Noctes Atticae

On the difference between a disease and a defect, and the force of those terms in the aediles' edict; also whether eunuchs and barren women can he returned, and the various views as to that question.

THE edict of the curule aediles, [*](The aediles, and some other magistrates, issued an edict, or proclamation, at the beginning of their term of office, relating to the matters over which they had jurisdiction. When successive officials adopted and announced the same body of rules (edictum tralaticium), the edict assumed a more or less permanent form and became practically a code of laws.) in the section containing stipulations about the purchase of slaves, reads as follows: [*](F.J.R. p. 214; cf. Hor. Epist. ii. 2. 1 ff.)

See to it that the sale ticket of each slave be so written that it can be known

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exactly what disease or defect each one has, which one is a runaway or a vagabond, or is still under condemnation for some offence.

Therefore the jurists of old raised the question [*](III. p. 510, Bremer.) of the proper meaning of a

diseased slave

and one that was

defective,

and to what degree a disease differed from a defect. Caelius Sabinus, in the book which he wrote [*](Fr. 1, Huschke; 2, Bremer.) On the Edict of t he Curule Aediles, quotes Labeo, [*](Ad. Ed. Aed. fr. 27, Huschke; 1, Bremer.) as defining a disease in these terms:

Disease is an unnatural condition of any body, which impairs its usefulness.

But he adds that disease affects sometimes the whole body and at other times a part of the body. That a disease of the whole body is, for example, consumption or fever, but of a part of the body anything like blindness or lameness.

But,

he continues,

one who stutters or stammers is defective rather than diseased, and a horse which bites or kicks has faults rather than a disease. But one who has a disease is also at the same time defective. However, the converse is not also true; for one may have defects and yet not be diseased. Therefore in the case of a man who is diseased,

says he,

it will be just and fair to state to what extent ' the price will be less on account of that defect.'

With regard to a eunuch in particular it has been inquired whether he would seem to have been sold contrary to the aediles' edict, if the purchaser did not know that he was a eunuch. They say that Labeo ruled [*](Ad. Ed. Aed. fr. 28, Huschke; 12, Bremer.) that he could be returned as diseased; and that Labeo also wrote that if sows were sterile and had been sold, action could be brought on the basis of the edict of the aediles. But in the case of a barren woman, if the barrenness were

congenital they say that Trebatius gave a ruling opposed to that of Labeo. For while Labeo thought [*](Fr. 28; Huschke; 3, Bremer.) that she could be returned as unsound, they quote Trebatius as declaring [*](Fr. 10, Huschke; Resp. 24. Bremer.) that no action could be taken on the basis of the edict, if the woman had been born barren. But if her health had failed, and in consequence such a defect had resulted that she could not conceive, in that case she appeared to be unsound and there was ground for returning her. With regard to a short-sighted person too, one whom we call in Latin luscitiosus, there is disagreement; for some maintain that such a person should be returned in all cases, while others on the contrary hold that he can be returned only if that defect was the result of disease. Servius indeed ruled [*](Fr. 17, Huschke; Resp. 108, Bremer.) that one who lacked a tooth could be returned, but Labeo said [*](Fr. 29, Huschke; 2, Bremer.) that such a defect was not sufficient ground for a return:

For,

says he,

many men lack some one tooth, and most of them are no more diseased on that account, and it would be altogether absurd to say that men are not born sound, because infants come into the world unprovided with teeth.

I must not omit to say that this also is stated in the works of the early jurists, [*](Cael. Sab. ad. ed. fr. 1 ff., Bremer.) that the difference between a disease and a defect is that the latter is lasting, while the former comes and goes. But if this be so, contrary to the opinion of Labeo, which I quoted above, neither a blind man nor a eunuch is diseased.

I have added a passage from the second book of Masurius Sabinus On Civil Law.: [*](Fr. . 5 Huschke; 173 ff., Bremer.)

A madman or a mute, or one who has a broken or crippled limb, or any defect which impairs his usefulness, is

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diseased. But one who is by nature near-sighted is as sound as one who runs more slowly than others.

That before the divorce of Carvilius there were no lawsuits about a wife's dowry in the city of Rome; further, the proper meaning of the word paelex and its derivation.

IT is on record that for nearly five hundred years after the founding of Rome there were no lawsuits and no warranties [*](That is, the repayment of the dowry in case of a divorce was not secured. A cautio was a verbal or written promise, sometimes confirmed by an oath, as in Suet. Aug. xcviii. 2, ius iurandum et cautionem exegit.) in connection with a wife's dowry in the city of Rome or in Latium, since of course nothing of that kind was called for, inasmuch as no marriages were annulled during that period. Servius Sulpicius too, in the book which he compiled On Dowries, wrote [*](Fr. 1, Huschke; p. 227, Bremer.) that security for a wife's dower seemed to have become necessary for the first time when Spurius Carvilius, who was surnamed Ruga, a man of rank, put away his wife because, owing to some physical defect, no children were born from her; and that this happened in the five hundred and twenty-third year after the founding of the city, in the consulship of Marcus Atilius and Publius Valerius. [*](231 B.C.) And it is reported that this Carvilius dearly loved the wife whom he divorced, and held her in strong affection because of her character, but that above his devotion and his love he set his regard for the oath which the censors had compelled him to take, [*](An oath was regularly required by the censors that a man married for the purpose of begetting legal heirs (liberorum quacrendorum causa); cf. Suet. Jul. lii. 3.) that he would marry a wife for the purpose of begetting children.

Moreover, a woman was called paelex, or

concubine,

and regarded as infamous, if she lived on terms of intimacy with a man who had another woman under his legal control in a state of matrimony, as is evident from this very ancient law, which we are told was one of king Numa's: [*](F.J.R., p. 8, fr. 2; I, p. 135, Bremer. )

Let no concubine touch the temple of Juno; if she touch it, let her, with hair unbound, offer up a ewe lamb to Juno.

Now paelex is the equivalent of pa/llac, that is to say, of pallaki/s. [*](Walde, Lat. Etymn. Wörterb. s.v., regards paelex and the Greek pa/llac and pallaki/s, the former in the sense of a young slave, as loan words from the Phoenician-Hebrew pillegesh, concubine. The spelling pellex is due to popular etymology, which associated the word with pellicio, entice.) Like many other words of ours, this one too is derived from the Greek.