The Augustan Empire 43 BC

Halicarnassus or the elder Pliny. It may well be that these libraries were such easy victims of deliberate arson in later times of trouble that their collections would provide relatively few archetypes for transmission, and that the chances were better for books in private houses. Yet from Pompeii and Herculaneum together we have recovered only one library, consisting of Epicurean treatises otherwise lost, and not a single book from any other house. The element of hazard in the survival of books was so great that, apart from the evidence of wide circuladon, largely dependent on use in the schools, of a few major writers like Virgil, Horace and Cicero, no safe conclusion can be drawn about the number of copies ever made. The total loss of Varius' poems or the histories of Cremutius Cordus (officially destroyed but preserved for subsequent distribution) and of the elder Pliny may indicate either a lack of quality or an excess of quantity, which made copying impracticable and allowed most of Livy to survive only in epitomes; but Pliny's Natural History has nevertheless survived, and so have the Neronian pastoralists.

The evidence for the familiarity of the great writers outside the educated elite is very small, almost limited to the few tags written on the walls of Pompeii, which do not extend far beyond arma virumque and conticuere omnes (the opening words of the first two books of the Aeneid) and a variety of odd lines from different parts of the same poem, evidently employed for writing exercises, from places as remote as Masada and Vindolanda.³⁰ Of specifically popular literature we have hardly any traces. When Horace wishes to contrast his own supposedly good taste with that of his down-to-earth slave (Sat. 11.7.95—101), he chooses painting, not literature, as the field of aesthetic expertise. But perhaps Davus could not afford books in any case, or could not read, at least well enough to do so with pleasure. His knowledge of Crispinus' philosophy he attributes to the oral teaching of Crispinus' porter. The press, providing the great majority of people with their main or sole reading today, was represented by the Acta, certainly not mass-produced and hardly likely to have a general appeal.

Where the modern world suggests fiction as the obvious type of literature to attract a wide public, we hear of little but 'the Milesian tale', suitably bawdy indeed and made available in Ladn by Sisenna in the first half of the second century B.C. The Milesian tradition is certainly traceable in episodes of Petronius' Satiricon, such as the tale of the Widow of Ephesus, and may have played a considerable part in the origin of the whole of that work, with contributions from the Greek novel, evidently available to, and perhaps popular with, the large Greek-speaking element in the population of Rome and other Italian cities. The Satiricon, even in its mutilated state, is much too complex and sophisticated a work

³⁰ A. K. Bowman and J. D. Thomas, in JRS 76 (1986) 122, and in Britannia (1987) 125-142 with a useful list of such quotations and their provenances.

to have arisen from nothing,³¹ although, as mentioned above, it fits awkwardly into the genre of Menippean satire and is totally ignored by Quintilian, who would have been hard pressed to recommend it for the training of the young orator, even if he had ever come across a copy of it. Although the low language and the low subject-matter might well appeal to a popular readership, a great deal of literary cridcism and similar matter seems to be aimed only at a very limited circle; and the same is true of the other Menippean satire to survive, the Apocolocyntosis, patently written for circulation among a select group of readers at a particular point in time.

We do possess one writer, from the reign of Tiberius, who stands altogether apart from the fashion and attracted no attention from literary critics, although he may have been considerably more popular and widely read than many more imposing poets. Phaedrus was an imperial freedman, who was at one time involved in trouble with Sejanus. He versified a large number of supposedly Aesopian fables, adding some of his own, including a few on distinctively Roman contemporary topics. He is no master, but writes engagingly and unpretentiously, arousing the question as to how unusual his writing was in an age of great sophistication, and how far he was writing for a distinct level of reader. With his simple language and metre and his improving morals, he appears to be aiming at the younger pupils of thtgrammaticus-, and these qualities probably contributed to his survival into the modern world. The fables would certainly have greater appeal to an elementary reader than the Twelve Tables of early law which at one time seem to have served this purpose; but we have no direct evidence of Phaedrus' use in the schools.

What is most striking in the Roman world is the lack of any basic text which was read by any who could read and listened to regularly by all, as the English bible was for at least 300 years, providing a common focus of language and knowledge. To a certain extent Homer had filled this place in some Greek cities at least in the classical period and probably later; although his language was far removed from colloquial Greek even in the fifth century b.c. and his very bulk made him difficult to assimilate. Virgil could make some claims to have become the bible of Rome, almost as soon as the Aeneid appeared; but the occasions of hearing him read cannot have been frequent, and an influence on Roman life which might have been a major force on the side of humanity and peace was never allowed to become really widespread. It is hard to imagine that any other writer of the period, even Horace or Seneca, can have had even that slight chance of exercising serious influence on the society to which they belonged.

³¹ P. Parsons, in BICS 18 (1971) 5 3—66, sees some parallel to the Satiricon in a Greek papyrus, probably of the second century a.d. (POj5010), suggesting the existence of a picaresque narrative tradition in Greek on which Petronius may have drawn.

CHAPTER 20 ROMAN ART, 43 B.C. TO A.D. 69

MARIO TORELLI

i. the general characteristics of augustan classicism

In the history of ancient art few changes are so dramatically apparent as that which unfolded, gradually yet unmistakably, during the first two decades of the reign of Augustus. This change came about under the banner of a Classicism inspired by the great Attic examples of the fifth and fourth centuries в.с. The origins of this Classicism were, however, remote. In the architectural and art-historical context of late republican 'Asiatic luxury' (luxuria Asiatica), both the Classical models, which were already present in the Hellenistic culture inspiring that luxuria, and the genuinely baroque practices, which were peculiar to middle and late Hellenistic art, had been enthusiastically welcomed by Roman patrons of the ruling class.¹ But in the Augustan and Julio-Claudian age, Classicism became an official artistic programme and one unique to the capital,² and from this centre emanated the models adopted by greater and lesser private patrons, as well as by Italian and provincial municipalities, especially in the West. Both taste and knowledge were so deeply affected that the history of Roman imperial art can to a large extent be seen as a series of variations on and interpretations of the Classicizing message.

In the age of Caesar, official architecture, sculpture and painting were still deeply imbued with a baroque and Hellenistic dramatic force, but they also recalled the distant experiences of the artistic culture common to the Etruscan and Italic world (the koine) of the third century в.с. This is especially discernable in the formal duality of the portrait. In portrait sculpture, an art deeply imbued with local ideology, the spare, incisive, 'realistic' aspects of the Italian portrait in fact co-existed with the distinctly psychological features, full of pathos, of the late-Hellenistic portrait. The point can be made quite simply by comparing the basic,

F. Coarelli, DArcb г (1968) joiff; id. DArcb 4-5 (1970-1) 24iff: id. St. Miscell. 15 (1970) 85ff; id. in Zanker 1976 (e 141) 2 iff; id. in L'art decoratif a Rome (Rome, 1981) 2296".

Zanker 1988 (f 633); Simon 1987 (f 577); Kaiser Augustus tmd die verlorem Republik 1988 (f443), the catalogue of an exhibition at Berlin.

930

linear countenances of the 'Arringatore' (The Orator, c. 100 в.с.)[1125] and of Caesar (с. 50 в.с.)⁴ on the one hand, with the soft, shaded features of the so-called Postumius Albinus (convincingly identified as Cato the Cen­sor, c. 150 B.C.) and of Pompey (c. 60 в.с.) on the other.[1126] The two formal approaches continued to co-exist in the second half of the first century B.C., but the 'Italic' modes tended increasingly to denote municipality or provincial patronage, and they spread eventually to the lowest social and cultural levels of so-called 'plebeian art'. We shall return to this later.

In the official art of the court and the great aristocracy of Rome, the moment of transition from this ambiguous coexistence of 'Italic' with late Hellenistic forms to the decisive selection of Classicism may be situated in a brief period of political and cultural setdement, that is, in the decade which followed the constitudonal change of the year 27 в.с. Shortly before that date, characterisdc late republican tendencies are sdll clearly in play. Portrait sculpture continues to produce masterpieces with a flavour of Hellenistic dynasticism, such as the 'Actium'-type portrait of Octavian[1127] or the 'Gabii'-type of Agrippa.[1128] Decorative painting continues to develop the long established themes of the Second Style, with its characteristic 'open walls' and wide scenic perspectives,[1129]while public and private architecture operate within the framework of models developed between the end of the second and the middle of the first century в.с.[1130] The last decade of the first century was, however, already dominated by the Classicizing language of the Augustan regime.¹⁰ The 'Prima Porta'-type portrait of Augustus embodies the propaganda message of the new convictions of the Principate.[1131] In painting, plain, undisturbed tapestries, across which run slender cande- labras and minute friezes in the Third Style, support reproductions of the great Classical Greek panel paintings;[1132] while architecture and architec­tural ornamentation in marble and stucco echo - in the context of consolidated building types - the Attic, or at least Classical, models of the fifth and fourth centuries в.с.¹³ By now imperial Roman Classicism is completely formed and functioning.

As we have seen, the new style was not in fact entirely new: behind it lay over 15 о years of history. A work like the pediment in Via San Gregorio[1133] sufficiently conveys with its decidedly classicizing character the andquity of neoclassical experience in the city, under the sdmulus of the strong classicizing element in the late Hellenism of Pergamum and Athens. What was new was the pervasive, all-embracing aspect of Classical forms, which freed buildings and their decoration, official sculptures, and urban planning from all that unrestrained baroque freedom (licentia) which came from the effrontery (,audacia) of the Alexandrians. New also was the nostalgic recovery of a Roman and Italian national past onto which was grafted the formal, Classicizing message; and new too was the general and enthusiastic support of the Roman aristocracy and of the local magnates of Italy, the domi nobiles, for the unique programme developed in the capital. Baroque, Hellenistic experiences were thus pushed to the side, to be looked for in the narrow confines of private consumption of art, in silverware and fine pottery, and in the minor genre paintings, landscapes and still lifes, which were placed side by side with copies of classical or great classicizing paintings in the Arcadian gardens of urban villas.

Consistently with the assumptions of the Augustan programme for restoration, all these non-Classicizing forms were assigned to the representation of idylls and escapes, trifles (nugae) and erotic themes, that is, modes and fashions outside of reality, pseudo-messages void of content. But the very limiting of private and public luxuria imposed by the policy of the princeps ended by incorporating such developments, however devalued of meaning they may have been, so that often the Classicizing idiom, which tended to eliminate such risky departures from the austere and ubiquitous realm of official ideology, came to the surface even in the private consumption of art.

The ban on baroque language was accompanied by censure of any element that did not conform to the central plan of moral restoration. Once the military triumphs of the nobilitas were done away with (to be reserved for the princeps and his family), the great public building activity which had been financed by the generals' spoils of war (ex manubiis) came also to an end, along with all the dynastic ideology which it had carried in the last century of the Republic. The grandiloquent decorative pro­grammes, both public and private, which had been aimed at individual glorification - using Hellenistic forms of self-representation - gave way in the public arena to imperial initiative alone, and in private to less compromising 'galleries' populated by the images of philosophers, or athletes or of gods, where otium (leisure) either had exclusively intellec­tual connotations or merely expressed a desire for escape.

This profound 'renewal', then, had its programmatic foundations in the ideology of the state. That was carefully fashioned by the great intellectuals within the circle of the princeps, from a singular mixture of Classicizing ideals, which were developed from the 'inimitable models' of the Greeks, and of national, Romano-Italian traditions, which were organized within the framework of a revival of Archaizing customs and native memories. The new figurative culture constituted a formidable vehicle for the propagation of the religious, political and symbolic elements of this revival in the most remote municipalities of Italy and among the lowest levels of society.

The instrument for the remarkable diffusion of this programme was above all a favoured group of sculptors in marble and bronze of the neo- Attic school. These men had already become established in Italy during the late Republic, working in Rome or Campania in a number of workshops, and controlled either directly or indirectly by such Roman aristocrats as Junius Damasippus, the Cossutii, or the notorious Gaius Verres. First among these workshops in both organization and quality was that directed by Pasiteles, who was head of a school which was well known for at least three generations.[1134] There were, moreover, a large number of lesser, anonymous stone-cutters as well as legions of fresco- painters, also anonymous, to whom the whole of Italy, from the princeps to the humblest municeps, entrusted the decoration of their houses. Along with the even humbler crafters of small-scale work in metal and terracotta, these sculptors revived and developed Classical and Hellenis­tic models in the new spirit, operating within a capillary-like network of workshops, each with its own rules of apprenticeship and instruction, and within a no less capillary circulation of moulds, casts and clay models {proplasmata). Thanks to new discoveries, we now know far more about these than was revealed to us by the well-known anecdote about the plaster models used by Pasiteles.[1135]

Thus the vein of formal inspiration began in a transplantation of neo- Attic craftsmen into a Roman environment which dates back to the middle of the second century B.C., with the activity of the school of

Timarchides, and it must have been re-invigorated under Augustus, thanks to the pax Augusta and the gradual extension of imperial monopoly over marble quarries. The very concentration of refined sculptors' studios around the palace, to which discoveries at the Domus Tiberiana on the Palatine and at Baiae bear witness, must have encour­aged both centralization in the development of models and the creation of schools and workshops far more stable than those which had existed in the past, and thus the formation of an artistic tradition less sporadic and occasional than that of the late Republic. The proof of this is to some extent also offered by the solid fabric of Classicizing style which developed in the age of Augustus and which essentially continued into the reign of Domitian, when there probably occurred a new influx of artists and craftsmen from the eastern Mediterranean, in the wake of the pharaonic building programmes undertaken by that emperor.¹⁷

ii. the creation of the augustan model

The death of Julius Caesar put a sudden end to the grandiose projects of urban transformation cherished by the dictator.¹⁸ It would fall to Octavian Augustus to resume, especially after Actium, the plans of his adoptive father, whose purpose it had been to imprint the Julian name (nomenlulium) on the imperial capital. The first steps of the young princeps were informed by the same dynastic conception that had characterized Pompey's works in the Campus Martius and Caesar's own designs.

Typical of this is the choice of model for his own mausoleum, possibly begun in 27 B.C., which recalls that of the tomb of Alexander;¹⁹ while both the public and the private activities of his appointed successor, Agrippa, between the Campus Martius and the right bank of the Tiber, carried out in the years from 33 to 19 B.C., were certainly inspired by great Ptolemaic models. This can especially be seen if we consider the close link between Agrippa's urban villa across the Tiber (trans Tiberim) — most likely the so-called Casa della Farnesina — and the stagnum (pool) and the Euripus (canal) located at the edge of the complex made up by the Pantheon, saepta (voting enclosure), baths, campus Agrippae and porticus Vipsaniae, all completed or planned by him.²⁰ This foreshadows the similar egyptianizing effects which Hadrian would recreate a century and

Workshops were formed in the age of Domitian to respond to the demands of his colossal building programme, a phenomenon still little investigated (and responsible for the improbable Domitianic chronologies sometimes attributed to such works as the great Trajanic frieze). See the preliminary remarks of M. Torelli, in L'Vrbs - Espace urbain et bistoire 1987 (a 96) 5 76ff.

