A. LEGAL TEXTS

§ 11 The legal texts which are vital for the study of the Roman law as it is con­ceived in this work (§9, supra) fall within two groups: (1) the juristic writings and the imperial legislation incorporated in the compilation of the emperor Justinian known as the Corpus Iuris, and (2) legal extracts preserved in ex­tant pre-Justinian juristic texts and compilations.

I. Corpus Iuris Civilis (Corpus of Civil Law)^[52]

§ 12 The first edition to bear the name Corpus Iuris - or rather Corpus Iuris Civilis to distinguish it from the Corpus Iuris Canonici (Corpus of Canon Law) - was that of Dionysius Gothofrcdus, printed at Geneva in 1583. It con­sjsted of two volumes, the first including the Institutes and the Digest, the second having the Code, the Novels, and supplements; these titles will be described below. Earlier editions of the legislative activity of Justinian, cor­responding to the separate manuscripts upon which they were based, were regularly published in five volumes, namely, Digestum vetus, Infortiatum, Digestum novum,¹ Codex, and Volumen. The last comprised the Tres libri (‘three books', the last three of the Code), Authenticum (one of the versions of the Novels), and the Institutes. The earliest printings were of individual volumes, though by the turn of the last quarter of the 15th century, some printers published the complete set? The critical preparation and emenda­tion of the texts resulted particularly from the activity of scholars of the so- called Humanistic School, notably Andreas Alciatus (Alciat) and lacobus Cuiacius (Cujas); in Spain, Antonius Augustinus, and in Germany, Gregor­ius Haloander (Melzer).

The early editions of the Corpus Iuris were ‘glossed’ editions, that is, the original text was accompanied by marginal annotations which had been made by the medieval school of jurists known as Glossators, culminating in the compilation of such glosses by Franciscus Accursius (circa 1250 A.D.), known as the Glossa Ordinaria.⁴ To the manuscript versions of the glossed Corpus luris, the printed editions added further marginal annotationsand comment interspersed between the titles of the text, extracted from the work of later jurists known as Commentators? From the end of the 16th cen­tury, however, the Gothofredus edition, without glosses but with his an­notations, served as the basis for later editions.⁴ A new edition, largely based on a collation of manuscripts by Brcncmann and others, was prepared by Gebauer and Spangenberg, 1776-1797. In the first half of the 19th century the editions by Beck, 1825-1835, and by the brothers Kriegel and others, 1828-1843, are to be noted. Then, as the result of modern textual criticism, the edition now generally used, the stereotype edition? was fashioned from

2. For the explanation of these names of portions of the Digest, see infra, $ 14.

3. Editions at Venice by Jac, Rubeus, 1476-1478, and by Nie. Jenson, 1476-1477. There may have been an earlier complete edition by Vitus Puecher, at Rome, 1475-1476, but the volumes of the Digestum vetus and the Code have not been found. Cf. Spangen berg, Einleitung 659; Backing, Pandekten I * 18.

4. 'Hie significance of the glosses and the later comment fal ls outside the scope of this work. For an introduction to this phase of study, see Vinogradoff, Roman Law in Medieval Europe, chap. I.

5. Typical good glossed editions of the five volumes from the press of Hugo a Porta in Lyons between 1538 and 1575; or those of the Venetian publisher ‘apud Juntas’ from 1592 to 1621.

6. Noteworthy are editions by lacobus Gothofredus, in 1628, on which was based the beauti­fully printed Elzevir edition, at Amsterdam, in 1663.

7. Vol. I: Institut io net, ed. P. Kruger, and Digesta_t ed. T. Mommsen, ed. stereo. 17(1963); Vol. II: Codex lustinianus, ed. P. Krüger, ed. stereo. 13 (1963); Vol. Ill: Noveflae lustinlanae, ed. R. Scholl and W. Kroll, ed. stereo. 8 (1963).

the definitive editions of the Digest (by Mommsen) and the Code (by Kruger), together with editions of the Institutes (by Krüger) and of the Novels (by Scholl, completed by Kroll).

There exist translations of the whole of the Corpus Iuris, sometimes in­cluding translations of pre-Justinian legal works, in the five languages in which most of the study of the Roman law has been concentrated.* Some are quite good, others fair, but that in English, by Scott, disinclly poor.* Never­theless it can be used, with great caution, for mistranslations are frequent­a negative may even be omitted - in part due to the fact that an antiquated text was used for the translation.

a. Institutiones lustiniani (Institutes of Justinian)

$ 13 The first part of the Corpus Iuris was compiled for Justinian as an intro­ductory course oflaw study for first-year law-students. Itwas based on earlier books of Institutes, particularly on that of Gaius, a renowned law teacher and scholar who lived in the second century of our era, some three and a half centuries before the reign of Justinian.

The known manuscripts of the Institutes arc numerous but not very early in date;* some fragments of a Veronese palimpsest and a manuscript in Berlin, both of the 9th century, are the earliest? A good part of the text had been incorporated in an early medieval ecclesiastical law book? while a Greek paraphrase of the Institutes by oneofthe commissioners who partici­pated in its compilation⁴ had aided in the critical preparation of the text.

The earliest printed edition of the Institutes was that of Petrus Schoyff at ^{[53] [54] Mainz, in 1468.J The first editions without glosses date from 1511, 1525 and 1529/ A distinct scholarly advance was made in Cujas* edition of 1585.There were hundreds of editions of the Institutes to the 19th century.7 Thereafter, note the edition by Biener, in 1812, and that by Schrader, in 1832.· Critical re-examination of the text in view of the discovery of the palimpsest of Gaius’ Institutes in 1816’ led eventually to the definitive editions of Krüger, in 1867,'° and of Huschke, in 1868.’1 The former serves as the text for the Institutes reproduced in the stereotyped edition ofthe Corpus Iuris.}

Many collections of sources reproduce the text of the Institutes;¹² transla­tions of this introductory book on Roman law exist in most languages?’ Among works of special merit by Englishmen are Holland’s comparative study?⁴ Moyle’s text and translation?^J and the use of the Institutes as the core of a course in Roman law, by Sanders?⁴ and by Lce;ⁿ a recent trans­lation, with extensive commentary, by Thomas?¹

Similar to other portions of the Corpus Iuris, the citation to the Institu­tes has varied during the centuries?’ The four books comprising the work contain unequal number of titles most of which have, since medieval times, been broken up into paragraphs, the first termed pr. (= princi­pium, beginning), the remainder numbered 1,2, 3, etc. The lawyer of old

5. Bonfante, Storia II 190, alone among commentators, states that the first edition is that of Mainz, in 1460, Generally, on the editions, see Wenger, Quellen 609 f.

6. By Petrus Gratianopolitanus, at Paris, 1511; by Claude Chevallon, at Paris, 1525; by Haloander, at Nuremberg, 1529.

7. Spangenberg, Einleitung 931-40, enumerates 667 editions to the dale of his work (1817); Kübler, Geschichte 421, gives this figure.

8. Kriigcr, Geschichte 437 n.14, points out the failure of Schrader to establish the relation between the manuscripts, and thus the defects in his edition.

9. Comparison of the two texts by Klcnzo-Bocking, Polenaar, and Gneist, reff, in Wenger, Quellen 610 nn. 125-127.

10. lustiniani Institutiones recensuit Paulus Kruger (1867; 3rd ed., 1908). In this edition and its reproduction in the stereotyped edition, the material which is borrowed from Gaius is enclosed within i- -i, that added by the compilers between < >.

11. Imp. lustiniani Institutionum libri quattuor cum praefatione el ex recognitione Ph. E. Huschke (1868; ed. stereo. 1905).

12. Arangio-Ruiz - Guarino, Breviarunt 209-424.

13. Eg., in Hebrew, by S.

14. The Institutes of Justinian, edited as a recension of the Institutes of Gaius (Oxford 1873, 2d ed., 1881). Holland shows that of the 909 paragraphs in Gaius' work, 414 were adopted in Justinian's Institutes.

15. Moyle, Imperatoris lustiniani Institutionum libri quattuor (1883, 2nd ed., 1890), and Moyle, The Institutes of Justinian, translated into English with an index (1883, 5th cd,, 1913).

16. The Institutes of Justinian (1853, 9th cd., repr. 1956).

17. The Elements of Roman Law (1944, 4th ed., 1956).

18. The institutes of Justinian. Text, Translation and Commentary (Cape Town 1975).

19. See Wenger, Quellen 610 f.

need only be given the title heading, or rubric, so-called because origi­nally written in red ink; he knew in which book it was included. Today we cite by book, title and paragraph. Thus: pr. I. de cxcus(ationibus) [ex- cusal from guardianship] was once sufficient; later, pr. I. (or Inst.) de excus. (1, 25); then, pr. I. I, 25; now, I. 1.25 pr.

Passages from the Institutes of Justinian are included in this work in the following form:

Iustinianus, Institutionum liber 1.2.2

The ius civile is denominated according to the individual state, for example, ( the ius civile) of the Athenians. For if one wishes to call the laws (leges) of Solon or Draco the ius civile A theniensium, he shall not have erred....

b. Digesta lustiniani (Digest of Justinian)

§ 14 The second part of the Corpus Iuris of Justinian - termed Digest, or Pandects, in Greek - is made up of extracts from the writings of jurists of the first to third centuries of our era, compiled by a commission at the behest of the emperor Justinian, and published after three years’ effort, in 533 A.D. The compilers retained the jurist author’s name, the book and title of the work from which the extract was taken, thus affording valuable information respecting the nature and the date of the legal data quoted.

There is fortunately extant for the Digest a manuscript written in the 6th or early 7th century, thus almost contemporary with the compilation itself. This manuscript is known as the codex Florentinus or littera Fioren­tina. ¹ It was written, it seems, by Greeks in Italy, and is known to have been in Pisa in the middle of the 12th century, whence it was taken as booty to Florence in 1406? A photographic reproduction of its two volumes of more than 900 folios has been made? Only four other fragmentary groups of texts of the Digest date earlier than the9th century? All other known manuscripts stem from another manuscript now lost, termed S(ecundus), which appears ^{[55] [56] [57] [58] to have been written about IOS) A..D.[59] These numerous manuscripts were for the most part written by persons connected with the law school at Bologna; hence they are termed codices Bononienses and known as the Vul­gate manuscripts. The Vulgate manuscripts are seldom complete; generally a manuscript covers but one-third of the Digest, and each third has its own name. The Digestum vetus (old Digest) extends to D. 24.3.1; the third known as Infortiatum (strengthened) covers from that point to the end of book38of the Digest;[60] the last third, Digestum novum (new Digest), extends from book 39 through book 50. Kantorowicz attributes the points at which the divisions were made to a scribe’s jest:[61] [62] [63] the first break is where the title ‘on divorce' is followed by one on ‘dissolved marriage’; the second break is where the em­peror ‘announces a new work*, D. 39.1. The actual names of the parts, and eventually of the separate volumes, Kantorowicz says, are students' tags: Digestum novum, because of the opening title, a new work; its counterpart, the first third, the old Digest; the middle, strengthened, since held between the other two.· Krctschmar believes that the tripartite division was an in­stance of the magic of the number 3.*}

The earliest editions of the Digest were of the separate parts:^{[64] [65] Digestum vetus by Henr. Gayn at Perugia in 1476; Infortiatum by Vitus Puecher at Rome in 1475; Digestum novum by Puecher at Rome in 1477. Edition followed edition, after a decade more or less uniform, until in Haloander's edition of 1529-1531, extensive use was made of the codex Florentinus.” Another remarkable edition was that of Laelius and Franciscos Taurellius (Torelli), father and son, made with the help of Ant. Augustinus, in 1553. The various editions of the Digest, and its parts, through the centuries, were en­tirely eclipsed by the definitive edition by Mommsen, in 1870*11 In its pre­paration he made use of codex F as well as some Vulgate manuscripts,” other summaries or extracts of early date, and in addition, the Greek trans­lations and re-workings of the Digest that were to be found in Byzantine law books, particularly in the Basilica.1* Several Italian scholars collaborated in a new edition, based largely on that of Mommsen, in small format, the first part of which appeared in 1908, the complete Digest in 1931.“ The only query that has been raised generally with respect to the text of Mommsen’s edition is the relative neglect of the readings of the Vulgate manuscripts as against the littera Fiorentina and the Basilica, a point first made by Kantor­owicz and recently renewed by Miquel.14 For the student, however, thestereo- typed edition of Mommsen or the handy Milan edition is fully satisfactory.}

The translations of the Corpus Iuris, of course, include the translation of the Digest. In addition, there are separate translations of the whole or of parts of the Digest itself. One of the most valuable, excellent translations in English is that by Monro, unfortunately only extending through the fifteenth book.” There are, further, several translations of individual titles, or groups of titles, many with valuable annotations.¹¹

The Digest, like the Institutes, was formerly cited in greatly abbreviated form.¹⁴ The fifty books of the Digest were divided into titles, the headings of which, the rubrics, were the key references, the location of which within the fifty books was known by heart by the medieval lawyer. Each title was made up of leges(laws) or fragmenta(fragments), the longer fragments being subdivided into paragraphs. The opening words of the law or fragment and

12. Dlgesta fastimani Augusti recognovit, adsumpto in optrit sodetatem Paulo Kruegero, Th. Mommsen. 2 vok. (Berlin. 1870. reprinted 1962-63).

13. The various manuscripts employed are discussed, op. al,, xü-lxxvii.

14. Hämbach, “lieber die Nutzen der Basiliken und der sogenannten allen Scholien für die Kritik d« Digestentextes’. ZUG 2 (1863) 319-66, had referred to this aid. Cf. Roby, Intro­duction ccxli-ccxliv.

