Roman Conquest of Italy
 


Developments at Rome


Miscellaneous Fetials


Fetial College in Late Republican Scholarship

Almost everything that we know (or think we know) about the priestly college of fetials comes to us from the surviving works of a small number of historians and antiquarians of the late Republic.  For this introductory section, I have selected a number of passages from these works that, taken together, illuminate the received wisdom at this time on the history, functions and rituals of the fetials.


M. Verrius Flaccus

Two consecutive entries in Festus’ summary record that:

  1. Fetiales: are so called from [‘faciendo’] (making), because the right of making war and peace lies with them.

  2. Feretrius: Jupiter is so-called from ‘ferendo’ (bringing), because he is thought to bring peace.  From his temple, they take:

  3. the sceptre, by which they swear [oaths]; and

  4. the lapis silex [flint stone], by which foedus ferirent (they strike a treaty)”, (‘De verborum significatu’, 81 L, lines 14-8, translated by Wilson Shearin (referenced below, at p. 84). 

These two entries are linked because the unspecified ‘they’ who took the sceptre and lapis silex from the temple of Jupiter Feretrius were fetials, who used them when solemnising foedera.   We know that Festus (and thus, presumably, Flaccus) also addressed the etymology of “foedus’ because, although Festus‘ entry no longer survives, Paul recorded that:

  1. Foedus [is] named, either:

  2. from the fact that, in making peace, the victim is killed foede (shamefully, foully, hideously), [by striking it with the lapis silex]; or

  3. because fides (good faith) is pledged in a foedus”, (‘De verborum significatu’, 74 L, lines 3-5, translation from Bill Gladhill, referenced below, at p. 53).

Dionysius of Halicarnassus

M. Tullius Cicero

Cicero was arguably the leading statesman in Rome until the 60s BC, and thereafter, as his political importance declined, one of city’s leading political philosophers.  He made a number of references to the fetials in his surviving works, the earliest of which (ca. 54 BC) recorded that the third king of Rome, Tullus Hostilius (traditionally 672-642 BC) had:

  1. “... established the rule (ius) by which wars should be declared (bella indicerentur) and, having devised it most justly, gave it fetial religious sanction (sanxit fetiali religione), to the effect that every war that had not been threatened and declared (denuntiatum indictumque) would be judged unjust

  2. and unrighteous”, (‘On the Republic, 2: 31, translated by John Rich, referenced below, 2011, at p. 212).

Thus, in this tradition, the fetial rituals necessary for the waging of a just war comprised a formal warning (denuntiato) and then a formal declaration (indictio) of war.  It is important to note that Cicero did not claim that Tullus founded the fetial college : indeed, he implied that the college was extant when Tullus established ‘the ius by which wars should be declared’.

Titus Livius (Livy)

Livy probably published the first five books of his seminal history of Rome in 27 BC, at around the time of Varro’s death and of Dionysius’ arrival in Rome.  Unlike Dionysius, he did not record the foundation of the fetial college, but he provided a detailed account of what, for him, had been the first use of the fetial ritual for solemnising treaties, which took place during Tullus’ war with Alba (see below). 

Unlike Dionysius (above), Livy believed that the fetial ritual for demanding restitution was introduced to Rome only in the reign of Tullus’ successor, Ancus Marcius (Rome’s fourth king, traditionally 642-616 BC).  In this account, when the Prisci Latini (ancient Latins):

  1. “... raided Roman territory and returned an arrogant answer when called on by the Romans to make restitution ... [Ancus decided that, since his grandfather], Numa had instituted religious observances in peacetime, he should now establish ceremonies of war, so that wars might not only be waged (gererentur) but also declared (indicerentur) with some sort of ritual.  He therefore copied from the ancient people of the Aequicoli the rule (ius) that the fetials now have, by which restitution is sought (quo res repetuntur)”, (‘History of Rome’, 1: 32: 5).

  2. Livy then gave a detailed account of the ritual procedure by which these fetials demanded justice (at ‘History of Rome’, 1: 32: 6-10, see below).

Fetial College in Late Republican Scholarship: Conclusions

Although:

  1. Varro derived the word ‘fetiales’ from ‘fides’ and ‘foedus’; while

  2. Flaccus apparently  derived it from ‘faciendo’;

they both agreed that all three words (‘fetiales’, ‘fides’ and ‘foedus’) were etymologically linked in the context of peace-making.  The fetials’ primary responsibilities apparently related to:

  1. the preliminaries necessary before the declaration of a just war; and

  2. the striking of peace treaties.

We need not place much weight on Dionysius’ claim that Numa had founded the fetial college: this was probably no more than an assumption based on the tradition that Numa had founded most of religious institutions of Rome.  Neither should we worry unduly about whether:

  1. the fetial ritual for the preliminaries of war dated back to Numa (Dionysius), Tullus (Cicero) or Ancus (Livy); or

  2. the fetial ritual for solemnising treaties dated back to Tullus (Livy).

The key point is that all of the surviving sources, including those discussed above, associate the fetials with the rituals of war and peace from the archaic period.

John Rich (referenced below, 2011, at p. 190) observed that the fetials’ role related primarily to the performance of the rituals that related to decisions that had been taken by the city’s magistrates.  He cautioned that:

  1. “Some writers, [both ancient and modern], credit them with a wider role, [including] carrying out a judicial function and even playing a part in the determination of policy. ... The case is presented in its most extreme form by Dionysius, whom Plutarch follows.  Dionysius’ conception of the fetials is reflected in the Greek equivalent he uses for them, doubtless of his own devising: they were εἰρηνοδίκαι, ‘arbiters of peace’. ... These exalted claims serve Dionysius’ overall purpose of holding the Romans up to the Greeks for admiration, and are explicitly presented by him in these terms.  To a considerable extent, his statements must represent his own reinterpretation of the fetials’ ritual activities.”

It follows from this that much of the discussion below will revolve around the accounts in the surviving sources of the rituals that the fetials were recorded as having performed as representatives of the Roman people in relation to the diplomacy of war and peace.

We also need to remember that the relative importance of the fetials’ functions will have changed over the centuries, as Rome itself changed from a small city-state in Latium to a metropolis at the head of a Mediterranean empire, and that this is not always reflected in the ‘timeless’ reflections of the antiquarians.  Furthermore, the Roman historians sometimes seem to have employed real or imagined archaic fetial rituals to enliven their narrative accounts of later periods. 

Fetial Ritual for the Preliminaries of War 

Ius Fetiale and the Just War

John Rich (referenced below, 2011, at p. 191) observed that:

  1. “The term ius fetiale, or cognate forms, is used in a number of passages in our sources.  This [so-called] ‘fetial law’ has appeared comparable to the bodies of law associated with the augurs and pontiffs (ius augurale, ius pontificium), and scholars have often interpreted it as having a [similarly] wide scope. ... However, the term [‘ius fetiale ‘] is usually applied by our sources just to ritual preliminaries of war, and so the translation ‘law’ may mislead.”

He therefore preferred to translate the term ‘ius fetiale’ as ‘the fetial rule’.  The passages above suggest two distinct traditions for the origins and content of this rule:

  1. according to Livy and Dionsysius, it prescribed the ritual by which restitution is sought (quo res repetuntur)’ before a just war could be declared; while

  2. according to Cicero, it prescribed the ritual by which war had to be announced and declared (denuntiatum indictumque) if it were to be considered ‘just’.

Before looking at each of these traditions in more detail, we might  consider what was meant by the term ‘just’ war.  To modern minds, the term indicates a war that was ‘justified’, in the sense that it was fought for a just cause.  This seems to be the implication of the following passage by Dionysius:

  1. “... I think it incumbent on me to relate how many and how important were the matters that fell within [the fetials’] jurisdiction, so that those who are unacquainted with the piety practised by the Romans of [the Regal period] may not be surprised to find that all their wars met with great success; for it will appear that the origins and motives of all of  of them were most holy, which is why the gods were especially propitious to them in the dangers that they faced”, (‘Roman Antiquities’, 2: 72: 3).

However, I think that Cicero (above) would have been much nearer the mark in capturing the original meaning of the term when he observed that:

  1. “... any war that had not been announced and declared (denuntiatum indictumque) should be considered neither just and  nor pious.”

In other words, a just war was one that had been waged following the correct preliminary ritual, as prescribed in the ius fetiale, the specific purpose of which was to secure the approbation of the gods.

Ritual Demand for Restitution

As we have seen, Varro (ca. 45 BC) summarised a tradition relating to the fetials’ role in relation to the preliminaries of war, according to which:

  1. “It was through them that iustum bellum (just war) was initiated (conciperetur). ... Before [a just war] was initiated (ante quam conciperetur), some of them were sent res repeterent (to seek restitution) ...”, (‘On the Latin Language’, 5: 86, from the translation by John Rich, 2011, at pp. 190-1).  

Both Dionysius and Livy described the origins of this ritual procedure:

  1. Dionysius (as we have seen) recorded that Numa sent members of the newly-founded fetial college to Fidenae to demand restitution as an alternative to war.  He also recored that, in the following reign, when the Romans accused the Albans of raiding Roman territory, Tullus:

  2. “... sent to Alba some Romans of distinction, duly instructed as to the course they should pursue, together with the fetials, to demand satisfaction from the Albans for the injuries the Romans had received”, (‘Roman Antiquities’, 3: 3: 3).

  3. Dionysius did not describe the ritual involved on either of these occasions and, in the second of them (which is discussed further below), the fetials merely accompanied a party of ‘secular’ envoys to seek restitution from the Albans.  However, as mentioned above, he gave a generalised account of this ritual at ‘Roman Antiquities’, 2: 72: 6-8.

  4. Livy (as we have seen) recorded that Tullus’ successor, Ancus, introduced the ius fetiale to Rome at the time of his war against the Prisci Latini.  However, like Dionysius, he described the ritual itself only in general terms (at ‘History of Rome’, 1: 32: 6-10).

