The text of the lex Aquilia
This leads us to the question of how far the text of the lex Aquilia, handed down to us by Gaius and Ulpian, is genuine. There may well have been certain linguistic modernizations:[4958] [4959] the old-fashioned "erus" in chapter one was replaced by the word "dominus"[4960] and "quadrupe- demve pecudem" was probably changed into "quadrupedem vel pecudem";[4961] on the other hand, archaisms such as "damnas" or "faxit" (in place of "fecerit") were retained. Such changes, of course, left the substance of the text unaffected. A prime candidate for a much more substantial interference[4962] with the classical text is the phrase at the outset of chapter three: "Ceterarum rerum praeter hominem et pecudem occisos." Quite a few modern authors delete these words when they reproduce the text of chapter three;[4963] according to a widespread view, the introductory "ceterarum rerum" is to be attributed either to Justinian's compilers or to Ulpian or perhaps even to alterations effected by Republican jurisprudence;[4964] "praeter... occisos" is often regarded as an explanatory gloss that was also added only at a later stage.[4965] According to Kaser, the whole passage is "presumably a retrospective summary of a number of specific provisions".[4966] It is very unlikely, however, that Republican jurists would have tampered with the text of the lex Aquilia to such an extent. Republican leges and plebiscita were usually posted in such a way that anybody was able to read them;[4967] the term "figere" (to affix) was sometimes used, metaphorically, to say that a law had been enacted. Later on the authentic version was kept in an archives, either in the aerarium Saturni or in the temple of Ceres on the forum Romanum;[4968] and although the Roman system of collecting, filing and recording legal enactments was defective,[4969] a reliable text was nevertheless fairly easily accessible. The lex Aquilia was of considerable importance, and it was regularly commented upon from the time of M. lunius Brutus[4970] and Quintus Mucius Scaevola.[4971] Neither is it imaginable under these circumstances that substantial alterations crept in as a result of simple carelessness, nor that the text was falsified;[4972] the Roman jurists were, of course, aware of the distinction between the actual content of an enactment and the supplementing and interpretative activities of magistrates and jurisprudence/'[4973] Naturally, this applies to Ulpian too. He would hardly have purported to give a direct quotation ("... ait eadem lex Aquilia") and then proceeded to throw in explanatory glosses. If there was an interference with the text, it must therefore be attributed to the (Justinianic) compilers. There are, however, no convincing reasons to suspect the introductory "ceterarum rerum"; neither the generalizing phrase as such nor the "genitive of respect"[4974] is objectionable.[4975] [4976] [4977] "Praeter hominem et pecudem occisos", on the other hand, appears to be faulty Latin.54 Apart from that, it is strange that the drafters of the lex Aquilia should have used the words "homo" and "pecus" in order to refer to what they had previously specified as "servus" and "quadrupes pecus"/15 Tony Honore[4978] has drawn attention to the fact that the terms "homo" and "pecus" are used in the very next fragment from Ulpian's commentary on the Edict;[4979] the commissioner in charge of excerpting this part of Ulpian's work probably lifted them from fr. 27, 6 and used them to construct his little gloss. This gloss, in turn, was thought to be necessary in order to give an authentic interpretation of "ceterarum rerum"; for without explanation "ceter- arum rerum" can either be taken to mean "as regards things other than slaves and grazing animals" or "as to matters other than killing a slave or grazing animal".68 Only in the second alternative was the mere wounding of slaves or grazing animals covered by the (third chapter of the) lex Aquilia. II.
More on the topic The text of the lex Aquilia:
- Dating the lex Aquilia
- The composition of the lex Aquilia
- CHAPTER 29 Lex Aquilia 1
- I. ORIGIN AND CONTENT OF THE LEX AQUILIA
- Lex commissoria
- The lex Cincia de muneribus
- Statutory relief for non-Romans: the lex Calpurnia
- The lex Sancimus (C. 7, 47, 1)
- Lex Rhodia de iactu
- 1. Aequitas naturalis and the lex Si et me et Titium
- Condition, lex commissoria and rescission in South African law
- We have now sketched the framework within which to appreciate how the Roman jurists applied and interpreted the individual requirements for condemnation in terms of the lex Aquiiia.
- Dealing with the Abyss: The Nature and Purpose of the Rhodian Sea-law on Jettison (Lex Rhodia De Iactu, D 14.2) and the Making of Justinian's Digest
- 1. The "iron" rule of Roman law and the notion of an implied lex commissoria
- Wrongful loss (damnum iniuria)
- The Statute
- 1. The essential data provided in the Digest