Ulpian: Pioneer of Human Rights

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ULPIAN

ULPIAN Pioneer of Human Rights TONY HONORÉ Second Edition

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Great Clarendon Street, Oxford   Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Athens Auckland Bangkok Bogotá Buenos Aires Cape Town Chennai Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kolkata Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi Paris São Paulo Shanghai Singapore Taipei Tokyo Toronto Warsaw with associated companies in Berlin Ibadan Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Tony Honoré 2002 The moral rights of the author have been asserted Database right Oxford University Press (maker) First edition published 1982 Second edition published 2002 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose this same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data Avaliable ISBN 0–19–924424–3 1 3 5 7 9 10 8 6 4 2 Typeset by Hope Services (Abingdon) Ltd. Printed in Great Britain on acid-free paper by T. J. International Ltd., Padstow, Cornwall

To Detlef Liebs studiosus studioso

Preface T H E first edition of this work on Ulpian, the early third-century lawyer from Syria, came out in 1982. Though there had been substantial articles on Ulpian by Pernice (1885), Jörs (1903), and Crifò (1976), mine was the first modern study of his life and works at book length. Texts from Ulpian take up twofifths of Justinian’s sixth-century Digest, for many centuries the staple of legal education. For most topics Justinian’s compilers chose Ulpian’s account as their core text. Through the Digest his exposition of the law has influenced the western legal tradition at least as much as that of any later writer, including Irnerius, Grotius, Blackstone, Pothier, and Savigny. I set out to study him as a writer and imperial office-holder in the Severan age (AD 193–235) and, as Millar put it, a figure in the complex cultural landscape of the Roman empire. Assessments of his role differ. In Syme’s eyes (1972) Ulpian, a lawyer in politics, deserted his books to ingratiate himself with the ruling dynasty and paid the penalty when he was murdered by rebellious troops. To me, in contrast, his career was that of an intellectual in government, concerned to give effect in law and administration to the cosmopolitan ideas of his time. The book had a mixed reception. It was welcomed by Rodger (1983), Liebs (1984), Birks (1983), and Millar (1986), a welcome tempered by admonitions against pushing the evidence too far. Gordon (1984) and Crifò (1985) had reservations about the analysis of Ulpian’s style. The book was sharply criticised by Watson (1983) and, more soberly, by Frier (1984), whose point of view was close to that of Syme. Birks showed that Watson’s criticisms were largely mistaken. But some of the points made by scholars, favourably disposed or sceptical, need to be taken seriously and some arguments in the first edition strengthened. As Frezza (1983) pointed out, there was an imbalance between my depiction of Ulpian as a writer and as a lawyer in government. One problem in writing about Ulpian is that hardly anyone has read the bulk of his surviving work, which runs to some 300,000 words. Most students of the ancient world read some Ulpian, and his work has been available in a consolidated form since Lenel’s Palingenesia of 1889. But most scholars read only as much as is needed for the purpose in hand. The Digest, and with it the western legal tradition, is in thrall to Ulpian, but he comes in bits and pieces. The sporadic reader can easily miss the quality and flavour of his writing. The first edition sought to fix the main features of Ulpian’s style and, on this basis, to distinguish between the works that are genuinely his and the five attributed to him that are in my view spurious. There is no need to change the lists of genuine and spurious works arrived at (Chapters 5 and 10), though

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Preface

some scholars still defend the authenticity of Rules in one book (Liber singularis regularum) and possibly Replies (Responsa). Some argue that Opinions, though not a work of Ulpian, is classical. The debate continues. The list of mature works that seem certainly or probably genuine comprises 216 or 217 books in all. By a book is meant a liber of on average 10,000 to 12,000 words, corresponding to a modern chapter. Most of Ulpian’s work can be dated to Caracalla’s sole rule (December 211–April 217). My hypothesis was that Ulpian’s massive survey was composed in the five years 213–17, after and in the light of the enactment of Caracalla’s Antonine constitution, which is traditionally (and I think rightly) dated to 212. The author may have planned to continue writing after 217 and, in particular, to compete his commentary On Sabinus. If so, he did not or could not carry out his plan. The five-year period 213–17, Quinquennium Ulpiani, was devoted to a large-scale exposition of law and public administration for the benefit of rulers and citizens of the new cosmopolis. Undertaken privately but with official encouragement, it was, as Liebs (2000) points out, a forerunner of the later Roman codifications by Gregorius, Hermogenianus, Theodosius II, and Justinian. If Ulpian composed his survey in the five years 213–17 he must have composed at speed and worked to a plan. I suggested in the first edition that his plan was to complete a chapter (liber) a week, apart from a holiday period of eight weeks. To some this seemed absurd. But, as emerges in Chapter 8, the argument for my suggestion is stronger now that it was in 1982. In this and other respects I am tempted to say that most of the detailed conclusions reached in the first edition were correct or at least defensible but that the book was not reader-friendly. It did not sufficiently stress certain themes that mark off Ulpian’s contribution to Roman law from that of others. It did not do justice to the egalitarian philosophy that inspired his work, to his use of dictation, his easy shifting from Latin to Greek, and his empirical approach to the solution of legal problems. The work lent itself to caricature as ‘Law on the Installment Plan.’ Caricatures distort but also illuminate. So in this edition the emphasis has changed. Three new chapters have been added and one discarded. Certain themes, previously muted, are now stressed. I now think (Chapter 2) that Ulpian dictated the whole of his survey of Roman law. His survey reflects speech, not writing. In the ancient world dictation was important to the Roman government and to Christian writers but was not confined to them. Dictation accounts for the linking of sentences, the conversational flow, the sense of debate, and the superficial egocentricity of an author who, though self-confident, often expressed his opinion in a tentative way. Oral composition fits the many examples he gives by way of illustration and his recourse to argument by analogy (Chapter 4). In the upshot Ulpian reasons rather as do common lawyers, whose style derives from a practice of oral exchange between judges and counsel and of argument from example.

Preface

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Moreover, Ulpian is the Roman lawyer whose thinking most clearly has a basis in theory. His philosophy, implied in his Teaching Manual (Institutiones) and elsewhere, is cosmopolitan and egalitarian (Chapter 3). It fitted the contemporary extension of citizenship to all free people in the Roman empire. Ulpian here reflects, but also promotes, the Zeitgeist. He can therefore justly be accounted a pioneer of the human rights movement. Drawing mainly on the Stoic conception of natural law, his philosophy allows slaves the share in human dignity that is required by the belief that human beings are born free and equal. At present, when human rights are widely debated, it may promote a balanced view to see them in a perspective that goes back to antiquity. Human rights are not a product of the Enlightenment, still less of the twentieth century, as some otherwise well-educated people suppose. The values of equality, freedom, and dignity, to which human rights give effect, formed the basis of Ulpian’s exposition of Roman law as the law of a cosmopolis. The citizens of the empire did not enjoy political freedom. But they possessed civil rights, and Roman lawyers were concerned to see that these were respected. To ensure this respect was the emperor’s duty. No one made a greater contribution to this end than Ulpian, whose mission was to expound Roman law to the rulers and citizens of the cosmopolis as a system of law based on reason, utility, and equity. That is one reason why the study of Roman law can never be out of date. The book has been reshaped in, I hope, a more reader-friendly style. This has meant, among other changes, translating into English the titles of Ulpian’s works. Latin cannot be avoided in a work that turns in good part on the style and outlook of a Latin author. As much Latin as possible has, however, been translated or relegated to the footnotes. If the result strikes some students of the ancient world as odd, this is the price to be paid for introducing a great writer to the wider audience he deserves. I am grateful to Dr Dennis Flynn for his help with computing problems, and to Dr Leofranc Holford-Strevens, to whose scholarly acumen as copyeditor both editions of this work owe a debt. T.H.

Contents List of Ulpian’s Works with Method of Citation 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Background and Career The Oral Style The Cosmopolis and Human Rights The Empirical Method Genuine Works Sources and Scholarship Dates and Plan I: On the Edict Dates and Plan II: Quinquennium Ulpiani Dates and Plan III: Lesser Works Spurious Works Epilogue

xii 1 37 76 94 105 126 158 177 189 206 227

TABLES I. List of Latin Words and Phrases II. References to Legal Texts

231 243

Bibliography

283

Index

297

List of Ulpian’s Works with Method of Citation Certainly or probably genuine English title

Latin title with number of books (chapters) and abbreviation

Ad edictum praetoris 81 (ed.) Ad Masurium Sabinum 51 (Sab.) Ad legem Iuliam et Papiam 20 (Iul. Pap.) Publicae disputationes 10 (disp.) De officio proconsulis 10 (off. proc.) De omnibus tribunalibus 10 (omn. trib.) De censibus 6 (cens.) De fideicommissis 6 (fid.) Ad legem Iuliam de adulteriis 5 (adult.) De appellationibus 4 (appell.) Ad legem Aeliam Sentiam 4 (Ael. Sent.) De officio consulis 3 (off. cons.) Ad edictum aedilium curulium 2 (ed. aed. cur.) Institutiones 2 (inst.) De sponsalibus 1 (spons.) De officio consularium 1 (off. consular.) De officio curatoris reipublicae 1 (off. cur. reip.) Excuses De excusationibus 1 (excus.) The Praetor for Guardianship De officio praetoris tutelaris 1 (off. pr. tut.) The Prefect of Police De officio praefecti vigilum 1 (off. pr. vig.) The Quaestor De officio quaestoris 1 (off. quaest.) The Urban Prefect De officio praefecti urbi 1 (off. pr. urb.) The Speech of Marcus and De oratione divi Antonini et Commodi 1 (orat. Commodus Ant. et Comm.) Notes on Marcellus’ Digest Notae ad Marcelli Digesta 31 (Marc. dig.) Notes on Papinian’s Replies Notae ad Papiniani Responsa 19 (Pap. resp.) Rescripts of Septimius Severus Aug. 202–May 209 On the Edict On Sabinus The Julio-Papian Law Disputations The Proconsul Tribunals Taxation Trusts Adultery Appeals The Aelio-Sentian Law The Consul The Market-Masters’ Edict Teaching Manual Engagement to Marry Consular Judges The Community Treasurer

Spurious Encyclopaedia Replies

Pandectae 10 (pand.) Responsa 2 (resp.)

List of Ulpian’s Works with Method of Citation Opinions Rules in one book Rules in seven books

Opiniones 6 (opin.) Regulae 1 (lib. sing. reg.) Regulae 7 (reg.)

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1 Background and Career D O M I T I U S U L P I A N U S , the lawyer from Tyre, was a leading intellectual of the Severan dynasty (AD 193–235)1 and, along with the physician and polymath Galen, the most influential writer of the time. He spelt out the cosmopolitan ideology of the age in its legal and administrative aspects. How should his career be judged? Was he ‘the scholar who deserts his books for favour of princes and governmental employment, to a calamitous end’2 or the writer whose ‘new formulation of Roman law made this intractable material so flexible that it could time after time be adapted to new situations right up until the twentieth century’?3 To answer, we need to study his background and career.

I. THE POLITICAL BACKGROUND

The dynasty founded by Septimius Severus was concerned to present itself in relation to the preceding Antonine dynasty. Both grappled, in the end unsuccessfully, with a problem about the imperial succession. The empire was best governed by an able and experienced ruler, chosen without regard to family. The mechanism of adoption made this possible. A ruler could during his lifetime adopt a successor from outside his family. On the other hand there was pressure for an emperor with a legitimate son to promote the son during his lifetime as a junior or associate ruler, ‘Caesar’ or junior ‘Augustus’. Despite doubts, Marcus Aurelius Antoninus (AD 161–80) did not follow the recent convention that a Roman emperor should adopt a successor. It would have been awkward to disinherit his son Commodus, a lazy and frivolous youngster, whom he had made Caesar at the age of five. In 177, when the boy was 1 Lenel (1889) 2.379–1200, 1264 with Sierl (1960) 12–7; Pernice (1885/1962); Kalb (1890) 126–35; Schulze (1891); Jörs (1903); Fitting (1908) 99–120; P. Krüger (1912) 239–50; Volterra (1937); Berger (1952) 750; Leclercq (1952); Wenger (1953) 519f., 526f.; Pflaum (1960–1) no.294; Mayer-Maly (1961); Honoré (1962a) 207–12 (unreliable); Frezza (1968); Syme (1970/1979); Carcaterra (1972); Orestano (1973a); Nörr (1973); Crifò (1976); Nörr (1978) 131–6; Honoré (1982); Rodger (1983); Birks (1983); Frezza (1983); De Marini Avonzo (1982); Liebs (1984); Mantello (1984); Lannata (1984) 214–9; Liebs (1987a); Yaron (1987); Honoré (1988); Waldstein (1985); Crifò (1985); Millar (1986); Schermaier (1993); Winkel (1993); Marotta (2000); Honoré (2001). Literature on his career n.49 2 Syme (1980) 102 = (1984) 1412 3 Liebs (1997) §424 p. 187

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1. Background and Career

fifteen, Marcus promoted him joint Augustus and so ensured that he would in due course succeed his father as emperor. The reign of Commodus (180–92) ended in misgovernment and murder. Of the various contenders who emerged in 193, the ultimate victor was Septimius Severus (193–211).4 But it took two civil wars and nearly four years for him to become sole master of the Roman world. The effort left its mark both on him and on the empire. The rule of the Severans was harsher but more cosmopolitan than that of the Antonines. Severus needed to establish a link with Marcus, since Marcus was then and later considered a model ruler. So in 195, after defeating his rival Pescennius Niger, he arranged to be adopted by Marcus. The adoption was a fiction, since Marcus had been dead fifteen years. Nevertheless it was put through in detail. Severus’ elder son, Bassianus (generally known as Caracalla), then aged eight or nine, received the dynastic name ‘Antoninus’.5 Severus tried, however, to avoid repeating Marcus’ mistake over Commodus, who had been allowed too much freedom. He gave Caracalla a good education and saw to it that he had military experience. He made him consul three times during the next sixteen years, and from 197 or 198 introduced him to civil and legal business as joint Augustus. Caracalla was able, though not in a literary way, quick-witted, a good judge of character. He had plebeian tastes, liked soldiering, and was not averse to menial tasks. With the soldiers he was and remained popular. At times one could think of him as a future emperor who would justify the name Antoninus. At others he appeared unhinged. Then his violent temper and bitter feuding with Geta, his younger brother, left no room for illusion. Geta, a year younger, was thought incompetent.6 After Caracalla was promoted Augustus, the younger son was kept in the subordinate position of Caesar for another eleven years. Ultimately Severus, perhaps on the pretext of administrative convenience, made Geta a third Augustus during the British campaign of 209, so that there was someone left behind at York to attend to civil business while he and Caracalla went on campaign in Scotland. He thereby committed the empire to the joint succession of the two brothers. Once again, dynastic considerations overrode the claims of good government. Septimius followed the traditional Roman policy of extending the limits of empire. Not specially gifted as a general, he repeatedly won victories in both civil and external wars. In 197, when the civil wars were over, he invaded Parthia and pushed the frontier of the empire eastwards. At the end of his 4 Hasebroek (1921) has a good account, with dates. See also Platnauer (1918), Hammond (1940), Murphy (1945), Hannestad (1944), Barnes (1967), Alföldy (1968), Herzig (1972), and Birley (1988) with bibliography 258–73 and prosopography 212–29 5 Dio 78.1–10 (hostile); Herodian 4.7.4–7; RE 2.2434 Aurelius (46); Schulze (1909). For Caracalla as a judge Nörr (1972b) 25; Kunkel (1953/1974) 255. On young emperors Hartke (1951) 6 Dio 77.7.1–2; Herodian 3.10.3–4; 4.3.2–4.4.3; Fluss (1923); Alföldy (1972) 19


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reign, in 209–11, he tried to advance the British frontier north into Scotland, perhaps with a view to occupying the whole island. When he died in February 211 the attempt was anyhow abandoned and the army, with the two emperors Caracalla and Geta, returned to Rome. They were accompanied by two eminent lawyers: Papinian, a supporter of the joint succession, and Ulpian, who turned out to be a supporter of Caracalla. Severus had debts to the army. It was the troops of Pannonia that had brought him to power, and his campaigns required loyal troops. The balance between civil and military power shifted in favour of the soldiers. They obtained concessions: higher pay, permission to live with their wives.7 The events of 193–7 revived the lesson of AD 68, that the army legions made and unmade emperors. Severus took steps to ensure that in future the praetorians in Rome, who had killed Pertinax and made Didius Iulianus emperor, would not do this again. In 193 he tricked and disarmed them.8 But this tour de force was not a long-term solution to the problems of military indiscipline. An emperor could not survive if the troops and their generals were disloyal to him. Severus was well equipped to manage civil as well as military affairs. Though not as well educated, says Dio, as he would have liked to be, he had an inquiring mind. Trained in ‘philosophy’, he was a man of many ideas but few words.9 Whether he had received any legal education is obscure, but he was a good administrator and assiduous as a judge.10 He claimed, though not bound by law, to conform to it.11 He appointed lawyers to important posts. Paul’s reports of decisions in the imperial council12 show that he took an active part in legal argument and was prepared to differ from the opinions of his lawyer councillors, particularly Paul.13 He was keen to improve the working of the legal system. The cumbrous operation of the permanent criminal commissions (quaestiones perpetuae), which from the republic onwards had exercised criminal jurisdiction in Rome, now ceased.14 The urban prefect in Rome was given unlimited jurisdiction at first instance over crimes committed in the 7 Herodian 3.8.5. Whether soldiers’ marriages were previously void in certain cases is debatable: see Kaser (1971) 1.317. Herodian 3.8.4–5 also mentions the right to wear gold rings (the mark of equestrian rank, in practice confined to centurions and other middle-ranking officers). See also Whittaker (1969–70) 2.308–9 8 Herodian 3.13.2–12 9 Dio 77.16.1–2; Eutropius 8.9.1 cf. HA Severus 18.5–6. He composed an autobiography: Dio 75.7.3; Herodian 2.9.4; Victor 20.22 10 Dio 77.16.17.1–2; HA Severus 8.4; Birley (1988) 164–5 11 J. Inst. 2.17.8: Severus et Antoninus saepissime rescripserunt: licet enim legibus soluti sumus, attamen legibus vivimus. The formulation is probably Ulpian’s in view of the parallel licet . . . attamen in CJ 5.18.2 (4 Apr 207) and the Institutes text (saepissime rescripserunt) comes from his work: ch.2 n.769 12 Lenel (1889) 1.959–65, 1111–2 nos. 57, 58, 62, 63, 64, 65, 67, 68.2, 69, 70.1, 2, 73, 5, 76, 7, 79, 878 13 Coriat (1997) 561–3 14 Garnsey (1967)

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city or within a hundred miles of it. The praetorian prefect15 had similar jurisdiction in Italy beyond the hundred-mile limit,16 and unlimited appellate jurisdiction in both civil and criminal cases.17 In this he acted, theoretically, as the emperor’s delegate.18 Delegation was inevitable, especially with an emperor as ambitious as Severus. The office of praetorian prefect, now generally held by two prefects at a time, had grown piecemeal into the most important in the empire next to that of the emperor himself. Originally a military post,19 its duties spread from the command of the praetorian guard, stationed in Rome, to the superintendence of the armies in the provinces. Its civil business, especially legal appeals, now increased to the point at which one of the two prefects was sometimes a lawyer. It was thus that, following Tarrutienus Paternus (177–82)20 in the reign of Commodus, Papinian (205–12), Macrinus (212–7), Ulpian (222–3/4), and conceivably Paul (219–20), men whose careers were purely civilian, came to hold this, the highest equestrian office. Another aspect of the administration of justice was the rescript system.21 The emperor provided what was in effect a free legal advice service, for which the secretary for petitions (a libellis) was responsible. One could petition about anything: privileges, pardon for crimes, grants of land, honours. But when a petition involved a point of law it was referred to the secretary for petitions who drafted a reply for the emperor’s consideration. From the Severan age far more rescripts on points of law survive than from previous reigns, and there is no doubt that their number really increased. In this domain, too, the emperor took his duties seriously. It was the concern of the government for civil administration that made the age a great one for law and lawyers. The Severan jurists, Papinian, Paul, Tryphoninus, Messius, Menander, Ulpian, Modestinus, all equestrians, had an interest in seeing that justice was freely available and that law prevailed.22 Whether they were advising the emperor as members of his council, composing rescripts for him as secretaries for petitions, or writing treatises for the use of governors, judges, officials, and private citizens, they were conscious of being members of an élite circle of lawyers. It is a mistake to think of advice given to the emperor as ‘bureaucratic’, private writing or practice as ‘free’.23 Both rested on professional discipline, and the test of their worth was the opinion of fellow members of the élite. There is nothing to suggest that lawyers felt under pressure to slant their opinions in a sense favourable to the government. 15

Howe (1942) 42; Strachan-Davidson (1912) 1.158 Collatio 14.3.2 (Ulp. 9 off. proc. referring to the Lex Fabia); Passerini (1939) 236 17 Mommsen (1887–8) 2.1113f.; Ensslin (1954) 2391; Kaser (1966) 365; Howe (1942) 29f. 18 Howe (1942) 40 19 Howe (1942) 7; Palanque (1933); Durry (1938); Passerini (1939) 20 AE 1971.534; CIL VI.4.1.27118; Lenel (1889) 2.335; Pflaum (1960–1) 1.420–2; Kunkel (1967) 219–22 (‘Tarruntenus’); Giuffrè (1974b) 61–5; Liebs (1976) 341–4; HLL 4 §419.6 21 Honoré (1994) ch.2 22 A. Stein (1927); Howe (1942) 43; Schiller (1953) 23 As does Syme (1972) 406 = (1984) 863 16


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Severus was the only emperor apart from his rival Albinus to come from Africa. He was also the first emperor not to be of purely Italian stock.24 That does not make him an ‘African emperor’,25 but it helps to explain the cosmopolitan outlook of his regime. He came from an area where Punic was spoken,26 and was himself fluent in the language. Punic is the language that Ulpian mentions as an example, after Latin and Greek, as one that the parties to certain transactions may choose.27 Severus’ second wife, Julia Domna, came from a part of Syria where, though Punic had not been spoken for two centuries or more, the vernacular was Aramaic. Ulpian also mentions this language (‘Assyrian’) as a language that can be used for certain legal transactions.28 This does not imply that these languages were commonly used to make contracts or create trusts. Ulpian’s point is that for informal or semi-formal transactions any language may be used provided it is understood by the parties. The new citizens are reassured that they can participate in the legal system to which they are subject without mastering Latin or Greek. Though he wrote in Latin, the language of Roman law, the readership for which he was writing included Greeks, many of them newly enfranchised as citizens, as we shall see in chapter 3.29 It was an opportunistic act on the part of Severus’ son Caracalla in AD 212 to make all free inhabitants of the empire, with obscure but unimportant exceptions, Roman citizens. But it fitted the spirit of the dynasty and the age. By the Antonine constitution (constitutio Antoniniana)30 the different provinces, east, west, north, and south, were put on a level. Other distinctions too were blurred. With their new privileges, soldiers had a status closer to that of civilians. Women were more prominent than before, both as property owners and in politics. In the imperial circle the Syrian princesses Julia Domna, her sister Julia Maesa, and Maesa’s two daughters Soaemias and Mamaea had influence behind the scenes. But they also figure prominently, with official titles, on coins,31 and Caracalla entrusted his correspondence to his mother Julia Domna.32 Rank and class still depend on wealth,33 but other boundaries, social and conceptual, are blurred. 24

25 Title of Birley (1988) Birley (1988) 1–22 Birley (1988) 35 (Septimius and Julia Domna will have had three languages in common: Greek, Latin, and Aramaic) cf. Millar (1968) 27 D 32.11 pr (2 fid: sermone non solum Latina vel Graeca, sed etiam Punica vel Gallicana vel alterius cuiuscumque gentis), 45.1.1.6 (48 Sab: omnis sermo) 28 D 45.1.1.6 (48 Sab.). On Ulpian’s familiarity with Aramaic see Manthe (1999) 29 Ch.3 n.119–42 30 Literature in Gianelli–Mazzarino (1956) 2.397; v. Rohden (1896) 2446; Millar (1962); Gilliam (1965); Sasse (1958), (1965); De Visscher (1961); Seston (1966); Gundel (1966); Segrè (1966); Saumagne (1966); d’Ors (1966); Gaudemet (1967) 528; A. H. M. Jones (1968); Talamanca (1971); Herrmann (1972); Wieling (1974); Wolff (1976); Buraselis (1989); Honoré (1996) 383 31 RE 11.916, 926, 948; Mattingly 52 (1975) 156–70 and passim; Robertson (1977) 98–102, 127–33, 163–8 32 33 Dio 79.18.2–3 Garnsey (1970) 221f. 26

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The levelling that occurred caused strains and resentments. The wars of Marcus had brought to a close the days when the resources of government amply met military and civil requirements. Even without civil war, the end of the second century would not have been comfortable. Civil war set the emperor and senate at variance. At the behest of Didius Julianus, the senate in 193 declared Severus a public enemy. Later it changed sides, but lost prestige.34 When in 196–7 Severus quarrelled with his Caesar, Clodius Albinus, many senators sided with Albinus, a man who prided himself on his clemency.35 Severus, whose character fitted his name, was shocked. When he defeated Albinus he had some dissident senators executed on his own authority. This was to violate the model of a good ruler, and mistrust festered.36 Like many a ruler Severus came over time to rely increasingly on his own family and associates. He trusted a kinsman and friend of his youth, Fulvius Plautianus, to whom he was bound by emotional ties, and treated him almost as a partner.37 A man of ability and, like Severus, from Africa, in the end Plautianus became sole praetorian prefect and accumulated great power. Had it not been for Severus’ two sons, the situation would have been manageable. Severus would have made his friend a Caesar or junior Augustus, and Plautianus in due course might have proved himself a good emperor. But Caracalla had been given the name Antoninus in 195 and made Augustus in 197 or 198, so that this course was ruled out. The clash was resolved in another way. By an ingenious plot Caracalla and his mother Julia Domna trapped Plautianus and had him killed in 205.38 The strain was temporarily reduced, but effective rule had once again been sacrificed to dynastic interests. Two praetorian prefects were then appointed, one military, Laetus, and one civilian, the lawyer Papinian. Severus, conscious of the tension between his sons, tried to improve their ways by moving them from Rome to the Italian countryside (205–7),39 and later took them with him to Britain on his last military expedition (208–11).40 When he died Julia Domna tried to keep the peace between them.41 She failed. At the end of 211 Caracalla had Geta murdered in her presence.42 She still tried to compensate for her elder son’s lack of balance. Later her niece Julia Soaemias tried in turn to restrain her son Elagabal (218–22),43 but with no more success. So intractable were the problems of an empire conducted by, or in the name of, young men spoiled by 34

35 Dio 74.16–7 Herodian 3.5.2; Dio 75.7–8 Dio 76.8.4; Herodian 3.8.1–3 37 A. Stein (1912) 270–8; PIR2 F 554; Howe (1942) 69 no.17; Grosso (1968a) 7; Birley (1988) 128, 162–3, 207. Their quarrels and reconciliations and Severus’ remorse after Plautianus’ death point to the truth of Herodian 3.10.6 cf. Dio 77.5.1–2 38 Dio 77.3–4; Herodian 3.11.1–3; 3.12.12 (giving an official version); Hohl (1956) 33; Birley (1988) 161–3 39 40 41 Herodian 3.13.1 Herodian 3.14–5; Dio 77.11–3 Herodian 4.3.8–9 42 Dio 77.18.2–3 43 Herodian 5.5.5–6; 5.7.1–3. On Elagabal see Hay (1911), Barnes (1972), Pflaum (1978) 36


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early adulation that some Romans became disillusioned with the tradition that saw in public service the true end of human endeavour. In this age of strain the minds of many thoughtful people turned inwards. There were powerful Christians. The ex-slave Callistus took the see of Rome (c.217–23) 44 against the challenge of his opponent and critic Hippolytus. Julia Mammaea, the mother of Alexander Severus, ‘a most religious woman, if ever there was one’ and a supporter of Ulpian in his later years, was inquiring enough to bring the Christian intellectual Origen from Antioch by military escort for a meeting.45 Other religions, hovering on the border of monotheism, attracted devotees. The cult of Elagabal, the god of Emesa, whence Julia Domna and her family came, was one, a cult unknown to Greeks and Romans.46 Elagabal, the last Antoninus, nicknamed from the god to whom he was devoted, saw the deity as a jealous god. His demands, hardly less exclusive than those of Jehovah, led the emperor-priest to challenge the traditional Roman state religion.47 Elagabal wanted to invert the relations of politics and religion. Far from being the handmaid of state policy, as hitherto, religion was to be the prime concern of the emperor and people.48 Elagabal’s reign warns us that, in sacred affairs also, the easy-going days are over. It foreshadows the Christian revolution that is to come a century later.

II. ULPIAN’S CAREER: SOURCES

The main source of information about Ulpian’s career 49 is his own writings. These survive to the extent of about 300,000 words, roughly an eighth of the original, and tell us, directly or by inference, a good deal. They were in the main composed under Caracalla’s sole rule (211–7) as the references to joint constitutions of him (imperator noster, imperator Antoninus) and his dead but deified father (divus pater, divus Severus) make clear.50 Apart from this, two rescripts of Alexander Severus51 mention the two prefectures that Ulpian held in 222 under that emperor. There is an inscription in his honour from Tyre that records these prefectures.52 A papyrus from 44

Gianelli–Mazzarino (1956) 2.291f. Eusebius, Church History (Hist. Eccl.) 6.21 cf. 6.28.1: ‘the household of Alexander consisted mostly of believers’ 46 Herodian 5.3.5 47 Herodian 5.5.3–10; 5.6.3–10; 6.1.3 48 Herodian 5.7 49 Bremer (1883); Balog (1913) 339–421; A. Stein (1943); Howe (1942) 44–52, 75f., 100–5; Pflaum (1948) 41–5; Kunkel (1967) 245–54; Pflaum (1960–1) 2.762–5 no.294; Modrzejewski–Zawadski (1967); Grosso (1968b); Syme (1970/1979), (1972/1984), (1980/1984); Honoré (1982) 1–46; Liebs (1987b) 76f., 90–2, 110, 113f.; Salway (2000) 137f. 50 Ch.7 n.21–70; ch.8 n.2–12, 23–41; ch.9 n.11–2, 50–1, 93–6, 104–7, 130–1 51 CJ 8.37.4 (31 March 222), 4.65.4.1 (1 Dec 222) 52 AE 1988.1051 pp.285f: Domitio Ulpiano praefecto/praetorio eminentissimo viro/iurisconsulto item praefecto/annonae sacrae Urbis, Seberia/Felix Aug(usta Ty)riorum col(onia) metropol(is)/p(at)ria. Cf. Vézin (1991). It is clear from this that Ulpian never became a senator 45

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Egypt shows that he was killed before May/June 224.53 Of the historians Dio,54 as summarized by Xiphilinus, mentions his prominent role early in Alexander’s reign, about which Herodian is silent.55 Aurelius Victor (c.369)56 mentions him briefly, as do the epitomes of Festus (363–70)57 and Eutropius (364–78).58 There is an important passage in Zosimus (c.500)59 and briefer ones in Zonaras (1118–43)60 and Syncellus.61 The ‘mythistorical’ Augustan History of the late fourth century, drawing on Marius Maximus, Herodian, Victor, and other sources, along with a talent for invention, gives him a prominent role in the lives of Niger,62 Elagabal,63 and especially Alexander Severus.64 He is there depicted as guiding the young emperor Alexander’s footsteps in the paths of justice. This shows that towards the end of the fourth century Ulpian was highly regarded in certain pagan circles in Rome. It can be used with caution to fill out some aspects of his career. Following Straub (1978), I have assumed that, at least in certain instances, the author had access to reliable information about the law and lawyers.65 In dealing with them his method is often distortion of the truth rather than pure invention. At times it seems that the distortions have a serious purpose. It is not impossible that the author was himself a lawyer.

III. NAME AND ORIGIN: TYRE

Ulpian’s fellow lawyers call him Ulpianus or, in Greek, Ολπιανς.66 But a few texts, including two rescripts of Alexander, speak of Domitius Ulpianus.67 So does a text of Ulpian’s contemporary Paul, in which he reproduces a letter from a friend or client that refers to an opinion of Ulpian.68 Lactantius calls him Domitius69 and both Modestinus and Dio have ∆οµ τιος Ολπιανς.70 The gentile name Domitius is confirmed by the inscription found in Tyre.71 53

54 Dio 80.1.1; 2.2–4 P.Oxy. 2565: Barns–Parsons–Rea–Turner (1966) 102 Herodian 6.1.4 says in general terms that legal and civil business was entrusted under Alexander to men of eloquence and legal experience 56 The Caesars (De Caesaribus) 24 57 Summary of Deeds of the Roman People (Breviarium rerum gestarum populi Romani) 22 pace Spagnuolo Vigorita (1990) 58 Summary from the Foundation of Rome (Breviarium ab urbe condita) 8.23 59 New History (nova) 1.11.2 cf. Lydus (490–c.560) Magistrates (De magistratibus) 1.48 60 Annals (Annales) 12.15 61 Chronography (Chronographia) 1.673 62 HA Pescennius Niger 7.2 63 HA Antoninus Heliogabalus 16.1 64 HA Severus Alexander 15.6, 26.5, 27.2, 31.1, 34.6, 51.4, 67.2, 68.1 65 Honoré (1987), (1994b), (1998a) ch. 8 66 D 27.1.2.9 (Mod. 2 excus.); 27.1.8.9; 27.1.10.8 (3 excus.); Dio 80.1.1; 2.2–3; Syncellus, Chron. 1.673; Zonaras 12.15 cf. 26.6.2.5 (Mod. 1 excus.); 27.1.4.1 (2 excus: Ολπιανς κρτιστος); 27.1.13.2 (4 excus: ∆οµ τιος Ολπιανς) 67 CJ 8.37.4 (31 March 222); 4.65.4.1 (1 Dec. 222); HA Severus Alexander 68.1 68 D 19.1.43 (Paul 5 quaest.) 69 Church Teaching (Div. inst.) 5.11.19 70 Dio 80.1.1; D 27.1.13.2 (Mod. 1 excus.) 71 AE 1988.1051; above n.52 55


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No other Domitius Ulpianus is known, unless we can make something of an inscription on a water-pipe found some seven miles from Centumcellae (Civitavecchia).72 Here, near Santa Marinella, on the coast north-west of Rome, a pipe belonging to a large building was found with the inscription: CNDOMITIAN . NIULPIANI

A number of scholars, including Kunkel, have taken this to refer to the lawyer.73 If the inscription is read continuously, the reading ‘Domitiani’ is not possible, in view of the double N, and it seems better to read it as: CN DOMITI ANNI ULPIANI

though the dot between the two Ns is awkward. If this reconstruction is correct, the owner of the large country house near Rome was Gnaeus Domitius Annius Ulpianus. Is he the lawyer Ulpian? There is a possible point of connection apart from the name. The villa belonged to a wealthy man and a statue of Meleager has been found in the area. Meleager,74 poet and Cynic philosopher of the first century BC, came from Gadara but lived in Tyre. Ulpian also came from Tyre. The statue seems appropriate to the residence of a wealthy scholar proud of his connection with Tyre. He might be the lawyer or some other member of a well-educated family from that area. The lawyer took pride in his connection with Tyre. He combined working in Rome or as part of the emperor’s entourage with strong provincial links.75 In his work on Taxation (De censibus), written under Caracalla and probably datable to 213,76 Ulpian describes Tyre as his town of origin, splendid, famed for its various quarters, possessing an ancient history, strong in arms, faithful to its treaty with the Romans:77 est in Syria Phoenice splendidissima Tyriorum colonia, unde mihi origo est, nobilis regionibus, serie saeculorum antiquissima, armipotens, foederis quo cum Romanis percussit tenacissima.

He calls Tyre his ‘origo’. Origo is local citizenship at birth,78 citizenship of origin. As Ulpian points out,79 the status of citizen of a municipality is acquired by birth (nativitas), manumission, or adoption. To this a law of Diocletian and Maximian added co-option (adlectio).80 This last law refers to ‘origo’ where one would expect birth to be mentioned. The terms could, it seems, be used synonymously. So Ulpian was a citizen of Tyre through birth 72

CIL XI.3587 = XV.7773 Kunkel (1967) 252; Crifò (1976) 738; A. Stein (1903); PIR 21 19, 25; 32 39; Passerini (1939) 324 74 75 Geffcken (1931); Radinger (1895); Wifstrand (1926) Liebs (2001) v–xv 76 Ch.9 n.11–25 77 D 50.15.1 pr (Ulp. 1 cens.). On Tyre see Krall (1888), Fleming (1915) and on municipal administration Liebenam (1900), Vittinghoff (1951), Nörr (1969) 78 79 Nörr (1963) 525 = (1965) 433. D 50.1.1 pr (2 ed.) 80 CJ 10.40.7 pr (Dio. et Max. AA et CC: cives quidem origo manumissio adlectio adoptio facit) 73

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in lawful marriage. Citizenship depended on the father’s status as a citizen, not on the son’s place of birth, which might take place anywhere. Tyre was Ulpian’s home town ( patria),81 the focus of his local allegiance, as distinct from Rome, the common fatherland of all Roman citizens (communis patria).82 He took pride in his dual identity. No other lawyer speaks of his home town in similar terms, but then no other Roman lawyer, except perhaps Celsus and Iavolenus a century earlier, is so extrovert. None of them refers, as does Ulpian, to ‘my fellow citizen’ (popularis meus).83 Tyre, like other Syrian cities, jostling for honour and position, aroused strong loyalties. Its fame for valour went back to its resistance to Alexander the Great in BC 332. From BC 64 the Romans recognized and maintained its autonomy, though that meant less from the second century AD than it had earlier. In AD 66 Tyre took part in the war against the Jews, to whom it was hostile. An ally of Rome (civitas foederata) from early times, the city provided auxiliary cohorts for the Roman army from the end of the first century AD. Hadrian admired the orator Paul of Tyre and, when drawn into a bitter war against the Jews in AD 132–5, gave it the title of metropolis. With its weaving, metalworking, and glass manufacture, above all its purple dyes, it prospered in the peaceful days of the empire, 84 and maintained trading stations at Puteoli85 and Rome. Ulpian’s attachment to Tyre was reciprocated. A column inscribed in his honour has been found there.86 It records his offices of prefect of supply and praetorian prefect to Alexander Severus. Tyre, still a free city, 87 played a part in the civil war that brought Septimius Severus to power. After Pertinax was murdered on 28 March 193 Septimius and Pescennius Niger were proclaimed emperor by their respective armies at Carnuntum on the Danube and Antioch in Syria.88 Septimius occupied Rome and then, on 9 July, left for the east to confront Niger. In the last months of the year he won an important victory over Niger at Cyzicus on the Dardanelles. In 194 Niger’s support dwindled, as Egypt and Arabia went over to Severus. Severus won another victory a little further to the east, between Cius and Nicaea, perhaps in January 194, and his army, overrunning Bithynia and Galatia, marched into Cappadocia. While this was happening, says Herodian, local rivalries broke out in Syria.89 Laodicea, the enemy of Antioch, and Tyre, the rival of Berytus, declared for Severus. When the retreating Niger reached Antioch, he heard of the defection of Laodicea and Tyre and dispatched Moroccan spearmen and archers, who looted and set fire to the two cities. There may have been another reason 81

D 48.22.7.15 (Ulp. 10 off. cons.) D 48.22.18 pr (Call.); 27.1.6.11 (2 excus.); 50.1.33 (Mod. 1 manu.); Spagnuolo Vigorita (1996) 83 D 45.1.70 (11 ed.) 84 Eissfeldt (1939) 1876; Kunkel (1967) 249517; Crifò (1976) 739; Rey-Coquais (1978) 44, 54f. 85 CIL X 1601, CIG V 853 86 AE 1988.1051 87 Liebs (1984) 442 88 Hasebroek (1921) 190f.; Downey (1961) 89 Herodian 3.2.7–3.3.5 82


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why Tyre supported Severus. Tyre and Sidon were the founding cities of Carthage, and Severus, apart from his Caesar, Clodius Albinus, was the first and only emperor from Africa. To prevent a repetition of the revolt that Niger had mustered in the east, the victorious Septimius divided Syria into two. He deprived Antioch of its status as capital of the much-truncated Syria Coele, and made Tyre capital of the newly founded Syria Phoenice. Many of his supporters came from these provinces.90 Phoenice extended to the north to include Emesa and Palmyra. It became the seat of the council (κοινν) of Syria and of the High Priest of Phoenicia (φοινικρχης).91 Some years later, perhaps after 198, Severus made Tyre a Roman colony and settled in it veterans of Legio III Gallica.92 It was now called the metropolitan colony of Septimius Severus (Colonia Septimia Severa metropolis). Ulpian mentions, after the lyrical passage quoted,93 that Severus and Caracalla conferred Italian rights (ius Italicum) on Tyre, for its ‘signal and outstanding loyalty to the state and the Roman empire’.94 Caracalla probably became Augustus in the autumn of 197,95 so that this grant cannot have occurred earlier. It may have been made along with the grant of colonial status, or perhaps later. Italian right96 carried with it notable privileges, including a degree of autonomy and exemption from capitation and land tax (tributum capitis, tributum soli). It has been said that Elagabal reduced Tyre in rank because of a military revolt, and that Alexander Severus restored it to its previous position.97 In the civil war between Macrinus and Elagabal in 218 Sidon, Tyre’s twin town, sided with Elagabal. While it is not proved that Tyre sided with Macrinus, it evidently lost some privileges, and is not called a colony or metropolis on coins of Elagabal apart from the early ones. It seems, then, to have suffered disgrace, but not immediately on the fall of Macrinus. Whether the disgrace was connected with a revolt of Legio III Gallica, which, having raised Elagabal to the throne, later rebelled, is uncertain, since the legion was not stationed in Tyre itself but in nearby Raphanae. At any rate Alexander restored Tyre’s privileges, as one would expect given his dependence on Ulpian in the early part of his reign.98 Ulpian’s connection with Tyre has elicited puzzlement on another point. Is he identical with the Oulpianos who presides as toastmaster in the Sophists at Dinner (Deipnosphistae) of Athenaeus?99 The relation between

90

91 Eissfeldt (1939) 1900 Leunissen (1989); Millar (1993) 93 Above n.77 Eissfeldt (1939) 1900 94 D 50.15.1 pr (1 cens: ob egregiam in rem publicam imperiumque Romanum insignem fidem); Ziegler (1978) 498 95 Kienast (1995) 162 96 Premerstein (1917) 1238; Luzzatto (1951) 79; Vittinghoff (1951) 465; Berger (1953) 530; Ziegler (1978) 499 97 98 99 Eissfeldt (1939) 1900–1 See Ziegler (1978) 493 A. Stein (1943) 92

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them has been canvassed in writings about Ulpian and his career. It merits a brief discussion.100 The Sophists at Dinner is a work in fifteen books in the form of a symposium, or discussion at dinner. The talk, in turns entertaining and boring, is about the meaning and derivation of words and the passages in which they feature in Greek literature. Oulpianos, the toast-master, refuses to eat a dish before he is satisfied about the etymology of the word used to name or describe it.101 He is depicted as a learned but bad-tempered pedant, concerned to preserve the purity of Greek from Roman intrusion.102 He pretends not to understand Latin words or their derivatives. None of this would point to a connection with the lawyer were it not that Oulpianos is described as coming from Tyre.103 The date of the Sophists at Dinner must be later than 192, since in book 12 the author refers to Commodus, who died in 192, in a disrespectful way. Commodus ‘in our own times’ sat in his chariot, with Hercules’ club beside him and a lion skin spread out below, ‘trying unsuccessfully to imitate the God’.104 Some of the participants in the symposium are drawn from real life. The host Larensis, a Roman knight, who gives the party in Rome, seems to be P. Livius Larensis, known from a touching but undated inscription on a tombstone dedicated to him by his wife.105 Galen the doctor, also a guest, can hardly be other than the famous anatomist and physiologist who, like the guest, came from Pergamum.106 The real Galen, born in 129, is now thought to have lived on into his eighties, perhaps as late as 216.107 At the end of the work Oulpianos dies,108 while nothing is said of Galen, who is presumably still alive. So the dramatic date can hardly be later than 216. Some scholars, beginning with Kaibel, have identified Oulpianos with Ulpian.109 Others, such as Kunkel, have for good reason dissented.110 Athenaeus could hardly depict Ulpian, who died in 223 or 224, as dying during Galen’s lifetime. In any case they differ intellectually. Oulpianos, assuming he is a real person, is a partisan of Greek culture, an Atticist in matters of language. He is a word-fancier,111 hypercritical,112 and is nicknamed 100 Kaibel (1887) intro: Dittenberger (1903) 1–28; P. Krüger (1912) 239143; Kunkel (1967) 249–51; Crifò (1976) 715–34. The references to Oulpianos in Athenaeus’ text are collected in Kaibel (1887) 3.564 cf. Jörs (1903) 5.1435. Background in Bowersock (1969); Swain (1996) 43–64. Editions by Kaibel (1887) and Gulick (1927–41) cf. for technique Mengis (1920) 101 Athenaeus 9.401 cf. Swain (1996) 49–51 102 Athenaeus 3.12f, 3.98c, 8.361 103 Athenaeus 1.1d (Τριος) cf. 8.346c (Σρων) 9.368c (Συραττικ) 104 Athenaeus 12.537; Wenger (1953) 232112 105 CIL VI 2126 106 Mewaldt (1912); PIR2 G 24. He was born in 129 and according to the Suda attained 70 but in reality lived to some date between 204 and 216: Swain (1996) 368–9, 430–2 107 Nutton (1995) 25–39 108 Athenaeus 15.686c 109 Kaibel (1887) 1.vif.; Mengis (1930) 23 f.; Crifò (1976) 721–2, 734 contra Wenger (1933) 23214 110 Wenger (1933) 23214 ; Kunkel (1967) 251 111 Athenaeus 9.401b: ροντιστ κα λογιστ 112 Athenaeus 14.613c: ιλεπιτιµητ#ς


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‘Mr Is-the-term-found-or-not?’.113 Though both were scholars, intellectually he is very unlike Ulpian. At least at a cultural level Oulpianos rejects Rome. The last thing to which he would apply himself is the study of Roman law. Ulpian by contrast is proud of the connection of Tyre with Rome and is devoted to the law of Rome, its most lasting cultural achievement. He could be thought of as rejecting the values of Hellenism.114 He was one of those easterners, crucial to the development and transmission of Roman law, who found in it a systematic discipline whose intellectual demands were comparable to those of Greek literature and philosophy (‘wise, precise, varied, admirable, and in a word very Hellenic’).115 Crifò sees a parallel between Ulpian’s discussion of the meaning of terms used in legacies and Oulpianos’ inquiries into etymology. But the gulf is deep. In interpreting legacies the lawyer’s guide is the intention of the testator, to be gathered from common usage or from the testator’s own habits of speech, rather than the etymology of the word on its own. To decide whether a legacy of papyrus (chartae) includes books (libri) one may have to look at whether the testator was a scholar, whether he possessed anything apart from books, and at the fact that some people call books ‘papyrus’.116 In reality the only points common to Oulpianos and Ulpian, apart from the name, consist in the attachment of both Oulpianos, the ‘Syratticist’,117 and Ulpian to Tyre and Syria. That does not make them the same person. But though Oulpianos is not Ulpian, they may both have belonged to a family of scholars from Tyre. Oulpianos could, for instance, have been Ulpian’s father, uncle, or brother, perhaps someone against whose Attic classicism Ulpian was reacting.118 Kunkel suggests that Ulpian’s pride in both Tyre and Rome can best be explained if his family was descended from Roman or Italian merchants who had been established in Tyre for some generations.119 The gentile name Domitius is found less in the eastern than the western provinces, and may go back to the first century AD, when senatorial families with this name such as the Ahenobarbi, Calvini, and Corbulones had not yet disappeared.120 The combination Gnaeus Domitius was commoner among first-century senatorial families than later. If Ulpian owned the house at Centumcellae121 he may have been descended from a forebear who acquired Roman citizenship in the first century. The governor of Syria in AD 60–3 was Gnaeus Domitius 114 Frezza (1983) 415–6 Athenaeus 1.1c: Κειτοκειτος Gregorius (Thaumaturgus), Thanks to Origen 7 = Crouzel (1969) 148 referring to about 230 AD; Millar (1978) 187; (1986) 272 116 D 32.52.4 (24 Sab: . . . nec chartis legatis libri debebuntur, nisi forte et hic nos urserit voluntas: ut puta si quis forte chartas sic reliquerit ‘chartas meas universas’ qui nihil aliud quam libros habebat, studiosus studioso: nemo enim dubitabit libros deberi. namque et in usu plerique libros chartas appellant) cf. 50.16.60 pr (69 ed: ‘locus’ and ‘fundus’: it is not size but intention—nostra affectio—that determines whether something is one or the other) 117 Athenaeus 9.368c 118 Syme (1980) 101 = (1984) 1411123 119 Kunkel (1967) 248 120 Kunkel (1967) 253 121 Above n.71–4 113 115

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Corbulo, the only Domitius known to have governed the province before Ulpian’s time. Corbulo had a stepson Annius Vinicianus, so that this second gentile name, found on the Centumcellae pipe, could go back to the same period.122 If these clues are reliable, Ulpian’s family had probably been established in Tyre for a considerable time. He certainly knew Greek as well as Latin, and may have known Aramaic. But the attempt to show that his writing betrays strong Semitic or Greek influence has so far carried little conviction.123 He composes in Latin but has a good command of Greek, as is shown in many texts where he gives the Greek equivalent of some Latin term or inserts a brief word or phrase, but never a whole sentence, in Greek. His Latin is at times colloquial, because he is dictating, but it is clear and correct, closer to some first-century Latin, for example that of Quintilian, than to thirdcentury Latin. Cicero and Quintilian seem to have had a strong influence on his style and thought.

IV. THE REIGN OF SEVERUS 193–211

Ulpian must have been born about 170.124 His career can be divided into three periods. Comparison of his private writings with the rescripts of the early third century shows that he was drafting rescripts as secretary for petitions (procurator a libellis) or his assistant on behalf of Severus and Caracalla from at latest August 202 to at earliest May 209. From 213 to 217 under Caracalla and Macrinus he composed his major restatement of Roman law in the light of the Antonine constitution of 212, according to a plan explained in chapters 7–9. In March 222 he was prefect of supply (praefectus annonae) and in December of that year praetorian prefect (praefectus praetorio), a post that he held under Alexander Severus until his assassination in 223 or 224. There are gaps between the first and second period, and between the second and third. These can be filled to some extent from a combination of evidence and speculation. But we know nothing about his career before 202. Frezza supposes him to have had a period practising as an advocate before 202/3.125 This is possible but not proved. It has also been suggested that he began as assessor to a praetor, or to Papinian, or with a procuratorship in Gaul. None of these ideas withstands careful scrutiny, if ‘assessor’126 is taken to refer to a junior paid post, often held by a trained lawyer, of the sort about which Paul wrote a monograph.127 But if by ‘assessor’ is meant a legal expert 122

Kunkel (1967) 254 Heineccius, ‘De Ulpiani Hebraismis’, (1765–71) 2.249; Kunkel (1967) 251; Kalb (1888) 127; Volterra (1937) 3.158–63; Wenger (1953) 519311; Yaron (1987) 3–17 124 Liebs (1997) §424 125 Frezza (1983) 415, citing the reference to popularis meus in D 45.1.70 (11 ed.) 126 Hitzig (1893); Behrends (1969) 192–226; Coriat (1997) 243 127 D 1.22.1 (Paul 1 de off. adsessorum) 123


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who is a member of a magistrate or official’s council128 there is evidence that Ulpian acted in this capacity both to praetors in Rome and to Papinian as praetorian prefect. This does not shed light, however, on his early career. His advising Papinian and the praetors belongs to a period after 202. The idea that Ulpian was assessor to a praetor comes from a text in Edict book 11,129 which is probably to be dated 213.130 Ulpian says that he knows from personal experience (ex facto scio) that when the Campanians terrorized someone into making them a promise in writing (no doubt to repair or construct a public work) Caracalla gave a rescript to the effect that the person who had made the promise could approach the praetor to be freed from it and restored to his previous position. When Ulpian was sitting with the praetor (me adsidente) the praetor ruled that the person in question could either sue the Campanians or wait to be sued by them and then raise coercion as a defence. The rescript must belong to the early part of Caracalla’s sole rule, and so consequently must Ulpian’s advice to the praetor. Ulpian was sitting with him as legal adviser, and by implication the praetor took his advice. Jörs pointed out that Ulpian could not have held the junior post of paid assessor as late as the reign of Caracalla.131 It is in any case not shown that ordinary republican magistrates such as the urban praetor had paid assessors in the second century AD.132 Even if they did, Ulpian’s role here was that of an eminent lawyer advising a magistrate as a friendly duty, not that of a young man with legal training holding a junior paid post. Adsidere does not in this context mean to act as a paid assessor but to act as a member of the praetor’s council to advise him on the law.133 In the case discussed the praetor was faced with the technical problem of how to give effect to Caracalla’s rescript. Ulpian provided the answer, or rather alternative answers. The text shows nothing about Ulpian’s early career but throws light on how he spent his time after ceasing to be secretary for petitions in 208 and before undertaking his massive programme of writing in 213. Some other texts seem to stem, though less obviously, from Ulpian’s experiences in advising praetors. In his Trusts (De fideicommissis) he discusses a gift in trust of water to a freed slave.134 He was consulted (consulebar) and replied (dicebam) that a trust of this sort was valid in dry areas like Africa and Egypt. The imperfect shows that this was not a written juristic reply (responsum). Nor is it a statement made in the course of a disputation, since that would be introduced by ‘it is asked’ (quaeritur) or the like. Ulpian was probably consulted by the praetor for trusts 128 e.g. Celsus senior in D 31.29 pr (Cels. 36 dig.). Kunkel (1967) 331697 contra Wenger (1953) 519311; NNDI (1964) 355 129 130 131 D 4.2.9.3 (11 ed.) Ch.8 n.15–21 Jörs (1903) 1438 132 Seeck (1894) 423–6; Kaser (1966) 367; Kunkel (1967) 331 but contra Behrends (1969) 192, 216 citing Seneca, Peace of Mind (De tranq. animi) 3.4 133 134 D 1.22.6 (Pap. 1 resp.) D 34.1.14.3 (2 fid.)

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(praetor fideicommissarius). In another text he mentions a trust by which a legatee is asked to emancipate his children.135 Ulpian remembers saying (retineo me dixisse) that the children could not sue on the trust, because the praetor for trusts does not protect child beneficiaries of a trust as he does slaves. Again, this is a probably a case where he was consulted by the praetor for trusts. Ulpian seems also to have advised the praetor for guardianship ( praetor tutelaris). An incomplete text from his Office of the Praetor for Guardianship (De officio praetoris tutelaris) say that he remembers (memini) that on his advice (me suadente) the praetor decided to compel a freed slave to act as curator for the son of the woman who had freed him.136 A few other texts, based on Ulpian’s recollection, also look as if they might record advice given by him to one of the praetors in Rome.137 The most likely periods are 205–7, when Ulpian was with Severus in Rome as secretary for petitions, and 211–2, after his return from the Scottish campaign but before his major literary enterprise that began in 213. As an equestrian, Ulpian would be junior in rank to the praetors whom he advised, who were senators. His intellectual authority, however, was great. In Edict book 5 he says that when he was in a country-house with a praetor he allowed ( passus sum) a slave to be freed before the praetor though no lictor was present.138 Julian in a previous generation merely persuaded (suasi) some praetors who consulted him that it was proper for them to manumit their slaves with their rod of office (vindicta).139 The text from book 5, and the incident in the country house, must be earlier than 213.140 Two passages of the Augustan History say that Ulpian and Paul were legal advisers to Papinian.141 This, if correct, must mean that they were members of his council of advisers when he was praetorian prefect (205–11). A Digest text confirms it for Paul.142 The praetorian prefect’s advisers seem to have been chosen by the emperor personally,143 since the praetorian prefect exercised jurisdiction on the emperor’s behalf. It is quite possible that Severus chose Paul and Ulpian for this role, and if assessores in the second HA passage is taken to mean members of Papinian’s council, there is no objection to it. As appears from the discussion of sources in chapter 6,144 Ulpian was close to Papinian, the only lawyer whom he cites in the imperfect. The context is the 135

136 D 35.1.92 (5 fid.) Frag. Vat. 220 (1 off. pr. tut.); Pernice (1885) 355 D 4.3.2 (11 ed.), 26.1.18 pr (2 fid.); 36.1.18.5 (4 fid.), Frag. Vat. 242 (1 off. pr. tut.) 138 D 40.2.8 (5 ed.). Dorotheus in the Basilica (Heimbach 4.624) has Ulpian sitting with the praetor ( %&τινι συν#δρευσα) but in the context this can only mean ‘advising’ 139 D 40.2.5 (Iul. 42 dig.) cf. 22.1.3.3 (Pap. 20 quaest.) 140 Ch.8 n.15–21 141 HA Pescennius Niger 7.3–4 (qui Papiniano in consilio fuerunt); Severus Alexander 26.5 (qui tamen ambo assessores Papiniani fuisse dicuntur) 142 D 12.1.40 (Paul 3 quaest.) 143 CIL XI 6337: Ti. Claudius Zeno Ulpianus ex sacra iussione adhibitus in consilium praef. praet. item urbi; Pflaum (1960–1) no.294; Howe (1942) 37 144 Ch. 6 n.18–24 137


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interpretation of Severus’ speech to the senate that validated gifts between husband and wife if the donor died without revoking the gift.145 Ulpian records what Papinian said about this in the course of discussion (recte putabat . . . non putabat). The context might be a disputation, which Ulpian was attending as a pupil or follower of Papinian, or a discussion in a case heard by Severus in which they were both members of the emperor’s council. A third suggestion about Ulpian’s early career is that he held a post, for example a procuratorship, in Gaul.146 Ulpian mentions Gaul or things Gallic from time to time. The Gallic language can be used to create a trust.147 ‘My Italian estate’ includes slaves normally employed in Italy who are sent elsewhere, for example to Gaul, to collect debts or buy supplies.148 Adjoining provinces are those that adjoin Italy, for example Gaul.149 A testator can impose a legacy on ‘the heir to my Gallic property’.150

A wife’s personal effects, not part of her dowry, are called παρερνα by the Greeks but peculium by the Gauls. Calder points out that peculium is used in Galatia as well as Gaul.151 None of these passages requires that Ulpian held a post in Gaul, though as an equestrian he probably held one or more provincial procuratorships early in his career.152 He travelled with Severus in 208 through Gaul on the way to Britain, and came back without him in 211. So he knew something of Gaul. But he may not have had a close connection with it. Unlike Paul,153 he does not list anywhere in Gaul as having Italian rights (ius Italicum).154 The examples of languages other than Latin and Greek, which in his Trusts (213 or 214) are Punic and Gallic,155 become Punic and Assyrian (Aramaic) in the later books On Sabinus (216).156 In 214 a testator speaks of his Gallic estate157 while in 216 a tutor is appointed to a ward’s ‘African or Syrian estate’.158 Caracalla and Julia Domna had moved east in the interval, and Ulpian may have done the same.159 On the other hand he may have remained in Rome with its convenient access to libraries. We do not know how Ulpian’s career began, nor where he studied law, nor who his teacher or teachers were. At some stage he must have taught law privately, because he refers to Modestinus as his pupil, studiosus meus.160 Moreover, Marcianus, writing after Caracalla’s death in 217, was clearly his pupil.161 Ulpian’s Teaching Manual (Institutiones) also points to time spent teaching. So do his ten books of Disputations (Publicae disputationes), which involved the public discussion of moot points of law. He will have engaged in 145 148 151 152 154 157 159 160

146 Bremer (1883) 84 147 D 32.11 pr (2 fid.) D 24.1.23 (6 Sab.) 149 D 50.16.99.1 (1 off. cons.) 150 D 30.4.1 (5 Sab.) D 28.5.35.3 (4 disp.) Calder (1923) 8 153 D 50.15.8 (Paul 2 cens: Lyons and Vienne) Liebs (1984) 442 155 D 32.11 pr (2 fid.) 156 D 45.1.1.6 (48 Sab.) D 50.15.1 (1 cens.) 158 D 26.2.15 (38 Sab.) D 30.4.1 (5 Sab.) For the dates of composition of these works see ch.8 n.15–6; ch. 9 n.33–56 161 Liebs (1997) §428.1 D 47.2.52.20 (37 ed.)

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both public and private teaching. The references he makes to special conditions in Arabia,162 Egypt,163 Asia,164 and Africa165 show that he was abreast of conditions in a number of provinces.166 But he need not have held posts in those provinces. His upstage way of referring to magistrates and high officials suggests a man who has not spent much time in humble provincial posts and has long been associated with the central government. My guess is that Ulpian assisted Papinian at least for part of the time when the latter was drafting rescripts for Severus as secretary for petitions (194–202). The secretary for petitions ( procurator a libellis, later magister libellorum) was the official who dealt with petitions to the emperor that raised points of law, at any rate those of any difficulty, and suggested a draft reply. The drafts were often, though of course not always, accepted without modification and in due course issued as imperial rescripts.167 If Ulpian assisted Papinian in this way he could have been with Severus for much of his reign, including his visit to Egypt in 199–200 and to Syria in 201.168 Though the post of assistant to the secretary for petitions is not attested its existence cannot, given the increased volume of work in Severus’ reign, be ruled out. Secretary/assistant for petitions (202–9). That Ulpian held the office of secretary for petitions ( procurator a libellis) is asserted in a muddled passage of the Augustan History.169 Eutropius170 and Festus171 both say that he held this office under Alexander. That is impossible,172 since within three weeks of Alexander’s becoming Augustus Ulpian is already a prefect.173 Nor is the variant suggested by Syme that Ulpian was secretary to Alexander as Caesar viable,174 though a Caesar could have a secretary for petitions.175 The HA account is more plausible if only because by implication it puts Ulpian’s tenure of the office of petitions in the reign of Severus.176 The passage says that Pescennius Niger proposed that assessors should administer the departments in which they had been assessors. Severus and others adopted this policy, as is 162

D 47.11.9 (9 off. proc.) D 47.11.10 (9 off. proc.), 32.55.5 (25 Sab.): see Bonneau (1969) 164 165 D 1.16.4.5 (1 off. proc.) D 34.1.14.3 (2 fid.) contra Bremer (1868) 166 D 3.2.4.2 (6 ed.), 32.55.6 (25 Sab.) 167 Honoré (1994) 43–8. Millar (1992) 648–52 thinks this model too bureaucratic for the period 168 Coriat (1997) 386–8. Birley (1988) 133 thinks that by 198 both Papinian and Ulpian were influential. Contrary to the accepted view which treats him as African (Liebs 1997, § 416) Birley makes Papinian Syrian 169 HA Pescennius Niger 7.3–4: intimavit, ut assessores, in quibus provinciis adsedissent, in his administrarent. Quod postea Severus et deinceps multi tenuerunt, ut probant Pauli et Ulpiani praefecturae, qui Papiniano in consilio fuerunt ac postea, cum unus ad memoriam alter ad libellos paruisset, statim praefecti facti sunt 170 Eutropius 9.33: adsessorem habuit vel scrinii magistrum Ulpianum, iuris conditorem 171 Festus 22 172 Despite Syme (1980) 81 = (1984) 1395. For differing views see Coriat (1997) 261, 559, 570 173 CJ 8.37.4 (31 March 222) 174 cf. Syme (1980) 93 = (1984) 1405 175 CIL XIV.5347 (L. Volusius Maecianus) 176 Jörs (1903) 1437 163


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shown by the prefectures of Paul and Ulpian. Both were councillors of Papinian, and after Paul had become secretary for records and Ulpian for petitions, they were immediately made prefects. Garbled as this is, the historical evidence is consistent with its being in part correct.177 Ulpian was secretary for petitions, he and Paul were councillors of Papinian, he succeeded Papinian (as secretary for petitions, not as prefect), and he ultimately (though not at once) became prefect of supply and then praetorian prefect. The first secure date in Ulpian’s career is 30 August 202, when we find the first rescript that can unequivocally be attributed to his drafting.178 He succeeds Papinian, whose last securely datable rescript was issued on 12 February 202.179 Indeed Ulpian may have succeeded him earlier, since a rescript of 25 March 202180 is equivocal in point of style.181 It may be Papinian’s or may belong to a period of overlap.182 By this is meant a time when Papinian had left office and his successor Ulpian was presenting Papinian’s draft to the emperor with his own modifications.183 The earlier date is not impossible, since Severus returned to Rome from the east in the spring of 202 and the change from one secretary to the next may be connected with his return. The text of 30 August 202 points more decisively towards Ulpian’s authorship.184 ‘Who would deprecate the appeal to variations of vocabulary and style when they occur in a large mass of homogeneous material?’185 It is through parallels of style and vocabulary that we reach the conclusion that Ulpian was drafting imperial rescripts from August 202 at the latest until May 209.186 Sixty-six of them have survived from Justinian’s Codex and three from other sources.187 Adding to these fourteen undated rescripts of Severus and Antoninus in the same style and twelve from Justinian’s Digest and Institutes we arrive at a total of ninety-five rescripts that can be attributed to the scholar from Tyre. His period of office is just over six years, a long time. It is true that seven rescripts composed in April and August–September 205, the crisis year when Plautianus fell, seem to be by a different hand, perhaps that of Papinian.188 But this is a small proportion of the total. Liebs,189 in answer to 177

Liebs (1987b) 111f.; Syme (1980) 86f. = (1984) 1399f. is highly sceptical 179 CJ 2.3.2 (12 Feb 202) CJ 2.1.3–3.9.1 (30 Aug 202) 180 CJ 2.3.3 (25 March 202) 181 In the first edition of Emperors and Lawyers I dated Ulpian’s tenure of office from this rescript (Honoré 1981, 59–64). In the second edition I postponed it out of caution to CJ 5.66.1, 5 April 203 (Honoré 1994, 81) 182 Honoré (1994) 80 183 Honoré (1994) 62–3 184 CJ 2.1.3–3.9.1 (30 Aug 202): ‘permultum interest’ points strongly to Ulpian: ch.2 n.688–93. The parallel of authority and equity (auctoritas, aequitas) in 2.1.3 is also telling 185 Syme (1980) 95 = (1984) 1406–7 186 Honoré (1981) 59–64; (1994) 81–91; Birks (1983) 153; Liebs (1997) §424 p.176 187 Honoré (1994) 81 n. 65–6; 131 n.789–90. He may also have drafted Caracalla’s speech to the senate about donations between husband and wife: below n.240; Birley (1988) 166–7 188 189 Honoré (1994) 86 n.168–9 Liebs (1983a) 496; (1987) 179; (1997) §424 p.176 178

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Syme,190 has suggested that Ulpian, though drafting imperial rescripts for Severus, did not hold the office of secretary for petitions for the whole period. In the first two years, up to the fall of Plautianus in 205, Aelius Coeranus191 was secretary, paid at the 300,000 sesterces rate, and Ulpian was his assistant, paid at the lower 60,000 sesterces rate. It is, however, possible that Coeranus was secretary for petitions to Caracalla while Ulpian was secretary to Severus, since each Augustus will have had his own secretary, though only the rescripts issued by the senior Augustus were collected as having general authority. The important point is that the rescripts from August 202 onwards are in Ulpian’s style and reflect his vocabulary. Allowance must, however, be made for the fact that in composing rescripts Ulpian is composing in writing whereas his works in his own name are dictated and come some years later.192 His literary style, as it emerges from texts in Justinian’s Digest, is discussed in chapter 2. The parallels between what he wrote as a private author and the rescripts of April 203 to May 209 were set out in the first edition of this book193 and in Emperors and Lawyers.194 They will not be repeated here. But it is important for the understanding of Ulpian’s public role to illustrate one feature of the rescripts for which he was responsible: the vigour and directness of their approach, unparalleled in the later principate. This vigour contrasts with the understatement that Papinian favoured both in his private writing and in the rescripts he drafted for Severus between September 194 and February 202.195 A rescript of Papinian’s time can modestly end ‘you will not raise the defence in vain’ (non inutiliter defenderis).196 Ulpian is forthright. He often begins a rescript by advising or scolding the petitioner. ‘Approach the governor’ (Adite praesidem);197 ‘You wrongly believe’ (Falsa suasione credis),198 ‘You are asking for something unjust and unusual’ (Neque aequam neque usitatam rem desideras);199 ‘It is unusual and a bad example’ (Insolitum est et grave exemplo);200 ‘You are asking for something contrary to law’ (Incivilem rem desideras), 201 ‘You are wrong to be afraid that’ (Frustra times);202 ‘Your thinking accords with legal principle’ (Secundum rationem iuris existimas);203 ‘We do not see why you want’ (Non animadvertimus cur velis);204 ‘You should know’ (Scire debes).205 He can also criticize judges: ‘The procurators were wrong in refusing’ (Non recte procuratores noluerunt);206 ‘The judge was too 190 191 193 194 195 198 201 203 205

Syme (1980) 94 = (1984) 1406 192 Ch.2 n.6–11 PIR2 A 191; Heberdey (1912) 125; Honoré (1994) 191 Honoré (1982) 191–205 Honoré (1981) 59–64; (1994) 81–6 cf. Coriat (1997) 271–2, 279–80; Liebs (1997) §424a 196 CJ 2.3.2 (1 Feb 202) 197 CJ 3.8.1 (19 Nov 203) Honoré (1994) 76–81 199 CJ 4.2.1 (1 July 204) 200 CJ 9.41.2 (11 Sept 204) CJ 5.62.1 (1 May 204 ) 202 CJ 5.37.1 (20 Sept 207) CJ 6.2.2 (29 Nov 204) 204 CJ 3.26.2 (20 Sept 207) CJ 5.18.2 (4 Apr 207) 206 CJ 8.40.3 pr (16 Aug 208) CJ 7.74.1 (1 May 209)


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hasty in ordering’ (Nimis propere iudex iussit).207 He freely resorts to imperatives: approach, show, summon, take care, take action, press on, sue, offer, pay (adite,208 docete,209 evoca,210 curate,211 age,212 insta,213 actionibus utaris,214 offerte,215 exsolve216). Papinian’s rescripts run only to a single imperative, ‘allege’ (adlega).217 Along with this extrovert manner goes an explicit statement of rule-of-law values, of which the most striking comes in a famous rescript of Severus and Antoninus cited in Justinian’s Institutes. ‘Though’, the emperors say, ‘we are not bound by the laws we live by the laws.’.218 The construction licet . . . attamen points to Ulpian’s drafting.219 The idea he expresses is of course not his invention. It reflects the ideology of Severus and his age, and the emperor had to endorse all rescripts in his own hand. Ulpian, in the emperor’s name, makes a serious effort to persuade the petitioner that the answer to his or her petition is just,220 rational,221 necessary,222 and indeed that the petitioner knows it is correct.223 Reason is at least on a level with authority: ‘reason urges and Marcus ruled’ in favour of a solution to a problem in the law of wills.224 Millar plausibly suggests that Ulpian’s characteristic style and approach were formed during this period spent as one of Severus’ secretaries.225 As secretary for petitions Ulpian will have accompanied Severus, Julia Domna, their two sons, and Papinian, now praetorian prefect, across Gaul to Britain for the emperor’s campaign in the north of Britain. We have eight rescripts for 208, only four for 209. Two of these, dated 1 January and 1 May, are clearly Ulpian’s.226 The third, of 13 July, 227 may also be, but may instead belong to a period of overlap when a draft by Ulpian was modified by his successor, whose style is closer to that of Papinian. A rescript of 31 December 209228 is certainly by the incoming secretary. 207

208 209 CJ 7.53.1 (30 Jan 206) CJ 3.8.1 (19 Nov 203) CJ 3.8.1 (19 Nov 203) 211 CJ 2.12.3 pr (23 Aug 204) CJ 6.2.2 (29 Nov 204) 212 213 CJ 5.37.1 (20 Sept 206) CJ 5.37.1 (20 Sept 206) 214 215 CJ 2.31.1 (Sev. et Ant. undated) CJ 12.33.1 (Sev. et Ant. undated) 216 217 CJ 4.61.3 (Sev. et Ant. undated) CJ 8.2.1 (25 Dec 197) 218 Just. Inst. 2.17.8: licet enim legibus soluti sumus, attamen legibus vivimus 219 The only other example of this construction in the rescripts comes in CJ 5.18.2 (4 Apr 207); Honoré (1994) 83126–7 220 CJ 4.2.1 (1 July 204: neque aequam neque usitatam rem desideras); 6.46.2 pr (22 July 205); 2.12.4 (4 Jan 207: aequum est); 3.28.4 (10 March 208: non est aequum); 4.61.1 (Sev et. Ant. undated: non est aequum) 221 CJ 6.26.2 (27 July 204: ratio suadet); 2.3.4 (10 Feb 206: nulla ratio permittit); 5.18.2 (4 Apr 207: secundum rationem iuris); 7.45.1 (29 May 208: non videtur rationem habere); 8.13.4 (30 May 208: non habet rationem) 222 CJ 6.3.1 (30 Dec 204: nisi necessitas suaserit) 223 CJ 6.3.1 (30 Dec 204); 4.2.1 (1 July 204); 5.15.1 (20 July 204); 5.69.1.2 (12 Oct 205); 8.15.2 (14 Oct 205); 5.62.3 (15 March 206); 8.40.3.1 (16 Aug 208); 7.74.1 (1 May 209) cf. CIL 3.14203.8 224 CJ 6.26.2 (27 July 204: et ratio suadet et divus Marcus pater constituit) 225 226 Millar (1986) 277 CJ 7.62.1 (13 Jan 209), 7.7.41 (1 May) 227 228 CJ 8.18.1 (13 July 209) CJ 7.8.3 (31 Dec 209) 210

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Why did Ulpian’s term of office end in the summer or autumn of 209? Presumably because he accompanied Severus and Caracalla on their campaign in Scotland, while Julia Domna and Geta remained behind in York.229 Geta was left in charge of the civil business of the empire, including the issuing of rescripts.230 During the course of the year Geta was belatedly made an Augustus, eleven years after his brother. His promotion was known in Athens in October or November 209.231 In 210 Severus, ill with gout, remained in York while Caracalla again campaigned in Scotland. There were preparations for another campaign, but Severus died at York on 4 February 211.

V.

