[107] Thus Messrs. Hubert et Mauss (_Melanges d'histoire des religions_, Preface, p. xxiv.) maintain that there is no real antinomy between "les faits du systeme magique et les faits du systeme religieux." There is in every rite, they insist, a magical as well as a religious element. Yet on the same page we find that they exclude magic from all organised cult, because it is not obligatory, and cannot (if I understand them rightly) be laid down in a code, like religious practice. I think it would have been simpler to consider the magical element in religious rites as surviving, with its original meaning lost, from an earlier stage of thought. M. van Gennep, in his interesting work _Les Rites de passage_, p. 17, goes so far as to call all religious _ceremonies_ magical, as distinguished from the _theories_ (_e.g._ animism) which constitute religion. This seems to me apt to bring confusion into the discussion; for all rites are the outward expression of thought, and it is by the thought (or, as he calls it, theories) that we must trace the sociological development of mankind, the rites being used as indexes only. I cannot but think that (as indeed in these days is quite natural) this French school lays too much stress upon the outward acts, and that this tendency has led them to find real living magic where it is present only in a fossil state. [108] _e.g._ Tylor, article "Magic" in _Encycl. Brit._, and _Primitive Culture_, 1. ch. iv.; Marett, _Threshold of Religion_, 83. See below, p. 180. [109] Pliny, _N.H._ xxviii. 17 and 18. For the singing or murmuring of spells in many countries, see Jevons, _Anthropology and the Classics_, p. 93 foll. [110] Bruns, _Fontes Iuris Romani_, note on this passage. [111] _Civ. Dei_, viii. 19. [112] See, _e.g._, Wordsworth, _Fragments and Specimens of Early Latin_, p. 446, for an account of simple land measurement which will suffice to illustrate the point made here. [113] The _carmina famosa_ sung at a triumph by the soldiers had the same origin, but were used to avert evil from the triumphator. The best exposition of this is in H. A. J. Munro's _Elucidations of Catullus_, p. 76 foll. [114] Pliny, _N.H._ xxviii. 19. For the technical sense of _defigere_, _defixio_, see Jevons in _Anthropology and the Classics_, p. 108 foll.