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E. GELLIUS xx. 10 (ed Hertz).

Ex iure manum consertum uerba sunt ex antiquis actionibus, quae, cum lege agitur et uindiciae contenduntur, dici nunc quoque apud praetorem solent. rogaui ego Romae grammaticum, celebri hominem fama et multo nomine, quid haec uerba essent? tum ille me despiciens: 'aut erras,' inquit, 'adulescens, aut ludis ; rem enim doceo grammaticam, non ius respondeo: si quid igitur ex Vergilio, Plauto, Ennio quaerere habes, quaeras licet.'

'ex Ennio ergo,' inquam, 'est, magister, quod quaero. Ennius enim uerbis hisce usus est.' cumque ille demiratus aliena haec esse a poetis et haud usquam inueniri in carminibus Ennii diceret, tum ego hos uersus ex octauo annali absentes* dixi, nam forte eos tamquam insigniter praeter alios factos memineram : pellitur e medio sapientia, ui geritur res ; spernitur orator bonus, horridus miles amatur. haut doctis dictis certantes nec maledictis, miscent inter sese inimicitias agitantes.

non ex iure manu[m] consertum, sed magis ferro rem repetunt regnumque petunt, uadunt solida ui. cum hos ego uersus Ennianos dixissem: 'credo,' inquit grammaticus, 'iam tibi.' sed tu uelim credas mihi, Quintum Ennium didicisse hoc non ex poeticae literis, set ex iuris aliquo perito. eas igitur tu quoque,' inquit, 'et discas, unde Ennius didicit.'

usus consilio sum magistri, quod docere ipse debuerat, a quo discerem, praetermonstrantis. itaque id, quod ex iureconsultis quodque ex libris eorum didici, inferendum his commentariis existimaui, quoniam in medio rerum et hominum uitam qui colunt, ignorare non oportet uerba actionum ciuilium celebriora. ('manum conserere.') nam de qua re disceptatur in iure [in re] praesenti, siue ager siue quid aliud est, cum aduersario simul manu prendere et in ea re [soll]emnibus uerbis uindicare, id est ‘uindicia.' correptio manus in re atque in loco praesenti apud praetorem ex duodecim tabulis fiebat, in quibus ita scriptum est: si qui in iure manum conserunt. sed postquam praetores propagatis Italiae finibus, datis iurisdictioni(bu)s negotiis occupati, p[rof]i

* In line 11 absentes='from memory,' without book.'

cisci uindiciarum dicendarum causa [ad] longinquas res grauabantur, institutum est contra duodecim tabulas tacito [con]sensu, ut litigantes non in iure apud praetorem manum consererent, sed 'ex iure manum consertum' uocarent, id est alter alterum ex iure ad conserendam manum in rem, de qua ageretur, uocaret atque profecti simul in agrum, de quo litigabatur, terrae aliquid ex eo, uti unam glebam, in ius in urbem ad praetorem deferrent et in ea gleba, tamquam in toto agro, uindicarent. idcirco Ennius significare uolens (bellum), non, ut ad praetorem solitum est, legitimis actionibus neque ex iure manum consertum, sed bello ferroque et uera ui atque solida [..............]; quod uidetur dixisse, conferens uim illam ciuilem et festucariam, quae uerbo diceretur, non quae manu fieret, cum ui bellica et cruenta.

F. On § 47.

Feeling as I do that the explanation of this passage given in the notes is far from being wholly satisfactory, I here add an abstract of that given by Sorof in his able review* of Tischer's edition, with which Halm agrees in many points. My own comments are in


(1.) He thinks that the plebs are any persons of that order (as opposed to the ordo senatorius) concerned in any way. Why not, he asks, the bribed voters? may they not have lost for a time the right of voting? [This needs some parallel to render it plausible.]

(2.) He refers the morbi excusatio to the party or parties accused. ceteri vitae fructus relinquendi cannot, he urges, refer to any penalty inflicted on jurors, witnesses, and such like: it must have been the infamia or exile. The accused often employed the pretence of ill-health as a ruse for protracting a trial till they had entered on their office and were beyond reach of prosecution. Ferratius well notes the reference to Murena's illness in § 86, in spite of which the trial took place. The Twelve Tables+ ordered an adjournment in such cases. [The former part of this consists of assumptions which our ignorance of the necessary details leaves us unable either to maintain or refute. Why may there not have * Zeitschrift für das gymnasialwesen, 15th year, pp 758 foll + I cannot find this in the fragments.

been some penalty aimed at the jurors or witnesses offending, which in the highly-coloured language of Cicero might appear as in the text? As for Murena's illness, it supplies no such proof as the above argument assumes. Even if it was open to him to plead illness in bar of further proceedings, he may not have done so. As Cicero does not mention his sickness until the peroration of the speech, and then does so only in an incidental allusion by way of adding pathos to his appeal, I am inclined to think that the more probable inference is the reverse of that drawn by Ferratius.]

(3.) multorum, he continues, is opposed to fortunae communi above: if that refers to all senators concerned, multorum may very well refer to the candidates. [I believe Cicero to mean in the former passage, 'any senator may become a candidate any day, and may—whether guilty or not-be put on his trial.' Hence fortuna communis is used. Why multorum should be necessarily opposed to this I cannot see: and it comes in much better as applied to jurors or witnesses than if taken of the candidates, for which it is an astoundingly loose expression.]

