« ForrigeFortsett »
never loses and often gains by leaving those referred to a judge to decide with these questions alone. While I am suggesting, instructions. If the judge found that may I add that we may all do one small Trebatius had been ejected by armed force service to our science, for which no new and had not himself been the aggressor by knowledge is wanted ? We may cease to the same means, the injunction would be call it "pbilology.'
made final, and the defendant probably be T. C. Snow. condemned in damages : if his prior aggres
sion were proved or his dispossession not Some points of Roman Law in Prof. Tyrrell's proved, the injunction would drop and in Edition of Cicero's Correspondence. Vols.
some cases the plaintiff would pay a forfeit I., II. Dublin Univ. Press. £1 48.
(cf. Gai iv. 141, 161-165).
There is I think no doubt that the interThis edition has been so heartily and gene- dict referred to is de ui armata (which in rally welcomed that I occupy no space with the Digest is consolidated with that de vi praising it. It is a pleasant and scholarly Dig. xliii. 16). Prof. Tyrrell erroneously work. But I wish even now the editor takes it to be the interdict uti possidetis, would put the various readings at the foot and naturally finds difficulties. He has of the page, and not assume the correctness been misled by the language of Cic. Caecin. of the chronological order adopted by his 22, § 63 and Gai iv. 155, whence he infers predecessors In using it I have noticed a that no exceptiones
allowed when fow passages where he seems to me to have armed force had been used. It is not mistaken the law, and some other slips necessary to assume in either passage that which may be more briefly dealt with. I such a plea as we have here was in question. take the more important passages first, out But that such a plea was allowable is, I think, of their proper order.
clear (1) from this passage itself ; (2) from Letter cxxi. Fam. vii. 13. Tantum metuo the analogy of the interdict.de ui' (cf. Cic. ne artificium tuum tibi parum prosit : nam, ut Caecin. $ 92); (3) from the reason of the audio, istic non ex iure manum consertum thing, supported by the language of the sed magis ferro rem repetunt,' et tu soles ad Digest. uim faciundam adhiberi : neque est quod The use of armed violence in matters of illam exceptionem in interdicto pertimescas, ejectment was rightly held to be so contrary quo tu prior ui hominibus armatis non to the dignity of legal procedure as to ueneris'; scio enim te non esse procacem in require peremptory prohibition. Accordingly lacessendo.
a person who had himself acquired possession Trebatius, the lawyer, is attending Caesar from his opponent by force (ui, not ui in his camp in Gaul, and Cicero chaffs him armata) or by stealth or by sufferance was yet on his position. 'I am only afraid, that entitled to immediate restoration, if his your professional craft is of little good to opponent ejected him by armed force. Obviyou, for, I am told, where you are (to quote ously the same principle applies against him, Ennius)“ men don't join issue in due course if he has himself used armed force. His of law, but effect a recovery sword in hand,” own armed violence disentitles him from and actually you are now called in to use claiming the peremptory protection of the force! Well, there is no ground for much law, on the same principle on which fear of your being troubled with the plea of arned violence disentitles his opponent having been the first to come with a force of from pleading the wrongful possession armed men, for I know you are not forward of the former. Indeed the two acts may in attack.'
well have been successive events in one Trebatius, if dispossessed of some land by day's struggle. If Trebatius (in the suparmed violence, would apply to the praetor posed case) had brought a body of armed for an interdict which would state the issue men to dispossess his opponent, he could in some such words as these, addressed to his not be aggrieved by his opponent's resorting opponent: Unde tu, C. Trebatium ui homini- to the same means to dispossess him in bus armatis deiecisti, eo C. Trebatium resti- turn. Eum qui cum armis uenit, possumus tuas. If, however, Trebatius had himself armis repellere, sed hoc confestim, non ex previously turned out his opponent by the interuallo, dummodo sciamus non solum relike means, the opponent would urge the sistere permissum ne deiciatur, sed, et si praetor to insert in the formula after deie- deiectus quis fuerit, eundem deicere non ex cisti' quo ille prior ui hominibus armatis interuallo sed ex continenti. (Ulpian in non uenerit; and the praetor would natur- Dig. xliii. § 16, l. 3, § 9; and cf. l. 1, ally consent. The matter would then be § 27, 28.)
