² De Rep. 4. 11; cf. Tusc. 4. 4. I deal very briefly with this problem, since the arguments on both sides are admirably summarized by Brecht, P.W. s.v. ‘Occentatio’, cols. 1752–60; cf. Riccobono, , Fontes iuris Romani antejusliniani, i, pp. 52–3.Google Scholar

³ Horace, Sat. 2. 1. 82; Pliny, Nat. Hist. 28. 17: ‘quid? non et legum ipsarum in duodecim tabulis verba sunt: qui fruges excantassit, et alibi: qui malum carmen incantassit?’

⁴ Huvelin, , Mélanges Appleton, 1903, pp. 475 ff.Google Scholar; Maschke in Studien zur Erläulerung des bürgerlichen Rechts, 10. Heft, 1903, pp. 11 ff.; Beckmann, Zauberei und Recht in Roms Frühzeit; Pugliesi, Studi sull' ‘iniuria’, pp. 22 ff. Cf. also Robinson, L., Freedom of Speech in the Roman Republic, pp. 3 ff.Google Scholar

⁵ Gnomon, 1925, pp. 185 ff.Google Scholar

⁶ Historical Introduction to the Study of Roman Law, 1932, p. 175.Google Scholar

⁷ J.R.S. xxxii, 1942, p. 121.Google Scholar

⁸ Cf. also Stolz-Schmalz, , Lateinische Grammatik, 1926, p. 779, para. 344; and cf. p. 677, para. 250.Google Scholar

⁹ For a discussion of the meaning of occentare see also Usener, , Rh. Mus. lvi, 1901, p. 3;Google ScholarHendrickson, , Class. Phil. xx, 1923, pp. 289–308;Google ScholarHermes, lxi, 1926, pp. 79–86.Google Scholar

¹⁰ Against the suggestion that Augustine has changed the Ciceronian text see Fraenkel, , op. cit., pp. 189 ff.Google ScholarRobinson's, suggestion, op. cit., p. 3Google Scholar, that quod infamiam faceret has been added to explain carmen condidisset is per se most unsatisfactory, because carmen alone would require further definition in the original law. On her interpretation it must have read malum carmen (cf. Pliny, , Nat. Hist. 18. 17), and there is no point in anyone' deleting malum to substitute quod infamiam faceret.Google Scholar

¹¹ De Legibus 2. 59.

¹² Festus 181 M. See Fraenkel, , loc. cit., p. 193.Google ScholarFrank, T., A.J.P. xlviii, 1927, p. 108, rejects Fraenkel's interpretation; but it cannot be said that he shows any reason for the rejection.Google Scholar

¹ 3. 3. 15.

² Id. 7.8.5.

³ Marmorale, , Naevius Poela, Catania, 1945, pp. 41–2Google Scholar, claims that the passage does not refer to Scipio Africanus but to his father or uncle. Kroll, , Hermes, lxvi, p. 472Google Scholar, followed by Rostagni, , La letteratura di Roma Republicana ed Augustea, p. 73Google Scholar, n. 4, supposes that these verses are in praise of Scipio. Why Robinson, , op. cit., p. 3, supposes they are mere rhymes composed round the camp fire I do not know.Google Scholar

⁴ Leo, , Sat. Vers. 1905, p. 32; Fraenkel, in P. W. Supptbd. vi, s.v. ‘Naevius’, col. 623, who also refers to works by Marx and Jachmann, to hich I have not access.Google Scholar

⁵ Op. cit., pp. 57 ff.Google Scholar He contends that although Gellius says de Graecorum more, which suggests that he did name his victims, Cicero, De Rep. 4. 11, seems to make it clear that he could not have done; and that although in a general way Gellius could compare Naevius to writers of Greek comedy without being fairly accused of inaccuracy, yet the whole point of Cicero's contrast would be lost if, in fact, Naevius had named his victims; but that if Naevius contented himself with subtle allusion and indirect criticism, much of which would have been lost to later generations, then Cicero's contrast would be fair. Cf. Marmorale, , op. cit., p. 40–41;Google ScholarLeo, , Gesch. d. rön. Lit., p. 77;Google Scholar Fraenkel, ‘Naevius’, col. 623; Brecht, , loc. cit., cols. 1760–1.Google Scholar

⁶ Ber. Sachs. Ges. d. Wiss. lxiii, 1911, 3. Heft, p. 71.

