XX FUNERAL ORATIONS—FAMILY CHRONICLES.
which every one read for himself and which were written by
persons who had no notion of literary fame.
Cicero says, that history had been falsified through the
funeral laudations of great men, which were preserved in their
families11, and Livy speaks to the same effect12 : these praises,
however, were not always mere fabrications, but some were
authentic documents of a very early date. The expulsion of
the kings falls twenty-eight years before the invasion of
Greece by Xerxes; and from that time we have innumer-
able literary monuments of the Greeks. When we read in
Livy and Dionysius the account of the seven consulships
of the Fabii13, the battle of the Veientines, the history of
Q. Fabius Maximus (in the last book of Livy’s first
decad), we have no other alternative but believing that we
have before us either an extremely well-contrived fiction,
or an historical narrative founded upon ancient documents
belonging to the house of the Fabii. In the last books of
Livy’s first decad we have such accurate accounts of the cam-
paigns against the Samnites, that I have no doubt but that
cither Q. Fabius Maximus himself wrote for his house the
history of the wars in which he was engaged, because his
house was of great historical importance; or that the Fabii
possessed numerous documents relating to their early history.14
This supposition becomes more probable, if we consider the
great intellectual cultivation which we find among the Fabii.
One of them, C. Fabius Pictor, was an excellent painter and
produced a monument of the highest beauty even one hundred
years before the Hannibalian war15; Q. Fabius Pictor, the
historian wrote very beautiful Greek, for no one censures him
for having written barbarous Greek. The Fabii seem to me
to have been a learned family; and I believe they had their
chronicles long before one of their number wrote a history
in Greek.
Now, how did the Romans proceed when they first began
to write the early periods of their history? The part previous
to the establishment of the commonwealth was composed in
accordance with the tables kept by the pontiffs, and these, as
we have seen, were made up according to mere numerical
combinations. These tables were taken, without any criticism,
11 Brutus, 16. Compare Cιc. de Leg. ii. 24.
12 viɪi. 40. Compare Plutarch, Numa, c. 1. 13 Vol.ii. p. 175, foil.
11 Vol∙ii. p.S. 15 Vol,iii. p.356.
ANCIENT LAWS.
xxi
for authentic documents, and if any one, for instance in the
fifth century, wanted to write a history of Rome for his house,
he first had recourse to the annals. But at the same time he
found the old songs of Romulus, the Tarquins, Coriolanus,
Camillus and a number of others. The events they related he
inserted where he thought they would fit, little concerned
whether they would stand the test of an accurate examination
or not, exactly as we find in the chronicle of Cologne. Such
is the origin of the Roman chronicles before the time of
their literature. The scepticism therefore is contemptible,
which says that the Romans had no history before the time of
Fabius. There were but few men, perhaps Fabius, or pro-
bably only Cincius Alimentus and M. Licinius Macer, who also
searched the documents in the Capitol and the ancient law-
books.
The Brazen Law Tables were probably carried away by the
Gauls, as was done by the Vandals at a later period when they
conquered the city; but there were many other legal docu-
ments in the Capitol and inaccessible to tlιe Gauls. It is common
to all nations to record old customs and traditional rights his-
torically in the form of single cases, out of which they arose.
In more ancient times, where authentic documents are wanting,
the rules or laws resulting from individual cases are supplied
from recollection. Such is the custom throughout the East.
The Sunnah, or the Mohammedan code of laws, and the Tal-
mud consist of such single cases; and the whole of the Koran,
so far as the civil law is concerned, is of this description : a
rule is never stated abstractedly, but explained by an account
of single cases. We find the same character even in the
Pentateuch ; for where a rule is to be laid down as to the con-
ditions on which daughters can inherit the property of their
father, Moses merely adduces a precedent in the case of the
daughters of Zelophehad.16 It was the same with the Roman
laws; a number of single cases was recorded in the old law-
books17, as in the case of the judicium perduellionis, which arose
out of the story of Horatius who slew his sister.
The history of the Roman constitution back to the time of
the kings was quite complete. It cannot have existed any
where else but in the pontifical books (pommentarii pontificum),
from which Junius Gracchanus derived his information, wi,ɪo
,6 Numbers, xxxvi. See vol. i. p. 346. 17 Vol. ɪi. p. 281, foil.