LINEBURG


<< . .

 23
( 30)



. . >>

¬‚ows into tender and unformed minds as the various sounds of song;
and it is hard to express the magnitude of their in¬‚uence in one direc-
tion or the other.µ· Music can stir up the lazy and soothe people who
µ
Publius Clodius Pulcher dressed as a woman and violated the rite of the Good Goddess,
open only to women, in . C. testi¬ed against him (disproving his alibi) at his trial, but
Clodius was acquitted through bribery; his resulting enmity towards C. was at least one
reason for C.™s exile in µ, and C.™s loathing for Clodius is apparent in much of his writing
in the µ°s.
The decree of the senate in question (of ± ) survives on a bronze tablet from southern
µ

Italy; there is a long account of the episode in Livy .“±.
µ
Neither Diagondas (often emended to Pagondas) nor the episode is otherwise known.
µµ
In a lost play.
µ
The bracketed words supply the probable sense of a corrupt passage.
Cf. Plato, Republic .°±“; Laws ·.°°.
µ·




±
Book 

are stirred up; it can let minds run or rein them in. It was in the inter-
est of many Greek states to preserve the ancient style of music, and
their morals slid to decadence along with the alteration of songs: either
(as some people think) they were depraved by the sweetness and corrup-
tion of music, or when their toughness collapsed because of other vices,
then there was room in their altered ears and minds for this change as
well.µ [] For that reason the wisest man of Greece, and by far the
most learned, was particularly afraid of this failing. He denied that the
rules of music can be altered without alteration of public laws.µ How-
ever, I think that we don™t need to fear this so greatly, but I don™t think
that we should make light of it either. Certainly the people who used to
be ¬lled with a stern pleasure by the music of Livius and Naevius now
toss their heads and roll their eyes in time with the twists and turns of
the music.° In the old days, the Greeks used to punish such things
harshly, having recognized in advance how gradually the destruction
might slide into the minds of citizens and suddenly overturn whole
states through evil studies and evil ideas: at least, there is a story that
stern Sparta ordered the strings beyond the number of seven to be cut
o¬ the lyre of Timotheus.
[°] What follows in the law is that the best of ancestral rites should
be cultivated. When the Athenians consulted Pythian Apollo to ask
what religions they should particularly preserve, the oracle came back:
those which are part of ancestral custom. When they came back and
said that ancestral custom had changed frequently, and asked which of
the various customs they should follow, he answered: the best. And in
fact it is true that whatever is best should be considered oldest and
closest to the god.
I removed alms-gathering except for that peculiar to the Great
Mother during a few days. It ¬lls minds with superstition, and it drains
houses.
The penalty for sacrilege applies not only to someone who steals a
sacred object but also to someone who steals an object deposited in a
sacred place. [±] That custom is observed in many temples: Alexander
is said to have deposited money in a shrine at Soli in Cilicia, and Clis-
thenes the great Athenian is said to have entrusted his daughters™ dow-
ries to Juno at Samos when he was worried about his own security.
There is no need to say more here about perjury and incest.
Cf. Plato, Laws .·°°a“·°±b. Plato, Republic .c.
µ µ

°
The text of this sentence is corrupt, but the general sense is clear.


