Noctes Atticae

How Favorinus discoursed when I consulted hint about the duty of a judge.

AT the time when I was first chosen by the praetors to be one of the judges in charge of the suits which are called

private,

[*](See note on xii. 13. 1.) I hunted up books written in both languages on the duty of a judge, in order that, being a young man, called from poets' tales and orators' perorations to preside in court, I might from lack of the

living voice,

as they say, gain legal lore from so-called

mute counsellors.

And with regard to postponements and delays and some other legal principles I was advised and helped by the Julian Law itself [*](A law of Julius Caesar and Augustus regulating criminal processes.) and by the commentaries of Masurius Sabinus [*](Jur. Civ. iii. 3, Bremer.) and some other jurists. [*](ii. 2, p. 567, Bremer.) But in those complicated cases which often come up, and in the perplexity arising from conflicting opinions, such books gave me no aid at all. For although the opinions of judges ought to be formed from the conditions of the cases before them, yet there are certain general principles and precepts by which, before hearing a case, the judge ought to guard and prepare himself against the uncertain event of future difficulties; as, for example, an inexplicable perplexity in coming to an opinion once befell me.

A sum of money was claimed before me, which was said to have been paid and counted out; [*](i.e. advanced or loaned by the claimant.) but the claimant did not show this by documents or witnesses, but relied upon very slender arguments. It was clear, however, that he was a thoroughly good man, of well-known and tested integrity and of blameless life, and many striking instances of his probity and honesty were presented. On the other hand, the man upon whom the claim was made was shown to be of no substance, of base and evil life, often convicted of lying, and full of treachery and fraud. Yet lie, along with his numerous advocates, noisily protested that the payment of the money ought to be shown in the usual way, by a

receipt for payment,

by a

book of accounts,

by

producing a signature,

by

a sealed deed,

or by the

testimony of witnesses

; and if it could be shown in none of these ways, that he ought surely to be dismissed at once and his accuser found guilty of blackmail. He maintained that the testimony relating to the life and conduct of the two parties was irrelevant; for this was a case of claiming money before a private judge, not a question of morals inquired into by the censors.

Thereupon some friends of mine, whom I had asked to aid me with their advice, experienced men with a reputation gained in acting as advocates and in the business of the forum, who were always inclined to act in haste because of the suits everywhere demanding attention, declared there was no need of sitting longer and that there was no doubt that the defendant ought to be acquitted, since it could not be shown in any of the usual ways that he had received the money. But when I contemplated the men, one abounding in honesty, the other in baseness and of a most shameful and degraded life, I could not by any means be argued into an acquittal. I therefore ordered a postponement and from the bench I proceeded to go to the philosopher Favorinus, with whom I associated a great deal at Rome at that time. I told him the whole story of the suit and of the men, as it had been related to me, begging that with regard both to the matter about which I was then in doubt, as well as to others which I should have to consider in my position as judge, he should make me a man of greater wisdom in such affairs.

Then Favorinus, after commending my scrupulous hesitation and my conscientiousness said:

The question which you are now considering may seem to be of a trifling and insignificant character. But if you wish me to instruct you as to the full duties of a judge, this is by no means a fit place or time; for such a discussion involves many intricate questions and requires long and anxious attention and consideration. For-to touch at once upon a few leading questions for your benefit-the first query relating to the duty of a judge is this. If a judge

v3.p.27

chance to have knowledge of a matter which is brought to trial before him, and the matter is clearly known and demonstrated to him alone from some external circumstance or event, before it has begun to be argued or brought into court, but nevertheless the same thing is not proved in the course of the trial, ought he to decide in accordance with what he knew beforehand, or according to the evidence in the case? This question also,

said he, "is often raised, whether it is fitting and proper for a judge, after a case has been heard, if there seems to be an opportunity for compromising the dispute, to postpone the duty of a judge for a time and take the part of a common friend and peace-maker, as it were. And I know that this further is a matter of doubt and inquiry, whether a judge, when hearing a suit, ought to mention and ask about the things which it is for the interest of one of the parties to the suit to mention and inquire, even if the party in question neither mentions nor calls for them. For they say that this is in fact to play the part of an advocate, not of a judge.