On these projects and Caesarian town planning in general: Gros and Torelli 1988 (a 41) 117ff and i67ff; H. v. Hesberg, in Kaiser Augustus 1988 (f 443) 93ff.

" H. von Hesberg, in Kaiser Augustus 1988 (f 443) i2iff.

²⁰ F. Coarelli, MEFRA 89(1977) 8i6ff; id. in Kaiser Augustus 1988 (f443) 7iff; Roddaz 1984(0 200) 23 iff (with useful bibliography).

a half later in his villa at Tivoli, with its evocative coupling of baths and Canopus; but it recalls above all the model of urban organization offered by Alexandria and repeated by the Augustan plan of regiones and vici. The tradition of the viri triumph ales of the late Republic was also revived by Augustus with the theatre dedicated to his first heir Marcellus (23 B.C.) and with the restoration of the temple of Apollo in Circo attached to that theatre, thanks to which he was able to reinforce the Apollinian propaganda, launched after Actium, with a more traditional reference to the memory of the nomen lulium which was associated with the first dedicator of the temple, Cn. Iulius (consul in 431 в.с.).²¹ The construc­tion of the temple of Palatine Apollo (36-28 в.с.) next to his house bore the same dynastic imprint. Watched over by the Magna Mater (an obvious symbol of the Trojan origins of both his^wxand of Rome), and by his personal god, the prophet Apollo (who had been a reliable guide during the clash at Acdum), the house evokes the model of the palaces of Hellenistic kings, which were likewise protected by the great personal deities of the basileusP- And another reminder of Egypt is offered by the solarium, the colossal sundial centred on the obeliscus Augusti, which he laid out on the extreme northern boundary of his city, a most unusual horologium set as it were in a gigantic garden (10 в.с.).²³

In his other opera triumphalis, the Forum of Augustus,²⁴ which he vowed in 42 and inaugurated in 2 B.C., he follows yet again in Caesar's footsteps. On the pediment of the temple of Mars Ultor (Mars the Avenger), at the end of the Forum, Caesar's divine ancestress Venus Genetrix stood side by side with Augustus' Mars Ultor: a sacred marriage which was to be interpreted in a dynastic sense. To this Augustus added statues representing his own ancestors, mythical and historical, on one side of the Forum, and these faced a Romulean procession of the great men, the summi viri, of the city's history, on the other side. The gens of the new Aeneas and the new Romulus thus recapitulated the historical fortunes of Rome, a theme which was, as we shall see, developed in the Ara Pacis and which well displays the substance of the ideology of the Augustan Principate: the princeps, and he alone, had the right to mix or to juxtapose the public with the private. And indeed, in 19 B.C., Cornelius Balbus was the last triumphing general able to erect an edifice from his spoils, the theatrum with the crypta Balbr, after him there would be no more triumphs, save for those enjoyed by the emperor or his family, and consequendy monuments would no longer be erected to celebrate the personal glories of the Roman aristocracy.

We may safely assert that, even if some works were completed a little later, in the course of the penultimate decade of the century the most complex and daring initiatives in architecture and urban planning of the Augustan period came to an end. Nevertheless, even where he did not erect new buildings or where the ideological interweaving of past and present was more subtle, Augustus imposed through his programme a new coherence on buildings which already existed, restoring a few — in his Res Gestae he claims to have restored eighty temples! - or adding some others, so as to compose a unified ideological design whose aim was the customary glorification of his own role as princeps. This is apparent above all in the old Forum Romanum. Here the reconstruction of the main temples and public buildings - the temples of Castor and Pollux, of Saturn, and of Concordia, the basilicas, the Curia, and the regia - have the evident objective of imposing the nomen lulium as extensively as possible on the most majestic urban complex of the city, while at the same time 're-employing' all the venerable buildings within the context of his personal propaganda. Thus new messages were skilfully juxta­posed with or superimposed on ancient ones: his wife Livia was paired with Concord (a.d. 6); his grandsons theprincipes iuventutis were joined with Castor and Pollux (a.d. 7). But a quite different and crucial role was played by a few additions to the Forum which were statements of Augustan policy, that is, by the dynastic temple of the Divine Julius - which was set between two triumphal arches of Augustus, the one celebrating his victory at Actium (29 в.с., later tactfully transformed into a Dalmatian arch), the other his Parthian success (19 B.C.) - and by the Portico of Gaius and Lucius (a.d. 2). These monuments very elegantly exclude 'undesirable' buildings from the open space, undesirable either because they were associated with other aristocratic families, or because they could not be integrated into the new, Augustan ideological system: for example, the basilica Aemilia on the one hand, the regia and the aedes Vestae, which were replaced in the conception of the princeps by his residence on the Palatine, on the other.²⁵

Although beset with continuous crises over the succession, the years of the consolidation of power were consistently devoted to these exercises in sophisticated urban 'inlay', which in fact destroyed or radically transformed earlier meanings as surely as his settlement of the constitution. But these years were also devoted to the reorganization of the administrative structure and functioning of the city, one similar to and as necessary as that enforced by Agrippa in his cura aquarum. In addition to their use in the collection of customs and the control of public order, the ancient, fourth-century city walls came again to mark

²⁵ Coarelli 1985 (e 19) n 21 iff; with Gros 1976 (f 397).

the boundary between city and country through the systemadc resto­ration of all the city gates (between a.d. 2 and 10), thus reaffirming the powerful symbolic value of both wall and gates which was to find a very special echo in the architecture and town planning of the Augustan cities of Italy and Gaul. In the years 8 and 7 B.C., the banks of the Tiber were set in order, the night watch (the cohortes vigilum) was established, and the city and the continentia tecta (the inhabited parts of the city and suburb) were divided into fourteen regions: together these completed in the organizational sphere the readjustment which Augustus had already begun between 12 and 7 B.C. in the religious sphere, with the institution of his personal cult in the sites of the compita, the shrines of the urban crossroads.²⁶

In his Res Gestae Augustus placed great emphasis on his personal benefactions in the development of the city. Despite the customary official phrasing of the document, he goes far beyond the accepted practice of normal elogia and commentarii, not only in the boundless immensity of his achievements, but especially in the emphasis on the intensely urban character of his efforts, which did remain until the time of Domitian the grandest and most comprehensive in the history of the city: 'a city whose magnificence was not equal to the majesty of her empire, and which was exposed to floods and fires, he so improved that he might rightly boast that he left a city of marble which he had received made of brick' (Suet. Aug. 28). It is surprising then that the architectural expression of such a project should be essentially very limited and conventional. The great piazzas enclosed with porticoes and with temples at the end or in the centre, such as the Forum of Augustus and theporticus L,iviae (a.d. 7), or open with temple at the centre of porticoes on three sides, as in the temple of Apollo Paladnus and perhaps in the Pantheon, are the most common elements of the Augustan contribution to the city. Perhaps its most novel and experimental aspect remains the work of Agrippa in the Campus Martius, with its intentional confusion of public and private, of dwellings, public parks, recreational spaces, boulevards and reflecting pools, a confusion which would reappear explicidy only in Nero's grand creation of 'private' buildings with strong dynastic connotations, from his villa at Subiaco to his Golden House. The Alexandrian model - which would then spread in private life, from the architecture of tombs to the Egyptian imagery of the late Second and Third Styles — is not merely mannerist exoticism, compar­able to the chinoiseries of eighteenth-century Europe. It is also a recognition of the deep affinity between the realities of life at Alexandria and at Rome, both social and cultural, and at the same time of their

²⁴ F. Coarelli, in Kaiser Augustus 1988 (f 443) 7jff.

correspondingly deep diversity, which leads to the longing for, and the privadsadon of, the models derived from that particular variant of Hellenism.

On the other hand, the programme of restoradon required that the convicdons of 'western' and 'national' values be defended, consolidated and reasserted within the framework of a pervasive pietas. Thus can we account for the systematic use of conventional architectural forms — temples on a podium at the end of a porticoed square - which had been the patrimony of Roman culture for over a century and a half, and which were now stripped of the late Hellenistic effronteries to be found in the great Latin and Campanian buildings between 120 and 50 B.C., and clothed again in neo-Attic forms. From the sculptor Diogenes, who was responsible for the decoration of the first Pantheon, to the extremely skilful stone-cutters, who created the elegant architectural partitions for the many sacred and public buildings ordered by Augustus, it was Athenian craftsmen who were the leaders in the neoclassical 'purifica­tion' of architectural decoration.

The dominant models are, as in all art forms, those of high Classicism, with a special and understandable predilection for the prototypes of Periclean Athens. The caryatids of the Attic neoclassicist Diogenes are not preserved for us, although we may suspect a Classicizing sculpture, caryatids of the Cherchell-Tralles or Venice-Mantua type.²⁷ But very clearly intended to evoke religious and revivalist memories are the copies of the korai from the portico of the Erechtheum in Athens, which were introduced into the upper storey of the Forum of Augustus and recopied in its replica at Emerita (Merida, in Spain): these maidens, who are better understood in their role as kanephoroi (basket-carriers), encircled the shrines (heroa) of the summiviri and of the nomen lulium, just as those at Athens are there to honour the tomb of the first king of Attica. All these architectural forms, from the mouldings of the temple podia to the Classical capitals, are crafted in a refined manner based on sharp and subtle lines, on a few projections from the representational plan which give a 'stiacciato' effect (that is, one of very low, flat surfaces) and on clear, undisturbed surfaces. The need for convictions, implicit in the search for the ideological models of Classicism, both shared and secure, asserts itself even in style, a style straining to evoke formal clarities and absolute definitions.

As to private architecture, innovations had already appeared in the culture of the late Republic, and the Augustan age added litde to what had already been developed, other than its own neo-classical taste in decoration. Large mosaic pavements in black and white, walls painted in

²¹ Documentation in E. Schmidt, Ant. Plastik 13 (1973); id. Gtscbichte der Karyatide (Wurzburg, 1982).

the Third Style, plain impluvia, and symmetric peristyles: these are the main contribudon of an age concerned with returning to normal all that was bizarre or baroque in the domesdc architecture of the late Republic.²⁸ Much broader was the spectrum of funerary typology, which reflects better than any other aspect of the culture the fundamental stratification of society, the ambitions of social ascent, the unifying force of the principles of the court in artisdc culture.²⁹ Columbaria (tombs with niches for funerary urns) begin to proliferate to meet the needs of the less affluent social classes, while the late republican model of the naiskos, or shrine, was replaced in the preferences of the middle and upper classes of society by the tomb set on a tall, austere, archaizing cylinder: the most celebrated examples of this are the tomb of Caecilia Metella at Rome and that of Munadus Plancus at Gaeta, and that colossal exemplum, the mausoleum of Augustus. This taste for the exodc also provides a chance to indulge in such oddities as egyptianizing tombs in the form of pyramids. Above all the link — one derived from the practices of Hellenistic dynasts - between tombs and suburban estates, gardens or villas, grew even stronger than it had been, showing that these pyramids were not oddities, but that they too are to be included within the framework, already noted, of the 'bourgeoisification' of the royal cultural models of late Hellenism, a process increasingly evident as one penetrates the maze of private culture.

Naturally all this exists in delicate balance with the classicizing tradition, even in sculpture in the round. The programme of sculptural decoration of the Villa of the Papyri at Herculaneum³⁰ may have been due (as appears more likely) to a great intellectual of the Caesarian age such as L. Ateius Praetextatus, working for the patrician Claudii Pulchri, or (as some prefer) it may have been created a little later for the Calpurnii Pisones. Either way, it draws from a vast range of sculptural traditions in order to realize an articulated representation of the ideology and the ethical models of the leaders of society in the years of the civil wars. The classicizing formulae, which reach their peak in the ideal coupling of the Doryphorus/Achilles of Polyclitus with the Amazon/Penthesilea of Phidias, pass from the prototypes of the high fifth century в.с. through the late-classical — Lysippus' Hermes in Repose comes to mind — to end with the Hellenistic, found in garden sculpture. The choice of the prototype to be copied, developed and re-echoed is directly linked to the

^a There is no standard work on Augustan domestic architecture and the relationship between it and painted, marble and stucco decoration. See in the meantime D'Arms 1970 (e jo); P. Zanker, JDAI 94 (1979) 46off; Mielsch 1987 (f 302); Neudecker 1987 (f 513). Most interesting are the remarks of Leach 1982 (f 465).

Eisner 1986 (f 357); von Hesberg and Zanker 1987 (f 418).

M. R. Wojcik, Ann. Fae. Lett. Fibs. Perugia 16/17 (1978/79-1979/80) 359^ amplified in La villa dei Papiri ad ErcoLmo (Rome, 1986).

type of message which was intended: loftier and richer in ethical or political content, for sculptures copied from the Classical; lighter, more idyllic and epigrammatic, for works drawn from the Hellenistic reper­tory. Naturally in the public part of the house forms and messages are of a higher, Classicizing tone, while in the private area devoted to leisure the prevailing models are Hellenistic or at least escapist. The boundaries between these two levels are obviously very fluid, especially in houses, a fact which encouraged the mixing of genres and idioms in sculpture as well as in the other figurative arts.

The leading patrons called on the expertise of the neo-Attic masters, whom they bound to themselves as freedmen clients, as the above- mentioned case of the Cossutii shows. Already extensive under the late Republic, production expanded even further in order to furnish the town houses, country villas and suburban estates of the Roman aristoc­racy and the domi nobiles of Italy with candelabras, tables, seats, and neoclassical and archaizing reliefs.[1136] These too express in concrete form the same atmosphere of idyll and escape which pervades architecture and painting. But to the same craftsmen and the same workshops are owed the last creations of Hellenistic culture on Italian soil, such as the Athlete of Stephanos, one of the masters of the school of Pasiteles, and above all the copies - either in bronze, with the technique of moulds and of clay models, or in marble, with the technique based on the pointing process - of great Classical originals: these are the key to the decoration of public and private buildings, with all the weight of traditional meanings or of meanings symbolically revived within the Roman context.[1137]

Because of their talent for copying, these craftsmen had to contend with a series of operations of 'assembly' and 'disassembly' of their own creations. Particularly significant is the operation undergone by the 'Cavaspina', an epigrammatic sculpture which was certainly well known and is late Hellenistic in conception, as can be seen in the copy in London: all the same, in the bronze copy at Rome its head echoes the severe style.[1138] The technical ability to reproduce sculpture relatively easily, when joined with a widespread 'culture of artistic canons' (modelled on that of literary canons), forged the opportunity for a whole series of formal tropes: archaistic heads on Classicizing torsoes, or Hellenistic draperies on naked limbs in a Classical manner, are to be read as stylistic metaphors and transpositions meant to express variationes, rhetorical elegantiae which do not impair the content. In reality, as it is easy to see in Cicero's superficial remarks in commissioning the decoradon for his Tusculan villa,³⁴ this new attitude prefigured that complete devaluation of the messages of the originals which would become typical from the later Julio-Claudian period. In that era copies of great Classical originals, such as the Mantua-type of Phidias' Apollo, are turned into banal lampstands in the townhouses of the Pompeian bourgeoisie, or reversed copies can be discovered facing each other to frame a doorway, as was the fate of the Pothos attributed to Scopas. From earlier symbolic 'translations' of their original content, the better to adapt it to the needs of the high Roman aristocracy, it is an imperceptible slide into pastiche and kitsch, a transformation which is also to be blamed on the gradual loss of coherence of formal values. The growing indifference to organic unity and stylistic coherence prefigures the indifference to content which would represent (with the exception of the great imperial complexes) the doctrine dominating decorations in the high empire.

