CHAPTER X

THE SOURCES FOR THE TRADITION OF EARLY ROMAN HISTORY

I.

EARLY MONUMENTS

IT is impossible to hope that fresh discoveries will make any important addition to our knowledge of the early history of Rome, so far as that depends on contemporary documents of which the original text is preserved. The only monument of this kind which has been brought to light is the truncated pillar found by Comm. Boni beneath the lava pavement in the Comitium which is supposed to represent the lapis niger marking the site of the tomb of Romulus. This is too fragmentary to permit of restoration, and there is no sufficient evidence for determining its date; but from the fact that the variety of tufa of which it is made is found at Veii it has been argued that it belongs to the period during which Etruscans ruled in Rome, in which case the rex whom it clearly names may have been one of the Tarquins. It seems to refer to some religious observance, and we may recall the entry in the Roman calendar quando rex comitiavit, fas. But we do not need its evidence to prove that there were reges in early Rome; and it proves nothing more.

It is true that we possess reproductions, more or less faithful and precise, of certain early documents, handed down to us by literary tradition. A collection of laws ascribed to the Kings (leges regiae) relating mainly to religion or to crimes regarded in their religious aspect was current under the name of ius Papirianum, which was explained by the supposition that a member of the gens Papiriai the first pontifex maximus of the free state, had brought them together. The code of the Twelve Tables, to be discussed presently, was also preserved by tradition, and, as Cicero tells us, taught in the school up to his own childhood; and we can reconstruct it in part from the quotations. We also have translations (or paraphrases) of a treaty between Rome and Carthage ascribed by Polybius to the first year of the Republic, and of a treaty between Rome and the Latin league inscribed on a bronze tablet in the Forum, and dated by the name of Spurius Cassius, believed to have been consul in 493 b.c. But the dates of both these documents are matter of controversy.

In 36 b.c. the Regia, i.e., the office of the pontifex maximus, was rebuilt in marble at the instance of Augustus with the spoils gained in Spain by his general Cn. Domitius Calvinus, and on its walls were engraved two lists. The first gave the names of the chief magistrates of the state from the beginning of the Republic, whether consuls, decemvirs, or tribuni militum consulari potestate, who gave their names to their year of office, as well as those of the dictators and their masters of the horse, and also of the censors, with the number of the lustrum which they performed. The other contained the names of all who had triumphed, with the occasion and the date, beginning with ‘Romulus son of Mars,’ who celebrated a triumph over the Caeninenses on the first of March. It is not certain when these lists were engraved; the names of Mark Antony and of his grandfather have been erased in the list of magistrates, which must therefore have been made before his defeat at Actium. The list was continued down to A.D. 12; the list of triumphs (in which the names of Antony and his brother were not erased) goes down to 19 BC. Needless to say, these documents are compilations, made almost certainly by order of Augustus, and, in the form in which we have them, they have no higher claim to credibility than literary works of the same period such as that of Livy. The problem of their sources is a literary problem, and there is no ground for regarding them as a faithful reproduction of an official record kept on behalf of the Roman state. We shall find that they agree with the less trustworthy of the chronological traditions preserved in literary sources.

II.

EXTANT HISTORIANS

The narrative of the early history of Rome is only preserved for us in a continuous form in two extant works, both written under Augustus, the Histories of Livy and the Roman Antiquities of Dionysius of Halicarnassus, and neither of these is complete. Livy, born at Patavium (Padua) in 59 BC, seems to have conceived the plan of his work about the year 27 BC, in which year Augustus ‘restored the Republic’ and found in the historian a loyal believer in the sincerity of his intentions and a fervent sympathizer in his effort to recreate the ancient Roman virtues. When complete, the work carried the story down from the landing of Aeneas to 9 BC in 142 books. These were divided for convenience of handling into groups of ten (‘decades,’ as writers of later antiquity term them); but these did not correspond with any logical divisions of the subject-matter, and the first decade ends abruptly in 293 BC, whereas 287 BC would form a natural break. It follows that as the second decade is not preserved*we do not possess Livy’s account of the constitutional settlement which terminated the political struggle of the orders. For the lost books we possess only meagre ‘ tables of contents ’ (periochae); there must also have been somewhat fuller abridgments, as appears from the fragment of such an epitome found at Oxyrhynchus, which deals with events of the second century BC. Dionysius of Halicarnassus, a Greek teacher of rhetoric and a literary critic who represents to us the severe classicism which endeavoured to maintain the standard of the Attic orators against modern tendencies, came to Rome in 30 BC and spent more than twenty years in compiling his Roman Antiquities. This work was published in 7 BC and covered the history of Rome from its foundation to the outbreak of the First Punic War in twenty books. Of these only the first ten are preserved in a complete form; the eleventh is partly extant, and we have extracts from the rest.

Among extant writers of later date two deserve mention at this point. Appian, a citizen of Alexandria, born about a.d. 90, who had an undistinguished career in the Imperial Civil Service as advocatus fisci and obtained the title of procurator from Antoninus Pius through the influence of Fronto, set out in A.D. 160 or thereabouts to write a History of Rome on a new principle, describing the wars waged by the Romans in a series of treatises in which the subject-matter is distributed mainly on geographical principles. From the Wars of the Kings, the Wars in Italy and the Samnite Wars, which cover the early period we have only excerpts. Half a century later Cassius Dio Cocceianus, a native of Nicaea in Bithynia, of senatorial family, who was born about A.D. 155 and rose to the consulship, which he held for the second time in A.D. 229 as the colleague of the Emperor Severus Alexander, wrote a History of Rome from its foundation to his own time in eighty books. This work is only preserved in part in its complete form, and the first thirty-five books, carrying the narrative down to 68 BC, are lost; but apart from excerpts, of which there are a fair number, we possess an Abridgment of History made by Ioannes Zonaras in the twelfth century A.D. which is directly based on the original work of Dio in its earlier portions.