15. Dlgesta lustiniani Augusti recognoveruni er ediderunt P. Boi^ante et F. Sdaloja (Milano 1931).

16. Kantorowicz, ‘Die Bedeutung des Vulgattextes für die Kritik des justinianischen Textes*. SZ 31 (1910) 74-83; cf. Wenger, Qtellen 597 f. Miquel. ’Mechanische Fehler in der Uebertieferung der Digesten’, SZ 80 (1963) 233.272-84.

17. C. H. Monro. The Digest of Justinian translated. 2 vok. (Vol. 2 completed by Buckland after Monro’s death) (Cambridge 1904-1909).

18. A list of these works in Sass, L. Libr. J. 56(1963) 210, 229 -30. To be added; Walker, Mandati vel contra. Digest XVII. 1 (1879).

19. Wenger, Quellen 599 f. Roby, Introduction ccxlv-ccxlviii.

of the paragraph served to indicate the particular passage in the title to which reference was being made. Thus: 1. in rem § tignum D.(orthesign,ff)^I'*derei vind. (or R. V.) - the law, or fragment, beginning ‘in rem’, paragraph thereof beginning ‘tignum’, in the title with the rubric, de rei vindicatione, which is title 1 of book 6, thus today the citation would be D. 6.1.23.6. For, in the course of time, the fragments and paragraphs were numbered, the first para­graph designated pr. (principium, beginning), followed by §1, §2, §3, etc. Thus, we may also find: 1. in rem 23 §tignum6D.derei vind.; or L. 23 §6D. de rei vind. (6.1); today D. 6.1.23.6. The three books of the Digest dealing with testamentary dispositions (de legatis et fideicommissis), books 30-32, were not divided into titles but directly into laws or fragments; thus fr. 4 § 1

D. de leg. I = D. 30.4.1. The enactments (constitutiones) of Justinian which set forth the particulars of the compilation and promulgation of the Digest are still cited by the opening words, e.g., D. const. Omnem, D. const. Tanta, etc. Some indices and concordances to the Digest make reference to the pages and the lines of the two volumes of Mommsen’s edition; the stereo­typed edition has the indication of every fifth line of each page of the two volumes in the margin.^ir

The passages of the Digest included in this book open with the name of the jurist and the book and work from which the compilers took the extract, in Latin, followed by the citation of the passage, in parentheses. The text is then given in literal translation, with unfamiliar Latin technical terms in paren­theses. Critical notes to the text, e.g., variant readings, are sometimes added, in further indented remarks. An example,

Paulus, Libro XXI ad edictum (D. 6.1.23.6)

There cannot be an in rem action to recover for another’s building materials which have been built into one’s house because of the law of the Twelve Tables, nor can an action for production (ad exhibendum} be brought with respect to them,,..

The reference to the law of the Twelve Tables is XIIT 6.8. Conjectured interpolations, Index Interp. ad h. 1.

Fragment 23 of Book 6, title I of the Digest is an extract from the 21st book of the jurist Paulus’ commentary on the edict. The Twelve Tables reference

20. The sign ff was erroneously evolved from the abbreviation for D with a line through it, about 1200 A.D. See Wenger, Quellen 118 n.104.

21. Thus, in the margin of D. 17.1.5.2 in the stereotyped edition, the small numeral 10, with larger 4X0 above, means this passage is to be found in Vol, I p. 480line 10 of Mommsen’s edition; the second volume of Mommsen begins with book 30, thus the marginal references in the second half of the stereotyped edition refer to volume 11 of Mommsen. The citation is distinguished by a line drawn over the second number, thus: 480,10 - D. 40.12.23.1.

is to Table 6, fragment 8; scholars have conjectured that the text has been interpolated (infra, § 31), references to be found in the Index Interpola­tionum, at the entry (ad hunc locum, at this place) D. 6.1.23.

c. Codex lustinianus (Code of Justinian)

§ 15 The Code promulgated by the emperor Justinian was both the earliest and the latest of the efforts at the compilation of the law at the instance of the emperor himself. In February 528 he appointed a commission to compile imperial enactments (constitutiones) of earlier emperors; the work was published April 529. Then, after the Institutes and the Digest had been published, a revision of the Code was necessary, and the second Code was published November 534, effective at the end of December of that year. A hint at the relation between the first and the second Code is afforded by a list of the rubrics of the closing titles of book I, preserved on a papyrus discovered at Oxyrhynchus some years ago? Otherwise the text of the first Code has not been preserved. The materials collected for the Code of Justinian were enactments promulgated by various emperors of the Roman Empire, most of which date from the post-classical period, from the rule of Diocletian to that of Justinian. But there are a consider­able number of constitutions which were issued between the time of Had­rian (117-38 A.D.) and the close of the classical era, c. 250 A.D., thus constituting important sources of imperial legislative activity in this time.

Soon after Justinian’s epoch the Code was considerably abbreviated. The so-called inscriptions, containing the names of the addressees to whom the decrees were directed, were omitted, and other changes were made. By the 8th or 9th century the last three books oftheCode(Tres libri) were dropped and a number of constitutions in the previous nine books dropped out. This latter included all those constitutions which were in Greek and several in Latin, enacted by Justinian, which were repealed by Justinian’s later novel legislation or which had been described in the Institutes. Subscriptions to the enactments, giving the place and date of promulgation, became confused with the inscriptions of the constitutions which followed in the text. Some­what later manuscript versions of the nine books were again augmented, and from the 11 th century on the texts of the complete Code replaced the earlier abbreviated versions? Manuscripts of the last three books of the Code, Tres

1. P. Oxy. XV 1814, For discussion, see De Francis«, ‘Frammenti di un indice dei primo Codice giustinianeo', Aegyptus 3 (1922) 68-79; and Krüger, SZ 43 (1922) 561-63. Briefly, Kühler, Geschichte 414-15, and Wenger, Quellen 572, with further reff. Generally, on the first Code, Rotondi, ‘Studi suile fonti del Codice giustinianeo*, Scritti I 110. 237-47.

2. Full discussion of the manuscripts of the Code, by Kruger, Kritik des justinianischen Codex (1867) 86 ff. Briefly, Kruger, Geschichte 425-28; Bonfante, Storia II 188 ff.

libri, were generally combined with the Institutes, the Latin collection of the Novels, known as Authenticum, and the so-called Libri feudorumfbookson feudal law), to form the single volume called Volumen. In addition, a few manuscripts of Tres libri are preserved; but none of these texts is earlier than the 12th century. *

Printed editions of the shortened Code (nine books) appeared during the last quarter of the 15th century, the earliest being theSensenschmidt edition at Nuremberg, and the Schoyff edition at Mainz in 1475.^{[66] [67] [68] The last three books of the Code - together with the Novels -were first printed by Puecher in Rome in 1476. The first expanded edition of the nine books, incorporating most of the inscriptions and subscriptions previously lost or confused, was that of Haloander, in 1530. The scholarly efforts ofCujas and Augustinus in restoring the Greek constitutions which had been dropped were reflected in the editions of the Code by Contius (Lecomte) between 1559 and 1576. To Cujas, also, is due an excellent edition of the Tres libri, in 1562.’ As noted earlier, the complete Code appears in Gothofredus’ edition of the Corpus Iuris in 1583. An edition refining the text was that of Hermann, in 1843, part of the brothers Kriegel edition of the Corpus Iuris. The definitive edition, however, awaited the research of Paul Krüger, published in 1877,[69] [70] [71] which has been taken over into the stereotyped edition for general use.}

The Code of Justinian is included in the various translations of the Cor­pus Iuris which have been listed earlier. In addition, in English, there is a translation, in typescript, by the late Chief Justice Blume of the Supreme Court of Wyoming in the library of the University of Wyoming.’

The Code was originally, like the Digest, cited by lex (law) or consti­tutio (constitution) - and paragraph, if there was one - plus the abbrevia­tion of the rubric of the title.· An example is 1. possessiones C. de probat (ionibus), which in time became 1. 2 C. de probat. (4,19), and now is C. 4. 19.2. In this book the constitutions contained in the Code are given with Latin inscription, followed by citation and date, where this can be deter­mined from the consular dating in the subscription. The text and the sub-

scription are in English. Thus, the passage indicated,

Imperator Antoninus Augustus Auluzano (C. 4.19.2) (215 A.D.) Seek possession which you allege belongs to you according to the custom of the courts (mos iudiciorum).... Posted 15 th December, Laetus and CerealiS being consuls.

d. Novellac lustinianae (Novels of Justinian)

$ 16 The enactments of the emperor Justinian subsequent to the compilation,

i. e., after Dec. 29, 534 A.D., are known as novellae constitutiones(new con­stitutions) or Novels, for short.¹ The enactments directed to the eastern pro­vinces were promulgated in Greek, those to the western provinces in Latin, those to both east and west in Greek and Latin. These enactments brought substantial changes to much of the earlier law and legislation, but the nature and content of this change is outside the scope of this volume. Justinian had planned an official collection of his enactments, but this never came to pass.¹ During his reign, however, a private collection of 122 constitutions was made by a professor at Constantinople, which came to be known as the Epitome luliani (Epitome of Julian), It was a translation of Greek constitutions into Latin, and for centuries was the only known text of the Novels in the west. Many manuscripts, the oldest of the late 7th or 8th century, resulted in a number of editions, the latest of this group being the edition by Haenel?

A collection of 134 novels of the years 535-556, all in Latin - those originally directed to the western provinces in the original Latin, the bilingual only in Latin, and the Greek constitutions directed to the east­ern provinces literally translated into Latin - became the chief source for the Novels from 1100 onwards. It received the name Authenticum because Irnerius, the famed Glossator, believed it to be the official collec­tion, framed for Italy by Justinian.^{[72] [73] [74] [75]The dateofitscompilationisstillamatter of dispute. More than a hundred manuscripts exist, a Viennese text of the 13th century being considered the most significant. The text of the Authen- ticum underwent the same critical treatment by the Glossators and the Com­mentators that had been the fate of the other parts of the Corpus Iuris? The first edition of the Novels, published together with Tres libri (of the Code) and the Institutes, in Rome in 1476, was based on the Authenticum. The later editions by Contius, in Paris, 1559 ff., formed the basis of a critical edition by Heimbach in 1846-51?}

The third important source of the Novels was a collection of 168 Greek novels made in the time of Justinian’s successor, after 575 A.D. Two manu­scripts, a Venetian of the 13 th century¹ and a Florentine of the 14th century, afford the basis for Haloander’s edition of 1531, and another by the Scot Scrymgeour in Geneva in 1558. Contius, in a Lyons 1571 edition, combined the Greek novels with the Authenticum? but it was not until the 19th century that critical editions ofthe Novels, incorporating the three major collections as well its other epitomes and canonical collections, were made? The edition of the Novels by Osenbrtiggen in the Kriege! edition of the Corpus Iuris, an­other by Zachariae von Lingenthal?’ and finally, that of Scholl, completed by Kroll, as the third volume of the stereotyped edition of the Corpus Iuris, are the basic editions employed today.

There is said to be a typed manuscript translation ofthe Novels by Justice Blume, deposited in the University of Wyoming library,¹¹ but otherwise there exists only the Scott translation in the comprehensive translation of Roman legal sources, noted supra.

It perhaps should be noted that in the citation ofthe Novels the introduc­tory section of a novel, known as Prooimion in Greek and Praefatio in the Authenticum, is given the abbreviation pr., while the concluding portion known as Epilogos or Epilogus is cited ep. No passages from the Novels are included in this work.

5. Those novel constitutions which altered passages in the codification of Justinian were termed [constitutions] authenticae (authentic enactments), and were eventually incorporated into the text of the Code, and considered the same as the other laws in the Code. Cf. Kruger, Geschichte 433 f

6. Authenticum. Novellarum constitutionum lusiiniam versio vulgata. 2 vols. (Lipsiae 1846-51).

7. Appended to the Venetian manuscript of the Greek novels was a collection known as the XIII Edicts, some of which were duplicates of constitutions in the Epitome luliani and Authenticum. But others, primarily of administrative nature, such as Edict XIII on the re-organization of the provinces of Egypt, are unique. Cf. generally, Zachariae von Lingenlhal, SZ 13 (1892) 44-52, and 15 (1894) 366-73.

8. To Contius' edition we owe the enumeration of the Novels in use today.

9. For a brief description of the other collections, see Wenger, Quellen 672-77, with further reff.

10. imperatoris iustiniani perpetui Augusti Novellae quae vocantur. 2 vols. and 2 appendices (Lipsiae 1881’1891).

11. Sass, L Libr. J. 56(1963) 210, 231 n il.

2. Pre-Justinianian Juristic Writings

7 In addition to the mass of legal material contained in the various parts of the Corpus Iuris of Justinian, there are a number of juristic treatises and compilations to which reference should be made for they afford source materials for the legal institutions of the epoch with which this course is primarily concerned. Those specially significant are:

a. Gai Institutiones - Institutes of Gaius

b. Pauli Sententiae - Opinions of Paul

c. Ulpiani Regularum Epitome - Epitome of the Rules of Ulpian

d. Fragmenta Vaticana-Vatican Fragments

e. Collatio Lcgum Mosaicarum et Romanarum - Comparison of Mosaic and Roman Laws

The substance and the principal editions of these texts will be sketched in 18-22. All of these texts are contained in the standard collections of pre­Justinian legal materials, such as Collectio, Girard, FIRA II - to use the accepted catch-names' -as well as in thespecial collection of juristic writings made by Huschke, and now edited by Seckel-Kübier?