John Rich (referenced below, 2011, at p. 209) observed that these two accounts of the ritual:

  1. “... are so closely similar that they must derive from a common source ... [However], Livy and Dionysius each [used this] account for his own purpose:

  2. Livy integrated it with his narrative of Ancus’ war with the Prisci Latini [see below] ... ; while

  3. Dionysius transferred it to his general account of the [fetials’ functions] ... .”

Form of the Ritual Demand for Restitution 

The putative common source that Livy and Dionysius used would have purported to describe in general terms the ritual demand for restitution as it was was preserved in the ius fetiale.  It is convenient to look at Livy’s representation of this ritual, not least because it is probably closer to the Latin original(s):

  1. “When the legatus has arrived at the frontiers of the people from whom restitution is sought, he covers his head with a woollen bonnet and says:

  2. ‘Hear me, Jupiter; hear me boundaries of (naming whatever nation to which they belong); hear Divine Law (fas).  I am the representative of the Roman people (nuntius populi Romani).  I come justly and piously commissioned, so let there be trust in my words.’

  3. Then he recites his demands, after which, he takes Jupiter to witness:

  4. ‘If I demanded unjustly and impiously that these men and these things should be surrendered to me, then let me never again enjoy my native land.’

  5. He rehearses [the words above], changing only a few words of the invocation and the oath:

  6. when he crosses the territorial boundary;

  7. again to the first person he encounters;

  8. again when proceeding through the gate of the town; and

  9. again when he enters the forum.

  10. If those whom [the legatus] demands have not been surrendered after 33 days (for such is the conventional number) [note: Dionysius recorded 30 days] he declares war thus (bellum ita indicit):

  11. ‘Hear, Jupiter, and thou, Janus Quirinus, and hear all heavenly gods, and ye, gods of earth, and ye of the lower world: I call on you to witness that this people (naming whatever people it is) are unjust, and have not paid what is rightfully due to us (ius persolvere).  We will take counsel of the elders in our country on these matters, [and] on how we may obtain what is rightfully ours (ius nostrum adipiscamur)’

  12. Then he returns to Rome for the consultation”, (‘History of Rome’, 1: 32: 6-10).

John Rich (referenced below, 2011, at 201) observed that, in this passage by Livy:

  1. “The Roman envoy is not characterised as a fetial, but as an ambassador (legatus) or messenger (nuntius).”

Earlier Source(s) for the Ritual Demand for Restitution 

Livy had already used the term ‘nuntius’in his description of the ritual by which Tullus had mandated a fetial to represent the Roman people in relation to the striking of the foedus between Rome and Alba: during this ritual, a fetial asked him:

  1. “Do you, King, grant me, with my emblems and my companions, royal sanction to serve as nuntius for the Roman People of the Quirites?”, (‘History of Rome’, 1: 24: 5).

Interestingly, Flaccus had apparently linked the word ‘nuntius’ with the fetials in his lexicon:

  1. Nuntius et in re ipsa et in persona dicitur… [ut nuntius] allatus est: qu… [in Com]mentaris feti[alium]”, (‘De verborum significatu’, at 178 L (Festus) and 179 L (Paul):

  2. “[The word] nuntius is used for both the thing itself [a message] and the person [who conveys it; i.e. the messenger].  For example, [this usage occurs ???] in the commentarii of the fetials” (my translation).

John Rich (referenced below, 2011, at 192) observed that:

  1. “These commentarii will have documented ritual procedures and provided a record of ceremonies performed, and some of what we are told about the fetials’ rituals, including Livy’s formulae, may derive ultimately from this source.”

It seems to me that these commentarii are the most likely source for Livy’s versions for the rituals used, inter alia for:

  1. the appointment of fetials as representatives of the Roman people in matters of war and peace with with other communities; and

  2. the rituals that they used in this capacity, for:

  3. solemnising treaties (see below); and

  4. (as here) demanding restitution.

Of course, as John Rich cautioned:  

  1. “... derivation from the commentarii would not necessarily guarantee authenticity: the archive may not have gone back before the later Republic, and may have included some antiquarian reconstructions, as with the commentarii of the Augustan XVviri sacris faciundis, whose account of past Secular Games rewrote history in accordance with the 110-year interval between games required to justify the celebration in 17 BC.” 

Later Sources for the Ritual Demand for Restitution

Two other passages in our surviving sources relate to the res repetere procedure:

  1. Pliny the Elder (ca. 77 AD) recorded that, at the time of the authors and founders (auctores ... conditoresque) of Rome:

  2. “... when legati were dispatched to the enemy to perform clarigatio - that is, to clearly demand the restitution of stolen property (res raptas clare repetitum) - one of [them] was always known as the ‘verbenarius’”, (‘Natural History’, 22: 3).

  3. Although Pliny was not explicit, these legati would have been fetials, one of whom, the ‘verbenarius’, would have carried the sacred herbs known as the verbenae (see the linked page on fetial rites) that probably rendered them sacrosanct. 

  4. Much later, Arnobius (ca. 303 AD), in a  polemic against pagan attacks on Christianity, argued that:

  5. “If it is a fault  ... to exchange ancient customs for new [ones] ... , this accusation also holds against you [i.e., the pagans: ... for example], when you are preparing for war, do you [still] ... practise the fetialia iura (fetial rules), per clarigationem repetitis res raptas (demanding the return of stolen property by clarigatio?”, (‘Against the Pagans’, 2: 67).

I discuss below the use of the unusual noun ‘clarigatio’ in these and other sources the ritual demand for restitution.  For the moment, we should simply note that the common use of this noun, and also of the term res raptas to make it explicit that was was demanded was the return of  ‘things that have been stolen’, indicates that Arnobius relied heavily on Pliny the Elder for his information. 

Origins of the Ritual Demand for Restitution

As we have seen, Livy believed that, before declaring war on the Prisci Latini, Ancus:

  1. “... copied from the ancient people of the Aequicoli the rule (ius) that the fetials now have, by which restitution is sought (quo res repetuntur)”, (‘History of Rome’, 1: 32: 5).

Servius, in his commentary (4th century AD) on Virgil’s ‘Aeneid’, recorded that:

  1. “Ancus Marcius … received from the Aequicoli fetial rules (iura fetialia) by which war used to be declared in the following way, as Livy recounted about the Albans [sic: Festus actually drew here primarily on Livy’s account of Ancus’ war with the Prisci Latini] ... ”, (‘ad Aen’, 10: 14, translated by John Rich (referenced below, 2011, p. 202, note 69).

The inscription (CIL VI 1302, 1-50 AD) illustrated at the top of the page recorded that this ritual had been devised by Ferter Resius, king of Aequicola, and a much later, now-anonymous account of the lives of illustrious Romans recorded that Ancus:

  1. “...  took over the ius fetiale from the Aequicoli in order to use it to demand redress (ad res repetundas); it is said that Rhesus [presumably ‘Ferter Resius’] was the first to devise it”, (‘De viris illustribus urbis Romae’, 5: 4,  translated by Federico Santangelo, referenced below, at p. 65, note 5).

However, John Rich (referenced below, at p. 188) cautioned that:

  1. “... despite the intriguing detail of Ferter Resius, [the Aequicoli] may have owed their association with the fetials just to the etymological possibilities of their name, which could be interpreted as ‘cultivators of equity’.

Dionysius seems to have known of a tradition that associated the Aequicoli with the fetial college itself (rather than simply with the ius fetiale):

  1. “Numa was also the first who instituted [the fetial college] among the Romans.  However, I cannot say whether he took his example:

  2. from those called the Aequicoli (according to the opinion of some); or

  3. from the city of Ardea (as is written by Gellius [probably Cnaeus Gellius, in the 2nd century BC]).

  4. It is sufficient for me to state that, before Numa's reign, the college of the fetials did not exist among the Romans”, (‘Roman Antiquities’, 2: 72: 1-2).

Nevertheless, as we have seen, he believed that:

  1. Numa had founded the college so that he could send the newly-appointed fetials to demand restitution from the Fidenates; and

  2. this remained their primary function throughout the Regal period.

The testimony of Livy (above)  indicates that some or all of Dionysius’ sources for the Aequicoli would have recorded that the  Romans copied the  ius fetiale from them,  and it is thus at least possible that Gellius  made the same claim for the people of Ardea.  In Roman tradition, they were among the most ancient of the peoples of central Italy: for example, in Virgil’s ‘Aeneid’, after Aeneas’ arrival in Latium, he fought Turnus, king of the city of Ardea and of the Rutilians for the hand of the daughter of King Latinus.  Whatever their original ethnicity, by the end of Regal period, the people of Ardea were clearly regarded as Latin: for example, a now-lost passage from Book 2 of Cato’s ‘Origines’ (ca. 150 BC) included ‘Rutilian Ardea’ among eight Latin cities that had jointly dedicated a shrine in the grove of Diana at Aricia at about this time: Cato’s work no longer survives, but this passage was quoted by the grammarian Priscian (‘Corpus Grammaticorum Latinorum’, 2: 129, ca. 500 AD), as discussed by Timothy Cornell, (in Timothy Cornell (Ed.), referenced below, Volume III, at pp. 82-5).  Thus, it is possible that Gellius had recorded an archaic ‘Latin’ convention of war the Romans copied from the people of Ardea for the ius fetiale.  This was the view of Robert Ogilvie (referenced below, at pp. 129-30) who argued that the Aequicoli:

  1. “... are unlikely to have been the source of such a widespread Latin rite as the ius fetiale, which, [according to Dionysius], other authorities derive from Ardea ... The attribution of it to [the Aequicoli] is no more than a late aetiological invention inspired by the false etymology aequum colere (to cultivate what is fair), [albeit that] it quickly superseded the older [‘Latin’] traditions.”

These two traditions are not mutually exclusive: as we shall see, Livy recorded:

  1. a ‘secular’ war convention involving demands for restitution preliminary Tullus’ war with Alba; and

  2. the fact that Ancus sent the pater patratus of the newly-constituted fetial college to address the Romans’ demands  for restitution to the pater patratus of the Prisci Latini, which suggests that he believed that the Latins had also adopted the ritual prescribed by Roman the ius fetiale by this time.

It is therefore possible that, in Roman tradition, the archaic practice of demanding restitution before resorting to war had begun with the Aequicoli, while the ritual used for doing so between Latin communities (including Rome) had been devised by the people of Ardea. 

Ritual Demand for Restitution: Conclusions

Varro, Livy and Dionysius probably relied, perhaps indirectly, on the commentarii of the fetials for a description of the ritual procedure prescribed in the ius fetiale as a necessary preliminary to the declaration of a just war:

  1. a fetial was first ritually appointed as nuntius or formal representative of the ‘Roman People of the Quirites’;

  2. he then travelled to the offending community and ritually delivered the Romans’ demands for restitution, on pain of war, a practice that Pliny the Elder (above) designated as ‘clarigatio’;

  3. he returned to this city after 33/30 days and, if these demands were not met:

  4. he called on the gods to witness that the offending community had denied the Romans the restitution that was their due; and

  5. he then returned to Rome and reported to the Senate.