⁷ Op. cit., pp. 106–7.Google Scholar

⁸ Op. cit., p. 109.Google Scholar He is followed by Robinson, , op. cit., pp. 5–6;Google Scholarcf. Momigliano, , op. cit., p. 122.Google Scholar

⁹ Cf. Robinson, , op. cit., pp. 6–8;Google ScholarMomigliano, , op. cit., p. 123.Google Scholar

¹⁰ Cf. Cuq in Dar.—Sagl. s.v. ‘iniuria’, p. 519. The Law is here understood to refer to defamatory songs, not, as Frank held, to magical incantations.

¹ We may compare this application of the law to a situation which did not exist at the time that the law was made with the extension of the whole body of the law of treason when the Princeps became identified with the State; though, when the original legislation (Leges Appuleia, Cornelia, Iulia) was passed, there was no Princeps. See below, pp. 173 f.

² Terence's caution may, however, be due to the introduction of the law spoken of below.

³ Rhet. ad Herenn. 1. 24: ‘Mimus quidam nominatim Accium poetam compellavit in scaena. cum eo Accius iniuriarum agit. hic nihil aliud defendit nisi licere nominare eum, cuius nomine scripta dentur agenda.’ 2. 13. 19: ‘Caelius iudex absolvit iniuriarum eum, qui Lucilium poetam in scaena nominatim laeserat, P. Mucius eum, qui L. Accium poetam nominaverat, condemnavit.’Google Scholar

⁴ Cuq, , loc. cit., p. 519, thinks these prosecutions, too, were made under the law of the Twelve Tables.Google Scholar

⁵ Ulpian, Dig. 47.10.15.25: ‘ne quid infamandi causa fiat, si quis adversus ea fecerit, prout quaeque res erit, animadvertam’; this is then explained by Ulpian, para. 27: ‘proinde quod-cumque quis fecerit vel dixerit, ut alium infamet, erit actio iniuriarum. haec autem fere sunt, quae ad infamiam alicuius fiunt: … aut si carmen conscribat vel proponat vel cantet ali-quod, quod pudorem alicuius laedat’. Cf. also para. 2. Cf. Rhet. ad Herenn. 4. 35: ‘iniuriae sunt, quae aut pulsatione corpus (aut) convicio auris aut aliqua turpitudine vitam cuiuspiam violant’.

⁶ Cf. Cuq, , op. cit., p. 519;Google ScholarMommsen, , Strafr., p. 79s;Google ScholarFraenkel, , op. cit., pp. 192–4;Google ScholarBrecht, , op. cit., col. 1762;Google ScholarRobinson, , op. cit., p. 7, following a conjecture by Frank in an unpublished lecture, suggests that a specific law may have been passed, making criticism of anyone by name from the stage a case of iniuria. This seems unlikely; if there had been such a law, it is difficult to see how Caelius, even for political reasons (p. 6), could have failed to award Lucilius damages. But it might be possible to quibble one's way out under the generality of the Edict.Google Scholar

¹ Dig. 47.10. 6. This belongs to a later period, but shows the difficulty which a plaintiff would have in such circumstances.

² Lejay, , Œuvres d'Horace, Satires, p. 267Google Scholar, speaks of the words iniuriarum egit in the Rhet. ad Herenn. as an anachronism, but in what sense he does not explain. If he means that it was an iniuria at the time the Rhet. was written, but not in the time of Accius and Lucilius, he still has to show when it became iniuria. But on p. 286 he suggests that it was not until after the time of the Rhet. that criticism became an iniuria. In that case we can only congratulate the author of the Rhet. for his prescience in foreseeing the later development of Roman law. His statement that cases of iniuria went before reciperaiores is not wholly true. According to Gellius, 20. 1. 13, they did (though we should note that this is physical iniuria; when defamation became an iniuria, it may have been felt that in some cases at any rate a single iudex would be better able to decide the issue); but certain cases could and did come before a single iudex, as the cases under discussion prove. Cf. Gaius 3. 224. See Wenger in P.W., s.v. ‘reciperatio’, cols. 429–31; Steinwenter s.v. ‘iniuria’, col. 1557; Cuq, , loc. cit., p. 523, n. 2;Google ScholarGirard, , Manuel élémentaire de droit remain, p. 1009, n. 4.Google Scholar

³ Unless, as was suggested above, the law came first.

