15 The Praetor Hoist with his Own Petard: the Palingenesia of Digest 2.1.10

ALAN RODGER (EDINBURGH)[327]

INTRODUCTION

Throughout his career Alan Watson has been interested in the way in which law develops. Though that interest has extended to many periods and many places, he devoted an important study to the development of the praetor’s Edict in the Roman Republic.¹ I have therefore chosen to discuss a text on an edict which touches on the limits of the praetor’s powers.

In his reconstruction of the praetor’s Edict Lenel inserts in Title II an edict “Quod quisque iuris in alterum statuerit, ut ipse eodem iure utatur” [“The same rule which anyone maintains against another is to be applied to him”²], the prin­cipal effect of which is to apply to the magistrate, in a case involving himself, the same law as he has previously applied to a case involving other people.³ Modern scholars do not seem to attach much importance to this edict, though Professor Domingo has examined its wording as part of his wider work on the first title of the praetor’s Edict.⁴ In earlier times the edict was not given prominence because on the whole it was not applied in those states whose law was shaped by Roman law.⁵ The comparative lack of interest of modern scholars may be explained both by the lack of any equivalent measure in modern law and by the fact that we have very few texts to work on. The aim of this article is to add D. 2.1.10 to the small number of texts which can be taken to relate to the edict. We shall also look briefly at D. 2.1.11.

It is trite that the praetor’s Edict played a central role in the development of Roman law.⁶ On taking up office the praetor would publish an edict setting out the remedies which he would grant and the defences which he would allow dur­ing his term of office.

The edict quod quisque must be seen against this background. The date when it was first introduced is uncertain, though some scholars, associating it with problems that we know existed in the first century BC, would date it to that period. Certainly there is a letter of Cicero that appears to refer to the edict and to suggest that it may have been introduced by Cn. Octavius (praetor in about 79 BC).⁷ At least we can say that it would have been in existence by that time.

The basic idea behind the edict is simple and not indeed devoid of human interest. The idea is that if a praetor makes a decision, say, granting a remedy

⁴ R Domingo, Estudios sobre el primer titulo del edicto pretorio (Universidade de Santiago de Compostela, 1996), vol. 3, ch. 4 with references. See also H Levy-Bruhl, “Une application originale du talion en matiere de procedure civile: l’edit: Quod quisque juris...”, in Melanges de Droit Romain dedies a Georges Cornil (Paris, 1926) II, 67, and E Genzmer, “Talion im klassischen und nachklassischen Recht?” (1942) 62 SZ 122.

⁵ For the older literature see C F Gluck, Ausfuhrliche Erlauterung der Pandecten (Erlangen, 1792) vol. III 1, 258-81.

⁶ See, for example, Watson, Law Making, supra n. 1, ch. 3 and 101-10; now F Wieacker, Romische Rechtsgeschichte (Munich, 1988) 429-38 and 462-70.

⁷ See Cicero ad Quintum fratrem, 1.1.21. For the argument that this passage marks the beginning of the development, see Genzmer, supra n. 4, 135-7, as qualified by G Pugliese, Il Processo Civile Romano,Vol. 2 Il Processo Formulare (Milan, 1963) 177-8. For the identification of Octavius as Cn. Octavius rather than as C or even L Octavius, see A W Lintott, Violence in Republican Rome (Oxford, 2nd edn. 1999) 129-30, and B W Frier, The Rise of the Roman Jurists (Princeton, 1985) 51-2, 93, with refs.

where none was envisaged in his Edict or refusing an action where one would have been expected under his Edict, then, if later on he was involved in any legal proceedings himself involving a similar question, his opponent was entitled to demand that a similar decision should be applied to him. Suppose, for instance, someone extracted the promise of a sum of money from X by some dishonest stratagem and, when X was sued on it, the praetor refused to give X a defence based on dolus—saying that the device did not amount to dolus. If the praetor himself were later sued in similar circumstances, and claimed the defence of dolus, then his opponent could say: “No, he cannot have it since in the case involving X he himself ruled that it was not available to someone who made a promise in these circumstances”.