"Besides these questions, there is disagreement also on this point, whether it is consistent with the Practice and office of a judge by his occasional remarks so to explain and set forth the matter and he case which is being tried, that before the time of his decision, as the result of statements which at he time are made before him in a confused and doubtful form, he gives signs and indications of the motions and feelings by which he is affected on each occasion and at every time. For those judges who give the impression of being keen and quick hink that the matter in dispute cannot be examined

and understood, unless the judge by frequent questions and necessary interruptions makes his own opinion clear and grasps that of the litigants. But, on the other hand, those who have a reputation for calmness and dignity maintain that the judge ought not, before giving his decision and while the case is being pleaded by both parties, to indicate his opinion whenever he is influenced by some argument that is brought forward. For they say that the result will be, since one emotion of the mind after another must be excited by the variety of points and arguments, that such judges will seem to feel and speak differently about the same case and almost at the same time. [*](Tempore evidently refers to the whole period of the trial; Favorinus seems to use the word in a double sense to emphasize his point.)

But,

said he, "about these and other similar discussions as to the duty of a judge I shall attempt to give you my views later, when we have leisure, and I will repeat the precepts of Aelius Tubero on the subject, which I have read very recently. But so far as concerns the money which you said was claimed before your tribunal, I advise you, by Heaven! to follow the counsel of that shrewdest of men, Marcus Cato; for he, in the speech which he delivered For Lucius Turius against Gnaeus Gellius, [*](li., Jordan.) said that this custom had been handed down and observed by our forefathers, that if a question at issue between two men could not be proved either by documents or witnesses, then the question should be raised before the judge who was trying the case which of the two was the better man, and if they were either equally good or equally bad, that then the one upon whom the claim was made should be believed and the verdict should be given in his favour. But in this case about which you are in doubt the claimant is a person of the highest character and the one on whom the claim is made is the worst of men, and there are no witnesses to the transaction between the two. So then go and give credit to the claimant and condemn the one on whom the claim is made, since, as you say, the two are not equal and the claimant is the better man."

This was the advice which Favorinus gave me at that time, as became a philosopher. But I thought that I should show more importance and presumption than became my youth and humble merit, if I appeared to sit in judgment on and condemn a man from the characters of the disputants rather than from the evidence in the case; yet I could not make up my mind to acquit the defendant, and accordingly I took oath that the matter was not clear to me and in that way I was relieved from rendering a decision. The words of the speech of Marcus Cato which

Favorinus mentioned are these:

And I have learnt this from the tradition of our ancestors: if anyone claim anything from another, and both are equally either good or bad, provided there are no witnesses to the transaction between the two, the one from whom the claim is made ought rather to be credited. Now, if Gellius had made a wager [*](See note on vi. 11. 9.) with Turio on the issue, ' Provided Gellius were not a better man than Turio,' no one, I think, would be so mad as to decide that Gellius is better than Turio; if Gellius is not better than Turio, the one from whom the claim is made ought preferably to be credited.

Whether Plato and Xenophon were rivals and not on good terms with each other.

THOSE who have written most carefully and thoroughly about the life and character of Xenophon and Plato have expressed the belief that they were not free from certain secret and concealed feelings of enmity and rivalry of each other, and they have set forth some conjectural evidence of this, drawn from their writings. These are in fact of this sort: that Plato in his great number of works nowhere makes mention of Xenophon, nor, on the other hand, does Xenophon mention Plato in his writings, although both men, and in particular Plato in the dialogues which he wrote, mention many followers of Socrates. This too they thought was an indication of no sincerely friendly feeling: that Xenophon in opposition to that celebrated work of Plato, which he wrote on the best form of constitution and of governing a city-state, having barely read the two books of Plato's work which were first made public, proposed a different mode of government (to wit, a monarchy) in the work entitled Paidei/as Ku/rou, or The Education of Cyrus. They say that Plato was so disturbed by that conduct and book of his, that having made mention of king Cyrus in one of his own books, in order to criticize and belittle Xenophon's work he said [*](De Legg. 12, p. 694, c.) that Cyrus was indeed a strong and active man, but

had by no means had a fitting education

; for these are Plato's words about Cyrus.

