QVARTAE SIT PARTIS VLIXES … HERES: a re-examination of Roman testamentary law in Horace, Satire 2.5

ABSTRACT: Roman law and Latin literature are complementary disciplines which inform and enrich each other. This article argues for the presence of an allusion to the lex Falcidia in Horace, Satire 2.5, which raises legal issues of Roman citizenship and the extralegal use of fideicommissa.

Depending on one’s social circle, jokes about law can be as much of a conversation-starter as a conversation-finisher. Those who find the law the materia of both serious and comical discussion are likely to find some comfort in the verses of the Roman satirists. Of the extant Roman satirists, Horace’s poems appear to contain the most legal references;[1] some scholars would go as far to argue that a reasonable grasp of Roman law is a prerequisite to understanding the jokes of Horatian satire.[2] If there is to be one poem of Horace that catches a lawyer’s eye, it is likely to be Satire 2.5. For McGinn, however, this poem is wrongly considered the ‘Big Enchilada of legal reference in Horatian Satire’.[3] I adopt his summary of the poem’s comical plot,[4] but respectfully disagree with his position that ‘there is in fact no testamentary law explicitly presented by Horace anywhere in this poem’ and, therefore, if there is a point to be made — a moral to the story — it is an ‘ethical point, not a legal one’.[5] Focusing on the five epigraphic words in this article’s title, I argue that the poem contains a single important reference to Roman testamentary law, the lex Falcidia. Whilst this means that the poem is, at most, a ‘Small Enchilada’ of legal reference, this specific allusion sets up a high-brow jural joke for the more legally adroit of Horace’s contemporary audience.

The lex Falcidia

The legal reference arises towards the end of the poem where Tiresias advises Ulysses to be ‘on guard’ (vigilans) to hearing: QVARTAE SIT PARTIS VLIXES … HERES (‘of the fourth part let Ulysses be heir’).[6] Only after this announcement can Ulysses rejoice at receiving a share of the deceased’s estate. Why is it, however, that Ulysses is to receive a quarter precisely? The proposed explanation is that this is a reference to the lex Falcidia of 40 BC which prescribed that an heir receive no less than a quarter of the net succession estate.[7] If not an explicit reference to the law itself, it at least suffices to be an explicit reference to that statute’s legal effect. Our understanding of the lex Falcidia derives from the jurist Gaius.[8] There is dispute as to the exact scope and purpose of the statute.[9] For example, whereas Watson argues that its purpose was to ensure a larger amount of the estate was taxable,[10] Crook adopts the more common view that the purpose of the statute was to encourage potential heirs to accept the heirship and thus assume responsibility for distribution of the deceased’s assets;[11] this is because, where an estate was overburdened by legacies and debts, the appointed heir unsurprisingly refused to take up the heirship because it was ‘more expense than it was worth’.[12] What is clear for the purposes of the present examination, nonetheless, is that a prescribed part of the net estate of no less than 25% must be left for distribution among the heirs or co-heirs.[13]

To modern readers, it might seem absurd that up to or more than 75% of an estate would be given away to beneficiaries other than heirs. Yet, what we must understand, as Johnston explains, is that Roman testamentary legacies were a ‘means of recognizing social obligations which had been incurred by means of complex demands of friendship and patronage.’[14] The lex Falcidia and the heir’s expectation of a ‘quarter’ of the succession estate is thus a cultural and legal idiosyncrasy of the Roman world in the late Republic and early empire, and is therefore a reality that would have resonated with audiences of that time.

The likelihood is that a reasonable number of Horace’s audience in the 30s and 20s BC would have recognised the reference to the lex Falcidia. The issue of who constituted Horace’s contemporary audience is not a simple one and is unsurprisingly obfuscated by the biases and ‘bagaglio culturale’ (‘cultural baggage’) of modern readers. [15] Hassan’s 2014 study suggests that the Satires appealed to three types of readers/listeners. The first describes those who would have been forced to learn the XII Tables by rote at school.[16] These are fundamental, and possibly the earliest, pieces of Roman legislation about which we have ‘any real information’. [17] Livy dates them to 451–450 BC. [18] Cicero laments that this practice fell into decline after he left school.[19] However, those who had studied the XII Tables would have had a basic ability to recognise and interpret legal terminology in literary texts.[20] This audience, the ‘massa istruita’, would have picked out when Horace was using the law for comical effect.[21] The second audience was the intellectual élite, namely those who had not only memorised the XII Tables at school, but were also able to understand ‘ulteriori evocazioni giuridiche, estese al diritto vigente al tempo in cui Orazio scriveva’ (‘further legal evocations, extended to the law in force at the time in which Horace was writing’).[22] The third audience was much narrower and denotes the legal practitioners or jurists, the so-called prudentes.[23] This audience is relevant where Horace uses legal references which only a jurist might understand.[24] Within Horace’s milieu, then, it appears that knowledge of the law was more diffuse than we — as modern readers — might expect and not simply the reserve of legal practitioners.[25] However, with respect to the lex Falcidia, it was probably only the second and third audiences who would have got the reference. These are those whom I term the ‘legally adroit’ or ‘learned’ readers.

