GELLIUS READS JURISTS

The main authoritative role which Gellius assigns to juristic authors (and legal primary texts) is not the answering of legal questions. My discussion here will focus on what kinds of questions the juristic texts seem to solve - that is, not why Gellius tells us he is reading them (for he rarely, if ever, does), but to what benefit of having read them he is drawing our attention by setting them in the context he does.

A jurist’s analysis of a word may be cited as one among several compet­ing explanations for Gellius. So Noctes 6.4 is a short piece on why captives for sale as slaves are said to be sub corona, and it opens with a citation of Caelius Sabinus on the use of headgear to distinguish slaves for sale; explain­ing which ones wear pilleati and which sub corona (6.4.1-3). ‘However,’ says Gellius, ‘there is another reason’, and he supplies a competing but unsourced theory (6.4.4). Then, as often, he passes judgment on the two, the evidence supporting Caelius’s explanation being a rhetorical usage of the term by Cato in his work de Re Militari (6.4.5). Gellius combines juristic thought, common opinion, and archaic literary evidence to come to an authorita­tive answer. Similarly, Masurius Sabinus’s etymology of religiosus (from his Commentarii de Indigenis) is just one of many pieces of evidence consulted in Gellius’s lengthy exploration of that word, prompted by a line of verse quoted without citation by Nigidius Figulus (4.9.8-9). The jurist here is an effective antiquarian etymologist.^[29]

The turn to authority with which Gellius is concerned is often based on assumptions about who will know what, and more often than not is explic­itly depicted in part because it was misguided. So in 10.20 he attempts to answer a common question:

quaeri audio, quid ‘lex’ sit, quid ‘plebiscitum’, quid ‘rogatio’, quid ‘privilegium’.

I hear it asked what a lex is, and what a plebiscitum is, and what a rogatio is, and what a privilegium is. Ateius Capito, a man most learned in public and private law, defines what a lex is with these very words: [...]

This seems to sketch an assumption by Gellius that an answer would be found in this qualified juristic source. But if Capito’s definition is true, then the various legislative documents that survive from the Republic are misnamed (10.20.3), which allows an excursus that requires Gellius to quote some Lucilius (10.20.4), after which we return to Capito and his rationale for plebiscitum (10.20.5-6) - and only then can Gellius explain, on his own authority, that it all comes down to rogatio because the people are rogatur their opinion (10.20.7). But, Gellius observes, the usage one encounters fails to respect any of this careful distinction (10.20.9).

Sallustius quoque proprietatum in verbis retinentissimus consuetudini conces­sit et privilegium, quod de Cn. Pompei reditu ferebatur, ‘legem’ appellavit. (10.20.9-10)

Even Sallust, the most observant of correctness in speech, yielded to custom and called the privilegium which was passed about the return of Cn. Pompey a lex.

There follows the relevant quotation from Sallust. Where does this whole discussion leave us? What is the answer to the question Gellius was hearing about the difference between the terms? This encounter with Capito’s grammatical authority thus casts juristic reading, or rather the knowledge to be gained therefrom, as a kind of bonus to the usual literary canon of Republican speeches and histories. It is neither incorrect nor irrelevant; indeed, it is both exceptionally authoritative and off the beaten path.

Although juristic interest in language is an obvious element of their prac­tice, Gellius makes a special effort to identify a jurist whose legal expertise is augmented by his researches into language.