Further bits of juristic writings are preserved on leaves of parchment and sheets of papyrus which date from the late 3rd to the 6th centuries. In many cases these fragmentary texts derive from the same juristic works as those used for the extracts included in the Digest of Justinian. In other cases the fragments are apparently of similar nature, but stem from unknown authors whose writings were not included in the Digest. All these pieces arc usually brief, but they do add to our knowledge of the earlier period; their signifi­cance for textual criticism is also to be noted? Most of these pieces have been published, with references to commentary, in the collections which have been noted above.^{[76] [77] [78] [79] It should suffice in the annotation, to list those fragments which have been published since the date of the most recent collection of prc-Justinian sources, FIRA II, and add the significant commentary of recent decades.[80] [81]}

There are also minor juridical pieces in addition to the five major pre­Justinian works described in the following sections. Since the substance of their content derives, in part at least, from the law of earlier times, they deserve to be recorded, noting where they have been published, together with recent commentary:

a. Sententiae et epistulae Hadriani- Opinions and Letters of Hadrian*

b. Fragmentum Dositheanum - Dosithean Fragment^{[82] [83] [84]}

c. Fragmenta de iure fisci - Fragments on Fiscal Law*

d. Tractatus de gradibus cognitionum - Tract on Relationships*

e. Consultatio veteris cuiusdam jureconsulti - Consultation of a certain early jurist^[85]

Finally, it should be pointed out that there are one or two legal works, to­gether with fragmentary pieces, which date from the centuries immediately preceding the Justinianian effort and which are most valuable for informa­tion respecting the development of the Roman law in that period of time, and consequently outside the scope of this book. One of these compilations has been the subject of such renewed scholarly efforts during recent years that it should be called to the attention of those interested in the role of Roman law in the eastern provinces of the Empire; this work is the so-called Syrian-Roman Law Book."

a. Gai Institutiones (Institutes of Gaius)

§ 18 By far the most important extant treatise of a legal author of the classical period is offered by the Veronese palimpsest of the Institutes of Gaius. This work was an elementary text for beginning law students, dating from the middle of the 2nd century for our era. Until the discovery of the Veronese manuscript this work was known only by a brief resume of it which had been fashioned in the 5th century, the Liber Gaii or Epitome Gaii as it was termed,¹ together with extracts which had been incorporated into the Digest or cited in other writings.³ In 1816 Niebuhr discovered and Savigny recog­nized that a manuscript of the letters of St. Jerome and of Gennadius in the library of the cathedral Chapter at Verona had been written over most of the partially erased parchment folios of the Institutes of Gaius.¹ The original Gaius work had been written on 65 folios (130 pages); one folio had been published earlier, but went largely unnoticed.⁴ Now Niebuhr had discovered all but three folios of the original work, a manuscript dating from the 5th ^[86] century* termed codex Veronensis (V).^s The task of reconstituting the Gaius text was entrusted to scholars of the Prussian academy, and resulted in the first edition of Gaius* four books (commentarii) of the Institutes, in 1820.* Further study of the parchment leaves by Bluhme in 1821 and 1822 led to another edition but resulted in irremedial damage to the folios by reason of chemical reaction? Nevertheless, critical re-examination of the text by Studemund in 1874 - with further study later ~ enabled the preparation of an exact copy (apographum) which has served as the basis of modern edi­tions.¹ Approximately one-tenth of the text, however, remains illegible.

In 1898, in the library at Autun, Chatelain discovered a paraphrase of the Institutes of Gaius, probably dating from the 5th century; it was also a palimpsest? Newer discoveries of fragments of Gaius* Institutes have been more rewarding. The first, P. Oxy. XVII 2103, a sheet of papyrus of the 3rd century, provided readings for some passages which had been illegible in codex V.'° Then, in 1933, two folios, and half of another, of a parchment codex of the 4th or early Sth century - now in Florence, codex F - were published, PSI XI1182.¹¹ These pages supplied part of the text missing from the Veronese manuscript.¹¹

Some of the 19th century editions of Gaius’ Institutes are still of value: that of Lachmann for its philological commentary, that of Backing for its references to parallel passages, those of Polenaar and Muir head for excellent commentary, and that of Dubois for its comprehensive collection ^{[87] [88] [89] [90] [91] [92] [93] [94] of conjectured restorations and emendations. *’ But the critical edition by Krüger, based on the apograph of Studemund, has become the standard text.14 De Zulueta’s text is based on that of Kriiger-Studemund, and his translation and commentary have become the accepted handbook for English-speaking students.1' Among other editions of exceptional meritare: (1) that of Huschke, continued by Seckel and Kübler, with extensive appara­tus criticus as well as reference to parallel passages,14 (2) that of Bizoukides, with extensive annotations, appendices and indices to the var­ious versions,” (3) that of David and Nelson, in progress, with philological and, eventually, juristic commentary.*· Student texts, and translations, are to be found in many compilations and editions.”}

In recent decades several scholars have urged that the Gaius text, as we have it in the 4th/5th century versions, is replete with post-Gaian alterations and supplements to the original text of the classical epoch.” Hence, it has

13. Gait Institutionum... 4th cd. I. F. Gocschen, recognovit C. Lachmann (Bcrolini 1842); Gau Institutions emend, et adnot. E. Boecking (5th cd.; Lipsiae 1866); Syntagma Institutionum novum.,. ed. B. 1. Polenaar (Lugd. Batav. 1876-79); The Institutes of Gaius and Huies of Ulpian... with translation and notes, by James Muirhcad (Edinburgh 1880. repr. 1895); E. Dubois, Institutes de Gaius (6th ed., Paris 1881).

14. P. Krüger-W. Studemund, Gai Institutiones ad codids Veronensis apographum Stude- mundianum novis curis auctum in usum scholarum... (7th ed., Bcrolini 1923) [ = Collectio I ].

15. The Institutes of Gaius, Part I: Text with critical Notes and Translation, and Part II: Commentary, by F. De Zulueta. 2 vols. (Oxford 1946-53).

16. Gai Institutiones edd. E. Seckel et B. Kübler (7th ed. B. Kübler, Lipsiae 1935).

17. Gaius, ed. P. C. Bizoukides, vol. I: Prolegomena, Institut tones; II: Adnotat tones. Indices, Appendix, Bibliographien Gaiana; HI: Fragmenta Gahma; Dig. frag, ad ed. pro*.; IV: Varia Gaiana; V: Adnotationes et indices, 5 vols. (Thessalonicae 1937-41).

18. Gai Institutionum commentarii IV, mit philologischen Kommentar, edd. Μ. David- H. L. W. Nelson. Text und Kommentar parts 1-2 (Leiden 1954-60).

19. Text reproduced in Girard, Textes 225-354; FIRA II 9-192; Arangio-Ruiz-Guarino, Breviarium 3-194. Text and translation: Gaius, Institutes. TexteItabli et traduit par J. Reinach (Paris 1950), critically reviewed by Berger, Latomus 10(1951)333-38; in German, Lammeyer, Die Institutionen des Gaius (Paderborn 1929); in Italian, Μ. Strina-L. Rizzo, Le Istütaioni di Gaio (traduzione e note) (Roma 1952), but cf. review by Solazzi, Iura 4 (1953) 289-94; in Spanish, A. d’Ors, Institutiones, texto latino con tata traducadn (Madrid 1943); Portuguese translation by G. Sciascia, Manual de Direito Romano, II: Institutas de Gaio (Sao Paulo 1955); in Dutch, A. C. Oltmans, De Instituten nan Gaius. Vertaling, tabellen en register (Haarlem 1958).

20. A half century ago, Knicp, Gai Institutionum commentarii, in 5 vols. (Jena 1911-17), attempted to delineate three distinct layers in each paragraph of the first three books of the Institutes. More recently Aibcrtario, Studi V 440-60, and especially Solazzi, ‘Glosse a Gaio’. Studi Kaobono I (1936) 71-191. Per H XIV cent. (1934) 293-450, SOW 6 (1940) 320-56. and Scritti Ferrini, Pavia (1946) 139-99, have attempted to isolate post-Gaian elements (glosses) in the Instituta. Sec also, more recently, Wolff, ‘Zur Geschichte des Gaiustexta', Studi Arongio-Ruiz IV (1953) 171-96; Wicacker, review of David-Nelson. Gai Institutionum commentarii, in SZ 71 (1954) 412. 416 if.; Fuhrmann, ‘Zur Entstehung des Veroneser Gaius-textcs', SZ 73(1956) 341-56; Flume, ‘Die Bewertung der Institutionen des Gaius'. SZ 79 (1962) 1-27.

been urged that a new edition attempting to distinguish the various layers of material is desirable.^{[95] [96] To DeZulueta, however.}

Our own strong impression is that our text is so homogeneous and sus­tained in character that, apart from minutiae, it must be the work of a single author, who can only be Gaius.... Schulz’s own suggestion [His­tory, 164] is essentially conservative. It is that our text was substantially fixed by a second edition made in the third century; it is thus at any rate classical. But if this hypothetical edition made, as he th^:'ks, no consider­able changes, on what evidence does the existence of Mie edition rest?²¹

b. Pauli Sententiae (Opinions of Paul)

| 19 The consensus of opinion today is that the ‘pocket encyclopedia’ of the law¹ known as the Opinions (or Sentences) of Paul² is an anthology made from the writings of the jurist Paulus by a compiler about the turn of the 4th century, to which later editors added further materials from time to time to keep the work up to date.¹ The work consists of a succinct formulation of the principles of the Roman law arranged under a succession of topics which accorded with the traditional arrangement for an exposition of the whole of the law.* As such, the compilation acquired great popularity among prac­titioners, quite possibly in part because it received official approbation by an enactment of the emperor Constantine in 327 or 328 A. D.⁴ The writer drew his extracts from the writi ngs of Paul, condensing the material, bringing it up to date, and occasionally providing a provincial tone rather than the city- Rome point of view of the classical jurist.⁶ According to Levy, there was a succession of alterations to the text during the next two centuries; six distinct layers of material, from the version of the writer of the anthology to the changes made by the compiler of Justinian’s Digest.^{[97] [98] [99] [100] [101] Consequently, the overlay of post-classical material has so obscured the classical content that the chief value of the compilation is its contribution to our knowledge of post-classical, and specifically, vulgar law? On the other hand, Buckland is of the opinion that there was little contamination of the text after the original compilation; ’the book remains one of our best authorities for late classical law*?}

The bulk of our text stems from an epitome appended to the early 6th century codification known as the lex Romana Visigothorum, theRoman- Visigothic law?⁰ Further rules are to be found as additions in the various manuscripts of that law itself;¹’ one of these manuscripts, the codex Vcson- tinus (Besancon), now lost, was much earlier than the remainder of the manuscripts, and hence the passages of Paul’s Sentences found therein are closer to the version made by the redactor, or perhaps the classical original. Other batches of Sentences derive from still other pre-Justinian compila­tions, while the compilers of Justinian’s Digest incorporated some 250 passages from the work?^[102]

Just a few years ago there was discovered a parchment folio of Paul’s Sen­tences, the so-called Leiden fragment?^{[103] [104] This piece shows that generally the compiler preserved the sense of the Pauline original; the Leiden fragment is exceptionally valuable in that it seems to be earlier in date than any other version of the Sentences?*}

Early editions of the Sentences of Paul were made centuries ago by Petrus Aegidius and Cuiacius;^[105] these were largely replaced by the mid-19thcen- tury editions of Arndt and Haenel.^{[106] [107] [108] [109] Modern editions include those of Kriiger and of Seckel-Kiibler, the latter with full reference to parallel and related passages in other texts.11 Nevertheless, Schulz maintains that neither edition is completely satisfactory, by reason of failure to show the evolution of the text, with the various versions set forth side by side.'* The editions in Girard and FIRA are student editions based on Kruger and Seckel-Kiibler. There is no good translation of the Sentences of Paul in English, for the anti­quated text by Scott adds to the frequent misunderstanding of the Latin. ”}

c. Ulpiani Rcgularum Epitome (Epitome of the Rules of Ulpian)

§20 An elementary treatise ofthe Roman law, in organization similar to thesys- tem employed in the Institutes of Gaius but lacking the parts devoted to obli­gations and to actions, is preserved in a manuscript of the 10th century, an appendix to the Lex Romana Visigothorum. Scholars are fairly well agreed that the text we have is an epitome made in the early post-classical times, but diverge completely respecting the materials which the cpitomator employed. Mommsen was of the opinion that Ulpian, the well-known jurist of the turn of the 3rd century, using the Institutes of Gaius as a model, wrote a single book of Rules (Regulae), which was the source ofthe epitome.¹ Others have argued that both Gaius and Ulpian used the same source for their respective works, but that the latter did not know the former’s work? Arangio-Ruiz held that the epitome itself was a post-classical abstract from the Institutes of Gaius, coupled with some definitions and classifications from Ulpian? Albertario advanced the view that the epitome was constituted from a selec­tion of Ulpian’s writings, destined for teaching purposes and called the ‘single book of Rules of Ulpian’.⁴

Buckland, however, has pointed out faults in the reasoning of both Arangio-Ruiz and Albertario? and today most are inclined to agree with the views advanced by Schulz, editor of a recent edition of the Epitome? A single book of Rules was written by an unknown lawyer, certainly not by Ulpian, of the 3rd or the beginning of the 4th century? His main source was Gaius’ Institutes, but he also used other writings of the classical jurists. An epitome of this work was made shortly after 320 A.D? The epitomator did not seriously alter the original extracts, but he omitted portions deemed not of moment? To quote from one edition, ‘For this reason what we have of Ulpian is a true and good testimony of the law of his times.’¹⁰

The manuscript appended to the Roman-Visigothic law was edited by Dutillet (Tilius) in 1549 and by Cujas in 1586.¹¹ It then disappeared to be re­discovered by Savigny among the Vatican manuscripts, Codex Vaticanus Reginae 1128.¹² The first modern editions were based upon an apograph by Brunn?¹ In 1868 Kruger re-examined the manuscript and emended some passages in his edition ten years later?⁴ What is today considered the out­standing edition is that provided by Schulz in 1926?⁵ There is a good transla­tion in English in Muirhead’s edition ofGaius and Ulpian,’⁴ and in a student edition and translation of the two texts by Abdy and Walker.” Although undoubtedly post-classical in the form we have, the content ofthe'Rulesof Ulpian’ preserved in the Epitome Ulpiani is in good part classical and hence

5. LQR 40 (1924) 185-301, and 53 (1937) 508-18.

6. Schulz’s views arc summarized in tus History 180-82.

7. Five extracts from Ulpian’s single book of Rules (Lib« singular» Regulanim) are known from other sources. Three of these recur in the Epitome; the other two relate to torts and actions, subjects missing from the text of the Epitome as we have it

8. Date established by Mommsen, op. at., supra, n. 1, 113 [ = Schriften II 50]; accord, Krüger, Geschichte 281, and Bonfante, Storia II 256.

