Noctes Atticae

Gellius, Aulus

Gellius, Aulus. The Attic Nights of Aulus Gellius. Rolfe, John C., translator. Cambridge, Mass.; London: Harvard University Press; William Heinemann, 1927 (printing).

A discussion of the jurist Sextus Caecilius and the philosopher Favorinus about the laws of the Twelve Tables.

SEXTUS CAECILIUS was famed for his knowledge, experience and authority in the science of jurisprudence and in understanding and interpreting the laws of the Roman people. It happened that as we were waiting to pay our respects to Caesar, [*](That is, Antoninus Pius.) the philosopher Favorinus met and accosted Caecilius in the Palatine square [*](The Area Palatina was originally the space bounded on the west by the Domus Tiberiana, or Palace of Tiberius, and the Domus Augustana; as time went on, it must have been bounded and restricted by other parts of the Imperial Palace.) in my presence and that of several others. In the conversation which they carried on at the time mention was made of the laws of the decemvirs, which the board of ten appointed by the people for that purpose wrote and inscribed upon twelve tablets. [*](These laws were set up in the Forum on ten tablets of bronze in 451 B.C., to which two more tablets were added in 450.)

When Sextus Caecilius, who had examined and studied the laws of many cities, said that they were drawn up in the most choice and concise terms, Favorinus rejoined:

It may be as you say in the greater part of those laws; for I read your twelve tables with as eager interest as I did the twelve books of Plato On the Laws. But some of them seem to me to be either very obscure or very cruel, or on the other hand too mild and lenient, or by no means to be taken exactly as they are written.

v3.p.409

As for the obscurities,
said Sextus Caecilius,
let us not charge those to the fault of the makers of the laws, but to the ignorance of those who cannot follow their meaning, although they also who do not fully understand what is written may he excused. For long lapse of time has rendered old words and customs obsolete, and it is in the light of those words and customs that the sense of the laws is to be understood. As a matter of fact, the laws were compiled and written in the three hundredth year after the founding of Rome, [*](The chronology of Nepos; see note on § 3, above, and on the chapter heading of xvii. 21.) and from that time until to-day is clearly not less than six hundred years. But what can be looked upon as cruel in those laws? Unless you think a law is cruel which punishes with death a judge or arbiter appointed by law, who has been convicted of taking a bribe for rendering his decision, [*](ix. 3.) or which hands over a thief caught in the act to be the slave of the man from whom he stole, [*](viii. 4.) and makes it lawful to kill a robber who comes by night. [*](viii. 12.) Tell me, I pray, tell me, you deep student of philosophy, whether you think that the perfidy of a juror who sells his oath contrary to all laws, human and divine, or the intolerable audacity of an open theft, or the treacherous violence of a nocturnal footpad, does not deserve the penalty of death?

