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The Roman Law and Burial
The Roman Law and Burial
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Olivia Robinson*
needed to conserve her resources to face her many enemies (17). The fina
provision of the Twelve Tables as traditionally printed is a matter pertain
ing to private law; the usucapion of the vestibule of a place of burial
burning mound was forbidden (18). De Visscher put forward (19) an
attractive theory that there was in fact another provision in this Tab
on violation of sepulture. Cicero quotes an Athenian law forbidding
burial in an existing tomb of someone not so entitled, and penalising the
violation or destruction of a funeral monument (20); he is using precisely
the same form of comparison as when he deals with the restrictions
women's mourning and this is generally accepted as forming part of
Twelve Tables, so it seems to me likely that the offence of violation
sepulture did exist in early Roman law.
Cicero is our only source for a general treatment of sacral law; h
sets out to consider the gods of the lower world, and he tells us (21) that
one could view as connected with religion that part of the ius civile whic
dealt with graves. But the fundamental interest of the pontiffs he describ
as in the permanent maintenance of the traditional rites (22) to ke
undying the memory of the dead; all other rules of sacral law in this fie
are subsidiary to this, for example in laying down who shall perform suc
rites, and Cicero here diverted his argument into an attack on the Scaevo
for obscuring this basic duty with the complications of civil law,
instance in finding a way for a substantial legatee to avoid the burden of
the rites (23). He goes on to tell us that it was sinful to bury in a grave a
corpse from an alien clan (24), in this context clearly a matter of sac
law, not public or private law as in the passage on violation of sepult
quoted in the previous paragraph; it was the approval by the pontiffs
the correct rites that made a place of burial religiosus (25), presumably a
approval implicit in most cases. The distinction is clearly drawn in t
dialogue at this point between the ius pontificale which has gone bef
and what lies in legibus which Cicero deals with next; so the dialogue lead
on to the quotation from the Twelve Tables of the prohibition on bu
or cremation within the City, of the removal of pyres from buildings, a
of the inability to usucape the entrance court of a tomb. He then ci
other rules based on custom, and seemingly in his mind part of the secu
law, concerning funeral games, laudationes and restrictions on mourning
(17) One finds sumptuary legislation in other times of crisis, e.g., the /. Oppia of 215 B
(18) 10.10: Forum bustumve usu capi vetat.
(19) F. de Visscher, op. cit., pp. 148-50.
(20) De leg. 2.26.64: Poenaque est "si quis bustum aut monumentum aut colum
violarit, laeserit, fregeriť.
(21) De leg. 2.19.47.
(22) perpetua sint sacra.
(23) De leg. 2.21.52-3, cf. A. Watson, The Law oj Succession in tne Later Koman
Republic, Oxford 1971, pp. 6 and 7.
(24) De leg. 2.22.55 : extra sacra et gent em inferri fas negent esse.
(25) De leg. 2.22.57.
land; the buildings were unencumbered with any sepulchre so the sale
was good so far as it concerned them, but the fields had so many tombs
scattered through them (34) that they were res religiosae and no title to
them could be transferred to the buyer; however the family of the original
seller, the Patulci, could not claim title to the land which was in the
possession of Rufinus; Senecio had inspected the site himself and the
inscription breaks off where it appears that he was to confirm the right of
the Patulci to keep up the tombs. We have this particular case to illustrate
that Ulpian's statement of the law (35) was not superfluous; a clause in
the contract excluding any ground which was religious or sacred from the
sale was valid if the land was of large enough area not to be materially
diminished; as with the sale of a freeman the jurists gave the innocent
buyer an action on the sale even though the contract was strictly void (36).
The Patulci then may have been given access to the tombs; this problem
of access for the continuing duty of performing the family sacra led to a
special development in the law of servitudes. We find a group based on
iter designed to ease such performance, for example an inscription to a
sandalmaker (37), where there is recorded a hut and a cistern for the care
of the monument together with right of access and movement around the
monument and of drawing water and gathering firewood; a very similar
inscription with detailed provisions for making due sacrifice can be dated
to A.D. 149 (38); then there is the memorial to C. Novius Minyas (39)
who granted for the better care of his sepulchre a walled garden with
buildings, 280 feet along the front by 360 feet deep, and a right of way
through the greater gate of the Meropian estate; Augustus left around his
mausoleum a substantial area to be used as a public park (40); another
very brief inscription (41) simply says "a frontage of ten feet, twenty feet
in depth; the right of way to the monument is to be six feet wide". The
essentially private law nature of such arrangements is well illustrated by
a text of Paul (42) pointing out that a right of iter ad sepulchrum can be
surrendered to the owner of the servient land, and that it can also be
acquired after the tomb has made the place religiosus, and indeed there
is an inscription (43) which mentions such a purchase of a right of way, a
further right of access to a well and the right to draw water. Ulpian tells
(44) D . 11.7.10.