±µ
On the Laws

For the prohibition against impious people daring to placate the gods
with gifts, people should listen to Plato, who forbids any doubts about
the god™s attitude, since no good man wishes to receive gifts from a bad
one.±
Concerning care in performing vows, enough has been said in the
law . . . and in vows the promise by which we are bound to the god.
There can be no reasonable cause to reject the establishment of a pen-
alty for violating religious obligations. Why should I use here the
examples of criminals that abound in tragedy? I will rather mention
those that are familiar to us all. And even though what I recall here may
seem to be beyond human good fortune, still, since I am talking to you,
I will keep nothing back, and I will hope that what I say will seem to ex-
press gratitude to the immortal gods rather than severity towards hu-
mans. [] When, at the time of my exile, the laws of religion were pol-
luted by the crime of abandoned citizens, our family Lares were
attacked, and in their place was built a temple to License, and the man
who had guarded our sanctuaries was driven from them. Contemplate
brie¬‚y “ there is no point in naming anyone “ what happened as a re-
sult: I, who did not permit the goddess who guards the city to be viol-
ated by impious people, even though all my own property was stolen
and destroyed, took her from my home to that of her father “ I was de-
clared by the verdicts of the senate, of Italy, and of all nations to have
saved my country. What more glorious could happen to a man? The
people by whose crime religion was laid low and attacked “ some of
them are scattered and destroyed, and those who were the leaders in
these crimes and beyond the rest impious towards all religion not only
received every punishment and disgrace in their lives, but were de-
prived of burial and the rites of a funeral.µ
[] ± µ© ®  µ : I know that, brother, and I give the gods the thanks
they are owed. But things often seem to work out rather di¬erently.
  µ: We do not judge rightly, Quintus, what divine punishment
Cf. Plato, Laws .·±c“·±·a.
± 
There is a gap in the text.

While C. was in exile, his house was burned down and Clodius had a temple to Liberty
built on the site; the restoration of C.™s house after his return was the occasion of
considerable violence and several orations.
When he left Rome in µ, C. took his own statue of Minerva and placed it in the temple of


Jupiter on the Capitoline Hill.
C. is gloating over the murder of Clodius in µ in a brawl on the Appian Way with the
µ

equally violent supporters of C.™s ally Milo. Many of the participants on both sides
(including Milo) were condemned. Clodius™ body was burned in the Forum by his
supporters, incidentally incinerating the senate house as well.


±
Book 

is, but we are drawn into error by the opinions of the mob, and we do
not see the truth. We weigh human misery in terms of death or physi-
cal pain or mental anguish or the verdict of the court: and I admit that
these things are part of human life and happen to many good men. The
punishment of crime is dire, and even aside from its consequences is
itself immense: we have seen men, who would never have been our ene-
mies if they had not hated their fatherland, on ¬re with greed or fear, or
through a guilty conscience for their actions in turn fearing and scorn-
ing religion: it was human justice, not divine, that they overturned and
corrupted. [] I will limit myself and pursue the subject no further,
particularly since I have received more vengeance than I sought. I will
say this only brie¬‚y, that there is a twofold punishment from the gods,
which comprises both the ravaging of their minds when alive and, when
they are dead, a reputation that causes their destruction to be greeted
by the approval and pleasure of the living.
[µ] In forbidding the consecration of land, I agree entirely with Pla-
to, who uses the following words (if I can translate him correctly):
˜˜Like the household hearth, the earth is sacred to all the gods. And
therefore let no one consecrate it again. Moreover, gold and silver in ci-
ties, either held privately or in temples, breeds envy, while ivory,
drawn from a corpse, is an insu¬ciently pure gift for a god. Further-
more, bronze and iron are tools of war, not of religion. However, any-
one who wishes may dedicate in the common shrines a wooden object
made from a single piece of wood, or something made of stone, or some-
thing woven, provided it has not required more work than a woman can
perform in a month. The color most seemly for a god is white, in all
things but particularly in woven items; only military insignia should be
dyed. The most divine gifts are birds and paintings completed by a
single painter in a single day; and other o¬erings should be similar to
this.™™ That is Plato™s view; my own is not quite so restrictive in other re-
spects, and I yield to human vice or to modern wealth; but I fear that ag-
riculture will be less vigorous if an element of superstition is added to
the use and ploughing of the earth.
 © µ : I accept that. What is left concerns the perpetuity of rites
and the laws concerning the spirits of the dead.
  µ : What an amazing memory you have, Atticus! I had forgot-
ten those things completely.

Laws ±.µµe“µb.





