rd ed. (Oxford-New York,
), p. ; Jörg Rüpke, The Roman Calendar from Numa to Constantine: Time, History,
and the Fasti, trans. David M.B. Richardson (Oxford, ), pp. –.
15 Less important questions are whether Flavius published the legis actiones and dies
 the jurisdiction of the pontiffs 

pontiff;16 or maybe Flavius himself was a scriba pontificus, i.e., a pontifex

minor?17 In either case, Flavius would have had direct access to the legis
actiones and the dies fasti. However, the sources do not say that Appius
or Flavius held the office of pontiff.18 Therefore, Flavius’ ability to publish
the legis actiones and the dies fasti must be explained in another way.
Draper has suggested that the legis actiones and dies fasti could only
have been published with the help of the pontiffs.19 His argument e
silentio is that no attempt of the pontiffs to keep Flavius from publishing
the legis actiones can be found in the sources. Could it be that the
publication of the legis actiones and dies fasti was deliberately planned
by the pontiffs? This brings us to the second question regarding the
publication by Flavius: why did he publish the legis actiones and dies fasti?
Although the sources do not give a reason for Flavius’ activities, at
least three explanations have been put forward. Almost thirty years ago,
two scholars independently put the problem in a political and socio-
economic context.

fasti before or after he became curule aedile and whether Flavius was a clerk of Appius
Claudius or not. Because the sources are conflicting, it is not possible to answer these
questions.
16 D’Ippolito, “Das Ius Flavianum und die Lex Ogulnia,” pp. –; Jörg Rüpke,

Fasti Sacerdotum, Die Mitglieder der Priesterschaften und das sakrale Funktionspersonal
römischer, griechischer, orientalischer und jüdisch-christlicher Kulte in der Stadt Rom von
 v. Chr. bis  n. Chr.,  vols. (Munich, ), :.
17 Ettore Pais, Richerche sulla storia e sul diritto publico di Roma (Rome, –),

pp. –; Wolfgang Kunkel, Römische Rechtsgeschichte, th ed. (Cologne, ),
p. ; Richard E. Mitchell, Patricians and Plebeians. The Origin of the Roman State (New
York-London, ), p. ; Rüpke, Fasti Sacerdotum, p. , Jörg Rüpke, “Rationalizing
Religious Practices: the Pontifical Calendar and the Law,” in this volume, p. .
18 Regarding Flavius, I follow Schulz and Humm. Fritz Schulz, History of Roman Legal

Science (; repr. Oxford, ), p. ; Humm, Appius Claudius Caecus, p. . Contra,
Rüpke “Rationalizing Religious Practices,” p. . Regarding Appius, I follow Richard
Draper, The Role of the Pontifex Maximus and its Influence in Roman Religion and Politics
(Brigham, ), p. ; Schulz, Roman Legal Science, p. ; Richard A. Bauman, Lawyers
in Roman Republican Politics. A Study of the Roman Jurists in their Political Setting,
– bc (Munich, ), pp. – and ; Humm, Appius Claudius Caecus, p. .
Appius was the first person in Roman history about whom a great deal is known. See
T.P. Wiseman, Clio’s Cosmetics: Three Studies in Greco-Roman Literature (Leicester, ),
pp. –. If Appius Claudius really had been a pontiff, the sources would probably have
mentioned it. Even the most relevant source for the life of Appius Claudius, his Elogium
(C.I.L., I.2, p. ; Attilio Degrassi, Inscriptiones Italiae (Rome, ), n.  and ;
Hermann Dessau, Inscriptiones Latinae Selectae, rd ed.,  vols. (–; repr. Berlin,
–) nr. ) which lists all his offices, does not mention the office of pontiff.
19 Draper, The Role of the Pontifex Maximus, p. .
 jan hendrik valgaeren

Bauman describes Appius Claudius as ‘a patrician at odds with his

peers but no friend of the plebeian nobility’.20 At the end of the fourth
century bc, Appius Claudius’ political group—his factio—to which Flav-
ius belonged, wanted to gain power. They were primarily interested in
commerce and wanted to revise the archaic and formal ius civile.21 Bau-
man argues that the pontiffs were involved in this process and that they
wanted to safeguard their position as guardians of the ius civile.22 He
assumes that the publication of the legis actiones and dies fasti by Flav-
ius was not meant to break the pontifical monopoly but that that came
about incidentally.
D’Ippolito likewise places the problem in a socio-political and cul-
tural context. He argues that Appius’ political group wanted to abol-
ish the monopolistic jurisdiction of the pontiffs and introduce a secu-
lar legal science, together with other cultural changes.23 In D’Ippolito’s
opinion, Appius was the driving force behind Flavius’ activities and he
must have known that the publication would weaken the pontiffs’ posi-
tion. D’Ippolito concludes that Appius deliberately provoked the pontiffs
because of his anti-pontifical political program.24
More recently, a different explanation has been offered by Alexander.
In his view, the publication originated in the new economic situation
after the end of the second Samnite war (– bc), when Rome had
more than doubled its territory. Roman citizens who lived far away and
had to travel to Rome to attend legal business did not want to discover
that a series of dies nefasti rendered their trip useless.25 Therefore the dies
fasti and, less importantly, the legis actiones were published by Gnaeus
Flavius.
A third and different reason has been offered by Rüpke and Humm.26
They argue that, after the Romans had introduced the solar calendar,
they realized that it was incompatible with the lunar calendars of the
surrounding peoples. Therefore the Romans also introduced the same
calendar to their Latin allies with the purpose of obliging them “to march

20 Bauman, Lawyers, p. .

21 Bauman, Lawyers, pp. –.
22 Bauman, Lawyers, pp. , , and .
23 D’Ippolito, “Das Ius Flavianum und die Lex Ogulnia,” p. , p. . One of the

other cultural changes was the reform of the alphabet.

24 D’Ippolito, “Das Ius Flavianum und die Lex Ogulnia,” p. .
25 Alexander, “Law in the Roman Republic,” p. .
26 Humm, Appius Claudius Caecus, pp. –; Rüpke, “Rationalizing Religious

Practices,” pp. –.

 the jurisdiction of the pontiffs 

to the beat of a new drummer” and in that way, to coordinate military

operations according to the Roman calendar.27 Publication of the legis
actiones and dies fasti was part of the logic of the calendar reform, and
Flavius’ activities were simply the last steps in a more significant process,
that of writing down the calendar.28
In my view, the explanation offered by Bauman and D’Ippolito is least
convincing. Their reconstruction of the factional politics for the years
– bc is rather hypothetical and the whole approach is simply out-
of-date.29 Moreover, the sources do not mention any attempt of Appius
Claudius to revise, update, or secularize the ius civile and, after the
publication by Flavius, the ius civile remained as formal and archaic as
it had been before.
Alexander’s explanation is more convincing: the economic situation
may have been one reason for publishing the dies fasti and, in their
wake, the legis actiones. As argued, the population of the Roman territory
increased rapidly and the economy was booming after the Latin (–
 bc) and the two Samnite wars ( /  and  /  bc). New
public works were constructed: the first Roman aqueduct (the Appia) and
the first main road (the Via Appia) from Rome to Campania.
Finally, Rüpke’s and Humm’s explanation links up well with that of-
fered by Alexander. It is even more convincing because it puts the publi-
cation of the legis actiones and dies fasti by Flavius in a broader context,
that of the change from a lunar to a solar calendar and the ensuing need
to publish it.

.. The Consequences of the Publication of the Legis Actiones and Dies
Fasti for the Jurisdiction of the Pontiffs
If it can be assumed that Flavius published the dies fasti and legis actiones
as a consequence of the introduction of a solar calendar, the question
remains whether this publication affected the position of the pontiffs as
supervisors of civil procedure. As far as the legis actiones are concerned,
the position of the pontiffs did not change. The legis actiones had never

27 Rüpke, “Rationalizing Religious Practices,” p. .

28 Rüpke, “Rationalizing Religious Practices,” p. .
29 The subject is hotly debated. Forsythe, Early Rome, p. : “Attempting to recon-

struct the factional politics for the years – bc has as much chance of succeeding as
attempting an accurate and detailed account of the military events of the Second Samnite
War.”
 jan hendrik valgaeren

previously been a secret.30 The actual wordings could be learned and

written down by any Roman citizen attending court sessions.31 Therefore,
their publication did not change civil procedure nor the position of the
pontiffs as being responsible for the first phase of this procedure.
On the other hand, the publication of the dies fasti may have been
more significant. Hitherto, it must have been very difficult to know which
days would be fasti and which ones nefasti. Publication of the dies fasti
meant that the dates on which a case could be brought to court were now
publicly known.32 As a result, people could now more easily undertake
legal actions. This development may have even resulted in an increase in
the number of lawsuits. It did not change the position of the pontiffs who
were responsible for these lawsuits, and it will not have made them any
less important, on the contrary.
Now it also becomes clear that the term ‘monopoly’ is inappropriate
for use in connection with the pontiffs. It is a term used in commerce to
indicate a complete control of something, especially an area of business,
so that others have no share. In the Roman sources, it is only used in
the sense of having the exclusive right to trade.33 Supervising litigation
belonged to the duties of the pontiffs; around  bc, they were probably
taken over by the praetor. So far, no one has ever accused the praetor of
having been a monopolist in jurisdiction. My conclusion is that there is
no reason to assume that the pontifical monopoly on jurisdiction ended
at the end of the fourth century bc: they did not have a monopoly and so
they could not lose it. They continued to supervise litigation as they had
done before.

30 Some scholars argue the opposite on the basis of Livy’s words: civile ius, repositum

in penetralibus pontificum (..). They believe that the legis actiones and the dies fasti
were real secrets. For instance, Alan Watson, The State, Law and Religion. Pagan Rome
(Athens, Georgia-London, ), p. ; Claudia Moatti, “Experts, mémoire et pouvoir à
Rome à la fin de la République,” Revue Historique  (), –, .
31 Schulz, Roman Legal Science, p. .
32 Agnes Kirsopp Michels, The Calendar of the Roman Republic (; repr. Princeton,

), p. . Michels believes that the publication of the legis actiones and dies fasti
by Flavius was a considerable improvement on the calendar published in the Laws of
the Twelve Tables. However, I believe that Michels may well be mistaken because there
is no indication that the Laws of the Twelve Tables contained a calendar with dies
fasti and nefasti. See also Jörg Rüpke, Kalender und Offentlichkeit: Die Geschichte der
Repräsentation und religiösen Qualifikation von Zeit in Rome (Berlin-New York, ),
pp. –; Humm, Appius Claudius Caecus, p. .
33 In sources of Roman law, for instance, in Justinian, Codex ..
 the jurisdiction of the pontiffs 

. The Lex Ogulnia

The Lex Ogulnia34 which was passed in  bc raised the number of
pontiffs and augurs and allowed plebeians to become members of these
austere colleges. In my view, this law may support my theory that the
publication of the legis actiones and dies fasti by Flavius did not end the
so-called pontiffs’ monopoly on jurisdiction.

.. Sources
The actual wording of the law is not preserved, and it is only known
because Livy refers to it twice. For this paper, only the first reference is rel-
evant. In the tenth book of his Ab urbe condita, Livy describes the events
of the year  bc. He writes that the foreign relations of Rome were fairly
peaceful. The Etruscans were kept quiet and the Samnites had not wea-
ried as yet of a new covenant.35 However, two plebeian tribunes, Quintus
and Gnaeus Ogulnius stirred up a quarrel by proposing a new law.36
Livy, Ab urbe condita ..–:37
Tamen ne undique tranquillae res essent, certamen iniectum inter primores
civitates, patricios plebeiosque, ab tribunis plebis Q. et Cn. Ogulniis. [ . . .]
Rogationem ergo promulgarunt ut, cum quattuor augures, quattuor pontif-
ices ea tempestate essent placeretque augeri sacerdotum numerum, quattuor
pontifices, quinque augures, de plebe omnes, adlegeruntur.
Nevertheless, that tranquility might not be found everywhere, the plebeian
tribunes Quintus and Gnaeus Ogulnius stirred up a quarrel among the
first men of the state, both patrician and plebeian. [ . . .] The Ogulnii
accordingly proposed a law that whereas there were then four augurs and
four pontiffs and it was desired to augment the number of priests, four
pontiffs and five augurs should be added, and should all be taken from the
plebs.

34 This lex was actually a plebiscite, because it was proposed by plebeian tribunes.

Other examples are the Lex Canuleia of  bc and the Leges Liciniae Sextiae of  bc. See
Tim J. Cornell, The Beginnings of Rome. Italy and Rome from the Bronze Age to the Punic
Wars (c. – bc) (London, ), p. . Most scholars refer to it as the Lex Ogulnia,
only S.P. Oakley, A Commentary on Livy Books VI–X (Oxford, ) calls it, correctly, the
Ogulnian plebiscite.
35 Livy, Ab urbe condita ...
36 On the gens Ogulnia, see D’Ippolito, “Das Ius Flavianum und die Lex Ogulnia,”

pp. –.
37 Text and translation by B.O. Foster, Livy, History of Rome, Books VIII–X, (Loeb

Classical Library)  (; repr. London-Cambridge, Mass., ).

 jan hendrik valgaeren

The content of the bill is clear. Firstly, the law was to raise the number
of pontiffs from four to eight and the number of augurs from four to
nine. Secondly, it would allow plebeians to become pontiffs and augurs.
Livy explains the second provision of this bill in the context of the so-
called Struggle of the Orders.38 However, it is doubtful whether this
explanation holds: it seems that, by  bc, the struggle between patrician
and plebeian nobles was almost at its end and that it was useless to prevent
plebeians from becoming pontiffs.39
For this paper, the first provision of the bill is particularly relevant.
Livy does explain the increase in number of augurs from four to nine,
but not the doubling of the number of pontiffs. He only writes that it was
decided to augment the number of priests (placeretque augeri sacerdotum
numerum ..).

.. Modern Interpretation

One of the few modern authors who have discussed the Lex Ogulnia is
Federico D’Ippolito. In his view, the Lex Ogulnia was a reaction to the
publication of the so-called ius Flavianum and the dies fasti by Flavius.
D’Ippolito uses the term ius Flavianum as a synonym for legis actiones.40
He thinks that the Lex Ogulnia was meant to stabilize the pontiffs’
monopoly on jurisdiction and that it did not weaken the jurisdictional
position of the pontiffs, but rather strengthened it.41
As he did for the publication of the legis actiones and dies fasti by Flav-
ius, D’Ippolito bases his view of the Lex Ogulnia on a model of factional
politics in the late fourth century bc. He thinks that Appius Claudius,
by his radical reform, wanted to break the pontiffs’ monopoly on juris-
diction. To achieve this, his straw man Gnaeus Flavius published the
legis actiones and dies fasti. However, Appius’ enemies, the Ogulnii pre-
vented the pontiffs from losing their jurisdictional monopoly by vot-
ing a law which strengthened their position. The Ogulnian bill was sup-
ported by conservative members of the plebeian nobility. Livy mentions

38 Livy, Ab urbe condita ... Followed by Watson, International Law in Archaic

Rome, p. ; H.H. Scullard, A History of the Roman World,  to  bc, th ed.
(, repr. London-New York, ), p. ; Franco Vallocchia, Collegi Sacerdotali ed
Assemblee Populari nella Repubblica Romana (Turin, ), p. .
39 Thus Bauman, Lawyers, p. ; Draper, The Role of the Pontifex Maximus, p. ;

Mitchell, Patricians and Plebeians, p. ; Eric M. Orlin, Temples, Religion and Politics in
the Roman Republic (Leiden, ), pp. –.
40 The term Ius Flavianum is only attested in Pomponius, Digesta ....
41 D’Ippolito, “Das Ius Flavianum und die Lex Ogulnia,” p. , p. .
 the jurisdiction of the pontiffs 

the names of the plebeians who became pontiffs and augurs as a result
of the law.42 According to D’Ippolito, they were the same persons who
had supported the law. Of course, Appius Claudius voted against it, but
in vain. D’Ippolito concludes that the Lex Ogulnia guaranteed the conti-
nuity of the pontiff ’s monopoly on jurisdiction for a hundred years.43
In my view, D’Ippolito’s interpretation is not convincing. It is interest-
ing that he has identified the plebeians, who, in  bc, were included
in the pontifical college. However, his use of the word ‘monopoly’, in
connection with the pontiff ’s jurisdiction and his explanation of the Lex
Ogulnia in terms of the factional politics of the fourth century bc under-
mine his argument that the Lex Ogulnia strengthened the position of the
pontiffs.44

.. The Publication of the Legis Actiones and Dies Fasti by Flavius and
the Lex Ogulnia
Is there any connection between the Lex Ogulnia of  bc and the
fact that, in  bc, Flavius had published the dies fasti and the legis
actiones? If the publication by Flavius ended the pontiffs’ monopoly on
jurisdiction, as is argued by historians, why was it necessary to raise
their numbers? As I have argued above, I think that the pontiffs did not
have a monopoly and that the publication by Flavius did not decrease
their importance: it at least stayed at the same level and it may have
even increased—which, in my opinion, is more plausible. As a result
of the publication in  bc—which was necessary because of the new
economic situation and the increasing number of citizens in the late
fourth century bc—more people were bringing cases to court.
An alternative explanation may be that the pontiffs became respon-
sible for more religious tasks instead of jurisdictional tasks and that
therefore their number was increased. Anyway, the small time interval
between  and  bc suggests that there may have been a link between
the publication of the legis actiones and dies fasti by Flavius and the Lex
Ogulnia.

42 Livy, Ab urbe condita ...: Pontiffs: Publius Decius Mus, Publius Sempronius

Sophus, Gaius Marcius Rutulus, Marcus Livius Denter; Augurs: Gaius Genucius, Publius
Aelius Paetus, Marcus Minucius Faesus, Gaius Marcius, Titus Publius.
43 D’Ippolito, “Das Ius Flavianum und die Lex Ogulnia,” p. , p. .
44 As already argued, Roman factional politics is a subject which is of little concern,

here. Forsythe, Early Rome, p. .

 jan hendrik valgaeren

Unfortunately, it is impossible to find out how many of the eight

pontiffs were involved in jurisdiction, because the only source which
provides us with information on the topic is a passage of Pomponius,
who described the situation following the publication of the Laws of
the Twelve Tables ( bc) until about a hundred years later,  bc.45
According to Pomponius, one pontiff was appointed each year to super-
vise litigation. It is just possible that later, in the third century bc, two
pontiffs were appointed for this purpose so that they could cope with the
increasing number of lawsuits.

. Conclusion

The publication by Gnaeus Flavius in  bc of both the legis actiones

and the dies fasti may have been prompted by the doubling of Roman
territory and the change from the lunar to the solar calendar in the fourth
century. As a result, the Roman people now knew exactly on which days
a case could be brought before court (dies fasti) and which words (legis
actiones) had to be used. In my opinion, this may have led to an increase
in the numbers of lawsuits. The fact that the Lex Ogulnia of  bc raised
the number of pontiffs from four to eight seems to support this theory.
Therefore, there is no reason to assume that the pontiffs lost their
‘monopoly’ on jurisdiction at the end of the fourth century bc, as has
been argued by many historians. Maybe the Lex Ogulnia changed the
patricians’ position in that the bill made it possible for plebeians also to
become pontiffs, but it certainly did not end the pontiffs’ role in super-
vising litigation. On the contrary, they were more involved in jurisdic-
tion than ever before, which demonstrates the close connection between
priests and law.

45 Pomponius, Digesta ...: Omnium tamen harum et interpretandi scientia et

actiones apud collegium erant, ex quibus constituebatur quis quoquo anno praeesset pri-
vatis. Et fere populus annis propre centum hac consuetudine usus est (‘In relation to all these
statutes, however, knowledge of interpretation and the conduct of the actions belonged to
the College of Priests [pontiffs], one of whom was appointed each year to preside over the
private citizens. The people followed this practice for nearly a hundred years’). See Olga
Tellegen-Couperus, “Pontiff, Praetor and Iurisdictio in the Roman Republic,” Tijdschrift
voor Rechtgeschiedenis  (), –.
 THE LONGEVITY OF THE FETIAL COLLEGE

Linda Zollschan

. . . supremus ille dies non nostri extinctionem

sed commutationem affert loci
Cicero, Tusculanae Disputationes ...

The view that the Fetials died out and were revived by Augustus still com-
mands general agreement and has distinguished antecedents reaching
back to Stuss’ work of .1 A modern representative of this view would
be John Scheid who in  wrote:
. . . fétiaux, abandonnés ou en tout cas disparus de la scène publique depuis
l’ année  avant notre ère, et remis en vigeur en  avant notre ère par le
futur Auguste . . . 2
Since the th century there has been a small, but not insignificant,
band of scholars who have raised their voice against the consensus
that the Fetials died out; among them are to be found Fusinato in
, Hoffman Lewis in , Wiedemann in , Broughton in ,
Ferrary in 3 and most recently Santangelo.4 The purpose of this paper
is to add further evidence and arguments in support of these earlier
works.

1 J. Chr. Stuss, Gedanken von den Fetialen des alten Roms (Göttingen-Leipzig, ).
2 John Scheid, Romulus et ses frères. Le collège des frères Arvales, modèle du culte public
dans la Rome des empereurs. Bibliothèque des Écoles Françaises d’Athènes et de Rome 
(Rome, ), p. .
3 G. Fusinato, “Dei feziali e del diritto feziale. Contributa alla storia del diritto

pubblico (romano) esterno,” Memorie della classe di scienze morali, stoiche e filologiche
(Accademia nazionale dei Lincei) . (), ; Martha W. Hoffman Lewis, The Official
Priests of Rome under the Julio-Claudians (Rome, ), p. ; T. Wiedemann, “The
Fetiales: A Reconsideration,” Classical Quarterly  (), –; Jean-Louis Ferrary,
“Ius Fetiale et diplomatie,” in Relations Internationales: Actes du Colloque de Strasbourg
– Juin , eds. E. Frézouls and A. Jacquemin, Travaux du Centre de recherche sur le
Proche-Orient et la Grèce antique  (Paris, ), pp. –. T. Robert S. Broughton,
“Mistreatment of Foreign Legates and the Fetial Priests: Three Roman Cases,” Phoenix 
(),  said “. . . it would be a mistake to say that the Fetials became obsolete.”
4 Federico Santangelo, “The Fetials and their ius,” Bulletin of the Institute of Classical

Studies  (), –. I had been working on this paper for some time when I became
aware of a pre-publication version of Santangelo’s article.
 linda zollschan

This study begins with the origin of the view that the Fetial priesthood
died out and proposes a reason that would explain the persistence of
this view. The case is made that one ought to distinguish lapses in Fetial
practice with regard to declarations of war from their continuance in the
renewal and conclusion of treaties. In particular, I hope to show that the
Fetial priests took part in annual (if not regularly) occurring rites and
ceremonies by introducing some new numismatic research. In addition,
I show that inscriptional evidence for the Fetial priests does not indicate
that their college only existed from the Augustan period, merely that
the evidence, such as it is, falls within the chronological framework one
would expect from what is known as the epigraphic habit.
An analysis of the communis opinio reveals that the hypothesis denying
the continuity and longevity of the Fetials is not uniformly expressed
and, in fact, may contain a combination of the following five basic
components:
. That the Fetials ceased to function after  bc;
. That their functions of declaring war and acting as envoys (legati)
were usurped by the senate;
. That the Fetial priesthood was revived in  bc for the express
purpose of handing Mancinus over to the Numantines;
. That there had been no Fetial college until the Augustan Principate,
and
. That they were revived by Augustus in  bc.

. Fetial Priests in the Second and First Centuries BC

The first component is that the Fetials ceased to function after  bc;
however, the precise date when the Fetials were supposed to have become
obsolete varies. No actual consensus exists. Some consider they faded
away at the end of the war with Pyrrhus or at the end of the First Punic
War with most opting for the end of the rd century bc.5 Most scholars

5 Views seem to range from the end of the war with Pyrrhus or the end of the

First Punic war until Octavian, as Fetial, declared war against Cleopatra. Representative
of the range would be the following: Walbank in A.H. MacDonald & F.W. Walbank,
“The Origins of the Second Macedonian War,” Journal of Roman Studies  (),
– considers that the Fetial priesthood died out in the middle of third century;
Werner Dahlheim, Deditio und societas: Untersuchungen zur Entwicklung der römischen
Aussenpolitik in der Blütezeit der Republik, Diss. (Munich, ), p.  at the end of the
First Punic War; Jörg Rüpke, Domi militiae. Die religiöse Konstruktion des Krieges in Rom
(Stuttgart, ), p.  at the end of the third century.
 the longevity of the fetial college 

would certainly consider that the Fetials were not in operation between
 and  bc. Naturally, warnings of the perils of arguing ex silentio
have been sounded by Rawson and Ferrary.6 However, in these years of
presumed abandonment, many and varied references to the Fetials do
occur in the literary and epigraphic record that show their contemporary
activity and continued relevance. There is no silence.
The loss of Livy’s Books  to  has deprived us of three quarters of
his total work that covered  to  bc.7 Livy included materials on the
Fetials more than any other author, especially extensive quotations of the
words of their ceremonies.8 Consequently, a major source for the Fetials
after  bc has been lost, so any apparent silence is due to the state of
the evidence.

.. The Fetials and Treaty Making

A marked prominence in modern literature9 has been accorded to the
decline in the use of the Fetials for declarations of war; so much so, that
it has led to the neglect of the Fetials’ other duties with the result that a
widespread impression remains that the Fetial law itself fell entirely into
disuse after  bc. Varro made a differentiation between functions of
the Fetials that had ceased and those that continued in use; so that the
Fetials, while they may no longer have been declaring war in Varro’s day,
were still making treaties.10
The Fetials’ role in the conclusion of treaties has generally been over-
looked in considering the time-span during which they were active. This
neglect is a legacy of th century scholarship written before the first

6 Elizabeth C. Rawson, “Scipio, Laelius, Furius and the Ancestral Religion,” Journal

of Roman Studies  (), ; Ferrary, Ius Fetiale, p. .