9. A survey of conjectured alterations, omissions and additions by Volterra, RSDI8 (1935) 390-405.

10. Seckel-Kübler, preface to edition of the text, lurisprudeniiae [ (1908) 439.

11. The text has no title but a superscription to a list of the chapter titles which reads: Incipiunt tituli ex corpore Ulpiani (There begin titles from the [whole] work of Ulpian). Schulz holds, loc. at. supra, that the person who added this text to the lex Romana Visigotho- rum knew the work was ascribed to Ulpian but did not know its title, so used these words.

12. Savigny, Schriften HI 28-75, V 81-103.

13. Excerpta ex Ulpiani liber sing, regulanim, cd. Boecking (4th cd,, Lipsiac 1855). with comment by Mommsen; Ulpiani e libra Reguiarum excerpta, ed Joh. Vahlcn (Bonnac 1856).

14. Collectio II 1-37. This edition was the basis for Muirhcad and Girard. Seckel-Kübler, lurisprudeniiae I 436-90. is an excellent edition with apparatus criticus and references to parallel passages.

15. Die Epitome Ulpiani des Codex Vaticanas Reginae 1128 (Bonn 1926). The edition in FIRA II 261-301 is a student edition of Schulz’s version,

16. The Institutes of Gaius and the Rules of Ulpian (1880) 369-447.

17. The Commentaries of Gaius and Rules of Ulpian (3d ed., 1885) 371-447.

frequently included among the texts in this book. The method of citation is as follows:

Ulpi anus, Regularum liber singularis XI. 13

Minimum loss of civil status (capitis diminutio minima) is that whereby only the status of a person is changed, his citizenship and his freedom remaining unalter­ed: this occurs on adoption [ontf on entry into the power (of a husband}].

Cf. G. 1.162; the concluding phrase in Ulp. Reg. was added by theepito- mator, according to Schulz, Epitome Ulpiani 36n.

d. Fragmenta Vaticana (Vatican Fragmen ts)

§ 21 Part of what wasonceaveryextensiveencyclopediaofthelawhasbeenpre- served as the first-written text of a palimpsest manuscript dating from the 4th or 5th century. The text was fashioned as a combination of extracts from the writings of classical jurists and selections of imperial enactments; it is known as the Vatican Fragments (fragmenta Vaticana).¹ We possess 33 double folios of at least an original 232, but not enough to determine the scheme of organization of the compilation. The jurists represented in the Vatican Fragments are Papinian, Paul and Ulpian, and an unknown author of a work on interdicts? The imperial enactments (constitutions) are for the most part those technically known as rescripts’ - chiefly from the time of the emperor Diocletian - and were taken from private compilations, the Codex Gregorianus and Codex Hermogenianus.^{[110] [111] [112] [113] [114] Internal evidence indicates that the collection was made shortly after 318 A.D., primarily for the use of prac­titioners, with a few constitutions of later date added later.’}

The extracts used bear the name of the author and the work, and the book from which taken, and although the compiler often shortened the classical texts by omission, he made few changes. However, some scholars maintain that the classical texts had been considerably altered before they came to his hands.^[115] Others believe that the value of the Vatican Fragments derives primarily from the fact that the extracts were not reworked, and so form a valuable check against the version of the same extracts when occurring in Justinian’s Digest’

The writing of the legal text was discovered by Cardinal Mai in 1821, be­neath a work by the patristic writer, Cassianus, on the taxes of Egyptian anchorites. The original double folios of the legal text were refolded to form three pages each, but only 9 of the original folios were fully retained; of the other 24 one-third or two-thirds of the original folio was cut off. Some of the sheets contain a signature number which permits the estimate that the origi­nal manuscript consisted of at least 232 folios, but from a study of the con­tents it appears that the full work was much more extensive.* Raber states that it is estimated to have been approximately half the size of the Digest.* Editions of the Vatican Fragments followed shortly after the discovery of the palimpsest,^{[116] [117] [118] [119] [120] but a series of editions by Mommsen between I860 and 1890 provide the standard text in use today. ’1 An edition by Kubier offers exhaus­tive textual criticism together with references to similar passages in other works, and includes the suggestive readings proposed by Huschke-frequen­tly fantastic and rash, but provocative - for the host of lacunae and missing parts of the text.[121] [122] The student editions of Girard and FIRA are based upon Mommsen’s text.0}

The passages of the Vatican Fragments which are included in this book are cited by author, book and title, or by inscription to imperial rescript-as the case may be - reproducing the heading of the extract in the text itself. As an example:

PaMNJänus, Libro III responsorum (Fr. Vat. 12) Where a controversy arises on the question of ownership before the price has been paid, the purchaser is not compelled to pay the price, even though sureties are offered against eviction,... fere J

which, as we shall see, is also to be found, a twin fragment (lex gcminata), in the Digest, D. 18.6.19.1 (Pap. 3 resp.).^H

e. Collatio Legum Mosaicarum et Romanarum (Comparison of Mosaic and Roman Laws)

§ 22 The last prc-Justinian source of significance for the study of classical Roman Law is known as the Collatio, or comparison, or Mosaic and Roman laws; it was formerly termed the lex Dei (Law of God).¹ It has been recon* structed from the integration of three manuscripts, together presenting but a small part of a much more extensive compilation.¹ In it are excerpts from the writings of five famed classical jurists, Gaius, Papinian, Ulpian, Paul and Modestinus,’ together with selections of imperial enactments drawn from the Codex Gregorianus and Codex Hermogenianus. The portion extant forms sixteen titles of a first book and is devoted to various offenses of the criminal law.⁴ Each title opens with a passage of the Mosaic law upon the comparable criminal offense.⁵ The name of the compiler is unknown, his religion and the reason for his effort a matter of dispute.

A manuscript re-discovered in the 16th century formed the basis of early editions - that of Petrus Pithoeus in 1573 was the earliest -but these editions have now been rendered obsolete by the discovery of two further manu* scripts in the 19th century. Schulz has worked out the interdependence (stemma) of the three manuscripts, a model of research technique in estab­lishing manuscript tradition/ The manuscripts date from the 9th to 11th centuries, but the text is centuries older. The inclusion of an imperial consti­tution, dating from 390 A.D.,’ a much longer version than that found in the ^[123] Codex Theodosianus of 438 A.D.,· led scholars to date the compilation be­tween 390 and 438 A.D.,’ In 1930 Volterra advanced the view that this con­stitution was a single later addition, and that the compilation itself was made circa 320 A.D.¹⁰ Levy, indeed, set the date precisely between 296/302 and 313 A.D." Recently, Masi has doubted the possibility of considering the constitution of390 A.D. a later addition.¹²

Much of the discussion of the Collatio revolves about the religion of the compiler. The accepted version had been that the author of the compilation was a Christian, seeking to point out the similarity of the divine law to the Roman law.'* Volterra, however, adduced evidence to show that the text was a religious-political tractate written by a Jew, before Christianity had been adopted as the state religion.'⁴ More recently, there have been studies re-asserting Christian authorship.'⁵

The value of the Collatio largely depends, similar to that of the Vatican Fragments, on the extent of alteration of the classical texts up to the time they were embodied in the compilation. For, in spite of views to the contrary, the majority opinion seems to be that very little change was made after that date.¹⁶ Schulz hazarded the opinion that the compiler added

8. C.Th. 9.7.6.

9. Among early extensive studies, see Dirksen, Abh. Berlin 1846, 61-107 [» Hinterlassene Schriften II100-41]; Huschkc, Z. gesch. R13 (1846) 1-49; Rudorff.dM, Berlin 1868.1,265-97; Karlowa, Rechtsgeschichte I 966-69.

10. Volterra, ‘Collatio legum Mosaicarum et Romanarum*. A/em. Uncei, 6tb ser., 3(1930) 97 if.

11. Levy, in a review of Volterra’s study, SZ 50 (1930) 698,701 ff. [ - Schäften 1 133, 136 f.], dales the work in the period between the edict against the Manichaean* (sometime between 296 and 302 A.D.) and the Edict of Milan of 313 A.D. when the church was officially recognized.

12. BIDR 64 (1961) 285-321; accord, Guarino, Storid 437, and Seidl, Rechtsgeschichte 108. But cf. Cervenca, SDH129 (1963) 253-76, contra.

13. Rudorff, /oc. dt. supra, had selected St. Ambrosius, while Conrat, Melanges Fitting I (1907) 287, 299, had suggested that St. Hieronymus was the compiler of the tract. Generally, accepting a Christian author, Krüger, Geschichte 343 (‘rather a Christian than a Jew’); Küblet, Geschichte 390 (’a fanatic Christian’).

14. Vol terra, op. dt. supra, n.10. The Mosaic law was looked upon as a precursor of the Roman law; the author used the Old Testament rather than the New Testament, and the text is replete with enactments of the pagan emperors, above all the persecutor of the Christians, Diocletian, including edicts directed against the new religion. In accord with Volterra are Levy, in his review. SZ 50(1930) 698-705 [= Schriften 1 133-39); Ostcrsetzer, Rev. it, juijes 97 (1934) 65—96; Kubier, SZ56 (1936) 356 ff. (altering his previous view); further reff. in Wolff, Serial Ferrini IV (1949) 64, 82 n.2.

15. Christian authorship is asserted by Smits, Mosaioarum et Romanarum legum collatio (Diss. Groningen 1934); Hohenlohe, Ursprung und Zweck der Collatio legum Mosaicarum et Romanarum (Wien 1935), and later articles, including Arth. hath. Kirchenrecht 119 (1939) 352­64. See recently, Guarino, Storia 437.

16, Krüger, Geschichte 344 f ; apparently also, Schulz, History 14. But Cervenca, loc. dt. supra, n.12, maintains that the texts were altered; accord De Francisci. Ä/DR 66(1963)97-101. the Mosaic laws to an existing compilation, but this view does not seem to have been accepted?⁷ There are many, however, who believe that con­siderable change had occurred in the texts of the classical jurists before they came to the hands of the compiler?¹ As a matter of fact, some of the excerpts from Ulpian in the Collatio served as the basis for one of the earliest demonstrations of a new thesis - still the best in English - that the juristic writings were subjected to editorial revision about the beginning of the 4th century?* The older view that the extracts in the Collatio are relatively free from tampering by post-classical hands probably still repre­sents the prevailing opinion?⁰ If correct, the extracts in the Collatio add to our knowledge of the law of the classical period, and, secondly, afford a control for determining the authenticity of the same passages when these are incorporated into the Digest of Justinian.

The standard text of the Collatio, replacing the older editions based on the single manuscript, is that by Mommsen?¹ Later, Hyamson provided an edition, with photographic reproduction of the whole of one of the manu­scripts, accompanied by an English translation?¹ The edition by Kubier and the students’ editions in Girard and FIRA are also to be noted?¹

Passages from the Collatio included in this book are, like the extracts in the Vatican Fragments, cited by juristic author, book and title, or inscrip­tion to imperial enactment, as the case may be. Actually, very few extracts from this source are included, since the subject-matter thereof - criminal law - is not of primary interest in our approach.

3. Pre-Just inianian Compilations

§ 23 It was noted in an earlier section that use occasionally might be made of pre-Justinianian compilations of thelawor evenpost-Justinianian writings for the study of the Roman law of the classical period. It will only be ex­ceptionally that attention need be turned to these sources. Since this vol­ume, however, is intended to serve as a desk-book for reference to the

17. Schulz, History 313. Wolff, loc. cit. supra, n.14, points out, 81 n.6, that Schulz’s view of the origin of the Collatio differs from all the other views.

18. So, for example, Schulz, Einführung 22 f„ notes a gloss in Coll. 12.7.8, which is also to be found in the same passage of Ulpian reproduced io D. 9.2.27.10. Reff, in Kubier, Geschichte 390 n.9.

19. Wolff, ‘Ulpian XV] 11 ad edictum in Collatio and Digest and the Problem of post- classical Editions of classical works’, Serini Ferrini IV (1949) 64-90.

20. Sec Wenger, Quellen 546 n.168; cf. Grosso, Storm 477,497 f.

21. Collect to III 136-98.

22. Mosaicanm rt Romanarum legum Collatio with introduction, facsimile and transcription of the Berlin codex; Translation. Notes and Appendices (London 1913).