Don't ask me,
said Favorinus,
what I think. For you know that, according to the practice of the sect to which I belong, [*](He probably refers to the Pyrronian sceptics, about whose beliefs he wrote a work in ten books; see xi. 5. 5.) I am accustomed rather to inquire than to decide. But the Roman people is a judge neither insignificant nor contemptible, and
v3.p.411
while they thought that such crimes ought to be punished, they yet believed that punishments of that kind were too severe; for they have allowed the laws which prescribed such excessive penalties to die out from disuse and old age. Just so they considered it also an inhuman provision, that if a man has been summoned to court, and being disabled through illness or years is too weak to walk, 'a covered waggon he need not spread'; [*](That is, with a pallet for lying upon.) but the man is carried out and placed upon a beast of burden and conveyed from his home to the praetor [*](At that time one of the two chief magistrates, corresponding to the consuls of later times.) in the comitium, as if he were a living corpse. For why should one who is a prey to illness, and unable to appear, be haled into court at the demand of his adversary, clinging to a draught animal? But as for my statement that some laws were excessively lenient, do not you yourself think that law too lax, which reads as follows with regard to the penalty for an injury: [*](viii. 4.) 'If anyone has inflicted an injury upon another, let him be fined twenty-five asses'? For who will be found so poor that twenty-five asses would keep him from inflicting an injury if he desired to? And therefore your friend Labeo also, in the work which he wrote On the Twelve Tables, [*](Frag. 25, Hushke; 3, Bremer.) expressing his disapproval of that law, says: [*](There seems to be a lacuna in the text; see crit. note.) One Lucius Veratius was an exceedingly wicked man and of cruel brutality. He used to amuse himself by striking free men in the face with his open hand. A slave followed him with a purse full of asses; as often as he had buffeted anyone, he ordered twenty-five asses to be counted out at once, according to the provision of the Twelve Tables'
v3.p.413
Therefore,
he continued,
the praetors afterwards decided that this law was obsolete and invalid and declared that they would appoint arbiters to appraise damages. Again, some things in those laws obviously cannot, as 1 have said, even be carried out; for instance, the one referring to retaliation, which reads as follows, if my memory is correct: 'If one has broken another's limb, there shall be retaliation, unless a compromise be made.' Now not to mention the cruelty of the vengeance, the exaction even of a just retaliation is impossible. For if one whose limb has been broken by another wishes to retaliate by breaking a limb of has injurer, can he succeed, pray, in breaking the limb in exactly the same manner? In this case there first arises this insoluble difficulty. What about one who has broken another's limb unintentionally? For what has been done unintentionally ought to be retaliated unintentionally. For a chance blow and an intentional one do not fall under the same category of retaliation. How then will it be possible to imitate unintentional action, when in retaliating one has not the right of intention, but of unintention? But if he break it intentionally, the offender will certainly not allow himself to be injured more deeply or more severely; but by what weight and measure this can be avoided, I do not understand. Nay more, if retaliation is taken to a greater extent or differently, it will be a matter of absurd cruelty that a counter-action for retaliation should arise and an endless interchange of retaliation take place. But that enormity of cutting and dividing a man's body, if an individual is brought to trial for debt and adjudged to several creditors, [*](The law reads: fertiis nundinis partis secanto. Si plus minusve secuerunt, se fraude esto, on the third market day (i.e. after about two weeks; see note on § 49, below) let them cut him into pieces. If they have cut more or less (than their proper share), let it be without prejudice (to them).) I do not care to remember, and I am
v3.p.415
ashamed to mention it. For what can seem more savage, what more inconsistent with humanity, than for the limbs of a poor debtor to be barbarously butchered and sold, just as to-day his goods are divided and sold?

Then Sextus Caecilius, throwing both arms about Favorinus, said: " You are indeed the one man within my memory who is most familiar both with Greek and with Roman lore. For what philosopher is skilled and learned in the laws of his sect to the extent to which you are thoroughly versed in our decemviral legislation? But yet, I pray you, depart for a little from that academic manner of arguing of yours, and laying aside the passion for attacking or defending anything whatever according to your inclination, consider more seriously what is the nature of the details which you have censured, and do not scorn those ancient laws merely because there are many of them which even the Roman people have now ceased to use. For you surely are not unaware that according to the manners of the times, the conditions of governments, considerations of immediate utility, and the vehemence of the vices which are to be remedied, the advantages and remedies offered by the laws [*](Oportuitates refers to the advantage or assistance which the laws afford to meet the special needs of defence; moedellas, to the remedies they furnish for the cure of vice and crime.) are often changed and modified, and do not remain in the same condition; on the contrary, like the face of heaven and the sea, they vary according to the seasons of circumstances and of fortune. What seemed more salutary than that law of Stolo limiting the number of acres? What more expedient than the bill of Voconius regulating the inheritances of women? What was thought so necessary for checking the luxury of the citizens as the law of Licinius

