A. PERIODICIZATION OF THE LAW·

Perh aps the most extensive analysis of the concepts is offered by Wieacker.¹¹ When the term was first used by modern Romanists it referred to the literary production of those jurists whose writings were preserved in Justinian’s codification, jurists who were active between 50 B.C. and 250 A.D. But this would exclude the productive period of Roman jurists of the previous centuries, without which the ‘literary’ classical jurisprudence would not have been possible. To paraphrase Wieacker, if one looks to the cultural and historical achievement, it perhaps would be more correct to employ the term ‘classical’ for the jurisprudence of the late 3rd and 2nd centuries B.C. than for the ‘classical’ juristic literary efforts of the time of the Principate,

It would be well to remember that the great Roman jurisprudence began as early as the Second Punic War, and that in the half mellennium follow­ing to the age of the soldier-emperors two zeniths were reached, one in the second pre-Christian and the other in the second post-Christian century. These periods of highest development are easily distinguished as those of aristocracy-jurisprudence [Adelsjurisprudenz] and of emperor­jurisprudence [Kaiserjurisprudenz]. It is more difficult to assign a short and correct name to the dip of the periods found usually on the bounds between the pre· and the early-classical time.“

In a review of a recent history of Roman law, d’Ors contends that the points of cleavage marking the classical period ought to be more precise, and offers the dates of the appearance and the disappearance of the for­mulary procedure, namely, 130 B.C. and 230 A.D., following upon the crises in the time of the Gracchi and of the Seven.^[269] Grosso, however, urges that we ought to retain a certain elasticity in fixing the termini of the periods of crisis.¹⁰ With the latter reservation I propose to adopt the periodicization established by Bonfante, as was done in the earlier edition?'

In recent years Kunkel and Kaser have slightly modified the extent of the classical period by extending it to the middle or the end of the 3rd century of our era.“ In addition, Kaser splits this period into two parts, a period of ‘preparation’ during the last two centuries of the republic, and one of ‘realization’, the time of the Principate.

(1) the archaic period, to 367 B.C., the date of the leges Liciniae Sextiae, when the plebeians gained the right to have one of their class elected consul;

(2) the pre-classical period, to the end of the republic; (3) the classical period, of the Principate; and (4) the post-classical period, of the absolute empire.

The varied selections in periodicization afford an illuminating insight into the distinct approaches to the historiography of the Roman law. Each gives a clue to the interests and to the values which its author ascribes to the subject. In this volume attention is primarily turned to the period of classical law, the period which, in the view of the author, offers the greatest challenge to the student of Anglo-American law. With this material presented, the reader has an introduction to the history and the forces responsible for the development of the Roman classical law, and is able to proceed with greater facility into the substance of any field of the law.

20. Grosso, Storia 5 f.

21. Schiller, Texts and Commentary 60 f.

22. Kunkel, Introduction 63. 123; Kaser, RedttsgesMchte 63 fT.

23. Dulckeil-Schwarz, Redttsgesdtidtte 2 f.

24. lura 1 (1950) 385-88.

25. Supra, n.5.

26. von LQbtow, Volk 211 ff., 222 ff.; Frezza, Storia 172 ff.

27. Dulckeit-Schwarz, loc. at. supra, n.23; Guarino, Storia 29 f.

B. POMPONIUS, DE ORIGINE JURIS

§ 43 The remnants of legal historical writing by the Romans themselves arc extremely meagre. It has been said by the authority in the history of juristic science that the jurists of the late republic 'held aloof from legal history, where there were no Greek models’, while, during the Principate, 'legal history remained a closed book*.¹ As evidence for this position there is the story told by

Gellius, Noctes Atticae XVI. 10.2-8.