⁴ Frank, , loc. cit., p. 109Google Scholar, fails to see this important distinction: in discussing the case of Naevius he talks of the liberty to criticize being highly valued at Rome, and then quotes as examples Lucilius, Catullus, Calvus, etc. Examples from the first century are little help in dealing with Naevius, since social customs change in 150 years. But, more important, the written ivord is not necessarily on the same footing as the spoken, as the case of Lucilius shows. Cf. Robinion, , op. cit., p. 27.Google Scholar

⁵ For the increasing importance of the written word cf. Mommsen, , op. cit., p. 794;Google Scholar v. Premerstein in P.W., s.v. ‘libellus’, col. 29; Pfaff, s.v. liber', col. 62.

¹ Dig. 47.10. 5.8 ff. The text and punctuation are Mommsen's, revised by Krueger.

² Z. Sav. Stift. röm. Abt. 1. 19. 30, p. 286, adopting a restoration by Lenel, to whose work I have not access.

³ He is here following a suggestion by Ferrini.

⁴ See below, pp. 173–4.

⁵ The objections to moving ex lege from its present position in the textis stated below, p. 174.

⁶ Cf. Levy, , loc. cit., p. 287;Google ScholarPfaff, , loc. cit., col. 62;Google Scholar v. Premerstein, loc. cit., col. 29; Manigk, P.W., s.v. ‘intestabilis’, col. 1729; Brecht, , loc. cit., col. 1760;Google ScholarRobinson, , op. cit., pp. 53–4, 59, n. 16.Google ScholarMommsen, , op. cit., p. 800Google Scholar and n. 3, refers lege to the Twelve Tables. He refers also to Ulpian, Dig. 28. 1. 18. 1. For a criticism of Mommsen on this point, see below, p. 174. Cf. Levy, , loc. cit., p. 287, n. 1.Google ScholarRobinson, , op. cit., p. 51 and n. 58, wrongly says that Mommsen identifies the lex with the lex Cornelia.Google Scholar

⁷ Op. cit., p. 123.Google Scholar

⁸ Dig. 47. 10. s, preface.

¹ He refers, as does Mommsen, to Dig. 47. 10. 5.10 and 28.1.18.1. I coin the word intestabilitas for convenience.

² According to Levy, , loc. cit. One might reasonably ask why the s.c. mentioned in the next sentence did not merely add epigrams, etc., to the Lex Cornelia.Google Scholar

³ Momigliano, , op. cit., p. 123, surely goes too far in saying that the passage ‘is certainly post-Sullan’, referring for proof to Levy.Google Scholar

⁴ Suet. Iulius 80. 2. Note the words used by Ulpian in relation to carmen, Dig. 47. 15. 27: conscribat, proponat, cantet. Cf. Fraenkel, , loc. cit., p. 192.Google Scholar

⁵ Cf. the examples of libellus in Suet. Iulius 80. 2: ‘bonum factum: ne quis senatori novo curiam monstrare velit!’ and Vitellius 14. 4: ‘statim libel luspropositus est, et Chaldaeos dicere, bonum factum, ne Vitellius Germanicus intra eundem Kalendarum diem usquam esset.’ Cf. Augustus 55: ‘etiam sparsos de se in curia famosos libellos nee expavit. …’ The fact that Suetonius could quote libelli shows that they could be memorized and passed by word of mouth.

