[558] See Schanz, _Gesch. der rom. 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 pontific.u.m_ 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._ Launs.p.a.ch, _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'Annee sociologique_, 1905-6, p. 1 foll., criticised by Hubert et Mauss, _Melanges 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 pa.s.sage 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 inst.i.tueret, certas sollemnesque esse voluerunt.... Omnium tamen harum et interpretandi scientia et actiones apud collegium pontific.u.m erant, ex quibus const.i.tuebatur, quis quoquo anno praeesset privatis."

[571] Livy ix. 46 "civile ius, repositum in penetralibus pontific.u.m, 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 pa.s.sage 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 rom. 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 Cla.s.sical Biography_, _s.v._ "Coruncanius."

[577] _Nat. deor._ ii. 165. Coruncanius is mentioned as one of those whom the G.o.ds 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 pa.s.sage 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 pa.s.sage 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 rom. 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 pa.s.sage in the scholiast on Virgil. To me the difficulty does not seem overwhelming; events occurring "domi militiaeque, terra marique," may have filled considerable s.p.a.ce, 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 c.u.m 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 c.u.m fiunt antiquae sacra Vacunae, ante Vacunales stantque sedentque focos.

[587] Aust, p. 14. For Vertumnus the _locus cla.s.sicus_ 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.

LECTURE XIII

THE AUGURS AND THE ART OF DIVINATION

"The one great corruption to which all religion is exposed is its separation from morality. The very strength of the religious motive has a tendency to exclude, or disparage, all other tendencies of the human mind, even the n.o.blest and best. It is against this corruption that the prophetic order from first to last constantly protested.... Mercy and justice, judgment and truth, repentance and goodness--not sacrifice, not fasting, not ablutions,--is the burden of the whole prophetic teaching of the Old Testament."[594]