Such are the works, dealing at large with the history of Rome, of which substantial remains have come down to us. But we must also take into account the Universal History compiled by Diodorus of Agyrium in Sicily. This was a work in forty books under the title Bibliotheke, which ended with Caesar’s expedition to Britain (54 BC), and was apparently completed under Augustus, that is, if the colonization of Tauromenium, to which allusion is made in the sixteenth book, took place in 21 BC. The first five books, which we have in a complete form, deal with the mythical period; of the next five we have only fragments. The ten which follow cover the period from 479-301 BC, and are fitted into a chronological framework based on the synchronism of Olympiads, Athenian archonships and Roman consulates. Diodorus has little space to spare for notice of the events of Roman history, and under many years only the names of the consuls appear.

In addition we have the meagre epitomes of writers such as Florus, who wrote his two books on the Wars of the Romans under Hadrian, Eutropius, whose Brief Sketch of Roman history was written in the fourth century, perhaps in rivalry with a similar work by Rufius Festus, and Orosius, a pupil of St Augustine, whose Historiae adversus paganos, designed to show that the miseries of his own age were less than those of pre-Christian times, were published in A.D. 417. All of these derive such value as they possess from the fact that they used an abridged version of the lost books of Livy. Such, then, are the immediate sources of our knowledge of the early history of Rome. It is evident that we can only gauge their value by considering what were the sources of information open to them and used by them, and what principles they followed in dealing with those sources. The latter question is of the highest importance; for a compiler whose work is based on that of his predecessors may set forth conflicting evidence in detail and treat it critically, or he may slavishly follow one main authority, or different authorities in different parts of his work. Had the ancient historians of the Imperial age followed the first course, we should at least have been acquainted with the elements of the problems which they were trying to solve: but that was not the way of ancient historians, especially those for whom the writing of history was a rhetorical exercise, nor would critical discussion have been to the taste of the public for whom they catered. Livy does, it is true, from time to time mention some of the more glaring discrepancies which he finds in his authorities; but it is to be assumed that as a general rule he has smoothed out contradictions or selected what appears to him the preferable version. The same applies to Dionysius, who rarely notes variants in the narrative, although he assures us that he spent many years in acquiring Latin and studying the works of the native historians, and mentions some of the more obscure by name.

What then were the sources from which Livy and Dionysius derived the outline of history which each filled in after his own manner? Neither of them, we may feel sure, made original researches into such official documents as may have been accessible. Livy makes a reference to the cuirass dedicated in the temple of Juppiter Feretrius by A. Cornelius Cossus as spolia opima, when he had slain with his own hand Lars Tolumnius, King of Veii, and tells us that the inscription proved that the dedicator did not, as the literary tradition said, perform this exploit as tribunus militum in 437 BC, but as consul in 428 BC. But this information was supplied to him by Augustus, who had secured it from his court antiquaries in order to bar the claim of M. Licinius Crassus, proconsul in 27 BC, to dedicate spolia opima taken from the chieftain of the Bastarnae, by establishing that no precedent existed for such a dedication by one who (like Crassus) fought under the auspicia of a higher magistrate. The exception therefore proves the rule. The immediate sources of Livy and Dionysius were literary.

III.

 THE EARLIER ANNALISTS

Historical writing at Rome dates from the end of the third century BC, and the pioneers in this field used the Greek tongue. The earliest was Q. Fabius Pictor, a descendant (as his cognomen shows) of C. Fabius Pictor, who decorated with paintings the temple of Salus on the Quirinal in 304 BC. He had taken part in the war of 225—222 BC with the Gauls, and was sent on a mission to consult the Delphic oracle in 216 BC. To judge from the extant references to his work (we can hardly describe them as ‘ fragments ’) he dealt with the earliest legends at considerable length, and, as Dionysius tells us, he treated in detail of the events of his own time; the intervening period was more summarily handled. The same was true of his contemporary, L. Cincius Alimentus, praetor in 210 BC. These writers, in treating of Republican history, arranged their matter by years in strict chronological order, and their works and those of their successors were known as libri annales. Two writers of the second century, A. Postumius Albinus, consul in 151 BC, and C. Acilius, who acted as interpreter for the Greek philosophers who were sent from Athens as envoys to the Senate in 155 BC, also wrote in Greek. Their works were, however, translated into Latin, and the Latin ‘Annals of Fabius’ mentioned by Aulus Gellius were in all probability a translation of those of Q. Fabius Pictor and not the work of a later member of his family.

The first historian to employ the Latin tongue was apparently L. Cassius Hemina, who, we are told, was living in 146 BC. We know nothing of his career, and it is remarkable that he is not mentioned by our extant historians, and is quoted only by antiquarians and grammarians (none earlier than the elder Pliny). Three statesmen of the latter half of the second century BC, Q. Fabius Maximus Servilianus, consul in 142 BC, L. Calpurnius Piso, consul in 133 BC and censor in 120 BC, and perhaps C. Sempronius Tuditanus, consul in 129 BC, wrote Latin annales; of these Piso, as the quotations show, exercised by far the greatest influence on later writers. We know nothing of Vennonius, a writer mentioned by Cicero and Dionysius, who probably belonged to the same period.

