APPENDIX TO DE SPECIALIBUS LEGIBUS, III
§ 3. The ocean of civil cares. I do not know that we know enough about the dates of Philo’s writings to say that Heinemann’s positive statement that this refers to the serious troubles of A.D. 38–41 described in the In Flaccum and Legatio ad Gaium is impossible. But it is at any rate uncertain. Apart from such matters as the apparently unsuccessful attempt to interfere with Jewish religion mentioned in De Som. ii. 123 (where see note in App.), and the oppression of the tax-collectors noted below (§§ 159 ff.), there must have been considerable friction in Alexandria caused by the special position of the Jewish πολιτεία long before the outbreak. It is this to which I understand the φθόνος to refer, rather than, as Goodenough, to the conventional idea of the jealousy of fate shewn to prosperity, an idea which does not seem to fit in well with the epithets μισόκαλος and κακῶν ἀργαλεώτατον.
§ 6. Yet … even for this. The meaning of §§ 1–6, when reduced to plain prose, is that the days when Philo could devote his whole powers to philosophy are far back in the past. He is now permanently engaged and sometimes absorbed in political business of a troublesome nature, but there are times when he can get some leisure for his favourite studies and use his philosophical insight (§ 4). There are indeed other times (§ 5) when he can shake off the shackles altogether and perhaps feel the inspiration which he described in De Mig. § 35. But this is not one of these times. His condition is that he can open his eyes as in § 4, though he cannot triumphantly ride the waves as in § 5; yet even for this he is thankful.
If it is asked why this eloquent outcry is introduced at this point, I think it is enough to say that it is a natural literary device marking that he is just halfway through his great subject. Such prologues at pauses in a long disquisition are not, I think, uncommon. They appear, for instance, in Quintilian. It is possible, though I think less probable, that it means to indicate that the work has actually been interrupted by civic troubles and that καιροῦ διδόντος at the end of the preceding treatise should be translated “when opportunity offers,” with the suggestion that the opportunity will have to be waited for.
Goodenough’s idea (p. 9), that the outcry is elicited by a feeling that the criminal and civil laws now to be treated forcibly remind him of his civic distractions, seems to me fanciful.
§ 13. (Persian incest.) See Clement Alex. Strom. iii. 2. 11, who cites the early historian Xanthus as saying μίγνυνται οἱ Μάγοι μητράσι καὶ θυγατράσι, and couples them with sisters. In Paedagogus, i. 7 he says the same of the Persians in general. Tertullian also in Ad Nationes, i. 15 and Apol. 9 repeats the statement on the authority of Ctesias, another early historian. Philo evidently assumes that these early authorities hold good for his own time, though he says nothing of the Magi, for whom elsewhere he expresses admiration (see on § 100 below). Compare on the other hand Sext. Emp. Pyrrh. Hyp. iii. 305 Πέρσαι δὲ καὶ μάλιστα αὐτῶν οἱ σοφίαν ἀσκεῖν δοκοῦντες, οἱ Μάγοι, γαμοῦσι τὰς μητέρας καὶ Αἰγύπτιοι τὰς ἀδελφὰς ἄγονται πρὸς γάμον. The charge against the Persians is often repeated in later writers (references in Mangey ad loc. and Commentator on Clement (Migne)).
§§ 17–18. (Persian civil troubles.) No suggestions are given by Heinemann as to what events, if any, Philo has in mind. Possibly he may have known of the troubles both before and after the succession of Darius Hystaspes and after the death of Xerxes, and a number of fratricides are recorded, beginning with the murder of Smerdis by Cambyses, and before or after the accessions of Darius Nothus and Ochus and Codomannus. See Rawlinson, Fifth Great Monarchy. But his words fit better into more contemporary matters and he is more likely to be thinking of the later Parthian empire which absorbed the Persian. He was quite aware that the Parthians had conquered the Persians (De Ios. 136, Quod Deus 174), but he might, like Horace, identify the two in a vague statement of this kind. Plutarch, Lucullus 36 speaks of the Parthian power as weakened ὑπʼ ἐμφυλίων καὶ προσοίκων πολέμων at the time of Lucullus’s campaign (about 78 B.C.), and the civil war between Mithra-dates III and Orodes after their murder of their father Phraates, a war which ended with the victory of Orodes and the execution of his brother, would be well known to Philo.
