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WHEN I had been named by the consuls a judge extraordinary at Rome, 1 and ordered to give judgment “within the Kalends,” I asked Sulpicius Apollinaris, [p. 399] a learned man, whether the phrase “within the Kalends” included the Kalends themselves; and I told him that I had been duly appointed, that the Kalends had been set as the limit, and that I was to give judgment “within” that day. “Why,” said he, “do you make this inquiry of me rather than of some one of those who are students of the law and learned in it, whom you are accustomed to take into your counsel when about to act as judge?” Then I answered him as follows: “If I needed information about some ancient point of law that had been established, one that was contested and ambiguous, or one that was newly ratified, I should naturally have gone to inquire of those whom you mention. But when the meaning, use and nature of Latin words is to be investigated, I should indeed be stupid and mentally blind, if, having the opportunity of consulting you, I had gone to another rather than to you.” “Hear then,” said he, “my opinion about the meaning of the word, 2 but be it understood that you will not act according to what I shall say about its nature, but according to what you shall learn to be the interpretation agreed upon by all, or by very many, men; for not only are the true and proper significations of common words changed by long usage, but even the provisions of the laws themselves become a dead letter by tacit consent.” Then he proceeded to discourse, in my hearing and that of several others, in about this fashion: “When the time,” said he, "is so defined that the judge is to render a decision 'within the Kalends, everyone at once jumps to the conclusion that there is no doubt that the verdict may lawfully be rendered before the Kalends, and I observe that the only [p. 401] question is the one which you raise, namely, whether the decision may lawfully be rendered also on the Kalends. But undoubtedly the word itself is of such origin and such a nature that when the expression 'within the Kalends' is used, no other day ought to be meant than the Kalends alone. For those three words intra, citra, ultra (within, this side, beyond), by which definite boundaries of places are indicated, among the early writers were expressed by monosyllables, in, cis, uls. Then, since these particles had a somewhat obscure utterance because of their brief and slight sound, the same syllable was added to all three words, and what was formerly cis Tiberim (on this side of the Tiber) and uls Tiberim (beyond the Tiber) began to be called citra Tiberim and ultra Tiberim; and in also became intra by the addition of the same syllable. Therefore all these expressions are, so to speak, related, being united by common terminations: intra oppidum, ultra oppidum, citra oppidum, of which intra, as I have said, is equivalent to in; for one who says intra oppidum, intra cubiculum, intra ferias means nothing else than in oppido (in the town), in cubiculo (in the room), in feriis (during the festival). “'Within the Kalends,' then, is not 'before the Kalends,' but 'on the Kalends'; that is, on the very day on which the Kalends fall. Therefore, according to the meaning of the word itself, one who is ordered to give judgment 'within the Kalends,' unless he do so on the Kalends, acts contrary to the order contained in the phrase; for if he does so earlier, he renders a decision not ' within' but ' before the Kalends.' But somehow or other the utterly absurd interpretation has been generally adopted, [p. 403] that ' within the Kalends' evidently means also ' on this side of the Kalends' or 'before the Kalends'; for these are nearly the same thing. And, besides, it is doubted whether a decision may be rendered on the Kalends also, since it must be rendered neither beyond nor before that date, but 'within the Kalends,' a time which lies between these; that is to say, ' on the Kalends.' But no doubt usage has gained the victory, the mistress not only of all things, but particularly of language.” After this very learned and clear discussion of the subject by Apollinaris, I then spoke as follows: “It occurred to me,” said I, “before coming to you, to inquire and investigate how our ancestors used the particle in question. Accordingly, I found that Tullius in his Third Oration against Verres wrote thus: 3 'There is no place within the ocean (intra oceanum) either so distant or so hidden, that the licentiousness and injustice of our countrymen has not penetrated it.' He uses 'within the ocean' contrary to your reasoning; for he does not, I think, wish to say 'in the ocean,' but he indicates all the lands which are surrounded by the ocean and to which our countrymen have access; and these are 'this side the ocean,' not 'in the ocean.' For he cannot be supposed to mean some islands or other, which are spoken of as far within the waters of the ocean itself.” Then with a smile Sulpicius Apollinaris replied: “Keenly and cleverly, by Heaven! have you confronted me with this Ciceronian passage; but Cicero said ' within the ocean,' not, as you interpret it, ' this side ocean.' What pray can be said to be 'on this side of the ocean,' when the ocean surrounds and [p. 405] encircles all lands on every side? 4 For that which is 'on this side' of a thing, is outside of that thing; but how can that be said to be ' within' which is without? But if the ocean were only on one side of the world, then the land in that part might be said to be 'this side the ocean,' or 'before the ocean.' But since the ocean surrounds all lands completely and everywhere, nothing is on this side of it, but, all lands being walled in by the embrace of its waters, everything which is included within its shore is in its midst, just as in truth the sun moves, not on this side of the heavens, but within and in them.” At the time, what Sulpicius Apollinaris said seemed to be learned and acute. But later, in a volume of Letters to Servius Sulpicius by Marcus Tullius, I found “within moderation” (intra modum) used in the same sense that those give to “within the Kalends” who mean to say “this side of the Kalends.” These are the words of Cicero, which I quote: 5 “But yet since I have avoided the displeasure of Caesar, who would perhaps think that I did not regard the present government as constitutional if I kept silence altogether, I shall do this 6 moderately, or even less than moderately (intra modum), so as to consult both his wishes and my own desires.” He first said “I shall do this moderately,” that is, to a fair and temperate degree; then, as if this expression did not please him and he wished to correct it, he added “or even within moderation,” thus indicating that he would do it to a less extent than might be considered moderate; that is, not up to the very limit, but somewhat short of, or “on this side of” the limit. [p. 407] Also in the speech which he wrote In Defence of Publius Sestius Cicero says “within Mount Taurus” in such a way as to mean, not “on Mount Taurus,” but “as far as the mountain and including the mountain itself.” These are Cicero's own words in the speech which I have mentioned: 7 “Our forbears, having overcome Antiochus the Great after a mighty struggle on land and sea, ordered him to confine his realm 'within Mount Taurus.' Asia, which they had taken from him, they gave to Attalus, to be his kingdom.” Cicero says: “They ordered him to confine his realm within Mount Taurus,” which is not the same as when we say “within the room,” unless “within the mountain” may appear to mean what is within the regions which are separated by the interposition of Mount Taurus. 8 For just as one who is “within a room” is not in the walls of the room, but is within the walls by which the room is enclosed, which walls themselves are yet equally in the room, just so one who rules “within Mount Taurus,” not only rules on Mount Taurus but also in those regions which are bounded by Mount Taurus. According therefore to the analogy of the words of Marcus Tullius may not one who is bidden to make a decision “within the Kalends” lawfully make it before the Kalends and on the Kalends themselves? And this results, not from a sort of privilege conceded to ignorant usage, but from an accurate regard for reason, since all time which is embraced by the day of the Kalends is correctly said to be “within the Kalends.” [p. 409]
1 From early times the examination of the evidence in cases at law was turned over by the magistrates to private persons, who acted under instruction from the magistrate. Lawsuits consisted of two parts: a preliminary hearing before the magistrate (in iure) and the proceedings in iudicio before the private judge. Gellius mentions a similar appointment by the praetors in xiv. 2. 1.
2 That is, intra,
3 ii. 3. 207.
4 The Greeks of early times regarded the ocean as a great river encircling the earth.
5 Ad Fam. IV. 4. 4.
6 i.e., take part in politics.
7 § 58
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