Noctes Atticae

That it is by no mears true, as some meticulous artists in rhetoric affirm, that Marcus Cicero, in his book On Friendship, made use of a faulty argument and postulated

the disputed for the admitted

; with a careful discussion and examination of this whole question.

MARCUS CICERO, in the dialogue entitled Laelius, or On Friendship, wishes to teach us that friendship ought not to be cultivated in the hope and expectation of advantage, profit, or gain, but that it should be sought and cherished because in itself it is rich in virtue and honour, even though no aid and no advantage can be gained from it. This thought he has expressed in the following words, put into the mouth of Gaius Laelius, a wise man and a very

dear friend of Publius Africanus [*](§30.)

well, then, does Africanus need my help? No more do I need his. But I love him because of a certain admiration for his virtues; he in turn has affection for me perhaps because of some opinion which he has formed of my character; and intimacy has increased our attachment. But although many great advantages have resulted, yet the motives for our friendship did not arise from the hope of those advantages. For just as we are kindly and generous, not in order to compel a return—for we do not put favours out at interest, but we are naturally inclined to generosity —just so we think that friendship is to be desired, not because we are led by hope of gain, but because all its fruit is in the affection itself.

When it chanced that these words were read in a company of cultured men, a sophistical rhetorician, skilled in both tongues, a man of some note among those clever and meticulous teachers known as texnikoi,/ or

connoisseurs,

who was at the same time not without ability in disputation, expressed the opinion that Marcus Tullius had used an argument which was neither sound nor clear, but one which was of the same uncertainty as the question at issue itself; and he described that fault by Greek words, saying that Cicero had postulated a)ufisbhtou/menon a)nti\ o(mologoume/nou, that is,

what was disputed rather than what was admitted.

For,

said he,

he took benefci, 'the kindly,' and liberales, 'the generous,' to confirm what he said about friendship, although that very question is commonly asked and ought to be asked, with what thought and purpose one who acts liberally and kindly is kind and generous. Whether it is

v3.p.219

because he hopes for a return of the favour, and tries to arouse in the one to whom he is kind a like feeling towards himself, as almost all seem to do; or because he is by nature kindly, and kindness and generosity gratify him for their own sakes without any thought of a return of the favour, which is as a rule the rarest of all.

Furthermore, he thought that arguments ought to be either convincing, or clear and not open to controversy, and he said that the term apodixis, [*](That is, a)po/deicis.) or

demonstration,

was properly used only when things that are doubtful or obscure are made plain through things about which there is no doubt. And in order that he might show that the kind and generous ought not to be taken as an argument or example for the question about friendship, he said:

By the same comparison and the same appearance of reason, friendship in its turn may be taken as an argument, if one should declare that men ought to be kindly and generous, not from the hope of a return, but from the desire and love of honourable conduct. For he will be able to argue in a very similar manner as follows: ' Now just as we do not embrace friendship through hope of advantage, so we ought not to be generous and kindly with the desire of having the favour returned.' He will indeed,

said he,

be able to say this, but friendship cannot furnish an argument for generosity, nor generosity for friendship, since in the case of each there is equally an open question.

It seemed to some that this artist in rhetoric argued cleverly and learnedly, but that as a matter of fact he was ignorant of the true meaning of terms. For Cicero calls a man

kind and generous

in the sense that the philosophers believe those words ought to be used: not of one who, as Cicero himself expresses it, puts favours out at interest, but of one who shows kindness without having any secret reason which redounds to his own advantage. Therefore he has used an argument which is not obscure or doubtful, but trustworthy and clear, since if anyone is truly kind and generous, it is not asked with what motive he acts kindly or generously. For he must be called by very different names if, when he does such things, he does them for his own advantage rather than for that of another. Possibly the criticism made by this sophist might have some justification, if Cicero had said: [*](As quoted in § 2.)

For as we do some kind and generous action, not in order to compel a return.

For it might seem that anyone who was not kindly might happen to do a kind action, if it was done because of some accidental circumstance and not through a fixed habit of constant kindliness. But since Cicero spoke of

kindly and generous people,

and meant no other sort than that which we have mentioned before, it is

with unwashed feet,

[*](Cf. i. 9. 8 (vol. i, p. 49) with the note, and Plautus, Poen. 316, illotis manibus. The reference is to washing before handling sacred objects or performing religious rites. Et verbis is an addition by Gellius, in the sense of hasty, inconsiderate language.) as the proverb says, and unwashed words that our critic assails the argument of that most learned man.

That what Verrius Flaccus wrote about servus recepticius, in his second book On the Obscurities of Marcus Cato, is false.

