11 “Galba Negabat”
a d Manfredini (ferrara)
Nil medium est.1 Who but Horace could have stated this? There are men who accost only women in brothels and men on the other hand who are only attracted by matrons.2 But the pleasures of the latter, besides being spoiled by many a pain, are rare and often lead to grave dangers:3 there are men who have thrown themselves from the roof, men who have been hounded to death, men who, escaping, have finished by finding themselves caught up in a savage mob of thieves, men who have had to pay out money to save their skins, men who have suffered rape by the servants.4 It has even happened for some that a sword has cut off the randy prick and balls: “testis caudamque salacem Demeteret ferro”.5 “lure” omnes; Galba negabat.
This is what happened, or what could happen, to the adulterous tempter of matrons, Horace informs us, around 40 or 39 BC.6 Even castration. Everybody said that it was lawful to do this,7 Galba dissented.
Historical and juridical interest in Horace’s testimony seems to die away on learning the news, documented elsewhere, that, at least until the passing of the lex Iulia de adulteriis,8 private vendetta was admitted against the flagrant adulterer, and that this could be carried out with various forms of physical violence, which even included castration.9 The intriguing idea that the contrast “iure”
1 Horace sat. 1.2.28. E Lefevre, “Nil medium est. Die fruheste Satire des Horaz (1,2)”, Monumentum Chiloniense. Studien zur augustanischen Zeit, Festschrift fur E Burck (Amsterdam, 1975) 319.; C Dessen, “The Sexual and Financial Mean in Horace’s Serm. I,2”, (1968) 89 AJPh 200; L C Curran, “Nature, Convention and Obscenity in Horace, Satires 1,2”, (1970) 9 Arion 220.; M Gigante, Orazio.
Una misura per l’amore (Venosa, 1993).2 Horace sat. 1.2.28—30.
3 Horace sat. 1.2.38-40.
4 Horace sat. 1.2.41-4: “Hic se praecipitem tecto dedit, ille flagellis/ad mortem caesus, fugiens hic decidit acrem/praedonum in turbam, dedit hic pro corpore nummos,∕hunc perminxerunt calones..
5 Porphyrionis Commentum in Hor. Flac. serm.1.2.44—55, ed. A Holder: “In adulterio deprehensis ait interdum evenisse, ut virilibus amputatis dimitterentur”.
6 P Lejay, Oeuvres d’Horace, Satires (Paris, 1911) at 36; Gigante, supra n.1, at 38, disagrees.
7 Pseudacronis Scholia in Hor. vetustiora, II, sat.1.2.46, ed. O. Keller: “Subaudi factum esse dicebant”.
8 Horatian satire in fact precedes the lex Iulia de adulteriis.
9 Plautus infra; Terence Eun. 950-93; Horace sat. 1.2.41-6; Horace sat.1.2.133; Horace sat.2.7.61; Valerius Maximus 6.1.13. On the basis of Schol. Croq. ad Hor. sat. 2.7.61, W Rein, Das Criminalrecht der Romer von Romulus bis auf Justinian (Leipzig, 1844) 838, deduced that it is possible that the XII Tables, under Greek influence, established the ius occidendi of adulterers. omnes; Galba negabat, underpins a ius controversum (with a truly unusual lineup: all against one), seems to last only until it is ascertained that there is no jurist called Galba in any list of Roman jurists.[197]
But the two main scholiasts of Horace, Pseudacro and P. Porphyrio, offer us further information worthy of the greatest attention. Let us read them.
Ps.-Acr. ad serm.1.2.46: “Galba iuris peritus et ipse matronarum sectator, qui dicebat non iure factum, ut testes amputarentur, quia primo adulterii poena pecuniaria erat”.
Porphyr. ad serm.1.2.46: “Est enim totum tale: iure omnes factum dicebant, Galba autem negabat. Amare autem Servium Galbam iuris consultum perstrinxit, quasi contra manifestum ius pro adulteris responderit, quia ipse adulter esse”.
Now, putting the two testimonies together, we learn that Galba (Servius Galba, according to Porphyrio) was a iuris peritus or iuris consultus attracted by the wives of others. He maintained that the castration of the adulterer was not iure factum because, primo, the penalty for adultery was pecuniary. He gave a legal opinion favourable to adulterers against self-evident law, almost as if he himself were an adulterer.
