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Rights of way in Ovid (Heroides 20.146) and Plautus ('Curculio' 36).

quis tibi permisit nostras praecerpere messes? ad spes alterius quis tibi fecit iter?

(Ovid, Heroides 20.145-6)(1)

Acontius rhetorically addresses the young man to whom Cydippe's parents have betrothed her, whom he imagines as showing excessive familiarity while visiting the girl's sickbed. In line 146, 'spes' may be considered the vulgate reading; the noun can be used concretely, of the object of one's hopes (OLD 4), a person in whom hopes are centred (OLD 5), or sometimes as an endearment (OLD 5c). For application to a girl with suitors, cf. Ovid, Met. 4.795 'multorumque fuit spes invidiosa procorum'.(2) Or one could take 'spes' in Her. 20.146 generally, = id quod spero. But, in any case, 'spes' is somewhat disappointing. After the strong imagery of 145 (cutting crops), we expect something no less definite in the pentameter, and, in particular, a word which will cohere with, and reinforce, the notion of providing access ('quis tibi fecit iter?'). In this respect 'spes' fails to contribute anything. Nor does the manuscript evidence point unambiguously to 'spes'. Some manuscripts have the unmetrical 'spem', while Heinsius found in a Medicean manuscript the reading 'sepem', which was taken up by Burman, and by a number of other editors.(3) To this, however, A. Palmer(4) made an objection which seems not merely pedantic: 'I should rather have expected per sepem; for a man has a right to go up to, as far as, another man's boundary.'

'Sepem' may be on the right lines, but we need a word which clearly denotes the area within the boundary hedges,(5) and this can be provided if, instead of 'sepem', we read 'septum' or 'saeptum'." According to Moya del Bano (Ovidio, Heroidas, p. 175), cod. Matritensis Bibl. Nat. Res. 206 (saec. XV) reads 'septem', very close to what I am suggesting. 'Saeptum' ('septum') is frequently used as a noun, both in singular and plural,(7) by the agricultural writers Varro and Columella. So the pentameter would become

ad saeptum alterius quis tibi fecit iter?

'Who granted you access to another man's enclosure?', with 'saeptum' powerfully reinforcing 'fecit iter'. This image of sexual encroachment in terms of trespassing upon enclosed private land finds a striking parallel in Plautus, Curculio 35-8,(8) where the slave Palinurus says to the young man Phaedromus

nemo ire quemquam publica prohibet via; dum ne per fundum saeptum facias semitam, dum ted apstineas nupta, vidua, virgine, iuventute et pueris liberis, ama quidlubet.

Although in Curculio 36 'saeptum' is used adjectivally, it seems entirely possible that Ovid had these lines of Plautus in mind; Cydippe, as a 'virgo', would of course fall into one of the prohibited categories. The noun 'saeptum' is defined by OLD 1 as 'an enclosed space, especially one for confining animals'. Since the special reference to animals applies in the great majority of cases, this may be thought an objection to 'saeptum' in Her. 20.146: the legal aspects of lines 145 and 146 are intimately connected (as we shall see), and one would like their imagery to cohere. But basically saeptum is just an area enclosed by hedges or fences (saepes); hence OLD 2 ('saepta' of the voting enclosures in the Campus Martius). So Acontius' cornfield could not unreasonably be called a 'saeptum', as could the very similar metaphorical cornfield in A.A. 3.562 'cingenda est altis saepibus ista seges' (women readers are warned to guard against female competition for the young man whom they have just caught).

These passages of Plautus and Ovid both have the flavour of Roman Law. To deal with Curculio first: for the insistence upon everyone's right to travel along the public roads (35), we could compare Digest 43.8.2.45 (vol. IV, p. 576 Mommsen and Krueger [edd.], Alan Watson [ed. trans.], Philadelphia, 1985), 'Praetor ait: "Quo minus illi via publica itinereve publico ire agere liceat, vim fieri veto"' ('I forbid the use of force to prevent anyone walking or driving along a public road'). Crossing private land was a different matter; before the praetor would utter the corresponding words about a private right of way (Digest 43.19.1.1, vol. IV, p. 591), the claimant had to declare that he had used the right of way within the past year, 'nec vi nec clam nec precario'. He might be able to make this declaration if he held the rustic 'servitude' (servitus in the sense OLD 3) of iter (strictly, the right to walk or ride on horseback) or actus (the right to drive animals) through the other person's land. It is clear, however, that 'facias semitam' in Curculio 36 refers to an illegal pathway, created and used surreptitiously.