MARCUS CATO, when recommending the Voconian law, [*](His recommendation of this law is also mentioned by Cicero, Cato Mai. 14, who discusses some features of the law in Verr. ii. 1. 101 ff.; see also xx. 1. 23, below. The law, which in general had to do with inheritances, has been the subject of much discussion; one of its provisions was that no one should make a woman his heir.) spoke as follows: [*](p. 54, 5, Jordan.)

In the beginning the woman brought you a great dowry; then she holds back a large sum of money, which she does not entrust to the control of her husband, but lends it to her husband. Later, becoming angry with him, she orders a servus recepticius, or ' slave of her own,' to hound him and demand the money.

The question was asked what was meant by servus recepticius. At once the books of Verrius Flaccus On the Obscurities of Cato were asked for and produced. In the second book was found the statement [*](p. xvi, Müller.) that servus recepticius was the name applied to a slave that was worthless and of no value, who, after being sold, was returned because of some fault and taken back.

Therefore,

says Flaccus, "a slave of that kind was bidden to hound her husband and demand the money, in order that the man's vexation might be greater, and the insult put upon him still more bitter, for the very reason that a worthless slave dunned him for the payment of money."

But with the indulgence and pardon of those, if such there be, who are influenced by the authority of Verrius Flaccus, this must be said. That recepticius servus in the case of which Cato is speaking is something very different from what Verrius wrote. And this is easy for anyone to understand; for the situation is undoubtedly this: when the woman

gave the dowry to her husband, what she retained of her property and did not give over to her husband she was said to

hold back

(recipere), just as now also at sales those things are said to be

held back

which are set aside and not sold. This word Plautus also used in the Trinumnus in this line: [*](v. 194.)

1. But when he sold the house, this little place
2. Behind it he held back (recepit).

That is, when he sold the house, he did not sell a small part which was behind the house, but held it back. Cato himself too, wishing to describe the woman as rich, says:

The woman brings a great dowry and holds back a large sum of money

; that is, she gives a great dowry and retains possession of a large sum of money. From that property then which she kept for herself after giving her dowry, she lent money to her husband. When she happened to be vexed with her husband and determined to demand the money back, she appoints to demand it from him a seruves recepticius, that is, a slave of her very own, whom she had held back with the rest of the money and had not given as part of her dowry, but had retained; for it was not right for the woman to give such an order to a slave of her husband, but only to one of her very own.

I forbear to say more in defence of this view of mine; for the opinion of Verrius and mine are before you, each by itself; anyone therefore may adopt whichever of the two seems to him the truer.

These words from the Atinian law,

the claim on whatever shall be stolen shall be everlasting,

seemed to Publius Nigidius and Quintus Scaevola to have reference not less to a past theft than to a future one.

THE words of the ancient Atinian law [*](Different from the plebiscitum of xiv. 8. 2. The date is uncertain.) are as follows: [*](Fontes Iur. Rom., p. 45, 6.)

Whatever shall have been stolen, let the right to claim the thing be everlasting.

Who would suppose that in these words the law referred to anything else than to future time? But Quintus Scaevola says [*](Fr. 3, Huschke; Iur. Civ. xvi. 5, Bremer.) that his father [*](Resp. 4, Bremer.) and Brutus [*](Resp. 5, Bremer.) and Manilius, [*](Resp. 5, Bremer.) exceedingly learned men, inquired and were in doubt whether the law was valid in cases of future theft only or also in those already committed in the past; since subruptum erit seems to indicate both times, past as well as future.

Therefore Publius Nigidius, the most learned man of the Roman State, discussed this uncertainty of theirs in the twenty-third book of his Grammatical Notes. [*](Fr. 34, Swoboda.) And he himself too has the same opinion, that the indication of the time is indefinite, but he speaks very concisely and obscurely, so that you may see that he is rather making notes to aid his own memory than trying to instruct his readers. [*](Cf. xvi. 8. 3.) However, his meaning seems to be that est and erit are independent words; when they are used alone, they have and retain their own tense, but when they are joined with a past participle, they lose the force of their own tense, and are transferred to the past. For when I say in campo est, or

he is in the field,

and in comitio est, or

he is in the comitium,

I refer to the present time; also when I say in campo erit (he will be in the field), or in comitio erit (he will be in the comitium), I indicate future time: but when I say factum est, scriptum est or subruptum est, although the verb est is in the present tense, it is nevertheless united with the past and ceases to be present.

Similarly then,

he says,

with regard also to the wording of the law; if you divide and separate these two words subruptum and erit, so that you understand subruptum erit as you would certamen erit, that is, 'there will be a contest,' or sacrificium erit (there will be a sacrifice), then the law will seem to have reference to an act completed in future time; but if you understand the two words to be united and mingled, so that subruptum erit is not two words, but one, and is a single form of the passive inflection, then that word indicates past time no less than future.