±·
On the Laws

[]   ©  µ : So I believe. But I have remembered “ and await “
these things particularly because they concern both ponti¬cal and civil
law.
  µ: True enough, and there have been many legal opinions
and books written on these subjects by experts. For my own part, in
this entire conversation, to whatever area of law our discussion leads
me, I will deal to the best of my ability with our civil law on the sub-
ject; but I will do so in such a way that the source of each part of the
law may be known, so that it should not be di¬cult for someone using
his intelligence to grasp the legal basis of whatever new case or issue
arises when you know the source from which it derives. [·] But the
jurisconsults, either for the sake of obfuscation, to make themselves
seem to know a greater amount of di¬cult material, or (what is in fact
more likely) from their incompetence as teachers “ for skill is needed
not only to know something but to teach it as well “ often make in¬nite
divisions of what is in fact a single issue. The issue that you raise is one
of those: what a huge thing the Scaevolae have made of it, both ponti¬-
ces and both great experts in the law!· ˜˜I have often heard from my fa-
ther,™™ says Publius™ son, ˜˜that there is no good pontifex who is not
knowledgeable in the civil law.™™ The whole thing? To what end? Why
should a pontifex know the laws concerning walls or water or anything
at all that has nothing to do with religion? And that, in fact, is a tiny
area “ on rituals, vows, festivals and graves, and other things of that
kind. Why do we make so much of these things? All of them are of very
little account except for rituals, which is a matter of greater signi¬cance
but can be dealt with by one statement, namely that they be preserved
forever and be handed down continuously in families, and, as I laid
down in my law, that rituals should be maintained in perpetuity? []
By the authority of the ponti¬ces, these laws have been established: that
(so that the memory of rituals should not disappear at the death of the
head of the family) those to whom money comes at a person™s death
should also have responsibility for the rituals. From this one principle,
which is adequate for understanding the rule, have sprung up countless
regulations which ¬ll the books of the jurisconsults. There is a question
about who is obligated by the rituals. The case of the heirs is most just:
there is no one who is closer to taking the place of the person who has
Publius Mucius Scaevola (consul in ±) and his son Quintus Mucius Scaevola the
·

pontifex (consul in µ; to be distinguished from Quintus Mucius Scaevola the augur, his
cousin), under whom C. studied as a boy.


±
Book 

passed away. Then the person who by the death or the will of the de-
cedent receives as much as all the heirs together: that is reasonable
too, and consistent with the original principle. In the third place, if
there should be no heir, comes the person who acquires ownership by
possession of the greater part of the property of the decedent. Fourth,
if no one has received any property, is the creditor of the decedent who
receives the greatest portion of the estate. [] Finally comes the person
who owed money to the decedent and has not repaid it to anyone; he
should be held to have received that debt as money.
This is what we learned from Scaevola, although it was not written
in this way by the ancients. Their teaching was in the following lan-
guage: that there are three ways of being obligated by rituals: by inherit-
ance, or by taking the greater portion of the property, or if the greater
part of the property was in the form of legacies, through receiving any
portion of it. But let us follow Scaevola the pontifex. [µ°] You see that
everything derives from the one fact that the ponti¬ces want the rituals
to be joined to the estate and think that these same people should be re-
sponsible for the rites and ceremonies.
The Scaevolas add this too, that when there is a division, as in the
case that a reserved portion is not written in the will and the legatees on
their own accept less than is left to all the heirs, that the legatees should
not be obligated by the rituals. In the case of a gift, they interpret the
same circumstance di¬erently: whatever the head of a family approved
in gifts made by someone under his control should be valid; if he did
not approve, it is invalid. [µ±] From these principles arise many mi-
nute questions; and anyone of intelligence can easily resolve them for
himself if he pays attention to their origin. For instance: if someone had
accepted less in order to avoid being obligated by the rituals, and then
later one of his heirs had demanded for himself what had been refused
by the original legatee, and if, taken together with the original bequest,

A valid Roman will had to begin with the institution of an heir or heirs to the whole or
proportions of the entire estate; the heir(s) could then be required to pay legacies from the
estate, which might in total amount to the bulk of the estate itself (certain limits a¬ected
large estates only). In intestate succession the estate would pass to the closest relatives,
who would acquire ownership by possession.

