Nam jam antea H-S 1000 dissolverat. Deinde, si jam persuasum erat Cluvio ut mentiretur, cur potius H-S cccɔɔɔ quam ccc

cɔ data dixit Fannio a Flavio, quum ex restipulatione pars ejus dimidia Roscii esset? Jam intelligis, C. Piso, sibi soli, societati nihil Roscium petisse. Hoc quum sentit Saturius esse apertum, resistere et repugnare contra veritatem non audet: aliud fraudis et insidiarum in eodem vestigio deverticulum repperit.

Petisse, inquit, suam partem Roscium a Flavio confiteor: vacuam et integram reliquisse Fannii concedo: sed quod sibi exegit, id commune societatis factum esse contendo. Quo nihil captiosius neque indignius potest dici. Quaero cnim potueritne Roscius ex societate suam partem petere, necne? Si non potuit, quemadmodum abstulit? Si potuit, quemadmodum non sibi exegit? Nam quod sibi petitur, certe alteri non exigitur. An ita est? si quod universae societatis fuisset petisset, quod tum redactum esset aequaliter omnes partirentur, nunc quum petierit quod suae partis esset, non quod abstulit soli sibi exegit? XVIII. Quid interest inter eum qui per se litigat et qui cognitor

could not say
nam jam antea H-S 1000
dissolverat.' This cannot therefore be a
payment from Flavius to Chaerea, as Me-
nard supposes, for Cicero is supposing, for
the sake of the argument, that nothing was
paid by Flavius to Chaerea, and that Clu-
vius lied. As there is no nominative to
'dissolverat,' the nominative ought to be
Roscius, of whom Cicero is speaking; and
we must conclude that in this chapter
Cicero affirms that Roscius had paid Chae-
rea one half of the sum mentioned in c. 13,
whatever that sum was; and Cicero asks
why Cluvius, if he was lying, did not speak
of Chaerea having received the ccc1ɔɔɔ at
the time when the first instalment was paid.
To make all this consistent, we must sup-
pose that the second instalment at least was
not due until the trial between Flavius and
Chaerea was over; and that Cluvius then
told his friends that Chaerea had received
such an amount. Roscius would then be
entitled to one half of this amount, and he
might set off what he had still to pay against
what he had to receive. But if the alleged
receipt of ccc1ɔɔɔ by Chaerea was an
invention of Cluvius, Cicero asks why did
he not say this when the first instaliment
was payable, and save Roscius the trouble
of making it. This clearly implies that
even the first instalment was not payable,
or was not paid until after the time when
Cluvius could have invented the falsehood;
and therefore not until after he had given

judgment against Flavius, or Chearea had compounded with Flavius.

Manutius explained this passage right. The argument of Cicero may not be worth much; but it is certain what it is, though many of the commentators have missed his meaning. But that is very common.

It

See

in eodem vestigio] This is well explained by Passeratius: eodem in vestigio est nihil mutato loco ubi constiterat.' means accordingly 'on the spot.' Caesar (B. G. iv. 5), ‘ quorum eos in vestigio poenitere necesse est.'-' deverticulum,' or 'diverticulum:' in many words of similar form it is doubtful whether the Romans used de or di; for instance, whether they said 'deminutio' or 'diminutio capitis.' In many compounds the difference between the preposition de and di or dis is plain; in others, as in this, it seems that either prefix may express the meaning.

Petisse, confiteor:] It is necessary to attend well to this, in order to understand the argument. Cicero says, and we must take it to be true, for we know no more than he tells us, that Saturius admitted that Roscius sued only for his share. If he admitted that, he admitted all; and Cicero's argument is unanswerable. An ita est?'

must be translated, is it not thus?'

18. The argument in this chapter is not easy to apprehend. "What is the difference between a man who conducts a suit himself,

est datus? Qui per se litem contestatur, sibi soli petit: alteri nemo potest, nisi qui cognitor est factus. Itane vero? Cognitor si fuisset tuus, quod vicisset judicio ferres tuum. Suo nomine petiit: quod abstulit sibi non tibi exegit. Quod si quisquam petere potest alteri, qui cognitor non est factus, quaero quid ita, quum Panurgus esset interfectus et lis contestata cum Flavio damni injuria esset, tu in eam litem cognitor Roscii sis factus; quum praesertim ex tua oratione, quodcumque tibi peteres, huic peteres; quodcumque tibi exigeres, id in societatem recideret. Quod si ad Roscium nihil perveniret quod tu a Flavio abstulisses, nisi te in suam litem dedisset cognitorem, ad te pervenire nihil debet quod Roscius pro sua parte exegit, quoniam tuus cognitor non est factus. Quid enim huic rei respondere poteris, Fanni? Quum de sua parte Roscius transegit cum Flavio, actionem tibi tuam reliquit an non? Si non reliquit, quemadmodum H-S cccɔɔɔ ab eo postea exegisti? Si reliquit, quid ab hoc petis quod per te persequi et petere debes? Simillima enim et maxime gemina societas hereditatis est. Quemadmodum socius in societate habet