THE REIGNS OF CARACALLA AND MACRINUS

On Severus’ death the imperial party returned to Rome. Severus had wanted both sons to succeed him, and both had their supporters. Papinian, a close friend of Severus, supported the idea of joint rule, and Ulpian’s successor as secretary, whose identity is not known, remained in office at least until 26 November 211.232 This was shortly before Geta was lured to a meeting with their mother, supposedly of reconciliation, and treacherously murdered on 19 or 26 December of that year.233 This secretary (no.3) 234 was presumably a protégé of Papinian and a supporter of Geta. A rescript of 28 Dec. 211235 perhaps belongs to a period of overlap with the next secretary. No.3 was replaced at the beginning of January at the latest,236 probably by Arrius Menander,237 a lawyer and imperial councillor during the reign of Severus who had written a treatise on military law and who was clearly Caracalla’s choice. Papinian was dismissed as praetorian prefect after Severus’ death238 and executed in 212 on the basis of charges brought by the praetorian guards after Geta’s death.239 Ulpian escaped Papinian’s fate. He sided with Caracalla in good time. What he wrote in Caracalla’s reign, especially in the early years, treats him in flattering terms and points to a good relationship between them.240 In 211 229

230 Dio 76.13; Hasebroek (1921) 142–3, 148–9; Gilliam–Mann (1976) Herodian 3.14.9 Kienast (1995) 166; Birley (1988) would postpone his promotion to 210, but the change of secretary for petitions in 209 suggests that 209 is correct 232 Honoré (1994) 86–8 233 Kienast (1995) 166 234 Secretary no.3 in Honoré (1994). The secretaries are listed at pp.190–1 235 CJ 6.44.1 (28 Dec 211) 236 CJ 5.75.1 (5 Jan 212) 237 Lenel (1889) 1.695–700; D 4.4.11.2 (Ulp. 11 ed.); Giuffrè (1974a); Honoré (1994) 88–91; Liebs (1997) §419.7 238 239 Dio 78.1.1 Dio 78.4.1a 240 Ch.7 n.20–2, 30–4; ch.8 n.2–5. The close connection may go back to 206, when Caracalla was riding high after the fall of Plautianus. Caracalla’s speech to the senate of that year about gifts between husband and wife sounds as if it was drafted by Ulpian, who was then secretary for petitions and writes about it with enthusiasm: D 24.1.32 pr, 2 (33 Sab: Antoninus Augustus ante excessum divi Severi patri sui oratione in senatu habita auctor fuit senatui censendi . . . ‘fas esse eum quidem qui donavit <posse> paenitere: heredem vero eripere forsitan adversus voluntatem supremam ius qui donaverit durum et avarum esse’) 231


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there were indeed arguments to support Caracalla. Though Severus ultimately decided on a joint succession and enjoined harmony on his children, he had allowed eleven years to pass before raising Geta to the status of Augustus which his brother, only one year older, had held all that time. All that Severus did up to 209 pointed to respect for Caracalla’s abilities and contempt for those of Geta, though some of those hostile to Caracalla, such as Herodian, later attributed to Geta increasing signs of moderation and serious interests.241 Unless the two rulers were on good terms and the junior respected the senior, as in the case of Marcus and Verus, the auguries for joint rule were not favourable. The Roman law of intestate succession, which provided that surviving children should be joint heirs,242 could not determine succession to the position of emperor, which was not hereditary. For whatever reasons, Ulpian survived and worked to further Caracalla’s ambitious aims. The bulk of his work was composed in the five years 213–7. This is a conclusion that the references to emperors in his work make almost inescapable.243 An older view that goes back to Mommsen244 is that he composed most of his work earlier but revised it under Caracalla. The hypothesis is not supported by internal evidence and is inconsistent with Ulpian’s having been secretary for petitions in 203–9, when the first drafts would presumably have been composed, and with his having dictated his works. It is an invention, meant to explain how so much was achieved in so short a time—a preUlpian parallel to the pre-Digest which was at one time wheeled on to explain how Justinian’s Digest was compiled so quickly.245 In fact Ulpian had, apart from drafting rescripts in 203–9, so far written little that has survived. A monograph on Excuses (De excusationibus), which deals with the grounds on which one may refuse to act as guardian, belongs to the reign of Severus or at any rate the period before Caracalla’s sole rule.246 This may have been the work that led to his being appointed secretary for petitions, as in the parallel case of Menander’s work on military law.247 His critical notes on Marcellus’ Digesta must be a work of his youth.248 His notes on Papinian’s Responsa 249 are confined to the first nine books, composed and perhaps published before Severus’ death. Ulpian could have annotated these books in 211 or 212. The first five books of Ulpian On the Edict are to be dated some time before 213. They may have been written in the first five weeks of 211, when everyone was waiting for Severus to die. That is technically possible, since the imperial 241

Herodian 4.3.2–3 cf. Alföldy (1972) The principle went back to the XII Tables: Kaser (1971) 695 243 Millar (1986) 274; Liebs (1997) §424 A; below ch.7 n.8–92 244 Mommsen (1904–13) 2.158–9, revived by Frier (1984) 863 245 Peters (1913) cf. Rodger (1983) 393–4 246 247 Frag. Vat. 125, 147, 149; Lenel (1889) 2.899–903: ch. 9 n.13 Honoré (1994) 85–91 248 Lenel (1889) 1.595–620 nos.37, 47, 107, 118, 200: Wolf (1959) 524f.; Liebs (1997) §424 p.179 249 Lenel (1889) 1.881–926 nos.396, 414, 526, 528, 529, 578, 624, 625, 626; Schulz (1961) 277–9; Wieacker (1960) 341f.; Liebs (1997) §424 p.179 242

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court moved with its books and files, but is no more than a guess. It is not clear what office, if any, Ulpian held after ceasing to be secretary for petitions in 209. The scenario that best fits his subsequent career, and especially his literary activity in 213–7, is that he remained close to the imperial family.250 His concern for problems of public administration, on which he wrote more extensively than anyone else, points in the same direction. Like Julia Domna he was from Syria. A link with the imperial family is indicated by Ulpian’s statement in Taxation (De censibus), probably to be dated 213,251 that he knows that Caracalla allowed his cousin Julia Mammaea to retain the consular dignity acquired though her first marriage, though she later married a husband not of consular rank.252 Her second husband was in fact Gessius Marcianus, father of Alexianus, the future emperor Alexander Severus. Ulpian is not citing a published rescript. He is reporting an item of inside knowledge. Julia Mammaea dominated her son Alexianus and came to rely on Ulpian when her son became emperor in 222. So Ulpian was in some way close to the Syrian branch of the imperial family. But he was also close to Severus, and knows that Arrius Menander, was, exceptionally, excused from a guardianship already assumed.253 Menander was one of Severus’ legal counsellors, later promoted by Caracalla to be secretary for petitions. Given the outlook that emerges from his writing Ulpian will on theoretical as well as practical grounds have favoured and, I suspect, advocated the extension of citizenship that Caracalla effected by the Antonine constitution (constitutio Antoniniana) of 212.254 That step, though presaged by earlier developments, was revolutionary.255 As the Tabula Banasitana of 177 shows, a generation earlier it was a complicated matter, involving the emperor’s council, to obtain Roman citizenship.256 Up to 212 the customary law of various ethnic groups, the ius gentium, had been an element on which Roman law drew for certain purposes, which might include criticism of existing civil law institutions. Now Roman law became the ius gentium, the law of peoples. Once that step had been taken, it was crucial to provide for the citizens of the empire, new and old, a clear exposition of the common law to which they were subject and in doing so to bring out its universal and rational character. This, Ulpian, with his deep understanding of the problems of provincial administration,257 was uniquely well qualified to do. 250 253

251 Ch.9 n.11–26 252 D 1.9.1 pr (2 cens.) Syme (1971) 154 D 4.4.11.2 (Ulp. 11 ed.). On Menander see Jörs (1895); Liebs (1997) §419.7; Honoré (1994)

88–91 254 Literature above n.30; Birley (1988) 190: Paul and Ulpian may have recommended this enactment 255 For the parallel between the constitutio Antoniniana and the extension of citizenship to non-white South Africans, along with legal implications, see Honoré (1990); Mandela (1993). For a more conservative interpretation see Sherwin-White (1972). 256 257 Seston–Euzennat (1971) 468–90 Millar (1986) 275


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The traditional date of the Antonine constitution has been challenged.258 But the argument in favour of a later date has not won general acceptance. There are two ways of approaching the problem. In Edict book 22 Ulpian says that all those in the Roman world have been made citizens by the emperor Antoninus (Caracalla).259 On the argument presented in chapters 5 and 6, Edict books 6 to 31 were composed in AD 213, so that book 22 should fall about the middle of the year or a bit later. If that is right, the Antonine constitution cannot have been issued later than the first half of 213. An alternative approach is to date the constitution, which took the form of an imperial edict, independently of Ulpian’s text and then to relate Ulpian’s programme to it. One argument for 212 is that Dio deals with the edict,260 which he says was meant to raise revenue, along with other events that occurred after Geta’s murder at the end of 211. That murder is often taken to be the occasion for the thanks that Caracalla appears to have offered the gods, along with the extension of citizenship, for his escape from Geta’s alleged plot.261 In the famous Giessen papyrus the edict that follows the one relating to citizenship is dated 11 June 212 and was posted in Alexandria on 10 February 213. The third edict on the papyrus belongs to 215 or 216. If the text are in chronological order the grant of citizenship should precede the date of the second edict. Other arguments have been based on the speed with which newly enfranchised citizens, having been emancipated by Aurelius Antoninus (Caracalla), adopted the name Aurelius. The evidence is not easy to interpret, because it would take some time for all but the politically alert to understand the implications of the change. Moreover, the use of the name Aurelius can have explanations other than recent enfranchisement by Caracalla. Gilliam262 mentions a gravestone from Saittai in Lydia that records the death of a lady on 3 March 213. Though she is not called Aurelia her husband and sons are given that name. An inscription of 1 January 213 records as M. Aurelius Claudius Pompeianus a man who on the same day eight years later is simply Claudius Pompeianus.263 Neither inscription is conclusive, but no positive evidence points to a date later than the traditional 212. That being so, there is no obstacle, it seems, to the interpretation of Ulpian’s great survey of Roman law that I favour. It was not simply an attempt to rival or surpass the work of Paul but a response to the transformation of the Roman empire into a cosmopolitan society, of which the Antonine constitution was the legal expression. Ulpian began it in 213, the year after the issue of the Antonine constitution, and 258

Millar (1962); Crifò (1976) 627 D 1.5.17 (22 ed: In orbe Romano qui sunt ex constitutione imperatoris Antonini cives Romani effecti sunt) 260 261 Dio 78.9.4–5 P. Giessen 40; Sherwin-White (1973) 279f. 262 Gilliam (1965) 74; Herrmann (1972) 528 cf. for earlier evidence Bell (1947) 263 CIL XIII.7338; AE 1962.228; Schleiermacher (1961) 166–8 259

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continued composing it for the five years 213–7. The ideological grounds for this interpretation will be set out in chapter 3. There was some evolution in the attitude of Ulpian and other lawyers to Caracalla over the years when writing his survey of Roman law. From some time about the middle of 213 he gives Caracalla priority over Severus when he mentions the two together as authors of a law. It is now ‘our emperor Antoninus with his father’ rather than ‘the deified Severus and our emperor’.264 Perhaps the German campaign of 213, as a result of which Caracalla was acclaimed Magnus Antoninus, points to his increasingly autocratic frame of mind. There is some evidence that as the reign progressed Ulpian came to feel some constraint. Texts that rest on the author’s personal experience (with ‘I know’ or the like) belong to 213 or 214 and do not reappear until Caracalla is dead.265 Passages in which Ulpian adopts a condescending tone towards emperors, including Caracalla, also come to an end after 214.266 A text fairly early in 217 points out that, contrary to Cicero’s view, a defendant to a lawsuit may fail to appear through fear of a tyrant’s cruelty, enemy attack, or domestic sedition.267 This, which may reflect the atmosphere of the time, seems to be the only surviving reference in Roman legal literature to the effect of tyranny on legal obligations. In the reign of Macrinus, which began on 11 April 217, Ulpian speaks of Caracalla simply as ‘Antoninus’ or ‘the emperor Antoninus’, and gives Severus back his priority.268 Despite the assassination of Caracalla, Ulpian completed his programme of writing for the year 217, either during 217, as I think most likely, or a few months later. Liebs has argued that he was at some stage banished by Macrinus, who was defeated by Elagabal on 8 June 218 and later killed. Ulpian need not have been with the imperial court when he was writing. Perhaps he moved eastward in Caracalla’s last years,269 but one could take a text of 216 about a wife’s listing property that does not form part of her dowry ‘as we commonly see happen in Rome’270 to imply that he stayed in Rome, where there were good library facilities.

VI.

THE REIGNS OF ELAGABAL AND ALEXANDER (218–223/4)

If Ulpian carried through his plan, set out in chapters 7 to 9, by the end of 217, it is not clear that he published anything afterwards. In 1962 I supposed that Ulpian revised his Taxation (De censibus) 271 under Elagabal. This was because both Ulpian272 and Paul in his parallel work273 attribute the grant of Italian right to Emesa to ‘our emperor’ (imperator noster), who in Paul’s case 264 267 270 272

265 Ch.7 n.33–70 Ch.9 n.11–23, 63, 108 268 D 42.4.7.4 (59 ed.) Ch.7 n.88–92 D 23.3.9.3 (31 Sab: ut Romae vulgo fiero videmus) 273 D 50.15.1.4 (1 cens.) D 50.15.8.6 (Paul 2 cens.)

266 269 271

Ch.9 n.63–4 Above n.125–9 Honoré (1962a) 212


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(imperator noster Antoninus) seems to be Elagabal. But the emperor Antoninus who gave Emesa the Italian right and made it a colony is more likely to be Caracalla, whose mother’s family came from there.274 Lenel thought that Ulpian’s Adultery (De adulteriis in five books)275 was written after Caracalla’s death.276 This could in my view be the case since Adultery best fits the year 217, for two-thirds of which Macrinus was emperor. But Mommsen is in any case probably right to think that the reference to the deified Severus and Antoninus (divi Severus et Antoninus) in book 1 is a retrospective insertion.277 We lack reliable clues to Ulpian’s career under Elagabal (16 May 218 to 11 March 222).278 So we have to read history backwards. In Alexander’s reign Ulpian emerges as a close collaborator of Alexander’s mother Julia Mammaea and almost a guardian of the young emperor.279 Hence it is reasonable to suppose that in the conflict between Elagabal and his mother Soaemias on the one hand and Alexander and Mammaea on the other in late 221 and 222,280 Ulpian sided with Alexander. The background is that late in Elagabal’s reign an attempt was made, on the initiative of Julia Maesa, who had originally contrived his promotion, to restore his standing by marrying him in 221 to Annia Faustina, a descendant of Marcus. She also persuaded him to adopt his cousin Alexianus, aged about 12, and appoint him Caesar on or about 26 June 221. The future emperor was now given the prestigious name Alexander.281 These measures failed. Elagabal divorced Faustina and many of his supporters deserted him. The conflict in which Ulpian seems to have sided with Alexander was precipitated by their grandmother Julia Maesa’s decision to switch her favour from one grandson to the other.282 This led to Elagabal’s downfall. On 13 March 222 he, his mother Soaemias, and his two praetorian prefects were murdered.283 Alexander succeeded him and on 14 March was given the usual formal titles by the senate. He, like Elagabal, claimed to be Caracalla’s son. Did Ulpian hold office under Elagabal? The Augustan History, in a passage that contains an in-joke about Ulpian’s On Sabinus (that he dedicated some of his books to Sabinus, a man of consular rank), says that Elagabal ‘removed Ulpicianus the lawyer as being a good man’.284 From the context this supposedly took place at the beginning of 222.285 Perhaps in the conflict between Elagabal and Alexander the former took some action against Ulpian 274 Gualandi (1963) 2.200–1; d’Ors (1942–3) 42–3; contra Mommsen (1870, 1904–13) 2.16853; Karlowa (1885–1901) 2.784; Fitting (1908) 97; P. Krueger (1912) 238123 275 Ch.9 n.122–32 276 Lenel (1889) 2.9312 277 Mommsen (1904–13) 2.169 278 Liebs (1987a) 176–82 has a good discussion 279 Zonaras 12.15; Zosimus 1.11.2 280 HA Antoninus Heliogabalus 13–5 281 Herodian 5.7.3. See Dušani´ c (1964) 282 Herodian 5.7.1–3 283 Dio 79.21.1; Herodian 5.8.8; HA Ant. Heliogab. 17.4–7 284 The name Ulpicianus is otherwise unattested. The passage is made up of a series of jokes designed to mislead: Liebs (1987a) 177 285 Liebs (1987b) 176

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as a supporter of Alexander’s. Yet Ulpian probably held office under Elagabal, at least for a time. Many respectable people did. He is attested as prefect of supply (praefectus annonae) only three weeks into Alexander’s reign,286 and may have held this office, or another prefecture, such as police, under Elagabal.287 The office is not mentioned in the inscription honouring Ulpian in Tyre,288 but, given that Elagabal’s memory had been condemned, one would not expect it to be. The Augustan History says that Elagabal conferred the prefecture of supply on very low creatures, who reduced the supply of oil, which Alexander restored.289 Victor says that Alexander retained Ulpian in the praetorian prefecture, to which Elagabal had appointed him. He also recalled Paul from exile and by his treatment of these lawyers showed his zeal for equity and his attitude towards the best people.290 Victor cannot be right as regards the praetorian prefecture. Elagabal’s two praetorian prefects, who remained loyal to him, were killed at the same time as their master.291 But he may have run together two reports, each correct in itself: that Alexander retained Ulpian as prefect and that he was praetorian prefect under Alexander.292 Ulpian may have held a lesser prefecture, such as police293 or supply, under Elagabal,294 and Alexander kept him in this post. There was some continuity between the officials of Elagabal and Alexander. Valerius Comazon, urban prefect twice under Elagabal, later dismissed, returns as urban prefect for the third time under Alexander.295 Rescripts of 3 February 296 and 19 February 222,297 in the last month of Elagabal’s rule, seem to be by the same hand as those of the first months of Alexander.298 Indeed a text of 30 December 218,299 preserved in the epitome of the Gregorian code, is apparently in the same style. So Alexander’s first secretary for petitions had held office under Elagabal and may have held the office for most of Elagabal’s reign. The replacement of Elagabal by Alexander was the result of a coup. But it did not amount to a change of dynasty, let alone a revolution. 286

CJ 8.37.4 (31 March 222) Liebs (1987b) 181 mentions a possible prefecture of police followed by supply 288 AE 1988.1051 289 HA Sev. Alexander 22.2 including a barber named Claudius: HA Ant. Heliogab. 12.1 290 Victor, Caes. 24 291 Dio 80.21.1 292 Liebs (1984) 443 293 This (appointment as praefectus vigilum) would have to be before 220: Baillie Reynolds (1926); Liebs (1987a) 181 294 There is room for a prefect of supply in 220/1: Pavis d’Escurac (1976) 359f. 295 Hanslik (1939); PIR1 V 42; Pflaum (1960–1) no. 290; Howe (1942) 74 no.30 296 297 CJ 9.1.3 (3 Feb 222) CJ 4.44.1 (19 Feb 222) 298 Honoré (1994) 95–8 (secretary no.6); Liebs (1997) §428.6. Liebs calls him Ulpianus II and he may be the author of ‘Ulpiani’ Pandectarum libri X and liber singularis, a work wrongly attributed to Domitius Ulpianus in Justinian’s Florentine Index 24.7 but whose author could have been another Ulpianus. This might explain the statements in Eutropius, Breviarium 8.23, Festus, Breviarium 22, and HA Severus Alexander 26.5 that ‘Ulpianus’ is said to have been head of a bureau under Alexander: nam et consiliarius Alexandri et magister scrinii Ulpianus fuisse perhibetur 299 Epit. Cod. Greg. Herm. Vis. 14.1 (30 Dec 218) 287


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According to the Augustan History, ‘some say that Paul and Ulpian were made prefects by Elagabal, others by Alexander.’300 The author does not specify that they were made praetorian prefects. We know, however, that Alexander made Ulpian praetorian prefect in 222.301 Elagabal may have conferred the same honour on Paul if we suppose that the Julia Paula whom he married in 219 was the lawyer’s daughter.302 In that case Paul will have been banished when Elagabal divorced Paula in 220 and Victor’s statement that he was restored by Alexander becomes plausible. Elagabal made Paul praetorian prefect and later banished him. He appointed Ulpian, who was junior to Paul, to a lesser prefecture. Alexander restored Paul, who was certainly alive in his reign,303 and made him one of his councillors.304 He initially kept or reinstated Ulpian as prefect of supply but soon promoted him to the praetorian prefecture. The career structure secretary (for petitions)–prefect (for supply) was not unusual.305 On 31 March 222 a rescript states the law ‘according to a reply (responsum) of Domitius Ulpianus prefect of supply, lawyer, and my friend.’306 ‘Friend’ emphasizes that the person mentioned enjoys the emperor’s confidence. Its technical meaning is that of a person admitted, or who would if present be admitted, to greet the emperor at his morning salutation.307 The prefecture of supply demanded administrative competence.308 Just over eight months later Ulpian has been promoted praetorian prefect. A rescript of 1 December 222 tells the owner of a warehouse, a victim of breaking and entering, to approach the provincial governor, who, if he thinks a heavy punishment is called for, will send the culprit to ‘Domitius Ulpianus, praetorian prefect and my parent.’309 Parens can be used in rescripts both of real parents and of earlier emperors. Indeed Alexander does just this in a rescript of 3 December 222.310 The term as applied to Ulpian is highly honorific, and supports the idea that his relation to Alexander was close. Both offices are also attested by a column in Ulpian’s honour found in Tyre.311 The promotion from prefect of supply to praetorian prefect was not unusual.312 Praetorian prefects, especially on the civil side, were mainly 300

301 CJ 4.65.4 (1 Dec 222) HA Severus Alexander 26.5 ILS 477: Iuliae Corneliae Paulae Aug(ustae). There is a marble bust of her in the museum at Ephesus (Inv. no.1566). Mentioned as possible by Syme (1980) 99 = (1984) 1410 and accepted by Liebs (1997) §423 303 D 31.87.3 (Paul 14 resp.) 304 HA Severus Alexander 68.1 305 Coriat (1997) 271 306 CJ 8.37.4 (31 March 222: secundum responsum Domitii Ulpiani praefecti annonae iuris consulti amici mei). 307 Oehler (1894); Crook (1950) 163136; Grosso (1968b) 207f.; D 49.1.1.3 (1 appell.) cf. D 37.14.17 pr (Ulp. 11 leg. Iul. Pap.) 308 Pavis d’Escurac (1976); Coriat (1997) 216 309 CJ 4.65.4.1 (1 Dec 222: ad Domitium Ulpianum praefectum praetorio et parentem meum) 310 CJ 7.66.2 (3 Dec 222: bona ad successorem pertinere parentibus meis placuit) 311 AE 1988.1051 312 Howe (1942) 16f.; Modrzejewski–Zawadski (1967) 565, 610–1; Ensslin (1954); Reinmuth (1967). 302

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recruited from prefects of Egypt, prefects of supply, and prefects of police (praefecti vigilum). An able secretary for petitions might hope to proceed to a prefecture and, exceptionally, to a praetorian prefecture. Papinian became praetorian prefect in 205 three years after his tenure of office as secretary for petitions, which ended in 202.313 Modestinus was secretary for petitions in 223–5, and then prefect of police, probably about 228.314 The structure of Ulpian’s career conforms broadly to the pattern for the period. Ulpian’s promotion to the praetorian prefecture is likely to have been procured by Valerius Comazon315 and Julia Maesa, who was still alive at the time, rather than Julia Mammaea.316 It occurred in two stages. First, he was placed over the two existing praetorian prefects, Julius Flavianus and Geminius Chrestus, who had been appointed at the beginning of Alexander’s reign, in a supervisory role. This was to repeat a mistake that had ended in disaster when Papyrius Dionysius was similarly promoted in the reign of Commodus.317 Flavianus, praetorian prefect under Elagabal, was now prefect for the second time, while Chrestus had governed Egypt in 219–21. Later Ulpian had Flavianus and Chrestus put to death and became sole prefect.318 This may have happened in the summer of 222,319 but an autumn date is not impossible. The number of rescripts increases from September onwards, which points to a more stable administration. A new secretary for petitions, replacing the secretary left over from Elagabal’s reign, comes into office not later than 15 October 222.320 Ulpian now had for a time the sort of pre-eminence formerly enjoyed by Plautianus. Though, unlike Plautianus, not related to the imperial family by marriage, so far as we know, he was Mammaea and Alexander’s man of confidence. The details of Ulpian’s spectacular rise and fall are not clear. Dio, as summarized by Xiphilinus, speaks of him with some disdain. When he became emperor Alexander entrusted to ‘one Domitius Ulpianus’ the command of the praetorians and the other affairs of state. Dio was absent from Rome at the time and excuses himself for not giving a full account of affairs there. Returning to Ulpian, he says that he corrected many of the abuses introduced by Elagabal, but put Flavianus and Chrestus to death in order to succeed them. Not long afterwards he was attacked by the praetorians at night and killed, though he ran to the palace and took refuge with the emperor and his mother.321 313 Jörs (1894); PIR2 A 388; Pflaum (1960–1) no.220; Kunkel (1967) 224; Honoré (1994) 76–81; Liebs (1997) §416 314 Brassloff (1912) 668: PIR2 H 112; Kunkel (1967) 259; Honoré (1994) 101–7 (secretary no.8) 315 Syme (1972) 407 = (1984) 865 316 Zosimus 1.11.2 317 Pflaum (1960–1) 472 no. 181; Liebs (1984) 444; (1987a) 175 318 Dio 80.2.2; Zosimus 1.11.3; Zonaras 12.15 319 Modrzejewski–Zawadski (1967) 565 cf. Jardé (1925) 37; Howe (1942) 100 320 It now appears that this secretary (Honoré 1994, pp.98–101) may have been Licinius Rufinus: Millar (1999) 90–108 321 Dio 80.2.2–4


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Epagathus, a powerful figure of freeman stock, who had engineered Ulpian’s downfall, was then sent to Egypt as prefect, since there might have been a disturbance in Rome had he been punished there. He was later taken to Crete and executed.322 Zosimus has a slightly different account.323 The young Alexander’s good disposition aroused hopes for his reign. He appointed Flavianus and Chrestus prefects. They were not without experience in military affairs and were highly capable in civil matters. But Mammaea placed Ulpian over them as a supervisor and virtually a joint emperor. Ulpian was an outstanding lawyer, able to handle current affairs and foresee future needs. In disgust at Ulpian’s promotion the soldiers secretly plotted to do away with him. Mammaea heard of this and made away with the plotters. Ulpian then became sole prefect. But he was suspect to the troops for reasons which Zosimus cannot accurately explain, since historians differ on the matter. A revolt occurred and he was attacked by the praetorians at night. He made for the palace and the protection of Alexander and Mammaea. The soldiers followed and the emperor could not save him. Zosimus’ account is plausible and can be reconciled with Dio’s. To put Ulpian over Flavianus and Chrestus was an unwise measure and must have aroused great resentment. Possibly the demoted prefects planned to do away with Ulpian, so that he and Mammaea may have thought that a pre-emptive strike was called for. On the other hand Flavianus and Chrestus may, like Papinian, have been charged with some offence, found guilty, and executed. Though Dio, who wrote when Mammaea was still alive, does not mention it, Zosimus is surely right in attributing Ulpian’s brief ascendancy to Maesa and Mammaea. The evidence of the Augustan History on this point has also, with due caution, to be taken into account. The author says that Alexander regarded Ulpian as his guardian, at first against his mother’s wishes. Later she was grateful to him for assuming that role.324 Perhaps Mammaea at first favoured Flavianus and Chrestus, then switched to Ulpian. In a later passage the HA says that early in Alexander’s reign his wise councillors (largely imaginary, but they include Paul and Ulpian) were brushed aside by a band of evil men.325 These evil councillors (presumably including Flavianus and Chrestus) were killed and driven away. The good councillors then took over. The various accounts agree in substance. Unlike Flavianus and Chrestus, Ulpian had no prestige with the army. His qualifications were purely civil. Even lawyer-emperors (Galba, Macrinus) did not last long. How long was he 322

Dio 80.2.3 Zosimus 1.11.2–3 cf. Syncellus, Chron., p. 437 Mosshammer; Jörs (1903) 1437 324 HA Severus Alexander 51.4 325 HA Severus Alexander 68.1: et hos quidem malorum cohors depulerat, quae circumvenerat Alexandrum primis diebus. The author has a story along similar lines about the evil ‘Turinus’ at 35.5–36.3 323

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in power? He may have been murdered as early as 223.326 The argument for this date depends partly on Dio’s statement that he was killed ‘not long after’ the removal of Flavianus and Chrestus327 and partly, it was supposed, 328 on the album of Canusium, dated October 223.329 The album mentions among senatorial patrons of the town T. Lorenius Celsus, M. Aedinius Iulianus, L. Didius Marinus, and L. Domitius Honoratus. It was argued by Pflaum that these were the current and recent ex-praetorian prefects. Since Ulpian was not mentioned, he must have been dead when the album was inscribed. Salway has, however, shown that the persons concerned were chosen as patrons because of their ability to advance the interests of Canusium. They are listed in an order that probably reflects their precedence as members of Alexander’s council. There is no implication, and in three of the cases no evidence, that they were at the time or had been praetorian prefects.330 The album has therefore no bearing on whether Ulpian was still praetorian prefect in October 223. Another sliver of evidence is that Dio says that during Ulpian’s lifetime a quarrel arose between the people of Rome and the praetorian guards, who fought for three days with loss of life on both sides. When the soldiers, who were getting the worst of it, threatened to set fire to buildings the civilians reluctantly came to terms with them. These disturbances seem to be those recorded by the Chronicon Paschale for three successive days and nights in 223.331 Ulpian’s murder must have occurred after these disturbances, and, if he took steps to discipline the soldiers, may in some way have been connected with them. The murder must in any case have taken place before the middle of 224. A papyrus published in 1966 shows that Epagathus, who was largely responsible for Ulpian’s downfall, and was then sent to Egypt as prefect, was in office there in May or June 224.332 Consistently with this, the lawyer may have been assassinated in late 223 or early 224. It was earlier supposed that Ulpian survived until 228.333 I shared this view,334 which Xiphilinus’ summary of Dio seemed to support. Dio, excusing himself for his thin account of the early years of Alexander, explains that, after an illness, he went to govern his province of Africa, then, on returning to Italy, was sent as governor first to Dalmatia, then to upper Pannonia. The praetorians complained to Ulpian about Dio, since he ruled the Pannonian troops with a firm hand and the praetorians feared that they would be subjected to 326 Grosso (1968b); Syme (1970/1984); Coriat (1997) 233; Liebs (1987b) 110–8: Liebs (1997) §424 p.177 327 Dio 80.2.2 328 Pflaum (1948) 37f.; Modrzejewski–Zawadski (1967) 565–611; Mercogliano (1993) 400–7 329 CIL IX 338; Salway (2000) 330 Salway (2000) 168 331 Chron. Pasch. ann. 223: διανυκτρευσις 332 P.Oxy. 2565: Barns–Parsons–Rea–Turner (1966) 102; Grosso (1968b) 333 Still supported by Bauman (1995) 334 Honoré (1962a) 194, 207. So did virtually all scholars except Howe (1942) 100f.


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similar discipline.335 Presumably they meant to warn Ulpian against attempting to discipline them. On another reading of Xiphilinus’ abbreviation of Dio, the praetorians, besides complaining about Ulpian, also complained about Dio.336 Alexander, however, disregarded their complaints and appointed Dio to a second consulship, with the emperor himself as his colleague.337 They were consuls together in 229. From the summary of Dio one would infer that his second consulship followed closely on the complaints to Ulpian. In that case Ulpian must still have been alive about 228. But, given that the précis of Dio is highly compressed, there may have been a long interval between the complaints to Ulpian about Dio and Alexander’s granting him a second consulship, presumably in 228. In that case Dio may have held his governorships of Africa and Dalmatia under Elagabal and his career is one of those that illustrates the continuity in office holding from the reign of Elagabal to that of Alexander. The supposed praetorian complaints to Ulpian about Dio’s conduct as governor of Pannonia are nevertheless mysterious, unless their point was to forestall disciplinary measures against the praetorians in Rome by Ulpian himself. It is impossible to be sure, but my guess is that Ulpian’s sole prefecture ran from October 222 to some time after October 223 and covered at least the period of office of secretary for petitions no.7,338 to whom we owe ninety-six rescripts, the highest number that survive for a single year. No.7 may have been Paul’s pupil Licinius Rufinus.339 The new secretary no.8, who took office from the end of October 223, was probably Ulpian’s pupil Herennius Modestinus.340 It would not be surprising if Ulpian had a hand in his appointment. The period during which Ulpian was effectively in charge of the imperial administration turns out to have been only a year or eighteen months. According to the Augustan History Alexander was a good emperor because he treated Ulpian as his mentor and governed chiefly according to his advice.341 The author’s general strategy is to contrast the good Alexander with the evil Elagabal and to argue, with Honorius in mind, that the quality of a young emperor’s rule depends on his being surrounded by good advisers, in Alexander’s case by Ulpian. At first sight this assessment is absurd. In the time available the most Ulpian could have done was to give a shape to the civil administration that to some extent persisted after he was dead. Some abuses of Elagabal’s reign were remedied.342 Buildings and shrines to the traditional Roman gods were restored.343 Some of those dismissed by Elagabal were 335

Dio 80.4.2 Cleve (1988) 122. On this reading the complaints would have to have come from the Pannonian troops 337 Dio 80.5.1 338 Honoré (1994) 98–101 339 Millar (1999) 104 340 Honoré (1994) 101–7 341 HA Severus Alexander 51.4 342 Dio 80.2.2 343 Herodian 6.1.3 336

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rehabilitated.344 A great many rescripts were issued. For the rest, there are parallels between what Herodian, who does not mention Ulpian, reports and an Augustan History version that attributes much of what Herodian says to Ulpian but adapts it to the administrative practice of the late fourth century. According to Herodian, who presents Alexander’s reign in a pro-senatorial light, civil business and administration was now put in the hands of men of eloquence and those skilled in law. There was a council of sixteen senators.345 The docile Alexander was encouraged to spend most of the day on judicial duties.346 In the Augustan History version the emperor always devoted the afternoon to signing and reading letters in the presence of the heads of the imperial bureaus for letters, petitions, and records (scrinia).347 He gave instructions that the heads of the bureaux and learned lawyers who were loyal to him, of whom Ulpian was then the chief, should examine and order state business and litigation before the business or lawsuit was submitted to himself. He issued no constitution without the advice of twenty learned lawyers and at least fifty men of eloquence, so that the quorum should not be less than that for a resolution of the senate.348 Herodian says that Julia Mammaea put the palace under strict guard so that Alexander was isolated from potentially corrupting friends and bad influences. The Augustan History version takes the form that Alexander insisted on Ulpian being present at private audiences and when he was sitting as a judge.349 He granted no one a private audience except Ulpian.350 According to Herodian, Alexander ruled without putting people to death, even those guilty of serious crimes, and executed no one without trial.351 A rescript of 11 April 223, which falls in Ulpian’s period of ascendancy, announces a policy of restricting prosecutions for treason and, in particular, refusing to treat a judge’s disregard of a constitution as treason.352 Appointments were made according to precedent, and on the advice of those best qualified to judge,353 decency prevailed.354 The Augustan History, citing Herodian, says that he never put a senator to death.355 The various embellishments that the History adds—for instance that Alexander freed himself from the influence of eunuchs356 and enjoyed Ulpian’s stimulating conversation at dinner357—are inventions that can safely be disregarded. But that Ulpian contributed in various ways, mainly but not wholly by his writings, to the ideal of 344

345 Herodian 6.1.2 cf. 7.1.3 Herodian 6.1.3 347 HA Severus Alexander 31.1 Herodian 6.1.4 348 HA Severus Alexander 16.1 cf. CTh. 6.4.9 (11 Apr 356) which prescribes a quorum of fifty 349 350 HA Severus Alexander 31.1–3; 67.2 HA Severus Alexander 67.2 351 Herodian 6.1.7; 6.9.8 352 CJ 9.8.1 (11 Apr 223: etiam ex aliis causis maiestatis crimina cessant meo saeculo, nedum etiam admittam te paratam accusare iudicem propterea crimine maiestatis, quod contra constitutionem eum dicis pronuntiasse) cf. CJ 4.1.2 (27 March 223) 353 354 Herodian 6.1.3–4 CJ 9.9.9 (26 Jan 224: castitas temporum meorum) 355 356 HA Severus Alexander 52.2 HA Severus Alexander 67.1 357 HA Severus Alexander 34.6 346


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constitutional government, of which the mythology of Alexander’s reign is an expression, is not in doubt. It seems to me that the Augustan History is right in treating Ulpian as the person who set the tone for Alexander’s reign so far as law and civil administration are concerned.358 After his death others, such as Modestinus, carried his cosmopolitan and humanist ideas forward. As in the case of Papinian and Macrinus, who did not survive long when Severus and Caracalla were no longer there to protect them, the troops needed little provocation to turn against a lawyer-prefect who lacked military clout.359 Military weakness destroyed Ulpian and in the end Alexander Severus too, but on the civil side the lawyer’s legacy and that of the dynasty were lasting. According to Syme, Ulpian ‘deserted the routine pursuits of legal erudition, insinuated himself into the favour of the court and responded to the call of duty or hazard, or the promptings of an eager ambition’.360 This verdict seems perverse. Central to Ulpian’s thinking as a lawyer was his commitment to the cosmopolitan and egalitarian trends of the Severan age and to the dynasty that favoured them. He saw it as his mission to put the ‘true philosophy’361 into practice, so far as he could, given the constraints of positive law. Like Irnerius, Grotius, Savigny, and other great lawyers he combined teaching and practice with government office. He was a lawyer and intellectual in government. Chapter 3 develops this theme is more detail. I end with a summary of Ulpian’s probable career. (Gnaeus) Domitius (Annius) Ulpianus was born about 170, a citizen of Tyre and a Roman citizen by birth. From August 202 at latest until May 209 he was drafting rescripts for Severus and Caracalla. At least from 205 onwards he did so as secretary for petitions (procurator a libellis). He was a member of Papinian’s council of advisers when Papinian was praetorian prefect (205–11). He did a good deal of teaching, which included public disputation. He on occasion gave legal advice to the urban praetor, the praetor for trusts (praetor fideicommisarius) and the praetor for guardianship (praetor tutelaris) in Rome. He accompanied Severus and his sons on the expedition to Britain in 208–11. He took Caracalla’s side in the conflict with Geta and was close to the Syrian princesses. His outlook was attuned to the cosmopolitan ideology of the Antonine constitution of 212. In the light of this ideology he undertook in 213–7 a large-scale restatement of Roman law in some 217 books. Under Elagabal he may have been prefect of supply (praefectus annonae). Alexander retained or reinstated him in this post in March 222 and promoted him later in 222 to supervise the two existing praetorian prefects, Flavianus and 358 Marotta (2000) 76f. makes a more ambitious attempt to detail Ulpian’s programme of reform. See also Champlin (1978). Against a leading role for Ulpian see Cleve (1988). On Alexander see Jardé (1925) 359 Syme (1972) 408f. = (1984) 867f. 360 Syme (1972) 408 = (1984) 868 361 D 1.1.1 pr (Ulp. 1 inst.); below ch.3

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Chrestus. He had Flavianus and Chrestus executed about October 222 and became sole praetorian prefect. In that capacity he remedied some of the abuses of Elagabal’s reign and improved the civil administration. Some time between October 223 and May/June 224 the praetorian troops mutinied, with Epagathus playing a leading role, and Ulpian was murdered. When attacked he fled to the palace but Alexander and Julia Mammaea were unable to protect him.

2 The Oral Style T H E study of Ulpian’s Latin style1 helps to settle which of the works attributed to him are authentic2 and how far texts that are said to have been wholly or partly changed by later editors are genuine. To the extent that his style varies or develops over time, it also helps to decide the order in which he composed his works. Moreover, since style and thought cannot in the end be kept apart, it throws light on his character and outlook. In settling what is distinctive about Ulpian’s style I have confined myself to comparing him with other legal writers. On the whole lawyers’ prose tended to be old-fashioned, to evolve less quickly than lay or religious writing. Obviously Ulpian, like other lawyers, was influenced by the authors he had read, in his case notably by Cicero and Quintilian.3 In this regard Nörr’s study of citations of Cicero by the classical lawyers is of great value.4 A main concern of this book is however to find criteria for identifying the texts that are genuinely Ulpian’s. For this purpose it is better to start from a limited and manageable body of legal texts. An earlier generation thought that the Roman lawyers wrote in a more or less uniform style.5 But Ulpian’s prose differs in important ways from that of most other legal authors. It is true, as Rodger points out,6 that some allowance must be made for the fact the excerpts in Justinian’s Digest from Ulpian’s work usually form the basic account of a legal topic such as deposit, while the material included from, say, Paul or Pomponius is more marginal. Paul or Pomponius may have said much the same thing in the basic account they gave. But often the disproportion between Ulpian’s use of ordinary Latin expressions and that of other authors cannot be accounted for on that basis. The differential use of these ordinary expressions makes passages by Ulpian, in my view, fairly easy to recognise. 1 Earlier efforts by Pernice (1885), Volterra (1937). For Ulpian’s use of Greek see ch.3 n.119–46 2 Mostly collected in Lenel (1889) 2.379–1200, 1230 nos 5–8. Rescripts drafted by him in Honoré (1994 diskette) 96–201 omitting 122–7, 135–7, 168, 174 3 Kalb (1890) 126; Crifò (1985) 606, 611–2 4 Nörr (1978) 5 Savigny (1814) 157; Beseler (1910–30) 3.3 cf. Rodger (1983) 383; but Pernice’s study of Ulpian (1885) assumed the contrary and Kalb (1890) 135 pointed out that, while Ulpian likes certain unusual expressions, Paul avoids anything of the sort, so that it is virtually impossible to assign any text to Paul on grounds of style alone 6 Rodger (1983) 386–8

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2. The Oral Style

Many of the features that make his style distinctive stem from the fact that, apart from the rescripts he composed on behalf of the emperor Severus, his works were in my view virtually all dictated. It is no news that, as Kalb noticed,7 legal authorship is often closer to speech than writing, but Ulpian is in this respect exceptional. This may seem surprising, since only an author with a very clear mind can dictate on the scale on which Ulpian seems to have done without devoting a great deal of time to correcting the dictated version. But to compose some 217 books in the short period of five, or at most six, years, dictation was called for. It would also, given the rush, have been impossible to spend much time revising the text. So what we have is, in my view, largely what Ulpian dictated. As will be seen, the distinctively Ulpianic turns of phrase are often those one would expect to come across in speech rather than writing. Moreover the fact that the same phrases recur again and again points to oral composition. They make his work unexciting, as Pernice pointed out,8 but at the same time reassuring. They convey a sense of orderly progression from topic to topic. If Ulpian had composed in writing or thoroughly revised the text dictated his work would be more varied. One drawback of dictation9 is that it can lead to slips as a result of mishearing. For instance the scribe hears alicui as alii.10 But Ulpian had a clear idea of what he wanted to say and his train of thought is usually easy to follow. He has of course some idiosyncrasies: a liking for superlatives and a preference for the future over the present tense, which is also a mark of the praetor’s edict.

I. METHOD

This study gives pride of place to texts attributed to Ulpian in Justinian’s Digest. The texts from other sources are treated as supplementary. The Digest texts are provisionally regarded as authentic, though what Ulpian wrote has sometimes been wrongly copied or consciously changed. Justinian’s compilers had authority to make changes, generally referred to as interpolations,11 7 Kalb (1890) 126; Crifò (1985) 605, who draws attention to Vico’s parallel between the language of the comedians and the lawyers 8 9 Pernice (1885) Yaron (1987) 16 10 D 8.5.8.5 (17 ed: alii hactenus facere licet should be alicui hactenus facere licet) cf. 15.2.1.10 (29 ed: recte actum est for recte actum esset); 9.1.1.7 (18 ed: dolore concitatus for dolone concitatus; 3.1.1.5 (6 ed: a Carfania for a C. Afrania). All seem to stem from mishearings and there must be others. I am grateful to Detlef Liebs for these examples. For dictation error in the context of the Vindolanda Tablets see Bowman–Thomas (1994) no.234: feramus tempestates et hiem (for etiam) si molestae sint 11 For the view that I pay insufficient attention to interpolations see Crifò (1985) 606–7. But when suspect expressions are concentrated in particular authors they are unlikely to have been interpolated by Justinian’s compilers. Suppose these turns of phrase are due to the interpolators. Then either they will appear at random throughout those texts on which the committee in

2. The Oral Style

39

but their authority was confined to shortening the texts and ensuring that they read smoothly and agreed with other legal texts. We must be on the lookout for changes, but not for the licence that a modern editor would take for granted in preparing a new edition of a law book. The changes detected, for instance by Kalb,12 in texts attributed to Ulpian, do not distort the picture of style and outlook that emerges if we take what is attributed to him largely at face value. When interpolation (interp.) has been suspected I have referred to a 1927 collection of suspect words and phrases by Citati, though that now needs updating.13 Texts of Ulpian from outside the Digest, in particular the rescripts that in my view he composed for Severus and Caracalla in AD 202–9, are initially disregarded for purposes of the analysis of his style. The argument for attributing them to Ulpian14 rests in part on how far they resemble Ulpian’s writings in his own name. It would be question-begging, when fixing the elements of his style, to assume that he composed them. Moreover they are instances of written, not oral composition. For purposes of this study there has to be a way of deciding when a specific word or phrase has been used. The method adopted will emerge from one or two examples. Take the phrase parvi refert (it makes little difference). The phrase is taken to have been used whether the formulation runs parvi refert, parvi autem refert, parvi enim refert, or parvique refert. These all count as instances of parvi refert. But the forms parvi referre or parvique referre are not counted as instances of parvi refert, because they report an opinion in indirect speech rather than stating it directly. Again, Ulpian’s inversion of the normal word-order is important. So the phrase et ait (Pomponius etc.) that Ulpian often uses in giving the view of another author is not taken to extend to et (Pomponius) ait. Nor does erit dicendum extend to dicendum erit. But the adjective aequissimus (‘fairest, most equitable’) is taken to include the feminine and neuter forms aequissima and aequissimum, as in aequissimum est (‘it is most equitable’), since the point being made concerns the author’s fondness for the superlative form of aequus rather than for any particular inflection of the word. Anther point concerns words and phrases that Ulpian attributes to other authors.15 Are these to count as Ulpian’s or those of the other author? On the whole Ulpian’s habit is to rewrite in his own words what the other author question worked, which they do not, or they will represent a deliberate decision to use them in Ulpian. For that the only half-reasonable explanation would be that they had established that these were typical Ulpianisms that would make their interpolations seem more authentic. Schulz (1951) is perversely radical about a text of Ulpian the genuineness of which was confirmed by a papyrus. Cf. Stroux (1950) 12 Kalb (1888) 68–84. As to other supposed changes he was sometimes wrong, partly through his belief that all classical authors lived in Rome and partly because accurate means for comparing them were not then available: Kalb (1888) 68 n.1 13 Citati (1927). Fuller references to indivdual texts in Ind. Interp. (1929–35) which also needs updating 14 Above ch.1 n.192–225; Honoré (1982) ch.8; (1994) 81–6 15 Crifò (1985) 606

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2. The Oral Style

says.16 Take as an example parvi refert. Ulpian uses parvi refert in 28 Digest texts against at most two in other authors.17 But in seven texts Ulpian says of another author such as Pomponius that the other author thinks that so-andso makes little difference (e.g. parvi referre putat . . .).18 We should not assume that in these seven cases the other author really used the phrase parvi refert rather than something equivalent that Ulpian converts into parvi referre. So these seven texts, quite apart from the fact that they are in the infinitive form parvi referre, are not counted as instances where either Ulpian or the other author has used the phrase parvi refert. On the other hand when Ulpian attributes the use of the phrase to another author in direct speech, as he does of Julian in one text, this use can properly be assigned to the author he cites.19 Sometimes Ulpian, instead of rewriting his source, copies another author without mentioning him.20 In that case the words and phrases are attributed to both authors, and are not counted as distinctively Ulpianic. Take, again the superlative aequissimus (‘most equitable’). Ulpian accounts for 80 Digest mentions of it out of 86, the others coming from Gaius and Paul. There is also one mention outside the Digest, in Gaius’ Institutes. But in eight of Ulpian’s 80 texts he attributes the use of aequissimus in indirect speech to Labeo, Pomponius, Papinian, or Julian. Even if these eight texts were treated as not being Ulpian’s the use of aequissimus would be overwhelmingly Ulpianic. But they need not in my view be so treated, since if these four authors really used aequissimus the word should occur at least once or twice in texts taken from their works, which it does not. It is rather that Ulpian has turned what they said (e.g aequum est) into, say, aequissimum est. With nisi forte (‘unless perhaps’), another favourite, the position is similar. Here Ulpian has 95 Digest mentions out of 117, but four Ulpian texts read as though nisi forte were a direct quotation from another author.21 If these are excluded from the Ulpian count, which is then 91, and added to the citations directly taken from other authors, which then come to 26, Ulpian still has more than three-quarters of the surviving texts with nisi forte. This is in general enough for the expression to be counted as Ulpianic. But for a reason that will be explained nisi forte is not taken as a distinctive mark of our author’s style.

16 There is an example of his doing this with a rescript of Pius in D 49.1.14 pr compared with D 49.1.5.1 (Marci. 1 appell.); Yaron (1987) 7 17 Below n.201 18 D 4.8.7 pr (13 ed.); 4.9.1.7 (14 ed.); 14.4.5.7 (29 ed.); 7.1.12.4 (17 Sab.); 38.1.7.1 (28 Sab.); 47.2.7.3 (41 Sab.) 19 D 34.3.5.2 (23 Sab: et parvi, inquit, refert ) 20 e.g. D 37.8.1 pr (Ulp. 40 ed.) = D 38.6.5 pr (Pomp. 4 Sab.); D 50.16.177 (Ulp. 47 Sab.) = D 50.17.65 (Iul. 54 dig.); Crifò (1985) 606 21 D 6.1.1.2 (16 ed: Pomponius); 17.2.63.3 (31 ed: Marcellus); 19.1.11.18 (32 ed: Iulianus); 37.10.1.8 (41 ed: Pomponius)

2. The Oral Style

41

In general the method followed here is the same as in my other studies of the Roman legal authors.22 Words, phrases, and constructions are picked out that distinguish Ulpian’s prose from that of other lawyers, especially contemporaries. How distinct they must be to count as marks of his style, as fingerprints, no algorithm can settle. To some extent a scholar must go by his feeling for the nuances of language and the personality that lies behind the words. But discipline must accompany intuition. The material consists, as stated, of the texts attributed to Ulpian in Justinian’s Digest. They amount to between 40 and 42 per cent of the whole, according to whether the count is of words or lines.23 To qualify for inclusion in the list of marks of style the convention I adopt is that the word or phrase must occur in Ulpian’s Digest texts three times more often than in all other legal writers combined. Ulpian’s uses must amount to three-quarters of the whole. But the use must not be contextual in the way in which technical legal terms can be. For example, in texts dealing with marriage one expects nuptiae (‘marriage’), to occur frequently. If the passages dealing with marriage come largely from one author, that does not make a frequent mention of nuptiae a mark of his style. The next stage is to eliminate words and expressions that occur in Ulpian not much more frequently than in one of his contemporaries. The convention I have adopted here is that the word or expression must appear in Ulpian’s texts at least four times as often as in the contemporary’s work. The texts of Paul, a contemporary, amount to about 17 per cent of the Digest as against Ulpian’s 40 to 42 per cent. We have about two and a half times as much Ulpian as Paul. So if there are twenty texts of Ulpian there should not be more than two of Paul if the word or phrase is to be listed as a mark of Ulpian’s style. A single text from another writer does not, however, rule out an expression as Ulpianic provided that Ulpian’s texts amount to three-quarters of the whole. An example of how this guideline works in practice is provided by the phrase nisi forte already mentioned. Though Ulpian has over three-quarters of the nisi forte texts in the Digest there are five nisi forte texts in Digest fragments from Marcellus, who provided just over 1 per cent of the Digest material. So Marcellus is relatively fonder of the phrase than Ulpian. Indeed, since Ulpian in his youth annotated Marcellus’ work and uses Marcellus extensively as a source in his commentary on the reading praetor’s edict, it may well be that Ulpian’s liking for the phrase derived from Marcellus. The phrase is one of which Ulpian makes free use but it is not distinctively Ulpianic. These rough and ready guides do not rest on any statistical theory24 but they yield results that fit common sense and are fairly robust. They are guidelines, not rigid rules. 22 23 24

Honoré (1978), (1981), (1994), (1998) Words 41.56% (Honoré–Menner 1980, intro. § 4); lines 40.73% (Honoré 1972, 291) Honoré (1978) xv–xvi, 71–6, (1981) x–xiii, cf. Ellegård (1962)

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2. The Oral Style

The delineation of style does not rest on distinctiveness alone. If it did, to catalogue marks of style would be a mechanical process. An author’s style emerges from marks that not only distinguish him from others but also pervade his work and cohere. A distinctive feature may be confined to a particular work or period of writing. In that case it is a mark of the style of that work or period but not of the author’s writing as a whole. This is important when it comes to fixing the order of composition of Ulpian’s works in chapters 7 and 8. Though on the whole his style remains consistent throughout, at times he takes up expressions that he later drops. These passing traits help to settle dates. At first sight it may seem that one-off words and phrases (hapax legomena) cannot throw light on an author’s style. They may however do so in one of two ways. An author may have a liking for unusual words, and an accumulation of one-offs will point to that liking. Or a group of one-offs may have common features other than being unusual. They may, for example, have similar roots. Nothing special turns on the fact that suasor, ‘persuader’, is found in the Digest in only one text, which is attributed to Ulpian.25 But suasus is also an Ulpian one-off,26 which points to a fondness for the root suadere, where other writers prefer persuadere and its derivatives. Again, a number of one-offs may have a similar syntactical function. Little significance attaches on its own to the fact that ceteroquin is found in two Digest texts of Ulpian and no one else.27 But this is only one of a range of conjunctions and linking phrases that are confined, or almost confined, to him.28 Ceteroquin can therefore take its place as part of a pervasive feature of his way of linking sentences and phrases. This leads to the third feature to be looked for in listing marks of style, that they should cohere.29 They should add something to what in the end will be an identikit of the author, not just a lengthy catalogue. Some words and expressions satisfy all three features. They are distinctive, pervasive, and coherent with other expressions. An example is proinde, ‘and so’, used as a conjunction. This occurs 214 times in the Digest in Ulpian’s work and at most four times (perhaps only once) in that of other lawyers.30 It is not only a distinctive but a pervasive feature of his writing. It occurs in twelve different works attributed to him and in 48 different books out of 81 in his On the Edict. It also fits a general feature of his writing, for it illustrates his insistence 25

D 4.4.13 pr (11 ed.) D 9.2.9.1 (18 ed.). Suasio in CJ 5.62.1 (1 May 204) is also hapax for legal authors and imperial constitutions. This affords some evidence that Ulpian was the secretary who composed this rescript for Severus and Caracalla 27 28 Below n.121 Below n.108–37 29 Frezza (1983) 413 points out that coherence of style does not serve to identify the author Ulpian with the praetorian prefect of Alexander’s reign. All it shows is that a certain body of work can plausibly be attributed to a single author 30 Below n.42–7 26

2. The Oral Style

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on linking a sentence to what precedes. But, in building up a picture of Ulpian’s style proinde, which occurs 214 times, differs only in degree from the term suasor, which occurs only once.31 That fits the image of a writer who prefers the shorter word suadere for persuadere and its derivatives. One example of this preference for the shorter word is the expression in necem 32 (‘to the detriment’) instead of in detrimentum. In Latin literature, not only in legal writing, in necem is unique to Ulpian.33 Indeed the most apparently isolated one-offs must be listed among potential marks of style, if only because I may not have perceived their bearing on the wider scene. The long, though incomplete, list of marks of style in this chapter assists, but does not foreclose, critical judgment. The use made of marks of style is threefold. Their presence in a text is some evidence of its genuineness. The absence from a work, and to a lesser extent a text, of any mark of Ulpian’s style is some evidence of its spuriousness. The concentration of marks in two or more works is some evidence that these were composed about the same time. But the weight to be put on these inferences varies. The fact that proinde, a pervasive feature of Ulpian’s style, is absent from the Opiniones attributed to him, excerpts from which in the Digest run to several thousand words, is a strong argument against the genuineness of that work. The presence of proinde in De officio curatoris reipublicae, of which we have only five excerpts, favours the genuineness of that work. The absence of suasor and suasus from these works, on the other hand, has no bearing on their genuineness. The prime test of genuineness must be internal consistency. Chapter 10 argues that five works attributed to Ulpian in the Digest text headings (inscriptions) are not his. Their style lacks any of the typical marks of his writing. So far as genuine Ulpian works are concerned, they have certainly suffered from mistakes in copying and the deliberate changes made by Tribonian and his colleagues. But in tracking changes it is important to ask whether the style of the suspect text conforms to Ulpian’s general way of writing. A few instances are listed at the end of this chapter where some scholars have, I think, been over-hasty in assuming that Ulpian did not say what the Digest records him as having said. To stress this point is not to deny the importance of the study of interpolations but to emphasize, as most scholars now do, the need for caution in pursuing it. The compilers liked to find precise verbal authority for what they included in the Digest, even if this amounted only to a few words, rather than to rewrite texts.34 What is crucial to the present study 31

Below n.606 All ten texts: D 4.4.13 pr (11 ed.); 49.1.14 pr (14 ed.); 15.1.21 pr; 15.3.10.6 (29 ed.); 38.5.1.6, 19 (44 ed.); 29.4.4. pr (50 ed.); 36.4.5.15 (52 ed.); 44.6.1.1 (76 ed.); 47.20.3.1 (8 off. proc.) 33 Yaron (1987) 7 finds this puzzling 34 e.g. D 9.2.6, 10, 16, 20, 35—all fragments of a sentence attributed to a different author from the main part of the sentence. The compilers did not take the easy course of rewriting the main text because they were not entitled to do so 32

44

2. The Oral Style

is that interpolation by Justinian’s compilers could not account for the concentration of particular suspect words or phrases in the work of a particular author.35 All nine Digest texts with si mihi proponas (‘if you put it to me’) are attributed to Ulpian. Eight of them have been suspected of interpolation.36 Surely the phrase, though suspect in another author, cannot be thought alien to Ulpian? It could only have been introduced into the Ulpian texts alone by a post-classical editor of his work. But there is no solid evidence that his work was re-edited in post-classical times,37 though sporadic glosses or comments on the text were incorporated in it when copied. Even if it was re-edited, why should the editor introduce this phrase? I have occasionally drawn attention to a text that is clearly interpolated or attributed to the wrong author, but there are not enough instances of this sort to cast doubt on the overall picture of Ulpian’s style that the Digest texts present. What, then, are the main features of the writings of the scholar from Tyre who has left so strong a mark on the law of Europe and on countries influenced by European trade, colonization, or settlement? His style is clear, simple, consistent, and personal. It is an oral style, of which the only other clear example in Roman legal literature is Gaius’ Institutes. His writing betrays the fact that he is dictating. He links sentences and phrases so as to make the argument flow, even if this means, as it often does, beginning a sentence with ‘and’ (et).38 If the very ordinary Latin phrases proinde, proinde si, and proinde et si occur 214 times in his work and at most six in that of other authors it is because the linking phrases ‘and so’, ‘and so if’, ‘and so even if’ come naturally when one is talking but are much less natural in written composition. The Latin magis est means ‘the better view is’, a phrase much used by lawyers, including Roman lawyers. But et magis est (‘and the better view is’) is almost monopolized by Ulpian, who has 88 texts out of 102 with this phrase. The reason, again, is that in speech it is natural to add the et, but in writing one inserts a pause, a real or notional full stop, before telling the reader which view is better. Again, quid tamen si (‘but what if’), a natural phrase in speaking, but less at home in a text composed in writing, is found in Ulpian 42 times out of 43 instances.39 Consistently with this oral method, Ulpian prefers short to long words and short clauses to complex syntax. His prose is forceful, direct, and forwardlooking. As in the praetor’s edict, the future tense is favoured. A contract ‘will be’ (rather than ‘is’) valid. He takes pain to avoid clusters of verbs at the end of a sentence, especially verbs drawn from different clauses. So he sometimes puts the direct object after the main verb, and often the participle after the auxiliary. His prime aim is to be clear, and the reader is seldom in doubt what 35

36 Kalb (1890) 133–4 Below n.223; Crifò (1985) 606 Daube’s argument for re-editing (1973) is based on the unfounded prejudice that Paul and Ulpian could not have cared about keeping slave families together 38 39 Below n.48–102 Below n.151 37

2. The Oral Style

45

he means. Lucidity comes at a cost to elegance and variety. His is a plain Latin prose in which familiar phrases recur. His frequent references to himself, as in ego puto (‘I think’), also stem in part from dictating, since in speaking it is more difficult to avoid referring to oneself than in writing. As Birks pointed out,40 it was a mistake on my part to accuse him in the first edition of egocentricity. But in any case Ulpian, though respecting the opinions of other authors, is self-confident. From this point of view his tone echoes that of the lawyers of the age of Trajan and Hadrian, for example Iavolenus and Celsus the younger. Not for him the muted reflections of his elder contemporary Papinian, who never uses the word ego. A candid writer, Ulpian makes a point of stating his opinion, even if hesitantly (‘I should think’, putem; ‘I believe’, credo). Much of his writing, not only in Disputations (Publicae Disputationes), which record moot points, reads like a debate between himself, his colleagues, and by implication the reader: ‘you may say’ (dicas); ‘suppose’ (pone, finge), ‘you should take it’ (accipias). Ulpian regularly gives reasons, often rather summary ones, for his conclusions. In listing the words and phrases that satisfy the tests described and count as marks of Ulpian’s style I have mentioned or referred to all the instances of the word or phrase to be found in the Digest in Mommsen’s reading of the text. Ulpian’s texts are listed first. They are classified according to the work they come from. First come the major treatises On the Edict (Ad Edictum; ed.) and On Sabinus (Ad Sabinum; Sab.), then the medium-scale works The Proconsul (De Officio Proconsulis; off. proc.), Disputations (Publicae Disputationes; disp.), Tribunals (De Omnibus Tribunalibus; omn. trib.), and The Julio-Papian Law (Ad legem Iuliam et Papiam; leg. Iul. Pap.). Lastly the minor works are listed in alphabetical order. Then may come ‘cf.’ followed by instances of the expression or related expressions from legal sources outside the Digest attributed to Ulpian. When there are Digest texts from other authors there follows the word ‘but’ and instances of the word or phrase from texts of the other authors. The reader can in this way count and, if necessary, look up the legal texts deriving from Ulpian and the other writers. When there are thirty or more texts of Ulpian, so that to cite them would be to overload the footnotes, I have usually referred the reader to the relevant fiche in the Concordance to the Digest Jurists (1980),41 published on microfiche, instead of setting them out in a footnote. The texts in the fiches are in alphabetical order, so that, for example, to find instances of Ulpian’s use of proinde ac si one looks at fiche 67. This contains Ulpian’s Digest texts from POSSESSIONEM to PROPRIUS. Within the fiche one looks for the texts listed under PROINDE. These are set out alphabetically according to the word following PROINDE, so that PROINDE AC SI comes near the beginning of the PROINDE texts. Those scholars who do not have access to Honoré–Menner can find most of the relevant 40

Birks (1983) 171

41

Honoré–Menner (1980)

46

2. The Oral Style

passages, though sometimes with more difficulty, in the Vocabularium Iurisprudentiae Romanae (VIR).

II. MARKS OF STYLE

The marks of style to be listed, which do not purport to be exhaustive, are grouped under headings: (i) conjunctions and other introductory phrases; (ii) expository phrases; (iii) phrases expressing Ulpian’s attitudes to legal propositions; (iv) uses of the future instead of the present tense; (v) inversions of the traditional Latin word-order; (vi) verbs; (vii) nouns and nominal phrases; (viii) adjectives and participles used as adjectives; (ix) adverbs and adverbial phrases. Appendix 1 lists in alphabetical order all the words and phrases mentioned. (i) Conjunctions and other introductory phrases. Ulpian likes to link sentences. He begins each sentence but the first with a conjunction or transitional phrase. He does not like unlinked sentences, anacoloutha. A conjunction that is virtually confined to Ulpian is proinde, which means ‘hence’. It is used either on its own or in combinations such as proinde si, proinde et si, and proinde tamquam si.42 All sixty-four instances of proinde et si in the Digest are from Ulpian,43 as are eighty-five out of eighty-eight with proinde si 44 and sixty-five of sixty-eight in which proinde is a conjunction on its own.45 In all, then, the Digest yields 214 texts of Ulpian in which proinde means ‘hence’ and only six from other authors. A remarkable concentration. Nor are all the other six texts real exceptions. One is probably due to Justinian’s compilers,46 and a second may also be compilatorial.47 The use of this word in legal writing, used to draw a conclusion from what precedes, is virtually an Ulpian fingerprint. He often uses et (‘and’) to link sentences or clauses. This, a notable feature of his prose, points to the habit of dictating. Combinations of et and putare (‘to think’) furnish many examples. All thirty-one Digest texts with et putem (‘and I should think’) are attributed to Ulpian.48 So are eight of nine texts 42 Proinde can also mean ‘just (as)’ or ‘just (as if)’, as in proinde ac or atque. This is a use of which Gaius, Inst. has many examples. It is not Ulpianic: VIR 4 (1) 1222.23–31 43 Honoré–Menner (1980) fiche 67 PROINDE ET SI; VIR 4.1222.31–44 44 Honoré–Menner (1980) fiche 67 PROINDE SI; but D 34.5.13.4 (Iul. 1 ambig.); 9.2.22 pr (Paul 22 ed.); 13.7.16.1 (Paul 29 ed.) cf. Gaius, Inst. 2.79. D 47.2.21.8 (‘Paul’ 40 Sab.) is an Ulpian text 45 Honoré–Menner (1980) fiche 67 PROINDE; VIR 4.1222.8–19 but D 12.1.8 (Pomp. 6 Plaut); 33.1.21.4 (Scae. 22 dig.); 48.19.28.6 (6 cogn.) cf. Gaius, Inst. 3.14 but interp. Citati (1927) 70: Vassalli, Schulz 46 D 9.2.22 pr (Paul 22 ed.), intended to link the Paul text to the preceding Ulpian text 47 D 13.7.16.1 (Paul 29 ed.), intended to link what follows to the correct but compilatorial statement ‘contrariam pigneraticiam creditori actionem competere certum est’ 48 D 19.1.13.3 (32 ed.); 25.4.1.9 (34 ed.); 27.9.5.4; 27.9.5.12 (35 ed.); 47.2.52.6 (37 ed.); 39.3.6.2 (53 ed.); 40.12.18 (55 ed.); 42.3.6; 42.6.1.8, 16 (64 ed.); 43.5.3.15 (68 ed.); 42.8.10.5 (73 ed.); 44.2.9 pr (75 ed.); 44.4.4.24; 44.6.1.1 (76 ed.); 36.3.1.11 (79 ed.); 38.4.3.5 (14 Sab.); 23.3.9.3 (31 Sab); 24.1.32.28 (33 Sab.); 23.3.38 (48 Sab.); 18.4.2.10; 45.1.38.12 (49 Sab.); 48.2.7.2 (7 off. proc.);

2. The Oral Style

47

with et magis puto (‘and I rather think’),49 nineteen of twenty with et non puto,50 all eleven with et ego puto51 and all three with et verum/verius puto.52 Even plain et puto occurs in his work 112 times out of 126.53 Fourteen instances come from other lawyers,54 and one of these, attributed to Paul, is really a text of Ulpian.55 Nor is this all: et sunt qui putent56 and et putamus57 are also confined to Ulpian. So are many other phrases in which et is the first element in the phrase connecting a sentence with the previous one. One of the criticisms of the first edition was that sometimes there are only one or two instances of the phrases introduced by et that I cite.58 Often, of course, there are more. But the crucial point is that among Roman lawyers the overwhelming bulk of these et phrases come from Ulpian, as VIR confirms.59 In some of these et introduces a verb: et (magis) arbitror,60 et constat,61 et credo,62 et dicendum erit,63 et dico,64 et non dubito,65 et eveniet,66 et exstat/extat,67 et finge,68 et intererit,69 et magis est,70 et 50.13.1.4; 50.13.1.15 (8 omn. trib.); 48.5.2.5 (8 disp.); 40.5.24.16, 17; 40.5.26.6 (5 fid.); 48.5.26.4 (2 adult.); 49.4.1 pr (1 appell.) 49 D 25.4.1.8 (34 ed.); 26.7.5.5 (35 ed.); 27.4.1.5 (36 ed.); 1.5.10 (1 Sab.); 24.1.21 pr (32 Sab.); 24.1.32.14 (33 Sab.); 48.19.9.14 (10 off. proc.); 25.3.5.1 (2 off. cons.) but 32.64 (Afr. 6 quaest.) cf. 19.1.13.9 (Ulp. 32 ed: et puto magis) 50 D 2.2.3.4 (3 ed.); 4.4.3.4 (11 ed.); 5.3.25.6 (15 ed.); 50.14.2 (31/1 ed.); 49.17.8 (45 ed.); 29.4.1.5 (50 ed.); 47.9.3.7 (56 ed.); 42.6.1.1 (64 ed.); 28.3.6.10 (10 Sab.); 32.52.5 (24 Sab.); 23.3.9.3 (31 Sab.); 23.2.29 (36 Sab.); 26.1.6.4 (38 Sab.); 47.2.39; 47.2.43.8 (41 Sab.); 42.2.6.4 (5 omn. trib.); 5.1.52.4 (6 fid.); 40.9.14 pr (4 adult.); 42.1.15.7 (3 off. cons.) but 43.24.21.1 (Pomp. 29 Sab.) 51 D 3.5.3.11 (10 ed.); 9.2.11.10 (18 ed.); 29.5.5.1 (50 ed.); 47.8.2.27 (56 ed.); 43.19.3.16 (70 ed.); 44.4.4.23, 29 (76 ed.); 7.1.13.3, 5 (18 Sab.); 34.2.27.1 (44 Sab.); 18.4.2.3 (49 Sab.) 52 D 35.1.10 pr (23 Sab.); 1.14.3 (38 Sab.); 41.1.33 pr (4 disp.) 53 Honoré–Menner (1980) fiche 56 ET cf. Kalb (1890) 131 who points out that one of the texts attributed to Gaius (D 18.6.2.1) is really from Ulpian 54 D 16.1.32.2 (Pomp. 1 SCC); 29.4.3 (Pomp. 3 Sab.); 18.6.2.1(Gaius 2 rer. cott.); 17.1.49 (Marc. 6 dig.); 3.4.6.2 (Paul 9 ed.); 4.8.32.16 (Paul 13 ed.); 18.5.3 (Paul 33 ed.); 22.1.38.14 (Paul 6 Plaut.); 42.1.51.1 (Paul 2 man.); 34.9.5.5 (Paul 1 fisc.); 46.1.71 pr (Paul 4 quaest.); 31.69.4 (Pap. 19 quaest.); 37.8.7 (Tryph. 16 disp.); 48.18.10.2 (Arc. Char. 1 test.) 55 D 3.4.6.2 (Paul 9 ed. = Ulp. 9 ed.), below n.827–8 56 57 D 41.2.13.2 (72 ed.); 36.1.17.3 (4 fid.) cf. 40.5.24.19 (5 fid.) D 33.8.6.2 (25 Sab.) 58 59 Watson (1983) but see Birks (1983) 180 VIR 2.530–536 et (praecedit controvesia) 60 D 13.7.24.2 (30 ed.); 18.3.4.4; 19.1.11.18 (32 ed.); 27.3.1.20 (36 ed.); 37.4.3.9 (39 ed.); 38.2.12.4 (44 ed.); 33.7.12.14 (20 Sab.); 32.70.12 (22 Sab.); 29.1.19.2 (4 disp.); 48.5.4.2 (8 disp.); 36.1.18.7 (2 fid.) cf. Kalb (1890) 131 61 D 13.7.24.1; 16.3.7.3 (30 ed.); 24.3.24 pr (33 ed.); 28.2.1 (1 Sab.); 45.1.29.1 (46 Sab.) 62 63 D 28.3.6.6 (10 Sab.); 32.11.21 (2 fid.); 17.1.29.3 (7 disp) D 5.3.25.9 (15 ed.) 64 65 D 38.17.1.10 (12 Sab.) D 25.1.5.1 (36 Sab.); 47.3.2 (42 Sab.); 39.5.7.2 (44 Sab.) 66 D 37.6.1.19 (40 ed.) 67 D 27.7.4 pr; 27.8.1.2 (36 ed.); 39.2.15.12 (53 ed.); 43.20.1.27 (70 ed.); 43.24.11.1, 8 (71 ed.); 48.18.1.27 (8 off. proc.); 40.5.30.6 (5 fid.); 21.1.8 (1 ed. cur.) 68 D 5.1.18.1 (23 ed.) 69 D 18.6.4 pr (28 Sab.) 70 Eighty-eight of 104 texts: Honoré–Menner (1980) fiche 56 ET MAGIS EST but D 30.24.3 (Pomp. 5 Sab.); 33.7 (Pomp. 8 Q. Muc.); 39.3.22 (Pomp. 10 var. lect.); 45.1.137.2 (Ven. 1 stip.); 2.14.30.2 (Gaius 1 ed. prov.); 46.3.72.4 (Marc. 20 dig.); 31.28 (Marc. 29 dig.); 6.1.6 (Paul 6 ed.); 4.2.21.4 (Paul 11 ed.); 11.3.14.2 (Paul 19 ed.); 16.2.9.1 (Paul 32 ed.); 43.24.6 (Paul 67 ed.); 23.3.56.3 (Paul 6 Plaut.); 32.89 (Paul 6 Iul. Pap.); 20.1.16.8 (Marci. 1 form. hyp.); 38.4.9 (Mod. 9 pand.). D 47.2.21.5 (‘Paul’ 40 Sab.) is an Ulpian text

48

2. The Oral Style

erit procedendum,71 et (parvi) refert,72 et retineo,73 et scio,74 et mihi (magis, verius) videtur,75 et visum est.76 Sometimes et is followed by est as an auxiliary: et est decretum,77et est dubitatum,78 et est relatum,79 et est rescriptum,80 et est quaestio tractata.81 At other times the est is existential: et est actio,82 et est epistula,83 et est pactio.84 In others, again, it is followed by a predicate: et est expeditius,85 et est frequentissima,86 et est optimum,87 et est simile,88 et est utile/utilius/utilissima.89 When the predicate follows est the effect is markedly emphatic. When est follows the adjective the emphasis is less: et absurdum est,90 et difficile est.91 In yet other phrases the combination of et with an introductory adverb is distinctive: et per contrarium,92 et facilius,93 et fortassis (with dicere etc.),94 et fortius (with dicere),95 et generaliter,96 et regulariter,97 et recte/rectissime,98 et versa vice.99 A common phrase is et ait (‘and so-and-so says’) followed expressly or by implication by the name of the author whose view is reported e.g. et ait Iulianus . . . or quaeritur apud Pedium . . . et ait. This type of introductory phrase occurs 118 times in texts of Ulpian in the Digest100 and 5 times in other authors.101 One of the two instances in Paul is, however, perhaps a covert citation of Ulpian.102

71

D 7.8.6 (17 Sab.) D 4.2.9 pr (11 ed.); 12.4.3.7 (26 ed.); 15.3.1.2 (29 ed.); 29.4.1.1 (50 ed.); 40.12.8.2 (55 ed.); 43.20.1.21 (70 ed.); 43.24.1.2 (71 ed.); 44.4.4.1 (76 ed.); 7.4.1 pr (17 Sab.); 34.3.5.2 (23 Sab.); 40.7.3.1 (27 Sab.); 47.2.3.1 (41 Sab.); 45.2.3 pr; 46.1.6.1 (47 Sab.); 28.5.35.1 (4 disp.); 36.1.3.2 (3 fid.) cf. 26.7.54 (Tryph. 2 disp: et multum refert) 73 74 D 35.1.92 (5 fid.) D 48.13.7 (7 off. proc.) 75 D 3.1.1.10 (6 ed.); 3.5.5.8 (10 ed.); 14.5.4.4; 15.2.1.7 (29 ed.); 25.6.1.10 (34 ed.); 37.4.1.7 (39 ed.); 38.5.1.22 (44 ed.); 43.24.1.5 (71 ed.); 10.2.49 (2 disp.); 36.1.1.17 (3 fid.) 76 77 78 D 18.4.2.6 (49 Sab.) D 36.1.1.13 (3 fid.) D 13.6.5.11 (28 ed.) 79 D 11.5.1.3 (23 ed.); 21.2.4 pr (32 ed.); 43.24.13.5 (71 ed.) 80 81 D 47.10.13.7 (57 ed.); 40.5.24.5 (5 fid.) D 18.4.2.7 (49 Sab.) 82 83 84 D 47.5.1.2 (38 ed.) D 19.2.19.2 (32 ed.) D 2.14.1.2 (4 ed.) 85 86 D 7.9.9 pr (51 ed.) D 42.4.7.2 (49 ed.) 87 88 D 43.29.3.12 (71 ed.) D 43.26.1.3 (1 inst.) 89 D 43.26.6.4 (71 ed.); 43.8.2.37 (76 ed.); 49.4.1.5 (1 appell.) 90 D 2.13.6.9 (4 ed.) but interp. Citati (1927) 1: Gradenwitz and others 91 D 21.1.38.4 (2 ed. cur.) 92 D 21.1.23.9 (1 ed.cur.) 93 D 14.1.1.5 (28 ed.); 42.4.3.1 (49 ed.) 94 D 32.55.7 = 50.16.167 (25 Sab.); 40.5.24.2, 17 (5 fid.) 95 D 7.9.3.4 (79 ed.); 26.2.10.2 (36 Sab.) 96 Honoré–Menner (1980) fiche 56 (forty-four texts) but D 9.4.2.8 (Afr. 6 quaest.); 21.2.24 (Gaius 1 ed. cur.); 24.2.6 (Iul. 62 dig.); 21.1.41 (Paul 2 ed. cur.); 28.2.28.3 (Tryph. 20 disp.) 97 D 15.3.3.2 (29 ed.); 30.71.1 (51 ed.); 7.1.25.5 (18 Sab.) 98 D 4.8.21.11 (13 ed); 10.2.8.1 (19 ed.); 39.9.1.1 (41 ed.); 29.4.4.1 (50 ed.); 47.8.4.3 (56 ed.); 42.4.7.7 (59 ed.); 43.24.13.5 (71 ed.); 36.3.1.13 (79 ed.); 7.6.1.3 (18 Sab.); 40.4.13.2 (5 disp.) 99 D 43.29.3 pr (71 ed.); 44.5.1.12 (76 ed.); 45.1.1.3 (48 Sab.) 100 Honoré–Menner (1980) fiche 56 ET AIT 101 D 39.6.31.3 (Gaius 8 ed. prov.); 8.3.35 (Paul 15 Plaut.); 23.2.60.4 (Paul 1 orat. Ant. et Comm.); 30.114.3 (Marci. 8 inst.); 29.5.15 pr (Marci. 1 del.) 102 D 23.2.60.4 (Paul. 1 orat. Ant. et Comm: below n.832) 72

