IV THE LITERATURE OF THE ARCHAIC PERIOD: ITS FORMS1 AND TRANSMISSION

(i)

1. In this period literary activity in the sphere of sacral law consisted solely in the drawing up of records for the priestly archives, in the form of abstract rules, ceremonial instructions for the priesthood, formularies of sacral acts, and responsa.^[42] ^{^[43] ^[44]· The archives must also have contained minutes of meetings, official diaries, and temple statutes.³ As to the exact nature of these books and records, our evidence, though it frequently mentions libri and commentarii sacerdotum,^[45] ^{^[46] permits of no safe inference; all attempts to reconstruct them have proved fruitless.³}}

Nothing of all this was published in our period. The only direct information comes from inscriptions preserving our two oldest sylvan statutes (leges lucorum) ;^[47] for the rest, our knowledge depends on statements dating from the end of the Republic. These, however, carry us back indirectly to the archaic period, for, though it was formerly believed that the Gallic fire of 390 or 387 b.c. destroyed all the existing priestly records, modern excavations have shown that the God-fearing Celts spared the temples as far as possible. Thus the temple of Saturn, containing the State archives,^[48] remained intact; on the other hand, the Regia, in which the pontifical and augural archives seem to have been kept,^[49] was burnt to the ground.^[50] But in those simple unlettered days human memory was more retentive than to-day, so that the records compiled in the fourth century, in order to replace the lost documents, would not differ essentially from the originals. But even the restored records have not come down to us in their original form. We have only later redactions, in which the language, if no more, has been altered.

Still, the substance of our tradition is in all essentials ancient and belongs to the third century.¹

3. We defer discussion of the so-called leges regiae.¹ (a) Little enough is preserved of the ceremonial instructions. Festus, v. nectere (Lindsay, 160): ‘ “Nectere” ligare significat... quin etiam in commentario sacrorum usurpatur hoc modo: “Pontifex minor ex stramentis napuras nectito”, id est funiculos facito, quibus sues adnectantur’ (The pontifex minor shall twist ropes of straw, that is he shall make cords with which to bind the swine).³ Varro, De 1.1. 6. 21: 'Opeconsiva dies ab dea Ope Consiva, cuius in regia sacrarium,... actum, ut eo praeter virgines Vestales et sacerdotem publicum introeat nemo. “Is cum eat, suffibulum ut habeat” scriptum.’⁴ Further, a longish fragment from Fabius Pictor giving the taboos for the fiamen Dialis* looks as if it had been copied with only slight alterations from a priestly ceremonial. Some compensation for the lack of Roman evidence is afforded by the Umbrian ceremonial instructions (the Gubbio tablets—Tabulae Iguvinae),⁶ from which one can form an idea of the nature and extent of their missing Roman parallels, (b) Examples of old sacral formulae (mostly late in their language): above all the formulae of the Fetiales."¹ (1) Dispatch of the Fetialis: Liv. 1. 24. 4-6 (slight modifications by Livy, the official form having been republican, as Liv. 1. 32.6 shows). (2) Foedus·. Liv. 1. 24. 6 f. Festus (Paul.), s.v. (Lindsay, 74)? (3) Clarigatio and declaration of war: Liv. 1. 32. 6 f. Also old in substance are the formulae for evocatio (Macrob. Sat. 3. 9. 7; Liv. 5. 21. 3. 5),’ devotio (Liv. 8.

9. 8),¹⁰ consecratio of hostile land (Macrob. Sat. 3. 9. 10),¹¹ votum of ver sacrum (Liv. 22. 10. 2 f). (c) The sylvan statutes of Lucera and Spoleto (Bruns 104 a and b, ILS 4912 and 4911)¹² certainly belong to the third century, (d) Sacerdotal responsa were used by the later historians and antiquarians and in this way have reached us in part, though not always in their original forms.

(u)

1. The literature of private law, similarly, consisted solely of records made for the pontifical archives—responsa, formulae

’ On the need to distinguish here between substance and form: Norden, Aus altrom. Priesterbuchern, 6, 9, 48 n., 56, 63. ² Below, p. 89.

³ Wissowa, 191. ⁴ Wissowa, 203.

⁵ Gell. 10. 15.1 f.; Bremer, i. 10; Seckel-Kubler, i. 2.

⁶ Above, p. 15.

’ The literature up to 1898 is given by Baviera, art. ‘Feziali’, in Enc. Giur. Ital.

⁸ Wissowa, 552, is not satisfactory.

⁹ Wissowa, 383, and (with Hittite parallels) Wohleb, Arch. f. Religionswissensch.

xxv (1927), 206. ¹⁰ Wissowa, 384; Norden, lx. 48 n.

¹¹ Wissowa, 384, n. 6.

¹² Bucheler, Rhein. Mus. xxxv (1880), 627 ff.; Stolz-Schmalz, 323; FIRA III, 223 f. and instructions for the performance of legal acts. Though the oldest records perished in the Gallic fire,¹ the reconstruction of the formulae from memory can have presented no difficulties. But of the reconstructed records we have no direct information; they reach us, not entirely in their original form, through later juristic literature.