Moreover, they think that this also is added to

what I have already said: that Xenophon, in the book which he wrote as records of the sayings and doings of Socrates, [*](Memorabilia, i. l. ll.) asserts that Socrates never discussed the causes and laws of the heavens and of nature, and that he never touched upon or approved the other sciences, called by the Greeks maqh/mata which did not contribute to a good and happy life; accordingly, he says that those who have attributed discourses of that kind to Socrates are guilty of a base falsehood.

But when Xenophon wrote this,

they say,

The of course refers to Plato, in whose works Socrates discourses on physics, music and geometry.

But if anything of this kind was to be believed, or even suspected, in noble and dignified men, I do not believe that the motive was hostility or envy, or a contest for gaining greater glory; for such considerations are wholly alien to the character of philosophers, among whom those two were in all men's judgment pre-eminent. What then is the reason for that opinion? Undoubtedly this: the mere equality and likeness of kindred talents, even though the desire and inclination of contention be absent, nevertheless create an appearance of rivalry. For when two or more men of great intellectual gifts, who have gained distinction in the same pursuit, are of equal or nearly equal fame, then there arises among their various partisans emulation in expressing an estimate of their efforts and merit. Then later, from the contention of others, the contagion of rivalry spreads to the men themselves, and while they are pressing on to the same goal of honour, the race is so even, or almost even, [*](For ambiguus in this sense see Virg. Aen. v. 326.) that it comes imperceptibly under a suspicion of rivalry, not from any purpose of their own, but from the zeal of their partisans. [*](They were not rivals, but both equally eager to attain virtue. Thus they seen like competitors in a race, and as they run so that you can hardly tell which leads, their partisans insist on regarding them as rivals.) So then Xenophon and Plato, two stars of Socrates' charming philosophy, were believed to contend with and rival each other, because others strove to show that one or the other was the superior, and because two eminent characters, when they are labouring side by side for a lofty aim, beget a kind of appearance of rivalry and competition.

That Chrysippus skilfully and vividly represented the likeness of Justice in melodious and picturesque language.

MOST worthily, by Heaven! and most elegantly did Chrysippus, in the first book of his work entitled On Beauty and Pleasure, depict the face and eyes of Justice, and her aspect, with austere and noble word-painting. For he represents the figure of Justice, and says that it was usually represented by the painters and orators of old in about the following manner:

Of maidenly form and bearing, with a stern and fearsome countenance, a keen glance of the eye, and a dignity and solemnity which was neither mean nor cruel, but awe-inspiring.

From the spirit of this representation he wished it to be understood that the judge, who is the priest of Justice, ought to be dignified, holy, austere, incorruptible, not susceptible to flattery, pitiless and inexorable towards the wicked and guilty, vigorous, lofty, and powerful, terrible by reason of the force and majesty of equity and truth. Chrysippus' own words about Justice are as follows:

She has the title of virgin as a symbol of her purity and an indication that she has never given way to evil-doers, that she has never yielded to soothing words, to prayers and entreaties, to flattery, nor to anything of that kind. Therefore she is properly represented too as stern and dignified, with a serious expression and a keen, steadfast glance, in order that she may inspire fear in the wicked and courage in the good; to the latter, as her friends, she presents a friendly aspect, to the former a stern face.

I thought it the more necessary to quote these words of Chrysippus, in order that they might be before us for consideration and judgment, since, on hearing me read them, some philosophers who are more sentimental in their views called that a representation of Cruelty rather than of Justice.

The strife and contention of two eminent grammarians at Rome as to the vocative case of egregius.

ONCE upon a time, wearied with constant writing, I was walking in the park of Agrippa [*](The campus Agrippae, laid out by the famous minister of Augustus, was finished and dedicated by the emperor in 7 B.C. It extended from the line of the aqua Virgo on the south at least as far as the modern via S. Claudio on the north, and from the via Lata to the slope of the Quirinal hill, although its eastern boundary is quite uncertain; see Platner, Topog.,2 p. 477.) for the purpose of relieving and resting my mind. And there, as it chanced, I saw two grammarians of no small repute in the city of Rome, and was a witness of a violent dispute between them, one maintaining

that vir egregi was the proper form of the vocative case, the other vir egregie.