However, the neo-Attic workshops had an even greater task than that of copying for public and private furnishings: this was to work out a sculpture in the round and in relief to exalt the virtus and the pietas of the princeps, to embody in another language the dynastic ambitions of Augustus and the climate of restoration of national values connected with them. Hence the aforementioned (and completely Hellenistic) concentration around the palace of intense activity in copying and development of the severe, Classical and late-Classical styles with models of terracotta or plaster, which were found at the Domus Tiberiana in Rome and the imperial complex at Baiae.[1139] The Augustan programme called for the suppression of the highly visible phenomenon of self- glorification by aristocratic generals in favour of the restoration of mos, custom, and of the different degrees of dignity to which the typology of the statues was correlated. Thus, at the beginning of the Augustan age, Agrippa could still celebrate his own naval victories with an heroic statue inspired by images of Poseidon;[1140] and this could be echoed, among the domi nobiles, by the heroic statue of the Ostian duumvir Cartilius Poplicola, commemorating his naval achievements, which were also extolled on the frieze of his sepulchre.³⁷ But the subsequent reduction of military and governing functions by the senatorial aristoc­racy favoured a rapid return to mos. Each function entailed a distinct type of portrait statue: statuae augurales and pontificates (capite velato, with lituus and sacrificial patera) to commemorate priests; triumphales (with lor tea, togapicta, hasta) for recipients of triumphal honours; loricatae (with lorica) for military officers; consulares (with toga and rotuli) for consuls; equestres (with tunica and paludamentum) and sella curuli sedentes³⁸ for those govern­ing with imperium military and civilian provinces, respectively.³⁹ Peri­pheral regions conformed relatively quickly to the urban model: the honours granted by the Cretans and the Herculaneans to Nonius Balbus⁴⁰ still reflect late-republican practices in the number and even the forms of the statues dedicated to him, but we soon meet the cuirassed statue of M. Holconius Rufus which celebrates, according to its appearance, his military tribunate a populo,^ while such precious docu­ments as the Barberini togatus illustrate both senatorial reassertion of the ius imagtnum (the right to display the death-masks of ancestors who had held public office) and the power of the model of traditional political representation imposed by Augustus.⁴²

Neither the princeps himself nor his family failed to observe these norms. Famous statues, such as that from the Via Labicana, depicting Augustus as pontifex maximus, or that recently discovered in the Euboean Sea,⁴³ reflecting his imperiumproconsulare maius and his iusgladii, fit perfectly into the typology respecdvely of statuaepontificales and statuae equestres. But the profound sense of Augustan mystification is best felt in the most famous statue of the princeps, the Augustus of Prima Porta.⁴⁴ Probably intended as a statua triumpbalis in connexion with the honores of the Parthian Arch, it celebrates through the figures on the cuirass deeds worthy of a triumph (res triumphi dignae), the return of the Parthian standards, an event which Augustus, with his accustomed skill, did not wish to be celebrated with a triumph. At the same time the statue presents a princeps uncharacteristically barefoot, in a heroic pose which is emphasized by the 'quotation' of Polyclitan ponderatio. Here as else­where, the transgression of mos, is confirmed by apparent reaffirmations of that very mos combined with marginal departures drawn from the tradition of Hellenistic monarchy. The creation of Augustus' official

That is: augural and pontifical statues, head covered and with curved staff and sacrificial bowl; triumphal statues, with cuirass, embroidered toga, and spear; cuirassed statues; consular statues, with toga and scrolls; equestrian statues, with tunic and military cloak; and statues of magistrates sitting in chairs of office. For these concepts: M. Torelli, in A. M. Vaccaro and A. M. Sommella (eds.), Marco Aurclio. Storia di un monumento e delsuo restauro (Milan, 1989) 83-102.

As is shown beyond doubt in the series of statues granted to L. Volusius Saturninus (cos. 5 b.c.) in connexion with the bonores he had received. See most recently S. Panciera, in I Volusii Satumini- Una famiglia romana delta prima eta imperiale (Bari, 1982) 8}(f.

See most recently S. Adamo Muscettola, Prospettiva 28 (1982) zff; for the inscriptions, L. Schumacher, Cbiron 6 (1976) i6jff. ⁴¹ Zanker 1988 (f 635) 331, fig. 259.

« M. Torelli, Index 13 (1983) 5890, with P. Zanker, Win. Zeitscbr. der Humboldt Univ. Berlin 31 (1982) 307ff; id. 1983 (f 631) 25iff.

⁴³ M. Hofter, in Kaiser Augustus 1988 (f 443) no. 168, p. 323ft and E. Touloupa, ibid. no. 149, 31 iff. ⁴⁴ See above, n. 7.

portrait and the parallel evoludon of private portraiture in the second half of the first century в.с. take us over the same route. Portraits of the La Alcudia-type and the Acdum-type, such as that of Agrippa, still follow the tradition of dynastic portraiture which flourished in the inflamed atmosphere of the Second Triumvirate. Echoes of this style are also to be found in private portraiture, even of women, as is shown by the extraordinary gallery of busts from the tomb of the Licinii.

The creation of the Prima Porta-type, which is dated by coins to the period when Octavian proclaimed himself Augustus (27 B.C.), but which ought perhaps to be associated with his triple triumph of 29, is the first consciously and decisively neoclassical step in portrait sculpture. Its success is witnessed by the number of copies, by its use over the whole span of Augustus' reign and beyond, and by its close connexion with the Augustan programme, stripped as it was of any glamorous dramatization of dynastic power, and lit from within by the aura of the numen, the divine nature. When we can glimpse in the better copies, such as that from the Via Labicana, the high level of the original, we can perfectly understand the sense of the message which permeates the extremely delicate workings of the surface, the accurate, almost aca­demic, depiction of the hair, and the balance between a well-observed bone structure and a lightly shaded skin, that is to say, the successful distancing of the image from worldly concerns. In a word, on the formal level, the antithesis between the 'realistic' Roman portrait and its 'psychological' Hellenistic rival is resolved, through appeal to neoclassi­cal modes of expression. The Classicizing assurance here becomes assurance of the rebirth of a charisma which is ancient, aristocratic, national, and therefore neither heroic nor Hellenizing, the aura of one who is 'leader', princeps, of a universal following, clientela, and confirmed as such by his divine origins: numen adest, a god is present.

Neo-Attic workmen were also engaged in the creation of the most important monument of Augustan sculpture, the Altar of Peace, Ara Pacis, which has come down to us in an exceptional state of preserva­tion.⁴⁵ Voted (constitute) by the Senate on 4 July 13 B.C., the date of the princeps' return from Gaul and Spain, and consecrated (dedicata) on 30 January 9 B.C., the wedding anniversary of Augustus and Livia, the monument restated, but in a form much more grandiose and with the much more pronounced maiestas, majesty, of the lex arae (the sacred law concerning sacrifice at the altar), the motifs which had appeared in an altar dedicated to Fortuna Redux in 19, near the temples of Honos and Virtus outside the Porta Capena, to celebrate the return of Augustus from the East. Both altars wished to exalt in public forms a custom which was traditionally private and informal, the ire obviam (in Latin) or the

⁴⁵ Torelli 1982 (p 596) 276; S. Settis, in Kaiser Augustus 1988 (p 443) 400ff.

apantesis (in Greek), that is the going to meet a person of high rank outside the traditional boundaries of the city - here represented at the southernmost extremity by the Altar of Fortune Who Brings Back, and at the northernmost by the Altar of Peace. In fact both monuments were intended as substitutes for a triumph which Augustus no longer wanted (Flor. 11.34). However - and this is a typically Augustan trait — the renunciation of the triumph and of the excessive honours voted by the Senate was here rewarded with the establishment among the forms of state ceremony of a private custom with a dynastic flavour. The celebration of the return (reditus) became in this way an integral part of the prerogatives of the princeps, through a process in which the Ara Pacis is the basic point of both arrival and departure.

The placing of the monument, beside the Via Flaminia but open to the Campus Martius, is significant. In this case the northern boundaries of the city are imaginary (as is the 'realistic' depiction of the reditus on the reliefs), but setting the altar a Roman mile from the pomerium is a concrete representation of mos, insofar as it separates imperium militiae from imperium domi, the imperia of war and peace. According to juridical tradition, in passing this imaginary line the magistrate was obliged to take on the clothes and demeanour of imperium domi. Placing the altar at this point (where at that time the new pomerial line was drawn) is a clear announcement of peace, and at the same time it is the result of that choice and it alone (not of some obscure cabbalistic leanings), fully conforming to the Augustan habit of formally reviving traditional values, even though they may be introducing nova exempla.

Evocation of the past extends also to the shape of the monument, which is a traditional U-shaped altar set at the centre of a small enclosure. With its imitation of pillar posts at the four corners and of wooden panelling within, this enclosure is intended to reproduce a templum in terris, a space set aside for auspicia and auguria. At the same time, with the two doors (which are contrary to the norm for augural templd) and with the metallic appearance of the vegetal decoration on the exterior, it also recalls the shrine of Janus Quirinus in the Forum. Both suggestions serve to evoke the aura of augural charisma created by the princeps around his own person and the message of peace implicit in his return. The choice of the double model - augural temple and Janus Quirinus - is also reflected in the themes of the decorations in relief which embellish the exterior of the enclosure. The lower part of these reliefs presents swags of acanthus leaves populated with Apollinian swans, imitating metalwork and thus the bronze structure of the Janus Quirinus.

The upper parts of these exterior reliefs present friezes with human figures. On the long sides facing north and south these depict a procession. This cannot be a procession of 13 b.c., since that never took place, nor one of 9, which if it did occur would not have seen among its participants Agrippa, who is shown on the frieze but who had died in 12. It is rather a theoretical, idealized depiction of an imperial reditus for which it clearly aims to establish a norm. It means to depict the reditus of 13 B.C. not as it was but as it should have been, so that in future the return of the princeps might be marked by that same ire obviam, with the same participants and in the same order. An order of procession very carefully worked out by protocol embraces both sides: priests from the ordo sacerdotum in front (pontifices and augures on the south side, XVviri and VHviri, on the north) are followed by members of the domus Iulia ranged according to the ordo affinitatis, their ranking by relationship to him, which was prescribed by mos and by Augustus' testamentary wishes. He himself is presented, significantly, in the robes of one sacrificing for his own return, a focal point between priests and relatives. The observation of details of protocol is extremely careful, as is shown, for example, by the presence of the flamines out of order at the shoulders of an Augustus presented in his role as pontifex maximus (another chronological 'impre­cision'), or by the distribution of the two branches of the family on two sides, following firm genealogical logic. As usual, details appear on the frieze which have no relevance to protocol, but which allude rather to matters of status or propaganda, such as the elder Drusus shown in military costume, or the two children Gaius and Lucius Caesar dressed in the manner of participants in the lusus Troiae. The panels beside the doors depict the goddess Roma between Honos and Virtus, and Venus-Tellus- Pax among heavenly breezes (aurae caelestes), on the east side; those on the west, Mars and the lupercal, and Aeneas sacrificing the Laurentine sow, with a complex interweaving of meaning and structural responses between themes and iconographies.

Iconographical echoes among panels on the same side serve to confirm common meanings within the diversity of subjects. Aeneas and Mars, founders respectively of the gens Iulia and the populus Romanus, are paired — as would happen in the Forum of Augustus — by the omen of the discovery of a mythical animal (the sow and the she-wolf). This prodigy augurs the beginning of different heroic ages and different families, but these are united by the fact that Aeneas was the son of Venus while Mars was her husband, and she in her turn appears on the other side of the monument in the position of the templum which, according to augural law, is sinistima, or the most favourable of all, and rightly so. On this side the iconographical resemblances serve to establish the indivisibility of the pairing Roma—Venus (a couple later consecrated by Hadrian in his colossal temple) and Roma-Pax, a pax Romana in which Rome, flanked by Honos and Virtus, provides the ethical and political key to the monument, where Venus—Pax among the aurae caelestes provides the religious key. Here there is also a series of possible combinations, running from the formulaic 'pax terra marique parta' to the less ritual but more inclusive 'Aeneadum genetrix, hominum divomque voluptas' of Lucretian memory. These two goddesses, representing divine time (aetas) and successful conclusions (res prospere gestas), and Mars and Aeneas, embodiments of heroic ages (aetates) and of beginnings (initio) on the west side, correspond precisely with each other, symmetrical both directly and chiastically. With a perfect circularity of thought and expression, Rome and Mars represent the dimension of the urbs, Venus and Aeneas the dimension of the gens: the origins and fulfilment of both are evoked moving from west to east, their revivalist character in the opposite direction. Augustus proceeds from the Via Flaminia across the space of the templum, with the passage rich with omens (augurium augustum) over the central augural line, and peacefully celebrates the triumph offered and refused, moving between the two goddesses to leave the temple as the new Aeneas and the new Romulus (proceeding east to west). In the anniversary sacrifices of ₃o January and 4 July, entering from the west and leaving from the east side, the princeps or the priests on his behalf experience anew the 'historic' sequence of the primordia urbis and the primordiagentis (the beginnings of the city of Rome and the Julian family), to bear witness to the fact that, thanks to the new Aeneas and the new Romulus, city and family are turning again to the perfection of a new age, nova aetas, a novus ordo saeclorum.

