Noctes Atticae

That a sin is not removed or lessened by citing in excuse similar sins which others have committed; with a passage front a speech of Demosthenes on that subject.

THE philosopher Taurus once reproved a young man with severe and vigorous censure because he had turned from the rhetoricians and the study of eloquence to the pursuit of philosophy, declaring that he had done something dishonourable and shameful. Now the young man did not deny the allegation, but urged in his defence that it was commonly done and tried to justify the baseness of the fault by citing examples and by the excuse of custom. And then Taurus, being the more irritated by the very nature of his defence, said:

Foolish and worthless fellow, if the authority and rules of philosophy do not deter you from following bad examples, does not even the saying of your own celebrated Demosthenes occur to you? For since it is couched in a polished and graceful form of words, it might, like a sort of rhetorical catch, the more easily remain fixed in your memory. For,

said he,

if I do not forget what as a matter of fact I read in my early youth, these are the words of Demosthenes, spoken against one who, as you now do, tried to justify and excuse his own sin by those of others: [*](Adv. Androt. 7, p. 595. ) 'Say not, Sir, that this has often been done, but that it ought to be so done; for if anything was ever done contrary to the

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laws, and you followed that example, you would not for that reason justly escape punishment, but you would suffer much more severely. For just as, if anyone had suffered a penalty for it, you would not have proposed this, so if you suffer punishment now, no one else will propose it.'

Thus did Taurus, by the use of every kind of persuasion and admonition, incline his disciples to the principles of a virtuous and blameless manner of life.

The meaning of rogatio, lex, plebisscitum and privilegium, and to what extent all those terms differ.

I HEAR it asked what the meaning is of lex, plebisscitum, rogatio, and privilegium. Ateius Capito, a man highly skilled in public and private law, defined the meaning of lex in these words: [*](Fr. 22, Huschke; Coniect. fr. 13, Bremer.)

A law,

said he,

is a general decree of the people, or of the commons, answering an appeal [*](That is, a royatio.) made to them by a magistrate.

If this definition is correct, neither the appeal for Pompey's military command, nor about the recall of Cicero, nor as to the murder or Clodius, nor any similar decrees of the people of commons, can be called laws. For they are not general decrees, and they are framed with regard, not to the whole body of citizens, but to individuals. Hence they ought rather to be called privilegia, or

privileges,

since the ancients used priva where we now use singula (private or individual). This word Lucilius used in the first book of his Satires: [*](v. 49, Marx.)

1. I'll give them, when they come, each his own (priva) piece
2. Of tunny belly and acarne [*](The acarne was a kind of sea-fish.) heads.

Capito, however, in the same definition divided [*](Fr. 23, Huschke; 14, Bremer.) the plebes, [*](The older form of the nominative plebs.) or

commons,

from the populus, or

people,

since in the term

people

are embraced every part of the state and all its orders, but

commons

is properly applied to that part in which the patrician families of the citizens are not included. Therefore, according to Capito, a plebisscitum is a law which the commons, and not the people, adopt.

But the head itself, the origin, and as it were the fount of this whole process of law is the rogatio, whether the appeal (rogatio) is to the people or to the commons, on a matter relating to all or to individuals. For all the words under discussion are understood and included in the fundamental principle and name of rogatio; for unless the people or commons be appealed to (rogetur), no decree of the people or commons can be passed.

But although all this is true, yet in the old records we observe that no great distinction is made among the words in question. For the common term lex is used both of decrees of the commons and of

privileges,

and all are called by the indiscriminate and inexact name rogatio.

Even Sallust, who is most observant of propriety in the use of words, has yielded to custom and applied the term

law

to the

privilege

which was passed with reference to the return of Gnaeus Pompeius. The passage, from the second book of his Histories, reads as follows: [*](ii. 21, Maur.)

For when Sulla, as consul, proposed a law (legem) touching his return, the tribune of the commons, Gaius Herennius, had vetoed it by previous arrangement.