2. The Oral Style

49

To return to linking phrases without et: nec non (‘as well as’)103 and nec non et,104 long ago picked out by Kalb as Ulpianic,105 are linking phrases meaning ‘and’. Per contrarium (‘on the other hand’), which occurs twenty-nine times in the Digest in texts of Ulpian and twice in Marcianus,106 an author whose style was influenced by Ulpian’s, is used to make a contrast.107 There are other linking phrases confined or almost confined to Ulpian’s writings. Some, drawing a conclusion from what has gone before, have much the same meaning as proinde: idcircoque,108 eapropter,109 inde,110 sic deinde.111 Others introduce provisos or limitations on what has preceded: dummodo non,112 dummodo sciat/sciamus.113 There is adversative force in verum tamen or verumtamen,114 103 Nineteen of 22 texts: D 4.6.26.4 (12 ed.); 11.6.7.2 (24 ed.); 14.3.5.17 (28 ed.); 15.3.3.6 (29 ed.); 27.9.3.5; 27.9.5.10 (35 ed.); 36.4.3.1 (52 ed.); 28.8.3 (60 ed.); 43.3.1.3 (67 ed.); 36.3.1.8 (79 ed.); 29.2.5 pr (1 Sab.); 7.8.10 pr (17 Sab.); 7.1.13.2 (18 Sab.); 48.19.9.1 (10 off. proc.); 24.3.22.6 (3 disp.); 26.5.6 (8 omn. trib.); 50.16.141 (8 Iul. Pap.); 49.14.16 (18 Iul. Pap.); 25.3.5.4 (2 off. cons.) but 45.1.58 (Iul. 54 dig.); 37.1.6.1 (Paul 41 ed.); 49.1.16 (Mod. 6 diff.) 104 Nine of 11 texts: D 3.2.23 (8 ed.); 37.15.7.4 (10 ed.); 4.6.1 pr; 4.6.28 pr (12 ed.); 43.16.1.2; 50.16.60 pr (69 ed.); 36.3.1.8; 43.16.1.2 (79 ed.); 47.2.12.2 (29 Sab.) but 2.14.9 pr (Paul 72 ed.); 49.16.3.17 (Mod. 4 poen.) 105 Kalb (1890) 132–4 106 D 23.4.6 (4 ed.); 2.4.8.1 (5 ed.); 4.4.22 (11 ed.); 8.5.8.5 (17 ed.); 17.2.52.18 (31/2 ed.); 19.1.13.5, 25 (32 ed.); 25.3.1.11, 13 (34 ed.); 26.7.9.9; 27.3.1.2 (36 ed.); 37.9.1.7 (41 ed.); 39.3.1.21 (53 ed.); 28.1.20.2 (1 Sab.); 29.2.30.5 (8 Sab.); 7.2.8; 7.8.4.1 (17 Sab.); 33.3.1.10 (19 Sab.); 33.8.6.4 (25 Sab.); 23.2.12.2 (26 Sab.); 8.2.17.1 (29 Sab.); 24.1.11.5 (32 Sab.); 47.2.46.8 (42 Sab.); 45.1.1.6 (48 Sab.); 48.22.7.12 (10 off. proc.); 3.3.28 (1 disp.); 48.19.1.2 (8 disp.); 2.15.8.25 (5 omn. trib.); 21.1.23.9 (1 ed. cur.) but 36.1.34 (Marci. 8 inst.); 34.9.2.2 (Marci. 11 inst.) cf. Kalb (1890) 130 107 Ch.6 n.71–2, 80–1 108 Seventeen of 19 texts: D 3.2.13.7 (6 ed.); 17.1.14 pr (31/1 ed.); 26.7.9.6 (36 ed.); 37.4.3.4 (39 ed.); 37.10.5.1; 37.10.3.7 (41 ed., twice); 38.5.3 pr (44 ed.); 39.3.4.2 (53 ed.); 42.1.4.1 (58 ed.); 43.16.1.24 (69 ed.); 43.20.1.25 (70 ed.); 43.24.15 pr (71 ed.); 47.11.7 (9 off. proc.); 28.3.12 pr (4 disp.); 40.9.12. pr (4 adult.); 25.3.5.8 (2 off. cons.), but 47.2.71 (Marc. 8 dig.); 23.2.57 (Marci., citing divi fratres) 109 D 3.1.1.1 (6 ed.); 10.3.4.4 (19 ed.); 28.7.8.2 (50 ed.); 47.10.17.9 (57 ed.); 40.7.9 pr (28 Sab.); 39.4.14 (8 disp.) 110 Honoré–Menner (1980) fiche 60 INDE (thirty texts where inde means ‘hence’) but D 47.2.1.1 (Paul 39 ed.); 26.7.37.2 (Pap. 11 quaest.); 20.1.16.6 (Marci. 1 hyp.); 35.1.52 (Mod. 7 diff.); cf. Gaius, Inst. 2.218; Frag. Vat. 90 (Ven 1 interd.?) cf. VIR 3.698 111 D 45.1.72.2 (20 ed.); 11.7.31 pr (25 ed.); 15.1.1 pr (29 ed.); 48.22.6.1 (9 off. proc.); 21.1.25.10 (1 ed cur.); 44.3.5.1 (3 disp.); 17.1.29.3 (7 disp.); 36.1.6.2 (4 fid.); 35.1.92 (5 fid.) 112 D 50.1.25 (1 ed.); 16.3.7.2 (30 ed.); 29.4.6 pr (50 ed.); 43.22.1.8, 9 (70 ed.); 7.4.5 pr (17 Sab.); 47.20.3.2 (8 off. proc.); 48.18.1.13 (8 off. proc.); 50.13.1.10 (8 trib.); 22.1.33 pr (1 off. cur. reip.) but 17.1.60.2 (Scae. 1 resp.) 113 D 9.3.5.5 (23 ed.); 16.3.1.10 (30 ed.); 27.9.7.4 (35 ed.); 42.3.6 (64 ed.); 43.16.3.9 (69 ed.); 46.2.2 (4 Sab.); 46.4.6 (47 Sab.); 1.16.4.2 (1 off. proc.); 47.17.1; Collatio 7.4.1 (8 off. proc.); 21.1.1.2 (1 ed. cur.) but interp. Citati (1927) 32: Beseler 114 Twenty-nine of 33 texts: D 17.2.63.8 (31/2 ed.); 19.1.11.5, 18; 19.1.17.7 (32 ed.); 4.4.49 (35 ed.); 27.2.2.2 (36 ed.); 28.1.22.4 (39 ed.); 37.5.8.2; 37.5.10.2 (40 ed.); 38.5.1.15 (44 ed.); 38.2.14.4 (45 ed.); 38.6.1.3 (46 ed.); 38.11.1.1 (47 ed.); 42.8.10.3 (73 ed.); 44.4.4.33; 44.5.1.10 (76 ed.); 35.3.1.12; 36.3.1.19, 20 (79 ed.); 33.4.1.10 (19 Sab.); 41.1.20.1 (29 Sab.); 25.1.7 (36 Sab.); 29.1.28 (36 Sab.); 9.2.41 pr (41 Sab.); 47.2.46.8 (42 Sab.); 28.5.35 pr; 28.5.35.3 (4 disp.); 37.14.16 pr (10 Iul. Pap.); 48.5.10.2 (4 adult.) but 48.10.6 pr (Afr. 3 quaest: verum testamentum, Mommsen); 33.1.19.1 (Scae. 17 dig: velim, Mommsen) 22.5.13 (Pap. 1 adult.); 20.6.8.7 (Marci. 1 hyp.); interp. Citati (1927) 91: Beseler

50

2. The Oral Style

tamenetsi . . . tamen,115 and attamen, the latter standing alone116 or preceded by quamvis,117 etiamsi,118 or qualiterqualiter.119 Several phrases reinforce what has gone before: idem ac si (and inflections),120 ceteroquin,121 quin immo etiam (a lapse into pleonasm),122 constat enim,123 nonnumquam enim,124 sane enim,125 sed enim,126 ubi enim,127 unde enim,128 utique etiam,129 non tantum . . . autem,130 non tantum . . . verum etiam,131 non tantum . . . verum (without etiam),132 non solum . . . verum etiam si,133 non solum verum etiam quoque,134 non solum verum

115

116 D 14.6.7.11 (29 ed.) D 17.2.33 (31/2 ed.); 21.1.1.10 (1 ed. cur.) D 24.3.24.5 (33 ed.); 25.4.1.11 (34 ed.); 27.2.1.2, 26.7.3.3 (35 ed.); 11.1.16 pr, 1 (37 ed.); 38.5.1.6, 21 (44 ed.); 37.9.7.2 (47 ed.); 29.5.1.13 (50 ed.); 30.71.5 (51 ed.); 47.2.17.2 (39 Sab.); 47.1.1 pr (41 Sab.); 39.5.7.4 (44 Sab.); 26.5.12.1 (3 off. proc.); 26.5.8.1 (8 omn. trib.); 23.2.27(3 Iul. Pap.) but 22.3.9 (Cels. 1 dig.); 47.2.21.10 (Paul 40 Sab. = Ulp., Mommsen); interp. Citati (1927) 12: Beseler and others 118 D 17.2.63 pr (31/2 ed.); 29.3.8 (50 ed.); 39.3.4 pr (53 ed.); 42.6.1.3 (64 ed.); 47.2.7.1 (41 Sab.); 47.2.46 pr (42 Sab.) 119 D 47.2.46 pr (42 Sab.) 120 D 46.7.5.4 (77 ed.); 30.53.2 (25 Sab.); 8.4.6.2 (28 Sab.); 26.8.5.4, 6 (40 Sab.) but 40.5.26.7 (Ulp. 5 fid. citing Trajan); 45.2.12.1 (Ven. 2 stip.) 121 122 D 28.5.35.3 (4 disp.); 49.14.29 pr (8 disp.) D 10.3.7.13 (20 ed.); 9.4.35 (41 Sab.) 123 D 26.7.3.2 (35 ed.); 43.20.1.13 (70 ed.); 28.6.2.4 (6 Sab.); 33.7.12.2 (20 Sab.) 124 D 26.4.5.3 (35 ed.); 43.20.1.13 (70 ed.); 48.18.1.27 (8 off. proc.) 125 D 26.7.3.6 (35 ed.); 26.7.7.12 (35 ed.); 39.3.1.23 (53 ed.); 32.49.4 (22 Sab.); 38.1.9.1 (34 Sab.) cf. Collatio 12.7.8 (18 ed.) 126 Twenty-four of 26 texts: D 5.3.11 pr (15 ed.); 6.1.1.3 (16 ed.); 6.2.7.13 (16 ed.); 37.9.7.1 (47 ed.); 40.12.7.2, 3 (54 ed.); 47.9.3.3 (56 ed.); 42.5.24.2 (63 ed.); 43.19.3.4 (70 ed.); 36.3.1.19 (79 ed.); 46.6.4.3; 35.2.47 pr (79 ed.); 35.1.10 pr (23 Sab.); 26.8.5.2 (40 Sab.); 47.1.1 pr (41 Sab.); 39.5.7.5 (44 Sab.); 50.4.6.5 (4 off. proc.); 47.18.1.2; 48.18.1.3 (8 off. proc.); 48.19.9.11 (10 off. proc.); 21.1.38.7 (1 ed. cur.); 39.5.12 (3 disp: sed etenim, Mommsen); 36.1.23.3 (5 disp.); 49.14.29 pr (8 disp.) cf. Collatio 14.3.2 (9 off. proc.) but D 34.3.20.1 (Mod. 10 resp.); 45.1.63 (Afr. 6 qu: etenim, Mommsen) 127 D 6.1.9 (16 ed.); 38.9.1.6 (49 ed.); 40.5.4.5 (60 ed.); 43.16.1.35 (69 ed.); 24.3.2.2, 37.4.17 (35 Sab.); 21.1.37 (1 ed. cur.) but 28.6.23 (Pap. 6 resp.) 128 D 44.4.4.23 (76 ed.) 129 D 25.6.1.11 (34 ed.); 37.6.1.2 (40 ed.); 47.8.2.10 (56 ed.); 40.5.4.3, 14 (60 ed.) 130 Thirteen of 14 texts: D 13.7.9.1 (28 ed.); 26.10.3.2 (35 ed.); 26.7.9.7 (36 ed.); 47.4.1.14 (38 ed.); 47.9.3.3 (56/1 ed.); 43.24.3.3 (71 ed.); 24.1.3.9 (32 Sab.); 26.4.3.9 (38 Sab.); 16.3.11 (41 Sab.); 45.1.1.2 (48 Sab.); 18.4.2.4 (49 Sab.); 21.1.38.10 (2 ed. cur.); 36.1.18.2 (2 fid.) but 15.1.47.4 (Paul 4 Plaut.) 131 Twenty-six of 29 texts: D 26.7.9.7; 27.4.1.5 (36 ed.); 37.4.3 pr (39 ed.); 37.5.5 pr (40 ed.); 37.9.1.15; 37.10.1.5 (41 ed.); 38.2.16.8 (45 ed.); 38.7.2.1 (46 ed.); 36.4.5.28 (52 ed.); 8.5.10.1 (53 ed.); 39.3.8 (53 ed.); 47.10.15.19 (57 ed.); 28.8.7.2 (60 ed.); 43.22.1.1 (70 ed.); 43.24.15.8; 50.17.157.2 (71 ed.); 42.8.10.20 (73 ed.); 35.3.1.11 (79 ed.); 7.4.10.1 (17 Sab.); 26.4.3.9 (38 Sab.); 48.18.1.23 (8 off. proc.); 21.1.38.10 (2 ed. cur.); 36.1.18.2 (2 fid.); 26.5.7 (1 omn. trib.); 23.2.43 pr (1 Iul. Pap.); 25.3.5.12 (2 off. cons.); but 35.1.50 (Ulp. 1 off. cons. citing Pius); 3.5.18.4 (Paul 2 Ner.); 7.1.3.1 (Gaius 2 rer. cott.) 132 D 17.1.12.9 (31 ed.); 1.9.10 (34 ed.); 47.10.17.19 (57 ed.); 43.5.1.2 (68 ed.); 44.4.4.33 (76 ed.); 26.8.5 pr. (40 Sab.); 13.7.4; 47.2.27 pr (41 Sab.); 48.19.9.13 (10 off. proc.); 10.2.49 (2 disp.); 50.16.131.1 (4 Iul. Pap.); 49.1.6 (2 appell.) but 47.2.21 pr. (Paul 40 Sab. = Ulp. Mommsen) 133 D 4.3.1.8; 4.3.3 (11 ed.); 15.1.11.9 (29 ed.); 37.5.6.4; 37.5.8.6 (40 ed.); 37.9.1.14 (49 ed.); 42.8.3.1 (66 ed.); 43.16.1.33 (69 ed.); 40.7.3.3 (27 Sab.) 134 D 38.2.10.1 (44 ed.); 43.20.1.37 (70 ed.); 38.16.1.11 (12 Sab.); 1.1.1.1 (1 inst.) 117

2. The Oral Style

51

quoque (without etiam),135 non solum . . . verum omnino,136 and non solummodo . . . sed et.137 Questions are put with an ergo,138 an vero et,139 num forte,140 utrum autem,141 and utrum . . . an vero.142 Sive autem,143 solet autem,144 quia autem,145 and interdum autem146 foreshadow a minor modification of what has gone before. Interdum tamen,147 interdum . . . licet,148 bring in more radical variations. Si quidem . . . si autem149 points to an antithesis. Ulpian likes to argue by analogy, to point to examples that are sufficiently like the one just discussed to be decided in the same way. Some of the linking phrases fit this trait. The reasoning often proceeds from case to case in the manner of the common lawyer trained in the Anglo-American tradition, with 135 D 9.4.5.1 (3 ed.); 3.3.39 pr. (9 ed.); 4.4.18.5 (11 ed.); 4.1.6; 4.7.4.2 (13 ed.); 10.4.3.9 (24 ed.); 13.6.5.8 (28 ed.); 14.4.1.5; 14.6.9.3; 15.1.1.6 (29 ed.); 25.5.1.1 (34 ed.); 37.11.2.4 (41 ed.); 29.5.1.7 (50 ed.); 36.4.5.12 (52 ed.); 47.10.11 pr (57 ed.); 11.8.1.8 (68 ed.); 50.16.60.1 (69 ed.); 43.19.5.2 (70 ed.); 29.2.30.1 (8 Sab.); 7.8.2.1 (17 Sab.); 34.3.3.4 (23 Sab.); 46.8.20 (1 disp.); 15.1.3.6 (2 disp.); 23.2.43.4 (1 Iul. Pap.) but 15.1.49 (Pomp. 4 Q. Muc.) 136 D 50.16.178 pr (49 Sab.) 137 D 50.1.8 (1 ed.) 138 D 11.1.9.4 (22 ed.); 15.2.1.7 (29 ed.); 26.4.5.3 (35 ed.); 26.4.5.4 (35 ed.); 27.9.3.5 (35 ed.); 46.1.8.3 (47 Sab.); 45.3.11 (48 Sab.) but 37.8.7 (Tryph. 16 disp.) 139 D 17.1.8.4 (31/1 ed.); 37.5.8.1 (40 ed.); 7.8.10.2 (17 Sab.); 7.6.1.3 (18 Sab.); 26.1.3.2 (37 Sab.) 140 D 4.4.16 pr (11 ed.); 10.3.7.13 (20 ed.); 26.2.17.2 (35 ed.); 43.18.1.2 (70 ed.); 1.7.15.2 (25 Sab.) but 49.16.3.7 (Mod. 4 poen.) 141 Fifteen of 16 texts: D 2.14.7.8 (4 ed.); 7.6.5.1 (17 ed.); 38.5.1.6 (44 ed.); 29.3.2.7; 29.5.3.14 (50 ed.); 39.2.30.1 (81 ed.); 28.1.5 (6 Sab.); 38.17.1.11 (12 Sab.); 7.8.10.3 (17 Sab.); 7.6.1.3 (18 Sab.); 33.8.8.8 (25 Sab.); 29.1.19.1 (4 disp.); 36.1.11.2 (4 fid.); 25.3.5.2, 20 (2 off. cons., twice); but 10.2.54 (Ner. 3 membr.) cf. Gaius, Inst. 3.189 142 Twenty-one of 25 texts: D 2.8.2.5 (5 ed.); 4.6.28.3 (12 ed.); 5.3.23 pr (15 ed.); 10.3.23 (32 ed.); 19.2.11 pr. (32ed.); 37.6.1.13 (40 ed.); 38.5.1.14.(44 ed.); 29.4.10.2 (50 ed.); 39.2.13.2 (53ed.); 42.4.5.3 (59 ed.); 40.5.4.3 (60 ed.); 46.7.5.7 (77 ed.); 38.4.1.8 (14 Sab.); 7.8.10.2 (17 Sab.); 41.9.1.2 (31 Sab.); 41.1.23.3 (43 Sab.); 48.19.8.7 (9 off. proc.); 48.19.9.14 (10 off. proc.); 23.3.5.1, 2 (2 off. cons., twice); 40.9.30.4 (4 Ael. Sent.) but 24.1.31.4 (Pomp. 14 Sab); 18.6.2.1 (Gaius 2 rer. cott.); 44.7.44.6 (Paul 74 ed.); 35.1.82 (Call. 2 quaest.) 143 Honoré–Menner (1980) fiche 72 SIVE AUTEM (33 texts) but D 7.2.4 (Iul. 35 dig.); 13.6.18.1; 16.3.14.1 (Gaius 9 ed. prov.); 24.2.2.3 (Gaius 11 ed. prov.); 39.4.13.2 (Gaius 13 ed. prov.); 18.1.58 (Pap. 10 quaest., interp.); 50.4.18.29 (Arc. Char. 1 mun. civ.) 144 D 42.6.1.1 (64 ed.); 43.5.3.10 (68 ed.); 47.20.3.2 (8 off. proc.); 48.19.9.4 (10 off. proc.) 145 D 16.3.1.47 (30 ed.); 43.3.1.4 (67ed.); 43.18.1.6; 43.20.1.31 (70 ed.); 43.23.1.7; 43.24.15.12 (71 ed.); 26.1.3.1 (37 Sab.) but 49.14.42.1 (Val. 5 fid.) 146 D 4.4.13.1 (11 ed.); 9.1.1.15 (18 ed.); 14.5.4.1 (29 ed.); 7.9.1.7 (79 ed.); 29.2.21.1 (7 Sab.); 26.4.1.3 (14 Sab.) cf. Gaius, Inst. 3.199; 4.127; D 34.5.13.6 (Iul. 1 ambig: autem interdum) but interp. Citati (1927) 48: Pernice and others 147 Eleven of 13 texts: D 27.6.5 (12 ed.); 4.4.19 (13 ed.); 6.2.11.3 (16 ed.); 11.1.11.3 (22 ed.); 9.3.5.2 (23 ed.); 10.4.11.1 (24 ed.); 47.10.17.13 (57 ed.); 7.2.1.3 (17 Sab.); 7.1.25.1 (18 Sab.); 46.3.12.1 (30 Sab.); 21.1.1.9 (1 ed. cur.) but 30.12.3 (Pomp. 3 Sab.); 11.3.14.9 (Paul 19 ed.) cf. Gaius, Inst. 4.155 148 D 3.3.39.1 (9 ed.); 4.4.13.1 (11 ed.); 6.2.11.3 (16 ed.); 9.3.5.2 (23 ed.); 12.6.26.12 (26 ed.); 38.16.1.7 (12 Sab.) but 36.4.15 (Val. 7 act. = Venuleius: Krüger) cf. Gaius, Inst. 3.176: licet . . . interdum; D. 4.8.15 (Ulp. 13 ed.); 28.3.3.6 (Ulp. 3 Sab.) 149 Thirteen of 15 texts: D 14.3.1 (28 ed.); 15.3.3.10 (29 ed.); 29.4.10.2 (50 ed.); 49.17.2 (67 ed.); 43.8.2.28 (68 ed.); 43.24.13.7 (71 ed.); 42.8.10.1 (73 ed.); 44.4.4.17 (76 ed.); 46.1.33; 46.7.5.6 (77 ed.); 35.3.1.4 (79 ed.); 7.4.10.7 (17 Sab.); 21.1.4.4 (1 ed. cur.) but 25.4.1 pr. (Ulp. 34 ed. citing divi fratres); 36.1.67.3 (Maec 5 fid.)

52

2. The Oral Style

expressions such as ‘but suppose’ ( finge autem)150 ‘but what if?’ (quid tamen si),151 ‘but if . . . equally’ (sed et si . . . aeque),152 and ‘unless perhaps’ (nisi forte)153 also revealing his interest in whether the law would be the same if the facts were slightly different. (ii) Expository phrases. These introduce the point of law to be discussed, the opinions of a jurist, or the implications of an argument. Quaestionis est154 and quaestio in eo est155 is an example. The opinions of other lawyers are reported with alioquin . . . inquit,156 forte . . . inquit,157 nisi forte . . . inquit,158 plane . . . inquit,159 or extat sententia.160 Relevant points are called to mind with meminisse oportet,161 meminisse oportebit,162 meminisse autem 150 Fifteen of 17 texts: D 4.4.3.6; 4.4.7.11 (11 ed.); 4.6.23.4 (12 ed.); 4.8.3.1 (13 ed.); 5.3.31pr (15 ed.); 6.1.13 (16 ed.); 11.7.4 (25 ed.); 14.1.1.5 (28 ed.); 14.4.7 pr. (29 ed.); 17.2.52.10 (31/2 ed.); 7.1.17 pr (18 Sab.); 36.2.14.2 (24 Sab.); 2.15.8.20 (5 omn. trib.), 36.1.13.3 (4 fid.); 48.5.24.1 (1 adult.) but 13.7.8 pr. (Pomp. 35 Sab.); 37.8.7 (Tryph. 16 disp.); interp. Citati (1927) 33, 40: Schulz, Appleton, etc. 151 Forty-two of 43 texts: D 26.7.23 (9 ed.); 3.5.5.3 (10 ed.); 4.8.7.1; 4.8.21 pr, 10; 26.7.25 (13 ed.); 5.3.25.17; 5.3.31.1 (15 ed.); 11.7.20 pr; 47.12.3.5 ( 25 ed.); 12.2.34 pr (26 ed.); 13.5.14.2 (27 ed.); 14.1.1.5 (28 ed.); 14.4.5.8; 14.4.7.1; 15.3.3.9 (29 ed.); 17.1.8.8 (31 ed.); 19.2.13.3; 19.2.9.1;19.2.15.4 (32 ed.); 27.4.1.6 (37 ed.); 47.4.1.3 (38 ed.); 37.10.5.5 (41 ed.); 46.7.5.6 (77 ed.); 28.2.12.1 (9 Sab.); 28.3.6.9 (10 Sab.); 38.17.2.34 (13 Sab.); 7.1.12.2; 7.1.68 pr; 7.4.10 pr; 29.2.21.3 (17 Sab.); 7.1.25.1 (18 Sab.); 34.3.5 pr (23 Sab.); 30.50.2 (24 Sab.); 33.8.6.4 (25 Sab.); 40.7.6.1 (27 Sab.); 18.2.9 (28 Sab.); 17.2.14 (30 Sab.); 24.1.21.1 (32 Sab.); 24.1.32.5 (33 Sab.); 5.1.50.1 (6 fid.); 48.5.18.3 (2 adult) but 39.4.13.3 (Gaius, 13 ed. prov.) cf. 35.2.11.6 (Pap. 29 quaest: quid tamen dicemus?) 152 Twenty-five of 27 texts: D 10.3.7.13 (20 ed.); 11.6.1.1 (24 ed.); 15.1.9.6; 15.1.30.2 ; 15.3.3.1 (29 ed.); 27.5.1.5 (36 ed.); 9.4.38.3 (37 ed.); 12.1.12 pr; 39.4.12.2 (38 ed.); 37.6.1.11; 37.6.1.17 (40 ed.); 36.4.5.14 (52 ed.); 28.5.9.20 (5 Sab.); 30.37.1 (21 Sab.); 40.7.3.4 (27 Sab.); 18.2.4.5 (28 Sab.); 26.1.14.5 (37 Sab.); 26.8.5.5 (40 Sab.); 45.1.41 pr (50 Sab.); 47.20.3.1 (8 off. proc.); 24.3.64.4 (7 Iul. Pap.); 36.1.3.5 (3 fid.); 36.1.9 pr (4 fid.); 40.9.12.2 (4 adult.); 42.1.15.11 (3 off. cons.) but 40.5.49 (Afr. 9 quaest.); 7.1.60 pr (Paul 5 sent.) cf. Gaius, Inst. 2.193 (uncertain) 153 Above n.20–4 154 Eleven of 12 texts: D 5.1.2.5 (3 ed.); 11.3.9.3 (23 ed.); 11.7.8 pr (25 ed.); 12.1.11 pr (26 ed.); 27.2.1.2 (34 ed.); 29.4.10.2 (50 ed.); 44.2.7.1 (75 ed: magnae quaestionis est); 7.1.25.3 (18 Sab.); 18.2.2 pr (28 Sab.); 15.1.3.6 (2 disp.); 40.5.26.6 (5 fid.) but 32.89 (Paul 6 Iul. Pap.) cf. est quaestionis: 15.1.9.6; 15.1.11.3 (Ulp. 29 ed.); 47.10.9 pr (Ulp. 57 ed.); fuit quaestionis: 15.2.1.7 (Ulp. 29 ed.); 29.4.1.12 (50 ed.); 29.2.24 (7 Sab.); 7.8.2.1 (17 Sab.); 36.2.12.1 (23 Sab.) but 37.7.9 (Tryph. 6 disp.); quaestionis non est: 50.16.164 pr (Ulp. 15 Sab.) 155 D 37.6.1.21 (40 ed.); 43.26.6.4 (71 ed.); 47.2.43.11 (41 Sab.); 41.1.23.1 (43 Sab.) but 23.2.60.4 (Paul 1 orat. Ant. et Comm.), the latter perhaps derived from a work of Ulpian 156 D 4.7.4.2 (13 ed.); 39.2.15.12 (53 ed.); 47.10.17.19 (57 ed.); 21.1.1.9 (1 ed. cur.); 29.2.42 pr (4 disp.) cf. Frag. Vat. 87 (Ulp. 17 Sab.) 157 D 4.2.3.1 (11 ed.); 43.23.1.8 (71 ed.) 158 D 3.5.5.14 (10 ed.); 4.9.3.1 (14 ed.); 6.1.1.2 (16 ed.); 17.2.63.3 (31/2 ed.); 19.1.11.18 (32 ed.); 37.10.1.8 (41 ed.); 7.1.25.5 (18 Sab.). 159 D 10.2.20.3 (19 ed.); 16.1.6 (29 ed.); 17.1.12.2 (31/1 ed.); 33.9.3.2 (22 Sab.); 21.2.21.3 (29 Sab.) cf. Frag. Vat. 80 (Ulp. 17 Sab.) 160 D 27.7.4 pr.(36 ed.); 39.2.15.12 (53 ed.); 42.4.7.16 (59 ed.); 43.20.1.17 (70 ed.); 43.24.11.1, 8 (71 ed.); 44.4.4.8 (76 ed.) 161 D 25.4.1.9 (34 ed.); 43.26.4.1 (71 ed.); 30.49.8 (23 Sab.); 24.2.11.2 (3 Iul. Pap.); 25.3.5.9 (2 off. cons.); 40.2.16 (2 Ael. Sent.) but 49.1.4.5 (Macer 1 appell.) 162 D 5.2.8.14 (14 ed.); 14.3.13.1 (28 ed.); 47.2.93 (38 ed.); 39.1.5.2, 10 (52 ed.); 47.10.7.2; 47.10.15.23 (57 ed.); 39.5.7.5 (44 Sab.); 1.16.10 pr (10 off. proc.); 39.6.37 pr (15 Iul. Pap.); 36.1.6.1 (4 fid.)

2. The Oral Style

53

debemus,163 dummodo meminerimus,164 or notandum quod.165 Secundum quod dictum est166 draws an inference from what precedes. (iii) Phrases expressing Ulpian’s attitudes to legal propositions. Ulpian expresses his attitude towards the points of law he discusses in distinctive ways. To summarize a branch of the law or a principle generaliter dicendum est (‘in general it must be said’),167 or something akin, is a favourite. Half a dozen phrases disclaim doubt: dubio procul,168 nemini dubium est,169 nequaquam dubium est,170 non dubitamus,171 nulla dubitatio est172 (the last followed by the infinitive or accusative and infinitive) and quis dubitat?173 Nequaquam ambigendum174 and non est ambiguum175 are two other expressions used to deny that the law is uncertain. Non est incognitum176 denies obscurity, non est incivile177 legal impropriety. The correct view is heralded in positive form by dici oportere in various forms,178 and by melius dicetur,179 magisque est/erit,180 servari oportet,181 and sciendum,182 either put baldly, or, 163

164 D 21.1.1.8 (1 ed. cur.) D 43.20.1.44 (70 ed.) but interp. Citati (1927) 13 (Berger) D 3.4.5 (8 ed.); 9.2.25.2 (18 ed.); 11.5.1.2 (23 ed.); 13.6.1.1 (28 ed.); 25.4.1.5 (34 ed.); 39.2.15.3 (53 ed.) cf. notandum est quod: 10.4.3.2 (24 ed.); 25.3.1.5 (34 ed.); 37.4.10.3 (40 ed.); 43.15.1.6 (68 ed.); 21.1.25.7 (1 ed. cur.); 48.5.28.16 (3 adult.) but 37.4.4 pr. (Paul 41 ed.); notandum erit quod: 3.6.3.3 (Ulp. 10 ed.); 4.6.21.1 (12 ed.) but interp. Citati (1927) 61 (Pringsheim, Beseler) 166 D 4.2.16.1 (11 ed.) 167 D 13.3.1 pr (27 ed.); 40.12.12.3 (55 ed.); 47.8.2.23 (56/1 ed.); 42.5.9.4 (62 ed.); 43.13.1.3 (68 ed.); 43.19.3.10 (70 ed.); 35.3.3.8 (79 ed.); 47.2.27 pr (41 Sab.); 41.1.23.2 (43 Sab.) cf. generaliter dicendum erit and related expressions 4.6.26.9 (12 ed.); 13.7.9.3 (28 ed.); 47.4.1.6 (38 ed.); 37.11.1.9 (39 ed.); 37.10.1.3 (41 ed.); 29.1.13.2 (45 ed.); 43.26.8.6 (71 ed.); 48.19.8.7 (9 off. proc.); 36.1.17.2 (4 fid.); 40.5.24 pr (5 fid.); 48.5.16.4 (2 adult.) cf. Frag. Vat. 210 (off. pr. tut.) but interp. Citati 41: Eisele and others 168 D 5.3.31.2 (15 ed.); 24.3.22.7 (33 ed.); 43.12.1.5 (68 ed.); 36.1.23.5 (5 disp.); 40.9.30.2 (4 Ael. Sent.) 169 D 43.16.1.22 (69 ed.); 21.2.17 (29 Sab.); 23.3.5.11 (31 Sab.); 47.2.48.7 (42 Sab.); 46.1.8.6 (47 Sab.); 48.18.1.20 (8 off. proc.); 32.11.6 (2 fid.) but interp. Citati (1927) 32: Beseler 170 D 19.1.13.7 (32 ed.); 29.5.3.11 (50 ed.); 45.2.3.1; 46.1.8.12 (47 Sab) 171 D 3.3.33.1 (9 ed.); 11.1.11.8 (22 ed.); 37.5.5.8 (40 ed.); 37.9.1.15 (41 ed.); 23.2.45.3 (3 Iul. Pap.); 4.6.38.1 (6 Iul. Pap.) cf. 14.4.5 pr. (19 ed: nec nos dubitamus) 172 Twenty texts: D 27.5.1.3 (36 ed.); 28.1.22.6; 37.1.3.6 (39 ed.); 37.5.8.4 (40 ed.); 37.13.1.1 (45 ed., twice); 48.19.2.1 (48 ed.); 47.10.11.9 (57 ed.); 24.1.5.15 (32 Sab.); 26.4.2 (37 Sab.); 18.1.28; 47.2.25.2 (41 Sab.); 50.2.3.2 (3 off. proc.); 48.19.8.12 (9 off.proc.); 27.9.8 pr. (2 omn. trib.); 1.10.1.2 (2 off. cons.); 49.15.9 (4 Iul. Pap.); 48.2.5 (3 adult.); 48.5.30.9 (4 adult.); 1.10.1.2 (2 off. cons.) 173 D 39.1.5.12 (52 ed.); 39.2.24 pr (81 ed.); 46.4.8 pr. (18 Sab.); 47.10.30 pr (42 Sab.); 48.19.6 pr (9 off. proc.) but interp. Citati (1927) 31: Bonfante 174 175 D 44.4.4.26 (76 ed.) D 48.2.19 pr (4 disp.) but interp. Citati (1927) 10: Pringsheim 176 D 5.2.8.11 (14 ed.) 177 D 34.1.14.1 (2 fid.) 178 D 4.6.26.9 (12 ed.); 24.3.7. 12 (31 Sab., twice); 17.1.29 pr. (7 disp.); 5.1.52.2 (6 fid.); all dici oportet; 30.43.1 (21 Sab: dici oportebit); 10.4.7.4 (24 ed.); 12.4.5.4 (2 disp.); 33.4.2 pr. (5 disp.) all oportere dici; 47.2.46.5 (42 Sab: dici oporteat) but 34.9.22 (Tryph. 5 disp: non oportere dici) 179 D 4.8.21.10 (13 ed.); 29.4.10.2 (50 ed.); 39.2.15.13 (53 ed.); 43.16.1.38 (69 ed.); 30.41.4 (21 Sab.); 49.4.1.9 (1 appell.) but 24.1.31.3 (Pomp. 14 Sab.) 180 D 42.4.3.3 (59 ed.); 40.5.4.15, 16, 22 (60 ed., thrice); 28.8.8 (61 ed.); 29.2.71.1, 9 (61 ed., twice); 44.2.7.3 (75 ed.); 46.7.3.3, 8 (77 ed.); 45.3.7 pr. (48 Sab.); 37.14.16.1 (10 Iul. Pap.); 49.4.1.9 (1 appell.) but interp. Citati (1927) 54 181 182 D 27.9.11 (3 off. proc.) D 42.8.6.7 (66 ed.); 47.15.2 (9 off. proc.) 165

54

2. The Oral Style

more expansively, illud sciendum est.183 Sed est verius184 and est tamen verius185 also serve this purpose and, finally, palam est186 followed by the accusative and infinitive or the infinitive alone. Credo (‘I think’)187 is more tentative. The author endorses the opinions of other jurists with placet sententia,188 sententiam puto veram/veriorem189 or with sententia mihi . . . vera/verior videtur.190 He underlines the virtue of the solution espoused with benignum est,191 (sententia) habet aequitatem,192 habet rationem,193 non est sine ratione,194 and est tamen tutius.195 In rejecting wrong views or conduct,

183 Eighteen of 19 texts: D. 29.5.1.24 (50 ed.); 7.9.9.1 (51 ed.); 42.4.7.13 (59 ed.); 5.1.19.4 (60 ed.); 42.6.1.10 (64 ed.); 42.8.6.9 (66 ed.); 43.20.1.23 (70 ed.); 43.24.3.1 (71 ed.); 21.1.4.1 (74 ed.); 44.4.4.34 (76 ed.); 46.7.5.8 (77 ed.); 46.6.4.2; 7.9.1.2 (79 ed.); 24.1.7.9 (32 Sab.); 21.1.1.3; 21.1.19.4; 21.1.29 pr. (1 ed. cur.); 49.1.8 (4 appell.) but 18.6.18 (Pomp. 31 Q. Muc.) cf. 14.3.15 (Ulp. 28 ed: novissime sciendum est); 28.8.3 (60 ed: illud sciendum) 184 All twelve texts: D 4.2.9.8 (11 ed.); 4.3.7.3 (11 ed.); 6.1.15.3 (16 ed.); 27.3.1.4 (36 ed.); 28.7.8.5 (50 ed.); 44.4.4.8 (76 ed.); 7.4.29.2 (17 Sab.); 7.5.3 (18 Sab.); 34.3.5.2 (23 Sab.); 24.1.32.27 (33 Sab.); 26.2.10.3 (36 Sab.); 36.1.6.1 (4 fid.) 185 D 11.7.2.1 (25 ed.); 40.5.4.1 (60 ed.) 186 D 42.8.3 pr (66 ed.); 43.16.1.24 (69 ed.); 43.21.1.7 (70 ed.); 44.4.2 pr. (76 ed.); 46.7.5.3 (77 ed.); 19.1.10 (47 Sab.); 18.4.2.3; 45.1.38.3 (49 Sab.); 49.4.1.11 (1 appell.) cf. 43.29.3.13 (71 ed: palam erit); 35.3.3.3 (79 ed: palam sit). 187 Nineteen of 21 texts: D 4.4.7.2 (11 ed.); 11.7.14.2 (25 ed.); 18.2.16 (32 ed.); 25.6.1.11 (34 ed.); 37.5.3 pr (40 ed.); 43.19.1.11 (70 ed.); 28.3.6.6 (10 Sab.); 30.34.4 (21 Sab.); 32.70.9, 11 (22 Sab.); 40.7.3.17 (27 Sab.); 24.1.33.1 (36 Sab.); 48.19.9.3 (10 off. proc.); 29.2.42 pr. (4 disp.); 17.1.29.3 (7 disp.); 32.11.21 (2 fid.); 36.1.13.3 (4 fid.); 48.5.18 pr. (2 adult.); 29.1.6 (2 appell.) but 40.4.55 pr. (Maec. 2 fid.); 30.115 (Ulp. 2 inst. giving form of fideicommissum) 188 D 5.3.13.1 (nobis); 5.3.18 pr. (15 ed.); 10.4.19.1 (24 ed: nobis); 19.1.13.14 (32 ed: mihi); 42.8.10.16 (73 ed.); 1.6.6 (9 Sab: nobis); 33.6.13 (23 Sab: mihi); 18.4.2.7 (49 Sab: mihi) cf. 47.2.43.5 (41 Sab: placeat) 189 With variants in the word-order: D 14.1.1.8 (28 ed.); 15.3.13 (29 ed.); 25.4.1.13 (34 ed.); 42.7.2.5 (65 ed.); 28.2.3.4 (1 Sab.); 7.1.7.1; 7.1.9.2; 7.1.12 pr; 7.4.10.7; 28.5.17.1 (17 Sab); 7.1.13.3 (18 Sab.); 30.44.2 (22 Sab.) but 38.1.4 (Pomp. 4 Sab.) cf. 5.3.13. 8 (Ulp. 15 ed.); 11.3.11 pr (23 ed.); 15.1.11.2 (29 ed.); 39.2.15.34 (53 ed.); 43.19.3.16 (70 ed.); 44.4.4.6 (76 ed.); 21.1.33 pr. (1 ed. cur.) cf. 40.7.3.2 (27 Sab: veram putamus sententiam) 190 D 2.7.1.2 (5 ed.); 15.3.7.5 (29 ed.); 16.3.1.33 (Ulp. 30 ed.); 43.8.2.42 (68 ed.); 21.1.6.1 (1 ed. cur.); 28.5.9.14 (5 Sab.); 7.8.12.1 (17 Sab.); 24.2.4 (26 Sab.); 40.7.9.2 (28 Sab.) but cf. 18.1.35.2 (Gaius 10 ed. prov.) 191 D 21.1.49 (8 disp.); 32.5.1 (1 fid.) but interp. Citati (1927) 14: Gradenwitz etc. 192 Nine of 10 texts: D 2.2.1 pr (3 ed.); 3.5.3.9 (10 ed.); 14.4.7.1 (29 ed.); 17.2.63.5 (31/2 ed.); 47.4.1.1 (38 ed.); 37.6.1 pr (40 ed.); 37.10.3.13 (41 ed.); 43.26.2.2 (71 ed.); 23.3.16 (34 Sab.) but 43.26.15 pr (Pomp. 29 Sab.) 193 Twenty-six of 27 texts: D 19.1 32 (11 ed.); 4.8.21.4 (13 ed.); 9.2.27.11; 9.4.2.1 (18 ed.); 10.3.7.8 (20 ed.); 12.2.9.6 (22 ed.); 11.7.2.8. (25 ed.); 14.5.4.5 (29 ed.); 17.1.12.5 (31/1 ed.); 18.3.4.1 (32 ed.); 37.10.3.13 (41 ed.); 42.4.3 pr. (49 ed.); 39.2.13 pr. (53 ed.); 5.1.19.2 (60 ed.); 20.1.21.1 (73 ed.); 7.9.7 pr; 35.3.1.6 (79 ed.); 28.6.10.6; 28.5.6.4 (4 Sab.); 7.1.12.4; 7.4.3.2 (17 Sab.); 34.2.19.3 (20 Sab.); 41.9.1.4 (31 Sab.); 24.1.5.15 (32 Sab.); 27.3.5 (43 Sab.); 45.1.3.1 (49 Sab.) but 49.14.14 (Gaius 11 Iul. Pap.) cf. 13.6.7.8 (Ulp. 28 ed: videtur habere rationem); 27.3.17 (Ulp. 3 off. cons: non habet rationem, citing Sev. et Ant.) 194 D 13.7.11.4 (28 ed.); 14.4.9.2 (29 ed.); 42.4.7.11 (59 ed.); 16.2.13 (66 ed.); 28.5.9.4 (5 Sab.); 7.1.9.4 (17 Sab.); 37.4.17 (35 Sab.) 195 D 39.2.4.6 (1 ed.)

2. The Oral Style

55

he resorts to nec ferendus est,196 grave est,197 and improbum est.198 A currently accepted solution is endorsed by et ita utimur199 or et hodie hoc iure utimur.200 ‘It makes little difference’ ( parvi refert) 201 denies a distinction, while ‘unless perhaps’ (nisi forte) draws attention to one, both with typical understatement. For nisi forte Ulpian has 91 texts out of 117, but as explained the phrase does not count as Ulpianic in view of its frequent use by Marcellus.202 Both authors like to argue from case to case and to qualify what other authors say by pointing out that the law might be different if the facts were slightly different. In expressing his view on points of law Ulpian makes free use of the first person singular, unusually for the Severan age. His uses of ego, me, and mihi to refer to himself, rather than to a character in a legal example (‘if I sell you a horse’), amount to 175 out of a total of 270, or 65 per cent. This is a good deal higher than the 41 per cent that Ulpian’s excerpts form of the whole Digest, but short of the 75 per cent that would qualify for use as a mark of Ulpian’s style. Iavolenus203 and Celsus,204 in the age of Trajan, used the first person singular relatively more freely than Ulpian was to do later. But among his contemporaries Ulpian stands out for his frequent resort to the first person. He uses it at about three times the rate of Papinian205 and Paul.206 What is more, his uses tend to be emphatic. Thus, ego puto, a more categorical expression than ego autem puto, ego non puto, etc., is Ulpianic in the context of the Digest as a whole. He has 42 instances of it out of 51.207 So are ego

196 Ten of 11 texts: D 3.3.25 (9 ed.); 12.2.34.7 (26 ed.); 24.3.24.2 (33 ed.); 9.4.8 (37 ed.); 42.6.1.12, 15 (64 ed.); 23.3.33 (36 Sab.); 26.10.5 (3 disp.); 2.1.15 (2 omn. trib.); 22.6.6 (18 Iul. Pap.) cf. Frag. Vat. 207 (off. pr. tut.) but 45.1.99 pr (Cels. 38 dig.). 197 D 13.5.1 pr (27 ed.) cf. 12.3.4 pr (36 ed: grave videbatur). 198 D 28.7.8.6 (50 ed.); 21.4.49 (36 Sab.) 199 D 42.7.2.5 (65 ed.); 18.2.9 (28 Sab.); 50.17.23 (29 Sab.); 23.3.5.9 (31 Sab.); 47.2.41.3 (41 Sab.); 45.1.38 pr (49 Sab.) 200 D 49.1.14 pr (14 ed.); 42.4.7.13 (57 ed.); 49.12.1 (4 appell.) 201 Twenty-eight of 30 texts: D 23.1.18 (6 ed.); 13.5.27 (14 ed.); 5.3.25.5 (15 ed.); 9.2.29.2 (18 ed.); 14.1.1.6; 14.3.7.1 (28 ed.); 14.4.5.3; 15.1.3.2 (29 ed.); 26.7.7.1 (31 ed.); 27.8.1 pr (36 ed.); 9.4.38 pr (37 ed.); 37.10.1.4; 37.10.3.9 (41 ed.); 29.4.1.1; 29.5.3.24 (50 ed.); 40.12.8.2 (55 ed.); 47.10.9.2 (57 ed.); 44.5.1.8 (66 ed.); 43.24.1.2 (71 ed.); 38.16.2.3 (13 Sab.); 7.4.1 pr (17 Sab.); 32.49.4 (22 Sab.); 40.7.3.1 (27 Sab.); 8.4.6 pr; 38.1.7.7 (28 Sab.); 47.2.3.1 (41 Sab.); 45.2.3 pr; 46.1.6.1 (47 Sab.) but D 13.1.17 (Pap. 10 quaest.); 3.4.6.1 (Paul 9 ed. = Ulp.) cf. 34.3.5.2 (Ulp. 23 Sab: et parvi, inquit, refert ). Noted by Kalb (1890) 130 202 Honoré–Menner (1980) fiche 64 NISI; VIR 4.149–150; above n.21–2, 24 203 Five texts, plus eight in comments on Labeo 204 Nine texts 205 Seven texts 206 Twenty-two texts 207 Above n.51 (11 texts) plus Honoré–Menner (1980) fiche 54 EGO PUTO (31 other texts) but D.29.2.62 (Iav. 1 post.Lab.); 35.1.40.3 (Iav. 2 post. Lab.); 40.7.39.2 (Iav. 4 post. Lab.); 8.1.20 (Iav. 5 post. Lab.); 46.3.73 (Marc. 31 dig.); 4.2.4 (Paul 11 ed.); 17.1.58 (Paul 4 quaest.); 46.8.15 (Paul 14 Plaut.); 45.1.91.6 (Paul 17 Plaut.) cf. VIR 4.1349–50

56

2. The Oral Style

adquiesco,208 ego adsentio,209 ego arbitror,210 ego credo,211 ego moveor,212 ego opinor,213 ego quaero,214 and ego scio.215 Papinian, a restrained writer, does not once use ego. Ulpian does so on 102 occasions. But although self-confident his use of ego etc. need not point to egotism. In speaking as opposed to writing it is hardly possible to avoid a fairly frequent resort to ‘I’. Other phrases that make use of the first person, though without ego, include mea fert opinio ‘my opinion is’,216 invenio ‘I find’,217 memini ‘I remember’,218 ausim dicere ‘I dare say’,219 retineo 220 ‘I remember’, quaero ‘I ask’ (where it is the jurist, not the person consulting him, who inquires),221 and volo tractare,222 ‘I want to discuss’. One phrase deserves special mention. Si mihi proponas, ‘if you put it to me’, comes in nine texts of Ulpian and in no one else.223 It shows that he conceives himself as engaged in a debate with the reader. These illuminating texts are drawn not merely from Disputations, where they might be expected, but from the major commentaries on the praetor’s edict and on Sabinus. Other phrases, finge autem, which we have already met,224 accipe,225 accipies,226 and dicas,227 point the same way. It is a little more difficult to assess Ulpian’s use of the plural nos or nobis (‘we, us’) of himself. Of about 58 such texts in the Digest 31 come from our author, which is, again, at 53 per cent, more than proportionate to the volume of his surviving texts, but lower than for the first person singular. It is sometimes difficult to know whether nos means ‘lawyers’ or ‘those interested in the question’, or ‘the author’. The range of cases runs from quis nos sacerdotes appellet,228 ‘one could call us lawyers priests’ through aliud erit nobis dicendum,229 ‘I/ we lawyers shall have to say something different’, to et a nobis et a Papiniano probatum est,230 ‘I approve, and so does Papinian’. 208

209 D 43.20.1.17 (70 ed.) D 38.1.7.1 (28 Sab.) D 4.3.13.1; 4.4.3.4 (11 ed.); 41.1.44 (19 ed.); 10.4.11.1 (24 ed.); 16.3.1.38 (30 ed.); 43.26.8.5 (71 ed.); 33.7.12.14 (20 Sab.); 30.39 pr. (21 Sab.); 32.70.12 (22 Sab.); 32.55.2 (25 Sab.); 18.6.4 pr (28 Sab.); 23.4.4 (31 Sab.); 18.4.2.17 (49 Sab.); 15.1.36 (2 disp.); 8.5.26. 1 (2 adult.) but 41.1.63.3 (Tryph. 7 disp.) cf. Kalb (1890) 131 211 D 48.5.18 pr (2 adult.) 212 D 4.3.7.8 (11 ed.) 213 D 27.4.1.7 (36 ed.) but interp. Citati (1927) 63: Beseler, Levy 214 D 3.5.9.1 (10 ed.); 15.4.1.2 (29 ed.); 33.4.1.12 (19 Sab.) cf. 19.1.11.6 (Ulp 32 ed: ego illud quaero); 35.2.56.1 (Marc. 22 dig.) 215 D 48.19.3 (14 Sab.) 216 D 27.9.7.3 (35 ed.); 48.19.6 pr (9 off. proc.) cf. 24.1.32.14 (33 Sab.) 217 D 27.1.15.16 (1 excus.); 39.3.1.20 (53 ed.); 36.1.15.4 (4 fid.) 218 D 7.8.2.1 (17 Sab.); 36.1.18.5 (2 fid.); Kalb (1890) 129 219 220 D 38.16.1.1 (12 Sab.) D 35.1.92 (5 fid.) 221 222 Above n.214 and D 12.3.4.2 (36 ed.) D 24.1.32.14 (33 Sab.). 223 D 16.1.8.13 (29 ed.); 44.4.4.23 (66 ed.); 28.6.10.5 (4 Sab.); 32.52.7a (24 Sab.); 17.2.55; 46.3.12.3 (30 Sab.); 24.1.5.1; 49.17.6 (32 Sab.); 40.4.13.3 (5 disp.) 224 225 226 Above n.150 Below n.420 D 5.3.25.8 (15 ed.) 227 D 23.3.39.1 (33 ed.); 28.5.2.1 (2 Sab.); 23.4.4 (31 Sab.); 39.5.7.3 (44 Sab.) 228 229 D 1.1.1.1 (1 inst.) D 7.4.10.11 (7 Sab.) 230 D 24.1.32.27 (33 Sab.) but interp. Citati (1927) 61: Beseler 210

2. The Oral Style

57

The use of nos by a legal author to refer to himself does not seem to be recorded before Pomponius231 and Gaius.232 There is no such use, for example, in Labeo, Iavolenus, or Celsus, and the one instance attributed to Julian in the Digest is palpably interpolated.233 It is tempting to think that the habit spread to legal writing from an academic context. It expresses the relation of the teacher and author to those who, by reading his work, hope to learn and so are, in a sense, his pupils. In the Antonine and Severan ages most legal authors make occasional use of the idiom.234 What marks Ulpian, once again, is the categorical use of nos with the present indicative to underline his own opinion. This manner of writing does not appear, so far as I can judge, in other legal writers. Thus we have in Ulpian’s texts nos consentimus,235 nec nos dubitamus,236 nos opinamur,237 nos probamus,238 and nos putamus,239 expressions which would be taken as compilatorial were they not confined to Ulpian. Closely related to these are uses of verbs in the first person plural without nos, in which the subject is not specified, but the author probably intends himself to be understood: non dubitamus,240 invenimus,241 novimus,242 opinamur,243 ostendimus,244 (supra) probavimus,245 putavimus,246 spectamus,247 subsistimus,248 vetamus.249 As stated, it is at times unclear whether the subject is ‘we’ or ‘lawyers’. The author may not himself have been sure. This is true of addimus,250 adhibemus,251 admittimus (a favourite),252 aestimamus,253 animadvertimus,254 231

D 1.2.2 pr (Pomp. 1 enchir: necessarium itaque nobis videtur . . . demonstrare) D 44.7.1.15 (Gaius 2 rer. cott: non de eo nos loqui). This may not convince those who think Res cottidianae late or postclassical, but cf. 39.4.5.1 (Gaius ed. pr. urb: quaerentibus nobis), 1.2.1 (1 XII tab: libentius nos ad lectionem producunt), Inst. 1.188 (nosque . . . hunc tractatum executi sumus), 4.60 (sed nos apud quosdam scriptum invenimus) 233 D 9.2.51.2 (Iul. 86 dig), embedded in a long Tribonianic passage 234 Three texts in Africanus, 2 in Scaevola, 2 in Callistratus, 3 in Tryphoninus, 6 in Papinian, 4 in Paul, 2 in Macer, 1 in Modestinus 235 D 17.2.29.2 (30 Sab.) 236 D 14.4.5 pr. (29 ed.) 237 D 43.21.3.2 (70 ed.) 238 D 19.1.11.3 (32 ed.); 28.5.9.5 (5 Sab); 35.2.82 (8 disp.) 239 D 4.8.17.4 (13 ed.) 240 Above n.171 241 Spicil. Solesm. ed. Pitra (6 ed. Pal. 1.282 14); D. 38.17.2.47 (13 Sab.). D. 45.3.11 (Ulp. 48 Sab.) and 45.3.12 (Paul 10 quaest.) are not unequivocally self-referential 242 D 45.1.26 (42 Sab.) 243 D 11.3.1.1 (23 ed.); 43.21.3.2 (70 ed.); 28.5.4.2 (4 Sab.); 12.3.1 (51 Sab.) 244 Twelve of 13 texts: D 19.1.11.16 (32 ed.); 26.7.3.2; 26.10.1.5 (35 ed.); 27.7.4 pr (36 ed.); 38.6.1.4 (44 ed.); 50.16.195.3 (46 ed.); 28.5.4.2 (4 Sab.); 7.1.25.1; 7.1.25.6 (18 Sab.); 18.6.4.2 (28 Sab.); 28.5.35.2 (4 disp.); 36.1.13.1 (4 fid.) but 28.2.29.5 (Scae. 6 quaest.) cf. ostendi 14.4.3.2 (Ulp. 29 ed.) 245 D 14.3.13.2 (28 ed.); 30.71.4 (51 ed.); 40.5.24.18 (5 fid.) 246 D 4.4.3.2 (11 ed.) 247 Fourteen texts: D 3.5.9.1 (10 ed.); 4.4.3.1 (11 ed.); 9.3.5.11 (23 ed: expectamus?); 15.1.11.2; 5.3.3.6 (29 ed.); 17.2.63.6 (31/2 ed.); 38.2.3.20 (41 ed.); 49.17.8 (45 ed.); 47.8.2.22 (56/1 ed.); 42.4.7.15 (59 ed.); 43.29.3.1 (71 ed.); 34.2.19.13, 20 (20 Sab.), 24.1.32.14 (33 Sab.) 248 D 3.3.33 pr. (9 ed) 249 D 3.3.33 pr. (9 ed.) 250 D 41.2.13.1 (72 ed.); 1.1.6 pr. (1 inst.) 251 D 25.4.1.3 (34 ed.); 28.1.22.5 (39 ed.) 252 D 3.3.33 pr. (9 ed.); 14.1.1.5 (28 ed.); 37.5.1.2 (40 ed.); 37.9.1.5; 37.11.2.4 (41 ed.); 38.6.1.6 (46 ed.); 47.8.4.3 (56 ed.); 43.24.9 pr; 43.24.11.13 (71 ed.); 38.16.2.5; 38.17.2.17 (13 Sab.); 38.4.3.2 (14 Sab.); 24.1.32.18 (33 Sab.); 26.1.3.1 (37 Sab.); 48.5.28.2 (3 adult.) 253 D 9.2.21.2 (18 ed.) 254 FV 156 (1 excus.) 232

58

2. The Oral Style

applicamus,255 comparamus,256 computamus,257 credimus,258 damus (actionem etc.),259 defendimus,260 demonstramus,261 desideramus,262 detrahimus,263 distinguimus,264 ducimus,265 efficimus,266 movemur,267 observamus,268 punimus,269 quaerimus,270 referimus,271 requirimus,272 revocamus,273 sequimur,274 solemus dicere,275 tollimus,276 trahimus,277 and videmus.278 There are some future forms: accomodabimus,279 adsumemus,280 aestimabimus,281 cogemus,282 contribuemus,283 convertemus, 284 deliberabimus,285 excusabimus,286 exigemus,287 eximemus,288 exsequemur,289 numerabimus,290 observabimus,291 restituemus,292 sequemur,293 servabimus,294 subveniemus.295 The number and variety of forms in which Ulpian speaks for lawyers or for the Roman government is a measure of his self-confidence. These traits emerge in texts where the author treats his own opinions about the law, rather than the law itself, as the object of debate. Here are some of them: ‘No one should suppose that I think . . .’ (haec utique nemo credet in testamentis nos esse probaturos;296 nec quisquam putet hoc nos existimare).297

255

256 D 33.8.8.8 (25 Sab.) D 1.5.10 (1 Sab.); 50.17.209 (4 Iul. Pap.) D 41.3.6 (11 ed.); 42.1.4.5 (56 ed.); 42.8.16.4 (66 ed.); 32.52.1 (24 Sab.); 24.3.7.8 (31 Sab.); 49.4.1.5 (1 appell.) 258 D 28.5.1.5 (1 Sab.); 24.1.5.15 (32 Sab.) 259 Eleven texts: actionem D 3.6.5.1 (10 ed.); 47.12.3.9 (25 ed.); 14.1.1.20 (28 ed.); 43.18.1.4 (70 ed. = 50.17.156.1); 47.2.12.2; 47.2.14.17 (29 Sab.) cf. 14.4.9.2 (29 ed. = 50.17.44 actionem understood) cf. 4.6.28.3 (12 ed.); 26.10.1.3 (35 ed.); 13.4.2.3 (37 ed.); 38.2.3.20 (42 ed.) 260 261 D 24.1.32.14 (33 Sab.); 40.5.26.1 (5 fid.) D 50.16.195.2 (46 ed.); 15.1.41 (43 Sab.) 262 D 50.16.199 pr (8 omn. trib.) 263 D 15.3.10.8 (29 ed.); 33.8.8.8 (25 Sab.); 1.1.6 pr. (1 inst.) 264 265 D 28.6.10.6 (4 Sab.); 7.1.22 (18 Sab.) D 23.3.23 (35 Sab.) 266 267 D 1.1.6 pr. (1 inst.) D 4.4.3.4 (11 ed. nec eo movemur quod . . .) 268 269 D 17.2.63.8 (31/2 ed.); 36.4.5.3 (52 ed.) D 38.17.2.34 (13 Sab.) 270 271 D 9.2.5.2 (18 ed.); 38.5.1.1 (42 Sab.) D 15.1.41 (43 Sab.) 272 273 D 38.5.1.1 (42 Sab.) D 37.14.16.1 (10 Iul. Pap.) 274 D 36.4.5.21 (52 ed.); 39.3.1.23 (53 ed.); 50.17.9 (15 Sab.); 26.2.10.1 (36 Sab.); 50.17.34 (45 Sab.); 45.1.41 pr (50 Sab) 275 D 2.14.10.2 (4 ed.); 16.3.1.18 (30 ed.); 19.1.13.31 (32 ed.); 37.1.3 pr (39 ed.); 47.9.1.2 (56 ed.); 47.10.7.1 (57 ed.); 50.16.46 pr. (59 ed.); 43.12.1.14 (68 ed.); 44.1.2.4 (74 ed.); 28.5.6.2 (4 Sab.); 35.1.9 (20 Sab.); 34.3.5 pr (23 Sab.); 45.1.38.9; 50.16.178.2 (49 Sab.) cf. 2.14.7.5 (4 ed.); 28.5.3.4 (3 Sab.); 5.1.61 pr (26 ed.); 29.3.2.1 (50 ed.). Dicere solemus: D. 50.16.111 (Iav. 6 Cass.); 47.10.1 pr. (Ulp. 56 ed.) 276 277 D 15.3.10.8 (29 ed.) D 13.5.16.4 (27 ed.); 24.1.3.3 (32 Sab.) 278 279 D 33.7.12.27 (20 Sab.); 23.3.9.3 (31 Sab.); 1.1.1.3 (1 inst.) D 40.5.30.4 (5 fid.) 280 281 D 45.1.41 pr (50 Sab.) D 42.3.6 (64 ed.) 282 283 D 39.3.1.23 (53 ed.); 25.3.5.4 (2 off. cons.) D 29.4.6.2 (50 ed.) 284 285 286 D 29.4.2.1 (7 Sab.) D 3.1.1.5 (6 ed.) D 9.4.2.1 (18 ed.) 287 288 D 14.1.1.16 (28 ed.); 37.11.1.4 (39 ed.); 37.5.10.1 (40 ed.) D 47.10.17.7 (57 ed.) 289 290 291 D 3.1.1.10 (6 ed.) D 9.2.21.1 (18 ed.) D 38.5.1.13 (44 ed.) 292 D 42.2.6.6 (5 omn. trib.) 293 D 16.3.1.1 (30 ed.); 33.1.3.3 (24 Sab.); 45.1.41 pr (50 Sab.) 294 295 296 D 44.4.4.31 (76 ed.) D 42.6.1.6 (64 ed.) D 32.1.1 (1 fid.) 297 D 6.2.7.17 (16 ed.) cf. 9.2.27.9 (18 ed.); 11.7.4 (25 ed.); 26.7.3.2 (35 ed.); 26.7.9.1 (36 ed.) 257

2. The Oral Style

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‘I remember saying that . . . ’ (et retineo me dixisse . . . ;298 ut in iunctura argentea scio me dixisse).299 ‘The deified Marcus replied in accordance with my view’ (secundum nostram sententiam etiam divus Marcus rescripsit)300 ‘I noted in a comment on Marcellus that I did not think this should be said to apply to all wrongs’ (apud eum notavi non de omni iniuria hoc esse dicendum me putare)301

Ulpian uses nos and me about equally in these texts. It would be hard to find any parallel to them in Roman legal literature. But, as will appear in chapter 7,302 an assured sense of his standing is a feature of the earlier rather than the later years of Caracalla’s sole reign. (iv) Uses of the future instead of the present tense. A feature of writing about law not shared by other branches of learning is that statements of law can be in either the present or the future tense. ‘The contract is binding’ and ‘the contract will be binding’ are equivalent. The tense has no temporal connotation, but the future draws attention to the hypothetical character of statements of law in relation to assumed facts. Perhaps, too, the use of the future fits a forward-looking, optimistic, outlook, the optimism of a lawyer who is confident that the correct view will prevail. Ulpian is a partisan of the future tense. Whether he is so to a greater extent than any other Digest lawyer could not be settled without excessive labour. But it is clear that Ulpian often uses, at least as a variant, the future form of a verb when others confine themselves to the present. An example is dicendum erit,303 ‘it will have to be said’, viz. that the law is so and so. Whereas dicendum est is commonly found in legal writing, dicendum erit304 and erit dicendum305 come 179 times in texts of Ulpian and only 15 times in other writers. Confined to Ulpian are the forms et dicendum erit,306 et ita erit dicendum,307 et generaliter dicendum erit,308 et generaliter erit dicendum,309 and et ideo

298

299 D 34.2.19.8 (20 Sab.); Pernice (1885) 382 D 35.1.92 (5 fid.) 301 D 47.10.11.7 (57 ed.) 302 Below ch.9 n.10–23 D 29.1.3 (2 Sab.) 303 Honoré–Menner (1980) fiche 53 DICENDUM. cf. VIR 2.217–9 304 Honoré–Menner (1980) fiche 53 DICENDUM ERIT (77 texts), but D 36.1.67.1 (Maec. 5 fid.); 23.2.48 pr (Ter. Clem. 8 Iul. Pap.); 4.2.17 (Paul 1 quaest.); 31.82 pr (Paul 10 quaest.); 18.1.15.2 (Paul 5 Sab.); 41.3.44.4 (Pap. 23 quaest.); 2.8.15.5 (Marci. 1 appell.); 48. 19.10.2 (Macer 2 pub. iud.). The non-Ulpian texts mostly have idem dicendum erit or the like 305 Honoré–Menner (1980) fiche 55 ERIT DICENDUM (102 texts) but D 13.6.13.2 (Pomp. 11 Sab.); 39.2.29 (Gaius 28 ed. prov.); 28.5.48 pr (Afr. 4 quaest.); 33.9.4.5 (Paul 4 Sab.); 38.2.42.2 (Pap. 13 quaest.); 34.5.15 (Marci. 2 reg.); 20.1.16.8 (Marci. 1 hyp.) 306 D 5.3.25.9 (15 ed.) cf. 43.21.3.6 (70 ed: et erit dicendum) 307 D 4.4.3.3 (11 ed.) 308 D 13.7.9.3 (28 ed.) 309 D 43.26.8.6 (71 ed.) 300

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dicendum erit.310 Idem erit dicendum comes in 81 texts of Ulpian311 and 6 of other lawyers,312 dicendum erit or erit dicendum (without et or idem) in 92 texts of Ulpian out of 96.313 Probandum erit (‘it will have to be approved’ viz. that the law is such-and-such) is parallel.314 Of 33 texts with erit probandum or probandum erit 32 are Ulpian’s.315 For the commonest form, idem erit probandum, all 22 texts are his; so are the 2 texts with idemque erit probandum. There is a contrast between cessat, ‘does not apply’, and cessabit, ‘will not apply’. According to my criteria, cessat is not Ulpianic, since, though 81 texts out of 101 come from him,316 the 20 from other lawyers include 12 from Paul.317 Cessabit is a different matter. Here 44 texts out of 46 are Ulpian’s;318 there are also three texts, all his, with cessabunt.319 Accipere tells the same story. The Tyrian has all 21 texts with accipiendum erit320 and erit accipiendum (‘it will have to be accepted that . . .’),321 together with 25 of accipiemus out of 28,322 and all seven of accipietur.323 He has the only texts with erit admittendum324 and erit notandum.325 All 13 instances of

310 312 314

311 Honoré–Menner (1980) fiche 59 IDEM D 38.17.2.9 (13 Sab.) 313 Above n.304–5 Above n.305 Honoré–Menner (1980) fiche 67 PROBANDUM. VIR 4.1174–84 is not helpful in this connec-

tion 315 D 15.1.11.7 (29 ed.); 17.1.8.6 (31/1 ed.); 38.5.1.6; 38.5.1.20 (44 ed.); 39.2.15.34 (53 ed.); 47.10.5.3 (56/2 ed.); 47.10.13.5 (57ed., twice); 42.1.5.1 (59 ed.); 40.5.4.5, 17 (60 ed.); 42.6.1.10 (64 ed.); 41.2.4; 43.3.1.12 (67 ed.); 11.8.1.3 (68 ed.); 43.17.4 (70 ed.); 43.24.3.4 (71 ed.); 43.24.15.11; 43.24.11.8, 13 (71 ed.); 20.6.4.1; 42.8.2; 42.8.10.20 (73 ed.); 44.2.7 pr; 44.2.7.5 (75 ed.); 44.4.4.21; 44.5.1.6 (76 ed.); 29.2.6.2 (6 Sab.); 18.2.4.6 (28 Sab.); 45.3.11 (48 Sab.); 48.22.7.11 (10 off. proc.); 24.2.11.2 (3 Iul. Pap.); 49.9.1 (4 appell.) but 28.5.85.1 (Paul 23 quaest.) 316 Honoré–Menner (1980) fiche 51 CESSAT but interp. Citati (1927) 16 Beseler etc cf. VIR 1.725–6 17 317 Honoré–Menner (1980) fiche 51 CESSAT 318 Honoré–Menner (1980) fiche 51 CESSABIT 319 D 2.1.7.2 (3 ed.); 25.3.5.19 (2 off. cons.); 42.1.15.6 (3 off. cons.) 320 D 39.2.15.35 (53 ed.); 33.9.3.6 (22 Sab.); 36.1.18.4 (2 fid.) 321 D 4.4.9.5 (11 ed.); 12.2.7 (22 ed.); 21.2.37.1 (32 ed.); 27.3.1.15 (36 ed.); 38.8.1.8 (46 ed.); 42.6.1.13 (64 ed.); 28.6.2 pr. (6 Sab.); 38.16.2 pr (13 Sab.); 38.17.2.43 (13 Sab.); 30.34.4 (21 Sab.); 18.6.4.2 (28 Sab.); 25.1.5 pr (36 Sab.); 30.74 (4 disp.); 9.2.49.1 (9 disp.); 39.6.37 pr (15 Iul. Pap.); 36.1.18.3 (2 fid., twice ); 48.5.24.4 (1 adult.) cf. 4.6.26.5 (12 ed.); 6.2.9.1 (16 ed: both erit accipienda); 40.4.13.3 (5 disp: erunt accipienda) 322 D 2.8.2.3 (5 ed.); 3.2.2.1 (6 ed.); 4.9.1.5 (14 ed.); 5.3.20.15 (15 ed.); 9.2.5.1; 9.2.27.17(18 ed.); 14.1.1.21; 50.16.185 (28 ed.); 37.11.1.6 (39 ed.); 38.8.1.4 (46 ed.); 48.19.2.2 (48 ed.); 40.12.22.1 (55 ed.); 47.8.2.11; 47.8.4.3 (56 ed.); 50.16.45 (58 ed.); 40.5.4.11 (60 ed.); 46.7.3.6 (77 ed.); 7.9.3.1 (79 ed.); 23.3.33 (6 Sab.); 21.1.23.2; 21.1.27; 21.1.31.12 (1 ed. cur.); 40.16.2.1 (2 off. cons.); 1.12.1.8 (off. pr. urb.); 23.2.43.8 (1 Iul. Pap.) cf. Collatio 2.4.1 (18 ed.), Frag.Vat. 188 (off.pr. tut.) but D 13.6.18 pr. (Gaius 9 ed. prov.); 24.2.9 (Paul 2 adult.); 48.16.13 pr (Paul 3 adult.) 323 D 4.6.21.3 (12 ed.); 5.2.8.9 (14 ed.); 38.8.1.5 (46 ed.); 47.9.1.2 (56/1 ed.); 33.6.11 (23 Sab.); 46.1.8.7 (47 Sab.); 28.5.35 pr (4 disp) 324 D 50.2.2.5 (1 disp.); 43.24.13.4 (71 ed.) cf. 5.4.1.4 (15 ed: erit admittenda) 325 D 3.6.3.3 (10 ed.); 4.6.21.1 (12 ed.)

2. The Oral Style

61

consequenter dicemus 326 and 26 of 27 with consequens erit dicere 327 come from him. So do all three with definiemus,328 all five with dicet quis,329 six of seven with melius dicetur,330 all seven with officium erit (of the praetor etc.).331 He has the only passages with accedendum,332 recedendum,333 and distinguendum erit.334 He alone writes in ea erit causa, as opposed to in ea causa est.335 Aequissimum est is found in other writers, but aequissimum erit (‘it will be most equitable’) only in Ulpian, 26 times.336 Nullius momenti est occurs in others, nullius erit momenti only in our author.337 Meminisse oportet is found in others, meminisse oportebit is Ulpianic.338 Locus est, ‘there is room for . . .’, is fairly common in legal writing, erit locus and locus erit with 22 mentions between them, are confined to Ulpian.339 The list includes erit consequens,340 difficile erit,341 dubium non erit,342 fortasse or fortassis with the future indicative,343 and gravabitur.344 We have already met et eveniet,345 et intererit,346 and et erit procedendum.347 Ulpian’s liking for future tenses is not a constant.