(Keller Semestr. p. 333 899. suggests that (ducendae) constituere is a regular technical the absence of this plea in later times was phrase, cf. Dig. viii. 5, 1. 10, de iure quo due to a restriction of the meaning of deicere, aqua constituta est ; ib. 1. 18, antequam is so that it was held to be no ejectment, if a actori ius aquae ducendae constituisset, &c. person recovered by force what he lost by A little earlier in the section Prof. force).
Tyrrell notes on the words piscina et saliCicero refers to this same interdict in entibus additis that 'springs, pot jets d'eau,' Fam. xv. 16, § 3, and of course frequently in are meant by salientibus. Surely the natural the speeches for Caecina and Tullius. translation is just the reverse, if you add a
Bruns (Die Besitzklagen, p. 42) and others basin and some jets d'eau.' Cf. Dig. xix. take the words et tu soles ad uim faciundam 1, 1. 15. adhiberi to refer to conventional force in the Letter cxlix. Att. iv. 17. This famous course of legal procedure. I do not think passage, describing the monstrous agreement that is the natural meaning of the words, made between the consuls of the year 54 B.C. and I doubt the employment of jurisconsults and two of the candidates, has been the for the purpose. Of course there is a playful subject of much discussion. Consules flaallusion to it, point being given by the in- grant infamia, quod C. Memmius candidatus frequency of Trebatius being so employed. pactionem in senatu recitauit, quam ipse suus
Letter cxlviii. Q. Fr. jii. 1, § 3. Calvus que competitor Domitius cum consulibus feaiebat aqua dempta et eius aquae iure con- cisset, uti ambo HS. quadragena consulibus stituto et seruitute fundo illi imposita, ta- darent si essent ipsi consules facti, nisi tris men nos pretium seruare posse si uendere augures dedissent, qui se adfuisse dicerent, uellemus.
cum lex curiata ferretur quae non lata esset, Prof. Tyrrell translates Calvus (probably et duo consulares, qui se dicerent in ornandis a jurisconsult) holds that even if the use of provinciis consularibus scribendo adfuisse cum the water were not included in the sale and omnino ne senatus quidem fuisset. Haec the right of the vendor over it were estab pactio, non uerbis sed nominibus et perscriplisbed, and the estate were made liable for tionibus multorum tabulis cum esse facta the water (were made subject to this ease- diceretur, prolata a Memmio est nominibus ment) we could still get our purchase-money inductis auctore Pompeio. for it if we wished to sell.'