(45) D. 11.7.12 pr.; it may be such a limited grant in ILS 8359.
(46) ILS 8363.
(47) ILS 8205. "Woe to the writer of political slogans", cf. ILS 8206-07a.
(48) ILS 8203=FIRA 3.83h; this should, I suppose, be translated "Commit no
nuisance".
(49) CIL 6.4410=FIRA 3.83g; "it is forbidden to light a fire beside this monument".
(50) ILS 8212.
(51) ILS 8227.
(52) ILS 8236.
(53) ILS 8217.
(54) E.g., FIRA 3.83k-r.
The line between public and private was, however, narrow; it is not
clear what force there was in the inscription from Verona which simply
said "Stercus intra cippos qui fecerit aut violarit nei luminibus fruatur"
but the awful warning suggests to me that this was a private sign (55)
A very similar notice was put up around 80 B.C. by a praetor, acting on
the recommendation of the Senate, marking the stones at the limits of the
cemetery used by the poor in the Campus Esquilinus; on the city side o
this boundary there were to be lit no cremation fires nor were corpses
or dung to be dumped; on another stone was painted "Keep your dung
away or suffer for it" (55). The prohibition on burning comes from th
Twelve Tables, and we have seen it occurring in a private inscription.
Both it and the check on refuse we find earliest in a decree of the Senate
known as the SC de pago montano (57), also dealing with the Campus
Esquilinus. This imposed on the plebeian aediles the duty of making
sure no fires were lit, no dung heap made, no earth thrown (perhaps earth
closets?) within the cemetery, which was perhaps reserved for inhumation
burial because of the fire risk. (Though note that there were in Rome
crematoria; Ashby's Topographical Dictionary lists among others the
ustrinum domus Augustae in the Campus Martius and the ustrinum Anton -
inorum). The aediles seem to have had powers of seizure and fine to enforce
these prohibitions. In another inscription from Rome (55) we find a
family tomb where it is left to the aediles to permit burials. The aediles,
as part of their cura urbis , were the magistrates responsible for the general
control of graveyards and funerals; we find evidence for this even in the
poets (59). In the provinces it was the duty of the governor to see that
bodies or bones (after cremation) were not delayed or maltreated but were
allowed the use of the public roads on their way to burial {60). There was
also the praetor's interdictal protection (61). So clearly the magistrates
exercised a degree of public control over such matters even where the
private law prevailed.
Public law has a more specific role to play in dealing with the
municipalities; but the law of the end of the Republic seems essentially
the same as that of the early Republic. There is a fragment, which seems
to be part of a colonial law, which lays down that an unauthorised
burial - we do not know what this means in the context - incurred a
fixed penalty and was not to make a place locus religio sus; anyone could
(55) ILS 8207b. "May he who puts refuse within these boundary stones no more enjoy
the light".
(56) ILS 8208= FIRA 1.53; stercus longe auf er ne malum habeas.
(57) ILS 6082= FIRA 1 .39.
(55) ILS 8388=FIRA 3.85f.
(59) Ovid, fast. 6.663-4: Adde quod aedilis, pompam qui funeris irent . artifices solos
iusserat esse decem.
(60) D. 11.7.38, Ulpian.
(61) D. 11.8.1, Ulpian.
(62) C.I.L. 1.1 409= Bruns7 33: . . . qui volet exarato. Item ne quis
(63) Ancient Roman Statutes, ed. A. C. Johnson, P. R. Cole
Bourne, University of Texas Press 1961, p. 128, footnote 2.
(64) Georgics 4. 295-315.
(65) ILS 6087= FIRA 1.21.
(66) FIRA 1.69.
(67) See briefly my "Blasphemy and Sacrilege in Roman Law" (1973) 8 Ir. Jurist 356,
363-65.