Labeo Antistius iuris quidem civilis disciplinam principali studio exercuit et con­sulentibus de iure publice responsitavit; set ceterarum quoque bonarum artium non expers fuit et in grammaticam sese atque dialecticam litterasque antiquiores altioresque penetraverat Latinarumque vocum origines rationesque percalluerat eaque praecipue scientia ad enodandos plerosque iuris laqueos utebatur. sunt adeo libri post mortem eius editi, qui posteriores inscribuntur, quorum librorum tres continui, tricesimus octavus et tricesimus nonus et quadragesimus, pleni sunt id genus rerum ad enarrandam et inlustrandam linguam Latinam conducentium. praeterea in libris, quos ad Praetoris edictum scripsit, multa posuit pariter lepide atque argute reperta. sicuti hoc est [...] (13.10.1)

Antistius Labeo cultivated the discipline of the ius civile with especial zeal and gave responsa to those who consulted him about the ius publicum; but he was not without experience of indeed the rest of the fine arts, and he delved deeply into dialectic and older and more remote literature and became well versed in the origins and derivations of Latin words, and he applied this especially to the unknotting of many tough points of law. Indeed, there are books of his published after his death, which are called Posteriores, of which three continuous volumes - the thirty-eight, thirty-ninth and fortieth - are full of that kind of material that tends to explain and shed light on the Latin language. And in addition to that, he has included in his books that he wrote On The Praetorian Edict many things he has figured out finely and cleverly. Such a one is this: [...]

In this passage - itself longer than both etymologies it introduces (13.10.3-4) - Gellius gives a clear rationale for the wide and careful reading of juristic lit­erature, reminding the reader of the grammatical knowledge it can provide.^[30] Gellius honours Labeo in that sphere by here giving him a sibling role to Nigidius Figulus, a scholar himself the equal of Varro.^[31] Labeo was not only a legal expert, but made a special point of seeking grammatical knowledge he could apply productively to the law.

Similarly, the jurists’ necessary interest in the mos maiorum makes their generous intersection with ‘antiquarianism’ unsurprising. Gellius under­stands jurists to be a useful source of such knowledge about the customs and institutions of Romans and, as with grammar, he intentionally inserts them into the interrogation of such topics so as to highlight their utility in that regard.

Gellius cannot resist a good exemplum. He cherishes stories about impres­sive words and deeds, stories well told, and even competing versions of the same story.^[33] In Noctes 4.20 Gellius has gathered three examples of the traditional severity of the censors.^[34] The first two are introduced without source, but Gellius admits at the end that he has taken them from a speech of Scipio (4.20.10). For the third, he turns to the first-century CE jurist Masurius Sabinus (4.20.11).^[35] Here again he models explicitly the added wealth of knowledge that comes from reading not just the classic works of oratory but also volumes of juristic scholarship.

Thematic collections of material in juristic works can offer the backbone for a Gellian enquiry. The piece Gellius offers ‘on old-time frugality, and on ancient sumptuary laws’ (cap. 2.24) in fact uses the latter as a way of explor­ing the former; and the synthetic application of juristic reading to antiquar­ian enquiry is also framed by explicit gestures on Gellius’s part to his own habits of reading and writing, emphasising the performance for his reader of an intellectual activity. Montaigne-like, he opens by asserting a premise about the mos maiorum, and then offers an example to support it:

parsimonia apud veteres Romanos et victus atque cenarum tenuitas non domes­tica solum observatione ac disciplina, sed publica quoque animadversione leg­umque complurium sanctionibus custodita est. legi adeo nuper in Capitonis Atei coniectaneis senatus decretum vetus C. Fannio et M. Valerio Messala consulibus factum [...]. (2.24.1-2)

Among the ancient Romans, frugality and simpleness of nourishment and meals was observed not only by domestic observation and discipline but also by public censure and the restrictions of many laws. In fact, I recently read in the Miscellany of Ateius Capito that in the consulships of Gaius Fannius and Marcus Valerius Messala an old decree of the Senate was made that [...]

Capito has cited senatorial decrees, and Gellius picks up this research tech­nique, citing six more (2.24.3-14) which he may well have by way of Capito but which he re-articulates to suit his discussion, injecting a claim to addi­tional autopsy research (2.24.12). He also intersperses snippets of verse from his usual stable of archaic poetic readings: Lucilius on the Fannian law in 2.24.4-6, with a pause to engage rival commentators on the poet, and Laevius and Lucilius both on the Licinian law in 2.24.8-10. Not until the end does Ateius Capito re-emerge.

esse etiam dicit Capito Ateius edictum, divine Augusti an Tiberii Caesaris non satis commemini; quo edicto [...] (2.24.15)

Ateius Capito also says that there is an edict, whether it was of the deified Augustus or the deified Tiberius, I don’t rightly remember; by this edict [...]