In fact the scope of the edict is wider than that, since it applies also to a liti­gant who successfully argues for a particular decision.^[328] If he argues for, and obtains, the decision from the magistrate, then in any subsequent case an oppo­nent can demand that the same decision should be applied against the litigant who obtained it in the previous action.

The aim of the edict must have been to check the temptation for magistrates to give wayward decisions by making them realise that if they did so, they ran the risk of being treated in the same way in some matter affecting their own affairs. The equivalent provision applying to the litigant who argued for the measure would similarly act as a restraint on litigants. There are penal aspects in the language used by the jurists. In D. 2.2.2 Paul says that this edict “pun­ishes” the dishonesty of the magistrate. In 2.2. 3.2 and 5 Ulpian talks of “this penalty”, while in s.6 he reports Julian as saying that a person suffers the penalty under the edict even in cases which arise after the time when the offending deci­sion was made. So the edict was plainly designed to catch what was seen as an abuse. This is reflected in the fact that Paul holds that the edict does not apply when the magistrate gives a particular decision on the advice of a member of his panel of advisers rather than on his own initiative.^[329]

A general account of the effect of the edict is found in D. 2.2.1.1 but, contrary to what had previously been thought, Lenel pointed out that this passage does not give the wording of the edict, but rather an account of its provisions. It was therefore necessary for Lenel to go about reconstructing the terms of the edict.^[330] In certain respects, one of which is relevant to the present argument, his recon­struction is unsatisfactory.^[331] But before looking into the matter, we must set out the text which is to be the main focus of our discussion, D. 2.1.10, from book 3 of Ulpian’s commentary on the praetor’s Edict. It provides as follows:

“10. qui iurisdictioni praeest, neque sibi ius dicere debet neque uxori vel liberis suis neque libertis vel ceteris, quos secum habet.”

[“One who administers justice should not do so in cases involving himself or his wife or his children or his freedmen or others whom he has with him”.]^[332]

In the Digest the text is to be found in D.

THE POSITION OF FRAGMENT 10 IN DIGEST 2.1

The main part of the Edictal Mass in Digest title 2.1 de iurisdictione ends with text 12. Down to that point the title contains four texts from Ulpian’s commen­tary ad edictum, two from Paul’s and two from Gaius’s commentary ad edictum provinciale. With the section of commentary to which Lenel assigns them, they are:

4. Ulpian 1 ad edictum—de damni infecti cautione (E.3)^[333]

6. Paul 2 ad edictum—de vadimonio Romam faciendo (E.6)^[334]

7. Ulpian 3 ad edictum—de albo corrupto (E.7)^[335]

8. Gaius 1 ad edictum provinciale—de albo corrupto (E.7)^[336]

9. Paul 3 ad edictum—de albo corrupto (E.7)^[337]

10. Ulpian 3 ad edictum—de iurisdictione, introductory discussion to Title II^[338]

11. Gaius 1 ad edictum provinciale—de vadimonio Romam faciendo (E.6)^[339]

12. Ulpian 18 ad edictum—ad legem Aquiliam (E.77)^[340]

For the moment we can concentrate on texts 4, 7 and 10 which come from the very early books of Ulpian’s commentary. He was dealing there with topics which occurred early in the Edict. The Edict itself was divided into titles. H.t. 4 comes from the part on municipal magistrates,^[341] while, according to Lenel,^[342] 7 and 10 come from the edictal title de iurisdictione, which contained two edicts in this order: de albo corrupto (on fraudulent alteration of the published Edict) and quod quisque iuris in alterum statuerit, ut ipse eodem iure utatur, the one which concerns us in this chapter.

The edictal title de iurisdictione prompted Ulpian to insert in his commentary a general discussion of jurisdiction.

By contrast text 7 was attributed by Lenel^[346] to the commentary on the edict de albo corrupto. It has long been seen that text 7 must come from this part of Ulpian’s commentary, just as 8 must come from the equivalent part of Gaius’s commentary.^[347] The contents of the texts refer so plainly to the provisions of the edict as to put the matter beyond doubt.