This version of the ius fetiale had presumably been incorporated into the works of earlier Roman annalists and antiquarians.  However, there was apparently no consensus in the late Republic as to the historical context in which it had been conceived: thus, for example, Dionysius felt able to attribute it to Numa, despite the fact that Livy, only 20 years earlier, had attributed it to Ancus.

However, there is no record in our surviving sources of the actual use in a historical context of ritual as described by Livy at ‘History of Rome’, 1: 32: 6-10  and by Dionysius at ‘Roman Antiquities’, 2: 72: 6-8 (despite the impression that Livy gave in relation to the Prisci Latini).  Furthermore, Pliny the Elder described its general use  in the time of the authors and founders (auctores ... conditoresque) of Rome, and in the context of the ritual demand for the return of res raptas (stolen property).  It seems likely that, if this particular ritual was ever actually used (as opposed to being a late invention or elaboration inserted into the fetials’ commentarii), it would have been used only in the context of raids between neighbours in Latium in the Regal period (as suggested, for example, by John Rich, 2100, at p. 216).  Episodes of this kind would have been commonplace, and very few of them would have escalated to a level that would have ensured their incorporation into what we might call ‘remembered history’.

Ritual Announcement and Declaration of War

As we have seen, Cicero (ca. 54 BC) recorded a tradition for the ius fetiale that was quite distinct from the tradition recorded by Livy and Dionysius (above):  according to Cicero, Tullus:

  1. “... established the rule (ius) by which wars should be declared (bella indicerentur) and, having devised it most justly, gave it fetial religious sanction (sanxit fetiali religione), to the effect that every war that had not been threatened and declared (denuntiatum indictumque) would be judged unjust and unrighteous”, (‘On the Republic, 2: 31, translated by John Rich, referenced below, 2011, at p. 212).

Cicero did not specify the context in which Tullus established this rule.  However, the process of declaring a just war featured in the surviving narrative accounts of Tullus’ reign only in the context of his war with Alba.  The tortuous way in which this occurred was described:

  1. in two fragments of now-lost works:

  2. a short fragment of a passage by Cato (ca. 150 BC). and

  3. a much longer fragment of a passage by Diodorus Siculus (ca. 60 BC); and

  4. in complete passages in the works of both Livy and Dionysius.

As we shall see, Diodorus, Livy and Dionysius gave almost identical descriptions of the procedure that Tullus followed when he finally declared war on Alba; in Livy’s words, he:

  1. “... sent [legati to Alba] res repetiverant (seeking restitution) and, being denied it, they made a declaration of war for the 30th day”, (‘History of Rome’, 1: 22: 5).

John Rich (referenced below, 2011, at p. 211) observed that the fact that the events leading up to this declaration of war feature in so many of our surviving sources indicates that the story was embedded in Roman historical tradition from at least the time of Cato.  He acknowledged that none of them associated it with the establishment of the fetial procedure for demanding restitution, but argued (at p. 212) that:

  1. “Cicero must have had some authority for associating the tale of how Tullus’ war with Alba began with the introduction of the fetial ius, and this may well have been how the early Roman historians portrayed it.”

If this is correct, then Cicero relied on a version of the story of Tullus’ war with Alba that contained the information that this was the context in which:

  1. he devised a rule for the declaration of war, to which he gave fetial religious sanction (whatever that means ??); and

  2. it prescribed that only a war that was formally announced and declared (denuntiatum indictumque) could be considered ‘just’,

I explore the evidence for this hypothesis in the sections below.

Preliminaries to Tullus’ War with Alba: Surviving Sources

Cato/ Verrius Flaccus/ Festus

The relevant fragment by Cato is is cited in Festus’ summary of Flaccus’ entry on the word ‘oratores’ when it is applied to ‘gentes qui missi’ (those who were sent):

  1. “... [some] Roman writers refer to [such men as  oratores] rather than as legati: [for example], Cato [wrote] ... in  book 1 of his ‘De Origines’:

  2. ‘For that reason war began.  Cloelius, the Alban praetor, sent oratores to Rome with …’’’, (‘De verborum significatu’, p. 196 L, translated by Timothy Cornell, in Timothy Cornell (Ed.), referenced below, Volume II, at p. 169).

As we shall see, this fragment must refer to the initial stages in the war, when Cloelius (whom Cato designated as the Alban praetor or chief magistrate) sent ambassadors to Rome, presumably to demand restitution.  Interestingly, it indicates that, at least in some sources, ‘ambassadors’ such as these were designated as ‘oratores’.  The main value of this source is that it allows us to trace this part of the story Tullus’ war with Alba at least as for back as the middle of the 2nd century BC.

Diodorus

The earliest reasonably complete surviving version of this tale is by the Greek-speaking historian Diodorus Siculus: according to John Rich (referenced below, 2011, at pp. 206-7), he probably wrote the earliest part of his history of Rome soon after 60 BC.  This part of Diodorus’ work is now lost, but an unknown source preserved the following fragment:

  1. “While Tullus Hostilius was king of the Romans, the Albans ... claimed that the Romans had seized part of their territory.  They duly sent ambassadors to Rome to demand justice and, should the Romans ignore their demands, to declare war.  However, Hostilius ... gave orders that his friends should receive the [Alban] ambassadors and invite them to be their guests, while he would avoid any meeting with them.  [Meanwhile], he sent men to the Albans to make similar demands of them. ... By good fortune, his ambassadors to Alba were the first to be refused justice, and they therefore declared war for the 30th day following.  Thus, when the Alban ambassadors [eventually managed to present] their demands [to Tullus], he replied that, since the Albans had been the first to refuse justice, the Romans had [already] declared war upon them.  Such, then, was the reason why these two peoples, who enjoyed mutual rights of marriage and of friendship, entered into hostilities with each other”, (‘’Library of History’, presumed fragments of 8: 25: 1-4).

Diodorus interrupted his narrative to explain that Tullus sent ambassadors to Alba:

  1. “... in pursuance of an ancient custom, because men of ancient times were concerned about nothing else so much as that the wars that they waged should be just ones; for, he was worried that, if he were unable to discover the men responsible for the robbery and to hand them over to those who demanded them, it would be thought that he was entering upon an unjust war”, (‘’Library of History’, presumed fragments of 8: 25: 3).

In other words, it was Diodorus’ understanding that, under the accepted conventions of war at this time, if Tullus had refused, for whatever reason, to comply with the demands conveyed by the Alban ambassadors as soon as they were made, then they would have had right on their side if they had declared war on Rome.  In order to avoid this, he arranged for the Alban ambassadors to be distracted from their mission while he sent men to Alba:

  1. to demand justice in relation to alleged injuries inflicted on Rome, in the form of an ultimatum; and

  2. when this was denied, to declare war ‘for the 30th day following’.

Livy

Livy’s description of the competing demands for restitution prior to the Romans’ declaration of war on Alba is almost identical to that of Diodorus: in order to avoid the charge of waging war unjustly, Tullus:

  1. “... sent [legati to Alba] res repetiverant (seeking restitution) and, being denied it, they made a declaration of war for the 30th day”, (‘History of Rome’, 1: 22: 5).

He then recorded that, when Tullus received the news from his legati, he summoned those from Alba and ordered them to:

  1. “Tell your king Cloelius] that the Roman king calls the gods to witness [that the Albans] first spurned the Romans’ demand for restitution (res repetentes) and dismissed their legati, so that they [i.e. the gods] may call down all the disasters of this war upon the guilty nation [i.e. Alba]”, (‘History of Rome’, 1: 22: 7).

Thus, like Diodorus, Livy found a way of incorporating an explanation of an archaic convention of war, according to which, since the Albans had denied the Romans’ demand for restitution, the Romans could legitimately declare war on them ‘for the 30th day’, confident that the gods would be on their side.

Dionysius

Dionysius gave a more rambling account of these events, much of which seems to have derived from his own imagination.  Tullus:

  1. “... sent to Alba some Romans of distinction, duly instructed as to the course they should pursue, together with the fetials, to demand satisfaction from the Albans for the injuries the Romans had received.  These, having performed their journey before sunrise, found [the Alban chief magistrate], Cloelius, in the forum at the time when the early morning crowd was gathered there.  Having set forth the injuries that the Romans had received at the hands of the Albans, they demanded that he should act in conformity with the treaty between the cities”, (‘Roman Antiquities’, 3: 3: 3).

In this passage, Dionysius departed from the accounts of Diodorus and Livy in the following respects:

  1. he mentioned in passing that the distinguished Romans whom Tullus sent to Alba were accompanied by ‘the fetials’ (see below);

  2. he placed the Roman ambassadors’ meeting with Cloelius in the Alban Forum; and

  3. he discussed the diplomatic stand-off in terms of mutual violations of a treaty between the two parties (see below).

He then embarked on an elaborate account of the debate between Cloelius and ‘the leader of the [Roman] embassy’, which need not detain us.  The crux of his subsequent account was that:

  1. when Cloelius rejected the Roman demands, the leading Roman ambassador warned that:

  2. “... I call the gods, whom we made witnesses of our treaty, to witness that the Romans, having been the first to be refused satisfaction, will be undertaking a just war against the violators of that treaty ... Since you were the first called upon for satisfaction and also the first to refuse it, and since you have [nonetheless] been the first to declare war against us, [you should expect] swift vengeance to come upon you from the [Roman] sword”, (‘Roman Antiquities’, 3: 3: 5); and:

  3. Tullus waited until he received news that Cloelius had refused the Roman demands before he finally summoned the Alban ambassadors and duly announced that:

  4. “... having obtained nothing [by way of  restitution] that the treaty [between us] directs, I declare against the Albans a war that is both necessary and just”, (‘Roman Antiquities’, 3: 3: 6).

In these two passages, Dionysius departed from the accounts of Diodorus and Livy in two further respects:

  1. when Cloelius refused to meet the Roman demands, the Roman ambassadors merely threatened war, and it was Tullus himself who declared it; and

  2. there is no indication here that this declaration was ‘for the 30th day’. 