Prof. Tyrrell objects to the usual interThis is wrong in several places. Calvus pretation of inductis as cancelled' on the (if this be the right reading) was probably a ground that that meaning is here unsuitable. land agent. A jurisconsult is not the man If it is supposed that Memmius cancelled to tell the value of an estate. The precise the main items of the agreement, how could relations of the estates are not certain, but he prove his case, and what was the object I understand the fundus Bouillanus to be of cancelling either names of contracting the same as the land said at the beginning parties or anything, when his natural course of the section to have been bought at was to lay the compact before the senate Arpinum from Fufidius, and to be well just as it stood ? Boot supposes that the off for water. Arpinum and (the known) consuls, not Memmius, did the cancelling; Bovillae are many miles apart, so that the but Prof. Tyrrell replies that the consuls meaning of Bouillanus is uncertain. I take would be more likely to have destroyed the Arpini to be merely the place of purchase. whole instrument. Rein supposes that the At any rate Quintus had the intention of nomina cancelled were the same nomina taking water from one estate to another. named before, viz. the entries in ledgers. I translate; Calvus declared that if the v. Salpius (Novation und Delegation, p. 94) water were taken away, and the right of understands the consuls to have cancelled drawing it were established, and a servitude the book-entries and Memmius to have imposed on that estate, we should still get produced the written agreement : nominibus our price.' As owner of the two estates inductis is then after the entries had been Quintus could deal with the water as he cancelled.' Prof. Tyrrell thinks inductis liked. But if he sold the estate whence be shonld be taken as inducerent in Verr. i. took the water, he would bave to declare § 106 and inducatur and induceretis in Rull. in the conveyance that he sold subject to ii. $$ 70, 98; and translated duly entered.' this right. That would be establishing for He reiterates this opinion in the Preface, the dominant estate (where he used the water) a ius aquae ducendae, and imposing I think this makes the words nominibus on the servient estate the obligation to inductis quite otiose, and that there is no allow the water to be so taken. Ius aquae reason for giving an unusual instead of a
usual meaning to inductis ; (for inducere, bine the two last, as in warrants on the 'to cancel,' see Dirksen's Manuale, s.v.). English Treasury, which contain a receipt I believe the nomina cancelled were the for the money, to be signed by the payee nomina of the three augurs and the two and exchanged by bis banker against payconsulars who were to give false evidence, ment. In Att. ix. 12 § 3, where Cicero is and it does not matter for this purpose describing how the world generally is going whether the nomina were names or entries on in the regular routine (notwithstanding or items, and whether the pactio was the political crisis implied by Pompey's being separate written document or not. It may actually besieged by a Roman army), he says have been such, but as the pactio is said to viri boni usuras perscribunt 'honest men are have been made nominibus et perscriptionibus entering up their interest,' where the viri multorum tabulis, it seems better to suppose may be the creditors (according to Mommsen, no such separate written document contain- Hermes xii. p. 112) or the debtors. So Cic. ing the whole plot to have existed.
Orat. i. 58 de tabulis et perscriptionibus may not made verbis, i.e. by a formal stipulation well be merely about ledgers and entries, such as was usually applied to bind a bar- but may also be about documents and gain. How then was it made ? That in some receipts (or cheques).' In Phil. v. § 11 degree depends on the meaning which we Antony is described as squandering public attach to perscriptionibus, and, as the word money falsis perscriptionibus donationibusque occurs in several passages, it is worth while 'by fictitious book entries (or receipts or to examine it.