If we put Lenel’s two attributions together, in the original work of Ulpian, 10—from the introductory discussion—would have come before 7, from the subsequent commentary on the first edict (de albo corrupto) in the edictal Title. This observation in turn points to the underlying assumption (conscious or, as I rather think, unconscious) of Lenel’s analysis: the order of the material at this point in the Digest title has been altered at the editorial stage. If the texts were indeed taken from the contexts which Lenel supposes, then whoever read book 3 of Ulpian ad edictum at the excerpting stage would first have read the intro­ductory part, including text 10, and would then have read the part de albo cor­rupto, including text 7. The excerpts when chosen would have been selected and copied out in that order. So, unless they had been rearranged later at the edito­rial stage, they would have turned up in the title in the order: 10 followed by 7. Since, of course, they in fact turn up in the opposite order, we should be forced to conclude that they had been rearranged at the editorial stage so that the excerpt from the introductory material came after the text on the album cor­ruptum in the Digest title.

There are two ways in which the phenomenon could have occurred: either what is now text 7 was moved up before what is now text 10 or 10 was moved down below 7. It is sometimes hard to determine in which way any particular move is to be seen. In this case, however, neither move seems at all plausible. Text 7 has no connexion with the discussion of delegation in texts 5 and 6. So one can see no reason why an editor should push text 7, the excerpt on tamper­ing with the Edict, up beside them. Equally, one is at a loss to see why an editor, finding what is now 10 immediately after 6, should have felt obliged to postpone it till after the matter of the album corruptum had been disposed of in the group of texts 7 to 9. Moreover, even if the origins of texts 10 and 11 were similar,^[348] their actual content is not sufficiently similar for it to be plausible to argue that 10 has been placed in its present position in order to introduce, or to link up with, what is said in 11. In short, looked at from the point of view of content, 10 is just an isolated fragment coming between two texts with which it has no par­ticularly close connexion. For this reason there is no really persuasive argument for supposing that 10 has been deliberately repositioned between 9 and 11.

Even when these facts are taken into account, we may still, of course, choose to believe that for some reason or other the order of texts 7 and 10 has been altered, as Lenel’s attribution presupposes. Yet in the absence of any apparent reason why the alteration would have been made, we may at least wonder whether in fact this alteration ever took place. Since we cannot find a satisfac­tory explanation for supposing that the order of the texts was altered, we should inspect the texts a little more closely to see whether we can account for their pre­sent order in the Digest title without having to assume that they were swopped round at the editorial stage.

DE ALBO CORRUPTO: A POSSIBLE SOURCE FOR D. 2.1.10?

As has already been remarked, the original context of 7 is beyond dispute: it comes from the commentary on the edict de albo corrupto. This gives us a fixed point from which to work. If we are to explain the order of the texts in the Digest, it must be by finding a different context in Ulpian’s original work for text 10. More particularly, we are looking for a context which would occur later in book 3 of Ulpian’s commentary than the remarks in text 7. There are only two possibilities: either text 10 came from a later point in Ulpian’s commentary on the album corruptum or it came from his commentary on the edict quod quisque. No other context is available since by the time Ulpian reached Title III in the Edict, de edendo, he was into book 4 of his commentary.^[349]

In text 10 Ulpian says that a person qui iurisdictioni praeest must not pro­nounce on the law for himself, his wife, his children, his freedmen or others in his entourage. So we are looking for a context where Ulpian might have cause to refer to such a rule.

Is such a context to be readily identified in the edict de albo corrupto? That edict deals with fraudulent interference with the praetor’s Edict. It provides no very obvious opportunity for such a statement by Ulpian. It is true, of course, that, according to Lenel,^[350] the edict may have contained the words iuris dicundi causa and that in 10 Ulpian is discussing persons for whom the magistrate ought not to ius dicere. But there is no real connexion between the phrases. In the edict de albo corrupto, the words define material which has been put in the magis­trate’s album. In text 10 on the other hand Ulpian cannot be discussing mater­ial of any kind in an album: he is referring, rather, to particular situations in which the magistrate is not entitled to pronounce on the law. In any event Ulpian deals with the word corruperit in the edict de albo corrupto in text 7.5 and so there would be difficulty in seeing text 10 as referring to the words iuris dicundi which would come before corruperit in that edict.^[351] We can accordingly safely exclude commentary on the edict de albo corrupto as a source for 10.