326 D 12.2.11.1 (22 ed.); 17.1.10.3 (31/1 ed.); 25.2.17 pr (34 ed.); 27.9.5.14 (35.ed.); 37.5.3.5 (40 ed.); 43.16.3.15 (69 ed.); 30.49.1 (23 Sab.); 18.6.1 pr (28 Sab.); 24.1.7.3 (32 Sab.); 48.22.7.13 (10 off. proc.); 10.2.49 (2 disp.); 28.5.35.1 (4 disp.); 4.6.38 pr (6 Iul. Pap.) cf. 37.6.5 pr. (79 ed: consequenter erit dicendum) 327 D 11.1.9.4 (22 ed.); 26.10.1.4; 26.10.3.6; 27.9.5.3 (35 ed.); 29.1.11 pr (45 ed.); 29.6.1.1 (48 ed.); 47.10.3.1 (56/2 ed.); 47.10.17.1 (57 ed.); 42.1.4.4 (58 ed.); 42.4.7.3 (59 ed.); 40.5.4.5 (60 ed.); 43.4.3 pr (68 ed.); 43.24.15.12; 46.7.3.7 (71 ed.); 43.32.1.4 (73 ed.); 44.2.7.3 (75 ed.); 39.5.19.3; 44.6.1.1 (76 ed.); 46.7.5.3 (77 ed.); 46.6.4.7 (79 ed.); 39.2.30.1 (81 ed.); 18.4.2.11, 16 (49 Sab.); 46.4.13.1 (50 Sab.); 2.12.1.1 (4 omn. trib.); 36.1.17.9 (4 fid.) cf. Frag. Vat. 269 (46 Sab.) but 29.1.41.5 (Tryph. 18 disp.) 328 D 37.1.3.2 (39 ed.); 25.1.3.1 (36 Sab.); 26.1.3.1 (37 Sab.) 329 D 27.9.7 pr (35 ed.); 38.17.2.41 (13 Sab.); 32.55.7; 50.16.167 (25 Sab.); 41.1.33.1 (4 disp.) 330 Above n.179 331 D 39.2.4 pr. (1 ed.); 6.1.9 (16 ed.); 7.6.5.6 (17 ed.); 10.3.6.9 (19 ed.); 26.7.5.8 (35 ed.); 36.4.5.22 (52 ed.); 39.3.6.6 (53 ed.) 332 333 334 D 42.1.4.3 (58 ed.) D 43.29.3.7 (71 ed.) D 44.2.11.10 (75 ed.) 335 D 42.4.7.5 (59 ed); 2.11.4.1 (74 ed.); 45.1.38.22 (49 Sab.) 336 D 3.5.13 (10 ed.); 4.8.13.4 (13 ed.); 5.3.13.9 (15 ed.); 5.3.37 (15 ed.); 4.9.7.3 (18 ed.); 14.3.11 pr (18 ed.); 14.3.11.5 (28 ed.); 16.3.1.27 (30 ed.); 17.1.12.9 (31/1 ed); 25.4.1.8 (34 ed.); 26.10.3.7 (35 ed.); 27.3.1.11 (36 ed.); 37.4.3.4 (39 ed.); 37.5.3.6 (40 ed.); 36.4.5.30; 39.1.5.10 (52 ed.); 47.10.7.2. (57 ed.); 43.14.1.7 (68 ed.); 43.18.1.5 (70 ed); 30.53.8 (25 Sab.); 21.1.17.19 (1 ed. cur.); 36.1.23.3 (5 disp.); 2.15.8.22 (5 omn. trib.); 36.1.6.3 (4 fid.); 40.5.24.14 (5 fid.); 42.1.15.9 (3 off. cons.) cf. Kalb (1890) 132 337 D 29.1.15.1 (45 ed.); 26.8.5.2 (40 Sab.); 46.4.13.1 (50 Sab., twice); 2.15.8.17 (5 omn. trib.); 26.5.8.1 (8 omn. trib.) cf. 50.9.4.2 (1 off. cur. reip: ullius erit momenti) 338 Above n.162 339 D 4.2.9.1 (11 ed.); 9.1.1.7; 9.2.7.4 (18 ed.); 14.6.7.12 (29 ed.); 26.7.5.3 (35 ed.); 27.4.1.3 (36 ed.); 13.1.10.2; 47.4.1.11 (38 ed.); 38.5.1.17 (44 ed.); 39.2.15.33 (53 ed.); 43.12.1.15 (68 ed.); 43.20.1.14 (70 ed.); 39.1.20.2, 7; 43.24.9.3 (71 ed.); 43.22.1.5 (73 ed.); 18.4.2.11 (49 Sab.); 21.1.1.5 (1 ed. cur.); 10.2.49 (2 disp.); 36.1.1.12 (3 fid.); 36.1.17.9 (4 fid.); 37.14.16.1 (10 Iul. Pap.) cf. locus non erit 40.4.12 (50 ed.); 39.1.20.13 (71 ed.) 340 D39.5.19.3 (76 ed.); 50.17.34 pr (45 Sab.) 341 D 50.16.99.2 (1 off. cons.) 342 D 12.2.11.3 (22 ed.) 343 D 6.1.15.1 (16 ed.); 15.1.30.6 (29 ed.); 37.10.5.3 (41 ed.); 50.16.167 (25 Sab.); 32.55.7 (25 Sab.); 50.13.1.3 (8 omn. trib.) 344 D 43.16.1.15 (69 ed.) 345 Above n.66 346 Above n.69 347 Above n.71

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It curves upward to a peak and then declines,348 a variation that helps to plot the order of his works. (v) Inversions of the traditional Latin word-order. The reader will already have noticed some inversions of the classical literary Latin word-order. The auxiliary often comes before the main verb, erit admittendum for admittendum erit, est decretum for decretum est. The object sometimes follows the verb: habet aequitatem 349 or habet rationem 350 instead of aequitatem/rationem habet. There are other instances with habere and other verbs followed by a noun.351 This verb–object order in Ulpian’s writing rests, no doubt, on his habit of dictating that carries with it a tendency to slip into the order that prevailed in ordinary speech. It does not predominate in his writing, but it occurs more frequently than in other legal authors of his and earlier ages. In later Latin inversions of this sort become standard.352 If we begin with a more striking feature, the inversions of erit and the gerundive, we find, taking the -um ending to include endings in -a or -us, a long list. Apart from erit accipiendum, admittendum,353 dicendum,354 notandum,355 probandum,356 and procedendum,357 there are uses, confined to Ulpian among lawyers, of erit agendum,358 audiendum,359 cavendum,360 cogendum,361 concedendum,362 conveniendum,363 dandum (actio etc.),364 decurrendum,365 defendendum,366 descendendum,367 detrahendum,368 excipiendum,369 348

Honoré (1982) 189–90 D 3.5.3.9 (10 ed.); 14.4.7.1 (29 ed.); 17.2.63.5 (31/2 ed.); 37.10.3.13. (41 ed.) 350 Above n.193 351 D 37.15.5.1 (10 ed.); 4.8.31 (13 ed.); 12.1.9.3 (26 ed.); 14.4.1.3 (29 ed.); 47.6.1.1 (38 ed.); 47.10.7.1 (57 ed.); 44.4.4.10; 44.4.7.1; 44.5.1.6 (76 ed.); 35.3.3.1 (79 ed.); 32.50.4 (23 Sab.); 33.8.6.1 (25 Sab.); 25.1.1.1, 2; 26.2.10.2 (36 Sab.); 46.3.7 (43 Sab.); 2.15.8.24 (5 omn. trib.) all with habere, cf. 4.4.25 (Gaius 4 ed. prov: nullam habet dubitationem); CJ 2.11.8 (20 Feb. 205: non laesit existmationem tuam); 5.37.1 (20 Sept 206: times administrare res adulescentis); D 3.3.39.1 (9 ed: agit quamcumque actionem); 4.4.9.4 (11 ed: capit restitutionem); 27.3.1.19 (36 ed: gerunt tutelam); 9.2.27.29 (18 ed: tollit actionem); 37.11.1.8 (39 ed: facit testamentum); 29.4.1.10 (50 ed: si possideat hereditatem); 39.3.1.23 (53 ed: non cogemus vicinum aggeres munire); 38.17.2.34 (13 Sab: matris punimus consilium); 7.6.1.1 (18 Sab: sequitur usumfructum); 47.2.17.3 (40 Sab: movet quaestionem); 27.1.7 (1 excus: dat excusationem); 48.5.14.10 (2 adult: accusat mores). There are plenty of examples but the older object–verb form predominates 352 Pompeius in Keil (1855–80) 5.139–50; Kaster (1988) 139–60 353 Above n.321, 324 354 Above n.305 355 Above n.325 356 Above n.315 357 Above n.71 358 D 2.7.3 pr (5 ed.); 9.2.27.17, 28 (18 ed.); 13.6.3.4 (28 ed.); 47.10.15.29 (57 ed.); 43.5.3.5 (68 ed.); 10.3.12 (71 ed.); 19.5.14.3 (41 Sab.) 359 D 3.3.25 (9 ed.); 38.5.1.15 (44 ed.); 36.1.13.2 (4 fid.); 1.12.1.5 (1 off. pr. urb.) 360 D 39.2.15.31 (53 ed); 39.2.15 pr (53 ed.); 46.7.3.3 (77 ed.); 39.1.21.6 (81 ed.) 361 D 4.8.17.4 (13 ed.); 40.5.24.12 (5 fid., twice) 362 D 40.2.20.2 (2 off. cons.) 363 D 4.9.3.3 (14 ed.); 15.2.1.7 (29 ed.); 17.1.6.1 (31/1 ed.); 29.4.10.2 (50 ed.) 364 D 3.3.27.1 (9 ed.); 3.5.11.1 (10 ed.); 4.3.7.9; 4.3.13 pr (11 ed.); 9.2.7.3; 9.2.11.8 (18 ed.); 47.12.3.11 (25 ed.); 42.8.6.11 (66 ed.); 43.17.4 (70 ed.); 24.3.64.9 (7 Iul. Pap), but 40.5.37 (6 fid. citing divus Marcus) 365 366 D 11.6.5 pr. (24 ed.) D 50.2.3. pr. (3 off. proc.) 367 D 4.6.26.9 (13 ed.); 43.33.2 (73 ed); 7.5.11 (18 Sab.) 368 369 D 44.4.4.16 (76 ed.); 39.5.12 (3 disp.) D 44.4.4.16 (76 ed.) 349

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exigendum,370 faciendum,371 ignoscendum,372 innovandum,373 inspiciendum,374 interponendum,375 interpretandum,376 intuendum,377 invidendum,378 liberandum,379 movendum,380 obiciendum,381 observandum,382 permittendum,383 plectendus,384 praestandum,385 prospiciendum,386 provocandus,387 quaerendum,388 ratum habendum,389 redhibendum,390 reducendum,391 referendum,392 repellendum,393 requirendum,394 restituendum,395 revocandum,396 satisdandum,397 sequendum,398 servandum,399 spectandum,400 statuendum,401 subveniendum,402 transeundum,403 transferendum,404 tribuendum,405 utendum.406 Indeed, the use of the erit plus gerundive construction is itself a mark of Ulpian’s style. It occurs in his work at least 250 times,407 against 35 for all other lawyers: 9 for Paul, 7 for Papinian (mainly in the negative form non erit . . .), and 6 for Pomponius.408 Its use in a legal text may be taken as a pointer to Ulpian’s authorship. Another set of inversions involve putting est as an auxiliary before the main verb, as in est agitatum,409 est constitutum,410 est decretum,411 est 370

371 D 4.4.7.8 (11 ed.); 37.6.1.17 (40 ed.) D 36.4.3.2 (52 ed.) 373 D 49.7.1.1 (4 appell.) D 38.17.2.44. (13 Sab.) 374 D 46.3.24 (47 ed.); 43.13.1.8. (68 ed.) 375 D 37.6.1.11 (40 ed.); 7.5.10.1 (79 ed.) 376 D 43.3.1.11 (67 ed.) 377 D 43.13.1.8 (68 ed) 378 D 7.8.4 pr. (17 Sab.) 379 D 34.3.5.4 (23 Sab) 380 D 43.29.3.13 (71 ed.) 381 D 21.1.59.1 (74 ed.) 382 D 26.7.3.5 (35 ed.); 43.15.1.6 (68 ed.) 383 D 42.5.15 pr (62 ed.) 384 D 11.7.8.2 (25 ed); 48.19.9.15 (10 off. proc.); 48.5.30.2 (4 adult.) 385 D 19.1.13 pr (32 ed.); 30.47.1 (22 Sab.); 37.11.5.1 (4 disp.) 386 D 37.10.3.12 (41 ed.) 387 D 49.3.1 pr, 1; 49.4.1.4 (1 appell.). 388 D 26.10.3.7 (35 ed.) 389 D 12.2.5 pr. (22 ed.) 390 D 21.1.12.1 (1 ed. cur.) 391 D 13.3.3 (27 ed.) 392 D 37.9.7.1 (47 ed.); 33.4.1.4 (19 Sab.) 393 D 38.2.14.11 (45 ed.); 36.2.14.2 (24 Sab.) 394 D 2.15.8.9 (5 omn. trib.) 395 D 4.4.3.4 (11 ed.); 24.1.7.3 (32 Sab.) 396 D 42.8.10.11 (73 ed.) 397 D 36.4.3.2 (52 ed.) 398 D 48.19.32 (6 ed.); 29.4.6.1 (50 ed.); 30.39.1 (21 Sab.) 399 D 3.2.19 (8 ed.) 400 D 6.2.7.13 (16 ed.); 13.3.3 (27 ed.) 401 D 2.11.2.8 (74 ed.) 402 D 38.2.8.1 (43 ed.); 2.11.2.2 (74 ed.) 403 D 39.1.1.1 (52 ed.) 404 D 3.3.25 (9 ed.); 21.1.38.3 (2 ed. cur.) 405 D 14.4.5.9 (29 ed.) 406 D 43.13.1.12 (68 ed.) 407 Texts in n.305, 309, 311, 313, 315, 321, 324, 325, 352–406 408 Above n.305 and D 41.1.65.3 (Lab. 6 pith.); 35.1.68 (Iav. 2 Cass.); 41.2.51 (Iav. 5 post. Lab.); 28.6.16 pr (Pomp. 3 Sab.); 21.2.16 pr (Pomp. 9 Sab.); 34.2.34.2 (Pomp. 9 Sab.); 31.43.1 (Pomp. 3 Q. Muc.); 36.1.72.1 (Pomp. 2 fid.); 32.13 (Maec. 2 fid.); 40.5.32 pr (Maec. 15 fid.); 38.5.6 (Iul. 26 dig.); 48.5.6 pr (Pap. 1 adult.); 36.3.5.3; 24.3.40 (Pap. 28 quaest.); 46.1.51.2 (Pap. 3 resp.); 31.76 pr. (Pap. 7 resp.); 31.77.16 (Pap. 8 resp.); 3.4.6 pr (Paul 9 ed. = Ulp. 9 ed.); 12.2.30.2 (Paul 18 ed.); 10.1.4.1 (Paul 23 ed.); 10.2.29 (Paul 23 ed.); 15.1.26 (Paul 30 ed.); 17.2.65.3 (Paul 32 ed.); 3.3.61 (Paul 1 Plaut.); 48.20.7.1 (Paul 1 port. lib. damn.); 27.1.45.4 (Tryph. 13 disp.); 3.5.28 (Call. 3 ed. mon.); 20.6.8.14 (Marci. 1 hyp.) 409 D 15.1.36 (2 disp.) 410 D 2.13.4.5 (4 ed.); 3.6.5 pr; 22.1.37 (10 ed.); 4.4.3.1 (11 ed.); 4.1.6 (13 ed.); 13.6.5.2 (28 ed.); 17.1.12.9 (31/1 ed.); 42.8.10.13 (73 ed.); 28.3.6.8, 10 (10 Sab.); 50.12.3 pr (4 disp., twice); 48.1.5.1 (8 disp.); 40.5.24.21 (5 fid.) but 50.16.244 (Lab. 4 pith. interp.); 16.3.24 (Pap. 9 quaest.); 3.5.27 (Tryph. 2 disp.); 47.22.1.2 (Marci. 3 inst., derivative) 411 Above n.77 372

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2. The Oral Style

expressum,412 est quaesitum,413 est rescriptum,414 est tractatum.415 Sometimes when used as a copulative est comes before the subject: est autem manumissio de manu missio.416 The initial est et, found in 13 texts, is confined, among Digest jurists, to Ulpian.417 Initial est hoc, also Ulpianic, comes three times.418 Of inversions of object and verb we have mentioned habet aequitatem, habet rationem, and others.419 It is unnecessary to list more. The reader will be on the lookout for this trait. These various forms of inversion have two purposes. One is to avoid concentrations of verbs at the end of a sentence, in order to keep the various clauses of which it is composed separate. This involves putting the verb at the beginning or middle rather than at the end of a clause. The other is the wish to emphasize the most important word, which must therefore, by way of climax, come at the end of a clause or sentence. (vi) Verbs. A verb which VIR notes as typical of Ulpian is accipere in the sense ‘take’, ‘construe’, ‘interpret’.420 We have come across erit accipiendum, accipiemus, and accipietur.421 A number of other forms of accipere count as marks of his style. One is accipe, of which all 14 instances come from Ulpian.422 Others are accipias,423 accipies,424 accipere debes,425 accipere debemus, for which Ulpian has 82 texts of 87,426 accipere debeamus,427 accipere nos debere,428 and accipere nos oportet.429 For accipimus he has 60 texts out of 62,430 and for 412

D 4.4.19 (13 ed.); 28.3.6.9 (10 Sab.) D 3.3.37.1 (9 ed.); 14.4.5.7 (29 ed.); 42.5.9.5 (62 ed.); 43.3.1.8 (67 ed.); 43.24.1.3 (71 ed.); 28.2.6 pr. (3 Sab.); 7.1.13.5 (18 Sab.); 34.2.19.2 (20 Sab.); 47.2.17.1 (40 Sab.) but 36.1.46.1 (Marc. 15 dig.) cf. 41.9.1.2 (31 Sab: est quaestio volgata) 414 D 3.2.2.2 (6 ed.); 4.2.16.2; 4.4.20.1; 13.7.36 pr. (11 ed.); 4.6.26.9 (12 ed.); 13.7.13 pr (28 ed.); 47.10.13.7 (57 ed.); 29.2.25.2 (8 Sab.); 29.1.9.1 (9 Sab.); 38.16.1.1 (12 Sab.); 36.1.19.1 (15 Sab.); 30.41.7 (21 Sab.); 34.3.9 (24 Sab.); 26.8.5.3 (40 Sab.); 48.18.4 (3 disp.); 49.1.10.4 (8 disp.); 40.5.24.5 (5 fid.); 42.1.59.1 (4 omn. trib.); 50.13.1.12 (8 omn. trib.) 415 D 34.3.7 pr. (23 Sab.) 416 D 1.1.4 (1 inst.) 417 D 3.2.2.2 (6 ed.); 3.3.39.6 (9 ed.); 37.12.1.4 (45 ed.); 43.24.7.4 (71 ed.); 49.14.25 (19 Sab.); 8.2.3 (29 Sab.); 12.7.1 pr (43 Sab.); 50.15.1.2, 3 bis, 5, 10, 11 (1 cens) 418 D 1.19.1.2 (16 ed.); 47.10.7.1 (57 ed.) 419 Above n.310–2 420 VIR 1.94.34 421 Above n.321–3 422 D 11.4.1.5; 39.2.4.1 (1 ed.); 2.4.4.2 (5 ed.); 3.1.1.9 (6 ed.); 3.2.6 pr. (6 ed.); 3.5.3.2 (10 ed.); 4.8.21.3 (13 ed.. = iudex); 39.2.15.5 (53 ed.); 43.20.1.39 (70 ed.); 43.30.3.6 (71 ed.); 29.2.30.1 (8 Sab.); 28.2.12 pr. (9 Sab.); 7.1.13.8 (18 Sab.); 21.1.25.2 (1 ed. cur.) cf. Frag. Vat. 321 (8 ed.) 423 D 15.1.3.7 (29 ed.); 28.1.20.3 (1 Sab.); 29.2.30.1 (8 Sab.); 21.1.19.4 (1 ed. cur.) 424 D 5.3.25.8 (15 ed.) 425 D 43.23.1.8 (71 ed.) 426 Honoré–Menner (1980) fiche 49 ACCIPERE DEBEMUS but D. 35.2.74 (Gaius 3 leg.ed.urb.); 6.1.78 (Lab. 4 pith. = Paul); 20.6.8.11 (Marci. 1 hyp.); 46.3.98.3 (Paul 15 quaest.); 27.1.45.3 (Tryph. 13 disp.) cf. VIR 1.95–6 427 D 14.6.7.3 (29 ed.); 38.17.1.12 (12 Sab: ? debemus) 428 D 4.8.11.2 (13 ed.); 11.5.1.2 (23 ed.) 429 D 26.2.3.1 (35 ed.); 38.5.1.4 (44 ed.); 38.8.1.6 (46 ed.); 50.16.99.1 (1 off. cons.) 430 Honoré–Menner (1980) fiche 49 ACCIPIMUS but D. 9.2.45 pr (Paul 10 Sab.); 43.3.2.1 (Paul 63 ed.) cf. VIR 1.95 413

2. The Oral Style

65

sic accipiendum est and variants (accipienda sunt, est accipiendum, sunt accipienda), 20 instances out of 21.431 It is a remarkable concentration. Putare is another verb that elicits Ulpian’s favour. The forms et puto, et putem, et magis puto, et ego puto, et non puto, and et verum/verius puto have been mentioned already.432 To these can be added ut puta, which occurs in the Tyrian’s writings 298 times out of 317.433 Of the remaining 19 texts Paul has 13. Despite this distribution, several scholars have had the temerity to list it as unclassical.434 Other Ulpianic forms of putare include puto autem,435 puto tamen,436 putavimus tamen,437 and et (recte) putat followed by the name of the author.438 No other verbs are as Ulpianic as accipere and putare. But there are a number that occur once or more in his texts and not at all, or much more rarely, in other Digest writers. I list them alphabetically: adaequare,439 addere,440 artare,441 capessere,442 causari,443 commonere,444 commovere,445 commundare,446 concumbere,447 confringere,448 conivere,449 conqueri,450 431 D 50.16.3 pr (2 ed.); 9.4.3; 50.16.6.1 (3 ed.); 2.14.7.5 (4 ed.); 3.5.3.1 (10 ed.); 11.1.4.1. (22 ed.); 13.5.1.1 (27 ed.); 19.2.19.2 (32 ed.); 27.4.3 pr (36 ed.); 37.5.8 pr; 37.6.1.23 (40 ed); 39.4.3.1 (55 ed.); 40.12.10 (55 ed.); 42.1.5.1 (59 ed.); 43.8.2.32 (68 ed.); 39.2.24 pr (81 ed.); 28.1.21.2 (2 Sab.); 29.2.30.3 (8 Sab.); 27.1.3 (1 off. pr.tut.); 49.3.1 pr (1 appell.) cf. Frag. Vat.186 (1 off. pr. tut.) but 47.2.4 (Paul 9 Sab.) 432 Above n.48–53 433 Honoré–Menner (1980) fiche 74 UT PUTA and cf. Frag. Vat. 177 (17 Sab.) but D 11.7.4.3, 2.7.4 pr (Paul 4 ed.); 4.8.19.2; 4.8.28 (Paul 13 ed.); 10.1.4.8 (Paul 23 ed.); 2.14.9 pr (Paul 62 ed.); 19.1.4.1 (Paul 5 Sab.); 12.6.15 pr. (Paul 10 Sab.); 9.4.31 (Paul 7 Plaut: delete, Mommsen); 31.8.3 (Paul 9 Plaut.); 45.1.91.1 (Paul 17 Plaut.); 12.6.21 (Paul 3 quaest.); 28.6.38.1 (Paul 1 sec. tab.); 11.7.4.3 (Pap. 8 quaest.), 22.1.3.2 (Pap. 20 quaest.), 45.2.9 pr (Pap. 27 quaest.); 48.5.39 pr (Pap. 36 quaest.); 5.1.45 pr (Pap. 3 resp., Mommsen); 14.2.4.2 (Call. 2 quaest.) cf. ut . . . puta 47.2.22.1 (Paul 9 Sab.); puta ut 19.5.5.2 (Paul 5 quaest.). Noted by Kalb (1890) 130 434 Citati (1927) 72: Eisele, Bonfante, Pringsheim, Donatuti, and others 435 D 50.1.27.2 (2 ed.); 3.1.6 (6 ed.); 6.1.37 (17 ed.); 15.3.3.10 (29 ed.); 19.5.20.1 (32 ed.); 44.4.4.22 (76 ed.); 38.17.2.37 (13 Sab.); 7.1.70.4 (17 Sab.) 436 Eight of 9 texts: D 5.3.25.5, 15 (15 ed.); 11.7.14.11 (25 ed.); 16.3.1.12 (30 ed.); 49.14.6 pr (63 ed.); 33.9.1 (24 Sab.); 48.3.4 (9 off. proc.); 49.1.3.3 (1 appell.) cf. Frag.Vat. 71 (17 Sab.); 198 (1 off. pr. tut.) but D. 4.6.13.1 (Paul 12 ed.) 437 D 4.4.3.2 (11 ed.) 438 D 2.2.3.1 (3 ed.); 3.1.1.10 (6 ed.); 4.8.21.11 (13 ed.); 5.3.13.4 (15 ed.); 12.6.26.13 (26 ed.); 16.3.1.11 (30 ed.); 39.1.3.2 (52 ed.); 28.5.17.4 (7 Sab.); 38.17.2.44 (13 Sab.); 38.4.5.1 (14 Sab.); 7.1.12.5; 7.2.1.1 (17 Sab.); 7.6.1.3 (18 Sab.); 47.2.12.2 (28 Sab.) 439 D 30.41.13 (21 Sab.) 440 D 3.2.6.6 (6 ed.); 19.2.13.5; 19.2.19 pr (32 ed.); 47.8.2.23 (56/1 ed.); 41.2.13.1 (72 ed.); 16.3.11 (41 Sab.) 441 D 42.1.2 (6 ed.); 38.9.1.12 (49 ed.); 43.24.5.1 (71 ed.); 2.11.2.8 (74 ed., twice); 48.19.8.7 (9 off. proc.) but interp. Citati (1957): 12: Beseler, H. Krüger 442 Frag. Vat. 155 (1 excus.) 443 Nine of 11 texts: D 14.3.11.3 (28 ed.); 16.3.3 (30 ed,); 42.6.1.12 (64 ed.); 43.24.13.5 (71 ed.); 2.11.2.8 (74 ed.); 30.50.1 (24 Sab.); 32.11.8 (2 fid.); 36.1.13 pr (4 fid.); 40.5.24.14 (5 fid.) but 2.15.12 (Cels. 3 dig.); 40.7.34.1 (Pap. 21 quaest.) 444 445 D 13.6.12.1 (29 Sab.) D 9.1.1.4 (18 ed.); 11.7.6 pr (25 ed.); 39.6.2 (32 Sab.) 446 447 D 34.2.25.10 (44 Sab.) D 1.6.6 (9 Sab.) 448 449 D 9.2.27.31 (18 ed.); 10.4.9 pr (24 ed.); 39.2.24.9 (81 ed.) D 40.1.4.1 (6 disp.) 450 D 29.5.1.3 (50 ed.); 47.10.7.2 (57 ed.)

66

2. The Oral Style

consciscere,451 boni consulere,452 dehonestare,453 delitescere,454 demerere,455 demorari,456 satis desiderare,457 devocare,458 diffindere,459 dilapidare,460 discutere ( = diiudicare),461 disicere,462 ratione duci,463 effervescere,464 eloqui,465 ad praetorem evocare,466 exaggerare,467 exoriri,468 exornare,469 recte exprimere,470 facessere,471 flagitare,472 ante oculos habere,473 illicere,474 immergere,475 immorari,476 imprecari,477 inaugere,478 increscere,479 inrepere,480 insinuare,481 interfrigescere,482 intermiscere,483 intribuere,484 invalescere,485 obdurare,486 obviam ire,487 operiri (with the dative),488 recolere,489 reconducere,490 recorrigere,491 relaxare,492 relevare (reum),493 remeare,494 remorari,495 resilire,496 retorquere,497 revereri,498 rodere,499 sapere,500 seducere,501 sopire,502 sortiri (metaphorical),503 studere ( = take pains),504 subterfugere,505 tractare (intransitive, = debate),506 transformare,507 transvolare,508 vigere,509 vituperare.510

451 452 453 455 457 459 461 462 463 464 466 468 469 470 472 473 475 478 480 481 482 483 486 488 490 492 493 494 495 496 499 500 502 503

D 21.1.17.4; 21.1.23.3 (1 ed. cur.) D 23.4.4 (31 Sab.); 23.3.12.1 (34 Sab.); 50.2.3 pr (3 off. proc). 454 D 11.4.1.2 (1 ed.) D 50.13.1.5 (8 omn. trib.) 456 D 5.1.2.4 (3 ed.) D 16.1.2.3 (29 ed.) 458 D 37.10.1.11 (41 ed.) D 3.3.35.3 (9 ed.); 36.4.1.1; 36.4.3.2 (52 ed.) 460 D 4.4.11.6 (11 ed.); 5.3.25.11 (15 ed.); 26.4.1 pr (14 Sab.) D 2.11.2.3 (74 ed.) D 4.8.13.2; 4.8.25.1 (13 ed.); 48.2.6 (2 off. proc.) D 43.24.7.6 (71 ed.) D 11.3.5 pr (23 ed.); 40.12.12.3 (55 ed.); 29.2.30.3 (8 Sab.); 47.14.1.4 (8 off. proc.) 465 D 3.2.13.6 (6 ed.); 22.5.12 (37 ed.); 46.8.12.2 (80 ed.) D 21.1.17.4 (1 ed. cur.) 467 D 43.19.3.15 (70 ed.); 50.2.3.1 (3 off. proc.) D 25.4.1.2, 9 (34 ed.) D 1.15.2 (1 off. pr. vig.) D 15.3.3.4 (29 ed.); 11.8.1.6 (68 ed.); 32.49 pr (22 Sab.); 25.1.7 (36 Sab.) 471 D 48.2.4 (2 adult.) D 34.2.19.13 (20 Sab.); 50.15.3.1 (2 cens.) D 47.1.2.5 (43 Sab.) 474 D 25.4.1.8 (34 ed.) D 13.4.4.1 (27 ed.); 27.2.3.2 (1 omn. trib.); 48.5.14.5 (2 adult.) 476 D 39.2.13.21 (53 ed.) 477 D 47.20.3.1 (8 off. proc.) D 29.2.20.2 (61 ed.) 479 D 39.3.1.16 (53 ed.); 33.7.12.27 (20 Sab.) D 40.12.27.2 (2 off. cons.) D 13.5.14.1 (27 ed.) cf. Collatio 15.2.2 (7 off. proc.) D 37.10.3.5 (41 ed.); 32.11.2 (2fid.) Frag. Vat. 155 (1 excus.) but interp. Citati (1927) 48: Albertario 484 D 14.4.9.2 (29 ed.) 485 D 33.7.12.27 (20 Sab.) D 28.1.21.3 (2 Sab.) 487 D 1.18.13.1 (7 off. proc.); 47.11.6 pr (8 off. proc.) D 48.5.28.11 (3 adult.) 489 D 47.10.11.1 (57 ed.) D 50.13.1.11 (8 omn. trib.); 48.5.16.1 (2 adult.) 491 D 49.1.1 pr (1 appell.) D 19.2.13.11 (32 ed., twice) D 4.2.14.11 (11 ed.) D 16.1.8.10 (29 ed., twice); 17.1.12.9 (31/1 ed., twice); 46.3.24 (47 Sab.) D 50.16.141 (8 Iul. Pap.) D 28.3.6.9 (10 Sab.); 38.16.3.9 (14 Sab.) but interp. Citati (1927) 78: Albertario 497 D 38.2.14.6 (45 ed.) 498 D 3.1.15 (6 ed.) D 18.2.9 (28 Sab.) D 19.2.13.6 (32 ed.); 37.11.1.11 (39 ed., twice) 501 D 43.29.3.5 (71 ed.) D 23.2.9 pr (26 Sab.); 24.3.2.2 (35 Sab.); 26.2.10.3 (36 Sab.) D 38.17.1.12 (12 Sab.); 48.5.30.5 (4 adult.) but interp. Citati (1927): 83: Kalb D 37.4.3.5 (39 ed.); 42.8.10.1 (73 ed.); 1.9.8 (6 fid.); 40.2.20.2 (2 off. cons.); 48.5.18.6 (2 Iul.

Pap.) 504

505 D 42.5.36 (45 Sab.) D 3.5.5.5 (10 ed.); 9.3.1.2 (23 ed.); 1.7.15.2 (26 Sab.) Nine of 11 texts: D 10.4.3.14 (24 ed.); 15.2.1.8; 15.3.10.2 (29 ed.); 17.2.58 pr (31/2 ed.); 30.39.6 (21 Sab.); 34.3.7 pr (23 Sab.); 48.19.9.10 (10 off. proc., twice); 36.1.18.5 (2 fid.) but 18.1.57.2 (Paul. 5 Plaut.); 37.14.17 pr (Ulp. 11 Iul. Pap. citing divi fratres) 507 D 7.1.13.7 (18 Sab) 508 D 41.1.44 (19 ed.) 509 D 38.2.12.5 (44 ed.); 47.2.46 pr (42 Sab) 510 D 4.7.4.1 (13 ed.) 506

2. The Oral Style

67

There are two more elaborate verbal constructions. In ea condicione est, ut . . . , ‘he it is in the position that . . . ’, occurs 13 times,511 and there are seven variants, all confined to Ulpian.512 In ea causa est, ut . . . . which means the same, occurs 16 times in his work,513 and there are another 20 texts of Ulpian with variants of this phrase in the present or future indicative.514 Other writers use the expression in ea causa esse in the infinitive or subjunctive.515 Ulpian prefers to be categorical. (vii) Nouns and nominal phrases. There is nothing special to note apart from a certain liking for diminutives: alicula,516 domuncula,517 frivusculum,518 loculus,519 operula,520 sarcinula,521 tabernula,522 viaticulum,523 vulnusculum.524 (Signaculum,525 though confined to Ulpian, is not a diminutive but a deverbative.) The remaining nouns may be listed alphabetically: abusus,526 adfirmator,527 adgressus,528 adiutorium,529 adparitio,530 adpendix,531 adpulsus,532 adsessorium,533 alternatio,534 apertura,535 apex,536 audacia,537 calculator,538 calliditas,539 colloquium,540 commendatio,541 comminatio,542 concubitus,543 contaminatio,544 corruptela,545 corruptor,546 curiositas,547 decus,548 dedecus,549 vera 511 D 18.7.1 (32 ed.); 26.7.7 (35 ed.); 29.1.13.3 (45 ed.); 38.8.1.8; 38.8.1.9 (46 ed.); 47.9.3 pr (56/1 ed.); 43.19.1.2 (70 ed.); 44.2.7.2 (75 ed.); 40.7.2 pr (4 Sab.); 26.2.16 pr (39 Sab.); 40.5.45.2 (5 disp.); 40.1.4.12 (6 disp.); 23.2.27 (3 Iul. Pap.) 512 D 42.1.4.1 (58 ed.); 42.8.6.1 (66 ed.); 39.5.7.6 (44 Sab.); 50.4.6.1 (4 off. proc.); 10.2.49 (2 disp.); 28.5.35.3 (4 disp.); 33.4.2.1 (5 disp.) 513 D 11.1.11.4 (22 ed.); 37.4.1.5 (39 ed.); 37.12.1 pr (45 ed.); 29.4.1.1 (50 ed.); 5.1.19.2 (60 ed.); 29.2.20.1 (61 ed.); 12.6.9 (66 ed.); 41.2.6 pr (70 ed.); 39.1.20.5; 43.29.3.3 (71 ed.); 21.1.59 pr (74 ed., twice); 26.8.5.3 (40 Sab.); 45.1.1.2 (48 Sab.); 45.1.38.22 (49 Sab.); 49.1.1.3 (1 appell.) 514 D 5.1.5 (5 ed.); 4.7.4.3 (13 ed.); 14.5.4.5 (29 ed.); 26.10.3.18 (35 ed.); 37.4.8.11 (40 ed.); 29.5.3.12 (50 ed.); 40.12.12.3 (55 ed.); 47.10.3.4 (56/2 ed.); 47.10.13.2 (57 ed.); 42.4.7.5 (59 ed.); 42.8.6.2 (66 ed.); 2.11.4.1 (74 ed.); 28.3.6.7 (10 Sab.); 26.1.3 pr (37 Sab.); 47.2.17.2 (40 Sab.); 45.1.38.22 (49 Sab.); 40.5.26.10 (5 fid.); 26.5.12 pr; 50.2.3.1 (3 off. proc.); 48.5.14.7 (2 adult.) 515 D 19.1.7 (Pomp. 10 Sab.); 38.2.25 (Iul. 1 Urs. Fer.); 14.6.14 (Iul. 12 dig.); 41.4.7.4 (Iul. 44 dig.); 20.4.9 pr (Afr. 8 quaest.); 16.1.13.2 (Gaius 9 ed. prov.); 27.10.5 (Gaius 9 ed. prov.); 26.2.1.1 (Gaius 12 ed. prov.); 26.7.57.1 (Scae. 10 dig.); 40.5.29 (Paul 3 fid.); 46.5.5 (Paul 48 ed.) 516 517 518 D 34.2.23.2 (44 Sab.) D 47.12.3.11 (25 ed.) D 24.1.32.12 (33 Sab.) 519 520 521 D 32.52.9 (24 Sab.) D 50.14.3 (8 omn. trib.) D 4.6.15.3 (72 ed.) 522 523 D 5.1.19.2 (60 ed.) D 5.1.18.1 (23 ed.) but interp. Citati (1927) 91: Solazzi 524 525 D 21.1.1.8 (1 ed. cur.) D 16.3.1.36 (30 ed.) 526 D 12.2.11.2 (22 ed.); 7.8.12.1 (17 Sab.); 7.5.5.1, 2 (18 Sab.) 527 528 D 4.4.13 pr (11 ed.); 27.7.4.3 (36 ed.) D 36.1.18.7 (2 fid.) 529 530 531 D 47.2.50.3 (37 ed.) D 21.2.50 (25 ed.) D 29.2.35 pr (9 Sab.) 532 D 8.3.5.1 (17 ed.); 43.20.1.18 (70 ed., twice); 34.1.14.3 (2 fid.); 8.3.1.1 (2 inst.) 533 D 2.14.12 (4 ed.); 47.10.5.8 (56/2 ed.) 534 D 11.3.9 pr (23 ed.); 13.4.2.3 (27 ed., twice); 47.10.7.4 (57 ed.) 535 536 D 28.5.3.4 (3 Sab.) D 17.1.29.4 (7 disp.) 537 538 D 39.4.12 pr (38 ed., twice) D 38.1.7.5 (28 Sab.); 50.13.1.6 (8 omn. trib.) 539 540 Below n.618 D 48.5.10.2 (4 adult.) 541 542 D 4.1.1 (11 ed.); 1.16.4.3 (1 off. proc.) D 26.7.7.7 (35 ed.); 37.14.1 (9 off. proc.) 543 544 D 35.1.15 (35 Sab.) D 48.5.2.3 (8 disp.) 545 D 11.3.9.1 (23 ed.); 49.14.29 pr (8 disp.) 546 547 D 11.3.9.3 (23 ed.); 11.3.11.1 (23 ed.); 49.14.20 pr (8 disp.) D 22.6.6 (18 Iul. Pap.) 548 549 D 3.1.1 pr (6 ed.); 39.1.20.10 (71 ed.) D 4.6.10 (12 ed.); 37.4.3.5 (39 ed.)

68

2. The Oral Style

distinctio,550 dulcitudo,551 efficacia,552 elatio,553 elocutio,554 excessus (death),555 exhortatio,556 exiguitas,557 experimentum,558 fervor,559 fons (metaphorical),560 fortitudo,561 frivolum,562 fulcimentum,563 gestus,564 imminutio,565 immunditiae,566 impostor,567 impostura,568 inceptum,569 incolumitas,570 incredibilitas,571 indevotio,572 indicatio,573 insolentia,574 instigatus,575 instinctus,576 intellegentia,577 interrogator,578 interventio,579 interventor,580 nervus,581 obscaenitas,582 obventio,583 occultatio,584 occursus,585 ostentatio,586 paratio,587 pedester,588 penuarius,589 protervitas,590 ratiocinatio,591 recisio,592 redditio,593 redemptura,594 remotio,595 repertorium,596 repositorium,597 repudiatio,598 resolutio,599 revocatio,600 sepositio,601 series,602 sobrietas,603 socordia,604 solitudo,605 somnus,606 stupratio,607 suasor,608 suasus,609 sustentatio,610 taciturnitas,611 tarditas,612 territio,613 tumor,614 variatio,615 vaticinatio,616 vituperatio.617

550

551 D 42.8.10.10 (73 ed.) D 2.14.7.14 (4 ed.); 4.3.9.3 (11 ed.); 12.1.11 pr (26 ed.) 553 D 11.7.14.3 (25 ed.) D 22.1.33 pr. (1 off. cur. reip.) 554 555 D 22.5.12 (37 ed.); 46.8.12.2 (80 ed.) D 24.1.32 pr (33 Sab.) 556 D 1.1.1.1 (1 inst.) 557 D 19.2.15.5 (32 ed.) 558 D 19.5.20 pr, 1 (32 ed.) 559 D 19.2.15.2 (32 ed.); 48.5.16.6 (2 adult.) 560 D 50.16.195.4 (46 ed.) 561 562 563 D 21.1.38.7 (2 ed. cur.) D 13.7.11.5 (28 ed.) D 33.7.12.19 (20 Sab.) 564 D 26.7.23 (9 ed.); 3.5.5.13 (10 ed.); 26.10.3.9; 26.7.5.2; 26.10.3.10 (35 ed.); 27.3.1.13; 27.5.1.5 (36 ed., interp.); 46.3.14.1 (30 Sab.) 565 566 D 28.5.35.2 (4 disp.) D 43.23.1.2 (71 ed.) 567 D 50.13.1.3 (8 omn. trib.); 21.1.4.2 (1 ed. cur.) 568 D 47.20.3.1 (8 off. proc.) cf. Collatio 15.2.1 (2 off. proc.) 569 570 Collatio 15.2.1 (7 off. proc.) Frag. Vat. 123 (1 excus.) 571 572 573 D 48.5.30 pr (4 adult.) D 33.9.1 (24 Sab.) D 19.1.13.3 (32 ed.) 574 D 22.1.33 pr (1 off. cur. reip.) 575 D 9.1.1.6 (18 ed.) 576 D 47.11.5 (5 off. proc.) cf. Collatio 15.2.5 (7 off. proc.) 577 D 28.1.20.9 (1 Sab.) 578 D 11.1.11.7 (22 ed.) 579 D 4.4.7.3 (11 ed.) 580 D 37.15.7.5 (10 ed.); 15.1.3.9 (29 ed.) 581 D 48.18.1.20 (8 off. proc.) 582 D 1.12.1.8 (1 off. pr. urb.) 583 D 22.1.3.4 (15 ed.); 14.1.1.15 (28 ed.); 27.9.5.9 (35 ed.); 7.1.7.1 (17 Sab.) 584 D 42.4.7.4 (59 ed.) 585 D 42.4.7.13 (59 ed.) 586 D 13.6.3.6 (28 ed.) 587 588 589 D 30.39.7 (21 Sab.) D 43.12.1.14 (68 ed.) D 33.9.3.11 (22 Sab.) 590 591 592 D 47.4.1.1 (38 ed.) D 14.4.5.16 (29 ed.) D 28.5.35.1 (4 disp.) 593 594 D 16.1.8 pr (29 ed.); 21.1.21 pr. (1 ed. cur.) D 14.3.5.2 (28 ed.) 595 596 D 50.16.10 (6 ed.); 26.10.4.2 (1 omn. trib.) D 26.7.7 pr (35 ed.) 597 D 34.2.19.10 (20 Sab.) 598 Eleven of 12 texts: D 38.6.1.3 (44 ed.); 38.9.1.7, 11 (49 ed.); 29.2.13 pr, 2; 29.2.17.1; 29.2.21.3 (7 Sab.); 38.16.2.7 (13 Sab.); 24.1.5.13 (32 Sab.); 49.17.9 (4 disp.); 36.1.15.5 (4 fid.) but 19.2.25.2 (Gaius 10 ed. prov.) 599 600 601 D 41.2.13.2 (72 ed.) D 5.1.2.3 (3 ed.) D 50.12.2.2 (1 disp.) 602 603 D 37.11.2.4 (41 ed.); 50.15.1 pr (1 cens.) D 1.7.17.4 (26 Sab.) 604 605 D 2.12.1.1 (4 omn. trib.) D 47.10.7.8 (57 ed.); 47.14.1.1 (8 off. proc.) 606 D 26.8.1.1 (1 Sab.); 34.2.25.10 (44 Sab.); 21.1.14.4 (1 ed. cur.) 607 D 23.2.43.1 (1 Iul. Pap.) 608 D 4.4.13 pr (11 ed.) but interp. Citati (1927) 83: Pringsheim 609 D 9.2.9.1 (18 ed.) 610 D 24.3.22.8 (33 ed.) 611 D 19.2.13.11 (32 ed.) but interp. Citati (1927) 86: Kalb etc. 612 D 26.7.7.3 (35 ed.) but interp. Citati (1927) 86: Beseler, Kunkel 613 D 47.10.15.41 (57 ed.) 614 D 9.2.27.17 (18 ed.); 21.1.14.8 (1 ed. cur.) 615 D 14.3.11.5 (28 ed.) 616 Frag. Vat. 148 (1 excus.) 617 D 34.2.23.2 (44 Sab.) 552

2. The Oral Style

69

All twenty-five texts with calliditas are attributed to Ulpian.618 Even if two or three are compilatorial, or are cited from another author or a rescript,619 the concentration is striking. He clearly disliked craftiness, and thought of himself as a candid person.620 (viii) Adjectives and participles used as adjectives. Those peculiar to Ulpian among Digest authors include: accusatorius,621 acerbus,622 adsuetus,623 ambitiosus,624 amicalis,625 armipotens,626 authenticus,627 calcitrosus,628 captus (deceived),629 cavus,630 clivosus,631 consimilis,632 consuetus, 633 contemptibilis,634 contestatorius,635 contumeliosus,636 crassus,637 delatorius,638 docilis,639 dolosus,640 exclusorius,641 exemptilis,642 facinorosus,643 fanaticus,644 feriaticus,645 fessus,646 formalis,647 fluviatilis,648 gulosus,649 gutturosus,650 immutabilis,651 impetiginosus,652 impetrabilis,653 inaequus,654 inargutus,655 incautus,656 incogitabilis,657 incultus,658 incuriosus,659 indemnatus,660 indoctus,661 618 D 2.14.7.9 (4 ed.); 4.1.1; 4.3.1 pr, 2; 4.3.7.10; 4.4.3.1 (11 ed.); 11.3.3 pr (23 ed.); 10.4.11.1 (24 ed.); 15.3.3.9; 16.1.2.3 (29 ed.); 50.17.47 pr (33 ed.); 17.1.6.7; 50.14.2 (31/1 ed.); 24.3.22.8 (33 ed.); 47.4.1.1 (38 ed.); 29.4.1 pr (50 ed.); 40.12.12.3 (55 ed.); 40.12.14 pr (55 ed.); 42.6.1.5 (64 ed.); 43.24.1.1; 43.29.3.5 (71 ed.); 47.20.3.1 (8 off. proc.); 21.1.1.2 (1 ed. cur.); 17.1.29.5 (7 disp.); 49.4.1 pr (1 appell.) 619 D 4.3.1.2 (11 ed.); 17.1.6.7 (31 ed.); Crifò (1985) 607 620 Cf. n.640 (dolosus), 736 (callide), 740 (dolose). Frier (1984) 859 thinks that this inference ‘descends to bathos’. But a person who is continually on the lookout for a particular vice must feel strongly about it 621 D 48.5.18.1 (2 adult.); 48.5.30.8 (4 adult.) 622 D 22.1.33 pr (1 off. cur. reip.) 623 D 19.2.15.2 (32 ed.) 624 D 4.4.3 pr (11 ed.); 22.1.33 pr (1 off. cur. reip.); 50.9.4 pr (1 off. cur. reip.) cf. 36. 1.67.2 (Maec. 5 fid: ambitiose) but interp. Citati (1927) 10: Vassalli 625 D 17.1.10.7 (31/1 ed.) 626 D 50.15.1 pr (1 cens.) 627 D 10.2.4.3; 10.2.8 pr. (19 ed.). Used as a noun in 29.3.12. (Ulp. 13 Iul. Pap.) and Paul. Sent. 5.12.11 628 D 9.1.1.4 (18 ed.); 21.1.4.3 (1 ed. cur.) 629 Twenty-seven of 28 texts: D 4.4.3.3, 4, 5, 7, 10; 4.4.5; 4.4.7.1, 4, 5, 7; 4.4.9.2; 4.4.11.2, 3, 4, 5, 6; 4.4.13 pr ; 4.18.1; 13.7.36.1 (11 ed.); 4.6.28.1 (12 ed.); 4.1.6 (13 ed.); 12.2.9.4 (22 ed., twice); 15.1.5 pr (29 ed.); 16.3.1.42 (30 ed.); 15.1.36 (2 disp., twice) but 4.4.29 pr (Mod. 2 resp.). Perhaps this word is too contextual to count 630 D 43.23.1.4 (71 ed.) 631 D 43.8.5.32 (68 ed.) 632 D 34.2.23.2 (44 Sab.) 633 D 36.1.23.3 (5 disp.) 634 D 21.2.37.1 (32 ed.); 1.16.9.2 (2 off. cons.) 635 Frag. Vat. 156 (1 excus.) 636 D 47.10.7.7 (57 ed.); 1.12.1.10; 22.1.33 pr (1 off. cur. reip.) 637 D 22.6.6 (18 Iul. Pap.) 638 D 22.6.6 (18 Iul. Pap.) 639 D 21.1.37 (1 ed. cur.) 640 D 4.3.1 pr (11 ed.) 641 D 44.1.2.2 (74 ed.) 642 D 34.2.25.11 (44 Sab.) 643 D 2.1.3 (2 off. quaest.) 644 D 21.1.1.9 (1 ed. cur.) 645 D 2.12.2 (5 ed.) 646 D 39.6.5 (2 inst.) 647 D 35.2.62.1 (1 Iul. Pap.) 648 D 14.1.1.6 (28 ed.) 649 D 21.1.4.2 (1 ed. cur.) 650 D 21.1.12.2 (1 ed. cur.) 651 D 40.7.9.1 (28 Sab.) 652 D 21.1.6.1 (1 ed. cur.) 653 D 43.20.1.43 (70 ed.) 654 D 33.1.3.2 (24 Sab.) 655 D 7.5.5.1 (18 Sab.) 656 Collatio 12.5.2 (8 off. proc) 657 Frag. Vat. 75.5 (17 Sab.) but interp. Citati (1927) 46: Beseler 658 D 28.8.7.3 (60 ed.) 659 D 22.1.33 pr. (1 off. cur. reip.) 660 D. 28.1.9 (45 ed.) 661 D 21.1.19.4 (1 ed. cur.)

70

2. The Oral Style

inexcusabilis,662 infaustus,663 inscius vel/et invitus,664 intimus,665 inutilis,666 notabilis,667 nugatorius,668 obsequens,669 occultus,670 olitorius,671 opacus,672 par (atque),673 pavidus,674 quantuluscumque,675 reprobus,676 spatiosus,677 squalidus,678 subsidiarius,679 subsimilis,680 succedaneus,681 sumptuosus,682 superstitiosus,683 supervacaneus,684 suppellecticarius,685 suspendiosus,686 tempestivus,687 venatorius,688 vindemiatorius.689 There are a number with the intensitive prefix per-, meaning ‘very’: perexiguus,690 perlucidus,691 perlusorius,692 permodicus,693 pernecessarius, 694 and perpaucus.695

Comparative adjectives include audacior,696 cautior,697 contumeliosior,698 cultior,699 durior (sententia) 700 and indubitatior.701 Among superlatives we find aequissimus,702 angustisssimus,703 antiquissimus,704 audacissimus,705 certissimum (est),706 durissimus,707 exploratissimus,708 facillimus,709 frequentissimus,710 improbissimus,711 indignissimus,712 saevissimus,713 severissimus,714 splendidissimus,715 tenacissimus,716 usitatissimus,717 and verissima (sententia).718 Of these aequissimus is the most important. In its various inflections,

662

663 D 5.1.50.1 (6 fid.) D 34.9.9.1 (14 Iul. Pap.) D 9.2.27.30 (18 ed.); 23.3.34 (43 ed.); 43.24.15 pr (71 ed.) but 46.3.78 (Iav. 11 Cass.) cf. Frag. Vat. 269 (Ulp. 46 Sab.) 665 D. 4.8.3.1 (13 ed.); 7.1.13.8 (18 Sab.) 666 D 45.1.1.5 (twice); 46.4.8 pr (48 Sab.); 37.11.6 (8 disp.) 667 D 3.1.1.5 (6 ed.) 668 D 21.1.17.14 (1 ed. cur.) 669 D 1.16.9.3 (2 off. proc.) 670 D 11.1.11.8 (22 ed.); 14.4.7 pr (29 ed.); 37.6.1.11 (40 ed.); 18.6.4 pr (28 Sab.); 29.3.10.2 (13 Iul. Pap.) 671 672 D 7.1.13.4 (18 Sab.) D 50.13.1.11 (8 omn. trib.); 48.5.16.1 (2 adult.) 673 674 D 43.8.2.42 (68 ed. = 50.17.150) D 21.1.4.3 (1 ed. cur.) 675 676 D 38.2.6 pr (43 ed.) D 13.7.24.1 (1 ed., thrice) 677 678 D 39.2.15.13 (53 ed.); 7.8.4 pr (17 Sab.) D 47.10.15.27 (57 ed.) 679 680 D 27.8.1 pr, 4 (36 ed.) D 35.3.1.5 (79 ed.) 681 682 D 26.7.3.8 (35 ed.); 27.8.4 (3 disp.) D 28.8.5.1 (60 ed.) 683 684 D 21.1.4.9 (1 ed. cur.) D 26.7.9.6 (36 ed.) 685 686 D 33.7.12.31 (20 Sab.) D 3.2.11.3 (6 ed.) 687 688 D 36.1.13.4 (4 fid.) D 48.19.8.11, 12 (9 off. proc.) 689 690 D 3.3.78 pr (20 Sab.) D 5.3.13.5 (15 ed.) 691 692 D 34.2.19.17 (20 Sab.) D 49.1.14 pr (14 ed.) 693 D 11.7.20.1 (25 ed.) 694 D 4.4.11.4 (11 ed.); 26.10.1 pr (35 ed.) 695 D 46.5.1.5 (77 ed.) 696 D 47.4.1.1 (38 ed.) 697 D 46.5.1.4 (70 ed.) 698 D 47.10.7.7 (57 ed.) 699 D 33.7.8.1 (20 Sab.) 700 D 3.2.13.7 (6 ed.) 701 D 43.13.1.8 (68 ed.) 702 Below n.719–721 703 D 40.9.12.6 (4 adult.) 704 D 50.15.1 pr (1 cens.); 50.3.1 pr (3 off.proc.); 1.13.1 pr (1 off. quaest.); 705 706 D 37.10.1.5 (41 ed.) D 7.4.5.2 (17 Sab.); 40.5.24.9 (5 fid.) 707 708 D 5.1.19.2 (60 ed.); 38.2.1 (42 ed.) D 39.1.5.4 (52 ed.) 709 710 D 12.2.3 pr (22 ed.) D 42.4.7.2 (59 ed.) 711 712 D 3.1.1.5 (6 ed.) D 23.4.11 (34 ed.) 713 714 D 24.3.22.8 (33 ed.) D 3.1.1.5 (6 ed.) 715 716 717 D 50.15.1 pr (1 cens.) D 50.15.1 pr (1 cens.) D 27.1.19 (35 ed.) 718 D 19.1.11.16 (32 ed.); 32.11.20 (2 fid.); 36.1.15.3 (4 fid.). Est verissimum: 9.2.5.2 (18 ed.); 9.2.27.3 (18 ed.); verissimum videtur: 11.1.11.12 (22 ed.) 664

2. The Oral Style

71

particularly aequissimum erit719 and aequissimum est,720 Ulpian accounts for 80 Digest instances out of 86.721 Utilissimus occurs five times.722 (ix) Adverbs and adverbial phrases. The adverbial phrase eo loci723 ‘at that place’ and similar phrases (alio loci,724 aliquo loci,725 quo loci,726 eodem loci,727 certo loci728) are notably Ulpianic.729 Many Ulpianic adverbs are related to the verb or noun forms already mentioned. Thus, abusive730 is related to abusus,731 acerbe732 to acerbus,733 benigne dicere734 to benignum est,735 callide736 to calliditas,737 contumeliose738 to contumeliosus,739 dolose740 to dolosus,741 minus dubitanter742 and indubitanter743 to a number of expressions rejecting doubt,744 incaute745 to cautior,746 notabiliter747 to notabilis,748 sobrie749 to sobrietas,750 and sumptuose751 to sumptuosus.752 There is a group of negative adverbs: (non) difficile,753 gravate,754 idonee,755 mediocriter,756 719

Above n.336 (26 texts) Fifteen texts: D 4.6.26.9 (12 ed.); 11.1.11.8 (22 ed.); 10.4.11 pr (24 ed.); 13.6.7.1 (28 ed.); 14.5.2.1 (29 ed.); 19.1.13.20 (32 ed.); 47.6.1.2 (38 ed.); 37.4.3.4 (39 ed.); 37.8.1.1 (40 ed.); 38.2.8 pr (43 ed.); 43.19.3.7 (70 ed.); 2.11.2.1 (74 ed.); 36.3.1.19 (79 ed.); 42.1.57 (2 disp.); 17.1.29.6 (7 disp.) cf. est aequissimum 3.1.1.6 (6 ed.); 14.4.5.13 (29 ed); 19.2.9.1 (32 ed.); 29.5.3.17 (50 ed.) 721 Honoré–Menner (1980) fiche 49 AEQUISSIMA, AEQUISSIMUM; VIR 1.296 but D 16.2.5 (Gaius 9 ed. prov.); 17.1.22.4 (Paul 32 ed.); 14.2.2 pr (Paul 1 SC Tert.); 48.20.7 pr (Paul 1 port. lib. damn.); 38.17.5 pr (Paul 1 SC Tert.); 36.1.1.2 (Ulp. 3 fid. citing SC Trebellianum) cf. Gaius, Inst. 4.71. Interp. Citati (1927) 8: Bonfante, Wylie 722 D 47.6.1 pr (38 ed.); 43.15.1.1 (68 ed.); 43.21.1.1 (70 ed.); 43.26.6.4 (71 ed.); 10.3.21 (30 Sab.) 723 Nineteen of 20 texts: D 50.1.27.3 (2 ed.); 4.8.21.10 (13 ed.); 9.2.29 pr (18 ed.); 10.4.11.1 (24 ed. twice); 13.4.2.8; 13.5.16.1 (27 ed.); 29.5.1.27 (50 ed.); 39.1.5.2, 3 (52 ed.); 5.1.19.2 (60 ed.); 11.8.1.8 (68 ed.); 43.20.1.17 (70 ed.); 8.2.17 pr (29 Sab.); 47.2.3.2 (41 Sab.); 48.19.9.6 (10 off. proc.); 50.16.199 pr (8 omn. trib.); 5.1.52.3, 4 (6 fid.); 48.5.10.2 (4 adult) but 14.2.10.1 (Labeo 1 pith. Paul epit.) 724 725 D 4.8.21.10 (13 ed.) D 18.7.1 (32 ed.) 726 D 16.3.5.1 (30 ed.) but 6.1.6 (Paul 6 ed.) 727 728 D 42.4.7.13 (59 ed.) but 22.2.1 (Mod. 10 pand.) D 5.1.19.1, 2 (60 ed.) 729 Kalb (1890) 134–5 730 D 50.1.1.1 (2 ed.); 50.16.15 (10 ed.); 29.3.2.1 (50 ed.); 47.10.15.40 (57 ed.) 731 Above n.526 732 D 43.30.1.5 (71 ed.) but interp. Citati (1927) 1: Eisele 733 Above n.622 734 D 38.2.14.2, 8 (45 ed.); 36.4.1 pr (52 ed.); 42.5.24.3 (63 ed.); 7.4.1.2 (17 Sab.); 35.1.10 pr (23 Sab.); 24.1.34 (43 Sab.); 50.2.2.3 (1 disp.) but interp. Citati (1927) 14: Beseler etc 735 Above n.191 736 D 4.3.9.1 (11 ed.); 4.8.31 (13 ed.); 16.1.2.3 (29 ed.); 47.8.2.8 (56/1 ed.); 26.8.5.4 (40 Sab.) 737 Above n.539, 618 738 D 7.1.27.1 (18 Sab.) but Gaius, Inst 1.141 739 Above n.636 740 D 4.4.3.1 (11 ed.); 4.8.31 (13 ed.); 5.3.25.5 (15 ed.); 10.4.9.2 (24 ed.); 11.6.3 pr (24 ed.); 44.4.2.5 (76 ed.); 42.5.31.2 (2 omn. trib.) 741 Above n.640 742 D 15.1.9.5 (28 ed.) 743 D 37.11.2.7 (41 ed.) 744 Above n.65, 78, 168–173 745 D 28.4.1.1 (15 Sab.) cf. Collatio 12.5.2 (8 off. proc: incautus?) 746 Above n.697; incautus, above n.656, 745 747 D 47.10.15.26 (56/2 ed.) 748 Above n.667 749 D 4.4.11.4 (11 ed.); 26.5.12.1 (3 off. proc.) 750 Above n.603 751 D 39.2.37 (42 Sab.) 752 Above n.682 753 D 1.18.13 pr (7 off. proc.) 754 D 1.16.7 pr (2 off. proc.) 755 D 27.8.1.17 (36 ed.) 756 D 47.10.7.2 (57 ed.) but interp. Citati (1927) 56: Beseler 720

72

2. The Oral Style

passim,757 plene,758 principaliter,759 secure,760 specialiter,761 and turpiter.762 Some of these are used, by way of meiosis, with a double negative: (non) improprie,763 inconsulte,764 indigne, 765 infavorabiliter,766 inhoneste,767 insuptiliter.768 There is exaggeration in Ulpian’s use of saepissime, ‘very often’, and cottidie, ‘every day’. The former cannot technically be listed as a mark of his style, since there are, besides 29 Ulpianic texts, 3 of Marcianus.769 But this can be accounted for by the writer’s influence on his younger contemporary. Despite one text of Gaius, cottidie, used in this loose manner, counts as Ulpianic.770 The same writers feature in the profile of eleganter. Ulpian is a neat and lucid, rather than an elegant, writer, but he admired elegance. He uses the adverb in 39 texts of the 42 in which it occurs in the Digest, there being also two instances in Gaius and one in Marcianus.771 Other adverbs wholly or almost wholly confined to Ulpian include: avare,772 circumspecte,773 collusorie,774 congruenter,775 criminaliter,776 destricte,777 diverse,778 frugaliter,779 generaliter,780 hoc animo (followed by quasi,781 quod,782 or 757

D 4.4.11.3 (11 ed.); 27.9.5.9, 14 (35 ed.); 37.9.7.1 (47 ed.) 759 D 47.10.7.1 (57 ed.) D 11.1.9.4 (22 ed.); 34.4.7 (24 Sab.) D 18.2.11 pr (28 Sab.) 761 D 19.1.17.6 (32 ed.); 18.1.24 (28 Sab.) but 7.1.43 (7 reg: non . . . specialiter) 762 D 12.5.4.3 (26 ed.) 763 D 38.16.1 pr (12 Sab.); 50.16.130 (2 Iul. Pap.) 764 D 4.4.11.4 (11 ed.) 765 D 40.2.20.1 (2 off. cons.) 766 D 50.2.2.6 (1 disp.) but interp. Citati (1927) 47: Albertario 767 D 50.16.46.1 (59 ed.) 768 D 2.14.7.6 (4 ed.); 28.5.1.5 (1 Sab.) 769 D 3.2.2.2 (6 ed.); 4.4.20.1; 13.7.36 pr (11 ed.); 4.6.26.9 (12 ed., twice); 4.1.6 (13 ed.); 5.2.8.2 (14 ed.); 11.7.6 pr (25 ed.); 27.2.1.3 (34 ed.); 12.3.4 pr; 26.7.9 pr; 27.3.1.15 (36 ed.); 47.4.1.7 (38 ed.); 37.5.5.6 (40 ed.); 47.10.13.7 (57 ed.); 43.24.13.5 (71 ed.); 42.8.10.13, 14 (73 ed.); 44.4.4.26 (76 ed.); 28.3.6.8 (10 Sab.); 34.2.9 (24 Sab.); 47.2.12.2 (29 Sab.); 48.18.1.7 (8 off. proc.); 50.15.4.10 (3 cens.); 13.7.26 pr (3 disp.); 29.7.1 (4 disp.); 40.5.24.21 (5 fid.); 37.14.16 pr (10 Iul. Pap.); 49.2.1.4 (1 appell.) but 39.4.16.4 (Marci. 1 del.); 48.15.3 pr (Marci 1 pub. iud.); 48.24.2 (Marci 2 pub. iud.) cf. Kalb (1890) 132, who points out that two or three instances seem to have been treated as enough to justify saepissime 770 D 4.4.7.8 (11 ed.); 12.1.9.8 (26 ed.); 26.10.1 pr (35 ed.); 43.26.6.4 (71 ed.); 23.1.4.1 (35 Sab.) but 20.1.15.1 (Gaius 1 hyp.); interp. Citati (1927) 23: Pernice etc. 771 D 5.1.2.5 (3 ed.); 2.14.1.3; 2.14.7.2, 10; 2.14.10 pr; 36.1.17.6 (4 ed.); 3.5.9.1 (10 ed.); 4.2.9.1; 4.3.7 pr (11 ed.); 4.8.21.11 (13 ed.); 10.2.18.4 (19 ed.); 10.3.7.13 (20 ed.); 10.4.3.11 (24 ed.); 15.1.9.4 (29 ed.); 13.7.24 pr; 16.3.1.33 (30 ed.); 18.3.4.2 (32 ed.); 25.3.1.10 (34 ed.); 13.1.12 pr, 1 (38 ed.); 29.5.1.12; 29.5.3.30; 37.8.1.16 (50 ed.); 39.2.15.28 (53 ed.); 12.6.23 pr (3 Sab.); 7.2.1.3 (17 Sab.); 32.52.7 (24 Sab.); 18.2.4.5 (28 Sab.); 21.2.21.1 (29 Sab.); 17.2.14 (30 Sab.); 24.1.7.4 (32 Sab.); 24.3.14.1 (36 Sab.); 9.2.41.1; 47.2.71 (41 Sab.); 12.6.43; 17.1.19 (43 Sab.); 29.2.40 (4 disp.); 35.2.82 (8 disp.); 40.5.30.14 (5 fid.); 1.1.1. pr (1 inst.) but D 22.1.19 (Gaius 6 XII tab.); 2.2.4 (Gaius 1 ed. prov.); 15.1.40 pr (Marci. 5 reg.) cf. 46.3.103 (Maec. 2 fid: elegantissime); 26.7.61 (Pomp. 20 epist: elegantius); VIR 2.456 772 773 774 D 1.16.6.3 (1 off. proc.) D 4.4.7.8 (11 ed.) D 30.50.2 (24 Sab.) 775 776 D 45.1.1.6 (41 Sab.) D 47.2.93 (38 ed.) but interp. Citati (1927) 24: Albertario 777 D 3.3.13 (8 ed.); 4.4.7.8 (11 ed.); 4.8.15 (13 ed.); 48.18.1.26 (8 off. proc.) 778 779 D 33.6.9.3 (23 Sab.) D 27.2.3.3 (36 ed.) 780 Above n.96 (et generaliter), n.167.308–9 (generaliter dicendum est etc.) 781 D 11.7.14.7 (25 ed., twice); 29.2.20.1 (61 ed.); 42.6.1.10 (64 ed.); 43.16.3.6 (69 ed.); 38.4.1.6 (14 Sab.); 24.1.32.5 (33 Sab.); 33.4.2 pr (5 disp.) 782 D 24.1.22 (2 Sab.) 758 760

2. The Oral Style

73

standing alone783), immoderate,784 imperite,785 impotenter,786 incolorate,787 inconsideranter,788 incunctanter,789 indifferenter,790 pecuniarie,791 perquam,792 perraro,793 pervicaciter,794 qualiterqualiter,795 regulariter,796 secure,797 sordide,798 sufficienter,799 tamdiu (with donec800 or quoad801 or standing by itself802), usquam,803 verecunde,804 versa vice,805 and vigilanter.806

Some adverbs appear in the comparative form: circumspectius,807 civilius,808 dilucidius,809 solutius,810 subtilius,811 timidius,812 tolerabilius,813 and violentius.814 Others are in the superlative: atrocissime,815 consultissime,816 diligentissime,817 rectissime (ait,818 rescripsit,819 scribit,820 videtur)821 and tardissime.822 The foregoing account could not, in the nature of things, be very lively. Yet with its help the alert reader should often be able to tell genuine from spurious Ulpian, though each text needs naturally to be examined on its merits. 783 D 12.4.3.8 (26 ed.); 29.2.20.1 (61 ed.); 42.6.1.10 (64 ed.); 43.16.3.6 (69 ed.); 38.4.1.6 (14 Sab.); 24.1.32.5 (33 Sab.); 33.4.2 pr (5 disp.) 784 785 D 21.1.17.3 (1 ed. cur.) D 9.2.7.8 (18 ed.); 11.6.1.1 (24 ed.) 786 787 788 D 1.16.9.5 (2 off. proc.) D 4.4.18.1 (11 ed.) D 26.10.3.17 (35 ed.) 789 D 40.2.20 pr (2 off. cons.) 790 D 1.13.1.3 (1 off. quaest.) but interp. Citati (1927) 47: Pringsheim 791 D 16.2.10.2 (63 ed.) 792 Thirteen of 14 texts: D 3.3.1.2 (9 ed.); 10.4.1 (24 ed.); 27.3.1.4 (36 ed.); 37.8.1.10 (40 ed.); 28.7.8 pr (50 ed.); 42.4.3 pr (59 ed.); 20.1.6 (73 ed.); 36.3.14.1 (79 ed.); 1.16.4.6 (1 off. proc.); 48.20.6; 48.22.7.22 (10 off. proc.); 50.16.99.2 (1 off. cons.); 40.9.12.1 (4 adult.) but 1.2.2.44 (Pomp. 1 enchir.) cf. Kalb (1890) 132 793 Six of 7 texts: D 42.1.2 (6 ed.); 4.4.3 pr; 4.4.18.1 (11 ed.); 42.6.1.1 (64 ed.); 1.9.12 pr (2 cens.); 26.10.7.3 (1 omn. trib.) but 1.3.5 (Cels. 17 dig.) 794 D 26.10.3.16 (35 ed.) 795 All eleven texts: D 4.4.7 pr (11 ed.); 9.2.7.1 (18 ed.); 26.7.5.10 (35 ed.); 47.4.1.2 (38 ed.); 42.6.1.15 (64 ed.); 43.16.3.17 (69 ed.); 43.24.11.12; 50.16.63 (71 ed.); 46.8.12.3 (80 ed.); 47.2.46 pr (42 Sab.); 48.21.1 (8 disp.) 796 D 5.3.9 (15 ed.); 15.3.3.2 (29 ed.); 30.7.1.1 (51 ed.); 7.1.25.5 (18 Sab.) but interp. Citati (1927) 77: De Francisci 797 798 D 5.2.8.6 (14 ed.) D 26.7.7.2; 26.10.3.5 (35 ed.) 799 800 D 7.1.15.2 (18 Sab.); 24.3.14 pr (36 Sab.) D 13.1.10.2 (38 ed.); 34.1.14 pr (2 fid.) 801 802 803 D 42.4.5.1 (59 ed.) D 48.19.6 pr (9 off. proc.) D 1.9.1.1 (62 ed.) 804 D 39.2.4.5 (1 ed.); 24.3.21.6 (3 disp.); 1.12.1.8 (1 off. pr. urb.) but interp. Citati (1927) 90: Albertario 805 D 39.3.6.3 (53 ed.); 40.12.1.1 (54 ed.); 43.29.3 pr (71 ed.); 44.5.1.12 (76 ed.); 36.3.1.11 (79 ed.); 24.1.33.1 (36 Sab.); 45.1.1.3 (48 Sab.) 806 807 808 D 27.9.5.10 (20 Sab.) D 37.9.1.18 (41 ed.) D 25.5.1.2 (34 ed.) 809 D 15.1.19.1 (29 ed.) 810 D 11.7.14.14 (25 ed.) 811 D 12.4.3.8 (26 ed.); 49.15.15 (12 Sab.) 812 D 29.2.42 pr (4 disp.) 813 D 50.5.13.3 (23 ed.) 814 D 9.2.29.7 (18 ed.) 815 D 1.6.2 (8 off. proc.) 816 817 D 28.7.8 pr (50 ed.) D 37.10.3.5 (41 ed.) cf. Collatio 11.7.5 (8 off. proc.) 818 D 10.2.18.1 (19 ed.); 17.1.12.14 (31/1 ed.); 29.4.10 pr (50 ed.); 47.8.4.3 (56/1 ed.); 23.3.5.9 (31 Sab.); 40.4.13.2 (5 disp.); 23.2.43.3 (1 Iul. Pap.) 819 D 17.1.6.7 (31/1 ed) 820 Eight of 10 texts: D 13.7.36 pr (11 ed.); 9.2.23.4 (18 ed.); 19.2.19.6 (32 ed.); 37.9.1.11; 37.10.3.13 (41 ed.); 39.2.15.10 (53 ed.); 42.4.7.7 (59 ed.); 39.2.40.1 (43 Sab.) but 35.1.62.1 (Ter. Clem. 4 Iul. Pap.); 34.2.34.2 (Pomp. 9 Q. Muc.) 821 822 D 4.2.14.5 (11 ed.) D 43.24.15.4 (71 ed.)

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2. The Oral Style

Chapters 5 and 10 use it to set up two lists, one of genuine, the other of spurious compositions. It may be of interest here to sketch some other ways in which the study of Ulpian’s style can be fruitful. One is that a grasp of the elements of style can help us to recognize as Ulpian’s a passage that the Digest attributes to another author. There is a chapter of the Digest that deals with actions by and against corporate bodies (universitates).823 A two-thirds majority was needed to authorize someone to bring or defend an action in the name of a corporate body. How was the twothirds reckoned? A text from Ulpian On the Edict says that, according to Pomponius, a father can vote for a son and a son for his father if they are both members of the local council.824 The sentence continues with an excerpt attributed to Paul, which says that persons in the same power (e.g. two sons both in their father’s power) can vote for one another, since their act is done as councillors, not in a domestic capacity.825 The same voting rule applies to appointments to local office (honores): D. 3.4.5 ULPIANUS libro octavo ad edictum Illud notandum Pomponius ait, quod et patris suffragium filio proderit et filii patri, D 3.4.6 pr PAULUS libro nono ad edictum item eorum, qui in eiusdem potestate sunt: quasi decurio enim hoc dedit, non quasi domestica persona. quod et in honorum petitione erit servandum.

The last sentence in reality continues Ulpian’s text, not Paul’s. The construction erit followed by the gerundive is common in Ulpian but very rare in Paul.826 The passage in question continues with other Ulpianic phrases. For instance, we find, a little later (3.4.6.1) parvi refert, which occurs in thirtyseven texts of Ulpian and otherwise only once in Papinian and once (this text) in Paul.827 Then there is a sentence (3.4.6.2) beginning et puto828 and another short sentence (et constitui ei potest: 3.4.6.3) beginning with et. Indeed the whole passage, from quod et in honorum petitione to the end of D 3.4.6, though attributed to Paul, is really a passage from Ulpian that continues D 3.4.5. Justinian’s compilers are responsible for the mistake. They normally took Ulpian’s Edict as the fundamental text and inserted in it shorter passages from Paul and Gaius when that seemed appropriate.829 At the end of the Paul insertion they or the person who copied the text forgot to repeat the previous text heading (Ulpianus libro octavo ad edictum) before going back to the text of Ulpian. 830 This example throws light on how Justinian’s commissioners worked. The next tells us something unsuspected about Paul. A resolution of the senate at the instance of Marcus and Commodus laid down that a guardian could not marry off his female ward to his son. Paul wrote a commentary on this Speech 823 826 829

824 D 3.4.5 (Ulp. 8 ed. = 9 ed., Lenel) D 3.4 827 Above n.17 Above n.352–408 Honoré (1970) 250, (1978) 151–70

825 828 830

D 3.4.6 pr (Paul 9 ed.) Above n.53 Honoré (1978) 166–70

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of Marcus and Commodus (liber singularis ad orationem divi Antonini et Commodi), from which Justinian’s compilers included two excerpts.831 The longer of them is in Paul’s flat style, apart from a passage in the middle of section 4 with the phrase quaestio in eo est,832 which is Ulpianic.833 As the discussion of this passage in chapter 6 shows,834 there is reason to think that Paul is here drawing on a lost work of Ulpian. He does not say so. But neither Paul nor Ulpian, eminent contemporaries, overtly cites the other. An understanding of Ulpian’s style also helps with the problem of interpolations by Justinian’s compilers. Indeed it supports the conclusion that ‘very often what we read in the Digest does in essence reproduce the actual words of the jurists who wrote in the High Empire, battered but not re-written in the sixth century’.835 An earlier generation readily assumed that Justinian’s compilers felt free to alter the classical texts. They had authority to do so, however, only to reduce the bulk of the classical texts, to harmonize them, and to make them read smoothly. That provided a considerable but not unlimited scope for introducing changes. There is often doubt whether a text has been altered and, if so, how. But an interpolation is not likely to be in the distinctive style of the original author to whom it is attributed. The compilers, men of Greek culture, were not expert in Latin pastiche. Take an example from a famous text on agency.836 The owner’s general agent sells property and promises security to the buyer. Papinian thinks that the buyer can sue the owner in a supplementary action (utilis actio) on sale, if the owner had authorized his general agent to sell. The general agent is in a position like the manager of a business (institor). Conversely, says Ulpian, the owner can sue the buyer in a supplementary action on sale. Si procurator vendiderit et caverit emptori, quaeritur an domino vel adversus dominum actio dari debeat. et Papinianus libro tertio responsorum putat cum domino ex empto agi posse utili actione ad exemplum institoriae actionis, si modo rem vendendam mandavit: ergo et per contrarium dicendum est utilem ex empto actionem domino competere.

Is this genuine Ulpian? The proposition stated is obviously fair. If the buyer is entitled to sue he should also be liable to be sued. But it is bold, and hence suspect. Yet per contrarium is found twenty-nine times in Ulpian and only twice in any other lawyer (both times in Marcianus, who is very close to Ulpian).837 Quite apart from Ulpian’s known concern with equity, this supports the genuineness of the text. 831 834 836

D 23.2.20; 23.2.60: Lenel (1889) 1.1145–6 Ch.5 n.35–40 D 19.1.13.25 (32 ed.)

832 835 837

833 D 23.2.60.4 Above n.155 Millar (1986) 275–6 Above n.106–7

3 The Cosmopolis and Human Rights U L P I A N ’s work was in my view rooted in his ideology.1 The thinking that nourishes it is cosmopolitan and egalitarian. Following on the extension of citizenship by the Antonine constitution,2 he expounds Roman law as a law based on the view that all people are born free and equal and that all possess dignity. These three values, freedom, equality, and dignity, are the essential elements of what we now term human rights. Some contemporary lawyers shared Ulpian’s views, which in part reflected the Zeitgeist. Others wrote nothing that has survived.3 Ulpian is the first lawyer who can, given the scale of his work and its influence, properly count as the pioneer of the human rights movement.

I.