(Gellius was present in a group at the forum when one of the books of Ennius was being read) (2) Then the question was raised, what the word ‘proletarius’ meant. (3) And seeing in the group a man skilled in the civil law, a friend of mine. I asked him to explain the word to us; (4) and when he responded that he was learned in the law and not in grammatical matters, I said:' You in parti­cular ought to explain this, since, as you say, you are skilled in the law. (5) For Quintus Ennius took this word from your Twelve Tables, in which, if I remember rightly, there was written: " For a property-holder (adsiduus) only a property­holder may be a guarantor (vindex), while for a proletarius any one may be a guarantor, ” (6) W? ask you to consider, then, that not the Annals of Q. Ennius but the Twelve Tables are being read, and interpret the phrase "proletarius civis" (proletariate citizen) in that law.’ (7) ‘It is true’, he said, ‘that if I had learned the law of the Fauns and the Aborigines, I ought to explain and inter­pret this. But since "proletarii"and "adsidui" (property-holders) and “satiates" (clients) and "vades” (suretors) and "subvades" (sub-suretors) and "viginti quinque asses" (twenty-five asses) and "taliones" (retaliations) and the trial for thefts "cum lance et lido" (with plate and girdle) have disappeared, and since all that ancient lore of the Twelve Tables, except for centumviral cases by legis aaiones, was put to sleep by the lex A ebutia, I ought only to excel in the study of the law and the statutes and the terms thereof which we now use.’

For the XII Tables, infra, § 52; on the language of this passage, Pagliaro, La critica del testo 567-74.

Actually, the idea that there had been little legal historical writing was not novel, though it had not been so categorically stated. For example, Voigt maintained that pure legal historical works of a descriptive nature were never written in antiquity, though historical questions were treated by antiquarians and historical summaries were utilized as introductions in theoretical writings.^{[270] [271] Zocco-Rosa thought historical writing was uncritical, its purpose being merely to reflect the accepted views of the tradition;1 this view was recently restated by Guarino that the Romans, though excellent jurists, were very mediocre historiographers, in that they were little con­cerned with critical re-examination of the traditional stories.[272] [273] [274] Kaser has supported the prevailing view by noting that the anecdotal historical obser­vations made by the jurists, rather than discussions of the origin and develop­ment of legal institutions, failed to make history significant for the understanding of the current law?}

Some years ago, in one manual at least, the opposite point of view was suggested:^{[275] [276] [277] [278] the Romans were vitally interested in the history of their law inasmuch as, for a very long time, the source of this law was custom. It was necessary to become familiar with the evolution of legal institutions through the centuries in order to understand the current law. Direct rebuttal of the prevailing view has recently been offered by Maschi.’ The jurists of the classical epoch could not have achieved a true juridical science without close attention to legal history. He maintained that the ‘jurist’ of Gellius’ tale was but a wretched pettifogger; what age does not have some members of the profession wholly ignorant of its history? Maschi argued that there were distinct contributions to legal historical study, and that the introduc­tions to some of the works of the later jurists display historical research pertinent to current problems. Another scholar, Weiss,· had concluded that the legal historical works of the early Principate had been lost by the later centuries, but Maschi countered that the greatest attention to legal history by the jurists dates from the beginning of the 3rd century of our era.’ It has been observed, however, that Maschi may have identified as historio­graphical investigation what actually was nothing more than historical knowledge on the part of the jurists.[279]}

Even Schulz, the authority in the history of juristic science mentioned at the beginning of this section, admitted that there were exceptions to the general rule, among whom Gaius and Pomponius are prominently cited. The introduction to an elementary manual provided by the latter is un­questionably the most valuable single source of contemporary history of Roman law. The extract comprises three parts, which respectively deal with

(I) the origin and development of the law, (II) the names and origin of the magistracies, and (III) the succession of juristic authorities.¹¹ Though the passage contains a good deal that will not be dealt with in particular in this book, it is felt that the whole text deserves inclusion.¹¹

Pomponios, Libro singulari enchiridii (D. 1.2.2 pr.-53).