The style is rich in meanings, all of them playing within the purely traditional framework of augural law, of priestly ritual, of the ius imaginum — besides Augustus, only Agrippa and Appuleius Saturninus, as adult relatives and holders of curule magistracies, have a recognizable likeness on the southern frieze of the altar — and of the will of the paterfamilias. The style tries to underline the quality and unity of these diverse messages with the variety of languages and the generally Classicizing patina. The tiny frieze crowning the altar, which depicts the procession of the annual sacrum composed of the colleges of priests and Vestals with their appropriate victims, has however a didactic tone that has very little classicizing about it, being rather a faithful transcription of the lex arae and thus bound to traditional forms of thought and expression. Composed of single figures in fairly high relief, this style reappears in the small friezes on triumphal arches, such as those of Titus in Rome and of Trajan at Beneventum, and it is the most susceptible to 'plebeian involutions', of which the style of the small frieze on the arch of Constantine is but the culmination. This level of discourse necessarily simplifies and rejects all tendencies of Hellenistic embellishment, but it co-exists with the loftier level of Classicizing abstraction in the great frieze of the procession, where the elimination of any reference to space and dme (a function of the non-realistic character of the representation) corresponds to the fully neoclassical rendering of the faces and postures of the participants in the procession and the rite. A comparison is often made with the frieze on the Parthenon but this refers in a highly idealizing way to the subject-matter of the Ara Pacis: the style of the monument depends rather on late Hellenistic experiments of a classiciz­ing nature, beginning with the great frieze on the altar at Pergamum. This distinction helps us to understand the more decidedly Hellenistic character of the minor panels, born of the same tradition (we can compare them with the Telephos frieze on the Pergamene altar), in which it is much easier to observe the composite nature of the representation, consisting of classicizing figures set against an idyllic Hellenistic landscape. The slight but perceptible difference of style between panels and processional frieze is closely tied to the diversity of genres in the two parts: in the frieze courtly, solemn, timeless and rhetorical in the grand style, but in the panels, seemingly contradictory but callimachean in flavour, that is, Classicizing and pathetic at the same time, as well as homerizing and grandiose in the style of the Hellenistic epyllion. In any case, these diverse stylistic realities, all of them part of the same monument and the same workshop, are perfectly understand­able in terms of a neo-Attic culture — one whose strong propensity for elaborate toreutic models is so evident in the frieze of acanthus - a culture acclimatized for some time in Rome and now able to express in accomplished form the regime culture which was now fully functioning in the last decade of the first century в.с.

Painting, however, is even more revealing of the profound changes that occurred in the middle years of the Augustan Principate. The origins of the extremely baroque Second Style can be fixed chronologi­cally at the turn of the second to the first century B.C., and ideologically in the yearning for the impressive spaces and the luxury of decor of late Hellenistic royal palaces. The years of Caesar's brief and brilliant career saw the highest level of luxuria expressed by the extraordinary painted architectures, conceived and executed by expert scene-painters on the walls of patrician town residences or of aristocratic villas in Latium and Campania. The decorations of the Roman house on the Esquiline (70 в.с.),⁴⁶ and in the villas of the Mysteries (60 в.с.),⁴⁷ at Boscoreale (60-50 в.с.),⁴⁸ and at Oplontis (50 в.с.),⁴⁹ count among the most significant examples of the high level of quality of this painting, which must be

« P. H. von Blanckenhagen, MDAl(R) 70 (1965) io6ff; Gallina 1964 (f 580).

Editioprinceps by A. Maiuri, La Villa dei Mislen (2nd edn, Rome, 1947).

⁴⁸ B. Andreae, in Kaiser Augustus 1988 (f 443) 273fT.

⁴'' A. De Franciscis, PP 1973, 43 ĵff; id. in La regione sotterrata del Vesuvio (Naples, 1982) 907^ (with earlier bibliography).

assigned to the period between 70 and 50 B.C., linked as it is to the baroque in all the other figurative arts between Sulla and Caesar.[1141]Decorative painting under the Second Triumvirate and in the early years of the reign of Augustus shows the obvious signs of a crisis in this baroque. Augustus' house on the Palatine,[1142] decorated after he acquired the property from the orator Hortensius in 36, is a precious document of that crisis and, more generally, of figurative art in the decade before Octavian assumed the title of Augustus. One of the two libraries of the domus is marked by a very traditional wall in an austere Second Style: without 'open walls', without effects or perspective, and without copies of famous classical paintings, it essentially offers only a false marble incrustation rendered illusionistically in paint. Other areas, such as the ramp connecting the domus with the temple of Palatine Apollo, the great tetrastyle hall (oecus), or the Room of the Garlands, show that 'open walls' are confined to the upper parts of the walls. This lesser austerity in decoration, compared to that of the library, indicates the less 'official' character of these rooms. But the 'open wall' with a perspective view and the loss of structural consistency in the decoration of one of the two small rooms (no. 11) to the sides of the reception hall (no. 10), and likewise the insertion of the central painting in bedroom no. 14, reveal the even more private character of these areas. This is most noticeable in the small and extremely private annexe (diaeta, no. 7) at the end of the north-west portico of the peristyle, where we find the greatest novelty of the time, a room entirely decorated with a monochrome black back­ground, festoons hanging from small, non-architectural pillars and from very slender candelabras, and idyllic sacred landscapes painted in yellow colour, superimposed: technically we have already reached the Third Style, as in the Black Room in the House of the Farnesina a decade later. It is thus easy to understand why Vitruvius, wridng in this very period before 27, penned his invective (vn.5.3) against just such effronteries, which threatened the physical consistency of painted buildings and with it the informing principle of Classical representation, mimesis, the imitation of reality.

The trend lamented by Vitruvius made giant strides in a relatively brief time. The House of the Farnesina (which was probably Agrippa's urban villa)[1143] at this point features slender architectural forms and paintings imagined as centrally suspended on walls which are still Second Style, in contrast with the Black Room in full Third Style; whereas the so-called House of Livia, an extension of Augustus' House on the Palatine, with its less realistic architecture, large paintings, monochrome friezes and candelabras, belongs about halfway between the House of Augustus and the Farnesina, that is to say, in 50-2 5 B.C.⁵³ In this particular period, marked by the conquest of Egypt and the Actian triumph, we find the triumphal entry into painting of egyptomania, which informs both the dying Second and the nascent Third Styles. Besides the well-known contemporary Isiac Hall belonging to a private house on the Paladne, the very recent restoradon of the decoration of bedroom no. 15, the so-called 'studiolo', on the upper, private floor of the House of Augustus, a room decorated a little later than the one on the lower floor (с. 30-25), shows how rapidly the passion for these particular chinoiseries of Egyptian forms and decorations spread, mostly in the non-public parts of houses, and how a taste for both the floral and the filiform expanded, on which the transition to the Third Style was really based.

As we have already seen, the Third Style in theory took shape around the year 30 B.C. The reasons for its appearance and the paths it followed were completely independent of the conquest of Egypt and the conse­quent Alexandrianism, although these are often wrongly invoked to explain the beginnings of the Third Style.⁵⁴ However, the resistance shown in the passage cited from Vitruvius must have lasted at least fifteen years, for it is only around the year 15 в.с. that we find the first examples of the Third Style on a large scale, as in the pyramid of Gaius Cestius, built before 12 B.C., and the Auditorium of Maecenas, which certainly predated his death in 8 в.с.⁵⁵ In spite of its non-mimetic and therefore unrealistic and fundamentally anti-classical nature, the new style paradoxically responded perfectly to the expressive demands of Augustan neoclassicism; as such it is no accident that it was revived as the official decorative style for the First Napoleonic Empire. This style also helped to achieve a beneficial sumptuary effect, through the complete suppression of luxuria. Valuable objects such as vases of glass and precious metal, gold and silver shields, costly veils and fabrics, painted as if they had been forgotten among the flamboyant building fantasies of the Second Style, appear less and less frequently in the years between 30 and 20 в.с. They give way to values which are no longer sumptuary but ethical, and which are represented by imitations of famous panel paintings placed in a central position, copies or reworkings of classical originals, while the wealth which used to be set realistically

Editio princeps: Rizzo 1957 (f 547).

For problems of chronology, see most recently W. Ehrhardt, Stiigescbicbllicbe Untersucbungen an romiseben Wandmalerein (Mainz 1987).

Pyramid of C. Cestius: P. S. Bartoli, Cli anticbi sepolcri owero mausolei romani ed etruscbi (Rome, 1967); Ehrhardt, Stiigescbicbllicbe jjf, figs. 101—4. Auditorium of Maecenas: ibid I2}f (with earlier bibliography).

among buildings is transformed into costly little objects painted within boards (pinakes) and therefore expressly 'false'. All these 'true' values were enhanced by the virtual disappearance of the architectural frames, which were too reminiscent of thepopuli voluptas, the popular pleasure of the theatre, and which were replaced by monochrome surfaces with narrow borders of minuscule friezes, essentially refined tapestries, in order to emphasize subjects or treatments which were either classicizing or purely escapist, bucolic idylls. The effect was remarkable, as witness the frescoes of the villa at Boscoreale (which is rightly thought to have belonged to Agrippa Postumus).⁵⁶

The ancient relationship between a decoradve style and the dignitas and decorum of its surroundings, the explicit link between the public and private function of the parts of the house and their furnishings and decor, which was so alive at the beginning of the Augustan age, began to deteriorate. This was due most probably to the clear 'death of polities', which rendered such links and distinctions obsolete, as well as to the consequent spread of a culture of escapism, one which was largely based on the pervasive diffusion of sacred and idyllic themes. Having passed from gardens and peristyles to recepdon halls and traditional rooms, these themes were thus translated into stucco for ceilings (the famous stuccoes of the House of the Farnesina come to mind), into large-scale paintings, into pinakes or friezes, into relief sculpture in the small neo- Attic panels to be inserted into the walls, and into genre groups or individual sculptures in the round, representing fishermen and priest­esses, erotes and wild beasts, Apollos demoted to lampstands and Dionysiac figures. The intention was obviously to make sculptures and large paintings stand out against a background of monochrome walls and above mosaic floors which were basically a uniform black and white and devoid of ornamentation, but the devaluation of meaning in all of these scenes is only too evident, if not in purpose then in result.

Official culture having been monopolized by the princeps, the urban nobilitas or the dominobiles who imitated urban models, the private sphere accounts for the great bulk of consumption of art. Hence there was a diffusion of motifs and themes, which originated at court, within the framework of a production for a more or less wide consumption, one favoured in this case by techniques of 'mechanical' reproduction. The highest quality could be found in relief work in metal and in the art of gem-cutting, where the intrinsic value of the material could not help but accentuate the high level of workmanship. There can be no doubt that for such works the contribution of Hellenistic craftsmen was not only great but decisive, as is the case for example in the cameos — perhaps the most Augustan of the minor arts — designed for the imperial house by

⁵⁶ Von Blanckenhagen and Alexander 1962 (f 287).

such Alexandrian ardsts as Dioscurides and his son Hyllos.⁵⁷ Extremely sophisticated silverware, from the exceptionally beautiful pieces from Hildesheim to the Hoby cups signed with the significant name of Cheirisophos ('Skilled-of-hand'), bear the imprint of great Hellenistic relief-work.⁵⁸ In the cups from Boscoreale it also grappled successfully with themes of official 'historical' representations,⁵⁹ and contributed no less than cameos and gems to establishing the official standards of good taste. From this there derived objects with a much larger circulation using less valuable materials. Glass and glass paste adopted forms and themes originally found in cameos, in gems, and in plate of precious stone and rock crystal, in order to create either such exceptional pieces as the famous Portland Vase⁶⁰ or vessels for daily use in transparent and coloured glass.⁶¹ Toreutic works had even wider repercussions. On the one hand they inspired decoration, both vegetal and non-vegetal, for ceremonial bronzes (tripods, braziers, table vessels),⁶² while on the other their style came to be engraved on the humblest terracotta, on the 'Campana' plaques used to decorate public and private porticoes and sometimes even temples (which abound in themes beloved of Augustan neoclassicism), and above all on the well-known and very widespread terra sigillata, which had been manufactured in the workshops at Arezzo since the age of Caesar, and then in their branch kilns in Italy, and later still in Gaul.⁶³

These luxury goods are understandably linked very closely with the higher expressions of the figurative arts, specifically with bronze and marble sculpture in the round, and thanks to them a single cultural fabric developed which cut across virtually all the social classes capable of expressing artistic culture. From the aristocracy to the middle classes of the Italian towns, they could display their understanding of, and their ability to adapt to, both the formal and the ethical models prescribed by the princeps, through portrait sculpture and painting in their houses, through altars placed at crossroads and sculptures among their house­hold furnishings, and through the use of bronzework, silverware and

⁵⁷ On gem-cutting, see the excellent synthesis by C. Maderna-Lauter, in Kaiser Augustus 1988 (f 443) 44iff (with earlier bibliography). On the imperial cameos, see especially H. Jucker, JDAI91 (1976) 21 iff. ⁵⁸ E. Kiinzl, in Kaiser Augustus 1988 (f 445) j68ff.

F. Baratte, he trtsor ttorflvrerie romaine de Boscoreale (Paris, 1986).

E. Simon, Die Portlandvase (Mainz, 1957); cf. Simon 1987 (f 577) i62ff.

On this there is no modern, up-to-date synthesis. See the collection of C. Isings, Roman Glass from Dated Finds (Groningen, 1957).

There is no standard work. See meanwhile E. Pernice, JOAI i i (1908) 2i2ff; M. Bieber, Die antiken Skutpturen und Bronqen des koniglicben Museum Fredericianum in Kassel (Marburg, 1915); R. Thouvenot, Catalogue des figurines et objets de bronze du Musee Arcbiologique de Madrid 1 (Paris, 1927); C. Boube Picot, Let bronzes antiques de Maroc (Rabat, 1971); J. Petit, Bronzes antiques de la collection Dutuit (Paris, 1980).

On all these kinds of materials, see A. Giardina, A. Schiavone (eds.), Merci, mercati e scambi nel Mediterraneo (Societd romana e prodst^ione scbiavistica 11, Bari, 1981).

pottery. The tota Italia of Augustus was expressed in calculated fashion through an unquestioned, capillary-like acceptance of the artisdc culture promoted by the princeps for his own city, and spread by those who belonged to this historical bloc in the towns and colonies of the empire.

iii. from tiberius to nero: the crisis of the model

Basically the reign of Tiberius was a pedestrian repetition of the pattern laid down by the Principate of Augustus. Tiberius' amply documented lack of enthusiasm for public works lies at the root of the extremely modest innovations of the period in town planning and architecture. The only important work in relief in the city of Rome was the temple of the Divine Augustus, called the templum novum divi Augusti, situated between the Palatine and the Capitol in the area of the vicus Jugarius, and this is balanced by the 'private' works dedicated by Livia to the memory of her deceased spouse and now deified father by adoption, the Palatine temple of the Divus Augustus and the colossal statue of him near the Theatre of Marcellus.[1144] These initiatives were of great importance, however, because it was undoubtedly in the early years of Tiberius, especially between a.d. 14 and 23, that the cult of the dynasty was spreading through Italy and the provinces along the path of the usual model of imitatio Romae. The effects of this diffusion are very striking, and they influenced both town planning and architecture, through the proliferation of temples of Augustus or of Rome and Augustus in Italy and the provinces, and of sculpture and decoration as well, with the endless commissions of statuary groups[1145] depicting what was already in an inscription of a.d. 3 3 called the domus divina, the divine house.[1146]

In fact a significant number of the portraits of the first imperial dynasty of Rome are Tiberian in date, and it is in the age of Tiberius that we even find new portrait-types of Divus Augustus (probably the so-called Forbes-type, which arguably comes from his colossal statue at the Theatre of Marcellus), as well as of Livia and of Tiberius himself.⁶⁷ On the whole, however, art in the Tiberian age followed in the path traced by Augustus, but it accentuates the traits of formal stiffness and the progressive loss of organic unity and ideological coherence of the Augustan model. Portrait-sculpture - as in the images of Germanicus and Drusus Minor — is increasingly hard and dry; wall-painting unimagi­natively echoes the schemes of the Third Style; the decoration of buildings and of funerary altars retraces the forms worked out in the mid-Augustan period, but less lightly and brightly.