2. In all essentials the formulae discussed above^[51] ^{^[52] are ancient; for example, the words primam postremamque of a solutio -per aes et libram reported by Gaius (3. 174) recall the prima postrema of the ancient formula of the Fetiales preserved by Livy (1. 24. 7). Also essentially ancient are the formulae of legis actiones preserved by Cicero (p. Mur. 12. 26) and Gaius (4. 13 ff.), except that the legis actio Sacramento is not in its original form, owing to the abandonment of the oath.}

3. It was naturally from the pontifical records that, directly or indirectly, the earliest publications of our period were composed. Cn. Flavius’ book of formulae {ius Flavianum) has already been discussed.^[53] According to a statement of Pomponius,^[54] which there is no reason to distrust,^[55] a fuller collection was published by Sex.

Aelius Paetus Catus^[56] {ius Aelianum). This jurist also published the first legal work which was more than a bare collection of formulae, his tripertita {scil. commentaria) ^[57] containing, says Pomponius^[58] (our sole authority), ‘the elements of the law’,^[59] that is, the text of the Twelve Tables, the interpretation and the procedural formulae. It was thus the first commentary on the Twelve Tables. Probably each paragraph of the Tables was followed by its interpretation and then by the relevant formula, if any.^[60] ^{^[61] The book has not come down to us even fragmentarily, but it was in use till the end of the Republic.¹¹ Three other books attributed to Aelius, of which we have not even the titles, were, so Pomponius says,¹ regarded by many as apocryphal. Aelius stands at the end of the archaic and the beginning of the Hellenistic period, and the historian may well be in doubt to which of the two periods to assign him. That he should have written a juristic book at all is an indication of Hellenistic literary impulse, but for the rest he was clearly a lawyer of the old school. He was averse from speculation, and was wont to quote the verse of his contemporary Ennius: ‘Greek science ? Yes, but only a dash of it, for on the whole I dislike its taste.’ This comes from Cicero,® who obviously got it from an excellent source, probably from his master in the law, Q. Mucius Scaevola, the augur, a ‘jolly old boy’³ given to anecdotes. Thus Aelius should be reckoned rather among the last of the old school than among the forerunners of Q. Mucius Scaevola, the fontifex.
(iii)
1. What has been said of the literature of sacral law applies to that of public: the archaic period was content to make entries in the archives and published nothing. Our knowledge of the contents of the archives is derived solely from writings of later times, which of course adapted their models, at least linguistically.
2. Of special value are three pieces which Varro⁴ probably took direct from the archives. The first comes from the tabulae censoriae, being an extract from a programme for the taking of the census;⁵ since it assumes the existence of the praetor peregrinus, it must be later than 242 B.c. The second, a programme for summoning the comitia centuriata, is taken from the consular commentarii. It must be old, for it still describes the consuls as indices? and Varro mentions a more modem version. The third, containing a programme for bringing a
¹ D. (1. 2) 2.38: ‘ eiusdem esse tres alii libri referuntur, quos tamen quidam negant eiusdem esse.’
³ De re pub. 18. 30: ‘... qui “egregie cordatus” et “catus” fuit et ab Ennio dictus est, non quod ea quaerebat, quae nunquam inveniret (!), sed quod ea respondebat, quae eos, qui quaesissent, et cura et negotio solverent... magis eum delectabat Neoptolemus Ennii, qui se ait philosophari velle sed paucis; nam omnino haud placere, quod si studia Graecorum vos tanto opere delectant, sunt alia liberiora et fusa latius’ (Laelius is referring to jurisprudence) ‘quae vel ad usum vitae vel etiam ad ipsam rem publicam conferre possumus.’ See Ennius, Seen. ed. Vahlen, p. 191; ed. Warmington (Loeb), p. 368; Ann. ed. Vahlen, p. 59; ed. Warmington, p. 120;
E. M. Steuart, The Annals of Ennius (1925), 186; catus means acutus: Varro, L.L. y. 46.
³ ioculaior senex·. Cic. Ad Att. 4. 16. 3. On the old augur as a raconteur·. Cic. De am. 1. r f.
⁴ De 1.1. 6. 86-7, 88-9, 90-5. Bruns, ii. 58-60; Premerstein, PW iv. 733, 747.
^s Mommsen, Staatsr. ii. 361, n. 2.
⁶ Mommsen, Staatsr. ii. 76 ff.
literature: forms and transmission 37
capital charge,¹ is derived from a commentarius anquisitionis;² it too assumes the second praetor and shows other signs of being a revision. And we have many other formulae which must date from the third century or even earlier, for example the formula of deditio given by Liv.
I. 38, the military oath given by Gell. 16. 4. 2-4, and the like.³
1 Mommsen, Strafr. 164; Brecht, Z 59 (1939) 299.
2 Cf. Latte, TAPhA Ixvii (1936), 27.
3 We defer the description of the scheme and style of the leges and senatus consulta till we come to the next period, for which therg is abundant and trustworthy evidence (below, p. 87).}

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Source: Schulz F.. History of Roman legal science. Oxford University Press,1946. — 375 p.. 1946

IV THE LITERATURE OF THE ARCHAIC PERIOD: ITS FORMS1 AND TRANSMISSION

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