7 P.A. Stadter, “The Structure of Livy’s History,” Historia  (), –.
8 Treaty ceremony: Livy, Ab urbe condita ..–; declaration of war: Livy, Ab urbe

condita ..–.
9 Stuss, Gedanken, pp. –; J.M. Heinze, Gedanken von den Fetialen des alten

Roms (Leipzig, ), pp. –; Theodor Mommsen, Römisches Staatsrecht,  vols.
(Leipzig, –), :; André Weiss, Le droit fétial et les fétiaux à Rome. Étude
de droit international (Paris, ), pp. –; Georg Wissowa, Religion und Kultus der
Römer, nd ed. (Munich, ), p. ; L. Matthaei, “On the Classification of Roman
Allies,” The Classical Quarterly  ()  ff.; MacDonald and Walbank, Origins, p. ;
F.W. Walbank, “Roman Declaration of War in the Third and Second Centuries,” Classical
Philology  /  (), ; R.M. Ogilvie, A Commentary on Livy Books – (Oxford,),
pp. , ; Rawson, Scipio, p. ; A. Watson, International Law in Archaic Rome: War
and Religion (Baltimore-London, ), p. .
10 Varro, De lingua Latina .. Mommsen, Staatsrecht, :; J. Linderski, “Ambas-

sadors go to Rome,” in Relations Internationales, p. .

 linda zollschan

treaties on stone were discovered. Reference, therefore, to Roman treaties

of the second and first centuries bc is absent from Stuss and Heinze, who
became the authorities for the view that the Fetials fell into disuse.11 Con-
sequently, while the recovery of Roman treaty texts continued to grow
and they came to constitute an important body of evidence, they failed
to attract the attention they deserved. To understand why the view has
persisted that the Fetial priests died out, one has to go back to its origins.
Back in the th century only one treaty inscription had been discovered,
namely, the Roman treaty with Astypalaia, and it was not published until
.12 To date, a total of ten Roman treaty inscriptions have now been
discovered with only three of them approaching anything like comple-
tion.13
The Roman State treaty (foedus) was distinguished from other forms of
Roman diplomatic relations by two features: it was permanent and it was
sealed by mutual oath taking.14 Neither consuls nor other magistrates
could conclude treaties. Their competence extended to sponsiones but
not to the Roman State permanent treaty.15 In the Roman treaty with
the Alban people, the Roman king held imperium and he authorized the
Fetial to perform the ceremony.16 The Fetial priest swore the oath as the
representative of the Roman king. With the arrival of the Republic, a
magistrate took the place of the king and a Fetial priest continued to
take the oath, a ritual he executed on the order of the magistrate who
was present and who presided over the oath.17 A praetor authorized the
ceremony for the treaty to end the Second Punic War and a consul in

11 Heinze, Gedanken von den Fetialen, pp. –.

12 Federicus G. Osann, Sylloge Inscriptionum Antiquarum Graecarum et Latinarum
(Leipzig, ), pp. –.
13 The treaties with Maroneia (IG X, No. ), Astypalaia (IG XII, , No. ). For the

treaty between Rome and Lycia, see S. Mitchell, “The Treaty between Rome and Lycia of
 bc (MS ),” Papyrologica Florentina  (), –.
14 Oath central to the foedus: K.-H. Ziegler, “Das Völkerrecht der römischen Republik,”

Aufstieg und Niedergang der römischen Welt, . (Berlin, ), p. .
15 Andreas Zack, Studien zum “Römischen Völkerrecht”. Kriegserklärung, Kriegsbe-

schluss, Beeidung und Ratification zwischenstaatlicher Verträge, internationale Freund-

schaft und Feindschaft während der römischen Republik bis zum Beginn des Prinzipats
(Göttingen, ), p.  nn.  and . The examples given either were not permanent
treaties or were agreements made but never ratified in Rome. See Arthur M. Eckstein,
Senate and General. Individual Decision Making and Roman Foreign Relations, –
B.C. (Berkeley-London, ), pp. –, , .
16 Livy, Ab urbe condita ..; Eugen Täubler, Imperium Romanum: Studien zur

Entwicklungsgeschichte des römischen Reichs (Leipzig-Berlin, ), p. .

17 Täubler, Imperium Romanum, pp. , .
 the longevity of the fetial college 

the treaty with Aphrodisias.18 The public nature and responsibility of

the execration oath on behalf of the Roman people meant that the state
considered this role was the exclusive duty of priests. Oaths sworn on
behalf of the Roman people were sworn by priests and the Fetials were
the guardians of the correct form of words for the oath.19
Six treaties contain extant references to oaths: Kibyra, Methymna,
Astypalaia from the nd century and Lycia, Aphrodisias and Cnidus from
the last half of the st century bc. Two Greek copies of Roman treaties,
those with Lycia and Cnidus, actually have the title τ 6ρκια—‘the oaths’,
as an indication that inscribed on the stone below is the text of a treaty
thereby showing how central the oath was to defining a foedus.20 All the
inscriptions that are extant at this section refer to oaths.21 Their inclusion
is easy to understand when one considers that the oath was central to a
treaty.22
The treaty with Lycia furnishes evidence for the continued use of the
Fetial treaty ceremony.23 Two Romans took the oath and conducted the
sacrifice, acts that constituted the conclusion of a treaty. The sacrifice was
carried out in accordance with the Fetial ritual where the throat of the
animal is cut with the flint knife (silex), as indicated by the Greek verb
τμνο, meaning ‘to cut the neck’.24 The rituals echo those of the Fetial
ceremony, recorded by Livy, for a treaty between the Roman and the
Alban people.25
The Lycian treaty confirms another detail known to Livy, namely, that
a treaty was signed by two Fetials. Livy states that the two Fetials who

18 Carthaginian treaty: Livy, Ab urbe condita ..; Aphrodisias: Joyce Reynolds,

Aphrodisias and Rome (London, ), pp. –.

19 Livy, Ab urbe condita ..; Pliny the Elder, Naturalis Historia .. (a private

oath, yet it illustrates that the priests were the sole repository of the correct form of the
words).
20 Lycia: Mitchell, Treaty between Rome and Lycia, pp. –, and Cnidus: text in

Täubler, Imperium Romanum, pp. –. On the Cnidus treaty, see also A. Jardé, “Un
traité entre Cnide et Rome,” in R. Cagnat, Mélanges Cagnat. Recueil de Mémoires con-
cernant l’ épigraphie et les antiquités romaines (Paris, ), pp. –, and C. Cichorius,
“Ein Bündnisvertrag zwischen Rom und Knidos,” Rheinisches Museum für Philologie 
(), –.
21 Kibyra: (OGIS ) line ; Methymna: (SIG 2 ) line ; Astypalaia: (IG XII .)

line ; Aphrodisias: Reynolds, Aphrodisias, Doc. pp. , , line ; Lycia in Mitchell,
Treaty between Rome and Lycia, pp. –, lines , , , , , , ; Cnidus: Täubler,
Imperium Romanum, pp. –, A. lines ,; B lines , , , .
22 Ziegler, Völkerrecht, p. .
23 Lines –.
24 Mitchell, Treaty between Rome and Lycia, p. .
25 Livy, Ab urbe condita ..–.
 linda zollschan

took part in the ceremony signed their names at the bottom of the text.26
In fact, Livy was so sure of the practice that, in this passage, he used Fetial
signatures as a criterion to distinguish between a sponsio and a treaty. Livy
reports that the treaty with Ardea also had two signatures affixed to the
bottom of the document.27
Well before  bc, the date of the assumed Augustan restoration, two
Romans were present when two additional treaties were concluded—the
treaty with Cnidus in  bc and the treaty with Aphrodisias in  bc. The
text from Cnidus breaks off well before the end of the document, at the
place where the treaty ceremony is recorded in the Lycian inscription.
The treaty with Cnidus states that a certain Cn. Domitius Calvinus and
Cn. Pompeius or Pomponius Rufus represented Rome. Their presence
can be explained by the necessity to conduct the treaty ceremony (with
the oaths and a sacrifice) and to affix both their signatures to the treaty
text, where two signatures of Fetials were required.
The treaty with Aphrodisias in  bc, according to Reynolds’ restora-
tion,28 records that the two consuls were instructed by the senate to
arrange for the -εμιστ ρες, whom she considers to be Fetials to con-
duct the swearing of the oath. Clearly, the consuls only ordered the cere-
mony of the oath and did not conduct the oath swearing ceremony them-
selves.29 Three hundred odd senators are listed as being present for the
oath, so they did not conduct the ceremony either. This treaty text sug-
gests that the role of the Fetials in treaty making did not fall into dis-
use.30 These various inscribed treaty texts surely verify what Varro wrote,
namely that the Fetials were still concluding treaties in his own day: per
hos etiam nunc fit foedus.31

.. Regularly Recurring Activities

Additionally, each year the treaty between Rome and Lavinium was
renewed.32 The reason for this unusual renewal is given by Livy as the
need to bind two communities where wrongs with severe religious reper-
cussions had been committed on both sides. Kinsmen of Titius Tatius

26 Livy, Ab urbe condita ... See also Fusinato, Dei feziali, pp. , .
27 Livy, Ab urbe condita ... Fusinato, Dei feziali, p. .
28 Reynolds, Aphrodisias, l.  pp. , , –.
29 Reynolds, Aphrodisias, pp. –.
30 Acknowledged by Ogilvie, Commentary, p.  and Watson, International Law,

pp. –.
31 Varro, De lingua Latina ..
32 Livy, Ab urbe condita ...
 the longevity of the fetial college 

were said to have mistreated envoys from Lavinium and, when Tatius
went to their city to celebrate the annual sacrifice, he was murdered.33
Livy attests that the annual renewal was still being performed in the
fourth century bc.34 An inscription found in Pompeii from the Clau-
dian period records that the treaty renewal ceremony was performed by
a pater patratus, the Fetial in charge of the ceremony, from Lavinium.35
Thus, the annual treaty renewal ceremony was still being performed by
the Fetials, into the mid-first century.36 The date when this ceremony
was held was nine days after the feriae Latinae.37 The Lavinium treaty
is evidence for the continued use of Fetial priests. Even those who would
like to assert that the Fetials became obsolete do concede that they con-
tinued to exist if only for the purpose of renewing this treaty annu-
ally.38 The possibility exists that this was not the only treaty that needed
to be renewed annually. Scheid suggests that other treaties with Rome
were also renewed annually, such as those between Rome and Gabii and
between Rome and Caenina.39
In addition to annual treaty renewals, the possibility of often held
games to Juppiter Feretrius may imply another regularly recurring activ-
ity for the Fetial priests. Tertullian in his work against pagan public spec-
tacles reports that Romulus established games in honour of Juppiter Fer-
etrius on the Tarpeian hill.40 His immediate source was Suetonius, who in
writing on Roman spectacles quoted the historian, L. Calpurnius Frugi.41
In this fragment, it is reported that Piso called the games both the ludi
Tarpeii and the ludi Capitolini. The nomenclature is a crucial point.

33 Livy, Ab urbe condita ..

34 A.A. Boyce, “The Development of the Decemviri Sacris Faciundis,” Transactions of
the American Philological Association  (), .
35 CIL X. = ILS  = AE , .
36 The numismatic record is not helpful in testifying to treaty ceremonies before  bc

since the many oath scenes (also on engraved gems) may represent the formation not of
a treaty but of a coniuratio. See Linda T. Zollschan, “The Ritual Garb of the Fetial Priests,”
Museum Helveticum  (), –. Cf. J.H. Richardson, “The Pater Patratus on a
Roman Gold Stater: A Reading of RAC No-s  / – and  / –,” Hermes  (),
–.
37 See A. Grandazzi, “Lavinium, Alba Longa, Roma: à quoi sert un paysage religieux?,”

Revue de l’ histoire des religions  (),  n. . For the feriae Latinae, see Livy, Ab
urbe condita ...
38 Rawson, Scipio, p. .
39 John Scheid, “Auguste et le passé. Restauration et histoire au début du principat,”

in Événement, récit, histoire officielle, eds. Nicolas Grimal and Michel Baud (Paris, ),
p. .
40 Tertullian, De spectaculis ..
41 Gary Forsythe, The Historian L. Calpurnius Piso Frugi and the Roman Annalistic

Tradition (Lanham, ), p. .

 linda zollschan

A scholia on Vergil’s Georgics (.) quotes Ennius’ Annales on these

games where the origin of the games is placed at the feet of Romulus
at the time of his dedication of a temple to Juppiter Feretrius; no name,
however, is given for these games in this passage.
Late republican antiquarians assigned the origin of these games to
the senate in c.  bc.42 According to Livy, the ludi Capitolini were
established to Jupiter Optimus Maximus in thanks for the withdrawal
of the Gauls from the city of Rome.43 The question is whether the ludi
Capitolini are the same games as the ludi Tarpeii.
Forsythe conjectures that a writer before Piso’s time nominated Romu-
lus as the one who instituted the games who then called them anachro-
nistically the ludi Capitolini and Piso corrected the name to ludi Tarpeii.
He further suggests that Livy’s account is an attempt to retain the term
ludi Capitolini by setting the games in a period when it was correct to use
this term. On the other hand, the word order in the fragment of Piso sug-
gests that the original name was ludi Tarpeii because they began on the
Tarpeian hill and that Piso supplied an addendum that they were called
the ludi Capitolini as well.44
Another problem is whether the games that were known under two
different names began at the time of Romulus or in c.  B.C, or that
the archaic games were reformed after the Gallic invasion of Rome.
Whether the evidence in Livy .. (Capitolinos ludos sollemnibus aliis
addidimus) is strong enough to support the view of Bernstein that Livy
is referring to a reform and not the creation of a new set of games is a
matter of judgment.45
Generally, it is common to find in the literature that the games on the
Capitol are called either under both names or under one of the names;
but, whatever the nomenclature, writers are essentially referring to the
same games.46 I am inclined to accept the Romulean tradition on the basis

42 Plutarch, Quaestiones Romanae ; Festus, Sardi uenales L. See Ogilvie ()
.
43 Livy, Ab urbe condita ...
44 Tertullian, De spectaculis .: De hinc idem Romulus Iovi Feretrio ludos instituit in
Tarpeio, quos Tarpeios dictos et Capitolinos Piso traduit.
45 F. Bernstein, Ludi Publici. Untersuchungen zur Entstehung und Entwicklung der

öffentlichen Spiele im republikanischen Rom (Stuttgart, ), p. . Andreas Alföldi,

G. Manganaro, and J.G. Szilágy, Römische Frühgeschichte. Kritik und Forschung seit 
(Heidelberg, ), pp. ,  argues for a new set of games instituted by Camillus in
 bc.
46 Wissowa, Religion, p. ; E. Habel, “Ludi Capitolini,” in Pauly’s Realencyclopädie der

classischen Altertumswissenschaft, Suppl.  (), cols. –; H.H. Scullard, Festivals

 the longevity of the fetial college 

of both the association with the temple of Juppiter Feretrius, which was
the only temple to Jupiter in existence at the time of Romulus47 and on
the antiquity of the curious rites that formed the basis of the games that
was noticed by Piganiol.48
The games were held each year on the Ides of October.49 Palmer
suggests that the games were held only on an occasional basis to celebrate
the dedication of spolia opima in the Temple of Juppiter Feretrius.50 If
this were the case the games would have been held only three times:
once for Romulus, a second time for Cornelius Cossus, and a third time
for M. Claudius Marcellus.51 Forsythe, in my view, provides the correct
solution that the games were instituted to celebrate Romulus’ victory
over Veii which was celebrated on th October.52 Plutarch implies that
because of this victory the games continued to be celebrated on the Ides
of October.53 According to Livy, the organization of the games was put
on a more regular footing with the creation of a collegium of priests to
supervise and manage the games.54 The members were drawn from those

and Ceremonies of the Roman Republic (London-Ithaca NY, ), p. ; Bernstein, Ludi
Publici, p. , n. ; T.P. Wiseman, “The Games of Hercules,” in Religion in Archaic and
Republican Rome and Italy: Evidence and Experience, eds. Edward Bispham and Christo-
pher Smith (Edinburgh, ), p. .
47 Forsythe, Piso, p. . The Romans acknowledged that Juppiter Feretrius pre-dated

Jupiter Optimus Maximus. See J.R. Fears, “The Cult of Jupiter and Roman Imperial
Ideology,” in Aufstieg und Niedergang der römischen Welt, .. (Berlin, ), p. .
48 For a description of the rites, see Ennius, Frg.  Skutsch. For the antiquity of the

rites, see André Piganiol, Recherches sur les Jeux Romains: notes d’archéologie et d’histoire
religieuse (Strasbourg, ), p. . O. Skutsch, The Annals of Q. Ennius, nd ed. (Oxford,
), p.  provides evidence of boxing in the sixth century bc.
49 Plutarch, Romulus . See Habel, Ludi Capitolini, col. ; Carl Thulin, “Iuppiter,”

in Pauly’s Realencyclopädie der classischen Altertumswissenschaft  (), col. .

50 Robert E.A. Palmer, Roman Religion and Roman Empire; Five Essays (Philadelphia

), p. .
51 For Cossus, see Livy, Ab urbe condita . –; Propertius, Elegiae .; Dionysius

Halicarnassus, Roman Antiquities .; Festus, De verborum significatu L; Valerius

Maximus, Facta et dicta memorabilia ... For Marcellus, see Polybius, Histories ..–
; Cicero, Tusculanae Disputationes .; Livy, Periochae ; Vergilius, Aeneis .–;
Propertius, .; Plutarch, Romulus .–; Plutarch, Marcellus –; Valerius Maximus,
Facta et dicta memorabilia ..; Festus, De verborum significatu L. The literature on
the spolia opima is vast. For the history of scholarship, see J.W. Rich, “Augustus and the
spolia opima,” Chiron  (), –. More recently, see Harriet I. Flower, “The Tra-
dition of the Spolia Opima: M. Claudius Marcellus and Augustus,” Classical Antiquity 
(), – and Dylan Sailor, “Dirty Linen, Fabrication, and the Authorities of Livy and
Augustus,” Transactions of the American Philological Association  (), –.
52 Forsythe, Piso, p. .
53 Plutarch, Romulus, .
54 Livy, Ab urbe condita ...
 linda zollschan

who lived on the Capitol and Arx. The Temple of Juppiter Feretrius was
located on the Capitol and so its personnel would have been included in
the college tasked with organizing the games. This collegium is attested in
the late republic and the time of Augustus, and Plutarch reports that they
continued to be held in his day.55 The evidence from Livy and Plutarch
would suggest that the games were not held on an infrequent basis but
rather on a regular schedule. Thulin and Habel state that the games were
held annually.56
After having examined the evidence for the games, the next step is
to discuss how it is possible to see a connection between these games
and the Fetial priests. The nexus between the Fetial priests and the
Temple of Juppiter Feretrius is undeniable. L. Cornelius Piso Frugi and
Varro had information that still connected the games with the Temple of
Juppiter Feretrius and in this temple the Fetial priests kept their sacred
implements, the silex (the flint stone knife which they used in treaty
formation ceremonies) and the scepter (which represented Juppiter).57
No other priests are mentioned in the sources associated with the Temple
of Juppiter Feretrius except the Fetial priests. This temple like many
others in Rome was not open to all, only to priests.58 Cassola’s study
on the Temple of Juppiter Feretrius shows that this temple also was
inaccessible to all except its priests.59 This raises the question whether
the Fetial priests were priests of Juppiter Feretrius. There is no evidence
for such a priesthood in the ancient sources. Rüpke does suggest that the
Fetial priests became priests of Juppiter Feretrius.60 When our sources
speak of games instituted for Juppiter Feretrius and at the same time
say that Romulus dedicated this temple, we have only information that
connects Fetial priests with this temple.
An objection might be raised that the Temple of Juppiter Feretrius,
dedicated by Romulus, predates the institution of the Fetial Priesthood
in Rome. According to Dionysius of Halicarnassus and Plutarch, the
Fetial priesthood was introduced by Numa Pompilius, whereas Cicero

55 For the late republic, see Cicero, Ad Quintum fratrem ... For the Augustan period,

see CIL . = . and CIL ..

56 Thulin, “Iuppiter”, col. ; Habel, Ludi Capitolini, p. .
57 For the silex, see Livy, Ab urbe condita ..; Festus, De verborum significatu

L. For the scepter, see Zollschan, “The ritual Garb,” p. .
58 Isidorus, Origines ...
59 F. Cassola, “Livio, il tempio di Giove Feretrio e la inaccessibilità dei sanctuari in

Roma,” Rivista Storica Italiana  (), –.

60 Rüpke, Domi, p. .
 the longevity of the fetial college 

attributes their foundation in Rome to Tullus Hostilius.61 When Romulus

founded the temple Livy tells us that he marked off a sacred area beneath
a tree. Livy says this was a templum which could mean merely a sacred
enclosure and not necessarily a building as such.62 Livy says that Ancus
Marcius built an aedes for Juppiter Feretrius which is simply an area
walled in by stone.63 Springer concludes that no temple was built until
the end of the regal period.64 In this way, it is possible to reconcile the
seemingly contradictory statements that Romulus dedicated a temple to
Juppiter Feretrius but the Fetial priesthood had not yet been introduced
to Rome.
A summary of the above material, in my view, makes it possible
to say with a strong degree of certainty that the games (whether we
call them the ludi Tarpeii or the ludi Capitolini) go back to the time
of Romulus, that the Fetial priests were involved in some fashion, and
that the games continued at some regular interval whether annually or
not. The priestly college in charge of the games is attested to in the
late republic and the Augustan period and would have included those
involved with the temples on the Capitol, which included the Temple
of Juppiter Feretrius. The participation of the Fetial priests in these
games on a regular basis is a strong possibility and this contention
may be added as another recurring activity in which the Fetial priests
participated.
These Games have been incorrectly identified as games to Jupiter
Optimus Maximus on the basis of an image of a temple on the reverse
of a denarius minted by M. Volteius in  bc.65

61 Dionysius Halicarnassus, Roman Antiquities .; Plutarch, Numa ; Camillus ;

Cicero, De republica . []. For a discussion of the evidence for the introduction of
the Fetial priests into Rome, see R.J. Penella, “War, Peace, and the ius fetiale in Livy ,”
Classical Philology  (), –.
62 Livy, Ab urbe condita ... Cf. Dionysius Halicarnassus, Roman Antiquities ...
63 Livy, Ab urbe condita ...
64 L.A. Springer, “The Cult and Temple of Jupiter Feretrius,” Classical Journal 

(), –.
65 Ernest Babelon, Description historique et chronologique des monnaies de la Répu-

blique Romaine (Paris, –), pp. –, see Volteia; Th. Mommsen, Die Geschichte
des römischen Münzwesens (; repr. Graz, ), pp. –; H. Grueber, Coins of
the Roman Republic in the British Museum (London, ), Rome ; M.H. Crawford,
Roman Republican Coinage,  (Cambridge, ), p. , I. , Pl. XLIX  / . Misiden-
tification: T.P. Wiseman, “The Games of Hercules,” p. .
 linda zollschan

Denarius of M. Volteius,  bce, RRC .

Courtesy of the Classical Numismatic Group.

In that year, Volteius issued a series of denarii, each representing one of

the ludi Romani. Games to Jupiter are indicated by a denarius with a head
of Jupiter on the obverse and a temple on the reverse. This coin signifies
games to Jupiter but the question is to which Jupiter. The answer lies in the
image on the reverse of a small temple, which has four columns in Doric
style with a winged thunderbolt in the pediment. The Temple of Jupiter
Optimus Maximus did not have this architectural style. Descriptions by
Cicero of the Temple of Jupiter Optimus Maximus before its destruction
by fire in  bc mention that it had two rows of six columns with a bronze
quadriga of Jupiter placed on the apex of the pediment.66 The new temple
dedicated in  bc was still a hexastyle temple. The temple of Jupiter
Optimus Maximus on the reverse of the denarius of Petillius in  bc still
depicts a hexastyle temple with decorations hanging vertically between
the central four columns. In the pediment a figure is shown and the roof
is decorated with statues of horses and horsemen.

Denarius of Petillius Capitolinus,  bce, RRC /.

Courtesy of the Classical Numismatic Group.

66 Cicero, De divinatione ... See also Augustine, De civitate dei ..

 the longevity of the fetial college 

The temple on the denarius of Volteius does not match the visual and
literary depictions of the Temple of Jupiter Optimus Maximus; however,
his temple does bear a remarkable resemblance to the Temple of Juppiter
Feretrius on the denarius of P. Cornelius Lentulus Marcellinus in c.  bc,
which depicts M. Claudius Marcellus in  bc dedicating the spolia
opima to the Temple of Juppiter Feretrius.67

Denarius of Cn. Cornelius Lentulus Marcellinus, c.  bce, RRC /.

Courtesy of the Classical Numismatic Group.

On this coin, the temple of Jupiter Feretrius is shown as tetrastyle with the
same roof decorations as that on the Volteius coin. Neither the denarius
of Volteius nor that of Marcellinus shows any quadriga or any human
figures. The temple on the Volteius coin may with surety be identified as
that of Jupiter Feretrius and not that of Jupiter Optimus Maximus. The
denarius of Volteius was minted to commemorate the Games to Juppiter
Feretrius. These games were not public games and, so, do not appear
in the Fasti.68 They were still being held in  bc as evidenced by the
Volteius denarius and a letter Cicero wrote to his brother shows that they
continued to be held into Cicero’s day.69
The Fetial priesthood remained an active body throughout the Repub-
lic because their duties required them to renew treaties each year and to
participate in the annual Games to Juppiter Feretrius. Such annual activ-
ities belie the notion that the Fetials were only called together on an ad
hoc basis or that they had died out.

67 Babelon, Description, p. , see Cornelia; Edward A. Sydenham, The Coinage of

the Roman Republic (London, ), p. ; Grueber, Coins, Rome ; Crawford,
Coinage,  / ; Götz Lahusen, Die Bildnismünzen der römischen Republik (Munich,
), p. ; John P.C. Kent, Roman Coins (London, ), p. .
68 Scullard, Festivals, p. .
69 Cicero, Ad Quintum fratrem ..
 linda zollschan

.. More Literary Evidence

A brief survey of the literary evidence indicates the continued activity by
the Fetial priests from  to  bc.
In  bc, the Fetials were asked to advise the senate on the correct
procedure to declare war on Antiochus.70 In  bc, the Fetials handed
over to Carthage two Romans who were accused of physically assault-
ing Carthaginian ambassadors.71 In the same year, several youths were
accused of the same offence against envoys from Apollonia and they too
were handed over by the Fetials.72
In  bc, complaints were laid against Cn. Manlius Vulso, to the
effect that he had led his army against the Galatians without a declara-
tion of war authorized by the senate or people.73 In other words, they
charged that he had gone to war without any consideration for the law
of nations (nullo gentium iure).74 Livy records his two accusers as ask-
ing: “Do you wish the formalities to be violated and thrown into con-
fusion, the Fetial laws to be done away with and the Fetials themselves
abolished?”75 The accusation against Vulso that he wanted to abolish the
Fetials flies in the face of the supposition that they already had been abol-
ished  years earlier. There can be no clearer evidence that the Fetials
continued to exist after  bc and that their Fetial law remained rele-
vant in  bc.
In  bc, C. Hostilius Mancinus was forced to retreat from Numantia,
surrender and swear a truce and terms of peace.76 He was recalled to
Rome and the senate refused to ratify what was considered a disgraceful
treaty.77 The senate voted to hand over Mancinus, as the man responsible
for the debacle, to the enemy. Velleius tells us that the Fetial priests
conducted the actual handover of Mancinus to the Numantines.78

70 Livy, Ab urbe condita ..–. See Walbank, Roman Declaration of War, pp. –

 and J.W. Rich, Declaring War in the Roman Republic in the Period of Transmarine
Expansion, (Brussels, ), pp. –.
71 Livy, Ab urbe condita ..; Valerius Maximus, Facta et dicta memorabilia ...
72 Valerius Maximus, Facta et dicta memorabilia ...
73 Livy Ab urbe condita ...
74 Livy Ab urbe condita ...
75 Livy Ab urbe condita ...
76 Plutarch, Tiberius Gracchus ..
77 Plutarch, Tiberius Gracchus .; Appian, The Iberian War .
78 Velleius Paterculus, Historiae romanae ... See on these events, T. Robert S.

