On The Law

• Marcus Tullius Cicero

Atticus.

—Do you feel inclined, since we have had walking enough for the present, and have arrived at a new period of our discussion, to vary our situation. If you do, let us pass over to the island which is surrounded by the Fibrenus, for such, I believe, is the name of the other river, and sit down while we prosecute the remainder of our discourse?

Marcus.

—I like your proposal. That is the very spot I generally select when I want a place for undisturbed meditation, or uninterrupted reading or writing.

Atticus.

—In truth, now I am come to this delicious retreat, I cannot see too much of it. Would you believe, that the pleasure I find here makes me almost despise the magnificent villas, the marble pavements, and the sculptured palaces? Who would not smile at the artificial canals which our great folks call their Niles and Euripi, after he had seen these beautiful streams? Just as you referred all things to Nature in our recent conversation on Justice and Law, you seek to preserve her domination, even in those things which are constructed to recreate and amuse the mind. I was therefore most agreeably surprised, since your letters and your verses had led me to expect nothing better in this neighbourhood than hills and rocks, to find it so delightfully ornamented by all the decorations of art. My present wonder is, how, when you retire from Rome, you condescend to rusticate in any other spot.

Marcus.

—I acknowledge that when I can escape for a few days, especially in this delectable season, I usually come here, on account of the beauty of the scenery, and the salubrity of the air; but these vacations occur not very often. There is one reason, however, why I am so fond of this Arpinum, which does not apply to you. Atticus

—Prithee, what reason is that?

Marcus.

—Because, to confess the truth, it is my native place, and my brother’s, for here indeed, descended from a very ancient race, we first saw the day. Here was our altar, here our ancestry, and here still remains many vestiges of our family. Besides, this villa which you behold in its present form, was originally constructed under my father’s superintendence; for having very infirm health, he spent the later years of his life here, engaged in literary pursuits. At the time of my birth, my grandfather also lived here, and resided according to the olden custom, in that little villa, like another Curius on his Sabine farm. There is, therefore, an indiscribable sympathy which attaches me to the spot; it pervades my soul and sense with a peculiar fascination, whenever I reside here. Even the wisest Ulysses was not wholly exempt from a similar weakness, for Homer tells us that he renounced immortality, that he might once more re–visit his beloved Ithaca.

Atticus.

—I would not condemn a sentiment which appears so rational; I myself have caught the same infection, and I feel that my love for this house and neighbourhood increases, when I remember that you were born here. I cannot tell you how this affection arises, but certainly we cannot behold, without emotion, the spots where we find traces of those who possess our esteem or admiration. For my own part, if any thing attaches me to Athens, it is not so much the accumulation of a multitude of invaluable antiques, as the rememberance of great men, whom I represent to myself as living, reposing there, and discoursing there. Even their very tombs attract my deepest attention. I therefore leave you to imagine how warm is the affection you have imparted to me for your native country.

Marcus.

—That being the case, I am very glad that I have brought you here, and shown you my cradle.

Atticus.

—And I am still more pleased at having seen it. But what were you going to say just now, when you called this Arpinum the true country of yourself and your brother Quintus? Have you more than one country, or any other than that Roman Commonwealth in which we have a similar interest? In that sense, the true country of the philosophic Cato would not have been Rome, but Tusculum.

Marcus.

—In reply to your question, I should say, that Cato, and municipal citizens like him, have two countries, one, that of their birth, and the other, that of their choice. Cato being born at Tusculum, was elected a citizen of Rome, so that a Tusculan by extraction, and a Roman by election, he had, besides his native country, a rightful one. So among your Athenians, before Theseus urged them to quit their rural territories, and assembled them at Athens, those that were natives of Sunium, were reckoned as Sunians and Athenians at the same time. In the same way, we may justly entitle as our country, both the place from where we originated, and that to which we have been associated. It is necessary, however, that we should attach ourselves by a preference of affection to the latter, which, under the name of the Commonwealth, is the common country of us all. For this country it is, that we ought to sacrifice our lives; it is to her that we ought to devote ourselves without reserve; and it is for her that we ought to risk and hazard all our riches and our hopes. Yet this universal patriotism does not prohibit us from preserving a very tender affection for the native soil that was the cradle of our infancy and our youth.

Therefore I will never disown Arpinum as my country, at the same time acknowledging that Rome will always secure my preference, and that Arpinum can only deserve the second place in my heart.

Atticus.

—It was not then without reason, that Pompey said, when he pleaded conjointly with you the cause of Ambius, that the Commonwealth owed great gratitude to this village for having given it two of its preservers. For my part, I quite agree with you, that your native place may be called your country, no less correctly than the Commonwealth of Rome. But here we are, arrived in your favourite island. How beautiful it appears! How bravely it stems the waves of the Fibrenus, whose divided waters lave its verdant sides, and soon rejoin their rapid currents! The river just embraces space enough for a moderate walk, and having discharged this good–natured office, and secured us an arena for disputation, it hastily precipitates itself into the Liris; where, like those who ally themselves to patrician families, it loses its obscure name, and gives the waters of the Liris a greater degree of coolness. For I have never found water much colder than this, although I have seen a great number of rivers;—and I can hardly bear my foot in it when I wish to do what Socrates did in Plato’s Phædrus.

Marcus.

—You justly commend the Liris, but my brother Quintus often tells me that your river Thyamis in Epirus is nothing inferior to it in beauty.

Quintus.

—Doubtless you will acknowledge that nothing on earth equals the beauties of Atticus’s Amaltheum and its plane trees. But will it be agreeable to you, that we should repose here in the shade, and renew the subject which has been interrupted?

Marcus.

—You have a wonderful knack of interrogation, my Quintus!—I thought that we had done with the question; but you are not a man to waive your claims.

Quintus.

—Pray begin, then; for all this day is devoted to hearing you.

Marcus.

—“Let us begin, then, with great Jupiter,” as I said in my translation of Aratus.

Atticus.

—Wherefore this exordium?

Marcus.

—Because we cannot do better than commence, by invoking Him and the other gods.

Quintus.

—There can be no objection to this: it is but decent and proper.

Marcus.

—Let us, then, once more examine, before we descend to particulars, what is the essence and moral obligation of law; lest, when we come to apply it to its subordinate relations, we should not exactly understand each other for want of explanation; and lest we should be ignorant of the force of those terms which are usually employed in jurisprudence.

Quintus.

—This is a very necessary caution, and the proper method of seeking truth.

Marcus.

—This, then, as it appears to me, hath been the decision of the wisest philosophers; that law, was neither excogitated by the genius of men, nor is it any thing discovered in the progress of society; but a certain eternal principle, which governs the entire universe; wisely commanding what is right, and prohibiting what is wrong. Therefore, that aboriginal and supreme law is the Spirit of God himself; enjoining virtue, and restraining vice. For this reason it is, that this law, which the gods have bestowed on the human race, is so justly applauded. For it is the reason and mind of Wisdom, urging us to good, and deterring us from evil.

Quintus.

—You have already touched on this topic. But before you come to treat of civil laws, endeavour to explain the force and power of this divine and celestial law, lest the torrent of custom should overwhelm our understanding, and betray us into the vulgar method of expression.

Marcus.

—From little children have we learned, my Quintus, such phrases as this, “that a man appeals to justice, and goes to law;” and a great many municipal laws have we heard mentioned; but we should not understand that such commandments and prohibitions have sufficient moral power to make us practise virtue and avoid vice.