ANALYSIS OF D. 2.2.1.2

If the edict de albo corrupto cannot provide a suitable home for D.2.1.10, we are left with the edict quod quisque. Since the text of this edict is not separately pre­served, we are not well informed about its precise terms, even in the revision of Julian. What we do know, however, is that Ulpian commented on it in book 3 of his edictal commentary. It is worth looking in some detail at D.2.2.1.2 which preserves part of his commentary:

“haec autem verba: �quod statuerit qui iurisdictioni praeest’ cum effectu accipimus, non verbo tenus: et ideo si, cum vellet statuere, prohibitus sit nec effectum decretum habuit, cessat edictum. nam statuit verbum rem perfectam significat et consummatam iniuriam, non coeptam. et ideo si inter eos quis dixerit ius, inter quos iurisdictionem non habuit, quoniam pro nullo hoc habetur nec est ulla sententia, cessare edictum putamus: quid enim offuit conatus, cum iniuria nullum habuerit effectum?”

[“But we construe these words �what he who is in charge of the administration of jus­tice has established’ as referring to the effect of a decision not to the words in which it is formulated. Therefore, the edict does not apply if he wishes to establish a rule but is prevented, and the decree had no legal effect. For the word �established’ means that the matter has been concluded and the wrong completed not merely begun. And, therefore, if anyone should administer justice between parties over whom he had no jurisdiction, since the proceedings are held to be void and there is no decision, we think that the edict is not applicable. For what harm has been done by an attempt when the wrong has had no effect?”]^[352]

The passage is by no means free from difficulty, and some at least of the prob­lems touch on our discussion. The text appears to give us Ulpian’s remarks on words quoted from the edict, “quod statuerit qui iurisdictioni praeest”. Lenel objects to these words on the basis that praeest cannot have been found in the Edict, where it would have had to be praeerit.^[353] He then goes on to reject the words “qui iurisdictioni praeest” as a mere appendage to the words “quod stat­uerit” which he regards as the proper quotation from the text of the edict. It is only right to point out, however, that Lenel’s own reconstruction of the edict itself does not even contain the word quod far less any version of the phrase quod statuerit. This is one of the problems with his reconstruction which we mentioned above.^[354] It goes some way to undermine the confidence which we should usually have in following the rest of his reconstruction, and in particular in accepting his complete rejection of the words “qui iurisdictioni praeest” in favour of the phrase “qui magistratum potestatemve habebit”.

Part of Lenel’s argument for confining the citation to quod statuerit is to say that Ulpian’s comments in 1.2 are not directed to any other words.^[355] But even if he were correct in this—and, as we shall see, he is not—that argument would be compelling only if we could be satisfied that the text gives us all of Ulpian’s thoughts on these words in the edict. That must surely be questionable. Examination of the passage suggests that it preserves at best a shortened version of Ulpian’s discussion interspersed with elements which must be due to a later hand.^[356] So far as the second point is concerned, even in these days of extreme conservatism in textual matters, it would surely, for instance, be a bold spirit who would claim for Ulpian the final rhetorical question. Other elements are at least suspicious. More importantly perhaps, the editing of the text has tended to conflate what must have been distinct sections of a longer discussion.

That discussion as a whole is directed to exploring the scope of the words in the edict and so to investigating what can be seen as possible lines of defence open to a magistrate against whom the edict is being invoked. His opponent wishes to use the magistrate’s decision against him. The magistrate counters by praying in aid objections to the competency of that decision, his argument being that if, when he is supposed to have made his decision (statuit), either he did not actually make a decision or it was somehow wrong for him to do so, then that “decision” does not count for purposes of the edict.

