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NOTES TO LECTURE XII

[556] See Mulder, De notione conscientiae, quae et qualis fuerit Romanis, Leyden, 1908, cap. 2. On p. 56 he quotes Luthard (Die antike Ethik, p. 131), who says of the Roman religion that it was even more an affair of the State than with any other people; hence its peculiar legal character. Though Mulder overworks his point, his chapter (especially p. 61 foll.) is full of interest.

[557] Wissowa, R.K. p. 431. The first chapter of Ambrosch's Studien und Andeutungen, in which the nature and history of the Regia was first really investigated, is still valuable. An excellent short account is given by Mr. Marindin in his article in the Dict. of Antiquities, ed. 2. It is now generally maintained that the Regia in historical times was rather a building for sacred purposes than a residence for a man and his family, and this I hold to be correct; but it may for all that have originally been the residence of the Rex and of the Pont. Max. when the Rex had disappeared.

[558] See Schanz, Gesch. der röm. Literatur, i. 43, where a succinct account is given of modern opinion as to the so-called ius Papirianum. The main argument for the late date of the collection is that Cicero does not seem to have known of it when he wrote the letter ad Fam. ix. 21 in 46 B.C. This of course in no way affects the primitive character of the rules themselves.

[559] The inference that the rules were found in the Libri pontificum is inevitable in any case, but seems proved by the fact that one of them, that relating to the spolia opima, is stated by Festus, p. 189 (s.v. "opima"), to have been extracted from those books.

[560] Festus, s.v. "pellices" and s.v. "plorare," which latter word is interpreted as = inclamare.

[561] The divi parentum are here generally taken as those of the particular family, and this may have been so; but cf. Wissowa, R.K. 192.

[562] For the attempts of Pais in Italy and Lambert in France to date the Tables at the end of the fourth century or later, see Schanz, op. cit. i. 41. In Germany opinion is universally in favour of the traditional date.

[563] See Social Life at Rome in the Age of Cicero, p. 135.

[564] On the religious character of confarreatio see De Marchi, La Religione nella vita privata, i. p. 145 foll.

[565] Cic. de Domo, 12. 14; Gellius, v. 19.

[566] See, e.g. Launspach, State and Family in Early Rome, p. 256 foll. The last three chapters of this little book, on Patria potestas, Marriage, and Succession, will be found useful by those who cannot enter into the many disputes and difficulties which have arisen out of the attempts of writers on Roman law to adjust legal ideas to the dim early history of Rome. Binder, in his work Die Plebs, starts from the improbable hypothesis that the plebs was the population of the Latin part of the city as distinct from that Sabine part on the Quirinal, which he believes to have been the only patrician body; and he further believes that the plebs lived originally under "Mutterrecht," the patres under "Vaterrecht." Such a condition of society would, of course, have greatly added to the pontifical work of religious adjustment; it would have been more than even the pontifices could have successfully achieved.

[567] See above, note 7. Binder, Die Plebs, p. 488 foll., discusses, and in the main rejects, the arguments of Pais and Lambert.

[568] So Huvelin, in a paper in L'Année sociologique, 1905-6, p. 1 foll., criticised by Hubert et Mauss, Mélanges d'histoire des religions, p. xxiii. foll.

[569] From the religious point of view the legis actiones are best explained in Marquardt, 318 foll. Cp. Muirhead, Roman Law, ed. 1899, pp. 246-7; Greenidge, Roman Public Life, index s.v. "legis actio," and especially p. 87.

[570] The famous passage of Pomponius is in the Digest, i. 2. 2, sec. 6 (for the work of Aelius, see Dig. i. 2. 2, 38) "ex his legibus ... actiones compositae sunt, quibus inter se homines disceptarent: quas actiones ne populus prout vellet institueret, certas sollemnesque esse voluerunt.... Omnium tamen harum et interpretandi scientia et actiones apud collegium pontificum erant, ex quibus constituebatur, quis quoquo anno praeesset privatis."

[571] Livy ix. 46 "civile ius, repositum in penetralibus pontificum, evulgavit (Cn. Flavius), fastosque circa forum in albo proponit, ut quando lege agi posset sciretur." Cp. Val. Max. ii. 5. 2. Civile ius is here usually taken as meaning the procedure; but this is a passage which may give some countenance to those who would put the publication of the XII. Tables later than the traditional date.

[572] For the relation of the Flamines, Vestals, and Rex sacrorum to the pontifex maximus, see Wissowa, R.K. 432 foll.