The moral power of law, is not only far more ancient than these legal institutions of states and peoples, but it is coeval with God himself, who beholds and governs both heaven and earth. For it is impossible that the divine mind should exist without reason; and divine reason must necessarily be possessed of a power to determine what is virtuous and what is vicious. Nor, because it was no where written, that one man should maintain the pass of a bridge against the enemy’s whole army, and that he should order the bridge behind him to be cut down, are we therefore to imagine that the valiant Cocles did not perform this great exploit, agreeably to the laws of nature and the dictates of true bravery. Again, though in the reign of Tarquin there was no written law concerning adultery, it does not therefore follow that Sextus Tarquinius did not offend against the eternal law when he committed a rape on Lucretia, daughter of Tucipitinus. For, even then he had the light of reason deduced from the nature of things, that incites to good actions and dissuades from evil ones. And this has the force of a law, not from the time it was written, but from the first moment it began to exist. Now, this existence of moral obligation is coeternal with that of the divine mind. Therefore the true and supreme law, whose commands and prohibitions are equally infallible, is the right reason of the Sovereign Deity.

Quintus.

—I grant you, my brother, that whatever is the just is always the true law; nor can this true law either be originated or abrogated by any written enactments.

Marcus.

—Therefore, as the Divine Mind, or reason, is the supreme law, so it exists in the mind of the sage, so far as it can be perfected in man. With respect to civil laws, which differ in all ages and nations, the name of law belongs to them not so much by right as by the favour of the people. For every law which deserves the name of a law ought to be morally good and laudable, as we might demonstrate by the following arguments. It is clear, that laws were originally made for the security of the people, for the preservation of cities, for the peace and benefit of society. Doubtless, the first legislators persuaded the people that they would write and publish such laws only as should conduce to the general morality and happiness, if they would receive and obey them. Such were the regulations, which being settled and sanctioned, they justly entitled Laws. From which we may reasonably conclude, that those who made unjustifiable and pernicious enactments for the people, counteracted their own promises and professions; and established any thing rather than laws, properly so called, since it is evident that the very signification of the word law, comprehends the essence and energy of justice and equity.

I would therefore interrogate you on this point, my Quintus, like our inquisitive philosophers. If a state wants something, wanting which it is reckoned no state, must not that something be something good? (Quæro igitur a te Quinte, sicut illi solent,—quo si civitas careat, ob eam ipsam causam quod eo careat, pro nihilo habenda sit, id est ne numerandum in bonis?)

Quintus.

—A very great good.

Marcus.

—Now a state which has no law, is it not for that reason to be reckoned no state?

Quintus.

—We must needs say so.

Marcus.

—We must therefore reckon law among the very best things.

Quintus.

—I entirely agree with you.

Marcus.

—If then in the majority of nations, many pernicious and mischievous enactments are made, as far removed from the law of justice we have defined as the mutual engagements of robbers, are we bound to call them laws? For as we cannot call the recipes of ignorant empirics, who give poisons instead of medicines, the prescriptions of a physician, we cannot call that the true law of the people, whatever be its name, if it enjoins what is injurious, let the people receive it as they will. For law is the just distinction between right and wrong, conformable to nature, the original and principal regulator of all things, by which the laws of men should be measured, whether they punish the guilty or protect the innocent.

Quintus.

—I quite agree with you, and think that no law but that of justice should either be proclaimed as a law or enforced as a law.

Marcus.

—Then you regard as nullable and voidable the laws of Titius and Apuleius, because they are unjust.

Quintus.

—You may say the same of the laws of Livius.

Marcus.

—You are right, and so much the more, since a single vote of the senate would be sufficient to abrogate them in an instant. But that law of justice, which I have explained can never be rendered obsolete or inefficacious.

Quintus.

—And, therefore, you require those laws of justice the more ardently, because they would be durable and permanent, and would not require those perpetual alterations which all injudicious enactments demand.

Marcus.

—Certainly, if I could get you both to agree with me. But Plato, that wisest philosopher, that gravest prince of literature, who first composed his Commonwealth, and afterwards his Treatise on the Laws, induces me to follow his illustrious example, and to proclaim the praises of law, before I begin to recite its regulations. Such likewise, was the practice of Galencus and Charendas, when they wrote their laws, not for literary amusement, but for the benefit of their country and their fellow–citizens. And in this conduct, they were emulated by Plato, who considred that it was the property of law, to persuade as well as compel.

Quintus.

—What, do you venture to cite Galencus, when Timæus denies that he ever existed?

Marcus.

—But Theophrastus, an author quite as respectable, and many think more so, corroborates my opinion. His fellow–citizens too, my clients, the Locrians, commemorate him; but whether he was or was not, is of no great consequence to our argument: we only speak from tradition.

Let this, therefore, be a fundamental principle in all societies, that the gods are the supreme lords and governors of all things,—that all events are directed by their influence and wisdom, and that they are loving and benevolent to mankind. They likewise know what every person really is; they observe his actions, whether good or bad; they discern whether our religious professions are sincere and heart–felt, and are sure to make a difference between good men and the wicked.

When once our minds are confirmed in these views, it will not be difficult to inspire them with true and useful sentiments,—such as this, that no man should be so madly presumptuous as to believe that he has either reason or intelligence, if he does not believe that the heaven and the world possess them likewise, or in other words, that there is no Supreme Mind which keeps the universe in motion. The presumption is the more excessive in man, who with his best philosophy, can hardly understand what the universe means.

In truth, we can scarcely reckon him a man, whom neither the regular courses of the stars, nor the alternations of day and night, nor the temperature of the seasons, nor the productions that nature displays for his use, do not urge to gratitude towards heaven.

As the beings furnished with reason are incomparably superior to those who want it, and we cannot say, without impiety, that any thing transcends the universal Nature, we must therefore confess that divine reason is contained within her. Who will dispute the utility of these sentiments, when he shall reflect how many cases of the greatest importance are decided by oaths; how much the sacred rites performed in making treaties tend to assure peace and tranquility; also, what numbers the fear of divine punishment has reclaimed from a vicious course of life; and how sacred the social rights must be in a society where a firm persuasion obtains of the immediate intervention of the immortal gods, both as witnesses and judges of our actions? Such is the “preamble of the law,” to use the expression of Plato.

Quintus.

—You are right, my brother; I am pleased to find, however, that you take an original view of the subject, and often correct the mistakes of this philosopher, for nothing can less resemble his opinions, than what you have just now asserted, even in this preamble. I see little conformity between you, excepting in the style, which you imitate exactly.

Marcus.

—I should be very glad of it, if such imitation were possible. As to his sentiments, it would be easy enough to explain them by means of paraphrases and illustrations—surely this would not be difficult to any scholar who would undertake such a task. But with regard to the thought, whatever I compose, unless it be an acknowledged quotation, I would wish it to be my own, for what merit is there in saying nearly the same thing, in nearly the same words?

Quintus.

—I entirely agree with you; for as you have justly remarked, your discourse ought to be your own. Begin, then, if you will do us the favour, and expound the Laws of Religion.

Marcus.

—I will explain them as well as I can; and since this place imposes no constraint, and our conversation is familiar, I shall begin by describing the Laws of Laws.

Quintus.

—What laws be they?

Marcus.

