Medicine and the Law Under the Roman

Empire Claire Bubb

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OXFORD STUDIES IN ROMAN SOCIETY AND LAW

General Editors
paul du plessis thomas a. j. mcginn
 OXFORD STUDIES IN ROMAN SOCIETY AND LAW
The aim of this monograph series is to create an interdisciplinary
forum devoted to the interaction between legal history and ancient
history, in the context of the study of Roman law. Focusing on the
relationship of law to society, the volumes will cover the most
significant periods of Roman law (up to the death of Justinian in
565) so as to provide a balanced view of growth, decline, and
resurgence. Most importantly, the series will provoke general debate
over the extent to which legal rules should be examined in light of
the society which produced them in order to understand their
purpose and efficacy.
Medicine and the Law under the
Roman Empire

Edited by
C LA I R E B U B B
and
MICHAEL PEACHIN
 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom
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© Claire Bubb and Michael Peachin 2023
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 Contents

Acknowledgments
List of Contributors
Abbreviations and Cited Editions of the Galenic Corpus Used in the
Volume

I. INTRODUC TION

Setting Medicine and Law Apart, Together

Claire Bubb and Michael Peachin

II. SEL L IN G TH E SUBJECT-MATTER : WHEN SCIEN C E,

COMP ETITION , AND ENTERTAINMENT COMMIN GL E

Introduction: Competition in the Roman Empire—Structure,

Characteristics, and New Arenas
Matthew Roller
Law as Competitive Performance: Performative Aspects of the Legal
Process in Roman Imperial Courts
Anna Dolganov
Medicine as Competitive Performance: Eristic and Erudition—Galen
on Erasistratus and the Arteries
Luis Alejandro Salas
Response: Does the Performance Undercut the Substance?
Kendra Eshleman
 III. OV ER-SH OOTING THE SUB JEC T-MATTER: WH EN
P RAG MATISM AND EXP ERTISE CO L L IDE

Introduction: What Makes the Expert, and His Expertise?

Alice König and Michael Peachin
Juristic Literature and the Law: Competition and Cooperation
Bruce W. Frier
Medical Literature and Medicine: Going beyond the Practical
Claire Bubb
Response: Expert or Intellectual? Other Views of Legal and Medical
Expertise
James Uden

IV. PO SITION IN G THE SUBJECT- MATTER : WHEN

RH ETO RIC AND SC IENCE CON VER GE

Introduction: The Ubiquity of Rhetoric

Ulrike Babusiaux and Claire Bubb
Rhetoric in Legal Writing: The Ethos and Pathos of Roman Jurists
Ulrike Babusiaux
Rhetoric in Medical Writing: Artistic Prose?
Caroline Petit
Response: Experts of Rhetoric and the Rhetoric of Expertise
Claire Bubb and Joseph Howley

V. EP ILOGUE

How Does Philosophy Compare?

Michael Trapp

Index of Subjects
Index Locorum
 Acknowledgments

This volume stems from a conference held at New York University on

October 4–5, 2019. We would like to thank the NYU Classics
Department and the Institute for the Study of the Ancient World for
their support of that conference, especially Marc LeBlanc and Nancy
Smith-Amer for their skillful logistical work and Roger Bagnall for his
early input. We are extremely grateful to everyone who participated
for an enriching two days of presentations and discussion, all of
which helped shape the volume’s final form. We are obliged also to
all of our wonderful contributors and owe a particular debt to Ulrike
Babusiaux, Alice König, and Joseph Howley for working flexibly with
us to navigate some of the curve balls the pandemic threw at the
completion of this volume. We would similarly like to thank our
editor, Charlotte Loveridge, our interim editor, Karen Raith, our
project editor, Alexander Hardie-Forsyth, our project manager,
Thomas Deva, and the series editors, Tom McGinn and Paul Du
Plessis, for their patience and continued faith in this project despite
pandemic delays, and for all of their and their teams’ hard work
along the way. A penultimate expression of gratitude comes from
Peachin, who wishes to acknowledge the Institute for Advanced
Study in Princeton; membership there during the 2020–2021
academic year greatly facilitated his work on this project. Finally, we
want to thank Brill Publishers for permitting the article by Luis Salas,
which appeared in an earlier form as Chapter 5 (“It is Difficult Not to
Write Anatomy: Galen on Erasistratus and the Arteries”) in his book,
Cutting Words—Polemical Dimensions of Galen’s Anatomical
Experiments (Leiden, New York, and Cologne: Brill, 2021), to be
revisited in this volume.
 List of Contributors

Ulrike Babusiaux, Universität Zürich

Claire Bubb, New York University

Anna Dolganov, Austrian Academy of Sciences

Kendra Eshleman, Boston College
Bruce W. Frier, University of Michigan

Joseph Howley, Columbia University

Alice König, University of St. Andrews
Michael Peachin, New York University

Caroline Petit, University of Warwick and Humboldt-Universität zu Berlin

Matthew Roller, Johns Hopkins University
Luis Alejandro Salas, Washington University in St. Louis

Michael Trapp, King’s College London

James Uden, Boston University
 Abbreviations and Cited Editions of the
Galenic Corpus Used in the Volume

We have collected here a complete list of Galenic works cited across

this volume, including their abbreviation, their full title in English and
Latin, and the bibliographical details and abbreviations of any
editions referred to. This is neither a complete list of the Galenic
corpus, nor a complete list of editions of the works mentioned, but it
will be sufficient to allow a reader unfamiliar with Galen to navigate
the citations in this volume. In addition to any editions listed here,
we have always, where available, cited the pagination from the Kühn
edition (K), which is standard in most later editions and translations:
C. G. Kühn, ed., Claudii Galeni Opera Omnia (Leipzig: C. Cnobloch,
1821–1833) (re-issued, Cambridge: Cambridge University Press,
2011). The abbreviations and titles here largely follow those in the
appendices to the Cambridge Galen Translation series, which also
offer a comprehensive list of editions and translations. For ancient
authors other than Galen, we follow the abbreviations in S.
Hornblower, A. Spawforth, and E. Eidinow, eds., Oxford Classical
Dictionary (4th ed.) (Oxford: Oxford University Press, 2012).

*indicates a work that is generally considered to be pseudo-

Galenic.

AA On Anatomical Procedures (De anatomicis administrationibus)