Accordingly it seems necessary for us to set forth the origin and development of the law itself. (1} Now at the beginning of our state the people undertook at first to act without fixed statute or fixed law, and everything was personally governed by the kings. (2) After that, when the state was somewhat enlarged, it is related that Romulus himself divided the people into thirty parts, which parts he called curiae, for the reason that he exercised the care (cura) of the commonwealth in accordance with the opinions of these parts. Accordingly, he himself proposed to the people certain curtate statutes, and so did succeeding kings. All these exist, written down in the book of Sextus Papirius, who was among the leading men in the time of Superbus, the son ofDemaratus of Corinth. This book, as we have said, is called ius civile Papirianum, not that Papirius added anything of his own therein, but because the statutes which had been unsystematically enacted were compiled into one. (3} Upon the expulsion of the kings by a tribunician statute, all these statutes became obsolete and the Roman people came once again to use uncertain law and mere custom rather than enacted law, and this situation lasted about twenty years. (4} Thereafter, that this should no longer continue, it was decreed that ten men (decemviri) should be appointed by public authority through whom legislation was to be sought from the Greek city states, and so establish the Roman state on a statutory basis. These laws, inscribed upon ivory tablets, they set up before the rostra so that the statutes could be more easily seen; and supreme authority in the state in that year was given to them (the ten men} both to amend the statutes, if it should be necessary, and to inter­pret them, and this without right to appeal from them as there was from other magistrates. They themselves noted that these first statutes were incomplete and, accordingly, in the following year, they added two more to the aforesaid tables; hence, with the addition, they have been called the law of the Twelve Tables. Some have said that the source of this decemviral legislation was a cer­tain Hermodorus, an Ephesian, an exile in Italy. (5) When these statutes were enacted discussion in the forum (disputatio fori} became necessary-as naturally is wont to happen, that interpretation requires the guidance of those learned in the law. This discussion and this law, which without writing was developed by the learned, is not specifically named - as the other parts of the law have been ^{[280] [281] designated by names, since special names have been given to other parts-but it is referred to by the general term ius civile. (6) Then from these statutes, at about the same time, actions were devised by which men might litigate, and lest these actions be indiscriminately brought by the people, they were required to be in certain and solemn form; and this part of the law is called legis actiones, that is, statutory actions. Accordingly, these three branches of law appeared at about the same time: the law of the Twelve Tables, from these came the ius civile, and from the same the legis actiones were devised. Moreover ofall ofthese, both the science of interpretation and the (conduct of) actions were vested in the college of pontiffs, from among whom one was appointed each year to preside over private causes. And for nearly a hundred years the people conformed to this custom. (7) Afterwards, when Appius Claudius had propounded and fixed the form of these actions. Gnaeus Flavius, his secretary, the san of a freedman, stole the book and delivered it over to the people, and this service was so gratifying to the people that he was made tribune of the plebs, as well as senator and curule aedile. This book, which contains the actions, is called ius civile Flavianum, as that other, the ius civile Papirianum; nor did Gnaeus Flavius add anything of his Own to the book. Since, with the expansion of the state, certain forms of action were lacking, not long afterwards Sextus Aelius compiled additional actions and gave the book to the people which is called the iusAelianum. (8) Then, while there existed in the state the law of the Twelve Tables and the ius civile, as well as the legis actiones, it happened that the plebs got into dispute with the pa­tricians, seceded and enacted laws for itself, which laws are called plebisdta. Soon after the plebs was recalled, and since many disputes developed with respect to these plebisdta, it was enacted by the lex Hortensia that they should also be observed as statutes. Hence it has resulted that, as between plebisdta and statute, the method of enactment differed, but their force was the same. (9) Then, since it became difficult for the plebs to convene, and surely far more difficult for the people considering the great increase in numbers, necessity itself diverted the administration of the commonwealth to the Senate; hence the Senate began to interpose, and whatever it enacted was observed, and this enactment was called senates consultum. (10) During the same period magistrates also administered the laws and published edicts in order that the citizens might know what rule each magistrate would pronounce on each question, and take corresponding pre­caution. The edicts of the praetors constituted the ius honorarium; it is called honorarium because it issued from the office (honos) of the praetor. (11) Lastly, as if there had been a gradual transition dictated by events themselves towards fewer methods of creating law, it came to be necessary for the administration of the commonwealth to be discharged by one man - for the Senate could not with equal efficiency provide for all departments of administration; therefore, a first citizen (princeps) was established, and the power was given to him that whatever he laid down was binding. (12) Hence in our state a rule depends either on law, that is, upon a statute, or there is our own ius civile which consists without writing in the mere interpretation of the learned (prudents), or the legis actiones which give the forms for pleading, or plebiscite enacted without the authorization of the Senate, or the edict of the magistrates whence the ius honorarium derives, or the senatus consultum which takes effect on the mere resolution of the Senate without statute, or the imperial constitution, that is, what the emperor himself decrees and is observed as a statute.}