(68) Le droit des tombeaux romains, p. 276. "He ordered many works to be executed
in the graveyards."
Not that there had not been a third strand in the control of burials;
sacral law naturally had always had some part to play. Mostly the pontiffs
seem to have been concerned with things like the kind of animal to sacrifice
or who was properly called heir and so entitled to burial in the family
tomb, but they also defined the point at which a locus became relig-
iosus (69), deciding, as we saw, that it did not do so if the burial was in a
public place, res publica rather than res communis . One specific function
of theirs was to authorise the transfer of a corpse when flood threatened
or a sepulchre became dangerous or there was some other good reason (70);
I cannot find any case of a highway being routed through a graveyard wit
the consequent problems modern law has to face in this circumstance (71).
Nowadays canon law controls exhumation and reburial but in the contex
of what is permitted by the law of the state. An inscription (72), probably
of the first century B.C., records that the college of pontiffs decreed that
the body of a girl could be moved; similarly an inscription of A.D. 13
records (73) the moving of thirteen year old remains "by the permissio
of the college of pontiffs". Pliny addressed a similar problem to Traja
as pontifex maximus (74); Trajan replied that it was hard for provincia
to have to take such matters to Rome, and that Pliny should follow loc
custom. But we see here the origin of the interpolated "seu iussu principis"
when Ulpian, writing on the edict, made the point that such jurisdictio
belonged to the pontiffs (75). (Paul incidentally tells us that where th
body is in different bits there is still only one locus religiosus, and that is
where the head is (76).) Marcian (77) quotes a decree of the Divi Fratre
forbidding disturbance of a corpse, but permitting the transfer of a coffi
with its contents to some more convenient place if circumstances required
A place where a coffin was left temporarily, as in the carriage of Augustu
body from Nola to Rome (78), did not become religious (79). There is
singular inscription (80) where bodies were moved permissu trib. plebi
it may just be possible that this refers to the emperor. Another task that
fell under sacral rather than public or private law, at least until the Later
Roman Empire, was the repair of tombs and monuments; an inscrip
tion (81) asking the pontiffs' permission to repair a monument confirm
wanted their own bodies to share a resting place with the remains of the
saints and martyrs (93); five years later there is another constitution
forbidding the transfer of corpses, which is clearly aimed against those
trafficking in relics (94); the undated and unprefixed constitution (95)
which prohibits payment for the moving of a body is presumably dealing
with the same problem. Justinian issued two Novels (96) on funeral
expenses. These, with Julian's prohibition of daytime funeral proces-
sions (97), are all the constitutions we have from the Later Roman Empire
on the topic of graves and burial grounds and this paucity is itself
significant. The evidence from inscriptions, as I have found them in
Dessau's representative selection, shews a similar decline in interest from
the point of private or even public law, though people were still concerned
with keeping their tombs exclusive. One of many examples from Salo in
Spain records the burial in A.D. 358 of a deacon and his wife with a
penalty of 50 pounds of silver to be paid to the local church if the tomb
were opened (98). Others trusted to good feeling; Flavius Alatancus and
his wife Bitoria besought all the clergy and the whole brotherhood (of
believers) that no one else should be buried with them, for it is written
"Do as you would be done by" (99); another grave records: "Here lies
in peace Honorata, wife of Tzittanus, who lived in this life 40 years and
was laid to her rest on 1st February, 568. 1 pray to Almighty God and to
Jesus Christ of Nazareth that you do not touch me nor violate my sepulchre
as you shall answer for it before the judgment seat of the eternal lord" (100).
Under the Christian régime there was little room for private law; to
take, for example, the ownership of tombs, in English canon law a tomb-
stone actually belongs to the man who erected it and either his heirs or
possibly the heirs of the commemorated deceased, but the faculty jurisdic-
tion of the Ordinary, the bishop, leaves hardly any effective right of
ownership (101). This organization by the Church for the faithful predates
the Later and Christian Roman Empire. Pope Dionysius (259-263)
ordered that individual churches should be in the charge of individual
priests, and each was to have his own right in his parish and cemetery (102).
It is apparent that, perhaps linked with the Christian belief in the resurrec-
tion of the body, the Christian hierarchy was starting to exercise a control
over burials of a different order from the restrictions of pagan law. Some