THE TRUE PHILOSOPHY

Unlike other legal authors, the Tyrian embraces a distinct theoretical point of view. To understand it, one must put on one side the famous ‘precepts of law’ attributed to him,4 including ‘giving each his due’. This humdrum endorsement of existing law does not come from a genuine work of Ulpian. Both Frezza5 and Waldstein6 wrestle nobly to reconcile ‘giving each his due’ with Ulpian’s concern to show what, from the standpoint of true philosophy, really is due to each of us. Their instincts are sound, and they downplay the precept as an element in Ulpian’s outlook. His genuine point of view emerges from a well-known passage in his Teaching Manual (Institutiones). There he derives the term ‘law’ (ius) from justice and relates it to four interconnected elements: art, religion, ethics and philosophy.7 Law is the art or technique of 1 On the importance of ideology to at least some Roman lawyers see Nörr (1972a),(1976), Carcaterra (1972), Klami (178), Bretone (1969),(1982), Waldstein (1994),(1995a). On human rights in particular see Gaudemet (1987),(1998), Polaček (1988), Honoré (1998b). For the influence of philosophical logic see Miquel (1970) 2 3 Ch.1 n.30 Liebs (1980) 162–74 4 D 1.1.10 pr, 1 (1 reg: Iustitia est constans et perpetua voluntas ius suum cuique tribuendi. Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere). For the background see ch.10 n.123–51 5 6 Frezza (1983) Waldstein (1995b) 7 D 1.1.1. pr, 1 (1 inst: Iuri operam daturum prius nosse oportet, unde nomen iuris descendat. est autem a iustitia appellatum: nam, ut eleganter Celsus definit, ius est ars boni et aequi. Cuius merito quis nos sacerdotes appellet: iustitiam namque colimus et boni et aequi notitiam profitemur, aequum

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the good and equitable. Lawyers can rightly be called priests of the law, for they mark off the equitable from the inequitable, the lawful from the unlawful, and try to make people good by providing threats and incentives. They cultivate true, not sham philosophy. A later passage from Ulpian’s Tribunals repeats the view that there is a close connection between law and religion, since knowledge of law is something sacred. He draws a parallel between teachers of philosophy and law, neither of whom should press for monetary rewards, though it is not wrong to receive money from pupils if they offer it.8 These remarks are not merely decorative, but neither are they selfexplanatory. The ‘elegant’ view that law is the art of the good and equitable, consisting of the range of skills needed to see that justice is done, comes from Iuventius Celsus, who wrote a century earlier.9 Ulpian’s older contemporary Paul says that there is a type of law, natural law, that is always good and equitable.10 Ulpian does not dissent, but he goes further. The lawyer is concerned with the techniques by which what is good and equitable can be given practical effect. His remarks can be understood in the light of what Galen, the other leading intellectual of the age, says about medicine. Galen is now thought to have died between 20411 and 216.12 He remained in Rome from about 169 and Ulpian must have known him. Galen says that medicine is an art13 and that arts must be useful.14 His list of arts includes law. But though medicine is an art the true doctor must, Galen says, also be a philosopher.15 He regarded himself as the one person who successfully combined philosophy with medicine.16 The study and practice of medicine should, in other words, have a theoretical background. A good doctor embraces logic and reason. He renounces superstition and despises money.17 Ulpian’s thought follows on the same lines as Galen’s.18 He combines the belief, stated by Celsus, that law is an art with the view, put earlier by Cicero ab iniquo separantes, licitum ab illicito discernentes, bonos non solum metu poenarum, verum etiam praemiorum quoque exhortatione efficere cupientes, veram nisi fallor philosophiam, non simulatam affectantes). 8 D 50.13.1.5 (Ulp. 8 omn. trib: Proinde ne iuris quidem civilis professoribus ius dicent <provincial governors dealing with claims for fees>: est quidem res sanctissima civilis sapientia, sed quae pretio nummario non sit aestimanda nec dehonestanda, dum in iudicio honor petitur, qui in ingressu sacramenti offerri debuit. quaedam enim tametsi honeste accipiantur, inhoneste tamen petuntur) 9 10 Frezza (1983) 417 D 1.1.11 (14 Sab.) 11 His work On Theriac to Piso (De theriaca ad Pisonem) must be later than 204 (Swain 1996, 368–9, 430–2) and has flattering references to Severus and Caracalla which could be taken as praise of their egalitarian stance (Buraselis 1989, 25f.) 12 Nutton (1995) 25–39 showing that the Suda date (199/200) is mistaken; Swain (1996) 357–79 13 Galen, Advice on Arts (Προτρεπτικ ς λ γος ες τς τχνας, ed. Kühn 1821) 1 ch.14:

νοµικ τχνη

Galen, Advice ch. 9: βιωελς Galen, The Best Doctor a Philosopher ( Οτι ριστος ατρ ς κα ιλ σοος), ed. Kühn 1.53–63; Lannata (1984) 214–9 16 Swain (1996) 366–7 17 Galen, Advice p.60 cf. D 50.13.1.15 (Ulp. 8 omn. trib.) 18 For Galen’s influence on Ulpian see Lannata (1984) 214–9 14 15

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in the mouths of Atticus and Marcus,19 that the discipline of law must be based on philosophy. What does he understand by art? It is worth looking at what he says about medicine. When discussing claims for fees by members of various professions, including doctors, he says that those who perform incantations, imprecations, and exorcisms cannot claim fees in the way that doctors can, because these techniques are not part of medicine.20 They are the work of people commonly called impostors, though there are some who affirm that these techniques have done them good. In much the same way law is in Ulpian’s view an art with a specific end to be attained by rational means. As medicine is the art of healing, so law is the art of seeing that justice is done. The lawyer learns the rules and techniques that serve this end. He must, like the doctor, embrace reason and renounce superstition. That a certain opinion about the law ‘has reason’21 (habet rationem) is way of saying that it is right. And law, like medicine, must be pursued for its own sake and not for money.22 Ulpian’s search for a philosophy underpinning law is not surprising. Around AD 200 intellectuals were becoming dissatisfied with the view that whatever is traditional or customary in a society is automatically right. They were looking in both politics and religion for something more universal, rational, and philosophical. Origen, for example, another contemporary, speaks of the true philosophy of Christ.23 Indeed any discipline that was systematically concerned with right and wrong, even rhetoric, could lay claim to a philosophy. Law is concerned with the difference between right and wrong, lawful and unlawful, and so is in this broad sense a philosophical discipline. But to understand Ulpian’s ‘true philosophy’ more precisely we must pinpoint the sham philosophy with which he contrasts it. His rejection of sham philosophy24 lends itself to several interpretations.25 One, congenial to Plato, is that sham philosophy is sophistry, which he regarded as subversive of morality. An alternative view is that sham philosophy consists in embracing principles that have no practical application. Both law and medicine are applied disciplines, concerned to see that what is correct in theory is put to use in order to heal or do justice. Sham philosophy, in contrast, lacks utility, a notion to which Ulpian often appeals. Sham philosophy may also be hypocritical. Here the standard example is the philosopher who is after money, when a philosopher’s aim should be to pursue truth and

19

Cicero, Laws (De legibus) 1.5.17 D 50.13.1.3 (8 omn. trib: non tamen si incantavit, si imprecatus est, si, ut vulgari verbo impostorum utar, si exorcizavit: non sunt ista medicinae genera, tametsi sint, qui hos sibi profuisse cum praedictione adfirment) 21 22 Ch.2. n.167 (26 of 27 texts) D 50.13.1.5 (8 omn. trib.) 23 Origen, Homily on Genesis 9.2 24 Possible sources: Aristotle, Metaph. 4.2.1004b; Cicero, De fin. 2.21; Quintilian, Inst. 12.3.12 25 Waldstein (1994),(1995a),(1996) 59–71 20


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wisdom.26 Not to apply in practice what one in theory believes is for Ulpian, I think, a sign that one’s philosophy is a sham. To quote Euphrates as reported by Pliny the Younger, the person who practises what philosophy teaches, for instance judging cases, participates in philosophy.27 A fourth possible interpretation of sham philosophy is that it is of the sort that lends itself to irrational techniques, of which incantation and exorcism are examples. This objection does not apply directly to law, though it may imply criticism of lawyers who do not give reasons for their opinions, as Ulpian is on the whole careful to do. The true philosophy, then, will be useful and based on reason, and the true philosopher will be honest, not hypocritical. But Ulpian’s view that lawyers aim at the true philosophy28 goes, I believe, beyond a concern with right and wrong and a rejection of philosophy that is unpractical, dishonest, or irrational. His defence of law as the true philosophy is in part a reply to Cicero’s reproach in Pro Murena, where the orator is concerned to show that rhetoric is superior to law as a qualification for public office. According to Cicero, lawyers make no more than a wordy pretence of wisdom.29 Stripped of the cloak of secrecy with which the pontiffs surrounded it, law was revealed as a trivial pursuit. Ulpian in response lays claim on behalf of lawyers to genuine wisdom. His philosophy has accordingly a positive content. One way in which this is shown is in the emphasis in his writing on what is natural,30 including natural equity,31 rather than artificial or, like the Roman ius civile, confined to a given society rather than universal. The contrast between natural and civil justice and law was a commonplace in both philosophy and law. Ulpian, however, interprets it differently from his predecessors such as Gaius. To them the natural is morally superior to the civil in that the common custom of various peoples, the ius gentium, is founded on natural reason and hence has a higher status than the law adopted by a particular state, say Rome or Athens.32 ‘Nature’ can be used to criticize the narrowness or technicality of the law of a particular state and as an instrument to broaden and simplify the law. Ulpian, however, takes the law of nature not to be 26 D 50.13.1.4 (Ulp. 8 omn. trib.); 50.5.8.4 (Pap. 1 resp: etenim vere philosophantes pecuniam contemnunt, cuius retinendae cupidine fictam adseverationem detegunt) 27 Pliny, Letters 1.10: ille <Euphrates> me consolatur, adfirmat etiam esse hanc philosophiae et quidem pulcherrimam partem, agere negotium publicum, cognoscere iudicare, promere et exercere iustitiam, quaeque ipsi doceant in usus habere; Mantello (1984) 28 Possible source: Cicero, Tusc. 4.6. There is a good discussion by Birks (1983) 171–3 29 Cicero, Pro Murena 14.30 (ista vestra verbosa simulatio prudentiae) cf. 11.25 (trivial preoccupation with letters and divisions between words) and Quintilian, Inst. 12.3.11. Of course Cicero’s attitude to lawyers varied according to mood and forensic need 30 D 15.1.7.7 (29 ed.); 50.16.42 (57 ed.); 43.16.1.27 (69 ed.); 1.5.24 (27 Sab.); 19.5.4 (30 Sab.); 50.17.32 (43 Sab.) 31 D 4.4.1 pr (11 ed.); 12.4.3.7 (26 ed.); 13.5.1 pr (27 ed.); 15.1.11.2 (29 ed.); 47.4.1.1 (38 ed.); 37.5.1 pr (40 ed.); 37.10.3.13 (41 ed.); 43.26.2.2 (71 ed.); 38.16.1.4 (12 Sab.) 32 Gaius, Inst. 1.1: quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur vocaturque ius gentium, quasi quo iure omnes gentes utuntur

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embodied in common custom, the ius gentium, but to be morally superior to it. In the conditions of his time this was a rational point of view. Roman law had been extended to all the free peoples of the empire, so that the contrast between the civil law and common custom was now of purely historical interest. Roman law had in effect become the ius gentium. The role of natural law in justifying some institutions and criticizing others persisted but was wider than the role formerly performed by the ius gentium. Slavery is the prime example of an institution contrary to nature but recognized by the ius gentium, which ‘encroached on’ (invasit) the law of nature.33 Although most criticism of law in the Roman world was criticism of its administration rather than its substance,34 in this instance an important institution is open to moral criticism. Where does this line of thought come from? Philosophically minded lawyers are not members of this or that school of philosophy. It is a mistake to attribute to a lawyer a system of philosophy rather than a set of values.35 The nature of the discipline requires lawyers to be eclectic, to compromise between different aims. They must be faithful to the wording of authoritative texts, take account of the purposes they embody, and try to reach conclusions that are morally acceptable in the particular case. Ulpian is conscious of all three aims but inclines to give priority to achieving an equitable solution in the particular instance. Nevertheless, it seems that Ulpian’s outlook was predominantly Stoic. He shares with the Stoics the view that we are born free and equal and should live according to nature.36 The precepts of nature are accessible to reason, in which all share. Humans form a community and relate to one another and to the gods by virtue of their power of reason.37 As Marcus Aurelius says, if the mind is common to all, then so is reason and the reasoning that enjoins what is to be done or avoided. It follows that law is also common to all, and that we are all citizens in a polity of a sort (πολτευµα). It follows further that the universe is a kind of city, in which the whole race of men participate. From where else than from this common city is our mind, reason, and sense of law derived?38 Marcus is not describing the Roman constitution of his time, in which citizenship was restricted and eagerly sought, but his universal city represents the ideal to which the Antonine constitution later tried to give effect. The Stoic thinkers and those influenced by Stoicism whom Ulpian is most likely to have absorbed are Chrysippus, the emperor Marcus, and in ethical matters Cicero.39 Marcianus, almost certainly Ulpian’s pupil and the lawyer 33

34 D 1.1.4. (1 inst.) Nörr (1974) 148–51 Sokolowski (1902); Voggensperger (1952) 36 e.g. Cicero, Ends (De finibus) 4.14: convenienter naturae vivere 37 Schmerkel (1982) 2 ch.5 38 Marcus, Meditations 4.4. Of Ulpian’s likely sources Cicero, On Laws 1.23.33 said much the same cf. Zecchini (1995) 39 D 42.4.7.4 (59 ed.), citing and criticizing an unknown passage of Cicero, speaks to familiarity with his works 35


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who most resembles him in style and thought,40 cites the definition of law by ‘the leading Stoic philosopher Chrysippus’.41 Law is sovereign over all things divine and human. It should preside over the good and the bad alike and be the criterion of what is just and unjust. It should be the leader and ruler of those called by nature to live in society, prescribing to them what is to be done and what avoided. The passage cited from Chrysippus agrees closely with Ulpian’s exposition of law in relation to philosophy, religion and ethics. It supports the idea that the philosophy he has in mind is mainly Stoic.42 One indication of this is that to Ulpian all humans are by the law of nature born equal.43 It was the Stoa that first recognized this, beginning with the equality of husband and wife. Incidentally Ulpian may have been the first person to express in writing the idea that spouses take one another for better or worse.44 To the Stoics marital equality constituted a first step towards respect for children, who must be allowed to educate themselves even against the wishes of their father.45 That duty of respect extends to slaves, for to Chrysippus a slave is a person hired for life, subordinate to the person who hired him but not possessed or owned by him. As human beings slaves and free men are equal,46 for by nature no one is a slave. Nor is anyone noble by birth. Only that person is free and noble who acts rightly.47 But, despite these radical beliefs, Stoicism did not have a political programme.48 Crifò attaches importance to the circle of Julia Domna as an element in Ulpian’s thinking.49 According to Philostratus of Lemnos Julia was the centre of a group who shared intellectual or philosophical interests.50 The sophist Philiscus of Thessaly won her patronage by attaching himself in about 212 to the ‘geometers (i.e. mathematicians) and philosophers who surrounded her’.51 She persuaded Philostratus to write the life of Apollonius of Tyana,52 which he did, but only after her death in 217. Apollonius was a miracle-worker and saint (or, on a hostile view, a charlatan) of the time of Domitian, before whom he is said to have been strikingly outspoken in his own defence. Philostratus’ life was 40

Liebs (1997) §428.1 D 1.3.2 (Marci. 1 inst: philosophus summae stoicae sapientiae Chrysippus) 42 Fragments collected in Arnim (1903–24); history in Pohlenz (1970) 43 D 50.17.32 (Ulp. 43 Sab.) 44 D 24.3.22.7 (Ulp. 33 ed: quid enim tam humanum est, quam ut fortuitis casibus mulieris maritum vel uxorem viri participem esse?) cf. Swain (1996) 119f. 45 Edelstein (1966) 73f. 46 Arnim (1903–24) 3 frag. 351 cf. Seneca, Letters (Epist.) 47.11; Favours (De benef.) 3.21.2; 3.22.3 47 48 Edelstein (1966) 83–4 Sandbach (1975) 141. 49 Crifò (1976) 734–6; Nörr (1972a) 20; RE 11.923, 926: Benario (1958); M. Gilmore Williams (1902); Mundle (1961); Birley (1988) 168 50 Sophists 2.30.1, describing her as a ιλ σοος; Dio 75.15.7; 77.18.3; Bowersock (1969) 101f.; Swain (1999) 176f. 51 Philostratus, Sophists 622. 52 Philostratus, Apollonius (Vit. Apoll.) 1.3; Nörr (1972a) 21; MacMullen (1967). Caracalla also honoured him in 214/5: Dio 77.18.4 41

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a defence of the ‘Pythagorean’ way of life which was now giving traditional Greek philosophy a religious angle. Some Christians took the life of Apollonius as a pagan counterpart to the Gospels.53 Though Ulpian must have known Julia Domna, it is a question how far he sympathized with the partly mystical values that the life of Apollonius seeks to propagate. Himself outspoken and self-confident, he will have admired the freedom of speech, παρρησα, that is attributed to Apollonius of Tyana.54 Whether we can go further is unsure. Frezza has urged that Ulpian’s outlook is drawn from Neoplatonic rather than Stoic sources.55 Neoplatonism was popular in his time, especially in the circle surrounding Julia Domna. Frezza56 cites in support the view that Ulpian takes of animals. Ulpian asserts that natural law applies to all animals, whether domesticated or wild. They are considered, he says, to know from experience (peritia), not merely by instinct, about what we call marriage, the procreation of children and their education.57 As regards damage done by animals Ulpian makes the owner’s liability depend on whether the animal acted contrary to nature.58 Owners are liable for the actions of badly behaved animals, who act contrary to nature, but not for well-behaved ones. Here, too, he attributes a limited rationality to animals. The Stoic view was different. Chrysippus asserts that other animals serve man and the gods, and that humans do no wrong in using animals for their own purposes.59 The Christians too, if Origen is representative, thought of man as the sole rational creature. Lower animals, he says, are governed wholly by instinct.60 But the Neoplatonic philosopher Porphyry of Tyre, born about 234, a decade after Ulpian’s death, affirmed, as against Chrysippus and the Stoics, the rational character of animals.61 Ulpian could not have read his work, but it may be that his view that the law of nature applied to animals was influenced by Neoplatonic philosophy. That view implies respect for animals so far as they have reason, but is not the same thing as attributing rights to animals. There remains a difference between human beings, who are members of a community of rights and obligations embodied in law, and animals, who participate to some extent in reason and are to that extent subject to natural law. Lawyers are used to drawing on a variety of sources, and the influence on Ulpian of Neoplatonic thinking, if it existed, does not detract from the conclusion that the mainstream of his thought was Stoic. 53 Eusebius, Against the Life of Apollonius (Contra vitam Apoll.); Lactantius, Divine Teaching (Div. inst.) 5.3. There are parallels in Apollonius 8.30–1 54 Philostratus, Apollonius 1.28–32; 4.44; 5.28; 6.32; 7.11, 32; 8.5 55 56 Frezza (1968),(1983) cf. Modrzejewski (1976) 57 D 1.1.1.3 (Ulp. 1 inst: hinc descendit maris atque feminae coniunctio, quam nos matrimonium appellamus, hinc liberorum procreatio, hinc educatio: videmus etenim cetera quoque animalia, feras etiam istius iuris peritia censeri). Criticized by Watson (1983) but the criticism, if warranted, should be directed at Ulpian not at me cf. Birks (1983) 175–6 58 D 9.1.1.7 (Ulp. 18 ed) 59 Cicero, Ends 3.20.67. On the status of animals in antiquity see Dierauer (1977). 60 61 Origen, Against Celsus (Contra Celsum) 4.86f. Beutler (1953) 311


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This is probably true also of Ulpian’s view of the relation between law and religion. Gellius, in the course of a passage citing Chrysippus, represents the judge as the priest of justice.62 Demosthenes, cited by Marcianus, described law as an invention and gift of the gods.63 Stoics respected the gods and the numinous, but Stoicism was not a religion. Nörr has offered a perceptive insight into Ulpian’s view of the relation of law to religion.64 Now that thinking people were no longer content with the traditional way of life, serving the state and conforming to received laws and customs, some found solace in new religions, such as Christianity or sun-worship. At a time when Tertullian had abandoned law for religion65 and Gregory the Wonder-Worker was soon to do the same, a lawyer who was alive to the new currents needed to defend his calling by showing that it possessed a sacred element. This did not mean that he had to embrace any of the competing religions. All, says Ulpian, may take an oath ‘according to their own superstition’, though probably not if it is a ‘religion publicly disapproved’.66 Ulpian speaks of Jewish superstition67 and we need not suppose that he thought much more highly of Christianity, though it had adherents in the imperial household. Since Julia Mammaea met Origen, Ulpian may have known something of Christianity at first hand. It is true that his work The Proconsul contained a list of imperial rescripts directed against Christians.68 But he could hardly fail to list these, since his treatise was meant to help provincial governors perform their duties according to law and current administrative practice. The list does not in itself demonstrate hostility to Christianity. Nevertheless his attitude to it is likely to have been ambiguous. He will have welcomed the universalism and care for the weak that marked Christianity. A tolerant attitude to religious diversity, such as the Augustan History attributed to Alexander Severus,69 is not ruled out. But he will have been hostile to any tendency to seek private salvation rather than to shoulder public responsibility. Public law combines religion with service to the state. It is concerned with sacred things, priests, and magistrates.70 62

Gellius, Attic Nights 14.4.3 (. . . iudicem, qui iustitiae antistes est) Demosthenes, Against Aristogeiton 1, 25.16; D 1.3.2 (Marci. 1 inst.) 64 Nörr (1973) 555; Frezza (1968) 368 65 Q. Septimius Tertullianus (c.160–240) expressed hostility to the Roman empire after his conversion to Christianity (c.195) and to Montanism (c.207). He is probably the same as the contemporary lawyer Tertullianus: Lenel, 1889, 2.342–4; Steinwenter (1934) 844–5; Kunkel (1967) 236; Barnes2 (1985) 22–9; Orestano (1973b); Nörr (1974) 55f.; Martini (1975) 79–124; Liebs (1976) 294 n.37a; Lehmann (1982) 194–202, 279–84; Liebs (1997) §417.2 66 D 12.2.5.1, 3 (Ulp. 22 ed: quod propria superstitione iuratum est, standum rescripsit . . . sed si quis illicitum iusiurandum detulerit, scilicet improbatae publice religionis, videamus an pro eo habeatur atque si iuratum non esset: quod magis existimo dicendum) 67 D 50.2.3.3 (Ulp. 3 off. cons.) but recording a tolerant ruling by Severus and Caracalla 68 Lactantius, Divine Teaching 5.11 69 HA Severus Alexander 22.4 (toleration of Jews and Christians), 29.2 (statues of Apollonius, Christ, Abraham, Orpheus, and others). The report may not be entirely the product of late fourth-century wish-fulfilment: Swain (1999) 176 70 D 1.1.1.2 (Ulp. 1 inst.) 63

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Quintilian’s attitude to public affairs,71 rather than Seneca’s, shaped that of Ulpian. His religious concern, Nörr argues, is not to adhere to one of the new religions but to show that law, like philosophy, is in some sense a sacred calling.72 Gaius in his work on the Twelve Tables had already spoken of the impropriety of approaching the study of law without considering its origins and, as it were, with unwashed hands. The phrase suggests religious initiation.73 Ulpian, speaking of payments by law students to their teachers, says something parallel. They should offer an honorarium on initiation to the cult (in ingressu sacramenti).74 Other disciplines thought on similar lines. Aristides regarded oratory as having a religious element that involved initiation.75 Clearly, if lawyers are in some sense priests of justice, to embark on the study of law is a form of initiation. In a phrase that has echoes of Cicero,76 lawyers have a cult of justice (iustitiam colimus). Ulpian is making a lofty claim, one that goes beyond the reason that Gaius put forward for teaching legal history. Nevertheless to Ulpian law is not and should not be a mystery.77 On the contrary he is concerned to disseminate a knowledge of it as widely as possible and to demonstrate that it is accessible to human reason.

II. HUMAN RIGHTS

Ulpian’s philosophy, then, was in tune with the movement that led to the Antonine constitution and he may well have advocated the extension of citizenship that it brought about. The motives behind the Antonine constitution were perhaps three. Least important is the desire to increase tax revenue,78 though Dio, a senator, makes it the principal aim.79 Given the hostility of the senate to Caracalla and the dilution of status that the Antonine constitution involved, that is not unexpected. In practice the amount raised by extending inheritance tax could not be great given that the richer provincials were often citizens already. Non-citizens already paid capitation and land taxes. To point to tax revenue as the explanation of the Antonine constitution is as silly as to attribute Scottish devolution to the desire of the British Labour party to win extra seats in Scotland in 1997. In both cases the occasion may have been relatively trivial,80 but the root causes of constitutional change lay deep. And Dio himself does not reject the idea of the cosmopolis. On the contrary, he puts the case for universal citizenship in the mouth of Maecenas.81

71 72 74 76 79

Quintilian, Rhetorical Teaching (Inst. or.) 11.1.35; Barnes (1968) 73 D 1.2.1 (1 leg. XII tab.) Nörr (1973) 568 (imitatio philosophiae). 75 Aristides, Oration 34 Lenz–Behr D 50.13.1.5 (Ulp. 8 omn. trib.) 77 Against: Nörr (1973) 360 78 Marotta (2000) 166–71 Laws 1.33.48 80 Marotta (2000) 167f. 81 Dio 52.19.6 Dio 77.9.5


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Of greater significance to Caracalla psychologically was the desire to appease the gods, or nominally to thank them for the removal of Geta, and to increase their circle of worshippers.82 The third strand, cosmopolitanism, was, however, the most important. The dynasty drew strength from areas that were not wholly Italian or western: Africa, Syria, Greece. Septimius Severus seems to have been the first emperor to have been of non-Italian extraction on his father’s side.83 He was fluent in Punic.84 In the east universalist religions were gaining ground: sun-worship and various form of monotheism. Though no intellectual, Caracalla was quick-witted and alive to the prevailing currents of opinion, some of them associated with his mother. A lawyer from Syria, exposed to the same currents and aware of the simplification that common citizenship would bring, might well support and even suggest the change. It was the sort of grand but simple idea to appeal to Caracalla, an intelligent man bent on achieving greatness, but impatient of niceties. If it possessed an anti-establishment flavour that may have been to his taste. He liked to mix with soldiers, live austerely, and take his share of menial tasks. To irritate the senate and existing citizens may not have displeased him. Ulpian’s exposition of Roman law and administration in over 200 books can be regarded as the legal corollary of the cosmopolitan and egalitarian movement that culminated in the Antonine constitution. The interpretation of the law, the adjudication of disputes and the exercise of discretion by public officials should take account of the natural freedom, equality and dignity of all. Roman law possessed a technical remedy, the action for wrongs (actio iniuriarum), that was designed to protect bodily integrity, reputation, and human dignity. It could be used to give effect to the principle of respect for natural freedom and equality. Ulpian cites Labeo for the proposition that the wrongs that the action seeks to remedy are either against the body, or relate to dignity or reputation.85 To be beaten up or defamed infringes a person’s dignity. Hence dignity, as the core of one’s personality, can be taken as the overarching value that the action for wrongs seeks to protect. It is in practice those forms of unfreedom and inequality that infringe human dignity that the law, then and now, takes account of and seeks, so far as is consistent with authority, to correct. It is true that Ulpian recognizes degrees of dignity. Men have more than women.86 Married women have more than concubines.87 Slaves, by implication, often have less. All are equal in that they possess dignity but, in contrast with modern thinking, the degree of dignity varies from person to person. These three principles—freedom, equality, and dignity—lie at the root of the contemporary civil rights movement. The trend towards enacting charters of rights is no more than an attempt to cast in concrete form what these 82

83 Birley (1971) 35f. 84 Victor, On the Caesars (De Caes.) 20.8 P.Giess. 40.11 D 47.10.1.2 (Ulp. 56 ed: Labeo ait . . . omnemque iniuriam aut in corpus inferri aut ad dignitatem aut ad infamiam pertinere) 86 D 1.9.1 pr (62 ed: maior dignitas est in sexu virili) 87 D 32.49.4 (Ulp. 22 Sab.) 85

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principles require in a modern society. Because they form the framework and underpinning of Ulpian’s writing, he is properly to be regarded as the first human rights lawyer. He did not originate either the philosophical thinking or the law on the subject, but he played a major role in elaborating, disseminating and justifying it. Something must be said about the Roman constitutional background. The cult of liberty was an ancient Roman theme, resolving in a legal context into a preference for liberty ( favor libertatis)88 in interpreting laws or private documents. ‘It is well known that many decisions are reached against the rigour of the law and in favour of freedom.’89 This explains why everyone has the right to demand that a free person be produced in order to ensure that he or she is not being treated as a slave. ‘No one is barred from taking action in favour of freedom.’90 It served to explain and justify the principle that gave citizenship to freed slaves irrespective of their sex or ethnic origin. This ‘great benefit’,91 the policy of equal citizenship (isopoliteia), was attributed to the king Servius Tullius, and attested by a third-century-BC inscription.92 It was inconsistent with the widely held view that slaves owe their status to natural deficiencies or to their own fault rather than to bad luck.93 And if in principle slaves could became citizens why should not the free people of the empire all be citizens? This point of view triumphed in 212 with the Antonine constitution. The constitution did of course not apply to slaves, who did not then or later acquire the right to be freed except in special circumstances, for example when a price had been laid down for their freedom and they had paid it. By Ulpian’s time, however, and in his work, the personality and dignity of a slave (persona servi) has come to be recognized, at least to a limited extent. Hadrian and Pius deprived the slaveowner who had treated his or her slave brutally of the ownership of the slave.94 This was to recognize the slave’s right to a minimum of decent treatment. Speaking of the urban prefect’s office Ulpian says that he should hear complaints from slaves of their owners’ cruelty or harshness, of being starved or treated obscenely or being forced into prostitution.95 In the Severan period the law, as Ulpian presents it, goes further. A sexual 88 e.g. D 43.29.3.9 (Ulp. 7 ed.); 40.5.24.10; 40.5.45.1 (5 disp: a legatee given a small legacy can be forced to free an expensive slave); 50.17.122 (Gai. 5 ed. prov.); CJ 7.2.15.1a (531–2) 89 90 D 40.5.24.10 (5 fid.) D 43.29.3.9 (71 ed.) 91 D 38.2.1 pr (Ulp. 42 ed: tam grande beneficium, quod in libertos confertur, cum ex servitute ad civitatem Romanam perducantur) 92 SIG3 543 (214 BC) 93 Dionysius of Halicarnassus, Roman Antiquities (Antiquitates Romanorum) 4.22–4 (τ"# $σει %λλ’ ο& τ"# τ$χ"η) 94 D 1.6.2 = Collatio 3.3.2–3 (Ulp. 8 off. proc.) 95 D 1.12.1.8 (Ulp. 1 off. pr. urb: Quod autem dictum est, ut servos de dominis querentes praefectus audiat, sic accipiemus non accusantes dominos (hoc enim nequaquam servo permittendum est nisi ex causis receptis) sed si verecunde expostulent, si saevitiam, si duritiam, si famem, qua eos premant, si obscenitatem, in qua eos compulerint vel compellant, apud praefectum urbi exponant. hoc quoque officium praefecto urbi a divo Severo datum est, ut mancipia tueantur ne prostituantur)


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assault on a slave by someone other than the owner gives the slaveowner an action for wrong (actio iniuriarum) against the other person.96 The reference to obscene treatment shows that the law aimed indirectly at protecting the slave against the owner’s sexual advances. But sexual exploitation is merely one example of treatment that a slave should not be obliged to put up with. Ulpian discusses and rationalizes the bringing of actions for assault on or insult to a slave in the slave’s name, but by the slaveowner,97 ‘If someone wrongs a slave, but not with a view to insulting the slaveowner, the magistrate must not let the wrong go unpunished, especially if the wrongdoer has beaten or tortured the slave. Obviously even a slave resents that.’98 Moreover, the action for wrong to a slave is not confined to physical assaults. If the third person has mildly hit or insulted the slave the magistrate will not give an action against him. But if he has seriously defamed the slave, the magistrate must inform himself about the slave’s quality, character, and occupation. The magistrate will then take account not only of the wrong done but of the personality of the slave (persona servi) to whom it has been done, and will allow or deny an action accordingly.99 Despite the fact that slaves, like others under disability, needed someone else to sue on their behalf, this legal remedy views the slave as a person endowed with dignity. In another context Ulpian says that slaves have the right to injure themselves. ‘Even a slave has by nature the right to do violence to himself.’100 Slaves are not bound to keep themselves in good condition merely in the owner’s interest. Human dignity gives them the right to disable themselves from leading a life that appears intolerable. So the owner cannot deduct anything from a slave’s private fund (peculium) on the ground that the slave has purposely injured him- or herself. Moreover slave couples living together should not be split up, so that a buyer who finds that one of the couple bought is diseased will have to return both.101 96

97 D 47.10.9.4 (Ulp 57 ed.) D 47.10.15.34, 44, 48 (Ulp. 57 ed.) D 47.10.15.35 (Ulp. 57 ed: si vero non ad suggilationem domini id fecit, ipsi servo facta iniuria inulta a praetore relinqui non debuit, maxime si verberibus vel quaestione fieret: hanc enim et servum sentire palam est) cf. 47.10.15.43 99 D 47.10.15.44 (Ulp. 57 ed: Itaque praetor non ex omni causa iniuriarum iudicium servi nomine promittit: nam et si leviter percussus sit vel maledictum ei leviter, non dabit actionem: at si infamatus sit vel facto aliquo vel carmine scripto, puto causae cognitionem praetoris porrigendam et ad servi qualitatem: etenim multum interest, qualis servus sit, bonae frugi ordinarius dispenator, an vero vulgaris vel mediastinus an qualisqualis: et quid si compeditus vel malae notus vel notae extremae? Habebit igitur praetor rationem tam iniuriae quae admissa dicitur quam personae servi, in quem admissa dicitur, et sic aut permittet aut denegabit actionem). ‘These provisions on wrongs done to the slave cannot be explained away as redressing damage to the owner’s property, for which a different remedy was available, or as defending his reputation. They are available when the wrong to the slave is not an insult to the owner’ (non ad suggilationem domini id fecit: D 47.10.15.35). 100 D 15.1.9.7 (Ulp. 29 ed: licet enim etiam servis naturaliter in suum corpus saevire) 101 D 21.1.35 (1 ed. cur.) cf. 33.7.12.33 (20 Sab.). Daube (1973) went to the length of postulating a post-Constantinian edition of Ulpian to explain away this text. But, though the text reads ungrammatically because the compilers have run together several cases, the discussion is entirely in line with the Stoic view that slaves are members of the family 98

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It is nature that gives the slave this right, and nature is specially relevant here because debts between owner and slave are a matter of natural, not civil law.102 The natural freedom and equality of mankind is, we have seen, a theme of certain Stoic philosophers.103 What is of interest here is that among lawyers only Ulpian and three of his lesser contemporaries take account of this theory in order to justify certain legal rules and principles. Ulpian says that slavery and the freeing of slaves depend on common customary law (ius gentium) because by the law of nature all are born free. The grant of freedom was originally unknown because slavery was unknown.104 Florentinus, whose exact dates are unknown105 but who is more or less contemporary with Ulpian since he copies a text of Paul,106 says that slavery is an institution by which we are subjected to the dominion of others contrary to nature.107 Marcianus, a pupil of Ulpian writing after Caracalla’s death,108 says that a freed slave can be restored on the emperor’s initiative to the status of being freeborn. That means, says Marcianus, the state in which all men were originally born, not that in which the person concerned was born, since he or she was born a slave.109 These three texts come from works addressed to students. Some may dismiss them as ornamental. That cannot be said of a text where Ulpian says that, though in civil law a slave neither owes nor is owed money, slaveowners can sue third persons for debts due to their slaves, and can be sued by a third person for debts due from their slaves up to the amount of the slave’s private fund (peculium). For though in civil law slaves are considered not to exist, it is different in natural law. So far as natural law is concerned, all men are equal.110 This is said in passing, as self-evident. In dealing with a similar problem Tryphoninus, who was alive in 213, hence at the time of the Antonine constitution, appeals to natural freedom. A slaveowner ‘owes’ his slave money and, after the slave is freed, pays the freed slave because he wrongly thinks he is legally bound (i.e. by civil law) to do so. Can the ex-owner recover the payment? No, because the debt he acknowledged was owing by nature. Since freedom, says Tryphoninus, forms part of the law of nature and domination 102

D 28.1.20.7 (Ulp. 1 Sab.) Above n.25–30. The natural freedom of all to worship as they think best is asserted by Tertullian, Ad Scapulam 2.1.2, written in the same year as the Antonine constitution: humani iuris et naturalis potestatis est unicuique quod putaverit colere. The idea was abandoned by Theodosius I 104 D 1.1.4 (Ulp. 1 inst: cum iure naturali omnes liberi nascerentur nec esset nota manumissio, cum servitus esset incognita) 105 Probably early third century: Liebs (1976) 348f.; (1997) §428.3; Querzoli (1996) 33f.; Marotta (2000) 156185 106 D 38.2.28 (Flor. 10 inst.) copying D 48.20.7.1 (Paul 1 port. lib. damn.) 107 108 D 1.5.4.1 (Flor. 9 inst.) Liebs (1997) §428.1; Honoré (1982) 216; (1994), 94–5 109 D 40.11.2 (Marcian. 1 inst.) 110 D 50.17.32 (Ulp. 43 Sab: quod attinet ad ius civile, servi pro nullis habentur: non tamen et iure naturali, quia, quod ad ius naturale attinet, omnes homines aequales sunt) cf. 28.1.20.7 (1 Sab: slaves cannot witness wills because they do not wholly share in the civil law) 103


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(i.e. slavery) was introduced by custom, when it is a matter of recovering a payment one goes by nature in deciding what was owing.111 These five texts belong to the same period and come from lawyers whose origin was eastern or who were working in the east.112 They were open to philosophical influences but were not philosophers. If some lawyers of the Severan age with an eastern orientation (not for example Papinian, whose background is African) adopt the theory of human equality to explain and develop certain legal rules it is because they reflect and at the same time wish to propagate this idea. They want to draw practical consequences from it rather than to treat it as mere theory. There were undoubtedly those who, while in theory accepting the idea of human equality embodied in the Antonine constitution, in practice objected to the dilution of the citizen body and the consequent devaluation of the right of citizenship. Ulpian will have condemned their sham philosophy. A remark of Galen may be in point. He praises Septimius Severus and Caracalla for not wanting to keep for themselves or for a restricted circle a new and effective medical remedy,113 as happened in the time of Marcus, but for putting it at the disposition of all. This may be mere flattery or may genuinely reflect the cosmopolitan tendencies of the dynasty. In theory these cosmopolitan tendencies extended to the use of languages other than Latin and Greek, and certainly the use of Greek was now more widely accepted. For example, should a notice withdrawing a business agent’s power to contract be in Greek or Latin? It depends on the area.114 As to other languages, whether many people really made trusts and entered into stipulations in Punic, Gallic, or ‘Assyrian’ may be doubted. That they had the right to do so115 was a recognition that they were citizens of a cosmopolis. There was a social as well as an ethnic aspect to Ulpian’s cosmopolitanism. It is the provincial governor’s duty to protect the weak in his province.116 Small people, such as fishermen and bird-catchers, attract his interest. If someone stops me fishing in the sea many lawyers think I can bring an action against him, as I can against someone who stops me using the public baths or sitting in the theatre. What is the position if a landowner tries to stop me fishing in front of his house? The sea and the seashore are common to all, like the air, and many rescripts lay down that no one can be prevented from fishing or catching birds, provided they do not enter on another’s land to do so. Nevertheless landowners do in fact prevent people fishing in front of their land. The fisherman can then sue them by the action for wrongs.117 A person 111 D 12.6.64 (Tryph. 7 disp: ut enim libertas naturali iure continetur et dominatio ex gentium iure introducta est, ita debiti vel non debiti ratio in condictione naturaliter intellegenda est) 112 113 HLL 4 § 424, 428.3, 428.1, 417.3 The Theriac (above n.4) 114 D 14.3.11.3 (28 ed: litteris utrum Graecis an Latinis?) 115 116 D 32.11 pr (Ulp. 2 fid.); 45.1.1.6 (48 Sab.) D 1.16.9.5 (Ulp. 2 off. proc.) 117 D 47.10.13.7 (Ulp. 57 ed.)

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to whom the emperor has granted the right to draw water from a public source may in certain cases sue one who prevents him exercising that right, again by the action for wrongs.118 The action for wrongs is therefore the legal technique for vindicating human rights so far as they were recognized in Ulpian’s time. After the extension of citizenship by the Antonine constitution this action will have been the remedy available to anyone who was denied the new citizen rights such as the right to hold public office. What potential readership was Ulpian addressing? There are two interesting clues to this. One consists in his use of Greek in a corpus of work basically written in Latin, the language of Roman law. There are a number of sound reasons for a legal author writing in Latin to include on occasion a passage in Greek. Some presuppose that an excuse is needed for departing from the Latin norm. One example is when the law to be discussed, for example, a rescript, was issued in Greek119 or when the will or other document to be interpreted is in Greek.120 Another is when the author wants to embellish his text by citing a passage from a Greek author such as Homer,121 Plato,122 Xenophon,123 Demosthenes,124 Theophrastus,125 or Chrysippus.126 A third is when he wishes to inform the reader of the Greek equivalent of a Latin term,127 or the formula to use in Greek for some purpose, for example when formally acknowledging the payment of a debt.128 A fourth is when the author purports to derive a Latin term from a Greek root.129 None of these involve the writer in identifying himself with Greek-speaking people or adopting their culture. On the contrary, to say ‘the Greeks call this a so-andso’ implies a certain distance. Ulpian does sometimes tell us what the Greek term is for so-and-so,130 but a more typical use of the language is for him to insert a Greek word or two in a Latin sentence as being more expressive or conveying nuances that the Latin equivalent would not convey. This is a form of codeswitching.131 The contrast can be illustrated from the phrase 'ν πλ(τει which means ‘in a broad sense’. Paul says ‘this (proof of the date of building) is to be taken, as the Greek expression goes, 'ν πλ(τει.’132 Ulpian in contrast says ‘this (time when a payment is ratified) is to be taken 'ν πλ(τει,’133 or ‘this (value of a slave at time of 118

119 e.g. D 8.3.16 (Call. 3 cogn.); 5.1.37 (5 cogn.) D 43.20.1.43 (Ulp. 70 ed.) e.g. D 34.1.6 (Scae. 18 dig.); 40.4.60 (24 dig.); 40.5.46.3 (Ulp. 6 disp) 121 122 D 18.1.1.1 (Paul 33 ed.) D 50.11.2 (Call. 3 cogn.) 123 D 47.22.4 (Gai. 4 XII tab.) 124 D 48.19.16.6 (Saturninus 1 poen. pag.) 125 D 1.3.3 (Pomp. 25 Sab.); 5.4.3 (Paul 17 Plaut.) 126 D 1.3.2. (Marci. 1 inst.) 127 e.g. D 19.2.25.6 (Gai. 10 ed. prov.) 128 e.g. D 46.4.8.4 (Ulp. 48 Sab.) 129 e.g. D 50.16.233.2 (Gai. 1 xii tab.) 130 D 47.9.3.6 (56 ed.); 43.8.2.22 (68 ed.); 23.3.9.3 (31 Sab.); 47.2.3 pr; 50.16.177; 46.1.8 pr (47 Sab.); 50.14.3 (8 omn. trib.); 12.1.10.4 (1 ed. cur) 131 Adams (forthcoming) ch.3; Romaine (1995) 120–80. 132 D 22.3.28 (Labeo 7 pith. Paul. epit: et hoc ita, quod Graece dici solet, 'ν πλ(τει) 133 D 46.8.12.2 (80 ed: hoc tamen 'ν πλ(τει accipiendum et cum quodam spatio temporis nec minimo nec maximo) 120


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death) will have to be looked at 'ν πλ(τει.’.134 To use Greek without apology implies that the reader is bilingual and is attuned to the nuances of Greek. Sometimes the Greek phrase is one current among educated Latin-speaking people, or is one for which there is no obvious Latin equivalent. At others, words such as %σα)ς (‘unclearly’) are chosen because, though there is a Latin equivalent (obscure), the Greek is more vivid and makes a better contrast, in the context of a slave’s ability to speak properly, with %σµως (‘unintelligibly’). In general the author feels free to address a readership that is in part Greek or has learnt Greek. Of the 48 instances that I have come across of this direct use of Greek in the legal literature 38 come from Ulpian135 and three from his pupil Marcianus.136 Of the earlier writers there is one text of the Augustan Labeo,137 one of Celsus,138 and three of Julian139 from the time of Hadrian or a little later, and perhaps one each of Ulpian’s younger contemporaries Papinian140 and Paul.141 Many of the code-switches are reminiscent of 134 D 13.3.3 (27 ed: si vero desierit esse in rebus humanis, mortis temporis: sed 'ν πλ(τει secundum Celsum erit spectandum) 135 D 1.3.30 (4 ed: quod distat *ητ ν %π διανοας, hoc distat fraus ab eo, quod contra legem fit); 2.14.7.2 (4 ed: hoc συν(λλαγµα et hic nasci civilem obligationem . . . contractum, quod Aristo συν(λλαγµα dicit); 42.4.2.4 (5 ed: haec verba παρατατικ)ς scripta sunt); 4.8.29 (13 ed: nam τ"# δυν(µει a reo petit); 4.9.1.3 (14 ed: ut ναυ$λακες et diaetarii. . .quod χειρµβολον appellant); 10.2.20.7 (19 ed: unum ex filiis %γωνοθεσαν suscepturum); 11.1.11.5 (22 ed: non respondit, id est πρ ς -πος); 12.2.13.2 (26 ed: et quasi µονοµερς condictio ei dari debet); 13.3.3 (27 ed: sed 'ν πλ(τει secundum Celsum erit spectandum); 14.1.1.12 (28 ed: quaedam naves onerariae, quaedam (ut ipsi dicunt) 'πιβατηγο sunt); 27.9.3.4 (35 ed: Si ius 'µυτευτικ ν vel 'µβατευτικ ν habeat pupillus); 47.2.52.20 (37 ed: τ#ς γον#ς dumtaxat χ(ριν); 28.1.22.5 (39 ed: dum tamen habeat χαρακτ#ρα); 39.3.1.9 (53 ed: sulcos aquarios qui .λικες appellantur); 47.10.5.10 (56 ed: is qui 'πιγρ(µµατα produxerit); 5.1.19.2 (60 ed: quasi ab eo qui παραπλε/ emit); 42.5.15 pr (62 ed: %ναγραν facere); 43.12.1.2 (68 ed: perenne est, quod semper fluat, %ναος torrens 0 χειµ(ρρους); 43.17.3.7 (69 ed: non ab eo qui κρυπτς possideret, sed ab eo cuius aedes super κρυπτς essent); 46.8.12.2 (80 ed: hoc autem 'ν πλ(τει accipiendum); 7.8.10.1 (17 Sab: sed si χρ#σις sit relicta); 32.70 pr (22 Sab: quod tinctum non est sed α&τους); 30.53.5 (non ut carnem praestet vel cetera λεψανα); 32.55.5 (25 Sab: cum ξ$λον hoc et naves ξυληγς appellant, quae haec %π τ)ν 3λ)ν deducunt); 18.1.9.2 (28 Sab: quia eadem prope ο&σα est); 8.2.17.2 (29 Sab: si forte κατ %νταν(κλασιν lumen devolvatur); 47.2.43.9 (41 Sab: quid ergo, si ε4ρετρα quae dicunt petat?); 21.1.9 (44 Sab: nec qui %σα)ς loquitur: plane qui %σµως loquitur, hic utique morbosus est); 45.3.13 (48 Sab: hic τ σ(ζον corrumpit stipulationem et solutionem); 47.11.9 (9 off. proc: plerique inimicorum solent praedium σκοπελζειν); 48.19.9.8 (9 off. proc: quibus sententia praecipitur δηµοσων %πχεσθαι); 32.1.2 (1 fid: nec testamenti ius faciendi habent, cum sint %π λιδες); 36.1.17 pr (4 fid: plerique 6ποκοριστικ)ς patrimonium suum peculium dicunt); 21.1.1.7 (puta θσις febris; aediles bis κατ το7 α&το7 idem dixisse); 21.1.1.9 (veluti contingeret ρενητικ8)); 21.1.10.4 (sed et νυκτ%λωπα morbosum esse constat); 21.1.14.8 (1 ed. aed. cur: si quis %ντι%δας habeat . . . et si %ντι%δες hae sunt quas existimo . . . qui %ντι%δας habet vitiosus est) 136 D 20.1.11.1 (1 form. hypoth: Si %ντχρησις facta sit); 48.3.6.1 (2 iud. pub: et ideo cum quis %ν(κρισιν faceret); 48.19.17.1 (1 inst: quidam %π λιδες sunt, hoc est sine civitate) 137 D 28.7.20 pr (Iav. 2 post Lab: %δ$νατος condicio) 138 D 33.10.7.2 (Cels. 19 dig: sono quodam κα τ"# %ν(ρθρ8ω ων"# dicere) 139 D 38.7.1 (Iul. 27 dig: haec verba παρατατικ)ς accipiuntur); 38.16.8 pr (59 dig: per abusionem vel potius %ναορικ)ς accidit); 30.104.1 (1 Urs. Ferox: %δ$νατος condicio). Julian seems to have known the philosopher Euaretus (ILS 7776) and to have spent time at the temple of Asclepius at Pergamum about 145–7 with Aelius Aristides (or. 48.9: Behr, 1986, 2) 140 D 48.5.6.1 (Pap. 1 adult: lex stuprum et adulterium promiscue et καταχρηστικ9τερον appellat) 141 D 36.1.83 (Paul 2 decr: cum solus Foebus egisset µονοµερ)ς)

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Cicero’s practice, especially in his letters, or may be drawn from a pool of stock terms used in rhetorical instruction.142 This sudden shift after 212 in the way in which certain legal writers use Greek points to a change in the intended readership of legal works. It counts as part of the cultural change of which the Antonine constitution is the most prominent legal expression. It does not imply that Ulpian sheds his Roman identity. He does not. The Greeks call public roads βασιλικ(ς, our people (nostri) call them praetorias, others consulares vias.143 He wishes, however, to emphasize his dual identity, Tyrian and Roman.144 In this he is, to judge from surviving legal texts, unique, though many lawyers were from the provinces and retained links with their origins, as inscriptions prove.145 The other reason for Ulpian’s switches into Greek is in my view his desire, as an act of solidarity, to accommodate the greatly increased body of Greek-speaking citizens.146 He wants openly to speak to them as participants in the cosmopolitan legal system. The second clue to the intended readership concerns Ulpian’s effort to persuade the reader of the justice of the items in the praetor’s edict. Lawyers of the middle and later principate appealed to values to justify their decisions more freely than their predecessors,147 and this was pre-eminently true of Ulpian. He was conscious of the fact that the new citizens needed to be persuaded that in being made subject to Roman law they were not being treated arbitrarily. Readers of Edict cannot fail to notice the pains he takes to show that the edict is suited not only to the traditional Roman ways but is useful, equitable, and adapted to the needs of all. Often he points to the utility148 or necessity149 of the provision in the praetor’s edict, a utility that can be either public or private150 or both.151 It might consist, for instance, in the need to protect travellers by sea or land who are forced to entrust goods to a ship’s captain or innkeeper,152 or in the interest the holder of a right of way over neighbouring land has in seeing that the road is kept in good repair.153 Other practical aims are mentioned: the difficulty of proof,154 the need to protect minors, to uphold the family, and to provide incentives for burying corpses

142

143 Adams (forthcoming) ch.3 D 43.8.2.22 (68 ed.) On code-switching see Myers-Scotton (1993, 1998) and on its relation to identity Adams (forthcoming) ch.3 145 146 147 Liebs (2001) xi–xv Adams (forthcoming) ch.3 Wieacker (1977) 29–38 148 D 3.5.1 (10 ed.); 4.1.1 (11 ed.); 4.9.1.1 (14 ed.); 9.3.1.1 (23 ed.); 14.1.1 pr (28 ed.); 14.4.1 pr (29 ed.); 47.6.1 pr (38 ed.); 47.9.11 (56 ed.); 43.15.1.1 (68 ed.); 43.18.1.1; 43.19.3.12; 43.21.1.1; 43.22.1.7 (70 ed.) 149 D 10.4.1 (24 ed.); 16.3.1.2, 4 (30 ed.); 26.10.1 pr (35 ed.); 47.9.1.1 (56 ed.); 42.8.1.1 (66 ed.); 43.20.1.39 (70 ed.) 150 D 43.8.2.1 (68 ed.); 43.9.1.1 (69 ed.); 1.14.3 (38 Sab.); Steinwenter (1939) 84–102; Longo (1972) 7–71; Marotta (2000) 93–6 151 D 47.8.2.1 (56 ed.); Pliny the Younger, Panegyric 67.8; Marotta (2000) 147–63 152 153 154 D 4.9.1.1 (14 ed.) D 43.19.2.12 (70 ed.) D 11.1.2 (22 ed.) 144


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and for guardians to spend their own money on behalf of their wards.155 Respect for magistrates156 and the need to see that their orders are enforced157 are also stressed. Moreover new legislation must possess ‘clear utility’.158 A value that Ulpian stresses at least as much as utility is fairness or equity (aequitas),159 sometimes natural equity.160 Equity is related in his thinking to equality, not directly, but in the sense that it requires the interests of each person to be taken into account and given equal weight. Equity requires that the parties should be on a level, so that for example the right to sue goes with liability to be sued,161 and benefit and liability go hand in hand.162 Those who are weak or have been deceived must be protected against the strong and the deceivers. In this connection Ulpian often denounces craftiness (calliditas) and stresses provisions in the edict directed against the crafty,163 or those who exploit others,164 or which serve to protect the ill-informed.165 The special feature of natural equity is that it operates even when the civil law does not cater for the problem. For example, it takes account of agreements that are not enforceable by civil law,166 protects persons who have technically come of age but are immature,167 and prevents slaves due to be freed from taking advantage of legal technicalities.168 Natural equity is not fundamentally different from civil equity, but the equitable solution to a problem may or may not already have been embodied in the civil law. Some justifications offered are therefore practical, and consist in the good consequences, represented by utility, of having certain provisions in the praetor’s edict. Others are moral, and consist in giving due weight to the interests of all, regarded as of equal worth, and represented by the notion of equity. Whether Ulpian has provided a good justification for a given provision of the edict is sometimes questionable. What is not in question is his determination to persuade the citizens of the new cosmopolitan society created by the Antonine constitution that the laws governing their lives are not arbitrary. There are good reasons for these laws, reasons that apply universally. 155 D 11.7.12.3 (25 ed.); 27.4.1 pr (36 ed.); 28.8.7.1 (60 ed.); 38.6.1.5 (46 ed.) cf. 43.8.2.10 (64 ed: public nuisance) 156 D 3.1.1 pr (6 ed.) 157 D 43.4.1.1 (62 ed.) 158 D 1.4.2 (4 fid: evidens utilitas) 159 D 2.2.1 pr (3 ed.); 2.13.1 pr ; 2.13.4.1; 27.6.1 pr (12 ed.); 14.3.1 (28 ed.); 37.6.1 pr; 37.8.1.1 (40 ed.); 37.11.2 pr (41 ed.); 37.12.1 pr (45 ed.); 43.3.1.1, 2 (62 ed.); 43.16.1.1 (69 ed.) 160 D 2.14.1 pr (4 ed.); 4.4.4 pr (11 ed.); 13.5.1 pr (27 ed.); 47.4.1.1 (38 ed.); 37.5.1 pr (40 ed.); 43.26.2.2 (71 ed.) 161 D 3.4.7 pr (10 ed.) 162 D 14.3.1 (28 ed.) 163 D 4.1.1; 4.3.1 pr (11 ed.); 29.4.1 pr (50 ed.); 40.12.14 (55 ed.); 43.24.1.1 (71 ed.); 21.1.1.2 (1 ed. cur.) 164 D 2.7.1 pr (5 ed.); 38.2.1 pr (42 ed: former owners of freed slaves); 39.4 12 pr (38 ed: taxgatherers’ staff); 38.1.2 pr (38 ed: patrons of freed slaves) 165 D 11.6.1 pr (24 ed.) 166 D 2.14.1 pr (4 ed.); 1.5.1 pr (27 ed.) 167 D 4.4.4 pr (11 ed.) 168 D 47.4.1.1 (38 ed.)

4 The Empirical Method T H E last chapter was about the theoretical basis of Ulpian’s work. This one is about the method he adopted in solving legal problems.1 His method was empirical in two ways that mark him off to some extent from other Roman lawyers. But only to some extent. Whereas his oral style and egalitarian philosophy contrast rather sharply with those of other leading Roman lawyers, his method of argument differs from some of theirs only in degree. One way in which his method is empirical is that he likes to give and argue from examples, to proceed by trial and error. It emerged from the study of his style in chapter 2 that over 90 per cent of the uses of the phrase ‘for instance’ (ut puta) in Digest texts are his.2 He is keen on arguing from examples: ‘it makes little difference if . . . ( parvi refert)’3 and of proceeding from one example to another ‘but what if . . .’ (quid tamen si?)4 or ‘unless perhaps . . .’ (nisi forte).5 To give and argue from examples is even more a feature of the Anglo-American common law, both in its origin and in its modern form of reliance on precedent. It involves arguing from analogy or lack of analogy.6 It involves refusing to commit oneself to a broad principle until one can see how it will apply to a particular set of facts. A second way in which Ulpian’s method is empirical is in his practice of balancing a number of considerations before reaching a conclusion: it is pluralistic and shies away from commitment to a single overriding principle. The judge, magistrate, or legal consultant, accepting that law serves more than one value, must see to what conclusions the different values would lead before making a choice between them, if that should prove necessary. The considerations that mainly concern Ulpian are (i) the wording of laws, contracts, wills, and other documents (verba); (ii) the purpose or intention that lies behind them (mens); (iii) public policy in the guise of utility (utilitas); and (iv) the moral acceptability of the conclusion to which these considerations point. In particular, would it be equitable (aequum)? This last value prefigures a feature of Anglo-American law, namely the use of equity to outflank morally unacceptable features of the strict common law. But in using it 1 On various aspects of this see Mantello (1995) (nominalism and linguistic theory); Falcone (1997), Tondo (1998) 2 3 Ch.2 n.433 (298 out of 315) Ch.2 n.17 (28 out of 30) 4 5 Ch.2 n.151 (43 out of 44) Ch.2 n.21–2, 24, 153 (91 out of 117) 6 Bretone (1982) 311

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Ulpian, like the best Anglo-American lawyers, pursues moderation. No consideration is consistently given overriding weight. Sometimes the wording or purpose of a law or the demands of utility rule out the morally best solution. At others the judge or magistrate has enough leeway to do justice in the individual case. But the honest lawyer may be led to express even his considered view in a tentative way, as Ulpian often does, ‘and I should think’ (et putem), ‘and I rather think’ (et magis puto), ‘and the better view is’ (et magis est). The contrast with other Roman lawyers in this regard is one of degree, not kind,7 but it is a feature of his writing. Of course the parallels between Ulpian’s method and that of AngloAmerican lawyers cannot be pressed very far given the radically different society in which Roman law operated. But neither are these parallels to be underestimated. Some Roman lawyers, like some modern lawyers, approached legal problems empirically. Ulpian was one of these. This did not preclude his working within the philosophical framework, explained in the last chapter, constituted by respect for human equality, liberty, and dignity. But it governed his approach to the detailed application of these principles. This chapter gives some illustrations of his method. It is Ulpian’s regular practice to give examples. There is nothing special about giving examples, particularly when teaching, but the practice is not shared by other Roman lawyers, at least not to the same extent. The point of giving examples is to make the issue to be discussed more vivid and concrete. Here are some examples of Ulpian’s examples. Some crimes are confined to a particular province, for instance σκοπελισµς in Arabia, which consists in putting stones on one’s neighbour’s land to indicate that anyone who cultivates there will suffer an unpleasant death.8 It is a legal wrong to insult another person. But if for example someone declines to agree to an honour for another person, for instance putting up a statue, is this a legal wrong?9 Sometimes the praetor allows a suit for an uncertain part of an inheritance. For example the son of a deceased brother claims and there are also pregnant wives of deceased brothers who may have children entitled to a share.10 Sometimes a slave in whom there is a life interest acquires something and it is doubtful whether he acquires it for the owner or the usufructuary. For example, someone has bought and taken delivery of the slave but not yet paid the price. Creditors can obtain a separation of their debtors’ estate in certain cases: for example, someone has a debtor Seius, and Seius dies leaving an insolvent heir Titius.11 The interdict on ejection by force applies only to those ejected from the soil (solum), for example from land or a building on the land.12 We often keep a usufruct in slaves though making no use of their services, for example because the slave is ill or an infant or too old.13 7 10 13

Horak (1976) D 5.4.1.5 (10 ed.) D 7.1.12.3 (17 Sab)

8

D 47.11.9 (Ulp. 9 off. proc.) 11 D 42.6.1.1 (64 ed.)

9 12

D 47.10.13.4 (Ulp. 57 ed.) D 43.16.1.2 (69 ed.)

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These examples merely point to a wish on the author’s part to make plain what it is he is talking about. Once we have an example or a range of examples the next question is how the law should handle them. As mentioned, the second way in which Ulpian’s method is empirical is that he seeks a balance between various considerations before reaching an opinion on a point of law. Pernice complained that he came to conclusions not on strictly legal grounds but for reasons of convenience or policy. There is substance in Pernice’s complaint, and it is to Ulpian’s credit that there is. He wants to find equitable solutions to legal problems and to fit the law to the society in which it operates, when this can be done with due regard to the constraints set by the system as a whole. In finding the solution to legal problems some lawyers give precedence to following settled rules, others to adherence to principle, others again to the search for a morally acceptable solution in the particular case. Ulpian inclines more to the last category, but always has regard to binding texts and to the opinions of other lawyers of standing, whether he agrees with them or not. His discussions often appeal to the interpretation of texts of authority, to utility, and/or to equity. The interpretation of a text involves two elements, the wording of a law or private document (verba) and its purpose or the intention behind it (mens, sententia). A leading text, near the beginning of On the Edict, says that ‘according to the laws’ means according to both the purpose and the wording of the laws.14 Ulpian does not say that, if the two clash, the purpose must prevail over the wording. In the process of interpretation both must be taken into account and one has sometimes to choose between them. The same is true of agreements. Whether an agreement not to sue means an agreement not to sue a particular person or not to sue at all depends both on the words used and the intention of the parties.15 In deciding whether a trust to free a slave has been created one must pay attention not only to the wording of the will but to the intention of the testator.16 Here are some more examples. Papinian says that a condition on which a gift depends, say a gift of freedom, cannot be ‘taken back’ (adimi) because it was not given in the first place. Conditions are ‘attached’ to gifts (adscriptae), not ‘given’. Ulpian comments that it is better to give effect to the intention of the person who purports to ‘take back’ the condition than to keep to the strict meaning of the words used. So someone who has attached a condition to a gift can take it back,17 whereupon the gift, as he or she intended, becomes unconditional. Again, a rescript required a surviving mother to petition for 14 D 50.16.6.1 (3 ed: verbum ‘ex legibus’ sic accipiendum est: tam ex legum sententia quam ex verbis) 15 D 2.14.7.8 (4 ed: non minus ex verbis quam ex mente convenientium aestimandum est) 16 D 40.5.24.8 (5 fid.) 17 D 34.4.3.9 (24 Sab: sed melius est sensum quam verba amplecti et condicione sicut adscribi, ita et adimi posse)


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guardians to be appointed to her children under age, on pain of losing her right of intestate succession to the children. Ulpian, in a passage that throws light on his general approach to interpretation, holds that a mother must in a proper case apply for a curator rather than a guardian to be appointed, though the rescript does not mention curators.18 The same rescript required her to apply for the appointment of guardians a second time if the first lot of guardians were excused from office or rejected. Ulpian holds that though death is not specifically mentioned, she must also reapply if the first appointed guardians die.19 These interpretations are meant to give effect to the purpose of the rescript, which is to make sure that in return for the right of intestate succession a mother attends to the interests of her children under age. In general the purpose of a law (utilitas) can justify an extensive interpretation. The judge can properly interpret a text in a way that favours that purpose.20 It does not follow that in Ulpian’s view the wording of a text can be overridden merely because the law it lays down seems unreasonable. If a slaveowner bequeaths a slave his freedom along with the slave’s private fund (peculium) any debt of the slave to the owner must be deducted from the fund before it is handed over. It follows, according to Ulpian, that what the owner owes the slave should be added to the slave’s fund. There should be a balance of benefit and burden. But this is contrary to a rescript of Severus and Caracalla, which Ulpian interprets narrowly, but to which he defers.21 Again, a wife who divorced was forbidden to free any of her slaves within sixty days before the divorce. This was because she might free a slave to avoid his being tortured, and so avoid having him disclose her adultery. The prohibition applied even to slaves working in the fields or in another province, which is very hard, says Ulpian (since they could not know what was happening in the house), but that is the way the law is worded.22 And where the purpose of a provision is not clear it may be better to stick closely to the wording of a law. Someone who contracted with a ship’s captain could sue the entrepreneur, the shipper, on the contract for the full amount owing provided that the captain was acting as such with the shipper’s consent. If the shipper was a slave or son in power, his owner or father could be sued. But for the owner or father to be liable in full, rather than up to a fixed limit, was it enough that the owner or father knew that his slave or son was running a shipping business, or must he have agreed to their running it? Despite the public importance attaching to shipping, it is better in case of doubt, says Ulpian, to stick to the wording of the edict and require actual consent.23 18

D 38.17.2.29–31 (13 Sab.) D 38.17.2.40 (13 Sab: puto, licet verba deficiunt, sententiam constitutionis locum habere) 20 D 1.3.13 (1 aed. cur: quotiens lege . . . introductum est, bona occasio est cetera, quae tendunt ad eandem utilitatem, vel interpretatione vel certe iurisdictione suppleri) 21 D 33.8.6.4 (25 Sab.) 22 D 40.9.12.1 (4 adult: sed ita lex scripta est) 23 D 14.1.1.20 (28 ed: in re igitur dubia melius est verbis edicti servire) 19

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So much for interpretation. Utility and equity enter into interpretation since they may be relevant to the purpose of a statute or private document. But utility and equity24 can be important independently. A good judge, before deciding, should also take account of both. Utility,25 giving effect to both public and private interests, was a main aim of both public and private law,26 an aim Ulpian shared with his contemporaries Papinian and Paul and the emperors of the age. The table that follows shows that references to utility (utilis, utilitas) and its opposite (inutilis, inutilitas) are commoner under the Severans than earlier. Authors Lawyers up to Julian Pomponius to Scaevola The Severans

% of Digest 9.1 17.8 72.4

Mentions 11 27 180

Per 1% of Digest 1.2 1.5 2.5

Within the last group we can separate the figures for Papinian, Paul, and Ulpian respectively. Papinian Paul Ulpian

5.7 16.7 41.6

20 42 107

3.5 2.5 2.6

Among the lawyers of the age Papinian seems to have had the strongest attachment to utility as a guide. Ulpian follows suit, and fills in details. Equity is particularly related, we saw, to equality,27 but it is used by Ulpian in a broad enough way to cover other moral considerations. Sometimes the nature of the action is such as to incorporate equitable considerations. Sometimes the just solution can be arrived at by resort to a supplementary action on the facts (actio in factum). Sometimes there is a plain stand-off between law and equity. Here are some examples of the first sort. The law gave an action against the estate of a deceased person for the recovery of funeral expenses incurred by someone other than the heir, provided the claimant had not paid for the funeral merely as an act of piety. What of the case where the heir has forbidden the claimant to arrange and pay for the funeral? The claimant nevertheless does so. Ulpian puts various possibilities, for example that the heir forbids the testator’s son to arrange for the funeral. You might argue in that case that if the son paid for the funeral he did so out of family piety, not with a view to reimbursement. Or suppose that the testator had asked the person who arranged and paid for the funeral to do so. The testator’s wish would not necessarily be conclusive, because the person requested might arrange for a funeral that was extravagant in relation to the testator’s resources. Ulpian 24 26 27

25 Millar (1986) 275 D 13.4.4.1 (17 ed.), 11.7.14.13 (25 ed.) D 1.1.1.2 (Ulp. 1 inst: sunt enim quaedam publice utilia, quaedam privatim) Ch.3 n.159–68


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sums up his view by saying that the just judge should not simply act on the analogy of cases where one person intervenes in another’s affairs, but act in a broadly equitable way, as the nature of the action allows him to.28 The passage in which he discusses this action for funeral expenses gives a good idea of how, in his view, considerations of equity depend on the facts of the case. Again, the praetor’s edict provided that an action could be brought against a debtor in one place, say Alexandria, for a debt due in another, say Ephesus. On occasion, says Ulpian, the right course in trying such an action is to decide that the debtor is not liable to pay at the place where he is sued provided he gives security for payment at the place agreed. For instance, the debtor might have money readily available on deposit in Ephesus. The action for a debt due in a particular place had a discretionary element, and the judge trying it should keep his eye on the equity of the matter.29 Sometimes the right course from the point of view of equity is to resort to a supplementary action (actio in factum). Of the Digest texts that give a supplementary action Ulpian has 71 out of 118, which comes to three-fifths, a disproportionately great but not overwhelming use of the notion.30 In one text Ulpian says that if a co-heir incurs liability through mistakenly selling a slave belonging to the deceased who was given his freedom in the will, it is equitable to give him a supplementary action against his co-heir to recoup a share of the loss. In this connection he remarks that when an action or defence is not strictly available a supplementary action or defence can be given (i.e. if it would be equitable to do so).31 Fruits from your tree fall on my land. I let my cattle eat them. Aristo, who discusses three possible actions, thinks that none of them will, for technical reasons, fit the facts. Well then, says Ulpian, a supplementary action must be made available.32 One man pushes another, who in turn pushes a slave and thereby kills him. Can the first man be sued for wrongfully killing the slave? Proculus said not. The first man did not kill the slave. The second was not at fault. In that case, says Ulpian, a supplementary action must be given against the first man.33 A testator makes a slave heir if no child is born to him. When he dies his wife is said to be pregnant. In the case of a free person appointed heir there was a procedure under the edict for ensuring that the wife really was pregnant and that a spurious child was not smuggled in as the testator’s. Ulpian, following an opinion of Aristo, says that the slave, though not strictly within the terms of the edict, has an interest in the matter, which is also a public interest in the authenticity of family succession. He should therefore be allowed to petition for the procedure to be 28 D 11.7.14.13 (Ulp. 25 ed: et generaliter puto iudicem iustum non meram negotiorum gestorum actionem imitari, sed solutius aequitatem sequi, cum hoc ei et natura actionis indulget) 29 D 13.4.4.1 (Ulp. 17 ed: in summa aequitatem quoque ante oculos habere debet iudex, qui huic actioni addictus est) 30 31 VIR 2.786–7. D 10.2.49; 19.5.21 (2 disp) 32 D 19.5.14.3 (Ulp. 41 Sab: erit agendum points to the genuineness of the phrase) 33 D 9.2.7.3 (Ulp. 18 ed: again, actio erit danda points to genuineness)

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set in motion. Suppose, again, I give you some money intending a gift, but you think it is a loan. Can I recover the amount? Julian held that there was no gift and possibly no loan either. Ulpian agrees that there is no contract, and in principle an action for recovery (condictio) lies. But you have spent the money, as I intended you should, and recovery would be unjust. Hence you are entitled, says Ulpian, if I bring an action to recover the money, to plead my dishonesty as a defence.34 Sometimes there is a straightforward stand-off between strict law and equity. Supposing a slave contracted a debt and his owner then died leaving more than one heir. If the other party to the contract sues one of the heirs, the others are in law free of liability, even though the heir sued was held liable only to the extent of his share of the slave’s fund (peculium). But, says Ulpian, though that is the position in strict law, an action should be given against the other heirs so that they will be freed from liability only to the extent that the creditor actually receives payment.35 A father who made his son heir could provide by a secret instrument that if the son died under age the inheritance should go to someone else. In the case in issue the son died under age and his mother claimed the inheritance on the ground that the secret instrument had been revoked. It was held that it had not been revoked. Then the mother discovered that the father had not executed a secret instrument in the first place. Could she reopen the case? Neratius points out that the final judgment (res iudicata) bars her from doing so. Ulpian agrees that this is a case of res iudicata, but says that the mother must be given a remedy because the earlier proceedings related only to the revocation of the secret instrument, not its existence.36 A testator leaves a legacy and asks the legatee by way of trust to emancipate his (the legatee’s) own child. If the request had been to emancipate a slave there was a legal procedure for ensuring that it was given effect. But Papinian points out that no such procedure exists in the case of a child, and Ulpian admits that he had formerly taken the view that the law of trusts provides no remedy in such a case. The legatee should, however, says Ulpian, be compelled to emancipate the children outside the normal course of law (extra ordinem). Otherwise the intentions of testators will be thwarted.37 He cites a ruling of Severus along the same lines. Humanity is another value to which Ulpian appeals, especially when liberty is in question. Anyone may appeal against a sentence in a criminal trial, not only the accused but anyone else, and may do so even if the person sentenced does not want an appeal.38 Anyone may bring proceedings for the production of a freeman who is thought to be wrongfully detained (the equivalent of 34

D 12.1.18 pr (Ulp. 7 disp.) D 15.1.32 pr (2 disp: sed licet hoc iure contingat, tamen aequitas dictat iudicium in eos dari, qui occasione iuris liberantur, ut magis eos perceptio quam intentio liberet) 36 37 D 44.2.11 pr (Ulp. 75 ed.) D 35.1.92 (5 fid.) 38 D 49.1.6 (2 appell: credo enim humanitatis ratione omnem provocantem audiri debere) 35


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habeas corpus) because anyone is entitled to take action in favour of freedom.39 The underlying thought is that, since we are all born free, common humanity permits a stranger to intervene in this way to save another. Ulpian’s philosophical outlook influences his moral opinions. His regard for human equality emerges in two texts on the equality of husband and wife. In one of these, following a ruling of Caracalla later cited by Augustine, he attacks the double standard of sexual morality. He points out that the judge who tries a charge of adultery should ask himself whether the husband by his own chaste life was setting his wife a good example, since it is the height of injustice for a husband to demand of his wife a virtue that he does not himself display.40 More important, and expressing a view that is surely original in the ancient world, Ulpian embraces the principle that one takes one’s spouse for better or worse. In discussing divorce for insanity he says that spouses should tolerate a good deal of eccentricity on one another’s part. If there are intervals of sanity or if the mental disease, though permanent, can be tolerated by those around her (he is speaking of a mentally disturbed wife), the marriage should on no account be dissolved. ‘For’, he says ‘what is more human than for a husband to share his wife’s or a wife her husband’s misfortunes?’41 The concept of sharing also applies to ordinary partners. In relation to them Ulpian makes the point that sharing in profit should go along with sharing in loss, so that if a partner brings into account something wrongfully acquired, the other partners, if they know it was wrongfully acquired, must share in any penalty incurred.42 The value of human ties, in comparison with love of property, is brought out in a text that protects a slaveowner against having to sell a slave who is his natural parent or brother in order to give effect to a legacy. On the other hand the owner of a drinking-cup might in a similar case be forced to sell it at its market value. ‘The status of human beings is different from that of other things.’ 43 When there is a legacy of slaves working on an estate it is presumed that their wives and children are included. It is not to be supposed that the testator intended a painful separation.44 As regards moral vices Ulpian is particularly hard on dishonesty (calliditas).45 He several times assimilates fault bordering on intentional wrongdoing (culpa

39

D 43.29.3.9 (71 ed.) D 48.5.14.5 (Ulp. 2 adult: periniquum enim videtur esse, ut pudicitiam vir ab uxore exigat, quam ipse non exhibeat) cf. Augustine, On Adultery to Pollentius 2.7 41 D 24.3.22.7 (Ulp. 33 ed: quid enim tam humanum est, quam ut fortuitis casibus mulieris maritum vel uxorem viri participem esse?) cf. Swain (1996) 119f. 42 D 17.2.55 (30 Sab: aequum est enim, ut cuius participavit lucrum, participet et damnum) 43 D 30.71.3–4 (Ulp. 51 ed: alia enim condicio est hominum, alia ceterarum rerum) 44 D 33.7.12.7 (Ulp. 20 Sab: neque enim duram separationem iniunxisse credendus est) 45 Ch.2 n.539, 618 40

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dolo proxima) to deliberate wrongdoing (dolus).46 Grossly to disregard the interests of others is almost dishonest. To keep in balance the competing claims of the wording of texts, the purposes they are meant to serve and the demands of morality, requires a sense of balance and moderation. The pursuit of this unexciting virtue is essential to a well-ordered civil society. Ulpian possessed it. Public administration, for example, must be conducted without laxity, but without pressing harshly on the citizen. A provincial governor should steer a line between a total refusal of gifts offered, which is discourteous, and acceptance of everything offered, which is contemptible.47 As regards delation (informing the government of tax evasion) a path must be trodden between supine blindness to the facts and over-scrupulous inquisition.48 What should a provincial governor do if he finds that a local authority has put its funds into something that does not yield interest? He should not be harsh or insulting (perhaps the money is invested in a project to which the local community attach great importance) but combine efficiency with moderation and humanity.49 A guardian fails to sell perishable goods belonging to his ward in good time, and the ward suffers a loss. Is it an excuse that he was waiting for his fellow-guardians to agree to the sale, or that they wished to put the matter off? He will not easily be excused. His duty is to act without haste but also without undue delay.50 The praetor could compel an attorney to defend an action in certain cases. Julian listed some exceptions, for instance if the attorney was away on the business of the local authority. The excuse, says Ulpian, should neither automatically be accepted not systematically denied. The praetor should take each case on its merits.51 The sentencing of criminals is discretionary, but whether a light or a heavy sentence is imposed the sentence must not be excessively light or heavy.52 But I agree with Rodger that Ulpian does not automatically favour a compromise between conflicting views.53 It is of the essence of an empirical approach to be flexible.