—There are certain maxims of laws, my Quintus, not so ancient as the primitive sacred laws, but still possessing greater authority, and greater antiquity too, than the common parlance of the people. These legal maxims, I shall mention with as much brevity as possible; and I shall endeavour to expound the laws, not indeed in their whole extent, for this would be infinitely laborious, but those which involve the principles and contain the sum and substance of the rest.

Quintus.

—This appears a most desirable method: let us therefore hear the Maxims of Laws.

Marcus.

—Such are the following;—Approach the gods with purity—appear before them in the spirit of devotion—remove riches from their temples; whoever doth otherwise shall suffer the vengeance of heaven—let no one have private gods—neither new gods nor strange gods, unless publicly acknowledged, are to be worshiped privately—let the temples which the fathers have constructed in the cities, be upheld—let the sacred chapels and consecrated groves in country places be protected—let the customs of the fathers be preserved in the families—let the gods who have always been accounted celestial be worshipped, and those gods likewise who have merited celestial honours by their illustrious actions, as Hercules, Bacchus, Æsculapius, Castor, Pollux and Quirinus. Let due honour be likewise paid to those virtues, by which man is exalted to heaven,—as intelligence, valour, piety, fidelity; and let temples be consecrated to them. But with regard to the vices, let no sacred sacrifices be paid to them.

Let all contentions of every kind cease on the sacred festivals, and let servants enjoy them, their toils being remitted, for therefore they were appointed at certain seasons.—Let the priests duly render the public thank–offerings to heaven, with herbs and fruits, on the sacrificial days. Also, on the appointed holidays, let them offer up the cream of milk, and the sucklings; and lest the priests should commit any mistakes in these sacrifices, or the reason of these sacrifices, let them carefully observe the calendar, and the revolutions of the stars.—Let them provide those particular sacrifices which are most appropriate and agreeable to the particular deities: the Priests directing the service of some gods, the Flamins regulating the rites of others, and the Pontiffs superinding the worship of all.

Let the Vestal Virgins in the city carefully keep the sempiternal fire always burning on the public altar, and let those who are not instructed in the order of the ceremonials in these private and public ministrations, learn them from the priests. Let there be two classes of these priests, one to preside over ceremonials and sacrifices, and another to interpret the obscure predictions of the prophets, diviners, and sibyls, whenever the senate or the people require it.—Let the public Augurs, who are the interpreters of Jupiter, the best and greatest, likewise examine the presages and auspices, according to the discipline of their art. Let the priests who are conversant in auguries implore the prosperity of the vineyards and gardens, and the general welfare of the people.—Let those who give counsel in military or civic affairs, attend to the auspices, and take their measures accordingly.—Let them observe from what parts of heaven the lightnings burst forth.—Let them declare what lands, cities, and temples, are to be held free and consecrated.—Whatever things the augur declares to be unjust, wicked, vicious, and accursed, let them be forsaken as prohibited and disastrous, and whoever will not obey these divine indications, let him suffer capital punishment.

As to alliances, peace, war, truces, and the rights of ambassadors, the Fecial priests are the appropriate judges, who determine all questions relating to military affairs. The interpretation of all prodigies and portents, belongs to the Etruscans and Haruspices, if the senate seeks their advice, and these shall inform the partricians respecting the line of conduct they should pursue. Then will they learn what deities it behoves them to propitiate, and deprecate the fury of the thunderbolt against the object of its vengeance. (Quibus divis creverint, procuranto; iidemque fulgura, atque obstita pianto).

Let nocturnal sacrifices be interdicted to women, except those they offer according to popular custom—and let none be initiated in the mysteries except by the usual forms consecrated to Ceres, according to the Grecian ceremonials. (Neve quem initianto, nisi ut assolet Cereri, Græco sacro.)

Let there be sacrifice made, (by the criminal) for crimes which cannot be expiated (by the priest), being acts of impiety,—the faults which can be expiated by the public priests, let them expiate. (Sacrum commissum, quod neque expiari poterit, impie commissum esto—quod expiari poterit, publici sacerdotes expianto.)

With regard to public spectacles, excepting those of the race–course and the ring, let them restrain the violence of the people, by the soothing influence of vocal and instrumental music; and let the honours of the gods be inseperable from the amusements of these diversions. Let them retain whatever is best and purest in the ancient form of worship. Except the devotees of Cybele (ideæ matris famulos), to whom this privilege is allowed on certain days, let no one presume to levy rates for private emolument. Whoever purloins or robs the sacred property of the temples, let the sacreligious wretch be accounted as no better than a parricide. The divine punishment of perjury is destruction: the human penalty is infamy. With regard to incest, let the chief priests sentence it to the extremest penalty of the law.

Let not the impious man, who should render sacrifice, attempt to appease the gods by gifts and offerings. Let vows be piously performed. Whereever law is violated, let its punishments be executed. Let no private person presume to consecrate his land; and let his consecration of gold, silver and ivory, be made within the limits of moderation. Let private devotions be perpetually practised. Let the rights of the deities of the dead be punctually discharged. Let those who have past into the world of souls be considered as divinified; thus unnecessary expense and sorrow with regard to our departed friends will be reduced and diminished. (Hos letho datos divos habento—sumptum in illos luctumque minuunto.)

Atticus.

—You have managed to include a great deal of law in a very small compass; but it seems to me, that this class of legal maxims does not much differ from the laws of Numa and our national regulations.

Marcus.

—That is true enough. For since in my Treatise on the Commonwealth, Scipio argues that our ancient Roman constitution was the best of all governments, I could not but ordain similar laws for that excellent constitution which I imagine to myself.

Atticus.

—Certainly not.

Marcus.

—Such then are the laws which a first–rate constitution should enforce. And if I add a few, which are not to be found in our Roman Commonwealth, yet even these formed a portion of the customs of our ancestors; customs which were maintained as religiously as the laws themselves.

Atticus.

—Proceed, then, if you please, to propose these laws, that I may have the pleasure of ratifying them by a uti rogas, (so be it).

Marcus.

—Perhaps, my Atticus, when you hear them, you will say something very different.

Atticus.

—I do not think so! I believe I shall entirely agree with you respecting the greater laws. And as for the minor ones, I shall concede them to you, and pass sentence accordingly.

Marcus.

—Let us lose no time then.

Atticus.

—Go on,—propose such laws as you think advisable.

Marcus.

—One of the legal maxims I have mentioned, states, that we should approach the gods with purity,—that is to say, with purity of mind; for this is every thing. Not that the law dispenses with purity of body,—but that we should understand the superiority of the mind over the body; and if we are attentive to the purity of our persons, we ought to be still more so to the purity of our souls. The pollutions of the body may indeed be removed by a few ablutions in a few days; but the stains of the conscience cannot be obliterated by any lapse of time, and all the rivers in the world cannot wash them out.

The next legal maxim commands us to cultivate piety, and to banish costliness from our temples. It signifies that piety is grateful to God, and all conceit of worldly wealth is displeasing to him. For if in our social relations we desire that distinctions of wealth and poverty should not induce us to forget the fraternal equality of men; why should we throw a stumbling block in the approaches of mortals to their Maker, by requiring costly sacrifices and offerings. Especially since nothing is more agreeable to the deity than to see the gates of worship flung open to all who would adore him, and serve him in his temples.

When the latter part of this legal maxim is added, which declares that God is not merely the judge, but the avenger of ecclesiastical abuses, the sense of religion is strengthened by the fear of immediate punishment which awaits the offender.