Surviving Sources for the Preliminaries to Tullus’ War with Alba: Conclusions

It seems certain that the sources used by Diodorus, Livy and Dionysius ultimately derived from a common source, and that at least some of the variants in Dionysius’ account (the ambassadors’ meeting with Cloelius in the Alban forum; the ambassadors’ return to Rome prior to Tullus’ declaration of war; and the absence of any indication that this declaration took effect after 30 days) resulted from an attempt to reflect some aspects of the ritual that he had already described as part of the ius fetiale devised by Numa. 

Neither Diodorus (as far as we know) nor Livy suggested that any of the members of the Roman embassy to Alba were fetials:

  1. the case of Diodorus is uncertain, because of the indirect way in which his testimony  has come down to us; but

  2. the case of Livy is clear and unsurprising, since (as we have seen) he believed that the fetials only became involved in the ritual preliminaries of war in the reign of Tullus’ successor.

It seems to me that Dionysius’ passing reference to the presence of fetials in the embassy sent to Alba is little more than an after-thought, necessitated by his earlier insistence that fetials had been involved in the ritual preliminaries of war since the reign of Numa.  The key point is that there is no suggestion in any of these three accounts that there was any ritual involved in the presentation of the Roman demands, or that there was a second visit after 30 days in order to receive the Alban reply.  In short:

  1. if we strip out the passages in Dionysius’ account that are probably the products of his own imaginings, we are left with an agreed protocol for declaring a just war that is very similar to that described by both Diodorus and Livy, except for the fact that Dionysius did not record that war was declared ‘for the 30th day’;

  2. this protocol involved a single visit by a Roman embassy that delivered an ultimatum and, if this was rejected, declared war; and

  3. the war that followed could reasonably be judged as just and righteous on Cicero’s criteria, since it had been formally announced and declared (denuntiatum indictumque).



Cicero, Tullus and the Ius Fetiale

Interestingly, if we assume that Livy’s demand for restitution was equivalent to Cicero’s announcement (denuniatio) was used  for the announcement by the legati of the terms of the ultimatum that necessarily preceded the declaration of a just war; then

  1. this was consistent with Livy’s account that Tullus sent legati to Alba  res repetiverant (seeking restitution) and that, when this was denied, they could declare war with divine approbation.

The key differences between Cicero’s generalised procedure and Livy’s description of specific procedure followed by the legates of Tullus at Alba are that Cicero:

  1. made no mention of the fact that legates would have declared war ‘for the 30th day’; and

  2. assumed that these legates would have been fetials.



Unfortunately, direct comparison of the procedure in the reign of Tullus described by Cicero and Livy is complicated by the fact that, as John Rich (referenced below, 2011, at p. 209) pointed out:

  1. “... there is no ancient attestation for the noun form rerum repetitio, which is commonly used [for the act of sending of legates to seek restitution] in modern treatments of this topic.  ... The same goes also for terms such as ... denuntiatio, which modern scholars sometimes use of stages in the procedure.  The only noun form which does appear in this context in the [surviving] ancient sources is ‘clarigatio’ (clear proclamation).”

This term was used only rarely, to the extent that Quintilian (‘Institutio Oratoria’, 7: 3: 13, ca. 95 AD) included it in a list of obscure words that orators should take care to explain for their audiences.  It is found in only five passages in our surviving sources.  One of these , Livy (‘History of Rome’, 8: 14: 6), dealt with the Romans’ treatment of Velitrae after their victory over the Latins in 338 BC: according to Charlton Lewis and Charles Short, in this context. the term meant:

  1. “... a fine or ransom ... , to be exacted of [any person exiled from Velitrae who returned across the Tiber] by any person finding him.”

As Stephen Oakley (referenced below, 1998, at p. 564) pointed out, the other four uses of the term all:

  1. “...  refer to the fetial procedure, and there can be no doubt that clarigatio was part of the old ritual of the fetials.”

As we have seen:

  1. Pliny the Elder explained that, in the archaic period:

  2. “... [fetial] legati were dispatched to the enemy to perform clarigatio: that is, to clearly demand the restitution of stolen property (res raptas clare repetitum) ... ”, (‘Natural History’, 22: 3); and

  3. the Christian apologist Arnobius (303 AD) relied heavily on Pliny for in the second of the four surviving references to this fetial ritual. 

The other two both occur in passages in Servius’ commentaries on Virgil’s ‘Aeneid’:

  1. The first of them relates a passage in which Aeneas’ enemy, Turnus, had begun an attack on the Trojan camp by hurling a javelin towards it.  Servius explained that:

  2. “When [the Romans] wanted to declare war (bellum indicere), the pater patratus (that is, the chief of the fetials) would set out for the enemy’s border.  There, after pronouncing certain ritual phrases (sollemnia), he would say in a clear voice that he was declaring war for specific reasons (certas causas): either because they had harmed [Roman] allies; or because they had not returned plundered animals or offenders.  This was called clarigatio from the clarity of his voice.  After this clarigatio a spear thrown across their borders would indicate the beginning of battle”, (ad Aen’, 9: 52, translated by John Rich, referenced below, 2011, p. 202, note 69).

  3. In other words, according to Servius, the process by which the Romans declared war in the archaic period involved two phases:

  4. the clarigatio, in which the fetial would proclaim from the border of enemy territory the reasons for the declaration of war, which might include a failure to make restitution; and

  5. the throwing of a spear into enemy territory in order indicate the start of hostilities.

  6. The second of them relates to a ruling by Jupiter against the looming war between Aeneas and Turnus.   Jupiter insisted that a just time for war (iustum pugnae .... tempus) would not come for many centuries: only then, when Hannibal would cross the Alps, would it be legitimate (licebit) to fight in hatred and to plunder (res rapuisse).  Servius explained that, in the Regal period, according to the ius fetiale:

  7. “... whenever another nation had seized people or animals from the Roman people, ... the fetials ... would set out and [the one designated as] the pater patratus, standing before the borders [of enemy territory], would state the reason for the war in a clear voice and, if they were unwilling to return the stolen property or handover those responsible for injury, he would throw the spear, which was the beginning of battle. ... Clarigatio ... was so-called:

  8. from the clear voice that the pater patratus used; or

  9. from the Greek kleros, that is ‘lot’: for it was by the lot of war that they invaded the enemy’s land ….”, (‘ad Aen’, 10: 14, translated by John Rich, as above).

It seems to me that Servius used ‘clargatio’ here to indicate a clear ultimatum immediately prior to a declaration of war, and this was precisely the meaning of Cicero’s implied denun


However, Diodorus and, as far as we can tell, Cato, assumed that the Romans and the Albans were intent upon following the same protocol.  Thus, if John Rich’s suggestion is correct, then, in the tradition recorded by the early Roman historians, Tullus had simply made the fetials responsible for the ritual announcement and declaration of war in the manner required by an existing convention of war that the Romans shared with their Latin neighbours.



John Rich (referenced below, 2011, at p. 214) observed that the procedure recorded for Tullus’ declaration of war on Alba:

  1. “... may more accurately reflect the historical procedure .... Such a procedure would have given the enemy a grace period in which they could change their mind and make restitution, but without the (potentially perilous) requirement of a further Roman mission.”




We can trace the ‘res repetere’ tradition back to a passage from Book 8 of Ennius’ epic poem ‘Annales’ (after 169 BC, which dealt with the Second Punic War (218 - 201 BC).  The original is lost, but the relevant verse is preserved in a direct quotation by Aulus Gellius (‘Attic Nights’, 20: 10: 3-5).  In it, Ennius laments that, at times of war:

  1. “Good sense is driven from view, affairs are managed by force, the honest advocate is spurned and the uncouth soldier is loved. ... [Aggressive consuls ?] ... contend among themselves, stirring up hatred, they seize property (manu consertum) not by law but rather by the sword: they demand restitution (rem repetunt) and seek mastery; they rush on with force unchecked’, (‘Annales’, Book VIII, Fragment 1b, based on the translation of Sander Goldberg and Gesine Manuwald, referenced below, at pp. 241-3).

Preliminaries to Tullus’ War with Alba: Conclusions

It seems to me that John Rich made a compelling case for his assertion that:

  1. the tale of the tortuous preliminaries to Tullus’ declaration of war on Alba, which can be securely traced back to Cato’s ‘Origines’, had probably been rooted in Roman tradition from the time of the earliest Roman historians; and

  2. these early historians probably provided the context for Cicero’s assertions that:

  3. it was during the reign of Tullus that the fetials became associated with the ritual preliminaries of war; and

  4. the ius fetiale that governed their actions from this point prescribed that:

  5. “... all wars that had not been announced and declared (denuntiatum indictumque) were judged to be unjust and impious”, (‘On the Republic, 2: 31).

However, that leaves the problem of why, if the canonical Roman tradition led Cicero to come to this conclusion, none of the three surviving narratives of these events (by Diodorus, Livy and Dionysius) followed it in this respect:

Preliminaries to Ancus’ War with the Prisci Latini

Both Livy (at ‘History of Rome’, 1: 3: 7) and Dionysius ”, (‘Roman Antiquities’, 1: 45: 2) believed that the Prisci Latini were a group of colonies (Livy) or cities (Dionysius) that had been founded by the kings of Alba.  Both Livy and Dionysius described a tradition in which, having declared war on the se cities collectively, the then engaged with them individually in a series of separate wars.  

Dionysius gave only a short account of the process by which Ancus declared war on the Prisci Latini:

  1. “... the Latins ... sent bands of robbers from each of their cities into the Roman territory on their borders ... When ambassadors sent by [Ancus] demanded that the Latins should give satisfaction to the Romans according to the treaty between them, they claimed that:

  2. they had no knowledge of the robberies ...; and

  3. in any case, since they had made the treaty with Tullus, ... it had been terminated by his death. 

  4. Ancus, therefore, compelled by this response by the Latins, led out an army against them”, (‘Roman Antiquities’, 3: 37: 2-4).

Strangely, Dionysius did not associate the fetials with this demand for restitution following the violation of the Latins’ treaty with Rome.


Livy similarly recorded that, early in Ancus’ reign:

  1. “... the Latins [whom he subsequently referred to as the Prisci Latini], with whom a treaty had been made in the time of Tullus,  ... raided Roman territory and returned an arrogant answer when called upon by the Romans to make restitution (repetentibus res), ... ”, (‘History of Rome’, 1: 32: 3).