⁶ Note the words used by Ulpian, , loc. cit.: scripserit, composuerit, ediderit, and contrast them with the words used (cf. n. 4 above) with respect to carmen.Google Scholar

⁷ The last clause shows the distinction be tween liber and the other forms of composition; even though they are defined as sine scriplura, yet a penalty is laid down for anyone responsible for their purchase or sale; the point being that although to achieve their effect they are spoken rather than read, yet they could be published—just as any song or book of jokes—in order to reach a greater audience. Note produxerit = ‘publicized’ not ‘published’.

¹ Mommsen, , op. cit., p. 800 and n. 3, identified the lege with the Twelve Tables, and the s.c. as one probably passed about A.D. 12 under Augustus, which revived the penalties prescribed in the Tables for libellous writings. This is his attempt to harmonize the apparently contradictory statements of Ulpian.Google Scholar

² Its removal to a position next to agere is, of course, pointless unless one had the addition of ex s.c. cautum est; but in itself its removal is bad, as destroying the antithesis. Krueger conjec tures esse ea lege; if this were accepted, it would clinch the matter.

³ As Ferrini, quoted by Levy, says, in defence of his moving ex lege to agere; see Levy, , loc. cit., p. 286, n. 2.Google Scholar

¹ Ad Fam. 3. 11. 2.

² Kubler in P.W., s.v. ‘Maiestas’, col. 547, gives a very misleading impression of the scope of Sulla's legislation on this point by giving a truncated version of this text with conjectural restorations.

³ Professor A. H. McDonald has suggested ‘varia [varium? but cf. Tyrrell and Purser, 2nd ed., iii, p. 236, ad loc] tamen est maiestas’, etc. This would give a perfectly satisfactory meaning, with the added advantage of requiring only the slightest change to the text. Varia would mean ‘uncertain’ in the sense that it was not definite, and hence many things could be construed as being cases of maiestas.

⁴ Cic. De Inv. 2. 53. Momigliano, , op. cit., p. 123, says that the reading in Tyrrell and Purser, 1st ed., iii. 2. 13, is the only one that jives full sense. It reads: ‘ea est maiestas (etsi 5ulla noluit) ut in quemvis declarari liceret’. He admits that this emendation seems far too drastic. But does it give full sense? Why is liceret in the imperfect instead of the present, as is accusetur? Diere can be only one reason, because the clause refers back to the trial of Appius: maiestas is mch that it was perfectly in order for anyone :o declaim against you. But the text has quem-vis, not te, and it is very difficult to know what :an be the meaning of this general clause in past time.Google Scholar

¹ From the time of the Lex Appuleia, 103 B.C. (?).

² Momigliano, , op. cit., p. 123Google Scholar, speaks of the law's ‘notorious extension and vagueness’; is that quite fair? It was less vague than it had been, and extended only in being more definite. Cf. Kübler, , op. cit., col. 547.Google Scholar

³ Cf. Quint. 5. 10. 39: ‘hinc enim quaestiones oriuntur: … Iniuriam fecisti; sed quia magistratui, maiestatis actio est.’ Cf. Cic. De Inv. 2.17. 53: ‘maiestatem minuere est de dignitate aut amplitudine aut potestate populi aut eorum quibus populus potestatem dedit aliquid derogare.’

⁴ Cicero in his definition was attempting to generalize from actual experience; there never was a precise legal definition of the idea. Cf. Kübler, , loc. cit., col. 548; though why he refers to Ad Her. and Cicero, De Inv. to prove that the Lex Iulia contained no definition of the concept I do not understand.Google Scholar

⁵ The case under consideration by Cicero is that of Flaminius in 232 B.C., and the iniuria is physical. The concept of verbal iniuria had not yet developed, and hence Naevius' opponents had to resort to other means.

⁶ For Horace's loose use of mala instead of famosa see Fraenkel, , loc. cit., pp. 195–6.Google Scholar It is rather unimaginative to suppose that Horace is referring specifically to the Twelve Tables as the source of the law under discussion; he is merely using in a joking way the particular phrase, much as we use Biblical phrases and expressions without any intention of introducing a Christian argument. The Tables had formed an important part of Roman secondary education in the near past, as Cicero testifies, De Leg. 2. 23. 59.

⁷ 11. 80–3.