v3.p.417
and Fannius and other sumptuary laws? Yet all these have been wiped out and buried by the wealth of the State, as if by the waves of a swelling sea. But why did that law appear to you inhumane which in my opinion is the most humane of all; that law, namely, which provides that a beast be furnished for a sick or aged man who is called into court? The words of that law, 'if he summon him to court,' [*](The first provision of the law is: Si in ius vocat, ito, if he summon him to court, let him go. Here the words Si . . . vocat are used merely to designate the law.) are as follows: [*](i. 1, 3.) If disease or age be a hindrance, let the summoner provide a beast; if he does not wish, he need not spread a covered waggon.' Do you by any chance suppose that morhus (disease) here means a dangerous sickness with a high fever and ague, and that iumentum (beast) means only one animal, capable of carrying someone on his back; and is it for that reason that you think it was inhumane for a man lying sick-a-bed at his home to be placed upon a beast and hurried off to court? That is by no means the case, my dear Favorinus. For morbus in that law does not mean a serious complaint attended with fever, but some defect of weakness and indisposition, not involving danger to life. On the contrary, a more severe disorder, having the power of material injury, the writers of those laws call in another place, [*](ii. 2.) not morbus alone, but morbus sonticus, or 'a serious disease.' [*](See xvi. 4. 4 and the note.) iumentum also does not have only the meaning which it has at present, but it might even mean a vehicle drawn by yoked animals; for our forefathers formed iumentum from iungo. Furthermore arcera was the name for a waggon, enclosed and shut in on all sides like a great chest (arca), [*](The derivation of arcera from area seems to be generally accepted.) and
v3.p.419
strewn with robes, and in it men who were too ill or old used to be carried lying down. What cruelty then does there seem to you to be in deciding that a waggon ought to be furnished for a poor or needy man who was called into court, if haply through lameness or some other mischance he was unable to walk; and in not requiring that ' a closed carriage' be luxuriously strewn, [*](See note on § 11, above.) when a conveyance of any kind was sufficient for the invalid? And they made that decision, in order that the excuse of a diseased body might not give perpetual immunity to those who neglected their obligations and put off suits at law; but foolishly."

"They assessed inflicted injuries at twenty-five asses. They did not, my dear Favorinus, by any means compensate all injuries by that trifling sum, although even that small number of asses meant a heavy weight of copper; for the as which the people then used weighed a pound. But more cruel injuries, such as breaking a bone, inflicted not only on freemen but even on slaves, they punished with a heavier fine, [*](viii. 3.) and for some injuries they even prescribed retaliation. This very law of retaliation, my dear sir, you criticized somewhat unfairly, saying with facetious captiousness that it was impossible to carry it out, since injury and retaliation could not be exactly alike, and because it was not easy to break a limb in such a way as to be an exact aequilibrium, or 'balance,' as you put it, of the breaking of the other man's. It is true, my dear Favorinus, that to make exact retaliation is very difficult. But the Ten, wishing by retaliation to diminish and abolish such violence as beating and injuring, thought that men ought to be restrained

v3.p.421
by the fear of such a penalty; and they did not think that so much consideration ought to be had for one who broke another's limb, and refused to compromise by buying off retaliation, as to consider that the question ought to be raised whether he broke it intentionally or not, nor did they make the retaliation in such a case exactly equivalent or weigh it in a balance; but they aimed rather at exacting the same spirit and the same violence in breaking the same part of the body, but not also the same result, since the degree of intention can be determined, but the effect of a chance blow cannot."

"But if this is as I say, and as the condition of fairness itself dictates, those mutual retaliations that you imagined were certainly rather ingenious than real. But since you think that even this kind of punishment is cruel, what cruelty, pray, is there in doing the same thing to you which you have done to another? especially when you have the opportunity of compromising, and when it is not necessary for you to suffer retaliation unless you choose that alternative. As for your idea that the praetors' edict was preferable in taking cognizance of injuries, I want you to realize this, that this retaliation also was wont of necessity to be subject to the discretion of a judge. For if a defendant, who refused to compromise, did not obey the judge who ordered retaliation, the judge considered the case and fined the man a sum of money; so that, if the defendant thought the compromise hard and the retaliation cruel, the severity of the law was limited to a fine. It remains for me to answer your belief that the cutting and division of a man's body is most inhuman. It was by the exercise and cultivation of