cheques) and giîts'; fictitious, because proPerscribere is used of writing a matter out fessing to be in accordance with Caesar's in full (e.g. Cic. Cat. iii. § 13, &c.), and orders. Suet. Caes. 42 deducto siquid usuras perscriptio is thus 'a writing of some trans- nomine numeratum aut perscriptum fuisset ; action.' But the precise nature of the less anythiog which had been paid in cash writing so denoted is not easy to determine. or by cheque (or book entry) under the head It evidently had a business meaning, but of interest.' whether this meaning was wide and general It is thus hard to say the precise meaning or specific is not clear. (a) In Rosc. Com. $$ 1, of perscriptionibus in our passage. But 2, 5 it appears clearly to be used of entries whether perscriptionibus is the fuller dein the ledger, descriptive of the person scription of the nature of the debt and credited or debited with sums of money. In nominibus the mere entry of money paid to, Flac. § 44 the meaning is the same, only or received by, a person named, or again that the entry gave a description of the nominibus includes the whole of the book particular purpose of the payment as well as entry and perscriptionibus denotes a number of the name of the creditor or debtor. Simi- of warrants for payment in some shape or larly in Verr. v. § 48 and Ter. Phorm. 923 other, in either case the bargain with the (if we read with most MSS. perscripsi instead consuls was contained in a number of books of the Bembine discripsi). (b) In the tablets and documents. found at Pompeii (Bruns' Fontes ii. cap. 9) I do not see how the dependence of the perscriptio is the title (docket ') affixed to payments on the consuls' good faith could some documents which in form are certifi- be secured by these documents. And for cates of receipt of money. And yet (c) a third this purpose a pactio ne peteretur (to guard mercantile meaning seems to be given by against the payments being enforced if the Cic. Att. xii. 51 Tiro narrauit perscriptionem consuls played false) may have been necestibi placere and xvi. 2, § 1 quod perscribi sary and may have been put in writing and oportet which clearly imply some mode of may have been read out in the senate. settling a debt-probably something in the But it is not likely that the agreement nature of a bill of exchange drawn upon a
was made in blind confidence that some banker at some distance of time, e.g. a six three augurs and some two consulars would months' bill. And in Liv. xxiv. 18, § 14 be found ready for the plot. I think para quaestore perscribebatur we have clearly ticular persons were first secured; book bills drawn on the quaestor. (For this use entries or money orders in their favour were of the preposition a cf. Cic. Flac. § 44). made and provisionally (at any rate) executed. Perhaps these three meanings may be recon- But as Memmius or some one blotted out the ciled by supposing perscribere, perscriptio to names, Cicero could describe only the general mean originally simply expression of the character of the plot and the number of debt in writing' and to be specially applied augurs and consulars concerned. to entries in a ledger or to receipts or to
If it be insisted that nominibus should orders on a banker. It is possible to com- mean the same in both places (I do not think
it at all necessary), we may suppose that the letter i. $ 3). Quintus had at the request wbole or part of the book entries were blotted of a creditor ordered Flavius' agents not to out, but that yet from the remainder or from impair the estate of L. Octavius Naso, to the context the nature of the entry may have which Flavius was heir, till the debt was been sufficiently discoverable to support the paid. Marcus points out to his brother that evidence afforded by the perscriptiones or by he had rashly assumed that the claim was Memmius' confession.
good and had thereby done injustice to [Mommsen (Hermes xii. p. 111) considers Naso. He requests Quintus therefore to perscriptio to be a payment accompanied withdraw his order. 'I beg you to make a by a formal receipt' and endeavours, not concession to Flavius' agents in the matter successfully, as I think, to reduce all the of impairing the estate.' Deminuere is used passages under this meaning).
somewhat technically. Cf. Cic. Flac. § 84 ; Letter ix. Att. i. 4. Cui cum aequi fuis- Dig. xviii. 1, 1. 26; xxvii, 8, 1. 17. semus, tamen &c. Tunstall, Boot, and Tyrrell Letter cxxvi. Fam. vii. 23, § 2. Tu autem all take this as meaning though. I might ignarus instituti mei, quanti ego genus omnino have taken a lenient view (bad I so willed).' signorum omnium non aestimo, tanti ista I cannot think Cicero would have so used a quattuor aut quinque sumpsisti. Prof. Tyrsimple pluperfect subjunctive instead of a rell (see also the Corrigenda) apparently periphrasis with possum or the future parti- misunderstands the passage, for he proposes ciple (cf. my grammar, $ 1521). Why not to omit non, to read aestimem for aestimo, to translate, Although I had been favourable treat tanti and quanti as not correlative, to him'? The verdict was that of the and to regard quanti as = quantuli. I do judices,
Cicero gained general applause, not see the difficụlty. Fadius Gallus had because the verdict was approved and he bought for Cicero some statues of Bacchae had presided as praetor in an able and and one of Mars, and had given a high impartial manner, notwithstanding his feel- price. Cicero wanted some cheap statues ing for the defendant.
