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Zielinski's examples will be found scansions like possessoribus agrī tamen emantur (p. 47), impŭdentissima (p. 64), et võluptatibus (ibid.), patria mòrī patiamini (p. 77), dělō mălō seiungere (p. 86). The language of Cicero's speeches is, I suppose, as near an approximation to the language of ordinary life as we are likely to get. It is surely almost unthinkable that he should here have adopted an artificial pronunciation in order to secure a rhythmical ending for his clausulae; such a proceeding would have covered him with ridicule. And the fact that his practice agrees in the main with that of the dactylic poets may be appealed to as evidence that their prosody too was not of an artificial nature.

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The bed-rock on which the whole theory of shortening rests is the observation of Müller that an iambic sequence of syllables (~) may form the rise or the fall of a foot in OL dramatic verse.1 Hence it is assumed that if in Latin we find where the Greeks would have put the second of the two syllables must be somehow shortened. Is this assumption justified? That is the question I wish to raise. I suggest that it is not. I see no a priori impossibility in the rise or fall of a foot being formed of two syllables of which the first is short, but the second long; and hence I find no need for a doctrine of shortening. Of course a rise or fall so constructed is quantitatively defective; but OL verse is quantitatively defective in another and an even more important respect-the habitual use of long inner falls.2 If the Roman ear found nothing intolerable in the first and third lines of the following passage (and such lines occur on every page of Plautus), why should it necessarily have objected to the second ?3

Pro di immortales, in aqua numquam credidi

Voluptatem inesse tantum! ut hanc traxi lubens!

Nimio minus altus puteus visust quam prius (Rud. 458 ff.).

1I venture to use the terms which I have coined (see 2d ed. of the Mostellaria, 1907, p. 146) as a substitute for the terms "thesis” (Hebung) and "arsis" (Senkung)— or "arsis" and "thesis" as I should write if this article were to be published in England.

2 The majority of falls (outer and inner taken together) are dimoric in OL dramatic verse.

To my ear the second line is more rhythmical than the others, because it has all its inner falls short. On the shortness of the fall that comes between the two rises of each dipody quantitative rhythm depends.

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I will put in two pleas in explanation of a usage which Bentley, too, thought very pardonable. In the first place, a rise or fall of the form is only relatively unquantitative; for at least one of the two syllables is short, and this short syllable comes first, and so gives to the dissyllabic rise or fall a start on the right lines. Secondly, it seems never to have been noticed that in the case of a rise formed with the short syllable which comes first is insufficient by itself to fill up the rise, which cannot be of smaller compass than two morae. Thus in a line like Bacch. 147,

Omitte, Lyde, ac cave malo.-Quid, cave malo?


when the speaker or reader comes to the rise of the third foot (and of the fifth) and is confronted with the short syllable ca-, he cannot stop there but is compelled by the demands of his ear (which expects a long syllable) to take in the next syllable as part of the rise. That the syllable thus taken in (-vē) makes the rise as a whole too long is true. But this only amounts to saying that a rise so constituted is not quantitatively exact. It ought to be dimoric; it actually is trimoric. A little extra length in a rise is at any rate a fault on the right side. Yet it is quite conceivable that the length of the second syllable would be slightly reduced in utterance wherever it involved no difficulty of pronunciation to do so. The use of to form a fall involves, no doubt, more difficulty; for in the case of iambic and trochaic verse any fall may be, and an inner fall ought to be, monomoric. But, as the outer falls may be just as well long as short in Greek verse, and as the Greek comedians had gone great lengths in admitting dimoric inner falls of the form ~~,1 their Roman imitators went one better (or worse) by obliterating the distinction between the inner and the outer fall to a great extent; 2 and with this distinction there also disappeared, to a great extent, the quantitative distinction between the fall and the rise. In this way I explain to myself how it was that the OL verse writers came to extend to falls in iambic and trochaic verse the practice which they


1E.g. (to take an extreme case), κατάβα, κατάβα, κατάβα, κατάβα.—καταβήσομαι, Arist. Wasps 979. See note of Starkie.

2 I have not forgotten that Klotz maintained that accented long syllables were excluded from inner falls; but Plautus admits them far more frequently than Klotz knew.

had come to regard as justified in rises.

Perhaps the way was made

easier by the dimoric falls of anapaestic verse; in a line like Stich. 37,

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The above suggestion of mine might be regarded as hazardous were it not supported by the structure of some other kind of verse. But I am in a position to appeal to an analogous case. That Germanic verse has a quantitative element in it is recognized by the best authorities (Sievers and Schipper). The rises are formed as a general rule by syllables which are both long and accented. The falls are formed by unaccented syllables (or syllables bearing only a secondary accent), either short or long, or by several such (x or xx or xxx); and what is of immediate importance for my purpose is that any rise may be resolved into ex, i.e., into an accented short syllable followed by a syllable which may be either short or long. The analogy to the Plautine cáue is perfect. An illustration of the same thing may be given from modern English verse, if my readers will allow me to scan it in the way I think it ought to be scanned. Shakespeare shall give us an example of the pure dissyllabic rise (~~):

My father's spirit in arms; all is not well.

Milton provides an instance of the rise of the form 660):


Out of such prison those spirits of purest light.

(P. L. VI,

To our English ears spirits (~-) is as acceptable as spirit. Why then should not Plautus have allowed himself a potest as well as a potis, especially in a language which had a preponderance of long syllables?