§ 22. Marriage with half-sisters on the father’s side. So Cimon married his germana (here = ὁμοπάτριος) soror, “nam Atheniensibus licet eodem patre natas uxores ducere,” Corn. Nep. Cim. i. 2. Themistocles’ daughter married her brother οὐκ ὄντα ὁμομήτριον, Plut. Them. 32. The scholiast on Aristophanes, Nubes 1372, where the poet denounces marriage with an ὁμομήτριος ἀδελφή, says that since marriage between ὁμοπάτριοι was lawful at Athens, the word is added εἰς αὔξησιν τοῦ ἀδικήματος. Philo is right in saying that there was such a law at Athens, whether dating from Solon or not. He does not say that it was a common practice, and when Plato, Laws 838 A, B puts brother and sister without adding ὁμομήτριος among the relations between which intercourse was not only unlawful but felt so strongly to be unlawful that most people had no desire for it, it is difficult to suppose that it was common.
No evidence appears to be forthcoming for Philo’s statement about the Spartan law.
§ 23. (Egyptian marriage with sisters on both sides.) See Diod. Sic. i. 27, where the practice is said to be modelled on the marriage of Isis and Osiris, also the words of Sext. Emp. quoted in note on § 13. Goodenough cites for a later age from the Papyri a card of invitation issued by a mother for the marriage of one of her sons to a daughter.
§ 30. (Remarriage with a divorced wife). On this point Goodenough, pp. 85, 86 calls attention to the Lex Iulia de adulteriis, 18 B.C., which provides that among the things which that law punishes as adultery is “si adulterii damnatam sciens uxorem duxerit,” Dig. iv. 37. 1. Assuming, then, that the remarriage shewed that the intermediate union was adultery, the offender would be liable under Roman law in Philo’s time. Elsewhere (see references in Dict. of Ant.) condonation of adultery is treated under the same law as lenocinium. Is this the Latin equivalent for what Philo calls προαγωγεία? In Greek law this last was a capital crime, as Goodenough notes (though only perhaps if proved to be ἐπὶ μισθῷ. See Lipsius, A.R. p. 435).
§§ 34–36. Heinemann, Bildung, pp. 262–267, has a long and careful discussion of the views expressed here by Philo, and less specifically in other places (Quod Det. 102, De Ios. 43, Mos. i. 28), as compared with Rabbinical and Greek opinion. The upshot of it is that Philo goes far beyond the latter at any rate. The only passage cited which at all approaches this is from Charondas (Stobaeus, Flor. ii. p. 184 Meineke). According to Zeller (Stoics and Epicureans, Eng. Trans. p. 303), the Stoics merely required chastity and moderation in marriage (including total abstinence from pregnant women).
§§ 37–38. Philo may also be bearing in mind Deut. 23:17, where ὁ πορνεύων (E. V. “sodomite”) is coupled with πόρνη as forbidden in Israel. πορνεύων and πόρνος seem regularly to mean a male prostitute rather than as in Heb. 12:16 simply a fornicator. Though no punishment is prescribed in Deut., the fact that Philo seems to base the stoning of the πόρνη on this verse (see on § 81) shews that he would feel the same about the πόρνος.
§ 40. Celebrating the rites of Demeter, etc. I have not been able to find any evidence in support of this account of the prominence of male prostitutes in the mysteries of Demeter or similar rites; nor yet of the next sections describing the honours paid to the castrated. No doubt the Galli, the priests of Attis, were well known and also the votaries who castrated themselves in honour of Attis. See Frazer (Adonis, Attis, and Osiris, pp. 22 ff.), who also mentions the eunuch priests of Artemis of Ephesus, and the Syrian Astartē. But Philo can hardly be referring to these.
§ 51. (Death penalty for harlots.) This severity is in accordance with De Ios. 43, where Joseph is represented as saying “with us death is the penalty for harlots,” but inconsistent with i. 81, where the repentant harlot may retain her civic rights and marry anyone except a priest, and presumably not merely escape death, but remain unpunished.