The legal situation which lies behind Heroides 20.146, though sharing with Curculio 36 the notion of a right of way ('quis tibi fecit iter?'),(9) is more complicated. I suspect that the pentameter is to be taken very closely with the preceding hexameter; the couplet raises two legal issues which were in practice inseparable. On the face of it 'quis tibi permisit nostras praecerpere messes?' (145) is an odd question. Cutting another man's corn was theft - and a particularly damaging kind of theft in an agricultural community. The 'Twelve Tables had prescribed death for an adult who did this secretly by night (Table VIII.9, from Pliny, N.H. 18.12 'frugem ... aratro quaesitam noctu ... secuisse puberi XII tabulis capital erat'). How could anyone (except the landowner himself) give permission ('permisit', 145) to another to cut crops on land belonging to a third party?

Roman Law, however, recognized a situation in which one person owned a farm, but another had the right to gather and enjoy its produce. This was called usufruct, defined by the jurists as 'ius alienis rebus utendi fruendi salva rerum substantia' (Digest 7.1.1, vol. I, p. 216, 'the right to use and enjoy the things of another without impairing their substance').(10) The right to enjoy fruits of the earth from a farm belonging to another was perhaps the most basic kind of usufruct, and often figures in the jurists' discussions. The verb 'praecerpere', however, which Acontius uses to describe the cutting of the corn, is a 'loaded' term, conveying his own, quite different, view of the situation (unjustified enjoyment of the produce in advance of the properly entitled owner).(11) Likewise 'nostras...messes' could be challenged: in a situation of usufruct, who actually owned the crops?(12) The right of usufruct was normally given by legacy (e.g. from a husband, for the support of his widow). But Ovid's word 'permisit' has a legal ring,(13) as we can see from Vocabularium Iurisprudentiae Romanae s.v. permitto,(14) and suggests the action of an official (e.g. a praetor or iudex). Sometimes (e.g. when dividing common property) a magistrate might assign ownership to one person, usufruct to another, as in Digest 7.1.6 (vol. I, p. 216) 'si iudex alii proprietatem adiudicaverit, alii usum fructum'; many passages in the Digest show that official intervention would also be necessary to settle disputes arising from the exercise of usufruct.

We come now to the intimate connexion between Ovid's hexameter and pentameter. There was no profit in being given usufruct of crops from another person's land unless you also had access to that land in order to collect the produce. Thus 'recte Neratius scribit, si medii loci usus fructus legetur, iter quoque sequi ... quatenus est ad fruendum necessarium' (Digest 8.5.2, vol. I, p. 267). In order to illustrate this further, it will suffice to quote the translation of Digest 7.6.1.1-2 (vol. I, p. 241), from the section on Actions for Claiming Usufruct:

If a usufruct is left as a legacy, it is essential that a right of access go with it too; this is so to the extent that if a man leaves the usufruct of a particular tract of land as a legacy on the terms that his heir is not to be compellable to furnish a via, this additional proviso will be held to be inoperative. Similarly, if a usufruct is left as a legacy and an iter is withheld, the withholding of this right is inoperative, as a right of access always goes with a usufruct. However, if there is a legacy of the usufruct of a site to which there is no right of access across land belonging to the inheritance, the usufructuary can undoubtedly bring an action on the will to have the usufruct given to him coupled with a means of access to the site.(15)

So Acontius, in his brash way, is claiming ownership of Cydippe, and denying that his rival is entitled to usufruct with access; if he wished to establish his position at law, he could, in Roman terms, bring an actio negatoria. This playing with legal concepts and terminology is characteristic of Ovid above all other Roman poets.(16) But, as Professor Kenney repeatedly warns us in 'Ovid and the Law',(17) we should not press the details too closely - e.g. 'though the idea behind Cydippe's plea is genuinely legal, the situation to which it is applied and the manner of its application are purely Gilbertian'.(18) The questions in 145-6 'Who gave you permission ... who granted you access?' rather suggest that the answer (in Roman terms) would be, if anyone, a magistrate. But this corresponds to nothing in the Greek situation: if we asked Cydippe's fiance who gave him the right to visit her sickbed and to express his timid endearments (21.197-8), he would reply 'Cydippe's father, who betrothed her to me'.