Ulysses as peregrinus

To the legally adroit readers, it appears problematic for Tiresias to suggest that Ulysses can in fact be a heres. Ulysses is not a Roman citizen (civis Romanus). So far as Roman law is concerned he is a ‘foreigner’ (peregrinus). Since a valid testamentum is ‘an act of the ius civile’, this means that as a non-Roman citizen Ulysses cannot take under a will.[26] Therefore, Tiresias’s advice is prima facie wrong. Yet, the even more adroit would recognise that there was a loophole for such a problem, the so-called fideicommissum.[27] The fideicommissum, literally meaning ‘entrusted to good faith’,[28] is the Roman equivalent of the English ‘trust’. [29] The second-century jurist Gaius claimed that the origin of the Roman fideicommissum was ‘to benefit foreigners (peregrini) who were debarred from profiting under the will of a Roman citizen.’[30] Being more critical, Johnston argues that peregrini were not ‘specifically debarred from receiving legacies and inheritances’ but ‘their difficulty was quite simply that civil law took no notice of them. The ius civile applied to citizens alone, and they alone could make use of its institutions, including legacies and inheritances.’[31] Regardless, Ulysses would have struggled to enforce his purported right to the ‘quarter’ of the succession estate, should it have been assigned to him as heir. His only option would be to rely on a fideicommissum.[32]

In the context of inheriting the entire estate or its residue (fideicommissa hereditatis) the way this would work is for the testator to appoint as heir someone with legal capacity (specifically, a Roman citizen sui iuris) who, on receipt of the estate, agrees to hand over such percentage of the estate to the beneficiary (fideicommissarius) as the testator so intended.[33] Not dissimilarly to the development of the English trust outside of the common law in the realm of Equity,[34] the fideicommissum evolved outside the jurisdiction of the ius civile.[35] This means that a lack of Roman citizenship would not preclude a beneficiary’s right to the property held on trust. At the time of the Satires, however, the problem with fideicommissa was that the trustee’s duty to distribute property to the beneficiary was a moral and not a legal obligation.[36] It did not become an actionable, legal obligation until around the time of Augustus’s legislative reforms between 19 and 15 BC,[37] after the composition of the Satires. In other words, if the heir (acting as trustee) refused to hand over the beneficiary’s promised share of the estate, the beneficiary would not have a cause of action for breach of trust.[38]

This leads me to the high-brow jural joke promised. As the obligation to comply with the testator’s wishes was only a moral one, the basis of the fideicommissum was ‘trust’ (fides) and not law (ius / lex). The necessity of fides to Tiresias’s legal advice is also its coup de grâce. For example, Tiresias earlier advises Ulysses to seek out rich individuals who are improbi (‘scoundrels’);[39] this necessarily implies that Ulysses will be relying on a windfall from individuals who have a reputation for breach of fides.[40] The poem itself presents a paradigm for deception and disingenuity,[41] thereby establishing a poetic universe constituted by anti-fides. The chances of Ulysses being able to rely on the actual heir passing on any share of the estate to him are therefore minuscule. No quarta pars for Ulysses after all. The advice, though appearing learned in its reference to the legal effect of the lex Falcidia, is in reality useless.[42]

The ius as anceps

The foregoing analysis has shown that there are arguably two ways to interpret the reference to the lex Falcidia: from the perspective of a civis Romanus or a peregrinus. Interestingly, Horace also appears to encourage a ‘dualistic’ interpretation of the law. Towards the beginning of Satire 2.5, Tiresias advises Ulysses to become an advocate for rich Romans in legal difficulty and to earn their trust (and estate) by asserting: ius anceps novi (‘I know the law’s ambiguity’).[43] This features as one of the many suggested methods of captatio (‘inheritance-hunting’).

One of the meanings of anceps is, as Muecke translates, ‘ambiguous’.[44] On a much more literal level, however, anceps means ‘two-sided’ or ‘twofold’.[45] If we adopt this literal meaning of anceps, we may understand Tiresias also to be saying: ‘I know that the law has a twofold nature’ or ‘I know that the law is two-sided’.[46] This encourages the learned readers, those identified by Hassan’s study, to look for two potential interpretations of one legal issue. Therefore, whereas McGinn describes the ius anceps remark, as a ‘nice reference to the ambiguity of law’ but ‘hardly limited to testamentary law and the context focusses on unethical exploitation of legal knowledge rather than on its substance’, [47] an additional interpretation is that the ius anceps remark anticipates a dualistic reception of line 100, namely that: Ulysses can be understood to inherit under a fideicommissum, but equally not.

