and assisted the Rex in the administration of the _ius divinum_. It is
legitimate to do this, but as a matter of fact we do not know for
certain what was the origin of the college itself, or of its mysterious
name. In the period we have now reached we come, however, upon a
striking fact, which is luckily easy to interpret; the king's house, the
_Regia_, has become the office of the head of the college, the pontifex
maximus, and also the meeting-place of the college for business.[557]
Obviously this head, whether or no he existed during the kingly period,
has stepped into the place of the Rex in the control of the _ius
divinum_. Again, we know that in the third century B.C., when written
history begins, the pontifices and their head had reached a very high
level of power, as we shall presently see more in detail; the process of
the growth of this power must therefore lie in the two preceding
centuries, during which Rome was slowly attaining that paramount
position in Italy in which we find her at the time of the Punic wars.
Thirdly, we know that in that third century B.C. the college was laid
open to plebeians as well as to members of the old patrician gentes, and
that one of the most famous of all its many distinguished heads was not
only not a patrician, but a Latin from Cameria, Ti. Coruncanius. Putting
these three facts together we can divine in outline the history of the
pontifices during these two centuries. With the instinct for order and
organisation that never failed them, the Romans have constructed a
_permanent_ power to take charge of their _ius divinum_, _i.e._ all
their relations to the deities with whom they must maintain a _pax_; the
circumstances of their career during two centuries have exalted this
power to an extraordinary degree of influence, direct and indirect,
internal and external; and, lastly, in a period which saw the gradual
amalgamation into a unified whole of privileged and unprivileged,
_patres_ and _plebs_, they have with wonderful wisdom thrown open to all
citizens the administration of that _ius_ which was essential to the
welfare of the united community. These are indisputable facts; and they
are thoroughly characteristic of the practical wisdom of the Roman
people in that early age.
In order to understand how the pontifices attained their great position,
the one thing needful is to examine the nature of their work. This I
propose to do next, and then to attempt to sum up the result of their
activity on the Roman religious system.
It is impossible to exaggerate the importance of the college in the
early history of Roman law; and for us in particular that importance
lies in the fact that they were the sole depositaries of the religious
law in the period during which the civil law was being slowly
disentangled from it. If we look at the so-called _leges regiae_, which
are probably the oldest rules of law that have come down to us (though
they may have been made into a collection as late as the very end of the
Republic),[558] we see at once that they belong to the _ius divinum_;
and there is little doubt that they were extracted from those books of
the pontifices which I shall have to explain later on.[559] In other
words, it is the maintenance of the _pax deorum_ that they are chiefly
concerned with; the crime of the citizen is a violation of that _pax_,
and the deity most concerned will punish the community unless some
expiatory step is taken to re-establish the right relation between the
human and divine inhabitants of the city. "Pellex aram Iunonis ne
tangito; si tanget, Iunoni crinibus demissis agnum feminam caedito." "Si
parentem puer verberit, ast olle plorassit, puer divis parentum sacer
esto."[560] The harlot who touches the altar of Juno, the deity of
married women, breaks the _pax_ with that deity, and she must offer a
piacular sacrifice to renew it; the son who strikes a parent is made
over as the property of the _divi parentum_, _i.e._ those of the whole
community,[561] the peaceful relation with whom his act has imperilled.
With such rules as these the civil magistrate of the republic can have
had nothing to do; they belong to an older period of thought and of
government, and survived in the books of the college which under the
republic continued to administer the _ius divinum_; for these rules
doubtless continued to exist side by side with the civil law as it
gradually developed itself, and the necessary modes of expiation were
known to the pontifices only. Roman society was indeed so deeply
penetrated for many ages with the idea of _religio_--the dread of
violating the _pax deorum_,--that the idea of law as a matter of the
relation of man to man, as "the interference of the State in the
passions and interests of humanity only," must have gained ground by
very slow degrees. This primitive religious law then, _i.e._ the
regulation of the proper steps to be taken to avoid a breach of the _pax
deorum_, was entirely in the hands of the religious authorities, the Rex
at first and then the pontifices, as the only experts who could know the
secrets of the _ius divinum_; and from their decisions and prescriptions
there could be no appeal, simply because there was no individual or body
in the State to whom an appeal was conceivable. But after the rule of
the Etruscan kings, with all its disturbing influences, and after the
revolution which got rid of them, there must have been an age of new
ideas and increased mental activity, and also of increasing social
complexity, the signs of which in the way of trade and industry we have
already found in certain facts of religious history. In the domain of
law this meant new problems, new difficulties; and these were met in the
middle of the fifth century B.C., if the received chronology is to be
accepted,[562] by the publication of the XII. Tables.