Broughton, The Magistrates of the Roman Republic,  vols. (New York, –),
:–; A.E. Astin, Scipio Aemilianus (Oxford ), pp. –; Nathan Rosen-
stein, Imperatores Victi. Military Defeat and Aristocratic Competition in the Middle and
 the longevity of the fetial college 

In  bc, it is reported by Valerius Maximus that Scipio Nasica bellum

indixit which raised the possibility, according to Oost, that he may have
been a Fetial and that in this capacity he made the declaration of war
against Jugurtha.79
In  or  bc, Saturninus was accused of a crime that constituted a
breach of the Fetial law.80 According to Diodorus, it was alleged he had
mistreated foreign envoys sent to Rome by Mithridates:
Envoys of King Mithridates arrived in Rome, bringing with them a large
sum of money with which to bribe the senate. Saturninus, thinking that
this gave him a point of attack on the senate, behaved with great inso-
lence towards the embassy. At the instigation of senators, who promised
to lend their support, the outraged envoys preferred charges against Sat-
urninus for his insulting treatment. The trial, held in public, was of great
import because of the inviolability attaching to ambassadors and the
Romans’ habitual detestation of any wrongdoing where embassies were
concerned; it was therefore a capital charge of which Saturninus stood
accused, and since his prosecutors were men of senatorial rank, and it was
the senate that judges such cases, he was thrown into great fear and dan-
ger.81
It is to be regretted that this passage constitutes our only evidence for
this trial because it lacks many details about the legal framework and
mechanisms used to bring Saturninus to trial. Too frequently there is
evidence only about the juries because they make the legal decision and
in only  / th of the trials that are known to us do the sources provide
the name of the president of the court.82
The charges against Saturninus of breaching the inviolability of ambas-
sadors arose from circumstances that differ greatly from previously

Late Republic (Berkeley-Los Angeles-Oxford, ), p. ; Nathan Rosenstein, “Imper-

atores Victi: The Case of C. Hostilius Mancinus,” Classical Antiquity,  (), –
.
79 Valerius Maximus, Facta et dicta memorabilia ... See S.I. Oost, “The Fetial Law

and the Outbreak of the Jugurthine War,” American Journal of Philology  (), 
n. . Also: Jérome J. Carcopino and Gustave Bloch, La république romaine de  à 
avant J.-C., nd ed. (Paris, ), p.  n. .
80 Accepted as historical: H. Last, “The Enfranchisement of Italy,” in The Cambridge

Ancient History , The Roman Republic – bc, eds. S.A. Cook, F.E. Adcock, and
M.P. Charlesworth (Cambridge, ), pp. –.
81 Diodorus Siculus, Bibliotheca historica ..–. Translation: F.R. Walton, Diodo-

rus of Sicily, vol.  Loeb Classical Library (Cambridge, Mass.-London, ), p. .
82 T. Corey Brennan, The Praetorship in the Roman Republic, ,  to  B.C. (Oxford,

), p. .
 linda zollschan

known cases in  and  bc against ambassadors from Carthage and
Apollonia where actual physical assault had been alleged. Saturninus’
crime was one of verbal assault, that is, insulting the envoys. The question
that arose was whether the act of insulting envoys constituted a breach of
their inviolability and hence of the ius gentium.83 To determine whether
the inviolability of envoys could be negated by mere speech and without
physical violence required expert opinion and the Fetial priests had been
involved in previous cases in  bc. A suggestion has been made that
what occurred in this case was similar to the process in the Bona Dea
trial where first the college of the pontiffs was asked to judge whether the
religious rites had been violated and following their advice the senate and
the people set up a quaestio extraordinaria to try Clodius.84 The Fetials
did act in an advisory capacity to the senate85 and the crime was one that
fell under their jurisdiction. If priests were consulted, the Fetial priests
were the ones most competent to rule whether the ius fetiale had been
violated and hence if a crime had been committed. The fact that the
punishment was to be death was unusual.86 In previous cases, such as
in  and  bc, the penalty had been to hand over the guilty party to
the state of the envoys.
Diodorus reports that the senate judged such cases. This need not
mean that the trial was actually held in the senate house itself. Such an
anachronism is untenable as the senate did not become a court of law
until the Principate.87 That the senate judged such cases is a reference to
the jury composed of senators. This appears to be an anomaly because
jurors at this time would have been a mix of senators and equestrians or
equestrians alone.88

83 For this reason, Mommsen’s use of Tatius and the murder of the envoys from

Lavinium (Livy, Ab urbe condita ..–; Dionysius Halicarnassus, Roman Antiquities

.–) as a precedent is not valid. See Mommsen, Staatsrecht, :.
84 Broughton, “Mistreatment,” p. .
85 Mommsen, Staatsrecht, :.
86 Death penalty, see Justinian, Institutes ...
87 Richard A. Bauman, “The Leges Iudiciorum Publicorum and their Interpretation in

the Republic, Principate and Later Empire,” in Aufstieg und Niedergang der römischen
Welt, . (Berlin, ), pp. –.
88 The Lex Servilia of Caepio in  bc introduced mixed juries: J.L. Strachan-David-

son, The Problems of Roman Criminal Law,  (Oxford, ), p. , n. . The Lex
Servilia Glaucia (variously dated between – bc) introduced all equestrian juries:
A.H.M. Jones, The Criminal Courts of the Roman Republic and Principate (Oxford, ),
p. .
 the longevity of the fetial college 

Diodorus states that the trial was held in public. His words led Momm-
sen to think of a iudicium publicum.89 This term may have a non-technical
sense of ‘a trial in the public interest’.90 Such a trial could be set up using
the authority of a senatus consultum.91
Broughton considers the trial to have been a iudicium publicum with
judges comprised of Fetials.92 Dionysius, Varro and Cicero all mention
the duty of the Fetials with regard to crimes against ambassadors.93 Varro,
in particular, gives them a role as iudices.94 By whatever legal mechanism,
the senatorial judges are most likely to have consisted of Fetial priests.
The jurors needed to be experts in the ius gentium and in this case, the
whole college of twenty priests may have served as the jurors and since at
this time no plebeians are recorded as ever having been co-opted into the
Fetial College, these jurors would all have been senators.95 The presence
of the Fetial priests gave rise to the claim that senatorial judges were
acting as Saturninus’ prosecutors. The involvement of the Fetial priests
in this trial places them in a period when they are thought to have died
out.
The Fetials are mentioned in the course of another trial. When Cicero
prosecuted Verres in  bc, one of the charges was that he had breached
the treaty between Rome and Messana. Cicero enquired sarcastically
whether Verres was an authority on treaty law, even whether he had
perhaps been educated as a Fetial.96 Cicero’s irony would have been
wasted and, indeed, completely ineffective had the Fetials been inactive
for the past  years. Cicero’s reference to Fetial education may push the
references to the Fetials even further back. If we consider that Verres was

89 Mommsen, Staatsrecht, :, n. .

90 A.W. Lintott, Judicial Reform and Land Reform in the Roman Republic (Cambridge,
), p. ; A.W. Lintott, “Provocatio. From the Struggle of the Orders to the Prin-
cipate,” in Aufstieg und Niedergang der römischen Welt, . (Berlin, ), pp. –
.
91 Digesta ...
92 Broughton, “Mistreatment”, pp. –. See also Michael C. Alexander, Trials in the

Late Roman Republic,  to  bc. (Toronto, ), p. , Trial no. ; J.L. Beness, “The
Urban Unpopularity of Saturninus,” Antichthon  (),  n.  and Corey Brennan,
The Praetorship, :.
93 Dionysius Halicarnassus, Roman Antiquities ..; Varro, in Nonius  L; Cicero,

De legibus .. On the latter passage, see G. Nenci, “Feziali ed aruspici in Cicerone (de
leg. II ,),” La Parola del Passato  (), –.
94 Varro, De vita populi romani ..
95 See Zollschan (forthcoming) “The Entry of Plebeians into the Fetial College”.
96 Cicero, In Verrem ..–.
 linda zollschan

born in  bc he could have been educated as Fetial as early as  bc.97

This passage fixes a date for the continuation of the Fetials for a period
of approximately twenty years from c.  to  bc.
In  bc, a punishment under the Fetial law was still being invoked,
this time by Cato who wanted Caesar handed over to two Gallic tribes in
an act of deditio for having waged a bellum iniustum. Caesar was charged
with having made war while a truce was in effect. Cato invoked the
danger of religious pollution and the curse that would fall on the City
and wanted Caesar treated as Mancinus had been.98
Later, in c.  bc, Cicero gave the Fetial priests a prominent role in his
ideal state. They were to be responsible for the humane conduct of war.
He refers to the already existing Fetial laws thus: “As for war, humane
laws touching it are drawn up in the Fetial code of the Roman people
under all the guarantees of religion;”.99 This suggests that there was no
need to re-invent or revive the Fetial law, a code of law still well-known
and current.
From this brief survey of the literary sources, it would be unwise to
announce the death of the Fetial priesthood and equally to proclaim that
they were not in operation throughout the second and first centuries
bc.100

. Compatibility between Senators and Fetial Priests

A second variant of the theory that the Fetials disappeared surmises that
their functions were usurped by the senate. This view goes back to 
when Zamoscius held that there was an incompatibility between being
a senator and a Fetial priest.101 His view was based on a misreading
of a passage of Livy where the Senate asked the Fetials for advice on
the correct procedure to make a declaration of war against Philip. Livy
states that, after the Fetials had tendered their advice, “. . . the consul was
permitted by the senate to send anyone he chose, other than a senator
[extra senatum], to declare war . . . ”.102

97 J. Bartels, “C. Verres”, in Brill’s New Pauly . (Leiden-Boston, ), col. .
98 Plutarch, Caesar .–; Cato Minor ..
99 Cicero, De officiis ..
100 Broughton, “Mistreatment,” p. .
101 J. Zamoyski / Zamoscius, “De senatu romano,” in J.G. Graevius, Thesaurus antiqui-

tatum romanorum,  (Ludg.-Batavor, ), p. E.

102 Livy, Ab urbe condita ..–.
 the longevity of the fetial college 

Much ink has been spilt over this passage, in particular, whether
M. Aemilius Lepidus was a senator at this time. As Rich notes, the identity
of the one chosen is not known and it may not have been Lepidus after
all.103 I would point out that there is also no evidence that the man chosen
by the consul was a Fetial priest.
A second question is whether an envoy had to be a senator. Rich
considers that legati had to be drawn from the senate even though there
is no rule to be found in the sources.104 In my view, there actually was
no rule and therefore the senate made a decision for each occasion as
to the type of envoy they wanted.105 In  bc, the senate decreed that
the consuls should choose ten legati at their discretion from the senate
and again in  bc that the praetor should choose three envoys from
among the senators.106 The Livian passage above shows that the senate
could decide occasionally to send an envoy not from the senate.107 This
conclusion is the correct one to draw from this passage. It tells us nothing
about Fetial priests being chosen and cannot be brought forward as any
evidence for an incompatibility between being a member of the senate
and simultaneously being a member of the Fetial college. In fact, the
Roman state knew no incompatibility between holding priesthoods and
holding other offices,108 with a few exceptions, such as, the rex sacrorum,
for example. Originally, the patres in the senate may have consisted
entirely of priests, as Mitchell has suggested.109 Stuss also thought that
Fetials were not senators arguing that, since the Fetial college was not one
of the four main colleges, its members never attained senatorial rank.110
Yet, in the republic, all the known names of Fetial priests were of men of

103 See Rich, Declaring War, p. .

104 Rich, Declaring War, p. .
105 Regarding the senate’s prerogative to make the choice, see Cicero, In Vatinium 

and Pro Sestio .

106  bc: Livy, Ab urbe condita ..;  bc: Livy, Ab urbe condita ...
107 The sending of an “unofficial” representative carries certain advantages. E. Badian,

Foreign Clientelae, – B.C. (Oxford, ), p.  provides examples to show that it
was a regular practice to send an adulescens for unofficial types of diplomacy. Many schol-
ars have read into this passage the desire of the senate to be distanced from the actions of
the legatus. See Walbank in MacDonald and Walbank, Origins, pp. –; R. Werner,
“Das Problem des Imperialismus und die römische Ostpolitik im zweiten Jahrhundert v.
Chr.,” in Aufstieg und Niedergang der römischen Welt, . (Berlin, ) p.  n. .
108 Cicero, Pro domo sua ..
109 Richard E. Mitchell, “The Definition of patres and plebs: An End to the Struggle of

the Orders,” in Social Struggles in Archaic Rome. New Perspectives on the Conflict of the
Orders, ed. Kurt A. Raaflaub, nd ed. (Malden, MA, ), pp. –, –.
110 Stuss, Gedanken, pp. –.
 linda zollschan

consular or praetorian rank and thus senators.111 In short, there was no

bar to being both a senator and a Fetial. Indeed senators and Fetials were
drawn from the same elite body of men.
In the absence of any unequivocal evidence that being both a senator
and a Fetial were mutually exclusive, it must be asked whether the notion
that the senate ‘usurped’ the powers of the Fetials as envoys can be
sustained. The question arises whether our sources in the second and first
centuries bc would necessarily inform us that an envoy was a Fetial if it
were tautologous to do so in cases where the senator was also a Fetial
priest.112

. No Revival in  BC

The third argument is that the Fetial law had become obsolete but was
reintroduced for the express purpose of handing over Mancinus to the
Numantines.113 This opinion is grounded principally on the decline in
the role of the Fetials in declaring war.114 As proof that the Fetial law
was no longer operative, Ogilvie cited Polybius .. to prove that “. . .
only a bare trace of the original procedure survived in his [Polybius’]
day.” However, a very different subject is being discussed by Polybius; not
the Roman method of declaring war, but the Romans’ use of honourable
battle tactics in combat.115 Polybius’ account is as follows:
Some slight traces, however, of the ancient principles of warfare survive
among the Romans. For they make declaration of war, they very seldom
use ambuscades and they fight hand-to-hand at close quarters.116

111 Examples include A. Cornelius Cossus Arvina, C. Papirius, Furius Philus, Scipio

Nasica, L. Billienus, L. Fabricius, Cn. Domitius Calvinus, Cn. Pompeius / Pomponius

Rufus and Octavian. For full documentation, see Zollschan (forthcoming) The Fetial
Priests, Part C.
112 Legatus has four meanings. Here it is used in the sense of ‘envoy’ and should not

be confused with its meaning during the Empire as a permanent representative of a

promagistrate, for example legatus Augusti pro praetore. During the Empire, Fetial priests
are attested as both fetials and legati but in the latter sense, for example L. Aemilius
Honoratus, CIL . . On the meaning of legatus, see P. Kehne, “Legatus,” in Brill’s
New Pauly  (Leiden-Boston, ), cols –.
113 John A. North, Roman Religion, Greece and Rome. New Surveys in the Classics 

(Oxford, ), p. .

114 Ogilvie, Commentary, p. ; Rawson, Scipio, p. .
115 Polybius, Histories ... See also Walbank, “Roman Declaration of War,” pp. –

.
116 Translation W.R. Paton, The Histories of Polybius, vol.  Loeb Classical Library

(Cambridge, Mass., ), p. .

 the longevity of the fetial college 

No ancient evidence testifies to a revival of the Fetial priesthood and

indeed, as seen above, they continued to be needed to renew treaties each
year and to take part in the annual games to Juppiter Feretrius. A theory
advocating a revival of the Fetial priesthood in  bc is unnecessary and
without foundation.

. The Fetial College until the Principate

The fourth argument is that no Fetial college had existed until the Prin-
cipate. So sweeping a judgment cannot be maintained. Saulnier contends
that only under Augustus was a Fetial college formed and she bases her
conclusion on the appearance of names of individual Fetial priests only
at the end of the Principate.117 Testimony for names of most Roman
priests commences only from the Principate. For the Republic, the over-
all quantity of names extant is very low with, for example, only two names
known for the minor flamines and until  bc only the name of one Luper-
cus.118 Based on the paucity of records for the Republic, Saulnier asserts
there was no Fetial college until names began appearing in the epigraphic
record towards the end of the Principate. She considers that their num-
ber peaked in the reigns of Hadrian, Antoninus and M. Aurelius.119 Her
study was based on a list of twenty datable inscriptions.120 Her conclu-
sions, however, ignore the limitations of inscriptional evidence.
Mrozek, MacMullen, and Woolf have all shown that the number of
inscriptions in both the western and eastern parts of the Roman Empire
increased from the Principate of Augustus.121 There was an explosion in
the custom of inscribing on stone at the end of the first century bc in what
Alföldy calls a furor epigraphicus.122 The quantity peaked in the reign of

117 C. Saulnier, “Le rôle des prêtres fétiaux et l’ application du ‘ius fetiale’ à Rome,” Revue

historique de droit français et étranger  (), , , , especially p. , where
she states that the epigraphic evidence permits us to think that the Fetial priests were not
organized into a stable college until the Augustan restoration.
118 Jörg Rüpke, “Roman Religion,” in The Cambridge Companion to the Roman Republic,

ed. Harriet I. Flower (Cambridge, ), p. .

119 Saulnier, “Le rôle,” p. .
120 Saulnier, “Le rôle,” pp. –.
121 S. Mrozek, “À propos de la repartition chronologique des inscriptions latines dans

le Haut-Empire,” Epigraphica  (), –. R. MacMullen, “The Epigraphic Habit

in the Roman Empire,” American Journal of Philology  () –. G. Woolf,
“Monumental Writing and the Expansion of Roman Society in the Early Empire,” Journal
of Roman Studies  () –.
122 Geza Alföldy, “Augustus und die Inschriften: Tradition und Innovation. Die Geburt

der imperialen Epigraphik,” Gymnasium  () .

 linda zollschan

Septimius Severus and fell noticeably in the mid third century ad.123 This
rise and fall is simply a curve that reflects nothing more than the rise and
fall of the ‘epigraphic habit’.
This pattern occurs for all aspects of Roman society where the evidence
is obtained only from inscriptions. The same curve can be seen for the
names of senators, the names of priests of Dionysus, the names of Roman
patrons of Greek cities, and the names of curatores rei publicae.124 The
methodology of using the amount of inscriptions to show the rise and
fall of certain institutions in the Roman state has become standard. This
argument has been used, for example, to prove that the Dionysiac cult
flourished between  and  ad.125 Such conclusions are erroneous
because they do not take into account the restrictions of inscriptional
evidence. According to Eilers:
The rise and fall of any epigraphically attested phenomenon must be con-
sidered in the context of increasing or decreasing numbers of inscrip-
tions. . . . Just as care must be taken when trying to infer the decline of
institutions, so too an increase in their number does not necessarily imply
that the phenomenon was becoming more common.126
According to MacMullen, historical conclusions based on the frequency
of inscriptional evidence will be in error unless the rise and fall of the
epigraphic habit is taken into consideration.127 MacMullen has called
for Roman religious history to be rewritten because of its reliance on
inscriptional evidence.128
There are  datable inscriptions that mention Fetial priests. Not all
inscriptions may be dated with sufficient accuracy to the reign of individ-
ual emperors. For this reason, Mrozek assigned individual inscriptions
into periods broader than the reign of a single emperor using half cen-
turies. If one groups datable inscriptions that mention a fetialis into half
centuries, following the system of Mrozek, the following pattern occurs:

123 Mrozek, “La repartition chronologique,” p.  and for the East: MacMullen, “The

Epigraphic Habit,” p. ; Woolf, “Monumental Writing,” p. .

124 R. Duthoy, “Curatores rei publicae en Occident durant le Principat,” Ancient Society

 (), –.
125 Mrozek, La repartition chronologique, p. , n.  referring to the work of A. Bruhl,

Liber Pater, origine et expansion du culte dionysiaque à Rome et dans le monde romain
(Paris, ), p. .
126 Claude Eilers, Roman Patrons of Greek Cities (Oxford, ) p. .
127 MacMullen, “The Epigraphic Habit,” p. .
128 MacMullen, “The Epigraphic Habit,” p. , n.  for several examples of false

assumptions arising from disregard of the epigraphic habit when using data drawn from
inscriptions.
 the longevity of the fetial college 

Table: Datable Inscriptions Mentioning Fetial Priests

st 1/2 nd 1/2 st 1/2 nd 1/2 st 1/2 nd 1/2
st ad st c. ad nd c. ad nd c. ad rd c. ad rd c. ad
No. of No. of No. of No. of No. of No. of
Inscriptions Inscriptions Inscriptions Inscriptions Inscriptions Inscriptions
 *    
AE ,  CIL . AE ,  CIL . CIL .
CIL . CIL . CIL . CIL . CIL .
CIL  / , CIL . AE , CIL . AE , 
pp. – CIL . [= AE , AE ,  CIL .
[= RGDA ] IRT  ] AE ,  [= CIL .]
CIL . AE ,  AE ,  CIL . CIL .
CIL . AE ,  CIL . CIL . CIL .
CIL  / . ILAlg. . CIL . ILAlg. . AE , 
[= AE , CIL . ILAfr.  ILAlg. . AE , 
] AE ,  CIL . AE ,  CIL .
CIL . CIL . CIL . CIL . CIL .
CIL . CIL . CIL . CIL .
IRT  IRT  AE , 
CIL . CIL .
AE ,  CIL .
AE ,  CIL .
CIL  / .
AE , 
AE , 
AE , 

* Large number because one individual is responsible for  inscriptions

Inscriptions that mention Fetials begin to appear in the Principate, peak

in the second half of the second century and cease after ad . The rise
and fall in the number of inscriptions mirrors the pattern of the rise
and fall of the epigraphic habit. The inscriptional evidence permits us
to extrapolate nothing more from the numbers alone. Any attempts to
conclude that the Fetials existed or did not exist from this data would be
unsound.

. Augustan ‘Revival’ of the Fetial College

The fifth argument concerns an assumed revival of the Fetial priesthood

by Augustus. The assumption that the Fetials by this time had died out has
taken such a hold, despite the many references to their activity between
 and  bc, that when they are mentioned in  bc an assumption is
 linda zollschan

made that they must have been revived. Most recently this view has been
expressed by Scheid in  who wrote:
He [Augustus] also showed interest in the revival of the old religious
functions and rituals. In  bc, he declared war on Cleopatra according
to the rituals of the Fetiales . . .; the restoration of this forgotten priesthood
must be dated [my emphasis] to these years.129
Cassius Dio’s report of the declaration of war against Cleopatra, where
Octavian, as Fetial, performed the ritual, says it was done κατ τ
νομιζμενον, ‘in the customary fashion’.130 This phrase appears to refer
to a pre-existing rite. The widespread acceptance that the Fetials were
not in use prior to  bc has led to assertions that Augustus revived
or even invented a spear throwing ritual.131 This view was challenged
by Fusinato in  who considered that the phrase ‘in the customary
fashion’ suggested that the ritual had not been forgotten and indeed not
revived.132
The whole question of Augustus’ revival of religion has been put
under the microscope. Brunt was convinced that one should not take
too literally the accounts of Augustus restoring religion.133 Warde Fowler
almost a century ago suggested that the revival may have only meant that
the prestige of the Fetial College was confirmed when Augustus became a

129 John Scheid, “Augustus and Roman Religion: Continuity, Conservatism, and Inno-

vation,” in The Cambridge Companion to the Age of Augustus, ed. K. Galinsky (Cambridge,
), p. .
130 Cassius Dio, Roman History ..–. “Customary” refers here to the period that

Dio was describing, not to his own time in the third century. See Santangelo, “The Fetials
and their Ius,” pp. –; H. Volkmann, Cleopatra. A Study in Politics and Propaganda,
trans T.J. Cadoux (London, ), p. ; cf. Rüpke, Domi, pp. –; Rich, Declaring
War, p. .
131 Saulnier, “Le rôle,” p. ; Wiedemann, “A Reconsideration,” pp. –; Rüpke,

Domi, pp. –; R.A. Kearsley, “Octavian in the Year  bc: The S.C. de Aphrodisien-
sibus,” Rheinisches Museum für Philologie  (), pp. –; F. Fontana, “Fetialis fui,”
Annali dell’istituto italiano per gli studi storici  (–), –; his view that Livy
invented the ritual is wholly unconvincing; Ernesto Bianchi, Fictio Iuris. Richerche sulla
finzione in diritto romano dal periodo arcaico all’epoca augustea (Padua, ) pp. –
; Geoffrey S. Sumi, Ceremony and Power: Performing Politics in Rome between Republic
and Empire (Ann Arbor, ), pp. –. Cf. Rich, Declaring War, p. ; Santangelo,
“The Fetials and their Ius,” p. .
132 Fusinato, Dei feziali, p. . Broughton, “Mistreatment,” p.  was of the view

that in such an historic moment Octavian would have ensured that he was acting in
the most proper and correct manner. For innovation by Octavian: Fontana, “Fetialis
fui,” p. . Ferrary, Ius fetiali, p.  rejects any innovation by Octavian. Wiedemann,
Reconsideration, pp. – and Rüpke, Domi, pp. – consider the ritual a fiction.
133 P.A. Brunt, “The Senate in the Augustan Regime,” Classical Quarterly  /  (),

p. .
 the longevity of the fetial college 

member.134 Jocelyn had this to say: “We have no means of telling whether
. . . many of the priesthoods had lain unoccupied for centuries.”135 The
only direct information on Augustus’ religious revivals, however, is found
in Suetonius where he states that the ancient rites that had gradually
fallen into disuse and merited revival were the augury of Salus, the office
of the Flamen Dialis, the Lupercalia, the Saecular Games and the festival
of the Compitalia.136 Absent from this list are the Fetials. Therefore, there
is no reason to assume that Augustus revived the Fetial priesthood.

. Conclusion

The theory that the Fetial priesthood did not function in the second
and first centuries bc rests on five foundations, which individually and
collectively can offer no support for this proposition. The over-emphasis
on the decline in Fetial participation in declarations of war has left a
legacy that has influenced scholarship to the detriment of understanding
the full range of the functions of the Fetial priesthood. The duration of
their longevity may now be confirmed as extending into the middle and
late Republic.
When the Fetials priests, in fact, ceased to exist is not known. It cannot
be taken as certain that the last Fetial attested from inscriptions was
L. Roscius Aelianus Paculus Salvius Iulianus in c. ad  and that this
date marks their disappearance. ad  merely coincides with the decline
of the epigraphic habit.137 The last reference to them is in ad  when
Ammianus reports that the Fetial spear throwing ceremony was used to
declare war.138 The answer as to when in fact they died out must await
further discoveries.

134 William Warde Fowler, The Religious Experience of the Roman People from the

Earliest Times to the Age of Augustus (; repr. New York, ), p. . Indeed,
Wissowa notes that Augustus was not just a fetial priest but the pater patratus. See
Wissowa, Religion, p. .
135 H.D. Jocelyn, “The Roman Nobility and the Religion of the Republican State,” The

Journal of Religious History  (–), p. .