23. Seckel-Kübler, lurisprudentiae II 329-94; Girard, Textes 572-608; FIRA II 544-89.

whole of the Roman law, it is pertinent to include some reference to their nature and the editions in which they may be found.

a. Codex Gregorianus and Codex Hermogenianus

§ 24 Two private compilations of the enactments of the emperors were made during the closing years of the 3rd century, apparently in the eastern pro­vinces of the Empire, to serve the needs of legal practitioners.¹ These com­pilations, known as the Codex Gregorianus and the Codex Hermogenianus, may be considered the forerunners of the later official codifications, the Codex Theodosianus and the Codex lustinianus. The Codex Gregorianus was made up of imperial constitutions extending at least from the reign of Hadrian to the last decade of the 3rd century.^{[124] [125] [126] Most scholars believe that Gregorius, the author of the Codex - not Gregorianus - * found the texts of his materials in the archives, save that some of the earliest were taken from juristic writings;[127] [128] [129] [130] Mommsen favored the view that the texts were made from copies of the imperial instruments publicly posted in Berytus, where Gregorius was located? The Codex Hermogenianus was a supplement to the earlier work, and was limited to a selection of the enactments of the emperor Diocletian? There seem to have been several editions of this codex, some imperial constitutions being added as late as 364/65 A.D. Actually, most of the contents of these two codes which have come down to us are to be found in the Codex lustinianus. It has been estimated that some 1670 constitutions included in Justinian’s Code stem from the Codex Gre­gorianus, and another 1000 were taken from the Codex Hermogenianus?}

The Codex Gregorianus and Codex Hermogenianus continued to be used during succeeding generations, and enactments from these codes were included in many of the pre-Justinianian juristic writings which have already been mentioned? In addition, laws from the compilations were incorporated in the so-called Barbarian codes, and epitomes of them were added as appendices? There are, indeed, enough extant enactments from the Codex Gregorianus to be able to ascertain the sequence of topics in the compilation.^{[131] [132] [133] [134] [135] [136] The arrangement of materials is that familiar to earlier juristic writings covering the whole of the law?1 The first thirteen books follow the order of the edict of the praetor,11 the four­teenth book deals with criminal law, and seemingly two further bookshad imperial constitutions on public law. The arrangement of Justinian’s Code seems to have been adapted from that of the Codex Gregorianus.11}

The earliest scholarly edition of these codes was by Haenel in the Bonn professor’s collection of pre-Justinianian sources of the law.^{[137] [138] [139] The edition generally used today is by Krüger, setting forth in full the epitomes appended to the Lex Romana Visigothorum (Roman law of the Visigoths), and adding citations to the passages in other pre-Justinianian works where extracts from the two codes are to be found.1 s Baviera reprints the Visigothic epi­tomes and passages from the appendices, but omits the conspectus of passages from the codes found elsewhere.14}

b. Codex Theodosianus (Theodosian Code)

§ 25 The Theodosian Code is perhaps the outstanding source of informa­tion for the political and economic history of the Roman Empire during the 4th and early 5th centuries of our era. From Gibbon’s Decline and Fall to A.H.M. Jones' Later Roman Empire, historians have relied most heavily upon this collection of imperial enactments from the years 312 to 438 A.D. The dates involved make it clear that these texts have little to do with Roman law of the classical period. Nevertheless, some notes on the Codex Theodosianus are called for.‘

Imperatores Theodosius et Valentinianus augusti ad senatum

(C. Th. 1.1.5) (429 A.D.)

On the model of the Gregorian and Hermogenian codes, We decree that all constitutiones which were mode by the renowed Constantine and the deified emperors after him and Ourselves, secured by the force of edicts or by general imperial grant, shall be collected.... Moreover, from these three codes and from the treatises and responses of the jurists attached to the individual titles, the efforts of the same men who have arranged this third (aide) will be put to another code of Ours which shall permit no error and no circumlocutions and, called by Our name, shall show what is to be followed and what is to be avoided by all. For the completion of so great a work and for the composition of the codes - of which the first, having collected the entire diversity of general constitutiones, omitting none from its contents which is now permitted to be preferred (in court}, shall put away empty copiousness of words, and second, excluding every diversity of law, will undertake the guidance of life - for this, men of singular trust and of outstanding genius must be chosen. When they have presented the first code to Our wisdom and to public authority, the second shall be undertaken, to be worked over until it is worthy of being published....

The emperor Theodosius II, with his co-emperor Valcntinian III, planned a collection of the imperial constitutions then in force, arranged in subject matter along the lines laid down in the Codex Grcgorianus, with each title annotated by excerpts from classical literature.¹ The commission which was set up to perform these tasks accomplished far less than was planned.’A collection of constitutions subsequent to those in the Codex Grcgorianus and Codex Hermogenianus, that is, from the years 312 to 438 A.D., was promulgated as the official body of the law, effective Jan. 1, 439 A.D. Within each title the constitutions were set forth in chronological sequence,^{[140] [141] [142] [143] [144]} to some extent shortened or altered from the original form? No imperial constitution omitted from the Codex Theodosianus should henceforth have any validity.

The Codex Theodosianus has been reconstructed from a number of sour­ces, one of the most important being the lex Romana Visigothorum. In addition, there exist a number of manuscripts of parts of the Code, many discovered in recent times.⁴ But with all the sources only one-third of the first five books has been recovered, and parts of the other eleven books are missing. Among the more significant early editions are those of Tilius (Dutillet) in 1550, the first edition containing the Vatican manuscript of books 9-16; the annotated edition by Gothofredus, posthumously edited by Marviliius (Merville) in 1665, and republished with additional notes by Ritter, 1736-45. ’ The standard edition today is that provided by Mommsen ;· more recently, an edition of the Codex was begun by Krüger, unfortunately cut short at the eighth book by the editor's death?

There should be further noted a collection of sixteen imperial laws pro* mulgated between 333 and 425 A.D., for the most part dealing with ecclesi­astical affairs. This is the so-called Sirmondian constitutions, named from the first editor of the collection, Jacobus Sirmond, S.J., who published it as an appendix to the Theodosian Code in 1631.” Attention should also be called to the post-Theodosian Novellae (new laws), the collections of later imperial enactments by the emperor Theodosius II, as well as of his suc­cessors during most of the 5th century. The standard edition of these laws was made by P.M. Meyer, as part of the Mommsen Theodosian Code edi­tion.¹¹

Among the translations of the Theodosian Code prominent is that into English, by Pharr and associates,¹¹ which comprises not only the sixteen books of the Code itself, but the Sirmondian constitutions as well as the whole of the post-Theodosian Novels. The entire text is annotated by the editors, contains an extensive glossary and an elaborate index.

c. The Roman-Germanic Laws

§ 26 After the occupation of the western provinces of the Roman Empire by the Germanic (Gothic) peoples, three of the so-called ‘barbarian* rulers pro­mulgated 'codes' comprising Roman legal materials derived from juristic ^{[145] [146] [147] [148] [149] [150]}

writings and imperia] legislation. These materials consisted of the Institutes of Gaius or an Epitome thereof, extracts from the Opinions of Paul, texts from the Codex Gregorianus and Codex Hcrmogcnianus, and from the Codex Theodosianus and the post-Theodosian Novellae, and an isolated passage from the jurist Papinian. The contents of the Roman-Germanic laws, consequently, are of but slight interest to the student of classical law, but inasmuch as they arc regularly included within the collections of sources of Roman law, a brief description is offered?

The most significant of the three compilations, from the point of Roman law itself, is die Lex Romana Visigothorum? also known as the Breviarium Alaricianum,’ promulgated by Alaric 11, the Visigothic ruler, in 506 A.D. It is known from more than seventy manuscripts by virtue of its wide dif­fusion in the early Middle Ages. The compilation’s significance stems from the inclusion of the Epitome Gai, the version of Gaius’ Institutes in two books widely used during the Middle Ages,⁴ and from the reproduction of almost the whole of the Codex Theodosianus, the chief source of this code which has come down to us. The whole collection of extracts from post- classical sources, except the Epitome Gai, is accompanied by interpreta­tiones, explanations of the content of the individual passages, presumably borrowed from an existing work for the compilation. This work, like theone that follows, was designed for the use of the Roman subjectsof the Germanic kingdoms.

The Lex Romana Burgundionum is a compilation of legal statements, arranged systematically in 47 titles. * It was promulgated during the reign of Gundobad, 474-516 A.D., intended for the Roman subject peoples of Bur­gundy and eastern France. The legal statements were based on the sources named above, together with some rules of the Burgundian law. The sources are not indicated, but scholars have in large part identified them?

The third of the Roman-Germanic laws, the Edictum Theodorici, from

1. See generally, Krüger, 350-60, Kubier, Geschichte 392-99, with special atten­

tion to the various editions; Kunkel, Introduction 159-62; Jolowicz-Nicholas, Introduction 466-68; Robleda, lus 227-35.

2. The standard edition is that of Hacncl, Lex Ramona Visigothorum (Leipzig 1849, re­printed Aalen 1962).

3. Edition by Conrat, Breviarium Alaridanum (Leipzig 1903), with Latin and German versions arranged in logical order.

4. Archi, L" Epitome Gai', see supra, $ 18, n.l.

5. Edited by Salis, Monumenta Germaniae Historica, Legum seaio I, torn. 2 (Hannover 1892), 123-63, reproduced in FIRA II 714-50.

6. Most recently. Rueggcr, Einflüsse des romischen Rechts in der Lex Romana Bur­gundionum (Diss. Basel 1948) ; Rods, Onderzoek naar het gebruik van de aangehaalde bromen wm Romeins recht in de Lex Romano Burgundionum (Antwerp 1958), a most meticulous attempt at ascribing the particular Roman sources for each of the rules set forth, cf. review by van Oven, lura 10 (1959) 242-44.

its first edition until recently, was ascribed to the Ostrogothic King, Theodo- ric the Great, about 500 A.D? It consisted of statements of legal rules, derived from sources similar to those of the other two compilations, but it differed from them in that it was intended to apply to the conquering host as well as to the Roman subject population. Since 1953 serious doubt has been raised respecting the origin of this compilation, with attribution being made to various Germanic kings.· Among other scholars, Paradisi has ex­amined the question fully and has come to the conclusion that although the critics have shown that any judgment as to origin and date is hazardous, the weight of the evidence supports the traditional view.’

4. Posi-Justinianian Works

27 The final group of materials which prove of value for the study of the writings of the jurists and the constitutions of the emperors is the text of the Basilica and the catena of the so-called "older¹ scholia which served as explanatory glosses to it.¹ The Basilica was a compilation of the early 10th century under the auspices of two Byzantine emperors, integrating the var­ious parts of the Justinianian codification into a work with single titles upon legal subjects, to a total of sixty books? Apart from some post-Justinianian legislation, the greater portion derived from the writings of various legal scholars of Justinian’s lime. According to a hypothesis of Peters? which has

7. Edited by Bluhme, Mommenta Germanise Histories, Legum sedio 1, tom. 5 (Hannover 1875), 149-70, reproduced in FIRA II683-710; a new edition by Falaschi, Edidum neodorid regts Italiae (Milan 1966).

8. See Rasi. AG 155 (1953) 105-62; Vismara, Gott in Occidente (1956) 409-7«; again, Rasi, 4SD 5/6(1961/62) 113-36­

9. Paradisi, BIDR 68 (1965) 1-47; cf. also the recent extensive commentary, by Vismara, Edidum Theodoria [ = IRMAE, Pars I, 2 b « a (Milan 1967), Cf. also Astuti, ‘Edictum Theodorici regis’, Studi Volierra V (1971) 647-86.

1. For bibliography of secondary works on the Basilica and scholia, see Wenger, Qpellen 681-92, 703-05; Zepos, Beridtte Kortgr. München / (1958) 7-13. The classification of the scholia is dealt with by Pringsheim, Zum Plan einer neuen Ausgabe der 2faji/rten(1956) 27-43, and SZ 80 (1963) 287, 324-41.

2. The edition of the Basilica by G. E. Heimbach, Basilicorum libri LX, in 6 vols. (1833­1870), with two supplemental volume, C. E. Zachariae von Lingenthal, Suppiementum lib. XV-XWH... nec non lib. XIX Basilicorum (1846), and Ferrini-Mercati, Supplemenlum aiterum (1897), is being replaced by an acknowlcdgedly much more faithful reproduction from the manuscripts, the edition by H, J. Scheltema and his assistants, D. Holwerda and N. van der Wai. Basilicorum libri LX, series A, vol. I: Textus librorum ²- ÞÒ(1955) and continuation volumes to date; scries B, vol. I: Scholia in lib. 1-Õ! (1953) and continuation volumes to date.

3. Peters, Die astromischen Digesienlcommentare und die Entstehung der Digesten [ = Ber. Leipzig 65(1913)] 5-26.

generally been accepted,^{[151] [152] [153] [154] [155] [156] about 600 A.D. an unknown author (Anonymus) prepared an epitome of the texts of the Digest of Justinian, in Greek, and added to it a running chain (catena) of marginal glosses (scholia), which were extracts from the writings of earlier Justinianian jurists, notably Ste­phanas, Theophilus, Dorotheas and Cyrillus, supplementing the Digest material (paratitla) and interpreting or paraphrasing it with notes and illus­trations (ερμηνεία, an index in a broader sense)? For the Latin constitu­tions of the Codex lustinianus the compilers of the Basilica used a literal Greek translation (τό κατά πόδας) as their text? They took extracts from a number of commentaries on the Code by jurists of the 6th century, partic­ularly that of Thalelaeus, for the marginal glosses? The commentary of Thalelaeus was an extensive combination of abridgement (index), a discus­sion of the background of the case which led to the imperial constitution, a translation of the constitution into Greek, and notes (παραγραφαι) to the Latin text or Greek translation? Finally, the Basilica contained abbreviated versions of the text and scholia from commentaries of the Institutes and of the Novels of Justinian?}

Only about two-thirds of the Basilica text is preserved in the known manuscripts and not all these fragments contain scholia. The Heimbach edi­tion of ‘scholia antiqua’, namely, those glosses fashioned from writings of 6th century jurists, is far from an adequate presentation.^[157] Yet these scholia constitute an invaluable source for the study of the Roman law, even the

Roman law of the classical epoch. The scholia antiqua provided Mommsen and later scholars with improved readings of Digest passages;¹¹ Thalelaeus’ commentary afforded Kriiger the evidence for the re-constitution of frag­ments of Justinian's first Code;^{[158] [159] [160] the Basilica text and scholia played a significant role, pro and con, in the search for interpolations in the Digest.'1 With the completion of the new, and apparently very trustworthy, edition of the Basilica text and scholia,[161] [162] and an eventual ‘Prolegomena* to facilitate the use of these materials,1 s we may look forward to renewed research in textual criticism of the Corpus Iuris.}

5. Textual Criticism

§ 28 The sections devoted to textual criticism have been considerably altered from the discussion of the corresponding topic in the first edition of this volume.¹ The year of that publication, 1936, marked the high point of what is now recognized as the epoch of radical interpolation research. Ushered in by the sweeping ‘contributions’ of von Beseler in 1910,¹ the next quarter of a century of research in Roman law was largely devoted to the discovery of alleged alterations in the texts of the classical jurists and of the imperial legislation of the early Principate, alterations purposely made in the older texts by the compilers of the Justinianian compilation, or changes which had crept into the texts in earlier centuries, either intentionally or by chance. In addition to the alleged discovery of interpolations, scholars frequently offered conjectures as to the language of the jurists or of the legislation which had been altered or omitted? In 1935, Albertario published the first part of an introduction to the study of the Roman law of the Justinianian era, the central section of which was devoted to a lengthy exposition of the criteria to be employed in ferreting out the supposed interpolations which had so drastically changed the earlier writings.⁴

Strange to say, from that time on the pendulum has swung in the other direction. The first criticism of over-extended search for changes had been sounded many years before? In the earlier edition attention was called to what is now seen to be one of the basic attacks on the rabid search for interpolations, namely, the 1924 article of the English Romanist, Buckland, in the Yale Law Review.⁶ Unfortunately, as is wont with Roman law studies appearing in American law reviews, this article was largely neglected in re­search in Roman law on the European continent. Chiazzese was stimulated by Buckland’s article to collect all the instances of‘confrontation’ between extracts in the Corpus luris and parallel passages in pre-Justinianian sources and in the parts of the Corpus luris itself;¹ Kubler, in a review of Chi- azzese’s work, mentioned the Buckland article? But the reasoned warning was otherwise ignored?

a. The History of Interpolation Criticism

J 29 The historiography of the critical considerations of the text of the Corpus luris is of relatively recent date.¹ The first efforts are to be discerned in the writings of some of the 16th and 17th century students of the Roman law? Antonius Faber, Johannes Wissenbachius, above all lacobusCuiacius (Jacques Cujas) pointed out the so-called emblemataTriboniani, the alter­ations which Justinian’s compilation commission, with Tribonian at its head, had introduced into the texts which they incorporated into the Digest. Then.