The first case discussed in 1.2 (in the part down to “non coeptam”) seems to be where in the earlier dispute the magistrate wanted to give the legal ruling but was prevented from doing so and no decree was pronounced in final form. In other words, the magistrate had indicated that he would give a particular legal ruling but, before he could incorporate it in a decision, he was stopped for some reason. In a later case the opponent tries to fix the magistrate with this proposed ruling, but the magistrate argues that the edict does not apply to it since he never actually gave it. The decision is that this proposed ruling does not count. Since the magistrate did not pronounce (statuit), his opponent in the later suit cannot saddle him with the proposed ruling. It has long been seen, certainly since the time of Cujas, that D. 48.19.18, which says that you incur no penalty merely for thinking, was lifted from this discussion.^[357]

The sentence in 1.2 beginning nam purports to give the reason for the view taken in the previous sentence. But as we have just seen, that reason is based on an interpretation of the verb statuit in the perfect tense, the point being that it indicates a completed act. The difficulty is that this reasoning relies on an ana- lyis of statuit, a word which has not occurred in Ulpian’s discussion so far. Some older editors of the Digest simply altered statuit to statuerit to obviate the diffi­culty, but that will hardly do, if only because the argument so obviously turns on the verb being in the perfect tense. Presumably it is also because of the prob­lems presented by statuit that Beseler deletes the sentence.^[358] But in this he goes too far. While the text of the edict must have contained the future perfect stat­uerit, in any given case where the edict fell to be applied, the party seeking to use it would be contending that at some time in the past the magistrate statuit (decided) in a certain way. Indeed the future perfect statuerit will have been used in the praetor’s Edict precisely to indicate the sequence of events, with the rele­vant decision having already been taken before the time when this particular edict falls to be applied. So, while the argument fits perhaps rather badly as the text stands, it could have fitted better into a longer discussion of the use of the edict, where the jurist explained that, when the party contends that a magistrate decided (statuit) something, he must point to an actual completed decision.

Since the next section also opens et ideo, it was inevitably suspect to Beseler and in his last discussion of the text he deletes the whole thing.^[359] In an earlier study he had been content with lesser changes,^[360] but by substituting item for et ideo he rightly signalled that this part is dealing with a different case. The point now is: what happens when the magistrate made a decision but did so in a case in which he had no jurisdiction? Here, it should be noted, the magistrate will have ruled, so that his opponent in the later case will be able to point to an actual decision. The magistrate, however, seeks to escape from the toils of the edict by arguing that, even though in fact he may have given a ruling, this should not count because he lacked the jurisdiction necessary to make a valid ruling. This argument looks like a proper subject for debate among lawyers and for that rea­son alone we can hardly accept Beseler’s wholesale rejection of the sentence.

What we almost certainly have is the compilers’ decision (putamus), adopting one particular approach on a previously disputed point.

It is worth noting that, contrary to what Lenel suggests,^[361] there is nothing to indicate that this discussion turns on the interpretation of the word statuerit as opposed to the words qui iurisdictioni praeest. Rather, a defence that the mag­istrate had lacked jurisdiction would be most neatly tacked on to these or simi­lar words which define the person taking the relevant decision as a person who has jurisdiction. We may therefore readily suppose that the edict did contain words akin to “qui iurisdictioni praeest”. Indeed it is quite possible to take the view that in this part of the text Ulpian is really interpreting the whole phrase “quod statuerit qui iurisdictioni praeest”, since he can be seen as saying that a “decision” taken by someone who did not have iurisdictio does not count as a sententia and so the magistrate has not pronounced on the matter and the edict does not apply.