v3.p.423
all the virtues that the Roman people sprang from a lowly origin to such a height of greatness, but most of all and in particular they cultivated integrity and regarded it as sacred, whether public or private. Thus for the purpose of vindicating the public honour it surrendered its consuls, most distinguished men, to the enemy, [*](In the Samnite war, after the battle of the Caudine Forks in 321 B.C.) thus it maintained that a client taken under a man's protection should be held dearer than his relatives and protected against his own kindred, nor was any crime thought to be worse than if anyone was convicted of having defrauded a client. This degree of faith our forefathers ordained, not only in public functions, but also in private contracts, and particularly in the use and interchange of borrowed money; for they thought that this aid to temporary need, which is made necessary by the common intercourse of life, was lost, if perfidy on the part of debtors escaped with a slight punishment. Therefore in the case of those liable for an acknowledged debt thirty days were allowed for raising the money to satisfy the obligation, and those days the Ten called 'legitimate,' as if they formed a kind of moratorium, that is to say, a cessation and interruption of judicial proceedings, during which no legal action could be taken against them."

"Then later, unless they had paid the debt, they were summoned before the praetor and were by him made over to those to whom they had been adjudged; and they were also fastened in the stocks or in fetters. For that, I think, is the meaning of these words: [*](iii. 1–4.) For a confessed debt and for judgment duly pronounced let thirty days be the legitimate time. Then let there

v3.p.425
be a laying on of hands, bring him to court. If he does not satisfy the judgment, or unless someone in the presence of the magistrate intervenes as a surety, let the creditor take him home and fasten him in stocks or in fetters. Let him fasten him with not less than fifteen pounds weight, or if he wish, with more. [*](F. D. Allen, Remnants of Early Latin, p. 86, suggested that minore and maiore probably ought to change places.) If the prisoner wishes, he may live at his own expense. If he does not, the creditor shall give him a pound of meal each day. If he wishes, he may give more.' In the meantime the right of compromising the case was allowed, [*](iii. 5.) and if they did not compromise it, debtors were confined for sixty days. During that time on three successive market-days [*](The nundinae, or market days, came on every ninth day, reckoned in the Roman fashion. The time between two market days was the French huit jours and our week. Terliis nundinis, counting the one at the beginning of the period (in the Roman fashion), would be about two weeks (actually seventeen days).) they were brought before the praetor and the amount of the judgment against them was announced. But on the third day [*](iii. 6.) they were capitally condemned or sent across the Tiber to be sold abroad. But they made this capital punishment horrible by a show of cruelty and fearful by unusual terrors, for the sake, as I have said, of making faith sacred. For if there were several, to whom the debtor had been adjudged, the laws allowed them to cut the man who had been made over to them in pieces, if they wished, and share his body. And indeed I will quote the very words of the law, less haply you should think that I shrink from their odium: [*](iii. 6.) 'On the third market day,' it says, 'let them cut him up; if they have cut more or less, let them not be held accountable.' Nothing surely is more merciless, nothing less humane, unless, as is evident on the face of it, such a cruel punishment was threatened in order that they
v3.p.427
might never have to resort to it. For nowadays we see many condemned and bound, because worthless men despise the punishment of bondage; but I have never read or heard of anyone having been cut up in ancient days, since the severity of that law could not be scorned. Or do you suppose, Favorinus, that if the penalty provided by the Twelve Tables [*](viii. 23.) for false witness had not become obsolete, and if now, as formerly, one who was convicted of giving false witness was hurled from the Tarpeian Rock, that we should see so many guilty of lying on the witness stand? Severity in punishing crime is often the cause of upright and careful living. The story of the Alban Mettius Fufetius [*](He was the ruler of Alba Longa in the time of Tullus Hostilius, the third king of Rome (673–641 B.C.).) is not unknown even to me, although I read few books of that kind. Since he had treacherously broken a pact and agreement made with the king of the Roman people, he was bound to two four-horse teams and torn asunder as the horses rushed in opposite directions. Who denies that this is an unusual and cruel punishment? but see what the most refined of poets says: [*](Virg. Aen. viii. 643.)

  1. But you, O Alban, should have kept your word."

When Sextus Caecilius had said these and other things with the approval of all who were present, including Favorinus himself, it was announced that Caesar was now receiving, and we separated.

v3.p.429

The meaning of the word siticines in a speech of Marcus Cato's.