for his palaestra of a totally different kind, Letter xx. Att. i. 14, § 3. Cicero says perhaps something respectable, as philosothat the support given him by Crassus in phers, &c. 'In your ignorance of my ways the senate was the more remarkable quod (or purpose) you have bought those four or meis omnibus litteris in Pompeiana laude five statues at a price at which I don't value perslrictus esset. Prof. Tyrrell inserts ora- all the statues in the world.' timibus after meis and calls (in the second Letter cliv. Att. iv. 18. Sulla non dubitans edition) omnibus litteris an ablativus men- quin foris esset, (Gabinium) postularat. Prof. surae. The ablative of measure is however Tyrrell doubts what he suys is the common only used with comparatives or expressions interpretation of foris esset 'was in debt,' of precedence or distance. Still omnibus but still inclines to a metaphorical use 'was meis litteris may mean (cf. my grammar, out at elbows,' 'was a defaulter': see p. $ 1170) throughout all my letters' or 'through- 183 and pref. xii., xxi. In the other passage out all my literary compositions, and in where it is used, also of Gabinius, (Pis. 32) either case offers no difficulty requiring Madvig reads sordidissime and creats this addition to the text. A person writing to supposed use of foris esse with scorn. Why his intimate friends does not always so may not Sulla have thought Gabinius to express himself as to leave nothing obscure be 'away from home'? I see no occasion to persons 1900 years after in ultima Thule. for a metaphorical meaning in this letter. In the next section Aperte tecte is ex
If the words be retained in the speech, it is plained rightly in the beginning of the note perhaps possible to take it as 'on the world,' and wrongly in the end. Cicero would i.e. not a steady citizen living at home on Dever put two such adverbs to qualify, bis own means. instead of to contrast with, one another. Letter clx. Q. Fr. iii. 9, $ 8. Prof. Tyrrell
Letter liii. Q. Fr. i. 2. Rogo ut procura- translates tabulas obsignare''sign the will.' toribus Flavii remittas de deminuendo. Prof. The expression is incorrect. Roman wills Tyrrell oddly translates allow them to were not executed by 'signing. They were draw on the money,' and says if the word written (by any one), declared in the presence remittas were here to be taken in its inore of witnesses to be the testator's will, and usual sense of making a concession,' 'letting then the tablets were sealed up (obsignantur) off,' Cicero would have written 'de non by the witnesses. The sealing was not for deminuendo.' But if we take de as meaning execution, but to protect the contents from 'concerning,' not from,' non is not necessary being altered. The same with other docu(see Prof. Tyrrell's own note on missione, ments : see Cic. Flac. 9, § 21 and the regulations for opening wills in Dig. xxix. 3. Even subscribere, subscriptio, when used in such matters, did not mean what we moderns understand, viz. the mere writing of the executant's name, but a declaration, e.g. Decretum. Fieri placet.
Jubentius Celsius promagister subscripsi (Wilmann's Inscr. no. 312). The 'subscriptio' of the testator to wills was first required by a constitution of Theodosius II. anno 439 : see the elaborate essay of Bruns' Die Unterschriften, &c. in his Kleine Schriften, bd. ii.
Letter clxii. Fam. i. 10 (misprinted 20).
Illo si ueneris, tamquam Ulixes, cognosces tuorum neminem. Prof. Tyrrell, to save Cicero from the charge of not knowing his Homer well, accepts Klotz's conjecture of cognoscere nemini.
But is this Ciceronian Latin? Ovid, no doubt, could say and said lugebere nobis, but Cicero would not use a dative of the agent with a finite verb, except where .for' a person is as suitable a meaning as 'by' him, e.g. N. D. ii. 48 bestiis cibus quaeritur ; Q. Fr. i. 1, 25 aes alienum contrahi civitatibus.
H. J. ROBY.
Novum Testamentum, etc. curante F. H. A. SCRITE- of that series have confined their attention mainly to NER.
Editio Major. Deighton, Bell et Soc : Tischendorf and Tregelles, with occasional reference MDCCCLXXXVII. 43. 6d.
to Lachmann. Dr. Weymouth lays under contribuTáis is a third, and greatly enlarged and improved
tion, not only these three great critics, but also edition of a well-known work, the first edition of
Alford, the Bâle edition of 1880, Westcott and Hort, which appeared in 1859, and the second in 1876. As
and the Revisers, together with Lightfoot and Ellibefore, the text of Stephens of 1550 is taken as the
cott for S. Paul's Epistles, and Weiss for S. Matthew. standard, while the chief variations are given in foot.