In order to get some idea of the work of the pontifices at this time,
let us consider one or two of these difficulties and problems.
Within the family every act, every relation, was matter of religion; the
_numina_ had to be considered in regard to it. The end and aim, then as
throughout Roman history, was the maintenance of the _sacra_ of the
family, without which it could not be conceived as existing--the due
worship of its deities, and the religious care of its dead. Take
marriage as an example: "the entry of a bride into the household--of one
who as yet had no lot in the family life--meant some straining of the
relation between the divine and human members,"[563] and the human part
of the family must be assured that the divine part is willing to accept
her before the step can be regarded as complete. She has to enter the
family in such a way as to share in its _sacra_; and if _confarreatio_
was (as we may believe) the oldest form of patrician marriage,[564] the
bride was subjected to a ceremony which was plainly of a sacramental
character--the sacred cake of _far_ being partaken of by both bride and
bridegroom in the presence of the highest religious authority of the
State. In the simplest form of society there would be no call for
further priestly interference in marriage; but in a society growing more
numerous and complex, exceptions, abnormal conditions begin to show
themselves, and new problems arise, which must be solved by new
expedients, prescriptions, permissions, devices, or fictions. For these
the religious authorities are solely responsible; for what is a matter
of religious interest to the family is also matter of religious interest
to the State, simply because the State is composed of families in the
same sense as the human body is composed of cellular tissue. All this,
we believe, was once the work of the Rex, perhaps with the college of
pontifices to help him; when the kingship disappeared it became the work
of that college solely, with the pontifex maximus as the chief
authority.
So, too, in all other questions which concerned the maintenance of the
family, and especially in regard to the devolution of property. I am
here only illustrating the way in which the pontifical college acquired
their paramount influence by having a quantity of new and difficult work
forced upon them, and it is not part of my plan to explain the early
history of adoptions and wills; but I may give a single concrete
illustration for the benefit of those who are not versed in Roman law.
It must constantly have happened, in that disturbed period which brought
the kingship to an end, that by death or capture in war a family was
left without male heirs. Daughters could not take their place, because
the _sacra_ of a family could not be maintained by daughters, who would,
in the natural order of things, be sooner or later married and so become
members of other families. Hence the expedient was adopted of making a
_filius familias_ of another family a member of your own; and this, like
marriage, involved a straining of the relations between the human and
divine members of your family, and was thus a matter for the religious
authorities to contrive in such a manner as to preserve the _pax_
between them. The difficulty was overcome by the practical wisdom of the
pontifical college, which held a solemn inquiry into the case before
submitting it to the people in specially summoned assembly (_comitia
calata_);[565] and thus the new _filius familias_ was enabled not only
to renounce his own _sacra_ (_detestatio sacrorum_), but to pass into
the guardianship of another set of _sacra_, without incurring the anger
of the _numina_ concerned with the welfare of either.
Such difficult matters as these, and many more connected directly or
indirectly with the devolution of property, such as the guardianship of
women and of the incapable, the power to dispose of property otherwise
than by the original rules of succession, the law of burial and the care
of the dead,--all these, at the time of which I am speaking, must have
been among the secrets of the pontifices; and we can also suspect,
though without being sure of our facts, that the great increase of the
importance of the _plebs_ under the Etruscan dynasty offered further
opportunities for the growth alike of the work and influence of the
college.[566] Above all, we must remember that this work was done in
secret, that the mysteries of adjustment were unknown to the people when
once they had passed out of the ken of family and gens, and that there
could have been no appeal from the pontifices to any other body. Nay,
more, we must also bear in mind that this body of religious experts was
_self-electing_. Until the lex Domitia of 104 B.C. both pontifices and
augurs filled up their own colleges with persons whom they believed
qualified both by knowledge and disposition. Thus it would seem that
there was every chance that in that early Rome, where neither in family
nor State could anything be undertaken without some reference to the
religious authority, where the _pax deorum_ was the one essential object
of public and private life, a power might be developed apt one day not
only to petrify religion and stultify its worshippers, but thereby also
to cramp the energies of the community, acting as an obstacle to its
development within its walls and without. Had Roman law remained
entirely in the hands of this self-electing college, one of two things
must have happened: either that college would have become purely secular
in character, or the wonderful legal system that we still enjoy would
never have had space to grow up. But this was not to be; with the
publication of the XII. Tables a new era opens.
If we reject, as we conscientiously may, the latest attempts of
criticism to post-date the drawing up of the Tables,[567] and in fact to
destroy their historical value for us, what is their significance for
our present purpose? It is simply that in the middle of the fifth
century B.C. the pontifices lost a monopoly--ceased to be the sole
depositaries of the rules of law affecting the _pax deorum_, and that
new rules are being set down in writing, on the basis of old custom,
which more especially affect the relations between the human citizens.