THE word siticines is found in a speech of Marcus Cato entitled Let not a Former Official retain his power, when his Successor arrives. [*](lxix, Jordan.) He speaks of siticines, liticines and tubicines. But Caesellius Vindex, in his Notes on Early Words, declares that he knows that liticines played upon the lituus, or

clarion,
and tibicines on the tuba, or
trumpet,
but, being a man of conscientious honesty, he says that he does not know what instrument the siticines used. But I have found in the Miscellanies of Ateius Capito [*](Frag. 7, Huschke; 9, Bremer.) that those were called siticines who played in the presence of those who were
laid away
(sitos), that is, who were dead and buried; and that they had a special kind of trumpet on which they played, differing from those of the other trumpeters.

Why the poet Lucius Accius in his Pragmatica said that sicinnistae was a

nebulous word.

THOSE whom the vulgar call sicinistae, persons who speak more accurately have called sicinnistae with a double n. For the sicinnium was an ancient form of dance. Moreover, those who now stand and sing formerly danced as they sang. Lucius Accius used this word in his Pragmatica, and says that sicinnistae are so called by a

nebulous
(nebuloso) term, using the word
nebulous,
I suppose, because the reason for the term sicinnium was obscure.

v3.p.431

That devotion to play-actors, and love of them, was shameful and disgraceful, with a quotation of the words of the philosopher Aristotle on that subject.

A WEALTHY young man, a pupil of the philosopher Taurus, was devoted to, and delighted in, the society of comic and tragic actors and musicians, as if they were freemen. Now in Greek they call artists of that kind oi( peri\ Dio/nuson texni=tai or

craftsmen of Dionysus.
Taurus, wishing to wean that youth from the intimacy and companionship of men connected with the stage, sent him these words extracted from the work of Aristotle entitled Universal Questions, and bade him read it over every day: [*](Prob. xxx. 10; frag. 209, Rose.)
Why are the craftsmen of Dionysus for the most part worthless fellows? Is it because they are least of all familiar with reading and philosophy, since the greater part of their life is given to their essential pursuits and much of their time is spent in intemperance and sometimes in poverty too? For both of these things are incentives to wickedness.

Specimens of letters of King Alexander and the philosopher Aristotle. just as they were written; with a rendering of the same into Latin.

THE philosopher Aristotle, the teacher of king Alexander, is said to have had two forms of the lectures and instructions which he delivered to his pupils. One of these was the kind called e)cwterika/,

v3.p.433
or
exoteric,
the other a)kroatika/, or
acroatic.
[*](i.e. esoteric, or inner, for the initiated only. The term was originally applied to Aristotle's acrobatic (or acroamatic) writings, which were not made public, as were his exoteric Dialogues, but were read to hearers only (cf. a)kou/w) and were of a strictly scientific character. Except for the fragments of his Dialogues, all the works of Aristotle which have come down to us are of the latter class.) Those were called
exoteric
which gave training in rhetorical exercises, logical subtlety, and acquaintance with politics; those were called
acroatic
in which a more profound and recondite philosophy was discussed, which related to the contemplation of nature or dialectic discussions. To the practice of the
acroatic
training which I have mentioned he devoted the morning hours in the Lyceum, [*](See note on vii. 16. 1 (ii, p. 135).) and he did not ordinarily admit any pupil to it until he had tested his ability, his elementary knowledge, and his zeal and devotion to study. The exoteric lectures and exercises in speaking lie held at the same place in the evening and opened them generally to young men without distinction. This he called deilino\s peri/patos, or
the evening walk,
the other which I have mentioned above, e(wqino/s, or
the morning walk
; [*](Hence the term peripatetics, from peripate/w, walk up and down.) for on both occasions he walked as he spoke. He also divided his books on all these subjects into two divisions, calling one set
exoteric,
the other
acroatic.

When King Alexander knew that he had published those books of the

acroatic
set, although at that time the king was keeping almost all of Asia in a state of panic by his deeds of arms, and was pressing King Darius himself hard by attacks and victories, yet in the midst of such urgent affairs he sent a letter to Aristotle, saying that the philosopher had not done right in publishing the books and so revealing to the
v3.p.435
public the acroatic training, in which he himself had been instructed.
For in what other way,
said he,
can I excel the rest, it that instruction which I have received from you becomes the common property of all the world? For I would rather be first in learning than in wealth and power.

