We have learned these categories from Scaevola. The ancients distinguished them differently. They presented the law in these terms: the obligation to conduct rites is imposed in three ways— by inheritance, or by receiving the greater part of the property, or, if the greater part of the property has been distributed in bequests, by receiving anything from that source. But let us follow the pontiff.
*
You notice that everything is based on one principle, namely the pontiffs’ wish that the rites should go with the deceased’s property, and their opinion that holidays and rites should be held by the same people. The Scaevolas add that, when an estate is divided, if no deductions have been stipulated
*
in the will, and the legatees have voluntarily received less than has been left to all the heirs together, they should not be obliged to perform the rites. In the case of a gift
*
they interpret the rule in a different way. Where a gift has been made by a person who is under the authority of the head of the family, that gift is valid if made with the approval of the latter. If it was made without his knowledge, it is not valid, unless he gives his retrospective approval.
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From these provisions many minor problems arise. But surely an intelligent person will easily see his way through them if he bears in mind the fundamental principle. Suppose, for instance, a man accepted
*
less to avoid the obligation of performing the rites, and later one of this man’s heirs collected on his own account the sum which had been waived by the man whose heir he was; and suppose that this sum, combined with the earlier sum acquired, came to no less than had been left to all the other heirs together, then the man who had collected the money would be bound to perform the rites on his own, without his co-heirs. The authorities have even provided that, where someone has received a larger bequest than he can accept without incurring religious duties, he should formally declare
*
through bronze and balance that the heirs’ obligations under the will have been discharged. In that situation the estate has been freed from liability to pay, and it is as though there had never been a legacy in the first place.
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Regarding this situation and many others, I would like to ask the Scaevolas, who were supreme pontiffs and, in my view, extremely shrewd men: why do you want to add a command of civil law to a knowledge of the law of the pontiffs? By the former you tend to cancel out the latter. Rites go with the deceased’s property by the authority of the pontiffs, not by any law. So if you were only pontiffs, the pontiffs’ authority would be upheld; but being at the same time great experts in civil law, you use this knowledge to circumvent that authority. It was the opinion of the supreme pontiffs Publius Scaevola and Tiberius Coruncanius, and of the others too, that those who received bequests of as large an amount as all the heirs put together should be obliged to perform the rites. I grasp the pontiffs’ ruling. What is added from the sphere of civil law? The section on the division of the estate has been carefully drafted to allow the deduction of one hundred
nummi;
*
thus a device was discovered for relieving the estate of the burden of performing the rites. As if the testator had not wished to forestall such a manœuvre, this legal expert, Mucius himself, who is also the supreme pontiff, advises the legatee to accept less than the sum left to all the heirs. They always used to say
*
that the legatee was bound to perform the rites, whatever he received. Once again, such men are freed from that obligation.
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This other thing has nothing to do with pontifical law, and is taken over directly from civil law—the device whereby they formally declare the heir free from his obligation to pay the legacy by means of bronze and balance. The situation is then the same as if the money had never been bequeathed at all, provided that the legatee has obtained a formal promise of payment in respect of the amount bequeathed, so that it is owed to him under the terms of a contract and not as the result of (a legacy) . . . [
In the lost part of the MS, Cicero completed his discussion of domestic rites and moved on to the obligations owed to the spirits of the dead. See the end of section 22 above
.]
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... a learned man, with whom Accius was on very friendly terms. But he [Decimus Brutus], I believe, followed the tradition that December was the last month of the year,
*
whereas to the ancients the last month was February. Moreover, he thought it was a sacred duty to offer the largest type of animal to the dead.