[573] See above, p. 283. For the eclipse, Cic. Rep. i. 16. 25; and for the various scientific determinations of its exact date, Schanz, Gesch. der röm. Lit. vol. i. (ed. 2) p. 37. "Ex hoc die," writes Cicero, "quem apud Ennium et in maximis annalibus consignatum videmus, superiores solis defectiones reputatae sunt."

[574] Cic. Brutus, 55 "longe plurimum ingenio valuisse."

[575] De Orat. iii. 33. 134.

[576] See Dict. of Classical Biography, s.v. "Coruncanius."

[577] Nat. deor. ii. 165. Coruncanius is mentioned as one of those whom the gods love, if indeed they take an interest in human affairs.

[578] See above, p. 100 foll.; and Roman Festivals, p. 3.

[579] Our knowledge of this tabula chiefly depends on a passage in the Danielian scholiast on Virg. Aen. i. 373: "ita enim annales conficiebantur. Tabulam dealbatam quotannis pontifex maximus habuit, in qua praescriptis consulum nominibus et aliorum magistratum, digna memoratu notare consueverat domi militiaeque terra marique gesta per singulos dies. Cuius diligentiae annuos commentarios in octoginta libros veteres retulerunt, eosque a pontificibus maximis, a quibus fiebant, annales maximos appellarunt." The explanation of the name is no doubt wrong; but all the rest of this passage can be relied on; cp. Cic. de Orat. ii. 12. 52; Dion. Hal. i. 73, 74; Gell. ii. 28. 6; Cic. Legg. i. 2. 6. For the idea of the almanac, see Cichorius in Pauly-Wissowa, Real-Encycl., s.v. "annales maximi."

[580] Proponebat tabulam domi, Cic. de Orat. ii. 12. 52. This must refer to the official residence of the Pont. Max.; see above, p. 271.

[581] These attempted solutions of an insoluble problem may be found in brief in Schanz, Gesch. der röm. Lit. i. 37. Perhaps the boldest is that of Cantorelli, that the annales were constructed not out of the tabula but out of the commentarii; but this is in conflict with the passage in the scholiast on Virgil. To me the difficulty does not seem overwhelming; events occurring "domi militiaeque, terra marique," may have filled considerable space, and yet have been meagre in the eyes of the rhetoricians of the last century B.C.

[582] Schanz, op. cit. p. 35.

[583] The great authority of the Pont. Max. is well shown in the story of Tremellius the praetor, who in the middle of the second century B.C. was fined (by a tribune?) "quod cum M. Aemilio pontifice maximo iniuriose contenderat, sacrorumque quam magistratuum ius potentius fuit." Livy, Epit. 47.

[584] De aedibus sacris populi Romani, p. 10 foll.

[585] Aust, op. cit. p. 14 foll. See also R.F. p. 340 foll.

[586] For Vacuna, Wissowa, R.K. pp. 44 and 128. She was later, but probably without good reason, identified with Victoria. The conjecture that she was a hearth deity rests on the lines of Ovid, Fasti, vi. 305, which I have before referred to in another context:

ante focos olim scamnis considere longis mos erat et mensae credere adesse deos. nunc quoque cum fiunt antiquae sacra Vacunae, ante Vacunales stantque sedentque focos.

[587] Aust, p. 14. For Vertumnus the locus classicus is Propert. v. 2. It is not certain that the connection with gardens was primitive.

[588] R.F. p. 341.

[589] R.F. p. 341.

[590] See Axtell, The Deification of Abstract Ideas in Roman Literature and Inscriptions (Chicago, 1907), p. 59 foll., where the views of Mommsen, Boissier, Marquardt, and Wissowa are discussed. Axtell's own conclusion is given on p. 62 foll. In the main it seems to agree with that hazarded in my Roman Festivals, p. 190.

[591] For the evidence as to the contents of the commentarii, which are now generally identified with the libri, see Wissowa, R.K. 32 and 441; Schanz, op. cit. i. 32; and the article "Commentarii" in Pauly-Wissowa, Real-Encycl. As Wissowa remarks (p. 441, note 6), we are greatly in need of a complete collection of all fragments of these archives.

[592] See above, p. 159 foll. The conviction that these lists are of comparatively late and priestly origin, which has long been growing on me, was originally suggested by the learned article "Indigitamenta" by R. Peter in Roscher's Lexicon, vol. ii. p. 175 foll.

[593] I have here adopted some sentences from my article in the Hibbert Journal for 1907, p. 854.





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