136 Suetonius, Augustus ..
137 Cf. H. Sidebottom, “International Relations” in The Cambridge History of Greek and

Roman Warfare , Rome from the Late Republic to the Late Empire, eds. Philip Sabin,
Hans van Wees, and Michael Whitby (Cambridge, ), p.  who states that the Fetials
were last heard of in the third century ad, citing AE , . This inscription relates
to Catius Lepidus; whereas the last attested Fetial is probably L. Aelianus Paculus Salvius
Rufus Iulianus known from AE , .
138 Ammianus Marcellinus, Res gestae ...
 linda zollschan

The longevity of the fetial college reinforces some perceptions of

Roman religion that it was innately conservative and respected its tra-
ditions that stretched back to the archaic period. The continuance of the
fetial priesthood into the imperial period shows the value Romans placed
on the maintenance of the forms of the ancient religion. Much of this
was due to the determination of emperors to follow the precedent set by
Augustus. The fetial priesthood resisted change and moved from the late
republic into the empire as a college into which the Roman elites desired
entry. The fetial law gave ritual to many aspects of Rome’s foreign pol-
icy and was not discontinued. This intertwining of religion and law was
a feature that was a dominant aspect of the Roman political and cultural
ethos. The fetial law was just one example of this phenomenon.
 PART III

SACRED LAW, CIVIL LAW, AND THE CITIZEN

 SACRED LAW AND CIVIL LAW

Olga Tellegen-Couperus

. The Connection between Sacred and Civil Law

In the summer of  bc, two prominent Roman senators met on the

island of Samos, off the coast of Asia Minor: Marcus Iunius Brutus and
Servius Sulpicius Rufus. Brutus is best known as a politician and as one
of the murderers of C. Iulius Caesar, Rufus as the top jurist of his time. In
the previous year, both had been supporters of Pompey and both had fled
to the East after the battle of Pharsalos when Pompey had been beaten by
Caesar. Rufus had withdrawn to the island of Samos, where he awaited
the pardon of and reconciliation with Caesar. Brutus had already been
pardoned and was on his way back from Asia to Rome. He made a stop
on the island of Samos, and there the two met. According to Cicero who
described this meeting, they talked about law: Brutus asked Rufus many
questions about the extent to which pontifical law is connected to civil
law.1 Unfortunately, Cicero does not provide any details about the specific
questions Brutus asked, let alone Rufus’ answers, but it is clear that the
issue was regarded as relevant by both Brutus and Rufus.
This story is remarkable in that it seems to contradict the commonly
held view that, already in the course of the Republic, civil law had become
separated from pontifical law, i.e., from religion. Early secularisation is
even regarded as one of the characteristics of Roman law.2 The story
cannot be discarded as the odd one out, because in other places Cicero
also quotes leading Roman jurists who stress the importance of being well
acquainted with pontifical law.3 However, verifying the story is difficult
because our knowledge of early civil law is limited and that of pontifical
law problematical.
In the middle of the nineteenth century, Niebuhr suggested that, of
old, the pontiffs as keepers of law and time used to record major events

1 Cicero, Brutus ..

2 Franz Wieacker, Römische Rechtsgeschichte, I Einleitung, Quellenkunde, Frühzeit und
Republik (Munich, ), p.  with bibliography.
3 Cicero, De oratore .; De legibus . and .–.
 olga tellegen-couperus

and decisions.4 Although Niebuhr does not mention any source, he may
have been inspired by Livy’s story about King Numa who was said to have
entrusted written directions for performing the rites of worship to the
newly appointed pontiff Numa Marcius.5 Niebuhr’s suggestion triggered
numerous attempts to reconstruct the so-called Priesterbücher, and as
many critical comments on these attempts.6
Recently, John Scheid has qualified this phenomenon as “the modern
myth of the Priesterbücher” and has suggested that Roman religious
tradition was mainly oral. In his view, it “consisted in the combination
of two elements: on the one hand, a ritual savoir-faire, orally transmitted
from father to son, from public officer to public officer, relying on written
formulas of prayer and an orally enacted calendar; on the other, isolated
decisions adapting these ritual rules to new situations.”7 Focussing on the
pontiffs, Scheid suggests that they recorded these decisions or regulae in
their commentarii. The regulae were never collected or systematized into
a corpus. According to Scheid, they must have been comparable to the
opinions given by the jurists on problems of civil law.
Referring to Magdelain’s research on the early development of civil
law, Scheid suggests that the procedures used by Roman priests can
be reconstructed with the help of civil law procedures.8 One of the
procedures in which the pontiffs were involved was the punishment of
religious offences. How did they set to work? According to Scheid, the
main rule was that someone who had intentionally offended a god must
be surrendered to that god for the sake of vengeance. The procedure that
could lead to surrender consisted of two elements: the designation of the
guilty person and the establishment of guilt. Scheid reconstructs the first

4 B.G. Niebuhr, Historische und philologische Vorträge über römische Geschichte an der

Universität zu Bonn gehalten,  (Berlin, ), pp. –.

5 Livy, Ab urbe condita ..–.
6 It was particularly Georg Wissowa, Religion und Kultus der Römer, nd ed. (Munich,

) who stimulated this kind of work. Thus, Jörg Rüpke, Fasti Sacerdotum, Die Mit-
glieder der Priesterschaften und das sakrale Funktionspersonal römischer, griechischer, ori-
entalischer und jüdisch- christlicher Kulte in der Stadt Rom von  v. Chr. bis  n. Chr.,
 (Wiesbaden, ), pp. –. For an overview of the problems involved in these
reconstructions, see John North, “The Books of the Pontifices,” in La memoire perdue.
Recherches sur l’ administration romaine, Collection de l’École française de Rome 
(Rome ), pp. –, with bibliography.
7 John Scheid, “Oral Tradition and Written Tradition in the Formation of Sacred Law

in Rome,” in Religion and Law in Classical and Christian Rome, eds. Clifford Ando and
Jörg Rüpke (Stuttgart, ), pp. –, particularly pp. –, with bibliography.
8 Scheid, “Oral Tradition,” p. . André Magdelain, De la royauté et du droit de

Romulus à Sabinus (Rome, ), pp. –.

 sacred law and civil law 

element by comparing it with noxae deditio (noxal surrender) in civil law

and international law. For the second element, Scheid refers to a regula of
Q. Mucius Scaevola the Pontifex in which a distinction is made between
an impiety committed intentionally and one committed unintentionally.
Here, Scheid does not compare guilt in sacred law with guilt in civil law
although that would have been possible.
Scheid seems to combine two aspects of pontifical law and civil law:
the way in which opinions were recorded and the content of both sets of
law. The first aspect is not problematical. In the first three centuries of
the Republic, the pontiffs were the experts in sacred law as well as in civil
law. Subsequently, also senators who were not pontiffs started to become
involved in civil law; they are now known as jurists.9 As from the third
century bc, the jurists wrote down and collected their opinions; however,
the oldest texts we know date from the end of the second century bc.10
They have been preserved because, in the first two centuries ad, jurists
referred to them in their commentaries and opinions, and because, in the
sixth century, Emperor Justinian ordered a selection and collection to be
made of the works of the classical jurists, a compendium which is called
the Digest. It is not surprising that, in the Digest, most texts stem from the
late classical jurists Ulpian and Paul (ad –); only a limited number
of texts have their origin in the Roman Republic. It is more than likely that
the early jurists recorded their opinions in the same way as the pontiffs
had theirs; in fact, the jurists of the late Republic often were also pontiffs.
The second aspect of Scheid’s reconstruction, however, is very prob-
lematical. Did pontifical law and civil law share content? If they did, it
may be possible to reconstruct pontifical law with the help of civil and
international law. However, if they did not, it does not mean that there
was no connection between pontifical law and civil law. The interaction
between both sets of law may have taken place on a different level. There-
fore, the question is whether the method applied by Scheid is adequate
for the problem he tackled.
In the following, I shall study Scheid’s reconstruction from the point-
of-view of Roman law. First, I shall deal with the comparison of noxae

9 See, for instance, Richard A. Bauman, Lawyers in Roman Republican Politics. A

Study of the Roman Jurists in their Political Setting, – BC (Munich, ).
10 See Cicero, De oratore . about the custom of jurists to record opinions. The

earliest known jurists to do so are M. Porcius Cato Licinianus and Manius Manilius, both
living in the middle of the second century. The oldest known texts stem from Sex. Aelius
Catus, even though they are only indirect allusions. On this jurist, see Federico D’Ippolito,
“Sex. Aelius Catus,” Labeo  (), – and Bauman, Lawyers, pp. –.
 olga tellegen-couperus

deditio in sacred, civil, and international law. Then, I shall compare

Scaevola’s regula on impiety with a responsum that the same Scaevola gave
in a (civil law) case of unlawful damage.

. Noxae Deditio in Sacred, Civil, and International Law

Scheid reconstructs the designation of the guilty person in sacred law

with the help of noxae deditio in civil and international law. He assumes
that, in the later Republic, noxae deditio was applied in all three areas
of law. First, Scheid summarily describes the noxae deditio in civil and
international law, and then he compares it with that in sacred law.
In civil law, noxae deditio is a well known concept. Unfortunately, its
early history is shrouded in mist. Scheid refers to the reconstruction
by the Belgian Romanist Fernand de Visscher. In his book entitled “Le
régime de la noxalité en droit romain” which was published in , De
Visscher distinguished two phases (I shall quote Scheid’s translation of
this passage): “the first phase begins as soon as the crime is committed.
During this phase, the deditio noxae is only the right or the means of
the group for escaping the impending vengeance. During this period the
group can be freed by the exile or dimissio, the repudiation or the denial
of the guilty person as well as by any other act implying the ending of
social contact with him. The second phase starts with the summons by
the victim or his parents. The group of the guilty person now is forced
to hand him over. From now on, the group can only be freed by a noxae
deditio to the victim or the victim’s group.”11 According to De Visscher,
the obligation of noxae deditio was never sanctioned by a civil action,
but only by the coercive means of the magistrate: public authority simply
substituted collective vengeance.12 Scheid concludes that deditio noxae
always remained part of public law; it was political rather than juridical.13
For noxae deditio in international law, Scheid also refers to De Viss-
cher. According to the latter, international deditio is closely related to
that of civil law.14 It shows (again, I quote Scheid’s translation) that “if,
in circumstances in which the international customs consider it effica-

11 Scheid, “Oral Tradition,” p.  referring to Fernand de Visscher, Le régime romain

de la noxalité. De la vengeance collective à la responsabilité individuelle (Brussels, )

pp. –.
12 De Visscher, Noxalité, p. .
13 Scheid, “Oral Tradition,” p. .
14 De Visscher, Noxalité, p. .
 sacred law and civil law 

cious, the offered deditio is refused by the offended state, it will be suf-
ficient to free the state of the guilty person from every guilt, even if its
response is limited only to the expulsion of the guilty person from the
city.” Scheid illustrates this statement with the famous case of the consul
Hostilius Mancinus who, in  bc, had been surrendered by the Romans
to the Iberian city of Numantia but had not been accepted.15 In the Sen-
ate, P. Mucius Scaevola argued that the deditio was a deed of sovereignty
of the Roman people that was independent from the receptio. Scheid con-
cludes that the Roman authorities, by publicly recognizing the offence
and its author, carried out the derelictio and ended the social contact with
the guilty party.
Now let us turn to sacred law. According to Scheid, in archaic Rome,
the deditio noxae as described by De Visscher also applied in the case
of a divine offence. The guilty person became impius and was excluded
from public and religious life. The community would hand him over to
the offended god who could take vengeance if he so chose.16 In this way,
the community could free itself from every responsibility.17 The impius,
however, could not expiate himself.
According to Mommsen and Wissowa, the second century bc saw a
softening of the traditional sternness of Roman religion.18 On the basis
of three inscriptions of the time—two containing regulations for sacred
groves near Spoleto and Luceria and one containing a law for the Jupiter
temple in Furfo, all located in Central or South Italy—they assumed
that the penalties for all religious offences were relaxed.19 According to
Scheid, however, the regulations only show that a guilty person could
expiate an unintentional offence by offering a sacrifice; he could also pay
a fine for having violated a public regulation and then a priest should

15 Scheid, “Oral Tradition,” p. . On the causa Mancina, see below, pp. –.
16 Scheid, “Oral Tradition,” p. . In this connection, he distinguishes deditio noxae
from sacratio of criminals, as studied recently by Roberto Fiori, Homo sacer. Dinamica
politico-costituzionale di una sanzione giuridico-religiosa (Naples, ).
17 Scheid, “Oral Tradition,” p. . In n. , he mentions the case of the Crotonians who

complained before the Roman senate about the Roman general Pleminius for violation of
Hera Lacinia’s grove, and he refers to Livy, Ab urbe condita, ... However, this section
forms part of Livy’s story about the Locrians who, in  bc, complained before the
Roman senate about the outrages committed by the same general Pleminius against their
temple of Proserpina. They beg the senators to atone for this crime before undertaking
any action in Italy or Africa in order to prevent public disaster.
18 On these documents, see Scheid, “Oral Tradition,” pp. –.
19 Theodor Mommsen, Römisches Strafrecht (, repr. Graz, ), p. ; Wissowa,

Religion und Kultus, pp. –.

 olga tellegen-couperus

expiate the offence by offering a piaculum. The intentional offences re-

mained inexpiable.20 Around  bc, the jurist and pontifex maximus
Q. Mucius Scaevola confirmed these rules; the only innovation he intro-
duced was to make it possible for the unintentional offender to repair
the damage done and to expiate his deed himself. The sanction for an
intentional offence remained surrender to the injured party, i.e., to the
offended god, in order that the god be permitted to take vengeance on
the offender. According to Scheid, this noxae deditio of sacred law sur-
vived until the end of the first century ad, when the emperor’s intru-
sion into civil life limited the scope of vengeance.21 He concludes that
the divine right to take vengeance, as acknowledged by the deditio of
the intentional impius, should not be regarded as only an archaic institu-
tion.
Whereas De Visscher considered noxae deditio as a remnant of a
period when the settlement of conflicts between more or less indepen-
dent groups was realized by agreements on specific details rather than by
legal solutions founded on a common norm, Scheid extends this inter-
pretation to historical times.22 He suggests that noxae deditio can be con-
sidered simply as a form of political settlement that allowed private or
international vengeance to be taken. The question is, however, whether
noxae deditio in civil law is comparable to deditio in international and
sacred law. I will first consider noxae deditio in civil law and then deal in
more detail with the deditio of Mancinus and international law.

.. Noxae Deditio in Civil Law

When a modern law student consults a textbook on Roman private
law, he is bound to find a description of noxae deditio that is very
different from that of Scheid. In the latter case, it is always connected
with vengeance, in the former it is treated in the context of the liability

20 Cicero, De legibus .. On this distinction, see Scheid, “Oral Tradition,” pp. –.
21 Thus Scheid, “Oral Tradition,” p. . He refers to Yan Thomas, “Se venger au forum.
Solidarité familiale et procès criminel à Rome (Premier siècle av.-deuxième siècle ap.
J.C.),” in La Vengeance, Études d’ethnologie, d’histoire et de philosophie, . Vengeance,
pouvoirs et idéologies dans quelques civilisations de l’ Antiquité, ed. Raymond Verdier
(Paris, ), pp. –, particularly p. . Thomas, p. , turns against the distinction
that is commonly drawn between (archaic) vengeance and (modern) justice: he rather
sees justice as offering the means to take vengeance. It is evident that penalties always have
an element of vengeance, but, in my view, vengeance is basically different from justice in
that it is not necessarily proportional to the original crime.
22 Scheid, “Oral Tradition,” p. .
 sacred law and civil law 

of a pater familias or a dominus for a delict committed by his son or slave.

In his Institutes, Gaius describes it in the following way:
Gai. Inst. .
Ex maleficiis filiorum familias servorumque, veluti si furtum fecerint aut ini-
uriam commiserint, noxales actiones proditae sunt, uti liceret patri domi-
nove aut litis aestimationem suffere aut noxae dedere. Erat enim iniquum
nequitiam eorum ultra ipsorum corpora parentibus dominisve damnosam
esse.
Wrongdoing by sons or slaves, as where they have been guilty of theft or
outrage, has given rise to noxal actions, the nature of which is that the
father or master is allowed either to bear the damages awarded or to sur-
render the offender. For it would be inequitable that their misconduct
should involve their parents or masters in loss beyond that of their per-
sons.23
In classical Roman law, the pater familias or dominus would be held
liable for delicts committed by his son or slave, but he could limit his
responsibility by surrendering the son or slave to the injured party. What
is crucial is that the choice between paying the fine or surrendering the
son or slave was up to the defendant. The praetor would include this
choice in the formula. If the defendant opted for noxae deditio, because
paying the damage would cost him much more than the value of the slave,
the slave (or son) had to be handed over by means of a formal act, the
mancipatio or the in iure cessio.
Next to nothing is known about the rules of noxae deditio in earlier
law.24 The reconstruction by De Visscher discussed above is well-known,
but not generally accepted.25 Moreover, his reconstruction comprises
more than Scheid wants us to believe. In fact, De Visscher distinguishes
four different procedures in Roman law. The earliest procedure was ()
the pre-legal one; it was soon followed by () the legal system of noxality;

23 Translation based on F. de Zulueta, The Institutes of Gaius. Text with critical notes

and translation,  (Oxford, ), p. .

24 All we know is that, according to Gaius, Institutes ., the Law of the Twelve Tables

established a noxal action for theft.

25 See the critical reviews by G.I. Luzzatto, Studia et Documenta Historiae et Iuris

 /  ( / ), – and M. Sargenti, IURA  (), –. See also Max
Kaser, Das römische Privatrecht, , nd ed. (Munich, ), pp. –, and H.F. Jolow-
icz and Barry Nicholas, Historical Introduction to the Study of Roman Law, rd ed. (Cam-
bridge, ), pp. –. Recently, Carlos Felipe Amunátegui Perello, “Lucretia and
the Historical System of Noxality,” Revue Internationale des Droits de l’ Antiquité  ()
–compared the older theory of P.F. Girard, “Les actions noxales,” Nouvelle Revue His-
torique  (), – with that of De Visscher.
 olga tellegen-couperus

in early classical Roman law, the system of noxal actions () was devel-
oped, whereas in postclassical law, the regime of noxality underwent ()
deformations. De Visscher assumed that the older, pre-legal procedure
was not displaced by the younger, legal ones but continued to exist.26
In the second stage (i.e., that of the legal system of noxality), the vic-
tim’s side had a right to demand the surrender of the wrongdoer, but the
group sheltering the latter was allowed to buy them off by offering com-
pensation. At some quite early date, when the legis actio procedure was
still dominant, the system of actiones noxales was introduced: now the
wrongdoer or his group was obliged to pay compensation but they were
allowed to surrender the wrongdoer to the victim.
It is particularly the first procedure as proposed by De Visscher that
has been rejected by other Romanists. Several other attempts at recon-
struction have been made.27 Max Kaser, for instance, developed another
theory based on Noxalhaftung: the idea that noxal liability was created
by the delict itself.28 The problem is—as usual—that there are hardly any
sources for archaic Roman law so that it is impossible to know anything
about the origin of this special form of liability with any amount of
certainty.29
Scheid only refers to the first procedure described by De Visscher, i.e.,
to the pre-legal phase about which nothing is known. If, one day, De
Visscher’s reconstruction will turn out to be correct, Scheid’s comparison
will hold for the early Roman Republic. However, the noxae deditio
of classical Roman law belongs to the third procedure described by
De Visscher. It was used for different offences (e.g., theft, damage to
property), for different persons (not for those who were free and sui
iuris), and for a different purpose (limitation of liability of a pater familias
or dominus for delicts committed by a son or slave). Moreover, Roman
criminal law did not know noxae deditio as a way of punishment either.30
Therefore, the noxae deditio in civil law does not seem to have any
connection with deditio in sacred law.
26 See the review of De Visscher’s book by A.H. Campbell in Journal of Roman Studies

 (), – for a useful summary.

27 For literature, see Max Kaser and Karl Hackl, Das römische Zivilprozessrecht, nd

ed. (Munich, ), p.  n. .

28 Max Kaser, Das altrömische Jus. Studien zur Rechtsvorstellung und Rechtsgeschichte

der Römer (Göttingen, ), pp. –.

29 Cf. Dieter Nörr, Aspekte des römischen Völkerrechts. Die Bronzetafel von Alcántara

(Munich, ), p. .

30 O.F. Robinson, Penal Practice and Penal Policy in Ancient Rome (London, ),

pp. – does not include vengeance as one of the purposes of punishment nor (–
) does she mention noxae dedito as a penalty for particular crimes.
 sacred law and civil law 

.. Noxae Deditio in International Law

For noxal surrender in an international context, Scheid mentions the

famous case of Mancinus. The story behind it has come down to us in
several sources: it has been told by historians like Appian and Plutarch,31
but the deditio aspect has been described most extensively by Cicero.
In the first book of his De oratore, he makes Crassus tell the story of
Mancinus as an example of important cases where actions involving civil
rights turn upon points of law.
Cicero, De oratore .
Etenim sic C. Mancinum, nobilissimum atque optimum virum, ac con-
sularem, cum eum propter invidiam Numantini foederis pater patratus ex
S.C. Numantinis dedidisset, eumque illi non recepissent, posteaque Manci-
nus domum revenisset, neque in senatum introire dubitasset; P. Rutilius, M.
filius tribunus plebis, de senatu iussit educi, quod eum civem negaret esse;
quia memoria sic esset proditum, quem pater suus, aut populus vendidisset,
aut pater patratus dedidisset, ei nullum esse postliminium.
For in truth such was the experience of Gaius Mancinus, a man of the
highest rank and character and a past consul, who under a decree of the
Senate had been delivered up to the Numantines by the pater patratus, for
concluding an unpopular treaty with their nation, and whose surrender
they had refused to accept, whereupon he returned home and unhesitating
commons, ordered him to be removed, affirming that he was no citizen in
view of the traditional rule that a man sold by his father or by the people,
or delivered up by the pater patratus, had no right of restoration.32

From the other sources we know that, in  bc, the consul C. Hostilius
Mancinus had been defeated in several battles by the Numantines, in
Hispania Citerior, and that finally his army had been encircled by them.
A peace treaty was made, but our sources differ as to the person who
represented Rome. According to Appian, it was Mancinus who bound
himself by an oath to this agreement.33 Plutarch, however, states that

31 Appian, The Iberian War  and ; Plutarch, Tiberius Gracchus –. For a complete

overview of the sources, see Giuliano Crifò, “Sul caso di C. Ostilio Mancino,” in Studies
in Roman Law in Memory of A. Arthur Schiller, eds. R. Bagnall and W.V. Harris (Leiden,
), p. , n. . See also the sources and literature regarding the causa Mancina
mentioned by Linda Zollschan in this volume, p. .
32 Translation by E.W. Sutton and H. Rackam for Loeb Classical Library (). For

the extensive literature on this case, see Bauman, Lawyers, p.  note . See also J. Arias
Ramos, “Apostillas juridicas a un episodio Numantino,” Revista de Estudios Politicos 
(), –, not mentioned by Bauman.
33 Appian, The Iberian War .
 olga tellegen-couperus

Mancinus’ quaestor Tiberius Gracchus made the treaty thereby saving

the lives of some , Roman citizens.34 At Rome, the treaty was
considered humiliating, and it was denounced as a disaster and as a
disgrace to the name of Rome. The people decided that the consul
Mancinus should be delivered up to the Numantines, but for Tiberius’
sake all the other officers were spared.35
Mancinus was taken back to Spain by the pater patratus, the head of
the fetial priests.36 He was left before the gate of Numantia, stripped and
in chains. However the Numantines refused to accept him and, at night
fall, he was taken back to the Roman camp.
Mancinus returned to Rome. He wanted to enter the Senate-house
again but was ordered out by the tribune of the people P. Rutilius.
Comparing the surrender of Mancinus by the pater patratus with the case
of the man who was sold by his father or by the people, Rutilius stated
that he had no right of restoration. From other sources, we know that his
case was hotly debated in the Senate: P. Mucius Scaevola took the side of
Rutilius and maintained that Mancinus was no longer a citizen. He was
like an exile; he could only be restored in his rights as a citizen when
the Roman people would “receive” him again.37 M. Iunius Brutus, on the
other hand, argued that Mancinus had never lost his citizenship because
like a gift, a deditio was not complete until it had been accepted.38 Rutilius
and Scaevola won the day, but a year later, the Roman people restored
Mancinus as citizen and senator, and even elected him as praetor.
Following De Visscher (and, indirectly, Rutilius and Scaevola), Scheid
considers the deditio of Mancinus as a deed of sovereignty on the Roman
side that was independent from the reception, the formal acceptance,
by the injured city. Both De Visscher and Scheid assume that Mancinus
had committed perjury and that his deditio noxae was considered an
expiation that would free the Roman people of the responsibility for
this perjury. Scheid suggests that, when one transposes this case into a

34 Plutarch, Tiberius Gracchus .

35 Thus Plutarch, Tiberius Gracchus .
36 According to Appian, The Iberian War , Mancinus was taken to Spain by L. Furius

Philus.
37 P. Mucius’ argument is described by Pomponius, Digesta ... On this text and

the vast amount of literature, see Crifò, “Mancino,” pp. –.

38 We know from Modestinus, Digesta .. that, in this debate, Scaevola was

opposed by Brutus. It is not certain that Brutus used the argument mentioned above,
but he may have because it is the argument that, according to Cicero in Topica , could
be used against Scaevola in the Mancinus case.
 sacred law and civil law 

religious situation, one could say that, by recognizing the status of an

inexpiable impius as that of the author of a crime against the gods, the
Roman people freed itself from every responsibility.39
I do not agree with this analysis. First, I do not think that Mancinus
had committed perjury: it seems it was Tiberius Gracchus and not Manc-
inus who had made the treaty with the Numantines and, moreover, it was
not Mancinus but the Roman people that broke the treaty. Consequently,
the Romans were unfair both against Mancinus and against the Numan-
tines. It seems they used the deditio in order to expiate a perjury they
themselves committed. Therefore, in terms of the noxae deditio of civil
law, there was no damage committed by a subordinate person.
Second, I doubt whether deditio can be considered as a deed of sover-
eignty of the Roman people. Sometimes it will have worked like that,
for instance in  bc, when Lucius Minucius Myrtilus and Lucius Man-
lius were said to have beaten Carthaginian ambassadors and were deliv-
ered by the fetials to the ambassadors and taken to Carthage.40 If they
would have been refused by the Carthaginians, Livy—who mentions this
event—would have told us so. In other cases, however, the dediti were
refused, for instance by the Samnites (in  bc, after the battle at the
Caudine Forks) and by the Numantines.41
In my view, deditio was a religious concept that could be used for polit-
ical ends.42 Its effect was determined by political power. It is striking
indeed that no case of deditio is known to have taken place after  bc.
Only once, in  bc, the subject came up for discussion again, when Cato
wanted Caesar to be handed over to two Gallic tribes for having violated
a truce.43 The decline of deditio can very well be explained by the rise of

39 Scheid, “Oral Tradition,” p. .

40 Thus, Livy, ...
41 In this connection, it is interesting to mention a theory put forward by Jacques-

Henri Michel, in “L’ extradition du général en droit romain,” Latomus  (), –,
particularly . He thinks that, originally, the Roman jurists used to analyse deditio as
a bilateral act, comparable to emancipatio, for which the cooperation of the enemy was
necessary. However, by the end of the second century bc, some jurists tended to regard
deditio as a unilateral act, comparable to devotio. The latter word refers to a general who,
before a battle, dedicates the enemy and himself to the gods of the underworld in order
to secure victory for the Roman people. It is attested three times by Livy: for the years
, , and  bc. Michel suggests that, by the end of the second century bc, the rise
of this new theory shows that deditio underwent a crisis.
42 In the same vein, Claire Lovisi, Contribution à l’ étude de la peine de mort sous la

République romaine (– av. J.-C.) (Paris, ), pp. –.

43 Plutarch, Caesar .–; Cato Minor .. See also Linda Zollschan on this case,

above, p. .
 olga tellegen-couperus

Rome’s political power. The fact that it is political power that determines
who decides whether the deditus will be accepted shows that interna-
tional deditio is basically different from the noxae deditio of civil law.
Third, there is an even more important reason that makes me doubt
whether, in the case of Mancinus, it is right to speak of noxae deditio.44
In the sources, only the words dedere, deditus, and deditio are used.45 In
the other cases of surrender of a general, the word noxa is not used in
combination with deditio either.46
In my view, the Mancinus case does not confirm the existence of a
noxae deditio in international law. It only shows that deditio in interna-
tional law resembles deditio in sacred law. My conclusion, therefore, must
be that there is not one and the same noxae deditio in civil, international,
and religious law. Noxae deditio was part of civil law and implied restric-
tion of liability for damage done by one’s son or slave. It had nothing to
do with deditio in religious and international law.