All this clearly appeals to the legal historian. But to what degree can these testimonies be believed? Porphyrio is from the third century.[198] Pseudacro’s text could come from Helenius Acro[199] and therefore date back to the middle of the second century, or at least to an era no later than that of Porphyrio.[200]
As far as we know it was only in our century that Horatian philology critically weighed these texts, with differing conclusions. For example, in the critical edition of the Satires by A Kiessling and R Heinze[201] a rather dismissive attitude emerges towards the juridical content of these scholia. No contrast between jurists, no ius controversum. Galba could not have been someone who put forward a legal opinion in contrast to self-evident law on the castration of the adulterer (Porphyrio’s testimony on the point should not be admitted); this must have been a particular case, the case of a victim of these penalties[202] (which is why he denied that castration was juridically admissible), who was a juristis- ches Glied of the gens Sulpicia, known for his adventures in gallantry. Perhaps not even Galba but Gabba (Galba could be an ancient corruption of Horace’s original Gabba): a symbol of the cuckolded and complaisant husband assigned this name by analogy with the jester, Gabba, at the court of Augustus,[203] who fitted the old proverb non omnibus dormio.[204]
Very different is the opinion of P Lejay in his edition of Horace’s Satires.[205] He first of all accepts the idea, widely shared by scholars of Roman law,[206] that, before the lex Iulia, the repression of adultery was, in great part, a family affair, and no concern of the State.
The husband could kill the adulterous wife with impunity and could inflict an unlimited vendetta on the adulterer.[207] In the course of time, Lejay maintains, there would appear milder claims, claims acknowledged in 17 BC[208] by the lex Iulia de adulteriis. More precisely, Augustus’ law, which reduced the penalties for adultery, would turn a practice already adopted by jurists into a doctrine. This doctrine, according to Pseudacro’s text, distinguished between adulterers who had committed adultery for the first time (primo), who were punished only with a fine, and the recidivists. The Galba of whom Horace speaks would have been one of the jurists defending this doctrine and who contributed to the preparation of the new legislation. This Galba could be identified with either Servius Sulpicius Galba, praetor in 54 BC, or with Servius Galba, consul in 144 BC,[209] whose name could have come to Horace through the works of Lucilius.[210]In a strictly prosopographical context, the scholiasts’ identification of Horace’s Galba as Servius Galba iuris peritus or iuris consultus has suggested the matching, with great caution, of this character to Sulpicius Galba, father of the emperor and consul in 5 BC,[211] or even with Servius Sulpicius, praetor in 54 BC.[212]
Among the scholars of Roman law there has been, as far as we know, no indepth study. Here and there, in the studies on adultery, they remember Horace’s scholiastical tradition in support of the idea that adultery, at least in the age before Augustus, had a pecuniary sanction in the form of a financial settlement.[213] It is difficult to find any scholars willing to believe in the existence of a jurisprudential debate and in a ius controversum, and who go further and identify Galba.[214]
We believe that—in this small enigma from Horace: “iure” omnes; Galba negabat—it is possible to take a further step towards the truth.
A step that perhaps takes us close to the explanation of another question, one posed by Cicero, about which scholars have pondered deeply.Let us recapitulate. Horace is speaking of the risks that a flagrant adulterer runs. Some, says the poet, have even suffered castration. Everybody said that castration was inflicted legitimately, only Galba denied it. The term iure must have a juridical import;[215] we are not just in a comic chronicle, where omnes are all the cuckolded husbands, real or potential, and Galba is an adulterer who has actually suffered castration.[216] We need a legal evaluation of Horace’s words. Words that draw a contrast between omnes and a specific person. Omnes identifies a limited category. If the contrast is among those who work in the field of law in the wide sense, one might think that omnes indicates the jurists, and that Galba, who opposes all the jurists, is not properly a jurist. It is true that Horace’s scholiasts define Galba (Servius Galba) as iuris peritus, iuris consultus. But these sources are from a later period. It could be that Galba had, in certain circles, acquired a reputation as a jurist (for he gave a responsum, according to Porphyrio) even although he had never been one. It could be that in the language of the late imperial age the scholiasts wanted to indicate with iuris peritus or iuris consultus simply an advocate,[217] perhaps one of the orators who in the late republican age appeared in criminal and civil cases (at least those before the centumviri) without being professional jurists. We are looking therefore not for a jurist but for an orator. The terminus ad quem for this orator Servius Galba is obviously the date of composition of the Horatian satire, around 40-39 BC as we have already said. Let us abandon the search for a Servius Galba sectator feminarum;[218] one may very easily see in this epithet a stereotype that has formed over time as a result of his having taken a position in favour of adulterers.