AUGUST 12, 1910




Laws in the sense in which the Xenophontic Pericles' defined them—πάντες γὰρ οὗτοι νόμοι εἰσὶν οὓς τὸ πλῆθος συνελθὸν καὶ δοκι μάσαν ἔγραψε, φράζον ἅ τε δεῖ ποιεῖν καὶ ἃ μή—are not found in Homer. But there were nevertheless definite ideas of å Te deî ποιεῖν καὶ ἃ μή, though they had not yet been formulated in codes and constitutions. And the notion of orderliness and of obedience to the prevailing standards of right and justice was expressed by such words as εὐνομίη, εὐηγεσίη, and εὐδικίη. The θέμιστες were the nearest approach to laws. Strictly speaking they were pronouncements of the king indicating in an authoritative fashion what was right and proper (épis) in a particular set of circumstances. The usual occasion was the arbitration of a dispute. To the Zeus-born and Zeus-nurtured king was granted the scepter and the OéμOTES. When the lesser chiefs as representatives of the ruling aristocracy dispensed justice they, too, were intrusted with the Oépores and held the scepter when they pronounced judgment. Originally the decisions were regarded as divine inspirations; but the use of the adjective oκoλaí in connection with Oéμores shows that the notion of a divine source had practically disappeared. None of these inspired judgments are recorded in

1 Special phases of the legal history of Greece in the Homeric age, e.g., the meaning of 0émores, the trial scene pictured on the shield of Achilles, and the punishment of homicides, have always attracted a great deal of attention. Of the trial scene Leaf observes "there are probably no twelve consecutive lines in the Homeric poems which have been obscured by so many explanations" (Journal of Hellenic Studies VIII, 122 ff.). But no one, I believe, has collected all the data furnished by the poems for a first chapter of Greek legal history. The present paper is the result of an attempt to reconstruct the Homeric judicial system.

2 Xen. Memorab. i. 2, 42.

8 λαῶν ἐσσι ἄναξ καί τοι Ζεὺς ἐγγυάλιξε | σκῆπτρόν τ' ἠδὲ θέμιστας, ἵνα σφίσι βουλεύῃσθα.-Ι. ix. 989.

4 Ibid. i. 234 ff.

[CLASSICAL PHILOLOGY VI, January, 1911] 12

Ibid. xvi. 387.

the poems, but the well-known judgment of Solomon will serve as an illustration.'

The word din came to share with Oéμores the general idea of justice, and is used to supplement the Homeric legal vocabulary. Thus a person who refuses to do what is right is åleμíσrios, but a righteous man is δίκαιος, not θεμίστιος. And the abstract idea of justice is expressed not by θεμιστοσύνη but by δίκη. Θεμιστεύω in the sense of "pronounce judgment" occurs, but dikaw is the more common word. Kpívw is also used of the exercise of judicial functions in such phrases as κρίνωσι θέμιστας.

In modern criminal law self-help' in the form of self-defense against aggression plays an important rôle subject to certain restrictions. But in the Homeric age there were no restrictions upon the exercise of self-help save such as were imposed by the individual's own weakness. The general custom of carrying arms greatly facilitated recourse to this method of obtaining redress.


1I Kings 3:16 ff. Cf. Gilbert Beiträge zur Entwickelungsgeschichte des griechischen Gerichtsverfahrens 463. Hirzel (Dike, Themis, und Verwandtes 40) regards és as "die Erklärung eines göttlichen Willens, des Willens des Zeus." 'Aber," he continues, "das Gebiet der féus reicht noch weiter. Ueberall wo ein Allgemeines herrscht, als Natur (Il. ix. 133 ff.), als Gewohnheit (Od. xiv. 129 ff.), und Sitte (Od. xi. 450 f.), oder wo es auch nur als Regel des socialen und politischen Lebens einen leisen Zwang ausübt (Od. iii. 186 f.), empfand der Grieche einen höhern Willen, eine éμus, ohne dass dieser Wille gerade ein vernunftiger, geschweige denn ein göttlicher zu sein brauchte." Maine (Ancient Law 4f.) has pointed out that these judgments are not based on custom but themselves contain the germs or rudiments of customs. Alkn means way," "habit," or "custom" (Od. xviii. 215), "what is right or due" (Od. ix. 215; I. xix. 180), "justice" (Od. xiv. 84; Il. xvi. 388), and "a judgment" (Od. iii. 244; Il. xvi. 541). Finsler ("Das Homerische Königtum," Neue Jahrbücher XVII, 329) denies that dikŋ ever means a "judgment"; cf. Maine op. cit. 5, and Hirzel op. cit. 57. Hirzel's view that "way" or "custom" is a derived rather than the original meaning of dikŋ is not convincing.


2 Anyone may resist attacks upon himself or his property. But the law requires that the resistance shall not be more than is sufficient for the purposes of self-defense; for the prevention of a wrong, not its redress, is the object of self-defense. But in the case of certain wrongs the common law allows true remedial self-help. One may expel a trespasser, retake goods of which he is the rightful owner, or abate a nuisance. So far as assisting another to defend himself is concerned, it is certain that a person may always defend those whose relation to him implies protection. It has even been held that a man may defend anyone; but his right to assist is no greater than the other's right to defend himself. In practice these rights are materially restricted by the prohibition against carrying weapons. I follow the example of Sir Frederick Pollock in using the English equivalent of the expressive German Selbsthülfe. The distinction between self-defense and self-help which he points out has no application here (The Law of Torts 154).

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