46 D 2.13.8 pr (4 ed.), 11.1.11.11 (Ulp. 22 ed.), 16.3.7 pr (30 ed.), 47.4.1.2 (38 ed.), 43.26.8.3 (71 ed.), 30.47.5 (22 Sab,), 27.8.4 (3 disp.), 36.1.23.3 (5 disp.). The number of texts and the repetition of the formula culpa dolo proxima tells against interpolation. There is one such text in Marcianus: D 47.9.11 (Marci. 14 inst.) cf. 26.7.7.2 (Ulp. 35 ed: lata neglegentia) 47 D 1.16.6.3 (Ulp. 1 off. proc: nam valde inhumanum est a nemine accipere, sed passim vilissimum est et omnia avarissimum) 48 D 22.6.6 (Ulp. 18 ed: ut neque neglegentia crassa aut nimia securitas expedita sit neque delatoria curiositas exigatur) 49 D 22.1.33 pr (Ulp. 1 off. cur. reip: dummodo non acerbum se exactorem nec contumeliosum praebeat, sed moderatum et cum efficacia benignum et cum instantia humanum) 50 D 26.7.7.1 (Ulp. 35 ed: non quidem praecipiti festinatione sed nec moratoria cunctatione) 51 D 3.3.13 (Ulp 8 ed: sed haec neque passim admittenda sunt neque destricte deneganda, sed a praetore causa cognita temperanda) 52 D 49.1.6 (1 appell: Hodie licet . . . quam vult sententiam ferre, vel graviorem vel leviorem, ita tamen ut in utroque moderationem non excedat) 53 Rodger (1983) 389–90


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Once a conclusion has been reached on the way in which the law applies to a given set of facts, it is a question whether the law would be the same if the facts were slightly different. Indeed Ulpian quite often qualifies a conclusion with a possible exception ‘unless perhaps’ (nisi forte)54 to ensure that what he says is not taken too broadly.55 The implication is not that the result would certainly be different if the facts were different but that it might be. At other times Ulpian commits himself to the view that the result would be the same if the facts were different: ‘it matters little that . . .’ ( parvi refert . . .)56 or ‘but even if so-and-so were the case . . . equally’ (sed et si . . . aeque).57 At others again he raises the question ‘but what if?’ (quid tamen si?)58 and embarks on a further discussion that may end either way. All these lines of discussion rest on the assumption that the limits of a principle are to arrived at by trial and error: by trying the rule out in a range of fact-situations. Here are some examples of the first sort. If a testator who by will leaves tangible property in trust sells the property during his lifetime without intending to extinguish the trust, the trust is not extinguished. If he leaves a debt in trust but exacts the debt during his lifetime the law is the same. Unless perhaps, says Ulpian, there is a difference between the two cases. The tangible property continues to exist but the debt does not.59 A father cannot dissolve the engagement of a daughter whom he has emancipated. So if he has given property by way of dowry to the daughter’s fiancé, and then changes his mind about the proposed marriage, she can defy him by marrying her fiancé. He cannot recover the money on the ground that the object for which it was handed over has failed. Unless perhaps, says Ulpian, one argues that he handed over the property on the basis that, whether or not the marriage took place, he could recover it if (in the end) he did not agree to the marriage.60 The ‘perhaps’ is to be taken seriously, as we see from another example. An execution creditor can seize a debt owed to his debtor, provided it is admittedly due. If the debt is said not to be due, the fairest course is not to seize it, unless perhaps one says that, as in the case of pledged corporeal property, the magistrate should decide whether the debt really is due. But there is a rescript to the contrary.61 So, by implication, the two cases are in law the same. To say that it matters little (parvi refert) if the facts are somewhat different is a way of avoiding too narrow a statement of the law. A couple of examples will suffice. If the legitimacy of two children under puberty is in issue and one of them reaches puberty, the decision must be deferred until the other also reaches puberty. It matters little whether the one still under puberty is plain54

Ch.2 n. 21–4, 153 Many nisi forte texts have been suspected of interpolation, some perhaps rightly. But since more than three-quarters of the nisi forte texts come from Ulpian (Ch.2 n.20–4) the great majority must be genuine 56 57 58 59 Ch.2 n.17 Ch.2 n.152 Ch.2 n.151 D 32.11.12–13 (2 fid.) 60 61 D 23.1.10 (3 disp.) D 42.1.15.9 (3 off. cons.) 55

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tiff or defendant.62 A shipper is the person who pays the expenses and takes the profits from operating a ship, whether the owner of the ship or someone who has chartered the ship for a term or permanently. It matters little whether the shipper is male or female, the head of a family, a child in power, or a slave. But a child under age requires his or her guardian’s authority.63 As these examples indicate ‘it matters little’ is in practice an euphemism for ‘it does not matter’. The same is true of ‘but even if . . . equally’ (sed et si . . . aeque). If a slave has by will been given his freedom if he climbs the Capitol, and the heir prevents him he becomes free. But even if he is to be free if he pays one co-heir and another prevents him, he will equally be free.64 The ‘but what if’ cases include some in which Ulpian’s train of thought comes through with special clarity. The seller of a slave who was a thief was liable in the action of sale if he knew of the slave’s fault, but not otherwise. What if he did not know but told the buyer that the slave was honest and so got a better price? Ulpian tentatively asserts that the seller is liable in the action on sale (et putem teneri). True, he did not know. But he should not rashly have asserted something that he did not know to be true.65 Hadrian by rescript imposed a penalty on those who bury a corpse in a town. But what if the statute of the local authority allows burial in the town? The answer is that imperial rescripts possess a general force and should prevail everywhere.66 A suit to enforce a testamentary trust must be brought where the greater part of the inheritance lies. In deciding where this is, the rule to apply is that debts do not diminish the assets in any particular area, because they burden the estate as a whole. But what if certain assets are earmarked, say, for maintenance to be provided in Rome? In that case, says Ulpian, I should think that this reduces the Rome assets, so that the bulk of the inheritance may lie elsewhere.67 These few examples, which could be multiplied many times over, give an idea of the open and empirical character of Ulpian’s work. He shares these features with several other Roman lawyers but in my view surpasses them in candour and clarity. Although there are important differences between the development of the law by lawyers, like Ulpian, who hold or have held prominent positions in government and its development in the common law world by a specialized group of judges, the parallels are a good deal closer than is commonly supposed. 62

63 64 D 37.10.3.8–9 (41 ed.) D 14.1.1.15–16 (28 ed.) D 40.7.3.3–4 (27 Sab.). D 19.1.13.3 (32 ed.). This highly Ulpianic text (quid tamen si . . .et putem) has often been suspected of interpolation 66 67 D 47.12.3.5 (25 ed.) D 5.1.50. pr.–1 (6 fid.) 65

5 Genuine Works T H I S chapter makes use of the analysis of style in chapter 2 to identify the works attributed to Ulpian that are genuinely his. Chapter 11 deals with five works that have been falsely attributed to him. The genuine works are identified by the same technique as in the first edition but the evidence is set out in a different way. There the method consisted in taking each book of Ulpian’s works and listing the footnotes in the chapter on Ulpian’s style that referred to a word or expression to be found in that book. That method was accurate but not reader-friendly. To discover why the work or book was said to be genuine Ulpian the reader had to look up the footnotes. In this edition I have instead set out some but by no means all of the Ulpianic words and phrases that appear in each book directly. The ones chosen are those that are most typical of Ulpian’s manner and occur fairly often in his writings. Provided the words and phrases chosen occur seldom in other Digest authors it is relatively easy to judge the cogency of the argument for authenticity that they provide. The reader will notice how important wordorder is in bringing out what is distinctive about Ulpian’s writing. Between 40 and 42 per cent of the material in Justinian’s Digest is attributed to Ulpian. But a number of common words and phrases occur only or predominantly in his Digest texts.1 This makes it fairly easy to recognize genuine Ulpian. The argument that texts attributed to Ulpian are really by him depends on the assumption that his style was reasonably coherent. The evidence to be presented shows that, if the major commentaries On the Edict and On Sabinus are genuine, a number of other works attributed to our author are written in a similar style and can also be taken as genuine. This argument could satisfy a reader who was worried about extraneous elements in texts attributed to Ulpian, for example marginal glosses made on manuscript copies of his work or interpolations due to Justinian’s compilers. The argument goes to show that, despite these intrusions in the texts and despite some mistakes in copying, the style of many works attributed to Ulpian remains distinctive. The same is true of individual texts and sentences, though these have to be considered on their merits, one at a time. If a text contains a phrase such as proinde, ut puta, or erit dicendum, Ulpian is likely to be its original author, even if it has been partly altered in editing. Pastiche by post-classical editors 1

e.g. proinde, ut puta, et ait . . ., erit dicendum

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5. Genuine Works

or by Justinian’s compilers, all basically Greek-speaking, can, I suggest, be virtually ruled out. The argument for the genuineness of the twenty-three works listed in this chapter is, however, different from the argument developed in chapter 10 about works falsely attributed to Ulpian. The spurious works are, in my view, almost wholly spurious. Little or nothing in them is taken from the real Ulpian. The arguments for genuineness, on the other hand, are of varying strength. Seventeen works, ranging from the eighty-one books On the Edict to three one-book monographs seem on grounds of style and vocabulary, apart from other evidence, to be genuine. For three other works (below nos. 18, 19 and the hypothetical 23) the style is consistent with Ulpian’s. Given the attribution of these works to him in Justinian’s Digest and the compilers’ so-called Florentine Index, they are probably genuine. In three others (nos. 20–2) there are too few lines to make a judgment possible. The case for their genuineness rests entirely on the Digest headings and the Florentine Index. Finally there are five works, examined in chapter 10, that seem to be spurious. When a work is shown to be genuine it does not follow that the texts cited from it in the Digest or elsewhere contain nothing by another hand. The texts have been preserved in works copied in post-classical times and edited by Justinian’s compilers or by private entrepreneurs. The private editors, to judge from the spurious Rules in one book, examined in chapter 10,2 have altered the classical originals very little. Justinian’s compilers, on the other hand, were told to reduce the volume of classical texts by a factor of twenty,3 to harmonize the law so as to remove contradictions,4 and to make the text read smoothly.5 These instructions justified and indeed required what are called interpolations. But Justinian’s compilers did not have a general mandate to rewrite the classical texts. Their instructions gave them limited powers. Whether a particular text has been altered and, if so, how is a question to be considered in the light of these instructions. The evidence for the genuineness of certain works attributed to Ulpian will now be set out, beginning with the major commentaries. The number of each book, and the number of lines in it that have been preserved in Justinian’s Digest, as set out in Lenel’s Palingenesia, are first listed. Then follow some of the words and phrases typical of Ulpian that are found in that book. I have chosen mainly connective words and phrases that occur fairly frequently in Ulpian’s work and that owe little to the legal context. The number of times they occur in each book is not mentioned in this chapter but can be ascertained from Table I, read with the relevant footnote in chapter 2 and, if necessary, the relevant fiche in Honoré–Menner (1980) or the relevant entry in

2 4

3 C Tanta (16 Dec 533) 1 Ch.10 10 n.8–94 5 C Deo C Tanta 10 D Auctore (15 Dec 530) 4, 8, 9; C Tanta 10, 15

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VIR. Examples of Ulpianic words and phrases were multiplied in the first edition. This edition is more selective. The meaning of the word or phrase relied on as an indication of Ulpian’s authorship is explained in chapter 2. For example, inde refers to the conjunction meaning ‘hence’, not the adverb meaning ‘thence’. Again proinde refers to the word in the meaning ‘and so’, not to its use in a phrase such as proinde ac si where it means ‘just (as if)’. The reader should bear in mind that some expressions such as proinde (‘and so’) and quid tamen si (‘but what if?’) are so often found in Ulpian and so rarely in other legal authors, that even standing alone they point to genuineness.

I.

THE MAJOR COMMENTARIES

1. On the Edict (81 books) Book and lines 1 (148) accipe; accipere debemus 2 (111) et refert; sunt accipienda; eo loci; ut puta 3 (183) proinde; quaestionis est; et non puto; et puto; accipimus; cessabunt; eleganter 4 (369) per contrarium; solemus dicere; et magis est; est constitutum; erit dicendum; eleganter; aequissimum est; ut puta 5 (213) per contrarium; accipe; accipiemus; accipere debemus; accipimus; cessabit; est responsum; in ea sunt causa; ut puta 6 (374) et mihi videtur; et generaliter; idcircoque; parvi refert; est rescriptum; est aequissimum; accipe; accipiemus; accipere debemus; accipimus; saepissime; ut puta 7 (72) et puto; aequissimum putavit; accipimus 8 (81) nec non; accipe; accipere debemus; erit dicendum 9 (268) et ait; quid tamen si; admittimus; nec ferendus est; erit dandum; erit audiendus; erit dicendum; ut puta 10 (361) quid tamen si; et ego puto; et midi videtur; et generaliter; et ait; nec non; spectamus; aequissimum erit; sunt accipienda; accipe; est constitutum; erit danda; erit dicendum; eleganter; ut puta 11 (1001) proinde; et non puto; ego arbitror; credo; finge enim; quid tamen si; et magis est; per contrarium; et refert; et generaliter; et ait; habet rationem; spectamus; est constitutum; est rescriptum; erit dandum; erit dicendum; erit accipiendum, cessabit; accipere debemus; accipimus; saepissime; eleganter; perraro; ut puta 12 (343) proinde; et generaliter; et puto; ego puto; et ait; nec non; finge enim; est rescriptum; accipimus; erit accipienda; cessabit; aequissimum erat; saepissime; ut puta 13 (423) proinde; inde; et puto; quid tamen si; finge enim; habet rationem; aequissimum erit; est constitutum; accipe; in ea causa non est; eleganter; saepissime; eo loci; ut puta

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14 (393) proinde; inde; et puto; ego puto; parvi refert; meminisse oportebit; cessabit; erit dicendum; accipiemus; accipere debemus; saepissime; ut puta 15 (631) proinde; quid tamen si; et non puto; finge enim; et dicendum erit; sed enim; parvi refert; aequissimum est/erit; dubio procul; accipiemus; accipies; erit dicendum; ut puta 16 (369) proinde; et puto; et ait; sed enim; finge enim; erit accipienda; erit dicendum; ut puta 17 (343) et puto; per contrarium; et ait; accipere debemus; erit dicendum 18 (660) proinde; inde; et ego puto; et generaliter; et ait; habet rationem; parvi refert; aequissimum erit; erit danda; erit dicendum; cessabit; accipiemus; accipere debemus; eo loci; ut puta 19 (377) et generaliter; et puto; ego arbitror; et ait; eleganter; ut puta 20 (100) habet rationem; cessabit; erit dicendum; eleganter; ut puta 21 (35) accipere debemus 22 (396) proinde; ego puto; et ait; habet rationem; consequenter dicemus; consequens erit dicere; aequissimum est; erit accipiendum, accipere debemus; in ea causa est; ut puta 23 (402) proinde; ego puto; quaestionis est; et finge; et est relatum; et ait; accipere debemus; accipimus; erit dicendum 24 (315) proinde; inde; ego arbitror; et ait; nec non; erit dicendum; aequissimum est; accipere debemus; accipimus; eleganter; eo loci; ut puta 25 (393) quid tamen si; et generaliter; ego puto; credo; finge enim; quaestionis est; et ait; habet rationem; erit dandum; aequissimum visum est; cessabit; accipere debemus; saepissime; ut puta 26 (404) proinde; quaestionis est; quid tamen si; et puto; et refert; quid tamen si; accipimus; non est ferendus; ut puta 27 (283) proinde; quid tamen si; et puto; et magis est; et generaliter; cessabit; eo loci; ut puta 28 (678) proinde; quid tamen si; finge enim; et puto; ego puto; et est dubitatum; et generaliter; et ait; nec non; parvi refert; admittimus; est constitutum; est rescriptum; meminisse oportebit; aequissimum erit; accipiemus; accipere debemus; accipimus; erit dicendum; cessabit; aequissimum est; ut puta 29 (1296) proinde; est quaestionis; quid tamen si; finge enim; si mihi proponas; et mihi videtur; et puto; ego puto; et ait; nec non; habet rationem; parvi refert; spectamus; erit probandum; erit dicendum; cessabit; est aequissimum; accipere debemus; accipimus; in ea causa est; est constitutum; si mihi proponas; eleganter; ut puta 30 (400) proinde; inde; et arbitror; ego arbitror; et magis est; et constat; et ait; solemus dicere; aequissimum erit; erit dicendum; eleganter; ut puta 31 (633) proinde; inde; quid tamen si; finge enim; et non puto; per contrarium; et ait; idcircoque; verumtamen; quid tamen si; spectamus; aequissimum erit; est constitutum; erit probandum; habet rationem; cessabit; erit dicendum; parvi refert; consequenter dicemus; ut puta

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32 (772) proinde; quid tamen si; et putem; et puto; ego puto; credo; et arbitror; per contrarium; et est relatum; et ait; verumtamen; habet rationem; ostendimus; solemus dicere; erit dicendum; est aequissimum; erit accipiendum; accipere debemus; in ea condicione est; eleganter; ut puta 33 (222) et puto; et constat; nec ferenda est; est rescriptum; dubio procul 34 (447) quaestionis est; et magis est; et putem; et magis puto; credo; et mihi videtur; per contrarium; et ait; meminisse oportet; consequenter dicemus; aequissimum erit; accipere debemus; saepissime; eleganter; ut puta 35 (779) proinde; et putem; et puto; et magis est; et generaliter; nec non; erit dubitatio; et ait; verumtamen; ostendimus; parvi refert; aequissimum erit; accipere debemus; accipimus; cessabit; consequenter dicemus; consequens erit dicere; erit dicendum; in ea condicione est; ut puta 36 (490) proinde; quid tamen si; et magis est; ego puto; et puto; et arbitror; per contrarium; et exstat; et generaliter; et ait; idcircoque; verumtamen; non tantum . . . verum etiam; nulla dubitatio est; parvi refert; ostendimus; aequissimum erit; erit accipiendum; saepissime; ut puta 37 (233) proinde; et putem; et ego puto; parvi refert; nec ferendus est; ut puta 38 (345) proinde; quid tamen si; et magis est; et generaliter; sed et si . . . aeque; meminisse oportebit; aequissimum est; accipere debemus; accipimus; cessabit; erit dicendum; saepissime; eleganter 39 (288) proinde; et arbitror; et mihi videtur; credo; et magis est; idcircoque; verumtamen; nulla dubitatio est; solemus dicere; non tantum . . . verum etiam; aequissimum est/erit; accipiemus; accipere debemus; erit dicendum; in ea causa est 40 (626) proinde; et ego puto; credo; et magis est; et ait; verumtamen; non tantum . . . verum etiam; sed et si . . . aeque; nulla dubitatio est; admittimus; aequissimum est/erit; erit dicendum; cessabit; consequenter dicemus; non est in ea causa; saepissime; ut puta 41 (491) proinde; quid tamen si; et magis est; per contrarium; et generaliter; idcircoque; habet rationem; parvi refert; spectamus; admittimus; non tantum . . .verum etiam; est aequissimum; accipere debemus; erit dicendum; ut puta 42 (84) et magis est; erit dicendum; spectamus 43 (72) aequissimum est; ut puta 44 (239) proinde; et magis est; et arbitror; et puto; et mihi videtur; et ait; idcircoque; verumtamen; accipere debemus; accipimus; erit audiendus; erit probandum; ut puta 45 (267) proinde; et non puto; et generaliter; verumtamen; non tantum . . . verum etiam; nulla dubitatio est; spectamus; aequissimum visum est; erit dicendum; consequens erit dicere; in ea causa est; in ea condicione est; ut puta 46 (195) verumtamen; ostendimus; admittimus/admittemus; non tantum . . . verum etiam; erit accipiendum; accipere debemus; accipiemus; in ea condicione est; ut puta 47 (40) verumtamen; sed enim 48 (36) nulla dubitatio est; accipiemus; accipere debemus; consequens erit dicere; ut puta

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49 (138) proinde; et magis est; et generaliter; nulla dubitatio est; habet rationem; ut puta 50 (652) proinde; et ego puto; et non puto; et magis est; et ait; quaestionis est/fuit; illud sciendum est; parvi refert; est aequissimum; accipere debemus; accipimus; erit dicendum; in ea causa est; eleganter; perquam; eo loci; ut puta 51 (71) illud sciendum est; aequissimum est; ut puta 52 (422) proinde; inde; et puto; et magis est; et ait; nec non; sed et si . . . aeque; meminisse oportebit; et generaliter; non tantum . . . verum etiam; aequissimum erit; accipere debemus; accipimus; eo loci 53 (622) proinde; inde; per contrarium; ego puto; et puto; et putem; et magis est; et extat; et generaliter; et ait; idcircoque; non tantum . . . verum etiam; habet rationem; aequissimum erit; accipe; accipiendum erit, erit probandum; erit dicendum; spectabimus; cessabit; eleganter; ut puta 54 (87) sed enim; erit dicendum; ut puta 55 (175) proinde; et putem; et puto; et generaliter; parvi refert; accipiemus; accipere debemus; accipimus; cessabit; non est in ea causa; ut puta 56 (424) proinde; et non puto; et ego puto; et magis est; et generaliter; sed enim; sed et si . . . aeque; spectamus; admittimus; dicere solemus; accipiemus; accipere debemus; accipimus; consequens erit dicere; erit probandum; cessabit; in ea causa est; in ea condicione est; ut puta 57 (517) proinde; est quaestionis; et est rescriptum; et ait; nulla dubitatio est; parvi refert; solemus dicere; meminisse oportebit; non tantum . . . verum etiam; aequissimum erit; accipere debemus; accipmus; erit probandum; consequens erit dicere; non est in ea causa; saepissime; ut puta 58 (72) et ait; idcircoque; accipiemus; accipere debemus; consequens erit dicere; in ea condicione sunt 59 (209) proinde; et generaliter; ego puto; et puto; et ait; illud sciendum est; spectamus; solemus dicere; habet rationem; accipere debemus; erit probandum; erit dicendum; cessabit; consequens erit dicere; perquam; in ea erit causa 60 (239) proinde; et puto; et magis est; sed et si . . . aeque; nec non; illud sciendum est; habet rationem; non tantum . . . verum etiam; accipiemus; erit probandum; erit dicendum; cessabit; consequens erit dicere; in ea causa est; eo loci 61 (158) proinde; et generaliter; accipimus; erit dicendum; in ea causa est; ut puta 62 (158) proinde; est quaesitum; ego puto; et ait; debemus accipere; erit dicendum 63 (117) sed enim; aequissimum est; accipimus; cessabit; ut puta 64 (166) et putem; et non puto; illud sciendum est; nec ferendus est; est aequissimum; erit accipiendum; erit probandum; perraro; ut puta 65 (45) — 66 (125) proinde; si mihi proponas; et ait; illud sciendum est; accipere debemus; erit danda; non est in ea causa; in ea condicione est; ut puta 67 (141) nec non; est quaesitum; aequissimum visum est; accipere debemus; accipimus; erit probandum; erit dicendum; cessabit

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68 (666) proinde; inde; et puto; et putem; et generaliter; dubio procul; solemus dicere; aequissimum erit; accipimus; erit probandum; cessabit; consequens erit dicere; eo loci; ut puta 69 (459) proinde; est quaesitum; ego puto; et ait; et generaliter; nec non; idcircoque; nulla dubitatio est; fuit aequissimum; accipimus; consequenter dicemus; ut puta 70 (635) proinde; inde; et ego puto; credo; et magis est; et extat; et refert; et ait; et generaliter; idcircoque; sed enim; illud sciendum est; non tantum . . . verum etiam; aequissimum erit/est; accipe; accipimus; erit dandum; erit dicendum; erit probandum; in ea causa est; in ea condicione est; eo loci; ut puta 71 (924) proinde; est quaesitum; ego arbitror; ego puto; ego putem; et mihi videtur; et magis est; et exstat; et est relatum; et generaliter; et ait; idcircoque; illud sciendum est; parvi refert; spectamus; admittimus; meminisse oportet; non tantum . . . verum etiam; accipe; accipimus; consequens erit dicere; erit probandum; erit dicendum; in ea causa est; saepissime; ut puta 72 (75) et puto; ego puto 73 (273) proinde; et putem; et puto; et magis est; verumtamen; habet rationem; est constitutum; non tantum . . . verum etiam; accipimus; erit probandum; consequens erit dicere; saepissime; perquam; ut puta 74 (168) proinde; ego puto; et ait; illud sciendum est; solemus dicere; aequissimum est; accipere debemus; in ea erit causa; ut puta 75 (148) proinde; quaestionis est; si proponas mihi; et putem; et ait; et generaliter; erit probandum; consequens erit dicere; in ea condicione est; ut puta 76 (483) proinde; et putem; et ego puto; si mihi proponas; et magis est; et refert; et generaliter; et ait; verumtamen; illud sciendum est; parvi refert; aequissimum est; erit probandum; erit dicendum; consequens erit dicere; saepissime; ut puta 77 (201) quid tamen si; et magis est; illud sciendum est; accipiemus; accipere debemus; consequens erit dicere; ut puta 78 (13) — 79 (467) proinde; et putem; et puto; ego puto; et generaliter; et ait; nec non; verumtamen; sed enim; illud sciendum est; habet rationem; non tantum . . . verum etiam; aequissimum est; accipiemus; accipimus; erunt dicenda; consequens erit dicere; cessabit; perquam; ut puta 80 (86) ego puto; et ait; ut puta 81 (181) et ait; ego puto; accipimus; consequens erit dicere; ut puta

All the books except 65 and 78 contain some typical word or expression. On average one can expect one of these chosen words or expressions every thirty or so lines, though there are naturally variations: the forty-five lines from book 65 do not have any. Despite its general consistency over the whole eighty-one books, there are points at which Ulpian’s phrasing and vocabulary varies in the course of the edictal commentary. These points, which provide clues to his chosen method and rate of composition, are discussed in chapter 7.6 The abiding 6

Ch.7 n.101–19

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impression is however consistency. Thus, ut puta (‘for example’) occurs in sixty different books of the edictal commentary, proinde (‘and so’) in forty-eight, et ait . . . (‘and so-and-so says’) in thirty-nine. The tone is remarkably even. 2. On Sabinus (51 books) Much the same is true of Ulpian’s other major commentary, which concerns civil, as opposed to praetorian law. Here, too, the coherence of style is striking. Book and lines 1 (185) per contrarium; et magis puto; nec non; accipias; ut puta 2 (81) et puto; ut puta 3 (100) et puto; quid tamen si; ut puta 4 (180) si/nisi mihi proponas; ego puto; habet rationem; ostendimus; solemus dicere; in ea condicione est; ut puta 5 (141) sed et si . . . aeque; ut puta 6 (138) proinde; ego puto; erit probandum; erit accipiendum; ut puta 7 (169) quid tamen si; fuit quaestionis; ut puta 8 (156) ego non puto; per contrarium; est rescriptum; accipe; accipias; ut puta 9 (56) quid tamen si; est rescriptum; accipe; erit dicendum 10 (123) proinde; quid tamen si; et non puto; et credo; est constitutum; in ea causa sunt; saepissime; ut puta 11 (7) — 12 (165) proinde; et magis est; est rescriptum; accipere debemus; erit dicendum; ut puta 13 (286) quid tamen si; et puto; parvi refert; admittimus; accipere debemus; accipimus; erit accipiendum; erit dicendum; ut puta 14 (178) inde; et putem; et puto; et magis est; admittimus; accipere debemus; erit dicendum; ut puta 15 (111) proinde; quaestionis non est; et ait; est rescriptum 16 (37) — 17 (622) proinde; fuit quaestionis; quid tamen si; et puto; ego puto; nec non; per contrarium; et parvi refert; et ait; habet rationem; non tantum . . . verum etiam; erit dicendum; et erit procedendum; eleganter; ut puta 18 (398) proinde; inde; nec non; quaestionis est; quid tamen si; finge enim; et ego puto; et generaliter; et ait; ostendimus; accipe; accipimus; erit dicendum; ut puta 19 (153) proinde; per contrarium; et puto; ego puto; et ait; verumtamen; cessabit 20 (462) proinde; inde; et magis arbitror; et puto; ego puto; et ait; ego arbitror; spectamus; solemus dicere; habet rationem; accipimus; erit dicendum; ut puta 21 (244) proinde; et puto; credo; ego arbitror; sed et si . . .aeque; est rescriptum; accipimus; erit accipiendum; erit dicendum; ut puta

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22 (256) proinde; credo; et ego arbitror; parvi refert; accipiendum erit; ut puta 23 (324) proinde; inde; fuit quaestionis; quid tamen si; et puto; et refert; et ait; sed enim; parvi refert; solemus dicere; meminisse oportet; consequenter dicemus; erit dicendum 24 (294) proinde; inde; quid tamen si; finge enim; si mihi proponas; et non puto; et ait; est rescriptum; erit dicendum; aequissimum; saepissime; eleganter; ut puta 25 (202) proinde; quid tamen si; et putamus; et puto; ego arbitror; et magis est; per contrarium; et ait; aequissimum erit; accipimus; cessabit; ut puta 26 (139) proinde; per contrarium; et puto 27 (208) proinde; inde; quid tamen si; et puto; credo; sed et si . . .aeque; et parvi refert; ut puta 28 (426) proinde; inde; quaestionis est; quid tamen si; et puto; ego arbitror; et generaliter; et ait; sed et si . . .aeque; parvi refert; ostendimus; accipimus; erit accipiendum; erit probandum; consequenter dicemus; eleganter; ut puta 29 (323) inde; per contrarium; et puto; nec non; verumtamen; non est in ea causa; saepissime; eleganter; eo loci 30 (231) quid tamen si; si mihi proponas; et puto; et ait; accipere debemus; cessabit; erit dicendum; eleganter; ut puta 31 (315) proinde; et putem; et non puto; ego puto; ego arbitror; habet rationem; accipere debemus; cessabit 32 (443) proinde; quid tamen si; si mihi proponas; et magis est; et magis puto; per contrarium; et ait; nulla dubitatio est; illud sciendum est; habet rationem; consequenter dicemus; eleganter; ut puta 33 (226) proinde; quid tamen si; et putem; et magis puto; et generaliter; spectamus/ spectabimus; admittimus; accipere debemus; erit dicendum; ut puta 34 (128) inde; et puto; et generaliter; ut puta 35 (68) et puto; est rescriptum; accipimus 36 (208) proinde; et magis est; et non puto; et ego non dubito; credo; verumtamen; admittimus; ferendum non est; accipiemus; erit accipiendum; eleganter; ut puta 37 (64) et ait; nulla dubitatio est; admittimus; in ea causa est 38 (97) proinde; et non puto; non tantum . . . verum etiam 39 (41) proinde; in ea condicione est; erit dicendum 40 (150) proinde; sed enim; sed et si . . . aeque; est rescriptum; in ea causa est; ut puta 41 (320) proinde; inde; et magis est; et non puto; per contrarium; et generaliter; et ait; verumtamen; sed enim; nulla dubitatio est; et parvi refert; eleganter; eo loci; ut puta 42 (278) proinde; per contrarium; ego puto; et non dubito; et ait; verumtamen; accipere debemus; accipimus; ut puta 43 (229) proinde; ego non dubito; et magis est; et ait; spectamus; habet rationem; aequissimum visum est; erit dicendum; consequens erit dicere; eleganter 44 (157) et ego puto; et non dubito; sed enim; meminisse oportebit; in ea condicione sunt

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(45) — 46 (151) et ait; erit dicendum; ut puta 47 (165) et parvi refert; et generaliter; cessabit 48 (203) proinde; per contrarium; et putem; et puto; erit probandum; erit dicendum; accipimus; in ea causa est; ut puta 49 (309) et putem; et ego puto; et ego arbitror; solemus dicere; et magis est; et ait; habet rationem; aequissimum videtur; erit dicendum; consequens erit dicere; in ea erit causa; ut puta 50 (115) et puto; et generaliter; sed et si . . .aeque; consequens erit dicere; ut puta 51 (45) ut puta

The authenticity of Ulpian’s On Sabinus is not in doubt. The style is again consistent. Thus, ut puta occurs in thirty-four books, proinde in twenty-seven, and et ait . . . in seventeen. The typical expressions occur a bit less frequently than in On the Edict, on average one in every thirty-four lines. Books 11, 16, and 45 with seven, thirty-seven, and thirty-five lines respectively, lack the chosen marks of the author’s style. But in general terms the excerpts from books 16 (four uses of the future: locum habebit; repetetur; erit . . . necessarius; valebit) and 45 (erit consequens; quid ergo si; et verum est) conform to his manner.

II. THE MEDIUM-SCALE WORKS

There is good evidence for the authenticity of the treatises in ten and twenty books: The Proconsul (De officio proconsulis), Disputations (Disputationes), Tribunals (De omnibus tribunalibus), and The Julio-Papian Law (Ad legem Iuliam et Papiam). 3. The Proconsul (10 books) Book and lines 1 (74) dummodo sciat; elegantissime; perquam 2 (87) dicendum erit 3 (60) nulla dubitatio est; in ea est causa 4 (69) sed enim; accipere debemus; in ea sunt condicione 5 (37) — 6 (24) — 7 (170) et putem; et scio; saepissime 8 (288) proinde; et exstat; et ait; sed enim; sed et si . . . aeque; non tantum . . . verum etiam; saepissime 9 (207) proinde; et magis est; sed enim; idcircoque; nulla dubitatio est; ut puta

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10 (195) per contrarium; et magis puto; nec non; credo; sed enim; accipere debemus; meminisse oportebit; erit probandum; consequenter dicemus; perquam; eo loci; ut puta

Books 5 and 6, with thirty-seven and twenty-four lines respectively, lack the chosen marks of Ulpian’s style, but the other books contain enough to show that Ulpian is the author. There is on average a typical word or expression every thirty-three lines. This innovative treatise displays great political wisdom. Though Schulz says that the style departs from the classical,7 the words and phrases he lists do not bear him out. 4. Disputations (10 books) Book and lines 1 (129) per contrarium; accipere debemus 2 (210) proinde; quaestionis est; et magis est; et mihi videtur; ego arbitror; aequissimum est; cessabit; consequenter dicemus; in ea condicione est; ut puta 3 (198) et puto; nec non; sed enim; est rescriptum; nec ferendus est; erit dicendum; saepissime; ut puta 4 (372) proinde; et ego puto; et puto; et arbitror; credo; et refert; idcircoque; verumtamen; ostendimus; est constitutum; aequissimum est; erunt accipienda; consequenter dicemus; saepissime; in ea sunt condicione; ut puta 5 (278) proinde; nisi mihi proponas; sed enim; dubio procul; aequissimum erit; accipere debemus; accipimus; in ea condicione est; erit dicendum 6 (162) proinde; et puto; cessabit; in ea condicione est; ut puta 7 (253) proinde; et credo; et puto; aequissimum est; erit dicendum; ut puta 8 (304) proinde; et putem; et puto; et magis arbitror; et magis est; per contrarium; sed enim; est constitutum; est rescriptum; erit dicendum; eleganter 9 (13) erit accipiendum 10 (9) —

Book 10, with nine lines of excerpt, contains no chosen mark of Ulpian’s style. The other books all do. Beseler stated dogmatically that this work was not by Ulpian.8 Schulz argued that the text reached the compilers much altered by post-classical editing. Beseler’s commented that ‘this for practical purposes comes to much the same thing for the legal historian’.9 But the surviving excerpts contain the Ulpianic phrases listed above and the mode of reasoning found in it is typical.10 The texts are largely genuine, and conform 7 Schulz (1946) 245. That D 47.11.9 (9 off. proc.) is not Ulpian’s because it concerns only Arabia, an imperial province, is a mistake: ut puta points to the text being genuine. Imperial provinces were included in the work on the proconsul. 8 9 Beseler (1925) 2251; (1930) 190: (1936) 1.313 Schulz (1946) 240 10 Ch.2 n.30, 72, 106, 114, 154, 244, 318, 326, 336, 410, 426, 433, 511, etc.; Mayer-Maly (1961) 568

116

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in style to the rest of Ulpian’s work, given that oral debate on points of law conducted in public has its own conventions. Indeed we find on average a typical word or expression once in every twenty-eight lines, which is above average. Any passages and phrases that Justinian’s compilers have altered must be winkled out one by one. 5. Tribunals (10 books) Book and lines 1 (77) non tantum . . .verum etiam; perraro 2 (58) et puto; nulla dubitatio est; nec ferendus est; accipimus; admittemus 3 (18) — 4 (61) et magis est; est rescriptum; consequens erit dicere 5 (183) finge enim; et non puto; et puto; per contrarium; aequissimum erit; cessabit; erit dicendum; ut puta 6 (0) — 7 (0) — 8 (100) proinde; et non putem; nec non; est rescriptum; accipere debemus; accipimus; eo loci; ut puta 9 (9) — 10 (0) —

The five books that lack marks of style have no or few lines of text. The remaining books have enough to show that Ulpian is the author. Indeed the work yields a typical word or expression on average once every twenty-five lines. 6. The Julio-Papian Law (20 books) Book and lines 1 (99) proinde; ego puto; et magis est; non tantum . . .verum etiam; accipiemus; accipere debemus; accipimus 2 (26) et puto 3 (96) proinde; meminisse oportet; accipere debemus; accipimus; erit probandum; in ea condicione est 4 (30) et magis est; nulla dubitatio est 5 (13) — 6 (25) consequenter dicemus 7 (43) sed et si . . . aeque; erit dandum; accipimus 8 (37) nec non; erit dicendum; ut puta 9 (6) —

5. Genuine Works 10 11 12 13 14 15 16 17 18 19 20

117

(29) verumtamen; saepissime (47) erit dicendum (0) — (38) erit dicendum (10) erit dicendum (12) meminisse oportebit; erit accipiendum (7) — (0) — (40) nec non; nec ferenda est; accipere debemus (5) — (9) —

No less than seven books out of twenty lack the chosen marks of style, but from none of them do more than thirteen lines survive. There are enough typical words and phrases in the remaining thirteen books to show that this large-scale commentary is authentic Ulpian. Indeed there is on average a characteristic word or expression every eighteen lines.

III. LESSER WORKS

The two major commentaries and the four medium-scale works attributed to Ulpian are, we have seen, coherent in style and can be accepted as substantially genuine. The same is not true of all the minor works that stand in his name in Justinian’s Digest or the Florentine Index. Some are demonstrably genuine. Others are consistent in style with Ulpian’s authorship and, given that they are attributed to him, are likely to be genuine. For some the evidence is so scanty that no conclusion can be drawn from the texts on their own. Any inference of genuineness rests on the inscriptions in the Digest or the attribution in the Florentine Index alone. Others, to judge from the textual evidence, are spurious. Ulpian’s work on trusts falls in the genuine class. 7. Trusts (6 books) Book and lines 1 (105) proinde; accipere debemus; erit dicendum 2 (294) proinde; et magis arbitror; et credo; et puto; non tantum . . . verum etiam; erit dicendum; erit accipiendum; ut puta 3 (159) inde; et mihi videtur; et refert; et est decretum; sed et si . . . aeque 4 (329) proinde; inde; finge autem; ego puto; credo; et generaliter; sed et si . . . aeque; aequissimum erit; meminisse oportebit; erit audiendus; erit dicendum; consequens erit dicere; eleganter

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5 (404) proinde; quaestionis est; et putem; et exstat; et est rescriptum; ostendimus; est constitutum; est rescriptum; aequissimum erit; erit dicendum; in ea causa est/sunt; saepissime; eleganter; ut puta 6 (112) quid tamen si; et magis est; et non puto; eo loci; ut puta

There is evidence of authenticity from all six books. On average a typical phrase or word comes every twenty-eight lines. 8. Taxation (6 books) Books and lines 1 (30) — 2 (18) perraro 3 (40) saepissime 4 (6) — 5 (2) — 6 (0) —

The stylistic argument for the genuineness of this six-book work rests on the presence in book 1 of the et est . . . construction (e.g. est et Palmyrena civitas . . .), which occurs five times,11 and the superlatives splendidissima, antiquissima, and tenacissima.12 In book 2 recte expressum est, referring to a rescript of Caracalla, exhibits a form of condescension peculiar to Ulpian.13 The forty lines of excerpts from book 3 contain two characteristic marks. But the bulk of this passage appears to be taken from the regulations for compiling the census ( forma census). Taken as a whole the evidence that this work is authentic is adequate. It is indeed from it that we learn of Ulpian’s connection with Tyre,14 which is confirmed by an inscription.15 9. Adultery (5 books) Books and lines: 1 (46) finge autem; erit accipiendum 2 (200) proinde; quid tamen si; ego arbitror; ego credo; et putem; et puto; et generaliter; accipimus; non est in ea causa; ut puta 3 (79) quid tamen si; nulla dubitatio est; admittimus; ut puta 4 (120) et non puto; verumtamen; sed et si . . . aeque; nulla dubitatio est; accipere debemus; eo loci 5 (26) proinde; accipere debemus; accipimus

All five books speak to authenticity. A typical word or phrase occurs on average every twenty lines. 11 13

12 D 50.15.1 pr (1 cens.); ch.2 n.654–66 D 50.15.1.2, 3, 5, 10, 11 (1 cens.) 14 D 50.15.1 pr (Ulp. 1 cens.) 15 AE 1988.1051 Ch.2 n.470

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10. Appeals (4 books) Books and lines 1 (188) proinde; et putem; et puto; et magis est; accipimus; in ea causa est; erit probandum; saepissime; ut puta 2 (10) credo 3 (2) — 4 (76) illud sciendum est; et generaliter; erit probandum

Books 1 and 4 contain ample marks of Ulpian’s style and the authorship of the treatise is not in doubt. 11. The Consul (3 books) Books and lines: 1 (55) et magis est; accipere debemus; perquam; ut puta 2 (218) et magis puto; et magis est; nec non; idcircoque; meminisse oportet; non tantum . . . verum etiam; accipiemus; accipere debemus; cessabunt 3 (136) et non puto; et magis est; sed et si . . . aeque; aequissimum erit; cessabunt

All three books point to Ulpian’s authorship. There is on average something typical every 24 lines. 12. The Market-Masters’ Edict (2 books) Books and lines: 1 (749) proinde; ego puto; et puto; per contrarium; et exstat; et ait; sed enim; illud sciendum est; aequissimum erit; accipe; accipiemus; accipere debemus; accipias; cessabit; erit dicendum; ut puta 2 (104) non tantum . . . verum etiam; ut puta

The linguistic evidence of authenticity is adequate, though on average a typical word or phrase occurs only once every forty-five lines. 13. Teaching Manual (2 books) Books and lines: 1 (99) eleganter; ut puta 2 (70) aequissimum putavit

To the Digest excerpts from book 2 have been added forty-three lines from the Collatio, and Lenel prints some other fragmentary lines from outside the Digest. The linguistic evidence of genuineness is adequate (e.g. est appellatum;

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et est simile; est autem manumissio; aequitate motus) though the number of typical words and phrases is small. 14. The Aelio-Sentian Law (4 books) Books and lines 1 (3) — 2 (14) proinde; meminisse oportet 3 (0) — 4 (20) dubio procul

Given the paucity of lines, the words and phrases set out support the genuineness of this work. Three one-book monographs can be classed on linguistic grounds as genuine. 15. The Community Treasurer (1 book) Book and lines 1 (67) proinde; accipimus; ut puta

16. The Praetor for Guardianship (1 book) Book and lines 1 (339) proinde; nisi mihi proponas; ego puto; et puto; nec ferendus est; accipiemus; sunt accipienda

To the nineteen lines from the Digest are added some 320, often fragmentary, from the Vatican Fragments. The authenticity of the work is not in doubt, for it contains a number of Ulpianic words and phrases apart from those listed. The frequency of the listed words and phrases, one every forty-eight lines, is, however, on the low side. The work is a second edition of Ulpian’s early work on Excuses (below no. 18).16 17. The Urban Prefect (1 book) Book and lines 1 (72) accipiemus; erit audiendus

The presence of these two marks of Ulpian’s style supports the claim of this work to be genuine.

16

Liebs (1997) §424.10

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This brings to an end the list of works that can be attributed to Ulpian on grounds of style alone. 18. Excuses (1 book) Book and lines 1 (214) et extant; accipienda est

To the eight lines from Justinian’s Digest must be added some 206 from the Vatican Fragments, some as fragmentary as the traditional name suggests. The linguistic arguments for the genuineness of this work are inconclusive. The general impression created by the texts is, however, consistent with Ulpian’s manner. Thus quia est iniquum followed by the accusative and infinitive is a striking inversion.17 Habent excusationem,18 habent immunitatem,19 and habent vacationem 20 instead of excusationem/immunitatem/ vacationem habent conform to the word-order he favours.21 Non computabitur 22 is a use of the future also found in Ulpian’s On Sabinus.23 Scio dubitatum . . . invenio tamen24 illustrates a form of reasoning that has parallels in his other works.25 Hence Excuses falls in the second class of works mentioned above. It is consistent with Ulpian’s authorship but does not point unequivocally to it. Schulz argued that it was not a work of Ulpian.26 But three texts in it reappear virtually unchanged in The Praetor for Guardianship (no.16 above),27 so that its genuineness does not depend on internal evidence alone. When the whole evidence is taken into account, it can be classed as genuine. But it is an early work, composed before the death of Septimius Severus,28 and before the author’s style had fully matured. The Praetor for Guardianship is a second edition of Excuses, composed about 215.29

17 Frag. Vat. 153 cf. non est iniquum followed by accusative and infinitive (D 43.29.3.13, Ulp. 71 ed.) 18 Frag. Vat. 124; D 27.1.8.9 (Mod. 3 excus.) cf. Frag. Vat. 142 19 Frag. Vat. 134, 138 20 Frag. Vat. 137 21 e.g. non habet excusationem (D 50.5.13.2, Ulp. 23 ed.) 22 Frag. Vat. 161 cf. D 24.3.7.12 (Ulp. 31 Sab.) 23 D 24.3.7.12 (Ulp. 31 Sab.) 24 D 27.1.15.16 (Mod. 6 excus.) 25 Scio quaesitum (D 49.1.3 pr, 1 appell.; 28.5.35.1, 4 disp.); scio tractatum (43.8.2.33, 68 ed.); invenio rescriptum (36.1.15.4, 4 fid.), invenio relatum (39.3.1.20, 53 ed.); invenimus rescriptum (38.17.2.47, 1 Sab.) 26 Schulz (1961) 318–20 27 D 27.1.7 (1 excus.) = Frag. Vat. 185, 240 (1 off. pr. tut.). Frag. Vat. 145 (1 excus.) = part of Frag. Vat. 222 ( 1 off. pr. tut.). D 27.1.15.16 (1 excus.) is a slightly shortened version of Frag. Vat. 189 (1 off. pr. tut.) 28 Lenel (1889) 2.8991; Liebs (1997) §424.10 29 Ch.7 n.104–12

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19. The Quaestor (1 book) Book and lines 1 (29) —

The presence of indifferenter,30 one of a group of similar adverbs,31 and of the superlative antiquissima 32 argues for genuineness. So does the word-order ad animadvertendum facinorosos homines.33 But the linguistic evidence is inconclusive. On the basis of language alone Ulpian’s authorship is plausible but not proven. In three cases where textual evidence is lacking, no conclusion can be reached on linguistic grounds alone. Any presumption of genuineness—and these works are assumed to be genuine in the absence of evidence to the contrary—rests on the ascription of the work to Ulpian in the Digest and the Florentine Index. 20. The Prefect of Police (1 book) Book and lines 1 (1) —

21. Consular Governors (1 book) The three lines, though the author does not say so, are taken from a constitution of Marcus.34 The construction is non-Ulpianic, and, if the source were not known, would even suggest that the work was spurious. As it is, no conclusion can be drawn. 1(3) — 22. Engagement to Marry (1 book) Book and lines 1 (7) —

From these few lines no conclusion can be drawn. This list of Ulpian’s writings is not necessarily complete. There is some evidence that he wrote a monograph about the speech of Marcus and Commodus to the senate on the marriage of guardians to their female wards.

30 32 34

D 1.13.1.3 (1 off. quaest.) D 1.13.1 pr (1 off. quaest.); ch.2 n.702–22 D 42.5.24.1 (Ulp. 63 ed.)

31 33

Ch.2 n.763–8 D 2.1.3 (1 quaest.)

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23. The Speech of Marcus and Commodus (1 book?) 1(?) —

The Digest contains two excerpts from a one-book work by Paul on this subject.35 The second of them contains a passage strongly reminiscent of Ulpian (quaestio in eo est . . . et ait Papinianus).36 The first phrase occurs, apart from this text, only in four texts of Ulpian.37 The et ait . . . formula is found, apart from this text,38 117 times in Ulpian and only once in Paul.39 The suspicion is that Paul drew on an earlier work by Ulpian on the same subject. He could have done so, since he was still active in the reign of Alexander.40 In the upshot, the works that, on the basis of style, are clearly genuine, comprise: On the Edict (81 books) On Sabinus (51 books) The Proconsul (10 books) Disputations (10 books) Tribunals (10 books) The Julio-Papian Law (20 books) Trusts (6 books) Taxation (6 books) Adultery (5 books) Appeals (4 books) The Aelio-Sentian Law (4 books) The Consul (3 books) Teaching Manual (2 books) The Market-Masters’ Edict (2 books) The Community Treasurer (1 book) The Urban Prefect (1 book) The Praetor for Guardianship (1 book) The works which are on linguistic grounds consistent with authenticity comprise: Excuses (1 book) The Quaestor (1 book) (hypothetically) The Speech of Marcus and Commodus (1 book?) Those which are neutral from a stylistic point of view, and which can be assigned to Ulpian only on the basis that the sources make this attribution and the evidence of the texts does not contradict it, comprise: 35 36 39

D 23.2.20; 23.2.60 (Paul 1 or. d. Ant. et Comm.) 37 38 D 23.2.60.4 (Paul 1 or. d. Ant. et Comm.) Ch.2 n.155 Ch.2 n.99–102 40 Ch.2 n.101–2 D 31.87.3 (14 resp.), 49.1.25 (20 resp.)

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5. Genuine Works The Prefect of Police (1 book) Consular Governors (1 book) Engagement to Marry (1 book)

Besides these works Ulpian annotated the Digest (Digesta) of Marcellus41 and the Replies (Responsa) of Papinian.42 He twice mentions his notes on Marcellus,43 and three passages from Marcellus in Justinian’s Digest record a note of Ulpian.44 In a fourth, where the identity of the annotator is not disclosed, he is the most likely author.45 These rather critical notes on an author whom Ulpian admired and used freely in his edictal commentary must belong to his youth. Ulpian may also have annotated Iavolenus’ Letters (Epistulae). In a text from these Letters a variation of the facts is introduced with ‘And what shall we say . . . ?’ (quid enim dicemus . . . ?) and continues ‘we shall not be in doubt’ (non dubitabimus).46 This last expression is paralleled, apart from this text, only in an Ulpian text.47 His hand must be suspected, the more so as the theme he introduces, that good faith might make a difference, is also the theme of one of his notes on Marcellus.48 Perhaps the manuscript of Iavolenus that Justinian’s compilers used came from one that had been in Ulpian’s possession. Ulpian’s technique in these notes is much the same as in his later writing. He questions whether the same result would follow in law if the facts were slightly different. Eight or nine passages in Papinian’s Replies record a note made by Ulpian.49 These notes were declared invalid by Constantine I to cut short disputes between lawyers and out of respect for Papinian’s eminence.50 Justinian reinstated them so that he, or in effect Tribonian, could decide whether in a given instance Papinian’s view was better than that of Paul, Ulpian, or Marcianus.51 In another text Justinian’s Digest does not say that a passage from Papinian’s Questions is a note,52 though it clearly is. Lenel thought that this note might be by Paul or Ulpian. It has a sentence beginning ‘and it has been laid down’ (et est quidem constitutum), which is characteristic of Ulpian.53 Ulpian’s notes on Papinian’s Replies and possibly his Questions 41 Lenel (1889) 1.595–620 nos.37, 47, 107, 118, 200; Reggi (1954) 21–86; Wolf (1959) 524–7, 532f.; Liebs (1997) §424.4 42 Lenel (1889) 1.883–926 nos.396, 414.2, 526, 528, 529, 578, 624, 625, 626; Balog (1913) 451–509; H. Krüger (1930) 303–12; Wieacker (1960) 341f.; Santalucia (1965) 99–146; Schulz (1961) 277–9; Liebs (1997) §424.5 43 D 9.2.41 pr (41 Sab.). 47.10.11.7 (57 ed.) 44 D 20.1.27 (Marc. 5 dig.), 26.7.28.1 (8 dig.), 29.7.9 (9 dig.) 45 D 29.7.19 (Marc. 14 dig.) 46 D 38.5.12 (Iav. 3 epist.); Eckardt (1978) 132f. 47 D 27.8.1.2 (36 ed.) cf. ch.2 n.171 (non dubitamus) in a typically future version 48 D 20.1.27 (Marc. 5 dig.) 49 D 50.8.4 (Pap. 1 resp.), 3.5.30.2 (2 resp.), 37.6.9 = P. Krüger (1881) 86, 88, 89 (all 5 resp.); Frag. Vat. 66 (7 resp.)?; P. Krüger (1884) 171, 176, 177; D 40.4.50 = P. Krüger (1884) 173, 179 (all 9 resp.) 50 51 CTh 1.4.1 (28 Sept. 321/4) C Deo Auctore 6 (15 Dec 530) 52 53 D 16.3.24 (Pap. 9 quaest.) Ch.2 n.77–81

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belong to his maturity, not his youth, since Papinian’s Replies are dated to the period 206 to 21254 and his Questions to the early or middle 190s.55 Finally we must take note of the 95 rescripts that Ulpian composed for Septimius Severus between April 203 and May 209.56 These forceful and selfconfident rulings stand comparison with any body of third-century rescripts. From Ulpian’s point of view, however, they count as an early work. Moreover, rescripts were written out, not dictated, so that they strike one as rather more formal than Ulpian’s later works. 54 56

55 Liebs (1997) §416 B5 Liebs (1997) §416 B7 Honoré (1994) 81–6; above ch.1 n.169–227

6 Sources and Scholarship H O W good a scholar was Ulpian? What first-hand sources did he use? Is his reputation for lucid and accurate exposition based on the accident that more of his work has survived than that of other Roman lawyers? Views have differed. In 1885 Pernice wrote an article, ‘Ulpian as a Writer’.1 In it he criticized Ulpian’s works, in particular On the Edict, as unoriginal and unsystematic. Each bit of the commentary was written in isolation, so that, over the whole work, the same subject recurred twice or more. The author used arguments of policy and convenience to support doctrinally wrong solutions. His work was aimed at judges with little legal expertise. He often cited the views of earlier lawyers from secondary sources without disclosing that he was doing so. ‘The aim of this contribution will be achieved’, Pernice concluded, ‘if it succeeds in putting people on their guard against Ulpian’s writings from various points of view. When he speaks in his own name he may have copied from others. When he cites others he does not usually go back to the original source. When he asserts positive, historical facts without authority his statements must be taken with the greatest reserve. When he attempts to develop the law on his own initiative, he lacks for the most part incisiveness and creative power.’2 In 1905 Ulpian found a partial defender in Jörs.3 In his article for Pauly–Wissowa Jörs came to the rescue so far as the use of sources was concerned. Ulpian had used a wider range of original legal writings than Pernice allowed for. When he used secondary sources he was following current practice. But Jörs was not wholehearted. He doubted that the Tyrian had composed the bulk of his works for the first time in the reign of Caracalla. That would have been impossible in the time available. In particular, adapting a point made by Mommsen,4 Jörs argued that Edict up to book 52 was drafted in the reign of Severus and then revised under Caracalla, when the later books were added. If Ulpian’s repute as a scholar rose from the ashes, his claim to speed of composition sank. The views of Pernice and Jörs were influenced by notions drawn from modern scholarship and, in part, from the intellectual climate of the time. Pernice failed to see that in the ancient world to cite from secondary sources was often a necessity. The author has read the original and made notes on it, but does 1 4

Pernice (1885) 443 Ch.7 n.71–86

2

Pernice (1885) 484

3

Jörs (1903) 5.1435, 1455

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not have it available at the time of writing. If he does, it is time-consuming to consult it. Generally papyrus must be unrolled to find the relevant passage and then rolled up again. To locate a text in a roll interrupts the flow of composition. So an author who wants to compose with reasonable speed must use as the basis of his text a small number of sources that lie open before him as he writes. He can supplement these with notes from his previous reading. Even with a well-stocked library, this is the best way to write a large-scale work. From the reader’s point of view it was in the ancient world no less difficult to look up citations. In a voluminous work such as Edict, it was particularly awkward for the reader to look up passages earlier or later than the one open before him. Out of consideration for his readers, not scholarly incompetence, Ulpian wrote each section of edictal commentary, so far as possible, as a selfcontained unit. This involved repetition, and some danger of inconsistency. The examples cited by Pernice of internal inconsistencies in Ulpian’s work are quite minor,5 and at times simply show that different interpretations of a term suit different legal contexts.6 But it is true that Ulpian, though he has a coherent philosophy of law,7 lacks a systematic analytical framework, such as that of the nineteenth-century pandectists. He does not use general notions to link together the different branches of the law, or try to deduce particular solutions from these notions. He attempts rather to solve legal problems in a way that seems appropriate to the context. His solutions aim to be beneficial (utile) or just (aequum) in the individual case. Pernice did not appreciate that Ulpian was catering for two types of reader. The busy judge or assessor or practitioner wants to discover the state of the law of, say, deposit as quickly as he can. He finds in Edict book 30 a commentary on deposit that includes general topics relevant to the law of deposit such as fault (dolus, culpa). But fault has to be explained again in the context of other contracts. The practising lawyer cannot be told to refer back to what has been said about it in some other context. On the other hand, the scholarly reader is given ample references to the literature and to imperial laws. These include, as we shall see, references by work and book to the main sources that Ulpian consults or summarizes as he writes. Pernice’s views are based, then, on a misunderstanding of the needs of Ulpian’s readers. Jörs, on the other hand, underestimated the capacity for work of scholars in the ancient world and their relative freedom from distraction. Nowadays it takes weeks or months to write a chapter or article. The ancient world was simpler. Post arrived sporadically, not every day. Methodical people, like Ulpian and Tribonian, with secretaries to take dictation, could devote 5

Pernice (1885) 451f.; Jörs (1903) 5.1458 e.g. different definitions of credere/creditor ‘lend, creditor’ in D 50.16.12 (6 ed.) and 12.1.1.pr (26 ed.) and of bona ‘goods’ in D 37.1.3 pr (39 ed.), 36.4.5.6 (52 ed.) and 50.16.49 (59 ed.) 7 Ch.3 6

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themselves to their work day after day, week after week. They were expected to be regular and assiduous. In seeking, then, to assess Jörs’s opinion that Ulpian could not have written for the first time what he appears to have written under Caracalla, we must disabuse ourselves of the atmosphere of a modern law faculty or government office. If Ulpian’s career has been correctly dated in chapter 1,8 he held the office of secretary for petitions (a libellis) from 202 and began writing systematically only from 213. He had at least ten years to read and make notes in the intervals of official duty. He had access to past imperial rescripts and to recent constitutions. He could arrange excerpts from what he read under title headings according to the scheme of the praetor’s edict and the Digests (Digesta) of authors such as Celsus, Julian, and Marcellus. When the time came to launch the ambitious programme of 213–7 Ulpian needed to do little original research. It was enough to return to the main sources and to supplement these from notes, weaving the whole together in a way that was coherent from the point of view of topic rather overall structure. The sources having been assembled, he saved time and kept the flow by dictating.9 I. THE MAIN SOURCES

Apart from Labeo and Paul, Ulpian’s main sources are not in doubt, at least for the major commentaries On the Edict and On Sabinus. He used the Questions (Quaestiones) and Replies (Responsa) of Papinian, the Digests (Digesta) of Celsus, Julian, and Marcellus, and the commentaries of Pomponius On the Edict and On Sabinus. Pernice also listed among main sources the Questions and Replies of Scaevola.10 There is no evidence, however, that Ulpian used Scaevola’s Replies, and references to his Questions are sporadic. Pernice accuses Ulpian of using Scaevola’s Questions without acknowledgement. But Ulpian tends to generalize what Scaevola presents as the solution to a problem presented by a particular set of facts.11 Pemice was right, however, to stress that in the major commentaries Ulpian often took a single source as the main basis of his exposition of a topic. Thus on false guardians12 Ulpian relies mainly on Pomponius. For possession against the terms of a will13 he follows Marcellus. On the Lex Aquilia14 Celsus is the leading source. On legacy of usufruct or use15 Julian is the model, with supplements from Celsus and Marcellus. Deposit16 draws on Pomponius, Julian, and Marcellus. In many titles On the Edict and On Sabinus the author seems to use a selection of these sources and passes from one to the other as occasion prompts. 9 11 12 13 15

10 Hagendahl (1971), Schlumberger (1976) Pernice (1885) 459 Compare D 46.3.27 (Ulp. 28 ed.) with 45.1.131.1 (Scaev. 13 quaest.) Quod falso tutore auctore gestum esse dicatur 14 De bonorum possessione contra tabulas Ad legem Aquiliam 16 De usufructu et usu legato Depositi vel contra

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Is this impression correct? One way to test it is to analyse the passages in which Ulpian cites an author by book or by work and book, e.g. Iulianus libro septimo digestorum or Pomponius libro vicensimo quarto. When the reference is in this form the author implicitly claims to have read the original. He risks the reader’s wrath if the passage cannot be found. Certainly there are cases where the citation is at one remove (A in such-and-such a book cites B’s opinion).17 But if it is in general right to assume that the citations by book and/or work (henceforth called ‘book citations’) point to a source that the author claims to have read in the original, the works most often cited in this way are likely to have been the sources most consulted during the process of composition. References of this sort are unevenly distributed among the Digest lawyers. The table that follows gives the number of book citations for each author who makes one, along with the percentage which his work forms of the whole Digest.18 From this table the average frequency of book citations in each author’s work can be derived. Some prominent authors, such as Julian and Marcellus, make no book citations. In general, book citations before Ulpian are rare. Authors have one or two such citations for each 1 per cent of material included in the Digest. Ulpian, on the other hand, has about a dozen, and, following him, Marcianus. So Ulpian gives book citations at five or six times the rate of his predecessors. He purports to be more scholarly or more helpful to his readers Digest lawyers: frequency of book citations Author

Refs./book

% of Digest

Refs./1% of Digest

Labeo Iavolenus Celsus Pomponius Africanus Scaevola Callistratus Papinian Paul Ulpian Marcianus

4 2 1 3 2 2 3 2 32 520 28

1.08 1.01 0.91 4.41 1.74 4.92 1.12 5.69 16.74 41.56 2.43

3.7 2.0 1.1 0.7 1.1 0.4 2.7 0.4 1.9 12.5 11.5

17

D 33.9.3.2 (Ulp. 22 Sab., citing Aristo, who cites Labeo libro nono posteriorum) Honoré–Menner (1980) intro. para. 4 for the percentages and fiches 1, 5, 6, 11, 15, 19, 25, 34, 41, 45 and 62 for the libro/libris references 18

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than they. Which authors does he cite? Five stand out, as will be seen from the table that follows, which gives the number of Ulpian’s book references to other authors. Legal authors cited by Ulpian by book Julian 172 Pomponius 84 Papinian 65 Marcellus 63 Celsus 62 Neratius 17 Labeo 11 Pedius 9 Cassius 7 Scaevola 7 Ofilius 6 Sabinus 5 Maecianus 3 Mucius 3 Africanus 1 Arrianus 1 Puteolanus 1 Servius 1 Tertullian 1 Venuleius Saturninus 1 The book citations for five authors, Julian, Pomponius, Papinian, Marcellus, and Celsus are by far the most numerous. Why did Ulpian choose them? Papinian is the only contemporary to appear in the list. Clearly Ulpian was a close associate of Papinian, the only contemporary lawyer whom he cites in the imperfect, which points to oral discussion.19 A hint that he learnt something from Papinian personally is worth noting. Ulpian is reticent about his teachers. Apart from himself,20 he uses noster of no one except the emperor,21 meus only of a fellow citizen of Tyre.22 In Edict book 69 he discusses the common view (quod volgo dicitur) that we can keep possession of winter and summer pastures during the intervening months when we are away by intention alone (animo). Ulpian says that he learnt (didici) that Proculus, who said that we can, meant this as an example of a general principle about retaining possession.23 From whom did he learn this? A difficult passage of Papinian,24 which has been altered by the compilers, seems to treat the 19 22 23 24

20 Ch. 2 n.300 21 e.g. ch.7 n.21–4, 30–6, 50–6, 88–90 D 24.1.23 (6 Sab.) D 45.1.70 (11 ed: populari meo Glabrioni Isidoro) D 43.16.1.25 (69 ed.) cf. 41.2.27 (Proc. 5 epist.) D 41.2.44.2; 41.2.46 (Pap. 23 quaest).


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temporary abandonment of winter and summer pastures as an example of a general rule that possession of land left temporarily unoccupied may be retained by intention alone. Was it, then, from Papinian that Ulpian learned to interpret the remark of Proculus in this way? Despite his admiration for Papinian, whose Replies (Responsa) he annotated, Ulpian does not use the whole of his work as a source. From the thirtyseven books of Questions he cites up to book 19.25 Perhaps Justinian’s edictal committee struck out later book citations.26 From Papinian’s nineteen books of Replies we have book citations by Ulpian up to book 11.27 None can be plausibly assigned to any later book. The explanation is perhaps that the Replies were composed, at least from book 14 onwards,28 after the death of Severus. The later books may have been available too late for Ulpian to digest before, in 213, he launched his five-year programme of writing. After that there was no time to keep abreast of new material apart from imperial constitutions. The earlier books of Papinian’s Replies must however have been available before. In Trusts Ulpian’s mentions an oral discussion in which he cited the ninth book of Papinian’s Replies.29 The context is probably a disputation. After 213 Ulpian can hardly have had time for disputations, so that probably at least the first nine books of Papinain’s Replies were available earlier. They may have been published or made available to a few chosen lawyers. Ulpian annotated the Replies and would have used the later books had they been available. But, again, it is not certain that his annotations stretched beyond book 9.30 The four other principal sources—Celsus, Julian, Pomponius, and Marcellus—all belong to the first two-thirds of the second century. The most recent of them, Marcellus, was an author whose Digest, in thirty-one books,31 Ulpian annotated and whose views he often adopted. Marcellus was a pupil of Julian, whose work dominated the jurisprudence of the second century. This is reflected in the number of times Ulpian cites him by book, twice as often as the next most cited author, Pomponius. All but one of the Julian citations probably refer to his ninety-book Digesta.32 The remaining one refers to Julian’s edition of Minicius.33 Ulpian may have had a substantial collection of Julian’s writings, including unpublished manuscripts, for he says of Julian on six occasions that he ‘very often writes’ or ‘very often wrote’34 a phrase he uses otherwise only once of a legal writer, of a collection of materials by Vivianus.35 25 28 29 30 31 32 33 34

26 27 D 7.8.4.1 (17 Sab.) D 29.2.20.3, 4 (61 ed.) D 30.41.5 (21 Sab.) D 34.9.18 (Pap. 14 resp: divus Severus) D 35.1.92 (5 fid: Papinianum libro nono responsorum scribere referebam) Lenel (1889) 1.926, citing P. Krüger (1884) 171, 177 Lenel (1889) 1.590–632; Kunkel (1967) 213–4; Liebs (1997) §415.4 Lenel (1889) 1.318–484 Lenel (1889) 1.484–90; Kunkel (1967) 157–66; Liebs (1997) §414 35 Saepissime scripsit/scribit Honoré–Menner (1980) fiche 71; Honoré (1964) 13

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The references to Pomponius36 are fewer than half those to Julian, but in long stretches of major commentary Ulpian clearly followed Pomponius’ On the Edict (83 books)37 and On Sabinus (36 books).38 There are also references to Pomponius’ Letters (Epistulae),39 to his Readings (Variae lectiones),40 and his work on stipulations,41 the latter not available to Justinian’s compilers. Ulpian probably read these lesser works, but used them only marginally. Against fifty-one citations from Pomponius On the Edict and twenty-four from On Sabinus we have nine from lesser works. Pernice pointed out that Ulpian used Pomponius in fits and starts. Some titles seem to be derived almost exclusively from him; in others he is absent. The reason for this perhaps lies in the scale on which Pomponius wrote. His On the Edict outran all other edictal commentaries. Hence for many topics Ulpian, working to a plan that confined his edictal commentary to a fixed number of books, could not afford to reproduce Pomponius in detail. In others, where Pomponius was relatively economical, he could. The last major source is Iuventius Celsus the younger.42 Ulpian cites by book his Digest (Digesta), in 39 books,43 his Letters (Epistolae),44 and his Questions (Quaestiones).45 Only the first of these was available to Tribonian, and all but three of Ulpian’s citations appear to come from it. The sources on which Ulpian principally relied in his major commentaries were therefore seven: Julian’s Digest Marcellus’ Digest Celsus’ Digest Pomponius On the Edict Pomponius On Sabinus Papinian’s Questions Papinian’s Replies

171 book citations from 90 books 63 book citations from 31 books 59 book citations from 39 books 51 book citations from 83+ books 24 book citations from 36 books 36 book citations from 37 books 28 book citations from 19 books

Relatively speaking Papinian’s Replies (if we assume that Ulpian had only the first fourteen books available), Marcellus’ Digest, and Julian’s Digest were the most thoroughly excerpted. Together the seven sources provided material for almost every title of Ulpian’s major commentaries but not for some of the more specialized works. But is the list of major sources complete? In particular ought Labeo and Paul to feature in it?

36 37 39 41 42 44 45

Lenel (1889) 2.15–159; Kunkel (1967) 170–1; Liebs (1997) §422 38 Lenel (1889) 2.15–44 cf. D 38.5.1.14, 27 (Ulp. 44 ed.) Lenel (1889) 2.86–148 40 Lenel (1889) 2.52–3 Lenel (1889) 2.53–8 Lenel (1889) 2.151; D 7.5.5.2 (18 Sab.) 43 Lenel (1889) 1.127–170; Kunkel (1967) 146–7 Lenel (1889) 1.127–69 Lenel (1889) 1.169; D 4.4.3.1 (11 ed.) Lenel (1889) 1.169; D 12.1.1.1 (26 ed.); 28.5.9.2 (5 Sab.); 34.2.19.3 (20 Sab.)


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In the Digest Ulpian cites the innovative Augustan lawyer Antistius Labeo by book only eleven times.46 Three come from Labeo’s commentary on the urban edict,47 one from his work on the edict of the peregrine praetor,48 six from his Posthumous Works (Posteriora),49 one from his Plausible Views (Pithana).50 One would expect more. Ulpian’s references to Labeo total 350 overall, which puts Labeo second only to Julian, who is cited 601 times. Is the reason for the small number of book citations that Ulpian nearly always cited Labeo at second hand? There is evidence that Labeo may be underrepresented as regards book citations. Ulpian cites earlier authors by book throughout the Sabinian commentary and sporadically in certain other works: Trusts, Disputations, Tribunals, Office of Proconsul, Office of Quaestor, Appeals. In Edict, however, book citations, though numerous, continue only till the end of book 52.51 Is this because, as Jörs thought,52 they were put in during Ulpian’s supposed first draft, made in the reign of Severus, which stopped at book 52? Or is this feature due to Justinian’s compilers, who stopped excerpting references to book-numbers at this point? According to the theory set out in chapter 8 Ulpian reached book 56 by the end of 215. He continued with Sabinus books 26 to 51 in 216.53 Even if Ulpian changed his way of citing at the end of 216 one might expect book citations in books 53 to 56 On the Edict. There are none. Perhaps this was an accident of excerpting. Moreover Appeals (De appellationibus), probably to be assigned to 217,54 does contain a book citation.55 Even more telling, passages where Ulpian cites his source with inquit, ‘his words are’, introducing an exact quotation, usually run parallel to those in which he cites by book. Inquit passages are found in the later books of Edict.56 The aim of these two devices is similar, to give the reader the exact words of the source or point the reader to the place where he can find the exact words. So Ulpian is not likely to have kept inquit but jettisoned citations by book in the last twenty-nine books of Edict. More probably the compilers struck out book citations but kept inquit. To strike out book citations did not change the sense of the text, but striking out inquit would. In my view the edictal committee, which progressively reduced the amount of material it excerpted, followed this policy.57 Its second stint in excerpting 46

Lenel (1889) 1.502–58; Kunkel (1967) 32–4 48 D 4.3.9 4a (11ed.) D 11.4.1.5 (1 ed.); 50.16.19 (11 ed.); 4.8.7 pr (13 ed.) D 4.3.9.3 (11 ed.); 28.5.13.5, 6; 28.5.17.5 (7 Sab.); 7.8.2.1 (17 Sab.); 33.9.3.2 (22 Sab.) 50 D 46.4.8.2 (48 Sab.) 51 D 39.1.1.10; 39.1.5 pr; 39.1.5.16 (all 52 ed. citing Cels. 10 dig, Iul. 12 dig and Iul 49 dig. respectively) 52 53 54 Jörs (1903) 1439–40 Ch. 8 n.15–6 Ch. 9 n.115–21 55 D 49.4.1.14 (1 appell., citing Iul. 40 or 45 dig.) 56 D 47.10.13.4 (57 ed.); 43.8.2.40 (68 ed.); 43.16.1.35; 43.17.3.4 (69 ed.); 41.2.6 pr; 43.19.1.11 (70 ed.); 43.24.3.4; 43.23.1.8 (71 ed.); 39.1.21.7 (81 ed.) 57 Honoré–Rodger (1970) 246, 296–306 47 49

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Ulpian’s Edict began about the middle of book 52.58 If the stint really began at book 53 this would explain the absence of book citations from then on better than a supposed change of practice by Ulpian himself. The other committees need not have followed suit, so that a book citation, as mentioned, is found in Appeals, probably excepted by the Sabinian committee in 217.59 It is to be noted that book citations are absent from Ulpian’s Market-Masters’ Edict, which was composed about 213, but which Justinian’s compilers excerpted after book 81 On the Edict. The change of policy stemmed from the compilers, not Ulpian. Despite Jörs, then, Ulpian probably continued to cite sources by book throughout Edict. This bears on the paucity of book citations of Labeo in the last block of edictal commentary, when Labeo is mentioned no fewer than 105 times. Indeed in this part of On the Edict he outstrips all other sources, including Julian. The compilers have obscured the extent to which Ulpian, with the original text of Labeo before him, cited Labeo by book. I mentioned Ulpian’s use of inquit, which introduces an exact quotation. Ulpian refers to named authors with inquit in the Digest 165 times. There are only thirty uses of inquit by other Digest authors: Labeo 4, Celsus 1, Gaius 3, Pomponius 1, Africanus 3, Paul 14, Marcianus 4. Ulpian purports, therefore, to cite another author verbatim far more often than his predecessors. The authors whom he cites in this way largely correspond to those in the list of book citations set out earlier.60 Here is the list for inquit: Julian 57, Pomponius 20, Celsus 16, Labeo 13, Marcellus 12, Papinian 12, Pedius 7, Vivianus 5, Masurius Sabinus 3, Neratius 3, Caelius Sabinus 3, Scaevola 2, Africanus 2, Aristo 2, Cassius 1, Maecianus 1, Nerva, 1, Octavenus 1, Fulcinius 1, Quintus Mucius 1, Ofilius 1.

