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.On one hand,Plato holds lay persons and professionals to sharply different standardswhen death is not involved, which may point to a view that in his dayprofessionals, such as seers, were held to no further account for magicthan their lay counterparts.On the other and more important hand,Plato clearly allows that binding curses (katadeseis), incantations (epagDgai),and spells (epDidai) can cause damage, which ought to be provable incourt and for which a victorious plaintiff would thereby be entitled torecompense.We observed in chapter 2 that with regard to these types ofnon-pharmacological magic, Plato hesitated to concede that they exertedphysical effects in the world.36 But, paradoxically, here he establishes a courtin which charges for such magic can be heard.My speculation is that thegravity for Plato of suspect professionals was such that, where they couldbe reached through charges of magic, a court needed to exist  even ifthe rest of its time were consumed in the resolution of relatively lessimportant private disputes.Magic in Roman Law and Legal HistoryUnlike the sporadic concern with magic in classical period Greek law, wehave evidence beginning in Republican Rome down to the late imperialperiod of a sustained interest in the regulation of magical activities.Anunderstanding of key statutes in the Roman juridical tradition as theypertain to magic  and especially the Cornelian law on assassins andpoisoners of 81 bce  is important not only for its own sake, but becausesuch statutes give direct witness to how earlier Roman laws wereexpanded over time as the definition itself of what could be consideredmagical expanded.As earlier statutes were interpreted by later jurists, theirwritings gave the appearance that Rome had always condemned magicalpractice.Recent research, however, has drawn that conclusion strongly intoquestion, because already by the second century ce the definition of9781405132381_4_005.qxd 30/10/2007 12:12 Page 142142 Magic in Greek and Roman Lawmagia (Greek mageia) had become merged with that of maleficium,which originally meant  an evil deed/crime , with no connotation ofmagic.Thus by late antiquity an explicitly criminal coloring was given toall activities that could be squeezed into a definition of  magic.Yetearlier legislation was surprisingly narrow in its enumeration of whatqualified as magic  if it even concerned magic at all.This legislationwas so narrow, in fact, that one can almost see the manipulation ofjudicial precedent at work so as to create the appearance of a seamlesslegal tradition.The Twelve TablesThe earliest Roman legislation concerning magic is found in the TwelveTables, which were traditionally composed between 451 and 450 bce togive a legislative basis to customary law.Much controversy surrounds theorder of the Tables and the exact meaning of their provisions, largely becausethe Tables are known to us through writers of the late Republic, startingin the first century bce.It is worth stressing that although we depend onlater writers for our knowledge of the Tables, they have not transmittedthe statutes in the tablets that pertain to magic in an unambiguous form.As a result, in an important recent assessment of the tradition of the TwelveTables, James Rives has shown that these writers often imputed a later andbroader conception of magic to the earlier statutes.37 This has the effectof making it seem as if Roman legal commentators were always talking aboutthe same thing with regard to magic, when in fact the Tables appear tohave been extremely narrow in their outlook.Two examples of how later viewpoints were retrojected onto the TwelveTables will serve as illustration.In the first, we learn from Pliny the Elder(ca.23 79 ce), who is our most important source for the two relevantmagical provisions in the Twelve Tables, that one law restricted  whoeverhas incanted an evil charm (malum carmen).38 This provision has beentaken almost universally by scholars to refer to magic in the form of anincantation or spell, as it was by Pliny.However, it has recently been demon-strated that a malum carmen can also refer to slander or even to cursingin the sense of using abusive language.39 While this interpretation does notrule out the magical one, the evidence as we have it does not permit usto say without a doubt that the law in the Twelve Tables refers exclusivelyto a magical charm, even if later authors such as Pliny thought it did.The second and more detailed example comes to us in a remark madeby the late fourth-century ce grammarian Servius, in his commentary onVergil s eighth Eclogue.Vergil modeled this poem on Theocritus second9781405132381_4_005.qxd 30/10/2007 12:12 Page 143Magic in Greek and Roman Law 143Idyll, and it concerns a lovelorn woman who uses magical means to drawher lover, Daphnis, back from town.The speaker says that she uses herbs(herbae) and drugs (venena), culled from Pontus in Asia Minor, which shehas witnessed turn men into wolves, call spirits from their graves, and  drawsown corn to the field of another (Eclogue 8.99).In his commentary onthis line, Servius remarks that drawing sown corn to the field of anothertakes place through  certain magical arts (magicae artes); whence in theTwelve Tables [it says:] nor lure away (pellicere) another s crops.Serviuswas not the only author who made this connection: Augustine and Ciceroalso linked this provision of the Twelve Tables to the same line in Vergil seighth Eclogue, which gives evidence that this view might have beencommon.40 The problem, however, for us as outside observers is that bythe fourth and fifth centuries ce, the term  magical arts had very specific,negative legal ramifications that were not in place in the mid-fifthcentury bce, while the Twelve Tables themselves nowhere mention herbs(herbae) and drugs (venena) as the means used to accomplish the trans-fer of another person s crops.41According to Pliny, the second law from the Tables that relates toincantations is  whoever has enchanted out (excantare) the harvest.42This law is the closest to Servius reference above to luring away sown corn,but it is important to note that the terms used by Servius and the Tablesas Pliny reports them are not identical.The verb used in Pliny s version,excantare, is not common but does seem to denote drawing or attractingone thing from one place to another by invisible means.43 The uncom-pounded verb cantare certainly denotes recitation of a poem, performanceof a song, if not of a magical incantation.So it appears that a harvest couldbe magically  which is to say invisibly and imperceptibly  transferredfrom one place to another by means of a charm.Beyond the charm, themeans by which such a transfer was accomplished are less than clear.We have only one recorded case that was prosecuted under this pro-vision of the Twelve Tables, and it involved a Greek freedman namedC.Furius Chresimus.44 Toward the beginning of the second century bce,Chresimus was summoned to court by his neighbors, who were enviousthat he had reaped from his small fields a harvest more abundant thantheirs, and they accused him of having attracted their harvests through magic (veneficium).Fearing that the vote might go against him, on theday of trial Chresimus brought his workers and farm equipment to the forumand proclaimed to all of his tribe members present that these were his magic (veneficium), nor could he show or bring to the forum his late nightlabors, his vigils, and his sweat.45 The reaction was immediate and posi-tive, and Chresimus was unanimously acquitted [ Pobierz całość w formacie PDF ]