C.™s description of the law of succession as it related to family ritual is as opaque as he says
the ponti¬cal law was. He is here describing various ways of evading ritual obligations (or
the rules governing inheritance) through gifts, third-party transactions, and collusive
sales. His general point (in sects. µ“µ) is that there is an inherent contradiction between
the role of the ponti¬ces in ensuring religious continuity and their role as civil lawyers in
helping people evade their religious obligations through legal technicalities.


±
On the Laws

the sum were no less than had been left to all the heirs, then the person
who had demanded that money would alone (without his co-heirs) be
obligated by the rituals. They also o¬er the opinion that the person to
whom a larger legacy is given than it is permissible to take without relig-
ious obligation may release the heirs from the payment of the legacy
through an act of sale: if the inheritance is thus disencumbered of the
legacy, it is as if the money had not been given as a legacy at all.
[µ] In this instance and in many others, I ask you Scaevolae, chief
ponti¬ces both and men whom I consider to be extremely intelligent,
why you seek to add civil law to ponti¬cal law? Through the knowledge
of the civil law, in fact you destroy in a sense the ponti¬cal law: the link
between ritual obligation and money comes from the authority of the
ponti¬ces, not from the law; and thus if you were purely ponti¬ces, the
authority of the ponti¬ces would survive; but because you are also the
most learned in the civil law, you make mockery of one branch of learn-
ing through the other. It was the opinion of Publius Scaevola and
Tiberius Coruncanius, both chief ponti¬ces, and of others as well, that
those who received as much as all the heirs combined were obligated by
the rituals. That is the statement of ponti¬cal law. [µ] What is added
to this from the civil law? The clause dividing the property is written
with cautious precision, that ±°° sestertii should be deducted: a reason
has been found to free the cash from the burden of ritual. But if the per-
son who made the will had not wanted to take this precaution, Mucius
himself the pontifex “ acting as a jurisconsult “ advises him to take less
than is left to all the heirs. But previously·° they said that he was ob-
ligated whatever he had accepted: now they are freed from ritual obliga-
tion. This really has nothing to do with ponti¬cal law but comes from
the heart of the civil law “ to release the heir through an act of sale to re-
store the situation, as if the money had not been a legacy, even if the
person who is given the legacy makes the stipulation that the money
that had been owed through the legacy is now owed through the stipula-
tion, and that it is not *·±

·°
Reading supra with Goerler rather than superiores.
·±
There is a gap in the text at this point; it is likely that C. here referred to the practice of
Decimus Brutus of o¬ering sacri¬ce to the dead in December rather than in February, as
was customary; cf. Plutarch, Roman Questions . Lambinus in the sixteenth century
o¬ered the following supplement for what is missing: ˜˜. . . and that it is not bound by the
rituals. I turn now to the law regarding the spirits of the dead (Manes), which our
ancestors established with great wisdom and observed most devoutly. They wanted ritual
sacri¬ce to the dead to be o¬ered in February, which was then the last month of the year;