. The Regula of Q. Mucius Scaevola

The second example of the close connection between civil law and pon-
tifical law mentioned by Scheid is the so-called regula of Q. Mucius
Scaevola. It has come down to us via Varro (– bc) and Macrobius
(fifth century ad). I will quote both texts.
Varro, De lingua Latina .
Praetor qui tum fatus est, si imprudens fecit, piaculari hostia facta piatur, si
prudens dixit, Q. Mucius aiebat eum expiari ut impium non posse.
The praetor who has spoken at such a time, purifies himself by the sacrifice
of an atoning victim, if he did it unknowingly; but if he spoke knowingly,
Q. Mucius said that he could not atone for his offence, being impius.

44 According to Arias Ramos, “Apostillas,” p. , the international deditio offers a

perfect parallel to the noxae datio of civil law. However, he only mentions the surrender
aspect, not the full context.
45 Cicero, Topica  (deditio); pro Caecina  (deditus); De oratore .(dedidisset);

Modestinus, Digesta .. (deduntur, deditus); Pomponius, Digesta .. (dedi, dedi-
tus). According to Michel, “L’ extradition,” p.  n. , it seems that Rudolf von Jhering,
Der Geist des römischen Rechts , th ed. (; repr. Aalen, ), pp. – was the
first to identify noxae deditio and international deditio. However, Jhering does not refer
to noxae deditio there at all.
46 See, for instance, Valerius Maximus, Facta et dicta memorabilia ..: “per fetiales

dedendos”; idem, ..: “per fetiales legatis dedidit.” Livy, Ab urbe condita ,,: “. . .
per fetiales traditi sunt et Carthaginem avecti.”
 sacred law and civil law 

Macrobius, Saturnalia ..–

Adfirmabant autem sacerdotes pollui ferias, si indictis conceptisque opus
aliquod fieret. Praeterea regem sacrorum flaminesque non licebat videre
feriis opus fieri, et ideo per praeconem denuntiabant, ne quid tale ageretur:
et praecepti neglegens multabatur. . Praeter multam vero adfirmabatur
eum, qui talibus diebus (i.e. festis) imprudens aliquid egisset, porco piacu-
lum dare debere. Prudentem expiari non posse Scaevola pontifex adsever-
abat, sed Umbro negat eum pollui, qui opus vel ad deos pertinens sacro-
rumque causa fecisset vel aliquid ad urgentem vitae utilitatem respiciens
actitasset. . Scaevola denique consultus, quod feriis agi liceret, respondit:
quod praetermissum noceret . . ..
[] The priests used to maintain that a rest day was desecrated if, after
it had been duly promulgated and proclaimed, any work was done on
it. Furthermore, the rex sacrorum and the flamines might not see work
in progress on a rest day, and for this reason they would give public
warning by a herald that nothing of the sort should be done. Neglect of
the command was punished by a fine, [] and it was said that he who had
unknowingly done any work on such days, had—in addition to the fine—
to make atonement by the sacrifice of a pig. For work done knowingly no
atonement could be made, according to the pontiff Scaevola, but Umbro
says that to have done work that concerns the gods or is connected with a
religious ceremony, or any work of urgent and vital importance does not
defile the doer. [] Scaevola, in fact, when asked what might be done on
a rest day replied that anything might be done which it would be harmful
to have left undone. . . . 47

Varro’s text is the oldest one. A praetor had done official business on a dies
fastus. By doing so, he had committed sacrilege. When his mistake was
discovered, he wanted to make atonement. He may have turned to the
pontifices for advice. One of them, identified as Q. Mucius, distinguished
between the case of the praetor having intentionally violated religious
rules and the case of his doing so unintentionally: in the latter case, he
could expiate himself by the sacrifice of an atoning victim, in the former
case he could not.
From Macrobius’ text, it can be deduced that the Q. Mucius mentioned
by Varro must have been the pontiff Q. Mucius Scaevola. It is not clear
who the other advisor, Umbro, may have been. Scheid calls both Scaevola
and Umbro jurists but no jurist of the name Umbro is referred to in
the sources. He may just as easily have been another pontiff. The case
as described by Macrobius differs in two ways from the one described

47 Translation based on that by P.V. Davies in Macrobius, The Saturnalia (New York
and London ), pp. –.
 olga tellegen-couperus

by Varro: first, the person committing the sacrilege is not specified as

a praetor, and second, the consequences of the sacrilege are less severe
in that both Umbro and Scaevola toned down Scaevola’s original advice
by allowing exceptions for work connected to religious ceremonies and
other important work. It is not clear whether these differences are based
on a different view in Macrobius’ day or whether they are just accidental.
In both texts, the words prudens and imprudens are used to qualify
the way in which the sacrilege had been committed. They are adjectives
connected with the noun prudentia, all words deriving from pro-videre.
It is clear that providentia is coterminous with divinatio, as Santangelo
remarks elsewhere in this volume. He describes the word prudens as
follows: “The word prudens is very suitable to convey the concept of a
deliberate action: it indicates the conduct of someone who is aware of
the implications of an action, and can foresee its consequences.”48 In
other words, prudens is not an equivalent of dolo (‘to have the intention
to commit sacrilege’) but has a broader meaning. By using this word,
Scaevola (and Umbro) were able to allow exceptions to the rule that
someone who works on a dies fastus commits sacrilege.49
It is striking that the regula of Scaevola is well-known among the stu-
dents of Roman religion whereas students of Roman law will hardly know
of its existence.50 On the other hand, it seems that students of Roman reli-
gion do not realize that the same Q. Mucius Scaevola introduced a similar
distinction into civil law, namely between intentionally and unintention-
ally committing a delict.51 Students of Roman law, and particularly of the
Roman law of obligations, are quite familiar with this distinction.

48 Federico Santangelo, “Law and Divination in the Late Roman Republic,” above,
p. .
49 The formulation of general rules is usually regarded as a first step towards the

development of a science. See on this subject, recently, Claudia Moatti, “Experts, mémoire
et pouvoir à Rome à la fin de la République,” Revue historique  /  (), –,
particularly –, with bibliography.
50 The regula is mentioned by Kurt Latte, Römische Religionsgeschichte, nd ed.

(Munich, ), p.  n. , but not by Kaser, Privatrecht. It is referred to in books on the
rise of Roman legal science, but only in the context of jurists formulating general clauses:
Fritz Schulz, History of Roman Legal Science (; repr. Oxford, ), p. ; Wieacker,
Römische Rechtsgeschichte, p.  n. . Alan Watson, The State, Law and Religion: Pagan
Rome (Athens, Georgia-London, ), pp. – refers to this regula to draw attention
to the fact that the offence, no matter how deliberate, did not disturb the secular legal
validity of the act.
51 In case of murder, this distinction was made already in the Law of the Twelve Tables:

in  , it is stated that, ‘if the weapon sped from his hand rather than was thrown by him’,
then a sacrificial ram was substituted. See Jolowicz-Nicholas, Roman Law, p. .
 sacred law and civil law 

In Roman law, a delict was a source of obligation for which the

praetor would grant an action against the guilty person or his pater
familias / dominus. In the Laws of the Twelve Tables, the delicts furtum
(theft) and iniuria (physical injury) are mentioned; there was only theft
or injury when it had been committed with dolus (intentionally). The
lex Aquilia of  bc introduced the delict of damnum iniuria datum
(damage to property). We do not know how, originally, the word iniuria
in this delict was interpreted. According to Jolowicz and Nicholas, it
meant non iure, “in the sense that once it was proved that the defendant
had caused the damage (in the appropriate way) he was liable unless he
could show a recognised justification, such as self-defence.”52
The earliest jurist known to have interpreted this word was Q. Mucius
Scaevola. His opinion is quoted in a famous text of the jurist Paul on a
tree-lopper who threw branches on the ground and thereby killed a slave.
Scaevola compared a number of situations, each time indicating whether
the tree-lopper was liable under the lex Aquilia:
Paul, Digesta ..
Si putator ex arbore ramum cum deiceret vel machinarius hominempraetere-
untem occidit, ita tenetur, si is in publicum decidat nec ille proclamavit, ut
casus eius evitari possit. Sed Mucius etiam dixit, si in privato idem accidis-
set, posse de culpa agi: culpam autem esse, quod cum a diligente provideri
poterit, non esset provisum aut tum denuntiatum esset, cum periculum evi-
tari non possit. Secundum quam rationem non multum refert, per publicum
an per privatum iter fieret, cum plerumque per private loca volgo iter fiat.
Quod si nullum iter erit, dolum dumtaxat praestare debet, ne immittat in
eum, quem viderit transeuntem: nam culpa ab eo exigenda non est, dum
divinare non potuerit, an per eum locum aliquis transiturus sit.
If a pruner threw down a branch from a tree and killed a slave passing
underneath (the same applies to a man working on a scaffold), he is liable
only if it falls down in a public place and he failed to shout a warning
so that the accident could be avoided. But Mucius says that even if the
accident occurred in a private place, an action can be brought if his
conduct is blameworthy; and he thinks there is fault when what could have
been foreseen by a diligent person, was not foreseen or when a warning
was shouted too late for the danger to be avoided. Following the same
reasoning, it does not matter much whether the deceased was making his
way through a public or a private place, as the general public often make
their way across private places. But if there is no path, the defendant should
be liable only for positive wrongdoing, so he should not throw anything at

52 Jolowicz-Nicholas, Roman Law, p. .

 olga tellegen-couperus

someone he sees passing by; but, on the other hand, he is not to be deemed
blameworthy when he could not have guessed that someone was about to
pass through that place.53
It is striking that Scaevola does not use the word iniuria but, instead, culpa
to qualify the causing of damage. His description of culpa: “there is fault
when what could have been foreseen by a diligent person but was not
foreseen” has become standard, in modern as well as Roman times. In this
case, the tree-lopper was liable for killing the slave when he could have
foreseen that someone would walk underneath the tree he was lopping
and yet did not shout a warning. Only when there was no path and when
there was no reason to expect someone to walk by did he not need to
shout. But, of course, he would be liable if he would intentionally throw
a branch at someone passing by: then he would be acting with dolus.
It is generally assumed that this interpretation of iniuria as culpa was
new, and that, from then on, persons who not intentionally but through
negligence caused damage to someone else’s property were liable to pay
a penalty. In this way, Scaevola considerably increased liability under the
lex Aquilia.
Both in his legal responsum and in his pontifical regula, Q. Mucius
Scaevola distinguished between intentional and unintentional behaviour,
but he did so using different concepts and aiming at different effects.
In pontifical law, he used the word prudens in a sense that is reminis-
cent of the derivation of pro-videre, i.e. being able to foresee the con-
sequences of an action and so behaving in a well-considered way. He
thereby introduced a more lenient criterion for deciding whether sacri-
lege had been committed or not. For civil law, however, Scaevola did the
reverse: by interpreting iniuria in the sense of culpa, he extended liability
under the lex Aquilia. From now on, not only was someone who inten-
tionally caused damage to someone else’s property liable, but so too was
someone who did not intend to do so, but could have foreseen the con-
sequences of his behaviour. Providere, to foresee, is the keyword, but its
meaning vis-à-vis the gods is different from that vis-à-vis human prop-
erty.
Both rules have come down to us, but in very different ways. The
responsum on iniuria has been preserved in the Digest of Justinian, in
a text by the jurist Paul (turn of the third century). It came to form part
of a legal literature that expanded along with the Empire. But it is only

53 Text and translation by Colin Kolbert, The Digest of Justinian, ed. Alan Watson
(Philadelphia, ), p. .
 sacred law and civil law 

thanks to Justinian that we know this along with so many other responsa
from the classical jurists; if it were not for him, we would have known
only a handful of texts through fourth and fifth century collections such
as the Pauli Sententiae, the Fragmenta Vaticana, and the lex Romana
Visigothorum.
We know the regula on impietas thanks to Varro and Macrobius. It
did not form part of a pontifical literature for, as Scheid points out,
both authors were scholars and antiquarians, not priests.54 In his view,
there has never been a pontifical literature. Augustus may have tried
to reconstruct the rules regarding religious institutions that had been
abandoned and neglected for two or three generations, but his attempt
came too late. All sorts of religions had been and were introduced in
Rome during the expansion of the Empire; Roman religion was only
one among many, even though it was a very important one. The rise of
Christianity put an end to all that.
That Justinian as emperor of the Greek speaking Eastern Roman
Empire in the sixth century ordered the Digest—a collection of Latin texts
from the first two centuries ad—to be put together, may in itself be hard
to understand. However, it does make sense that, as head of the Christian
Church, he did not order the pontifical decisions of pagan Rome to be
collected and codified.

. Conclusion

The central question in this contribution is the extent to which pontifical

law was connected with civil law. According to Scheid, they had enough
in common to allow us to reconstruct procedures of pontifical law with
the help of civil law procedures. By way of example, he reconstructed the
punishment of a religious offence. For the first element of this procedure,
the designation of the guilty person, he used the noxae deditio in civil
and international law to explain deditio in sacral law. However, from the
point-of-view of Roman law, this comparison does not hold. The deditio
in sacred and international law cannot be identified with noxae deditio
in civil law, for they were two basically different concepts.
For the second element, the establishment of guilt, Scheid used a regula
of the jurist and pontiff Q. Mucius Scaevola who modified the existing

54 Scheid, “Oral Tradition,” p. .

 olga tellegen-couperus

distinction between intentional and unintentional wrongdoing in sacred

law in order to relax the rules. The same Scaevola introduced the same
distinction in civil law, but in order to harden the rules.
The conclusion must be that there is only a parallel in procedures in
a non-technical sense. In the Roman republic, sacred law and civil law
were closely linked because they were created and interpreted by the same
persons using the same methods. However, they differed as to subject
matter and purpose and therefore they remained two separate sets of law.
To what extent there was interaction between pontifical law and civil law
at the level of substantive law remains to be seen.
 CONTROL OF THE SACRED IN ROMAN LAW*

James Rives

Although the surviving writings of the Roman jurists contain relatively

little that touches on religion, we are fortunate that one of the few
significant exceptions concerns an issue of fundamental importance:
the terms that were used to describe the category of the “sacred.” Non-
technical writers tend to employ the words sacer, sanctus, and religiosus
in fairly loose and overlapping ways, but experts in the Roman legal
tradition assigned them very specific meanings. On the surface, this
would seem to be merely a particular example of the general concern
with terminological precision that characterizes so much of the jurists’
work. But there is more to it than that. Implicit in any claim to define a
term is a claim to some authority over the area of human experience to
which that term pertains, and such was the case, I would argue, in the
present instance. In this paper I will reconsider the juristic treatment of
the words sacer, sanctus, and religiosus, and suggest that underlying the
extant discussions we can uncover traces of an ongoing attempt by the
elite, especially in their capacity as religious and legal experts, to exercise
control over the category of the sacred in Roman society.
For the purposes of my argument, I will employ a distinction between
the sacred as defined by human authority and the sacred as more or
less spontaneously perceived. By the latter, I have in mind the tendency,
apparent in a number of cultures, for people to identify certain places
or objects as sacred simply because of some inherent feature; in many
cultures, for example, mountains and springs are associated with the
divine. In other cases, some person or group whose authority is generally
acknowledged within the community performs an action that renders a

* A much earlier version of this paper was delivered at a conference on sacred space at

Florida State University in ; I owe thanks for James Zetzel for his comments on that
earlier version. I must also thank Olga Tellegen-Couperus for her invitation to present
my research anew at the conference on law and religion at Tilburg University and for her
helpful comments on the final draft of this paper, as well as the conference audience for
their comments and suggestions. All translations are my own, except where otherwise
noted.
 james rives

particular place or object sacred. These two types of the sacred are not
of course exclusive of one another, nor do they by any means constitute
a comprehensive taxonomy. My only claim for this distinction is that
I have found it useful for tracing out a particular dynamic in Roman
culture.
My argument will of necessity be rather speculative, since the evidence
on which we must rely largely reflects the final stages of the process
that I will postulate. My procedure will thus be to begin with the latest
and fullest evidence, the writings of the imperial jurists, and then move
backward in time. To adopt an archaeological metaphor, I will try to
excavate this material, beginning with the most recent layers and then
removing them as carefully as possible to reveal the somewhat different
situation underneath. Absolute dating is possible for the most part only
as far back as the late Republic. For developments prior to that time
I will attempt only relative dates, by noting, for example, cases where
underneath the datable evidence we can discern traces of an earlier
situation. But even though my argument will be speculative, I hope that
it will call attention to particular patterns in the evidence that I think
deserve further consideration.

. Res Divini Iuris

The fullest and most clearly organized extant discussion of the category
“sacred” in Roman law is found in the Institutiones of Gaius, near the
beginning of the book that deals with the law of res. Res, Gaius says, can be
divided into two classes: those subject to ius divinum, and those subject
to ius humanum (.). Although by far the greatest part of the book is
concerned with the latter category, Gaius begins with a brief exposition
of the former:
. Subject to divine right are res sacrae and res religiosae. . Res sacrae
are those consecrated to the gods above; res religiosae are those dedicated
to the gods below. . That alone is considered sacrum which has been
consecrated under the authority of the Roman people, for instance by
lex or senatus consultum passed to that effect. . On the other hand, a
thing is made religiosum by the act of a private person, when he buries
a corpse in his own land, provided that the dead man’s funeral is his affair.
. In the provinces, however, the general opinion is that land does not
become religiosum, because the ownership of provincial land belongs to the
Roman people or to the emperor, and individuals have only possession and
enjoyment of it. Still, even if it be not religiosum, it is considered as such. a.
Again, though a thing consecrated in the provinces otherwise than under
 control of the sacred in roman law 

the authority of the Roman people is not strictly sacrum, it is nevertheless

considered as such. . Moreover res sanctae, such as the walls and gates of
a city, are in a manner subject to divine right.1

Taken as a whole, Gaius’ category of res divini iuris corresponds well

enough to what modern scholars usually mean by “sacred,” in that it
comprises things that belong primarily to the superhuman rather than
the human sphere. Goods in this category were the property of no one,
nullius in bonis (Gaius, Institutiones .). They were not subject to normal
legal transactions affecting property, such as contracts for purchase and
sale, usucapio, or servitutes.2 The same was true of public property, res
publicae, but the jurists of the imperial period were generally careful to
distinguish the two; according to Ulpian, “we do not regard as being
‘public’ those things that are sacer or religiosus or designed for public
use, but those things that are, as it were, the property of communities.”3
Property that was divini iuris was thus something else; in legal terms, it
had been removed from the human sphere altogether.
If we accept that res divini iuris constituted the closest equivalent in
Roman law to the modern category of “sacred,” we must also note that
as such it exhibits some distinctive features. First, Gaius makes it clear
that things became sacrae or religiosae as the result of particular human
actions, and other jurists indicate that they could likewise lose this status
as the result of other human actions. Pomponius, for example, was of the
opinion that “when a place is captured by an enemy, it always ceases to be

1 Gaius, Institutiones .–, ed. and trans. Francis de Zulueta (Oxford, ): ()

Divini iuris sunt veluti res sacrae et religiosae. () Sacrae sunt quae diis superis consecratae
sunt, religiosae quae diis Manibus relictae sunt. () Sed sacrum quidem hoc solum exis-
timatur quod ex auctoritate populi Romani consecratum est, veluti lege de ea re lata aut
senatusconsulto facto. () Religiosum vero nostra voluntate facimus mortuum inferentes in
locum nostrum, si modo eius mortui funus ad nos pertineat. () Sed in provinciali solo
placet plerisque solum religiosum non fieri, quia in eo solo dominium populi Romani est vel
Caesaris, nos autem possessionem tantum vel usumfructum habere videmur. Utique tamen,
etiamsi non sit religiosum, pro religioso habetur. (a) Item quod in provinciis non ex auctori-
tate populi Romani consecratum est, proprie sacrum non est, tamen pro sacro habetur. ()
Sanctae quoque res, velut muri et portae, quodammodo divini iuris sunt. I use de Zulueta’s
translation, slightly adapted.
2 Sale: Ulpian, Digesta ..; usucapio: Gaius, Digesta ..; servitutes: Paulus,

Digesta ....
3 Digesta ...pr.: Inter ‘publica’ habemus non sacra nec religiosa nec quae publicis

usibus destinata sunt, sed si qua sunt civitatium velut bona. In Republican times, the
two categories seem to have been less sharply distinguished: see Michael Crawford, “Aut
sacrom aut poublicom,” in New Perspectives on the Roman Law of Property: Essays for
Barry Nicholas, ed. Peter Birks (Oxford, ), pp. –.
 james rives

religiosus or sacer (just as free men become slaves in the circumstances).”4

These qualities thus existed only in relation to the Roman legal system,
and were not absolute. In other words, res divini iuris were dependent on
human authority acting within a specific cultural tradition rather than
being defined by a spontaneous perception of the sacred.
Second, res divini iuris did not constitute a single homogeneous cate-
gory, but were instead divided into three subcategories designated by the
adjectives sacer, religiosus, and sanctus. Gaius sets out clearly the tech-
nical meanings that the terms sacer and religiosus had in his day, distin-
guishing them in two different ways. One difference has to do with the
divine spheres to which they refer: sacer relates to the di superi, the gods
above, but religiosus to the di Manes, the dead. The other difference con-
cerns the processes used to place items in one or the other category: only
the Roman people have the authority to render property sacer, while in
the right circumstances any individual can make it religiosus. Sacer then
is correlated with the gods and with the public sphere, religiosus with the
dead and with the private sphere. Gaius includes the third term, sanctus,
almost as an afterthought, and seems rather uncertain about its exact sig-
nificance. He indicates neither the divine sphere to which it relates nor
the human actions that imparted this particular quality, but instead sim-
ply provides an illustration of what the category includes, that is, city
walls and gates. Moreover, although he includes res sanctae within the
general category of res divini iuris, it is only with the qualifying adverb
quodammodo, ‘in a manner’.
Gaius was not alone in his uncertainty about res sanctae, for the
extant writings of the other jurists do not suggest that they knew much
more about the exact meaning of sanctus than he did. I would suggest
that the only reason they discussed the term at all was that it formed
part, along with sacer and religiosus, of a tripartite distinction of res
divini iuris that they had inherited from earlier scholars of Roman law
and that they maintained in their own writings.5 The antiquity of this

4 Digesta ..: Cum loca capta sunt ab hostibus, omnia desinunt religiosa vel sacra

esse, sicut homines liberi in servitutem perveniunt. Cf. Paulus, Digesta ...: Nam et
cum quis rem profanam aut Stichum dare promisit, liberatur, si sine facto eius res sacra esse
coeperit aut Stichus ad libertatem pervenerit, nec revocantur in obligationem, si rursus lege
aliqua et res sacra profana esse coeperit et Stichus ex libero servus effectus sit.
5 In addition to the passage of Gaius quoted above, see also the very similar exposition

that Marcian included in his own Institutiones (Digesta ...–). The threefold distinc-
tion is invoked in passing elsewhere, e.g., in Ulpian’s definition of a purus locus as one
qui neque sacer neque sanctus est neque religiosus, sed ab omnibus huiusmodi nominibus
vacare videtur (Digesta ...).
 control of the sacred in roman law 

distinction, however, cannot be determined with any precision. In the

fifth century ad, Macrobius claimed that “in pontifical decrees this is a
particular point of inquiry: what is sacer, what profanus, what sanctus,
and what religiosus.”6 Although the reference here to pontifical decrees
might suggest that this threefold division goes back to the earliest stages
of Roman legal and religious thought, it is important to note that the
extant evidence for it begins only in the late Republic. Even the texts
that Macrobius himself goes on to cite are not actual pontifical decrees,
but rather the writings of the late Republican jurists Ser. Sulpicius Rufus
and C. Trebatius Testa, particularly the latter’s treatise De religionibus.7
Festus refers to a similar discussion by another scholar of probably
late Republican date, Aelius Gallus, who “very elegantly renders the
differences between sacer and sanctus and religiosus: he says that it is
generally agreed that sacer is a building consecrated to a god; sanctus is
a wall around a town; religiosus is a tomb where a dead person has been
entombed or buried.”8 Before deciding on the antiquity of this tripartite
division of the sacred, then, we should dig below the level of the imperial
jurists and examine the situation during the Republic.

. Res Sacrae et Sanctae

Of the three subcategories of the sacred, res sacrae are the easiest to pin
down. As Gaius explained, these were things that had been consecrated to
the gods on the authority of the Roman people. Marcian was, if anything,
even more emphatic on this point: “Res sacrae are those which have been
consecrated by an act of the whole people, not by anyone in his private
capacity. Therefore, if someone makes a thing sacer for himself, acting

6 Macrobius, Saturnalia ..: inter decreta pontificum hoc maxime quaeritur: quid

sacrum, quid profanum, quid sanctum, quid religiosum.