Gellius creates a sense of collaboration with Capito, seeming to follow the general outline of his discussion but laying at least verbal claim to it and adding a by-now recognisable literary body of evidence to the legal.

Gellius hangs several discussions of Roman religious institutions on writers on pontifical law (not properly jurists, but operating analogously as far as the antiquarian aspects of their expertise go) as well as the occasional primary text, larding them often with these gestures of active research and judgment that foreground both the industry of his own approach and its viability as an option for his audience. Noctes 13.14 cites anonymous augural authors de Auspicis (13.14.1), M. Valerius Messala (13.14.5), and a juicy titbit of the recently-read grammarian ‘Elys’ (13.14.7: praetermittendum non putavi, quod non pridem ego in Elydis, grammatici veteris, commentario offendi [...])^[36] for the nature and history of the pomerium, all of which is framed as a matter of long and current debate (13.14.4). Messala continues to be the source for the next few pieces, offering a lengthy and well-sourced explana­tion of the magistratus minores (13.15) and their relationship to the consul as regards the holding of contiones (13.16), and Gellius lets the jurist speak for him:

quaeri igitur solet, qui sint magistratus minores. super hac re meis verbis nil opus fuit, quoniam liber M. Messalae auguris de auspiciis primus, cum hoc scriber­emus, forte adfuit. (13.15.2-3)

So, it is often asked who the magistratus minores are. On this subject there’s no need for my words, since the first book of M. Messala the augur On Auspices happens to be right here as I am writing this.

In a similar vein, on the flamen Dialis, Gellius offers pointers to some primary sources and then relates material limited, he reminds us, by his own powers of recollection (10.15.2: unde haec ferme sunt, quae commeminimus). That col­lection of facts is capped with language from the praetor’s edict (10.15.31) and Varro’s Divine Antiquities (10.15.32). Meanwhile, Noctes 7.7, on Acca Larentia, gathers antiqui annales (7.7.1), the lex Horatia (7.7.2), the Twelve Tables (7.7.3), and historians (7.7.6: Valerias Antias, inter alios); Masurius Sabinus (7.7.8), who has the last word, is quoted verbatim at length, and - we are told - has consulted actual historians himself on the matter (secutus quosdam historiae scriptores).

Perhaps the best example of the way Gellius stages an active and pro­ductive enquiry to which jurists contribute is 1.12, on the taking (cepi) of vestal virgins. Gellius starts by citing various authors on the topic, ‘of whom Antistius Labeo wrote most diligently’ (1.12.1). Then Ateius Capito is invoked (1.12.8), and again Capito seems to bring with him legal primary texts (here, an uncited lex Papia). At 1.12.13 Gellius pivots around the word cepi and pursues that linguistic question, involving, in short order, Fabius Pictor (1.12.14), the autobiography of Sulla (1.12.16), and a bon mot of Cato (1.12.17), culminating in quotation from Labeo ad XII Tabulas (1.12.18-19).

Discussions of old civic procedure likewise involve juristic writing. Gellius in 15.27 epitomises a survey of kinds of comitia from Book 1 of Laelius Felix’s ad Q. Mucium, which itself quotes Labeo. Varro’s monologue on senate procedure is challenged by something Ateius Capito says that Tubero said (14.7.12-13); but Capito and Varro are found in 14.8 to join ranks contra Junius on the praefect of the Latin festival. Another discussion of senatorial procedure at the end of the Republic seems like it will turn to Tullius Tiro for Cicero’s account second-hand, but Tiro is surpassed by Capito, who offers the same information alongside other material of interest (4.10.6-8).