The last years of Tiberius and the ephemeral reign of Caligula show the first skirmishes of a structural crisis in the formal and ideological model established by Augustus, although output continued to develop with explicit or implicit citations of Augustan works; with Claudius and Nero the crisis was finally revealed. In town-planning and architecture,⁶⁸ the innovations which bore the richest implications for the future were those brought about by the definitive centralization in the hands of the princeps of all the machinery for carrying out public works, and by the huge, concomitant growth in the parasitic dependence of the urban plebs upon him. Augustus and Tiberius - but especially Augustus — had controlled this trend by diverting their investments into large works which bore witness to their own pietas. Claudius, on the other hand, constructed a large new port at the mouth of the Tiber, which joined with the great warehouses and similar edifices at Ostia to facilitate the supply of grain to Rome, and he reorganized the distributions of grain (frumentationes) at Rome, unifying in the porticus Minucia frumentaria the administrative offices for the distribution of food. Along the same lines of ever more grandiose intervention in the development of the city, are Nero's ambitious projects for urban renewal after the fire of a.d. 64. The very few works actually completed basically comprise the baths and gymnasium, which doubled the capacity of those of Agrippa (perhaps introducing a new type of bath plan, called 'imperial'), and the great market (macellum magnum), built on the Caelian Hill next to that dedicated to Livia on the Esquiline. However the triumph of the neo-baroque in this period is seen above all in the creativity of private architecture, especially in plans, and in the new conception of decorative elements. Among the latter, most noticeable is the predilection for rustic ashlar work, rich in chiaroscuro effects, which appears in more than one Claudian monument, from the grand pillared portico of the Porticus Claudii to the imposing facade of the Porta Maggiore, and to the substructures of the temple of the Divine Claudius which date from the earliest years of Nero. Even the decorative motifs on friezes and entablatures and on funerary altars and urns lose the stiff and severe execution of the Tiberian period to take on a new and accentuated interest in deep carving and shadows which enlivens garlands, bucrania (cattle skulls), heads of animals at corners, and so forth, thus setting the stage for the Flavian taste in decoration.

But it was in his Golden House that Nero wished to show off all of the advances which had been won in the period of late-republican luxuria

⁶⁸ On all Julio-Claudian architecture and town-planning in Rome, see P. Gros, in Gros and Torelli 1988 (л 41) 179ff (with earlier bibliography).

and then frozen in the age of Augustus and Tiberius, and thus to make them live again in the light of a century of experience in building and technology. First we may compare the plan of the Domus Aurea with the general conceptions lying behind some of the great private buildings of the emperor Tiberius, that is, the Domus Tiberiana at Rome and the Tiberian villas at Sperlonga and Capri. Beginning with the palace at Rome, which has been revealed by recent excavation and study, Tiberian buildings show strong tendencies to centralize spaces and corridors. Functional areas dominate, while only very small separate complexes, intended to enjoy the best panoramic views, seem to be spread about in asymmetrical fashion: the imperial loggia at Capri, for example, or the grotto of Sperlonga. But the Domus Aurea, a true and proper villa urbana with a baroque taste for painted scenery, has no real centre to its design. It appears rather to be conceived as a cluster of complexes and pavilions of varying character and importance, made up of imperial properties old and new which are unified around an ideal centre, the pool (stagnum) of the villa, on the site later to be occupied by the Colosseum. Thus can we in fact reconstruct the immense urban villa of the emperor, even if much of the original conception was later destroyed by the superimpositions of the Flavians, Trajan and Hadrian, which intentionally obliterated the designs developed for the tyrant prince by his magistri et machinatores, Severus and Celer (Tac. Ann. xv.42). However the thinking behind the project also involved a direct connexion between 'wild' nature (water above all, but also gardens and woods) and separate parts of the villa, which are made to fit in with that nature. That this is so, is confirmed by the embryonic design of Caligula with his ships on the Lake of Nemi — where we see a dramatically astonishing inversion of relationships and values between lake and dwellings — or by Nero's villa at Subiaco. As to the many pavilions and parts of the Golden House, the baroque stamp appears in the famous description of the revolving banquet hall (cenatio rotunda), which was set in motion by an appropriate machine and which was rich in symbolic implications (Suet. Ner. 31). It is also clear in the layout of its various parts, the best preserved of which is now visible under the Baths of Trajan, in the tendency to break up symmetry and recdlinearity, from the trapezoidal central hallway to the famous nympheum known as the Octagonal Room, where the central structure with its side areas designed according to a mixed-line plan reproduces a cupola with pavilions for the first time since the days of the late Republic.

The taste for a residence laid out in relation to a lake is entirely Hellenistic and Alexandrian — in particular, Caligula's idea of the ships on the Lake of Nemi is very Alexandrian, derived from the well-known thalamegos ship of Ptolemy IV. This taste is echoed even in the dwellings of the emerging classes in the Italian cities, where the old traditional plan of the Pompeian domus, which was already clearly in decline in the suburban villas of the late Republic and under Augustus, atrophies and quite disappears, to the benefit of areas intended for the amoenitas of gardens, of views of the sea, and of dining-rooms under pergolas. With his descendants and successors, the luxury driven from the door by Augustus returns through the window of opulent private consumption.

The baroque and dramatic form was the idiom of this revived luxuria. Imperial portraits, soon imitated by private portraits which often followed them slavishly not only in style but even in iconography, reflect the general longing for pathos and effect, by enlivening surfaces which were once so frigid, creating contrasts between scarcely shaded faces and turbulent hairstyles, in a word replacing rigid Tiberian 'fine art' with treatments which were softer and more pathetic and yet which did not - here as in other artistic media - break with the Classicizing essence of the plastic arts. This is especially nodceable in the Medici-Della Valle reliefs,⁶⁹ a splendid series of 'historical' reliefs from the early years of Claudius which were reworked in the Arcus Novus of Diocletian. The monument to which they had belonged was a 'copy' of the Ara Pacis and is generally identified with an Altar of Piety (Ara Pietads), which is known only from an inscription recorded in a manuscript, although some see it as the Altar of the Julian Gens (Ara Gentis Iuliae), which is mentioned in military diplomas as standing on the Capitoline Hill. The parts which survive, and which can be assigned to the enclosure, show processions of magistrates, priests, sacrificers and victims passing in front of certain monuments in Rome, the temple of Magna Mater on the Palatine, the temple of the Divine Augustus also on the Palatine - or, according to some, that of Mars Ultor - and perhaps the temple of Fides on the Capitol. Regardless of who the divinities may be and where the altar stood, the sacra certainly refer to the imperial cult, and celebrate the deification of Livia ordered by Claudius immediately after his accession. The imitation of the Augustan model is extremely clear. The surviving fragments all pertain to the procession and they essentially reflect the paratactic composition of the processional frieze of the Ara Pacis. At the same time, in comparison, they innovate with noticeable hints of movement in the figures and especially with the disappearance of the Classicizing neutral background of the frieze: this is replaced by an almost 'plebeian' insistence on the painstakingly architectural depictions of the temples, which are inserted into the picture in order to locate the event precisely. The rendering also of the draperies, of the texture of the hair, and of the surfaces in general shows signs of the new stylistic climate, which appears to have been already active and widespread in a.d. 42-3, according to the dating of the monument which is universally

^M Torelli 1982 (f 196) 7off.

accepted. Comparison with Tiberian monuments, such as the so-called Altar of the Vicomagistri,[1147] and with Augustan, such as the figured frieze on the temple of Apollo Sosianus,[1148] shows the gradual abandonment by the Julio-Claudian figurative arts of the model created by Augustus. For the 'staccato' composition and the 'stiacciato' relief of the Augustan monument, we find substituted two finely distinguished planes of representation, with the precise appearance of 'natural perspective' in the full-bodied first plane of representation of the Tiberian altar, and with the rich chiaroscuro of the Claudian relief.

In decorative painting Tiberian Classicism carries on the Augustan heritage, especially in the obliteration of all use of the old Second Style, in order to achieve an air of maiestas and gravitas in individual reception areas. The old conception which linked the function of an area with the form and quality of its decoration gives way to a Third Style generaliza­tion and to the proliferation of copies of Classical paintings at the centre of walls. But, as in the developments which we have seen in architecture and sculpture, in the midst of uniform tapestries barely edged with extremely fragile friezes in the Augustan tradition, there spring up in the high Tiberian period extravagant architectural fantasies, filiform, the­atrical wings, and almost metaphysical perspectives made of cande- labras: between the end of the reign of Tiberius and the first years of Claudius, these prepare for the birth of the Fourth Style, an expression of the baroque renaissance in the field of decorative paindng.[1149] The Fourth Style in fact represents a conscious and deliberate revival of the great architectural paintings and dramatic views of the Second Style; but the revival manifests itself not as a restoration of the realistic values longed for by Vitruvius more than half a century earlier, but as a further accentuation of fantastic, non-realistic, theatrical effects, truly and properly surreal landscapes, in which room is found for candelabras and large paintings, together with figures leaning out which draw attention to and enliven the many superimposed stage-scenes.

The Fourth Style, which revives and mixes themes, elements and languages of the Second and Third Styles, is a 'pictorial asianism', in every way worthy to illustrate the verses of Seneca and Lucan, the coherent formulation of a taste which longed to surpass and to subsume the golden classicism of Augustus.

The nature of this phenomenon of the transformation of taste should be sought not so much in a regular, abstract swing between neoclassical and neobaroque periods in the figurative arts of Rome, although that dialectic did indeed exist, and not only in the Julio-Claudian age. It is rather to be found above all in the deep crisis within the historical bloc of tota Italia which had arisen around Augustus.[1150] This bloc essentially found its expression in what Bianchi Bandinelli very rightly termed 'the art of the centre of power',⁷⁴ the neoclassicism which gave shape to the accomplishments of the emperor and the upper and middle classes and to the more powerful works commissioned by them, which were closely ded to the workshops or to the architectural and technical models of the capital. But the unity showed cracks from the beginning. While the Augustan programme reached its fulfilment at Rome in the last two decades of the first century B.C., in the cities of northern and central Italy and in the more Romanized provinces of the West (Narbonensis, Baedca, and the eastern coasts of Spain) the old tradition - Hellenistic, baroque, pictorial and full of pathos - remained of central interest to important local patrons:[1151] they continued to employ it in their own self- glorifying monuments and to mix it promiscuously with some of the Classicizing and courtly models from the capital. With the age of Tiberius the separation increases, as the old Hellenistic models of the Italian and provincial periphery lose their Hellenistic patina to reveal a schematic framework of Italic tradition. The 'plebeian' artistic tenden­cies of local workshops take on substance,[1152] giving voice in a simple and often shapeless language, reminiscent of ancient, central-Italian exper­iences, to aspirations which were no longer those of the ruling classes of municipal Italy — they were already fully co-opted by 'the centre of power', or else extinct - but which were cherished by wealthy freedmen, now honoured as augustales - a concrete artistic counterpart to Trimal- chio in Petronius' Satiricon. In their eyes this 'plebeian' art served to express aspirations of social ascent and political recognition.

In truth, this very conception of co-optation, which was inherent in the social structure by ordines in imperial Rome, undermined the apparently rocklike solidity of the historical Augustan bloc, which tried to model the portrait features of its members on those of the princeps and other, members of the imperial house, and which meant with the assurance of Classicism to leave behind the uncertainties and the anguish of the overturning of ordines which was provoked by luxuria, by lucrum (avarice), and by the civil wars. With the age of Claudius the erosion of Augustus' social and economic order is quite clear, and the whole framework of the traditional society of ordines is in flux, as is shown by the beginning of the rapid decline of the economy and social structure of Italian towns, and by the correspondingly rapid ascent of the provincial governing classes of Gaul and Spain. To this great turnover of governing classes is connected a dual and related phenomenon, that is, the rediscovery of formal baroque values in the culture of the court, both literary and artistic, and the formal birth of municipal 'plebeian' art, which lay in its turn at the roots of later provincial art. The cultural background of this new ruling class of Italian and provincial origin was in fact largely to be sought in the ancient formal experiences of its more remote origins, in the baroque and Asian artistic culture still dominant in their areas of origin two generations before, that is, in the world of Caesar and the triumvirs, a world which survived up to the early years of the first century a.d. and was not erased by the 'normalization' imposed by Augustus, as we can see in the art which spread quickly through Cisalpine Italy and Narbonensis in the first centuries b.c. and a.d.[1153] At the same time, there were vacuums of power and of culture left behind by these former provincials in their swift social rise under Augustus and Tiberius, the local representatives of the historical bloc which was the base of the new Principate. These vacuums were filled by lower social classes, which were essentially of freedmen origin and which caused to flourish again even more remote conceptual, ideological and formal experiences, those of the artistic culture of the Romano-Italic koine, which expressed better than any other gesture the elements of affirma­tion of status which were necessary to the self-glorification of the new and powerful Trimalchios.

Therefore, the two greatest historians of Roman art in our century, G. Rodenwaldt and R. Bianchi Bandinelli, spoke rightly of the essentially bipolar nature of art at Rome. To the eternal formal bipolarity between Classicism and the baroque, within which was played out the Augustan experience of official, programmatic art and its crisis in the age of Claudius and Nero, there corresponds the no less eternal bipolarity of mentalities and idioms between 'art of the centre of power' and 'plebeian art'.

EARLY CLASSICAL PRIVATE LAW

bruce w. frier

With the establishment of the Augustan Principate, Roman private law enters its 'classical' period.¹ During the largely tranquil centuries that followed, Rome's jurists articulated and developed a body of law that is beyond doubt the most conspicuous and influential Roman contribution to Western civilization.² This chapter does not describe the system of Roman law itself,³ but instead concentrates on the jurists and the Roman judicial system during the Julio-Claudian and Flavian eras.

i. the jurists and the principate

Classical Roman law is based upon a distinctive procedural system, called formulary procedure.⁴ Formulary procedure, like most other well- developed procedural systems, distinguishes between justiciability (iur- isdictio), the judicial determination that a plaintiff is stating a legally acceptable cause of action, and adjudication (iudicatio), the hearing and resolution of the plaintiff's claim. However, formulary procedure radicalizes this distinction: the trial is divided into two stages decided by separate persons.