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(4.) He urges that addita est can only mean on the top of the general penalty an additional one for morbi excusatio was imposed.' [This dogma I wholly reject. If the putting in such a plea involved a conviction with sentence to follow, the man who pleaded illness would be in a worse case than if he had allowed judgment to go against him by default, which is to me incredible: if it did not, the whole statement is nonsense. This difficulty arises from referring the words to the candidates.]

(5.) He concludes by pointing out that if we keep the reading prorogationem we cannot, from the meaning of the word, refer to the Manilian law about the votes of the freedmen. Yet had there been another lex Manilia on so important a subject, we must have heard of it. He would then accept Mommsen's conjecture perrogationem, and look upon this passage as giving the contents of the Manilian law. As the freedmen had in B C 304 been banished to the four City Tribes (or, as Mommsen and Huschke more probably assume, wholly deprived of their right of voting) by the censor Q Fabius Rullianus, those tribes to which on the ground of residence they belonged, might in a certain sense be rightly regarded as incomplete until Manilius carried a law admitting them to their proper tribes. After this it could be said that the

separate tribe-classes [see note on tribus, § 42 of the speech] voted in full, or were perrogati. The new technical word needs not offend the reader. [We are, it seems, to render 'the votingin-full as provided in the Manilian law;' legis being a sort of possessive genitive.] Now such a perrogatio would really introduce aequatio gratiae; so would the confusio suffragiorum, which Drumann (Gesch R v 446) well explains as meaning that Sulpicius sought also to have the centuries vote not according to the propertyclasses, but according to the decision of the lot [entscheidung der looses, by which I suppose is meant that the order of voting was to be absolutely settled by lot, the first class having no necessary preference]. He adds that confundere is not found elsewhere in this sense, and sums up to the effect that Sulpicius wanted two things which tended one way, viz to aequatio gratiae etc. [We have only to examine our authorities (given in Orelli and Baiter's onomasticon, Vol III p 217) to see that our knowledge of the lex Manilia de libertinorum suffragiis is far too scanty to afford a safe foundation for any theories. Our only scrap of detail is preserved by Dion, who says that Manilius τῷ ἔθνει τῷ τῶν ἀπελευθέρων......ψηφίσασθαι μετὰ τῶν ἐξελευθερωσάντων σφᾶς ἔδωκε, but adds that the law was at once repealed. If then we resolve on identifying this with the law spoken of in the text, we shall be more likely to weave cobwebs than to produce any sound conclusion. Next we are driven to explain the confusio suffragiorum in a way which sets at nought the meaning of confusio, and rests on an airy hypothesis which itself rests on nothing. Lastly, we have to coin a new word, and then to go hunting for a meaning to attach to it. The word perrogatio is found, according to Forcellini, only in a fragmentary inscription on a broken stone (in veteri curto lapide), too doubtful an authority to establish anything with regard to the meaning, if it even proves the existence of the substantive. No doubt the verb perrogo means 'ask in full.' We find thus in Livy XXIX 19 perrogari eo die sententiae non potuere. But to coin perrogatio and then treat legis as a possessive genitive is a proceeding I cannot approve. We also find perrogo used of passing or carrying a law; but only in Valerius Maximus, I 2 ext § 1 Minos tamquam ab Iove traditas leges perrogabat, VIII 6 § 4 Varius tribunus plebis legem adversus intercessionem collegarum perrogavit, and the former of these passages is not in the author's own words, but in those of

his epitomizer Julius Paris. On this meaning is apparently based the interpretation of our passage by Halm, who says, 'The words from perrogationem to suffragiorum introduce nothing new, but are only a rhetorical addition explaining confusionem suffragiorum. When Cicero speaks of a perrogatio legis Maniliae, he means that, in desiring the votes to be taken by heads [mass-voting] instead of by centuries, Sulpicius aimed at nothing short of carrying the Manilian law indirectly; for in a confusio suffragiorum the freedmen were in fact placed as regards voting on a level with the rest of the citizens.' By this method the difficulty connected with the genitive legis is got over, but no more. I am therefore still driven to the conclusion that it is best to keep prorogationem, a word we know well, and which with no very great stretch of its ordinary meaning may be used of a law which we cannot claim certainly to identify, so obscure is the speaker's allusion to it. The manuscripts here present three forms, prerogationum, prerogationem, prorogationem. Zumpt's remark on the last is, 'omni codicum auctoritate commendatur,' which is far too strong. From his valuable list of the various readings I will however extract a few instances which shew how unsafe it is to rest solely on the MSS authority on such points.

§ 28. prolatis. one MS has perlatis.
§ 30. promulgatis. one has permulgatis.
§ 85. prorumpet. 3 have per(r)umperet.
§ 26. pervulgata. one has promulgata.
§ 25. pervulgata. 3 have promulgata.
§ 4 perfuncti. one has profuncti.
§ 4. providere. 3 have previdere.
§ 19. profutura. one has prefectura.
§ 42. perfecit. one has praefecit.

§ 44 praenuntia. 12 have pronuntia.

I fear that this Appendix is longer than suits the scale of the book in general; but I felt bound to give my reasons for not accepting views backed by the authority of Mommsen, Halm and Sorof.]

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