§ 72. Documents containing the names, etc. Heinemann, Bildung, p. 289, gives an excellent parallel from the Papyri. “The announcement of marriage” contains the names of the parties and of the parents of the wife, the amount of her dowry, the guarantee of the husband to make fitting provision, the promise of fidelity on both sides, and the penalties in the event of infringement.
Goodenough’s theory (p. 92) that this ὁμολογία is regarded by Philo as justifying marital relations before the completed marriage, and that therefore ὑπογάμιον (or ὑπογάμιον ἀδίκημα) was de facto adultery seems to me to be negatived by the phrase in § 74 (which Goodenough passes over very lightly), that the girl has her virginity to defend. Clearly some people did not regard it as adultery, and, when Philo maintains the contrary, he seems to me to be upholding what he takes to be the view of Deuteronomy, which assigns the same punishment as for adultery, and speaks of the violator as having dishonoured (ἐταπείνωσε) his neighbour’s wife. For the equivalence of betrothal to marriage see also i. 107, where it is implied that the betrothed is no longer a παρθένος, “even though her body is pure.”
§ 84. τὸ τῆς τιμωρίας ἀθάνατον. Cohn (Hermes, 1908, p. 206) offers a solution of this corruption which perhaps is preferable to that suggested in the translation. He suggests that εἶδος or an equivalent word has fallen out, and that ἀθάνατον is the result of a gloss explanatory of εἶδος. The glossator wrote αʹ (=ἕνα) θάνατον, and this having been re-embodied in the text in the form of ἀθάνατον ultimately ousted εἶδος.
In the first part of the sentence the suggestion of inserting ἀμειλίκτως is due to H. Grégoire in Hermes, 1909, p. 320, though he would place it between ἐργασάμενον and ἀναιρετέον.
§ 86. (Intention to kill.) Heinemann points out that in giving this interpretation to Ex. 21:14 ἐπιθῆται … δόλῳ, and extending it to cover βούλευσις in general, Philo is following Greek law, τὸν βουλεύσαντα ἐν τῷ αὐτῷ ἐνέχεσθαι καὶ τὸν χειρὶ ἐργασάμενον, Andocides i. 94.
§ 89. (Punishment of poisoners.) Heinemann and Goodenough point out that Philo’s views on this subject are in accordance with the spirit of the Lex Cornelia de sicariis et veneficis (about 81 B.C.) which decreed punishment for preparing, having or selling poisons for the destruction of human life, as well as for actually using them. Josephus, Ant. iv. 279 is closer to the Roman law, as he expressly includes the possession of such poisons as criminal. Both authors apparently go beyond the Lex Cornelia in saying that poison intended to cause other injuries than death. (Jos. εἰς ἄλλας βλάβας πεποιημένον is on the same footing.)
§ 100. (The Magi and the true magic.) Mangey and others quote for the last part of the sentence Cic. De Div. i. 91 “Nec quisquam rex Persarum potest esse qui non ante Magorum disciplinam scientiamque perceperit.”
As to what Philo understands by “true magic” I hazard the conjecture that he has in mind the distinction between “artificiosa divinatio” and “naturalis,” a distinction which is made by the Stoic in the De Div., and accepted by his opponent. The coincidence quoted above inclines one to think that both this passage and the substance of De Div. i. are based on some Stoic treatise (? Poseidonius). In the De Div. the “artificiosa” comprises haruspicy, augury, and the like, while the “naturalis” is limited to inspiration, such as oracles, and dreams. It seems to be equated in i. 90 with “ratio naturae quam φυσιολογίαν Graeci appellant.” This agrees with our passage and with Quod Omn. Prob. 74, where the Magi are extolled as “researching in tranquillity into the works (or facts) of nature and by clearer visions receiving and giving revelations (ἱεροφαντοῦνταί τε καὶ ἱεροφαντοῦσι) of divine excellences.” Further at the end of De Div. i. the Stoic, though he has defended the “artificiosa” in general, rejects the charlatan impostors in much the same tone as Philo takes in § 101. Compare also Mos. i. 277 where ἔντεχνος μαντική was inadequately translated by “his art of wizardry.” Rather it means the “artificiosa” discarded for the “naturalis” of the prophetic spirit. It is an objection to this, but not I think a fatal objection, that either Philo or Cicero must have misunderstood the reference to the Magi. For in Cicero the Magi “augurantur et divinant,” i.e. practise the “artificiosa.”