As we have seen, Livy then recorded that Numa:

  1. “... copied from the ancient people of the Aequicoli the rule (ius) that the fetials now have, by which restitution is sought (quo res repetuntur)”, (‘History of Rome’, 1: 32: 5).

Livy digressed at this point in order to embark on a generalised account of the ritual demand for restitution (at ‘History of Rome’, 1: 32: 6-10): in summary, a fetial legatus/ nuntius made two visits to the offending city:

  1. one to specify what the Romans demanded as restitution; and

  2. the other, after 33 days, to receive the reply.

As discussed above, he had almost certainly derived this information from the fetials’ commentarii.  He then imagined the events in Rome after the fetial legatus/ nuntius (whom he now described as the pater patratus, returned to Rome and reported  that the Prisci Latini had refused to comply with the Romans’ demands

  1. “The king would immediately consult the senators [in turn] in roughly these words ... :

  2. ‘Having regard to those goods, disputes and causes (rerum litium causarum) of which the pater patratus of the Roman people of the Quirites gave notice (condixit) to the pater patratus of the Prisci Latini and the men of the Prisci Latini, which they have failed to give, render or discharge (nec dederunt, nec fecerunt, nec solverunt) as they ought, say ... what [each of] you think.’

  3. ... if the majority of those present were of the same opinion, war had been agreed upon”, (‘History of Rome’, 1: 32: 11-12).




Cicero’s distinctive ‘denuntiatum indictumque’ formula  seems to be reflected in a much later but carefully-sourced passage by Nonius Marcellus (ca. 400 AD):

  1. “The fetials were  ancient Romans priests who, when acting in the sacred office of envoys (legati), demanded restitution (repetibant) from those who had started a war against the Roman people by force or robbery or the insults of a hostile mind, once a treaty had been made. [Furthermore], so-called pious wars were not declared (indicebantur) before an announcement had been made by the fetials (faetialibus denuntiatum)”, (from Nonius’ ‘Doctrina’, at p 850 Lindsay edition, based on the translation in the blog of Roger Pearse).

Nonius then quoted a passage from Book II of Varro’s now-lost ‘De vita populi Romani’ (ca. 43 BC):

  1. “[The Romans] embarked on war slowly and with great deliberation, because they thought it wrong to wage any war unless it was justified.  Before they declared war on those by whom they knew that injuries had been committed, they used to send four fetials as legati to demand restitution (res repetitum), and they called these men ‘oratores’”, (from Nonius’ ‘Doctrina’, at p 850 Lindsay edition, based on translations by John Rich, referenced below, 2011, p. 191 and also the blog of Roger Pearse).

John Rich (referenced below, 2011, at p. 191) observed that Book II of this work by Varro dealt with the early Republic.  He also noted (at p. 223) that:

  1. “This passage [attributed to Varro] is striking, not only for the terminological equivalence between fetials, legati and oratores, but also for the specification that the emissaries should number four.  It is tempting to speculate that Varro had in mind, in particular, the four envoys, referred to elsewhere as legati, who were killed at Fidenae [according to Livy, in 437 BC and still] commemorated in statues on the Rostra [in Varro’s lifetime].”

It seems to me that it is at least possible that:

  1. Varro’s unusual reference to oratores in this context indicates that he, like Cicero, had drawn on Cato or his source(s) for the ritual that the four legati would have used to demand restitution from Fidenae in ca 437 BC; (which were answered by their murder, followed by their commemoration on the Rostra) and

  2. Nonius found the ‘denuntiatum indictumque’ ritual described in the work of Varro or Cicero, or directly in the work of Cato or his source(s)


Cicero’s distinctive ‘denuntiatum indictumque’ formula is not explicitly mentioned by any of the other surviving sources.  However, Polybius (ca. 150 BC) might have been drawn on Cicero’s putative source for this form of the ius fetiale for at least some of the following observations:

  1. “The ancients [presumably the ancient Greeks, perhaps followed by the ancient Romans] ... entered into a convention among themselves to use neither secret missiles nor those discharged from a distance against each other, and considered that it was only a hand-to-hand battle at close quarters that was truly decisive.  Hence, they preceded war by a declaration and, when they intended to do battle, gave notice of the fact and of the spot to which they would proceed and array their army.   These days, it is taken as a sign of poor generalship to do anything openly [and thus honourably] in war.  However, some slight traces of the ancient principles of warfare survive among the Romans: for they make [formal] declaration of war, they very seldom use ambuscades, and they fight hand-to-hand at close quarters”, (‘Histories’, 13: 3: 2-7).

Livy seems to have been aware of Polybius’ account perhaps his source when he recorded that, in 171 BC, when the Romans affected to  negotiate peace with Perseus of Macedonia while they were preparing for war:

  1. “... the older [senators] and those mindful of ancient custom said they did not recognise the ways of Rome in this [behaviour].  They thought that their ancestors did not wage war by [subterfuges such as] ambushes, battles by night, pretended flight and unexpected return to an enemy off his guard.  Nor did they boast of cunning rather than real bravery ... They were accustomed to declare (indicere) war before they waged it and even sometimes to announce (denuntiare) a battle and specify the place in which they were going to fight”, (‘History of Rome’, 42: 47: 5-6; see John Briscoe, referenced below, at p. 315  for some textual uncertainty).

Polybius’ passage might also  be reflected in the account by Florus (2nd century AD) of Mark Antony’s actions against the Parthians in 37-6 BC, when:

  1. “... friendship [between Rome and Parthia] was renewed on the basis of mutual respect and Antonius actually concluded a treaty with the [Parthian] king.  However, such was the exceeding vanity of the man that, in his desire for fresh titles of honour, ...  without even a pretended declaration of war (belli indictione), acting as if it were part of the art of generalship to attack by stealth, he left Syria and made a sudden attack upon the Parthians”, (‘Epitome of Roman History’, 2: 20: 2-3).

It is possible that Livy drew on this putative source used by both Polybius and Cicero in the closing passage in his account of the preliminaries of the war between Ancus Marcius and the Prisci Latini.  In the earlier part of this account, he had described the ritual demand made for redress by a Roman legatus to an unnamed enemy.  However, when restitution had been denied, he reverted to the specifics of the war with the Prisci Latini and also introduced a fetial who had been designated as pater patratus (who had obviously acted as the legatus to the Latins):

  1. “Immediately on the return of [the legatus/ pater patratus], the king would consult the [Senate], in some such words as these:

  2. ‘Having regard to rerum litium causarum (those goods, disputes and causes) of which the pater patratus of the Roman People of the Quirites has made demands on the pater patratus of the Prisci Latini ... , which they have not delivered, nor fulfilled, nor satisfied, being things which ought to have been delivered, fulfilled, and satisfied, say ... what [each of] you think.’

  3. ... if the majority of those present were of the same opinion, war had been agreed upon”, (‘History of Rome’, 1: 32: 11-12).

Unlike Dionysius (in the parallel account discussed above), Livy then set out what happened next:

  1. “It was customary for the fetial to carry to the bounds of the other nation a cornet-wood spear, iron-pointed or hardened in the fire, and in the presence of not less than three grown men to say:

  2. ‘The peoples of the Prisci Latini  ... have acted and offended against the Roman people of the Quirites, and since the Roman people of the Quirites has ordered there to be war against the Prisci Latini, the Senate .... has voted, agreed and decreed that war should be made against the Prisci Latini.  For that reason, I and the Roman people declare and make war (ego populusque Romanus … bellum indico facioque) against the peoples of the Prisci Latini ... ’. 

  3. When he had said this, he would hurl the spear across their borders.  In this way, restitution was sought from the Latins and war declared (repetitae res ac bellum indictum), and later generations have accepted that custom”, (‘History of Rome’, 1: 32: 12-3).

I wonder whether, in this closing passage, Livy drew in part on the putative source used by Cicero for the ritual in which, according to the ius fetiale, war was formally announced and declared (denuntiatum indictumque).


Ritual Proclamation

We might reasonably wonder whether there was any fundamental inconsistency between:

  1. Cicero’s assertion that a war was waged justly only if it had been announced/ threatened and declared (denuntiatum indictumque); and

  2. the characterisations by Varro, Livy and Dionysius of the res repetere procedure as a necessary preliminary to the waging of a just war.

A passage by Cicero in a work of  ca. 44 BC seems to suggest that these were alternatives:

  1. “Fairness in war has been prescribed, in full accordance with religious scruple, by the fetial rule of

  2. the Roman people.  From this, it can be understood that no war is just nisi quod: aut rebus repetitis geratur; aut denuntiatum ante sit et indictum (unless it has been waged: [either] after a formal demand for restitution; or it has been formally announced and declared beforehand”, (‘On Duties’, 1: 36, translated by Miriam Griffin and Margaret Atkins, referenced below, at p. 15).

However, the translators noted that:

  1. “The old Roman practice was for the priesthood of the fetiales to deliver an ultimatum to the enemy demanding compensation for his alleged oppression.  If no satisfaction was forthcoming, a threat of war was announced and war was then formally declared by the Roman assembly. Cicero’s [either/or] here is inexact: he means that all three conditions to apply”

In this context, they cited another passage by Cicero in a now-lost part of his ‘On the Republic’ (ca. 54 BC)  that was quoted by Isidore of Seville (6th century AD):

  1. “Cicero speaks of [the rules for just war] in his ‘Republica’, (3: 35):

  2. ‘Those wars are unjust which are undertaken without due cause: for no just war can be waged, except in order to avenge [wrongs] or to drive off enemies.’

  3. And, he adds a little further on:

  4. ‘No war is considered just nisi denuntiatum, nisi dictum, nisi de repetitis rebus (unless it is announced/ threatened, declared, and concerns the recovery of goods)’”, (‘Etymologies’, 18: 2-3, based on the translation by Stephen Barney et al., referenced below, at p. 359).

John Rich (referenced below, 2011, at p. 212, note 105) agreed that this passage suggests that all three elements were obligatory, but he cautioned that Isidore’s citation might not be exact.  It seems to me that:

  1. the obligatory demand for restitution in the form of the return of stolen goods would have made most sense in the Regal period, when hostilities caused by raiding between neighbours might sometimes have been averted by process of negotiation; but

  2. as the Romans began to engage with mightier and more distant opponents in wars that were potentially existential, they probably adopted a process involving an announcement of what was required by way of redress (perhaps in the form of a non-negotiable ultimatum) that almost inevitably led to a formal declaration of war.

