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The Fetiales: a Reconsideration*

  • Thomas Wiedemann (a1)

In recent years many historians have rightly emphasised aggressive imperialism as a key element in Roman political life in the Middle and Late Republic. This has led to reconsideration of the significance of the ‘just war’ theory associated with the college of fetiales. ‘On the basis of this fetial law of the Roman people, it can be understood that no war is justified unless it is waged after compensation has been demanded (sc. and refused by the enemy), or the war has been announced in advance and formally proclaimed.’ Earlier this century, scholars were happy to accept that this ‘fetial law’ implied that the Romans never initiated wars of aggression but fought only if they felt they were the aggrieved party. Scullard believed that ‘…in fact Roman religious law (the ius fetiale) did not countenance wars of aggression designed to gain new territory’ ; for Tenney Frank, ‘ the Roman mos maiorum did not recognise the right of aggression or a desire for more territory as just causes for war. That the institution was observed in good faith for centuries there can be no doubt.’

Recent scholars have been more sceptical. Harris sees the activities of the fetiales primarily as a psychological mechanism for assuaging the guilt feelings which even Romans will have been unable to escape when initiating totally unjustified wars of aggression: ‘the significance of the fetial procedure for declaring war was solely psychological’. Other writers have gone further in stressing its mystificatory and propaganda function.

Our scepticism about the efficacy of ‘fetial law’ in restraining the Romans' belligerence should be accompanied by a re-evaluation of our evidence regarding the fetiales and what they actually did. Such a re-evaluation will not affect our picture of the Romans of the Middle and Late Republic as aggressive and militaristic, but we may have to revise our views on how the fetiales fit into that picture. This paper makes no claim to analyse exhaustively every piece of evidence which might throw some light on the fetiales, let alone every interpretation to be found in the secondary literature; but it may be worthwhile to reconsider the main types of operations which the fetiales are said by our ancient sources to have been involved in.

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1 Cicero, , De Officiis 1.36. It will be noted that while Cicero may have been influenced by Greek ‘natural justice’ and ‘just war’ theories, the fetiales interpreted particular foedera, nevel abstract concepts.

2 Scullard, H. H., From the Gracchi to Nero (London, 1959), p. 2.

3 Frank, T., Roman Imperialism (New York, 1914), p. 9.

4 Harris, W. V., War and Imperialism in Republican Rome (Oxford, 1979), p. 171; Michel, J.-M.L'extradition du général en droit romain’, Latomus 39 (1980), 675–93.

5 De re militari, book 3; quoted by Aulus Gellius 16.4.1. The Hermunduli are presumably the Hermunduri, whose earliest attested dealings with the Romans occurred in c. 3 b.c. (Dio 55.10.2).

6 DH 15.9 and 2.72.

7 First in Macdonald, A. H. and Walbank, F. W., ‘The Origins of the Second Macedonian War’, JRS 27 (1937), 192–7.

8 Ogilvie, R. M., Commentary on Livy 1–5 (Oxford, 1965), 127ff., pointing out that if Livy's vocabulary is archaistic at all, then it goes back no further than the 2nd century b.c., when tht ceremony was, he suggests, ‘revived and popularized in literature’.

9 Harris, op. cit. p. 166. This view is also accepted by others, e.g. Goar, R. J., Cicero and the State Religion (Amsterdam, 1972), p. 10 n. 5; Beard, M. and Crawford, M., Rome in the Late Republic (London, 1985), pp. 29, 37.

10 Oost, S. I., ‘The Fetial Law and the Outbreak of the Jugurthine War’, A. J. Phil. 75 (1954), 147–59.

11 Rich, J. W., Declaring War in the Roman Republic in the Period of Transmarine Expansion (Latomus, 149; Brussels, 1976), Ch. 3.

12 Polybius 3.112.9.

13 (a) The story implies that fighting had already been going on, or the soldier could not have been captured. Should we think of the Romans as assuming that such fighting had not been in accordance with fetial law? (b) A non citizen (let alone a hostis) cannot buy land. Readers would have to assume that the captive had first been manumitted as a Roman citizen; in which case he was no longer a hostis. (c) The Romans were actually at war with Tarentum, not Epirus (whose king appeared on the scene as a hired ally of Tarentum). Fetiales could have cast a ceremonial lance at Tarentine soil without difficulty had they felt so inclined.

14 That Octavian was fetialis is confirmed by his Res Gestae 4.7; cf. 15.9.

15 Caesar, 's reference to Publius Crassus at BG 3.21.1: ‘adulescentulo duce’ is the sole exception, but it is intended to be deprecating. Normally the word is reserved for Gallic chieftains.

16 Suet. Aug. 36; Cicero, , De Officiis 2.27.83; Philippica 2.64; Livy 23.38.7; Cicero, , Ep. Att. 12.3.2.

17 Caesar, , BG 3.16; Livy 42.63.12 etc.; Varro, , Res Rusticae 2.10.4.

18 Iliad 9.343; cf. Euripides, , Andromache 155; Herodotus 8.74 and 9.4; cf. Sophocles, , Ajax 211; Euripides, , Trachiniae 518 etc.