None of the annales so far written was of great length. The first historian to depict Roman history on a broad canvas was Cn. Gellius, whose work extended at least to ninety-seven books in the fifteenth of which events recounted by Livy in his fifth book were described. There is, however, little reason to think that he formed one of the principal sources directly used by our extant writers, for Dionysius generally couples him with Licinius Macer (which probably means that the latter was the immediate authority used), and Livy never mentions him.

We now come to the writers of the first century BC, in whom we may reasonably expect to find the authorities upon whom Livy and Dionysius mainly drew. We know little or nothing of the personal history of Q. Claudius Quadrigarius (probably not to be identified with the ‘ Claudius ’ who translated the Greek annals of Acilius), and as he is not cited for any fact of Roman history earlier than the sack of Rome by the Gauls, his work may have begun from that point. He is frequently quoted by Livy, and his archaic style caused him to be read and cited by the grammarians. His contemporary, Valerius Antias, a protégé, as we may suppose, of the Valerian house, treated Roman history on a larger scale; we have quotations up to the seventy-fifth book, and it is evident that Livy treats him as one of his principal authorities, though Dionysius scarcely mentions him. C. Licinius Macer, a democratic politician, who made a premature endeavour to restore the powers of the tribunate in 73 BC, was praetor shortly after 70 BC, and was condemned for misgovernment of a province in 66 BC by a court over which Cicero presided, wrote a work which both Livy and Dionysius used freely. The form of the references in Dionysius suggests that Macer made use of the work of Gellius: but he also, if his own account may be trusted, undertook research in archives; this raises a serious question to be discussed later. The last of the Republican annalists was Aelius Tubero,' a contemporary of Cicero, probably the L. Aelius Tubero who was writing a history in 60 BC, as Cicero mentions in a letter to his brother, although Livy gives him the praenomen Quintus, which belongs to his son, a well-known jurist.

In the above group of writers we must seek the sources of the traditional narrative. The epic poem of Ennius (who came to Rome in 204 BC and no doubt had the work of Fabius Pictor before him) is not to be counted amongst the authorities used by the prose annalists: the Origines of Cato the Elder, valuable as they were by reason of the fact that their author did not confine himself to Rome, but related the early history of the other Italian peoples, was little used except for the legends of the foundation and the regal period, to which there are some references in Dionysius.

We cannot leave this branch of our subject without mentioning the view held by many scholars that Diodorus drew his statements concerning early Roman history from one of the earlier annalists, perhaps Fabius Pictor, and thus preserves a less vitiated tradition than Livy and Dionysius. It is no doubt true that the imaginative details which seem characteristic of post-Gracchan annalists are comparatively absent from Diodorus; but whether we are to explain this by the antiquity of his source or the brevity of his compilation cannot be determined with any degree of certainty. We are, in fact, quite unable to give a name or a date to the primary source of Diodorus; the second-century annalists cannot be ruled out, but every statement must be considered on its merits, and brevity alone must not be regarded as creating a presumption of accuracy. Diodorus was, no doubt, an indolent compiler who saved himself trouble by copying almost verbally from a single authority, such as Ephorus, and the brief notices of events in Roman history which he inserts from time to time— there are none at all in Books 17 and 18—might well have been drawn from a single source; in this case, however, it is most likely that they were taken from a chronological table with synchronisms between Greek and Roman history rather than from one of the Roman annalists, and something might be said for the view that this was the Chronicle of Castor of Rhodes, which was certainly known to Diodorus, and was continued almost precisely to the point at which Diodorus closed his History1. It should be observed, however, that Diodorus in a few places mentions variants in the Roman tradition, which he would not have found in Fabius Pictor. In one of his opening chapters (1,4) Diodorus tries to convey the impression that he studied Latin writers on Roman history—he talks of hypomnemata preserved from ancient times; but this means no more than the works of annalists and it is hard to think that the statement that in 449 BC it was enacted that one consul should be plebeian could be derived from that writer. A passage on which great stress has been laid, in which he says that Luceria was used by the Romans as a base of operations ‘until our times’, is explicable if the authority followed belonged not to the time of the Second Punic War but to the Sullan period, since Luceria may well have played its part in the Social War. The expression is in fact suspicious, since Diodorus purloins a story from Posidonius and says that it occurred ‘in our times’ and in another passage (also taken from Posidonius) involves himself in a bad blunder concerning the Aedui by the use of a similar phrase.

IV.

SOURCES USED BY THE ANNALISTS

We must next ask what were the materials upon which the annalists worked, and how they treated them; above all, to what extent was their narrative based on official archives. In the de oratore Cicero says that early historical writing consisted in ‘the drawing-up of year-books’ (annalium confectio), and that with this object, ‘from the beginnings of the Roman state down to P. Mucius’ (P. Mucius Scaevola, consul in 133 BC, pontifex maximus in 130 BC) the pontifex maximus recorded the events of each year on a tablet which he exposed at his house: these yearbooks, he continues, are still called annales maximi. In the de legibus he speaks of the annales of the pontifices maximi, ‘quibus nihil potest esse ieiunius’ (so we must clearly read for ‘iucundius’). Cato wrote in the fourth book of his Origines (which dealt with the Punic wars) that he did not care to set down ‘what is to be found in the tablet at the house of the pontifex maximus,’ such as the rise of food-prices or eclipses of sun or moon: and the only genuine fragments of the annales maximi contain mention of an eclipse (to which Ennius also referred) and of the portent which occurred when the statue of Horatius Codes in the Comitium was struck by lightning. A note of Servius on the Aeneid amplifies the statement made by Cicero in the de oratore; the names of the consuls  and other magistrates, he says, appeared at the head of the calendar of each year, and all the principal events ‘at home and abroad, by sea or land’ were noted with their dates; the whole compilation (ascribed to ‘the ancients’) was contained in eighty books. It has been inferred from this that P. Mucius Scaevola published these records, which he found in the Regia. It is hard to believe that a work so elaborate could not have been cited by our historians in matters of dispute: but it is not to be denied that records of the kind to which Cato refers existed, and the question must be asked, at what date did they begin? The text of Cicero’s de legibus is defective and corrupt in the passage relating to the eclipse mentioned by Ennius. Taking the figures inserted by a corrector to be right, it occurred in ‘about the 350th year from the foundation of Rome,’ and Ennius dated it to the fifth of June. There is no known eclipse which is chronologically suitable, and it is suggested by Beloch that ‘450th’ should be read, and the eclipse identified with that which took place in June, 288 b.c.1 It must, however, have been the first in the series, since Cicero tells us that astronomers had calculated from it a series extending back to the time of Romulus. Possibly the genuine records began not much before that date, and Beloch conjectures that the reorganization of the pontifical college by the Lex Ogulnia may have furnished the occasion.