(13) After the origin and the development of the law is known, it is in order for us to know the titles and origin of the magistrates because, as we have shown, it is through those who preside over the administration of just ice that practical results are obtained; for what value has the existence of law in a state unless there are those who can determine rights? After this, then, we shall speak of the succession of authorities, for law cannot exist unless there be someone skilled in the law by whom it may daily be improved. (14) With regard to the magistrates, it is accepted that at the beginning of the state the kings had all the authority. (15) It is clear that at the same period there was also an officer of cavalry (tri­bonus celerum); moreover, it was he who commanded the knights and took, as it were, second place to the kings. Among these was lunius Brutus who was responsible for the expulsion of the kings. (16) Then, after the expulsion of the kings, two consuls were constituted and it was provided by statute that supreme power should be vested in them; they were so named because they, above all others, 'consulted' the interest of the commonwealth. However, that they should not lay claim in all respects to royal power, it was provided by statute that there should be an appeal from them, nor could they impose capital punishment upon a Roman citizen without the order of the people; the only (royal) power left to them was that of coercion and ofordering persons to be imprisoned in the name ofthe state. (17) Later, when the administration of the census required more time and the consuls were not equal to this additional office, censors were created. (18) Then, as the people increased in numbers and frequent wars arose, some of them being bitterly waged by bordering tribes, it was at times resolved, as the necessity arose, that a magistrate endowed with greater power should be created; so dic­tators were instituted from whom there was no right to appeal and to whom even the power of capital punishment was given. It was not constitutional that this magistrate, inasmuch as he had supreme power, should be retained above six months. (19) Masters of the horse (magistri equit um) were provided for these dictators in the same way as officers of cavalry (tribuni celerum) for the kings; and this office was about the same as that of the praetorian praefects today, except that they were regarded as statutory magistrates. (20) About the same time, when the plebs had seceded from the patricians some seventeen years after the expulsion of the kings, the plebs created tribunes for itself on Mons Sacer, who were to beplebeian magistrates. They were called tribunes because formerly the people had been divided into three parts undone tribune was created from each part; or because they were wealed by the vote of the tribes. (21) Moreover, in order that there should be officers to superintend the temples in which the plebs deposited all its enactments, two members ofthe plebs were appointed, who were called aediles. (22) Then, when the treasury of the people had come to be enlarged, in order to provide officers for it, quaestors were appointed to super­intend money matters, so allied because they were created for the purpose of in­quiring into and guarding the finances. (23) And since, as we have said, the con­suls were not permitted by statute to hold court in a capital owe involving a Roman citizen without the leave of the people, for this reason quaestors were appointed by the people to preside in capital cases; they were called judges on capital cases (quaestores parricidii), of whom the law of the Twelve Tables also makes mention. (24) When it was decided that (a body of) statutes should be enacted, it was proposed to the people that all of the magistrates should go out of office so that were appointed for one year, and when they pro­longed their office and acted oppressively and refused to select succeeding magis­trates, in order that they themselves and their faction should permanently keep the commonwealth in their own hands, they brought matters to such a point by their excessive and harsh domination that the army seceded from the state.... From Algidum, where the legions were then waging war, they all deserted their former leaders and carried their standards to the Aventine, and soon after the whole plebs ofthe city assembled at the same place, and by the common consent of the people, some were put to death in prison. So the commonwealth again returned to its former condition. (25} Then, several years after the Twelve Tables had been passed, a dispute arose between the plebs and the patricians, the plebs desiring that the consuls should also be chosen from its own body, and the patricians refusing; it was de­cided that military tribunes with consular power should be created, in part from the plebs. in part from the patricians. These were appointed in various numbers, for sometimes there were twenty, sometimes more, often less. (26) Later, when it was decided that consuls should also be appointed from the plebs. they came to be instituted from both bodies. Then, that the patricians should have some­thing more, it was resolved that two from their number should be appointed : so the curule aediles were created. (27) And since the consuls were called away by wars on the borders and there was no one in the state to administer justice, it came to pass that a praetor was also created, who was called ur bonus because he administered justice in the city. (28) Some years later, as this praetor did not suffice because great numbers of foreigners (peregrini) were coming into the state, another praetor was created in addition,