G = I. Garofalo, Galenus: Anatomicarum Administrationum
Libri qui Supersunt Novem. Earundem Interpretation Arabica
Hunaino Isaaci Filio Ascripta (Naples: Brill, 1986–2000).
Aff.Pec.Dig. On the Affections and Errors of the Soul (De propriorum animi
cuiuslibet affectuum et peccatorum dignotione et curatione)
Ant. Antidotes (De antidotis)
Art.Sang. Whether Blood Is Naturally Contained in the Arteries (An in
arteriis natura sanguis contineatur)
F-W = D. J. Furley and J. S. Wilkie, Galen on Respiration and
the Arteries (Princeton, NJ: Princeton University Press, 1984).
Comp.Med.Gen. The Composition of Drugs According to Kind (De compositione
medicamentorum per genera)
Cons. Customary Practices (De consuetudinibus)
CMG Suppl. III = I. M. Schmutte, ed., and F. Pfaff, trans.,
Galeni De consuetudinibus. Corpus Medicorum Graecorum
Supplementum III (Leipzig: Teubner, 1941).
CP Antecedent Causes (De causis procatarcticis)
H = R. J. Hankinson, Galen on Antecedent Causes
(Cambridge: Cambridge University Press, 1998).
Cris. On Crises (De crisibus)
Alex. = B. Alexanderson, Peri Kriseon Galenos. Studia Graeca
et Latina Gothoburgensia, 23 (Stockholm: Almquist & Wiksell,
1967).
Di.Dec. Critical Days (De diebus decretoriis)
Diff.Puls. The Distinct Types of Pulse (De differentiis pulsuum)
Dig.Puls. The Discernment of the Pulse (De diagnoscendis pulsibus)
Hipp.Epid.II Commentary on Hippocrates’ Epidemics II (In Hippocratis
Epidemiarum librum II)
CMG Suppl.Or. V 2 = U. Vagelpohl and S. Swain, eds. and
trans., Galeni In Hippocratis Epidemiarum Librum II
Commentariorum I–VI. Corpus Medicorum Graecorum,
Supplementum Orientale V 2 (Berlin: De Gruyter, 2016).
Hipp.Epid.III Commentary on Hippocrates’ Epidemics III (In Hippocratis
Epidemiarum librum III)
CMG V 10,2,1 = E. Wenkebach, ed., Galeni In Hippocratis
Epidemiarum Libr. III Comm. III. Corpus Medicorum
Graecorum V 10,2,1 (Leipzig: Teubner, 1936).
Hipp.Epid.VI Commentary on Hippocrates’ Epidemics VI (In Hippocratis
Epidemiarum librum VI)
CMG V 10,2,2 = E. Wenkebach, ed., and F. Pfaff, trans., Galeni
In Hippocratis Epidemiarum Libr. VI Comm. I–VI et Comm. VI–
VIII. Corpus Medicorum Graecorum V 10,2,2 (Berlin: Teubner,
1956).
Hipp.Prog. Commentary on Hippocrates’ Prognostic (In Hippocratis
Prognosticum)
 CMG V 9,2 = H. Diels, J. Mewaldt, and J. Heeg, eds., Galeni In
Hippocratis Prorrheticum I commentaria III, De comate
secundum Hippocratem, In Hippocratis Prognosticum
commentaria III (Leipzig and Berlin: Teubner, 1915).
Hipp.Prorrh. Commentary on Hippocrates’ Prorrhetics (In Hippocratis De
praedictionibus)
CMG V 9,2 = Diels, Mewaldt, and Heeg, Galeni (1915) (see
above, under Hipp.Prog.).
HNH Commentary on Hippocrates’ Nature of Man (In Hippocratis
De natura hominis)
CMG V 9,1 = J. Mewaldt, G. Helmreich, and J. Westenberger,
eds., Galeni In Hippocratis De natura hominis Comm. III, In
Hippocratis De vitcu acutorum Comm. IV, De diaeta
Hippocratis in Morbis Acutis. Corpus Medicorum Graecorum V
9,1 (Leipzig and Berlin: Teubner, 1914).
HVA Commentary on Hippocrates’ Regimen in Acute Diseases (In
Hippocratis De acutorum morborum vitcu)
CMG V 9,1 = Mewaldt et al., Galeni (1914) (see above, under
HNH).
Indol. Avoiding Distress (De indolentia)
BJP = V. Boudon-Millot, J. Jouanna, and A. Pietrobelli, Galien.
Tome IV. Ne pas se chagriner (Paris: Belles Lettres, 2010).
Inst.Log. Introduction to Logic (Institutio Logica)
Kalbfleisch = K. Kalbfleisch, Galeni institutio logica (Leipzig:
Teubner, 1896).
Lib.Prop. On My Own Books (De libris propriis)
B-M = V. Boudon-Millot, Galien. Tome I. Introduction
Générale, Sur l’Ordre de ses Propres Livres, Sur ses Propres
Livres, Que l’Excellent Médecin est Aussi Philosophe (Paris:
Belles Lettres, 2007).
Loc.Aff. On Affected Places (De locis affectis)
MM On the Method of Healing (De methodo medendi)
Nat.Fac. On Natural Faculties (De naturalibus facultatibus)
SM = J. Marquardt, I. von Müller, and G. Helmreich, Claudii
Galeni Pergameni Scripta Minora (Leipzig: Teubner, 1884–
1893).
Opt.Med. That the Best Doctor Is Also a Philosopher (Quod optimus
medicus sit quoque philosophus)
B-M = Boudon-Millot, Galien (2007) (see above, under
 Lib.Prop.).SM = Marquardt et al., Scripta Minora (1884–1893)
(see above, under Nat.Fac.).
Opt.Med.Cogn. On Recognizing the Best Physician (De optimo medico
cognoscendo)
CMG Suppl.Or. IV = A. Z. Iskandar, Galeni De optimo medico
cognoscendo. Corpus Medicorum Graecorum, Supplementum
Orientale IV (Berlin: Akademie Verlag, 1988).
Ord.Lib.Prop. On the Order of My Own Books (De ordine librorum
propriorum)
B-M = Boudon-Millot, Galien (2007) (see above, under
Lib.Prop.).
PHP On the Opinions of Hippocrates and Plato (De placitis
Hippocratis et Platonis)
CMG V 4,1,2 = P. De Lacy, Galeni De placitis Hippocratis et
Platonis. Corpus Medicorum Graecorum V 4,1,2 (Berlin:
Akademie Verlag, 2005).
Praen. On Prognosis (De praenotione ad Epigenem)
CMG V 8,1 = V. Nutton, Galeni De praecognitione. Corpus
Medicorum Graecorum V 8,1 (Berlin: Akademie Verlag, 1979).
Protr. Exhortation to Study the Arts (Protrepticus)
B = V. Boudon, Galien. Tome II. Exhortation à l’Étude de la
Médecine. Art Médical (Paris: Belles Lettres, 2002).
Sem. On Semen (De semine)
CMG V 3,1 = P. De Lacy, Galeni De semine. Corpus Medicorum
Graecorum V 3,1 (Berlin: Akademie Verlag, 1992).
SMT The Capacities [and Mixtures] of Simple Drugs (De simplicium
medicamentorum [temperamentis ac] facultatibus)
*Ther.Pamph. Theriac, to Pamphilianus (De theriaca ad Pamphilianum)
B-M = V. Boudon-Millot, Galien. Tome X. Thériaque à
Pamphilianos (Paris: Belles Lettres, 2021).
*Ther.Pis. Theriac, to Piso (De theriaca ad Pisonem)
B-M = V. Boudon-Millot, Galien. Tome VI. Thériaque à Pison
(Paris: Belles Lettres, 2016).
Thras. Thrasybulus (Thrasybulus sive Utrum medicinae sit an
gymnasticae hygiene)
Ut.Diss. The Anatomy of the Uterus (De uteri dissectione)
CMG V 2,1 = D. Nickel, Galeni De uteri dissectione. Corpus
Medicorum Graecorum V 2,1 (Berlin: Akademie Verlag, 1971).
Ut.Resp. On the Function of Breathing (De utilitate respirationis)
F-W = Furley and Wilkie, Galen on Respiration (1984) (see
 above under Art.Sang.).
Ven.Sect.Er. On Venesection Against Erasistratus (De venae sectione
adversus Erasistratum)
Ven.Sect.Er.Rom. On Venesection Against the Erasistrateans at Rome (De venae
sectione adversus Erasistrateos Romae degentes)
 PART I
INTRODUCTION
 Setting Medicine and Law Apart,
Together
Claire Bubb and Michael Peachin