A second official record is cited in four passages of the fourth book of Livy. Licinius Macer, he tells us, found in the ‘linen rolls’ containing lists of magistrates which were kept in the temple of Juno Moneta on the Arx, the names of two consuls who held office in 444 BC, in which year the Fasti give a college of three tribuni militum. From the same source Macer derived the name of L. Minucius, which appeared as that of a praefectus annonae amongst the magistrates of those years: the Minicii or Minucii were a plebeian family who endeavoured to connect their name with the corn-supply of Rome, and this Minucius appears in a rival tradition as an ‘eleventh tribune.’ It is, however, a suspicious fact that in recording a discrepancy between the traditions with regard to the supreme college of 434 BC, Livy tells us that Macer and Aelius Tubero both cited the ‘linen rolls,’ but each for a different pair of consuls. Ingenious suggestions have been made in recent years in order to explain the causes of the uncertainty which existed as to the office-holders of this period and at the same time to save the credit of Macer; but it is hard to believe in the genuineness of these documents. The temple of Juno Moneta, it may be added, dates from 344 BC.

V.

SYSTEMS OF CHRONOLOGY

The systems of chronology set up by the ancient historians of Rome were based partly on synchronisms with the events of Greek history and partly on the lists of magistrates; but there were, as we shall see, great difficulties in accommodating the data derived from the two sources.

The synchronisms with Greek history are expressed either in terms of Olympiads or of Athenian archonships, or by means of intervals, and the events whose dates are thus fixed are (a) the foundation of Rome, (b) the first Republican consulship, (c) the sack of Rome by the Gauls. In his first book Dionysius tells us that Timaeus dated the foundation of Rome and that of Carthage in the same year, ‘38 years before the first Olympiad’ (i.e. 814 BC). How he arrived at this figure it is impossible to say, but it seems fair to conclude that he calculated the date for Carthage and assumed Rome to be coeval. Of the early annalists Fabius Pictor placed the foundation in Ol. 8. 1 = 748 BC and Cincius Alimentus in Ol. 12. 4= 729/8 BC. Cato placed the same event ‘432 years after the Trojan War,’ i.e. in Ol. 7. 1 = 752 BC, as Dionysius determined the date by the tables of Eratosthenes. Finally Polybius, says Dionysius, gave the year following, Ol. 7. 2= 751/0 BC, and the same date is found in Diodorus and Cicero. The reigns of the Kings covered 244 years according to most authorities2, and this tallies with Polybius’ statement that the first consuls of the Republic took office ‘28 years before Xerxes crossed over to Greece,’ i.e. in 508/7 BC, if his reckoning was inclusive. Dionysius places the first consulship in the archonship of Isagoras (508 BC), which is determined by the interval of 120 years between this event and the sack of Rome by the Gauls, which, he says, was ‘generally agreed to have taken place when Pyrgion was archon at Athens.’ This was in 388/7 BC, but Polybius definitely states that the Gauls took Rome in the year of the Peace of Antalcidas (387/6 BC) and of the siege of Rhegium by Dionysius of Syracuse (387 BC), and this synchronism is given by Diodorus. It must obviously come from a Greek source and it is most natural to assume that the Sicilian Timaeus is to be credited with it.

These last dates imply that 106 years elapsed between the sack of Rome and the invasion of Italy by Pyrrhus (Ol. 124. 4 = 281/0 BC). But the Roman chronologists found that the list of chief magistrates which they had before them did not suffice to fill the gap, and recourse was had to strange expedients in order to make the tally correct. Livy speaks of a five years anarchy (solitudo magistratuum) fifteen years after the Gallic invasion, and a mutilated entry in the Capitoline Fasti shows that the compiler followed the same view. Diodorus, on the other hand, who gives only one year of ‘anarchy,’ repeats the names of the magistrates of 391— 387 BC immediately after the year of the sack. Polybius is not concerned to construct a table of Roman magistrates, but in his excursus on the wars of Rome with the Gauls he counts thirty years between the first and second Gallic invasions, and this could not be filled without some similar expedient. But in the last century of the Republic a further step was taken. Atticus, the friend and correspondent of Cicero, compiled a chronological table of Roman history under the name of Liber annalis, in which he placed the foundation of Rome in Ol. 6. 3 = 754/3 BC; and the same date was given by Varro, according to Solinus. This result was evidently accepted in official quarters, for it can only be with the purpose of raising the earlier dates of Roman history that we find in the Capitoline Fasti (or in sources derived therefrom) four years in which dictators and their magistri equitum appear as chief magistrates (333, 324, 309, 301 BC). Diodorus takes no account of these, and Livy mentions dictators who were appointed in the normal manner in each of the years immediately preceding. The insertions, like the ‘five years anarchy,’ were evidently an expedient adopted in order to accommodate the list of magistrates to some accepted synchronism. Modern convention has adopted the ‘ Varronian’ dates, and thus in the tables to which we are accustomed 390 b.c. is given as the year of the Gallic invasion. The year of the foundation, however, is generally taken as 753 BC; but that is because, with the Capitoline Fasti, we only count 119 years between the first consulships and the sack of Rome, rejecting the second college of decemviri.

