Attic Nights (13.13-13.17)

That it is stated in Marcus Varro's books on Human Antiquities that the aediles and quaestors of the Roman people might be cited before a praetor by a private citizen.

WHEN from the secluded retreat of books and masters I had come forth among men and into the light of the forum, I remember that it was the subject of inquiry in many of the quarters frequented by those who gave public instruction in law, or offered counsel, whether a quaestor of the Roman people could be cited by a praetor. Moreover, this was not discussed merely as an academic question, but an actual instance of the kind had chanced to arise, in which a quaestor was to be called into court. Now, not a few men thought that the praetor did not have the right to summon him, since he was beyond question a magistrate of the Roman people and could neither be summoned, nor if he refused to appear could he be taken and arrested without impairing the dignity of the office itself which he held. But since at that time I was immersed in the books of Marcus Varro, as soon as I found that this matter was the subject of doubt and inquiry, I took down [*] the twenty-first book of his Human Antiquities, in which the following is written: [*]

It is lawful for those magistrates who have the power neither of summoning the people as individuals nor of arrest, even to be called into court by a private citizen. Marcus Laevinus, a curule aedile, was cited before a praetor by a private citizen; to-day, surrounded as they are by public servants, aediles not only may not be arrested, but even presume to disperse the people.

This is what Varro says in the part of his work which concerns the aediles, but in an earlier part of the same book he says [*] that quaestors have the right neither to summon nor to arrest. Accordingly, when both parts of the book had been read, all came over to Varro's opinion, and the quaestor was summoned before the praetor.

The meaning of pomerium.

THE augurs of the Roman people who wrote books On the Auspices have defined the meaning of pomerium in the following terms:

The pomerium is the space within the rural district designated by the augurs along the whole circuit of the city without the walls, marked off by fixed bounds and forming the limit of the city auspices.

[*] Now, the most ancient pomerium, which was established by Romulus, was bounded by the foot of the Palatine hill. But that pomerium, as the republic grew, was extended several times and included many lofty hills. Moreover, whoever had increased the domain of the Roman people by land taken from an enemy had the right to enlarge the pomerium.

Therefore it has been, and even now continues to be, inquired why it is that when the other six of the seven hills of the city are within the pomerium, the Aventine alone, which is neither a remote nor an unfrequented district, should be outside the pomerium; and why neither king Servius Tullius nor Sulla, who demanded the honour of extending the pomerium, nor later the deified Julius, when he enlarged the pomerium, included this within the designated limits of the city.

Messala wrote [*] that there seemed to be several reasons for this, but above them all he himself approved one, namely, because on that hill Remus took the auspices with regard to founding the city, but found the birds unpropitious and was less

successful in his augury than Romulus.

Therefore,

says he,

all those who extended the pomerium excluded that hill, on the ground that it was made ill-omened by inauspicious birds.

But speaking of the Aventine hill, I thought I ought not to omit something which I ran across recently in the Commentary of Elys, [*] an early grammarian. In this it was written that in earlier times the Aventine was, as we have said, excluded from the pomerium, but afterwards by the authority of the deified Claudius it was admitted and honoured with a place within the limits of the pomerium.

A passage from the book of the augur Messala, in which he shows who the minor magistrates are and that the consul and the praetor are colleagues; and certain observations besides on the auspices.

IN the edict of the consuls by which they appoint the day for the centuriate assembly it is written in accordance with an old established form:

Let no minor magistrate presume to watch the skies.

[*] Accordingly, the question is often asked who the minor magistrates are. On this subject there is [*] no need for words of mine, since by good fortune the first book of the augur Messala On Auspices is at hand, when I am writing this. Therefore I quote from that book Messala's own words: [*]

The auspices of the patricians are divided into two classes. The

v2.p.453

greatest are those of the consuls, praetors and censors. Yet the auspices of all these are not the same or of equal rank, for the reason that the censors are not colleagues of the consuls or praetors, [*] while the praetors are colleagues of the consuls. Therefore neither do the consuls or the praetors interrupt or hinder the auspices of the censors, nor the censors those of the praetors and consuls; but the censors may vitiate and hinder each other's auspices and again the praetors and consuls those of one another. The praetor, although he is a colleague of the consul, cannot lawfully elect either a praetor or a consul, as indeed we have learned from our forefathers, or from what has been observed in the past, and as is shown in the thirteenth book of the Commentaries of Gaius Tuditanus; [*] for the praetor has inferior authority and the consul superior, and a higher authority cannot be elected by a lower, or a superior colleague by an inferior. At the present time, when a praetor elects the praetors, I have followed the authority of the men of old and have not taken part in the auspices at such elections. Also the censors are not chosen under the same auspices as the consuls and praetors. The lesser auspices belong to the other magistrates. Therefore these are called 'lesser' and the others 'greater' magistrates. When the lesser magistrates are elected, their office is conferred upon them by the assembly of the tribes, but full powers by a law of the assembly of the curiae; the higher magistrates are chosen by the assembly of the centuries.

[*]

From this whole passage of Messala it becomes clear both who the lesser magistrates are and why they are so called. But he also shows that the praetor

is a colleague of the consul, because they are chosen under the same auspices. Moreover, they are said to possess the greater auspices, because their auspices are esteemed more highly than those of the others.

Another passage from the same Messala, in which he argues that to address the people and to treat with the people are two different things; and what magistrates may call away the people when in assembly, and from whom.

THE same Messala in the same book has written as follows about the lesser magistrates [*]

A consul may call away the people from all magistrates, when they are assembled for the elections or for another purpose. A praetor may at any time call away the people when assembled for the elections or for another purpose, except from a consul. Lesser magistrates may never call away the people when assembled for the elections or another purpose. Hence, whoever of them first summons the people to an election has the law on his side, because it is unlawful to take the same action twice with the people (bifariam cum populo agi), nor can one minor magistrate call away an assembly from another. But if they wish to address the people (contionem habere) without laying any measure before them, it is lawful for any number of magistrates to hold a meeting (contionem habere) at the same time.

From these words of Messala it is clear that cum populo agere,

to treat with the people,

differs from contionem habere,

to address the people.

For the former means to ask something of the people which they by their votes are to order or forbid; the latter, to speak to the people without laying any measure before them.

That humanitas does not mean what the common people think, but those who have spoken pure Latin have given the word a more restricted meaning.

THOSE who have spoken Latin and have used the language correctly do not give to the word humanitas the meaning which it is commonly thought to have, namely, what the Greeks call filanqrwpi/a, signifying a kind of friendly spirit and good-feeling towards all men without distinction; but they gave to humanitas about the force of the Greek paidei/a; that is, what we call eruditionem institutionemque in bonas artes, or

education and training in the liberal arts.

Those who earnestly desire and seek after these are most highly humanized. For the pursuit of that kind of knowledge, and the training given by it, have been granted to man alone of all the animals, and for that reason it is termed humanitas, or

humanity.

That it is in this sense that our earlier writers have used the word, and in particular Marcus Varro and Marcus Tullius, [*] almost all the literature shows. Therefore I have thought it sufficient for the present to give one single example. I have accordingly quoted the words of Varro from the first book of his Human Antiquities, beginning as follows: [*]

Praxiteles, who, because of his surpassing art, is unknown to no one of any liberal culture (humaniori).

He does not use humanior in its usual sense of

good-natured, amiable, and kindly,

although without knowledge of letters, for this meaning does not at all suit his thought; but in that of a man of

some cultivation and education,

who knew about Praxiteles both from books and from story.