At Rome, almost all suits between citizens were raised initially in the court of the urban praetor, an annually elected magistrate. The Praetor's Edict listed those causes of action that he was willing to accept during his term of office, as well as the general procedure to be followed in his court; already by the late Republic, the contents of the Edict varied little from year to year. If, in a given case, the plaintiff stated an acceptable cause of action, the praetor assigned a judge (iudex), or in some cases

On defining classical law, see Wieacker 1961 (f 704) 161-86.

See esp. Koschaker 1966 (f 664).

⁵ On substantive law, see esp. Kaser 1971-5 (f 662) 1—ri; on procedure, Kaser 1966 (f 661). The best general account in English is Buckland 1966 (f 646).

⁴ It is described at length in Kaser 1966 (f 661) 107-538; see also Pugliese 1963 (f 680). The following account is necessarily inexact because of its brevity. The only surviving ancient description is Gai. Imt. tv. Formulary procedure is based on the Urban Praetor's Edict, reconstructed by Lenel 1927 (в 110); for the Edict's state in the early Empire, see Kaser 1984 (f 663) 65-73, 102-8. See also ch. 12 above, pp. 398-401.

959

multiple judges, to hear the case; the iudex was usually a layman acceptable as an arbiter to both sides.

In order to instruct the iudex on handling the case, the praetor embodied the cause of action, together with any legally acceptable defences from the defendant, in a brief statement called the formula. This formula officially appointed the iudex, named the parties to the suit, specified the legal issue between them, and ordered the iudex to decide the case.[1154] In the second stage of the trial, the iudex heard argument from rhetorically skilled advocates on either side of the case; on the basis of this argument he returned a verdict that accorded with the formula. Although in practice the formulary procedure was complex and devi­ations from this simplified model were frequent, private trials under formulary procedure were in principle always highly arbitrational; as a rule the verdict of the iudex could be neither reviewed nor appealed.

The formula, which tied together the two stages of a typical trial, gives formulary procedure its name. This procedural system, introduced by urban praetors probably in the third century B.C., gradually supplanted the older and more formalistic legis actio system, until by the late Republic private litigation was normally initiated through formulary procedure.

The principal participants in the Roman judicial system (praetor, iudex, and advocates) normally had no special competence in law. The juristic movement began outside the judicial system. During the third century B.C., self-styled legal experts {iurisconsulti or iurisperiti) under­took to assist laymen with the drafting of legal instruments or with the procedural intricacies of trials. However, the juristic movement did not obtain real influence and intellectual strength until the first century в.с., when jurists like Q. Mucius Scaevola (cos. 95) and Ser. Sulpicius Rufus (cos. 5 2) began to study legal norms on a far more intensive, 'scientific' basis. Their efforts created a true legal science under the control of professionals. By the last years of the Republic, Roman jurists had come to exercise considerable influence over the conduct of private trials, particularly in resolving questions of law that arose in the course of trials. Although in the late Republic neither the praetor nor the iudex was legally obliged to accept the jurists' opinions as presumptively binding statements of law, in fact the jurists already determined large areas of law that had previously been discretionary.[1155]

The establishment of the Augustan Principate did not at first lead, as might have been expected, to a diminution of juristic independence and influence. On the contrary, the jurists, who in the late Republic derived chiefly from the Italian and equestrian stock that formed the core of Augustus' new oligarchy,[1156] found themselves well positioned to interpret the aspirations of the new regime within the limited but important domain of private law. Likewise, emperors seem to have perceived the value in preserving private law's independence, as a symbol of legiti­macy and continuity; accordingly, direct imperial intervention in the Roman judicial system was initially cautious and sporadic, at least as a rule. Only very slowly, over centuries, did the government move to control and centralize the administration of justice, and thus to give the Roman judicial system a more regularized form, one more familiar to modern eyes. This evolution hinged on two major changes: the gradual replacement of the formulary system with 'extraordinary cognition' under the control of imperial officials; and the rise of imperial rescripts as a major source of law eventually supplementing or replacing jurists' law. However, neither change was complete until after the end of the classical period of Roman jurisprudence, in the middle of the third century a.d.

During the classical period, Roman jurisprudence was more or less identical with the thought and writings of the great jurists of the city of Rome. Except for Gaius' Institutes, an introductory treatise, no classical writings survive except in fragmentary form; but Justinian's Digest, promulgated in a.d. 533, contains more than 800,000 words of lightly edited excerpts from the main works of the classical jurists, and other sources, mainly compilations of post-classical origin, supplement the Digest.⁸ By working closely with these sources, modern legal historians have developed a reasonably reliable impression of how classical Roman law formed and evolved during the first three centuries of the Empire.

procedural reforms that actually consolidated the formulary system and strengthened the jurists' authority within it.

Probably in 17 B.C. Augustus proposed and carried a general statute reforming private procedure (lex lulia de iudiciis privatis).ⁿ The text of the law does not survive, but its content is briefly described by Gaius and also often alluded to in juristic, literary and epigraphic sources. One portion of this law eliminated almost all surviving vestiges of archaic legis actio procedure. Henceforth, with the major exception of the centum viral court (which chiefly heard important inheritance cases), all private lawsuits brought at Rome had to be initiated through formulary procedure.[1157]

The Lex lulia also contained numerous provisions on the process of adjudication; it regulated the official panel (album) from which iudices were normally named, the conduct of judges in hearing trials, the legitimate excuses for avoiding service as a judge, and so on.[1158] One fundamental distinction it introduced was between 'statutory trials' (iudicia legitima) and 'trials dependent on magisterial office' (iudicia quae imperio continentur). 'Statutory trials' included only suits brought at Rome between two Roman citizens, provided these were to be decided by a single iudex\ the grant of such suits by the praetor remained effective for eighteen months, after which it lapsed if the iudex had not yet reached a verdict. By contrast, all other private lawsuits lapsed if they were undecided at the end of the granting magistrate's term of office.[1159]Although this distinction probably resulted from delays in handling the large volume of lawsuits brought at Rome, its consequence was to give the urban praetor's court a special standing among all jurisdictions in the empire.

Perhaps at about the same date Augustus began granting to certain jurists the right to issue formal opinions on law (responsa) that were based on his own authority. Unfortunately, the two main sources on the ius respondendi are confused and difficult to interpret, and scholars have not reached consensus on the nature and operation of the right.[1160] The likeliest view is that jurists with the ius respondendi could submit responsa that had very great, if not determinative, weight in settling questions of law within trials; even if the responsa of two such jurists diverged, the judge had to choose between them. Augustus is said to have created the right 'in order to increase the authority of law',[1161] which implies that hitherto jurisdc opinions had not always been decisive in private trials. At the same dme, however, the imperial grant of a ius respondendi isolated a privileged group of recognized legal experts, on whose authoritative opinions litigants would inevitably rely if possible; thus the emperor avoided having to determine questions of private law himself.

Augustus apparently granted the ius respondendi only to jurists who had also entered the Roman Senate; this probably remained normal through­out the first century a.d., though Tiberius bestowed the right also on the eminent equestrian jurist Masurius Sabinus.[1162] It is likely, but cannot be proven, that almost all early classical jurists whose views are cited or reported in the Digest had received the ius respondendi. Grant of the right served the emperor in several ways: it increased legal security by limiting the number of jurists allowed to state law authoritatively, while simultaneously creating a new means of imperial patronage and reinforc­ing the link between the jurists and the empire's governing elite in the Senate. A jurist lacking the ius respondendi could still issue opinions, but his responsa were backed only by his own knowledge and personal authority;[1163] such a jurist would inevitably tend to take his lead from more privileged jurists.

Augustus' thoughtful procedural reforms set the stage for classical Roman jurisprudence - which is, in essence, a protracted intellectual discussion of legal norms and principles conducted within a small circle of skilled professionals. The lex lulia de iudiciis privatis gave Roman procedure a coherence and rationality it had not previously possessed, and thus narrowed and defined the framework of juristic discussion; the ius respondendi ensured that the best product of juristic discussion would have direct and immediate effect within the judicial system. The jurists thus came to occupy a commanding position in relation to the judicial system, even though they were not formally part of it. In the long history of Western law, this astonishing situation has seldom been replicated.

Yet almost at once the process began whereby the carefully balanced Augustan procedural system would be first eroded and then supplanted, although not before the Roman jurists had introduced changes which were permanendy to affect Western understanding of what law is.

iii. labeo

Servius Sulpicius Rufus, the great republican jurist, died in 43 в.с., while on a diplomatic mission for the Senate.¹⁹ He left behind him a large and thriving juristic community, which dominated Roman private law undl well into Augustus' reign; yet it lacked a leader comparable to Servius in influence and power of mind. During the triumviral period (43-31 B.C.), Servius' numerous students concentrated on compiling and editing their teacher's writings and responsa-, the most prominent of these students was Alfenus Varus, one of Octavian's early partisans, who earned for his loyalty a consulate (39 в.с.) and a public funeral.²⁰ The only student of Servius who gained a reputation as an innovator was A. Ofilius, who wrote the earliest extended commentaries on the Praetor's Edict and on the corpus of existing statutes;²¹ Ofilius remained a lifelong eques despite his former close ties to Julius Caesar. Ofilius also was the teacher of Q. Aelius Tubero, who turned to law only around the age of forty after a disappointing career as an orator; Tubero was later regarded as the most erudite of the early Augustan jurists in both public and private law, although his influence was diminished by his crabbed, archaizing prose.²² Two eminent older jurists also survived into the early Princi­pate: A. Cascellius, already very aged but still ferociously independent in his political views,²³ and C. Trebatius Testa, Cicero's sometime protege, who like Ofilius remained an eques.^u

Except for Alfenus, the early Augustan jurists were characterized by political caution or even quietism; they left almost no mark on the momentous events of their times. For his part, Augustus did not seek to bind them more closely to the new regime; the story that he offered a

" See esp. Gc. Phil, ix; Pomponius, D 1.1.2.43. Pomponius' Enchiridion, poorly preserved in D

2.2, is the only surviving history of the juristic movement; on its form and purpose, seeNorr 1976 (f 672). The work dates to c. a.d. 140.

Pomponius, D 1.2.2.44; Scholiast on Hor. Sat. 1.3.130. The public funeral was perhaps accorded by Augustus. Alfenus, who cites no jurist after Servius, seems not to have participated in early Augustan discussions. Fragments: Lenel 1889 (в 109) I 37—34 (nineteen citations; eighty-one fragments from later epitomators). On the early Augustan jurists, see Bauman 1985 (F642) 66-136 (speculative).

Pomponius, D 1.2.2.44 (as emended). Fragments: Lenel 1889 (в 109) i 795-804 (fifty-eight citations, usually through Labeo). Ofilius survived until at least 20 b.c., since he taught C. Ateius Capito (cos. suff. a.d. 5): cf. n. 28.

Pomponius, D 1.2.2.46. Fragments: Lenel 1889 (в 109) ii 377-80 (thirteen citations, often through Labeo). On the family: Syme 1986 (л 93) 305—6. Tubero also wrote an annalistic history of Rome.

Cascellius, a pupil of Q. Mucius, was quaestor by 73, but advanced no further; cf. Pomponius, D 1.2.2.45 (as emended). His independence: Val. Max. vi.2.12; Quint. Inst. v.3.87; Macrob. Sat.

6.i. Fragments: Lenel 1889 (в 109) i 107—8 (thirteen citations, usually through Labeo).

Pomponius,D. 1.2.2.45. Fragments: Lenel 1889(8 109)11343-52(eighty-sevencitations,often through Labeo). Trebatius was close to Julius Caesar: Cic. Fam. vn. 14.2; Plut. Cic. 37.3; but cf. Suet. lid. 78.1. Caesar probably made him an equer. Bauman 1985 (f 642) 126-7, i)4^-l- consulate to Cascellius (who declined it) is of doubtful authenticity.²⁵ None of these jurists is expressly associated even with the drafting of major Augustan legislation, although Trebatius, at least, survived long enough to comment on some of it.²⁶

Our impression of early Augustan jurisprudence derives mainly from the writings of M. Antistius Labeo, who was probably active as a jurist by about 30 в.с. A student of Trebatius, Labeo none the less closely attended the other senior jurists of his time, and he often reports on their agreement or disagreement concerning various technical questions.²⁷ Labeo clearly regards Trebatius and Ofilius, and to a lesser extent Cascellius, as constituting the juristic mainstream, while Tubero is more commonly aberrant in his views; but Labeo presents a general picture of consolidation and regulated contentiousness, with little in the way of major methodological or substantive innovation. However, by about 20 B.C. the generation of republican survivors was yielding before a new and more vigorous generation. According to literary and juristic sources, much of Augustus' reign was marked by the dominance and rivalry of two jurists: Labeo and C. Ateius Capito.²⁸

Their rivalry was personal and political. Unlike their elders, both Labeo and Capito were politically active, but they diverged sharply in their attitude to the new regime. Capito, the grandson of a Sullan centurion and son of an obscure senator of praetorian rank, was widely considered a sycophantic courtier who prostituted his talent and knowledge in the service of his imperial masters.²⁹ Labeo, by contrast, was the son of a jurist who had conspired in Caesar's assassination and committed suicide after Philippi; Labeo himself soon acquired a repu­tation for his prickly insistence on constitutional details, often to the government's momentary discomfiture. After Labeo's death, Capito wrote of his rival that he had been driven by his excessive, foolhardy

Pomponius, D 1.2.2.45; cf. Syme 1980 (f 697), but also Bauman 198) (f 642) 120-2. On Augustus' relations with the jurists, see Wieacker 1969 (f 70;).

Cf. Paul, D 4.3.18.4 (on the lex Iulia deiud.priv. of 17 b.c.); Paul, D 32.29/w. (on the lex Iulia de marit. ord. of 18 b.c.). A responsum concerning Maecenas' doubtful divorce from Terentia e. 15 b.c.: Javolenus D 24.1.64; consultation by Augustus (below, at n. 82) c. 20 b.c., see E. Champlin, ZPE 62 (1986) 249-31, more plausible than the traditional date of a.d. 4.

Pomponius, D 1.2.2.47; on his expertise in language studies, see Gell. NA xiii.io. 1, with Stein 1971 (f 694). Born c. j o, Labeo entered the Senate by 18 (Dio liv. i 5.7-8) and died late in Augustus' reign (below, n. 44); the family stems from Ligures Baebiani in Samnium, cf. Kunkel 1967 (f 666a) 32-4,114. Fragments: Lenel 1889 (в 109) i 299-313, joi-)8 (367 citations and 109 fragments-more than all other Augustan jurists combined). Still invaluable on Labeo is Pernice 1873—1900 (f 678).