VI.

LISTS OF MAGISTRATES

The list of magistrates, then, was in disaccord with the other data which the Romans believed themselves to possess. Can we accept it as genuine in its earlier parts ? No great stress need be laid on the fact that no less than five consuls are assigned to the first year of the Republic, in order to find room for all the principal characters who figure in the legend of the Tarquins. But it is very difficult to say how much is historical in the Fasti of the fifth century, which in the inscription of the Regia present us with a series of consuls, all possessing cognomina, whose descent is indicated by the nomina of father and grandfather. If all of these were patrician, it might be hard to say that the list was not based on early records: Beloch has ingeniously reconstructed the pedigrees of the patrician families who appear most often in the Fasti in order to show that there is nothing abnormal in the intervals between the generations, and argues that a forger would inevitably have betrayed himself in such matters. We must remember, however, that the great families of Rome regarded the tradition of their ancestral distinctions as a patrimony to be jealously guarded, and that an intensive study of the principal pedigrees had been carried on in the later years of the Republic. It is worthy of note that Atticus, whose Liber annalis, as we saw, may have been, whether mediately or immediately, one of the principal sources of the Fasti which we possess, had drawn out the pedigrees of the Claudii Marcelli, the Fabii and the Aemilii, assigning to each member of the family the magistracies which he had held; and the learned editor of the Fasti seems to have made full use of these materials. Unfortunately their value, at any rate as regards the early period, is very doubtful. In a well-known passage Livy, after citing the discrepant versions which were current regarding the events of 322 BC, goes on to say:

“It is hard to prefer either one version to another or one authority to another. I am of opinion that the tradition has been corrupted by funeral panegyrics and forged inscriptions on busts, each family appropriating to itself by means of mendacious deceptions the credit of exploits and public offices: undoubtedly both the careers of individuals and the public records have thus been thrown into confusion”.

Cicero, in the Brutus (16, 62), stresses the point as regards funeral orations, which the families preserved as their ‘ornaments and monuments.’

“By these panegyrics,’ he says, ‘the history of our past has been filled with errors; for many things are set down in them which never took place—imaginary triumphs, multiplied consulships, false descents and passages from patrician to plebeian rank, by which means persons of low degree were, so to speak, injected into an alien family bearing the same name: as though I myself, for example, were to claim descent from M’. Tullius the patrician, who was consul with Servius Sulpicius in the tenth year after the expulsion of the Kings.”

It is to be noted that, while the Capitoline Fasti are not extant for this period, and Livy gives the corrupt names ‘Servilius Sulpicius’ and ‘ M. Manlius Tullus,’ the cognomina of both consuls are given by Dionysius, but that of M’. Tullius is ‘Longus,’ whereas Festus gives ‘Tolerinus.’ But the lists of this period contain a number of names taken from other families only known to us as plebeian, all duly provided with cognomina, which plebeians did not employ in early times: at the head of the list stands L. Junius Brutus, the legendary hero of the Revolution, and we may recall the fact that Atticus provided his supposed descendant the ‘Liberator’ with a family tree tracing its origin to the first consul.

A striking example of the unreliability of the records is furnished by the Minucii, a family which may perhaps have been in Cicero’s mind when he wrote the passage quoted, since according to a tradition mentioned by Livy a certain L. Minucius ‘passed over to the plebs'at the time of the sedition of Spurius Maelius and was co-opted as an ‘eleventh tribune’ (439 BC). Now the Fasti give ‘Augurinus’ as the cognomen of L. Minucius, consul in 458 BC, although this was in fact adopted by M. Minucius Faesus, one of the first plebeian augurs elected under the Lex Ogulnia of 300 BC. An equally remarkable case is that of the supposed consuls of 454 BC, who appear in the Fasti under the names Sp. Tarpeius M. f. M. n. Montanus Capitolinus’ and ‘A. Aternius...Varus Fontinalis.’ Cicero and Dionysius ascribe to Aternius and Tarpeius a law fixing the maximum fine which could be levied on an individual without appeal to the people at thirty head of cattle and two sheep. Livy knows nothing of this law, but tells us that Aternius and Tarpeius, ‘patricians and exconsuls, ’ were co-opted as tribunes of the plebs in 448 b.c. Further light is thrown on the facts by the entry in Festus, which tells us that the law concerning fines in cattle was passed by the consuls Menenius and Sestius in 452 BC, and that ‘after coined money came into use a Lex Tarpeia provided that 100 asses should be regarded as the equivalent of an ox and 10 as that of a sheep,’ which makes it evident that the law belongs to the fourth century. The entry in the Fasti is of course not in this instance due to family claims, since neither Aternii nor Tarpeii are otherwise known; but the cognomina betray their late origin, for those of Tarpeius are thinly disguised derivatives from Mons Capitolinus (suggested by the position of the rupes Tarpeia) and Fontinalis, for some reason which escapes us, is taken from the Porta Fontinalis in the Servian wall at the north-east end of the Capitoline hill. In view of such facts as these it is quite impossible to regard the elaborate Fasti of the early Republic as based on authentic or contemporary records, whether public or private, except in so far as a genuine nucleus may have been expanded by interpolation of names and colleges.