In conclusion, Satire 2.5 contains an explicit reference to the legal effect of the lex Falcidia on estates of the deceased. It is likely that a reasonable number of Horace’s contemporary audience would have recognised this legal allusion. In light of this, Tiresias’s assertion that he ‘knows’ the ius anceps has a greater significance, namely that anceps refers to the interpretation of the law either from the perspective of a civis Romanus or a peregrinus. This hermeneutic duality underpins the overarching joke of the poem: that from a legal point of view, Ulysses probably will not be inheriting anything, even if he seeks to rely on a fideicommissum. More broadly, this reading draws attention to the presence of Roman law in Latin poetry. Roman law is a subject rarely taught in Classics (and law) departments. It is also one of vast breadth and complexity. Although there may not be sufficient amount of reference to Roman law in Latin literature to justify taking up the study of Roman law ab initio, it is nonetheless important to emphasise that by not studying Roman law we are neglecting an integral part of Roman education, culture and society.

Luke is currently a student on the Legal Practice Course in London, having graduated in Classics from Durham in 2018.

Cover image: Vincenzo Foppa, Fanciullo che legge Cicerone (Wallace Collection, London)

ENDNOTES:

[1] T. A. J. McGinn, ‘Satire and the Law: The Case of Horace’ in Proceedings of the Cambridge Philological Society 47 (2001), pp. 81–102, 82.

[2] J. D. Cloud, ‘Satirists and the Law’, in S.H. Braund (ed.), Satire and Society in Ancient Rome (Exeter 1989), pp. 49–68; J. Crook, Law and Life of Rome, 90 BC — AD 212 (Ithaca 1967), 7–36; McGinn 2001, 81; see also T. Mazurek ‘Self-Parody and the Law in Horace’s “Satires” 1.9’ in The Classical Journal 93.1 (1997), pp. 1–17, 6: ‘True to the tradition, the law is a major theme in Horace’s satiric poems; it even acts as the major unifying motif in several Satires, most notably in 1.7, 2.1 and 2.5.’

[3] McGinn 2001, 83.

[4] McGinn 2001, 83–84: ‘This is Horace’s extension of the conversation between Ulysses and Tiresias presented in Odyssey Book 11. Ulysses expresses a concern for the financial bottom line upon return to Ithaca; the seer comforts him with counsels of captatio, which was the vox propria for sucking up to someone in hopes of a testamentary windfall.’

[5] McGinn 2001, 84.

[6] Horace, Satires 2.5.100. Text hereafter cited is the Oxford Latin Text: Q. Horati Flacci: Opera, edited by E.C. Wickham (Oxford 1963). Unless otherwise stated, the translation and commentary is that of F. Muecke, Horace: Satires II (Warminster 1993).

[7] Muecke 1993, 192 ad loc.

[8] Gaius, Institutes 2.227: Lata est itaque lex Falcidia, qua cautum est, ne plus ei legare liceat quam dodrantem. itaque necesse est, ut heres quartam partem hereditatis habeat. et hoc nunc iure utimur. Text hereafter cited is Gai institutiones, or, Institutes of Roman Law, edited by E. Poste (Oxford 1925).

[9] A. Watson, The Law of Succession in the later Roman Republic (Oxford 1971), 170–174; cf. D. Johnston, The Roman Law of Trusts (Oxford 1988), 34 and 280; D. Johnston, ‘Succession’ in D. Johnston (ed.), The Cambridge Companion to Roman Law (Cambridge 2015), pp. 199–212.

[10] Watson 1971, 171.

[11] Crook 1967, 124.

[12] ibid. 124.

[13] Johnston 1988, 5.

[14] Johnston 2015, 205.

[15] R. Hassan, La Poesia e il diritto in Orazio: tra autore e pubblico (Napoli 2014), pp. 163–184 (esp. 164). Translations of all Italian quotations are my own. For avoidance of doubt, I have generally erred on the side of literality.

[16] Hassan 2014, 179–180.

[17] D. Ibbetson, ‘Sources of Law from the Republic to Dominate’ in D. Johnston (ed.), The Cambridge Companion to Roman Law (Cambridge 2015), pp. 25–44, 26.

[18] Livy, Ab Urbe Condita 3.34; Ibbetson 2015, 26.

[19] Hassan 2001, 63; Cicero, De Legibus 2.59: discebamus enim pueri XII ut carmen necessarium, quasi iam nemo discit. Text cited is the Oxford Latin Text: M. Tullius Ciceronis: De republica; De legibus; Cato maior de senectute; Laelius de amicitia, edited by J.G.F. Powell (Oxford 2006).

[20] Hassan 2014, 180.

[21] ibid. 180.