and him who is made a cognitor?-The man who brings the suit to the Litis Contestatio in his own person, sues for himself only; no man, unless he is made a cognitor, can sue for another."-The words which answer the question are Saturius' supposed definition of the difference between the principal and his agent. Cicero then says: Itane vero?' &c.: Say you so? If Roscius had been your cognitor, you would have had for your own what he received in the trial. He sued in his own name: what he got he got for himself, not for you.' It might appear from the next sentence that up to the Litis Contestatio, Roscius appeared for himself; and that the cognitor, Chaerea, was appointed after the Litis Contestatio. Cicero goes on to ask why, if a man can sue for another without being made his cognitor, why was Chaerea made the cognitor of Roscius in the action of Roscius against Flavius, "especially as your argument is that whatever you sued for in your name, you sued for on his account; whatever you got for yourself fell to the partnership account."

This means that when Chaerea contends that what Roscius sued for and got belonged to the partnership, he admits that what he himself sued for and got also belonged to the partnership. But the fact of his being named the cognitor' of Roscius implies that he acted as 'cognitor' for Roscius

only, and not for the partnership. The argument in the next sentence is not clear at first. Cicero continues: "But if nothing would have come to the share of Roscius out of what you got from Flavius, if Roscius had not made you cognitor in his suit, nothing ought to come to you out of what Roscius got for his share, because he was not made your cognitor."

The argument is very subtle; not easy to seize. Cicero has disposed of one matter about the 'cognitor,' and his argument so far goes to prove that Chaerea acting as cognitor' acted only for Roscius. If Chaerea chooses to take it another way, and relies on the fact of his being 'cognitor' as showing that he had an interest in the suit of Roscius against Flavius, we must assume that the share of Roscius in what Chaerea might get in an action against Flavius depended on Chaerea being made 'cognitor' in the action of Roscius against Flavius; and then, as Chaerea had not made Roscius his cognitor' in his action against Flavius, he was not entitled to anything that Roscius had got in the composition with Flavius.

gemina societas hereditatis] The in terest which several persons may have in a partnership, and the interest which several persons may have in an hereditas,' re semble one another so far as the several persons in each case are entitled to shares

partem, sic heres in hereditate habet partem. Ut heres sibi soli, non coheredibus petit, sic socius sibi soli non sociis petit: et quemadmodum uterque pro sua parte petit, sic pro sua parte dissolvit ; heres ex sua parte qua hereditatem adiit; socius ex ea qua societatem coiit. Quemadmodum suam partem Roscius suo nomine condonare potuit Flavio ut eam tu non peteres; sic, quum exegit suam partem et tibi integram petitionem reliquit, tecum partiri non debet; nisi forte tu perverso more quod hujus est ab alio extorquere non potes, huic eripere potes. Perstat in sententia Saturius: quodcumque sibi petat socius, id societatis fieri. Quod si ita est, qua, malum, stultitia fuit Roscius qui ex jurisperitorum consilio et auctoritate restipularetur a Fannio diligenter ut, quod is exegisset a Flavio, dimidiam partem sibi dissolveret; siquidem sine cautione et repromissione nihilominus id Fannius societati, hoc est Roscio, debebat?

Desiderantur non pauca.

in an undivided thing, and in their liabilities in respect of their shares. But the origin of a societas' is different from the origin of an hereditas.' The rules as to the claim of him who is entitled to a part of an 'hereditas' are contained in the Digest (5. tit. 4, Si pars hereditatis petatur'). The following passage (Dig. 5. 4. 2) will help to explain Cicero: "Si ex pluribus, ad quos eadem hereditas pertinet, quidam adierint, quidam adhuc deliberent, placuit eos qui adierint, si petant hereditatem, non majorem partem petere debere, quam habituri essent ceteris adeuntibus, nec eis proderit si ceteri non adierint. Non adeuntibus autem ceteris, poterunt tunc partes eorum petere, si modo ad eos pertinerent." The aditio hereditatis' is the formal mode of consenting to take it, or such part of it as the heres is entitled to take: "extraneis autem heredibus deliberandi potestas data est de ad

་

eunda hereditate vel non adeunda' (Gaius,
ii. 162). The formula of aditio' and
'cretio' in a particular case is given by
Gaius (ii. § 166): "Quod me Publius
Titius testamento suo heredem instituit eam
hereditatem adeo cernoque."