The main difference between this list and the earlier list of book citations is that Labeo appears about as often as Celsus, Marcellus, and Papinian. So it seems that Labeo should be added to the list of Ulpian’s main original sources. It is not likely that the verbatim citations of Labeo are taken from Celsus or Pomponius, since these authors hardly ever cite with inquit or by book. Ulpian cites Labeo with inquit in Edict books 31, 53, 57, 62, 68, 71, 76, and 81 and Sabinus books 17 and 49.61 More than half the inquit references come from the last segment of Ulpian’s edictal commentary. This supports the view that Justinian’s edictal committee struck book references from this block of edictal commentary and so led to an underestimate of the extent to which Ulpian used Labeo as an original source. Jörs saw more clearly than 58

Bluhme (1820/1960) 279f.; 59f.; Honoré–Rodger (1970) 277–9, 287, 298–9 60 Above n.18–9, 45–6 Ch.9 n.115–21 61 D 17.1.10.8 (31 ed.); 39.2.15.33; 39.3.4 pr (53 ed.); 47.10.13.4 (57 ed.); 42.5.15.1 (62 ed.); 43.8.2.40 (68 ed.); 43.23.1.8; 43.24.5.12; 43.24.7.3; 43.30.3.4 (71 ed.); 44.4.4.15 (76 ed.); 39.1.12 pr (81 ed.); 7.1.12 pr (17 Sab.); 18.4.2.17 (49 Sab.) 59


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Pernice that, while many citations of Labeo are taken from secondary sources, quite a lot are not.62 The list of sources referred to by book or with inquit excites puzzlement because, of contemporary authors, only Papinian is thus cited. Why does Ulpian not cite Julius Paulus (Paul),63 a younger contemporary who had published works On the Edict and On Sabinus shortly before, and had written several monographs on topics that were to concern Ulpian also? Ulpian does not cite Tryphoninus,64 an eminent contemporary, or Callistratus,65 the latter perhaps because he was a provincial writer. He cannot have been ignorant of Paul’s published works. Yet he seems to overlook them. Was he, as has often been suggested, motivated by personal rivalry?66 The suggestion has some apparent merit. Ulpian wrote on many of the topics that Paul had covered not long since, but adopts different methods. For instance he cites by book or with inquit far more often than Paul.67 He seems to be writing for a more scholarly readership. He is more concerned than Paul to justify the provisions of the praetor’s edict.68 But this last feature of Ulpian’s work can be explained by the need to convince the new citizens, subject since the Antonine constitution to Roman law, of the merits of the edict. He may have thought that Paul’s works needed to be recast to meet the new dispensation. Even if there was some rivalry, this does not imply that he had a low opinion of Paul as a lawyer. There is some reason to think that Ulpian, in composing his major commentaries, made use of Paul’s work. It would, in the first place, have been strange not to profit from recent publications by a lawyer of standing and a member of the imperial council. Secondly, as an earlier study suggested,69 it is easier to explain the textual chains in the Digest if we suppose that for long stretches the main commentaries used by Justinian’s compilers ran parallel. This made possible a technique of excerpting by which, for example, Ulpian, Paul, and Gaius On the Edict could be read together.70 Ulpian’s was taken as the main text. Short excerpts from the others were added when their commentaries diverged. This parallelism was only possible, if, to take the same example, Ulpian used Paul On the Edict and Paul used Gaius On the Provincial Edict. The argument is no doubt suggestive rather than compelling. There are also a few passages in which it seems likely that Paul used Ulpian as a source, again without naming him.71

62 Jörs (1903) 1477f, noting D 39.3.1.20 (53 ed.: apud Labeonem autem invenio relatum); 7.8.2 (17 Sab: apud Labeonem memini tractatum) against Pernice (1885) 476f. 63 Lenel (1889) 1.951–1308; Kunkel (1967) 244–5; Liebs (1997) §423 64 Lenel (1889) 2.351–378; Kunkel (1967) 231–3; Liebs (1997) §417.3 65 Lenel (1889) 1.82–106; Kunkel (1967) 235; Liebs (1976) 310f., 323f.; (1997) §430.1 66 67 68 e.g. H. Krüger (1912) 298 Above n.18–9 Ch.3 n.143–63 69 70 Honoré (1963) 362 Honoré–Rodger (1970) 250f. 71 D 23.2.60.4 (1 or. d. Ant et Comm.), ch.5 n.35–40; and perhaps 27.9.13.1 (1 or. d. Severi)

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A further modest argument in favour of Ulpian’s use of Paul rests on the resemblance of their choice of words. This was tested statistically in the following way. Fifty common Latin words were selected (e.g. si, non, est, et) and the frequency with which the various jurists represented in the Digest use them was ascertained with the help of Honoré–Menner (1980). There are thirteen authors from whom we have enough Digest material to make reliable estimates of the frequency with which they use these words. For each of the fifty words they can be ranged in order according to the frequency with which they use the word. For each pair of authors we can measure whether one member of the pair tends to come closer to or further from the other member of the pair in these lists. This can be measured by a Spearman nonparametric correlation, which gives an estimate of the probability that the resemblances between the members of each pair are not due to chance. A high probability of this, close to unity, is therefore an indication of a close resemblance in point of style, and a low correlation points to a lesser probability of a close resemblance. Ulpian correlates with each of the other twelve authors on the basis of the fifty common words and expressions as follows: Ulpian Marcianus Paul Pomponius Gaius Tryphoninus Julian Marcellus Modestinus Callistratus Africanus Papinian Scaevola

1.0000 0.9780 0.9774 0.9545 0.9491 0.9401 0.9390 0.9343 0.8939 0.8768 0.8646 0.8569 0.7700

The results of this calculation are plausible. The last five writers in the table are authors of whom Ulpian make little use, except for Papinian, whose style is markedly different from Ulpian’s, perhaps in part because Papinian’s provincial connection was with Africa and Ulpian’s with Syria. Marcianus, whose correlation with Ulpian is close to unity, copies him in many respects, for instance in often giving book citations of earlier writers. Marcianus’ main sources are like Ulpian’s. He cites Papinian 14 times, Marcellus 10, Pomponius 8, Julian 7, Celsus and Scaevola 4 each.72 Eight citations of Papinian,73 7 of 72

Honoré–Menner (1980) fiches 19, 20 D 20.4.12.5, 6, 9 (Marci. 1 hyp.); 20.1.11.2 (1 hyp.); 48.21.3; 49.14.18.10 (1 del.); 48.17.1.4 (2 pub. iud.); 30.113.5 (7 inst.) 73


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Marcellus,74 5 of Pomponius,75 3 of Julian,76 2 of Celsus77 and one each of Labeo,78 Scaevola,79 and Chrysippus80 are by book. The resemblance to Ulpian’s use of sources is striking, and on the statistical test explained no two legal authors in the Digest are as close in word use as Ulpian and Marcianus, who was probably his pupil. Marcianus was primarily a teacher, as his sixteenbook advanced Teaching Manual (Institutiones) shows.81 The correlation between Ulpian and Paul is statistically hardly less striking than that between Ulpian and Marcianus. This is not to be accounted for merely by the spirit of the age or the fact that they were contemporaries. Papinian, Tryphoninus, and Callistratus were also contemporaries, but their word use is a good deal less close to Ulpian’s that that of Paul. The simplest explanation is that Ulpian quite often copied Paul. As Pernice noted, he also copies from the next closest person on the list, Pomponius.82 Whether Ulpian used Gaius, the next closest to Ulpian after Pomponius, is less certain. That Paul used Gaius is clear enough. For example the phrase ex diverso, one of Gaius’ favourite phrases, which comes in twelve texts of his Institutes,83 also comes in eleven Digest texts of Paul84 and otherwise only once in Papinian85 and once in Ulpian.86 The Ulpian passage may have been taken from Paul. So the relatively high correlation between Ulpian and Gaius may merely reflect the use by Ulpian of Paul and by Paul of Gaius. Direct use of Gaius by Ulpian is not ruled out, but the evidence does not require it. If Paul was one of Ulpian’s major sources, why does he not cite him by name? This can be explained even if the two lawyers were on good terms and respected one another’s work. So far as I can see, the Severan lawyers never cite a living author by name. Papinian cites no one more recent than Africanus.87 Callistratus stops at Julian88 and Papirius Fronto.89 Tryphoninus, writing under Severus or Caracalla, mentions Papinian, but only as secretary for petitions, not as an author.90 The most recent author he cites is Scaevola.91 Ulpian cites the Questions and Replies of Papinian in Edict, Sabinus, Disputations, 74 D 12.4.13 (Marci. 3 reg.); 40.5.55.1 (4 reg.); 34.9.3 (5 reg.); 40.15.1.4; 49.14.18.10 (1 del.); 30.114.3 (8 inst.); 25.7.3.1 (12 inst.) 75 D 20.1.13.2; 20.2.2, 5 pr (1 hyp.); 41.2.43.1 (3 reg.); 22.1.32 pr (4 reg.) 76 D 20.5.7 (1 hyp.); 38.2.22 (1 inst.); 36.2.20 (6 inst.) 77 D 28.5.52.1 (3 reg.); 36.1.34 (8 inst.) 78 D 18.1.45 (4 reg.) 79 D 20.3.1.2 (1 hyp.) 80 D 1.3.2 (1 inst.) 81 Lenel (1889) 1.652–75; Honoré (1994) 68, 94–5; Kunkel (1967) 258–9; Liebs (1983a) 497f.; Liebs (1997) §428.1. 82 Pernice (1885) 459, 463, 473 83 Gaius, Inst. 1.39, 78, 133; 2.64, 137, 245; 3.84, 126, 201; 4.3, 77, 109 84 D 6.1.35 pr (21 ed.); 47.10.6 (55 ed.); 10.2.41 (1 decr.); 26.7.53; 32.97 (2 decr.); 8.4.18 (1 man.); 24.3.17 (7 Sab.); 27.1.31.4 (6 quaest.); 46.1.56.1 (15 quaest.); 18.1.57.2 (4 Plaut.); 44.7.47 (14 Plaut). 85 86 D 22.3.26 (Pap. 20 quaest.) D 21.1.17.14 (Ulp. 1 ed. cur.) 87 88 D 35.1.71 pr (Pap. 17 quaest.) D 5.1.36.1 (Call. 1 cogn.); 49.14.3 pr (3 iur. fisc.) 89 90 D 14.2.4.2; 50.16.220.1 (Call. 2 quaest.) D 20.5.12 pr (8 disp.) 91 D 20.5.12.1 (8 disp.); 49.17.19 pr (18 disp.)

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Tribunals, and Trusts. But all these works by Ulpian, apart from the first five books of Edict, were written in 213 or later,92 when Papinian, who was killed in later 212, was dead.93 In these first five books, written when Papinian was alive,94 Ulpian refers to him only once in the words ‘I know Papinian gave a reply,’ which is a reminiscence, not a quotation from a published work.95 It is true that in On Sabinus book 6 Ulpian appears to cite his younger contemporary Marcianus.96 But Sabinus went into a second edition,97 and this isolated reference to Marcianus could be a later addition to the text. There is no parallel elsewhere in Ulpian to the sentence ending ut . . . videtur,98 an untypically weak ending. This phrase may therefore belong to the second edition of On Sabinus, the date of which we do not know. Marcianus himself, writing after the death of Caracalla, cites no one later than Papinian,99 not even Ulpian, which is remarkable given Ulpian’s evident influence over him. Paul once refers to a reply of Ulpian cited to Paul by someone consulting him.100 He disagreed with it. This is not a citation from a published work, and, though Ulpian gave replies (responsa), it is not clear that he published any.101 In five texts Paul refers to Papinian. In one he speaks of Papinian hearing a case as praetorian prefect.102 Two others mention views expressed by Papinian as a member of the Severus’ council.103 The other two passages cite opinions from book 5 of Papinian’s Replies.104 The first is from a work composed by Paul in Caracalla’s sole reign.105 The other cannot be dated, but the passage in question is probably copied from a work of Ulpian.106 In that case it was written in 213 or later.107 There is nothing to show, then, that Paul, any more than the other Severan writers, cited living authors. Given this, the problem is not to explain, by reference to rivalry, why Paul and Ulpian do not overtly cite one another but rather why the Severans, unlike their predecessors, do not refer to living authors. They may have been afraid of giving offence, of iniuria. If it is in order to cite a living author, it may be insulting not to cite what he has written, or to disagree with it. It is safe, on the other hand, to express one’s opinion of a dead author or to pass over his view in silence. Until recently English judges had a convention that the works of living authors should not be cited in court.108 The point was to save both judge and author embarrassment. The Severan lawyers may have had a similar sensitivity. 92 94 95 96 97 99 100 103 104 105 106 108

93 Dio 78.4.1a; Liebs (1997) §416 Ch.9 n.65–6, 11–34, 140 Perhaps in early 211: ch.1 n.249–250 D 2.14.7.5 (4 ed: responsum scio a Papiniano) D 28.1.5 (6 Sab: iam enim complesse videtur annum quintum decimum, ut Marciano videtur) 98 Honoré–Menner (1980) fiche 74 C. Cordi (16 Nov 534) 3 Fourteen times e.g. D 48.16.14.5, 10, 13 (1 SC Turpillianum) 101 Ch.10 n.4–5, 219–57 102 D 12.1.40 (3 quaest.) D 19.1.43 (5 quaest.) D 29.2.97; 49.14.50 (3 decr.) D 27.9.13.1 (Paul 1 or. d. Sev.); 23.2.60.4 (1 or. d. Ant. et Comm.) D 27.9.13 pr (1 or. d. Sev: imperator Antoninus et divus pater eius) 107 Ch. 9 n.137–40 Ch.2 n.101–2, 155, 832 Nicholls v. Ely Beet Sugar Factory Ltd. [1936] Ch. 343, 349


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II. OTHER FIRST-HAND SOURCES

The list of authors cited by book or with inquit affords evidence of other firsthand sources used by Ulpian. I begin with those nearest to him in time. (a) Cervidius Scaevola109 cannot be accounted a major source but Ulpian cites him seven times by book110 and twice with inquit.111 All the explicit references are to Scaevola’s Questions (Quaestiones). In all he mentions Scaevola 31 times.112 It is not clear that Ulpian used any other work of the Antonine lawyer who taught Paul and Tryphoninus. He refers to him in his major commentaries and four times in his Disputations, which correspond to Scaevola’s Questions.113 There is one citation in Ulpian’s Adultery,114 which may however be taken from Paul’s monograph on the same subject.115 (b) Sextus Caecilius Africanus,116 a pupil of Julian who was active under Pius, is cited once by book117 and twice with inquit.118 There is no evidence that Ulpian used the nine books of his Questions, which were available to Justinian’s compilers.119 The work Ulpian refers to in On Sabinus is Africanus’ otherwise unknown Letters (Epistolae) in at least twenty books.120 Perhaps the work consisted of Africanus’ correspondence with Julian, which Ulpian had acquired. The inquit passages come in Ulpian’s Adultery.121 In all Ulpian cites Africanus only eight times.122 His relative neglect of a wellknown, though unoriginal, author may show that he preferred to rely on the text of Julian rather than Africanus’ comments on his teacher’s work. (c) Ulpian cites Volusius Maecianus,123 a member of Marcus’ judicial council and prefect of Egypt, thrice by book124 and once with inquit.125 All four passages come from Maecianus’ sixteen books on Trusts. Ulpian mentions Maecianus sixteen times in all,126 ten in his Trusts127 and thrice in On Sabinus.128 One citation in On Sabinus is to Maecianus’ Trusts.129 Ulpian must 109

Lenel (1889) 2.215–322; Kunkel (1967) 217–9; Liebs (1997) §415.6 D 4.4.11.1 (11 ed.); 41.3.10.2; 50.16.26 (16 ed.); 13.4.2.3 (27 ed.); 28.6.10.6 (1 Sab.); 7.1.25.6 (18 Sab.); 41.1.23.3 (43 Sab.) 111 D 13.4.2.3 (27 ed.); 41.3.10.2 (16 Sab.) 112 Honoré–Menner (1980) fiche 71 113 D 12.1.7 (Ulp. 1 disp.); 23.3.43 pr (3 disp.); 36.1.23 pr (5 disp.); 35.2.35 (6 disp.) 114 D 23.5.13.4 (5 adult) 115 Paul was a pupil of Scaevola: D 2.14.27.2 (Paul 3 ed.); 23.3.56.3 (Paul 6 Plaut.); 28.2.19 (Paul 1 Vitell.); Kunkel (1967) 244 116 Lenel (1889) 1.1–36; Kunkel (1967) 172–3; Liebs (1997) §415.2 117 D 30.39 pr (Ulp. 21 Sab.) 118 D 48.5.14.1 (2 adult.); 40.9.12.6 (4 adult.) 119 Above n.18–9, 59–61 120 D 30.39 pr 121 D 48.5.14.1 (Ulp. 2 adult.); 40.9.12.6 (Ulp 4 adult.) 122 Honoré–Menner (1980) fiches 50 (Africanus), 51 (Caecilius) 123 Lenel (1889) 1.575–88; Kunkel (1967) 174–6; Liebs (1997) §419.2 124 D 36.1.17.6, 13 (Ulp. 4 fid.), 7.1.72 (17 Sab.) 125 D 36.1.17.6 (4 fid.) 126 Honoré–Menner (1980) fiche 63 127 D 32.11.1, 15 (2 fid.); 36.1.1.8 (3 fid.); 36.1.17 pr, 3, 6, 8, 9 twice, 13 (4 fid.) 128 D 7.4.3 pr (7 Sab.); 7.1.72, twice (17 Sab.) 129 D 7.1.72 (17 Sab.) 110

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have used this work directly. In The Proconsul Ulpian cites Maecianus when dealing with a law about murder, the Lex Pompeia de parricidiis.130 This probably refers to Maecianus’ fourteen-book work on public prosecutions (De iudiciis publicis), which was available to Justinian’s compilers,131 and possibly to Ulpian. It is not clear from what intermediate source he could have cited it. (d) Neratius Priscus,132 a leading lawyer of the reign of Trajan, is cited seventeen times by book133 and three times with inquit.134 The citations show that Ulpian used Neratius’ Parchments (Membrana),135 Replies (Responsa),136 Letters (Epistulae),137 and his edition of Plautius.138 Only the first two reached Justinian’s compilers. The citations come in Ulpian’s On the Edict, his On Sabinus, and once in Disputations. In all Ulpian names Neratius as a source seventy-six times.139 A good many of these citations are probably first-hand. They include references in books on the praetor’s and the market-masters’ edicts from which the edictal committee seem to have struck out book citations.140 (e) Ulpian cites Vivianus, a late first- or early second-century writer, five times with inquit but never by book.141 The reason for the lack of book citations is probably, again, that many of the citations come in the later books On the Edict or in The Marker-Masters’ Edict. Scaevola142 and Ulpian used Vivianus’ collection of material, which included excerpts from republican authors. They refer to it with phrases such as ‘it is stated in Vivianus’ or ‘I find in Vivianus’. Ulpian cites him 19 times in all, always in On the Edict or The Market-Masters’ Edict.143 Justinian’s compilers did not have his work to hand. ( f ) Sextus Pedius, a writer of the second half of the first century AD,144 is cited nine times by book145 and six times with inquit.146 Ulpian mentions him forty times in all.147 His works were not available to Tribonian, but he composed a commentary on the praetor’s edict in at least twenty-five books. This 130

131 Lenel (1889) 1.587–8 D 48.9.6 (8 off. proc.) Lenel (1889) 1.763–88; Kunkel (1967) 144–5 133 D 5.3.13.3 (15 ed.); 8.3.3 pr, 2, 3 twice; 8.3.5.1 (17 ed.); 12.4.3.5 (26 ed.); 14.6.7 pr ., twice); 15.1.9.1 (29 ed.); 19.1.11.12 (32 ed.); 13.1.12.2 (38 ed.); 7.1.7.3, 7.2.3 pr (17 Sab.); 33.7.12.35, 43 (20 Sab.); 36.1.23.3 (1 disp.) 134 D 10.4.9.8 (24 ed.); 33.7.12.43 (20 Sab., twice) 135 D 5.3.13.3 (15 ed.); 8.3.3 pr, 2, 3 (17 ed.); 12.4.3.5; 13.1.12.2 (26 ed.); 7.1.7.3 (17 Sab.) 136 D 14.6.7 pr; 15.1.9.1 (29 ed.); 19.1.11.12 (32 ed.); 7.2.3 pr (17 Sab.); 36.1.23.3 (5 disp.) 137 D 33.7.12.35, 43 (20 Sab.) 138 D 8.3.5.1 (17 ed.) 139 Honoré–Menner (1980) fiche 64 140 D 47.10.1.8, 9 (56 ed.); 47.10.7.5 (57 ed.); 42.4.7.16 (59 ed.); 43.24.7.1 (71 ed.); 20.2.3 (73 ed.); 44.2.9.1, 11 (75 ed.); 44.4.4.18 (76 ed.); 21.1.15.3 (1 ed. aed. cur.) 141 D 43.16.1.47 (69 ed.); 21.1.1.9 (1 ed. cur. aed., thrice); 21.1.17.4 (1 ed. cur.) 142 D 29.7.14 pr (Scae. 8 quaest.) 143 Honoré–Menner (1980) fiche 75 144 Lenel (1889) 2.1–10; Kunkel (1967) 168–9; Liebs (1997) §421.2 145 D 3.5.5.11 (10 ed.); 4.2.7 pr; 4.2.14.5; 4.3.1.4 (11 ed.); 4.7.4.2; 4.8.7 pr; 4.8.13.2 (13 ed.); 14.4.1.1 (19 ed.); 15.1.7.3 (29 ed.) 146 D 3.5.5.11, 13 (10 ed.); 4.7.4.2; 4.8.13.2 (13 ed.); 15.1.7.3 (29 ed.); 21.1.23.9 (1 ed. cur.) 147 Honoré–Menner (1980) fiche 66 132


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Ulpian cites by book in Edict books 10 to 29.148 The citations in the later books of Edict, which lack book references, are either direct or come via Paul, who also used Pedius as a source.149 Pedius also wrote on the market-masters’ edict.150 This work was used by Ulpian, perhaps directly, though in that case the edictal committee has left out Ulpian’s book references to Pedius.151 (g) Probably for the same reason Caelius Sabinus,152 who was consul in AD 69 and succeeded Cassius as head of the Sabinian school, is cited three times with inquit153 but never by book. The inquits come from Ulpian’s MarketMasters’ Edict, which dealt with a topic on which Caelius wrote. Ulpian mentions him thirteen times in this commentary, fourteen if a text with ‘Caecilius’ is amended.154 Ulpian used Caelius as a main source for this work, but not in other works. Caelius’ works were not available to Justinian’s compilers. (h) Cassius Longinus,155 conservative co-founder of the Sabinian school, restored from exile by Vespasian, is cited seven times by book,156 once with inquit.157 No work of Cassius was available to Justinian’s compilers. Ulpian cites from his Civil Law (Libri iuris civilis) up to book 10.158 All the citations come in Ulpian’s On Sabinus. Presumably Cassius’ work was based on Sabinus’ Civil Law. The inquit passage, on the other hand, refers to a note of Cassius in his work dedicated to Vitellius.159 It looks as if Ulpian consulted these notes and Cassius’ Civil Law at first hand. He mentions Cassius eightyfive times in all.160 Many of these texts must have been taken at second hand from Ulpian’s main sources, such as Celsus, Pomponius, and Julian. (i) Ulpian cites Masurius Sabinus161 five times by book 162 and three times with inquit.163 The book citations refer not to the well-known Civil Law (Ius civile) of Sabinus, the text on which Ulpian’s On Sabinus was a commentary, but to his books dedicated to Vitellius (Libri ad Vitellium). One of the inquit passages, however, seems to refer to Sabinus’ Civil Law.164 Vitellius was not a legal writer, as assumed by Lenel165 and others, but someone to whom Sabinus dedicated one of his works.166 This work must have been available to Ulpian, who could have used it as a direct source. In all Ulpian refers to

148

149 D 12.1.6 (Paul 28 ed.); 37.1.6.2 (41 ed.) 150 Lenel (1889) 2.6–7 Above n.145 Excerpted by Justinian’s compilers after On the Edict book 81, though written by Ulpian in 213 or 214 some years beforehand: ch.9 n.26–33 152 Lenel (1889) 1.78–82: Kunkel (1967) 131–3 153 D 21.1.17.1, 16 (1 ed. cur.); 21.1.38.11 (2 ed. cur.) 154 Honoré–Menner (1980) fiche 51 and D 21.1.14.10 (1 ed. cur.) 155 Lenel (1889) 1.110–26: Kunkel (1967) 130–1 156 D 29.2.25.4 (Ulp. 8 Sab.); 7.1.7.3; 7.1.9.5; 7.1.23.1; 7.1.70 pr, 2 (17 Sab.); 26.1.3.2 (37 Sab.) 157 158 D 33.7.12.27 (20 Sab.) D 7.1.70 pr (17 Sab.) 159 D 33.7.12.27 (20 Sab.). Vitellius was a dedicatee, not a legal author: Liebs (1980) 138–9 160 161 Honoré–Menner (1980) fiche 51 Lenel (1889) 2.187–216; Kunkel (1967) 119–20 162 D 33.7.8 pr ; 33.7.12.27; 34.2.19.17 (Ulp. 20 Sab.); 32.45; 33.9.3 pr (22 Sab) 163 164 D 33.9.3 pr (22 Sab.); 18.2.11 pr (28 Sab.) D 18.2.11 pr (28 Sab.) 165 166 Lenel (1889) 1.1301–8 Liebs (1980) 138–9 151

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Sabinus 119 times,167 but many of these citations must be taken from later writers such as Pomponius, Celsus, and Julian. (j) Working back, we now come to the republican authors. Ofilius168 is cited six times by book169 and once with inquit,170 Quintus Mucius171 three times by book172 and once with inquit.173 Pernice denied that any republican texts were available to Ulpian.174 Jörs argued that these two at least were read by him.175 In my view Ulpian excerpted these works from Sabinus’ work dedicated to Vitellius.176 The citations from Ofilius’ Actions (Libri actionum) and Divisions of the Law (Libri iuris partiti) come in Ulpian’s Sabinus books 22 and 25.177 Those from Q. Mucius’ Civil Law (De iure civili) seem to come in Ulpian’s Sabinus books 22, 25, and 44.178 But, as Lenel points out, the text in book 44 is out of place, and we should read book 24 instead of 44.179 The text is concerned not with the edict of the curule aediles, the subject of book 44, but with a legacy of silverware. Finally, the books of Sabinus dedicated to Vitellius are mentioned only in books 20 and 22 On Sabinus.180 Books 20–5 of this work are on legacies.181 Sabinus in this work, I suggest, collected texts on legacies, which included excerpts from Q. Mucius and Ofilius, and Ulpian drew on this collection. It is interesting that the text mentioning the two republican authors is, uniquely, in the plural.182 A joint citation of this sort is more natural if the source is a collection of readings. In all Ulpian cites Ofilius thirty-two times183 and Q. Mucius twenty-one,184 but many of these citations are likely to come at second hand from Labeo’s Posthumous Works (Posteriora), Celsus, or Pomponius. So far all the authors listed have been cited both by book and with inquit, so that we can be fairly sure that Ulpian cited them from an original source or collection of material. The rest he cites in only one mode, and for the most part once only. So the citation is more likely to have been taken from a secondary source. By book Ulpian cites Tertullianus’ Questions (Quaestiones),185 Puteolanus’ Assessorship (Adsessoriorum libri),186 Arrianus’ On Interdicts (De interdictis),187 Quintus (Venuleius) Saturninus’ On the Edict (Ad edictum),188 and Servius’ work dedicated to Brutus (Ad Brutum).189 Tertullianus (Tertullian), plausibly to be identified with the Christian apologist, wrote 167

168 Lenel (1889) 1.795–804; Kunkel (1967) 29–30 Honoré–Menner (1980) fiche 71 170 D 33.9.3.9 (22 Sab.) D 33.9.3.5, 8 (Ulp. 22 Sab.); 32.55.1, 2, 4, 7 (25 Sab.) 171 Lenel (1889) 1.757–64 172 D 33.9.3 pr (Ulp. 22 Sab.); 32.55 pr (25 Sab.); 33.2.27 (44 Sab.) 173 D 33.9.3.9 (22 Sab.) 174 Pernice (1885) 475f. 175 Jörs (1903) 1475–6 176 177 178 Above n.159, 163–4 Above n.169–70 Above n.172 179 180 181 Lenel (1889) 2.11791 Above n.162 Lenel (1889) 2.1079–109 182 D 33.9.3.9 (22 Sab: Quintus Mucius et Ofilius inquiunt, of which the natural translation is ‘Q. Mucius, cited with approval by Ofilius, says’.) 183 184 Honoré–Menner (1980) fiche 65 Honoré–Menner (1980) fiche 69 185 186 187 D 29.2.30.6 (Ulp. 8 Sab.) D 2.14.12 (Ulp. 4 ed.) D 5.3.11 (Ulp. 15 ed.) 188 D 34.2.19.7 (Ulp. 20 Sab.). On his citations of (Venuleius) Saturninus see Liebs (1984) 449 189 101 D 14.3.5.1 (Ulp. 28 ed.); Liebs (1980) 138 169


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later than Pomponius but before Ulpian.190 His Questions in eight books were read by Justinian’s commission. Ulpian, a near contemporary who kept to legal studies, would naturally have read them. In his Sabinus he cites Tertullian three times.191 Puteolanus seems to have written in the late second century and Ulpian presumably cites him at first hand.192 The Tyrian also refers to Arrianus,193 a first- or more probably second-century author, who wrote On Interdicts and other works, four times.194 He probably read On Interdicts, but the other citations may be second-hand. Servius is the famous republican author Servius Sulpicius Rufus, consul in BC 51.195 Ulpian mentions Servius thirty-eight times in all.196 Most of these citations will be second-hand, from Labeo’s Posthumous Works or Pomponius, from whom Ulpian may have taken the book citation.197 The citation of Quintus Saturninus On the Edict,198 whom Ulpian cites in a text about a legacy of gold, may rest on a mistake as to author or title. The definition of gold is not likely to have been discussed in a work On the Edict.199 Saturninus, if Ulpian cited him, is perhaps to be identified with Venuleius Saturninus200 rather than Claudius Saturninus, writers of the early and late second century respectively.201 They were mistakenly identified with one another in the Florentine Index and by Lenel,202 but distinguished by Kunkel and Liebs.203 One last jurist whom Ulpian cites by book204 is Urseius.205 He was a firstcentury AD author whose work Julian edited.206 Ulpian, who does not tell us the title of Urseius’ work, cites him four times, always for an opinion of Sabinus,207 Cassius,208 or Proculus.209 Ulpian used his work, it seems, at first hand but only as a source of the views of more eminent writers. Some authors appear only in one or two inquit texts and are not cited by book. Ulpian twice uses inquit of Titius Aristo,210 a distinguished lawyer of the late first century of humble origin, a freed slave or the descendant of a freed slave.211 He has forty-five references to Aristo, but most of them will have been taken from Neratius, Pomponius, or Paul, who used Aristo as a 190 Lenel (1889) 2.341–4; Steinwenter (1934); Kunkel (1967) 236–40; Barnes (1985) 22–9; Liebs (1997) §417.2; cf. ch.3 n.65 191 D 28.5.3.2 (3 Sab.); 29.2.30.6 (8 Sab.); 38.17.2.44 (12 Sab.) 192 Lenel (1889) 2.186; Liebs (1997) §419.5 193 Lenel (1889) 1.69–70; Kunkel (1967) 243; Liebs (1997) §419.4 194 D 5.3.11 pr (15 ed.); 43.3.1.4 (67 ed.); 28.5.19 (7 Sab., twice) 195 Lenel (1889) Pal. 2.322–34; Kunkel (1967) 25 196 Honoré–Menner (1980) fiche 71 197 D 34.2.19.7 (20 ed.) 198 Kunkel (1967) 181 199 Lenel (1889) 2.12095 200 Kunkel (1967) 181; Bonini (1962) 119f.; Liebs (1984) 449; Liebs (1997) §419.3 201 Kunkel (1967) 184; Liebs (1997) §430.2 202 Ind. Flor. 21; Lenel (1889) 2.1208–1214 203 Above n.200–1 204 Collatio 12.7.9 (Ulp. 18 ed.) 205 Lenel (1889) 2.1202; Kunkel (1967) 145–6 206 Lenel (1889) 1.490–6 207 Collatio 12.7.9 (18 ed.) 208 D 44.5.1.10 (76 ed.) cf. D 7.4.10.5 (17 Sab: Cassius apud Urseium scribit) 209 D 9.2.27.1 (18 ed.) cf. 39.3.11.2 (Paul 49 ed.) 210 D 43.24.11.11 (76 ed.); 33.9.3.2 (22 Sab.) 211 Lenel (1889) 1.59–70; Kunkel (1967) 141–4

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source. It is not certain that Ulpian knew Aristo’s work, which was not available to Justinian’s compilers, at first hand. Octavenus, an author of the same period,212 is cited once with inquit.213 Pomponius and Paul both cite Octavenus, Pomponius no doubt directly. Ulpian mentions him eight times,214 once with ut apud Pomponium scriptum est,215 which shows that on that occasion he took Octavenus’ opinion from Pomponius. In other texts Ulpian cites Octavenus in the imperfect, which again indicates dependence on Pomponius.216 Probably Ulpian did not read Octavenus at first hand but took the references from Pomponius and Paul. Octavenus’ work was not available to Justinian’s compilers. Ulpian once cites Nerva the elder with inquit217 in a text from book 71 On the Edict.218 The author in question is the emperor Tiberius’ friend M. Cocceius Nerva, consul suffect in AD 22. Ulpian cites him fifteen times.219 It is not clear that Ulpian read his work at first hand: the references may come from collections of material by Atilicinus220 or Vivianus.221 Nerva’s writings did not survive to the age of Justinian. Lastly there is one inquit text222 for Fulcinius Priscus,223 an author of the first century AD whom Pomponius and Paul also cite, Paul twice in the imperfect.224 Ulpian’s inquit, which is one of his only two references to Fulcinius, may be derived from Pomponius or Paul. In sum, Ulpian was widely read. He had a well-stocked library, especially of more recent authors. The sources he read first-hand were probably more extensive than appears from the Digest. Thus Vatican Fragments 59–64, 70–1, 74–89, which contain excerpts on usufruct from Ulpian’s Sabinus book 17, have a wider range of citations and more book references than the corresponding passages that appear in the Digest.225 Justinian’s compilers were obliged to cut down on references in order to keep the Digest within the prescribed limits, and Ulpian, who likes to refer to original sources when he can, will have suffered disproportionately from this policy. That is not to say that Ulpian eschews citation at second hand when the original or a verbatim quotation is not available. On the contrary, he freely resorts to it, as do other Roman lawyers. To these second-hand citations we now turn.

212

213 D 9.2.27.25 (Ulp. 18 ed.) Lenel (1889) 2.794–6 215 D 5.3.16 pr (Ulp. 15 ed.) Honoré–Menner (1980) fiche 65 216 Honoré (1962b) Tabula laudatoria XI 217 Lenel (1889) 1.787–90; Kunkel (1967) 120 218 D 43.24.3.4 (Ulp. 71 ed.) 219 Honoré–Menner (1980) fiche 64 220 Below n.241–56 221 Above n.35, 141–3 222 D 25.1.1.3 (Ulp. 36 Sab.) 223 Lenel (1889) 1.179–80; Kunkel (1967) 137 224 D 31.49.2 (Paul 5 Iul. Pap.); 43.16.8 (54 ed.). Perhaps Paul and Ulpian used a collection of materials by Fulcinius that included opinions of Labeo and Mela: below n.269–70 225 Lenel (1889) 2.1056–65 214


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III. COLLECTIONS OF LAWYERS’ OPINIONS

The discussion of first-hand sources revealed two collections of material which Ulpian probably used; one perhaps by Sabinus in his work dedicated to Vitellius,226 concerned with legacies and dating from the time of Augustus, and a second by Vivianus227 compiled about the end of the first century AD. A third author, Urseius,228 seems to have been used purely as a source of other lawyers’ opinions. One of the signs that a collection of material is being used as a source is the running together of two or more opinions: for example, Nerva Atilicinus responderunt. Another is the use of the ‘there exists’ (ex(s)tat), as in ‘there exists an opinion’ (extat sententia). A third is the use of apud (‘in’ in the sense of the French chez), as in apud Trebatium relatum est ‘it is recorded in Trebatius that . . . ’. The running together of opinions is a sign, not of course conclusive, that they have been found in a single source. Ex(s)tat implies that a text is currently available in some source other than its author’s own publication. Apud points to an edition or collection of the work of another authors or authors. We begin with Ulpian’s citations of republican jurists, which are often listed in a string, as the following examples illustrate: Ofilius et Trebatius responderunt;229 scribit enim Labeo et Trebatius;230 Labeo et Cascellius aiunt;231 Cascellius et Trebatius putant;232 Gallus Aquilius Ofilius Trebatius responderunt;233 Quintus Mucius et Ofilius negaverunt.234 What explains these joint citations? In Labeo’s Posthumous Works, edited by Iavolenus, the republican authors are always cited in a definite order, as follows: Q. Mucius, Gallus, Servius, Ofilius, Cascellius, Trebatius, and Tubero.235 The opinion of Labeo himself, as befits the title of the work, is generally put first.236 Ulpian’s citations conform to the same order, with the minor variation that he sometimes follows chronological order and so puts Labeo after Trebatius.237 This suggests that Ulpian derived these citations from Iavolenus’ edition of Labeo’s Posthumous Works, which he cites by name six times.238 In one text 226

227 Above n.35, 141–3 228 Above n.205–9 Above n.163–6, 176 230 D 19.1.13.22 (32 ed.) 231 D 39.3.1.17 (53 ed.) D 4.8.21.1 (13 ed.) 232 D 43.24.1.7 (71 ed.) 233 D 30.30.7 (Ulp. 19 Sab.) 234 D 33.9.3.9 (22 Sab.) 235 D 18.1.79 (Labeo et Trebatius); 24.3.66.1 (Labeoni Trebatio); 24.3.66.2 (Labeo Trebatius); 28.6.39 pr (Labeonis, Ofilii, Cascelii, Trebatii); 28.6.39.2 (Ofilius Cascellius); 32.29 pr (Cascellius Trebatius); 32.29.1 (Quintus Mucius et Gallus); 32.100.1 (Ofilius Trebatius); 32.100.4 (Labeo Trebatius); 33.4.6.1 (Ofilius Cascellius); 33.6.7 pr (Ofilius Cascellius Tubero); 33.7.4 (Labeo Trebatius); 33.7.25.1 (Labeo Trebatius); 33.7.26.1 (Labeo Cascellius Trebatius); 33.10.10 (Labeo Ofilius Cascellius); 33.10.11 (Labeo Trebatius); 34.2.39 pr (Ofilius Labeo); 35.1.40.4 (Labeo Ofilius Trebatius); 40.7.39 pr (Quintus Mucius Gallus et ipse Labeo . . . Servius Ofilius); 40.7.39.1 (Labeo Ofilius); 40.7.39.4 (Labeo Ofilius . . . Labeonis et Ofilii); 49.15.27 (Labeo Ofilius Trebatius) 236 The only exception is D 34.2.39 pr (Iav. 3 post. Lab.) 237 D 10.3.6.6 (Ulp. 19 ed.); 40.7.3.11 (27 Sab.) 238 D 4.3.9.3 (11 ed.); 28.5.13.5, 6; 28.5.17.5 (7 Sab.); 7.8.2.1 (17 Sab.); 33.9.3.2 (22 Sab.) 229

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Ulpian gives Iavolenus’ opinion immediately after that of Labeo, which also points to his using Iavolenus’ edition or epitome of Labeo.239 Whether Labeo made the collection of opinions which form the basis of the strings of citation himself, or used someone else’s collection, is not clear. Certainly his collection was distinct from that apparently to be found in Sabinus’ work dedicated to Vitellius,240 which was confined to legacies. Atilicinus241 is an author whose name often appears as a member of a string, for example: Proculus Atilicinus;242 Nerva Atilicinus;243 Sabinus Atilicinus.244 Sometimes the order is reversed, as in: Atilicinus Sabinus Cassius;245 Atilicinus Nerva Sabinus.246 Ulpian sometimes inserts et between the names.247 Julian248 and Paul do not.249 But clearly all three are directly or indirectly using the same collective source, probably a collection made by Atilicinus himself. Atilicinus was a mid-first-century contemporary of Proculus;250 so he was either junior to or coeval with the other authors listed. His name, however, appears either first or last in the lists. When it comes last it is in the natural chronological position of the editor of a collection of opinions by others. When it comes first this is a sign that a later author is consulting the edited work (and so names the editor first) and then reverts to chronological order when he comes to name the authors cited by the editor. This is why, in the lists Atilicinus Sabinus Cassius251 and Atilicinus Nerva Sabinus,252 the latest writer is named first and the earliest second. If, on the other hand we find Atilicinus in the middle, as in Neratius Atilicinus Proculus,253 the source is not the collection of juristic opinions by Atilicinus but some work of Neratius or (at two removes) Pomponius in which use was made of Atilicinus’ collection. Ulpian cites Atilicinus eleven times,254 but may not have used his collection directly. Though he does say of one opinion of Atilicinus that it exists, he does not claim to find any information ‘in Atilicinus’ (apud Atilicinum). His sources for the Atilicinus citations are likely to have been one or more of Neratius, Pomponius, Julian, and Paul, all of whom he used directly. Atilicinus, then, collected opinions of Nerva, Proculus, Sabinus, and Cassius and added his own. Ulpian probably cited him at second hand and the authors whose opinions he collected at third hand. The form of citation depends on the intermediate source. Thus, Pomponius usually mentions his source first. Taking Aristo’s opinion from a work of Neratius, he cites 239 241 242 243 245 247 249 251 253

240 Above n.168–173 D 18.4.2.17 (49 Sab.) Lenel (1889) 1.71–4; Kunkel (1967) 129–30 D 4.8.21.9 (Ulp. 13 ed.); 8.3.5.1 (17 ed.); 15.1.17 (29 ed.) 244 D 10.3.6.4 (Ulp. 19 ed.) D 44.4.4.8 (76 ed.) cf. 34.3.16 (Paul 9 Plaut.) 246 D 35.2.49 pr (Paul 12 Plaut) D 17.2.52.18 (31 ed.) cf. 45.2.17 (Paul 8 Plaut.) 248 D 12.4.7 pr (Iul. 16 dig: Nerva Atilicinus) Above n.242–4 250 D 23.4.17 (Proc. 11 epist: Atilicinus Proculo suo salutem) Above n.243, 245–6 252 D 35.2.49 pr (Paul 12 Plaut.) D 17.2.52.18 (Ulp. 31 ed.); 45.2.17 (Paul 8 Plaut.) 254 Honoré–Menner (1980) fiche 50 D 2.14.27 pr (Paul 3 ed.)


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Neratius before Aristo,255 though Aristo was senior.256 So when Ulpian mentions Atilicinus first in a list, his source is probably Neratius or Pomponius rather than Celsus or Julian, who prefer chronological order. Titius Aristo annotated Labeo,257 Sabinus,258 and Cassius259 and may also, Lenel thinks, have published a collection of legal sources, no doubt with comments of his own.260 Ulpian cites Aristo’s notes on Cassius261 and cites Aristo 45 times in all.262 But he does not seem to have used Aristo’s collection of material, if it existed, directly. He does not cite texts ‘in Aristo’ (apud Aristonem). His source is rather Neratius, Pomponius, or Paul. Pomponius made free use of Aristo’s work which, to go by a Paul text, he seems to have edited.263 Ulpian seems, then, to have used the collections of material by Sabinus, Labeo, Urseius, and Vivianus directly but those of Atilicinus and perhaps Aristo only indirectly. Does this conclusion adequately account for his use of ex(s)tat and apud? He uses ‘there exists’ (ex(s)tat) of opinions of Ofilius,264 Servius,265 Sabinus,266 Cassius,267 Nerva,268 Atilicinus,269 and Neratius.270 All these might be found in the works of Sabinus ad Vitellium, Labeo, Urseius, Vivianus, Neratius, or Pomponius, if we assume that the opinion of Nerva and Atilicinus was reproduced by Neratius or Pomponius. The list of authors in whose work (apud quos) Ulpian finds information is longer. They comprise Mucius, Servius, Servii auditores, Ofilius, Trebatius, Labeo, Mela, Vitellius, old writers (veteres), Sabinus, Cassius, Minicius, Pedius, Plautius, Urseius, Celsus, Vivianus, Pomponius, Julian, Marcellus, Scaevola, and Tertullian.271 Most of these are authors whom Ulpian consulted at first hand or whose works were excerpted or edited by others whom he consulted at first hand. The two who do not fit this scheme are Mela and Plautius. Fabius Mela272 was a lawyer of the early empire, probably a contemporary of Labeo. Ulpian cites him thirty times,273 and also cites opinions of Aquilius Gallus and Servius ‘in Mela’ (apud Melam).274 Another Ulpian text couples the opinions of Labeo and Mela.275 Paul couples Mela and Fulcinius.276 Africanus cites the tenth book of some work of Mela.277 It is not easy to see 255

D 30.45 pr (Pomp. 6 Sab.); 40.7.5 pr (8 Sab.); 17.2.62 (13 Sab.) D 40.4.46 (Pomp. 7 var. lect: Aristo Neratio Appiano [Prisco scr. Mommsen] rescripsit) 257 D 28.5.17.5 (Ulp. 7 Sab.); 43.24.5 pr (71 ed.) 258 Frag. Vat. 88 (Ulp. 18 Sab.); 7.8.6 (17 Sab.); 33.9.3.1 (22 Sab.) 259 D 7.1.7.3 (Ulp. 17 Sab.); 7.1.17.1 (18 Sab.); 39.2.28 (81 ed.) 260 Lenel (1889) 1.611 261 Above n.259 262 Honoré–Menner (1980) 50 263 D 24.3.44 pr (Paul 5 quaest: est relatum apud Sextum Pomponium digestorum ab Aristone libro quinto) 264 265 266 D 43.20.1.17 (Ulp. 70 ed.) D 27.7.4 pr (36 ed.) D 39.2.15.12 (53 ed.) 267 268 269 D 43.24.11.1 (71 ed.) D 44.4.4.8 (76 ed.) D 44.4.4.8 (76 ed.) 270 271 D 42.4.7.16 (59 ed.) Texts in Honoré–Menner (1980) 50 272 273 Lenel (1889) 1.691–6; Kunkel (1967) 16 Honoré–Menner (1980) fiche 63 274 275 D 19.1.17.6 (32 ed.); 33.9.3.10 (22 Sab.) D 19.2.13.8 (32 ed.) 276 277 D 25.2.3.4 (Paul 7 Sab.) D 50.16.207 (Afr. 3 quaest.) 256

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from what secondary source Ulpian derived his citations of Mela. One possibility is a collection of material by Fulcinius Priscus.278 Texts of Paul lead one to think that he used such a collection, which included opinions of Labeo and Mela.279 Ulpian may have had access to the same source, or may have read Mela at first hand. Plautius is discussed in the next section.

IV. SOURCES CITED AT SECOND HAND

When Ulpian cites from collections of lawyers’ opinions he cites second hand, but the editor of the collection generally gives the text of the original author verbatim. In the instances now to be considered Ulpian takes from his primary source, especially his main sources, opinions that he finds mentioned in them, but not necessarily verbatim. That he often did this is obvious. Ulpian makes no attempt to hide it. For example he says ‘I read that Cato writes . . .’,280 ‘It is said that Mauricianus thought . . .’,281 ‘Tubero defines, as Celsus reports . . .’.282 Pernice reproached Ulpian for citing at second or third hand.283 He was particularly critical of his habit of citing at second hand without saying so. That Ulpian did this is, again, clear. Discussing the vesting of annuities, he favours vesting at the beginning of the year: ‘Labeo, Sabinus, Celsus, Cassius, and Julian approved this’.284 The Digests of Celsus and Julian are among Ulpian’s main sources.285 For Celsus, Labeo and Sabinus are important sources.286 Julian often cites Cassius.287 On the other hand Celsus cites Cassius only once 288 and Julian cites Labeo only twice.289 We can infer that in Ulpian’s text the citations of Labeo and Sabinus are taken from Celsus, that of Cassius from Julian. Hence the text, if expanded, would read ‘Celsus argues for the vesting of an annuity at the beginning of the year and cites in support Labeo and Sabinus. Julian also favours the beginning of the year and cites in support Cassius.’ There are a number of parallels, in which the indirect source precedes the main source, as in: ‘and so Sabinus and Celsus write’290 or ‘Labeo and Marcellus write’.291 The citation of Sabinus is taken from Celsus, and that of Labeo from Marcellus. Another way of presenting an indirect citation is illustrated by: ‘Celsus writes, and Tubero approves that 278 280 281 282 284 285 288 290 291

279 Above n.60–1, 222–4 D 31.49.2 (Paul 5 Iul. Pap.); 25.2.3.4 (7 Sab.) D 21.1.10.1 (1 ed. cur: Catonem quoque scribere lego) D 41.10.1.1 (15 ed: Mauricianus dicitur existimasse) 283 Pernice (1885) 473f. D 15.1.5.4 (29 ed: Tubero definit, ut Celsus refert) D 36.2.12.1 (23 Sab: et Labeo Sabinus et Celsus et Cassius et Iulianus hoc probaverunt) 286 Honoré (1962b) 137–40 287 Honoré (1962b) 155–60 Above n.9–10, 18–9 289 D 13.4.2.8 (Ulp. 27 ed.); 44.4.4.1 (76 ed.) D 33.7.12.20 (Ulp. 20 Sab.) D 43.26.8.1 (71 ed: et ita Sabinus et Cassius scribunt) D 12.5.4.3 (26 ed: Labeo et Marcellus scribunt)


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opinion.’292 The late-republican writer Tubero could not approve the opinion of his second-century AD successor Celsus. So Ulpian here mentions first the source, Celsus, then the author cited in the source, Tubero. We can be sure of this because Celsus cites Tubero as often as he cites any author except Proculus.293 It says something for Ulpian’s scholarly integrity that in three of the five texts in which he cites Tubero he makes it clear that Celsus is the source of the citation. One could argue from this for his direct use of, say, Mela as a source.294 When Ulpian uses a primary source A, who cites his own primary source B first, then a third source C, cited by B, he generally follows the order BCA. Thus ‘Neratius and Aristo and Pomponius approve . . .’.295 Ulpian is here using Pomponius as a primary source, Pomponius has used Neratius, and Neratius has cited Aristo. Pomponius tends to cite his source in reverse chronological order in such cases,296 and Ulpian does the same. There can be slightly more complicated cases in which Ulpian’s primary source has himself used two primary sources. An example is ‘Labeo, Neratius, and Aristo think . . .’.297 Here it is likely that Ulpian has taken the citations from Pomponius, who himself used two sources, Labeo and Neratius, and found Aristo’s opinion in Neratius. On the other hand when Ulpian puts Aristo in the right chronological order as in ‘and that was the view of Aristo, Neratius, and Julian’298 it is likely that Ulpian is using Julian alone as a primary source, since Julian when he cites normally keeps to the correct chronological order.299 Sometimes it is difficult to be sure of the primary source, for example ‘Labeo and Sabinus think and we approve . . .’300 or ‘Labeo and Cassius write.’301 Here it is not likely that Ulpian is using Labeo at first hand. The primary source might be Celsus, Julian, Neratius, Pomponius, or collections of material by Urseius, Vivianus, or Fulcinius. There are many possibilities. To go further along these lines would be to analyse the use of sources by Ulpian’s own main sources. This lies outside the scope of the present work. But there remain some authors cited by Ulpian who have not yet been mentioned. Aufidius Chius,302 a lawyer of the Flavian period, is once cited for an opinion of Atilicinus.303 Ulpian once cites Publicius, who wrote under Hadrian or the early Antonines,304 Paconius,305 cited by Paul306 as well as 292

D 7.8.2.1 (17 Sab: Celsus scripsit, quam sententiam et Tubero probat) 294 Above n.272–9 Honoré (1962b) 137–40 295 D 28.5.9.14 (5 Sab: et ita Neratio et Aristoni videtur et Pomponius probat); 7.2.3.2 (17 Sab.) 296 Above n.255–6 297 D 28.5.9.14 (5 Sab: Labeo Neratius et Aristo opinantur) 298 D 35.1.7 pr (18 Sab.) 299 D 9.1.24.1 (15 dig.); 12.4.7 pr (16 dig.); 40.12.30 (5 Minic.) 300 D 19.1.11.3 (32 ed: et Labeo et Sabinus putant et nos probamus) 301 D 28.2.6 pr (3 Sab: et Labeo et Cassius scribunt) 302 Kunkel (1967) 135–6; Martial 5.61.10; apparently a freedman 303 Lenel (1889) 1.75–6; Frag. Vat. 77 (17 Sab.) 304 D 38.17.2.8 (13 Sab: Africanus et Publicius temptant dicere); Lenel (1889) 2.186; Hanslik (1959); Kunkel (1967) 185–6; Liebs (1997) §415.3 305 Lenel (1889) 1.804; D 13.6.1.1 (28 ed.) 306 D 37.12.3 pr (Paul 8 Plaut.) 293

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Ulpian but of unknown age and Cartilius,307 a lawyer of the Augustan age or early empire. Ulpian cites Plautius,308 a writer of the Flavian dynasty whose work was edited by Iavolenus, Neratius, Pomponius, and Paul, only once.309 Even then he cites it not for Plautius’ opinion but for that of the authors whom he cites.310 Presumably Ulpian knew his work but did not think highly of him. Marcus Vindius Verus,311 consul in AD 138, is mentioned thrice.312 One text suggests derivation from Julian,313 another from Pomponius.314 Iunius Mauricianus,315 active under Pius, comes in twice, once with ‘Mauricianus is said to have thought’,316 which is clearly second hand. The citation may have come to Ulpian through Paul, who cites him.317 There are a number of members of the ‘Proculian’ school, deriving from Labeo and Proculus, whom Ulpian cites but does not seem to have known at first hand. The earliest is M. Cocceius Nerva the elder.318 The famous Proculus,319 active under Nero, is cited forty-five times320 but never by book or with inquit. Ulpian does not seem to have read his epistulae, though these were available to Justinian’s compilers. Ulpian cites a note by Proculus on Labeo, for which Celsus is his source.321 Proculus’ notes on Labeo’s Posthumous Works may have come to Ulpian via Iavolenus.322 Virtually all Ulpian’s main sources cite Proculus. Hence there is no need to suppose that Ulpian read him in the original. Nor need we assume that he had read Nerva the younger,323 father of the emperor of AD 96–8, who was a contemporary of Proculus. Ulpian cites him five times, once along with Pegasus.324 The chronological order is upset, so that this citation may come via Pomponius. The next head of the Proculian school is Pegasus.325 Like Aufidius and Aristo he was a man of humble origin whose career illustrates how law was then as later a channel of social mobility. Pegasus rose to be urban prefect under Vespasian. Ulpian cites him twenty-three times, but never by book or with inquit.326 There is evidence that Pomponius327 and Julian328 were the sources from which Ulpian derived these citations. Pegasus is often cited in combination: Trebatius et Pegasus,329 Labeo et Pegasus,330 Sabinus et Pegasus,331 307 308 310 311 313 314 315 317 319 320 322 324 325 326 328 330

Lenel (1889) 1.106; D 13.6.5.13 (28 ed.); Kunkel (1967) 122–3 309 D 7.2.1.3 (Ulp. 17 Sab.) Lenel (1889) 2.13–4; Kunkel (1967) 134 Ibid: omnes enim auctores apud Plautium de hoc consenserunt 312 Honoré–Menner (1980) fiche 75 Lenel (1889) 2.1223–4; Kunkel (1967) 167–8 Frag. Vat. 77 (17 Sab: Vindius tamen, dum consulit Iulianum) D 5.1.5 (5 ed: Pomponius et Vindius scripserunt) cf. 2.9.2.1 (Paul 6 ed.) 316 D 41.10.1.1 (15 ed.) Lenel (1889) 1.690–2; Kunkel (1967) 176–7 318 Above n.217–21 D 6.1.35.1 (Paul 21 ed.) Lenel (1889) 2.159–84; Kunkel (1967) 123–9; Honoré (1962b) 472–93 321 D 3.5.9.1 (10 ed.) Honoré–Menner (1980) fiche 67 323 Lenel (1889) 1.791–2; Kunkel (1967) 130 D 7.8.1.4 (17 Sab.) D 3.2.2.5 (6 ed: Pegasus et Nerva filius responderunt) Lenel (1899) 2.9–12; Kunkel (1967) 133–4 327 D 7.1.12.2 (17 Sab.) Honoré–Menner (1980) fiche 66 329 D 41.1.41 (9 ed.) D 7.1.25.7 (18 Sab.) 331 D 12.5.4 pr (26 ed.) D 33.7.12.3 (20 Sab.)


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Proculus et Pegasus,332 Cassius et Pegasus.333 Perhaps Pegasus made a collection of previous opinions to which he added his own comments. This could have served as a source book. But if it existed it was not available either to Ulpian or to Justinian’s compilers. The last head of the Proculian school to be mentioned is Iuventius Celsus the elder,334 father of the author of Digesta which Ulpian used as a main source. Ulpian’s one reference to him comes from his son’s work.335 This analysis of Proculian sources confirms the impression that Ulpian in general preferred writers of the Sabinian school, with whom he was better acquainted at first hand. But even with them he was selective. Iavolenus Priscus, the first-century author who was Julian’s teacher, was head of the Sabinian school, but is cited only three times. One of these texts suggests that Ulpian knew Iavolenus’ fifteen books Readings from Cassius (Ex Cassio),336 a second that he knew his ten books of Labeo’s Posthumous Works.337 There is some evidence that Ulpian annotated Iavolenus’ epistulae.338 Why, then does he refer to him so little? Perhaps he did not esteem him highly as a lawyer. Ulpian cites two republican writers not so far mentioned. Alfenus Varus,339 a pupil of Servius, is mentioned seven times.340 The texts could come from Labeo’s Posthumous Works,341 Pomponius,342 or Paul.343 Aufidius Namusa,344 another pupil of Servius, is cited twice. The same intermediate sources come to mind. Ulpian’s use of juristic sources is scholarly, at least as thorough as that of other Roman lawyers. Of course, as Pernice discerned, he did not disdain the use of secondary material when the primary source was not available. He used the sources selectively. He preferred the more original authors. Celsus apart, he favours writers of the pragmatic Sabinian rather than the more principled Proculian school. The charge that he passed over his contemporary Paul out of rivalry is not made out. Ulpian transmitted to posterity much of what was best in Roman jurisprudence.

332

333 D 7.1.12.2 (17 Sab.) D 15.1.30 pr (29 ed.) 335 D 12.4.3.7 (26 ed.) Lenel (1889) 1.127–8; Kunkel (1967) 137–8 336 337 D 28.2.6 pr (3 Sab.) Above n.49, 184–5, 196–7, 234–6 338 D 38.5.12 (Iav. 3 epist. contains what looks like a note by Ulpian: quid enim dicemus? . . . non dubitabimus) 339 Lenel (1889) 1.38–54; Kunkel (1967) 29 340 Honoré–Menner (1980) 50 (Alfenus), 75 (Varus) 341 D 32.29.2 (Lab. 2 post. Iav. epit.) 342 D 50.16.239.6 (Pomp. 1 enchir.); 18.1.18.1 (Pomp. 9 Sab.) 343 D 17.2.65.8 (Paul 32 ed.); 39.3.2.5; 50.16.77 (49 ed.) and, for Paul’s epitome of Alfenus’ Digest Lenel (1889) 1.45–53 344 Lenel (1889) 1.75–6; Kunkel (1967) 30–1 cf. D 35.1.40.3 (Iav. 2 post .Lab.); 33.5.20; 33.4.6.1 (Lab. 2 post. Iav. epit.); 39.3.2.6 (Paul 49 ed.) 334

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6. Sources and Scholarship V. IMPERIAL SOURCES

Private jurisprudence was not the whole story, nor even, in Ulpian’s time, the main theme. Imperial constitutions were taking centre stage. These were still primarily rescripts,345 documents addressed to private individuals or officials answering questions put to the emperor, sometimes about law.346 In answering them the emperor’s practice was to state the existing law and a lawyer drafted his reply. If the emperor wished to legislate, he had recourse to an edict, such as the Antonine constitution, or a resolution of the senate (senatusconsultum) passed at the emperor’s instance, for which the imperial address (oratio) was now treated as the authoritative text. We need to be alive to a certain irony. Ulpian cites many constitutions of Severus, Severus and Caracalla, or Caracalla alone.347 When he cites one with approval, he is not infrequently citing a text in the preparation of which he or Papinian or Menander or some other professional colleague played a role. His situation is not so different from that of Tribonian, praising himself in texts issued by Justinian but composed by himself as quaestor.348 The table that follows349 presents a picture of the gradually changing weight of imperial constitutions in relation to private jurisprudence. To ensure that frequency of citation is a reliable index of the author’s practice, the authors listed in rough chronological order are confined to those for whom we have at least 3,000 words in Justinian’s Digest. So far as citing private authors is concerned, jurists vary a great deal. Those most given to citation, Labeo, Pomponius, and Ulpian, come from three different centuries. What they have in common is a lively interest in scholarship. Those authors who are mainly oriented towards practice, like Scaevola and Papinian, cite earlier authors sparingly. So, for a different reason, does Callistratus, a provincial writer mainly concerned with criminal and public law,350 an imperial domain. Yet when all necessary allowances have been made, Ulpian stands out in the Severan age for his concern with the scholarly literature, a concern stronger than Paul’s and much stronger than that of Marcianus, the two contemporaries who mainly expound private law. The extent to which the various authors refer to imperial constitutions varies with the topic but, in contrast with their citing private authors, the frequency changes over time. In the first century imperial law is a negligible element in legal writing. In the second its weight relative to private scholarly opinion grows. Callistratus writes in an eastern environment in the reign of Severus but cites him with or without Caracalla only four times in eighty-nine 345 347 348 350

346 Coriat (1997) 647–8 Honoré (1994) 33–70 with literature There are carefully compiled tables in Coriat (1997) 639–41, 647–8 349 Honoré (1978) 204 Honoré–Menner (1980) relevant fiches and intro. § 4 Lenel (1889) 1.82–106; Kunkel (1967) 235; Liebs (1997) §430.1

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6. Sources and Scholarship Frequency of citation of authors and emperors Author

% of Digest

Citations of authors

Citations per 1%

Citations Citations of emperors per 1%

Labeo Iavolenus Iulianus Pomponius Gaius Africanus Scaevola Callistratus Papinian Paul Ulpian Tryphoninus Marcianus Modestinus

1.08 1.01 4.40 4.41 3.95 1.74 4.92 1.12 5.69 16.74 41.56 1.28 2.43 2.44

101 11 51 361 87 14 27 9 48 694 2577 15 62 27

93 11 12 82 22 8 5 8 8 41 62 12 26 11

0 0 2 30 12 8 16 89 72 116 461 18 148 110

0 0 0 7 3 5 3 79 13 7 11 14 61 45

references to emperors. His centre of gravity lies in the emperors of the late Antonine age. Even before Severus, therefore, the emperor’s rescripts had become the dominant source of law in the provinces, especially criminal and public law. Papinian reflects a further development. He had a wide private practice, not confined to public law, yet he too, though sparing in his mention of either, cites emperors more than private authors. In Paul and Ulpian, on the other hand, the balance is different. They put in five or six references to private authors for each citation of imperial law. The main reason is that in their major commentaries they summarise the whole of the relevant law rather than the points of growth. Marcianus, who follows Ulpian in so much, tilts the balance the other way. He has more than two constitutions to each citation of a private author. Modestinus has four times as many. This predominance of imperial sources heralds the decline of private legal writing, the so-called ‘end of the classical age’. Ulpian lives in the middle of this shift in the relative importance of imperial and private sources of law. He chooses between juristic and imperial sources according to the context. In private law he cites rather few constitutions; in public law, to which he made an original and creative contribution, many. In Justinian’s Digest he is recorded as citing the text, or part of the text, of 69 constitutions.351 Of these twenty-nine come from areas of public law: 351

Gualandi (1963) 1.17–229

154


thirteen from The Proconsul,352 eight from The Consul,353 two from The Community Treasurer,354 two from The Urban Prefect,355 two from Tribunals,356 and two from Appeals.357 Seven of these come from Severus and Caracalla, two from Severus alone, two from Marcus alone, five from Marcus, and Verus, eight from Pius, and five from Hadrian. This gives an idea of the slow but regular development of public law in the Antonine age. Ulpian cites constitutions in any number only from Trajan onwards. The figures are: Caesar 1, Augustus 5, Claudius 2, Nero 2, Titus 1, Domitian 1, Nerva 1, Trajan 14, Hadrian 48, Pius 113, Marcus and Verus 43, Marcus alone 65, Marcus and Commodus 2, Severus alone 46, Severus and Caracalla 61, Caracalla 46, imperator 1, princeps/principes 9. The list suggests that Ulpian’s reading went back to Trajan and Hadrian. The first constitutions he cites verbatim come from a chapter in Trajan’s official instructions (mandata)358 and from two rescripts of Hadrian.359 Ulpian is selective about emperors as he is about private authors. He certainly knew some rescripts of Commodus and Pertinax, but he does not cite any, despite the fact that Callistratus,360 Papinian,361 Marcianus,362 and Modestinus363 cite Commodus, while Callistratus364 and Modestinus365 cite Pertinax. A certain fastidiousness or caution is at work here. Paul shares it. It can be assumed that when Ulpian cites the text of a constitution he has consulted the text. This could be found in the Book of Petitions and Rescripts (Liber libellorum rescriptorum, evidenced for Gordian III),366 which probably refers to the posting-up of a batch of petitions and replies in public, later stored in an archive. Another source was provided by private collections of laws. One collection that gave at least some texts of rescripts of Marcus and Verus or of Marcus alone was that of Papirius Iustus, whose twenty books of imperial constitutions (De constitutionibus) were available to Justinian’s compilers.367 Pernice thought that Ulpian did not use this collection, but the texts he cites are on different points from those recorded by Papirius.368 It is true 352 D 1.16.6.3 (1 off. proc.); 26.5.12.2 (3 off. proc.); 50.4.6 pr; 50.7.7 (4 off. proc.); 48.8.4.2 (7 off. proc.); 1.6.2; 48.6.6; 48.18.1.1, 16, 22, 27; 47.14.1 pr (8 off. proc.); 48.20.6 (10 off. proc.) 353 D 35.1.50; 40.12.27 pr (1 off. cons.); 25.3.5.7, 14; 34.1.3 ( 2 off. cons.); 1.7.39; 27.3.17; 50.12.8 (3 off. cons.) 354 355 D 50.12.1.5; 50.10.5 pr (1 off. cur. reip.) D 1.12.1.4; 1.15.4 (1 off. urb. pr.) 356 357 D 50.13.1.10, 12 (8 omn. trib.) D 49.1.1.1 (1 appell.); 49.9.1 (4 appell.) 358 359 D 29.1.1 pr (45 ed.) D 37.10.3.5 (41 ed.); 29.5.1.28 (50 ed.) 360 361 D 12.3.10 (Call. 1 quaest.); 35.3.6 (4 cogn.) D 22.3.26 (Pap. 20 quaest.) 362 D 40.10.3 (Marci. 1 inst.); 49.14.31 (4 inst.) 363 364 D 25.3.6.1 (Mod. 1 manual.); 27.1.6.8 (2 excus.) D 50.6.6.2, 13 (Call 1 cogn.) 365 D 40.5.12.2 (Mod. 1 manual.) 366 Honoré (1994) 47f.; Nörr (1981) 27–9; d’Ors–Martin (1979); W. Williams (1986) 201–4; Liebs (1997) §411.3 367 Lenel (1889) 1.947–952; Kunkel (1967) 216–7; Liebs (1997) §415.5 368 Pernice (1885) 456 citing D 4.4.9.5 (Ulp. 11 ed.) and 39.4.7.1 (Papir. 2 const.). The last text concerns a ward (pupillus) not a minor and simply grants an indulgence in the particular case. It does not lay down a general rule and Ulpian was not bound to cite it: D 1.4.1.2 (Ulp. 1 inst.)


155

that Ulpian does not expressly mention Papirius. He cites one rescript from the half-yearly collection (semenstria) published regularly by Marcus and Commodus,369 a source that Tryphoninus also uses.370 That Ulpian consulted some collection or collections of imperial texts seems likely from phrases with ‘there exists’ (extat), for example ‘there exists a rescript’ of the deified Pius,371 Marcus,372 Marcus and Verus,373 the deified brothers,374 or Severus375 or ‘there exists the senatusconsultum Vitrasianum’.376 The bulk of the constitutions cited will probably have come from an official archive of some sort. A secretary for petitions (a libellis) needed to find out what precedents there were on the points raised by the petitioner and on which the secretary must advise the emperor. Whether, as Pernice asserts,377 Ulpian’s reading was unsystematic and confined to rescripts bearing on the problem before him, we cannot know. A secretary for petitions who held office for six years (203–9) would over time have to deal with the whole range of topics on which rescripts might be sought. One of Pernice’s charges is that Ulpian passed off as his own statements of the law which from other sources are known to have come from an imperial constitution.378 In the case he refers to Ulpian reproduces379 what we know from a text of Paul380 to be the words of a law of Marcus and Verus. But for all we know Ulpian did make this clear and Justinian’s compilers have, in the interest of brevity, struck out the relevant words. Since he is in general careful to cite original texts when he can, we should not lightly assume an intention to pass off imperial law as his own invention. Ulpian aims at a balance between private authors and imperial sources. He is ready to cite either or both when appropriate. How does he perceive their relation to one another? Which prevails in case of conflict? At first sight he seems to put them on a level: ‘Julian wrote and it is provided by rescript . . .’;381 ‘Papinian replied and it is provided by rescript’;382 ‘hence it has been stated and provided by rescript’;383 ‘this is provided by rescript and juristic opinion’;384 ‘as is provided by imperial constitution and juristic reply’;385 ‘for this is recorded (by a legal author) and by rescript’.386

369 370 371 372 375 378 381 382 383 384 385 386

D 29.2.12 (11 ed: est et in semenstribus Vibiis Soteri et Victorino rescriptum) D 2.14.46 (Tryph. 2 disp., citing Marcus); 18.7.10 (note on Scaevola, citing Marcus) D 27.8.6 (1 ed.) cf. 36.3.1.11 (79 ed.); 27.10.1.1 (1 Sab.); 49.1.1.1 (1 appell.) 373 D 40.5.30.13 (5 fid.) 374 D 48.18.1.27 (8 off. proc.) D 27.8.1.2 (36 ed.) 376 377 D 26.10.1.7 (35 ed.) D 40.5.30.6 (5 fid.) Pernice (1885) 457 379 380 Pernice (1885) 455 D 27.8.1.10 (36 ed.) D 26.5.24 (Paul 9 resp.) D 13.7.13 pr (28 ed: scripsit Iulianus et est rescriptum) D 48.18.4 (3 disp: ut Papinianus respondit et est rescriptum) D 2.15.7.2 (7 disp: ut inde sit et dictum et rescriptum) D 4.4.7.9 (11 ed: et hoc et rescriptum et responsum est) D 3.2.13.7 (6 ed: ut et constitutum est et responsum) D 50.1.2.5 (1 disp: hoc enim et relatum est et rescriptum)

156


Juristic and imperial law do not come in any particular order, as is shown in the table compiled by Coriat.387 Juristic law is not confined to replies (responsa) but extends to what has been written, said, or reported in a treatise. Ulpian does not specially esteem replies. He cites none of his own. Nor does he cite those of Marcellus, one of his main sources,388 or of Scaevola.389 Only Papinian’s are treated with particular respect, but the respect is for the person, not the form of expression. Though juristic opinion is a source of law, Ulpian does not treat it as binding on himself. He is free to dissent from even a unanimous opinion of his colleagues. Juristic opinion can, as Gaius says, bind judges390 but it does not bind lawyers. Imperial constitutions are different. Ulpian praises391 and occasionally criticizes392 them, but they are binding and settle the law. If a testator bequeaths to a slave the slave’s private fund (peculium) by way of legacy the legacy should include, Ulpian thinks, any debt that the slave’s owner owes him.393 But, he admits, this is contrary to a rescript of Severus and Caracalla, of which he gives the text. He goes on to ask: ‘What if it was the testator’s intention (that the slave should be able to claim what the owner owes)? . . . Again, if the owner records in his accounts what he owes the slave, does the debt form part of the legacy?’ There is then a discussion of the opinions of Pegasus, Nerva, and Atilicinus. The latter held that the debt was not part of the legacy, which is correct, says Ulpian, because it is consistent with the rescript (quod verum est, quia consonat rescripto). So the rescript, even if open to criticism, is decisive, and the principle that underlies it can be applied in similar cases. The view underlying this text is perhaps that rescripts on points if law are declaratory of the true state of the law. Often they confirm Ulpian’s personal opinion,394 which they can do in advance. It is this way of looking at legal problems that makes it possible for Ulpian to say of a rescript of Marcus that it conforms to his own opinion.395 Thus, on a point in the law of return from captivity (postliminium) ‘there is no doubt after the rescript of the emperor Antoninus and his deified father’ that a son born in captivity has the rights of a son on return.396 But at other times Ulpian implies that a rescript has changed the law. Of a rescript of Marcus that allowed a slave owner to accuse his slave of adultery, he writes ‘After this rescript the owner has a duty to 387 Coriat (1997) 526–7, citing Collatio 12.7.4–6 (18 ed.); D 27.3.1.15 (36 ed.); 42.8.10.1 (73 ed.); 28.6.2.4 (6 Sab.); 38.17.2.2 (13 Sab.); 40.5.24.9 (5 fid.); J Inst. 2.20.12, where rescript and constitution agree and D 9.2.29.1 (18 ed.), where they do not 388 Above n.9–10, 18–9 389 Above n.8–10, 109–15 390 Gaius, Inst. 1.7 391 D 17.1.6.7 (29 ed.); 28.6.2.4 6 Sab.); 50.2.3.1 (3 off. proc.); 48.19.8.1 (9 off. proc.); 50.15.3.1 (2 cens.) 392 D 33.8.6.4 (25 Sab.); 42.1.5.9 (3 off. cons.), 393 D 33.8.6.4 (25 Sab.) 394 36.1.19.1 (15 Sab: ut est et rescriptum); 26.8.5.3 (et ita est rescriptum); 49.1.1.2 (1 appell: huic consequenter videtur rescriptum); 38.17.2.47 (13 Sab: et invenimus rescriptum) 395 D 29.1.3 (2 Sab: nam secundum nostram sententiam etiam divus Marcus rescripsit) 396 D 49.15.9 (4 Iul. Pap.)


157

accuse his own slave.’397 A ward who has meddled with the affairs of another can ‘after the rescript of the deified Pius’ be sued to the extent of any profit he has derived.’398 Whether it declares existing law or makes new law a single rescript is conclusive. It does not follow that rescripts are immune from criticism. Caracalla ruled that debts could be taken in execution, if necessary. This applies, on the better view, says Ulpian, only to debts that the debtor admits are due. Yet one might argue that the judge should decide whether they are due, as happens with execution against tangible property. ‘But the contrary has been laid down by rescript’.399 Just as juristic opinion binds judges but not lawyers, so rescripts bind judges and lawyers but not emperors. An emperor may depart from his own prior view of the law or that of his predecessors.400 If rescripts are at variance a lawyer may choose between the differing views.401 A lawyer advising an emperor as secretary for petitions or as imperial councillor may properly urge him to take a different view of the law from that presented by a previous rescript or line of rescripts. The rules about the sources of law establish a hierarchy. The rulings of emperors if unanimous bind lawyers and judges, the rulings of lawyers of authority if unanimous bind judges. But emperors do not bind themselves, and lawyers of authority do not bind themselves or one another. The emperor’s decision has the force of law,402 says Ulpian in a famous and characteristically forceful phrase. But it ceases to be law if the emperor or his successor can be induced to take a different view. Moreover within imperial laws there are the more or less weighty.403 Decisions in judicial proceedings (decreta) are not on a level with general constitutions and the same is true to a lesser extent of rescripts. So it is possible to say of a point of law that it has been judicially decided and (separately) laid down as law,404 or that it has been decided by rescript and (separately) laid down as law.405 Judicial decisions and rescripts make law most clearly when they express a general principle, and of this an imperial edict or other general constitution is the best evidence. 397

D 48.2.5 (3 adult.) cf. 31.61.1 (18 Iul. Pap: Iulianus quidem ait . . . sed post rescriptum Severi) 399 D 42.1.15.9 (3 off. cons: sed contra rescriptum est) D 3.5.3.4 (10 ed.) 400 D 37.14.17 pr (11 Iul. Pap.) 401 D 49.14.6 pr (63 ed.) 402 D 1.4.1 pr (1 inst: quod principi placuit legis habet vigorem) 403 Crifò (1983) 420 404 D 4.4.26.1 (5 fid: et est decretum ab imperatore Severo et constitutum); 49.14.25 (19 Sab: decretum et a divo Severo constitutum est) 405 D 29.7.1 (4 disp: saepissime rescriptum et constitutum est). 398

7 Dates and Plan I: On the Edict T H I S and the next two chapters try to fix the dates of Ulpian’s various works, their order and the rate at which he wrote them. Though a sympathetic critic has described this aim as ‘not worth the effort’1 the enterprise is instructive from more than one point of view. It affords a paradigm of the Roman genius for discipline and method. It shows how it was possible to achieve so much in so short a period. Its conclusions have been largely accepted in a standard work of reference.2 Moreover, an improved understanding of the Roman calendar helps to modify the account in the first edition. I begin with Ulpian’s eighty-one books On the Edict (Ad edictum praetoris),3 which for short will be called Edict. Once we assign these books to the right period and fix the blocks of text in which Ulpian composed them, the other works can be fitted in. To summarize the argument, Edict books 9–56 were composed in Caracalla’s sole reign, but that reign falls from Ulpian’s point of view into two parts, one up to about book 19, the other starting about book 22. Some of the later books (61–73) were written under Macrinus. As to the rate at which Edict was written, the 76 books from 6 to 81 were composed in three blocks, two of 251⁄2 and one of 25 books. These blocks represent annual stints and are independent of the political conditions that prevailed at the time of writing. To discover the dates of composition of Edict, and the blocks in which it was written, we have, apart from some special clues, two resources. One comes from references in Edict to reigning or recently dead emperors. These, closely studied, are seen to reflect political conditions at the time of writing. They can be used to date, within limits, the different parts of the commentary. A second resource comes from the study of Ulpian’s style. Over the period needed for such a large-scale work as Edict this slowly evolved. Had Ulpian composed it in a continuous tract, it would still be useful to note how, as time went by, he discarded certain expressions and adopted others. This would help to date other works by their relation to the different parts of Edict. But 1

2 Liebs (1997) §424 Millar (1986) 273,275 Lenel (1889) 2.421–884; Ind. Flor. 24.1; Collectio 2.160, 3.2998f.; Seckel–Kübler (1908–27) 1.502, 2.171; FIRA 2.62–3.313; Girard–Senn (1967) 455–6, 458–9; Mommsen (1879,1904–13) 2.68–75; Ferrini (1886); Brassloff (1933); Wolff (1949) 64–90; Arangio-Ruiz (1957) 140–58; Wolff (1959) 1–10; Wieacker (1960) 127,231–70,446f.; Schulz (1961) 244–50; Watson (1962) 209–26; Arangio-Ruiz (1965) 2.1–25; Liebs (1972) 169f.; Honoré–Rodger (1974) 57–70; Liebs (1984) 447; Falchi (1985) 189–214; Liebs (1997) §424.1 3

On the Edict

159

we can go further. Instead of being gradual, changes in the style of Edict are in places abrupt. They occur between one book and the next, perhaps even in the middle of a book. Such abrupt changes point to discontinuous composition. Ulpian has, for a time, put Edict aside in order to write or do something else. Given the strain, and at times tedium, involved in writing on such a scale this is hardly surprising. The breaks that can be detected help to fix the blocks in which Edict was composed. These, in turn, give a clue to Ulpian’s method of composition, and suggest a method, set out in the next chapter, for dating his works and fixing the order in which he wrote them. The Index Florentinus4 ascribes to Ulpian 83 books On the Edict. That is a mistake. The headings of the Digest texts go up only to 81.5 The two books on the edict of the market-masters or curule aediles formed a separate commentary.6 Texts from these books are headed Ad edictum aedilium curulium libro primo or libro secundo. They are not treated as the 82nd and 83rd books of Edict. It was a mistake on Lenel’s part to treat them as such.7 As will emerge later,8 these two books were probably composed at a time when Ulpian had not got beyond Edict book 31. They were not left till the end.

