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

defective,

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

But,

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,

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

For,

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,

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.

What Servius Sulpicius wrote in his work On Dowries about the law and usage of betrothals in early times.

IN the book to which he gave the title On Dowries Servius Sulpicius wrote [*](Fr. 2, Huschke; p. 226, Bremer.) that in the part of Italy known as Latium betrothals were regularly contracted according to the following customary and legal practice.

One who wished to take a wife,

demanded of him from whom she was to be received a formal promise that she would be given in marriage. The man who was to take the woman to wife made a corresponding promise. That contract, based upon pledges given and received, was called sponsalia, or 'betrothal.' Thereafter, she who had been promised was called sponsa, and he who had asked her in marriage, sponsus. But if, after such

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an interchange of pledges, the bride to be was not given in marriage, or was not received, then he who had asked for her hand, or he who had promised her, brought suit on the ground of breach of contract. The court took cognizance of the case. The judge inquired why the woman was not given in marriage, or why she was not accepted. If no good and sufficient reason appeared, the judge then assigned a money value to the advantage to be derived from receiving or giving the woman in marriage, and condemned the one who had made the promise, or the one who had asked for it, to pay a fine of that amount.

Servius Sulpicius says that this law of betrothal was observed up to the time when citizenship was given to all Latium by the Julian law. [*](90 B.C.) The same account as the above was given also by Neratius in the book which he wrote On Marriage. [*](Fr. 1, Bremer.)

A story which is told of the treachery of Etruscan diviners; and how because of that circumstance the boys at Rome chanted this verse all over the city:

Bad counsel to the giver is most ruinous.

The statue of that bravest of men, Horatius Cocles, which stood in the Comitium [*](The Comitium, or place of assembly (com-, co), was a templum, or inaugurated plot of ground, orientated according to the points of the compass, at the north-western corner of the Forum Romanum.) at Rome, was struck by lightning. To make expiatory offerings because of that thunderbolt, diviners were summoned from Etruria. These, through personal and national hatred of the Romans, had made up their minds to give false directions for the performance of that rite.

They accordingly gave the misleading advice that the statue in question should be moved to a lower position, on which the sun never shone, being cut off by the high buildings which surrounded the place on every side. When they had induced the Romans to take that course, they were betrayed and brought to trial before the people, and having confessed their duplicity, were put to death. And it became evident, in exact accord with what were later found to be the proper directions, that the statue ought to be taken to an elevated place and set up in a more commanding position in the area of Vulcan; [*](On the lower slope of the Capitoline Hill, at the northwest corner of the Forum.) and after that was done, the matter turned out happily and successfully for the Romans. At that time, then, because the evil counsel of the Etruscan diviners had been detected and punished, this clever line is said to have been composed, and chanted by the boys all over the city: [*](p. 37, Bährens, who needlessly changes the reading.)

1. Bad counsel to the giver is most ruinous.

This story about the diviners and that senarius [*](The senarius was an iambic trimeter, consisting of six iambic feet, or three dipodies. The early Roman dramatic poets allowed substitutions (the tribrach, irrational spondee, irrational anapaest, cyclic dactyl, and proceleusmatic) in every foot except the last; others conformed more closely to the Greek models.) is found in the Annales Maximi, in the eleventh book, [*](Fr. 3, Peter.) and in Verrius Flaccus' first book of Things Worth Remembering. [*](p. xiii, Müller.) But the verse appears to be a translation of the Greek poet Hesiod's familiar line: [*](Works and Days, 166.)

1. And evil counsel aye most evil is
2. To him who gives it.

A quotation from an early decree of the senate, which provided that sacrifice should be made with full-grown victims because the spears of Mars had moved in the sanctuary; also an explanation of the meaning of hostiae succidaneae and likewise of porca praecidanea; and further, that Ateius Capito called certain holidays praecidaneae.

NOT only was an earthquake regularly reported, and expiatory offerings made on that account, but I also find it mentioned in early records, that report was made to the senate when the spears of Mars [*](The spears sacred to Mars and the sacred shields (ancilia) were said to move of their own accord when danger threatened. According to Dio, xliv. 17, they shook violently before the death of Caesar.) had moved in the sanctuary in the Regia. [*](A building in the Roman Forum, near the temple of Vesta, the official headquarters of the pontifex maximus. According to tradition, it was built and dwelt in by Numa. It contained a sanctuary of Mars, in which the sacred spears and shields (ancilia) were sometimes kept. Dio, however, xliv. 17, tells us that at the time of Caesar's death they were in his house, i. e. the domus public (see Suet. Jul. xlvi.).) Because of such an occurrence, a decree of the senate was passed in the consulship of Marcus Antonius and Aulus Postumius, [*](99 B. C.) of which this is a copy:

Whereas Gaius Julius, son of Lucius, the pontifex, has reported that the spears of Mars have moved in the sanctuary in the Regia, the senate has therefore decreed with reference to that matter, that Marcus Antonius the consul should make expiation to Jupiter and Mars with full-grown victims, and with unweaned victims to such of the other gods as he thought proper. They decided that it should be regarded as sufficient for him to have sacrificed with these. If there should be any need of additional victims, the additional offerings should be made with red victims.