In view of the early history of the constitution we are more especially bound to view with suspicion the names of plebeian gentes and the traditions connected with them. Thus, for example, the consuls for the year 487 BC are given by Livy as C. Aquilius and T. Sicinius, while the Fasti (represented by Cassiodorus’ Chronicle) and Dionysius call the last-named T. Siccius. Not only were the Aquilii of later times plebeian, but the names Siccius and Sicinius (which are constantly interchanged) play a part in the legends which clustered round the ‘struggle of the orders’ on the plebeian side. Cn. Siccius appears as one of the five tribunes elected, according to Piso in 471 BC, and joins with his colleague Duilius in prosecuting Appius Claudius in the following year; the authority followed by Diodorus on the other hand, gave the name of C. Sicinius as one of the four tribunes appointed in 471 BC. The legend of the ‘Roman Achilles,’ who fought in 120 battles, and received decorations of every kind known to the Romans, the numbers of which are set forth at length by our sources, is told both of ‘L. Sicinius Dentatus’ and ‘L. Siccius Dentatus,’ and is brought into connection with the imaginary consulship of Aternius and Tarpeius (see above); but whichever name is assigned to him, he is beyond question a champion of the plebs, and the appearance of this gentile name in either of its forms in the consular Fasti can only be due to interpolation.

Of the same type is a more famous figure of the early Republic, Sp. Maelius. He derived his name from a fanciful explanation of Aequimelium, a site on the south side of the Capitol where victims for sacrifice were on sale. This, it was said, was the spot where the house of Maelius had stood before it was razed to the ground (aequata solo), and its supposed owner became the central figure of a legend, according to which he attempted to win the favour of the populace by largesses of corn and aimed at monarchy, but was slain by the hand of C. Servilius Ahala, whose cognomen  was interpreted as a form of Axilla, with allusion to the fact that he carried under his armpit the dagger with which he killed the would-be tyrant; it is however attributed in the Fasti to the consul of 478 BC. It is fortunate that Dionysius has preserved for us two forms of the legend. The earlier of these, which, as he tells us, was found in the annals of Cincius Alimentus and of Calpurnius Piso, made Ahala a private citizen commissioned by the Senate to slay the would-be tyrant, whereas that which Dionysius himself, together with Cicero  and Livy, prefers, represented him as magister equitum to the dictator L. Quinctius Cincinnatus. This dictatorship (like many others) is wholly unhistorical, and was invented in order to give the act of Ahala a semblance of legality, probably by the politicians of the Gracchan period; and a place was found for Cincinnatus in the consular Fasti by the chronologist followed by Diodorus between the years 458 and 456 BC. Further illustration will hardly be needed of the process by which the Fasti which we possess were built up as a framework for the legends (usually with political colouring) which were still ‘timeless’ when the annalists began their work1. Whether these had been elaborated by a school of bards whose poems were sung at banquets in early days is question which it is hardly necessary to discuss: Cicero (Brutus, 19, 75) lamented that these songs (which Cato the Elder spoke of as belonging to ancient times) were no longer extant, and we have therefore clearly no right to identify them with the ‘ancestral hymns’ in which, as Dionysius tells us, the Romans still celebrated the life of Romulus and Remus in the hut of Faustulus.

VII.

JURISTS AND ANTIQUARIANS

If the literary narratives of early Roman history, and the lists of magistrates which form their framework, thus arouse our suspicions, what shall we say of the works of jurists and antiquarians, based upon the study of legal and other texts ? We have in the Digest a long extract from the Handbook of Pomponius, a lawyer who wrote under Hadrian and the Antonines, which purports to give a historical sketch of the sources of Roman Law and the principal exponents of jurisprudence. He begins with the collection of supposed ‘laws of the kings’ already mentioned under the title of ius Papirianum; his next landmark is the ius Flavianum, so called from Cn. Flavius, curule aedile in 304 BC, who, according to the legend followed by Pomponius, ‘stole’ the digest of the legis actiones, or forms of procedure, made by Appius Claudius Caecus, and published it. ‘Not much later,’ he continues, ‘Sextus Aelius put together other forms of action and issued a book which bore the name of ius Aelianum.’ Since Pomponius goes on to speak of the secessio plebis which led to the passing of the Lex Hortensia in 287 BC , one would suppose that he placed Aelius at an earlier date; but he is clearly referring to Sextus Aelius Paetus, consul in 198 BC and censor in 194 BC, of whom he tells us in a later section that he was the author of an extant work called Tripertita, which contained (1) the text of the Laws of the Twelve Tables, (2) a commentary thereon, (3) the forms of procedure. From a passage in the de legibus of Cicero it appears that Aelius, like other commentators, found the archaic Latin of the Code difficult of interpretation, and it did not cease to attract the grammarians of later times, such as Aelius Stilo, the teacher of Varro, as well as expert jurists such as Ser. Sulpicius Rufus, the friend of Cicero.

In the meanwhile a school of writers, of whom the most famous were the Scaevolae, father and son, both consuls and pontifices maximi, had begun to treat systematically of the ius civile. P. Mucius Scaevola, consul in 133 BC, was the founder of the school, and his son Quintus, consul in 95 BC, made a Digest of the ius civile in 18 books, which itself became the text for learned commentaries by Sulpicius Rufus and others: Gaius in his Institutes refers to a work of his own based on that of Mucius.