Aristotle replied to him to this purport:

Know that the acroatic books, which you complain have been made public and not hidden as if they contained secrets, have neither been made public nor hidden, since they can be understood only by those who have heard my lectures.

I have added copies of both letters, taken from the book of the philosopher Andronicus. [*](Frag. 662, Rose.) I was particularly charmed with the slender thread of elegant brevity in the letter of each.

    "
  1. Alexander to Aristotle, Greeting.

You have not done right in publishing your acroatic lectures; for wherein, pray, shall I differ from other men, if these lectures, by which I was instructed, become the common property of all? As for me, I should wish to excel in acquaintance with what is noblest, rather than in power. Farewell.

  1. "Aristotle to King Alexander, Greeting.

You have written to me regarding my acroatic lectures, thinking that I ought to have kept them secret. Know then that they have both been made public and not made public. For they are intelligible only to those who have heard me. Farewell, King Alexander.

v3.p.437

When trying, in the phrase cunetoi\ ga\r ei)sin, to express the word cunetoi/ by a single Latin term, I found nothing better than what is written by Marcus Cato in the sixth book of his Origins: [*](Frag. 105, Peter2.)

Therefore I think the information is more comprehensible (cognobilior).

It is asked and discussed whether it it is more correct to say habeo curam vestri, or vestrum.

I ASKED Sulpicius Apollinaris, when I was studying with him at Rome in my youth, on what principle people said habeo curam vestri, or

I have care for you,
and misereor vestri, or
I pity you,
and what he thought the nominative case of vestri was in such connections. Thereupon he answered me as follows:
You ask something of me about which I too have long been in a state of uncertainty. For it seems to me that one ought to say, not vestri, but vestrum, just as the Greeks say e)pimelou=mai u(mw=n and kh/domai u(mw=n, where u(mw=n is translated by vestrum more fittingly than by vestri, having vos for the naming case, or the 'direct' case, as you called it. Yet in not a few places,
said he, "I find nostri and vestri, not nostrum or vestrum. Thus Lucius Sulla says, in the second book of his Autobiography: [*](Frag. 3, Peter2.)
But if it is possible that even now you think of me (nostri), and believe me worthy to be your fellow citizen rather than your enemy, and to fight for you rather than against you, this will surely be due to my services and those of my forefathers.
Also Terence in the Phormio: [*](v. 172.)
v3.p.439
  1. Of such a nature are we almost all,
  2. That with ourselves (nostri) we discontented are.
Afranius wrote in an Italian play: [*](v. 417, Ribbeck3.)
  1. At last some god or other pitied us (nostri).
And Laberius in the Necyomantia: [*](v. 62, Ribbeck3.)