On this model, Cicero’ would have used the formula ‘denuntiatum indictumque’ anachronistically in relation to the ius fetiale devised by Tullus.


Fetials and Foedera (Treaties)

In the section above, I recorded part of Varro’ etymology of the word ‘fetiales’.  The full passage reads:

  1. “[Fetiales] were so-called because they were in charge of public fides (faith) between people.  It was through them that:

  2. iustum bellum (just war) should be undertaken; and, at its conclusion,

  3. foedere fides pacis constitueretur (the faith of the peace should be established by a treaty (foedus).

  4. Before war was declared, some of them were sent to seek restitution [as an alternative to war]:  even now, it is through them that fit foedus (a treaty is made) ”, (‘On the Latin Language’, 5: 86, from the translation by John Rich, 2011, at pp. 190-1).  

He added that:

  1. “Ennius writes [that foedus] was pronounced fidus”, (my translation).

Thus Varro associated the fetials with good faith in both war and peace, and that they had discharged this second function through their part in the solemnisation of treaties from the time of their foundation until his own time.  He alluded again to this fetial ritual in a work published about a decade later:

  1. “The Greek name for the pig ... was [originally] θῦς from the verb θύειν (to sacrifice); for it seems that, at the beginning of making sacrifices, [the Romans] originally took the victim from the swine family.  There are traces of this in  ... [the fact] that, in the rites that initiate peace, foedus cum feritur, porcus occiditur (when a foedus is struck, a pig is killed)”, (‘On Agriculture’, 2: 4: 9, translated by William Hooper and Harrison Boyd, referenced below, at pp. 356-7).

As we shall see below, Livy first mentioned the fetials in the context of their solemnisation of a treaty between Rome and Alba in the reign of Tullus.  At the climax of this ritual, the fetial designated as:

  1. “... the pater patratus cried:

  2. ‘Hear, Jupiter; hear, pater patratus of the Alban people: hear people of Alba: the Roman people will not be the first to depart from these terms, as they have been publicly rehearsed ... and clearly understood.  If, by public decision, they should... [do so] with malice aforethought, then, on that day, may you, Jupiter, strike the Roman people as I shall now strike this pig: and may you strike with greater force, since your power and your strength are greater’. 

  3. When he had said this, he struck a pig with saxo silice (a flint stone).  The Albans then pronounced their own forms and their own oath, by the mouth of their own dictator and priests”, (‘History of Rome’, 1: 24: 8).

As Bill Gladhill (referenced below, at p. 19) observed:

  1. “For Varro, the abstract and intangible fides pacis (the mutual obligation of peace) is made manifest by means of the [fetial ritual for the solemnisation] of the foedus.”

As we saw above, Dionysius believed that Numa had founded the college so that the fetials could perform this ritual in order to secure restitution following raids on Roman territory by the people of Fidenae.  He did not spell out the rituals that the fetials actually followed on this occasion, but he did explain more generally that:

  1. “... if others violate their treaties with the Romans, it is [the fetials’ duty] first to go as ambassadors and make a formal demand for justice ...”, (‘Roman Antiquities’, 2: 72: 4).

He also described the ritual involved:

  1. “As to the functions they performed in the quality of heralds when they went to any city thought to have injured the Romans,  ... one of these fetials, chosen by his colleagues, wearing his sacred robes and insignia to distinguish him from all others, proceeded towards the city whose inhabitants had done the injury; and, stopping at the border, he called upon Jupiter and the rest of the gods to witness that he was come to demand justice on behalf of the Roman State.  Thereupon he took an oath that he was going to a city that had done an injury; and having uttered the most dreadful imprecations against himself and Rome, if what he averred was not true, he then entered their borders. Afterwards, he called to witness the first person he met, whether it was one of the countrymen or one of the townspeople, and having repeated the same imprecations, he advanced towards the city. And, before he entered it, he called to witness in the same manner the gate-keeper or the first person he met at the gates, after which he proceeded to the forum; and, taking his stand there, he discussed with the magistrates the reasons for his coming, adding everywhere the same oaths and imprecations.  If, then, they were disposed to offer satisfaction by delivering up the guilty, he departed as a friend taking leave of friends, carrying the prisoners with him. Or, if they desired time to deliberate, he allowed them ten days, after which he returned and waited till they had made this request three times”, (‘Roman Antiquities’, 2: 72: 6-8). 

This is essentially the same ritual described by Livy, with further details added.



In his commentary on Virgil’s ‘Aeneid’, Servius explained the meaning of ‘foedus’ on two of the occasions on which it appeared in the poem (reproduced and translated by Bill Gladhill, referenced below, at pp. 51-2):

  1. “... foedus is named for the fetiales:

  2. that is, from the priests through whom foedera are struck; or

  3. from a sow slaughtered foede (foully) ... with a stone ...”, (‘ad Aen’, 1: 62).

  4. “... [Romulus and the Sabine king Tatius] iungebant foedera (were [cementing] treaties) with a sow.  Foedera, as we said earlier, are so-called because they derived:

  5. from a sow slaughtered foede (foully) and cruelly, since:

  6. -although previously, [the sacrificial pigs] were transfixes with swords;

  7. -the fetials discovered that [the pigs] should be silice feriretur (struck with a flint stone), because they thought that the lapis silex was a sign of Jove.

  8. [However], Cicero thought that ‘foedera’ derived from ‘fides’”,  (‘ad Aen’, 8: 641).

Although Servius’ commentary dates to the 4th century AD, he clearly used Cicero as one of his sources.  We might therefore reasonably assume  that he had access to other late Republican sources including Varro and Flaccus (either directly of via Festus).

Collegium Fetialium in the Regal Period

Foundation of the College of Fetials

According to Dionysius of Halicarnassus (ca. 7 BC), the collegium fetialium was the seventh of the eight priestly colleges to be founded by Numa Pompilius (traditionally 715 - 672 BC) .  He  noted that:

  1. “These [priests] may be called in Greek εἰρηνοδίκαι (arbiters or judges of peace).  They are chosen men, from the best families, and exercise their priestly office for life.  [Although] it was Numa who instituted this holy magistracy among the Romans, ... I cannot say whether he took his example from:

  2. the Aequicoli, according to the opinion of some, [including the commissioner of the cippus illustrated above]; or

  3. the city of Ardea, as written by Gellius [probably Cnaeus Gellius, in a now-lost work written in the 2nd century BC].

  4. It is sufficient for me to state that, before Numa's reign, the collegium fetialium did not exist among the Romans”, (‘Roman Antiquities’, 2: 72: 1-2).

This is our only surviving source for the foundation of the college, although (as we shall see) all the surviving sources characterise it as a very ancient institution.  Some of Dionysius’ sources indicated that some of the neighbouring communities already followed a convention or agreed code of behaviour in which war would not be declared between them before a formal request for redress had been made and denied, but Dionysius professed himself agnostic on this point.  Dionysius did not spell out how the fetials actually acted  this occasion, but he did explain more generally that:

  1. “It is [the fetials’] duty:

  2. to take care that the Romans do not enter upon an unjust war against any city in alliance with them; and

  3. if others violate treaties that they have agreed with them:

  4. to go as ambassadors and make formal demand for justice; and

  5. only then, if the others refuse to meet their demands, to sanction war”, (‘Roman Antiquities’, 2: 72: 4).

John Rich (referenced below, 2011, at p. 190) argued that:

  1. “Dionysius’ conception of the fetials is reflected in ... [his designation of them as] ‘arbiters of peace’. ... [His exalted claims]:

  2. that they were responsible for ensuring that the Romans did not begin an unjust war; and

  3. that a war could not be begun without their authorisation;

  4. [among others] ... serve [his] overall purpose of holding the Romans up to the Greeks for admiration, and are explicitly presented by him in these terms.  To a considerable extent, his statements must represent his own reinterpretation of the fetials’ ritual activities.

As we shall see, the surviving sources, taken together, suggest that the fetials were primarily concerned with the rituals associated with the matters of peace and war.

Fetials and the War with Alba under King Tullus Hostilius

A number of our surviving sources record that, early in the reign of Numa’s successor, Tullus Hostilius , a series of raids and counter-raids between Roman and Alban peasants escalated into outright hostilities between the two states.  The fetials appeared in two different roles in the surviving accounts of these hostilities:

  1. according to Dionysius, they played a part in the Romans demand from redress from Alba, on pain of war; while

  2. according to Livy, they were responsible for solemnising a treaty between Rome and Alba.

I discuss these two aspects of the hostilities in successive sections below.

Roman and Alban Demands for Redress

Above



This is Dionysius’ only mention of the fetials in the reign of Tullus, and it seems to me that he might well have added it as an afterthought.

Proxy War Between the Horatii and the Curiatii

Both Dionysius and Livy recorded that, as the opposing armies prepared for their first engagement with each other:

  1. Cluilius died in mysterious circumstances  and was replaced by Mettius Fufetius (whom Livy characterised as dictator); and

  2. Tullus and Mettius Fufetius then agreed to resolve their differences by combat between two sets of triplets: the (probably Roman) Horatii and the (probably Alban) Curiatii.

It seems that this agreement was ritually solemnised prior to the contest: for example, according to Dionysius:

  1. “...  when the armies had camped near one another, ... they first offered sacrifice and swore over the burnt offerings that they would accept whatever fate the outcome of the combat between [their respective champions] should allot to them, and that they would keep inviolate their agreement ... Then, after performing the rites that religion required, both the Romans and Albans laid aside their arms and left their [respective] camps to watch the combat ...”, (‘Roman Antiquities’, 3: 18: 1-2).

However, Dionysius made no mention of any fetial involvement in this ritual. 

However, according to Livy, this agreement took the form of:

  1. “... a foedus (treaty) ... between the Romans and the Albans, which provided that the nation whose citizens should triumph in this contest should hold undisputed sway over the other nation.  Tradition has it that this foedus, which is the oldest of which we know, was made as follows: ...”, (‘History of Rome’, 1: 24: 3-4).

Livy then embarked on a detailed account of the fetial ritual that was used in the solemnisation of the treaty (discussed in detail in the linked page on fetial ritual).  At is climax, the fetial who had been designated as:

  1. “... the pater patratus cried:

  2. ‘Hear, Jupiter; hear, pater patratus of the Alban people: hear people of Alba: the Roman people will not be the first to depart from these terms, as they have been publicly rehearsed ... and clearly understood.  If, by public decision, they should... [do so] with malice aforethought, then, on that day, may you, Jupiter, strike the Roman people as I shall now strike this pig: and may you strike with greater force, since your power and your strength are greater’. 