7 Trebatius: Macrobius, Saturnalia .., , and ; Sulpicius: Macrobius, Saturnalia

...
8 Festus, De verborum significatu –L.: Inter sacrum autem et sanctum et reli-

giosum differentias bellisime refert: sacrum aedificium, consecratum deo; sanctum murum,
qui sit circum oppidum; religiosum sepulcrum, ubi mortuus sepultus aut humatus sit, satis
constare ait. This is undoubtedly the C. Aelius Gallus who wrote a treatise in two books de
significatione verborum quae ad ius civile pertinent (Aulus Gellius, Noctes Atticae ..),
cited more than twenty times by Festus. It is generally assumed that Festus took over
these citations from Verrius Flaccus, and that Gallus was accordingly active no later than
the late first century bc; for full evidence and discussion, see F.P. Bremer, Iurispruden-
tiae antehadrianae quae supersunt. Pars prior: Liberae rei publicae iuris consulti (Leipzig,
), pp. –.
 james rives

in a private capacity, the thing is not sacer but profane.”9 That is, res
sacrae were things that had undergone the specific ritual of consecration,
carried out on public authority. In normal circumstances, only a Roman
magistrate acting under the guidance of a pontifex could perform a
consecration. The priest, who was responsible for the necessary technical
knowledge, would recite the proper formulae which the magistrate would
then pronounce; at the conclusion, both men would touch the doorpost
of the building (if it were a shrine being consecrated), which would then
become a res sacra.10 As our sources indicate, the pontifices were the ones
who both defined the term sacer as meaning “consecrated by a particular
ritual” and controlled the knowledge necessary to perform that ritual.
Res sacrae thus represent a very clear example of “the sacred” as defined
and controlled by human authority. The nature of res sanctae, on the other
hand, is rather more obscure. As I suggested above, the imperial jurists
used this category only because it was a traditional subdivision of res
divini iuris. Most of them apparently understood sanctus simply to mean
“protected by a sanction”, the common meaning of the word. Ulpian, for
example, explains that “properly speaking, we use the term sanctus of
objects that are neither sacred nor profane, but that are confirmed by
some sort of sanction. Thus laws are sanctus, for they are supported by
a kind of sanction. Anything that is supported by some kind of sanction
is sanctus, even if it is not consecrated to a god.”11 City walls were sancti
because they could not be altered without imperial permission, and so,
like res sacrae, seemed to belong to the public realm.12
But if res sanctae were simply things protected by a sanction, why
were they classed as res divini iuris? On this point the jurists were at a
loss, since their general understanding of the category clearly did not

9 Digesta ...: Sacrae autem res sunt hae, quae publice consecratae sunt, non private:

si quis ergo privatim sibi sacrum constituerit, sacrum non est, sed profanum. Cf. Ulpian,
Digesta ...pr.-: Sacra loca ea sunt, quae publice sunt dedicata, sive in civitate sint sive
in agro. Sciendum est locum publicum tunc sacrum fieri posse, cum princeps eum dedicavit
vel dedicandi dedit potestatem.
10 Georg Wissowa, “Consecratio,” Pauly’s Realencyclopädie der classischen Altertums-

wissenschaft  (), columns –; see also H. Bardon, “La naissance d’un temple,”
Revue des Études Latines  (), –.
11 Digesta ...: Proprie dicimus sancta, quae neque sacra neque profana sunt, sed

sanctione quadam confirmata: ut leges sanctae sunt, sanctione enim quadam sunt subnixae.
Quod enim sanctione quadam subnixum est, id sanctum est, etsi deo non sit consecratum.
12 Ulpian continues by noting that Muros etiam municipales nec reficere licet sine

principis vel praesidis auctoritate nec aliquid eis coniungere vel superponere (Digesta
...).
 control of the sacred in roman law 

account for it. Consequently, they largely abandoned its use, retaining
it only for the fossilized category of walls and gates. Modern scholarship,
however, has had greater success in explaining the classification of res
sanctae as res divini iuris. Well over a century ago, Valeton convincingly
argued that the adjective sanctus was originally a technical term desig-
nating a res that had been inaugurated, just as the adjective sacer was
a technical term designating a res that had been consecrated. In sup-
port, he cited passages from writers of Augustan date that give sanc-
tus as a synonym for augustus, as well as a reference in Varro to “the
writers of glosses” who say that templa, in the technical sense of loca
inaugurata, are sancta.13 Valeton’s argument provides the best explana-
tion for the fact that res sanctae belonged to the category of res divini
iuris yet were somehow distinguished from res sacrae and res religiosae.
It also explains why city walls were res sanctae: because of their asso-
ciation with the pomerium of an urbs, which was a locus inauguratus.14
By the late Republic, however, the technical meaning of sanctus had
been largely forgotten, even by scholars like Varro and Aelius Gallus.15
The fact that walls were sancti was remembered in isolation, and so a
new explanation for that fact was devised: walls were protected by sanc-
tions.
In the original technical meaning of the term, then, res sanctae con-
stituted a category very similar to that of res sacrae, and were subject to
much the same rules. That is, they were items whose juridical status had
been altered by a formal ceremony conducted by a public official. It was

13 I.M.J. Valeton, “De templis Romanis,” Mnemosyne  (), –, at pp. –

. See Paulus, epitome of Festus, De verborum significatu L.: Augustus, locus sanctus ab
avium gestu, id est, quia ab avibus significatus est, sic dictus; Ovid, Fasti .–: Sancta
vocant augusta patres, augusta vocantur / templa sacerdotum rite dicata manu; Varro, De
lingua Latina .: Quod addit templa ut sint tesca, aiunt sancta esse qui glossas scripserunt.
14 According to Gellius (Noctes Atticae ..), the augurs defined the pomerium

as locus intra agrum effatum per totius urbis circuitum pone muros regionibus certeis
determinatus, qui facit finem urbani auspicii. See further Pierangelo Catalano, “Aspetti
spaziali del sistema giuridico-religioso romano. Mundus, templum, urbs, ager, Latium,
Italia,” Aufstieg und Niedergang der römischen Welt, .. (Berlin-New York, ),
pp. –, at pp. –.
15 Although the augural college remained active in the late Republic and augural lore

was the subject of several treatises, the quantity of augural material must by that time
have been immense, and there does not seem to have been any dictionary of augural
terms; see J. Linderski, “The Augural Law,” Aufstieg und Niedergang der römischen Welt,
.. (Berlin, ), pp. – at p. . Moreover, terms were subject to a gradual
redefinition, as the augurs worked to keep their material relevant to changing political
and social situations. If sanctus were no longer an important augural term, it would not
be surprising that antiquarians were unaware of its technical significance.
 james rives

thus members of the elite, as priests and magistrates, who were directly
responsible for the creation of both res sacrae and res sanctae. But even
more important was the control that the elite, in their capacity as religious
and legal authorities, exercised over the very terminology used for the
sacred.16 When the pontiffs and augurs defined res sacrae and res sanc-
tae as things that had undergone formal and precisely defined rituals,
they were making an implicit claim that those things alone were “truly”
sacred. It was by appropriating the very words sacer and sanctus, by lay-
ing claim to their “true” meaning, that the Roman elite attempted to exert
fundamental control over the category of the sacred within their society.
Before I pursue this argument further, however, I must consider the third
subcategory of the sacred discussed by the jurists, that is, res religiosae.

. Res Religiosae

As far as we can judge from the remains of their writings, the imperial
jurists regarded graves as the only type of res religiosae. That graves should
in some sense be considered sacred is not at all surprising, since many
cultures set apart places associated with death and mark them by more
or less defined taboos. We should note, however, that the jurists were
not dealing with vague scruples attending places associated with death.
On the contrary, they defined a number of specific requirements that a
grave had to meet in order to qualify as a res religiosa. For one thing,
the actual presence of a corpse was necessary; Paulus noted that once
the remains were moved elsewhere, the place ceased to be religiosus.17
Moreover, although the presence of a corpse was necessary, it was not
sufficient. The jurists clearly assume that a locus religiosus is a formal

16 It is important to remember that in the early Republic the procedures of civil law

were known only to the pontiffs, who accordingly functioned as both religious and legal
experts (if indeed that distinction is a meaningful one in the context of archaic Roman
culture); there is good reason to think that the pontiffs’ supervision of civil litigation
lasted as late as  bc: see Olga Tellegen-Couperus, “Pontiff, Praetor, and Iurisdictio in
the Roman Republic,” Legal History Review  (), –, and see further Valgaeren,
this volume. The pontiffs, and the augurs as well, of course always belonged to the
distinguished strata of Roman society.
17 Ulpian, Digesta .. in fine: Cum autem impetratur, ut reliquiae transferantur,

desinit locus religiosus esse. The status of cenotaphs was consequently debated: Marcian,
appealing to the authority of Vergil, said that it was better to consider them loca religiosa
(Digesta ...), but he was apparently unaware that Marcus Aurelius and Lucius Verus
had ruled in a rescript that they were not (Ulpian, Digesta ...).
 control of the sacred in roman law 

grave, not simply any place where a corpse happens to be.18 Nor is it even
any grave, but only one made by a person with a legal right to the land on
which it is made. The various ramifications of Roman property law could
make this requirement quite complex. Ulpian explains that if one person
has ownership but another the usufruct, neither can independently make
the place religiosus; similarly, if there is a servitude on the land no one
can make it religiosus without the permission of the person who holds
the servitude.19
It is clear that the main concern of the jurists in their treatment of res
religiosae was with property rights. Because res religiosae were res divini
iuris, they were not susceptible of human ownership. Accordingly, if
their creation were not strictly regulated, they could undermine property
rights.20 The reason why the jurists treated res religiosae in such detail
was that anyone could make a grave. Only public priests and magistrates
could create res sacrae and res sanctae, but any private citizen could in the
right circumstances transform a plot of land into a locus religiosus. The
elite, then, did not directly control the creation of individual res religiosae
to the same extent as they did that of individual res sacrae and sanctae.
It was thus important that the jurists define very closely who had the
legal authority to make a place religiosus, so that even though private
individuals could create this type of res divini iuris, they could do so
only within defined parameters. But if we dig beneath the imperial jurists,
down to the scholars of the late Republic, we find that in earlier periods
even this element of control was somewhat loose.
Although Aelius Gallus used the grave as an example of a res religiosa,
he defined the term religiosus much more broadly, as “that which it is
not permitted for a person to do, so that if he should do it, he seems to

18 This condition goes back at least to the late Republic: Cicero notes that prius quam

in os iniecta gleba est, locus ille, ubi crematum est corpus, nihil habet religionis; iniecta gleba
tum ille humatus est et sepulcrum vocatur, ac tum denique multa religiosa iura complectitur
(De legibus .); see further Georg Wissowa, Religion und Kultus der Römer, nd ed.
(Munich, ), p.  n. .
19 Ulpian, Digesta ...–; cf. Paulus, Digesta .. on land held as a conditional

legacy and Marcian, Digesta ... on joint ownership, and see in general Fernand de
Visscher, Le droit des tombeaux romains (Milan, ), pp. –.
20 This strict regulation of burials went back to the praetorian edict, which evidently

prevented people from burying their dead on the property of other people; see Ulpian,
Digesta ...: Praetor ait ‘sive homo mortuus ossave hominis mortui in locum purum
alterius aut in id sepulcrum in quo ius non fuerit, illata esse dicentur.’ Qui hoc fecit, in
factum actione tenetur et poena pecuniaria subicietur. Cf. Gaius, Digesta .. and Ulpian,
Digesta ...
 james rives

act contrary to the will of the gods.”21 Festus, presumably following Ver-
rius Flaccus, defined as religiosi those people “who distinguish what is to
be done and what is to be avoided” and dies religiosi as those “on which it
is considered nefas to do anything except what is necessary.”22 These def-
initions all reflect the basic meaning of the word. Broadly speaking, any-
thing characterized by religio is religiosus, just as anything characterized
by forma is formosus. Although that much is simple enough, attempts
at precise definition are complicated by the fact that the exact meaning
of religio is uncertain.23 Yet we can at least observe that it almost always
had connotations of obligations and prohibitions, of things that should
and should not be done.24 Res religiosae, then, were things associated
with some sort of religious scruple that required or prohibited partic-
ular types of actions. It is worth noting that the kinds of legal remedies
that served to protect res sacrae and res sanctae were not equally available
for res religiosae; for example, a praetorian interdict prevented the viola-
tion of a locus sacer, but against the violator of a tomb only an actio in
factum was available.25 Aelius Gallus thought that “that which is sacer is
at the same time sanctus by ancestral law or ordinance, so that it cannot
be violated without punishment. Religiosus is also the same thing, since
it is something that is not permitted for a person to do, which if he does,

21 Festus, De verborum significatu, L.: Quod homini ita facere non liceat, ut si id

faciat, contra deorum voluntatem videatur facere.

22 Festus, ap. Macrobius, Saturnalia ..: religiosi sunt qui facienda et vitanda discer-

nunt; De verborum significatu, L.: quibus, nisi quod necesse est, nefas habetur facere.
23 See, e.g., Maximilian Kobbert, De verborum ‘religio’ atque ‘religiosus’ usu apud

Romanos questiones selectae (Königsberg, ); Godo Lieberg, “Considerazioni sull’eti-

mologia e sul significato di religio,” Rivista di filologia e di istruzione classica  (),
–; Agnes Kirsopp Michels, “The Versatility of Religio,” in The Mediterranean World:
Papers Presented in Honour of Gilbert Bagnani, April ,  (Peterborough, ON, ),
pp. –; Robert Muth, “Vom Wesen römischer religio,” Aufstieg und Niedergang der
römischen Welt, .. (Berlin-New York, ), pp. –; Jörg Rüpke, “Religio and
Religiones in Roman Thinking,” Les Études Classiques  (), –.
24 See, e.g., Kobbert, De usu, p. : “Intellegitur ergo sub voce religio illud tabu, quibus-

dam locis, diebus, actionibus impositum, quo homo ipse religatur atque impeditur;” Kir-
sopp Michels, “Versatility,” pp. –: “There are two elements in its character which are
very important and have some relation to each other. First and most obvious is the ele-
ment of fear, from which result acts of worship in cult, and the prohibition of other acts
. . .. A less obvious but very important element in religio is the sense of obligation.”
25 Ulpian, Digesta ... pr.: Ait praetor: ‘in loco sacro facere inve eum immittere quid

veto’; id., Digesta ...pr.: Cuius dolo malo sepulchrum violatum esse dicetur, in eum
in factum iudicium dabo. Cf. Gaius, Institutiones .: Simplicia [prohibitoria interdicta]
sunt veluti quibus prohibet praetor in loco sacro aut in flumine publico ripave eius aliquid
facere reum.
 control of the sacred in roman law 

he seems to act contrary to the will of the gods.”26 Yet while Gallus evi-
dently regarded these conditions as practically identical, his actual lan-
guage seems instead to imply a significant distinction: that which is sacer
is protected by human law, while that which is religiosus is protected only
by divine law, by the religio from which it took its name. When a person
violated a religio, he might have been acting contrary to the will of a god,
but in the absence of a human law, the Romans were often content to let
the gods take care of their own affairs.27
The question, then, becomes one of the extent to which human author-
ity could control the process whereby a place acquired a religio. If, as the
imperial jurists apparently thought, graves were the only type of res reli-
giosae, it is easy to see that public officials might control the process in
some detail.28 But while late Republican scholars like Aelius Gallus appar-
ently considered the grave as the res religiosa par excellence, they were
also aware that other places could likewise be religiosus. The best attested
of these is the fulguritum, which Festus defines as “that which has been
struck by a lightning bolt; the place was thought immediately to become
religiosus, because it seemed that a god had dedicated it to himself.”29
This definition reinforces the interpretation of a locus religiosus as a place
marked by a religio of any sort. It also suggests not only that people other
than a public official could introduce a religio, but that a religio might
develop for reasons completely outside any human control. Clearly, no
mortal was responsible for the creation of fulgurita: the religio followed
automatically from an uncontrollable natural phenomenon. There is thus
some evidence that the category of locus religiosus was not originally lim-
ited to graves, but could include any place with which some religio was
associated.30 In other words, res religiosae constituted a category of the

26 Festus, De verborum significatu L., quoted below in n. .

27 Valeton, “De templis,” pp. – argues this in detail; see in general John Scheid,
“Le délit religieux dans la Rome tardo-républicaine,” in Le délit religieux dans la cité
antique. Actes de la table ronde, Rome, – April  (Rome, ), pp. –.
28 But note, in this connection, the argument of de Visscher, Droit des tombeaux,

pp. –, that even a grave acquired a religio by the very fact of its being a grave, and that
the juristic rulings concerning the ownership of the land cited above (nn. –) were
merely attempts to accommodate the interests of the living owners: “ce sont les droits des
morts sur la terre qu’ils occupent, et non ceux des vivants, qui font de celle-ci une chose
religieuse.”
29 Paulus, epitome of Festus, De verborum significatu L.: Fulguritum, id quod est

fulmine ictum, qui locus statim fieri putabatur religiosus, quod eum deus sibi dicasse
videtur.
30 See Kobbert, De usu, pp. –; Wissowa, Religion und Kultus, p. ; and especially

the thorough discussion of Fabrizio Fabbrini, “Dai ‘religiosa loca’ alle ‘res religiosae’,”
 james rives

sacred that was at best only partly under the control of human authori-
ties, in contrast with the more strictly controlled categories of res sacrae
and res sanctae.31

. The Limits of Elite Control

As I have already suggested, the whole tripartite system of res divini iuris
was probably in large part the work of late Republican scholars, who
attempted to interpret, organize, and systematize the mass of traditional
material that they had inherited. It would not be surprising if someone
like Aelius Gallus, in writing a handbook on legal terminology, attempted
to sum up the meaning of the three terms sacer, religiosus, and sanctus by
providing an illustrative example for each term. These efforts ultimately
resulted in the orderly tripartite category of res divini iuris that we find in
the writings of the jurists of the imperial age. In the process, however, the
scholars of the late Republic obscured some of the distinctive features of
the individual subcategories as I have outlined them above; Aelius Gallus,
for example, was apparently able to conclude that “the same things can
be both sacra and sancta and religiosa.”32 If we keep in mind the original
differences between the three terms, however, I think that we can discern
underneath the threefold distinction of the late Republic a more basic

Bullettino dell’Istituto di Diritto Romano  (), –. Fabbrini makes a distinction

between loca religiosa, sites associated with ancient and often obscure religiones, and res
religiosae, a juristic category that was from the start limited to graves. But it is not clear
to me that the former ever formed a clearly defined category, or that we should see a real
distinction between loca and res; in discussing res sacrae and res sanctae, the jurists seem
to treat the terms loca and res as effectively interchangeable: see, e.g., Pomponius, Digesta
.. (above, n. ), Ulpian, Digesta ...pr. (above, n. ), Ulpian, Digesta ...pr.
(above, n. ).
31 Compare the distinction made by Dario Sabbatucci, “Sacer,” Studi e materiali di

storia delle religioni  (–), –, at pp. –: “resterà sempre una grande
differenza tra ciò che va a far parte del divino in seguito a deliberazione umana e quello
che è già degli dei indipendentemente dall volontà dell’uomo: nel primo caso si dirà ‘sacer’
e nel secondo ‘religiosus’ . . .. L’attività umana è un presupposto del ‘sacrum,’ mentre solo
‘passivitià’ caratterizza l’ambito del ‘religiosum’.”
32 Festus, De verborum significatu L. Siquidem quod sacrum est, idem lege aut

instituto maiorum sanctum esse puta[n]t, ut violari id sine poena non possit. Idem
religiosum quoque esse, quoniam sit aliquid, quod ibi homini facere non liceat; quod si faciat,
adversus deorum voluntatem videatur facere. Similiter de muro et sepulcro debere observari,
ut eadem et sacra et sancta et religiosa fiant, sed quomodo [quod] supra expositum est, cum
de sacro diximus. I use here the emendation “quoniam”, taken from Lindsay’s apparatus,
in place of the manuscript reading “qui non iam.”
 control of the sacred in roman law 

twofold division between the sacred as defined and controlled by human

authority, a category that comprised both res sacrae and res sanctae, and
the sacred as simply marked off by some religious scruple, res religiosae,
a category that was less susceptible to elite definition and control.
But why, we might ask, if the Roman elite had such interest in the
control of the sacred, did they recognize this less controlled category at
all? To a large extent they probably had no choice, since a place might
become associated with a religio, and so in some sense be regarded as
sacred, for reasons that they simply could not control. I would thus
suggest that the category of res religiosae originated as a way to maintain
the restricted meaning of the terms sacer and sanctus. Although in
popular usage these words might be applied to anything considered
“sacred” or “holy,” it was easy for religious and legal authorities to insist
that only things that had been formally consecrated or inaugurated were
truly sacer or sanctus, as long as there was another term that they could
apply to everything else. In short, I would suggest that the category of res
religiosae was a later addition to an original twofold division of the sacred
into res sacrae and res sanctae, devised to enable the elite to maintain their
control over the latter. If we dig yet further, however, we can uncover
evidence that suggests that their control even of those terms was not
original.
The word sacer clearly belongs to a very early stratum of the Latin
language. In the form sakros, it appears on the so-called Lapis Niger
cippus, one of the oldest of Latin inscriptions (Corpus Inscriptionum
Latinarum 2.), and it has close cognates in Oscan and Umbrian. It
derives from the root *sak-, from which, by another route, the word
sanctus also derives: sanctus is the perfect passive participle of the verb
sancio, which probably had the original sense of ‘to make *sak-.’ Sacer,
then, is that which is characterized by the quality *sak-, while sanctus is
that which has been made *sak-. What precisely that quality was is not
very clear, but for the purposes of my argument here, the original sense
of the root is not important.33 What is more important is that a range of
evidence suggests that in archaic Rome the word sacer (or sakros) was
applied to anything spontaneously perceived as having some inherent
connection with the divine.

33 Huguette Fugier, in the most detailed study of the problem, attempted to prove that

the original sense of the root *sak- was “exister, être réel:” Recherches sur l’ expression du
sacré dans la langue latine (Paris, ), pp. –.
 james rives

On the one hand, a number of places regularly described as sacer

had apparently not been officially consecrated by priests or magistrates
of the Roman people. There was, for example, the Mons Sacer, a hill
outside of Rome associated with the semi-legendary secessions of the
plebs in  and  bc.34 Although Festus preserves a tradition that the
plebs consecrated this hill to Jupiter,35 it is perhaps more likely that this
story was invented after the fact, and that the mountain had always been
sacer: Jupiter was after all a sky god, and it would not be surprising if a
mountain near Rome had been perceived as his domain. Certain groves
were similarly considered sacred. We know of many such groves in or
near Rome that were associated with very ancient and minor deities,
some of whom were no longer understood at all. That such groves could
be spontaneously perceived as sacred is indicated by an archaic prayer
preserved by the elder Cato: “God or goddess whose sacred grove this is,
as it is right to sacrifice an expiatory pig to you for the sake of thinning this
sacred grove and for the sake of these things, whether I or one ordered
by me do it, may it be rightly done.”36 In this case, the fact that the
worshipper did not even know the identity of the deity to whom the
grove was sacred clearly indicates that the grove was simply perceived as
sacred and had not been formally consecrated to a particular god. Then
there was the Sacra Via, the street that ran the length of the Forum, from
the Carinae to the Arx. We can in this case be confident that the street
had never been formally consecrated, but was simply described as sacer
because of its proximity to some of the holiest and most ancient sites of
Rome.37
On the other hand, the word sacer also described a particular legal / re-
ligious status that in archaic Roman tradition resulted from the commis-
sion of certain offenses. For example, Servius cites a law of the Twelve
Tables that “if a patron has defrauded a client, let him be sacer,” and
other sources attribute the same penalty to laws of Romulus, Numa, and

34 Livy, Ab urbe condita .; ..

35 Festus, De verborum significatu –L.
36 Cato, De agri cultura : Si deus si dea es, quoium illud sacrum est, uti tibi ius est

porco piaculo facere illiusce sacri coercendi ergo harumque rerum ergo, sive ego sive quis
iussu meo fecerit, uti id recte factum siet.
37 See Festus, De verborum significatu L. Sacram viam quidam appellatam esse

existimant, quod in ea foedus ictum sit inter Romulum ac Tatium; quidam, quod eo
itinere utantur sacerdotes idulium sacrorum conficiendorum causa. See in general, Filippo
Coarelli, Il Foro Romano, : periodo arcaico (Rome, ), pp. –.
 control of the sacred in roman law 

Servius Tullius.38 Some confirmation of the historicity of this penalty can

be found in the occurrence of the phrase sakros esed in the Lapis Niger
inscription, even though the precise context is uncertain.39 The general
understanding of this penalty is that it removed the malefactor from
the protection of human society and instead consigned him or her to
the gods; as such, the guilty person no longer enjoyed the protections
afforded by membership in the community and could for example be
killed with impunity. As Kaser has argued, this use of sacer suggests that
it designated anything marked by the perception of a particular interest
on the part of the gods, which mortals had to respect.40 Although in
this case the quality of being sacer came about through human actions,
these were not ritual actions intended to impart that quality, but rather
criminal actions that inadvertently gave rise to it. In this respect, here
too we have evidence that the term sacer originally denoted the sacred as
spontaneously perceived.
In light of this evidence, I would propose the following hypothesis.
Whatever the original sense of the root *sak-, the adjective sacer was in
the archaic period applied to places or people simply perceived as sacred
or associated with a deity. As Rome developed socially and politically,
however, this situation became increasingly undesirable to the elite. They
came to regard the random apprehension of the sacred as a potentially
disruptive factor in Roman society, and to feel that they needed to control
it in order to maintain tranquility and order, not to mention their own
position of social dominance. It was for this reason that the priests began
to appropriate the word sacer and its cognate sanctus. We must remember

38 Servius, In Vergilii Aeneidem .. Twelve Tables . = . in Michael Crawford,

ed., Roman Statutes (London, ): patronus si clienti fraudem fecerit, sacer esto; for a
recent discussion of these laws, with full references to the evidence and earlier schol-
arship, see Claire Lovisi, Contribution à l’ étude de la peine de mort sous la République
romaine (– av. J.-C.) (Paris, ), pp. –.
39 This inscription is generally dated to c.  bc. Text in A.E. Gordon, Illustrated

Introduction to Latin Epigraphy (Berkeley-Los Angeles-London, ), no. ; for the

interpretation, see R.E.A. Palmer, The King and the Comitium: A Study of Rome’s Oldest
Public Document, Historia Einzelschriften  (Wiesbaden, ); Coarelli, Foro Romano,
pp. –; and the discussion of Leon ter Beek in this volume.
40 Max Kaser, Das altrömische Ius. Studien zur Rechtsvorstellung und Rechtsgeschichte

der Römer (Göttingen, ), p. : “Nach alldem sind sacrae von Haus aus, ohne Rück-
sicht auf die staatlichen Eigentumsverhältnisse, alle Gegenstände, die wegen des gehobe-
nen Interesses, das die Gottheit an ihnen hat, unter ihrem gesteigerten Schutz stehen, den
auch die Menschen zu respektieren haben. Dieses Gottesinteresse kann ein dem Gegen-
stand günstiges oder ungünstiges sein, je nachdem ob der Gegenstand sacral rein oder
unrein.”
 james rives

that down to the year  bc the major priesthoods were restricted to
patricians, so that for many years the pontiffs and augurs were well placed
to promote the interests of the old elite. It is thus not surprising that
they restricted the application of these words to places or objects that
had undergone specific rituals that they themselves controlled. These
redefinitions of the traditional terminology for the sacred were in effect
claims that the sacred existed only when the elite said it did.
As I have noted, however, the control of the elite could extend only so
far. People continued to perceive certain spaces as sacred for reasons that
had nothing to do with pontifical or augural ritual, and to describe them,
just as do the non-technical Latin writers whose works are extant, as
sacer or sanctus. It was in response to the continued existence of various
types of uncontrolled sacred space that the priests began to employ the
term religiosus. In doing so they acknowledged the fact that people might
experience a place or object as sacred without their authority, but at the
same time continued to insist on the technical specificity of the other,
older terms. The fact that the elite recognized a category of the sacred that
they did not control was thus a concession to popular religiosity as well as
way of maintaining their claim over the meaning of the terms sacer and
sanctus. By the late Republic, legal scholars had systematized the three
terms into an orderly tripartite category of res divini iuris. In this period
we can perhaps also observe the same process of appropriation beginning
again. Res religiosae had in legal and technical discourse become largely
restricted to a few specific cases, notably the grave and the fulguritum;
by the imperial period, they had effectively become restricted to graves
alone, which as I noted above were much easier for the elite to regulate.
By that time, however, it had largely ceased to matter. The expansion
of Roman rule and the extension of Roman citizenship had brought the
entire traditional system of religious control to the point of collapse.
The technical meaning of the words sacer and sanctus and religiosus had
ceased to be important. Already by the mid-second century ad, Gaius
conceded that even though temples and graves in the provinces were
not strictly speaking loca sacra and religiosa, they were for all practical
purposes treated as such. During the imperial period, then, the sacred
increasingly came to be that which people treated as sacred, and the elite’s
pretensions to control over its definition became entirely nominal. It was
only with the dominance of Christianity that a new elite was able to define
and control the sacred in a new and more comprehensive way.
 THE IMMORTALITY OF THE SOUL AND ROMAN LAW*

Jan Willem Tellegen

. Introduction

The Romans considered man to be a mortal being, just as we do today.1

Their long-standing belief was that when someone died the soul left the
body.2 The soul remained on earth. The notion that the soul journeyed
to the underworld is of Greek origin.3
There is a fundamental difference between the modern and the ancient
concept of the immortality of the soul. According to the Romans, after
the soul had left the body its immortality depended on the way in
which the dead body had been handled. A person could take steps
during his lifetime to ensure that his soul would find rest after death.
Most of the sources show that, in their will or codicil, people inserted a
fideicommissum requesting their heirs or legatees to carry out their wishes
regarding their funeral.4

* An earlier version of this paper was published in Studi in onore di Antonino Metro,

, ed. Carmela Russo Ruggeri (Milan, ), pp. –. All translations are my own
unless otherwise indicated.
1 J.MC. Toynbee, Death and Burial in the Roman World (Baltimore and London,

), pp. –; Franz Cumont, Recherches sur le symbolisme funéraire des Romains
(; repr. Paris, ), p. .
2 On the other hand, followers of philosophical schools such as those of Epicurus and

the Stoa believed that upon death the human soul perished. Toynbee, Death and Burial,
p. .
3 Kurt Latte, Römische Religionsgeschichte, nd ed. (Munich, ), p. . There were

many other ideas on this subject. I will deal solely with what Latte calls the original
“Religion der Bauern”, since this interpretation was apparently still relevant in the early
Empire.
4 Edward Champlin, Final Judgements. Duty and Emotion in Roman Wills  bc–

ad  (Berkeley-Los Angeles-Oxford, ), p. . Several sources mention that a fine
was imposed for not carrying out a testator’s wishes; the fine was payable by the heir for
the benefit of the local community, cf. Testamentum civis Romani Gallicae nationis .–;
in V. Arangio Ruiz (ed.), Fontes Iuris Romani Antiqui,  Negotia, nd ed. (Florence, ),
pp. –. In the following, this work will be referred to as FIRA. For an archaeological
commentary, see J.J. Hatt, La tombe Gallo-Romaine (Paris, ), p. . With regard to
fines, see Keith Hopkins, Death and Renewal (Cambridge, ), p. .
 jan willem tellegen

The big problem was that a fideicommissum could not be enforced

because after the testator’s death, there was no longer any interested
party. A number of funerary inscriptions state that the heirs have fulfilled
their obligations.5 In other cases the costs were so high in relation to the
estate that the heirs either ignored the fideicommissum or even refused
to accept the inheritance.6 Particularly when there was such a conflict
of interests the immortality of the soul became a legal problem.7 I will
begin my paper by examining the importance of and the concern for the
immortality of the soul. Then, I will study three cases, in which heirs
had been asked to build a monument—one in which the fideicommissum
was not carried out and two in which it was. Finally, I will discuss three
further cases in which the fideicommissum to build a monument caused
legal problems. As the basis for this paper I will use some literary sources,
various inscriptions, and three responsa from Justinian’s Digest.8 When
these sources are compared it becomes easier to put Roman views on the
immortality of the soul in their historical context.