  1. Detained for many days, he us (nostri) forgot.

There is no doubt,
said he,
that in all these phrases: 'we are discontented,' he forgot us,' 'he pitied us' (nostri), the same case is used as in 'I repent' (mei paenitet), 'he pitied me' (mei miseritus est), ' he forgot me' (mei oblitus est). But mei is the case of questioning, [*](See note on xiii. 26. 1.) which the grammarians call 'genitive,' and comes from ego; and the plural of ego is nos. Tui also is formed from tu, and the plural of this is vos. For Plautus has thus declined those pronouns in the Pseudolus, in the following lines: [*](vv. 3 ff.)
  1. O Sir, could I be told without your words
  2. What wretchedness so grievous troubles you,
  3. I would have spared the trouble of two men:
  4. My own (mei), of asking you, and yours (tis = tui), of answering.
For Plautus here uses mei, not from meus, but from ego. Therefore if you should choose to say patrem mei instead of patrem meum, as the Greeks say to\n pate/ra mou, it would be unusual, but surely correct, and on the same principle that Plautus used labori mei, 'the trouble of me,' for labori meo, ' my trouble.' The same rule applies also in the plural number, where Gracchus said [*](O.R.F p. 248, Meyer2.) misereri vestrum and Marcus
v3.p.441
Cicero [*](Pro Planc. § 16.) contentio vestrum, and contention nostrum, [*](Div. in Caec. § 37.) and on the same principle Quadrigarius in the nineteenth book of his Annals wrote these words: [*](Frag 83, Peter2.) 'Gaius Marius, when pray will you pity us (nostrum) and the State?' Why then should Terence use paenitet nostri, not nostrum, and Afranius nostri miseritus est, not nostrum? Indeed,
said he,
no reason for this occurs to me except the authority of a certain ancient usage, which was not too anxious or scrupulous in the use of language. For just as vestrorum is often used for vestrum, as in this line from the of Plautus, [*](v. 280.)
  1. The greatest part of you (vestrorum) know that is true
(where vestrorum is for vestrum), in the same way vestri also is sometimes used for vestrum. But undoubtedly one who desires to speak very correctly will prefer vestrum to vestri. And therefore,
said he,
those have acted most arbitrarily who in many copies of Sallust have corrupted a thoroughly sound reading. For although he wrote in the Catiline: [*](xxxiii. 2.) 'Often your forefathers (maiores vestrum), pitying the Roman commons,' they erased vestrum and wrote vestrz over it. And from this [*](Indoles is perhaps the nature of the error, i.e., the disposition to make an error of that kind.) that error has grown and found its way into more manuscripts.
This is what I remember hearing from Apollinaris, and I noted down his very words at the time, exactly as they were spoken."

v3.p.443

How the opinions of the Greeks differ as to the number of Niobe's children.

A STRANGE and indeed almost absurd variation is to be noted in the Greek poets as to the number of Niobe's children. For Homer says [*](Iliad xxiv. 602.) that she had six sons and six daughters; Euripides, [*](Frag. 455, N2.) seven of each; Sappho, [*](Frag. 143, Bergk.) nine; Bacchylides [*](Frag. 46, Blass2.) and Pindar, [*](Frag. 65, Bergk.) ten; while certain other writers have said that there were only three sons and three daughters.

Of things which seem to have sumptwsi/a, or

coincidence,
with the waning and waxing moon.

THE poet Annianus owned an estate in the Faliscan territory, where he used to celebrate the vintage season with mirth and jollity. On one occasion he invited me, along with some other friends. As we were dining there one day, a large quantity of oysters were sent from Rome. When they were set before us and proved to be indeed numerous, but neither rich nor very plump, Annianus said:

Of course the moon is waning just now; therefore the oyster also, like some other things, is thin and juiceless.
When we asked what other things wasted away with the waning moon, he answered: "Don't you remember that our Lucilius says: [*](v. 1201, Marx.)
v3.p.445
  1. The moon makes oysters fat, sea-urchins full,
  2. And bulk and substance to the mussels adds? [*](Cf. Hor. Serm. ii. 4. 30, lubrica nascentes implent conchylia lunae; Cic. de Div. ii. 33.)

Furthermore, those same things which grow as the moon waxes grow less as it wanes. The eyes of cats also become larger or smaller according to the same changes of the moon. This too," said he,

is much more greatly to be wondered at, which I read in the fourth book of Plutarch's Commentary on Hesiod: [*](Frag. 90, Bern.) ' The onion grows and buds as the moon wanes, but, on the contrary, dries up while the moon waxes. The Egyptian priests say that this is the reason why the people of Pelusium do not eat the onion, because it is the only one of all vegetables which has an interchange of increase and decrease contrary to the waxing and waning of the moon.'

A passage in the Mimiambi of Gnaeus Matius, in which Antonius Iulianus used to delight; and the meaning of Marcus Cato in the speech which he wrote on his own uprightness, when he said:

I have never asked the people for garments.

ANTONIUS JULIANUS used to say that his ears were soothed and charmed by the newly-coined words of Gnaeus Matius, a man of learning, such as the following, which he said were written by Matius in his Mimiambi: [*](Frag. 12, Bahrens (F.P.R. p. 282).)

  1. Revive your cold love in your warm embrace,
  2. Close joining lip to lip like amorous dove (columbulatim).
v3.p.447
And this also he declared to be charmingly and neatly devised: [*](Id. 13.)
  1. The shorn rugs now are drunken with the dye
  2. With which the shell [*](That is, the murex or purple-fish.) has drenched and coloured them. . .