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So much religious awe surrounds a grave that it is considered sacrilege to inter anyone who does not belong to the clan or share its rites. That was the decision made by Aulus Torquatus in the case of the Popilian clan in the age of our forefathers. Nor would the days of purification
[denicales]
, whose name is derived from death
*
[nex]
because they are observed in connection with the dead, be counted as holidays along with the rest-days of the other gods had not our ancestors intended that those who had departed this life should be included among the gods. The law requires that these days of purification should be fitted into the religious calendar in such a way that they do not clash with other private or public holidays. The whole manner in which this pontifical law is put together manifests great reverence and veneration. I need not specify how long a family should remain in mourning, what details should be observed in offering gelded rams to the household god,
*
what procedure should be followed in burying the severed bone,
*
what obligations are involved in connection with the sow, or at what point in time the burial place becomes a sacred inviolable grave.
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I myself believe that the most ancient form of burial was that which, according to Xenophon,
*
was decreed by Cyrus for himself. The corpse is consigned to the earth, placed and laid out as if it were covered by its mother’s blanket. We are told that our own King Numa was buried in the same fashion in that grave which is not far from the altar of Fons; and we know that the Cornelian clan has employed this type of burial up to our own time. The remains of Gaius Marius, which were resting in peace, were scattered on the waters of the Anio on the instructions of the victorious Sulla. If he had been as wise as he was fierce, he would not have been incensed with such bitter hatred. I’m inclined to think it was for fear that this might happen to himself that Sulla was the first of the patrician Cornelii to instruct that his body be cremated.
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Writing of Africanus, Ennius asserts
*
‘Here lies he . . .’ Rightly, for those who are buried are said to lie. Yet their place of burial is not called a grave until the rites have been conducted and the pig has been slain.
*
The expression which has now come into general use in regard to all who have been buried (i.e. that they are ‘interred’) was then specifically used of those who had been covered by having earth thrown over them. Pontifical law testifies to that custom; for until a piece of earth is thrown upon the bone, the place where a body has been cremated has no element of sanctity. Once the earth has been thrown, the person is said to be interred, and the place is called a grave. At that point it becomes entitled to many religious rites. In the case of a man who has been killed on board ship and then thrown into the sea, Publius Mucius decided that the family was free from pollution because his bones did not remain above the earth. Yet the duty of sacrificing a sow was laid upon his heir, a three-day holiday was decreed, and a female pig had to be slaughtered by way of expiation. If the man had drowned, the same procedure would have been prescribed except for the expiatory offering and the holidays.
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ATTICUS:
I see what’s laid down in the pontiffs’ rules, but I wonder if there is anything in the laws.
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MARCUS:
There’s not much, admittedly, Titus; and I expect you know it already. Those regulations pertain not so much to religion as to the laws governing tombs. One of the laws of the Twelve Tables
*
says ‘no burial or cremation of a corpse shall take place in the city’, presumably because of the risk of fire.
*
The fact that it adds ‘or cremation’ indicates that one who is cremated is not buried, but only one who is interred.
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ATTICUS:
What about those eminent men who have been buried within the city since the Twelve Tables?
|
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MARCUS:
I suppose, Titus, there were people like Publicola and Tubertus, who before the law was passed were given this privilege on account of their valour
*
—a privilege legitimately retained by their descendants; or else there were men like Gaius Fabricius, who obtained this honour because they were exempted from the law on account of their valour. But just as the law forbids burial within the city, so it has been ruled by the college of pontiffs that it is illegal for a tomb to be built in a public place. You know the temple of Honour
*
outside the Colline gate. Tradition has it that there was once an altar on that site. When a metal plaque was discovered nearby (a plaque inscribed with the words ‘To Honour’), this led to the dedication of the temple. But since many burials were on that site, they were dug up; for the pontiffs decreed that a public place could not be made subject to the obligations associated with private religion.
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There are other regulations in the Twelve Tables for reducing expense and lamentation at funerals. These were in the main imported from the laws of Solon. The law says ‘Do no more than this:
*
do not smooth the pyre with a trowel’. You know the rest. As boys we learned the Twelve Tables as a compulsory recitation. No one learns them now. After limiting the expense, then, to three veils, a small purple tunic, and ten pipers, the law goes on to do away with lamentation: ‘Women shall not scratch their cheeks
*
or have a
lessus
on the occasion of a funeral.’ The old interpreters, Sextus Aelius and Lucius Acilius, said they were not sure what this meant, but suspected it was some kind of funeral garment. Lucius Aelius takes
lessus
to be a mournful wailing, as the word itself suggests.
