LINEBURG


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they were dug up: the ponti¬cal college decided that a public place
could not be under the constraints of private religious observance.
[µ] There are other provisions in the Twelve Tables for reduction
of expense and of funeral lamentation; almost all are taken from Solon™s
·µ
The text of the last clause is corrupt, but the meaning is clear.
The quotations from the Twelve Tables in sects. µ“± are frr. , ±“±° Crawford.
·




±µ
Book 

laws. ˜˜Do no more than this,™™ they say; ˜˜do not smooth the pyre with a
trowel.™™ You know the rest: we used to learn the Twelve Tables as
boys as if it were a required chant, but nobody learns it nowadays. The
expense was limited: three veils, one small purple tunic, and ten ¬‚ute
players. They eliminated lamentations: ˜˜Women are not to scratch
their cheeks or make wailing [lessum] on account of a death.™™ The older
interpreters, Sextus Aelius and Lucius Acilius, said that they were not
certain of the meaning of this, but they suspected that it was some kind
of funeral clothing; Lucius Aelius said that lessum was lugubrious howl-
ing, as the word itself implies. I think that he is right, particularly be-
cause the law of Solon forbids the same thing.·· These provisions are ad-
mirable and are common to both the rich and the common people; and
that is completely in accord with nature, since di¬erences of wealth are
removed by death. [°] The Twelve Tables also removed other funeral
customs which increase grief. ˜˜Let no one gather the bones of a dead
man to conduct a funeral later™™; an exception is made for deaths in war
or while abroad. The laws also contain this: ˜˜Let there be no anointing
of slaves or rounds of drinking.™™· It is right to eliminate these customs,
but they would not have been eliminated if they had not been practiced.
˜˜No expensive perfumes, no long garlands, no thuribles™™ “ we can pass
over that. But there is a clear indication that the ornaments of praise are
relevant to the dead, in that the law orders that there should be no of-
fense involved in placing a garland won by courage both on the person
who gained it and on his parent.· I suppose that it was because it was
not uncommon for more than one funeral to be performed and more
than one ritual dinner for a single death that the law ordained that this
should not be done. And since the law stated ˜˜and do not add gold,™™
you should note the humanity of the sequel: ˜˜But there should be no of-
fense involved in burying or cremating someone whose teeth are bound
with gold.™™ And again you should note that a distinction is made be-
tween burial and cremation.
[±] There are two further laws about tombs, one concerning private
buildings, the other concerning the tombs themselves. The prohibition
against ˜˜a pyre or new cremation being performed within sixty feet of
another person™s home against the will of the owner™™ re¬‚ects a fear of
¬re.° As for the clause that prohibits the forum “ that is, the entry to
Cf. Plutarch, Solon ±.
·· ·
The text is corrupt and the meaning obscure.
·
Various types of garland (corona) were awarded for various acts of military valor.
°
The text of the last few words is corrupt, and the translation is conjectural.


±µ
On the Laws

the tomb “ ˜˜or the burial place to be subject to ownership by pos-
session,™™ that is a protection of the rights of tombs. All this is in the
Twelve Tables, clearly in accord with nature, which is the measure of
law. The remainder is customary: that there should be an announce-
ment at the funeral of any games; that the person in charge of the fu-
neral should use an attendant and lictors, [] that the praise of men of
distinction should be spoken in a public assembly, and that they should
be accompanied with dirges to the sound of the ¬‚ute. The name of this
is neniae, which is given to dirges by the Greeks as well.
 ©  µ: I am glad to know that our laws are in accordance with na-
ture; the wisdom of our ancestors pleases me greatly. But I look for limi-
tations on tombs themselves as of other expenses.
  µ: Quite right. I believe that you have seen in the case of the
tomb of Gaius Figulus the extent to which such expenditure has gone.±
There are many examples among our ancestors to show that in the past
there was little desire for such things. The interpreters of our law, in
connection with the rubric which orders them to remove expense and
grief from behavior concerning the spirits of the dead, should under-
stand above all that the grandiosity of tombs should be reduced. []
Nor have the wisest legislators neglected this subject. At Athens, as
they say, the rule concerning burial has descended from Cecrops: after
the closest relatives had performed the burial and earth was drawn over
the grave, it was sown with grain, so that the inner recess, as if of one™s
mother, was given to the dead man, but the soil was puri¬ed with grain
to give it back to the living. A banquet followed, which the relatives at-
tended wearing garlands; and when they had said something truthful in
praise of the dead man “ they consider it wrong to lie “ the rites were
complete. [] Later, however, as Demetrius of Phalerum writes, when
funerals began to be costly and ¬lled with lamentations, they were elim-
inated by a law of Solon, a law which our own decemvirs inserted into
Table X in almost identical words; all that about the three veils and
much of the rest are Solon™s, and the passage about lamentation is in
these words: ˜˜Women are not to scratch their cheeks or make wailings
on account of a death.™™
Concerning tombs, on the other hand, there is nothing more in
Solon than ˜˜let no one destroy them or bring in an unrelated body,™™

±
Presumably Gaius Marcius Figulus; nothing is known of his tomb, but some extraordi-
narily elaborate burial monuments survive from this period.