This eclectic text, therefore, ‘is intended to exhibit notes. The main features of this ncw edition are that
in a compact and intelligible form the latest results (1) to the readings adopted by Beza, Elzevir, Lach
of textual criticism.' Hence the somewhat peculiar mann, Tischendorf, and Tregelles have been added
title, .The Resultant Greek Testament.' those of Westcott and Hort and of the Revisers ; (2)
of the materials used only two require separate
mention. The Bâle edition was edited in 1880 for carefully selected references to parallel passages have been inserted in the outer margin ; (3) for the conve
the Bible Society of Bâle by Stockmeyer and Riggen. nience of those who use this volume in collating MSS.,
bach. It is largely influenced by Tischendorf, and the Ammonian sections and Eusebian canons are given
where it differs from him frequently anticipates the in the inner margin, a table of these being added to
readings of Westcott and Hort. Das Matthäusthe Preface. The paging is the same as in the second
evangelium' of Bernhard Weiss was published at edition ; room for this additional matter being ob
Halle in 1876. Its text also is greatly under the
influence of Tischendorf. tained by increasing the size of the page. But the
The work has been executed with the greatest care volume may still be carried in a fairly capacious
the proofs having been corrected, not from the copy pocket. In a few paragraphs added to the former Preface the learned editor speaks with gratitude,
sent to the press, but from the editions themselves admiration, and severity of the work of Westcott and
from which thu 'copy' was taken. The accuracy of Hort. There is no need to praise their fine intelli
the readings quoted has, therefore, been doubly
secured. gence, immense learning, industry, and sagacity. These rare gifts, while they excite our envy, fail (in
A student with either Scrivener or Weymouth in Dr. Scrivener's judgment) Toy #TTW 1byov kpeltTW
his hand cau at once see what reading has been toleiv. Still half enslaved by the principles of Lach
adopted by Lachinaun, Tischendorf, Tregelles, mann, they have gone wider of what Dr. Scrivener
Westcott and Hort, and the Revisers in any given believes to be the truth than even Lachmann nimself,
passage ; but with Weymouth he has the suffrages
of other editors as well. aud have produced a magnificent blunder rather than
Nor is this the only advanan everlasting possession (splendidum peccatum, non
tage. Weyinouth's text is as clear and as free from ktņua eis åel, in lucem emiserunt).
interruptions as that of Westcott and Hort, and like
theirs is spaced in accordance with the sense. In The Resultant Greek Testament, exhibiting the Text
Scrivener the frequent changes of type, and still more in which the Majority of Modern Editors are
frequent insertions of letters and numerals, are trying
to the eyes. Besides which, it is much pleasanter to agreed, by R. F. WEYMOUTH, D. Lit. Elliot Stock:
work with a text to which all the best modern critics · pp. xix. 644. 128. 6d.
would in most cases assent, rather than with one This work agrees with the preceding one in giving from which nearly every one, excepting Dean Burgon, a Greek Text of the New Testament with a careful would be perpetually dissenting. digest of the various readings adopted by editors ; The two works have appeared almost simul. but it proceeds on a very different plan. Instead of taneously, and Dr. Weymouth was evidently unaware adopting the exceedingly faulty text of Stephens as that Dr. Scrivener had a third edition in preparation. & standard, the editor constructs one for himself ; not It is interesting to contrast his opinion of Westcott at first hand from MSS., Versions and Fathers, but and Hort with that of Dr. Scrivener, quoted above. at second hand from the most important editions of He is convinced that critical judgment will more the last fifty years. His principle, therefore, is the and more converge towards most of the conclusions same as that which for some years has been adopted arrived at by WH,' and he speaks of their in the Cambridge Greek Testament : but it is worked Greek Testament as a work beyond all praise, out in a much more comprehensive way. Tho editors both for the erudition displayed and for the simple