Finally, it may not be too fanciful to suggest(19) that Ovid would have had practical experience as a magistrate of dealing with disputes over such matters as usufruct and access. He was a member of the Centumviral Court (Tristia 2.93-4) and also acted as a single iudex to settle private cases (ibid. 95-6). Cicero (De Oratore 1.173) gives an ironical list of the issues which came before the centumviri. Although this does not contain rights of way or usufruct, many similar, and no less irksome, matters are included:

... causis centumviralibus, in quibus usucapionum, tutelarum, gentilitatum, agnationum, adluvionum, circumluvionum, nexorum, mancipiorum, parietum, luminum, stillicidiorum, testamentorum ruptorum aut ratorum, ceterarumque rerum innumerabilium iura versentur.(20)

A. S. HOLLIS Keble College, Oxford

1 I follow both the text and the numeration of H. Dorrie (Berlin and New York, 1971).

2 Note that in Her. 20.146 the plural would be used, which is not normal in this sense.

3 Including G. P. Goold in his 1977 revision of Showerman, and F. Moya del Bano, Ovidio, Heroidas (Madrid, 1986), p. 175. 'Sepem' was also favoured by P. A. M. Thompson in his 1989 Oxford D.Phil. thesis (pp. 130-1), from which some textual notes appeared in CQ N.S. 43 (1993), 258-65.

4 In his Oxford, 1898, edition of the Heroides, p. 491.

5 Professor Nisbet wondered whether 'sepem' might in fact do this job, but felt, very reasonably, that the plural would be more appropriate, as in Virgil, Ecl. 8.37 'saepibus in nostris' (where not only the plural, but also 'in', makes the difference). Professor Kenney (who most kindly showed me a draft of his forthcoming commentary on the double letters) is inclined to print 'ad sepem', taking ad to mean 'up to and into'. That makes no problem for phrases such as 'ad urbes', 'ad aures'. But with e.g. 'ad fluvium', would one naturally understand (without further elucidation) that the river was actually crossed? The more so with 'ad sepem': since the noun denotes an obstacle deliberately created to prevent further progress, it seems hard to take ad to imply not merely 'into' but even 'through and out the other side'.

6 Words connected with 'saepio' are often written 'sep-' rather than 'saep-' in manuscripts. Indeed several editors of Columella have been content to print sometimes one form, sometimes the other; see G. G. Betts and W. D. Ashworth, Index to the Uppsala Edition of Columella (Uppsala, 1971), p. 511. The spelling with ae is in Virgil's capital MSS, as Professor Kenney points out.

7 Professor Kenney suggested to me that here in Ovid 'saepta' might be slightly preferable to 'saeptum', adding that he would then be tempted to rewrite a la Heinsius 'saepta per alterius' - this would make the legal point slightly different, 'passage through' (as in Curculio 36) rather than 'access to'.

8 I looked for this passage and this image in Elaine Fantham, Comparative Studies in Republican Latin Imagery (Toronto, 1972), but the entry 'trespass' in her Index IV refers only to the invasion of other literary genres.

9 Although the phrase 'iter facere' (OLD 'iter' 4) need not have legal connotations, in a context like this it will inevitably shade into the technical legal use of 'iter' = right of way (OLD 4c).

10 See further Alan Watson, The Law of Property in the Later Republic (Oxford, 1968), ch. 9 'Ususfructus and Similar Rights'.

11 Cf. Cicero, Verr. 2.4.80 'non praecerpo fructum offici tui, non alienam mihi laudem adpeto'. For this reason 'praecerpere' is nicer than the variant 'decerpere'.

12 It might be held that they belonged to the owner of the land as long as they were growing in the soil, but to the usufructuary as soon as he had cut them (Digest 7.4.13, vol. I, p. 237, discussing the position 'si fructuarius messem fecit et decessit').

13 Though sometimes 'quis permisit ...?' may introduce a rhetorical question without legal resonances (e.g. Cicero, De Oratore 2.366 'quis Antonio permisit ... ut ... partis faceret...?').

14 The verb is commonly applied to the Emperor, a praetor (or other magistrate), the Law (or a particular law), etc.

15 Jurists might still argue about the precise nature of the access granted (Digest 7.6.1.3, vol. I, p. 241, 'Pomponius in his fifth book is undecided whether, when a usufruct has been left as a legacy, the usufructuary is entitled to a right of access [aditus] only, and thus to an iter, or whether he can in fact claim a via too').

16 This point is worth stressing, since some have denied the Ovidian authorship of the Acontius and Cydippe letters.

17 YCS 21 (1969), 243-63, at 252, 256-7, 257-8,259 and 262; the last two references deal with the Acontius and Cydippe letters, which were also the subject of Kenney's earlier article, 'Liebe als juristisches Problem', Philologus 111 (1967), 212-32 (though he does not discuss 20.145-6).

18 YCS 21 (1969), 262, on Her. 21.135-50 (Dorrie's numeration).

19 In the spirit of Kenney, YCS 21 (1969), 243, 248, 256.

20 I am grateful to Professor E. J. Kenney and Professor R. G. M. Nisbet for comments on earlier drafts of this article; also to Dr Paul Thompson (see n. 3 above).
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Author:Hollis, A.S.
Publication:The Classical Quarterly
Date:Jul 1, 1994
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