The meaning of the phrase ex iure manum consertum.

Ex iure manum consertum, or

lay on hands according to law,
is a phrase taken from ancient cases at law, and commonly used to-day when a case is tried before the praetor and claims are made. I asked a Roman grammarian, a man of wide reputation and great name, what the meaning of these words was. But he, looking scornfully at me, said:
Either you are making a mistake, youngster, or you are jesting; for I teach grammar and do not give legal advice. If you want to know anything connected with Virgil, Plautus or Ennius, you may ask me.

It is a question from Ennius then, master,
said I,
that I am asking. For it was Ennius who used those words.
And when the grammarian said in great surprise that the words were unsuited to poetry and that they were not to be found anywhere in the poems of Ennius, I quoted from memory the following lines from the eighth book of the Annals; for it chanced that I remembered them because of their particularly striking character: [*](vv. 268 ff., Vahlen.)

  1. Wisdom is driven forth and force prevails;
  2. They scorn the speaker good, the rude soldier love.
  3. v3.p.449
  4. Contending not with learning nor abuse,
  5. They join in strife, not laying claim by law,
  6. But, seeking with the sword both wealth and power,
  7. With force resistless rush.

When I had recited these verses from Ennius, the grammarian rejoined:

Now I believe you. But I would have you believe me, when I say that Quintus Ennius learned this, not from his reading of the poets, but from someone learned in the law. Do you too then go and learn from the same source as Ennius.

I followed the advice of this teacher, when he referred me to another from whom I could learn what he ought to have taught me himself: And I thought that I ought to include in these notes of mine what I have learned from jurists and their writings, since those who are living in the midst of affairs and among men ought not to be ignorant of the commoner legal expressions. Manum conserere,

to lay on hands.
. . . For with one's opponent to lay hold of and claim in the prescribed formula anything about which there is a dispute, whether it be a field or something else, is called vindicia, or
a claim.
A seizing with the hand of the thing or place in question took place in the presence of the praetor according to the Twelve Tables, in which it was written [*](vi. 5.) "If any lay on hands in the presence of the magistrate." [*](Cf. xx. i. 48; see Allen, Remnants of Early Latin, p. 85.) But when the boundaries of Italy were extended and the praetors were greatly occupied with legal business, they found it hard to go to distant places to settle claims. Therefore it became
v3.p.451
usual by silent consent, though contrary to the Twelve Tables, for the litigants not to lay on hands in court in the presence of the praetor, but to call for
a laying on of hands according to law
; that is, that the one litigant should summon the other to the object in question, to lay hands on it according to law, and that they should go together to the field under dispute and bring some earth from it to the city to the praetor's court, for example one clod, and should lay claim to that clod, as if it were the whole field. Accordingly Ennius, wishing to describe such action, said that restitution was demanded, not by legal processes, such as are carried on before a praetor, nor by a laying on of hands according to law, but by war and the sword, and by genuine and resistless violence; and he seems to have expressed this by comparing that civil and symbolic [*](festuca,a stalk or stem, was used of the rod with which slaves were touched in the ceremony of manumission. Here festucariam (a a(/pac lego/menon) is extended in meaning to include any symbolic legal process.) power which is exercised in name only and not actually, with warlike and sanguinary violence.

The meaning of the word sculna, used by Marcus Varro.

PUBLIUS LAVINIUS is the author of a carefully written book, entitled On Vulgar Words. In it he wrote that scublna was a colloquial form for seculna,

for which,
says he,
more elegant speakers use sequester, or' arbiter.'
Each of these words is derived from sequor, because both parties
follow
the decision of the arbiter who is chosen. Lavinius
v3.p.453
reminds us in the same book that sculna was written in the division of Marcus Varro's Logistorica entitled Caius. [*](Frag. 37, Riese.) But that which was deposited with the arbiter they spoke of as sequestro positum,
deposited for arbitration,
using the adverb sequestro. Cato, in his speech On Ptolemy, against Thermus, says: [*](x. 3, Jordan.)
By the immortal gods, do not. . . .