±µ
Book 

with a penalty ˜˜if anyone violates, casts down, or breaks a tomb (the
Greek word is tumbon) or a column.™™ Slightly later on, because of the
size of the tombs which we can see in the Ceramicus, the law ordained
˜˜that no one should make a tomb more elaborate than what ten men
can build in three days™™ [µ] and that it should not be ornamented with
decoration. Nor was it permitted to place what they call herms on
them; nor to speak in praise of the dead except at public burials, nor by
anyone other than the person publicly appointed to do so. Large gather-
ings of men and women were eliminated in order to reduce the lamenta-
tion; crowds increase grief. [] For that reason Pittacus forbids anyone
to attend a burial of someone not in his family. But Demetrius says that
once again the grandiosity of funerals and tombs became common, just
as it is now at Rome, and he himself made a law to diminish the cus-
tom. Demetrius was, as you know, not only very learned but also a very
public-spirited citizen and very ready to look out for his country. He re-
duced the cost of burials not only through penalties but by the use of
timing: he ordered burials to take place before dawn. He also estab-
lished a limit for new tombs: he did not want anything on top of the
mound except a small column no higher than three cubits, or a table or
a small basin; and he appointed a speci¬c magistrate to take charge of
this.
[·] That is what your Athenians did. But we should look to Plato,
who hands the funeral rituals over to the interpreters of religious cus-
toms, as we do too. What he says about tombs is this: he forbids any
cultivated or arable land to be used for a tomb, but instructs that such
land should be used as can hold the bodies of the dead without loss to
the living; whatever land is capable of bearing crops and providing food
like a mother should be reduced by neither the living nor the dead. []
He forbids any tomb to be built up higher than ¬ve men can complete
in ¬ve days, nor should any stone be raised up or placed on it larger
than is needed to hold such praise of the dead as can be included in no
more than four hexameter verses, the ones that Ennius calls ˜˜long
verses.™™ So we have the authority of this great man about burials; and
he also limits the expense of funerals “ based on the wealth of the fam-
ily “ to between ± and µ minae. And after that he gives the well-known
passage about the immortality of the soul and the peace of the good
after death and the punishments of the wicked.

Laws ±.µde. Ennius p. µ Warmington.
 




±µµ
On the Laws

[] That, I believe, concludes the explanation of the laws on relig-
ion.
±µ ©® µ : And very amply done too, brother; but now go on to the
rest.
  µ: I will, and since it pleases you to push me onward, I will
complete it in one day™s conversation, I hope “ particularly on this day.
I see that Plato did the same thing, and that his whole speech about the
laws was concluded on a single summer day. I will do the same, and I
will speak about magistracies. Once religion has been established, that
is what is most important in creating a commonwealth.
 ©  µ: Then go on, and stick to the plan which you have begun.




±µ
Book 

[±]   µ: Then I will continue to follow that divine man whom I
perhaps praise more frequently than I need to because of the admir-
ation for him which moves me.
 © µ : You mean Plato, I suppose.
  µ : Precisely, Atticus.
 © µ : You could never praise him too much or too often. Even
my own people, who never want anyone except their own founder to be
praised,± permit me to esteem him at my own discretion.
  µ : A good decision on their part. What could be more worthy
of your own re¬nement? Your life and language appear to me to have
achieved that most di¬cult combination of seriousness and humane-
ness.
 © µ : I™m very glad to have interrupted you, since you have
given me such a grand statement of your opinion. But go on.
  µ : Then shall we start by praising the law in accordance with
the true praise appropriate to its kind?
 © µ : Yes, just as you did with the religious law.
[]   µ : You see, then, that this is the power of the magistrate,
that he be in charge and ordain behavior that is right and useful and in
accordance with the laws. Just as the laws are in charge of the magis-
trates, so the magistrates are in charge of the people; it can truly be said
that a magistrate is a law that speaks, and a law is a silent magistrate. []
There is nothing so consonant with the justice and structure of nature “
and when I say that, I want you to understand that I am speaking of the