±µ°
Book 

[µ] * certainly a learned man, and a close friend of Accius “ but I be-
lieve that just as the ancients regarded February as the last month of
the year, so he regarded December. He thought it to be a matter of
piety to use a large animal for sacri¬ce to his ancestors.
[µµ] The religious quality of graves is so great that they declare it to
be a religious violation for someone who is not a participant in the rit-
uals and the family to be brought in, and in ancestral times that was the
judgment of Aulus Torquatus in the case of the Popillian family. Nor
would the days of puri¬cation [denicales] (which are named from death
[a nece], because they are celebrated for the dead)· be called holy days
of rest like those of the other divinities if our ancestors had not wanted
those who have departed from this life to be numbered among the gods.
It is right for such days to be o¬ered to them as are neither public nor
private holidays. The whole organization of this branch of ponti¬cal
law indicates the importance of the religion and ceremony. Nor do we
need to explain the limits of family mourning, the kind of sacri¬ce
made to the family god (Lar) with rams, the method of covering a se-
vered bone with earth, the ritual obligations involving the sacri¬ce of a
sow, or the moment at which a burial site begins to be under religious
protection. [µ] My own view is that the oldest variety of burial is that
which Cyrus uses in Xenophon™s book:· the body is returned to earth
and so placed and laid out as if enveloped by its mother™s covering. We
have been told that our king Numa was buried in the same manner in
the tomb which is not far from the altar of Fons, and we know that the
Cornelian clan used that type of burial into our own times: the victori-
ous Sulla, spurred on by a hatred more bitter than he would have ex-
perienced if he had been as wise as he was passionate, ordered the
buried remains of Gaius Marius to be scattered in the river Anio; [µ·]
perhaps as a result of fear that the same thing could happen to his own
body, he was the ¬rst of the patrician Cornelii to want to be cremated.
Ennius says of Africanus: ˜˜Here lies . . .™™;· he speaks the truth, since
those who are buried are said to ˜˜lie.™™ But we cannot speak of it as a
tomb until the rituals are performed and a pig is sacri¬ced. Nowadays it
is common usage to speak of all entombed people as ˜˜buried,™™ but that
but as Sisenna reports, Decimus Brutus used to do so in December. When I investigated
the reason for this, I found that Brutus had departed from ancestral custom for this reason
“ I see that Sisenna did not know the reason why he departed from ancestral custom, but it
seems unlikely to me that Brutus carelessly rejected ancestral customs . . .™™
Cyropaedia .·.µ.
· ·
An unlikely etymology. Nex normally means violent death.
Ennius, Epigrams µ“ Warmington; quoted more fully in On the Commonwealth ..
·




±µ±
On the Laws

used to be correct only of those who were covered by earth, and ponti¬-
cal law con¬rms that custom. For before sod has been placed over the
bones, the place where a body has been cremated is not sancti¬ed; once
it has been placed, then the dead man is said to be buried, and it is
called a tomb.·µ Only at that point does it come under the jurisdiction
of the many religious laws. So too in the case of a man who had been
killed on a ship and then thrown into the sea, Publius Mucius declared
that the family was free of pollution because his bones were not above
the earth; the sacri¬ce of a sow was obligatory to the heir, together with
the observation of a three-day festival and puri¬cation through the sacri-
¬ce of a female pig. If he had died in the ocean, the same would obtain
except for the puri¬cation and the festival.
[µ]   © µ : I see what the ponti¬cal regulations contain, but I
wonder whether there is anything in the laws themselves.
  µ: Very little, Titus, and I believe that it™s familiar to you.
But the provisions have less to do with religion than with the law of
tombs. A law of the Twelve Tables says, ˜˜Do not bury or burn a dead
body in the city.™™· That, I think, is because of the danger of ¬re. And
the addition of ˜˜or burn™™ indicates that only the person who is in-
humed is buried, not the one who is burned.
 ©  µ: What do we make of the fact that after the Twelve Tables
there were famous men buried within the city?
  µ: I believe, Titus, that it involved either those to whom this
had been awarded prior to the law on account of their virtue, as to Pub-
licola or Tubertus, and that their descendants maintained this right, or
those who, like Gaius Fabricius, were exempted from the law and
achieved this on account of their virtue. And just as the law forbids
burial within the city, so too the ponti¬cal college decreed that it was
not proper for a tomb to be made on public property. You know the
shrine of Honor outside the Colline gate: the story is that there was for-
merly an altar on that spot, but when a metal plate was found there
with the inscription ˜˜This belongs to Honor,™™ that was the reason for
the dedication of this shrine. But since there were many tombs there,

<< . .

 23
( 30)



. . >>

Copyright Design by: Sunlight webdesign