On the rivalry: Tac. Ann. 111.75; Pomponius, D 1.2.2.47 (noting that Capito was taught by Ofilius). Born e. 45, Capito entered the Senate by 17 B.C. (Zosimus, 11.4.2: the legal date for the Secular Games) and died in a.d. 22 (Tac. Ann 111.7j). Of municipal origin: Kunkel 1967 (p 666a) 114—15. On Augustus' consilium in a.d. i 3: Bowman 1976 (в 367) 154. Fragments: Strzelecki 1967 (в 172) (almost all from antiquarian works; he is cited once in the Digest).

Capito's ancestors: Tac. Ann. 111.75.1. His sycophancy, esp. to Tiberius: ibid. 111.70, 75; Suet. Gramm. 22; but see also Rogers 1964 (f 682).

passion for libertas.²® Augustus, keen to extend patronage to this new generadon of jurists, offered both men a suffect consulate; and when Labeo, pleading the press of his legal studies, refused the honour, Augustus returned the snub (so we are told) by advancing the date of Capito's consulate (a.d. 5).³¹ Literary sources on the two men are obviously biased by their typically senatorial oudook: contempt for the fawning Capito, admiration for the gruff and independent Labeo.

Jurists saw the rivalry quite differently. As Pomponius states, Capito clung narrowly to received views on law; but Labeo, more self-confident and daring, 'undertook numerous innovations' on the basis of his mastery of other branches of learning.³² This judgment, which may seem innocuous enough, has a dramatic consequence in the juristic tradition: Capito is all but ignored by later jurists, whereas Labeo is cited more often than any jurist before the high classical period, his voluminous writings are frequently annotated or edited by later jurists, and his opinion is usually treated with great respect even when it fails to carry the day.³³ In short, Labeo is a commanding figure, the first indisputably 'classical' jurist.

To be sure, it is unclear what Pomponius means in saying that Labeo 'undertook numerous innovations'. The juristic tradition survives so fragmentarily that legal historians find it difficult to determine whether Labeo's position on a given question represents genuine innovation with respect to his predecessors. In any case, what modern scholars have chiefly discerned in Labeo's fragments are the traces of a defter and more conscious methodological approach to law, which Labeo may well have pioneered.³⁴ A description of this method is not easy since it must be based on evidence haphazardly preserved, but the following is thought to be more or less accurate.

First, Labeo stresses the importance of solving legal problems, if possible, through direct interpretation of fixed texts — either general norms such as can be found in statutes or edictal provisions, or self-

Labeo's ancestors: Kunkel 1967 (f 666a) 32-4,114. His independence: Tac. Алл. 111.73; Suet. Aug. 54; Dio liv. 15.7—8. Capito on Labeo: Gell. NA xin.12.1—4.

Tac. Ann. 111.73.2; Pomponius, D 1.2.2.47 (diverging on details). Pomponius also notes that Labeo spent half of each year 'with students' ('cum studiosis') in Rome: their names are lost.

Pomponius, D 1.2.2.47. n°^rr 1981 (f 674), discusses the paradox that the politically 'traditionalist' Labeo was the greater legal innovator. Capito's moral reputation may have adversely affected Ms standing among later jurists; compare the disreputable jurist C. Caninius Rebilus (cos. suff. a.d. 37; cf. Tac. Ann. xin.30), not cited in the Digest.

On Labeo's fragments, see n. 27. Labeo's Posteriores were excerpted by Proculus and Javolenus, annotated by Aristo and Paul; the Pitbana were annotated by Paul. Examples of later respect for Labeo: Javolenus, D 40.7.39.4; Ulpian, D 8.3.2.3; Callistratus, D 49.14.1.1. Paul's acerbic notae may be a youthful work.

Pomponius, D 1.2.2.47; 'plurima innovare instituit'. See Seidl 1971 (f 691); Stein 1972 (f 695) 9-16.

imposed norms contained in private documents like contracts or wills. Further, Labeo assumes that the wording of such a text is intended to express its author's intent fully, that the author's intent can be presumed radonal, and that the author seeks primarily to communicate this intent (rather than, say, to express himself); therefore Labeo is usually reluctant to advance beyond the ordinary, 'objective' meaning of the words used in the text, even if the result is arguably harsh.[1164] Two examples from contract law may illustrate this method of reasoning. If a contract clause clearly disadvantages one party, Labeo none the less enforces the clause if this interpretation corresponds with the apparent or 'objective' content of their agreement (id quod actum est); only if the overall agreement is unclear does Labeo resort to the externally more plausible interpretation of it. On the other hand, Labeo is also willing to construe an incurably ambiguous text against its author if he could have expressed himself more clearly.[1165] Labeo's interpretations are not necessarily narrow, but they almost always are closely controlled by the text itself.

Second, if no text is available and law must be created, Labeo often relies on his belief that legal rules and institutions should be rationally purposive in their relation to society. This belief leads him to search for supervening principles that can be used to resolve doubtful cases. For example, if a minor child is old enough to understand his actions, should he be held liable for his wrongful damage to property (damnum iniuria datum)? Labeo says yes, simply because such a child is also held liable for his acts of theft (furtum); if law is rational, the child should be liable for both delicts unless there is a clear basis for distinguishing them. Labeo's fragments frequendy display similar examples of reasoning by analogy.[1166]Labeo's use of analogy is coupled with his insistence on sharp normative definition of legal institutions, so as to prevent their becoming blurred in practice.³⁸ For instance, when a legatee is left the 'use' (usus) of a farm, Labeo sets down clear rules allowing the legatee to bar the farm's owner (and, by analogy, the owner's domestic slaves) from residing on the farm; but Labeo does not allow him to prevent the owner's slaves or tenants from exploiting the farm; likewise, the legatee may use storage rooms for wine and olive oil, and may also forbid the owner from using them.³⁹ Labeo effortlessly generates these elaborate rules out of an implied definition of 'use', which his discussion is intended to illustrate; he obviously recognizes that, when vested property interests may conflict, certainty is all important.

Third, Labeo's decisions are often apparently influenced by an underlying belief that, in principle, no person should draw unjustified enrichment, even innocently, at another's expense, and that procedural law should if possible be construed to prevent this from occurring. Thus, for instance, if I lose a borrowed object and then pay the lender its value, and the lender later recovers the object, Labeo rules that I may sue the lender on the contract in order to recover (as the lender wishes) either the object or the payment for it. Labeo seemingly arrives at this decision through simple construction of procedural law, avoiding the fiction that the lender and I had ever 'tacitly' agreed on this outcome.[1167] Likewise, Labeo rules that a plaintiff should have an action on fraud (actio dolt) not only if, as the Praetor's Edict expressly provides, no other remedy is actually available, but also if it is unclear whether another remedy is available.[1168] In this context, it is no surprise that Labeo makes some of the earliest juristic decisions that impose on sellers a warranty of merchanta­bility for the goods they sell, regardless of whether they are aware of major defects in these goods.[1169]

Labeo's various approaches to law are obviously not always compat­ible with one another, but he maintains an impressively productive tension between them. His influence with later jurists may thus result less from his specific substantive innovations than from the principled rigour of his decisions. In any case, his dominance of the Augustan era is so complete that his contemporaries are thrown into all but total obscurity. Fabius Mela, for example, was an able and penetrating jurist, to judge from surviving citations of his commentary on the Edict. It was Mela, for example, who concocted the famous hypothetical case of the slave whose throat was cut when an athlete's carelessly thrown ball struck the hand of a razor-wielding barber; this hypothetical case brilliantly illustrates several contrasting features of the law governing wrongful damage to property, including proximate cause and contributory negli­gence.[1170] But Mela remains a shadowy figure within the juristic tradition; he may or may not have possessed the ius respondendi, but he was unable to compete on even footing with his more eminent contemporary, and Pomponius, in his history of Roman law, does not even mention Mela.

iv. proculians and sabinians

Labeo's dominant position among the jurists ended only with his death, probably late in Augustus' reign.[1171] No jurist could take his place, and in fact the reign of Tiberius (14-37) ^saw the more or less formal split of Rome's major jurists into two rival 'schools': the Proculians and the Sabinians or Cassians. This division would endure well into the second century; but its nature and the reasons for it remain controversial.[1172] It is even unclear what our sources mean by 'school' (schola or secta) in this context: to what extent the two schools had an independent corporate existence, where and how often they met, how they recruited members and selected leaders, what role they played in legal education, and so on.[1173] Later jurists concentrate on recording their disputes concerning particular legal questions; these disputes are reported not only in the Digest and other post-classical sources, but also in Gaius' Institutes.[1174]

The emperor Tiberius, himself keenly interested in all branches of learning, extended political patronage to both schools; and whatever their earlier qualms, jurists now no longer declined the opportunity to obtain the consulate.[1175] The Proculians owe their name to the brilliant jurist Proculus, who has been plausibly identified with Cn. Acerronius Proculus (cos. ord. 37).[1176] However, Proculus did not derive from a socially prominent family, and during most of the Julio-Claudian era the Proculian school was also nominally led by two members of a far more influential family: first by M. Cocceius Nerva (cos. suff. 21/2), Tiberius' close friend who committed suicide in 3 3, and then by his homonymous son (cos. suff. 40), the emperor Nerva's father, who together with Proculus presided over the school from 3 3 until late in Nero's reign.[1177]

Proculus, clearly a more brilliant jurist than either of the Nervae, appears to have relied on their prestige in order to secure a hearing for his views.

The history of the other school is similar but more complex. Masurius Sabinus, its first leader, was not by birth a member of Rome's status elite; indeed, at first he allegedly supported himself through honoraria from his students. At the advanced age of fifty Sabinus finally entered the equestrian order, doubtless through the patronage of Tiberius who also granted him the ius respondendi - the first time that a non-senator had received this honour.[1178] Sabinus' writings, above all his brief but authoritadve treatise on the ius civile, enjoyed very great eminence among later jurists, who frequently commented simply 'on Sabinus' (ad Sabi- пит).^ъг However, Sabinus evidently shared leadership with one of his students, the extremely well-placed aristocrat C. Cassius Longinus (cos. suff. 30), whose direct ancestors included the jurists Servius and Tubero.[1179] (This is a particularly clear example of the tendency of jurisprudence to 'run in families'.) In early sources the socially promi­nent Cassius is usually described as founding the 'Cassian' school (Cassiani)\ but the members of the school eventually came to be called 'Sabinians' (Sabiniani) after Sabinus, whom later jurists esteem more highly.[1180] Both men survived into the 60s and probably ran the school jointly.

Since the Renaissance, legal historians have sought to isolate the underlying legal basis of the numerous doctrinal disputes between the two schools. A half-century ago it was widely argued that their differences resulted in large part just from the separate operation of the two schools; divergent solutions to various legal problems were formu­lated in each school and then transmitted from teacher to student, without a consistent pattern of larger dogmatic disagreement.[1181] There is doubdess a measure of truth in this view. However, more recent scholars have re-emphasized a methodological line dividing the Proculians from the Sabinians.[1182] According to Pomponius, the origin of the school disputes was the earlier rivalry between Labeo and Capito; the two schools simply increased their differences, with the Proculians imitating Labeo and the Sabinians Capito.[1183] And in fact the Proculians do frequendy rely on an approach to law that somewhat resembles Labeo's principled rationality; by contrast, the Sabinians often adopt a freer, more heterodox position, though whether they are following Capito in this respect is unclear.

Thus the Proculians, like Labeo, normally prefer close objective interpretations of fixed texts, while the Sabinians allow interpretation based on the author's presumed 'subjective' intent. For example, if a debtor promises by stipulation to make a payment within a fixed interval of time, Sabinus holds that the creditor can claim payment on the first day of the period, while Proculus and his school rule that the claim is not legally effective until the entire period elapses.[1184] Similarly, if someone promises by stipulation to pay money to both the promisee and a third party, both schools recognize that, owing to absence of privity, the third party acquires no enforceable right through the contract; but whereas the Sabinians hold that the entire payment is owed to the promissee, the Proculians rule that only half of it is owed to him and the rest of the promise is unenforceable.[1185] The same differences recur in interpreting the Edict; for example, if the parties reach a settlement before the iudex renders judgment, the Sabinians require the iudex then to absolve the defendant in every case, but the Proculians require him to condemn in all trials not based on bona fides.[1186] There are numerous similar examples of these contrasting methods of interpretation, both for statutory norms and for private instruments.

Likewise, the Proculians tend to uphold Labeo's rational conceptual- ism, while the Sabinians take a looser approach to law. Probably the most famous example of this difference concerns the law of sale (emptio venditio)-. the Sabinians hold that barter, the promised exchange of an object for an object, is a form of sale and enforceable as such; but the Proculians deny this and point out that since there is no money price, there is no clear way to distinguish buyer from seller.[1187] Similarly, the Proculians often recognize the force of logical analogy in law, while the Sabinians play it down. For instance, the Proculians rule that the onset of puberty (and hence legal majority) should be legally presumed as of an age that is fixed for each sex, whereas the Sabinians insist on a physical inspection of boys even though this practice had long since been abandoned, for moral reasons, in the case of girls.⁶² Again, if a legacy is left subject to an impossible condition (e.g. 'pay ten to Titius if he touches the sky'), the Sabinians read the legacy as if the condition had not been written, but the Proculians void the legacy on the ground that a contractual stipulation subject to an impossible condition is also void.⁶³

By contrast, the Sabinians use analogy in a looser, more equitable fashion that arguably better captures the spirit of Labeo's style; their position on barter as a form of sale is a good example. Sabinus' expansive attitudes are at their most aggressive in the area of delict; for instance, he grants the direct Aquilian action for wrongful damage even when the plaintiff's property was not physically harmed (e.g. the defendant struck coins out of the plaintiff's hand and they fell down a sewer), and he also extends the action on theft even to the unauthorized sale of land.⁶⁴ Neither view was received by later jurists.

By and large, the Proculians emerge as the 'better lawyers', the Sabinians as the more flexible ones. Two central strains of Roman jurisprudence, formalism and equity, are momentarily divided from one another. However, in a number of respects it is misleading to lay too great a weight on these school controversies. First, even though the record of their controversies is incomplete, the school disputes seem to have centred mainly on technical details and do not necessarily imply a radically different stance on the nature and purposes of Roman private law. Second, the Proculians and Sabinians may not have represented all jurists then practising; the obscure jurist Atilicinus was clearly a Proculian, but other Julio-Claudian jurists may well have operated independently.⁶⁵ Third, by no means all of the attested controversies can be easily explained through a simple dichotomy in legal method; the theoretical basis of many disputes is extremely obscure. Fourth, the schools were in any case unable to enforce a narrow dogmatism on their members; the view of one school is not uncommonly adopted by one or more members of the other.⁶⁶

Finally, the school debates must also be understood within the context of the Roman judicial system, in which a iudex, if confronted by dissenting responsa from two authorized jurists, was free to apply the opinion that seemed to him more plausible.⁶⁷ Juristic controversies,

Gai. Inst. 111.98, who admits that the Sabinian rule is hard to explain.