*
I tend to believe this second explanation, since that is the very thing that Solon’s law forbids.
*
The rules are commendable, and in general they are as relevant to the rich as to the poor. It is entirely in keeping with nature that differences in fortune should be abolished in death.
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Other funeral customs, too, which tend to intensify grief were abolished by the Twelve Tables. ‘One shall not gather
*
the bones of a dead man in order to have a funeral later.’ The law makes an exception of a man who has died on active service or in a foreign land. The following rules are also in the laws: ‘Anointing by slaves is abolished, as is every kind of drinking bout.’
*
Such practices are rightly abolished; and they would not have been abolished had they not existed. ‘There is to be no expensive sprinkling (of wine On the pyre), no festoons,
*
no censers’—let us leave those requirements aside. The important point is that decorations awarded as a mark of honour do belong to the dead; for the law ordains that a chaplet earned by courage
*
should be placed on the man who earned it and on his father without incurring any penalty. I suppose it was because holding more than one funeral and preparing more than one bier for a single individual had become customary that these practices, too, were forbidden by law. The same law contained the clause ‘And no one shall add gold’. Notice how civilized an exception is made to this by another law: ‘But in the case of one whose teeth are fastened by gold,
*
a person shall not incur a penalty by burying or burning the corpse without extracting the gold.’ Notice at the same time that burial and cremation are held to be different things.
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There are, moreover, two laws about tombs. One protects 61 private houses, the other the tombs themselves. The former forbids any new pyre or mound to be constructed within sixty feet of another’s house without his consent, in view of the risk of serious fire. The other, by forbidding the ‘forum’ (i.e. the entrance chamber of a tomb) or the mound to be acquired by possession, safeguards the rights of tombs.
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These provisions, which we find in the Twelve Tables, are certainly in accordance with nature, which is the criterion of law. The rest are based on custom: that public notice should be given of a funeral if any entertainment is to take place, that the person in charge of the funeral should have the services of an attendant and lictors, that where the deceased has held public office a speech in his honour should be delivered at a public meeting, and this encomium should be followed by a song accompanied by a piper. Such a song is called a
nenia
, a term also applied to mournful songs in Greece.
*
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ATTICUS:
I am glad that our laws are being made to conform to nature, and quite delighted by the good sense of our ancestors. But I don’t find any limit placed on the cost of tombs,
*
as there is in the case of other expenditure.
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MARCUS:
Yes, you’re right. I suppose you have seen in the case of Gaius Figulus’ tomb the lengths to which such extravagance has now gone. There was once very little desire for such ostentation, as is shown by many examples from the time of our forefathers. The interpreters of our law, in regard to the clause in which they are instructed to eliminate expense and lamentation from the rites of the dead, are supposed to understand this to mean primarily that the magnificence of tombs is to be reduced. Such measures have not been overlooked by the wisest lawgivers. In Athens 63 too, they say, the present burial law goes back to Cecrops their first king.
*
When the next of kin had performed the ritual, and the body had been covered with earth, seeds of corn were sown, so that while the bosom and lap of the mother, as it were, might be given to the dead, the soil might be purified by the corn and returned to the living. A feast then took place, attended by the relatives wearing garlands. In their presence a speech was delivered in praise of the deceased (but it had to be true,
*
for it was considered blasphemous to utter falsehoods). That concluded the ceremony. The man of Phalerum
*
writes that later, when funerals and mourning became extravagant, such excesses were forbidden by one of Solon’s laws—a law which our Committee of Ten included almost verbatim in the tenth table. The clause about the three veils
*
and most of those provisions are taken from Solon. What he said about lamentations has been translated literally: ‘Women shall not scratch their cheeks or have a
lessus
on the occasion of a funeral.’
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