The next law forbids individuals from worshipping private gods, or new gods, or strange gods, as this would introduce a confusion of religions, and ceremonies not known to the priesthood, and not acknowledged by the senate. Thus should the worship of the gods be conducted, if they approve of such regulations.

I think the temples of our ancestors should be maintained in our cities. In this respect I do not agree with the doctrine of the Persian Magi, by whose advice they say Xerxes set fire to the temples of the Greeks, because they enclosed between walls the gods, to whom all things are free and open, and whose appropriate temple and dwelling place is the boundless universe. The Greeks, and the Romans after them, have adopted a more rational opinion, since in order to confirm the devotion we entertain for the gods, we have allotted to them fixed mansions in our cities, no less than to our fellow–citizens. This opinion promotes religion, and has a useful moral influence on society. For according to the noble sentence of Pythagoras, “then chiefly do piety and religion flourish in our souls, when we are occupied in divine services.” And according to Thales, the most renowned of the seven sages of Greece, “men should be persuaded that the gods behold all things, and inform all things.” And therefore are all men the more pure and holy when they frequent the temples of the gods, for there, in a certain sense, they have the divine images, not only impressed on their minds, but actually presented before their eyes. The same argument applies to the preservation of the sylvan fanes and sacred groves.

The religious honours, which, according to ancestorial custom, masters and servants pay to the lares, or guardian angels and genii, in the courts of our villas and farms, are not to be abated,—(neque ea quæ a majoribus prodita est, cum dominis tum famulis posita in fundi villæque conspectu, religio larum repudianda est).

The rites of ancestors are likewise to be preserved in their families, for since the ancients approached nearest to the gods, that religion which the gods handed down to them is a tradition most worthy of memorial.

When the law commands us to render divine honours to deities that are consecrated, as having partaken of humanity, as Hercules and the rest of the demi–gods, it indicates, that while the souls of all men are immortal, those of saints and heroes are divine.

It is right also, that Intelligence, Piety, Valour, and Fidelity, should possess the temples which are publicly dedicated to them at Rome, so that those who cultivate these admirable virtues, which are dear to all worthy men, should regard them as divine principles animating their souls.

But what is scarcely to be tolerated, is, that at Athens, they should have raised a temple to Vice, Ignominy, and Imprudence, as they did at the instigation of Epimenides of Crete, after the expiation of the crime of Cylon. For if it is pious to consecrate the Virtues, it is impious to bestow the same honour on the Vices. Thus the ancient altar which stands in the temple of Fever, and another on Mount Esquiline to Misfortune, are detestable, and all things of this kind should be repudiated.

But when we forge titles according to the fancy of the poets, and call Jove the defender, the invincible, from the idea we conceive of his strength and power, and extol as divine principles, Safety, Honour, Wealth and Victory, we perhaps do little harm, since our minds are supported by the expectation of these excellent things. It was not amiss therefore, that Calatinus consecrated Hope.

Nor is it wrong to celebrate Daily Fortune, for she embraces all days, helping us through all. Nor even to extol Luck, which presides over irregular accidents; or her companion, Prosperity, which crowns us with unnumbered blessings.

Then comes the order of Festivals and Holidays, in which all men should be free, and spend their time without strife or litigation, and which afford the lower orders periods of rest and cessation from labour. We must appoint such holidays with a just reference to the seasons of the year, so that their distribution may rather facilitate than interrupt the useful labours of agriculture. And with respect to the time when the rites of sacrifice are to be offered, with the young animals appointed by law, the exact intervals of intercalation are to be accurately observed, an institution which, originating with Numa, was impaired by the negligence of subsequent pontiffs.

It is not desirable to change the regulations which the pontiffs and haruspices have made respecting the appropriate sacrifices due to each god, in respect of age and sex.

With respect to the priests, their great number and their attachment to the services of the several divinities, should enable them to explain all the ordinances and duties of religion.

Now as Vesta, according to the meaning of the Greek word, which the Latins have retained, is symbolized by the perpetual fire of the city, the vestal virgins preside over it with the greatest propriety, that they may keep the sacred flame ever burning and inviolable, and that women may learn that the purest chastity constitutes the perfection of their nature.—(Etsentiant mulieres in natura fœminarum, omnem castitatem peti.)

What follows, concerns not Religion only, but the general order of the state; namely, the prohibition which restrains private individuals from offering sacrifices without the superintendence of the public ministers of religion. For under a sound government, it always behoves the people to ask the counsel and authority of their chief functionaries; and the order of priests should take cognizance of every kind of orthodox religion.

Some of these priests are appointed to propitiate the gods, when offended, who preside over solemn sacrifices; and others are ordained to interpret the predictions of the prophets,—not indeed of all the prophets; for then their task would be infinite, and the secret purposes of the government would be divulged; so that those without the cabinet would become too familiar with political proceedings.

One of the greatest and most important offices in the Commonwealth is that of the Augurs, conjoined as it is with the highest authority. I do not speak this from any motive of personal vanity, since I am an augur myself, but because it is an actual matter of fact. For what can be more important in respect of official dignities, than the power of dismissing the assembly of the Commons, though convoked by the chief rulers, and thus annulling their counsels and enactments? What, I say, can be more absolute domination than that by which even a single augur can adjourn any political proceeding to another day! What can be more transcendent than that authority of the augurs, by which they may command even consuls to lay down their office! What more sacred than their power of granting or refusing permission to form treaties and compacts! or their power of abrogating laws, which have not been legitimately enacted, as in the case of the Titian law, which was annulled by a decree of the pontifical college; and the Livian law, which was likewise annulled by the advice of Phillipus, who was at once consul and augur. Indeed there is no edict of the magistrates relating either to domestic or foreign affairs which can be ratified without the augur’s authority.

Atticus.

—I confess that their authority is very great; but there is a warm dispute between Marcellus and Appius, two of the best augurs in our college. I have met with the books of both, and I find that one of them affirms that auspices are merely got up for the interests of the state, and the other seems to think that they really are supernatural divinations. Will you favour us with your opinion on this point?

Marcus.

—For myself, I sincerely believe that there exists an art which the Greeks call Mantikè, or magic; and that the flight of birds and other signs, which the augurs profess to observe, form a part of this magic. For when we grant the existence of the supreme gods, and their intellectual government of the universe, and their benignant dealings with the human race, and their power of granting us intimations of future events, I know not why we should deny the art of divination.

Besides this, the history of our Commonwealth affords us an infinite number of examples, which confirm this truth, and all kingdoms, peoples, and nations bear testimony that the predictions of augurs are wonderfully fulfilled. Thus the traditions of Polyidus, Melampus, Mopsus, Amphiaraus, Calchas, and Helenus, would not have made so much noise in the world, nor would they at this time be accredited by so many nations,—Arabians, Phrygians, Lycaonians, Cilicians and Pisidians,—unless antiquity had handed them down as true and indisputable. Nor would our Romulus have consulted the auspices before he founded Rome, nor would the name of Accius Navius have so long flourished in the memory of our citizens, if events had not justified their wonderful predictions. But doubtless this science and art of augury may vanish away by age and negligence. Therefore, for my part, I neither agree with Marcellus, who maintains that our college of augurs never was in possession of this science; nor do I agree with Claudius, who asserts that we still preserve it. For that kind of augury which prevailed among our ancestors, I think that it was sometimes used for mere political convenience; but far more often as a bona fide guide and director in critical emergencies. (Quæ mihi videtur apud majores fuisse, ut ad Reipublicæ tempus nonnunquam, ad agendi consilium sæpissime pertineret.)

