Fictitious Rituals and Ritual Performance
Texts do not just comment on rituals and ascribe “meaning” to them; the producers of text could also invent rituals. In doing this, they were surely directed by their own ritual competence and culturally received ideas about ritualization and the logic of ritual, but they must also have been prompted by their personal agenda in writing history.  A text may, in such cases, be an element of the cultural environment for ritual action, or even, as I will demonstrate, for ritual invention. Religion, as it turns out, allowed less prominent traditional and juridical acts to be ritualized on a grand scale.
The text in question is a passage in Livy’s Roman History f It concerns the procedure for the Roman (and, Livy imagines, typically Latin) declaration of war on other peoples:
Legatus ubi ad fines eorum uenit unde res repetuntur, capite uelato filo— lanae uelamen est—“audi, Iuppiter” inquit; “audite, fines”—cuiuscumque gentis sunt, nominat—; “audiat fas. ego sum publicus nuntius populi Romani; iuste pieque legatus uenio, uerbisque meis fides sit.” peragit deinde postulata. inde Iouem testem facit: “si ego iniuste impieque illos homines illasque res dedier mihi exposco, tum patriae compotem me nunquam siris esse.” haec, cum fines suprascandit, haec, quicumque ei primus uir obuius fuerit, haec portam ingrediens, haec forum ingressus, paucis uerbis carminis concipiend- ique iuris iurandi mutatis, peragit. si non deduntur quos exposcit diebus tribus et triginta—tot enim sollemnes sunt—peractis bellum ita indicit: “audi, Iuppiter, et tu, Iane Quirine, dique omnes caelestes, uosque terrestres uosque inferni, audite; ego uos testor populum illum”—quicumque est, nominat— “iniustum esse neque ius persoluere; sed de istis rebus in patria maiores natu consulemus, quo pacto ius nostrum adipiscamur.”
When the legate arrives at the frontier of those from whom restitution is demanded, he covers his head with a fillet (the covering is of wool) and says: “Hear thou, Jupiter, hear ye, boundaries of”—naming whatever nation they belong to—“let divine law hear! I am the official herald of the Roman people; I come lawfully and piously commissioned, let there be trust in my words.” Then he sets forth his demands, after which he takes Jupiter to witness: “If I unjustly and impiously demand that these men and these goods be surrendered to me, then never let me be a full citizen of my fatherland.” He recites these words when he crosses the boundary-line, again to the first person he encounters, again when proceeding through the town-gate, and again when he enters the market-place. . . . If his demands are not met, at the end of 33 days—for such is the customary number—he declares war as follows: “Hear thou, Jupiter, and thou, Janus Quirinus, and all ye heavenly gods, and ye terrestrial gods, and ye infernal gods, hear! I call you to witness that this people”—naming whatever people it is—“is unjust and does not render just reparation. But regarding these matters we will consult the elders in our fatherland, how we may acquire our due.”
The subsequent declaration of war (32.12—14) ends with an elaborate ritual:
Fieri solitum ut fetialis hastam ferratam aut praeustam sanguineam ad fines eorum ferret et non minus tribus pueribus praesentibus diceret: “quod populi Priscorum Latinorum hominesque Prisci Latini aduersus popu- lum Romanum Quiritium fecerunt deliquerunt, quod populus Romanus Quiritium bellum cum Priscis Latinis iussit esse senatusque populi Romani Quiritium censuit consensit consciuit ut bellum cum Priscis Latinis fieret, ob eam rem ego populusque Romanus populis Priscorum Latinorum hom- inibusque Priscis Latinis bellum indico facioque.” id ubi dixisset, hastam in fines eorum emittebat. hoc tum modo ab Latinis repetitae res ac bellum indictum, moremque eum posteri acceperunt.
The usual procedure was for the fetialis to carry to the boundary of the other nation a spear of iron or fire-hardened cornel-wood, and in the presence of not fewer than three adult males, to say: “Forasmuch as the tribes of the Ancient Latins and men of the Ancient Latins have committed act and offence against the Roman people, and forasmuch as the Roman people have ordained that war be declared on the Ancient Latins, and the senate of the Roman people has affirmed, agreed, and with their votes approved that there be war with the ancient Latins, I, therefore, and the Roman people, declare and make war on the tribes of the Ancient Latins and the men of the Ancient Latins.” Having said this, he would hurl the spear across their boundary.
Of course, the alleged performance of the eighth century BC is a fiction.
But neither was the ritual described above ever practiced, as I have argued elsewhere. Authorial “knowledge” of prehistory is established in the narrative by the integration of elements that are known from (much later) legal procedures, such as, for example, the necessary numbers of witnesses, and an intense atmosphere of ritualization is created by frequent use of repetition and symmetry.
The resulting “ritual” in Livy is a fictitious one, but it did not remain in the realm of the imaginary. The dynamics of individual appropriation went far beyond literary invention. This fictitious ritual was quoted ritually, that is, it formed the basis for a remarkable historical performance: in 32 BC, Octavian in his capacity as fetial priest and by throwing a spear, declared war against the foreigner Cleopatra and thereby marked the beginning of the decisive phase of the civil war against his Roman rival Mark Antony. Ritual- ization set the tone for this conflict and its representation in the city of Rome, and it cloaked the dreadful fact of civil war in the symbolism of conflict with foreign peoples. The ritual was repeated at least one more time, in AD 178: Marcus Aurelius, in exact imitation of Augustus’s procedure, declared war on the Scythians by throwing a spear at the columna bellica near the temple of Bellona.  The narrow time frame in which we find the earliest testimonies for Fetials throwing a spear—Cincius (difficult to date exactly) and Livy were both late first-century BC authors—and the Augustan ritual evince the entanglement of written text and performance. A textually circulated, fictitious ritual set the interpretive horizon for a ritual that was intended to exonerate the official war strategy of the charge of initiating civil war.
The fiction in its perfection allowed for greater complexity and coherency than a concrete ritual. At the same time, it also radically limited the latter’s horizons of interpretation: Octavian, soon-to-be Augustus, wore a paludamentum (military cloak) when he threw the spear, thus identifying himself in fact as a soldier and situating his performance in an older tradition of military symbolism, which the antiquarian M. Terentius Varro had just recently presented in the treatise Calenus.5 But this “frame” disappeared completely from later interpretations in the period following the Augustan ritual performance.
-  See E. Thomas Lawson 1990; McCauley 2002.
-  See Certeau 1988.
-  Liv. 1.32.6—10 and (below) 12—14. The translation is that of Beard, North, and Price 1998,vol. 2, nr. 1.4a.
-  Here, the text oscillates between a general formula and the description of a (pseudo-)historical event.
-  This is a form of self-cursing that strengthens the justification of the claim.
-  It was considered “fact” in Augustan times that the use of iron was preceded by weaponshardened by fire.
-  This was a basic rule for legitimizing witnesses in Roman legal procedures.
-  Cf. Gell. NA 16.4.1 (Cincius); for the relationship between Livy and Cincius, see Rupke1990, 104-5.
-  Rupke 1990, 104-5.
-  Dio Cass. 50.4.4-5.
-  Dio Cass. 72.33.3. For the column and the fictitious territory of enemies in Rome, see Serv.(auct.) Aen. 9.52. The historicity of the founding event of the time of the war against Pyrrhus asclaimed by Dio has been refuted by Latte (1960, 122, n. 3).
-  The fragment is preserved in Serv. Aen. 9.52; see Wiedemann 1986; Rupke 1987. Furtherevidence for the ritual is given by Jocelyn 1971.