It appears from what Cicero says, that it was not admitted on the other side that a partner could sue for his own share only; it was maintained that he sued for the partnership. In the later law however it seems that partners sued and were sued for their several shares (Dig. 14. 1. 4; 21. 1. 44, § 1).

qua, malum, &c.] The MSS. have 'quae malum stultitia est? Roscius,' &c. Manutius changed 'quae' to 'qua,' and wrote it as it is in the text. 'Malum' is a form of exclamation which occurs in the familiar dialogue of Terence.

PRO M. TULLIO

ORATIO.

INTRODUCTION.

THIS oration is only a fragment, and parts of the fragment are imperfect. But it is valuable for the knowledge which we derive from it of one of the Roman forms of action; and it gives us some information on the social condition of Italy in Cicero's time. These fragments were found by A. Mai in a palimpsest in the Ambrosian library at Milan, and by A. Peyron in a palimpsest of the Athenaeum library at Turin. ("M. Tullii Ciceronis Sex Orationum Fragmenta Inedita, &c. invenit recensuit notis illustravit Angelus Maius, Mediolani, 1814;" "M. Tullii Ciceronis Orationum pro Scauro, pro Tullio, &c. edidit et cum Ambrosianis parium orationum fragmentis composuit Amadeus Peyron, Stuttgard and Tübingen, 1824.")

Orelli printed this oration among the complete orations; for it is large enough to be read with pleasure and instruction. Beier in his edition supplied the defective parts of this fragment; and Orelli introduced these supplements into the text of Cicero, and printed them in Italics. I have omitted all this patchwork, and I have followed Keller's text (Semestrium Ad M. Tullium Ciceronem, Liber iii.). Baiter, who has edited this oration in the new edition of Orelli's Cicero (1854), has also omitted Beier's supplements. His edition is the latest; and he has made use of the labours of Peyron, Beier, Orelli (prior), Ed. Huschke, and of Keller's edition, of which something will be said.

The legal question which is the foundation of this speech of Cicero is stated by Savigny with his usual clearness and precision (Vermischte Schriften, Vol. iii.). Tullius was in possession of a piece of land, the ownership of which was in dispute; and the formal process of 'Deductio' had been agreed on as a preliminary to the 'Vindicatio,' or legal trial of the right of ownership (§ 20). But before the question was tried, the

opponent of Tullius sent upon the land a body of armed slaves, who killed some of the slaves of Tullius, wounded the rest, and did great damage to the buildings. Tullius brought his action for quadruple damages.

There is no doubt that we have in the edict (Vi Bonorum Raptorum et de Turba; Dig. 47. tit. 8) the form of action in which Tullius sued (47. 8. 2. Ulpianus ad Edictum): "Praetor ait: Si cui dolo malo hominibus coactis damni quid factum esse dicetur, sive cujus bona rapta esse dicentur, in eum qui id fecisse dicetur intra annum quo primum de ea re experiundi potestas fuerit in quadruplum, post annum in simplum judicium dabo. Item si servus fecisse dicetur, in dominum judicium noxale dabo."

The edict speaks of two different things-of damage done to property, and of robbery; and Cramer assumes that two different edicts, framed at different times and by different praetors, have been blended together in the writings of the jurists. But this is a mere hypothesis, and it is not founded on any fact. With respect to the terms of the edict, it might be doubted, as Savigny observes, whether the words 'hominibus coactis' refer only to 'damni quid factum,' or both to them and to the words 'bona rapta.' Perhaps the form of expression seems rather to limit the 'hominibus coactis' to 'damni quid factum,' though it is true that they may refer also to 'bona rapta.' But two other passages of Ulpian, in the same excerpt (Dig. 47. 8. 2. §§ 3, 12), clearly show that the words 'hominibus coactis' refer to both acts of violence; and the only reason for Cramer's hypothesis is thus removed. The edict forbids all damage which may be done by men who have been got together for that purpose, whether this damage consisted in the destruction of any thing (damnum), or in robbery. Cicero (§ 5) only speaks of damnum;' but Savigny observes, that this does not prove that the edict was different in Cicero's time from what it appears in the Digest. There was no robbery in the case of Tullius, but only damage done to his property, his slaves, and the buildings; consequently the Formula could only be applied to a case of ' damnum,' and Cicero could make no use of the other part of the edict.

The occasion of the edict arose, as Cicero tells us (§ 8, &c.), from the acts of violence to which people had been accustomed during the Civil Wars. Under the empire peace and order were restored, and consequently the edict was no longer of the same importance. To this circumstance we must attribute the difference between the original form of the edict, and the form in which it appears in the Digest. This is Savigny's original view of the matter. His essay was first printed in the "Zeitschrift für Geschicht. Rechtswissenschaft."

The most complete examination of this oration is by F. L. Keller