4. Albertario, Introduzione, chap. III.

5. E.g., Kalb, Die Jagd nach Interpolatlonen in den Digesten (1897); Mittcis, SZ 33 (1912) 180-211. specifically directed to von Bcselcr's first work; Kubler, SZ 42 (1921) 515-42.

6. Buckland, 'Interpolations in the Digest*, Yale L. J. 33 (1923/24) 343-64.

7. Chiazzese, ‘Confronti testuali; Contributi alia dottrina ddlcintcrpolazioni giustiniance’, Ann. Palermo 16 (1930) 3-554, mentioning Buckland's article, 53 f.

8. Kubler, SZ 55 (1935) 443-49,444.

9. The study of Kaser, SZ 69 (1952) 60-101, which heralded the new trend in more con­servative interpolation research, makes no mention of the article, and Wieacker, in his recent exposition of the present status of Romanist textual criticism. La aitica del tesla 1099, 1105 n.17, states that he has had Buckland's contributions in American law reviews only recently called to his attention.

1. Kaser, Rechlsgeschichie 256-67,

2. Palazzini Finetti, Sioria della ricerca delle inierpolazioni nel Corpus luris giusiinianeo (1953), with further reff.

during the whole of the 18th century and the first half of the 19th century, no real effort was continued in this direction. Gradenwitz, Lend and Ali- brandi were among the founders of the modern school of interpolation criticism.¹

At the start, the question was simply whether alterations had been made by the compilers in the texts which were included within the Corpus Juris, Though literally ‘interpolation’ should be limited to additions which were made in the text, usage soon extended the term to include the omissions and substitutions which were made by the commissions.^{[163] [164] Gradenwitz pro­posed three major directives in the search for interpolations:[165] (I) the writer of the classical era did write the passage, determined by external grounds of comparison; (2) the classical writer could not have written this, based on internal grounds; and (3) Tribonian, i.e„ the codifiers, wrote this. A primary effort in interpolation research involved the comparison of‘twin fragments' (leges geminatae), that is, extracts which were preserved in some one of the pre-Justinianian sources as well as in the Digest.[166] [167] This was followed up by legal as well as philological criteria in the effort to discover what was not ‘genuine’ in the text attributed to the classical author. It was early sug­gested that ambiguities, or even ungrammatical expression, would signal Tribonianisms. Within a short time, scholars had detected a host of passages in which new doctrine had been introduced (‘interpolation’ in the narrow sense of the term) as well as glosses, explanatory notes or paraphrases which had not been intended to alter the substance of the text. The search for alterations was not limited to the Digest. By a comparison of imperial legis­lation set forth in the early codes, such as Codex Gregorianus, Codex Her- mogenianus, Codex Thcodosianus, with the same legislation which appeared in passages of the Codex lustinianus, interpolations were discovered and reconstructions conjectured?}

About the beginning of this century a second phase of interpolation crit­icism was introduced, the search for pre-Justinianian interpolations.¹ For the most part these were deemed to stem from the efforts of teachers in the law schools of the eastern provinces. It was argued that theoretical concepts infiltrated into the legal sources and that Hellenistic institutions of the sub­ject peoples of the east penetrated into the Roman law? Further, textual criticism sought to expose glosses and textual changes in the pre-Justinian­ian sources of the west.¹⁰ Today, these alterations are largely discounted, the explanatory phraseology or paraphrase of the suspect passages attri­buted to the nature of the work or the style of the author concerned.

A third phase of interpolation criticism, perhaps better termed textual criticism, was introduced by Schulz, Niedermeyer, Wolff and Wieacker." The study of juristic extracts in some of the pre-Justinianian sources, par­ticularly the Vatican Fragments and the Collado, has led these scholars to the conclusion that most of the juristic writings which were used by the compilers had been re-edited by anonymous editors in the closing years of the 3rd or the beginning of the 4th century, at a time when, according to Wieacker,'² publication in codex form - single sheets bound together on the left-hand margins - replaced the rolls (volumtna) of papyrus sheets glued together on the side margins. In 1931 Schulz sought to show that works of the jurist Scaevolaftime of M. Aurelius) were not published until the early 3rd century, and were re-edited in abbreviated form in the early 4th century;" no effort was made in the abridgement to alter the law stated. In 1933 Niedermeyer attempted to demonstrate that the source of the frag­ments of Ulpian’s commentary on the edict found in the Collatio and of those included by the compilers in the Digest both derived from an early post-classical revision made at the turn of the 3rd/4th centuries?⁴ In the years after the war, Schulz, Wolff and Wieacker published a number of studies in which the revision of classical works by anonymous western editors in the early post-classical times is postulated. " However, as Prings-

8. Bonfante. Storto II 180 f., and 181 n.3, with specific references.

9. For conjectured glosses and interpolations in theTheodosian Code and post-Theodosian novels, see dfe Dominicis, 'Registro delle alterazione,.BIDR 55/56 (1953) 383-442, and /aw 15(1964) 117-36.

10. For Gaius, Institutes, sec Schulz. History 161 n.8; for the other sources, see Volterra, ‘Indict: delle glosse. delle intcrpolazioni... nella fonti pregiustinianee occidentali*. RSDI8 (1935) 107-45, 389-405 and 9 (1936) 365-80.

11. Reif, by Kaser, Rffm. FriwtrerAt 11 20 n.9.

12. Wieacker, Texlstufa 93-101

13. Schulz, ‘Obcrliefeningsgeschichtc der Responsa des Ccrvidius Scaevola’, Symboiae Lend 143-244.

14. Nicdemeycr, ‘Voriustinianiscbe Glosscn und InterpolaLionen und Textdberlieferung*. 4m* Cong. Roma I 351-84.

15. Reif, supra, n. 11.

heim pointed out, the three scholars differ amongst themselves as to the nature and content of the new editions, particularly as to the extent novel doctrinal changes crept into the new editions.¹⁴

Some Romanists seem to have accepted this idea of early post-classical revision, though Kaser probably speaks for the majority when he says that ‘in the reworked new editions of classical works under their old titles, doc­trinal adaptations, as far as I can see, cannot be shown with any certainty. The substance of the first work is wholly retained in these works’.¹’ On the other hand, there are some who dispute the very preparation of early revi­sions by anonymous editors, for example, Arangio-Ruiz.” Watson argues that there is strong evidence that the works of Gaius, Papinian, Paul, Ulpian and Modestinus, the five juristic ‘evangelists’ - so Schulz - of the Law of Citations had not been altered in the two preceding centuries, and that the works of other jurists had not undergone substantial revision.”

In 1950 Wieacker set the stage for a new approach to textual criticism,^{[168] [169] [170] [171] [172]} which was fully presented in 1960 in the volume concerned with research on textual stratification.^{[173] [174] Inasmuch as the writings of the classical jurists are the major source of our knowledge of classical law, it is imperative that the ‘life-history* of these writings from their first appearance to the time of the incorporation of passages from them into the Justinianian codification be the subject of careful research. During the classical period the writings of earlier jurists were replaced by newer works,31 but in post-classical times, when the existing heritage of juristic works acquired statutory force, the name, the title and the general topic had to be retained, even if the develop­ment of the law required interpolations, conscious alterations in the text.[175] In the second part of the volume,[176] Wieacker discusses the textual changes revealed by a comparison of parallel passages (leges geminatae), those in­stances where we possess a pre-Justinianian version as well as the extract in the Digest, or in some instances parallel cases in different parts of the Corpus Iuris. On the basis of textual layer criticism, Wieacker offers an encyclopedic range of comment concerning the changes made in the texts, and suggests reasons why the jurists and the subsequent revisors wrote as they did. He has demonstrated that textual criticism of the type he describes is an imperative in the effort to ascertain the classical law, at least where parallel texts of juristic writing have been preserved.}

The last decade has seen the bare beginnings of the application of another tool to textual criticism, namely, the computer. This author has stressed the value of the mechanical procedure in determining the attribution of texts of uncertain origin and authorship.“ A young scholar, Luther Muller, has employed the well-recognized quantitative analysis of language by compu­ter to discover the author of the ‘Tituli ex corpore Ulpianf, otherwise known as the Epitome Ulpiani or Regulae of Ulpian (see supra, | 20), as well as the sources of the materials included in this work.^{[177] [178] [179] [180] [181] He has also men­tioned a number of projects in Roman legal study which might be under­taken by quantitative computer analysis.17 Other statistical techniques which might be applied to legal texts include variation in vocabulary, prose rhythm, syntactic patterns, the incidence of specific lexical items.1* Wholly distinct from quantitative analysis would be a project to generate a context­free grammar of the Latin language and subject machine-readable texts of the jurists’ writings to computer analysis to determine the variables in sen­tence, clause structure.19 Such aprogram would decisively reveal theportions of the text which could not be attributed to the ostensible author. That computer analysis of the sources of the Roman law is in the offing is shown by the fact that machine-readable text of the whole of the Digest is in course of preparation.[182]}

b. The Scope of Textual Criticism Today

$ 30 There has been a good measure of shifting in the historiography of tex­tual criticism in the Roman law during the past hundred years, but the status appears to be fairly well established at the moment, to judge by the critiques simultaneously presented by two of the leading Romanists of the day, Wieacker and Kaser.¹

Wieacker opens his report on textual criticism with the admonition that diagnosis and evaluation of interpolation are completely distinct matters. Textual criticism has to be kept apart from normative premises. It may even be incorrect to distinguish between intentional and unintended changes in a text, or between formal and doctrinal interpolations, but it is worse to confound textual study with legal presumptions. Radical textual criti­cism was built upon four suppositions, two of which are anti-historical; (1) there was a presupposition of purity in language,^{[183] [184] [185] though it is seen that some juristic works reveal ordinary common prose, and others reflect chan­cellery usage; (2) it was assumed that jurists’ law was striving towards generalization and harmonization of a legal system whereas exactly the opposite was true; Roman classical law was largely free from axiomatic thinking and pure deductive reasoning. Two other tendencies were over­stressed: (3) the idea that Hellenistic and oriental influences led directly to pre-Justinianian and Justinianian interpolation. ’ Rather, such influence of ’local law’ that crept in was due to Byzantine legislation or the recognition of local custom; the juristic texts were scarcely affected at all. And (4) that the influence of the eastern law schools penetrated into legal thinking and brought about alteration of texts in pre-Justinianian times. Actually, it was not until the plan for the Digest was prepared and the reform statutes enacted by Justinian that the eastern influences became part of the Roman law.[186] In addition, Wieacker notes several technical mistakes in the extreme textual criticism: that conclusions reached on doctrinal grounds would lead to the discovery of linguistic infidelities, and vice versa; that interpolation was imputed because a text was not reconcilable with known classical law, or that a text revealing classical law must have been written by a classical jurist; on the other hand, the absence of recognizable novelties does not necessarily indicate the continued existence of classical law.}

Wieacker points to the danger of an anti-critical reaction: texts clearly interpolated will be labeled ‘in content genuine classical law’ without further ado. There are realistic criteria for the recognition of Justinianian inter­polations, primarily through the ‘confrontation’ of parallel texts.’ Well- documented alterations include: (a) rearrangement of authentic material; (b) abridging or cutting out controversies among the jurists; (c) a tendency to substitute authoritative ruling or generalization for specific instances; (d) the replacement of formulary procedure of classical times by the libel- lary process of the Justinianian age; and (e) taking account of the reform statutes of Justinian. The discovery of pre-Justinianian interpolations is extremely difficult without knowledge of the actual sequence of change (‘Lebenslauf’) in the pre-Justinianian texts. Too much stress should not be laid on the early post-classical revisions of classical texts, for these glosses and paraphrases do not generally affect the substance of the law. Again, the professors in the eastern law schools were too imbued with the authority of the classical texts to have altered them to any extent. There was no drive for change before Justinian. All in all, we can take the Digest, after elim­inating the limited Justinianian interpolations and the revising editor’s glosses, as invaluable evidence of the writings of the classical jurists.