This volume draws the fields of medicine and law, as these existed
during the early imperial period of Rome, into conversation with one
another. Now, the mere fact that a self-conscious juxtaposition of
these two fields in their ancient manifestations has never been
seriously attempted might alone warrant the undertaking. That said,
it can indeed be argued that there are truly compelling reasons for
launching precisely such a project.1
We begin with the fact that each of our enterprises was crowned
by a resplendent intellectual effort, which manifested itself in a
voluminous literature. Here lay the terrain of two rarified and
exquisitely trained elites. Just as vital, however, were the pragmatic
real-world incarnations of these disciplines, where society’s big and
little fish alike might thrive. One goal in the pages that follow will
thus be to imagine the cerebral and the more workaday facets of
each discipline as integral parts of an original whole—even if the
concentration will indeed be on the elite practitioners of these
fields.2 This logic of amalgamation will take a further step. The
argument will be that both of these arts, in all of their
manifestations, were thoroughly bound up in a broad matrix of
social, political, cultural, and intellectual concerns, which will have
served substantially to shape these occupations themselves, and to
do so through and through. Then, finally, we will also want to
suggest that a particular set of defining characteristics, which
becomes discernible with respect to both medicine and law, serves
on the one hand to join these two occupations as a fairly distinct
pair, while it simultaneously works to isolate them as a duo, in
certain regards, from most other brands of specialized expertise.
Thus, by juxtaposing law and medicine in all of these ways, we hope
to encourage the kind of broad and more nuanced vision of these
two areas themselves—as well as of the wider nexus of specialized
expertise under the Roman Empire altogether—which has been
gaining significant traction in recent times.3
Ultimately, however, one all-encompassing concern lurks here.
The issue can be suggested via two questions. First, in the broadest
terms possible, and especially if we move beyond the purely
utilitarian, what kinds—and we mean expressly any and every kind—
of work were the fields of law and medicine expected to perform in
that now faraway world of ancient Rome? Second, how might the
sundry wants of the ancient community with regard to these fields
have served to shape the very nature of medical and legal expertise
in those times—and indeed, of medicine and law altogether? What,
in other words, and in the most all-encompassing sense possible,
was the place of a science like medicine or law in the thoughts,
desires, and perceived needs of the ancient Roman community, and
how did all of that, in turn, potentially influence the substance of
these fields of endeavor? We will not be able to address these issues
comprehensively, or even too terribly closely; however, we do very
much hope that the present volume will encourage further thought
in these directions.
So as to set the stage for our discussion, we will now present two
figures who typically would not be expected to cross paths—or, in
any case, they would not be expected to do so in the arena of
modern scholarship. Each of these individuals reaped towering
acclaim in the second century ce because of his engagement in an
expert pursuit. One fashioned an identity for himself as doctor, the
other as jurist.
The first man, though a true VIP in his own time and place, will
hardly be a staple in the scholarly diets of our readers. We speak of
Herakleitos, son of Herakleitos, grandson of Oreios, a most exalted
gentleman at Lycian Rhodiapolis, who plays the starring role in a
group of inscribed texts from that burgh.4 Here was an individual of
extraordinary accomplishment in two facets of the medical arts. We
read that, at Athens, the Epicurean philosophers and the guild of
theater artists had celebrated Herakleitos during games, and that in
the estimation of these groups, he was, “the number one doctor, and
author, and poet of the medicinal and philosophical arts, of all time,
whom they recorded in writing as being the Homer of doctorly
poems, and they sang the praise of his books and poems, and
placed these in the imperial libraries.”5 Another of the stones from
this dossier offers an epigram composed by his townsmen, wherein
Herakleitos is celebrated as “doctor and hegemon of song.”6 We
further discover that the city council, the people’s assembly, and the
board of elders at Rhodiapolis honored Herakleitos by setting up a
gilt portrait of him, which was paired with a statue of the deity
Paideia. Even more, he was allegedly celebrated in similar fashion at
Alexandria, Rhodes, and Athens—three of the most important
intellectual hubs of the time.7 In short, Herakleitos was a genius at
turning medicine into an art form. However, and just as the
Epicureans and the thymelic synod at Athens had remarked, this
man was not merely a superlative litterateur; he was also, at least in
their estimation, the best practicing physician ever. Nor was he
simply a wonderfully talented doctor; for in his medical practice,
Herakleitos had apparently refused ever to charge a patient for the
services he rendered.8 That is to say, this doctor was also a medical
philanthropist, another of the qualities trumpeted by his townsmen
at Rhodiapolis.9 Indeed, it was Herakleitos who, above and beyond
his gratis doctoring, had financed the town’s temple of the healing
gods Asklepios and Hygieia, where he served in a life-long tenure as
chief priest. That shrine was generously adorned with statues of its
two deities, again at Herakleitos’ expense.10 And on top, even, of all
this, the man donated copies of the complete corpus of his writings,
some sixty books overall, to this temple and to the Rhodiapolitan
town library, “gifts thus being given to wise doctors”; the corpus of
writing was likewise donated to the libraries in Alexandria, Rhodes,
and Athens.11 And lastly, Herakleitos financed medical games at
Rhodiapolis in honor of Asklepios, to the tune of nearly 15,000
denarii.12 The Homer of medical poetry, hegemon of song,
philosopher, renowned intellectual at Athens, Rhodes, and
Alexandria, whose many books were on offer at the libraries in those
cities, and in two libraries at Rhodiapolis, the top practicing physician
of all time, who did not stoop to charging for his doctoring, teacher
of doctors via his writings on medicine, donor of the temple of
Asklepios and Hygeia at Rhodiapolis, life-long priest of these two
deities, and patron of medical games honoring the doctor god—such
a man was our Herakleitos.
Now, despite any hyperbole or generic formulae that might lurk in
the texts commemorating him, Herakleitos was no doubt a rather
impressive character.13 In the present context, though, it is the
distinct concatenation of remarkable traits and efforts that should
draw our attention. Herakleitos was, of course, a member of the
gentry at Rhodiapolis; but additionally, in his primary (it seems)
chosen field of endeavor, medicine, he was at once a prodigiously
productive author and a peerless practitioner.14 Clearly, this man had
ascended to the pinnacle of the socio-political and intellectual world
in his own place of origin, as well as throughout the eastern portions
of the Roman Empire. But just as clearly, what gained him much of
the socio-political capital he surely cherished, and which is so
elaborately dished up by the stones proudly sprinkled around
Rhodiapolis, were his avowedly incomparable (and, n.b., thoroughly
intertwined) talents as a practicing doctor and as the author of prose
and poetry on medicine and philosophy.
Not long at all after Herakleitos will have reached his acme, an
even greater career, which likewise banked decidedly on skill and
fame as a specialized expert, would accrue to a native of
Hadrumetum in Africa proconsularis. L. Octavius Cornelius P. Salvius
Iulianus Aemilianus, or more simply Julian, was making a name for
himself as both a top-tier governmental official and as the empire’s
foremost jurisprudent. The list of offices he attained is truly
impressive: quaestor to the emperor Hadrian, tribune of the plebs,
praetor, prefect of the treasury, consul, pontifex, curator of the
public buildings at Rome, governor of lower Germany, governor of
nearer Spain, proconsul of Africa, and close associate of the
emperors Hadrian, Antoninus Pius, and Lucius Verus. Here was one
of the most preeminent statesmen of the day.15 But then, at Pupput,
not far at all from his native Hadrumetum, Julian was
commemorated by the town fathers, who ordered that a statue of
him be set up in the center of their city. The inscription on the stone
base supporting that effigy pointedly accentuates a particular
development in this man’s life: Julian’s salary, when he served the
emperor Hadrian as quaestor, was—exceptionally—doubled “on
account of his utterly outstanding learning.”16 What the town fathers
at Pupput allude to is the fact that Julian was recognized as arguably
the premier legal mind of his day; and, as it would later turn out, he
was to enjoy a reputation as one of the greatest Roman jurisconsults