Atticus.

—Well, it might be so, and most probably was so,—but proceed.

Marcus.

—I will, and as concisely as possible. What follows relates to the rights of peace and war; in commencing, conducting, and concluding which, justice and good faith are especially necessary. By our law we have therefore appointed the Fecial priests as public interpreters of these rights. (Note I.)

As to the religious duties of the Haruspices, concerning expiations and sacrifices, I think I have already said enough.

Atticus.

—I think so too, since that branch of the law relates exclusively to religious ceremonials.

Marcus.

—As to what follows, my Atticus, I scarcely know in what terms it becomes me to animadvert, or you to assent.

Atticus.

—What is it?

Marcus.

—The law respecting the nocturnal sacrifices of women.

Atticus.

—Oh! I assent to their suppression by all means, excepting those solemn and public sacrifices which your legal maxim permits.

Marcus.

—But if we suppress the nocturnal sacrifices, what will become of the august mysteries of Iacchus, and the Eumolpidæ? For we are constructing laws, not for the Romans only, but for all just and valiant nations.

Atticus.

—I think it is but courteous to except these mysteries likewise, especially as we ourselves happen to have been initiated in them.

Marcus.

—With all my heart, let us except them. For it seems to me that among the many admirable and divine things your Athenians have established to the advantage of human society, there is nothing better than the mysteries by which we are polished and softened into politeness, from the rude austerities of barbarism. Justly indeed are they called initiations, for by them we especially learn the grand principles of philosophic life, and gain, not only the art of living agreeably, but of dying with a better hope.

But what displeases me in the nocturnal mysteries, is what the comic poets hold up to ridicule. If such licence was allowed at Rome, what abominations might be committed by the man who should carry premeditated debauchery into the mysteries, in which even a stolen glance was in ancient times a crime?

Atticus.

—Content yourself with proposing this law for Rome: do not rob the Greeks of their customs.

Marcus.

—Well then, let us return to our legal maxims, by which it is most diligently ordained that the clear daylight should be the safeguard of female virtue in the eyes of the multitude; and that they should only be initiated in the mysteries of Ceres, according to the Roman custom.(Note II.)

In reference to this topic, we have an extraordinary instance of the severity of our ancestors in the public indictment and prosecution of the Bacchanals by the senate, supported by the Consular armies. And this severity of the Roman government is not singular, since Diagondas of Thebes, in the middle of Greece, suppressed all nocturnal mysteries by a perpetual prohibition. And Aristophanes, the most facetious of the old Greek comedians, so satirized the new gods and the nocturnal rites of their worship, that he represents Sabazius and other foreign deities condemned as aliens, and obliged to pack off from the city.

The public priest shall acquit by his counsel those irregularities committed by imprudence in the sacrifices, for this is pardonable. But he shall judge as scandalous and impious the audacity which would introduce new religions.

With respect to public shows and amusements, they are generally exhibited either in the circus or the theatre. Let therefore corporeal contests, such as racing, boxing, wrestling, and charioteering for the palm of victory, be confined to the circus. And let dramatic recitations, with vocal and instrumental music within due limits, be practised in the theatre as by law prescribed. For I think with Plato that nothing more readily influences sentimental and susceptible minds, than the varied melodies of music; whose power of raising both good and evil passions is almost incalculable; for music can excite the depressed, and depress the excited, and augment our energies, or contract them. It would have been well for many of the Greek cities, if they had maintained the spirited and invigorating character of their ancient music; for since their music has been changed, their morals and manners have lapsed into voluptuousness and effeminacy. Whether their dispositions have been depraved by this seducing and enervating music, or whether their heroism has yielded to the temptation of other vices, certainly both their sense of honour and their sense of hearing must have been corrupt enough ere they could find pleasure in their newfangled concertos.

Therefore it was, that Plato, that wisest and learnedest philosopher of Greece, so much dreaded the effects of music on his fellow–countrymen. He denied that it was possible to change the laws of music, without likewise changing the laws of manners. If I am not quite so timid as Plato with respect to the influence of music, I by no means believe that this influence is to be slighted or overlooked by the moralist or the lawyer. Without going further, let me observe the effect of that influence among our Romans. The verses of Livius and Nævius, which used to be sung with a manly simplicity and energy, are now chaunted forth with all sorts of grimaces and contorsions of the eyes and head, according to the variation of the airs. Ancient Greece never permitted such abuses, wisely foreseeing, that if this kind of effeminacy got possession of the citizens, it would ruin all their cities with false arts and luxurious indulgences. And therefore the stern Lacedæmon ordained that the harp of Timotheus should possess but seven chords, and that the rest should be taken away.

Our next legal maxim is, that we should be conservatives, and retain whatever is best in our ancient customs, (ut de ritibus patriis colantur optimi): respecting which conservative principles, when the Athenians consulted the Pythian Apollo what religions they should chiefly cultivate, the oracle answered, “those which were sanctioned by their ancestors.” (Eas quæ essent in more majorum). And when the Athenians came to consult the oracle again, alleging that the customs of their ancestors were various, and they desired to know which custom they should select from the variety, the oracle replied, the best, (optimum). And truly may we assert, that for the most part the best is the most ancient and nearest the gods.

We have by another legal maxim prohibited the levy of rates for private emoluments, with the exception of those that are made during a few days in honour of Cybele. Such a custom fills men’s minds with superstition, and impoverishes their families. (Stipem sustulimus, nisi eam quam ad paucos dies propriam, Idææ matris excepimus, implet enim superstitione animos, et exhaurit domos.)

We have awarded a due punishment for all sacriligious persons, not those only who rob a temple, but also those who rob property intrusted to a temple, which exists to a larger amount in many churches. Thus, Alexander is said to have consigned a sum of money in the temple of Soloe in Cilicia, and Clisthenes the Athenian, a very worthy citizen, when he thought his fortune was in danger, consigned his daughters’ doweries to the care of Juno, in her temple at Samos.

Respecting the law against perjury, I have nothing more to add; and with regard to the laws against incest, this is not the place to dispute.

The next legal maxim is, that reprobates should not attempt to appease the gods by offerings, till they have repented of their sins. Let such impious criminals listen to Plato, who forbids us to doubt that God must abhor the wicked, since even a good man will not receive presents from the apostate.

The next legal maxim enforces the necessity of a careful discharge of our vows towards God.

As to the punishments of those who violate the sacred rites of religion, no one will deny the propriety of such penalties.

In order to confirm the execution of justice on such offenders, I need not cite the examples of those impious wretches, whose crimes and punishments are represented in the tragedies. Let us rather speak of those things which pass under our own observation. And though, in comemorating my private history, it may seem to have surpast the usual fortune of men, yet as our present conversation is so familiar and confidential between ourselves, I will hide nothing, and I trust that what I shall say will be agreeable to the immortal gods rather than offensive.

You are too well aware that all the laws of religion were infringed by certain wicked men during the period of my banishment. My domestic gods and guardian genii were violated, and a temple to licentiousness built on the ruins of their edifice, while he who alone could defend them was driven from their altars. Consider then, a moment, (for I need not mention names,) what was the termination of such proceedings. I, who suffered not the statue of Minerva, the guardian of our city, to be polluted by impious hands during the universal ruin of my house and property, and carried her safely from my home to the capitol, which is the home of Jupiter himself; was I not thus acting, celebrated by the judgment of the senate, Italy, and all nations as the preserver of my country?—than which nothing more glorious could happen to a mortal man.