Instead let us take account of what Porphyrio said, and that is that he gave a legal opinion on the subject (Porphyrio merely says, “as if he had been an adul- terer himself”). A Servius Galba, then, who is not a jurist, but probably an orator, who gave a responsum in opposition to all the jurists. Here he is:“Equidem hoc saepe audivi: cum aedilitatem P. Crassus peteret eumque maior natu et iam consularis Ser. Galba adsectaretur, quod Crassi filiam Gaio filio despondisset, accessisse ad Crassum consulendi causa quendam rusticanum, qui cum Crassum seduxisset atque ad eum rettulisset, responsumque ab eo verum magis quam ad suam rem accommodatum abstulisset, ut eum tristem Galbam vidit, nomine appellavit quaesivitque, qua de re ad Crassum rettulisset. Ex quo ut audivit commotumque ut vidit hominem, (240) ?suspenso’ inquit ?animo et occupato Crassum tibi respondisse video’; deinde ipsum Crassum manu prehendit et ?Heus tu’ inquit, ?quid tibi in mentem venit ita respondere?’ Tum ille fidenter homo perititissimus confirmare ita se rem habere, ut respondisset, nec dubium esse posse; Galba autem adludens varie et copiose multas similitudines adferre multaque pro aequitate contra ius dicere; atque illum, cum disserendo par esse non pos- set—quamquam fuit Crassus in numero disertorum, sed par Galbae nullo modo—ad auctores confugisse et id, quod ipse diceret, et in P. Mucii fratris sui libris et in Sex. Aeli commentariis scriptum protulisse ac tamen concessisse Galbae disputationem sibi probabilem et prope veram videri.” (Cic. de orat. 1.56.239-40.)
The Ciceronian passage—and its relation to rhetoric—is well known to scholars of legal science.32 As far as we know, the possibility of providing the context for this case, which saw a disagreement between jurists on one side and an orator on the other, has until now escaped us. But let us sum up how far we have come. In Cicero’s fictional dialogue, Antonius is confuting the thesis of L Licinius Crassus.33 For Licinius Crassus a knowledge of law (cognitio iuris) is necessary to the orator, above all if there is discussion on legal issues (de iure) in his court cases. On the contrary, Antonius34 maintains that eloquence is always worth more than jurisprudence. As proof, he recalls an anecdote that must have been quite well known (saepe audivi, says Antonius).35 With this anecdote, Antonius wants to show that a skilful orator, although lacking juridical knowledge, has managed convincingly to reject a certain view, in spite of its being shared by very authoritative jurists.36? Licinius Crassus Mucianus,37 orator and
32 For instance, J Stroux, Summum ius summa iniuria, Romisches Rechtswissenschaft und Retorik (Potsdam, 1949) 54.; Schulz, supra n.30, 118; F Bona, “Sulla fonte di Cicerone, de oratore, 1.56.239-240, e sulla cronologia dei ?decem libelli’ di P. Mucio Scevola”, (1973) 39 SDHI 425 (= Cicerone tra diritto e oratoria (Como, 1984) 6).
33 Cicero de orat.1.36-40,165-84.
34 Cicero de orat.1.56-7,237-45.
35 This can leave some doubt since the episode comes to Cicero from a written source, the autobiography of P Rutilius Rufus (Bona, supra n.32, 20; more prudent is Munzer, supra n.25, col. 766). In any case, if the connection of the subject of Ser. Sulp. Galba’s responsum with castration for adultery is plausible, Horace proves that, in the literary genre of satire, an anecdotal tradition existed, probably dating back to Lucilius.
36 E Klebs, sv. M.Antonius, no. 28, RE I, 2, col. 2590. But with this anecdote Antonius (or Cicero himself) wants to demonstrate something more, that juridical science is nothing short of harmful for an orator because it is an impediment to the attainment of aequitas. This is the message of the Galba episode. According to Bona, supra n.32, 25, the Galba episode was probably deliberately “slanted” to exemplify aequitas by Cicero himself. The historic Galba would have been unconcerned with the ideal of equity, and probably acted in order to aid the electoral success of his friend.