ever.17 In short, we must recognize, as did Hadrian, and as did the
folks at Pupput, that Julian’s stellar accomplishments in the legal
realm were decidedly part and parcel of his socio-political standing
altogether—and, conversely, that his overall stature will have
contributed variously to his preeminence as a jurist.18 The whole
edifice of this man’s life, in other words, leaned heavily upon a
foundation cemented by intellectual achievement, which itself was
manifested not only by Julian’s pragmatic legal interventions (e.g., as
member of the imperial consilium, or surely in his role as provincial
governor), but especially via a remarkable corpus of juristic
writing.19 This African gentleman, and the lawyerly brilliance that
helped to establish his ascendancy, in toto, emphatically recalls the
situation of our Rhodiapolitan doctor.
These two life stories confront us with quite a lot to unpack. Let
us perhaps begin at the top, so to speak—that is, with the writing to
which men like Herakleitos and Julian so ardently devoted
themselves. Literary production of this kind is, of course, what now
can most readily be grasped of these two sciences as they operated
in antiquity. And indeed, our individual worries about the nature of
these literatures (medical on Bubb’s part, legal for Peachin)
generated several early conversations, which led to a conference at
New York University in the early fall of 2019 and now, ultimately, to
the pages offered here. In any case, we begin with literature.
Now, it is crucial to realize that both the writings of the doctors
and those of the lawyers have typically been perceived, at least by
modern scholars, as belonging to the body of so-called technical
literature—on the face of it, a widespread production of unaffected
“how-to” manuals.20 However, this kind of writing, as a class, has for
some years been undergoing a significant reassessment. The most
fundamental conclusion of this discussion is that ancient technical
prose literature, as a whole, was both produced and consumed qua
literature—i.e., that this kind of writing was, in some way, or ways,
aesthetic, or artistic, or intellectually oriented, and not mulishly
utilitarian.21 Didactic verse is likewise being envisioned through
precisely such a recalibrated lens.22 We are thus confronted with a
challenge: if our two bodies of writing do indeed belong to this
particular sector of ancient literary production, how do they fit in
generally with the other technical books? That is to say, how might
our perception of medical and legal writing change, if we begin to
think of this oeuvre as “literature”; and then, what exactly might the
consequences be if we do that?
First, let us consider the justification for classing (say) Galen or
Ulpian with other authors of technical “handbooks.” As it happens,
we have a provocative indication of one nuclear intellectual family to
which our fields, and hence their literatures, were imagined as
belonging. A. Cornelius Celsus’ Artes looks to have been an attempt
to sketch the forms of, let us say, technical or pragmatic knowledge
or expertise most essentially required by any gentleman worth his
salt. Such a fellow, at least to Celsus’ mind, ought to have been
conversant in these areas: medicine, agriculture, rhetoric, military
science, philosophy, and, perhaps, law.23 So, were we to cast our lot
with Celsus, then the disciplines of (and thus the literatures about)
agriculture, rhetoric, military science, and philosophy will have been
the siblings of our two.24 On this view of things, other forms of
literature—history, for example—become something more like
cousins, at some degree of remove. Be that all as it may, insofar as
we really do consider the corpora on medicine and law as properly
classed among some group of (roughly speaking) technical or
pragmatic writings (though in fact, there is not much point in any
attempt to establish an absolutely fixed group), then we must
equally presume that much of what is now being said about ancient
technical literature, in toto, can and should likewise be said, to one
extent or another, about legal or medical literature. What, then, is
the situation regarding our two corpora of writing?
Ancient medical literature was traditionally conceived of as, in the
first place, a body of lore which could instruct the practicing doctor
when he was faced with the task of healing patients—as such, very
much a technical genre of writing. Indeed, until the middle of the
nineteenth century, ancient medical texts were largely in the hands
of the medical community, who continued to look to those aged
books for practical wisdom. The current standard edition of Galen’s
writing, for example—by far the largest trove of medical writing to
survive from antiquity—dates to the 1820s and was edited by a
doctor for the benefit of medical students.25 When it did fall to the
hands of Classicists, beginning in the early twentieth century, ancient
medicine remained a highly specialized field, linked to the rest of
Classical literature mainly through its ties to philosophy. All in all,
medical literature was both envisioned and treated as a phenomenon
isolated from the rest of the Classics, and indeed as somehow
distinct even from its brethren technical treatises.26 As the last
millennium waned, however, scholarship on medical literature was
rather on the forefront of the growing awareness that much ancient
technical literature was indeed both produced and consumed in what
could be labeled a more aesthetic sense, viz., as a form of writing
that we could feel comfortable calling literature.27 To argue the
subject at length here, then, would be largely to knock on an open
door.
In the realm of ancient legal writing the situation is arguably
more complex.28 To begin with, we must first and foremost never
lose sight of two absolutely crucial facts. First, the lion’s share of
extant writing about law has been transmitted to us via the
monstrous congeries that is Justinian’s Digest. In other words, we
simply do not possess anything like proper texts of original books—
we have no lawyerly equivalent to the oeuvre of Galen.29 Rather, we
must grapple with a kind of Monte Testaccio, which one can
scavenge for bits and pieces, so as then to puzzle together the
vague lineaments of the originals.30 Thus, discussing these books as
written artifacts is a precarious undertaking. Second, and equally
important, is the fact that the remnants of those originals have been
preserved primarily in the form of a codification (Justinian’s Digest),
whose plainly stated purpose was precisely to serve as the font of
substantive law for the community, and whose influence on all
subsequent legal thinking has been enormous. This has often led to
a kind of reflexive and tacit, though also sweeping, conflation of an
original body of writing which was, to a notable extent, about law,
with what we would think of as the binding statutory law itself. Now,
while this view of things is by no means entirely wrong, it is also not
entirely accurate.31 In fine, then, while the substantive law and the
juristic literature of the high imperial period are easily perceived as
effectively one and the same, it is important to recognize that,
ultimately, and most accurately, when one reads the Digest, one is
contemplating the now sparse disiecta membra of an originally vast
and privately produced literature about law—yet which could, given
the right circumstances, serve precisely as the substantive law. With
all of this in mind, let us now contemplate what presently can, with
any confidence, be said about Roman legal literature.
The departure point for any analysis must be that, indeed,
readings of the extant corpus of Roman legal writing by modern
scholars have long been preponderantly utilitarian. That is to say,
one investigates this stuff so as to discover what the substance of
the law on this, that, or the other matter was, all the while operating
with a latent assumption that the regulation of the matters in
question is what these texts were first and foremost created for.
Again, there is nothing at all necessarily wrong with such an
approach. For when all is said and done, the written oeuvre of the
jurists could very well function as a vast bundle of proffered rules for
the conduct of affairs; and, to be sure, the jurists themselves were
hardly divorced from, or blind to, the realities of their world—nor,
conversely, did the denizens of that real world disregard the work of
the jurists.32 That all said, some scholars have indeed drawn
attention to the cracks in what can seem to be an unbroken legalistic
façade. A splendid example of this is to be found in an article by
Bruce Frier. In this piece, Frier tackles an instance of some Roman
jurisprudents seemingly attempting to connect their casuistry, which
is often terrifically self-involved, to the real world—i.e., to fit high-
minded legal theory and quotidian legal practice together. This
brings Frier to consider the more artistic side of the literature about
law, and thus to ask what this brand of writing might have been for
—i.e., what work, altogether, the jurists’ literary oeuvre was meant
to perform. So as not to miss the nuance of his argument, it is worth
quoting him at some length (we have added emphasis):33