My enemies, on the other hand, who had abominably violated the sacred rites of religion, were for the most part banished and exiled; while those who headed them in all their crimes and impieties, not only suffered degradation during life, but were denied the privilege of sepulture and funeral ceremonies.

Quintus.

—Yes, my brother, you have described these events as they occurred, and we cannot feel too grateful to the gods; but we sometimes see virtue apparently unrewarded, and vice triumphant.

Marcus.

—This is, because we judge not as we ought to judge, respecting divine justice. We are carried by the tide of public opinion into error, and cease to discern the true nature of things. We talk as if all the miseries of man were comprehended in death, pain of body, sorrow of mind, or judicial punishments; which, I grant, are calamitous accidents which have befallen many good men; but the sting of conscience, the remorse of guilt, is in itself an infinitely greater evil, even exclusive of the external punishments which attend it. I have seen those, who, had they not been enemies to their country, would never have been foes to me, tormented beyond description by their own bad passions; burning with concupiscence, and shuddering with terror and regret. Whatever they did they did it timorously, contemning religion, as if by so doing they could escape its penalties; and as if by corrupting men they could corrupt the gods. But I must restrain myself, and go no further in invective; for my vengeance has already been carried beyond my desire. I would only indicate, that the divine punishment of the impious is double their legal penalties; for it consists in the pang of conscience while they live, and the reported anguish of the dead; so that their chastisement may become manifest, both to the judgment and the satisfaction of the living.

I agree with Plato, that private estates ought not to be consecrated. Here are his words on this subject, if I can but interpret them correctly. “The earth is consecrated to all the gods, as a grand altar of worship. Therefore private individuals should not consecrate to the gods those territories which belong to them already. As to gold and silver in the cities, whether in houses or temples, this sort of property may very properly be consecrated. As to ivory, which is extracted from a dead elephant, it is an offering scarcely pure enough for the gods. Brass and iron, the instruments of war, ought not to be consecrated in temples. With regard to wood, if any one wishes to dedicate a statute of wood to a divinity, let it be formed from a single tree. The same remark applies to the statues of stone, so common in churches, which should be constructed of one material. As to the dress of a statue, let it not be more elaborate than a woman can make it in a month. Let its colour be white, for this is most pleasing to God, as a general emblem of purity, and peculiary appropriate for sacred vestments. Let there be no colours, therefore, excepting on military decorations. With regard to offerings, the most pleasing ones we can render to the gods are birds, and other simple figures, which a painter may draw in a day; and let the other gifts have the same character of simplicity.”

Such is the opinion of Plato. For my part, I am not quite so strict in my limitations, for we have to consider the present tone of public morals, and the abundance of wealth in all the articles of commerce. Besides, I suspect that agricultural industry would languish, if superstitious ceremonials were allowed unduly to interfere with the cultivation of the ground by the instruments of husbandry.

Atticus.

—I understand you; it remains for you to speak on the perpetual sacrifices and the rights of the Manes.

Marcus.

—What a wonderful memory you possess, my Atticus. I had forgotten that point.

Atticus.

—Very likely. I recollect these legal maxims the better, because they are associated both with the pontifical and civil law.

Marcus.

—On these points, our statutes and decisions are very clear and distinct. And for my part, in this familiar conversation, whatever kind of law we have to discuss, I will treat of our civil jurisprudence with as much simplicity as possible,—in such a manner, that you may easily distinguish on what principle every legal case depends. Thus it will not be difficult for any one possessed of a moderate share of intelligence to find the rights of the question, whatever new cause of consultation shall arise, when he shall know how to refer the points of debate to their appropriate maxim.

But, unhappily, our lawyers, whether for the sake of raising casuistry (erroris objiciendi causâ) in order that they may seem to know more difficult points than they really understand—or whether, as most likely, through ignorance of the art of teaching and conveying instruction (for it is one thing to know an art, and another to teach it) our lawyers, I say, often divide a legal doctrine, which is essentially simple, into an infinite variety of technical distinctions, (sæpe quod positum est in unà cognitione, id in infinita dispartiuntur). With relation to our present topic, for instance, what a wonderful cloud of sophistries has been raised by the two Scævolas, pontiffs both equally skilful in law! “Often,” says Publius the son, “have I heard from my father, that no one can make a good pontiff, unless he understands the civil law. What, the whole of it? Why so? What in the world has a pontiff to do with the rights of partition walls, aqueducts, &c.? Or does he mean only that part of the civil law which is connected with ecclesiastical polity? But how inconsiderable is this, with the exception of certain sacrifices, vows, holidays, burials, and things of that kind. Why then should we make these of so much importance, when the others are so insignificant?

Concerning those sacrifices, however, which have a more extensive relation to jurisprudence, we may pronounce this sentence: let them be preserved perpetually,—and let them pass by succession through families, so that, as I have stated in my maxim, the sacred rites may be constant. On this principle, the pontiffs have decided that these rites should be handed down through all generations, so that their memorial should not fail with the lives of the ancestor, and that their obligations should devole on those who inherit the family estates. On this principle alone, which might suffice for the regulation of all relative cases, have our lawyers raised innumerable quibbles, which fill their books. They demand, forsooth, who are bound to administer these sacred rites? Common justice evidently points out the heir of the deceased; for there is no other person who more appropriately occupies the position of the departed progenitor. Next to the heir, stands the legatee, who by the death of the deceased, or by virtue of his will, sometimes takes as much as all the heirs. All this is implied in the maxim, and perfectly corresponds to its design. Thirdly, if there be no heir, the obligation attaches to him who takes the largest share of the goods of the deceased. Fourthly, if there be no heir or legatee who receives any thing, it binds the chief creditor who gains the largest share of the estate. The last person on whom the obligation of discharging the sacred rites can fall, is the debtor of the defunct, who not having discharged the debts he owed him, will stand in the same position as if he had received a legacy to an equivalent amount.

It is thus, that Scævola instructed us in many points of law, which were not so defined by our forefathers. For they regulated the whole business in the following simple terms:—“A person may become liable to the obligation of discharging the sacred rites of the deceased in three ways; first, as the heir; secondly, as the legatee, who takes the greater part of the property; thirdly, as the largest creditor, in case the estate is incumbered. But we learn one thing from Scævola the pontiff, namely, that all the new arrangements depend on a single principle, which is the wish of the priests to attach the money to the sacred rites, and they judge all festivals and ceremonies by the same rule.

The Scævolas likewise establish this regulation, which is one of their distinctions: namely, that if a due allowance is not set down in the legacy, and the legatees receive less than all the heirs, they should not be bound to discharge the sacred rites. In donations, however, they interpret the same thing in quite a different manner, and ratify whatever the ancestor shall approve in the donation of a person under his superintendence; and do not ratify whatever has been done without his approbation and participation.

On such topics, a thousand little questions arise, which any one may solve by referring them to their proper maxim and principle. For instance,—if through fear of being charged with the sacred rites, a legatee took less than his legacy, and afterwards one of the heirs of this legatee claimed on his own account that portion which the legatee had relinquished, and these two sums, joined together, equal that which was bequeathed to all the heirs; then he who claimed this relinquished portion would be bound to perform the sacred rites, without encumbering his co–heirs. They determine, however, with regard to the legatee, that where the legacy is greater than can be exempted, from these rites, he may pay a part by weight and balance to the testamentary heir, so that in this case, the heir being charged, the money of the legatee is no further liable.

