D. 33.1.20.1 (Scaevola 18 dig.) Revisited

Robert Feenstra (leiden)

When recently I was invited to prepare a study on the history of foundations as institutions in continental law since the twelfth century I was induced to “revisit” my 1956 study on foundations,^[111] which also covered the period before Justinian.

“Attia fideicommissum his uerbis reliquit: �?quisquis mihi heres erit, fidei eius com­mitto, uti det ex reditu cenaculi mei et horrei post obitum sacerdoti et hierophylaco et libertis, qui in illo templo erunt, denaria decem die nundinarum, quas ibi posui’. quaero, utrum his dumtaxat, qui eo tempore quo legabatur in rebus humanis et in eo officio fuerint, debitum sit, an etiam his qui in loco eorum successerunt. respondit secundum ea quae proponerentur ministerium nominatorum designatum, ceterum datum templo. item quaero, utrum uno dumtaxat anno decem fideicommissi nomine debeantur an etiam in perpetuum decem annua praestanda sint. respondit in per­petuum.”

In 1956 it was not usual to add a translation to a quotation of a Latin text, but habits have changed. Since I am involved in an enterprise to translate the whole Corpus Iuris Civilis into Dutch, and am now contributing to a volume dedicated to the editor of a complete English translation of the Digest, it would seem suit­able to provide a translation here; and what could be more appropriate than using this new English translation? It reads:^[113]

“Attia left a fideicommissum in these words: �?Whoever shall be my heir, I impose on him a fideicommissum that after my death he shall give to the priest, the guardian, and the freedmen in that temple, on the day of the festival which I established there, ten denarii from the income of my attic and my warehouse’.

The point I made in 1956 was the following. Classical texts in the Digest deal­ing with foundations are not very numerous. Much more is to be found in the inscriptions of this period. They have been examined by many scholars but sometimes with prejudices as to the legal forms which were employed in these inscriptions. Eberhard Bruck,⁶ however, has rightly emphasised that we should be allowed to speak of foundations not only where corporations like collegia or municipia are appointed as administrators of funds devoted to particular pur­poses, but also where human beings are chosen as administrators and/or bene­ficiaries in a way that may seem very rudimentary to modern eyes, but which nevertheless is not essentially different from the “trust device” in what the Germans call “improper foundations”. It is true that the classical Roman jurists did not pay much attention to these foundations, which were often devoted to very personal purposes as, for instance, the worship of the dead by the annual holding of a repast on his grave. But there are some cases of major importance discussed in the Digest within the limits of legacy and fideicommissum. In many of these cases a charge is laid on a corporation, usually a town. But in the pre­sent text, D.33.1.20.1, Scaevola would seem to have hesitated between two legal devices to interpret the will of the de cuius. First, he says “ministerium nomina­torum designatum”: I would translate “the office of the said functionaries has been designated”;⁷ in 1956 I called this a “trust-like device”.

⁴ For a critique on “specific individuals” see infra n.7.

⁵ For observations on “but” see infra.

⁶E F Bruck, “Die Stiftungen fur die Toten in Recht, Religion und politischem Denken der Romer”, in his Uber romisches Recht im Rahmen der Kulturgeschichte (Berlin-Gottingen- Heidelberg, 1954) 72, in particular at 76.

⁷ The translation “office of specific individuals” (supra) is not satisfying: there is a clear link with the question submitted to Scaevola, which precedes.

⁸ Whether the translation “but” is acceptable will be discussed infra.

⁹ Before Constantine the Church was organized, for practical purposes, in a number of congre­gations which from the official point of view would be considered as collegia illicita. These collegia,

As far as I know, not much attention has been paid to this aspect¹⁰ of the text since 1956. It is only an obiter dictum of Impallomeni in 1971¹¹ that could give a new turn to the present discussion. Criticizing Galante, who saw in the expres­sion ceterum datum templo “il riconoscimento della capacita giuridica del tem- pio medesimo”, Impallomeni holds the view that ceterum datum should be linked with ministerium and therefore would not indicate the object of the fideicommissum. This interpretation would lead to a translation like: “the ser­vices¹² of the said functionaries had been designated, which, however, were given to the temple”.

In my opinion there is at least one important objection to this interpretation.

Another objection could be that the translation of ceterum becomes still more difficult than in the traditional interpretation. In any case it does not make much sense to say simply “however” (cf. “but” in the Watson translation). But also a translation with “for that matter” or something similar¹³—which I would pre­fer, following the old German translation of the Corpus Iuris Civilis of 1831: “ubrigens aber”¹⁴—would not fit very well. In Impallomenfis interpretation these corporations, owned the church buildings etc. By the Edict of Milan of 313 AD, all this prop­erty, as far as it had fallen into the hands of the persecutors, was restored to the corpus Christianorum, a very obscure legal term. In fact the restitution will have taken place to the local church communities, which might still have been considered as collegia or corpora, although in actual practice church property was not administered by all the members of a local church, as it would have been in the case of an ordinary corporation; it was the bishop who exercised effective control, and each diocese was modelled not on the colleges but on the Empire. Generally the texts do not go so far as to recognize the bishops as fiduciary owners of the Church property; they prefer to speak of this property as belonging to an ecclesia, to a monasterium, etc., using more or less abstract notions, which could lead to a concept of legal person (although the Romans did not know the abstract concept “legal person”, even in Justinian’s time).

¹⁰ Other aspects have, of course, often been dealt with. One of them is the confusion between fideicommissum and legatum; in this context the text has recently been mentioned, with many other texts of Scaevola, by David Johnston, The Roman Law of Trusts (Oxford, 1988) 260, at 261 n.15.