who was called peregrinus from the fact that for the most part he administered justice to the foreigners. (29) Then when it became necessary for magistrates to preside over the court of the spear (hasta). ten men forjudging causes (decem­viri in litibus iudicandis) were constituted. (30) About the same time there were also appointed Four men (quattuorviri) to take charge of highways, and Three men of the Mint (triumviri monetales) who coined bronze, silver and gold, and Three men for Capital cases (triumviri capitales) who had charge of the prison so that when punishment was to be inflicted it should be done by their agency. (31) And since it was undesirable for magistrates to be engaged in publicaffairs in the evening, Five men (quinqueviri) were appointed this side of the Tiber and beyond the Tiber who might act in place of the magistrates. (32) Then with the conquest of Sardinia, later Sicily, then Spain, and finally the province of Narbo, as many praetors were created as provinceshad been conquered, some to preside over home affairs, others over provincial matters. Later, Cornelius Sulla insti­tuted state trials (quaestiones publicae), for example, for forgery, for murder, for slabbers, and he added four praetors. Then Gaius lulius Caesar appointed two praetors and two aediles to superintend the grain, < called > cereales, from Ceres. So there were created twelve praetors and six aediles. Later divus Augustus instituted sixteen praetors. Still later divus Claudius added two prae­tors who should have jurisdiction over trusts (fideicommisum), one of whom divus Titus suppressed: and divus Nerva added one who should have jurisdiction over cases involving the fisc and private persons. Thus eighteen praetors administer justice in the state. (33) And all this holds good as long as the magis- strates are within the state; but whenever they leave, one remains to administer justice, he is called the praefectus urbi. The praefectus was formerly appointed < when the other left >; later, apparently on account of the Latin festivals, (the regular appointment) was introduced and annually made. However, the praefecti annonae and vigilum are not magistrates, but were created with special power in the public interest. At the same time, tribunes this side of the Tiber (Cistiberes) of whom we have spoken, were afterwards by a senatus consultum made aediles. (34) Therefore, on the basis of the above, ten tribunes of the plebs, two consuls, eighteen praetors and six aediles had legal competence in the state.

(35) The science of the ius civile has been professed by many of the greatest men; mention is to be made at this time ofsuch ofthem as were of first rank in the estimation ofthe Roman people in order to set forth by whom and in what way the laws were made and handed down. And indeed, of all of those who acquired the knowledge, it is said that no one publicly professed it before Tiberius Corun­canius; all those before him had either thought to keep the ius civile secret and only found time for their consultants rather than putting themselves at the dis­posal of those wishing (to team). (36) A learned (jurist) of first rank was PUBLIUS PAPIRIUS who made a compilation of the royal statutes (leges regiae). After him came APPIUS CLA UDIUS, one of the ten men, who had the chief part in the composition of the Twelve Tables. After him an APPIUS CLA UDIUS. of the same family possessed the greatest knowledge (of the law); he was called ‘the Hundred-handed’, he laid down the Appian Way and con­structed the Claudian aqueduct and voted that Pyrrhus should not be admitted into the cily; and it was he, it is said, who first wrote (forms of) actions concern­ing usurpations, which book is not extant; the same Appius Claudius invented the letter R and it seems to have followed from this that Valesii became Vdierii and Fusii became Furii. (37) After these there was SEMPRONIUS, a man of the greatest learning, whom the Roman people called £ofoancient language and. accordingly, his books have little weight. (47) After him of greatest authority were ATEIUS CAPITO, who followed Ofilius. and ANTISTIUS LABEO. who listened to all these, but was instructed by Trebatius. Of these Ateius was consul; Labeo. when the consulate was offered to him by Augustus, by which he would have become interim consul (suffectus). refused to take the office but gave his attention in the main to his studies. And he so divided the whole year that he was at Rome six months, six months away and gave his attention to writing books. Accordingly, he left four hundred volumes, many of which are employed constantly. These two founded, as it were, respective schools; for Ateius Capito continued in those things which had been handed down to him; Labeo, by the quality of his originality and the faith of his own learning, having paid attention to other branches of knowledge, endeavored to innovate many things. (48) And so MASSUR1US SABINUS succeeded Ateius Capito, NERVA Labeo, who then increased these dissensions. This Nerva was very intimate with the emperor. Massurius Sabinus was in the equestrian order and was the first to respond publicly; afterwards, this privi­lege began to be given, which, however, had been granted to him by Tiberius Caesar. (49) And as we may observe in passing, before the time of Augustus the right of responding publicly (ius respondendi publice) was not given by the emperors, but he who had confidence in his studies responded to his consultants; nor were responsa always given under seal, but often they themselves wrote to the iudices (judge jurors) or were testified to by those who consulted them. Divus Augustus was the first to decree, in order to ensure greater authority to the law, that they might respond upon his authority; andfrom that time on, this began to be sought as a favor. And therefore the excellent emperor Hadrian, when praetorian men sought to be allowed to respond, rescripted that this was not to be sought, but was wont to be given and consequently if anyone had faith in his own ability he (Hadrian) would be pleased to find he was quali­fied to give responsa to the people. (50) Accordingly, it was conceded to Sabinus by Tiberius Caesar that he might respond to the people; Sabinus was received into the equestrian order when advanced in age. in fact about fifty years old.