[22] ibid. 180.

[23] ibid. 181.

[24] Hassan 2014, 181. She directs us, for example, to Satire 1.3.115–117, which she argues contains an allusion to the third caput of the lex Aquilia. For the origin of this argument, see O. Diliberto, ‘La satira e il diritto: una nuova lettura di Horat., sat. 1.3.115–117’ in Annali del seminario giuridico dell’Università degli studi di Palermo 55 (2012), pp. 385–402.

[25] Hassan 2014, 184: ‘… la cognizione del diritto nel I sec. a.C. appare estesa agli ambienti intellettuali colti di Roma, e non riservata ai soli specialisti del mestiere: tutt’altro. La tradizione giuridica (e il diritto vigente, in alcuni casi, come per Orazio) diventa patrimonio distintivo dei romani …’ (‘… knowledge of the law in the 1st century BC appears to have extended to the cultured, intellectual circles of Rome, and was not the reserve only of specialists in the [legal] profession: anything but. The legal tradition (and the law in force in some cases, as for Horace) becomes the distinctive patrimony of the Romans …’).

[26]Watson 1971, 26; Cicero, Pro Archia 5.11.

[27] Crook 1967, 125. As will be elucidated, it would be erroneous to describe the fideicommissum as a ‘legal’ loophole because at the time of Horace’s writing the duties owed under fideicommissa only had moral force.

[28] Johnston 1988, 9.

[29] Johnston 1988, 1: ‘Trusts did not exist in Roman law; nor do they exist in the civil systems which derive from it. They are rightly regarded as one of the hallmarks of legal systems of the common-law family … ‘Trust’, however, is the ideal word in English, even in legal English, to translate the Latin fideicommissum … The two legal institutions have much in common: both developed in independent jurisdictions, the trust in equity, outside the common law; the fideicommissum outside the Roman formulary system, in a new official procedure. They have a common fiduciary nature: property is entrusted to one person for the benefit of another … Even if we deny (as we might as well) the direct influence of the fideicommissum on the growth of the trust in the English equitable jurisdiction, parallels are remarkable; and the translation ‘trust’ serves as a reminder that even if the two institutions, trust and fideicommissum, are diverse in origin they are none the less related in function.’

[30] Johnston 1988, 21; Gaius, Institutes 2.285: Vt ecce peregrini poterant fideicommissa capere; et fere haec fuit origo fideicommissorum. sed postea id prohibitum est; et nunc ex oratione diui Hadriani senatus consultum factum est, ut ea fideicommissa fisco uindicarentur.

[31] Johnston 1988, 32.

[32] Cloud argues for the presence of an oblique reference to fideicommissa in the later satirist Juvenal. See Cloud 1989, 55–57 and Juvenal, Satires 1.55–7. In this respect, it does not seem so absurd a proposal to argue for a comparatively less oblique reference in Horace.

[33] Johnston 1988, 10. See also ibid. 283–284: in the case of fideicommissa, the settlor can only be a testator because the fideicommissum is testamentary in origin and not inter vivos; that is to say, it must be established mortis causa.

[34] G. Virgo, The Principles of Equity & Trusts, 3rd edition (Oxford 2018), 5–7.

[35] Johnston 1988, 10 and 21.

[36] Crook 1967, 125; Johnston 1988, 9.

[37] Johnston 1988, 273–278 (esp. 277).

[38] Watson 1971, 35–39.

[39] Horace, Satires 2.5.28.

[40] See R. Fiori, ‘Fides e bona fides. Gerarchia sociale e categorie giuridiche’ in R. Fiori (ed.), Modelli teorici e metodologici nella storia del diritto private Vol. 3 (Napoli 2008), pp. 237–260, 243: ‘L’inaffidabilità, la violazione della fides, trasforma il bonus e il probus in malus et inprobus …’ (‘Untrustworthiness, the desecration of fides, transforms the bonus and the probus into malus and inprobus …’). See also Hassan 2014, 97 n.32.

[41] For McGinn, this seems to be what constitutes the poem’s ‘ethical point’. See McGinn 2001, 84 and 90.

[42] The frustration of the reader’s expectation through the giving of bad advice is hardly a surprising revelation in the wider context of didacticism in Roman poetry. See, for example, A. Dalzell, The Criticism of Didactic Poetry: Essays on Lucretius, Virgil, and Ovid (Toronto 1996); K. Volk, The Poetics of Latin Didactic: Lucretius, Virgil, Ovid, Manilius (Oxford 2002).

[43] Horace, Satires 2.5.34.

[44] OLD s.v. anceps.

[45] ibid.

[46] Here, I am construing ‘ius anceps novi’ as an implied accusative and infinitive construction, namely as: ius anceps novi esse. Metrical constraints would explain the absence of esse.

[47] McGinn 2001, 84 n.14.

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