. The Importance of and Concern for the Immortality of the Soul

The Romans assumed that the soul was the immaterial part of a person
which left the body when that person breathed his last. The soul remained
under the ground, generally in the grave. This is why people sometimes
built a monument in the form of a small house:
AEDES AEDIFICAT DIVES, SAPIENS MONUMENTUM
HOSPITIUM EST ILLUD CORPORIS, HIC DOMUS EST.
ILLIC PAULISPER REMORAMUS, AD HIC HABITAMUS9

5 This is represented by the abbreviation “HETFC”, which means: “heres ex testamento

faciendum curavit.” In this connection, see René Cagnat, Cours d’épigraphie latine, th ed.,
(; repr. Paris, ), p. .
6 See the detailed clauses in the Testamentum civis Romani Gallicae nationis .–

. Such detailed clauses were ridiculed by Petronius, Satyricon .. See below for
information about the relationship between the costs of the monument and the value
of the estate, in connection with Scaevola, Digesta ..pr.
7 See Christoph G. Paulus, Die Idee der postmortalen Persönlichkeit im römischen

Testamentsrecht (Berlin, ), passim.

8 There are more responsa that deal with this problem. Alexander Severus apparently

also tried to solve the problem of the non-enforceability of a testator’s request by declaring
the negligent heir to be indignus. According to Codex .., that attempt also failed and
the emperor gave up.
9 Grave of Turpilia Dionysia and Turpilius Eros in Rome, CIL ,  / B . See

for the Simpelveld sarcophagus, Toynbee, Death and Burial, p. .

 the immortality of the soul and roman law 

The rich man builds himself a house, the wise man a grave.
The one provides shelter for the body, the other is a real house.
There we stay for only a short time, here we live.
Sometimes gardens were even laid out for the deceased.10 Sometimes a
tube was placed in the grave so that the dead person could be supplied
with wine etc.11 It was dark under ground and not very pleasant:
HIC SITUS FINITA LUCE12
When you lie here, the light has gone out.
When someone died the relatives were expected to perform a number of
rituals with meticulous care.13 If they failed to perform the rituals or had
not performed them well the soul went to join the Lemures. Such souls
could not find peace and roamed around at unseasonable hours. If the
relatives had performed the rituals well they hoped that the soul would
go to join the Dii Manes:
NON DIGNE, FELIX, CITTO CARUISTI, MISELLE:
VIVERE DEBUERAS ANNIS FERE C(ENTU) LICEBAT
SI SUNT MANES, SIT TIBI TERRA LEVIS14
It is not right, Felix, to leave life so soon. Unfortunate creature
that you are, you could have lived till you were nearly a hundred years.
If the Manes exist, may this earth be light to you.
The Dii Manes formed an undifferentiated mass of souls. A newly arrived
soul ran the risk of being swallowed up and losing its identity, as is made
clear by Petronius:
Eheu nos miseros, quam totus homuncio nil est!
Sic erimus cuncti, postquam nos auferet Orcus.
Ergo vivamus, dum licet esse bene.15

10 See the Testamentum civis Romani Gallicae nationis .. In his Satyricon .,

Petronius reported that Trimalchio regarded his grave as a house and wanted a garden to
be laid out around it.
11 Toynbee, Death and Burial, p. .
12 This notion stems from an inscription on a grave in Ostia, CIL , .
13 For details, see William Smith, A Dictionary of Greek and Roman Antiquities (Lon-

don, ), pp. –; Latte, Religionsgeschichte, pp. –. In the Codicilli filii famil-
ias cuiusdam in FIRA, p. , the deceased directs these words to his father. A funeral
procession is depicted in Cumont, Recherches, p. . The burials generally took place on
public ground somewhere outside the city.
14 Grave of C. Iulius Felix who lived to the age of  years and  months in Amedara,

Byzacium (Africa), CIL. Suppl.  / B. This was not certain!
15 Petronius, Satyricon .
 jan willem tellegen

Woe to us, wretched creatures that we are; all mankind is nothing!

We shall all merge into a mass when we journey to the realm of the dead.
Enjoy life while you can: your happiness may not last long.

Apparently, the Romans were afraid that the soul might get lost in this
mass of souls. The way to avert this possibility was to keep the memoria,
i.e., the memory, of the deceased alive among his descendants. The idea
was that, if someone was still remembered after his death he had not in
fact died and could even acquire immortality.
A Roman had to take the right steps in good time if he wanted his
memory to be kept alive.16 He had to make it clear to his relatives that they
would have to ensure that he was buried or cremated in an appropriate
manner, that a sepulchral monument was erected for him for a fixed sum
of money, and that the grave was properly tended. An epitaph was to be
inscribed on the monument. Often, the inscription had a heading: DIS
MANIBUS or DIS MANIBUS SACRUM, frequently abbreviated to D.M.
and D.M.S. respectively. These words or abbreviations were followed by
the name of the deceased in the nominative, genitive, or dative case,
indicating that the body of the deceased lay below.17 We know from the
sources that the epitaphs were often ‘embellished’ to give the impression
that the reputation of the person commemorated was better than he had
actually deserved in real life.18

. Three Fideicommissa in Relation to the Burial and the Grave

As was mentioned earlier, requests regarding the burial and the grave
were expressed in the form of a fideicommissum and incorporated in a
will or codicil. These clauses can be identified because they contain words
like rogo, volo, iubeo, or fideicommitto.19 Originally, a fideicommissum was
only morally binding.

16 Famous Romans like Julius Caesar, Emperor Augustus, and also later emperors were

immortal because they were declared divus. Julius Caesar and the Emperor Augustus were
helped by the fact that the months Quinctilis and Sextilis were named after them. Emperor
Nero, who was not declared divus, wanted the month Aprilis to be named after him.
17 According to Latte, Religionsgeschichte, p. , the words “Dis Manibus” in the plural

were placed before the name of the individual, which is grammatically incorrect.
18 See Pliny the Younger, Epistulae . and . in connection with Verginius Rufus;

Epistulae . in connection with Pallas. Petronius Satyricon . ridicules it in the
inscription for Trimalchio’s grave.
19 Max Kaser, Das römische Privatrecht, , nd ed. (Munich, ), p. . Mario

Amelotti, Il testamento romano attraverso la prassi documentale (Florence, ) p. .

 the immortality of the soul and roman law 

In modern Romanist literature (i.e., literature on Roman law), it is

assumed that, from the time of Augustus onwards, all fideicommissa
were legally binding, including those relating to burials and tombs.
Fideicommissa in the latter category, however, were just not enforceable.
The fideicommissum was only important for the testator. His memoria
was at stake and he wanted his soul to become immortal. However, he
could not ensure that the fideicommissum was obeyed because he could
not force his heirs by law to carry out the fideicommissum relating to the
grave. I shall now discuss three sources that deal with this problem. First,
a letter by Pliny the Younger in which he wrote about a case in which the
fideicommissum was not carried out. Then, I shall discuss the inscription
on the monument of Popilius Heracla and an inscription in memory of a
young man, both showing that, in these cases, the heirs had indeed done
what the testator wanted.

.. Pliny the Younger on the Grave of Verginius Rufus

Pliny the Younger was a splendid politician and orator and above all an
outstanding lawyer. He delivered and published numerous oral plead-
ings, but unfortunately they have not come down to us. Pliny’s Letters
have, however, been well preserved. Not only are they real letters, they
also represent a literary genre which Pliny himself invented.
In his letter ., which dates from the year , Pliny writes about
Verginius Rufus and his memoria:
C. PLINIUS ALBINO SUO S.
. Cum uenissem in socrus meae uillam Alsiensem, quae aliquamdiu Rufi
Vergini fuit, ipse mihi locus optimi et maximi uiri desiderium non sine dolore
renouauit. Hunc enim colore secessum atque etiam senectutis suae nidu-
lum uocare consueuerat. . Quocumque me contulissem, illum animus illum
oculi requirebant. Libuit etiam monimentum eius uidere, et uidisse paeni-
tuit. . Est enim adhuc imperfectum, nec difficultas operis in causa, modici
ac potius exigui, sed inertia eius cui cura mandata est. Subit indignatio cum
miseratione, post decimum mortis annum reliquias neglectumque cinerem
sine titulo sine nomine iacere, cuius memoria orbem terrarum gloria peru-
agetur. . At ille mandauerat caueratque, ut diuinum illud et immortale fac-
tum uersibus inscriberetur:
Hic situs est Rufus, pulso qui Vindice quondam
imperium adseruit non sibi sed patriae.

. Tam rara in amicitiis fides, tam parata obliuio mortuorum, ut ipsi nobis
debeamus etiam conditoria extruere omniaque heredum officia praesumere.
 jan willem tellegen

. Nam cui non est uerendum, quod uidemus accidisse Verginio? cuius
iniuriam ut indigniorem, sic etiam notiorem ipsius claritas facit. Vale.20

GAIUS PLINIUS GREETS HIS DEAR ALBINUS.

. When I visited the country estate of my mother-in-law at Alsium, a
house which formerly belonged to Verginius Rufus, the place revived in me
a feeling of longing mingled with grief for that great and splendid man. For
here he was accustomed to live in seclusion and he used to call it his nest for
his old age. . Wherever I turned, my mind and my eyes searched for him.
I also wanted to see his tomb and it grieved me to have seen it. . For it is
still incomplete, not because of the difficulty of the work, which is modest,
even humble, but because of the slackness of the person in charge. I was
full of indignation and pity because ten years after his death his remains
and his ashes lie neglected without inscription or name, while his glorious
memory travels the world. . But he left instructions that his divine and
immortal deed should be recorded in verse:
Here lies Rufus who once defeated Vindex and who claimed
imperial power, not for himself but for his country.

. Loyalty in friendships is so rare, the dead are forgotten so quickly that

we must erect our own memorials and anticipate all the duties of the heirs.
For who would not be afraid of what we see happened to Verginius? His
renown makes the wrong done to him just as undeserved as it is blatantly
obvious. Farewell.
Verginius Rufus was a person of senatorial rank who came from Milan.
He had a very successful public career; he was consul three times. When
he died he was given a state funeral at which the great Tacitus himself
delivered the funeral oration. He was buried on his estate at Alsium. Pliny
visited the estate of Verginius ten years later. In the meantime, it had come
into the hands of his mother-in-law, Pompeia Celerina, who had bought
it from the heirs of Verginius.21
Pliny had been very fond of Verginius. He had once been Pliny’s
guardian and had later supported him in his political career. Pliny was

20 C. Plini Caecili Secundi epistularum libri decem, ed. R.A.B. Mynors (Oxford, ),

pp. –. For the commentary, see A.N. Sherwin-White, The Letters of Pliny (Oxford,
), pp. –.
21 Pliny was on his way to Centumcellae, which was a two-day journey from Rome.

Emperor Trajan was to administer justice at Centumcellae and Pliny had to be present
because he was a member of the consilium principis. As a man of standing, he did not
spend the night in an inn but stayed on the country estate at Alsium, which was a day’s
journey from Rome.
 the immortality of the soul and roman law 

also very interested in the state of the monument of Verginius. Evidently,

he was familiar with Verginius’ will and he knew that a particular inscrip-
tion had to be put on the monument.
The inscription is a distichon, a verse of two lines, a hexameter and
a pentameter. It refers to something that happened in the year  in the
latter part of the reign of the Emperor Nero. Verginius was a legate in Ger-
mania superior and Vindex held exactly the same position in Gallia Lug-
donensis. We do not know what actually happened.22 It seems that Vindex
threatened to capture Vesontio, but that his troops were beaten by the sol-
diers of Verginius. Then they wanted to appoint Verginius as emperor, but
Verginius refused the appointment.23 His courage and patriotism must
have represented the peak of Verginius’ career; he wanted these qualities
to be recorded for posterity in the form of an inscription on his monu-
ment, hoping thereby to win immortality. In another letter written later,
Pliny stated that Verginius was seeking immortality for his soul by means
of the inscription on his monument.24 As mentioned earlier, Verginius
had included in his will a clause instructing his heir to erect a memo-
rial for him, bearing the above inscription. He had possibly formulated
a fideicommissum on that subject. This can be deduced from letter ..
where Pliny uses the words “fides” and “heredum”; tactfully, he does not
mention the name of the heir in question.

22 Vindex wanted to organise an uprising against Nero. He had put forward Galba, the

governor of Spain, as Nero’s successor, gathered an army of local troops, and set out to
conquer Lugdunum. When he failed, he captured Vesontio. Apparently, Verginius Rufus
thought he should intervene and, after hesitating for a considerable time, he set out for
Vesontio with a huge army. He negotiated with Vindex and was almost persuaded to join
forces with Vindex against Nero and in support of Galba. The troops of Verginius went
berserk among the troops of Vindex and routed them.
23 Later the emperorship was offered again to him, and again he refused to accept.
24 Epistulae ... The letter is about the various ways in which a person could ensure

that his soul would be immortal. Pliny discusses a comparison which Ruso had drawn
between Verginius and Frontinus, another of Pliny’s faithful friends. Section  shows that
Verginius wanted an epigraph to help his soul to attain immortality, whereas Frontinus
rejected this idea completely. According to Frontinus, building such a monument was
a complete waste of money because a person automatically became immortal if he had
deserved immortality through his deeds. Frontinus became immortal partly because of
his monograph on Rome’s water supply and his monograph on battle strategy. The irony
of history is that Pliny contributed to the immortality of both Verginius and Frontinus
by writing about them in his letters. According to Champlin, Final Judgments, p. ,
Pliny censured Froninus’ attitude but praised that of Verginius. In my view, however, Pliny
wrote that both pursued the same goal, namely fame among later generations, but that
they walked different roads in attaining that goal.
 jan willem tellegen

In his letter ., Pliny expresses his indignation at the fact that ten
years had elapsed and there was still no inscription. The reasons for this
are not clear. In view of the modest nature of the monument, the possible
cost of such an inscription was unlikely to have caused the negligence of
the heir. It has been suggested that Verginius’ heir did not go ahead with
the inscription because the information it gave was untrue.25 I do not
think this is a likely explanation. Verginius probably wanted his name
to live on and to ensure that future generations would remember him as
the hero of Vesontio and the saviour of the fatherland.26 According to
Pliny, there was still no inscription because the heir had been negligent.
Apparently Pliny could not do anything about this either, even though
he was an excellent lawyer. However, he did do something indirectly
in that he quoted the inscription twice in his letters. Even though the
fideicommissum was never carried out, Verginius is still remembered
almost  years later.

.. The Codicil of Popilius Heracla

The sepulchral monument to Popilius Heracla forms part of the alley of
graves below the main altar in St. Peter’s in Rome. A marble plaque over
the entrance to the grave bears an inscription which is probably still in
its original position.
D M
EX CODICILLIS TRIPLICIBVS POPILI
HERACLAE
C POPILIVS HERACLA HEREDIB SALVT
VOS HEREDES MEI ROGO IVBEOQVE
 FIDEIQVE VESTRAE COMMITTO VTI
MONVMENTVM MIHI FACIATIS IN VATIC
AD CIRCVM IVXTA MONVMENTVM VLPI
NARCISSI EX HIS VI N IN QVAM REM
NVMERABIT NOVIA TROPHIME HS III N
 ET COHERES EIVS III N IBIQUE RELIQVIAS
MEAS ET FADIAE MAXIMAE VXORIS MEAE
SIQUID EI HVMANITUS ACCIDERIT PONI VOLO

25 On the basis of letter .., it has been assumed that inscriptions were a way of

writing history, so one had to be honest and objective. Verginius had not defeated Vindex
himself; his troops had been responsible.
26 Was the inscription ever put on the grave of Verginius? Cassius Dio, Roman History

.. suggests that it was, but I doubt it. Possibly, Cassius Dio made this assumption on
the basis of Pliny’s letters . and ..
 the immortality of the soul and roman law 

CVIVS MONVMENTI IVS LEGO LIBERTIS LIBERTA

BUSQ MEIS ET QVOS TESTAMENTO MANVMISERO
 SIVE QVEM IN STATV LIBERTATIS RELIQUI ET HOC AMPLIUS
NOVIA TROHPIME LIBERTIS LIBERTATISQ EIVS
POSTERISQUE SVPRA SCRIPTORUM ET ITUM ADITUM AM
BITVM SACRIFIQUE FACIENDI CAVSA AD ID MONV
TVM VTI EI LICEAT27
To the gods of the underworld.
From the three-page codicil of Popilius Heracla.
Gaius Popilius Heracla greets his heirs.
I ask you, I charge you,
 and trust in your common decency that
you will erect a monument for me in the Vatican
at the circus beside the monument to Ulpius
Narcissus for those , sesterces of which
Novia Trophime will pay , and
 her co-heir , and I want my remains and those of my wife,
Fadia Maxima, to be placed there if something human should happen to
her.
I bequeath the right to this monument to my freedmen and freedwomen
and to those whom I will manumit by my will or to those whom liberty
 is granted and further to the freedmen and freedwomen of
Novia Trophime and to the descendants of the above-named persons
so that he or she is permitted to approach, enter and visit this monument
in order to bring an offering.
The text is a copy of a codicil. It was not unusual for a copy of the whole
or part of a last will and testament to be inscribed on a monument.
Sometimes even the complete text of a will was inscribed on someone’s
monument—this is probably what happened with the will of Dasumius.28
The inscription is important for two reasons. First of all, it is impor-
tant for archaeology because the circus of Nero is mentioned in line .
Secondly, the content is important for our knowledge of Roman law.
The inscription is written in rather crude Latin, which makes transla-
tion rather difficult. The text contains three clauses relating to inheri-
tance:
– Lines – contain a fideicommissum concerning the construction
of a monument. This is clear from the words “rogo iubeoque fidei
vestrae committo” in lines  and .

27 Edition by Fernand de Visscher, “A propos d’une inscription nouvellement décou-

verte sous la basilique Saint Pierre,” L’ Antiquité classique  (), –.

28 Testamentum P. Dasumii Tusci in FIRA, pp. –.
 jan willem tellegen

– Lines – contain a request relating to Popilius’ own burial and

that of his wife Fadia Maxima. The word “volo” in line  indicates
that lines – also refer to a fideicommissum.
– Lines – contain a request relating to the ius monumenti. In my
view, the use of the term “lego” in line  indicates that a legacy is
involved, probably a legatum per vindicationem.
In Romanist literature, attention has been given mainly to the third
clause in connection with the type of grave that was required. Hardly
any attention has been given to the other two clauses. I intend to discuss
each of the three clauses in the order in which they occur in the codi-
cil.
The fideicommissum of Popilius Heracla relating to the construction
of the grave was directed to two heirs, Novia Trophime and an anony-
mous heir. The probable reason why the second heir is not mentioned
by name in the inscription is that the inscription reproduces only a sec-
tion of the original codicil. The name of the second heir would certainly
have been mentioned earlier in the codicil or in the will itself.29 The fide-
icommissum was probably carried out in accordance with the testator’s
wishes.
The second clause relating to the burial of Popilius Heracla and his
wife Fadia Maxima was also a fideicommissum. The burial was a way of
ensuring that their souls did not go to join the Lemures. Popilius Heracla
probably hoped that he and his wife would go to join the Manes. This
fideicommissum too was probably carried out in accordance with the
wishes of the testator.
The third clause grants the ius monumenti to a number of freedmen
and freedwomen and their descendants in order to enable them to
make specific offerings at the monument. In Romanist literature, the ius
monumenti is always interpreted as the right to be buried in a particular
place; the question was whether it was a family grave where family
members were to be buried or whether it was an heirs’ grave whereby

29 As far as I know, the only Romanist who has written about this clause is Philip

Meylan in his article “Le codicille de Popilius Heracla. À propos d’une inscription
nouvellement découverte dans les Grottes Vaticanes,” Museum Helveticum  (),
–. In his view, the second heir must have been a postumus and the remaining heir
must have been under the obligation to the other to carry out the fideicommissum, on the
basis of imperial law. Both interpretations seem to me to be unjustified because they do
not take the nature of the inscription into account.
 the immortality of the soul and roman law 

heirs acquired the right to bury or be buried in the same grave.30 There
seems to be little point in pursuing this discussion in this instance since
the first clause states that the monument is only for Popilius Heracla and
his wife. Furthermore, the ius monumenti is granted to a fairly large group
of people who could not possibly all be buried there. The legacy probably
relates to the servitus of via, i.e. the right of passage between the site of
the monument and the public road. This legacy was valid because it had
already come into force before Popilius Heracla had been buried there
and thus before the piece of ground had become a res religiosa. Because
of this legacy, the freedmen and freedwomen and their descendants were
free to come and visit the grave. Of course, it is not certain whether the
testator’s wish that his manumitted slaves would visit his grave and bring
offerings was ever carried out.
From the foregoing it appears that Popilius Heracla had tried to ensure,
by means of two fideicommissa, that the grave and the inscription would
perpetuate the memory of himself and his wife. As far as we can judge,
his heirs faithfully carried out the fideicommissa and he achieved his aim.

.. Codicil of an Unknown Young Man

Next is the codicil in which a young man asks his father to erect a
monument for him. It forms part of an inscription which was found at
the town of Cefalu (Sicily), and inserted in the wall of the local cathedral.
EXEMPLUM CODICILLORUM
HAVE MIHI, DOMINE PATER: UALE MIHI, DOMINE
 PATER! CUM AD TE HAEC DICTAREM, INFELICISSIMUM TE
AESTIMAUI, UT ERAS CUM ME HOC MITTERES. PETO UT
MONUMENTUM MIHI FACIAS DIGNUM IUUENTUTI MEAE.
A TE PETO EUTYCHIANUM ALUMNUM MEUM MANUMITTAS
 UINDICATQUE LIBERES, ITEM APRILEM SERUUM MEUM,
QUI SOLUS EX MINISTERIO MEO SUPERAUIT.
SCRIPSI XV KAL. APRIL(ES) SIRMI, L. CALPURNIO
PISONE P. SALUIO IULIANO COS.31

30 The discussion (between de Visscher, Amelotti, and Meylan) was about the nature

of the grave of Popilius Heracla and the meaning of the words “ius monumenti” in line .
Regarding this discussion, see in particular O.E. Tellegen-Couperus and J.W. Tellegen, “Le
caractère hybride du fidéicommis romain,” in Mélanges Fritz Sturm , eds. J.F. Gerkens,
Hansjörg Peter, Peter Trenk-Hinterberger, and Roger Vigneron (Liège, ), pp. –
.
31 FIRA, p. .
 jan willem tellegen

Transcript of a codicil
I greet you, master and father: farewell, master and father.
 When I dictated these words to you, I considered you to be the
most unfortunate person, just as you were, when you sent me here.
I request you to construct for me a monument that reflects the dignity of
my youth.
I ask you to manumit my student Eutychianus and free him from his
bonds and
 also my slave Apriles, who is the only survivor of my band of slaves.
I wrote this at Sirmium on th April during the consulship
of L. Calpurnius Piso and P. Salvius Iulianus.
From this inscription, it can be deduced that the codicil was drawn up
in the year ad , and that at that time the young man in question
was in Sirmium. Since this town was situated on the North Eastern
border of the Roman Empire, by the river Danube, it is possible that the
young man served in the army and had been fatally wounded. In this
codicil, he asks his father to erect a monument for him, a monument
that will reflect the dignity of his youth. The inscription shows that the
son understands the grief of his father who lost his son. It is highly
likely that this inscription with the copy of the codicil was put on the
monument.
The inscription is important for three reasons:
– Evidently the son wanted to be remembered as a worthy young man
and he requested a monument that would reflect this factor. This is
an example of the notion of memoria. Surprisingly, the son’s name
is not mentioned.
– The son made his request to his father via a fideicommissum. This
is indicated by the use of the word “peto” in line  (or , in the
translation).
– The father granted his son’s request. Many inscriptions on grave-
stones relating to parents and children have come down to us.32
Some of these gravestones reproduce the words of the parents, in
other cases the child addresses his / her parents. The inscription rep-
resented above is apparently a variation on the second kind.

32 See Hieronymus Geist and Gerhard Pfohl, Römische Grabinschriften (Munich,

), pp. –.
 the immortality of the soul and roman law 

. The Responsa of Scaevola, Pomponius, and Alfenus

The above examples show that some heirs did what was required of
them and erected a monument, but others ignored the fideicommissum.
Sometimes, the fideicommissa caused legal problems. It is also clear that,
in their wills, some testators tried to compel their heirs to carry out
the fideicommissum. This could cause all kinds of problems which then
could be put before a jurist. I shall now discuss three texts of Scaevola,
Pomponius, and Alfenus respectively that give us some idea of how the
jurists solved such problems.

.. Scaevola, Digesta . pr.

The Scaevola in question is Q. Cervidius Scaevola who lived in the second
half of the second century ad. The text runs as follows:
Scaevola libro trigesimo tertio digestorum. Titius heredes instituit Seiam
uxorem ex parte duodecima, Maeviam ex reliquis partibus et de monumento
quod sibi exstrui volebat, ita cavit: “corpus meum uxori meae volo tradi
sepeliendum in fundo illo et monumentum exstrui usque ad quadringentos
aureos”. quaero, cum in duodecima parte non amplius quam centum quin-
quaginta aurei ex bonis mariti ad uxorem perveniant, an hac scriptura ab ea
sola monumentum sibi testator exstrui voluerit. respondi ab utraque herede
monumentum pro hereditariis portionibus instruendum.

Scaevola, Digest . Titius appointed Seia his wife heiress for a twelfth share
and Maevia for the rest. He provided for the monument he wished to be
raised to himself as follows: “I wish my body to be handed over to my
wife for burial in such an estate, and a monument to be erected for up
to four hundred aurei.” Question: Not more than one hundred and fifty
aurei having come to the wife as her twelfth share from her husband’s
property, does this clause show that the testator wished the monument
to himself to be erected by her alone? He replied that the monument
was to be built by both heiresses in proportion to their shares of the
inheritance.33
The responsum comes from D. De legatis et fidecommissis. Originally,
it formed part of book  of the Digest of Scaevola which dealt with
the lex Iulia et Papia Poppaea.34 In this law, or rather laws since it

33 Text and translation by Tom Braun in The Digest of Justinian, ed. Alan Watson

(Philadelphia, ), p. .