It is not difficult to locate areas in which the Roman jurists apparently

elaborate law as an “art form”.…The discussions in these texts frequently do
smell of the midnight lamp.…At issue here is the “inner” nature of juristic
casuistry, above all its degree of flexibility in reaching out to embrace
analytical alternatives in order to promote the overall social adequacy of
Roman law. The difficult task is to obtain a model that properly balances the
internal dynamics of Roman jurisprudence (law as an “art form”) against the
external demands placed upon it (law as a social subsystem).…[T]o what
extent can the law that the jurists created, considered as an entirity or on a
rule-by-rule basis, be regarded as actually socially adequate for its time and
place?…Or to put the question much more broadly: “What good did Roman
law do the Romans?” On this broader level, the “historicization” of Roman
law remains still almost entirely a matter of guesswork.

In short, and crucially for the present context, Frier lucidly points out
that, to some degree, the original generation of writing about
Roman law was not invariably a purely practical, pragmatic, or
utilitarian affair. This stuff was not universally produced with only
one thing in mind, namely, to regulate events on a daily basis in
Roman courts of law, and thereby to stabilize, by making them more
predictable, the quotidian workings of society. Rather, writing about
Roman law was, in some part, an artistic confection—or, to put it
slightly differently, these jurists were oftentimes producing a type of
writing that we might feel comfortable classifying as “literature.”
That said, and just as Frier points out, the Roman juristic
literature, in its aspect as a literary phenomenon, has traditionally
suffered from conspicuous neglect.34 Now to be sure, the ties to
philosophy or rhetoric have not been missed.35 The same goes for
connections with antiquarian and grammatical writing.36 However,
we simply have not had any proper attempt to envision Roman legal
writing as a form of literature which might have been fabricated, in
some way or ways, like (say) the literature devoted to philosophy, or
like any of the other types of (say) technical literature. Just recently,
however, Dario Mantovani has finally begun to put thinking along
these lines on a better footing. He has shown us, in a grand leap
forward, that we must be prepared to read a text produced by a
Roman jurisprudent as a piece of literature, as an aesthetic
production, and, in particular, as a form of writing with affinities
especially to historical or philosophical texts.37 The corollary is that
legal literature, on the face of it, ought to have been both intended
by its authors and understood by its readers to function, in some
way or ways, as did most any, or all, of the other branches of
technical literature—or, let us say, as did the various writings that
might have been classed as being part of a group that could be
called the artes liberales. There is surely a great deal still to be done
in this regard; but, with this push from Mantovani, we are now on
the way.38
So, given everything that has just been said, it would seem that
we can safely assume ancient writings about medicine and law to
have been, at least in some significant part, aesthetic productions.
Perhaps we should think of them, following Celsus, as closely
associated with their kin in the fields of agriculture, military science,
rhetoric, and philosophy. Antiquarian, grammatical, and historical
writing (at the very least) should also be stirred into the mix. But be
that all as it may, there would appear to be one grand underlying
truth here. When a man sat down in antiquity to compose a text
about medicine or law, the goals he envisioned for that project will
not have been simply and purely utilitarian. Authors of medical texts
were not writing with one and only one thought in mind, namely, to
tell practicing doctors how to practice. Roughly the same goes for
the jurisprudents. These men are hardly likely to have thought that
they were merely fixing up binding statutes, which would then
invariably be received as such, thereupon to be inexorably
implemented in the courts.
This broad realization has consequences, thus bringing us to a
series of other issues which will be tackled in this book. For if
substantial concerns aside from, or beyond, workaday practicalities
were implicated in the writing about medicine and law, then we must
ask: what were those concerns, and what roles might they have
played in shaping the very substance of medicine or law as the one
or the other eventually appeared in its written form?
The question just posed draws our attention to the matter of
rhetoric in legal and medical writing, mentioned briefly already.
Rhetoric is plainly wrapped up with the aesthetic or artistic aspect of
our two bodies of writing, and there will be plenty more to say about
the issue in the pages that follow. For the moment, however, let us
adumbrate another issue of crucial significance, which is closely
intertwined with eloquence.
One should never lose sight of the fact that the rhetorical or
aesthetic side of any given piece of ancient writing was highly likely
to have been punctiliously tailored, so as to serve the purposes of
the intense agonism which infected ancient society to its very core.
Thus, Julian and Herakleitos were not commemorated merely as
accomplished writers. Rather, the one soared to a kind of
stratosphere as the Homer (no less!) of medical poetry, while the
other was forever treasured as the greatest author of all on legal
science. In short, good was not good enough; absolute best was
always better. We glimpse this mentality through the eyes of
Claudius Mamertinus, when he gazes back upon earlier times, and
pines for the venerable “science of civil law, which catapulted the
Manilii, the Scaevolas, the Servii to the very pinnacle of grandeur,” or
through those of Galen, who relishes the “mighty reputation…and
great name” that followed from his own successful career.39
Celebrated intellectualism, in other words, was part and parcel of the
overall image as an especially great man, and was contested tooth
and nail.40 This issue of a pervasive penchant for one-upmanship will
also be handled in the pages to come. Suffice it to say, at this point,
that the elegance and grace with which one might infuse one’s
writing was hardly a matter of mere art for art’s sake. For in the
world fashioned by Roman antiquity’s elite writers, and these will
include those who composed on medicine and law, the pen might
indeed function nearly like a sword.41
This issue of agonism also serves to transport us from the heights
of bookish elegance to the more prosaic manifestations of law and
medicine; for here, in doctors’ “offices” and in courtrooms, the same
kind of competitive rivalry that infected much of the literature was
likewise relentlessly on display. But now, another element is added
to the equation. For when either medicine or law popped up in the
forum, emulous strife between the actors suddenly became a
species of cherished public entertainment.42 Indeed, the deeply
practical nature of each endeavor meant that the stakes of such
encounters could literally be life-or-death for the unfortunate patient
or litigant in question, adding further zest for the audience and
increasing the potential glory or humiliation for the expert
participants.43
For this competitive urge in the realm of medicine, we can look to
the testimony of Galen, who found tremendous success as a
practicing doctor (not to mention the time to write prodigiously on
medicine) in Rome over the course of the second century ce, as well
as to the numerous inscriptions from cities praising their local
doctors, similar to those erected for Herakleitos.44 It is clear from
these that medical practice was an unremittingly competitive and
public affair. Treatment of patients was habitually performed before a
critical audience. A doctor and his patient did not enjoy the private,
confidential relationship that is so carefully protected in today’s
world—nor does it seem that either would have particularly desired
it. Quite the contrary, a patient, particularly a rich, influential, and
urban one, would crowd his bedside with onlookers, both medical
and otherwise, in the hopes that competition would lead to the best
treatment.45 Galen describes sickrooms packed with doctors
jockeying for control of the case and non-medical friends and family
interjecting their opinions: the arguments were heated—tears and
brawls were not unheard of—and reputations were made and broken
by the patients’ outcomes.46 While life and death were on the line at
the bedside, heightening the stakes, the eristic, performative mood
spilled well beyond the realm of practical treatment: highly rhetorical
medical lectures, heated medical debates (complete with heckling
audience), judged medical competitions, and even public
demonstrations of dissection and vivisection in support of medical
theories were all a part of the cosmos of erudite entertainment
available to those who enjoyed frequenting the courts or the packed
performances of the sophists. Indeed, Aelius Aristides, the famous
orator who was also a notorious invalid, sees the cross-over potential
and offers rhetorical performances from his sickbed in between
medical consultations.47 In short, even when not engaged in patient
care, a Roman doctor of Herakleitos’ or Galen’s level (that is, one
with a sufficiently elevated social standing to work pro bono, or to
be able to produce literature) would have had repeatedly to prove
his intellectual chops against his rivals in public. And all this, as we
have remarked above, also had a profound impact on the literature,
where, with a conscious eye to outdoing their rivals, learned doctors
supplemented drier, pragmatic treatises in their oeuvres with
carefully crafted productions (like Herakleitos’ poetry), with
rhetorically charged polemics (like much of Galen’s corpus), and
even with esoteric scholarly editions of the work of previous doctors,
which might seem more at home in the library of Alexandria than in
a doctor’s surgery.
The world of law functioned similarly. To begin, one need look no
further than the ius controversum, i.e., the many gray areas, where
different jurists held different opinions on matters of law, where
these divergent positions were contested tooth and nail, and where
personal auctoritas was the factor that often could carry the day.48
Obviously, points of what might be substantive law were at stake
here, and thus, the most cogent legal argument mattered. However,
hand-in-hand with the legal conundrum per se went the authority of
the man promoting his interpretation; and, let us not forget that this