Epicureans; for their narrowness see ±.±.
±




±µ·
On the Laws

law “ as the power of command, without which no home or state or na-
tion or the whole race of mankind can survive, nor can nature or the
world itself. The world obeys god, and land and sea obey the world,
and human life follows the commands of the supreme law. [] And to
come to things closer and more familiar to us: all early peoples once
obeyed kings. This type of power was ¬rst o¬ered to the most just and
wise men (and that was true of our own commonwealth, so long as mon-
archic power was in charge), and then it was handed on in turn to their
descendants, a custom which remains true among contemporary monar-
chies. Even people who were not in favor of monarchic power did not
want to have no one to obey, but wanted not always to obey the same
person. But since we are giving laws for free peoples and have given our
ideas about the best commonwealth in our six previous books on that
subject, we will at this point suit the laws to the form of state of which
we approve. [µ] So there is need for magistrates, without whose judg-
ment and e¬ort the state cannot exist; the allocation of their powers de-
¬nes the organization of the commonwealth. Nor must we instruct
them only in the manner of ruling, but also in the manner of obeying
the citizens. For the good commander must necessarily at some time be
obedient, and the person who is properly obedient seems like someone
worthy at some time of commanding. The person who obeys should ex-
pect that he will sometime give commands, and the person who is in
command should think that he will soon have to obey. We ordain not
only that people should follow and obey the magistrates but that they
should cherish and love them as well, as Charondas instructs in his
laws. Plato himself decided that people who oppose magistrates belong
to the race of the Titans, who similarly disobeyed the gods. That being
the case, let us (if you approve) turn to the laws themselves.
 ©  µ: What you have said and your plan of action both appeal to
me.
[]   µ: Let the powers be just, and let the citizens obey them de-
cently and without refusal. Let the magistrate check the disobedient and
harmful citizen by ¬ne, chains, or whipping if no equal or greater authority
or the people forbid it; let there be the right of appeal to the people.µ

The arguments about imperium (translated as ˜˜the power of command™™) are similar to
those advanced in favor of monarchy by Scipio at On the Commonwealth ±.µ“±.
Cf. Aristotle, Politics . ±··b·“ on ruling and being ruled as part of the virtue of a


Laws .·°±bc.

citizen.
Roman magistracies were characterized by collegiality:  consuls and  (in C.™s time)
µ

praetors. The order of any one could be countermanded by a colleague or (in the case of the


±µ
Book 

When the magistrate has judged or proposed a penalty, let there be a pub-
lic contention over the ¬ne or penalty. Let there be no right of appeal on
military service from the commander, and let whatever the person waging
war has commanded be right and rati¬ed.
Let there be several minor magistrates over the several areas of divided
jurisdiction. On military service let there be tribunes in command of those
whom they are ordered to command. In civilian affairs let them guard the
public funds, let them supervise the chains of the guilty, let them in¬‚ict
capital punishments, let them publicly coin bronze, silver, or gold, let them
judge lawsuits that have been joined,· and let them perform whatever the
senate shall decree.
[7] Let there also be aediles as caretakers of the city, of the grain supply,
and of the recognized festivals. Let this be their ¬rst stage towards higher
of¬ce.
Let censors review the ages, children, families, and property of the
people; let them watch over the temples, roads, watercourses, treasury,
and taxes of the city; let them divide the groups of the people into tribes,
then distribute them in terms of property, age, and rank; let them assign
the members of the cavalry and infantry; let them prohibit celibacy; let
them regulate the morals of the people; let them leave no disgraceful per-
son in the senate. Let there be two of them, and let them hold of¬ce for
¬ve years; let the remaining magistrates serve for one year, and let the of¬-
ces exist in perpetuity.
[8] Let the praetor be the legal arbiter to judge private cases or assign
them for judgment. Let him be the guardian of civil law. Let there be so
many of them with equal power as the senate shall have decided or the
people ordered.
Let there be two men with royal power of command, and from leading,
judging, and advising let them be called praetors, judges, or consuls. On
military service let them have the highest authority, and let them obey no
other. For them let the safety of the people be the highest law.
[9] Unless ten years shall have intervened, let no man hold the same

praetors) by one of the consuls. The ability of the people to forbid punishment is the right
of provocatio (appeal); cf. On the Commonwealth .µ“µ.