On this point, as on many others, I should be glad if you pontiffs Scævolas, great and talented men, as I confess you to be, would inform me why you seek to perplex the pontifical law with the subtleties of the civil law? For thus, you, in fact, supersede the simple maxims of ecclesiastical jurisprudence, by the endless technicalities of the municipal legislation. If the sacred rites are thus conjoined with pecuniary interests, they are so by your authority as pontiffs, rather than by any law of national obligation. So long, indeed, as you remain pontiffs, your pontifical jurisdiction will continue, but as you happen to be exceedingly knowing in the civil law, you may be able to elude the plainest maxims of the ecclesiastical. For instance, Publius Scævola, Coruncanius, and other chief priests, have determined that those legatees who take only as much as all the heirs, should be bound to discharge the sacred rites.

Such is the pontifical law. Now what has been added to it by the civil law?—a rule of distributions, composed with the utmost caution, in favour of the legatee, for by the deduction of a hundred sesterces, they have discovered a method of delivering the legatee from this troublesome duty. If, however, the testator omitted to make this proviso for the legatee, Mucius the pontiff and jurisconsult, has contrived a new expedient in his favour: he has but to take less than all the heirs, and he gets his acquittal. Our forefathers had stated, with admirable good sense, that those to whom the property came should discharge the sacred rites; but these pontifical gentlemen have rid them of all such obligations.

As to the other quibble, it had no place in the pontifical law, and existed only in the civil code. I mean the sale by weight and balance, in order to charge the testamentary heirs, and place the business in the same condition as if the legacy had not been granted, the legatee stipulating with respect to his legacy, that he should pay over a certain sum by stipulation and so get acquitted of the sacred rights.

I now come to the rights of the Manes, or ghosts of the dead—which our ancestors most wisely instituted, and most religiously observed. They therefore ordained that the people should sacrifice for the ghosts of the dead, in the month of February, then the last month in the year by the ecclesiastical calendar. Decius Brutus, however, according to the writings of Sisenna, usually discharged these ceremonials in December. When I consult my own knowledge for the reason of this proceeding, I think I discover the cause which induced Brutus to depart from the ancestorial custom. The cause that Sisenna assigns for Brutus’s non–observance of this ancient institution, was his ignorance of its obligation; but it does not seem to me likely that Brutus would have so rashly neglected an institution of our ancestors, for he was a learned man, and very familiar with Accius. I therefore conclude that Brutus considered December to be the last month in the year, rather than February, which was so called when the institution was originated. He, likewise, conceived that it was a part of piety to offer very considerable sacrifices.

With regard to the rite of sepulture, it is so sacred a thing that all confess it should be discharged in consecrated ground, and if possible in the country where the family of the deceased resides. Thus, in ancient times, Torquatus adjudicated respecting the Popilian family. And certainly the Denicale feasts, so called from the Latin words de nece, (implying deliverance from death) would not have been appointed as holidays in honour of the dead, as well as other celestials, unless our ancestors who have departed this life, were believed to have past into the great assembly of divinified minds. The order of solemnizing these days, which is different from that of other public festivals, declares the ecclesiastical character of this institution, and its great sanctity and importance.

It is nnecessary for us at present to explain the proceedings of families in funeral ceremonies, what kind of sacrifice should be offered to the lares, or guardian genii, from the rams of the flock—how the bone which remains unconsumed must be covered with earth—how in some cases it is necessary to sacrifice a sow, when the sepulchre is to be considered as consecrated, and such minute details.

It appears to me, however, that the kind of sepulture which Cyrus, according to Xenophon, solicited for himself, is the most ancient of all, for it is a kind of restitution which we make to the earth of a body, which, as a mother, she produced, and as a mother takes back to her protecting bosom. In the same manner we believe our ancient king Numa was interred in his sepulchre, near the altar of the fountain. The Cornelian family likewise used this form of burial, till a period within our own recollection. The conqueror Sylla, however, ordered the corpse of Marius to be disinterred from his grave on the banks of the Anio, impelled to this barbarous brutality by an implacable resentment, which he would not have indulged if he had been as wise as he was vehement. Perhaps it was through fear that the same accident might happen to himself, that he ordered that his body should be burned after his death,—a custom he was the first to introduce in the patrician family of the Cornelii. For in the epitaph on Scipio Africanus, Ennius says,

“Here lies the body, &c.”

And the word lies, is only applied in this way to them who are buried in sepulchres; though perhaps tombs should not be entitled sepulchres till the last rites have been consummated, and the corpse consumed by fire.

The verb to inhume, which is now commonly applied to the burial of the deceased, is most appropriate to those corpses that are interred after being burned. The pontifical law proves this usage, for before the ground is thrown over them, the spot where the body is burned is not consecrated. When the earth is thrown over the corpse, then it is inhumed, and the tomb is called a sepulchre, and many religious rites are performed in order to consecrate it. So Publius Mucius determined with regard to a person killed in a ship, and then cast into the sea, that his family was pure from any charge of neglect to the deceased, inasmuch as no bone remained on the earth, in which case his heir must have sacrificed a sow to his manes. If, on the contrary, a bone had remained on the earth, he considered that fasts should be appointed during three days, and that a sow should likewise be sacrificed, if the deceased had died in the sea.

Atticus.

—I am well aware of these rules of the pontifical statutes; but what do our civl laws say?

Marcus.

—Little enough on this subject, my Atticus, and I expect you are acquainted with it already. The civil regulation has less regard to the religious ceremonials than to the rights of sepulchres. A law of the Twelve Tables determines that a dead person shall neither be buried nor burned within the city, I suppose on account of the danger of fire. But the addition of this disjunctive nor burned, indicates, that the corpse which is burned is not so appropriately consigned to burial as to inhumation.

Atticus.

—How is it, that notwithstanding this law of the Twelve Tables, so many of our great men have been buried in the city?

Marcus.

—I believe, my Atticus, that this privilege was granted before this law was made, to certain heroic worthies, as Publicola and Tubertus, on account of their virtue, and that their descendents have succeeded to this privilege, though it is an exception to the law. Some others may since have gained this privilege, like Caius Fabricius, whose virtue has in some sense made them free of the laws. The civil law, in all other cases, forbids burials in the city, and the Pontifical College has decreed that it is unlawful to raise a sepulchre in the public places.

You know the Temple of Honour, outside the Collinian gate. We learn from tradition, that there was in ancient times an altar on the spot; and it appears from a medal discovered there, on which was inscribed, “the medal of Honour,” that this was the reason why that temple was so dedicated. But since there were many sepulchres in the neighbourhood, they were ploughed up when the city was enlarged. For the Pontifical College ordained that public places could not be bound by private consecrations.

Another provision we find in the Twelve Tables, intended to obviate the superfluous expences and extravagant ceremonials of funerals, almost literally translated from the laws of Solon. “Ne facito rogum ascia ne polito.” Never carve and polish a funeral pile. You recollect what follows, for we learned the Twelve Tables when schoolboys, as an indispensable lesson, which, by–the–bye, no one attends to now–a–days. Let extravagance, therefore, be diminished to three suits of mourning, with purple bands, and ten flute players. Excessive lamentations are also to be prohibited by this rule,—Let not the women tear their cheeks or make the lessus or funeral wailings.