fellow’s auctoritas qua legal expert, precisely as we saw with Julian,
was thoroughly intertwined with his status otherwise.49 Thus,
prevailing in a tussle over a point of law must often have involved
consequences that went well beyond anyone’s worries about fixing
the legal issue so that it might be predictable, and equally well past
the mere satisfaction which might accrue to the jurist recognized as
being right. Indeed, the entire place in the world of the man
engaged in such a dispute hung, to no insignificant degree, in the
balance.
As for the matter presently under consideration, it is crucial to
realize that these lawyerly scuffles, while they surely surfaced in
many a piece of writing about law, appear also to have spilled out of
the books and into the open. Aulus Gellius, for example, recalls
putting his reading aside one day, and loping down to the forum.
There, he discovered lively debate in the many stationes ius publice
docentium et respondentium (i.e., the “offices” where jurisprudents
both taught law and gave legal advice to interested parties) as to
whether a serving quaestor could be summoned before a praetor.
Gellius quickly fetched his copy of Varro’s Antiquitates rerum
humanarum, read an apposite passage from that tome to the
assembled crowd, and thereby managed to settle the matter.50 The
important point for us is that these stations, just like the doctors’
rendezvous, seem to have been places where an audience could
gather, so as to gawk at, heckle, or cheer on the experts
contentiously displaying their prowess.51 The law courts themselves
were probably more raucous yet. Here, barristers, advising jurists,
litigants, witnesses, judges, and large audiences, with claques
potentially working for both sides in the dispute, all gathered
together for a rollicking good time.52 And one emperor, Caracalla,
can even be suspected of hijacking some litigants and their legal
Another random document with
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roar as it plunged over the bluff and tore a way down to the rocks
below. The slide gathered momentum as it went.
Hollister peered down. The crouched figure was gone, had been
buried in the giant billow of white.
The engineer refastened his ski, took a few swinging strokes
forward, and came to a smooth incline. Down this he coasted rapidly.
The buried man was just struggling out of the white mass when a
hand closed on his coat collar. It dragged him from the pack and held
him firmly down. Not till Tug made sure that the revolver was missing
did he let the man rise.
“Wot’ell’s eatin’ youse?” the rescued man growled, snarling at him.
Tug Hollister stood face to face with the tramp he knew by the name
of Cig. Recognition was simultaneous.
“What were you doing at my camp?”
“Aw, go chase yoreself. I ain’t been near your camp.”
“All right, if that’s your story. We’ll go back there now. The sheriff
wants you.”
The evil face of the crook worked. Out of the corner of his twisted
mouth he spoke venomously. “Say, if I had my gun I’d croak youse.”
“But you haven’t it. Get busy. Dig out your skis.”
“Nothin’ doing. Dig ’em yoreself if youse want ’em.”
Hollister knew of only one argument that would be effective with this
product of New York’s underworld. He used it, filled with disgust
because circumstances forced his hand. When Cig could endure no
longer, he gave way sullenly.
“’Nuff. But some day I’ll get you right for this. I aimed to bump you
off, anyhow. Now I soitainly will. I ain’t forgot you rapped on me to
that guy Reed.”
“I’ve told you once I didn’t, and you wouldn’t believe me. We’ll let it
go at that. Now get those skis.”
The snowshoes were rescued and the broken one mended. Hollister
watched his prisoner every minute of the time. He did not intend to
run the risk of being hit in the head by a bit of broken rock.
The two moved down into the valley, Cig breaking trail. He made
excuses that he was dead tired and couldn’t go another step. They
did not serve him well. His captor would not let the crook get in his
rear for a single second. He knew that, if the fellow got a chance, he
would murder him without the least hesitation.
In a blinding snowstorm the two men reached camp. Twice Cig had
tried to bolt and twice had been caught and punished. This was a
degrading business, but the engineer had no choice. It was
necessary to bring the man in because he had been up to some
deviltry, and Hollister could not let him go without first finding out
what it was.
He took him into his own tent and put him through a searching quiz.
The result of it was precisely nothing. Cig jeered at him defiantly. If
he could prove anything against him, let him go to it. That was the
substance of the New Yorker’s answers.
“All right. I’ll turn you over to Clint Reed. He’s got something to say to
you for stealing his little girl. From the way he talked, I judge you’re
in for a bad time of it.”
Cig protested. He hadn’t stolen the girl. How did they know he had?
Who said so? What would he do a crazy thing like that for? To all of
which Hollister said calmly that he would have to explain that to
Reed. If he could satisfy the cattleman, it would be all right with him.
Reed could pass him on to Sheriff Daniels without further delay.
“You’re a heluva pardner, ain’t youse?” sneered the crook with an
ugly lift of his upper lip. “T’row me down foist chance youse get.”
“I’m not your partner. We hit different trails the day we left the
Diamond Bar K ranch. You needn’t play baby on me. That won’t buy
you anything.”
“Gonna turn me over to Reed, then, are youse?”
“I’ve no time to bother with you. He’ll know how to handle the case.
Better that way, I reckon.”
Cig said nothing. For half an hour there was silence in the tent.
Hollister knew that his threat was sinking in, that the kidnapper was
uneasily examining the situation to find the best way out.
Daylight came, and with it signs of activity around the camp. Smoke
poured out of the stovepipe projecting from the chuck tent. Men’s
voices sounded. At last the beating of an iron on the triangle
summoned them to breakfast.
“We’ll eat before we start,” Hollister said.
“Don’ want nothin’ to eat,” growled the prisoner.
“Different here. I do. You’ll come along, anyhow.”
The men at breakfast looked with surprise at the guest of the boss
when he appeared. Hollister explained what he was doing there.
“I want to go into the tunnel and have a look around before any of
you do any work,” he added. “This fellow was up to some mischief,
and I want to find out what it was.”
Cig’s palate went dry. He knew better than they did in what a
predicament he had put himself. If he let the thing go through as
originally intended, these men would never let him reach a sheriff. If
he confessed—what would they do to him?
He ate mechanically and yet voraciously, for the exercise of the night
had left him hungry. But every moment his mind was sifting the facts
of the case for an out.
Hollister rose to leave. “Take care of this fellow till I get back, Tom. I
don’t know what he was up to, but if anything happens to me, rush
him right down to Daniels.”
“We will—in a pig’s eye,” the foreman answered bluntly. “If anything
happens to you, we’ll give this bird his, muy pronto.”
The engineer was lifting the flap of the tent when Cig spoke huskily
from a parched throat. “I’ll go along wid youse.”
“All right.” Not the least change of expression in his face showed that
Hollister knew he had won, knew he had broken down the fellow’s
stiff and sullen resistance.
Cig shuffled beside Tug to the tunnel. The months had made a
difference in the bearing of the ex-service man. When the New
Yorker had met him first, Hollister’s mental attitude found expression
in the way he walked. He was a tramp, in clothes, in spirit, in habit of
life, and in the way he carried his body. The shoulders drooped, the
feet dragged, the expression of the face was cynical. Since then
there had been relit in him the spark of self-respect. He was a new
man.
He stepped aside, to let Cig pass first into the tunnel. At the entrance
he lit two candles and handed one to his prisoner.
“What did you want to come for?” he asked. “Have you something to
show me? Or something to tell me?”
Cig moved forward. He spoke over his shoulder, protecting the
candle with one hand. “Just a bit of a lark. Thought I’d throw a scare
into yore men.”
“How?”
The former convict continued through the tunnel to the face of the
rock wall. He set his candle down on a niche of jutting sandstone.
With his fingers he scraped away some sand from the ragged wall.
“What’s that?” Hollister’s voice was sharp. He held out his hand.
“Let’s have it.”
From beneath the sand Cig had taken a stick of dynamite. He dug up
five others.
The object of putting them there was plain enough. If a workman had
struck any one of them with a pick, there would have been an
explosion, and the sand beds round the rocks were precisely the
places into which the pick points would have gone. The thing had
been a deliberate attempt at cold-blooded wholesale murder.
“Sure you have them all?” Hollister asked.
“Yep. Had only six.” He added, with a whine: “Didn’t aim to hurt any
o’ the boys, but only to scare ’em some.”
The engineer made no comment. He drove his prisoner before him
back into the light. Tom met him at the entrance to the tunnel. The
foreman examined the sticks of dynamite, listened to what Hollister
had to say, and jerked his head toward Cig.
“The boys’ll fix him right so’s he’ll never pull another trick like this,”
he told his chief.
“No,” opposed Hollister. “Nothing of that sort, Tom. I’m going to take
him down to the sheriff. We’ll send him over the road.”
“Like blazes we will!” the foreman burst out. “If you hadn’t happened
to see him this morning, three or four of us might be dead by now.
Hanging’s too good for this guy.”
“Yes,” agreed Tug. “But we’re not going to put ourselves in the wrong
because he is. The law will deal with him.”
“The boys ain’t liable to feel that way,” Tom said significantly.
“They won’t know anything about it till we’ve gone. You’ll tell them
then.” His hand fell on the foreman’s shoulder with a grip that was
almost affectionate. “We can’t have a lynching here, Tom. We’d be
the ones in bad then.”
Tom had to feel his way through a few moments of sulkiness to
acceptance of this point of view. “All right. You’re the doctor. Hustle
this fellow outa camp an’ I’ll wait till you’re gone. Sure he’s picked up
every stick of this stuff?”
Cig was quite sure about that. He spoke humbly and with all the
braggadocio gone from his manner. He had been thoroughly
frightened and did not yet feel wholly out of the woods. Not till he
was behind the bars would he feel quite safe again.
 CHAPTER XXIII
OUT OF THE BLIZZARD