¹ Horace's caution in such matters is shown in the opening stanzas of Odes 2.1.

² Ann. 1. 72.

³ Dio 56. 27. 1. This passage speaks in general terms of action taken by Augustus against authors of libels and their works, and belongs to the year A.D. 12.

⁴ Aug. 55 (see below, p. 179, on this passage); Calig. 16. 1: ‘Labieni, Cordi, Seven scripta senatus consultis abolita requiri et esse in manibus lectitarique permisit.’ Cf. Tac. Ann. 4. 21: ‘relatum et de Cassio Severo exule …: atque illic eadem actitando recentia veteraque odia advertit, bonisque exutus, interdicto igni atque aqua, saxo Seripho consenuit.’

⁵ Mommsen, , op. cit., p. 800Google Scholar and n. 3; Momi-gliano, , op. cit., p. 123;Google ScholarKübler, , loc. cit., col. 551Google Scholar, suggests no date. Levy, , loc. cit., p. 286, astonishingly identifies his self-created s.c., Dig. 47. 10. 5. 9, with that of Paulus, Dig. 47. 10. 6.Google Scholar

⁶ Ann. 4.34. 5. In Ann. 1. 72. 3, he says: ‘nam legem maiestatis reduxerat [Tiberius], cui nomen apud veteres idem, sed alia in iudicium venie- bant…: facta arguebantur, dicta impune erant.’ This is not strictly true; Claudia, in 246 B.C., had been prosecuted for maiestas on account of what she said. Cf. Suet. Tib. 3; Gell. 10. 6; Val. Max. 8.1. 4; Kübler, , loc. cit., col. 546.Google Scholar

⁷ Cic. Phil. 1. 23: ‘Quid, quod obrogatur legibus Caesaris, quae iubent ei qui de vi itemque ei qui maiestatis damnatus sit aqua et igni interdici?’

¹ M. Seneca, Praef. Controv. 10. 5, mentions the burning of books as a punishment first devised against T. Labienus; in what year we do not know; either it was before A.D. 12 or, if the notice in Dio refers to Labienus, Severus' works must have been burnt later than A.D. 12, since Seneca strongly suggests that Labienus was the only victim on that occasion.

² Cf. Tac. Ann. 4. 34. 3: ‘sed neque haec in principem aut principis parentem, quos lex maiestatis amplectitur.’ Cf. Kübler, , loc. cit., col. 551. The position of Augustus, by its permanence, had created a new situation; hitherto, magistracies being annual, it was easy to avoid attacking a magistrate during his term of office. In this sense Augustus was the first to apply the lex maiestatis to libel.Google Scholar

³ It is difficult to know how those who refer the passage of Ulpian, Dig. 47. 10. 5. 9, to a s.c. (identified with that of A.D. 12) explain the fact that in the sources there is no suggestion of intestabilitas as the penalty; if the identification were correct, then the penalty was exile and the burning of the offending publications.

⁴ Aug. 55.

⁵ Cf. Ulpian, , loc. cit., para. 9: ‘etiamsi alterius nomine ediderit vel sine nomine.’ This would suggest that this passage was earlier than Augustus' motion, since here it is allowed to bring a case in such circumstances. But with the interpretation here given everything is clear.Google Scholar

⁶ Cf. Paulus, Dig. 47. 10. 6: ‘quod senatus consultum necessarium est, cum nomen adiectum non est eius, in quem factum est: tunc ei, quia difficilis probatio est, voluit senatus publica quaestione rem vindicari.’ It seems very probable that this passage is in fact referring to the motion of Augustus mentioned by Suetonius.

⁷ The fact that Augustus made libelli and carmina the subject of special investigation when produced anonymously suggests that the s.c. preceded this action of Augustus.

⁸ There has been no attempt in this article to consider the attitude of the law towards speeches made in law-courts. It is clear that such speeches were privileged to some degree—to what degree we do not know—and if a pleader chose to publish such a speech, he would pre sumably enjoy the same privilege. We may compare Parliamentary privilege and Hansard. See Robinson, , op. cit., pp. 36 ff.Google Scholar