Heinemann thinks that Philo is just adopting the accepted Stoic definition of μαντική as ἐπιστήμη οὖσα θεωρητικὴ καὶ ἐξηγητικὴ τῶν ὑπὸ θεῶν ἀνθρώποις διδομένων σημείων (S. V. F. ii. 1018, iii. 654), while giving the last words a “monotheistic” twist. He means, I suppose, that φύσις = (as often) θεός is substituted for θεῶν. In view of Philo’s wholesale denunciation of μαντική in i. 59 ff. it seems to me improbable that he would accept this definition without more explanation than this.
It is possible, no doubt, that he is simply echoing the vague popular idea that there is a respectable as well as a disreputable magic, which we find also in the N.T. with the “wise men” from the east on the one hand and Simon and Elymas on the other, all described as μάγοι.
§ 102. θανατῶντας. The same sense for θανατᾶν, i.e. “to be about to die,” is demanded certainly or preferably in De Virt. 34, De Ex. 159, and De Aet. 89. The word cannot be an interpolation in all these places; nor does Cohn raise any objection there. It is true that the accepted meaning of θανατᾶν is “to desire death,” as in Phaedo 64 B. If here and elsewhere it carries the sense of imminence rather than desire, it is presumably on the analogy of verbs of sickness such as ὑδεριάω = “be dropsical” or ὀφθαλμιάω = “have sore eyes.” In this way it may easily = “sick unto death,” and thence pass on to being doomed to death from other causes than sickness. It is a pertinent objection that these verbs are in -ιάω rather than -άω, though indeed to add the vowel in each case in Philo would be less drastic than expunging the word. At any rate the positive fact for the lexicographer is that in these four places the MSS. of Philo exhibit θανατᾶν as = “being near to death.” Possibly to these should be added i. 237, where θανατῶσαν νόσον is corrected by Cohn to θανατοῦσαν νόσον. That the disease itself is near to death (cf. “this sickness is not unto death”) would be a fairly natural extension.
§ 108. Both for the outrage, and for obstructing nature, etc. Goodenough, pp. 113 f. points out that Josephus, Ant. iv. 278 mentions a double fine, (1) for diminishing the population; (2) compensation to the husband, and that Philo’s two reasons, “nature” and ὕβρις, roughly correspond to these. He infers that Philo also contemplates a double fine. He may very likely have found the LXX ἐπιζήμιον ζημιωθήσεται καθότι ἂν ἐπιβάλῃ ὁ ἀνὴρ τῆς γυναικὸς δώσει μετὰ ἀξιώματος obscure.
§ 109. A human being … from confinement. Heinemann and Goodenough note a discrepancy between this and § 117, where Philo accepts the Stoic theory (S. V. F. ii. 806) that the child is not a separate living creature till it has left its mother’s womb. I do not think there is any real discrepancy. Here he is stating what he considers to be implied by the LXX, i.e. that the child at this stage is (potentially) a human being. There he argues that while the Stoic theory may be true and is supported by high authorities, the stricter law of the LXX seems to emphasize the sacredness of the infant and shews a fortiori how heinous is the destruction of the fully born. Cf. for a very similar argument De Virt. 137, 138.