Inasmuch as the senate called some victims succidaneae, it is often inquired what that word means.

1. Should I the victim of your folly be
2. And let you sacrifice my back to it,
3. As substitute for yours?

Now it is said that the victims were called succidaneae —which is equivalent to succaedaneae, the diphthong ae, according to the custom in compound words, being changed to i—because if the expiation was not effected by the first victims, other victims were brought and killed after them; and since these, after the first had already been offered, were substituted for the sake of making atonement and were

slain in succession to

Moreover, it is on the same linguistic principle that praecidanea is applied to those victims which are offered on the day before the regular sacrifices. Also the sow is called praecidalea [*](From prae and caedo, slay beforehand.) which it was usual to offer up to Ceres before the harvesting of the new crops, for the sake of expiation in case any had failed to purify a defiled household, or had performed that rite in an improper manner.

But that a sow and certain victims are called praecidaneae, as I have said, is a matter of common knowledge; that some festivals are called praecidaneae is a fact I think that is not known to the general public. Therefore I have quoted a passage from the fifth book of the treatise which Ateius Capito compiled On Pontifical Law: [*](Fr. 8, Huschke; 1, Bremer.)

Tiberius

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Coruncanius, the pontifex maximus, appointed feriae praecidaneae, or

a preparatory festival,

for a day of ill-omen. The college of pontiffs voted that there need be no religious scruple against celebrating the feriae praecidaneae on that day.

On a letter of the grammarian Valerius Probus, written to Marcellus, regarding the accent of certain Punic names.

VALERIUS PROBUS the grammarian was conspicuous among the men of his time for his learning. He pronounced Hannibalem and Hasdrubalem and Hamilcarem with a circumflex accent on the penult, and there is a letter addressed To Marcellus, in which he asserts that Plautus, [*](Frag. inc. xlii. Götz.) and Ennius and many other early writers pronounced in that way; but he quotes a single line of Ennius alone, from the book entitled Scipio.

That verse, composed in octonarii, [*](The term octonarius is applied both to a trochaic tetrameter acatalectic (as here in the Latin verse) or to an iambic tetrameter acatalectic. It consisted of eight trochaic or iambic feet. Substitutions were allowed in every foot except the last. See note on senarius, p. 329.) I have appended; in it, unless the third syllable of Hannibal's name is circumflexed, [*](In the Latin line the ictus falls on the penult Hánnibális, but the ordinary pronunciation was Hanníbalis.) the metre will halt. The verse of Ennius to which I referred reads thus: [*](Varia, 13, Vahlen2, who reads quaque.)

And where near Hannibal's forces he had camped. [*](Vahlen and the T.L.L. take considerat from consido, Weiss from considero.)

What Gaius Fabricius said of Cornelius Rufinus, an avaricious man, whose election to the consulship he supported, although he hated him and was his personal enemy.

FABRICIUS LUSCINUS was a man of great renown and great achievements. Publius Cornelius Rufinus was, to be sure, a man energetic in action, a good warrior, and a master of military tactics, but thievish and keen for money. This man Fabricius neither respected nor treated as a friend, but hated him because of his character. Yet when consuls were to be chosen at a highly critical period for the State, and that Rufinus was a candidate while his competitors were without military experience and untrustworthy, Fabricius used every effort to have the office given to Rufinus. [*](This was in 290 B.C. at the beginning of the last Samnite war. Rufinus was consul again in 277 B. C.) When many men expressed surprise at his attitude, in wishing an avaricious man, towards whom he felt bitter personal enmity, to be elected consul, he said:

I would rather be robbed by a fellow-citizen than sold [*](That is, sold into slavery by a victorious foe.) by the enemy.

This Rufinus afterwards, when he had been dictator and twice consul, Fabricius in his censorship expelled from the senate [*](In 275 B.C.) on the charge of extravagance, because he possessed ten pounds weight of silver plate. That remark of Fabricius about Rufinus I gave above in the form in which it appears in most historians; but Marcus Cicero, in the second book of the De Oratore, says [*](§268.) that it was not made by Fabricius to others, but to Rufinus himself, when he was thanking Fabricius because he had been elected consul through his help.