Opinions on the civil law are persistently useful. Tackling the delinea­tion between one day and the next, Gellius turns at first to Varro’s Human Antiquities, considering Roman custom, Athenian custom, and what can be gleaned from the Roman taking of auspices at night (3.2.1-11). But Gellius then introduces, second-hand, an opinion of Q. Mucius concerning eman­cipation that allows Gellius to conclude Mucius’s opinion about the ques­tion at hand (3.2.12-13). Noctes 4.3 and 4.4, on the history of divorce and betrothal in Italy, starts out with what is memoriae traditum (4.3.1) but then turns to Servius Sulpicius de Dotibus, on which both pieces depend heavily (the latter being confirmed in its account by Neratius de Nuptiis, 4.4.4).^[37] Such writings also offer evidence of the general severity of the veteres Romani: Noctes 6.15 needs to relate Labeo’s observation on the cruelty of old-time judgments (6.15.1) to contextualise Q. Mucius’s opinion in Book 16 de lure Civili that improper use of a loaned item constitutes theft (6.15.2). Ateius Capito, meanwhile, offers us in his Commentarii de Iudiciis Publiciis a juicy exemplum of the plebeian aediles’ punishment of arrogant speech (10.16).

Juristic observations and facts are extricated thoroughly from whatever discussion they originally appeared in, and are interpreted and synthesised by Gellius with other material to yield observations about the mos maiorum.

Gellius demonstrates two ideas to his reader simultaneously: that he read juristic writing and it prompted a wider-ranging enquiry into some aspect of the mos maiorum, and that, pursuing an enquiry (for whatever reason) into some mos maiorum, Gellius turned to jurists and found they yielded thorough and learned material.

Perhaps the most interesting appearance of juristic reading in an anti­quarian or grammatical enquiry (and we should note that Gellius rarely distinguishes between the two except in refutation of the latter) comes on an occasion when it serves to elucidate a word the meaning of which is of critical programmatic importance to the Noctes Atticae itself. Noctes 4.1 is the much-discussed penus episode, a discussion of this word for provisions or a store of food that pits a philosopher against a grammarian. Favorinus casually exposes a boastful grammaticus who knows the various declensions and genders of the noun (4.1.1-4) but, when faced with a challenge to define it (4.1.5), sputters and flails about with examples but not definitions (4.7-14). Having shown up the man’s intellectual limitations, Favorinus shares various competing definitions he has found in juristic reading (4.15-18). After an explanation of Favorinus’s socratic mode (4.19), Gellius offers some further juristic writing (4.20-3) to emphasise that, indeed, jurists over the years have been unable to reach a consensus on the word’s meaning.

The scene offers an important paradigm for the Gellian exposure of a fraudulent professor, focusing on the grammaticus’s rudeness and elucidat­ing the exact nature of his intellectual flaws.^[38] There is the genital pun that is suspiciously aptly fitted to Favorinus’s infamous sexual ambiguity.^[39] And, perhaps most critically, there is its confrontation of the ‘axial’ term penus, which can only recall Gellius’s own preface.^[40] Near where our text of the Preface picks up, Gellius, describing his compositional method, explains that whenever he saw or heard something worthy of memory in either lan­guage, he made a note of it and stored these things up ‘as a reinforcement to memory, like a certain penus of letters’ (Pr. 2: quasi quoddam litterarum penus recondebam). The Preface goes on to emphasise that material in the Noctes is meant to be useful, a stimulation to further study, and also to invite careful scrutiny and reevaluation;^[41] so in 4.1 we are in the presence of something critically important to Gellius’s intellectual value set.