§ 120. (Involuntary homicide.) What does Philo understand by this? In the Pentateuch it seems to mean accidental homicide, see particularly the example given in Deut. 19:5 of the man killed by the slip of the head from his neighbour’s axe. Nothing is said in these sections exactly in contradiction of this, though the μὴ ἐκ προνοίας in § 128 may point to a wider interpretation. But in §§ 92 and 104 we have had suggestions that he regards homicide, if committed in sudden anger or in an unpremeditated quarrel, as different from ordinary murder, though he does not follow this up (see notes on §§ 92 and 104). His view in fact seems much the same as that of Plato, who (Laws 866 D ff.) discusses the point and says that one who kills another in hot blood or unpremeditatedly is οὐ παντάπασιν ἀκούσιος ἀλλʼ εἰκὼν ἀκουσίου. Philo’s ἡμίεργον in § 92 is a rough equivalent of Plato’s εἰκών (“likeness or shadow,” Jowett) and indeed may be a reminiscence of it. That is to say, it is something between ἀκούσιος and ἑκούσιος. One may conjecture that he does not consider it worthy of death, but in face of the law of Ex. 21:18, 19, described in § 100, refrains from saying so.
§§ 131–136. The death of the high priest. Why the death of one high priest should abrogate the reasons assigned for the limit of the exile, when he is immediately succeeded by another, is not here discussed. The real explanation, as I understand from the commentators, is that the rights of the avenger of blood had to be limited, and that the succession of a new high priest, like the accession of a new sovereign, made a convenient limit. Philo himself in De Fuga 106 f. has pronounced the enactment, if literally taken, to be absurd, and therefore explains the death of the high priest as the death of the Logos in the soul.
§ 148. (Punishment in the case where a man is killed by falling into an unguarded pit.) Philo’s statement in the face of the absence of any specific provision in the Law is regarded by Goodenough, p. 129 as clear evidence that he is here giving us the practice of the Jewish courts in Egypt. I think it is merely one of his reasonable inferences from analogous cases. By making the negligence punishable when an animal is killed, the law suggests that it is still more punishable in the case of a human being. What he says really amounts to saying that no one need think himself debarred from making a complaint to the court, which will then have to follow the principle laid down in the matter of the unguarded well, i.e. either death or a fine. He naturally hesitates to prescribe death in so many words, but evidently thinks it would be justified, as also in the case of the φόνος of the unguarded roof mentioned in § 149.
§ 149. (The unguarded roof.) It is noteworthy that Josephus, Ant. iv. 284 also couples this with the unguarded pit, though they came from quite different parts of the Pentateuch, and this has sometimes (see Thackeray ad loc.) been regarded as one of the points which shew Josephus’s dependence upon Philo. See vol. vi., Introd. p. xxii, note e. I think the analogy of the two is obvious enough to have struck both writers independently.
§ 164. (Traitors and tyrants, etc.) Heinemann in his note says positively that the latter law, i.e. against tyrants (in Bildung, p. 212, both laws, regarded as a single law), is an old Macedonian law. Goodenough accepts this and infers that it was probably continued in Ptolemaic Egypt and therefore known to Philo. All this has very slender foundation. Heinemann’s authority is two passages (cited quite reasonably by Cohn as illustrations), one from Curtius Rufus vi. 42. 20, the other from Cicero, De Inventione, ii. 144. The first of these mentions in connexion with a plot against Alexander a “law of the Macedonians providing that the relations of a conspirator against the king should be put to death.” Here it is relations (propinqui), not children, and an “insidiator” is not the same as a προδότης. Still there may be some connexion.
The second passage deals with a problem in the rhetorical schools. There are supposed to be two laws: one that the tyrannicide may claim any reward; another that the “five nearest relations of the tyrant shall be put to death.” The example given is that of Alexander, tyrant of Pherae, who was murdered in 367 B.C., by his wife. By the first law she can claim the life of her son by him as the reward; by the second he must be put to death, and the arguments for either course are elaborately discussed by Cicero. As apparently Alexander’s wife was acting in concert with her brother, who afterwards assumed the tyranny (Diod. xvi. 14), the question can hardly have arisen, and if it did, Pherae was presumably not under Macedonian jurisdiction. But it is quite unsafe to assume that such a law was in existence. The death of Alexander was a famous case of tyrannicide and a useful peg on which to hang one of the controversies, in which tyrannicide was a favourite subject, and to which historicity was a matter of complete indifference. Heinemann and Goodenough have fallen into the same error as on ii. 244, in mistaking these fictions of the schools for sober history; though it must not be assumed that because they are worthless as evidence, Philo had not some other ground, historical or traditional, for his statements.