Kaser’s report on the credibility of the sources takes issue with some of Wieackcr’s points, and supplements his report in other respects. In the determination of how far we can use the juristic writings and the imperial constitutions as a source for the knowledge of the Roman legal system of the classical epoch, how far these can be trusted, we cannot afford to di­vorce textual criticism as it relates to the tradition of the text from the dis­covery of change in the substance of the law. Since his earlier report,* there has been a definite swing to conservatism in textual criticism, recalling Riccobono’s anti-interpolation views.’ This is due to the recognition of two significant factors: (1) the classicalism of Justinian, recently expounded at length by Schindler,· and (2) the nature of classical law as case law, replete with controversies which were not settled in the writings of the jurists.’ Justinian may have simplified or even omitted the controversial questions, but where there is no reason to think there is Justinianian reform, we must suppose that the Justinianian and the classical versions arc the same. In con­trast to Wieacker, Kaser believes that the distinction between formal and doctrinal interpolations has merit, for it appears that many texts not clas-

5. See infra, $31,

6. Kaser, 5769 (1952) 60-401. 549-51.

7. References by Kaser. La critica del testo 296 n. 12.

8. Schindler. Justinians Haltung zur Klassik. Versuch einer Darstellung an Handseiner Kontro­versen entscheidenden Konstitutionen [- Forschungen zum romischen Recht, 23] (1966).

9. Infra, chap. VIII, $ 104.

sically formulated contain classical law. There is, indeed, little reason to assume that classical jurists could not have written trivialities, or that their linguistic style was always perfect. In the hands of the interpolation critics, the classical jurists lost their individual character and became fungible per­sons, which we now know they were not.¹⁰

Kaser’s points respecting pre-Justinianian interpolations are largely identical with those of Wieacker, but it may be valuable to spell out his listing of the categories of Justinian’s interpolations: (1) the jurists’ law had to conform to the new imperial law as set forth in the reform statutes; (2) the compilers were relied upon to alter the jurists’ texts where the insti­tutions concerned had become obsolete and were now replaced, and where new institutions could be introduced without much alteration of the old language; (3) a considerable number of interpolations were made in order to conform to the altered legal procedure; (4) a further group of inter­polations reflected change in the administration of the state, in religion and in economic or social relations; (5) a number of alterations were in­volved in introducing systematic and theoretical innovations which had been developed in the eastern law schools; and further, (6) a good many doc­trinal novelties which can only be described as a relinquishing of the ideas and processes of thought of the classical law, a substitution of Byzantine ‘equity’ for the moral discipline of the classical world. Kaser concluded that the changes by the early post-classical editors were much less signifi­cant than had been thought, and that generally speaking there was continu­ity between the law of the classical period and that of Justinian’s time. He looks forward to a shift, not a retrogression, in research into the clas­sical law, and he offers two maxims for textual criticism: (1) no textual change in juristic writing or imperial constitution can be excluded, nor any modification of the substance; it is only a question of more or less prob­ability. And (2) each text is an individual item; all the resources available should be brought to bear, to gather the meaning and historical fate of the passage.

The above paragraphs summarize, I trust faithfully, the latest views which have been expressed on a topic vital for research in the Roman classical law.^IM I know of none more thorough or pertinent. Yet 1 would add one element which gets little attention in these two reports, or, indeed, gener­

ic. See, for example, Wieacker, 'Amoenitates luventianae; Zur Charakteristik des Juristcu Cdsus’, iura 13 (1962) 1-21.

10a. Further comment on present-day methodology: Kaser, ‘Zur Methodologie der rihnischen Recbtsqucllcnforschung', Sitzb. Wiat 277.5 (1972); Wieacker, 'Tcxtkritik und Sachforschung’, SZ 91 (1974) 1—40; Honor«!, ‘A study of Ncratius’, TR 43 (1975) 223—40. Cf. also, the replies to the inquiry, cit supra, $ 5, n.24.

ally today: the language of the individual jurist. Ninety years ago, Roby,” in the opening of an extended study of 'lawyers Latin’, characterized it as neither studied nor rhetorical, but 'rather the ordinary language of daily life,... on the whole simple, straighforward and pleasant, with numerous technical expressions, but free from pedantic tautology or circumlocu­tion’.¹² The study itself is an extensive analysis of inflexion and syntax and word formation in the writings of the jurists. In the decades following there have been a number of studies devoted to careful analysis of the language of the jurists. Well known are two monographs by Kalb;^[187] there arc articles by Schulze and Brassloff;¹⁴ there are many others of years ago. Recently, an extensive study by Kaser treats of the evolution of legal terminology through the periods of the Roman law.¹⁵ In commenting upon the references to the word ‘is’ (‘he, she, it, the one mentioned’) in the Vocabularium iuris- prudentiae romanae - more than 20,000 entries - Schwarz remarked that the more one studies juristic language the less one can use it as a means of discovery of interpolation or post-classical revision of juristic texts.¹* Recent critics have pointed to the overwhelming reliance upon the philo­logical criterion in the search for interpolations as one of the basic errors in the epoch of radical textual criticism.

It may be pointed out that in practically all studies on this topic it is juristic language, not the language of the individual jurist, which is the sub­ject matter of discussion. ” Just as today’s research has turned to study of the techniques of the individual jurist, to an insight into the intellectual capacity of a Julian, to the effect of bureau activity on a Papinian, so also must we have recourse to the language and style of each jurist. The new tool, the computer, affords us this opportunity. Students of literature of today, as well as of the past, have demonstrated that every writer has his own language and his own style,** revealed both by his intentional as well as his subconscious effort, and though these may vary during the course of his life, they can be distinguished from the language and style of another, even con­temporary, writer in the same field. The author has already prepared machine- readable text of the writings of the jurists of the Hadrianic epoch,¹’ and with the present preparation of similar text for the whole of the Digest,^{[188] [189]} a new tool will be afforded for interpolation criticism, and, additionally, for studies on the inter-relationship between the writings of thejurists them­selves.

c. Illustrative Errors, Glosses, Interpolations

Scribal Error

§ 31 Gaius, Libro I ad legem duodedm tabularum (D. 1.2.1)

Having undertaken to give an exposition of ancient statutes, I have thought it necessary to go back < for the law of the Roman people > [/ww] to the founda­tion of the city.

P.R.IVS misread PRIVS?

Paulus, Libro XIV responsorum (D. 22.1.14 pr.)

[Ðîè/] f he) responded that in settling a trust < after > delay had occurred, newly born offspring of slave women were also to be transferred.

Abbreviation P. resolved P(aulus) instead ofp(ost), in the opening words: RESPOND1T P. MORAM?

Paulus, Libro LIVad edictum (D. 41,42.8)

A guardian, at the auction of his ward's property purchases a thing he believes belonged to him (the ward). Servius says he can possess it by usucaption. His opinion is accepted, in that the position of the ward is not rendered worse [if he himself (proprius) < if he has a purchaser

has a purchaser;] for more (potius); >

and if he purchases for less, he is liable in the action for guardianship, as if he had sold it off to another at a lower price. And this is said to have been estab­lished by the deified Trajan.

Scribal error of ‘proprius’ for ‘potius’, due to inadequate hearing upon dictation?

The emendation of texts to rectify obvious ‘mechanical’ errors by the scribes is the task of the modem editor of a text, by means of a collation of manuscripts where this is possible, and by correct ‘divination’ where not. In the case of the legal texts of the Roman law this has largely been achieved by the editors of the standard editions, though there has been some suggestion that further effort in this direction might produce significant results.⁴

Glosses

Marginal or interlinear notations made upon texts (glosses orglossemes) may creep into the text itself, either through error or purposely, when a new version of the text is prepared. The manuscripts of the prc-Justinianian materials which have been preserved to us, as well as those employed by the compilers in the fashioning of the Digest, Code and Institutes of Justinian, are texts into which earlier glosses have been incorporated. Schulz, in his introduction to textual study, distinguishes the following types:^} (1) the text may be expanded by single words, a type particularly frequent. (2) The text may be paraphrased, often for the purpose of translating Greek ex­pressions of the jurist into Latin; ‘id est’ (‘that is’) is a frequent indication of this type of gloss. (3) Often the glossator believes the classical text fails to justify the holding; he supplies the reason, more often than not incor­rectly. (4) Words or sentences may be introduced to expand orto limit what the glossator thinks is indefinitely delimited. (5) If the jurist presents a principle without examples, instances (casus) may be supplied. (6) Chapter headings or marginal indexes of content, added by other hands, may become incorporated into a later text. (7) A glossator might make a resume of a long classical discussion and illustrate an abstract rule by a case. (8) ‘Paratitla’ glosses are general remarks prefixed to the jurist's discussion of the various parts of a particular title of the edict. Some of these types are illustrated in the following passages.

Florentinus, Libro VII institutionum (D. 11.7.42)

A monument ingenerai termsis a thing handed down to posterity for a memorial: if a body or human remains should be laid inside it, it becomes a sepulchre, but if nothing of the kind is laid in it, it is [a monument made by way of memorial] what the Greeks call Ktvordtpiovfa cenotaph},

A paraphrasing gloss.⁶

4. Schonbaucr, Festschrift Koschaker II 385, 393 IT.; Miquel. ‘Mechanische Fchlcr in dcr Oberi ieferung der Digesten, SZ 80 (1963) 233-86.

5. Schulz, Einjuhrung 19-36.

6. Lend, Palingenesia I 173 n,6.

Ulfianus, Libro XVIII ad edic­tum (Coll. 12.7.8) Similarly, in book VI (Notes} from Vivianas, it is related: if you have an oven against a wail common (to you and your neighbor}, will you be liable for wrongful damage? He says it cannot be put under the lex Aqullia because even against a man who has an (ordinary) hearth accordingly, he thought it would be fairest that an action on the case (actio in factum) be given. [Zfcrf he did not point out the wall was burnt. For certainly it could be queried you have done me no dam­age and you have simply got your fire so that I apprehend lest it will be spread to me, whether it would be right, nevertheless (?), for me to seek an action on the case. Proculus perhaps had thought in this way, except that some one has stated it would be suf­ficient to give security against damage not done (damni non facti). ]

Ulpianus, Libro XVIII ad edic­tum (D. 9.2.27.10)

If you have an oven against a wall common (to you and your neighbor), will you be liable for wrongfid damage? Proculus says no action can be brought because even against a man who has an (ordinary) hearth accordingly, I think it would be fairest that an action on the case (actio in factum) be given, [supposing, that is, that the wall was burnt.

If, however, you have done me no damage but you have simply got your fire so that I apprehend that you will do damage to me,

I think

it would be suf­

ficient to give security against anticipated damage (damni in­fect i ). ]

Gloss, in the Collatio [But he did not-fin.], offering reasons for the deci­sion, a gloss which was still present, perhaps modified by a second glos­sator, in the text which the compilers used, and corrected, for the Digest passage?

7. Schulz, History 200: 'Whoever still denies the fact of a prc-Justinian revision of the texts in the Collatio must prove the authenticity of the words in Coll. 12.7.8: sed non - cautionem (But he did not - damage not done), which is simply impossible? For discussion of these passages, see Wieacker, Textstufen 242-45. with reff. to further literature. 242 n.106.

Ulmanus, Libro II fideicommissorum (D. 34.1.14.3)

A certain person left in trust for his freedmen food supplies and also water. I was consulted about the trust. [ When ] The matter is reported to be done in that part of Africa [or perhaps in Egypt ] where water is sold, accordingly I said that this was a benefit of the trust.

A gloss seeking to extend the jurist’s decision respecting a particular case to another place?

Ulmanus, Libro VI ad edictum (D. 3.2.4.2)

The praetor says: 'who acts as a procurer’. A man acts as a procurer who keeps slaves who bring in a profit this way; and if he makes a similar speculation with free women, he is in the same position. Moreover, whether he makes this his main business or has some other kind of business as well, [for example, if he is an inn-keeper or a tavern-keeper and has slaves of this kind who wail on travel­ers and use the opportunity afforded to make gain in this way; or if he keeps baths and, as is done in some provinces, he has slaves at the baths hired to take care of the clothes of customers, and these carry on the above practices at the bathing place] he will be liable to the penalties imposed on procurers.

A gloss introducing cases?

Papinianus, Libro XXVI quaestionum (D. 41.2.47)

If you determine to possess and not to restore a movable thing which I have deposited with you, [or lent to you for use] ir has been held that I have imme­diately lost possession even without notice; [? and the reason of this is perhaps that neglect or failure to keep movable things is wont to affect the previous possession adversely, even though no one else has «tier«/;] and this Nerva films reported in his book on Usucapì ions. The same author writes that the result differs in the case of a slave loaned where custody fails; [? for old pos­session of him continues as long as no one else begins to possess him,] clearly for the reason that, by intending to return, a slave, through whose physical act we can possess other things as well, can preserve his master’s possession of him­self. [Hence, though possession of irrational or inanimate things is immediately lost, possession of slaves is retained, if they have the intention of returning.] The final gloss is a resume. In addition [or lent - for use] is probably an interpolation by the compilers, but the parallelism of the two institutions is found in post-classical glosses; the second and third are probably glos­ses, to provide reasons for the rule.^{[190] [191] [192]}

Interpolations

Imperator caesar flavius iustinianus.,. Triboniano quaesiori suo salutem (D. Const. Deo auct. 7-10) (Dec. 15, 530 A.D.)

There is another thing we wish you to observe carefully: if you find anything in the old books that is not well put or anything superfluous or incomplete, you should remove the unnecessary prolixity and supply what is lacking and present the whole work in proper form and as fine as possible. You should also observe: if you find anything incorrectly expressed in the old statutes or constitutions which the ancients cited in their books, you should correct it and put it in proper form: so that whatever is chosen by you and set down may be deemed genuine and the best version and treated as originally so written, and no one may ven­ture to argue that your text is faulty by comparison with the old volume....