He did not have ample means but for the most part was supported by his students. (51) GAIUS CASSIUS LONGINUS, born of a daughter of Tubero, who was a grand-daughter of Servius Sulpidus, succeeded him (Sabinas); and accordingly he called Servius Sulpidus his great-grandfather. He was consul along with Quartinus in the time of Tiberius, and he had great authority in the state until Caesar expelled him from the commonwealth, ( 52) Banished by him to Sardinia, recalled by Vespasian, he died in his time. Nerva was succeeded by PROCULUS. There lived at the same time NERVA FILI US; and there was another LON­GINUS, indeed, of the equestrian order who afterwards came to the praetor­ship. But the authority of Proculus was greater, for indeed he had very great influence; the members of the schools were respectively called Cassians and Proculians, the distinction having begun with Capita and Labeo. (53) CAE LIUS SABINUS succeeded Cassius and had great influence in the time of Vespasian; PEGASUS, who was praefectus urbi in the time of Vespasian (succeeded) Proculus; PRISCUS 1AVOLENUS (succeeded) Caelius Sabinus; CELSUS (succeeded) Pegasus; CELSUS FILIUS and PRISCUS NERA TIUS, both of whom were consuls, Celsus. indeed, a second time, (succeeded) Celsus. the father; ABURNIUS VALENS and TUSC1ANUS, also SALVIUSIULIANUS (succeeded) lavolenus Priscus.

The text used for translation is that established by Mommsen, with the accepted MS emendations indicated by < >. For conjectured inter­polations, see Index Interp. I 3-6, Supp. I 1 -2.

The account given in the Pomponius extract is admittedly confused, even contradictory in part, but if the information is basically authentic then the extract is of considerable significance to the study of the Roman law. Even though termed only a ‘miserable post-classical abridgement*,¹¹ or a‘little dependable treatise*,¹⁴ nevertheless most scholars agree that actual hap­penings are reflected. It was early suggested, on the basis of the then newly published manuscript of Johannes Lydus, De magistratibus, that the com­pilers of the Digest had intermingled portions of Gaius’ commentary on the Twelve Tables with the work of Pomponius, when they made up the extract we have in D. I.2.^u For Lydus had attributed the passage we know as D. 1.2.2.34 to Pomponius, but that of D. 1.2.2.24 to Gaius. This idea was carried further, to the conclusion that the extract was a composite of Gaius, Pomponius, Ulpian and other jurists.“ Quite recently, d’Ors has argued that in post-classical times two versions of the text existed, one bearing

13. Schulz, History 134; but Arangio*Ruiz, Storia 366 n., finds it difficult to reconcile this attribution with Schulz's subtle observations on the style and sources of the text in another passage. History 169.