For both the _ius divinum_ and the _ius civile_ are to be found in this
collection, but the latter is beginning to assert its independence. I
think we may say, without much hesitation, that this event, however
doubtful its traditional details, did actually save Rome from either of
the two consequences to which I alluded just now. The constitution
developed itself on lay and not on ecclesiastical lines, leaving the
pontifices other work to do, and Roman civil law was eventually able to
free itself from the trammels of the _ius divinum_.
But for another century the college still found abundant legal work to
do, for it was not likely that at Rome, the most conservative of all
city-states, it could be quickly set aside, or that the old ideas of law
could so speedily disappear. What then was this work?
When rules of civil law were written down, it was still necessary to
deal with them in two ways which were open to the pontifices, and indeed
at this early time to no one else. First, it was necessary to make their
provisions effectual by prescribing in each case the proper method of
procedure (_actio_). Now it is most important to grasp the fact that
procedure in the _ius civile_ was originally of precisely the same
nature as procedure in the _ius divinum_, and that precisely the same
rigid exactness is indispensable in both. Action and formula in civil
law belong to the same class of practices as sacrifice and prayer in
religious law, and spring from the same mental soil. Thus, for example,
the most familiar case of action and formula in civil law, the
_sacramentum_, was, as the name proves, a piece of religious procedure,
_i.e._ the deposition in a sacred spot of a sum of money which the
suitor in the case would forfeit if he lost it, together with the
utterance of a certain formula of words which must be correctly spoken.
If we choose to go back so far, we may even see in this combination of
formularised act and speech a survival of magical or quasi-magical
belief;[568] but this is matter rather for the anthropologist than the
historian of religion. The point for us at this moment is that these
acts and formulae (_legis actiones_, as they are known in Roman law)
could not suddenly or rapidly pass out of the hands of that body of
skilled experts which had so long been in sole possession of them; the
publication of old and new rules of law in the XII. Tables made no
immediate difference in this respect. The consuls, the new civil
executive, were still in no sense necessarily skilled in such matters,
and were without the prestige of the former executive, the Rex; they
were also doubtless busy with other work, especially in the field.
Nothing could be more natural than that the pontifices should continue
to provide the procedure for the now written law, just as they had
formerly supplied it for the unwritten.[569]
So, too, with the _interpretation_ of the Tables; this was the second
part of the work that still remained to them. Writing was in that age a
mystery to the mass of the population, and doubtless the idea was still
in their minds that there was something supernatural about it. Writing,
in fact, as well as formularised action and speech, may have had the
flavour of magic about it. However that may be, there can be no doubt
that the interpretation of a legal document was in those days a much
more serious, if a less arduous business, than it is now. Here again,
then, it seems perfectly natural that there should be no rapid or
violent change in the _personnel_ of those deemed capable of such
interpretation; there was no other body of experts capable of the work;
the pontifices remained _iuris-consulti_, _i.e._ interpreters and
advisers, and in the course of two and a half centuries accumulated an
amount of material that formed a basis for the first published system of
Roman law, the _ius Aelianum_ or _tripartita_ of 200 B.C. It is most
useful to remember, as proof of this, that one member of the college was
selected every year for the special purpose of helping the people with
advice in matters of civil law, both in regard to interpretation and the
choice of _legis actiones_; so we are expressly told by Pomponius, who
adds that this practice continued for about a hundred years after the
publication of the Tables, _i.e._ till the election of the first praetor
in 366.[570] After that date the _ius civile_ emerges more distinctly
from the old body of law, which included also the _ius divinum_, and its
interpretation was no longer a matter purely for religious experts. In
337 we hear of the first _plebeian_ praetor--truly a momentous event,
showing that the old profound belief is dying out, which demanded a
religious and patrician qualification for all legal work. And at the end
of the fourth century comes the publication, not only of the _legis
actiones_, but of the Fasti, _i.e._ even of that most vital part of the
_ius divinum_, which distinguished the times and seasons belonging to
the numina from those belonging to the human citizens.[571] One might
well suppose that the power of the pontifices was on the wane, for they
had lost another monopoly.
And indeed in one sense this was so. It must have been so, for as the
range of the State's activity increased, the sphere of religious
influence became relatively less. Marriage, for example, though it still
needed a religious ceremony in common opinion, ceased to need it in the
eye of the law--a change which is familiar to us in our own age. The
pontifex was no longer indispensable to the suitor at law, nor to the
citizen who wished to know on what day he might proceed with his suit.