34 Otto Lenel, Palingenesia Iuris Civilis,  (, repr. Graz, ), p. .
 jan willem tellegen

was a combination of the lex Iulia de maritandis ordinibus of  bc

and the lex Papia Poppaea of ad , Augustus aimed at encouraging
marriage and procreation of Roman citizens, using the law of succession
for sanctions.
A testator called Titius instituted his wife Seia as his heir for one-
twelfth and Maevia for eleven-twelfths. He enacted a fideicommissum—
the term “quaero” indicates a fideicommissum—in which he asks that his
body be passed to his wife for burial in a certain piece of ground and that
a monument be erected for him for a maximum sum of  aurei. This
gave rise to a question, namely whether Titius wanted Seia to pay all the
costs by herself?
The fideicommissum concerned a monument that was very expensive
compared to the value of the estate. Since Seia’s share of one-twelfth
amounted to  aurei, the whole estate must have had a value of  × 
=  aurei. What is the reason for the small share awarded to Seia? The
answer is to be found in the original context of the responsum, the lex Iulia
et Papia. These laws limited the inheritance rights of married couples
without children. Probably, the couple in question had no children. This
would mean that Seia could inherit from her husband not more than a
one-tenth share, namely  aurei. Seia’s meagre share was only  aurei
and thus well below what she was allowed to receive and far below the 
aurei to be spent on the monument.
In this case, it was not clear whether the testator’s request was directed
only to his wife Seia or to both heirs. Since Seia’s share was far below the
costs of the monument, the jurist Scaevola advised that both heiresses
would contribute to the building of the monument. Their respective
obligations—which the testator did not specify—were fixed by the jurist
in proportion to their shares of the inheritance. The costs of the monu-
ment as stated by the testator was intended as a maximum. Seia therefore
was not required to pay more than one-twelfth of  =  aurei. In this
way Scaevola made it possible for the fideicommissum to be carried out
in a reasonable way.

.. Pomponius, Digesta ..pr.

Pomponius libro octavo ad Quintum Mucium. . . .. In testamentis quaedam
scribuntur, quae ad auctoritatem dumtaxat scribentis referuntur nec obli-
gationem pariunt. haec autem talia sunt. si te heredem solum instituam et
scribam, uti monumentum mihi certa pecunia facias: nullam enim obli-
gationem ea scriptura recipit, sed ad auctoritatem meam conservandam
poteris, si velis, facere. aliter atque si coherede tibi dato idem scripsero:
 the immortality of the soul and roman law 

nam sive te solum damnavero, uti monumentum facias, coheres tuus agere
tecum poterit familiae herciscundae, uti facias, quoniam interest illius: quin
etiam si utrique iussi estis hoc facere, invicem actionem habebitis.

Pomponius, Quintus Mucius, book . . . . Some things are written in wills

which merely refer to the authority of him who wrote it and do not create
an obligation. The following are of this kind: if I institute you as my sole
heir and I write that you should erect a monument for me for a fixed sum;
for that clause involves no obligation, but you can put it into effect, if you
wish to uphold my prestige. It will be otherwise if I write the same clause
after giving you a co-heir; for if I charge you alone to erect a monument,
your co-heir will be able to bring an actio familiae erciscundae against you,
to make you to do so, since it is in his interest. Moreover, if you are both
ordered to do it, you will both be entitled to the action against the other.35
The text of Pomponius has come down to us in title D. . De annuis
legatis et fideicommissis.36 It originally came from Book  De legatis of
Pomponius’ commentary on the famous work De iure civili libri XVIII
by Quintus Mucius Scaevola.37
Pomponius begins this part of the text by quoting a statement made by
Quintus Mucius about testamentary clauses which do not create obliga-
tions. In this connection, Pomponius gives the example of a fideicommis-
sum concerning the erection of a sepulchral monument. He mentions
three possibilities. If only one heir is named as the person required to
carry out the fideicommissum, then it is not enforceable. If on the other
hand two heirs are named and the fideicommissum is directed to one of
them only, it is enforceable to the extent that the co-heir can bring an
actio familiae erciscundae against the other heir. According to Pompo-
nius, if the fideicommissum is directed to both heirs, each is entitled to
bring that action against the other.
The first case is self-explanatory. My interpretation of the second case
is as follows. The actio familiae erciscundae (afe) was an action directed at
the dividing up of an estate. If one of the two heirs failed to carry out the
fideicommissum that had been entrusted to him the other heir could ask
for partitioning of the estate by means of the afe. Although the words ex
fide bona had not been added to the formula for this action, the judge had
a great deal of freedom with regard to the dividing of the estate between

35 Text and translation by Robin Seager, in The Digest of Justinian, p. .

36 All the fifty books of Justinian’s Digest, except –, are subdivided into chapters.
These chapters have titles and are therefore commonly called “title”.
37 Lenel, Palingenesia, , p. .
 jan willem tellegen

the two heirs. For instance, he could reduce the share of the defaulting
heir by the sum required to erect the whole monument or part of it. In the
third case, this could happen mutually. As a result, the fideicommissum
became enforceable to the extent that one heir could compel the other
to carry out the fideicommissum. However, the question is whether the
testator could compel an heir or exert force on the other heir. The next
text, a responsum by AlfenusVarus, is about this question.

.. Alfenus, Digesta ..

Alfenus libro quinto digestorum. Pater familias testamento duos heredes
instituerat: eos monumentum facere iusserat in diebus certis: deinde ita
scripserat: “qui eorum non ita fecerit, omnes exheredes sunto”: alter heres
hereditatem praetermiserat, reliquus heres consulebat, cum ipse monumen-
tum exstruxisset, numquid minus heres esset ob eam rem, quod coheres
eius hereditatem non adisset. respondit neminem ex alterius facto hereditati
neque alligari neque exheredari posse, sed uti quisque condicionem imples-
set, quamvis nemo adisset praeterea, tamen eum heredem esse.

Alfenus, Digest, . A pater familias had instituted two heirs by will and
ordered them to build a monument within a certain time; then he wrote:
“Whichever of them has not done so, let all be disinherited”. One heir had
disregarded the inheritance, the other heir, when he himself had built the
monument, sought an opinion as to whether he might not be heir, in view
of the fact, that the co-heir had not accepted the inheritance. He replied
that no one can be bound to an inheritance or disinherited by the act of
another person, and that, when one of them had fulfilled the condition, he
was nevertheless heir although no one else had accepted the inheritance.38
The text is included in Digest title . De heredibus instituendis, on the
institution of heirs. It originally came from the fifth book of Alfenus’
Digesta, about wills.39
A testator had named two heirs in his will and had instructed them to
erect a monument for him within a specific time. To this instruction, he
had added the following clause: if one of the heirs failed to carry out the
task, all heirs would be disinherited. One of the heirs chose not to accept
the inheritance. The other heir, who had accepted the inheritance and
had built the monument, wanted to know if he had been disinherited.
According to Alfenus, this was not the case because, in his view, no
one entitled to an inheritance could be bound to the inheritance or be
disinherited as a result of someone else’s actions.

38 Text and translation by W.M. Gordon in The Digest of Justinian, p. .

39 Lenel, Palingenesia, , p. .
 the immortality of the soul and roman law 

This fragment has led to a detailed and lengthy discussion in the

Romanist literature. First of all, there is the interpretation produced
by Pernice in the late th century and recently defended by Roth.40
According to Pernice, the text is incomprehensible because Alfenus’ reply
is not about the erection of a monument, it is about disinheritance;
moreover it goes completely against the wishes of the testator.
Accordig to Pernice, the problem put to Alfenus must originally have
been about the cretio which must have been removed from the text by the
Justinian compilers. The institution of the heirs must have been worded
as follows:
Titius et Maevius heredes sunto cerniteque in diebus cc proximis, in quibus
monumentum a vobis fieri iubeo; (si) qui vestrum non ita creverit, omnes
exheredes estote.
Titius and Maevius must be heirs and you must accept within the next 
days, during which I order that a monument is made by you. If one of you
will not in this way have accepted, all must be disinherited.
So in his view, two conditions had been attached to the institution of the
heirs: the heirs had to accept the inheritance by cretio within a certain
time, and within this time they had to erect a monument.
Pernice assumes that Alfenus must have replied in the following terms:
the receipt and the loss of an inheritance which has already been accepted
cannot be made to depend on the action of a third person, namely on
a cretio: a suspensive condition as well as a resolutive condition would
have been null and void. For Pernice, the fact that, in lines –, Alfenus
links the word “hereditati” not only to “allegari” but also to its opposite
“exheredari” is an indication that a cretio is involved here. Pernice comes
to the surprising conclusion that, in this case, the task of building a
monument was irrelevant.
It is also surprising that, even in our time, Roth following Pernice pre-
sumes the text to have been interpolated when he does not understand it.
It seems that the remark made by Wolff in a review of Cosentini’s book
on the condicio impossibilis is still pertinent. In connection with another
fragment, Cosentini had suspected some words to have been interpo-
lated. Wolff stated that the reconstruction proposed by Cosentini was in
itself logical and correct but not convincing. He wrote:

40 Alfred Pernice, Marcus Antistius Labeo: das römische Privatrecht im ersten Jahrhun-

dert der Kaiserzeit,  (Halle, ), p.  and passim. Hans-Jörg Roth, Alfeni Digesta: eine
spätrepublikanische Juristenschrift (Berlin, ), p.  with literature. Pernice assumes
that Alfenus does not express his own opinion but that of his teacher Servius. In my view,
this is not necessarily so, and therefore I will refer to Alfenus only.
 jan willem tellegen

Gegen die Logik dieser Deduktion ist nichts einzuwenden. Trotzdem

erscheint sie mir als überscharf. Sie geht an der Tatsache vorbei, dass
die römische Juristen, und zumal die älteren, ihre Entscheidungen aus
der unmittelbaren Anschauung der Lebensverhältnisse gewannen und
sich auf eine die letzten logischen Konsequenzen aufsuchende Analyse
der Tatbestände nur dan einliessen, wenn ohne sie eine befriedigende
Entscheidung nicht zu finden war.41
Wolff ’s consideration applies equally well to the responsum of Alfenus.
The jurist examines the actual case and formulates an adequate solution.
There is no reason whatsoever to assume that the text must have been
interpolated. On the contrary! It would be very strange if the text were
about a cretio, which is not mentioned, and not about the task of building
a monument, which is mentioned. Why then would such an irrelevant
phrase have been left in the text?
Secondly, there is Watson’s interpretation which was defended recently
by Paulus.42 Watson et al. do not believe that D. .. was interpolated;
they assume that the text really is about the building of a monument.
Nevertheless, Watson finds the jurist’s reply unexpected and even inexact.
It is unexpected because Alfenus goes directly against the wishes of the
testator in a way for which no parallel in other texts can be found. It is
inexact because Alfenus’ main argument, that no one can be disinherited
by another’s behaviour, is expressed as a very general proposition of
law, whereas in fact there never has been such a rule. Watson writes:
‘Alfenus or Servius is caught giving a decision which is contrary to legal
principle and which cannot be defended, juridically, as an exception to
the rule.’43
I agree with Watson that the interpretation suggested by Pernice really
is far-fetched; still, the interpretation produced by Watson does not
seem to be correct either. First, his qualification of the responsum as
‘unexpected’ is gratuitous because only a small part of all responsa ever
given have come down to us.

41 Hans Julius Wolff, review of C. Cosentini, Condicio impossibilis, IURA  (),

: ‘No objection can be raised concerning the logic of this deduction. Nevertheless, it
seems to me to be too sharp. It ignores the fact that the Roman jurists, particularly the
older ones, made their decisions on the basis of the direct perception of relationships in
life and only became involved in the factual analysis of the last logical consequences if a
satisfactory solution could not be found otherwise’ (my translation).
42 Alan Watson, “D... (): an Unprincipled Decision on a Will,” The Irish Jurist

 New Series (), –; Paulus, Die postmortalen Persönlichkeit, p. .

43 Watson, “D... (),” p. .
 the immortality of the soul and roman law 

Moreover, I do not think that part of Alfenus’ answer can be qualified

as a general rule and, as such, inexact. There is no reason to single out the
words that “no one can be disinherited by the act of another person” as the
main part of the decision. This phrase should be read together with the
words that “no one can be bound to an inheritance by the act of another
person”. In this case, Alfenus deals with a particular problem for which he
does not formulate a decision or a rule but just gives his opinion. The fact
that he worded it in fairly general terms does not mean that it represents
a legal ruling. What we have here is normal persuasive spoken language.
Finally, Watson concludes that Alfenus decided contrary to legal prin-
ciple. It seems that, in this connection, he refers to the voluntas testatoris.
However, this concept was not used as a legal principle but as a means to
interpret unclear wills.44 If it had been a legal principle, the intention of
the testator would have bound the heir to accept the inheritance. In fact,
it was impossible for a testator to bind an heir to accept the inheritance
or to reject it. An heir was free to decide whether to accept an inheritance
or not, and that freedom was more important than the intention of the
testator.45 This is exactly the point made by Alfenus.
It seems that Watson failed to grasp the essence of the text because
he ignored the background problem of the memoria. Not only did the
testator want a monument to be built for him, he also wanted to force
the heirs to perform the task together. He probably also wanted this
cooperation to be mentioned in the inscription on the monument, for
that would bestow even more honour and glory on himself.46 Watson
did not realize that the testator, wanting to secure his memoria, exceeded
his legitimate competence by introducing this disinheritance clause. In
stead, Watson isolated Alfenus’ words that no one can be disinherited by
the act of the other person, qualified the phrase as a general rule, and
concluded that the responsum was not in accordance with Roman law.
Therefore, Watson mystified rather than clarified Alfenus’ words.

44 According to Hans Josef Wieling, Die Testamentsauslegung im römischen Recht

(Munich, ), p. , the interpretation according to verba-voluntas was not the decisive
criterion to settle the matter, as has long been presumed by Romanists. Many other
criteria were applied as well. In our text, Alfenus decided as well against the words as
against the intention. It is not clear whether Scaevola in his responsum of Digesta .pr.
mentioned above, followed the verba and / or the voluntas testatoris.
45 An exception to this rule was the slave who was manumitted in the will and

instituted as heir: he was heres necessarius.

46 CIL IX ; CIL XII . Geist-Pfohl, Römische Grabinschrifte, pp. – for

inscriptions concerning parents and children.

 jan willem tellegen

In my view, the responsum should be explained as follows. A testator

had instituted two persons as his heirs; it is not clear whether they were
sui or extranei heredes.47 He instructed them via a fideicommissum to
erect a monument for him when he died and to do this within a certain
time, cooperating with each other. This request for cooperation between
the heirs was apparent from the additional clause that if one of the two
heirs did not cooperate in the set task they would both be disinherited.
This disinheritance clause was formulated as a resolutive condition to
the fideicommissum.48 The first heir was unwilling to cooperate and did
forego the inheritance. The second heir accepted the inheritance and had
the monument built at his own expense. For some reason or other, he
then turned to Alfenus and asked whether he was disinherited now that
the first heir had not accepted the inheritance and he, the second heir,
built the monument alone, without any help from the other heir.
The responsum of Alfenus is worded in fairly specific terms. There are
no particular problems about the grammar. Alfenus does not link the
two terms exheredari and hereditati. He prefers to use the latter term
because only one inheritance is involved. The responsum of Alfenus is
an appropriate answer to the question posed. He deals with the position
of both heirs because in the will two heirs were instituted and there was
a danger that they would be played off against each other. Alfenus makes
it clear that the first heir does not have to accept the inheritance simply
because the second heir has accepted it, neither can the second heir lose
his right as heir because the first heir has chosen to forego the inheritance.
Because the second heir had fulfilled the condition and had built the
monument, he was and remained heir, and there was no reason to believe
that he would lose that position.
The text shows that there was no possible legal construction by which
the testator could force the heirs to carry out his bidding; he was depen-
dent on the willingness of the heirs. The fact that the testator got his mon-
ument was due not to the legal construction of the fideicommissum but
to the dutifulness of one of the two heirs he had instituted.

47 Watson, “D... (),” p.  assumes they were extranei. According to H.

Heumann and E. Seckel, Handlexikon der Quellen des römischen Rechts, th ed. (,
repr Graz, ) p. , adire hereditatem refers to heredes voluntarii, i.e., heredes sui as
well as heredes extranei.
48 Roth, Alfeni Digesta, p.  and Paulus, Die postmortalen Persönlichkeit, p.  both

assume that the clause was attached to the institution of the heir, but according to Roth
it was a resolutive condition whereas Paulus qualifies it as a suspensive one. Neither of
these interpretations is in accordance with the text.
 the immortality of the soul and roman law 

The problem we are dealing with here concerns the relation between
religion and law. In religion, when somebody dies his soul continues to
exist. His problem is how to make his soul immortal, when he dies and
the heir does not obey the fideicommissum to build a monument for him.
In law, when somebody dies his soul cannot sue anybody in a trial. So he
cannot force the heir to obey the fideicommissum.
A slave cannot sue anybody either, because he has no status libertatis.
When a slave is freed by manumissio testamento directa he is free when
the heir accepts the inheritance. When a slave is freed by fideicommissum
the heir can be forced to obey the fideicommissum on the basis of a
number of Senatus consulta.49 According to Roman law, a slave and a
soul both lack a caput, i.e., personality. The difference between a soul
and a slave is that a slave is a human being after all. A soul, although
he does exist, is legally a non-entity. The Roman Senate could nor would
help him, because that could threaten the integrity of the family capital.50
And that would create chaos in Roman Society.

. Conclusion

In the foregoing, I have attempted to show how important the immor-

tality of the soul was for the Romans. They tried to keep the memoria
of themselves and / or others alive among future generations by having a
monument built. It was customary to incorporate in a will a fideicommis-
sum requesting heirs or legatees to carry out the testator’s final wishes on
such a matter. Often the heirs did what they had been requested to do,
but not always. Attempts on the part of testators to make such fideicom-
missa enforceable were supported by Roman jurists to a certain extent.
The jurists did not go so far as to curtail the freedom of heirs to accept or
forego an inheritance.
In order to investigate the question of the immortality of the soul and
Roman law, one has to use a combination of sources of various kinds.
The starting-point must be to trust that the Roman texts are authentic.
The next step is to compare the legal sources with literary texts and
inscriptions. Only then is it possible to understand the paradoxical nature
and the importance of the legal problems involved. This approach will

49 Kaser, Privatrecht , p. .

50 In Roman law, several measures protected the heir. The SC. Pegasianum, for
instance, guaranteed the heir a fourth part of the estate. Kaser, Privatrecht , p. .
 jan willem tellegen

make it possible to put Roman views on the immortality of the soul

in their historical context and to understand the common sense of the
responsa prudentium.
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 INDEX OF SOURCES

Ammianus Marcellinus Ad familiares

Res gestae ..  n. 
..  n.  ..  n. 
..  n.  and 
Appian ..  n. 
The Iberian War Ad Quintum fratrem
  n.  and  .  n. 
  n. ;  n. ; ..  n. 
 n.  ..  n. 
The Civil War Brutus
.  n.  .  n. 
De divinatione
Augustine .  n. 
De civitate dei ..  n. 
.  n.  ..  n. 
..  n. 
Cassius Dio .  n. 
Roman History ..  n. 
..  n.  .  n. 
..  n.  ..  n. 
.  n.  ..  n.
..–  n.  .. 
..  n.  ..  n. 
..  n. 
Cato .  n. 
De agricultura .–.  n. 
.  n.  .–.  n. ;  n. 
.  n. ;  n. 
Censorinus .–  n. 
De die natali De domo sua
.  n.    n. 
De haruspicum responsis
Cicero .  n. 
Ad Atticum   n. 
..–  n.  De inventione
..  n.  .  n. 
..  n. ;  n. ;  De lege agraria
n. ;  n.  .–  n.
..  n. ; – .  n.  and ; 
n. 
 index of sources

Cicero (cont.) Pro domo sua

.  n. ;  n.  .  n. 
.–  n. ;  n.  Pro Murena
.  n.    n. ;  n. ;
.  n. ;  n ;  n.   n. 
.  n. ;  n.    n. 
.–  n. ;  n.  Pro Plancio
De legibus .  n. 
.  n.  Pro Quinctio
.  n.   
.  n.  .– ;  n. 
.– ;  n.  Pro Rabirio
.  n.  .  n. 
.–  n.  Pro Roscio Amerino
.  n.    n. 
.  n.  Pro Sestio
.  n.    n. 
De natura deorum Pro Tullio
.  n. ;  n.    n. 
.  n.  Topica
.–  n.    n. ;  n. 
.  n.  Tusculanae Disputationes
De officiis .  n. 
.  n. 
De oratore Codex Hammurabi
.  n.  –  n. 
.  n. 
. ;  n.  Codex Iustiniani
.  n.  .  n. 
De republica ..  n. 
.  n. 
.  n.  Codex Theodosianus
.  n.  ..  n. 
.  n. 
In Vatinium Collatio legum romanarum et
  n.  mosaicarum
In Verrem ..  n. 
..–  n. 
Orator Deuteronomy
.  .– 
Philippicae
.  n. Digesta Iustiniani
Pro Caecina ...  n. 
  n.  ...  n. 
Pro Cluentio ...  n. ;  n. ; 
  n.  n. 
  n.  ...–  n. 
 index of sources 

...  n.  ..  n. 

...  n.  .–  n. 
...  n.  .  n. 
...pr  n.  ..  n. 
...pr.-  n. .  n. 
...  n.  ..  n. 
...  n. 
..  Ennius
...  n.  Annales (ed. Skutsch)
...  n.  –  n. 
...–. –  n. 
 n. 
...  n.  Exodus
..–  n.  .– 
..  n. 
..  n. ;  n.  Festus
..  n.  De verborum significatu (ed.
..  n.  Lindsay)
...  n.    n. 
..    n.
..  n.    n. 
. pr.    n. 
.. pr. –   n. 
...  n.    n. 
..  n.    n. 
.. pr.  n. ;  n.    n. 
...  n.    n. 
...   n. 
 n.    n. ;  n. ; 
.. pr. n. 
 n.    n. 
..  n.  –  n. 
..  n. ;  n.    n. 
..  n. ;  n.  –  n. 
.. pr.   n. 
 n.    n.  and 
–  n. 
Diodorus Siculus   n. ;  n. 
Bibliotheca historica .–  n. 
..–  n.    n. 
–  n. ;  n. 
Dionysius Halicarnassus –  n. 
Roman Antiquities   n. 
.–  n.    n. 
..  n.    n. 
.–  n.    n. 
..  n.  –  n. 
 index of sources

Festus (cont.) Leges regiae

.– Numa   n. 
 n.  and
.– Leges XII Tabularum
 n.  .–  and n. 
  n.  .  n. 
  n.  .  n. 
Sardi uenales .  n. 
L  n.  .  n. 

Gaius Licinianus
Institutiones Annales (ed. Criniti)
.  n.  , –  n. 
.  n. 
.  Livy
.– – Ab urbe condita
.  ..  n. 
.–  n.  ..–.  n. 
.  n.  ..  n. 
.  n.  .  n. 
.  ..–  n. 
.  n.  ..  n. 
.  n.  ..  n. ;  n. 
..  n. 
Gellius ..–  n. 
Noctes Atticae ..  n. 
..  n.  ..–  n. ;  n. ;
..  n. ;  n.  ..  n. 
..  n.  ..–  n. 
..  ..  n. 
..  n.  ..–  n. 
..  n.  .  n. 
..  n.  .  n. 
..  n. 
Hyginus .–  n. 
Fabulae ..  n. 
.  n.  ..  n. 
.. 
Isidorus ..  n. 
Origines ..  n. 
..  n.  ..  n. ;  n. 
..  n.  ..  n. ;  n. 
..  n. 
Juvenal ..  n. 
Saturae ..  n. 
.– ..–  n. ;  n. 
 n.  ..  n. 
 index of sources 

..  n.  ..–

..–   n. 
..  ..  n. 
..  n.  ..  n. 
..  n.  ..  n. 
..  n.  ..–  n. 
  n.  ..– 
.  n.  ..–
..  n.   n. ;  n. 
..–  n.  ..  n. 
.  n. ;  n.  ..  n. 
..  n.  ..  n. ;  n. 
..– ..,   n. 
 n.  ..  n. 
..  n.  ..  n. 
..  n.  ..  n. 
..  n. 
..–  n.  Nepos
..  n.  Conon
..  n.  . 
..–  n. 
..  n. ;  n. ; Obsequens
 n.  Prodigiorum liber
..  n.   ()  n. 
..  n. 
..  n.  Ovid
..  n.  Fasti
..–  n.  .–  n. 
..  n.  .  n. 
.–
Lydus  n. 
On Months .–
.  n.   n. 
.–
Macrobius  n. 
Saturnalia .–
..  n.   n. 
..  n. 
..  n. ;  n.  Ovid
..  n. ;  n. ;  Metamorphoses
n.  .  n. 
..–  n. 
..  n.  Paul
..– Sententiae
 n.  ..  n. 
..–
 n. 
 index of sources

Paulus Numa
ex Festo   n. 
L  n.  Roman questions
 L  n.    n. 
.– L  n.    n. 
 L  n.    n. ;  n. 
  n. 
Petronius Romulus
Satyricon .–.  n. 
.  n. ;  n. ; .–  n. 
 n.    n. 
  n.  Tiberius Gracchus
.  n. 
Plautus .  n. 
Captiva –  n. 
  n.  .  n. ;  n. 
Miles gloriosus
  Polybius
Histories
Pliny the Elder ..–  n. 
Naturalis historia ..  and n. 
.  n. 
..  n.  Propertius
.  n.  Elegiae
.–  n.  .  n. 

Pliny the Younger Quintilian

Epistulae De institutione oratoria
.  n ; –; ..  n. 
 n. 
.  Servius
.  n.  In Vergilii Aeneidem
.  n. ;  n.  .  n. 
..  n.  .  n. 
..  n.  .  n. 
.  n. 
Plutarch In Vergilii Georgica
Caesar .  n. 
.–  n. ;  n.  .  n. 
Cambyses
  n.  Suetonius
Cato Minor Augustus
.  n. ;  n.  .  n. 
Marcellus .  n. 
–  n.  Divus Julius
Moralia .  n. 
d  n. 
 index of sources 

Tacitus .  n. 
Annales .  n. ; 
..–  n.  .  n. ;  n. 
.  .  n. ;  n. 
..  n.  .  n.  and 
.  n.  .  n. 
..  n. .  n. 
.–  n. 
Terentius .  n. 
Hecyra De vita populi romani
  .  n. 
in Nonius
Tertullian   n. 
De spectaculis   n. 
.  n. ;  n.  in Festus
  n. 
Valerius Maximus
Facta et dicta memorabilia Velleius Paterculus
..  n.  Historiae romanae
..  n. ;  n.  ..  n. 
..–  n. 
..  n. ;  n.  Vergilius
..  n. ;  n.  Aeneis
..  n.  .  n.  and 
.–
Varro  n. 
De lingua Latina .  n. 
.  n.  Georgica
.  n. ;  n.  . 
.  n.  and 
..  n.  Verrius Flaccus
.  n.  Inscriptiones Italiae
.  n.  ..  n. 
.  n.  ..  n. 
.  n. 