14. Kaser, Rechlsgeschichie 162.

15. Schrader, Orilistisches Magazin 4 (1815) 424 f.

16. Schui in, Ad Pandectarum tituium de origin« juris commentati&i Basel 1876).

the name of Gaius, the other of Pomponius; Lydus used the two versions indiscriminately.^{[282] [283] [284] [285] [286] [287] The explanation offered by Krüger that Lydus, when consulting the passage in the Digest, missed the inscription of it to Pom­ponius and so wrongly attributed the extract to Gaius - Gaius is the author of the previous passage, D. 1.2.1 - later discovered his error and made a correct ascription, seems quite plausible.”}

According to widely held views the confused nature of the extract in the Digest was due to the fact that it incorporated three different clusters of materials. In the first place, there were substantial portions drawn from Varro’s De iure civili ” and from works of Cicero.¹⁰ Secondly, Pomponius himself was presumably responsible for combining the three different phases of the law noted supra into a historical introduction for his elementary legal handbook, a pioneer effort in legal writing but one which remained an isolated phenomenon.¹¹ The third mass of material was believed to be the result of‘strong interpolation’ by the compilers of the Digest.” The obscur­ities in the text may have derived as much from substantial omissions made by Justinian’s commission from the text which they had before them, as from their additions to it.^[288]

Another explanation of the inconsistencies in the extract was offered by Ebrard.^[289] He described the whole text as a late ancient-post-classical but pre-Justinian - tract of court rhetoric. It combined extracts from priestly chronicles and other legends, from the writings of Varro and Cicero, from magistrates’ lists, library catalogs and genealogical tables, and from offi­cial publications, most of these sources second- or third-hand. He assembled evidence to show rhetorical form and anachronistic language;^[290] he pointed out the loose connection between the first two parts, on the one hand, and the third part, on the other, as well as unrelated sections within the several parts; he noted the sketchy description of the jurists of the early empire, and, even more, of Pomponius' contemporaries. Though attractive, the thesis of Ebrard has not been accepted.The list of jurists ends with Julian, whereas a post-classical writer would surely have mentioned Gaius, Papin- ian, Paul and Ulpian, names which the compilers of the Digest would hap­pily retain.²⁷ The direct evidence appears to be against Ebrard; the basic work was undoubtedly that of Pomponius.²*

The confusion in the text is today largely ascribed to an entirely different factor from those expressed above. Two distinct works of Pomponius enti­tled ‘Handbook’ (Enchiridion) were available to the compilers, one of these works in two books (libri duo), the other in a single book (liber singularis). The passage D. 1.2.2 was selected from the latter. It had been suggested that Pomponius was the author of a ‘Handbook’ which he himself later expanded or contracted.²’ But it ismuch more likely that the larger work by Pomponius - or perhaps even one in three books” - was abridged in late classical times and then expanded again in the post-classical epoch.” Guarino has argued that it is hardly likely that Pomponius would have written two separate works, or that a two-book treatise would be abridged by a later editor.” He believed, rather, that the later editor made an excerpt from the Pom­ponius work, to which glosses and annotations were added. It is now con­tended that there is no reason why the compilers should have tampered with the text which came to them.²¹ As Kunkel has stated, the compilers may have found it necessary to alter the centuries-old law of the jurists, but they would have no reason to correct its history,¹⁴ Indeed, the compilers may have shown their own interest in legal history by including the introduction to Pomponius’ work, whether the writing originated in post-classical times or was a re-working of an older piece.”

In general, then, we can assume that the information provided in the extract, D. 1.2.2 - taking into consideration scribal errors and glosses - largely reflects the state of the knowledge of legal historical data in the time ^{[291] [292] [293] [294] [295] [296] [297] [298] [299] [300] of Pomponius.34 The compilers may well have been forced to utilize the account in the epitome as the only substantial piece on legal history extant in the 6th century. While one may be inclined to agree with Schulz - as against Maschi - that there was no great interest in legal historiography in the classical epoch, any more than there is in the United States in the 1970's, this would not be true of the age of Justinian. It is an excerpt of great value, much of it based on excellent sources; of the merits of the orig­inal we cannot judge, but no man as industrious as Pomponius could have produced anything completely worthless. [301]}

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