The college undoubtedly ceased to be the powerful secretly-acting body
in whose hands was the entire _religio_ of the citizen, _i.e._ the
decision of all points on which he might feel the old anxious
nervousness about the good-will of the gods. But now we mark a change
which gave the old institution new life and new work. At the end of this
fourth century (300 B.C.) it was thrown open to plebeians by the lex
Ogulnia; and, as I have already mentioned, within a few years we come
upon a plebeian pontifex maximus, who was not even a Roman by birth, yet
one of the most famous in the whole series of the holders of that great
office. Most probably, too, the numbers of the members have already been
increased from five to nine, of whom five must be plebeian. These
members begin to be found holding also civil magistracies, and the
pontifex maximus was often a consul of the year. It is quite plain then
that this priestly office is becoming more and more secularised; it
expands with the new order of things instead of shrinking into itself.
It leaves religion, in the proper sense of the word, far behind. The
sacrificing priests, the flamines, etc., who were the humbler members in
a technical sense of the same college, go on with their proper and
strictly religious work under the supervision of the pontifex
maximus,[572] but they steadily become of less importance as the greater
members become secularised in their functions and their ambitions. And
these greater members, instead of becoming stranded on a barren shore of
antique religion, boldly venture into a new sphere of human life, and
add definite secular work to their old religious functions.
The events of the latter part of the fourth century B.C., culminating in
the publication of the Fasti and the _legis actiones_, probably meant
much more for the Romans than we can divine by the uncertain light of
historical imagination. It is the age of expansion, internal and
external; the old patrician exclusive rule was gone beyond recall; the
plebeians had forced their way into every department of government,
including at last even the great religious _collegia_; the old Latin
league had been broken up, and the Latin cities organised in various new
relations to Rome, each one being connected with the suzerain city by a
separate treaty, sealed with religious sanctions. After the Samnite wars
and the struggle with Pyrrhus, further organisation was necessary, and
there arose by degrees a loose system of union which we are accustomed
to call the Italian confederation. The adaptation of all these new
conditions to the existing order of things at Rome was the work of the
senate and magistrates so far as it concerned human beings only; but so
far as it affected the relations of the divine inhabitants of the
various communities it must have been the work of the pontifices. That
work is indeed almost entirely hidden from us, for Livy's books of this
period are lost, and Livy is the only historian who has preserved for us
in any substance the religious side of Rome's public life. But what we
have learnt in the course of these lectures will have made it plain that
no political changes could take place without involving religious
adaptation, and also that the only body qualified to undertake such
adaptation was the pontifical college.
We may thus be quite certain, that though they had lost their old
monopoly of religious knowledge, the pontifices found plenty of fresh
work to do in this period. It is my belief that they now became more
active than they ever had been. From this time, for example, we may
almost certainly date their literary or quasi-literary activity; I mean
the practice of recording the leading events of each year, which may
have had its origin a century earlier, with the eclipse of the sun in or
about 404 B.C.[573] I should guess that after the admission of the
plebeians to the college in 300 B.C., the new members put fresh life and
vigour into the old work, and developed it in various directions. It is
in this period that I am inclined to attribute to the college that zeal
for compiling and perhaps inventing religious formulae of all kinds,
which took shape in the _libri_ or _commentarii pontificum_, and
embodied that strange manual of the methods of addressing deities, which
we know as _Indigitamenta_. And again, in the skilled work of the
admission of new deities and the dedication of their temples, occasioned
by the new organisation and condition of Italy, and lastly, in the
supervision of the proper methods of expiating _prodigia_, which (though
the habit is doubtless an old one) began henceforward to be reported to
the Senate from all parts of the ager Romanus and even beyond, their
meetings in the Regia must have been fully occupied. Our loss is great
indeed in the total want of detail about the life and character of the
great plebeian pontifex maximus of the first half of the third century
B.C., that Titus Coruncanius whom I have already mentioned as being a
Latin by birth; for Cicero declares that the _commentarii_ of the
college showed him as a man of the greatest ability,[574] whose
reputation remained for ages as one who was ready with wise counsel in
matters both public and private. Coupling him with two other memorable
holders of the office, he says that "et in senatu et apud populum et in
causis amicorum et domi et militiae consilium suum fidemque
praestabant."[575] This passage should be remembered as a valuable
illustration of the way in which the college and its head were becoming
more and more occupied with secular business; it is worth noting, too,
that this great man was himself consul in the year 280, and took a
useful part in the first campaign against Pyrrhus.[576] Yet Cicero makes
it plain that he looked on him also as a great figure in religious
matters--nay, even as a man whom the gods loved.[577]