  3. When he had said this, he struck a pig with saxo silice (a flint stone).  The Albans then pronounced their own forms and their own oath, by the mouth of their own dictator and priests”, (‘History of Rome’, 1: 24: 8).

Livy had not mentioned the fetials in his narrative before this point, although his account obviously assumes their prior existence.  Although this whole account of hostilities between Rome and Alba at this time is likely to have been invented, John Rich (referenced below, 2011, at p. 194) argued that:

  1. “... there is no reason to doubt that [this] fetial treaty ritual, performed with pig and flint stone, was of great antiquity, and [as other sources indicate, that it] was in regular (although perhaps not exclusive) use in the early and middle Republic for the solemnisation of treaties following authorisation by the Senate and people.”

Livy’s comment that this was the oldest treaty in Roman memory is odd, since this was not the first treaty to appear in his narrative: he had already recorded that:

  1. Romulus had struck a treaty with the Sabine king Tatius (1: 13: 4) and renewed the Romans’ treaty with Lavinium (1: 14: 3);

  2. Numa had opened his reign by striking treaties with all Rome’s neighbours (1: 19: 4); and

  3. a treaty between Rome and Alba was apparently still in force when the dispute under discussion here erupted (1: 23: 7): according to Dionysius (‘Roman Antiquities’, 3: 3: 1), it had been struck by Romulus. 

It seems, therefore, that what Livy meant was that, in the Roman tradition that he followed, the treaty that Tullus struck with Mettius Fufetius was the first to be solemnised using the fetial ritual.


Collegium Fetialium in the Regal Period: Conclusions

It seems that the fetials were seen as representatives of the Romans in their dealings with other peoples in matters of war and peace Although there are internal inconsistencies in the detail of these fundamental passages, the outline is clear: by the late Republic, the received wisdom (as evidenced so far by Diodorus, Cicero, Livy and Dionysius) was that the fetial college had existed since at least the time of Numa. 

The sources above suggest that fetial rituals were though to have been used in the regal period for:

  1. solemnising peace treaties (Livy, who traced this role back to the time of  Tullus);

  2. demanding restitution from parties accused of violating treaties or more generally of injuring Roman interests (Diodorus (?); Cicero (?); Livy, who traced this role back to the time of Ancus Marcius; and Dionysius, who traced it back to the time of Numa); and

  3. formally declaring war after just cause had been established and then initiating hostilities through a spear-rite (Diodorus (?); Cincius; and Livy, who traced this role back to the time of Ancus Marcius).

The traditions that surrounded these archaic rituals are discussed in the linked page on fetial rites.


Octavian and the Declaration of War against Cleopatra (31 BC)

According to Cassius Dio, in 31 BC, after the assembled senators had:

  1. “... declared war on Cleopatra, [they] put on their military cloaks ...  and went to the temple of Bellona, where they performed all the rites preliminary to war in the customary fashion, through [Octavian] as [a member of the collegium fetialium].  These proceedings, which were nominally directed against Cleopatra, were really directed against Mark Antony”, (‘Roman History’, 50; 4: 4).

Augustus recorded in his autobiography (‘Res Gestae’, 7: 3) that he had belonged to all the Roman priestly colleges, including that of the fetials.  Thus, it seems that, by this time,  the ‘customary’ ritual did not require that a spear should be hurled into the territory of Cleopatra: Festus (in his epitome of the lexicon of the grammarian M. Verrius Flaccus, who would have been about 25 at the time of the declaration of war against Cleopatra) explained that:

  1. “The goddess of battle is called Bellona.  A short column called the columna bellica stands in front of her temple, and it is customary to throw a spear over this column whenever the Romans declare war”, (‘De verborum significatu’, p. 30 L, translated by Peter Aicher, referenced below, at p. 206).


According to Livy (‘History of Rome’, 10: 19: 16), Appius Claudius Caecus:

  1. vowed this temple in 296 BC, in a battle against the Etruscans during the Third Samnite War; and

  2. consecrated it in 293 BC. 

Ovid recorded that:

  1. “On [3rd June, the temple of] Bellona is said to have been consecrated (sic) in the Etruscan war, and [this goddess] always behaves graciously towards Latium.  Her founder was Appius, who, when peace was refused to Pyrrhus, saw clearly in his mind, although he was blind].  A small open space commands from the temple a view of the top of the Circus [Flaminius].  There stands a little pillar of no little importance: from here it is the custom to hurl a spear, war’s harbinger, when it has been resolved to take arms against a king and peoples”, (‘Fasti,’ 6: 199)

Ovid’s reference to Pyrrhus is illuminated by Cicero:

  1. “In old age, Appius Claudius [Caecus] had the additional disadvantage of being blind; yet it was he who, when the Senate was inclining towards a peace with Pyrrhus and was for making a treaty with him, did not hesitate to say what Ennius has preserved in the following verses:

  2. ‘Whither have swerved the souls, so firm of yore?  Is sense grown senseless? Can feet stand no more?’

  3. And so on in a tone of the most passionate vehemence.  You know the poem, and the speech of Appius himself is extant.  He delivered it 17 years after his second consulship [i.e. in 279 BC, before the famous Pyrrhic victory at Asculum in that year], there having been an interval of ten years between the two consulships, and he having been censor before his previous consulship.  This will show you that at the time of the war with Pyrrhus he was a very old man.  Yet this is the story handed down to us”, (‘On Old Age’, 6: 16)

Virgil (who was a client of Octavian’s colleague, Maecenas by 31 BC) ) referred to an incident in which Turnus, the King of the Rutuli and enemy of the Trojans, approached their camp in Aeneas’ absence and encouraged his men to attack it, shouting:

  1. “Men, is there anyone who, with me, will be first against the foe?  See!” he cries and, whirling a javelin, sends it skyward to start the battle ... ”, (‘Aeneid’, 9: 52).

Virgil would have envisaged Turnus’ hurling of the javelin as a precursor of the Roman practice of declaring war.  Servius/ Servius Danielis, in their commentaries on this passage, described the Roman ritual in two parts:

  1. Initially:

  2. “When [the Romans] wanted to declare war, the pater patratus … would set out for the enemy’s borders and, after reciting certain customary words, would say in a clear voice that he was declaring war for certain reasons, either because they had harmed allies or because they had not returned plundered animals or offenders.  This was called clarigatio from clarity of utterance.  After this clarigatio a spear thrown across their borders would indicate the beginning of battle. However, the fetials would throw the spear on the 33rd day after restitution had been sought from the enemy”, (‘ad Aen’, 9: 52, translated by John Rich, referenced below, 2011, p. 202, note 69).

  3. However:

  4. “... in the time of Pyrrhus [ca. 280 BC], when the Romans intended to wage war against an overseas enemy ... , they devised a scheme whereby one of Pyrrhus' soldiers was captured and made to buy a plot of land in the Circus Flaminius, so that they could declare war legitimately, as though in a place belonging to the enemy.  Later a column was dedicated in that place, in front of the Temple of Bellona”, (‘ad Aen’, 9: 52, translated by John Rich, referenced below, 2011, p. 206).

Thomas Wiedemann (referenced below, at pp. 482-4) argued that, in fact, the fetial rite of throwing the spear might well have been:

  1. “... largely, if not entirely, an invention of [31 BC]”, (quotation from p. 484).

Harriet Flower (referenced below, at p. 49, citing Wiedemann) ) suggested that Octavian:

  1. “... was instrumental in some kind of ‘revival’ of rites in his declaration of war on Cleopatra.”

The testimony of Varro [above] cannot be used to support either  hypotheses: he might well have omitted the spear-throwing because he considered it to be of no relevance to the etymology of ‘fetiales’.  Furthermore, Emilia Salerno (referenced below, at p. 153) reasonably argued that:

  1. “... [since] some continuity in the fetial priesthood can be detected in both literary and epigraphic sources, ... it might be misleading to consider Octavian’s celebration of [the fetial rite for declaring war] as an attempt to invent a ritual and to present it as traditional: the ritual, [which] was most likely already suggested in the fetial law, ... had already been performed, although it is hard to say how often [or how recently].”

Having said that, Octavian’s motivation for employing this ritual on this occasion was clearly not the traditional one: as Alison Cooley (referenced below, 2009, at p. 134) pointed out, his status as a fetial allowed him to participate in what was probably the revival of a ritual that had not been performed for some time:

  1. “... precisely in order to present [the war that had just been declared] as a foreign, not a civil, conflict.”

And, perhaps not coincidentally, Octavian was just about to begin the restoration of the temple of Jupiter Feretrius, in which, as we have seen, other cult objects of the fetials were housed.


Thomas Wiedemann (referenced below, at pp. 480-22) argued that this late evidence for the change in the ritual at the time of the Pyrrhic War is unconvincing, and suggested (at p. 482) that:

  1. “Perhaps the spear-throwing rite was not modified; perhaps there never had been any such archaic rite.”



Fetials’ Sceptre 

Festus is our only surviving source for the existence of the fetials’ sceptre.  However, the last book of Virgil’s ‘Aeneid’ (ca. 19 BC) describes a foedus made between Aeneas and his enemy, Turnus, prior to the duel that would decide which of them would succeed King Latinus: Bill Gladhill, referenced below, at p. 146) argued that:

  1. “The ritual activity [used for this foedus] mirrors the [traditionally much later] fetial ritual as a kind of etiological backdrop.”

Importantly for this discussion, Latinus swore that he would honour the terms of the foedus, whichever man emerged victorious:

  1. “May [Jupiter] Genitor, who sanctions treaties with his lightening, hear my words ! ... however things turn out, [nothing] shall break this peace and truce for Italy: nor shall any force change my mind, ... just as this sceptre (which, by chance, he held  in his hand) shall never sprout, ... now that the craftsman’s hand has encased it in fine bronze and given it to the elders of Latium to bear”, (‘Aeneid’, 12: 206).