Favorinus’s speech here is Gellius’s; he too reads his Scaevola second­hand (4.1.16; cf. 3.2), and at the close of the speech Gellius immediately chimes in with more of the kinds of things Favorinus was quoting (4.1.20).^[42] It is not uncommon for Favorinus to serve as a Gellian mouthpiece.^[43] Here he preaches the Gellian gospel of juristic reading for better Latinity and better Romanitas; he concludes thus his report of what he has ‘heard’ Scaevola used to say:

‘haec ego,’ inquit ‘cum philosophiae me dedissem, non insuper tamen habui discere; quoniam civibus Romanis Latine loquentibus rem non suo vocabulo demonstrare non minus turpe est, quam hominem non suo nomine appellare’. (4.1.18)

‘Although I am a philosopher,’ he said, ‘nevertheless I did not think it beneath me to learn these things; for it is no less shameful for a Latin-speaking Roman citizen to indicate something by a word that is not its proper name than to call a man by something other than his name’.

Favorinus attaches to proper speech the same ethical value (turpe) that Gellius attached to knowledge of readily apparent medical phenomena (see section 2 above), with the nationalistic twist of Cicero’s Crassus.^[44]

But as we zero in on a meaning of penus, we also explore an important programmatic aspect of the Noctes. We have been pointed at the idea that the penus contains goods and materials set aside for household use (4.1.17-13). This makes Gellius’s claim that his work is a penus into a forceful confron­tation of traditional fiscal language around knowledge; his predecessor and regular target for attack as a knowledge-glutton, Pliny the Elder, assigns thesaurus the analogous role in his own Naturalis Historia, and in spite of that term’s long history as the name for a personal store of knowledge, Gellius, by offering the dynamic penus as contrast, renders the thesaurus a static hoard.^[45] The penus, full of things useful and productive, placed there for a purpose, goes some way to making Gellius’s unsystematic disorder an anti-encyclopedic claim for the idiosyncrasy and engagement of the intel­lectual lifestyle. And Favorinus’s explanation of what he learned from the jurists - that there is no agreed-on definition of the word, even among such wise men - makes the stocking of a penus a process of constant re-evaluation. Does this belong? Does that?

The pe nus episode is a clear example of knowledge (the meaning of penus) being put into action (to prove a point about grammatici) in service of a programmatic argument about actionable knowledge; and in all of this, it relies heavily on juristic reading. Gellius has given juristic reading and what it can offer those with an interest in language a starring role in the Noctes’s treatment of authority as well as its self-awareness about intellectual activity and standards.

The kinds of questions Gellius invokes jurists to answer and the other kinds of sources to which he compares them situate them strongly in the interlinked realms of antiquarian and grammar. One juristic source can provide various facts and contribute to the examination of divergent topics, as the same volume of Masurius Sabinus has the last word in both the penus episode of 4.1 and the comparison of morbus and vitium in 4.2.^[46] At Noctes 11.18, a survey of the punishment of theft throughout history, Gellius pauses in his (rare) exegesis of modern law to endorse a juristic work:^[47]

sed quod sit ‘oblatum’, quod ‘conceptum’ et pleraque alia ad eam rem ex egregiis veterum moribus accepta neque inutilia cognitu neque iniucunda, qui legere volet, inveniet Sabini librum, cui titulus est de furtis. in quo id quoque scriptum est, quod volgo inopinatum est [...] (11.18.12-13)

But anyone who wants to read about what oblatum is, and what conceptum is, and many other things along these lines excerpted from the outstanding mores of the ancients, neither useless nor unpleasant to learn, will look up the book of Sabinus’s which is titled de Furtis. Also written there is this thing, which is surprising to most people [...]

To set oneself and one’s speech and one’s learning apart from the vulgus is a recurring concern in the Noctes. The message from Gellius’s use of juristic reading is clear: the best jurists have been diligent scholars of language and custom, and so to read their works is to learn things about those topics that might not be available elsewhere. The primary documents of Roman law are also documents of law and custom and so worthy of attention in their own right.^[48] What one finds in reading about the history of the law, then, is clear depictions of the customs and language of the past.

4.