37 F Munzer, sv. Licinius no. 72, in RE XII, 1, 334. jurist (brother of P Mucius), was canvassing for the aedileship, and the distinguished orator Servius Sulpicius Galba38 (who had already been consul in 144) was accompanying him. It happened that a country fellow came up to Crassus to ask his advice. After Crassus had given a legal opinion in an aside, Galba, seeing that the man was upset about having received a technical opinion that was unfavourable to him, called him by name (evidently he knew him), made him tell the story and report the legal opinion. Galba then asked Crassus: “What on earth led you to give this opinion?” Crassus insisted that his advice was right. Then Galba began to give his own view, making various pleasantries, bringing in many similarities, that is analogous cases, saying many things on behalf of equity against strict law. Crassus had not yet given up, and against so much eloquence he resorted to quotations from the books of his brother P Mucius and from the commentaries of Sestus Aelius. But in the end, Crassus admitted that the disputatio, that is Galba’s opposing opinion, was probabilem et prope veram.
Cicero: one man - the orator Servius Sulpicius Galba, the consul of 144 - against everybody, more precisely against all the most authoritative legal science, in a disputatio that was clearly famous, but Cicero is silent on the context. Horace: “?lure’; omnes: Galba negabat”; everybody says that the mutilation of the adulterer is done lawfully, only Galba denies it. The scholiast Porphyrio: “Servium Galbam iuris consultum... quasi contra manifestum ius pro adulteris responderit”; and Pseudacro: “dicebat non iure factum, ut testes amputarentur, quia primo adulterii poena pecuniaria erat”. In our opinion, the connection between these testimonies is more than merely plausible. It provides new information for the history of republican jurisprudence: the knowledge of the subject on which, a little later than 144, an opinion expressed by an orator (Servius Sulpicius Galba) had the better over the opinions of various jurists (Licinius Crassus Mucianus, P Mucius and Sestus Aelius).
The subject of adultery. In the middle of the second century BC, it is very likely that adultery was still a matter for the family,39 to be suffered or avenged according to the mood of the men of the household, betrayed fathers and sons.40 Not a public affair.41 With regard to the manifest adulterer, the vendetta could
38 Munzer, supra n.25, col. 759.
39 On the role of the iudicium domesticum opinion is divided. For instance: E Volterra, “Il preteso tribunale domestico in diritto Romano”, 2 (3rd series) Rivista Italiana per le Scienze Giuridiche (1948) (= Scritti giuridici (Naples, 1991) II, 127.; W Kunkel, “Das Konsilium im Hausgericht”, (1966) 83 SZ (= Kleine Schriften (Weimar, 1974) 131); R A Bauman, “Family Law and Politics”, Scritti A. Guarino (Naples, 1984) III, 1296; Y Thomas, “Remarques sur la jurisdiction domestique a Rome...”, Actes de la table ronde 2-4 octobre 1986 (Ecole Franφaise a Rome, 1990) 452; I Piro, “Usu” in manum convenire (Naples, 1994) 76.
40 For the question of manus and of sons alieni iuris, see Cantarella, supra n.27, 180.
41 This is not a rash statement despite the fact that references to leges that probably preceded the lexIulia are not lacking. Starting from Coll. 4.2.2 (“prioribus legibus obrogat’”), Horace sat. 1.3.105 speaks of ancient leges against adulterers; Valerius Maximus 6.1.13 tells of betrayed husbands who used their pain pro publica lege. But are they leges publici or is the term lex used generally in the sense of “regulation”? Again, Valerius Maximus 8.2.2 states “adulterii crimen publicae quaestioni vindicandum reliquit” with reference to a case in which the protagonist died around range from death to any other act of physical violence. Certainly, acts of “exemplary” violence must have been frequent, among them castration. But alongside the primitive tendencies towards revenge, and still within the private field of the vendetta, a pecuniary settlement must have existed.42
In trying to reconstruct the terms of the dispute - on the subject of adultery, and more precisely on the subject of the castration of the manifest adulterer - a dispute in the middle of the second century BC which saw the jurists on one side and an orator on the other, we must not forget these two important facts, both reliably established at the time of the dispute: the co-existence of the practice of castration and of the pecuniary settlement.