In his commentary on this passage, Servius explained that:

  1. “The reason why the sceptre is [now] used when a treaty is made is as follows.  The ancients always used simulacrum Iovis (a statue of Jupiter) [on such occasions], but this was difficult, especially when the treaty was made with a distant peoples.  They discovered that they could effectively replace the image of Jupiter by holding the sceptre, which is [Jupiter’s], and his alone.  Thus, when Latinus held the sceptre, it was not as king but [anachronistically] as pater patratus", (‘ad Aen’, 12: 206, my translation).

Servius clearly thought that Virgil had based his account of Latinus’ oath on the ritual that the pater patratus used when swearing  on the part of the Roman people to honour a treaty, and, more specifically, that Virgil presented the sceptre of the Latin kings to his readers as a precursor of the sceptre that the fetials’ kept in the temple of Jupiter Feretrius.


Festus’ epitome does not explicitly indicate when this practice of housing the sceptre and the stone in the temple had begun.  Nevertheless, his account at least suggests that the fetials had chosen the temple as a home for the stone that they used to the solemnisation of peace treaties because Jupiter Feretrius was the bringer of peace (and it is possible that this was more explicitly stated in Flaccus’ original).  We therefore cannot rule out the existence of a Roman tradition that the fetials had housed the sceptre and stone in the temple since the first time that they had used them to solemnise a treaty.


It is possible that Flaccus also derived Feretrius from either ferre or ferire, although now in the context of bringing peace and the striking treaties, and that this putative second etymological strand became less explicit in Festus’ summary. 

However. Flaccus did not say that ‘Feretrius’ was derived from ferire: the sense of this passage (at least as I read it) is more probably that the fetiales kept the cult objects used in the ritual solemnisation of peace treaties in the temple of Jupiter Feretrius because he was the bringer of peace.

Some scholars give particular weight to the putative second strand of Flaccus’ etymology: for example, Harriet Flower (referenced below, at p. 42) asserted that:

  1. “[The] main purpose of the archaic temple of Jupiter Feretrius] is clear.  It was closely associated with the rites of the fetiales, and was used as a repository for their sacred objects. The cult title Feretrius seems to refer directly to the fetiales and to their function of ratifying and regulating treaties.”

  2. “Foedera could be made by others besides the fetials, sometimes by sacrificing a pig (though perhaps not with a flint stone), and other treaty rituals are also attested.”

  3. “In ratifying the treaty which was made once upon a time with Samnites, a youth of noble birth held the sacrificial pig as ordered by his general.  The treaty, however, was disavowed by the Senate and the commander was surrendered to the Samnites, whereupon some one in the Senate said that the youth also, who held the pig, ought to be surrendered. The charge is: “He ought to be surrendered.” The answer is: “He ought not.” The question is: “Ought he to be surrendered?”a The defendant’s reason is: It was not my duty nor was it in my power, since I was so young and a private soldier, and there was a commander with supreme power and authority to see that an honourable treaty was made.” The prosecutor’s reply is: “But since you had a part in a most infamous treaty sanctioned by solemn religious rites, you ought to be surrendered.”


Cicero

Cicero twice claimed that the consuls agreed a foedus with Pontius: Cicero did so twice in his surviving works:

  1. In a satirical account of a hypothetical legal debate, the young Cicero referenced:

  2. "... the foedus that was ... made with the Samnites [in 321 BC], [when] the consul ordered a certain young man of noble birth to hold the pig that was to be sacrificed.  When the foedus was disavowed by the Senate and the consul [who had agreed it] surrendered to the Samnites, one of the senators asserted that the man who had held the pig ought also to be handed over to them”, (‘de Inventiones’, 2: 30 [91]).

  3. Later in his career (in ca. 44 BC), Cicero returned to these events in his defence of a decision that had been taken in 255 BC by Marcus Atilius Regulus: the Carthaginians had captured Regulus during the First Punic War and released him on parole so that he could present a treaty to the Senate, but he successfully argued that the Senate should not accept its terms and then returned to the Carthaginians under the terms of his parole.  Cicero argued that he had been morally right to do so:

  4. “Regulus had no right to confound by perjury the terms and covenants  ... [relating to a war that] was being fought with a legitimate, declared enemy.  We have our whole fetial code to regulate our dealings with such an enemy, as well as many other laws that are binding between nations.  Were this not the case, the Senate would never have delivered up illustrious Romans in chains to the enemy, ... [as it did, for example, in 321 BC, when] Titus Veturius and Spurius Postumius ... lost the battle at the Caudine Forks, and our legions were sent under the yoke.  These consuls were delivered up to the Samnites because they had made peace with them without the approval of the people and Senate. ... This was done in order that the peace with the Samnites might be [legitimately] repudiated”, (‘De Officiis’, 3:108-9).

Thus, according to Cicero, the consuls of 321 BC had agreed a foedus with the Samnites in a ritual that involved the sacrifice of a pig, and this foedus would have been legitimate if it had been formally sanctioned by the Senate.  Unlike Livy, Cicero did not claim that a serving consul was unable to strike to a foedus on behalf of the Roman people without the involvement of the fetials.

In his speech in defence of Aulus Caecina, Cicero (ca. 70 BC) addressed the claim that Caecina had lost his rights as a citizen following measures that Sulla had taken against his native city, Volaterrae, and that he was therefore disqualified from inheriting the property that was the subject of this legal action.  As part of his case that citizenship (like freedom) was inalienable, Cicero pointed out that:

  1. “... when anyone is surrendered [to an enemy] by the pater patratus [of the fetial college] ... , what justification is there for the loss of his citizenship?  A Roman citizen is surrendered to save the honour of the state: if those to whom he is surrendered accept him, he becomes theirs; if they refuse to accept him, as the Numantines did Mancinus, he retains his original status and his rights as a citizen” (‘Pro Caecina’, translated by Humfrey Grose-Hodge, referenced below, at p. 197).

Cicero (in 55 BC):

  1. “... Caius Mancinus, a man of the highest rank and character and a past consul, who under a decree of the Senate had been delivered up to the Numantines by the pater patratus [of the fetial college]  for concluding an unpopular treaty with their nation, and whose surrender they had refused to accept, whereupon he returned home and unhesitatingly came into the Senate-house: Publius Rutilius, son of Marcus and tribune of the plebs, ordered him to be removed, affirming that he was no citizen, in view of the traditional rule that a man ... delivered up by the pater patratus, had no right of restoration”, (‘De Oratore’, 1: 181).

In his speech against Caius Verres, Cicero (70 BC) observed sarcastically:

  1. “Oh! but you did not command the Mamertines to furnish a ship, because they are one of the confederate cities.  Thank God, we have a man trained by the fetials; a man above all others pious and careful in all that belongs to public religion”, (‘Verrine Orations, 2: 5: 49)

As John Rich (referenced below, 2011, at p. 195, note 39) observed, this implies that the fetials were still responsible for for the religious aspect of treaties at this time.

Cicero (44 BC) :

  1. “In old age, Appius Claudius [Caecus] had the additional disadvantage of being blind; yet it was he who, when the Senate was inclining towards a peace with Pyrrhus and was for making a treaty with him, did not hesitate to say what Ennius has preserved in the following verses:

  2. ‘Whither have swerved the souls, so firm of yore?  Is sense grown senseless? Can feet stand no more?’

  3. And so on in a tone of the most passionate vehemence.  You know the poem, and the speech of Appius himself is extant.  He delivered it 17 years after his second consulship [i.e. in 279 BC, before the famous Pyrrhic victory at Asculum in that year], there having been an interval of ten years between the two consulships, and he having been censor before his previous consulship.  This will show you that he was a very old man at the time of the war with Pyrrhus.  Yet this is the story handed down to us”, (‘On Old Age, 6: 16)


This work by Nonius Marcellus also also contained a quotation from Book III of Varro’s ‘De vita populi Romana’:

  1. “If [any Romans had] outraged foreign legati , those responsible, even if they were nobles, were arrested so that they might be handed over to the [foreign] community.  And 20 fetials who are learned in these matters judged, decided and legislated [as necessary]’”, (from Nonius’ ‘Doctrina’, at p 850 Lindsay edition, translated in the blog of Roger Pearse).

John Rich (referenced below, 2011, at p. 191) observed that Book III of this work by Varro dealt with the Punic War period.


Octavian famously revived it in 31 BC: according to Cassius Dio, after the Senate had:

  1. “... declared war on Cleopatra, [the senators] put on their military cloaks ...  and went to the temple of Bellona, where they performed all the rites preliminary to war in the customary fashion, through [Octavian] as [a member of the collegium fetialium].  These proceedings, which were nominally directed against Cleopatra, were really directed against Mark Antony”, (‘Roman History’, 50; 4: 4).

Flaccus, who would have been about 25 at this time, might well have actually witnessed this very public event.  He apparently recorded it in his lexicon: Paul the Deacon recorded that:

  1. “Bellona is so-named because she is the goddess of bellum (war).  A short column called the columna bellica stands in front of her temple, and it is customary to throw a spear over this column whenever the Romans declare war”, (‘De verborum significatu’, 30 L, lines 14-6, translated by Peter Aicher, referenced below, at p. 206).

Since it seems that Flaccus did not record that the fetials’ spear was kept with their sceptre and the lapis silex, it may have been kept elsewhere, perhaps in the temple of Bellona.


Read more: 
S. M. Goldberg and G. Manuwald (translators), “Ennius: Fragmentary Republican Latin, Volume I: Ennius: Testimonia; Epic Fragments”, (2018) Harvard MA 
E. Salerno, “Rituals of War. The Fetiales and Augustus’ Legitimisation of the Civil Conflict’, in 
D. van Diemen el. al. (Eds.), “Conflicts in Antiquity: Textual and Material Perspectives”, (2018) Amsterdam , at 143-60
D. Macrae, “The Laws of the Rites and of the Priests: Varro and late Republican Roman Sacral Jurisprudence”, Bulletin of the Institute of Classical Studies, 60.2 (2017) 34-48
B. Gladhill, “Rethinking Roman Alliance”, (2016) Cambridge
H. Cornwell, “The Role of the Peace-Makers (Caduceatores) in Roman Attitudes to War and Peace”, in 
G. Lee et al. (Eds), “Ancient Warfare: Introducing Current Research, Volume I”, (2015), Newcastle upon Tyne, at pp. 331-48
W. Shearin, “The Language of Atoms: Performativity and Politics in Lucretius' ‘De Rerum Natura’”, (2015) Oxford 
P. Stadter, “Plutarch and His Roman Readers”, (2014) Oxford
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