The argument of the one who thought that we should say egregi was of this sort:

Whatever nouns or words,

said he,

end in the nominative singular in the syllable us preceded by i, in the vocative case terminate in the letter i, as Caelius Caeli, modius modi, tertius terti, Accius Acci, Titius Titi, and the like; so then egregious, since it ends in the syllable us in the nominative and the letter i precedes that syllable, must in the vocative singular have i for the final letter, and therefore it is correct to say egregi, not egregie. For divus and rivus and clivus do not end in the syllable us, but in that which ought to be written with two us, and in order to indicate that sound a new letter was devised, which was called the digamma.

[*](The Greek digamma had practically the form of Latin F and the pronunciation of Latin V (the semi-vowel). The Romans used the character to represent the sound of f, at first with the addition of the aspirate h (as in heehawed, C.I.L. i2. 3 and xiv. 4123) and afterwards alone. Since V was used both for the vowel u and the semi-vowel v, the emperor Claudius introduced an inverted digamma (v), to represent the latter sound; see Suet. Claud. xii. 3 and (e.g.) C.I.L. vi. 919. The writing of F for V, to which Gellius seems to refer, was apparently confined to a few grammarians; see Cassiodorus, vii. 148. 8 K and Priscian, ii, 11. 5 K.) When the other heard this, he said: "O egreie grammatice, or if you prefer, egregissime, tell me, I pray you, what is the vocative case of, inscius, impius, sobrius, ebrius, proprius, propitious, anxius, and contrarius, which end in the syllable us and have the letter i before the final syllable? For shame and modesty prevent me from pronouncing them according to your rule." Now the other, overcome by the accumulation of so many words against him, remained silent for a time; but then he nevertheless rallied, and upheld and defended that same rule which he had laid down, maintaining that proprius, propitius, anxius and contrarius ought to have the same form in the vocative case as adversarius and extrarius; that inscius also and impius and ebrius and sobrius were somewhat less commonly, nevertheless more correctly, made to end in that same case in the letter i rather than e. But as this contest of theirs was likely to be continued for some time, I did not think it worth while to listen to those same arguments any longer, and I left them shouting and wrangling.

Of what kind are the things which have the appearance of learning, but are neither entertaining nor useful; and also of changes in the names of several cities and regions.

A FRIEND of mine, a man not without fame as a student of literature, who had passed a great part of his life among books, said to me:

I should like to aid and adorn your Nights,

at the same time presenting me with a book of great bulk, overflowing, as he himself put it, with learning of every kind. He said that he had compiled it as the result of wide, varied and abstruse reading, and he invited me to take from it as much as I liked and thought worthy of record. I took the book eagerly and gladly, as if I had got possession of the horn of plenty, and shut myself up in order to read it without interruption. But what was written there was, by Jove! merely a list of curiosities: the name of the man who was first called a

grammarian

; the number of famous men named Pythagoras and Hippocrates; Homer's description [*](Odyss. xxii. 128, 137.) of the laurh/, or

narrow passage,

in the house of Ulysses; why Telemachus did not touch Pisistratus, who was lying beside him, with his hand, but awakened him by a kick; [*](Odyss. xv. 44.) with what kind of bolt Euryclia shut in Telemachus; [*](Odyss. i. 441.) and why the same poet did not know the rose, but did know oil made from roses. [*](Iliad xxiii. 186.) It also contained the names of the companions of Ulysses who were seized and torn to pieces by Scylla; [*](Odyss. xii. 245.) whether the wanderings of Ulysses were in the inner sea, as Aristarchus believed, [*](p. 244, Lehrs.) or in the outer sea, according to Crates. There was also a list of the isopsephic verses in Homer; [*](That is, those whose letters, treated as figures, amounted to the same sum, thus Iliad vii. 264 and 265 = 3498. See Suet. Nero xxxix. 2 and note a (L.C.L.).) what names in the same writer are given in the form of an acrostic; what verse it is in which each word is a syllable longer than the preceding word; [*](An example is Iliad iii. 182, w)= ma/kar )Atrei/dh moirhgene\s o)libiodai/mwn.) by what rule each head of cattle produces three offspring each year; [*](Odyss. iv. 86.) of the five layers with which the shield of Achilles was strengthened, whether the one made of gold was on top or in the middle; [*](Iliad xx. 269.) and besides what regions and cities had had a change of name, as Boeotia was formerly called Aonia, Egypt Aeria, Crete by the same name Aeria, Attica Acte, Corinth Ephyre, Macedonia Emathia, Thessaly Haemonia, Tyre Sarra, Thrace Sithonia, Paestum Poseidonia. [*](The original name was Poseidwni/a; Poseidw/nion was in Pallene. Gellius seems to have made a slip. Poseidw/ni/on means a temple of Poseidon.) These things and many others of the same kind were included in that book. Hastening to return it to him at once, I said:

I

v3.p.47

congratulate you, most learned sir, on this display of encyclopaedic erudition; but take back this precious volume, which does not have the slightest connection with my humble writings. For my Nights, which you wish to assist and adorn, base their inquiries especially on that one verse of Homer which Socrates said was above all other things always dear to him [*](Odyss. iv. 392.) Whate'er of good and ill has come to you at home.

[*](The emphasis is on the last two words. Socrates thought that the chief value of the study of philosophy was its effect on the student's own life and character. Gellius apparently means that he is collecting materials for home consumption; see Praef. i, ut liberis meis partae istiusmodi remissiones essent.)

That Marcus Varro presented Gnaeus Pompeius, when he was consul elect for the first time, with a commentary, which Varro himself called Ei)sagwgiko/s, [*](The word means Introductory. It was what we should call a Handbook of Parliamentary Practice.) on the method of conducting meetings of the senate.

GNAEUS POMP/EIUS was elected consul for the first time with Marcus Crassus. When he was on the point of entering upon the office, because of his long military service he was unacquainted with the method of convening and consulting the senate, and of city affairs in general. He therefore asked his friend Marcus Varro to make him a book of instructions (Ei)sagwgiko/s, as Varro himself termed it), from which he might learn what he ought to say and do when he brought a measure before the House. Varro in letters which he wrote to Op

pianus, contained in the fourth book of his Investigations in Epistolary Form, says [*](i, p. 195, Bipont.) that this notebook which he made for Pompey on that subject was lost; and since what he had previously written was no longer in existence, he repeats in those letters a good deal bearing upon the same subject. [*](i, p. 125, Bremer.)

First of all, he tells us there by what magistrates the senate was commonly convened according to the usage of our forefathers, naming these:

the dictator, consuls, praetors, tribunes of the commons, interrex, and prefect of the city.

No other except these, he said, had the right to pass a decree of the senate, and whenever it happened that all those magistrates were in Rome at the same time, then he says that the first in the order of the list which I have just quoted had the prior right of bringing a matter before the senate; next, by an exceptional privilege, the military tribunes also who had acted as consuls, [*](From 444 to 384 B.C. military tribunes with consular authority took the place of the consuls.) and likewise the decemvirs, [*](The decemviri legibus scribundis, who drew up the Twelve Tables in 450 B.C.) who in their day had consular authority, and the triumvirs [*](The second triumvirate of Antony, Octavian and Lepidus; cf. iii. 9. 4 and the note.) appointed to reorganize the State, had the privilege of bringing measures before the House. Afterwards he wrote about vetoes, and said that the right to veto a decree of the senate belonged only to those who had the same authority [*](Potestate is used in the technical sense. The par potestas conferred on the colleague of the presiding officer the right to interpose his veto (Abbott, Roman Political Institutions, § 274).) as those who wished to pass the decree, or greater power. He then added a list of the places in which a decree of the senate might lawfully be made, and he showed and maintained that this was regular only in a place which had been appointed by an augur, and called a

temple.