Tom called a warning to Hollister as the engineer and his prisoner

struck out into the blinding storm. “Careful you don’t get lost. Looks
like she’s gettin’ her back up for a reg’lar snifter.”
The snow was still falling thickly, but it had behind it now a driving
wind that slapped it in the faces of the men at a slanting angle.
Presently under the lee of a hill they got their backs to the storm, but
this did not greatly improve conditions, for the whip of the wind
caught up the surface drifts and whirled them at the travelers.
Hollister had buckled on a belt with a revolver and had taken the
precaution to rope his prisoner to him with ten feet of slack between.
They ploughed through the new snow that had fallen above the
crust, making slow progress even with the wind to help.
From the shelter of the gulch they came into the full force of the
howling hurricane. It caught them as they crossed a mesa leading to
a cañon. Hollister realized that the snow was thinning, but the wind
was rising and the temperature falling. He did not like that. Even to
his lack of experience there was the feel of a blizzard in the air.
Moreover, before they were halfway across the mesa he had a
sense of having lost his direction.
Cig dropped back, whining. This was an adventure wholly out of his
line. He was game enough in his way, but bucking blizzards was not
one of the things he had known in his city-cramped experience.
“We gotta go back. It’ll get us sure if we don’t,” he pleaded.
Tug would have turned back gladly enough if he had known which
way to go, but in the swirl of white that enveloped them he did not
know east from west. The thing to do, he judged, was to strike as
straight a line as possible. This ought to take them off the mesa to
the shelter of some draw or wooded ravine.
“It’ll be better when we get where the wind can’t slam across the
open at us,” he said.
For the moment at least the former convict was innocuous. He was
wholly preoccupied with the battle against the storm. Tug took the
lead and broke trail.
The whirling snow stung his face like burning sand. His skis clogged
with the weight of the drifts. Each dragging step gave him the sense
of lifting a leaden ball chained to his feet.
Cig went down, whimpering. “I’m all in!” he shrieked through the
noise of the screaming blasts.
“Forget it, man!” Hollister dragged him to his feet. “If you quit now
you’re done for. Keep coming. We’ll get off this mesa soon. It can’t
be far now.”
He was none too confident himself. Stories came to his mind of men
who had wandered round and round in a circle till the blizzard had
taken toll of their vitality and claimed them for its own.
The prisoner sank down again and had to be dragged out of the drift
into which he had fallen. Five or six times the taut rope stopped
Tug’s progress. Somehow he cheered and bullied the worn-out man
to the edge of the mesa, down a sharp slope, and into the wind-
break of a young grove of pines.
Into the snow Cig dropped helplessly. The hinges of his knees
wouldn’t hold him any longer. His expression reminded Hollister of
the frightened face of a child.
“I’m goin’ west,” he said.
“Not this trip,” the engineer told him. “Buck up and we’ll make it fine.
Don’t know this country, do you? We’re at the mouth of a gulch.”
Cig looked around. In front of him was a twisted pine that looked like
an umbrella blown inside out. He recognized it.
“This gulch leads into another. There’s a cabin in it,” he said. “A
heluva long ways from here.”
“Then we’d better get started,” Tug suggested. “The cabin won’t
come to us.”
He gave the Bowery tough a hand to help him to his feet. Cig pulled
himself up.
“Never get there in the world,” he complained. “Tell you I’m done.”
He staggered into the drifts after his leader. The bitter wind and cold
searched through their clothing to freeze the life out of them. At the
end of a long slow two hundred yards, the weaker man quit.
Hollister came back to him. He lay huddled on the newly broken trail.
“Get up!” ordered Tug.
“Nothin’ doing. I’m through. Go on an’ leave me if youse want to, you
big stiff.”
It was the man’s last flare of defiance. He collapsed into himself,
helpless as a boxer counted out in the roped ring. Hollister tugged at
him, cuffed him, scolded, and encouraged. None of these seemed
even to reach his consciousness. He lay inert, even the will to live
beaten out of him.
In that moment, while Hollister stood there considering, buffeted by
the howling wind and the sting of the pelting sleet, he saw at his feet
a brother whose life must be saved and not an outlaw and potential
murderer. He could not leave Cig, even to save himself.
Tug’s teeth fastened to one end of a mitten. He dragged it from his
hand. Half-frozen fingers searched in his pocket for a knife and
found it. They could not open the blade, and he did this, too, with his
teeth. Then, dropping to one knee awkwardly, he sawed at the
thongs which fastened the other’s skis. They were coated with ice,
but he managed to sever them.
He picked up the supine body and ploughed forward up the gulch.
The hope he nursed was a cold and forlorn one. He did not know the
cañon or how far it was to the gulch in which the cabin was. By
mistake he might go wandering up a draw which led nowhere. Or he
might drop in his tracks from sheer exhaustion.
But he was a fighter. It was not in him to give up. He had to stagger
on, to crawl forward, to drag his burden after him when he could not
carry it. His teeth were set fast, clinched with the primal instinct to go
through with it as long as he could edge an inch toward his goal.
A gulch opened out of the cañon. Into it he turned, head down
against a wind that hit him like a wall. The air, thick with sifted ice,
intensely cold, sapped the warmth and vitality of his body. His
numbed legs doubled under the weight of him as though hinged. He
was down and up again and down, but the call of life still drove him.
Automatically he clung to his helpless load as though it were a part
of himself.
Out of the furious gray flurry a cabin detached itself. He weaved a
crooked path toward it, reached the wall, crept along the logs to a
door. Against this he plunged forward, reaching for the latch blindly.
The door gave, and he pitched to the floor.
He lay there, conscious, but with scarcely energy enough of mind or
body to register impressions. A fire roared up the chimney. He knew
that. Some one rose with an exclamation of amazement at his
intrusion. There was a hiatus of time. His companion of the
adventure, still tied to him, lay on the floor. A man was stooping over
Cig, busy with the removal of his ice-coated garments.
The man cut the rope. Hollister crawled closer to the fire. He
unfastened the slicker and flung it aside. If he had not lost his knife,
he would have cut the thongs of the skis. Instead, he thrust his feet
close to the red glow to thaw out the ice-knots that had gathered.
He was exhausted from the fight through the deep drifts, but he was
not physically in a bad way. A few hours’ sleep would be all he
needed to set him right.
“Take a nip of this,” a squeaky voice advised.
Hollister turned his head quickly. He looked into the leathery face
and skim-milk eyes of Jake Prowers. It would be hard to say which of
them was the more startled.
“By jiminy by jinks, if it ain’t the smart-aleck hobo engineer,” the
cattleman announced to himself.
“Is he alive?” asked Tug, nodding toward the man on the floor.
“Be all right in a li’l’ while. His eyes flickered when I gave him a drink.
How’d you come here, anyhow?”
“Got lost in the storm. He played out. Had to drag him.” Tug rubbed
his hands together to restore circulation.
“Mean you got lost an’ just happened in here?”
“Yes.”
“Hmp! Better be born lucky than with brains, I’ll say. What were you
doin’ out in the blizzard? Where you headed for?”
“I was taking him to Wild Horse—to the sheriff.”
A mask dropped over the eyes of the little cattleman. “What for?
What’s he been doin’?”
“He’s wanted for shooting Mr. Reed and firing his wheatfield.”
“You been appointed deputy sheriff since you took to playin’ good?”
“And for other things,” the engineer added, as though Prowers’s
sneer had not been uttered.
“Meanin’ which?”
“Kidnapping Reed’s little girl.”
“No proof of that a-tall. Anything more?”
The eyes of the two met and grew chill. Hollister knew that the
rancher was feeling out the ground. He wanted to find out what had
taken place to-day.
“What more could there be?” Tug asked quietly.
Neither relaxed the rigor of his gaze. In the light-blue orbs of the
older was an expression cold and cruel, almost unhuman,
indefinably menacing.
“Claims I was tryin’ to blow up his mine.” The voice came from
behind Prowers. It was faint and querulous. “Say, I’m froze up inside.
Gimme a drink, Jake.”
Prowers passed the bottle over. He continued to look at the uninvited
guest who knew too much. “Howcome you to get that notion about
him blowin’ up yore tunnel?” he asked.
“Caught him at it. Dragged him back and made him show where he
had put the sticks of powder,” Hollister answered grimly. “You
interested in this, Mr. Prowers?”
“Some. Why not? Got to be neighborly, haven’t I?” The high voice
had fallen to a soft purr. It came to Hollister, with a cold swift patter of
mice feet down his spine, that he was in deadly danger. Nobody
knew he was here, except these two men. Cig had only to give it out
that they had become separated in the blizzard. They could, unless
he was able to protect himself, murder him and dispose of the body
in entire safety. If reports were true, Prowers was an adept at that
kind of sinister business. Tug had, of course, a revolver, but he knew
that the cattleman could beat him to the draw whenever he chose.
The old man was a famous shot. He would take his time. He would
make sure before he struck. The blow would fall when his victim’s
wariness relaxed, at the moment when he was least expecting it.
Tug knew that neither of these two in the room with him had any
regard for the sanctity of human life. There are such people, a few
among many millions, essentially feral, untouched by any sense of
common kinship in the human race. Prowers would be moved by
one consideration only. Would it pay to obliterate him? The greatest
factor in the strength of the cattleman’s position was that men
regarded him with fear and awe. The disappearance of Hollister
would stir up whisperings and suspicions. Others would read the
obvious lesson. Daunted, they would sidestep the old man rather
than oppose him. Yet no proof could be found to establish definitely
a crime, or at any rate to connect him with it.
The issue of the Sweetwater Dam project meant more to Prowers
than dollars and cents. His power and influence in the neighborhood
were at stake, and it was for these that he lived. If the irrigation
project should be successful, it would bring about a change in the
character of the country. Settlers would pour in, farm the Flat Tops,
and gobble up the remnants of the open range. To the new phase of
cattle-raising that must develop, he was unalterably opposed. He
had no intention, if he could prevent it, of seeing Paradise Valley
dominated by other men and other ways. The development of the
land would make Clint Reed bulk larger in the county; it would
inevitably push Jake into the background and make of him a minor
figure.
To prevent this, Prowers would stick at nothing. Hollister was only a
subordinate, but his death would serve excellently to point a sinister
moral. If more important persons did not take warning, they, too,
might vanish from the paths of the living.
“You’re neighborly enough, even if you visited us by deputy this
morning,” Hollister answered, level gaze fixed on the cattleman.
“Did I visit you by deputy?” Jake asked, gently ironical.
“Didn’t you? One with six sticks of dynamite to help us on the job.”
“News to me. How about it, Cig? What’s yore smart-aleck friend
drivin’ at?”
Cig had crept forward to the fire and lay crouched on the hearth. His
twitching face registered the torture of a circulation beginning to
normalize itself again in frozen hands and feet.
“Said he’d turn me over to that guy Reed. Took advantage of me
while I was played out to beat me up,” snarled the city tough. He
finished with a string of vile epithets.
The splenetic laughter of the cattleman cackled out. “So you’re
aimin’ to take Cig here down to Daniels with that cock-an’-bull story
you cooked up. Is that the play?”
“Yes, I’m going to take him down—now or later.”
This appeared to amuse the little man. His cracked laughter sounded
again. “Now or later, by jimmy by jinks. My hobo friend, if you’d lived
in this country long as I have, you wouldn’t gamble heavy on that
‘later.’ If you’d read yore Bible proper, you’d know that man’s days
are as grass, which withers up considerable an’ sudden. Things
happen in this world of woe right onexpected.”
Tug did not dodge this covert threat. He dragged it into the open.
“What could happen to me now we’re safe out of the storm, Mr.
Prowers?”
The skim-milk eyes did not change expression, but there seemed to
lie back of them the jeer of mockery. “Why, ’most anything. We eat
canned tomatoes for supper, say—an’ you get lead poisonin’. I’ve
known real healthy-lookin’ folks fall asleep an’ never wake up.”
“Yes. That’s true,” Hollister agreed, an odd sinking in the pit of his
stomach. “And I’ve seen murderers who could have passed a first-
class life insurance examination quit living very suddenly. The other
day I read a piece about a scoundrel in Mexico who had killed two or
three people. He rather had the habit. When he shot another in the
back, his neighbors rode to his ranch one night and hanged him to
his own wagon tongue.”
“I always did say Mexico was no place for a white man to live,” the
old fellow piped amiably. “Well, I expect you boys are hungry, buckin’
this blizzard. What say to some dinner?”
“Good enough. No canned tomatoes, though, if you please.”
Once more Hollister and Prowers measured eyes before the
cattleman grinned evilly.
“Glad you mentioned it. I was aimin’ to have tomatoes,” he said.
 CHAPTER XXIV
“COME ON, YOU DAMN BUSHWHACKER”