If the magistrate’s defence is that he had no jurisdiction and the edict referred to a person qui iurisdictioni praeest, we may not be surprised to see that the text says that in such a case the edict does not apply. But it is likely that there were conflicting views since the issue could present itself in different ways. For instance, if the ruling of the magistrate had been acted upon and the iudex had pronounced judgment, then it might seem extremely unfair for the magistrate now to defend himself by saying that, even though all this had happened, in fact he had had no jurisdiction and so he should not be caught by his ruling. Even more unsympathetic might be the case where the judgment of the iudex had been enforced without the point about the magistrate’s jurisdiction ever being taken. Conversely, the magistrate might well attract more sympathy if the juris­diction point had been spotted before any steps had been taken and so his deci­sion had had no practical effect. Whether the words nec est ulla sententia are the remnants of a discussion of this kind is hard to tell. The magistrate might argue that in such a case, as in the case of the ruling which he was prevented from mak­ing, even though he had given the decision, nobody had suffered any wrong as a result and so the edict should not be applied.

Given these various possibilities—and doubtless others—there may well have been shades of opinion among the jurists when they looked at various sets of facts. If so, these conflicting views have been suppressed in favour of a shortened account containing the solution preferred by the compilers: if the magistrate did not have jurisdiction, the edict does not apply.

the Palingenesia of d. 2.1.10

But, I suggest, in the original passage of Ulpian’s commentary from which D. 2.2.1.2 was excerpted the discussion did not end there. A situation was suggested where, although the magistrate had jurisdiction, and although he made a decision, he ought not to have done so. This is the case discussed in D. 2.1.10. Notice the opening words “qui iurisdictioni praeest” which echo those found in D. 2.2.1.2 and point to the fact that Ulpian is discussing a magistrate who has jurisdiction, but who ought not to deal with cases involving these per­sons as parties. Ulpian mentioned these cases, it is suggested, in the context of a discussion of a further defence which might be advanced by a magistrate faced with the edict quod quisque. His defence would be that a slightly different objec­tion from that on jurisdiction was maintainable. The objection was that, even though he had had jurisdiction, he should not have ruled in a case involving him­self or certain relatives and dependants, as the case might be, and his ruling was made in just such a case. What we have in D. 2.1.10 is an excerpt from Ulpian’s discussion containing a statement of the general principle which gave rise to the point.

The point would arise in this way. When the opponent tried to use the edict against the magistrate, the opponent could point to an actual decision by the magistrate. He could also say that the case was within the magistrate’s jurisdic­tion as such. To these arguments the magistrate would reply that nevertheless he had not been entitled to make a decision in the former suit because, for instance, his freedman had been one of the parties. Accordingly, his decision in that case should not be regarded as regularly made and so, it would be argued, it should not be used against him in the present litigation.

What the decision on the magistrate’s argument would have been we have no way of telling. The magistrate could not found so surely on the actual wording of the edict since he had had iurisdictio and he had made a decision (statuit). It is especially difficult to judge the outcome since we are not well informed about the status, as between the original parties, of a ruling by a magistrate who was related in this way to one of them.^[362] It is tempting perhaps to say that the mag­istrate’s decision would be of no effect and to argue from the case where the magistrate exceeded his jurisdiction, but some at least of the jurists may have drawn a distinction. After all D. 2.1.10 proceeds on the very hypothesis that there was jurisdiction, and that being so, the magistrate’s ruling might, for instance, have been regarded as valid unless his right to give it had been chal­lenged by the party who was not related to the magistrate. That party might not bother to challenge the magistrate’s right to sit in the case and might not be tempted to do so later if he actually won the case before the iudex. If there had been no challenge and in a later action the magistrate’s opponent sought to invoke his earlier ruling, probably some jurists at least would say that the mag­istrate should not be allowed to argue that his earlier ruling had been invalid because of his relationship with one of the parties.