Military tribunes were junior o¬cers in command of one legion (for Scipio Aemilianus as
military tribune cf. On the Commonwealth .).
The four o¬ces in question are the quaestors, the board of  in charge of punishments
·

(tresuiri capitales), the board of  in charge of coinage (tresuiri aere argento auro ¬‚ando
feriundo), the board of ±° in charge of deciding lawsuits (decemuiri stlitibus iudicandis).

The most signi¬cant change in C.™s laws from the actual practice in Rome: the Roman
censors were (in theory) elected every µ years but were in o¬ce for only ± months.

From praeeo, iudico, and consulo respectively. The original magistrates were the praetors;
the title was changed to consul when the lesser magistracy (the praetorship) was intro-
duced in the third century.


±µ
On the Laws

magistracy. Let them preserve the times of holding of¬ce according to the
law of years.±°
Whenever a serious war or civil discord shall arise, should the senate so
decide, let one man hold power equal to that of the two consuls for no lon-
ger than six months. Having been declared by a favorable omen, let him be
the master of the people. Let him have someone to command the cavalry
with equal power to that of whoever shall be the legal arbiter.±±
Whenever there shall be no consuls or master of the people, and when
there shall be no other magistrates, let the auspices belong to the Fathers,
and let them produce from among themselves someone duly to create con-
suls through the assembly.±
When the senate shall so have decreed or the people so ordered, let
commanders, men in authority, or embassies depart from the city. Let
them wage just wars justly; let them be sparing of the allies; let them con-
tain themselves and their men; let them augment the glory of their people;
let them return home with honor.
Let no one be an ambassador for the sake of his own affairs.
Let those ten men whom the people have created on their own behalf
as aid against violence be their tribunes, and let whatever they have forbid-
den or had approved by the plebs be duly rati¬ed; let them be sacred, and
let them not abandon the plebs to be bereft of tribunes.
[10] Let all magistrates have the right to take the auspices and give judg-
ment, and let the senate be composed of them. Let its decrees be duly rati-
¬ed, and let them preserve in writing decrees that an equal or greater auth-
ority has prohibited.
Let the senatorial order be free from fault; let it be a model to others.
Let the creation of magistrates, the judicial decisions of the people, and
their orders and prohibitions be ascertained by ballot known to the best citi-
zens but free to the plebs.
Should there be anything outside the scope of the normal magistrates
for which it may be useful to provide, let the people create someone to pro-
vide for it and let him have the right so to act.
Let the consul, the praetor, the master of the people and of the cavalry,
and the one whom the Fathers have produced for the sake of selecting con-
suls have the right to conduct business with the people and the senate; let
the tribunes whom the plebs has created for itself have the right to con-

±°
The lex annalis regulated the minimum age for holding various o¬ces and the intervals
between them.
±±
Master of the people (magister populi) is the archaic title for the dictator (see also On the
Commonwealth ±.); his subordinate was master of the horse (magister equitum). Their
relationship is here made equivalent to that of consul and praetor.
The interrex; cf. On the Commonwealth ..
±




±°
Book 

duct business with the senate; and let them bring to the plebs whatever
shall be useful.
Let those things which are brought before the people or the senate be
moderate.
[11] Let any senator who is not present have a reason or be held culp-
able. Let him speak in his place and with moderation. Let him understand
the concerns of the people.
Let there be no violence in public. Let equal or greater power have more
authority.± Let any disturbance in the conduct of public business be the
fault of the person conducting it. Let the citizen who intervenes in evil af-
fairs be regarded as a savior of the community.
Let those who conduct public business observe the auspices; let them
heed the public augur; let them conduct business after proposals have
been made public, and let them preserve them in the treasury;± let them
not bring forward proposals on speci¬c matters more than once; let them
instruct the people about the matter, and let them permit them to be in-
structed by the magistrates and by private citizens.
Let them not bring forward proposals affecting single individuals. Let
them not decide measures concerning the status of a citizen except in the
greatest assembly and before those whom the censors have placed in the
divisions of the people.±µ
Let them neither receive nor give gifts in seeking or conducting of¬ce or
after the conclusion of a term of of¬ce. Whatever of these someone has vi-
olated, let the penalty be equivalent to the crime.
Let the censors protect the ¬delity of the laws. Let private citizens bring
their actions to them for approval, but let them not thereby be freed from
the law.
Here ends the law: I will order you to depart and be given ballots.
[±] ± µ © ®  µ: What a brief survey you have given of the distribu-
tion of all the magistracies! They are almost those of our own state, al-
though you have added a little new material.
  µ : Your observation, Quintus, is quite right. This is the
blended commonwealth which Scipio praises in that other book and

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