The fury of the storm rattled the window panes. Down the chimney
came the shrill whistle of the gale. The light of day broke dimly
through the heavy clouds that swept above the gulch from peak to
peak.
Two of the men sitting at dinner in the cabin watched each other
intently if covertly. The third, dog-tired, nodded over the food he
rushed voraciously to his mouth.
“Gonna pound my ear,” Cig announced as soon as he had finished
eating.
He threw himself on a bunk and inside of five minutes was snoring.
Tug, too, wanted to sleep. The desire of it grew on him with the
passing hours. Overtaxed nature demanded a chance to recuperate.
Instead, the young man drank strong coffee.
Jake Prowers’s shrill little voice asked mildly, with the hint of a cackle
in it, if he was not tired.
“In the middle of the day?” answered Tug, stifling a yawn.
“Glad you ain’t. You ’n’ me’ll be comp’ny for each other. Storm’s
peterin’ out, looks like.”
“Yes,” agreed the guest.
It was. Except for occasional gusts, the wind had died away. Tug
considered the possibility of leaving before night fell. But if he left,
where could he go in the gathering darkness? Would Prowers let him
walk safely away? Or would a declaration of his intention to go bring
an immediate showdown? Even so, better fight the thing out now,
while he was awake and Cig asleep, than wait until he slipped into
drowsiness that would give the little spider-man his chance to strike
and kill.
Tug had no longer any doubt of his host’s intention. Under a thin
disguise he saw the horrible purpose riding every word and look. It
would be soon now. Why not choose his own time and try to get the
break of the draw?
He could not do it. Neither will nor muscles would respond to the
logical conviction of his mind that he was entitled to any advantage
he could get. To whip out his gun and fire might be fair. He had no
trouble in deciding that it was. But if luck were with him—if he came
out alive from the duel—how could he explain why he had shot down
without warning the man who was sheltering him from the blizzard?
For that matter, how could he justify it to himself in the years to
come? A moral certainty was not enough. He must wait until he
knew, until the old killer made that lightning move which would give
him just the vantage-ground Tug was denying himself.
All that Tug could do was watch him, every nerve keyed and muscle
tensed, or bring the struggle to immediate issue. He came, suddenly,
clearly, to the end of doubt.
“Time I was going,” he said, and his voice rang clear.
“Going where?” Prowers’s hand stopped caressing his unshaven
chin and fell, almost too casually, to his side.
They glared at each other, tense, crouched, eyes narrowed and
unwinking. Duels are fought and lost in that preliminary battle of
locked eyes which precedes the short, sharp stabbings of the
cartridge explosions. Soul searches soul for the temper of the foe’s
courage.
Neither gaze wavered. Each found the other stark, indomitable. The
odds were heavily in favor of the old cattleman. He was a practiced
gunman. Quicker than the eye could follow would come the upsweep
of his arm. He could fire from the hip without taking aim. Nobody in
the county could empty a revolver faster than he. But the younger
man had one advantage. He had disarranged Prowers’s plans by
taking the initiative, by forcing the killer’s hand. This was
unexpected. It disturbed Jake the least in the world. His opponents
usually dodged a crisis that would lead to conflict.
A cold blast beat into the house. In the open doorway stood a man,
the range rider Black. Both men stared at him silently. Each knew
that his coming had changed the conditions of the equation.
Under the blue cheek of the newcomer a quid of tobacco stood out.
It was impossible to tell from his impassive face how much or how
little of the situation he guessed.
“Ran outa smokin’,” he said. “Thought I’d drap over an’ have you
loan me the makin’s.”
He had closed the door. Now he shuffled forward to the fire and with
a charred stick knocked the snow from his webs.
“A sure enough rip-snorter, if any one asks you,” he continued mildly
by way of comment on the weather. “Don’t know as I recall any storm
wuss while it lasted. I seen longer ones, unless this ’un ’s jest
gatherin’ second wind.”
Tug drew a deep breath of relief and eased down. Red tragedy had
been hovering in the gathering shadows of the room. It was there no
longer. The blessed homely commonplace of life had entered with
the lank homesteader and his need of “the makin’s.”
“Not fur from my place,” Black went on, ignoring the silence. “But I’ll
be dawg-goned if it wasn’t ’most all I could do to break through the
drifts. If I’d ’a’ known it was so bad I’m blamed if I wouldn’t ’a’ stayed
right by my own fireside an’ read that book my sister give me twenty-
odd years ago. Its a right good book, I been told, an’ I been waitin’ till
I broke my laig to read it. Funny about that, too. The only time I ever
bust my laig an’ got stove up proper was ’way down on Wild Cat
Creek. The doc kep’ me flat on a bunk three weeks, an’ that book
‘David Coppermine’ a whole day away from me up in the hills.”
“David Copperfield,” suggested Tug.
“Tha’s right, too. But it sure fooled me when I looked into it onct. It
ain’t got a thing to do with the Butte mines or the Arizona ones
neither. Say, Jake, what about that tobacco? Can you lend me the
loan of a sack?”
Prowers pointed to a shelf above the table. He was annoyed at
Black. It was like his shiftlessness not to keep enough tobacco on
hand. Of all the hours in the year, why should he butt in at precisely
this one? He was confoundedly in the way. The cattleman knew that
he could not go on with this thing now. Don was not thoroughgoing
enough. He would do a good many things outside the law, but they
had to conform to his own peculiar code. He had joined in the cattle
stampede only after being persuaded that nobody would be hurt by
it. Since then Jake had not felt that he was dependable. The
homesteader was suffering from an attack of conscience.
Cig had wakened when the rush of cold air from the open door had
swept across the room. He sat up now, yawning and stretching
himself awake.
“What a Gawd-forsaken country!” he jeered. “Me for de bright lights
of li’l’ ol’ New York. If Cig ever lands in de Grand Central, he’ll stick
right on de island, b’lieve me. I wisht I was at Mike’s Place right dis
minute. A skoit hangs out dere who’s stuck on yours truly. Some
dame, I’ll tell de world.” And he launched into a disreputable
reminiscence.
Nobody echoed his laughter. Hollister was disgusted. Black did not
like the tramp. The brain of Prowers was already spinning a cobweb
of plots.
Cig looked round. What was the matter with these boobs, anyhow?
Didn’t they know a good story when they heard one?
“Say, wot’ell is dis—a Salvation Army dump before de music opens
up?” he asked, with an insulting lift of the upper lip.
Tug strapped on his skis, always with an eye on Prowers.
Which reminded Cig. A triumphant venom surged up in him.
“Gonna take me down to de cop, are youse?” he sneered. “Say, will
youse ring for a taxi, Jake? I gotta go to jail wid dis bird.”
In two sentences Prowers gave his version of the story to Black. Tug
corrected him instantly.
“He came to blow us up in the tunnel. When I took him back, he dug
six sticks of dynamite out of the dirt in the rock wall.”
Black spat into the fire. His face reflected disgust, but he said
nothing. What was there to say, except that his soul was sick of the
evil into which he was being dragged by the man he accepted as
leader?
Tug put on his slicker.
“Where you going?” asked Black.
“To the camp.”
“’S a long way. Better stay at my shack to-night.”
“Much obliged. I will.”
They went out together. Tug was careful to walk with Black between
him and the cabin as long as it was in sight.
The wind had died completely, so that the air was no longer a white
smother. Travel was easy, for the cold had crusted the top of the
snow. They worked their way out of the gulch, crossed an edge of
the forest reserve, and passed the cabin of the homesteader
Howard. Not far from this, Black turned into his own place.
The range rider kicked off his webs and replenished the fire. While
he made supper, Hollister sat on the floor before the glowing piñon
knots and dried his skis. When they were thoroughly dry, he waxed
them well, rubbing in the wax with a cork.
“Come an’ get it,” Black called presently.
They sat down to a meal of ham, potatoes, biscuits, plenty of gravy,
and coffee. Tug did himself well. He had worked hard enough in the
drifts to justify a man-size hunger.
Their talk rambled in the casual fashion of haphazard conversation.
It touched on Jake Prowers and Cig, rather sketchily, for Black did
not care to discuss the men with whom he was still allied, no matter
what his private opinion of them might be. It included the tunnel and
the chances of success of the Sweetwater Dam project, this last a
matter upon which they differed. Don had spent his life in the saddle.
He stuck doggedly to the contention that, since water will not run
uphill, the whole enterprise was “dawg-goned foolishness.”
Hollister gave up, shrugging his shoulders. “All right with me. A man
convinced against his will, you know. Trouble with you is that you
don’t want the Flat Tops irrigated, so you won’t let yourself believe
they can be.”
“The Government engineers said they couldn’t be watered, didn’t
they? Well, their say-so goes with me all right.”
“They were wrong, but you needn’t believe it till you see water in the
ditches on Flat Top.”
“I won’t.”
Tug rose from the table and expanded his lungs in a deep, luxurious
yawn. “Think I’ll turn in and sleep round the clock if you don’t mind. I
can hardly keep my eyes open.”
Black waved his hand at the nearest bunk. “Go to it.”
While he was taking off his boots, the engineer came to a matter he
wanted to get off his mind. “Expect you know the hole I was in when
you showed up this afternoon. I’ll say I never was more glad to see
anybody in my life.”
“What d’you mean?” asked Black, blank wall eyes full on his guest.
“I mean that Prowers was watching for a chance to kill me. I’d called
for a showdown a moment before you opened the door.”
The range rider lied, loyally. “Nothin’ to that a-tall. What would Jake
want to do that for? Would it get him anything if he did? You sure
fooled yoreself if that’s what you were thinking.”
“Did I?” The eyes of the younger man were on Black, hard, keen,
and intent. “Well, that’s exactly what I was thinking. And still am.
Subject number two on which we’ll have to agree to disagree.”
“Jake’s no bad man runnin’ around gunnin’ men for to see ’em kick.
You been readin’ too much Billy the Kid stuff, I shouldn’t wonder.”
Tug dropped the second boot on the floor and rose to take off his
coat.
There came the sound of a shot, the crash of breaking glass.
Hollister swayed drunkenly on his feet, groped for the back of a
chair, half turned, and slid to the floor beside the bunk.
Usually Black’s movements were slow. Now no panther could have
leaped for the lamp more swiftly. He blew out the light, crept along
the log wall to the window, reached out a hand cautiously, and drew
a curtain across the pane through which a bullet had just come.
Then, crouching, he ran across the room and took a rifle from the
deer’s horns upon which it rested.
“Come on, you damn bushwhacker. I’m ready for you,” he muttered.