As early as the Gracchan period, too, special treatises had been devoted to the various magistracies, their history and functions. Cassius Hemina, the annalist had written de censoribus. C. Sempronius Tuditanus, consul in 129 BC, wrote libri magistratuum, and a quotation from the thirteenth book shows that he concerned himself with the various grades of imperium. He no doubt represented the conservative view in politics: on the other side we have Junius Congus, surnamed Gracchanus because of his political affinities, whose work de potestatibus is quoted by Ulpian in the Digest for a theory about the origin of the quaestorship.

There was no lack of material, therefore, for the study of law and procedure; but with regard to political institutions the case is by no means so clear. In a well-known passage in the de legibis Cicero complains: ‘We have no system for preserving our laws, and hence the laws are such as our clerks please; we get copies from the booksellers, and we have no public records publicly set forth in writing.’ It is easy to believe this. The well-known inscription which contains on one face the Lex Acilia Repetundarum of 123/2 BC and on the other the Lex Agraria of 111 BC shows that the official copy in bronze was for the sake of economy put to a fresh use when the law ceased to be in force. The idea of preserving it for the purpose of a permanent record never occurred to the Romans. Each magistrate kept his own record of his official acts, and if we may judge by what Cicero tells us in his speech for the poet Archias, the greater number showed the utmost carelessness in so doing, even where the claim of a non-Roman to a grant of citizenship was at stake. Dionysius, indeed, informs us that the registers kept by censors were preserved in their family archives as heirlooms; unfortunately, the example which he gives (prefaced by a chronological note in which the era of the foundation of the city is used) refers to a date when, if we are to believe Festus, no census took place; and the list of censors contained in the Capitoline Fasti, together with the numbered lustra which include the four ascribed to Servius Tullius, was evidently a literary compilation.

There existed, no doubt, certain commentarii, as they were called, which were handed down by the various colleges of magistrates and priests, and consisted partly in rules and regulations for the conduct of the business of the several offices, partly in reports of cases in which a decision on some doubtful point had been taken by the college. Thus the libri or commentarii of the pontifices are quoted by Cicero for a decision given by P. Mucius Scaevola in 123 BC, and in the Brutus he tells us that the records of the college bore testimony to the outstanding abilities of Ti. Coruncanius. So too the libri augurales or commentarii augurum recorded decisions taken by the college with regard to the interpretation of auspicia, and since these had a direct bearing on the validity of the acts of magistrates and people, they embodied important constitutional doctrines. Cicero, for example, in a letter to Atticus written in 49 BC, when the validity of the consular elections held by Lepidus was a burning question, writes: ‘We (i.e. the augurs) have it in our books that not only consuls, but even praetors, may not lawfully be brought into office by a praetor, and that such a thing has never been done: it is unlawful in the case of consuls because the higher authority may not be proposed for election by the lower, in the case of praetors because they are elected to be the colleagues of the consuls, who enjoy a higher authority’. This instance will suffice to show the importance of the libri augurales for constitutional law and procedure; and it is not surprising that in the last century of the Republic, statesmen who held seats in the augural college wrote treatises on the traditions of that body. Such were L. Julius Caesar (consul in 64 BC), Appius Claudius Pulcher (consul in 54 BC), P. Servilius Isauricus (consul in 48 BC), besides Cicero himself and especially ‘Messalla the augur,’ i.e. M. Valerius Messalla, consul in 53 BC, who was a member of the college for fifty-five years, and from whose work de auspiciis Gellius quotes at length to illustrate the doctrine of the auspicia as applied to assemblies.

From such sources the antiquarians, encyclopaedists, grammarians and jurists drew largely, and constructed what was no doubt a coherent theory of the Roman constitution. First and foremost, M. Terentius Varro (116—27 B), ‘vir Romanorum eruditissimus ’, whose writings covered the whole field of knowledge, compiled 41 books of Antiquitates rerum humanarum et divinarum, 15 de iure civili and 25 de lingua Latina, of these only Books 5—10 of the last-named survive, from the contents of which, notably those which deal with the terms for Places and Times, we can judge how irreparable is the loss of the remainder. To the following generation belongs the de significatu verborum of Verrius Flaccus, a learned freedman chosen by Augustus to be the tutor of his grandsons. He was, as Suetonius tells us, the compiler of the Calendar (with notes) set up at Praeneste—possibly his native town—which is in part extant, and it is likely enough that he was responsible for the Fasti and Table of Triumphs engraved upon the walls of the Regia. His encyclopaedic dictionary is lost, but we have a mutilated epitome (interlarded with cheap sneers intended to create an impression of independence) made by Sex. Pompeius Festus in the second century A.D., which survives in a single MS., and a skeleton abridgment of this work compiled by Paul the Deacon towards the end of the eighth century A.D. Festus sometimes gives quotations—all too brief—from the authors used by Verrius Flaccus; besides those named above we meet with L. Cincius, who in addition to lexicographical studies de ‘verbis priscis’ wrote on the Comitia, on the authority of the consuls and the duties of a jurisconsult; with the great lawyers of the Augustan age, Antistius Labeo, the leading authority on ius pontificium, and Ateius Capita, whose writings (especially the Coniectanea) covered a much wider field; and with grammatici, in the narrower sense, whose main interest was in the explanation of archaic terms of law, civil or ecclesiastical, such as Aelius Stilo and Sinnius Capita.