Those ancient interpreters of our laws, Sextus, Ælius, and Lucius Accilius, have said they could not understand this regulation, but that they suspected it referred to some peculiar funeral ceremonials. Ælius defines the word ‘lessus’ to be a kind of lugubrious ejaculation, or shriek, which I think likely enough, since Solon’s law likewise forbids such lamentations. These rules are very commendable, and equally practicable by the rich and poor, and they are eminently conformable to nature, who sweeps away by mortality all the distinctions of fortune.

The Twelve Tables, have likewise abridged those other funeral pomps, which tend to augment a vain and unavailing sorrow. For they thus declare,—Do not collect the bones of the dead, when their funerals are over. An exception is made with regard to those who die in battle, or in a foreign land.

Besides these laws, there are others with regard to unction, which forbid a servile embalmment of the corpse, and funeral banquets and wakes. These abuses are justly abrogated, which would not have been abrogated had they not been abuses.

Among the prohibitions are likewise comprised expensive respersions, large crowns, and censers of perfume.

It is certain, however, that the ornament of merit may sometimes belong to the dead, because the law enjoins that such a crown should be placed without fraud on the deceased, who has deserved it by his virtue, and on his nearest relation.

I believe there was also a rule that many obsequies should not be celebrated, or many funeral processions arranged for any one deceased.

And since, there was a general law, that gold should not be buried with the dead—another regulation contained this humane exception; if the teeth of the deceased were fastened with gold, the corpse should be buried or burned without taking it away. From which expression we might deduce another argument, that burial and burning were often quite unconnected.

Beside these, there are two laws respecting sepulchres, one of which relates to the houses that have family vaults attached, and the other to the family vaults themselves. One prohibits the erection of a funeral pile or pyre nearer than sixty feet to a neighbour’s house, without its proprietor’s consent, for fear of conflagration. The other ordained, that the sepulchre and its vestibule should not be subject to usucaption, and thus defends the rights of sepulchres.

These regulations we find in the Twelve Tables, and indeed they are very conformable to nature, which is the rule of law. The other portion relates to customs—how funerals should be announced; whether games should be allowed; whether the master of the ceremonies shall employ a herald and lictors; whether the praises of the honorable dead shall be commemorated in a panegyric; whether the elegiac songs shall be accompanied by flutes, so as to form dirges, by which name Gracchus designated funeral lamentations.

Quintus.

—I am delighted that our laws are so far conformable to nature, and above measure pleased with the wisdom of our ancestors.

Marcus.

—Yet I believe, my Quintus, that some further limitation should be made to the funeral pomps and ceremonials. You may see in the funeral of Figulus to what an excess these vanities were carried.

Quintus.

—I think there was formerly far less ambition for this kind of extravagance than at present prevails, as many examples of funeral frugality and simplicity are extant in the records of our ancestors.

Marcus.

—At least our legal interpreters inform us, that the chapter of the law which forbids profuse and excessive ceremonials in the funeral rites of the dead, likewise condemns the superfluous magnificence of sepulchres. And we cannot believe that this important subject should have escaped the attention of our wisest legislators. They say that the custom of interring the dead in the Greek mode, began at Athens in the time of Cecrops. And that immediately after such interments, the next relatives, when they had cast the earth over the dead, scattered the seeds of vegetables over the spot; that, having like a benignant mother, taken her lifeless son to her bosom, by the expiation of the seed she should again bear fruit for the living. Then followed the festivals, which the relatives attended, crowned with flowers; and in these festivals they pronounced the eulogiums on the deceased, if his virtues were worthy of commendation; for it was reckoned impious to lie on such occasions, and thus the ceremony terminated.

In process of time, as Demetrius Phalereus assures us, the funerals became sumptuous, and the elegiac lamentations were extravagantly multiplied. These abuses were prohibited by Solon’s law, which our Decemvirs have translated almost word for word in our Twelve Tables. Our rule respecting the three suits of mourning, and other customs were thus derived from Solon’s regulation; and that edict respecting the dirges is expressed in his precise phrases.—Let not the women tear their cheeks, nor indulge their wailing at funerals. (Mulieres genas ne radunto, neve lessum funeris ergo habento).

There is nothing more to be remarked in Solon’s law respecting funerals, except, that he forbids the injury of sepulchres, or the disturbance of the dead. He makes it penal for any one to violate, dilapidate, or impair any grave, which he calls a tomb, or funeral monument or column. Afterwards, the extravagance of the mausoleums they built in the ceramicus and cemetary, gave occasion to that law which prohibits private persons from erecting any sepulchre more elaborate than ten men can construct in three days. Nor was it permitted to adorn them with sculpture, nor to place the statues they call Mercuries around them; nor to pronounce the panegyrics of the dead, excepting when the obsequies were public, and the constituted officer was duly employed. The eulogiums of men and women were likewise forbidden, that the lamentations might be diminished; for such convocations on melancholy occasions tend to augment unavailing sorrow. Therefore Pittacus expressly forbade any from attending the funerals of those that were strangers to them.

But as the same Demetrius informs us, the magnificence of funeral processions and ceremonials revived anew, so as nearly to equal our present Roman extravagancies; these, Demetrius restrained by a wholesome law; for he was not only, as you are aware, a very learned man, but a most experienced citizen, devoted to the preservation of the state. He therefore diminished the sumptuosity of funerals, not only by penalties, but by a limitation of time; as he commanded that they should be performed before sun–rise. He also established a rule of moderation for all new sepulchres—for he would not allow any edifice over the dead, save a little column, three cubits high, or a tomb–stone, or tablet; and he appointed a regular magistrate to superintend these observances.

Such, my Atticus, were the laws enforced among your Athenians. But let us see what says Plato, who allots to the ministers of religion the charge of regulating funerals, of which we sometimes take cognizance in our civil courts. These are his words respecting sepulchres:—

“Do not use, as a burial place, any portion of land which is either cultivated, or which may be so; but such a soil as nature has adapted for receiving the bodies of the dead, without detriment to the interests of the living. As to the field, which is capable of bearing fruit, and nourishing us with its maternal exuberance of vegetable stores, let us by no means injure it either living or dead. And let no sepulchre be built to a greater elevation than five men can raise in five days; nor let a tablet be made any larger than is required for the reception of an epitaph on the deceased, in four heroic verses,” (which, our Ennius says, is quite long enough.)

We have therefore the authority of the illustrious Plato in our favour. He likewise limits the funeral expenses by the fortune of the family, from one mina to five. He then repeats what he had before said respecting the immortality of the soul, and the tranquility of the good after death, and the punishment of the wicked.

I have now, I believe, sufficiently explained all the laws which relate to religious rites.

Quintus.

—You have, my brother, and most copiously too; but prithee proceed to the other branch of our subject.

Marcus.

—It is my intention to do so; and since you urge me to these discussions, I will endeavour to bring our argument to a conclusion, and if possible, in the course of the day. For I find my predecessor Plato did the same, and got through each legal disquisition in a summer day’s conference. I will, therefore, try to imitate him, and will next speak of magisterial laws; for after those of religion, the state hath nothing more important.

Atticus.

—Proceed, then, and in the same order and method you have discussed the sacred laws, endeavour to illustrate our civil regulations.