19 Justin 11.5.10; cf. Diodorus Siculus 17.17.2–I am grateful to Mr E. I. McQueen for referring me to these passages.

20 DH 2.72; cf. 15.9; Vergil, , Aeneid 7.601ff. Of course Vergil was writing after Livy had ascribed the introduction of the rite at Rome to Ancus Marcius, but the rite had already been practised by the ‘Aequicoli’. Vergil had no hesitation about referring to the opening of the gate of Janus (7.601–22).

Fetiales cum in Africa ad foedus feriundum ire iuberentur, ipsis postulantibus senatus consultum in haec verba factum est ut privos lapides silices privasque verbenas secum ferrent ut, ubi praetor Romanus imperaret ut foedus ferirent, illi praetorem sagmina poscerent. Herbae id genus ex arce sumptum fetialibus dari solet.

21 Wissowa, G., Religion und Kultus der Römer (1912), p. 30.

22 Aulus Gellius 10.15; Servius, , Ad Aen. 1.448.

23 Paulus, , Exc. Festi, p. 92 (p. 81 ed. Lindsay): ‘Feretrius Iuppiter…ex cuius templo sumebant sceptrum per quod iurarent et lapidem silicem quo foedus feriret.’

24 Latte, K., Römische Religionsgeschichte (Munich, 1960), p. 121; Rich, op. cit. 127 n. 38. Nor am I happy about the theory that the sagmen represents the cleansing power of green foliage, even though it is described as ‘pura’ by Livy.

25 Salmon, E. T., Samnium and the Sanmites (Cambridge, 1967), p. 145.

26 Early Irish literature shows how important cattle-raiding was to the Latins' Celtic cousins: cf. the Tan Bo Culigh.

27 Livy 2.50; DH 7.19.2.

28 Roberts, S., Order and Dispute (Penguin, 1979). The ‘leopard-skin chieftains’ among the much-studied Azende are an example.

29 None of the enormous number of stories about Roman commanders from Romulus on (Livy 1.10.4–6) personally engaging enemy chieftains is strictly parallel. For examples, see Harris, op. cit. p. 39 n. 1 and Oakley, S. P., ‘Single Combat in the Roman Republic’, CQ 35 (1985), 392410.

30 The pig is characteristically a creature of the uncultivated woodlands — ‘ marginal’ territory lying between neighbours. It is thus the appropriate animal to sacrifice at a ceremony involving two different clans or ‘states’.

31 De Oratore 1.181; Pro Caecina 98. Unfortunately Plutarch's discussion of the word is completely useless, since he confuses it with ‘patruus’ (Quaestiones Romanae 62).

32 Might the four ‘oratores’ of Varro's ferial embassy be connected with the four Roman tribes of Servius Tullius’ re-organization?

33 E.g. the thirty days' grace given to an insolvent debtor before he was sold Trans Tiberim (Dionysius of Halicarnassus 4.14; Aulus Gellius 20.1.42). The thirty days' stay of execution prescribed by the Theodosian Code (9.40.13) may also be relevant. Coriolanus allows the Romans a thirty day moratorium in Plutarch, , Coriolanus 30.4f.; cf. DH 8.35.

34 It might be argued that since the language of the formulae as given by Livy is that of the first century b.c., the procedure as described by Livy and Dionysius (not Varro) was borrowed from Roman civil law by Octavian; but in that case fetiales would surely have been sent to Egypt ad res repetundas in 32 b.c.

35 E.g. Livy 8.15.7f.: Minucia in 337 b.c.

36 For Roman demands for Hannibal's extradition from Carthage, cf. Livy 21.6.8; 10.12f.; 18.4; Polybius 3.8.8; 20.8; 21.7.

37 Velleius Paterculus 2.1; Cicero, , De Oratore 1.181.2; Pro Caecina 98. Cf. Rawson, E., ‘Scipio, Laelius, Furius and the Ancestral Religion’, JRS 63 (1973), 166–8.

38 Plut. Caes. 22.4, Cato Minor 51; Appian, , Keltike 18.

39 Accounts of this episode vary: Dio 12, frg. 45; Zonaras 8.18; Valerius Maximus 3.3.3. On the surrender of other noxi, cf. Michel, op. cit. (n. 4 above).

40 On the pains Livy took to rewrite this story in a form more favourable to the Romans, see Horsfall, N., ‘The Caudine Forks: Topography and Illusion’, PBSR 50 (1982), 4552.

41 Postumius' attack on the fetialis may be based on the Roman legal procedure, falling into disuse in Livy's own time, of vis facta moribus (Cicero, , Pro Caecina 2 etc.; Pro Tullio 20). One litigant would symbolically attack the other in order to clarify who was to be the plaintiff and who the defendant. Cf. Frier, B. W., The Rise of the Roman Jurists (Princeton, 1985), pp. 78ff.

* My thanks are due to those who commented on an earlier version of this article given at the Gregynog Classics Colloquium in May 1984; and to John Rich of Nottingham University for his many helpful comments (although he will not agree with all my conclusions).

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