Bryn Mawr Classical Review 2004.06.22
Elizabeth A. Meyer, Legitimacy and Law in the Roman World: Tabulae in Roman Belief and Practice. Cambridge: Cambridge University Press, 2004. Pp. xvi, 353; ills. 9. ISBN 0-521-49701-9. $75.00.
Reviewed by Greg Rowe, University of Victoria (firstname.lastname@example.org)
Word count: 1331 words
On 3 March AD 49 at Puteoli, P. Vergilius Ampliatus incised a text on two waxed wooden tablets, folded the tablets together and sealed them, and had a scribe ink the same text on the outside surface:
I, P. Vergilius Ampliatus, have written ("scripsi") that I received from and owe to Sex. Granius Numenius loans ("mutua") of five thousand sesterces in cash. Sex. Granius Ampliatus stipulated that he be rightly repaid in good coin the 5,000 sesterces in cash written above; I, P. Vergilius Ampliatus, solemnly promised. (TPSulp. 55) According to the Roman jurist Gaius, Ampliatus' text embodies two legal contracts: a mutuum, a real contract formed when Numenius handed the 5,000 sesterces over to Ampliatus; and a stipulation, a verbal contract formed when Numenius asked, "Do you solemnly promise to repay rightly in good coin the 5,000 sesterces in cash written above?" and Ampliatus responded in precisely the same terms, "I solemnly promise to repay rightly in good coin the 5,000 sesterces in cash written above" (Gaius Inst. 3, 90-2). The mutuum obliged Ampliatus to repay the value; the stipulation obliged him to do so in good coin. But if the contracts were real and verbal, why did Ampliatus write the text down? What is the place of writing -- in this document, and in Roman law generally? Roman legal gospel holds that writing did not constitute a contract and was purely mnemonic: Ampliatus wrote so that Numenius would have a record of the loan, and he wrote on the inside of a sealed document so that Numenius would have proof of the loan to use in court. Meyer asks a slightly different question: Why did Ampliatus write on cumbersome wooden tablets? And she gives an astonishing answer: Ampliatus wrote on tablets because Romans traditionally consigned their most important transactions to tablets -- tablets which (pace Gaius) were well on their way to being written contracts: "the document as the act itself".
Legitimacy and Law in the Roman World provides a history of the Roman tabula-habit. Meyer begins her story with "The World of Belief" during the Republic (Part One). Where Greeks characteristically suspected written documents (on papyrus), she explains, Romans venerated tablets and used them for prayers, curses, treaties, laws, edicts, private legal transactions, and dedications in Saturnian verse (chs. 1-2). Whatever their use, Roman tablets shared a physical appearance (ch. 2), and the texts they carried shared a "carmen-style", marked by archaism, pleonastic repetition, asyndeton, assonance, alliteration, end-rhymes, and exhaustive expressions of what was wanted or required (ch. 3; still with us: "aid and abet" exhibits pleonastic repetition, archaism, and assonance). Romans employed tablets in all their principal rituals, reciting them during "participatory acts" (such as petitions to divinities and other higher authorities), composing them to complete and activate "unitary acts" (legislation, censuses, treaties, vows, prayers, curses, accounts, wills; ch. 4), or composing them as the sum of "constitutive acts'' (senatorial decrees, entries in household account books; ch. 5). In Part Two, Meyer turns to "The Evolution of Practice" under the Empire. Meyer is able to write about practice because of the major finds of private legal and financial tablets from first-century AD Herculaneum and Pompeii, second-century Alburnus Maior in Dacia, and fifth-century Theveste in North Africa; she is the first to draw all this material together. In the tablets from Campania, she writes, two practices intertwine: an older practice of putting third-person records of formal, unitary acts on diptychs, and a newer one of putting first-person records, or chirographs, of informal acts on triptychs (ch. 6). The newer practice, Meyer argues, supplemented the traditional authority of tablets with the personal fides of their makers, embodied in the chirograph and the seals. Provincials used tablets in order to become Roman, particularly after a Neronian SC laid down the proper form for tablets and so bolstered them with the emperor's authority (ch. 7). Thereafter tablets were increasingly cited in courts (ch. 8), until finally jurists, despite their article of faith that written contracts were un-Roman, had to acknowledge that documents on tablets were very close to being written contracts (ch. 9). It is hard to exaggerate the originality and importance of all this. For a start, an early and extensive use of tablets would fill the gulf between the appearance of Latin writing in the sixth century BC and the beginning of Latin literature and routine epigraphy on stone at the end of third century. Meyer's chapter on the style common to tablet-texts is the best treatment of Latin's most distinctive idiom, and it would make an excellent introduction to Latin epigraphy for students. Her treatment of the history-ritual-text nexus, with her concept of the "unitary act," is exemplary. Her linking of content with the verbal and physical form of the Campanian tablets is deft. And she has studded her book with aperçus: "The empire was the opposite of a constitutional monarchy: rather than the monarch taking his legitimacy from the laws, late-antique society borrowed its legitimacy in society at large from an acceptance of the authority of the emperor" (296).
Throughout, Meyer is especially concerned with tablets and private legal documents. Her aim is to show that by stages tablets effectively came to serve as written contracts. Her argument is partly supported by the Campanian material and partly undermined by it. She is surely right -- contra Gaius and the scholarly tradition -- to regard stipulations as unitary acts normally involving tablets (39-41, 112-20, 253-65). The same argument can be made on the basis of tablets like the one quoted above, which must be a template for recitation: the text is phrased in an epistolary tense true only at the moment of recitation ("scripsi"); the stipulation itself presumes a written text ("the 5,000 sesterces in cash written above," "quae supra scripta sunt"); and the document goes on to speak of the tablet, the chirograph, as the instrument by which the loan was contracted:
I, P. Vergilius Ampliatus, have written that I gave to Sex. Granius Numenius as a pledge approximately 10+ pounds of silver, which is sealed with my seal, for the 5,000 sesterces in cash, which loans I received from him on this day by my chirograph ("per chirographum meum"). But Meyer nods when she tries to link the Campanian chirographs on triptychs with informal bonae fidei contracts. (Probably her use of "fides," which is personal and distinct, produced the confusion.) Bonae fidei contracts allowed judges discretion in making monetary rewards, but the chirographs generally contain their older opposite, stricti iuris contracts (in the chirograph quoted above, for example, mutuum and stipulation were both stricti iuris contracts). The sole judicial formula from the Campanian archives is accordingly stricti iuris, allowing the judge only to decide for or against the defendant (TPSulp. 31):
Let C. Blossius Celadus be judge. If C. Marcius Saturninus ought to pay C. Sulpicius Cinnamus the 18,000 sesterces in question, let the judge C. Blossius Celadus condemn C. Marcius Saturninus to pay C. Sulpicius Cinnamus the 18,000 sesterces. If not it does not so appear, let him absolve.
This is a cavil. It must not detract from the estimation of Meyer's book, which establishes a new paradigm for the study of Roman law. Meyer hopes to throw a "rope bridge over the chasm between the study of Roman history and the study of Roman law" (3). Really, she is too nice. With honourable exceptions (cf. 10 on Rudolph von Jhering), Roman legal scholars ("Romanists") have happily taken it for granted that the ancient Roman jurists' writings reflect the reality of Roman law and that contradictions between the jurists can be explained away as "interpolations". Their discipline is scholastic, not scientific: if Gaius says that stipulation was a verbal contract, no amount of evidence from practice will ever convince most Romanists otherwise. Ignore them. Meyer has had the better idea of beginning with the Romans' thought-world and daily practice, and then turning to Roman jurists' theories. May the force of her findings bring her many imitators.