¹¹ G Impallomeni, “Sulla capacita degli essere soprannaturali in diritto romano”, in Studi in onore di Edoardo Volterra III (Milan, 1971) 23—68 (reprinted in his Scritti di diritto romano e tradizione romanistica (Padua, 1996) 227—63) at 60 (= 257) n.112.

¹² “Office given to the temple” would seem strange; “offices” might perhaps be possible, but in this context is better avoided because of its equivocality; cf. infra in the text.

¹³ Perhaps “for that matter, however”. Both translations of ceterum are possible, as far as I know.

¹⁴ C E Otto, B Schilling and C F F Sintenis (eds), Das Corpus Iuris civilis in’s Deutsche Ubersetzt, vol. III (Leipzig, 1831) 422. The recent Spanish translation, A d’Ors et al, El Digesto de Justiniano, Version castellana, vol. II (Pamplona, 1972) 524, has “pero”. The new Dutch translation J E Spruit et al, Corpus Iuris Civilis, Tekst en Vertaling, vol.IV (Zutphen Gravenhage, 1997) 702, has “overi- gens”. Cf. Addendum infra. ceterum could better be left out entirely, even if it were a post-classical gloss (a point that he does not seem to consider).¹⁵

Returning to my comment of 1956 I am inclined to say that the fact alone of the ambiguity of ceterum constitutes an argument in favour of considering “ceterum datum templo” as a gloss; one could also think of it as the result of shortening Scaevola’s original text.¹⁶ Templo datum in itself is certainly not sus­pect.¹⁷ It is just a second possible answer to the question that was submitted to Scaevola.

I would not now completely reject my hypothesis of an influence of Christian concepts dating from after the Edict of Milan in case ceterum datum templo is considered as a gloss but it is perhaps safer to leave that out.

However this may be, the text remains a nice example to demonstrate in abstracto two possible concepts of a foundation. The medieval civilians would seem more attracted by the datum templo solution: at least Accursius and his predecessors do not elaborate the ministerium designatum concept.¹⁸ But the canonists could have felt—although I did not find that they referred to this text—some affinity with ministerium designatum: Innocent IV, e.g., puts the theory that dignitaries of the church “finguntur... eaedem personae cum pre- decessoribus”;¹⁹ he puts church offices (prebendae, dignitates, administrationes)

¹⁵ For another, “ingenious but ultimately unconvincing explanation” of a text of Scaevola by Impallomeni designed to avoid admitting interpolation, see Johnston, supra n.10, 262 n.20.

¹⁶ On such shortening, not only in Scaevola’s Responsa but also in his Digesta, see F Schulz, Geschichte der romischen Rechtswissenschaft (Weimar, 1961) 294 (= History of Roman Legal Science (Oxford, 1946) 233). Another possibility would be a shortening of a nota of Claudius Tryphoninus on Scaevola’s Digesta; we know of a number of such notae of Tryphoninus; see Lenel, Pal. II col. 378.

¹⁷ See L Schnorr von Carolsfeld, Geschichte der juristischen Person, vol. I (Munich, 1933) 39. He cites some literary sources for templo dare and says, at 43: “die wenigen Stellen, in denen templum zur Bezeichnung des Empfangers einer Sache gebraucht ist, lassen es nicht als unwahrscheinlich erscheinen, dass in D. 33.1.20.1... das Wort templum von Scaevola herruhrt”. Although he remains hesitant in his conclusions, he states nevertheless: “Innere Grunde sprechen... nicht gegen die Echtheit dieser Stelle”. In my opinion, however, such “innere Grwnde” are obviously present for this text.

¹⁸ See the Accursian gloss Nominatorum to D. 33.1.20.1 (cf. the amusing preceding gloss Hierophylaco (or Gerofilaco in old editions) where he explains this word as “nomen... capelle vel loci ubi est capella, ut sacerdos ricardine delectabilis nostre ville”). The gloss Nominatorum has been taken over practically in toto by Accursius from glosses of Rogerius and Hugolinus; see G Chiodi, Interpretazione del testamento nel pensiero dei Glossatori (Milan, Universita degli studi di Milano, Facolta di giurisprudenza, Pubblicazioni del Istituto di storia del diritto italiano, No. 21, 1996) 607 n.181; 691 and 798-9.

¹⁹ Innocentius on X 1.6.28, verbis propter bonum pacis (Apparatus Innocentii quarti super quinque libris decretalium, Lugduni 1520, fol. 26r).

on the same level as abbatia, hospitale vel quaecumque alia domus.^[114] This is reminiscent of the concept of the corporation sole which is special to English law. A subject for comparative studies in Alan Watson’s style?

Addendum:

When working recently on a Dutch translation of D.44.4.4.34 I was struck by the possibility of interpreting ceterum as equivalent to nam. While this sense of ceterum is mentioned neither by Georges nor by Lewis and Short in their dic­tionaries, nor in the OLD, it is proffered and documented in the VIR (followed by the TLL, with additional references to non-juridical texts). Although D. 44.4.4.34 does not occur among the references for “ceterum V. fere = utique, nam” in the Vocabularium, ceterum is interpreted in this sense not only in the English translation edited by Alan Watson and in the Spanish translation edited by A d’Ors et al, but also in the old German translation (cf. supra n. 14) by Sintenis himself. The latter refers to Gilbertus Regius^[115] and to Abraham Wieling.^[116]

None of these authorities proposes the translation “for” in D. 33.1.20.1, which is perhaps worth considering. I do not think, however, that accepting this translation would make much difference to what I have argued supra. At most, the fact that in D. 44.4.4.34 there would seem to be no reason to consider the phrase with ceterum as not coming from Ulpian might constitute an argument in favour of supposing that in D. 33.1.20.1 Scaevola himself had used ceterum in this sense.