Of this lost literature only the scantiest fragments remain; the commentaries of Asconius Pedianus, written probably under Nero, on the speeches of Cicero, contain some scraps of valuable knowledge, and we owe a deep debt to Aulus Gellius, whose commonplace book, compiled at Athens under Antoninus Pius and published under the title of Noctes Atticae, includes priceless extracts from the writings of Varro and his successors, as well as from those of his own period, such as Laelius Felix, who wrote a commentary upon Q. Mucius Scaevola’s Digest of the Civil Law. Mention must also be made of the excerpts from the classical jurists contained in the Digest of Justinian (we have already had occasion to cite Pomponius) and of the Institutes of Gaius, written about the middle of the second century. Later than these are the works of grammarians, such as Nonius Marcellus (fourth century A.D.), commentaries such as that of Servius on Vergil (fourth or fifth century), and the miscellany in dialogue form compiled under the title of Saturnalia by Macrobius, of about the same date.

From all these sources we can form some idea of the immense labour of research expended by Roman scholars on the documents handed down by tradition; and we possess, in the works of Cicero’s later years, the de Republican written between 54 BC and 51 BC, and the de legibus, which was left unfinished, documents which illustrate the jurist’s attitude towards Roman institutions; for the first contains a sketch of its growth in the royal period, and the second a schematic outline of the constitution, couched in archaizing language, which, though modified in accordance with Cicero’s political ideas, expresses in traditional terms the principles embodied in each of its organs.

What was the value of the material collected and interpreted by the antiquarians, regarded as evidence of the origin and growth of the constitution? The interest of the compilers was practical rather than theoretical, they were concerned with precedent and procedure as a guide to the conduct of business. When Pompey, in 70 BC, became consul without having passed through the apprenticeship of the minor offices, Varro put together a handbook for his use as chairman of the Senate, and though this was not preserved, the extracts given by Gellius from a letter written by Varro on the subject show that it was based on a careful study of constitutional usage. In the de lingua Latina Varro quotes at length from documents which lay down rules of procedure in the form of reports (commentarii). Thus he finds in the commentarii consulum instructions for the summoning of the ‘army,’ that is to say, the nation in arms in centuriate assembly; the attendant who issues the summons bears the name ‘ C. Calpurnius.’ Greater interest attaches to the ‘ancient report of a criminal investigation’ which serves Varro as a model for the procedure in capital trials before the people. Here the quaestor who conducts the investigation is M’. Sergius, the defendant T. Quinctius Rocus—names which some have supposed to be those of real persons.

These documents deserve the highest respect, and are evidently of considerable antiquity; but what shall we say of the discriptio centuriarum or discriptio classium ‘made by Servius Tullius,’ twice mentioned by Festus, once in a quotation from Varro, who seems to refer to the same document as censoriae tabulae. We remember that Livy mentions the tradition that the first consuls of the Republic were elected ‘ex commentariis Servii Tullii’, and recognize in these a similar document. Livy speaks of the commentarii of Numa relating to the celebration of public rites; and Cicero, in his defence of Rabirius, complains that the prosecution has unearthed an antiquated procedure ‘ex annalium monumentis atque ex regum commentariis.’ We are not left in doubt as to his meaning; for Livy recounts at length the institution of duoviri perduellionis by Tullus Hostilius in the case of Horatius, giving the text of the lex horrendi carminis and the formal utterances of the parties in the suit. This lets us into the secret. The Roman lawyer demanded a historical precedent and an archetypal procedure which was given him in the case of Horatius, just as the Athenian mythmaker traced the jurisdiction of the Areopagus in cases of homicide to the trial of Orestes. The commentarii regum were a collection of such documents, and Livy—though no jurist by profession—made such use of them that a large portion of his first book reads like a handbook of formulae with their supposed historical settings; some of them, such as the utterances prescribed for the fetiales, with their appeal to a personified Fas can obviously lay no claim to high antiquity. We should, therefore, not take at their face value the accounts which the Roman antiquarians gave of the origin of institutions; and we must be on our guard against the natural but insidious tendency of a nation of trained lawyers to represent the Roman constitution as the result of an ordered and organic growth, ending in a coherent system based throughout on fixed principles. An examination of the conflicting statements made by our historians will teach us that the legists were at times hard put to it to square their constitutional formulae with awkward facts.

From the above it will be seen how hazardous a task is the reconstruction of early Roman history from what the Romans tell us and how inevitable it is that scholars must disagree in their evaluation of this evidence, and vary in the degree of scepticism with which they approach the statements of the authorities for each separate period. It is not even true that there is a steady improvement in the evidence as we approach the third century, for the gap between the fourth century and the writing of contemporary history is great enough for falsification to creep in even about the most important events, and in constructing the history of each period the Roman annalists were exposed to various temptations. Archaeological discovery can give us evidence which sometimes acts as a touchstone of the truth of the tradition, and as will be seen in the chapters that follow, it is to archaeological discovery that we owe almost all that may be regarded as certain about the beginnings of the city of Rome. But often the stones are dumb and the books speak but do not speak truth. Yet to reject root and branch the statements of the Romans about their early history is to abdicate the office of the historian. Amid much that is false the tradition contains a nucleus of truth, and it is the task of the historian to do the best he can to discover it. There is one factor which cannot be neglected, and that is the possibility of an oral tradition handing down, even though distorted, the memory of great events or persons; for the accretions of fiction may attach themselves to what is true as well as to what is false. But it has also to be remembered that the Roman tradition was a manufactured product rather than a natural growth and we have not the right to say that, though fiction may invade the record of events, we may always claim to have truth of atmosphere. The atmosphere of the first decade of Livy, for example, is evidence for the conceptions formed by men of the Augustan age rather than for the Roman character in the days of the Kings and of the early Republic.

In the following chapters, therefore, will be found an attempt to set forth what may be reconstructed with fair certainty about the history of early Rome down to the point when, with the third century, we reach a period for which our information, if scanty, has the merit of being as trustworthy as that about Greece in the same period.

CHAPTER XI.

THE FOUNDING OF ROME