§ 171. The temple. Possibly τὸ ἱερόν may have become in the διασπορά a conventional name for the synagogue as the best possible substitute for the temple, particularly in Alexandria where the synagogue is said to have been especially magnificent and famous (Jewish Encyclopedia, s.v. synagogue); and so too with the common collocation εὐχὰς καὶ θυσίας for the due performance of all religious rites possible.
On the strict seclusion of women indicated in this section Heinemann (Bildung, p. 234) quotes In Flaccum 89 (of the Jewish women in Alexandria) γύναια κατάκλειστα μηδὲ τὴν αὔλειον προερχόμενα καὶ θαλαμευόμεναι παρθένοι, though he points out that it reflects Greek rather than Jewish ideas.
Goodenough cites a passage from the female Pythagorean Phintys, quoted in Stobaeus (Meineke, iii. 64), which in some ways curiously resembles this, but shews less strictness. Phintys’s lady may go out duly attended not only to public worship but to see spectacles (θεωρίαι) and to shop.
§ 176. (Exclusion of women from gymnastic competitions.) The only evidence for this known to me is their exclusion from the Olympic games mentioned in Aelian, V.H. x. 1, and Pausanias, v. 6. 7. Elsewhere Pausanias, vi. 20. 9 (if the text is right) states that virgins were not excluded.
§ 181. (Penalties not corresponding to the crimes.) Goodenough, p. 137 says that the list of punishments here given follows those provided in Greek law for the several crimes. This seems to be only partially correct. The punishment for αἰκία was a monetary fine, and murderers were apparently allowed to evade the death-penalty by flying the country. But the punishment for τραύματα ἐκ προνοίας, i.e. wounding intended to kill, which perhaps may be equated with Philo’s τραύματα καὶ πηρώσεις, was banishment, not ἀτιμία, which is a loss of civil rights not entailing banishment. It seems to be true that theft might sometimes be punished by a few days’ imprisonment as a supplement to a manifold restitution of the things stolen, but what Philo here means is imprisonment instead of such restitution. I do not see any reason to think that he refers to any particular body of legislation.
The references given by Goodenough to Lipsius are to pp. 646, 605–607, 440, to which add for wilful murder, 603–604.
§ 183. ἀποφράδες ἡμέραι. The idea suggested in the translation is that, as all religious rites are forbidden on these days, the action cannot desecrate them. Compare Lucian, Pseudologistes 12, where the performance of sacred rites is included among the things prohibited on the Apophrades. Something of the same sort appears in Laws 800 D, where Plato forbids the melancholy strains used at sacrifices as blasphemy and relegates them to the Apophrades.
It seems possible, however, that the contrast intended may be the opposite of this, namely that things which are lawful on the feast-days are intolerable at other times. Philo may be thinking of pagan usage around him and allude to the license allowed on public feast-days (cf. De Cher. 91 ff.). This will give ἀποφράδες ἡμέραι something more like its ordinary meaning. Days which are inauspicious for ordinary business will be still more inauspicious for unlawful actions.
§ 184. The most conspicuous and distinguished situation. Heinemann quotes Cic. De Natura Deorum, ii. 140 “oculi tanquam speculatores altissimum locum obtinent,” but the thought there is somewhat different, rather of convenience than dignity, as it continues “ex quo plurima conspicientes fungantur suo munere.”
§ 204. (The law of the millstone). Heinemann, who (Bildung, p. 430) gives ἵεται ἐπʼ ἀνδροφονίαν the somewhat stronger sense of “aims at murder,” considers Philo’s comments to be a rhetorical exaggeration, and that no such murderous intention on the part of the creditors is suggested by a law which merely prohibits the attachment for debt of an indispensable article. (Such laws are paralleled in other legislations, indeed in the Common Law of England, see Adam Smith ad loc. Goodenough (p. 142) aptly cites out of the Papyri an example from the Ptolemaic law of Egypt, where a farmer’s cattle and tools and a weaver’s loom are mentioned.) But Philo gives a natural interpretation of the strong phrase ψυχὴν ἐνεχυράζει. It must be remembered that he only notes this law incidentally to strengthen his point of the criminality of destroying a man’s teeth.