[*](A templum (from temno) was originally a sacred precinct.) Therefore in the Hostilian Senate House [*](The curia Hostilia, on the Comitium (see iv. 5. 1 and note 3), was the earliest senate house, ascribed to Tullus Hostilius, the third king of Rome. It was restored by Sulla in 80 B.C., rebuilt by Faustus Sulla after its destruction by fire in 52 B.C. The curia Julia was begun by Caesar in 45 B. c. The curia Pompei, in which Caesar was murdered, was built by Pompey in 55 B.C., near his theatre. Whether it was an exedra of his colonnade, or a separate building, is uncertain.) and the Pompeian, and later in the Julian, since those were unconsecrated places,

temples

were established by the augurs, in order that in those places lawful decrees of the senate might be made according to the usage of our forefathers. In connection with which he also wrote this, that not all sacred edifices are temples, and that not even the shrine of Vesta was a temple. [*](The shrine or temple of Vesta, in spite of its sacred character, was not a consecrated temnplum. It was said to) After this he goes on to say that a decree of the senate made before sunrise or after sunset was not valid, and that those through whom a decree of the senate was made at that time were thought to have committed an act deserving censure. Then he gives much instruction on the same lines: on what days it was not lawful to hold a meeting of the senate; that one who was about to hold a meeting of the senate should first offer up a victim and take the auspices; that questions relating to the gods ought to be presented to the senate before those affecting men; then further that resolutions should be presented indefinitely, [*](That is, in general terms, as in Livy xxii. 1. 5, cum (consul) de re public rettuliset, i.e. had proposed a general discussion of the interests of the State.) as affecting the general welfare, or definitely on specific cases; that a decree of the senate was made in two ways: either by division if there was general agreement, or if the matter was disputed, by calling for the opinion of each senator; furthermore the senators ought to have been built by Numa, and was certainly very ancient. It was burned and rebuilt several times, the last restoration being in A.D. 196 by Julia Domna, wife of Septimius Severus. be asked their opinions in order, beginning with the grade of consul. And in that grade in former times the one to be called upon first was always the one who had first been enrolled in the senate; but at the time when he was writing he said that a new custom had become current, through partiality and a desire to curry favour, of asking first for the opinion of the one whom the presiding officer wished to call upon, provided however that he was of consular rank. [*](Cf. Suet. Jul. xxi.) Besides this he discoursed about seizure of goods [*](In consequence of the issue of a writ of execution; see Mommsen, Statsr. i. 160, and cf. Suet. Jul. xvii. 2.) and the imposing of a fine upon a senator who was not present when it was his duty to attend a meeting. These and certain other matters of that kind, first published in the book of which I spoke above, Marcus Varro treated in a letter written to Oppianus.

But when he says that a decree of the senate is commonly made in two ways, either by calling for opinions or by division, that does not seem to agree with what Ateius Capito has written in his Miscellanies. For in Book VIIII Capito says [*](Frag. 3, Huschke; 5, Bremer.) that Tubero asserts [*](Frag. 1, Huschke; De Off. Sen. 1, Bremer.) that no decree of the senate could be made without a division, since in all decrees of the senate, even in those which are made by calling for opinions, a division was necessary, and Capito himself declares that this is true. But I recall writing on this whole matter more fully and exactly in another place. [*](iii. 18.)

Inquiry and difference of opinion as to whether the praefect appointed for the Latin Festival has the right of convening and consulting the senate.

JUNIUS declares [*](Frag. 10, Huschke; id., Bremer.) that the praefect left in charge of the city because of the Latin Festival [*](The feriae Latinae were held on the Alban Mount in April at a date set by the consuls. Since the consuls must be present at the celebration, they appointed a prafectus urbi to take their place in Rome. Under the empire he was called praefectus urbi fcriarum Latinarum, to distinguish him from the praefectus urbi instituted by Augustus (Suet. Aug. xxxvii). Since a praefectus had the powers of the officer or officers in whose place he was appointed, Varro and Capito are right in theory; but since very young men were often appointed to the office (Suet. Nero, vii. 2; S.H.A. vita Marci, iv, etc.), Junius may have been right as to the actual practice.) may not hold a meeting of the senate, since he is neither a senator nor has he the right of expressing his opinion, because he is made praefect at an age when he is not eligible to the senate. But Marcus Varro in the fourth book of his Investigations in Epistolary Form [*](p. 196, Bipont.) and Ateius Capito in the ninth of his Miscellanies [*](Frag. 4, Huschke; id., Bremer.) assert that the praefect has the right to convene the senate, and Capito declares that Varro agrees on this point with Tubero, contrary to the view of Junius:

For the tribunes of the commons also,

says Capito, [*](De Off. Sen. 2, Bremer.)

had the right of convening the senate although before the bill of Atinius [*](The date of this bill is not known.) they were not senators.