See, respectively, Ulpian, D 9.2.17.51; and Gell. NA xi.18.13, with Gai. Inst. 11.51.

Fragments of Atilicinus: Lenel 1889 (в 109) 171-4 (twenty-four citations, often with Proculus or Nervafitius); see also esp. Proculus, D 23.4.17, citing a letter from Atilicinus. Minicius may have been a student of Sabinus (cf. Julian, D 12.1.22); his writings were excerpted by Julian. Little or nothing is known of the jurists C. Caninius Rebilus (cf. n. 32), Longinus (pr. under Claudius?), Cartilius, and Servilius.

Liebs 1976 (f 668) 210-11. Individual school jurists may also take extreme or eccentric positions; e.g. the view of Nerva film on the physical nature of possession (Paul, D 42.1.1.1,3,14, 22, etc.).

Gai. Inst. 1.7 (citing a rescript of Hadrian); so already Gc. Caecin. 69. The index is thus not free to create his own law.

whether or not they arose through school debate, will have tended in practice to increase the flexibility of law, at any rate until one or another opinion prevailed and became 'the law we use' (ius quo utimur).

The founders of the two schools had already achieved eminence under Tiberius; they continued to dominate Roman jurisprudence during the reigns of Caligula (37—41), Claudius (41—54), and Nero (54—68). Rela­tions with these emperors did not always run smoothly. The demented Caligula reportedly threatened to revoke all previous grants of the ius respondendi, and Claudius drove the jurists into the shade by wilfully interfering with the independent administration of justice.[1188] Still, Sabi­nus, Cassius and Proculus, and probably the younger Nerva as well, survived into Nero's reign.[1189] The politically powerful Cassius held important positions under all three emperors, but in 65 Nero relegated him to Sardinia because of his allegedly suspect political views; Cassius was recalled by Vespasian in 69, but died soon thereafter.[1190] As the great Julio-Claudian jurists passed from the scene, the way was cleared for a new generation.

v. legal writing and education

Almost without exception, the attested writings of first-century jurists are directed primarily toward other jurists; these writings thus have an austere format that elevates technical discussion of rules and 'cases' above the didactic exposition of broad principles.[1191] Two major types of juristic literature are attested. The first is the extended commentary on a set text: above all, the Urban Praetor's Edict (by Labeo, Mela, Sabinus and probably Plautius as well), but also the Twelve Tables (Labeo) and the edicts of the peregrine praetor (Labeo) and of the curule aediles (Caelius Sabinus). Such commentaries assemble and interpret all law pertinent to each provision of the object text. The second type is 'problem-oriented', assembling decisions on a wide range of legal questions; these writings may take the form of collected responsa (Labeo, Sabinus) or of disputes and investigations (Labeo, Capito, Proculus, Sabinus and Fufidius).

In addition to these basic types, some jurists devote monographs to particular areas of law; attested examples are Sabinus on theft and the younger Nerva on usucapion. Jurists also frequendy develop law by critically annotating the works of earlier jurists, especially those of Labeo and Sabinus.

This literature is not designed to be readily accessible to non-jurists, since it all presumes considerable prior knowledge of the institutions and principles of Roman private law. Yet literary sources show that demand was also growing among laymen for elementary handbooks.[1192] Although there is no evidence that the more prominent first-century jurists offered instruction to beginners,[1193] the need for a handbook was provisionally met by Sabinus' three books on the ius civile, an authoritative summary of the legal rules peculiar to Roman citizens. The arrangement and content of this work owe much to earlier republican treatises; like them, it introduces topics rather haphazardly and even omits some significant areas of law. None the less, by the reign of Nero it was already a standard elementary handbook.[1194] So successful was it as a statement of the 'civilistic system' that in the following centuries it attracted lengthy commentaries from Pomponius, Ulpian and Paul. Cassius' treatise on the ius civile, in at least ten books, was similar in arrangement to Sabinus', but much less influential except among jurists. Deliberately designed hand­books for beginners (Institutiones) appear only in the second century a.d., contemporaneously with the emergence of professional law teachers.[1195]

vi. imperial intervention

Although classical private law is chiefly a juristic creation, the Roman state did not surrender its power to create new legal norms through statute (lex). In the republican constitution, statutes were enacted through popular assemblies (comitia) upon a magistrate's initiative. During the Empire legislation was always initiated by the emperor or by a magistrate acting with his approval. Augustus had a large body of statutes enacted, a portion of which affected significant change in the private law of persons and succession; especially important is his extensive 'moral legislation' encouraging marriage and childbirth, imposing sanctions for adultery, and restricting testamentary manumis­sions.[1196] Later Julio-Claudian emperors also utilized comitial statutes,intervention

especially in matters concerning status or succession; the controversial social character of such laws may have made it desirable to obtain at least the formality of a popular vote.

However, legislation through the cumbersome popular assemblies soon became obsolete as new forms of law-making emerged to express a centralized government. These new forms had administrative origin and character; but they gradually created, alongside the ius civile (statutes, praetorian procedure and juristic interpretation), a body of law intended to supplement or replace older law. Eventually this law came to be called the 'new law' (ius novum or ius extraordinarium).¹¹

Already in the Republic the Senate had often issued advisory direc­tives to be executed by magistrates; but in the early Empire the decrees of the Senate (senatusconsulta) gradually emerged as a source of law in their own right, though how and when this occurred remain controversial.⁷⁸ During the first century a.d., senatusconsulta that significantly alter private law still often direct magistrates to execute their provisions; but in the following century this fiction is dropped and the Senate legislates directly - though always upon the emperor's initiative or at least with his express approval.⁷⁹

The emperor, himself a magistrate, also gradually came to enunciate general legal norms through a variety of administrative channels, including proclamations (edicta), judicial decisions (decreta), answers to petitioners (rescripta), and instructions to other magistrates (mandata).⁹⁰ In the early second century these channels were formalized, and the rescript system emerged as the major channel for imperial pronounce­ments on private law; but earlier the channels have a much more casual, almost ad hoc quality. However, even as early as Augustus the emperor is occasionally described as proclaiming new rules of private law.⁸¹ In most cases, he probably did so only after gathering advice from a specially summoned 'council' (consilium) consisting mainly of jurists. One such council, which led Augustus to approve the enforceability of codicils to a Senator's will, is described in Justinian's Institutes.⁸² During the first

Cf. Kaser 1971 (f 662) 1199, 208-9; Schiller 1978 (f 689) j 3 5-7. The terms appear in a technical sense only from c. a.d. i jo.

See Schiller 1978 (f 689) 4j6-62, with bibliography. Most known senatusconsulta are listed by Talbert 1984 (d 77) 43 >~59-

Directives to magistrates are found in senatusconsulta from the reign of Augustus (the earliest: a.d. 10) to as late as Vespasian. The legislative character of senatusconsulta is affirmed by Gai. Inst. 1.4 (acknowledging earlier uncertainty); cf. Papinian, D 1.1.7 pr., and Ulpian, D 1.3.9.

See Schiller 1978 (f 689) 480-j 06.

E.g., Ulpian, D 16.1.2 pr. (edicta of Augustus and Claudius prohibiting women from assuming their husbands' debts); Paul, D 28.2.26 (edictum of Augustus forbidding disinheritance of a son serving as a soldier; later repealed).

975

Just. Inst. 11.2j pr. (Trebatius persuaded the emperor; on the date, see n. 26); compare ibid. ii. 23. i, on Augustus' recognition of informal bequests (fideicommissa). The consilium principis is, in the first century, an informal advisory gathering of the emperor's 'friends'; it acquires more formal status only in the second century. See Crook 19; j (d 10); Amarelli 1983 (d 4); and Schiller 1978 (f 689) 466-74, summarising the controversy.

century the emperor's legislative power may not yet have been recog­nized de iure, as an express function of his office; but it clearly existed de facto, and its importance steadily increased as the emperor's consti­tutional position was rationalized.[1197]

The ius novum, insofar as it deviates significantly from older law, is often associated with a new form of procedure 'outside' the normal formulary system: extraordinary cognition (cognitio extra ordinem).^M In the first century this new procedure still had a somewhat makeshift character, as various elements of administrative process were loosely combined. For example, when Augustus made informal testamentary requests {fideicommissa) legally enforceable in some instances, he ordered the consuls to supervise their implementation. Such fideicommissa proved popular and soon became more generally enforceable; in order to ease the burden on the consuls, Claudius created two new praetors (reduced to one by Titus) who did nothing but handle them.[1198] In other instances the emperor relied on his own deputies; for example, Claudius gave legal force to the decisions of his procurators.[1199]

Procedure before judges who had been delegated by the emperor differed markedly from the formulary system. Unlike the urban praetor, these judges took a much more active role in summoning the defendant, conducting the trial, determining the case and enforcing the verdict.[1200]Unlike formulary procedure, which presumed a model in which adver­sary proceedings led to the binding arbitration of disputes, extraordinary cognition more resembled the inquisitorial procedure commonly asso­ciated with modern Continental law.

Extraordinary cognition implies the power of the emperor to hear and decide lawsuits, either personally or through delegates; Augustus and his successors used this power extensively, although its constitutional basis is once again elusive.[1201] In turn, delegation implies at least the possibility of appeal (appellatio, provocatio) from the delegated judge to a higher authority. Appeal is also attested as early as Augustus, and it seems to become steadily more frequent under later emperors.[1202] Further, appeal was not confined, as might have been expected, only to extra­ordinary cognition; already Augustus is reported to have quashed the jurisdictional rulings of 'ordinary' magistrates, and Claudius and Domi­tian went still further by reforming the verdicts of iudices.[1203]

Extraordinary cognition is a considerable advance in procedural rationality over formulary procedure; the ancient arbitrational system gradually gave way before a system with more modern characteristics - a striking instance of how legal modes of thought came gradually to pervade the Roman judicial system. Nevertheless, although the elements of this new system were in place by the first century a.d., formulary procedure remained the dominant form of civil procedure for Roman citizens throughout the empire (except in Egypt). Its continued pre­eminence is reflected in the numerous procedural documents buried by the ashes of Mount Vesuvius in a.d. 79,[1204] as well as in the writings of first-century jurists who virtually ignore extraordinary cognition.

Another early imperial reform was also to be of lasting significance. By the Lex Cincia of 204 b.C., judicial advocates had been forbidden to accept honoraria for their services; Augustus reaffirmed this law, although it was already being widely flouted. In a.d. 47, however, Claudius had carried a senatusconsultum allowing payment of up to 10,000 sesterces to advocates; this measure was apparently confirmed, though with some restrictions, when Nero became emperor.[1205] Ancient sources usually regard the change with distaste, because it eroded the position of oratory as a gentleman's pursuit. However, the possibility of pay undoubtedly encouraged an enlargement in the corps of orators, so that their services became more widely and easily available to litigants; and pay also promoted a more professional attitude on the part of advocates in their argument of cases. In Tacitus' Dialogus (set in the early 70s), speakers lament the displacement of lush oratory by legalism in the private courts;[1206] what they basically resent is the emergence of truly professional lawyers, a major step in the rationalization of Roman civil procedure.

vii. the flavian jurists

Probably even before Nero's overthrow in 68, the two juristic schools had changed leadership. The new heads, both closely associated with Vespasian, enjoyed little prestige within the later juristic tradition. Caelius Sabinus (cos. suff. 69), who headed the Sabinians, is all but ignored by later jurists.[1207] His Proculian counterpart, Pegasus (cos. suff. 76?), fares only somewhat better; despite his reputadon among contem­poraries for vast learning, he is known to history mainly from Juvenal's biting description of his complacent behaviour while serving as Domi­tian's urban prefect.[1208] Little is known about Pegasus, but he is perhaps the brother of a considerably more important jurist, Plautius, who may conceivably be D. Plotius Grypus (cos. ord. 88); Plautius' writings, also in the Proculian tradition, were frequently annotated and excerpted by later jurists.[1209] By contrast, the elder Juventius Celsus, who succeeded Pegasus in the Proculian school, is an exceedingly dim figure.[1210] The Flavian jurists in general maintained the standard school distinctions, with little major innovation in substance or method.[1211]

The Flavian period was thus a disappointing one from the jurists' standpoint; talent was lacking, or the times were not right. However, by the end of Domitian's reign jurisprudence attracted several new personalities of major importance: Javolenus Priscus (cos. suff. 87), the successor of Caelius Sabinus among the Sabinians; Titius Aristo, who probably remained outside the Senate; and Neratius Priscus (cos. suff. 97) and the younger Celsus (pr. 106/107,^cos- П ¹29), who jointly headed the Proculians after the death of the latter's father. The advent of these brilliant jurists marks the beginning of Roman private law's 'high classical' period, the apex of the juristic movement at Rome.[1212]

APPENDICES

I. CONSULAR DATING FORMULAE IN REPUBLICAN ITALY

Consular dating formulae in series are of extreme rarity in republican Italy; they occur on wine amphorae, roof-tiles, the so-called tesserae nummulariae, and also on the inscriptions of the Capuan magistri.

Dates on wine amphorae are readily intelligible:

C/L i² 2929, Falernian, 160 b.c. (A. Tchernia, be vin de I'ltalie romaine, Rome,

1986, 60-3, should not have rejected the testimony of Cic. Brut. 287; the

absence of the term Falernian from the fragment Polyb. xxxiv. 11.1 is

manifestly without significance if one reads it in its context in Athenaeus)

ILLRP 1178, 121 в.с.

ILLRP 1180a, 107 в.с.

ILLRP 1181, Massican Falernian, 102 в.с.

ILLRP 1182, Falernian, 102 b.c.

IILRP 1179, 'O(pimianP)' Falernian, 101 в.с. (compare 1180, 'O(pimianP)' Falernian)

Hispania Epigrapbica 2, 1990, no. 75, Dressel 1 amphora, 90 b.c. E. Bucchi, in II Veneto nell'eta romana I, Verona, 1987, 157, Lamboglia 2 amphora, 46 в.с.

ILLRP 1185, Lucretian Falernian, 35 B.C.

Dates on roof-tiles, as on ILLRP 1151-70, 76-36 b.c., are to be explained by the fact that they were more valuable if weathered, see Roman Statutes 1995 (f 684) no. 15, Col. I, lines 32-8, with commentary.

The so-called tesserae nummulariae are discussed by J. Andreau, La viefinanciere dans le monde romain, Rome, 1987, 485—506, adopting the generally accepted view, which was originally propounded by R. Herzog, that they were labels attached to sacks of coin which had been checked and sealed. It remains completely unclear why it should be necessary to record not only the year, but also the month and the day, when coin had been inspected. A single example of course reads (ILLRP 1023, not accurate):

Anchial(us) Strti L. s. specta < ui > t num( )