Not only would these cases of relationship provide a possible subject for dis­cussion in connexion with the edict, but they would also be precisely the type of case which might spring most readily to mind. After all, the whole purpose of the rule that magistrates should not sit on cases involving themselves and their various relations and dependants must have been to avoid the risk, or even the suspicion, of partiality. But on one view there is actually no objection to a mag­istrate being partial unless he gives practical expression to his partiality. One of the most obvious ways of doing so would presumably be by stretching the law to give a ruling in a relative’s favour. So when considering an edict dealing with wayward rulings, jurists might well think of cases involving relatives and depen­dants as being the kind of case in which such problems would be most likely to arise.^[363]

It is interesting to notice the somewhat limited scope of the prohibition in D. 2.1.10. It bars sitting in cases involving children, but says nothing about those involving, say, brothers, parents or grandparents. The prohibition seems to be confined to those over whom the magistrate would have influence, either because they would usually be in his potestas, or because they would be in his retinue—always supposing that the words “vel ceteris quos secum habet” derive from Ulpian, as they appear to. The question for which I have no real answer is why the class of relatives is restricted in this way. One might, for instance, have expected at least some reference to the magistrate’s father or to other persons with influence over the magistrate, as being persons for whom he would have been likely to stretch a point. Or was it so unthinkable that a praetor should decide a case involving his father—inevitably entailing the risk of having to decide against him—that there was no need to mention it? Or else was there some provision which actually barred the magistrate from sitting in such cases? The answer remains unclear.

If we now return to the point where this investigation began, we find that the palingenesia we have proposed for D. 2.1.10, which is in itself satisfactory, has the advantage of smoothing out the difficulty with the order of texts 7 and 10. Text 7 is from the section of commentary on the edict de albo corrupto (E.7) while 10 is from the section on the edict quod quisque which occurs later in the Edict (E.8). The texts therefore occur in the Digest title in the same order as they occurred in the commentary of Ulpian and we do not require to suppose that the order has been inverted for some reason which we cannot identify.

Of course, strictly speaking, the problem with the order in the Digest title would be removed on the assumption that D. 2.1.10 occurred anywhere in the discussion of the edict quod quisque. It might therefore be suggested that the text occurred in some general introductory remarks with which Ulpian prefaced his discussion of the edict and in which he dealt with the question of iurisdictio. While that possibility cannot, of course, be excluded, it seems less likely if, as seems to be the case, Ulpian had already included a general excursus on iuris­dictio at the start of his treatment of Title II of the Edict, de iurisdictione. Admittedly, our argument that D. 2.1.10 forms part of Ulpian’s commentary on the particular edict quod quisque removes one of the three texts upon which Lenel relies for evidence of the existence of this earlier general introductory sec­tion on jurisdiction. We are left with D. 5.1.2 and “perhaps”—the word is Lenel’s—D. 50.16.6. The former at least is so substantial and general a tract that it seems of itself sufficient to bear out that part of Lenel’s theory.

If one had to be more precise as to the possible origin of D. 2.1.10, then it could be surmised that in Ulpian’s original commentary what is now D. 48.19.18 came as part of the argument found in the second sentence of D. 2.2.1.2. That is concerned with when there is, or is not, a decision—hence it fits into commen­tary on the word statuerit. Then in the next sentence we have the argument on a decision made when the magistrate had no jurisdiction, which would perhaps come after the comment on statuit alone and could be seen as a comment on the entire phrase “quod statuerit qui iurisdictioni praeest”. The suggestion is that D. 2.1.10 would have formed an extension of that discussion, dealing with the case of a magistrate who had jurisdiction but who should not have sat to deal with the particular case because of his relationship with one of the parties.

En passant it should be noted that Domingo proceeds on the assumption that in the praetor’s Edict the edict quod quisque came before, rather than after, the edict de albo corrupto.^[364] This is, of course, contrary to the usual view. If the argument which we have advanced as to the palingenesia of D. 2.1.10 is correct, then the relative positions of D. 2.1.7 and D. 2.1.10 constitute evidence that, contrary to what Domingo supposes, the edict de albo corrupto came before the edict quod quisque.