Plautus provides evidence for both. The playwright, with his comic burlesque, and double meanings designed specifically to get a laugh, provides a very significant light on what could happen to the lover discovered in the act of adultery, in a period not very distant from that in which the episode of Servius Sulpicius Galba and Mucianus is situated. The threat of castration regularly hangs over the adulterer, and in Plautus’ texts the sequence of terms testes intestabilis testatus regularly allude to it. Elsewhere he gives a metaphor of the type “facio quod manufesti moechi haud ferme solent... refero vasa salva”. Subtle allusive wordplay appears in the dialogue between the servant Palinurus and the adolescent Phaedromus in the Curculio. The servant urges him to take care not to become intestabilis (“ne sis intestabilis’”)43 inviting him to love the presence of his testes (“testicles” or “witnesses”). Nobody forbids him to buy, if he has the money, what clearly is for sale,44 but he should not enter on fenced property, since one should abstain from matrons, widows, virgins, youths and freeborn boys.45 The long final scene from Miles Gloriosus is very realistic.46 A trap is set for Pyrgopolynices. He goes into the house of old Periplectomenus, convinced that he will find the latter’s wife, and instead he finds the husband there, ready to assault him. A considerable scuffle follows. The adulterer is seized and tied up. Knives are sharpened. The order is to discindere,47 to adimere his testicles, indicated with a metaphor (“quin iamdudum. gestit [219] moecho hoc abdomen adimere/ut faciam quasi puero in collo pendeant crepundia”).[220] A beating begins. Despite his protestations of innocence, Pyrgopoly- nices has his legs spread open. The unfortunate man asks to be heard before the amputation. His defence is convincing. He has to swear that he will never avenge the blows he has received, stating that it will have gone well for him, compared with his wrong-doings, that he leaves not intestatus.[221] Then the cook and the others ask for a tip in exchange for letting him leave salvis testibus.[222] He pays, and once untied, recites his mea culpa for the benefit of the public: justice has been done (iure factum iudico) ;[223] let the fear of all the terrible things that have been seen dissuade aspiring adulterers.
Another Plautine passage, from the Bacchides, which as far as we know has not been considered in this context, is evidence for the practice of settlement.[224] Let us leave aside the true story within the plot (which does not help us with adultery because it concerns the love of the young Mnesilochus for a courtesan, Bacchides II, in her turn involved with a powerful soldier). What interests us is what Mnesilochus' father believes to be true. He is convinced that his son Mnesilochus loves a married woman,[225] a wife not a whore,[226] and that he has committed an act of adultery. When he hears the soldier shout that he hopes to surprise the lovers in order to kill them,[227] the slave Chrysalus, who has engineered everything, reminds the father that he is dealing with a husband[228] and that he can come to a settlement with him for a small sum of money.[229] [230] The soldier is willing to receive money. The father is willing to pay any price: “pacisce ergo, opsecro, quid tibi lubet,∕dum ne manifesto hominem opprimat nive enicet;58 em illoc pacisce, si potest; perge, opsecro,∕pacisce quidvis”.[231] The soldier is satisfied and an agreement is soon reached.[232] “I have redeemed your life from disgrace with two hundred gold coins”, the father comments later, when all is known.[233] Let us return to the Ciceronian episode in which, it will be remembered, the orator Servius Sulpicius Galba gave the afflicted rustic a convincing view of his case directly opposed to that of the strict law supported by Mucianus. Let us remember Horace, who states that the controversial case concerned the vendetta against the manifest adulterer, and his castration, and that the jurists said that this was legitimate but Galba denied it. Let us also remember the words of Pseudacro: “Galba... dicebat non iure factum, ut testes amputarentur, quia primo adulterii poena pecuniaria erat”. If pecuniary settlement was already practised at the time of Galba (as Plautus tells us), his favourable responsum for adulterers must surely have gone further. The orator could have maintained that, at least when castration was threatened, there must be settlement. The offended party could not refuse it. If there was no agreement, the parties could go to a judge to determine an equitable compensation. Only the unwillingness of the offender to settle, or failure to pay the fine, would have rendered the vendetta legitimate “... primo the penalty for adultery was pecuniary”: perhaps Pseudoacro means to say exactly that the penalty was primarily pecuniary.[234] Only if the sum was not paid, was the vendetta unleashed. Galba could boldly have let himself be guided by analogy with the treatment of bodily injury under iniuria. Si membrum rupsit, ni cum eo pacit.[235] It is the responsibility—but, at the same time, the right—of the offender to ask for and to conduct negotiations for a settlement.[236] The valuation (aestimatio) of the judge binds not only the offender but also the offended party.[237] Cicero says that Galba brought in many similarities and said many things on behalf of equity against strict law. Under strict law fell the long-enduring vendetta of castration (brevis enim poena mortis est).[238] Equity was the compulsory pecuniary settlement. It is not possible to know the fate of Galba’s legal opinion. In serious circles it may have led to discussion of the relationship between ius and aequitas. In less serious circles perhaps it caused laughter.[239] What is certain, however, is that settlement in the case of flagrant adultery, within or outside the law, has long survived him.