(8) Accordingly, in all parts of the aforesaid treatise no place is to be allowed to any antinomy - such is the name used from old time, derived from the Greek - but there must be full agreement, full consistency, and no one is to raise any dispute. (9} IFe also wish that repetition - as has already been said - be absent from a compilation such as this; and those matters which have been provided by the most sacred ordinances which we have included in our Code, we do not permit to be set down again as part of the old law since the sanction of imperial con­stitutions suffices to give them authority, unless, indeed, this should be done by way of contrast or of supplement or ofgreater exactness; but even then very rarely, lest, if an exception of this type be permitted, some amount of thorns may grow up in such a meadow. (10) Again, if any statutes cited in the old books have now fallen into disuse, by no means do we permit you to set them down, since we wish only that to obtain which has been put in force by the most normal course of trial or has been approved by the long usage of this revered city, in accord with the work of Salvius lulianus which points out that all states ought to follow the custom of Rome, the head of the world, and not Rome other states. Moreover, by Rome is to be understood not only the old city but also our own royal city, which by the grace of God was founded under the best auguries.

Imperator caesar flavius iustinianus...ad senatum et omnes populos (D. Const. Tanta 10) (Dec. 16, 533 A.D.)

Moreover, we have so much reverence for antiquity that we have by no means permitted the names of the jurists to pass into oblivion, but each one of those who was a writer on law has been mentioned in our Digest; this alone was done by us, that if something in their rules seemed superfluous or imperfect or of minor worth, it was taken, expanded or curtailed asfar as necessary, and reduced to the most correct rules. And in many cases of repetition or contradiction what appeared to be the better has been set down instead of any other and all included under one authority so that whatever is written therein may appear to be ours and to have been composed by our will; let no one dare to compare those matters which antiquity held with those which our authority introduced because there are many and important changes made on account of practical utility. And even if an imperial constitution had been set forth in the old books, we have not spared it but thought that it ought to be corrected and restored in better form. Leaving the names ofthe old authority, we observed in our emendations whatever was suitable and necessary for the true sense of the statutes. A nd for this reason if anything was debated among them it has now become most decidedly settled, leaving no room for hesitation.

C. Const. Haec 2 and C. Const. Cordi 3 are to the same effect for the Second Code, 528 and 529 A.D.

In the course of the years a number of criteria have been proposed as aids in the search for and the recognition of those changes and omissions which Justinian called for, and declared had been made, in the constitutions which instituted, and later promulgated, the Digest." The criteria for interpola­tion discovery proposed by Bonfante and adopted by Albertario form the basis of the critical comment by Buckland, which has been referred to earlier (§ 28). These criteria are set forth in the following pages, the examples chosen by Albertario, the critical comment supplied by Buckland.¹¹

Comparison of Texts

Papinianus, Libro III respon­sorum (Fr. Vat. 12)

Where a controversy arises on the question of ownership be­fore the price has been paid, the buyer is not compelled to restore, even though especial­ly sureties are offered against eviction, since he had begun to possess without knowledge. For an ineffective usucaption- period will be made valid provided the issue has been ^{[193] [194]}

Papinianus, Libro III respon­sorum (D. 18.6.19.1)

Where a controversy arises on the question of ownership be­fore the price has been paid, the buyer is not compelled to pay the price [unless satisfac­tory sureties against eviction are offered by the seller.]

raised, nor need seairity against eviction be of­fered, since in the very entry into the contract the risk of loss upon the owner is imminent.

Imperatores Diocletianus et Maximianus augusti et consules eutychio (C. 8.44(45].24 pr.) (294 A.D.)

If a question shall have arisen as to the property sold after the sale has been concluded but before the price has been paid, or slaves sold proclaimed free, it is established by authority of law that, although eviction is imminent in the very entry into the contract, the buyer is not compelled to pay the whole or the remainder of the price if he is not offered sufficient to satisfy (the claim).

The interpolation of the compilers results in a holding the exact opposite of that set forth in the pre-Justinianian Vatican fragment.¹¹ The reason for the change appears to be clear: the legal principle was altered by legislative action at the end of the 3rd century. Albertario states that the passage was interpolated to express a new idea;^{[195] [196] Buckland maintains this is a routine interpolation to give expression to an earlier legislative change, a type of interpolation quite frequent in the Digest.[197] [198] [199] The Vatican fragment has been the point of departure for quite some discussion as to the extent to which the ‘Papinianizing editor’, before 294 A.D., had modified Papinian’s words;“ that is a problem of early post-classical glosses in the revising of classical works, however, and not of interpolation.}

Textual comparison between Justinianian and pre-Justinianian texts as a criterion for interpolation was the subject of the early criticism by Buck­land, mentioned earlier (| 28). In that study/¹ based on an analysis of the parallel texts (leges geminatae) in these sources, Buckland concluded that there was no drastic overhauling of the law by the compilers of Justinian’s Corpus. Of the 165 instances of parallel texts there is no change of doctrine in 125 cases, merely a change of words. Twenty show doctrinal changes of some kind, in three cases an additional alteration modifies the result. Of the twenty cases where the doctrine is different, Buckland contends that the Digest text is closer to the original than the pre-Justinianian version. It may be true that the compilers made alterations and introduced Hellenistic ideas, but the general conclusion must be that there is a presumption against interpolation and the case must be clearly made out before a conjectured interpolation is entitled to acceptance. Such was the view of Buckland al­most a half century ago, and it has become the prevailing view today. Yet comparison of texts, where available, is probably the most reliable of the criteria indicated; Chiazzese has gathered together all the possible confron­tations of texts - more extensive than Justinianian-pre-Justinianian textual comparison - and his data may lead to new results, far beyond the distinction between formal and doctrinal interpolations which he stressed.¹¹

Historical Criterion; Anachronism

Paulus, Libro I sententiarum (D. 3.5.46(47].!)

It does not matter whether the action brought by or against the party is direct or utilis (on the analogy of), since in trials extra ordinem, where the drawing up offormulae is not observed, there is no occasion for such subtlety, especially since both kinds of action are of the same force and have the same effect.

A text is said to be interpolated or glossed if it expresses a rule inconsistent with what is known to have been the law when the text was written. It is a test most liable to misuse if there be preconceptions as to what the classical law really was. The instance given -the reputed obsolescence of the formu­lary procedure and its replacement by procedure extra ordinem at the time of the jurist Paul¹’ - is, according to Buckland, a routine interpolation to reflect a change known to have occurred earlier, and not a Justinianian reform?⁰

Logical Criterion; Dlogism

Modestinus, Libro V regtdarum (D. 18.1.62.1)

One who was bought sacred or religious places not knowing them to be such, or public lands as being private, although the sale (emptio) is void, am bring suit against the seller by action on sale(exempto)for recovery ofthe damages he has incurred in being deceived

18. Chiazzese. ‘Confront! tcstuali', Ann. Palermo 16 (1930) 3-554. The second, special part, was never written, but an index of the sources Chiazzese dealt with has been prepared by Metro, hwa 17(1966) 179-227.

19. index Interp. 142 and Supp. I 5 (ad hi.).

20. Buckland 1281.

Where there is contradiction within a text or between two texts of the same author, there is said to be an illogism which would not be made by a classical jurist. Aibertario says it is illogical to give an action on sale when there is no sale.^[200] But Buckland points out that the best lawyers are not always logical, and the passage need not be interpolated; even if it is, it is loose thinking rather than novel, improper doctrine.^[201]

Logical-Juridical Criterion; Legal Inelegance

Scaevola, Libra III responsorum (D. 32.93.3)

Il is queried whether that which the heirs had been instructed to turnover to their brothers applied also to their sister. He responded that it did apply [unless it be proven that the testator had intended otherwise].

Where the statement of a rule is limited or annulled by a saving clause or is extended to another and larger sphere, there is room for suspicion of inter­polation. The ‘unless’ (nisi) clause is a frequent indication of such illogical limitation.^[202] On the other hand, there is the possibility that, in many cases, evidence of intent from outside the will was deemed permissible by the classi­cal jurist.^[203]

Legislative Criterion

Ulpianus, Libro XXXVI ad Sabinum (D. 25.1.3.1)

would state, generally, that a good deal depended respecting (expendi­tures) for the continued use of a plot, whether this was for something which did not concern the present harvest,...

The use of the imperial ‘we’ and generalizations imperatively expressed are considered indications of interpolation.^{[204] [205] But it may be urged that a jurist, with the authority of such a one at the end of the 2nd century, could well have written, ‘we would state, generally’ (nosgeneraliterdefiniemus).2*}

Papinianus, Libro X quaestionum (D. 18.1.58)

Again, if trees have been blown down by wind or destroyed by fire, it has been held that the sale of the land is void, if it was on account of the trees in question, for example an olive grove, that the plot was purchased, whether the seller knew or did not know. [Whether the purchaser or both parties knew or did not know produces the same results as those which were stated in the cases, above, of houses (burnt)].

It is clear that reference in the jurist’s text to what has been or will be treated in the Digest of Justinian has been added by the compilers.”

Systematic or Methodological Criterion

Iulianus, Libro XIII digestorum (D. 44.7.16)

One who accepts a money loan from a slave belonging to an inheritance and < by mancipation shall have transferred to him by fiduciary agreement > [shall have delivered to him by way of pledge ] a plot of land or a slave....

Where a jurist, in the book named in the inscription, is seen to discuss a legal institution - in this case pledge (pignus) - which is known to have been treated at another place in his writings,¹· there is evidence of interpolation.” The illustration is that of a text from a book in Ulpian’s Digesta where the jurist was dealing with the institution of fiduciary agreement (fiducia), which the compilers have altered and utilized in the title on pledge (pignus), since the same rule was applicable to both.’⁰ The institution of fiducia, together with the mancipation, was obsolete in Justinian’s time, so the change from fiducia to pignus, and from mancipation (formal transfer) to tradition (delivery), was routine, according to Buckland.’¹

Philological Criterion

Pomponios, Libro XXXVad Sabinum (D. 13.7.8.3)

If, having stipulated payment (to me) at the end of one. two and three years, I have received a pledge (pignus )and I have agreed that unlesson each day (assign­edfor payment) the money has been paid, I shall befree to sell the thing pledged (earn. fem. pronoun), it is held that I cannot sell the pledge until all the sums be­come payable, because, by the words used, all the payments had to he shown (before the pledge could be sold);....

27. On this passage. Index Inierp. ad h. I.

28. On ‘legal systems', the repeated regular sequence of discussion of legal institutions by the jurists, see infra, chap. VIII, § 144.

29. Interpolations generally accepted, see Index Interp. ad h. 11.

30. For evidence of the change from fiducia to pignus, see the following extract, sub Philo* logical Criterion.

31. Buckland 1287 f.

Ulpiaws, Libro XXIXad edictum (D. 14.4.9.1)

A person has to choose by what action he will proceed, whether by that on the peculium (fund advanced) or the tributorian action [since he knows he will not be able to fall back on the other]. Of course, if a person wishes to bring the trib­utorian action on one claim, and that on the peculium on another claim, he should be listened to.

The criterion most often resorted to in the effort to seek out interpolations was the philological one, clear mistakes in grammatical usage or vocabulary or style current in the 6th century.⁵² In the first instance above the erroneous gender was noted, resulting in the discovery that the institution of pignus had been substituted for fiducia." In the second case, improper syntax, unusual vocabulary, as well as error in doctrine, supports the conjectured interpola­tion.^,J* The dangers in the use of this criterion, especially at the hands of non­philologists, is apparent, yet there is basis for employing this test.”

Exegetical Criterion; Antinomy

Ulpianus, Libro I ad Sabinum (D. 45.1.6)

One who has been forbidden to manage his property may acquire for himself by a stipulation, but he cannot deliver nor obligate himself by a promise. Therefore, a surety cannot intervene on his behalf any more than for an in­sane person.

UlpjanuS, Libro XI ad edictum (D. 46.1.25)

Marcellus writes that if anyone should act as surety for a ward who has obli­gated himself without the authority of his guardian, or for a spendthrift or an insane person, the better rule is that he (surety) will not be given relief, sincean action on mandate does not lie unto them.

The criterion in this case is the contradiction between two texts or series of texts. The passages above raise the question whether a surety can guarantee the obligations of a prodigal or an insane person.” In one passage, no; in the other the surety cannot deny responsibility. There is certainly reason for in- ^{[206] [207] [208] [209] [210] [211] [212] [213] vestigation when this occurs, but it is now recognized that this is not neces­sarily an indication of change in the compilers’rendition. The controversies among the jurists were far more numerous than had earlier been thought.” Some were settled in the course of time, and were noted by the compilers in routine interpolations; other might be settled by Justinian’s reforms; still others may have remained unsettled.}

Diplomatic Criterion

Ulpianus, Libro lad edictum aedilium curuiium (D. 21.1.35)

Frequently slaves not sick are relumed (in rescission of a sale) on account of slaves ill, if they cannot be separated without great difficulty or (it would be) an offense for reasons of humanity. Why, if the (slave) son be kept, would one choose to return the parents? Or vice versa? And this is wont to be observed in the case of brothers [and of persons coupled with one another in slave-marriage].

According to Bonfante/¹ the texts which were turned over to scribes in order to prepare the Digest text were often so confused and practically in­decipherable that what they made of it in writing it down constitutes an inter­polation. Such a text, said Albertario,¹’ is the passage above, resulting from running together two distinct glosses on Ulpian’s passage. According to Buckland, the case of brothers not being separated dates back to Ulpian; the slave couple reference is more likely a change introduced by the compilers, for the feeling of compassion for such a union would not be felt in the classi­cal epoch.⁴⁴* He concludes -as also this review of the criteria of interpolation, Albertario vs. Buckland -‘If so, it expresses a new idea, a doctrine of change, and it is the first of the texts we have observed in this progress through Alber­tario which does so.’