THE POSITION OF FRAGMENT 11 IN DIGEST 2.1

D. 2.1.11, Gaius 1 ad edictum provinciale, contains a discussion about the value of legal claims. This would be relevant to the situation where the jurisdiction of a court was subject to a monetary limit. The detail need not concern us here. I have pointed out elsewhere that Lenel’s assumption that D. 2.1.11 came from a discussion of vadimonium to Rome is by no means straightforward since the text occurs at a later point in the Digest title 2.1 than D. 2.1.8, from the same book of Gaius’s commentary, which plainly comes from his discussion of the edict de albo corrupto.^[365] If the order of the texts in Digest title 2.1. is a clue to their relative order on excerpting, we can say that text 11 did not occur earlier in Gaius’s commentary than the section on the edict quod quisque, though it might have occurred later. In the case of Gaius the argument is rather less clear­cut than it was with Ulpian. In the case of Ulpian we know that the edict quod quisque was the last which fell within book 3 of the edictal commentary, since Ulpian dealt with the opening topics of his commentary on Title III de edendo in book 4.⁴⁶ Gaius’s commentary was much shorter and therefore dealt with more topics in a single book. In particular he does not seem to have reached the end of book 1 of his commentary until after Title VI de postulando, by which time Ulpian had reached book 6 and Paul book 5 of their commentaries.⁴⁷ Nor does text 12 in Digest title 2.1 give any help in delimiting the range of options since it comes from book 18 of Ulpian’s commentary. It follows that the section of text which we find in text 11 could in theory at least have come from any part of Gaius’s commentary from the section on the edict quod quisque down to the end of book 1 at Title VI.

In fact, however, the only other title in this part of the Edict which might be thought to give a plausible specific context for these remarks of Gaius is Title III de edendo.⁴⁸ The title deals with the means by which a plaintiff briefly notified the defendant of the subject-matter of the dispute in which the initial proceed­ings (in iure) would take place after summoning by in ius vocatio or the less for­mal procedure of vadimonium. It is conceivable that in that connexion the jurists, and Gaius in particular, might have said something about the limits of jurisdiction of a particular court in which proceedings might be taken and of the way in which the value of an action might be established—perhaps with refer­ence to the manner in which the subject-matter would be described in the plead­ing (editio actionis). While, of course, such a possibility cannot be excluded, it is perhaps not particularly likely, especially when it is recalled that Title III in the Edict follows immediately after Title II which was apparently concerned specifically with matters of jurisdiction. Especially in a relatively short com­mentary, Gaius might not be expected to re-open the topic of jurisdiction in this connexion.

It is therefore at least possible that text 11 derives from the part of Gaius’s commentary where he dealt with the edict quod quisque. As we saw supra, con­trary to what Lenel argued, the edict may well have contained words such as “quod statuerit qui iurisdictioni praeest”. Of course, if it did, then the reference to iurisdictio would give a possible opening for Gaius to include general remarks about jurisdiction, including remarks on pecuniary limits—of particular rele­vance in a provincial context—and on how the value of the subject-matter of a case was calculated for the purposes of such limits. There are signs that text 11 has been the subject of routine interpolation to adapt it to the changed judicial scheme of Justinian’s times and text 11.1 in particular seems to have become

⁴⁶ Lenel, EP, 59 n. 11.

⁴⁷ Lenel, EP, 75.

⁴⁸ Lenel, EP, 59-64.

somewhat garbled.^[366] But there is nothing in the content as such which argues against this origin for the passage as part of Gaius’s commentary on the edict quod quisque. This hypothesis is indeed preferable to that proposed by Lenel since it is more consistent with the place of text 11 in the Edictal Mass in Digest title 2.1. None the less, there are reasons also for doubting whether this excerpt does actually come from Gaius’s commentary on the edict. As I have remarked elsewhere, the passage looks like an excerpt from a much fuller discussion of the limits of jurisdiction.^[367] It seems perhaps unlikely that Gaius would have attached a substantial treatment of this topic of general importance to a rela­tively minor edict like quod quisque. There is therefore much to be said for the view that the passage is taken from some more general treatment of iurisdictio which occurred at this point in Gaius’s commentary.

Unfortunately therefore we cannot safely assume that D. 2.1.11 is a text on the edict quod quisque. We must be content simply to add D. 2.1.10 to our small store of texts on this topic.