I. REFERENCES TO EMPERORS

As regards references to living and recently dead emperors the 81 books, assuming that they were composed in the numbered order, divide into five groups: 1. 2. 3. 4. 5.

Books 1–6 Books 9–19 Books 22–57 Books 61–73 Books 74–81

The gaps cover books in which references to emperors are missing or ambiguous. In any case these groups do not represent the blocks of text in which Ulpian composed the commentary. They reflect rather the political conditions obtaining at the time of composition. In regard to each group I set out and seek to interpret the references to emperors. 1. Books 1–6 There is a single reference to a living or recently deceased emperor: 6 ed.

D 3.2.24 4 6 8

imperator Severus rescripsit

5 Ch. 24.1 D 21.2.52; 39.1.21; 39.2.24, 26, 28, 30 7 Lenel (1889) 2.884–98; Liebs (1997) § 424.2 Lenel (1889) 2.884–98 Ch.9 n.26–34

160

7. Dates and Plan I

These first six books do not settle who the reigning emperor or emperors are. We cannot conclude from the phrase imperator Severus that Severus was alive when book 6 was composed. Although Mommsen, on the basis of his epigraphic studies, believed that imperator is properly used only of a living emperor,9 Fitting pointed out that, on Mommsen’s own showing,10 lawyers’ writings often violated this pattern.11 A treatise by a lawyer is not like an inscription on a column, in which it is important to adhere to the exact title and to observe the convention that a deified emperor should be called divus. When a lawyer cites the exact words of the law of a dead emperor, he often introduces the emperor as imperator, as in this text of Marcianus written after Caracalla’s death:12 Imperatores Severus et Antoninus in haec verba rescripserunt:

Again, the Questions (Quaestiones) of Papinian, composed under Severus, regularly flout the suggested convention. They refer to deceased emperors as imperator so-and-so, as in a reference to the long dead and deified emperor Titus Antoninus (Pius):13 Imperator Titus Antoninus rescripsit non laedi statum . . .

On the other hand Papinian’s Replies (Responsa), apart from one text,14 call dead emperors divus.15 What factors influence the choice of divus or imperator in referring to a dead emperor? If the lawyer has consulted the text of the constitution he cites, he is more likely to favour imperator. If, again, he is writing in a less formal mode (Quaestiones, debates about points of law, being less formal than Responsa, written opinions that could be cited in court), or if he wishes to show special respect for the emperor, he may adopt the imperator form. But, as Papinian’s examples show, practice was not uniform. To avoid monotony a writer might vary the form of reference. Perhaps for this reason lawyers sometimes give the dead emperor’s name without any title: Traianus, Hadrianus, etc.16 Apart from this, Mommsen listed twenty-one violations of his convention in the Digest by writers as various as Callistratus, Menander, 9

10 Mommsen (1904–13) 2.157–61 Mommsen (1904–13) 2.156–7 cf. d’Ors (1942–3) 12 D 28.1.5 (Ulp. 6 Sab.) Fitting (1908) 5–8. 13 D 1.5.8 (3 quaest.) cf. 50.1.11 pr (2 quaest.); 3.1.8 (2 quaest.); 31.64 (15 quaest.); 31.67.10 (19 quaest.); 12.6.3; 22.1.3 pr; 36.1.57.1 (20 quaest.); 36.3.5.1, 3 (28 quaest.); 35.2.11.2 (29 quaest.); 1.7.32.1 (31 quaest.); 48.5.39.4–6, 8; (36 quaest.) cf. Frag. Vat. 224 (11 quaest.) 14 D 20.2.1 (10 resp.) 15 e.g. D 29.2.86 pr (6 resp: divus Pius) 16 There are a number of examples from early emperors: Augustus: D 1.17.1 (Ulp. 15 ed.); D. 23.2.14.4 (Paul 35 ed.); 40.1.14.1 (Paul 16 Plaut.); 49.16.12.1 (Macer 1 re mil.); 50.15.1.1 (Ulp. 1 cens.): Claudius: Gai. Inst. 1.32 c; D 4.4.3.4 (Ulp. 11 ed.); 16.1.2 pr. (Ulp. 29 ed.); Trajan: Gai. Inst. 1.34; D.26.7.12.1 (Paul 38 ed.); 29.1.1 pr. (Ulp. 45 ed.); 49.14.13.6 (Paul 7 leg. Iul. Pap.); 49.14.16 (Ulp. 18 leg. Iul. Pap.); Hadrian: Gai. Inst. 1.47; Ulp. Tit. 24.28; Collatio 1.6.1 (Ulp. 7 off. proc.); D 11.8.3 (Ulp. 8 off. proc.); 37.1.6.8 (Mod. 2 excus.); 34.1.14.1 (Ulp. 2 fid. twice); 36.1.31.5 (Marci. 8 inst.); 40.12.27. 1 (Ulp. 2 off. cons.); 42.4.7.16 (Ulp. 59 ed.); 47.14.1.3 (Ulp. 8 off. proc.); 49. 14.13. 5 (Paul 7 leg. Iul. Pap.); 49.16.5.6 (Men. 2 re mil.); 49.17.19.3 (Tryph. 18 disp.); 50.8.12.3 (Papir. 2 const.) 11

On the Edict

161

Ulpian, Paul, Macer, and Modestinus.17 In these texts the author wrote imperator for divus when speaking of a dead and deified emperor. Fitting added two more instances from Paul18 and Marcianus,19 and overlooked two from Macer.20 Given this weight of exceptions, it was bold of Mommsen to argue that his rule remained intact. Nevertheless he relied on it to support a mistaken hypothesis about the composition of Ulpian’s Edict.21 The safe course is to assume that, while the use of divus is usually a sign that the emperor is dead (not infallible since a text can be altered retrospectively), its absence is no sure sign that the emperor is alive. So the reference to imperator Severus in book 6 of Edict does not tell us whether Severus was then alive or dead. 2. Books 9–19 9 ed.

D 3.3.33.2

quod et ex rescripto imperatoris nostri apparet

10 ed.

D 3.6.1.3

sed et constitutio imperatoris nostri prohibuit

11 ed.

D 4.2.9.3

sed ex facto scio rescriptum esse ab imperatore nostro

11 ed.

D 4.4.3 pr.

Denique divus Severus et imperator noster interpretati sunt

11 ed.

D 4.4.7.10

et divus Pius rescripsit et imperator noster

11 ed.

D 4.4.11 pr.

et hoc rescripto divi Severi continetur

11 ed.

D 4.4.11.2

Aetrius Severus quia dubitabat ad imperatorem Severum rettulit

11 ed.

D 4.4.18.1

Glabrionem Acilium divus Severus et imperator Antoninus non audierunt

11 ed.

D 4.4.18.2

Percennio Severo . . . divus Severus et imperator Antoninus permiserunt in auditorio suo examinari . . .

11 ed.

D 4.4.18.3

Idem imperator Licinnio Frontoni rescripsit

11 ed.

D 4.4.22

Calpurnio Flacco Severus et Antoninus rescripserunt

15 ed.

D 5.3.20.12

sed imperator Severus epistula ad Celerem idem videtur fecisse

16 ed.

D 36.1.38.1

divus Severus in persona Arri Honorati pupilli decrevit

16 ed.

D 6.2.11 pr


17 D 49.16.6.7 (Men. 2 re.mil.); 4.4.45.1 (Call. 1 ed. mon.); 48.15.3 pr. (Marci. 1 iud. pub.); 25.3.6.1; 40.5.12 pr (Mod. 1 man.); 27.1.6.8, 17 (Mod. 2 excus.); 27.1.13.6, 7 (Mod. 4 excus.); 27.1.15 pr; 19.2.49 pr (Mod. 6 excus.); 40.4.56 (Paul 1 fid.); 4.6.8 (Paul 3 brev.); 34.9.5.9 (Paul 1 iur. fisc.); 5.3.43 (Paul 2 Plaut.); 49.14.49 (Paul 1 resp.); 42.8.10.1 (U1p. 73 ed.); 49.14.25 (Ulp. 19 Sab.); 1.5.1.8 (Ulp. 21 Sab.); Frag. Vat. 119 (Ulp. 2 off. proc.); D 23.1.16 (Ulp. 3 leg. Iul. Pap.); Ulp. Tit. 26–7 18 D 40.9.15 (Paul 1 leg. Iul. Pap.) 19 D 49.14.30 (Marci. 3 inst.) 20 D 48.21.2 pr; 49.14.34 (Macer 2 iud. pub.) 21 Mommsen (1904–13) 2.159

162

7. Dates and Plan I

17 ed.

D 8.4.2

sed rescripto imperatoris Antonini ad Tullianum adicitur

18 ed.

Collatio 12.7.6

cuius sententia et rescripto divi Severi comprobata est

18 ed.

D 9.2.29.1

ex rescripto imperatoris Severi

19 ed.

D 10.2.18.3

secundum rescriptum imperatorum Severi et Antonini

19 ed.

D 10.2.20.1

et ita imperator noster rescripsit

22

In book 11 the phrase divus Severus et imperator noster implies that Caracalla is sole emperor at the time of writing. His father is dead and he is the ruler. The imperator noster of book 9 23 is surely also Caracalla. There may indeed have been an interval between writing book 9 and book 11. But between AD 198 and the end of 211 there was always more than one emperor. Hence, if the imperator noster of book 9 is not Caracalla, the book must have been composed thirteen years before book 11. So long a gap is unlikely. Throughout the period that stretches from book 9 to book 19, then, Caracalla is sole emperor. But Ulpian still treats Severus as senior to his son. When father and son are mentioned in the same text, the father comes first. Ulpian uses various formulae: divus Severus et imperator noster,24 divus Severus et imperator Antoninus,25 Severus et Antoninus,26 and imperatorum Severi et Antonini.27 Severus is alternatively divus, imperator, and called by his name alone, but the order of emperors does not vary. During this period Severus is six times divus,28 five times imperator,29 and is once mentioned by his name alone.30 If we approach the matter without preconception, Ulpian is flexible, almost indifferent, in the way he refers to the dead Severus. The part of Caracalla’s sole rule during which Ulpian, in joint citations, treats Severus as senior to his son, will be called Caracalla A. 3. Books 22–57 A reference in book 21 may or may not belong to the Caracalla A period: 21 ed.

D 28.5.30


From book 22 onwards, however, the texts belong to a new period in which Caracalla has priority over his father. This period will be called Caracalla B: 22 ed.

D 1.5.17

ex constitutione imperatoris Antonini

22 ed.

D 12.2.13.6

imperator noster cum patre rescripsit

24 ed.

D 11.6.7.3

nam et divus Severus decrevit

22 25 28 29 30

23 D 3.3.33.2 24 D 4.4.3 pr (11 ed.) D 4.4.3 pr 26 D 4.4.22 (11 ed.) 27 D 10.2.18.3 (19 ed.) D 4.4.18.1, 3 (11 ed.) D 4.4.3 pr; 4.4.11 pr; 4.4.18.1, 3 (11 ed.); 36.1.38.1 (16 ed.); Collatio 12.7.6 (18 ed.) D 4.4.11.2 (11 ed.); 5.3.20.12 (15 ed.); 6.2.11 pr (16 ed.); 9.2.29.1 (18 ed.); 10.2.18.3 (19 ed.) D 4.4.22 (11 ed.)

On the Edict

163

25 ed.

D 11.7.12 pr

Imperator Antoninus cum patre rescripsit

25 ed.

D 47.12.3.3

ut rescripto imperatoris Antonini cavetur

25 ed.

D 47.12.3.4

edicto divi Severi continetur

25 ed.

D 47.12.3.7

ut divus Severus rescripsit

25 ed.

D 11.7.14.7


26 ed.

D 12.5.2.231

et non ita pridem imperator noster constituit

26 ed.

D 12.6.26 pr

divus Severus rescripsit

26 ed.32

Frag. Vat. 266

imperator noster rescripsit in haec verba

28 ed.

D 13.7.11.6

quod constitutum est ab imperatore nostro

29 ed.

D 16.1.2.3

hoc enim divus Pius et Severus rescripserunt . . . et est et Graecum Severi tale rescriptum

29 ed.

D 16.1.4

et ita divus Pius et imperator noster rescripserunt

31 ed.

D 17.1.12.10

et ita imperator Severus Hadriano Demostrati rescripsit

31 ed.

D 17.2.52.5

et imperator Severus Flavio Felici in haec verba rescripsit:

32 ed.

D 18.2.16


32 ed.

D 18.3.4 pr

ut rescriptis imperatoris Antonini et divi Severi declaratur

32 ed.

D 19.2.9.1

et ita imperator Antoninus cum divo Severo rescripsit

32 ed.

D 19.2.9.4

imperator Antoninus cum patre ita rescripsit

32 ed.

D 19.2.15.5

rescripto divi Antonini continetur

32 ed.

D 19.2.15.6

rescriptum est ab Antonino Augusto

32 ed.

D 19.2.19.9

imperator Antoninus cum divo Severo rescripsit in haec verba

34 ed.

D 23.3.40

divus Severus rescripsit Pontio Lucriano in haec verba

34 ed.

D 23.4.11

ita interpretandum divus Severus constituit

34 ed.

D 49.14.27

divus Severus rescripsit

34 ed.

D 27.2.1.1


35 ed.

D 27.2.1.3

et ita divus Severus saepissime statuit

35 ed.

D 26.7.3.4


35 ed.

D 26.7.7.4

et ita divus Severus decrevit

35 ed.

D 27.9.1 pr

imperatoris Severi oratione . . . quae oratio in senatu recitata est33

35 ed.

D 27.9.3 pr

secundum constitutionem imperatoris nostri et divi patris eius

31 32

= CJ 7.49.1, 19 Dec. 212 The heading is 1 ed. de rebus creditis, which corresponds to 26 ed.

33

13 June 195

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7. Dates and Plan I

35 ed. 35 ed. 35 ed. 35 ed. 36 ed. 36 ed. 36 ed.

D 26.10.1.4 D 26.10.1.7 D 26.10.3 pr D 26.10.3.13 D 27.3.1.3 D 26.7.9.6 D 27.3.1.13

36 ed. 36 ed.

D 27.3.1.15 D 12.3.4 pr

36 ed.

D 12.3.4.1

36 ed. 38 ed.

D 27.5.1.2 D 47.4.1.7

45 ed. 50 ed. 52 ed. 52 ed.

D 29.1.13.4 D 48.18.3 D 36.4.5.16 D 36.4.5.25

sed imperator Antoninus cum divo Severo rescripsit et rescriptum exstat divi Severi et ita divus Severus rescripsit Severus et Antoninus rescripserunt Epicurio nam divus Severus decrevit imperator Antoninus cum patre prohibuit constitutum est a divo Pio et ab imperatore nostro et divo patre eius et ita imperator noster Ulpio Proculo rescripsit rescriptis imperatoris nostri et divi patris eius continetur et ita constitutionibus expressum est imperatoris nostri et divi patris eius divus Severus rescripsit est autem saepissime et a divo Marco et ab imperatore nostro cum patre rescriptum imperator noster cum divo Severo rescripsit constitutione imperatoris nostri et divi Severi placuit Imperator Antoninus Augustus rescripsit Constitutio autem divi Antonini pertinet

57 ed.

D 47.10.7.6

imperator noster rescripsit

During the Caracalla B period Caracalla is sole emperor and, when he is mentioned in conjunction with his father, his father comes second. This contrasts with the Caracalla A period, when Severus came first. In books 2234 and 50 35 a constitution of imperator noster and his father Severus is mentioned. Imperator noster also comes in thirteen texts between these books,36 imperator Antoninus in eight,37 Antoninus Augustus in a ninth.38 So Caracalla was sole emperor during the whole period between the composition of books 22 and 50. Doubt surrounds only the last three texts, two from book 52 and one from book 57. In the first text from book 5239 imperator Antoninus Augustus is said to have given a rescript to the effect that a legatee or fideicommissary could in certain cases get an order putting him in possession of the heir’s property. In the second text 40 this same rescript is referred to as a constitutio divi Antonini. Fitting argued41 that the first sentence was written at the very end of Caracalla’s 34

35 D 48.18.3 (50 ed.) D 12.1.13.6 (22 ed.) D 11.7.14.7 (25 ed.); 12.5.2.2 (26 ed.); Frag. Vat. 266 (26 ed.); D 13.7.11.6 (28 ed.); 16.1.4 (29 ed.); 26.7.3.4; 27.9.3 pr (35 ed.); 12.3.4 pr, 1; 27.3.1.13; 27.3.1.15 (36 ed.); 47.4.1.7 (38 ed.); 29.1.13.4 (45 ed) 37 D 11.7.12 pr (25 ed.); 47.12.3.3 (25 ed.); 18.3.4 pr; 19.2.9.1, 4; 19.2.19.9 (32 ed.); 26.10.1.4 (35 ed.); 26.7.9.6 (36 ed) 38 D 19.2.15.6 (32 ed.) 39 D 36.4.5.16 (52 ed.) 40 D 36.4.5.25 (52 ed.) 41 Fitting (1908) 107; Karlowa (1885–1901) 1.743 36

On the Edict

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reign. The emperor’s death caused Ulpian to put his pen aside. By the time he resumed book 52 Caracalla was referred to as divus Antoninus. But the two texts belong to a continuous passage, as printed in the Palingenesia, of fifty lines.42 The shock of Caracalla’s death would hardly have made Ulpian stop in the middle of the passage he had started dictating.43 The correct explanation is surely that of Mommsen.44 In the second text divus is a retrospective insertion. A copyist will be tempted to insert divus if by the time he is copying it the emperor in question has been deified. He is especially likely to do so if the original referred to the emperor just by his name. So the likelihood here is that the original read constitutio autem Antonini. The copyist has inserted divi before Antonini. It is no surprise to find bare Antoninus in the original at this point, since Caracalla has just previously been called imperator Antoninus Augustus,45 which, in a legal text, is a trifle formal. A formal reference can properly be followed by an informal one. This presupposes that imperator Antoninus Augustus is indeed Caracalla, not Elagabal. The constitution mentioned in book 52 is referred to in a rescript of Alexander of 225,46 and there attributed to divus Antoninus pater meus. Alexander was referring to Caracalla, from whom he claimed descent, not to the discredited Elagabal.47 So book 52 of Edict was composed under Caracalla. In any case Caracalla’s deification came not at once, but after an interval, at the end of Macrinus’ reign or the beginning of Elagabal’s.48 If, therefore, divus was genuine in the second text, we should still have to suppose the sort of break that Fitting proposed—a year’s interval between the beginning and the end of a text that reads as continuous. The third text49 presents more difficulty. Fitting, followed by d’Ors, held that imperator noster in this text is Alexander.50 Gualandi, however, points out that their arguments, drawn from the use of divus in book 52, are unreliable. One cannot rule out the possibility that the emperor referred to was Caracalla. In my view imperator noster here is indeed Caracalla. But the argument for preferring a later emperor can be strengthened. This later emperor could not be Alexander, because during the short time that he lived under Alexander, between AD 222 and 223/4, Ulpian, as a prefect, did not have time to compose twenty-five books of edictal commentary. One could, however, adapt Fitting’s idea by substituting Elagabal for Alexander. As explained later in this chapter,51 there appears to be a break in Ulpian’s Edict in the middle of book 56. This break, if it existed, occurred shortly before the text in book 57 that we are now considering. There could have been a substantial 42

43 Crifò (1985) 610 suggests this Lenel (1889) 2.741–2 45 D 36.4.5.16 (52 ed.) Mommsen (1904–13) 2.169 46 CJ 6.54.6 (8 Jan. 225) 47 Herodian 5.3.10; 5.7.3; CJ 12.35.4 (Antoninus pater meus); 6.50.5 (17 Nov. 223: constitutio divi Severi avi mei) 48 Dio 79.9.2; 79.17.2; 80.2.6; von Rohden (1896) 2437. 49 D 47.10.7.6 (57 ed.) 50 Fitting (1908) 107 cf. d’Ors (1942–3) 68 51 Below n.109–12 44

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7. Dates and Plan I

interval between the composition of book 52, when there is reason to suppose that Caracalla was still alive, and book 57. So book 57 might have been composed under Elagabal. There are, however, two reasons for rejecting this suggestion. There is no sign that the text refers to Elagabal. Indeed, there is no positive evidence that Ulpian composed anything under Elagabal. Secondly, there is positive evidence, to be detailed in a moment,52 that some books of Ulpian’s Edict later than book 57 were composed in the reign of Macrinus. If so, book 57 cannot have been composed under Elagabal, unless it was written out of order. But why should it have been? I therefore adopt the suggestion of Gualandi that in this book 57 text imperator noster is still Caracalla. But if Caracalla was sole emperor during the period of composition of books 22 to 57, his relation to Severus had changed from what it was up to book 19. Ulpian now treats him as senior to Severus, in the sense that he is consistently mentioned first. Various formulae are used: imperator noster cum patre53 imperator noster et divus pater eius54 imperator noster cum divo Severo55 imperator noster et divus Severus56 imperator Antoninus cum patre57 imperator Antoninus et divus Severus58 imperator Antoninus cum divo Severo59

In contrast with the Caracalla A period, where we found four texts in all of which Severus preceded his son, we now find seventeen texts, in sixteen of which one of the formulae just listed are used.60 The one exception comes in book 35.61 Here the text runs Severus et Antoninus rescripserunt Epicurio. Whatever the explanation of this exception, in which Severus comes first, it cannot obscure the contrast between Caracalla B and Caracalla A. Respect for or fear of the tyrant now made it standard practice to mention him first. Other writers, such as Paul62 and Tryphoninus,63 do the same, so that the works in which they do this should be assigned to the same part of Caracalla’s reign. It is not easy to say whether this change (which, I shall argue, occurred in 213) reflects some striking political event,64 or whether it defers to a 52

53 Below n.88–92 D 12.2.13.6 (22 ed.); 26.7.3.4 (35 ed.); 47.4.1.7 (38 ed.) 55 D 27.9.3 pr (35 ed.); 27.3.1.13; 12.3.4 pr, 1 (36 ed.) D 29.1.13.4 (45 ed.) 56 D 48.18.3 (50 ed.) 57 D 11.7.12 pr (25 ed.); 19.2.9.4 (32 ed.); 26.7.9.6 (36 ed.) 58 D 18.3.4 pr (32 ed.) 59 D 19.2.9.1; 19.2.19.9 (32 ed.); 26.10.1.4 (35 ed.) 60 Above n.53–9 61 D 26.10.3.13 (35 ed.) 62 D 27.1.46.2 (cogn.); 40.8.7 (1 lib. dand.); 27.9.13 pr (1 orat. d. Sev.); 47.15.6 (1 pub. iud.) 63 D 27.1.44 pr (2 disp.); 49.15.12.17 (4 disp.) 64 Quite possible. In 213 come the first inscriptions that call Caracalla magnus imperator (CIL V 28, X 5286). The Fratres Arvales call him Germanice max(ime) as early as 19 May 213: CIL VI 2086(2) line 15 54

On the Edict

167

growing insistence by Caracalla that the achievements of his father’s reign were in substance his own. At any rate there is a change in the political climate. Now, when Severus is mentioned as joint emperor with Caracalla, his title, if he is given one, is divus, not imperator. He is called divus in ten such joint texts;65 on the other hand, seven refer to him merely as Severus 66 or pater.67 When Severus stands on his own as the author of a constitution, he is imperator on five occasions,68 divus thirteen times69 and is twice mentioned by name alone.70 In the Caracalla A period there is an even balance between Severus, standing on his own, as imperator or divus. But in Caracalla B the divus texts outweigh the imperator texts by thirteen to five. Mommsen pointed out that the references to Severus as imperator cease after book 35.71 Since, in his view, imperator is only properly used of a reigning emperor, Ulpian must, he supposed, have drafted his commentary up to book 35 during the reign of Severus, and then revised it under Caracalla. This would account for the mixture of references to Severus, some as imperator, some divus. But, as we saw, lawyers do not consistently confine the title imperator to reigning emperors.72 If Ulpian really proceeded in the way supposed, why did he not revise the references to imperator Severus when he later inserted references to divus Severus? If he wanted to be consistent he could have made them all divus. As Fitting remarked,73 this slapdash method of revision does not fit the strict constitutional convention that forms the basis of Mommsen’s argument. Moreover, on the substance of the texts, there is no evidence that Edict was revised. In this respect it contrasts with Ulpian’s On Sabinus and The Proconsul, which do present signs of revision, though on a limited scale.74 In favour of his revision theory, Mommsen cites a text from book 11.75 This text begins Divus Severus et imperator Antoninus permiserunt, but goes on in the next sentence with Idem imperator rescripsit. Mommsen supposes that in the first version, composed under Severus, the text ran imperator Severus permisit.76 The reference to Caracalla has, he thinks, been added in the revised draft, and imperator Severus has been changed to divus Severus. But, if Ulpian went to that trouble to revise the text, why did he not change 65 D 18.3.4;, 19.2.9.1; 19.2.19.9 (32 ed.); 27.9.3 pr (35 ed.); 26.10.1.4 (35 ed.); 27.3.1.13; 12.3.4 pr; 12.4.3.1 (36 ed.); 29.1.13.4 (45 ed.); 48.18.3 (50 ed.) 66 D 26.10.3.13 (35 ed.) 67 D 12.2.13.6 (22 ed.); 11.7.2 pr (25 ed.); 12.2.9.4 (32 ed.); 26.7.3.4 (35 ed.); 26.7.9.6 (36 ed.); 47.4.1.7 (38 ed.) 68 D 17.1.12.10 (31 ed.); 17.2.52.5 (31 ed.); 18.2.16 (32 ed.); 27.2.1.1 (34 ed.); 27.9.1 pr (35 ed.) 69 D 11.6.7.3 (24 ed.); 47.12.3.3; 47.12.3.7 (25 ed.); 12.6.26 pr (26 ed.); 23.3.40; 23.4.11; 27.2.1.3; 49.14.27 (34 ed.); 26.7.7.4; 26.10.1.7; 26.10.3 pr (35 ed.); 27.3.1.3; 27.5 1.2 (36 ed.) 70 D 16.1.2.3 (29 ed., twice) 71 Mommsen (1904–13) 2.158–9; Karlowa (1885–1901) 1.743; Pernice (1885) 444; Jörs (1903) 1505 72 Above n.9–21 73 Fitting (1908) 8 74 Ch.8 n.33–7 75 D 4.4.18.2, 3 (11 ed.) 76 Mommsen (1904–13) 2.15923

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7. Dates and Plan I

Idem imperator rescripsit in the second sentence into Idem imperatores rescripserunt? A simpler explanation lies to hand. A law enacted by joint emperors is often treated as that of the senior Augustus, who alone normally has the power to make law. In this text, which comes from the Caracalla A period, Ulpian rightly treats Severus as the senior Augustus and so the real author of the law. A formal reference to both emperors is followed by an informal one which states the gist of the matter. No doubt, had he been writing this passage during the Caracalla B period, Ulpian would have expressed himself differently. Even Fitting, who is sceptical of Mommsen’s views, thinks that the whole work went through two drafts, one during the reign of Severus and a second under Caracalla and his successors.77 Kipp would extend the initial draft beyond book 35 to the end of Edict, the whole of which was worked over twice.78 Indeed Mommsen’s argument that the initial draft stopped at book 35 is a weak one. It is based on the fact that references to imperator Severus stop there. But between books 36 and 57 there are only two references to constitutions of Severus on his own. These two texts occur in book 36, and both speak of divus Severus.79 There are also seven texts between books 36 and 50 that mention Severus jointly with Caracalla.80 All these have divus Severus, divus pater, or pater, none imperator. But this is hardly surprising, since none of the earlier joint references in the Caracalla B period call Severus imperator either.81 As for the two texts in which divus Severus is mentioned on his own, there is no reason why they should be balanced by a text in which Severus is called imperator, since the ratio of divus to imperator references to him in this whole period is, as we have seen, at least two or three to one.82 In the upshot there is no reason to suppose that Ulpian left off a first draft of his Edict at or about book 35. Another argument of Fitting in favour of the revision theory merits a mention.83 In books 10 and 26 Ulpian cites a constitution of Caracalla of 19 December 212.84 This penalises a litigant who attempts to corrupt the judge or his opponent.85 In the second of these texts it is said that the constitution was issued ‘not so long ago’ (non ita pridem). It is impossible, says Fitting, that in this brief period Ulpian could have composed for the first time the intervening sixteen books—and possibly more, since there is no guarantee that book 10 was written very soon after 19 December 212. So Ulpian must during this brief interval have been revising a first draft, not composing a wholly new commentary. 77

78 79 Fitting (1908) 8 Kipp (1919) 13861 D 27.5.1.2; 27.3.1.3 (36 ed.) Above n.33–4 81 The only such text in the edictal commentary is D 10.2.18.3 (19 ed.) from the Caracalla A period 82 83 Above n.68–9 Fitting (1908) 106 84 D 3.6.1.3 (10 ed: constitutio imperatoris nostri, quae scripta est ad Cassium Sabinum); 12.5.2.2 (26 ed: non ita pridem imperator noster constituit) 85 CJ 7.49.1 (Antoninus A. ad Gaudium) 80

On the Edict

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But this argument is also weak. The phrase non ita pridem need not represent a very short period. It could continue to be appropriate for at least a year or so. The idea that Ulpian could not compose sixteen books in a year is ludicrous, his normal rate of composition being, we shall see, over forty books a year. It is like the theories once held about Justinian’s Digest, which, some scholars thought, could not have been compiled in three years without earlier drafts or partial codifications to work on.86 That has been shown to be wrong,87 and it is wrong for Ulpian too. Ulpian’s rate of work is best understood, I suggest, if we suppose that on average he composed about a book a week, with vacations of sixty days in all, during the period of about five years when he concentrated on writing. If so, he wrote or dictated each week about 10,000 to 12,000 words or the equivalent of 25 to 30 pages of modern print. A methodical writer can keep this up week after week if two conditions are present. One is that the source material has been collected beforehand and is easy to refer to. We should picture Ulpian during the reign of Severus not as making a first draft of Edict but as collecting and analysing the material he intends to use later. Secondly, we must suppose that Ulpian dictates to scribes who have become familiar with legal terms. There is no reason why Ulpian’s working method should not have been the same as that of Anthony Trollope and, if it comes to that, myself. We set ourselves to write so many words a day, but do not pedantically adhere to the routine. Instead, we check our progress to make sure that over a period we have kept up the pace.88 There is no solid basis, then, for the theory that the whole of Edict, or the first thirty-five books of it, were first drafted under Severus and later revised under Caracalla. So far as books 22–57 are concerned, the references to emperors show rather that they were drafted in that part of Caracalla’s reign that we have termed Caracalla B. This began ‘not long after’ 19 December 212. What is more, it began after the Constitutio Antoniniana, which is mentioned in book 22. 4. Books 61–73 In the next period Caracalla is called plain Antoninus, without a title, and Severus, in most texts, is also plain Severus. 61 ed.

D 26.5.18

et ita Severus rescripsit

64 ed.

D 42.6.1.3

et ita Severus et Antoninus rescripserunt

68 ed.

D 43.4.3.1

constitutum est ab Antonino

71 ed.

D 43.30.1.3

et divus Pius decrevit et a Marco et a Severo rescriptum est

73 ed.

D 42.8.10.1

et ab imperatore Severo et Antonino rescriptum est

86 88

Peters (1913) and others Mullen (1990) 320–1

87

Diósdi (1971); Honoré–Rodger (1970); Honoré (1978)

170

7. Dates and Plan I

It is clear from the mentions of Severus and Antoninus together that Antoninus still means Caracalla. He is not, however, now called imperator noster, Augustus, or princeps. There is no sign that he is now reigning. But neither is he divus. An isolated text in which Caracalla was plain Antoninus would be consistent with the hypothesis that he was still reigning, or was dead and had been deified. Three successive texts in which he is called Antoninus without more call for a different interpretation. They reflect political change. They point to the reign of Macrinus, during which Caracalla’s status was a source of perplexity to the equestrian emperor. Dio explains that Macrinus found himself in a dilemma.89 When writing to the senate, says the historian, himself a senator, he made no reference to Tarautas [viz. Caracalla] either favourable or unfavourable but simply called him emperor. He dared neither declare him a god nor call him a public enemy. He hesitated to take the first course, I think, because of (Caracalla’s) actions and the hatred felt towards him by many, the second because of the soldiers. Some thought he acted in this (hesitant) way because he wished the senate and people to take the step of dishonouring Tarautas themselves, the emperor being surrounded by troops.

It is this dilemma of Macrinus, surely, that Ulpian in his own way reflects. Unsure how to refer to Caracalla, he cannot call him divus, since he has not been deified and perhaps never will be. He is dead, so he cannot be noster, Augustus, or princeps. Imperator might do, but in the writings of a lawyer that title, used of a dead emperor, is perhaps too respectful. So, though Macrinus chose imperator in his letter to the senate as a non-committal expression, Ulpian’s solution is to adopt the plain form Antoninus. As to Severus, though he is not in disgrace, he, too, suffers to some extent from his association with Caracalla, and, in three texts out of four, becomes plain Severus.90 In the fourth, on the other hand, he is imperator Severus.91 The text runs ab imperatore Severo et Antonino. This may again reflect Caracalla’s dubious status. Severus can safely be called an imperator, but it is still possible that his son’s memory will be condemned. That Caracalla is now dead is clear from the fact that Severus is now mentioned before him,92 in contrast with the practice in the period we have called Caracalla B. Severus resumes his natural seniority. During this period, as Fitting pointed out,93 fewer laws and lawyers are cited. In contrast with the first fifty-two books, Ulpian no longer cites writers by work and book as he does earlier. An example of the earlier practice is: apud Marcellum libro quarto digestorum relatum est . . .94

89 90 92

Dio 79.17.2–3 cf. Honoré (1962a) 209 D 26.5.18 (61 ed.); 42.56.1.3 (64 ed.); 43.30.1.3 (71 ed.) 93 D 42.6.1.3 (64 ed.) Fitting (1908) 107

94

91 D 42.8.10.1 (73 ed.) D 5.3.13.10 (Ulp. 15 ed.)

On the Edict

171

Such references, with one uncertain exception,95 are missing in the later books. Jörs thought that the whole commentary was first drafted during Severus’ lifetime in this skeletal form.96 Then it was revised under Caracalla, and the work and book citations added. The revision, however, petered out towards the end. If the revision theory is rejected, two other explanations lie to hand. Ulpian may have been pressed for space towards the end of his great enterprise. In Paul’s Edict, which runs to 78 books, citations by work and book cease at book 41.97 The compilers of Justinian’s Digest may also have been pressed for space. The middle section of edictal commentary was apparently read by the Sabinian committee, the last by the edictal committee.98 According to Bluhme and Krüger the division falls in the middle of Ulpian book 52 and Paul book 48. Perhaps the edictal committee decided that the time had come to reduce the volume of excerpts by omitting these work and book citations. But two such citations occur in Ulpian, Edict book 5299 in a passage that Bluhme and Krüger assign to the edictal committee. This is not a strong objection, since we do not know exactly when one committee took over from another, and the apparent change of style may be largely due to the compilers of the Digest. Even if Ulpian did reduce citations in order to finish in the space available—and there is evidence that the commentary was planned to finish at book 81100—this would not explain why Caracalla is called plain Antoninus in books 64–73. The explanation is political, not a matter of style. 5. Books 74–81 There is no reference to contemporary or recently dead emperors in these books. Though they cannot be earlier than the reign of Macrinus, the absence of political content leaves the date uncertain. In the upshot we can draw the following conclusions from the references to emperors in Edict: (i) Books 9 to 19 were composed during the sole rule of Caracalla (19/26 December 211–8 April 217) but at a time when he did not insist that joint acts of his father and himself should be attributed primarily to himself. (ii) Books 22 to 57 were also composed during the sole rule of Caracalla but at a time when Caracalla insisted on being treated as the principal author of these joint acts. This period began not long after (within a year or so of) December 212. 95 97 98 99 100

96 Jörs (1903) 1439f. D 47.10.5.8 (56 ed: ut Sabinus in adsessorio ait) D 37.6.2.5 (41 ed.) is the last Bluhme (1820); Corpus Iuris Civilis 2.927–9 (P. Krüger); Honoré (1978) 258–9, 270–2 D 39.1.1.10 (Ulp. 52 ed.–Cels. 12(22) dig.); 39.1.5 pr (Ulp. 52 ed.–Iul. 12 dig.) Below n.111–2,123–4

172

7. Dates and Plan I

(iii) Books 61 to 73 were composed in the reign of Macrinus (11 April 217–8 June 218). To take the matter further we must form an idea of Ulpian’s rate of composition. How many books of Edict did he compose each year? For this we need to return to the study of his style, and to mark those points in the work at which new expressions are introduced or old ones fall out of use.

II. BLOCKS OF COMMENTARY

Close attention to Ulpian’s language enables us to detect three breaks in the course of composition. From the point of view of blocks of commentary, Edict falls into groups of books that do not correspond with the groupings set out above on the basis of references to emperors. The four blocks, arranged from the point of view of style, are: 1. 2. 3. 4.

Books 1–5 Book 6 to the middle of book 31 From the middle of book 31 to the middle of book 56 From middle of book 56 to the end of book 81.

Ease of exposition suggests that we should begin with the break at book 31 and then work forwards and backwards to the other two breaks. The first part of book 31 is devoted to friendly services (actio mandati vel contra), the second to partnership (actio pro socio).101 Certain expressions occur, so far as Edict is concerned, for the first time in the second half of book 31, which may be referred to as book 31/2. Thus verumtamen (or verum tamen)102 appears in ed. 31/2, 32, 32, 32, 35, 36, 39, 40, 40, 44, 45, 46, 47, 73, 76, 76, 79, 79.There is a bunching of verumtamen texts between books 31/2 and 47, then again between books 73 and 79. A second example is per contrarium quoque:103 ed. 31/2, 32, 34. Other examples of phrases that begin at about the same point are: et putem104

ed. 33, 34, 35, 35, 37, 53, 55, 64, 64, 64, 68, 73, 75, 76, 76, 79

et magis puto105

ed. 32, 34, 35, 36

in ea condicione esse ut/ne106

ed. 32, 35, 45, 46, 46, 56, 58, 66, 70, 75

107

ostendimus

ed. 32, 35, 35, 36, 44, 46

quamvis . . . attamen108

ed. 33, 34, 34, 35, 37, 37, 44, 44, 47, 50, 51

101 103 104 108

102 Lenel (1889) 2.619–29 Ch.2 n.114 Ch.2 n.106–7 (three examples, rather than four as stated in the first edition) 105 106 107 Ch.2 n.48 Ch.2 n.49 Ch.2 n.511 Ch.2 n.244 Ch.2 n.117

On the Edict

173

These examples show that Ulpian introduced a number of expressions of a nontechnical sort into Edict in the books numbered in the early thirties. There is, we have seen, some evidence that he began to introduce these phrases in the second half of book 31. Some find it incredible that Ulpian could have broken off in the middle of a book and written the rest later on. There is reason to think that his schedule required him to write 431⁄2 books a year, so that in principle one book was left half complete and resumed in a later year.109 From book 31/2 to the end of the commentary is 501⁄2 books, and half of this is 25 or 251⁄2, which takes us to the middle or end of book 56. Here the evidence is less clear, because by book 56 Ulpian has already used the most turns of phrase of a non-technical sort that he is going to use. Nevertheless, there are two expressions that display a bunching from the second half of book 56: idem erit probandum110

ed. 31, 44, 44, 56/2, 56/2, 57, 57, 59, 60, 68, 71, 71, 73, 75, 76, 76, 77, 79, 81

consequens erit dicere111

ed. 22, 35, 35, 35, 45, 48, 56/2, 57, 58, 59, 60, 68, 71, 71, 73, 75, 76, 77, 79, 81

It makes little difference whether the break in composition occurred in the middle or at the end of book 56. Note that the texts from On Sabinus in which consequens erit dicere is found are also bunched. They come in books 46, 49, 49, and 50. The Sabinian commentary ends at book 51.This suggests that the end of the Sabinian commentary was written about the same time as the block of Edict that began in the middle or at the end of book 56. So far, then, we have a block of commentary of 25 or 251⁄2 books apparently running from the middle of book 31 to the middle or end of book 56. From the middle or end of book 56 to the end of book 81 is 251⁄2 or 25 books, depending on where one starts. This suggests that the standard block adopted by Ulpian for Edict was between 25 and 26 books. If, then, we go back 251⁄2 books from the middle of book 31 we come to the beginning of book 6. There is evidence of a break in composition between books 5 and 6. This break is fairly obvious, even at a first reading, to someone with a trained sense of style, whereas the later breaks are not. When I first read Ulpian’s Edict systematically, I marked this break, though I then had no idea that it would fit in with other breaks that came to light later and were, in themselves, less obvious. A striking difference between books 1–5 and the books from 6 onwards is that the writing in the first five books is relatively constrained. But from book 6 Ulpian sounds a confident, even exuberant note. For instance he adopts a more flexible word-order. One example of this is his use of non with a future verb followed by the object, participle, or infinitive, a construction not found in the first five books. Here are some examples: 109

Below n.123–4; ch.8 n.16–7, 43–59

110

Ch. 2 n.315–6

111

Ch.2 n.296

174

7. Dates and Plan I

6 ed.

D 48.19.32

non erit notatus

6 ed.

D 3.2.2 pr

non dubitabis eum esse notatum

7 ed.

D 2.10.1.3

non habebit reus actionem

8 ed.

D 3.4.2

non erit dicendum sic haberi

9 ed.

D 3.3.40.2

nonne ratum non videbitur habere?

9 ed.

D 3.3.40.3

non compelletur ad cautionem

10 ed.

D 12.2.16

non compelletur iurare

10 ed.

D 3.6.3.3

non habebit ipse repetitionem

11 ed.

D 4.2.9.6

non sine ratione dicetur finiri actionem

11 ed.

D 4.4.3.4

non erit restituendus

Contrast these expressions with those to be found in the first five books: 3 ed.

D 5.1.2 pr.

non erit eius iurisdictio

3 ed.

D 2.2.3.3

mandati actionem non habebis

Here the future verb is followed by a subject noun, or the non follows the object. Again, the verbs that express the author’s or the legal profession’s attitude to statements of law in the first five books are limited. They comprise accipere debemus,112 accipimus,113 dicimus,114 putamus,115 solemus dicere,116 dabimus,117 videamus.118 The use of accipere is characteristic of Ulpian,119 but these verbs do not go beyond the ordinary. More enterprising are those to be found from book 6 onwards: 6 ed

D 3.1.5.5

deliberabimus

6 ed.

D 3.1.1.10

exsequemur

9 ed.

D 3.3.33 pr

subsistimus/admittimus/vetamus

9 ed.

D 3.3.33.1

non dubitamus

9 ed.

D 3.3.39.4

non exigimus

10 ed

D 3.5.9.1

spectamus

11 ed.

D 41.3.6

computamus

The turn of phrase ut est (rescriptum etc.) is not found in the first five books.120 It occurs regularly from book 6 onwards: 6 ed.

D 3.2.2.2

10 ed.

D 22.1.37

ut est in bonae fidei iudiciis constitutum

11 ed.

D 4.4.3.1

ut est et constitutum

11 ed.

D 4.4.20.1

ut est saepissime rescriptum

112 114 116 119


113 D 39.2.4.5 (1 ed.); 2.4.10.5; 2.8.2.3 (5 ed.) D 2.2.1.2 (3 ed.); 2.4.10.2,9 (5 ed.) 115 D 39.2.4.8 (1 ed.); 50.1.1.1 (2 ed.) D 2.2.1.2 (3 ed.) 117 118 D 2.14.7.5; 2.14.10.2 (4 ed.) D 2.8.2.3 (5 ed.) D 2.8.2.5 (5 ed.) 120 Ch.2 n.320–3,420–431 D 2.13.4.5 (4 ed.) is closest

On the Edict 11 ed.

D 13.7.36 pr


11 ed.

D 4.2.16.2

ut est et rescriptum

13 ed.

D 4.4.19

ut est edicto expressum

175

A feature that brings out the relative orthodoxy of Ulpian’s word-order in the first five books is the number of sentences ending in the present indicative of esse, whether used as a copulative or as a participle: sum, est, sunt, etc. Here is an example: 3 ed.

D 2.1.7 pr

populare est . . . complexus est . . . . . . torquendum est.

Three sentence endings out of four in this sequence are in est, used both as a connective and as a participle.121 This fondness for est endings is not repeated in the later books of Edict. The statistics for sentences ending in est etc. in Edict are as follows: Books 1–5 6–31/1 31/2–56/1 56/2–81

Sentences in est 50 308 240 269

Lines 1,024 10,753 8,287 6,934

Frequency/1000 lines 49 29 29 39

The tendency to end a sentence in this unemphatic way falls off after book 5 but returns to a lesser extent in the last block of edictal commentary. Another habit that is found from book 6 onwards is that of the author’s referring back to what he has written previously with diximus.122 6 ed.

D 3.1.1.7

ut initio huius tituli diximus

6 ed.

D 3.1.1.11

sub titulo de in ius vocado plane diximus

9 ed.

D 3.3.17

quae supra diximus

11 ed.

D 4.2.7.1

ea quae diximus

11 ed.

D 4.2.14.4

secundum quod supra diximus

11 ed.

D 4.2.14.10

quatenus autem diximus

11 ed.

D 4.2.16 pr

quod diximus

A writer cannot refer back to what he has written until he has written a fair amount. But it is striking that the use of diximus appears first in book 6 and then, for a time, becomes frequent. The existence of a break between books 5 and 6 of Edict has been doubted123 but is in my view clear. The last seventy-six books (6 to 81) were 121 As Birks points out (1983) 177–8 in reply to Watson (1983) the feature of style to which I draw attention concerns the lack of emphasis at the end of the sentence, not the syntax 122 One reference back with rettulimus occurs earlier: D 2.14.7.18 (4 ed.). Rettuli/-mus returns in some later texts D 24.1.7.6 (32/31 Sab.); 24.1.32 pr (32 Sab.); 41.1.23.3 (43 Sab.) 123 Watson (1983) but Birks (1983) 177–8

176

7. Dates and Plan I

divided by Ulpian into blocks of 25 to 26 books, either two blocks of 251⁄2 and one of 25, or a block of 26 and two of 25. Between blocks he broke off to do or write other things. Then he came back to Edict. The reason why this plan was adopted may be left for the next chapter. That chapter will examine whether, armed with what has been learned about the political conditions when Edict was written and the way in which it was divided into blocks, we can date this and Ulpian’s other works more precisely. For the moment it is enough to summarize the results so far reached. The first block of Edict (books 1–5) cannot be dated exactly, but must be earlier than 213. It is possible that it goes back to the early weeks of 211, before the death of Severus at York on 4 February. The second block (books 6–31) belongs, at least from book 9, to Caracalla’s sole reign. Book 10 was composed after, book 22 not long after 19 December 212. Book 22 was written after the Antonine constitution, which was issued not earlier than 212. This block therefore seems to belong to 213, or perhaps a few months before and after. It straddles Caracalla A and B. During the course of it Ulpian moves from treating Severus as the senior to giving Caracalla priority over his father. The third segment (books 31–56) also belongs to Caracalla’s sole reign, and must come between 214 and early 217. The fourth segment (books 56–81) begins in the reign of Caracalla (book 57) but books 61–73 were composed under Macrinus. This block therefore belongs to 217 and perhaps also 218. Useful in themselves, though rough, these results provide the springboard for a more ambitious hypothesis about Ulpian’s survey of Roman law.

8 Dates and Plan II: Quinquennium Ulpiani T O find how Ulpian set about his major survey of Roman law the next step is to see how his 51-book treatise On Sabinus1 relates to the 81 books On the Edict. Sabinus, as it may be called for short, deals with the older civil law whereas Edict deals with praetorian law, but there is some overlap. Some topics could as well be treated in either or both. If we begin as before with the analysis of references to living or recently dead emperors, it is clear that Sabinus was largely written in the period that I have called Caracalla B. In this period, which ran from some time in 213 to the end of Caracalla’s reign in April 217, Caracalla takes precedence over his father Severus when joint laws are cited. Here are the relevant references:2 6 Sab.

D 28.6.2.4

rescripto imperatoris nostri

6 Sab.

D 29.2.6.3

ut divus Pius et imperator noster rescripserunt

6 Sab.

D 24.1.23

Papinianus recte putabat orationem divi Severi . . .

12 Sab.

D 38.16.1.1

ut est a divis Marco et Vero et imperatore nostro Antonino Augusto rescriptum

12 Sab.

D 38.17.1.2

secundum rescriptum imperatoris nostri et divi patris eius ad Ovinium Tertullum3 (= CJ 8.50.1, Severus et Antoninus, undated)

13 Sab.

D 38.17.2.2

idque et Iulianus scripsit et constititum est ab imperatore nostro

13 Sab.

D 38.17.2.47

et invenimus rescriptum ab imperatore Antonino Augusto et divo patre eius4

19 Sab.

D 49.14.25

et est decretum ab imperatore Severo et constitutum

21 Sab.

D 30.37 pr

quae sententia rescripto imperatoris nostri et divi Severi iuvatur

21 Sab.

D 30.41.3

et ita imperator noster et divus Severus rescripserunt

nostro

1 Lenel (1889) 1019–200; Collectio 3.265–82; Seckel–Kübler 2.2.461–484; FIRA 2.637–52; Schulz (1906); Koschaker (1907); Wolff (1951) 145–71; Wieacker (1953) 241–61; (1960) 283–326, 446f.; Schulz (1961) 264–9; Astolfi (1983) 57–192; Luchetti (1987) 49–87; Liebs (1997) §424.3 2 Fitting (1908) 111–2, omitting three of these texts; P. Krüger (1912) 243 3 CJ 8.50.1 (Impp. Severus et Antoninus, undated) 4 Mammiae Maximinae 12 Apr. 203

178

8. Dates and Plan II

21 Sab.

D 30.41.5

Papinianus refert imperatorem nostrum et divum Severum constituisse

25 Sab.

D 33.8.6.4

sed huic sententiae adversatur rescriptum imperatoris nostri et patris eius

25 Sab.

D 33.8.8.7

imperator igitur noster cum patre rescripsit

31 Sab.

D 23.2.9.3

ut divus Marcus et imperator noster cum patre rescripserunt

32 Sab.

D 24.1.3 pr

oratione imperatoris nostri Antonini Augusti

32 Sab.

D 24.1.3.1

divus tamen Severus contra statuit

32 Sab.

D 24.1.7 pr

idque imperator noster cum patre rescripsit

32 Sab.

D 24.1.7.5

remedium monstravit imperator noster cum patre rescripto

32 Sab.

D 24.1.7.6

imperator noster cum patre suo rescripsit

33 Sab.

D 24.1.32 pr

imperator noster Antoninus Augustus ante excessum divi Severi patris sui oratione in senatu habita auctor fuit

33 Sab.

D 24.1.32.1

oratio imperatoris nostri

33 Sab.

D 24.1.32.19

secundum rescriptum imperatoris nostri cum patre

35 Sab.

D 24.3.2.2

et est ab imperatore Antonino rescriptum

37 Sab.

D 26.1.3.1

et ita imperator Antoninus Augustus rescripsit

40 Sab.

D 26.8.5.3

et ita est rescriptum a divo Severo et Antonino

43 Sab.

D 12.6.23.1

hoc enim imperator Antoninus cum patre suo rescripsit

43 Sab.

D 46.3.5.2

Imperator Antoninus cum divo patre suo rescripsit (twice)

The first text, from book 6, refers to an imperator noster not further identified. But the imperator noster of book 12 must be Caracalla, since his father, the co-author of the rescript, is divus. The imperator noster of book 6 must also be Caracalla, since the previous sole emperor, Severus, ceased to be sole emperor in 197 or 198, fourteen years before. Fourteen years is too long an interval to postulate between the composition of books 6 and 12. Caracalla is still emperor in book 43, so that Sabinus books 6 to 43 fall in his reign. Between books 12 and 43 there are fifteen texts in which Caracalla is mentioned before Severus as author of a joint law. There is one exception, in book 40.5 Whatever the explanation of this exception, it is safe to conclude that Sabinus books 12 to 43 fall into the Caracalla B period, which correspond to Edict books 22 to 56. The references to Severus do not add anything helpful. He is called imperator in book 19,6 divus on eleven occasions,7 and pater 5

6 D 26.8.5.3 D 49.14.25 (19 Sab.) D 24.1.23 (6 Sab.); 38.17.1.3 (12 Sab.); 38.17.2.47 (13 Sab.); 30.37 pr; 30.41.3; 30.41.5 (21 Sab.); 24.1.3.1 (32 Sab.); 24.1.32 pr (33 Sab.); 26.8.5.3 (40 Sab.); 46.3.5.2 (43 Sab., twice) 7

Quinquennium Ulpiani

179

without divus on eight.8 It is worth noting that Caracalla is called Antoninus Augustus, an especially respectful style of address, only in the third block of edictal commentary, between books 31 and 56.9 In Sabinus he is so described in books 12, 13, 32, 33, and 37.10 So Sabinus books 12–37 seem to correspond in some degree to Edict books 31–56. On the face of it Sabinus books one to five may have been written before Caracalla became sole emperor, effectively at the end of 211, and the last eight may have been written after his death, say under Macrinus. But there is no positive evidence to suggest either. One other scrap of evidence should be noted. In Sabinus book 33 Ulpian deals with a donation made to a fiancée when the marriage turns out to be invalid, for instance because the woman is under age. He endorses the opinion of Labeo, himself, and Papinian that the engagement must be taken to continue despite the invalid marriage:11 sed est verius, quod Labeoni videtur et a nobis et a Papiniano libro decimo quaestionum probatum est . . .

He cites Papinian by work and book, so that Ulpian is probably referring to his own opinion in a published work. The text that best fits the self-citation comes from Ulpian’s Edict book 35, in which he says that he has always been of that opinion.12 et semper Labeoni sententiam probavi existimantis, si quidem praecesserunt sponsalia, durare ea, quamvis in domo loco nuptae esse coeperit . . . quam sententiam Papinianus quoque probat.

If there has been an engagement when the woman was under age it continues to be valid even if she has lived in the man’s house as if married while still under age. So it is valid when she comes of age. It looks as if in Sabinus book 33 Ulpian could refer to Edict book 35, which comes in the middle block of edictal text (books 31–56). This part of Sabinus could therefore have been composed after the break in Edict that occurs at book 56. Sabinus book 33 would be later not merely than Edict book 35 but than Edict book 56. What about the length of Sabinus? It stops, incomplete, at 51 books, breaking off at the point that, according to Lenel, corresponds to Paul Edict book 13 and Pomponius Edict book 29. Paul handled the missing part of the commentary in his Sabinus books 13–16,13 and Pomponius in his books 29–36.14 8 D 33.8.6.4; 33.8.8.7 (25 Sab.); 23.3.9.3 (31 Sab.); 24.1.7 pr, 5, 6 (32 Sab.); 24.1.32.19 (33 Sab.); 12.6.23.1 (43 Sab.) 9 D 19.2.15.6 (32 ed.); 36.4.5.16 (52 ed.) 10 D 38.16.1.1 (12 Sab.); 38.17.2.47 (13 Sab.); 24.1.3 pr (32 Sab.); 24.1.32 pr (33 Sab.); 26.1.3.1 (37 Sab.) 11 D 24.1.32.27 (33 Sab.); P. Krüger (1912) 245 12 D 23.1.9 (35 ed.). Frier (1984) 85811 objects that ‘always’ excludes a reference back to his own published opinion. But with Ulpian ‘always’ only implies ‘a couple of times previously’: Kalb (1890) 132 13 14 Lenel (1889) 2.1257–60; Krüger (1912) 244 Lenel (1889) 1.1286–93

180


These books treat of ownership, possession, servitudes, interdicts, and return to Roman territory (postliminium). Not all these topics are fully dealt with by Ulpian elsewhere. Moreover, he is not averse to writing twice on the same topic. Theft comes in Edict books 37–8 and Sabinus books 40–2. Why should Ulpian not have planned to cover in Sabinus the same topics as Paul and Pomponius? Even if he did, there is a reason for the break in his commentary at book 51. This is because 51 books is twice the length of the blocks of edictal text (about 251⁄2 books) that we met in the last chapter when considering Edict. So 51 books represent two blocks of text of a major commentary, each block amounting to 251⁄2 books. Perhaps Ulpian planned a third block of 25 or 26 books on book 3 of Sabinus’ Civil Law to be composed in 218.15 For whatever reason, personal or political, the extra books were not written. If this idea is on the right lines, Sabinus, which has features in common with the middle block of Edict, was composed partly before and partly after that block of text. This would explain why we find some changes of style and expression in the different blocks of edictal commentary. Leaving on one side the first five books of Edict, there would be five blocks of major commentary: 1. 2. 3. 4. 5.

Edict Sabinus Edict Sabinus Edict

from book 6 to the middle of book 31 (213) from book 1 to the middle of book 26 (214) from the middle of book 31 to the middle of book 56 (215) from the middle of book 26 to the end of book 51 (216) from the middle of book 56 to the end of book 81 (217)

The reason why a year may end with a book half completed is that the working year, as we shall see,16 ran to 431⁄2 weeks, so that an author whose practice is to write a book each working week should write 431⁄2 books each year.17 Those who think that no writer would in practice leave a book halfcomplete18 can adopt a different hypothesis. Though the plan may on paper have required 251⁄2 books to be finished in a given year, in practice Ulpian composed his major commentaries in alternate blocks of 25 and 26 books. The scheme set out can be adapted to cater for this possibility, though I do not personally endorse it. On either hypothesis, all or nearly all Sabinus belongs to the Caracalla B period. This period, which began at Edict book 19,19 continued at least to Sabinus book 43. We can see how it was possible for Sabinus book 33 to refer to Edict book 35. It was written as part of a later block of text. The edictal and Sabinian commentaries were written in blocks but not concurrently. At any given period Ulpian confined himself to composing either Edict or Sabinus. So an expression like consequens erit dicere that comes towards the end of Sabinus (books 46 to 50) understandably recurs several times in Edict books 56 to 60, which begin the next block of text. 15 18

Liebs (1984) 448 e.g. Watson (1983)

16

Below nn.43–52

17 19

Below nn.50–1 Ch.7 nn.30–4

181


The hypothesis put forward in the first edition and to which I adhere is that these blocks of text represent four annual stints of 251⁄2 books and one of 25 books of major commentary between the years 213 and 217. Seventy-six books on the Edict and 51 on Sabinus make 127 in all over the five years 213–7, which divides into four lots of 251⁄2 books and one of 25. We know that, if the idea of blocks of text is accepted, most of the first block, the whole of blocks 2 to 4, and the beginning of block 5 fall in Caracalla’s sole reign. Some of the later books of block 5 fall under Macrinus.20 If these blocks represent annual stints, the fifth must belong to 217, because in that year Caracalla was emperor at the beginning of the year and Macrinus at the end. Working backwards, the first block should belong to 213. This seems historically plausible. Caracalla’s status is enhanced during the course of 213, which is also the year of the first block of text. Edict book 10 is later than the rescript of 19 December 212.21 Book 2222 is later than the Antonine constitution, which cannot be earlier than 212. So the only set of dates that fits is 213 to 217.

I. THE MEDIUM-SCALE TREATISES

Can the hypothesis of a literary stint, representing a year’s writing, be applied to those of Ulpian’s works that were composed in ten books or a multiple of ten? If Ulpian composed his major commentaries over a five-year period, did he also compose a series of lesser but still substantial treatises in annual stints of ten books? Do we have works that divide neatly into five groups of ten books? We do. There are four such works, The Proconsul, Disputations, Tribunals, and The Julio-Papian Law. The first three are in ten books, the last in twenty. This makes fifty books in all, or five stints of ten. Will these five stints fit the years 213–7? Were the major treatises and the medium-scale works planned to be written in parallel, so that each year’s programme required Ulpian to compose 251⁄2 or 25 books of the one and ten of the other? The first work to consider is The Proconsul.23 It contains no fewer than 23 references to Caracalla, his father or to both: 1 off. proc.

D 1.16.4 pr

ut imperator noster cum patre rescripsit

1 off. proc.

D 1.16.4.5

ut imperator rescripsit

1 off. proc.

D 1.16.6.3

quam rem divus Severus et imperator Antoninus elegantissime epistula sunt moderati

20

noster

Antoninus

Augustus

21 D 3.6.1.3 (10 ed.) cf. 12.5.2.2 (26 ed.) 22 D 1.5.17 (22 ed.) Ch.7 nn.88–92 Lenel (1889) 2.966–91; AE 1966.436 (Ephesus c.300); Lactantius, Inst. 5.11.18f.; Ind. Flor. 24.6; Jörs (1903) 1452; Schulz (1946) 139, 243–6, (1961) 310–3; Wieacker (1960) 391–408, 447f.; Dell’Oro (1960) 117–211; Schönbauer (1965) 108–15; Marotta (1988) 251–351, 381–92; Mantovani (1992); Liebs (1997) §424.14 23

182


2 off. proc.

Frag. Vat. 119

Imperatores Augusti Iulio Iuliano rescripserunt ...

3 off. proc.

D 50.2.3.1

Imperator Antoninus edicto proposito statuit24

3 off. proc.

D 50.2.3.3

Divi Severus et Antoninus permiserunt

4 off. proc.

D 50.4.6.2

ita imperator noster cum divo patre suo rescripsit

4 off. proc.

D 27.1.6.6


4 off. proc.

D 50.7.7


5 off. proc.

D 50.12.6.1

imperator noster Antoninus rescripsit

5 off. proc.

D 50.12.6.2

ita rescripto imperatoris nostri et divi patris eius continetur

5 off. proc.

D 50.12.6.3

rescriptis imperatoris nostri et divi patris eius continetur

8 off. proc.

D 48.18.1.10

imperator noster cum divo patre suo rescripsit

8 off. proc.

D 48.18.1.15


8 off. proc.

D 48.18.1.16

Severus Spicio Antigono ita rescripsit

8 off. proc.

D 48.18.1.17

Divus Severus rescripsit

8 off. proc.

D 48.8.1.18

imperator noster cum divo patre suo id non admiserunt

8 off. proc.

D 47.9.12 pr

imperator Antoninus cum divo patre suo rescripsit

9 off. proc.

Collatio 14.3.3

imperator Antoninus constituit/constitutione imperatoris Antonini

9 off. proc.

D 48.19.8.5

epistula divi Severi exprimitur

9 off. proc.

D 48.19.8.12

imperator Antoninus rectissime rescripsit

9 off. proc.

D 48.22.6.1

epistula divi Severi expressum est

10 off. proc.

D 48.22.7.10

imperator noster cum divo patre suo huic rei providerunt

Caracalla is mentioned with his father in the first and last books of this treatise. There are thirteen such allusions in all. In the first three books two texts out of three place Severus before Antoninus, but in the remaining books Caracalla always precedes his father. Is the inference that the first three books belong to the Caracalla A period, and the last seven to Caracalla B? If so, The Proconsul must belong to the same year as Edict books 6–31, 213. For in that block of Edict Caracalla A runs up to book 19, and Caracalla B starts from book 22. But do the citations in the first three books point to Caracalla A? Of the two texts in which Severus precedes Antoninus, the first presents no problem. It 24

CJ 10.61.1, 11 July 212


183

comes from book 1 and runs divus Severus et imperator Antoninus . . . sunt moderati.25 Severus is dead, Caracalla is sole ruler, but Severus’ seniority has not yet been displaced. The other text in which Severus is senior, from book 3 does present a problem.26 It runs divi Severus et Antoninus . . . permiserunt. This implies that Caracalla and Severus are both dead. But in the later books Caracalla is consistently imperator noster 27 and so living. Mommsen is surely right to think that divi is here a gloss.28 Originally the text ran Severus et Antoninus permiserunt or divus Severus et Antoninus permiserunt. Thinking this too bald, the copyist, at a time when Caracalla was in fact dead and deified, inserted divi or turned divus into divi. If Severus was not originally referred to as divus the original might seem a little bleak. But though Ulpian does not often refer to emperors without some title (imperator, divus, noster) he occasionally does so.29 At any rate, the order in which the emperors appear is not in doubt. When book 3 was composed, Ulpian gave Severus precedence. These two texts show Severus as senior, and are evidence that books 1 and 3 fall in Caracalla A. But what of the other text from book 1 (D 1.16.4 pr)? This runs: Observare autem proconsulem oportet, ne in hospitiis oneret provinciam, ut imperator noster cum patre Aufidio Severo rescripsit.

I am not sure that this can be satisfactorily explained. But when Ulpian ends a sentence by citing a rescript in the form ut . . . rescripsit, ut rescripsit can perhaps sometimes be an afterthought, inserted when the text is read over or revised. A parallel comes in Sabinus book 6, where a sentence ends with the phrase ut Marciano videtur.30 Sabinus was written under Caracalla 31 but Marcianus is not known to have published any work until after Caracalla’s death and deification.32 We know that there was a second edition of Sabinus,33 and this phrase could have been put in at the time of revision. On the whole Ulpian prefers the stronger ending et ita rescripsit,34 idque rescripsit,35 or gives the substance of the rescript in the accusative and infinitive after rescripsit.36 It is possible, then, that the phrase we are considering from The Proconsul book 1 is, like the Sabinus text, a later insertion. This would be to postulate a second edition of The Proconsul, for which there is no other 25

26 D 50.2.3.3 (3 off. proc.) D 1.16.6.3 (1 off. proc.) D 50.4.6.2; 27.1.6.6; 50.7.7 (4 off. proc.); 50.12.6.1, 2, 3 (5 off. proc.); 48.18.1.10, 15, 16, 18 (8 off. proc.); 48.22.7.10 (10 off. proc.) 28 Mommsen (1904–13) 2.169–70 29 D 4.4.3.4 (11 ed.); 1.17.1 (15 ed.); 16.1.2 pr (29 ed.); 42.4.7.16 (59 ed.); Collatio 1.6.1; (7 off. proc.); 8.3 (8 off. proc.); D 47.14.1.3 (8 off. proc.); 49.14.16 (18 leg. Iul. Pap.); 34.1.14.1 (2 fid.); 40.12.27.1 (2 off. cons.); 50.15.1.1 (1 cens.); Frag. Vat. 235 (1 off. praet. tut.). None of these refers to Severus or Caracalla. 30 D 28.1.5 (6 Sab.) 31 Above nn.2–12 32 Lenel (1889) 1.6391; Kunkel (1967) 258 33 C Cordi (16 Nov. 534) 3 34 e.g. D 48.18.1.15 (8 off. proc.) 35 e.g. D 47.9.12 pr (8 off. proc.) 36 e.g. D 1.16.4.5 (1 off. proc.) 27

184


evidence. It was, however, an important work on the administration of the empire, and there could plausibly have been a demand for a second edition. If at the time of the second edition Caracalla was treated as having precedence over his father, this would explain the citation. Whatever the explanation, the evidence as a whole suggests a change from the Caracalla A period to the Caracalla B period between Proconsul books 3 and 4 as it did between Edict books 19 and 22. In that case Proconsul was written in the year 213. It was the first medium-scale treatise to be tackled. It was also the most important from the point of view of the Roman administration, which depended a great deal on the probity and efficiency of provincial governors. It seems, then, that Edict and Proconsul were composed in parallel. The earlier books of the edictal block 6 to 31 and the first three books on the proconsul were written before the later books of either. In the first edition I mentioned but did not sufficiently stress the importance of this point.37 It means that, though Ulpian did not switch in the course of a given year between one major or medium-scale work and another, he did switch between the major commentary and the medium-scale treatise he had fixed on for that year. He did not force himself to complete the whole block of edictal commentary that he was due to compose during the year before beginning on the medium-scale work in ten books that also formed part of his stint for the year. The next work to be considered is Disputations in ten books.38 Here the evidence drawn from the citation of living or recently dead emperors points to the Caracalla B period. 3 disp.

D 13.7.26 pr

imperator noster cum patre saepissime rescripsit

4 disp.

D 28.3.12 pr

et divus Hadrianus et imperator noster rescripserunt

4 disp.

D 30.74

licet imperator noster cum patre rescripserit

6 disp.

D 3.5.43

secundum divi Severi constitutionem

6 disp.

D 40.5.46.3

a divo Severo rescriptum est

8 disp.

D 41.1.5.1

est constitutum ab imperatore nostro et divo patre eius

8 disp.

D 48.5.2.6

nam Claudius Gorgus damnatus est a divo Severo

8 disp.

D 49.14.29.2


The bulk of this work from books 3 to 8 belongs to the Caracalla B period, though we have no evidence about the first two and last two books. If it was written in a single year, it should go in 214, 215, or 216, but the choice between these years must for the moment be left open.

37

Honoré (1982) 161 Lenel (1889) 2.387–421; Ind. Flor. 24.4; Seckel–Kübler (1908–27) 1.496–501; Girard–Senn (1967) 453–5; Lenel (1903);(1904);(1906); Wieacker (1960) 385–8; Schulz (1961) 305–7; Watson (1962) 226–42; Solazzi (1957–63) 4.517–21; Liebs (1972) 257–9; (1997) §424.24 38


185

Next comes Tribunals, also in ten books.39 Four texts cite Caracalla or his father or both: 1 omn. trib.

D 26.10.7.2

ex epistula imperatoris nostri et divi Severi

8 omn. trib.

D 50.13.1.10

ita rescripto imperatoris nostri et patris eius continetur

8 omn. trib.

D 50.13.1.12

ita est rescriptum ab imperatore nostro et divo patre eius

8 omn. trib.

D 50.13.1.13

divus Severus prohibuit

Books 1 to 8 appear to fall in the Caracalla B period. There is no evidence about the last two books, but if Tribunals was composed in a single year, it must have been in 214, 215, or 216. The references from The Julio-Papian Law 40 in twenty books are helpful. There are five: 3 leg. Iul. et Pap.

D 23.2.45 pr

ut rescripto imperatoris nostri et divi patris eius continetur

3 leg. Iul. et Pap.

D 24.2.11.2


4 leg. Iul. et Pap.

D 49.15.9

post rescriptum imperatoris Antonini et divi patris eius

18 leg Iul. et Pap.

D 31.61.1

sed post rescriptum Severi

19 leg. Iul et Pap.

D 4.4.2

divus Severus ait

If ten books is a year’s stint for medium-scale works these twenty books represent a two-year stint. The texts from book 3 and 4 point to the Caracalla B period, and so to the years 214, 215, or 216 but are inconclusive. We have no mention of Caracalla from the last ten books. In book 18 Severus is cited by name alone. These last ten books might therefore belong to 217 and have been composed partly in the reign of Macrinus. If, then, ten books of medium-scale work were composed each year between 213 and 217, the most plausible assignment is: The Proconsul books 1–10 Disputations or Tribunals books 1–10 Tribunals or Disputations books 1–10 The Julio-Papian Law books 1–10 The Julio-Papian Law books 11–20

39 Lenel (1889) 2.992–1001; Jörs (1903) 5.1454; Pernice (1893); Fitting (1908) 119; P. Krüger (1912) 246185; Wlassak (1919) 62–79; Schulz (1946) 256, (1961) 329; Wieacker (1960) 65; Dell’Oro (1960) 271f.; Liebs (1966) 26344, showing that de omnibus tribunalibus complements the treatises on the duties of various officials; Liebs (1997) §424.21 40 Lenel (1889) 2.939–50; FIRA 2.315f.; Ferrini (1901/1929–30); Schulz (1961) 231; Wieacker (1960) 146; Levy (1963); Astolfi (1986) 366–71; Liebs (1997) §424.7

186

8. Dates and Plan II II.

ULPIAN’S PLAN AND THE LESSER WORKS

How do the shorter works that form part of Ulpian’s corpus fit the chronological scheme we have set out? Many of them should do so, because, as the next chapter shows, they seem from references to ruling or recently dead emperors to belong, like Taxation, to the Caracalla A period or, like Adultery, to the Caracalla B period. But did Ulpian have time to compose more than the 351⁄2 books a year we have so far attributed to him?41 The number of lesser works attributed to Ulpian that are clearly genuine, or at least not shown to be spurious, comes to 39 or 40. These comprise, with the number of books recorded for each work: Taxation 6; Trusts 6; Adultery 5; Appeals 4; The Aelio-Sentian Law 4; The Consul 3; Edict of the Market-Masters 2; Teaching Manual 2; The Quaestor 1; Consular Judges 1; The Community Treasurer 1; The Urban Prefect 1; The Prefect of Police 1; The Praetor for Guardianship 1; Engagements to Marry 1; and possibly The Speech of Marcus and Commodus 1. We cannot count Excuses 1, which was written under Severus, or at any rate before Caracalla’s sole rule, and so before the end of 211.42 The first five books of edictal commentary must also be excluded. They too were composed earlier, perhaps early in 211. If 40 books are distributed over 5 years, they come to eight a year. On top of the 351⁄2 books of major commentary and medium-scale treatise this would take Ulpian’s annual stint to 431⁄2 books a year.43 The figure seems arbitrary, but it is not. The Roman calendar provided for two judicial holiday periods of 30 days each, intended for the grain and wine harvests. The Lex Irnitana chapter K requires the officials (duumviri) of the municipality to announce in good time the period, not to exceed twice thirty days, when judicial matters are to be postponed on account of the grain and wine harvest (messis vindemiae causa).44 This municipal provision was based on the practice at Rome,45 but the local magistrates could adapt the periods to suit local conditions.46 Essentially the same arrangement existed in the fourth century, when a law of 389, seeking to reduce the number of judicial holidays, makes an exception for the twin months (gemini menses) that a more indulgent age adopted to mitigate the heat of summer and the allow time for the harvests.47 41

What follows draws on Honoré (1988) 1433–40 Lenel (1889) 2.8991; Mommsen (1904–13) 2.16955; Schulz (1946) 249–50; (1961) 381–20 argues that it is a post-classical compilation. At any rate, it does not count for our purposes. 43 To be precise 431⁄2 books in four years and 43 in the fifth 44 González (1986) 161, 187: De rebus proferendis 45 Lex Irnitana ch. K: perque eos dies . . . ius ne dicunto nisi si (de) is rebus de quibus Romae mes(sis) vindemiae causa rebus prolatis ius dici solet 46 RE Vindemia 17 (1961) 17–24 (Schuster) 47 CTh 2.8.19 (7 Aug. 389: Illos tantum manere feriarum dies fas erit, quos geminis mensibus ad requiem laboris indulgentior annus accepit, aestivis fervoribus mitigandis et autumnis fetibus decerpendis). The drafter is probably Nicomachus Flavianus, who was an antiquarian 42


187

This treats the two thirty-day periods as in some sense providing a genuine rest from labour and not merely an opportunity to attend to matters concerned with the harvest, such as collecting rents and fixing them for the next year.48 In Tribunals Ulpian mentions the judicial holiday period for grain and wine, but without stating the length of the period.49 The senatorial holiday laid down by Augustus was different: a continuous period of 61 days in September and October when only those drawn by lot were obliged to attend meetings.50 Assume that Ulpian stopped writing during the two thirty-day holiday periods and instead attended to his estates or rested. Subtracting 60 from 365 leaves 305 days, which is 43 weeks and 4 days. That fits a programme of 431⁄2 working weeks a year, with one book to be written each week. The numerical coincidence is striking. Is it just a coincidence? If it is something more it implies that Justinian’s commissioners possessed nearly all the works written by Ulpian in the five-year period 213–7.51 In any event, in order to get his magisterial survey of Roman law in 217 books completed, largely under Caracalla, Ulpian must have worked to a schedule close to what is here suggested. He must have disciplined himself more or less as Anthony Trollope did, though, like the novelist, he might at times fall behind schedule and at others catch up.52 Is it plausible to suppose that he took the week as his working unit? The traditional Roman week was the inconvenient eight-day week, nundinae.53 Not until the fourth century do we find mention in legislation of Sunday (dies solis) 54 and not until the fifth century the seven-day week (septimana).55 But the seven-day week is virtually a universal phenomenon. It prevailed among the Babylonians, Jews, Egyptians, Persians, Indians, and Greeks.56 From the age of Augustus the Graeco-Roman world increasingly, though unofficially, resorted to the seven-day week.57 Dio Cassius, contemporary of Ulpian, attributes the planetary seven-day week to the Egyptians but stresses that ‘it 48 D 7.8.10.4, 12 pr (Ulp. 17 Sab., Gai. 2 rer. cott.). In the first edition I took the holiday to be a continuous eight-week period. This was four days too short. Moreover the period was not continuous but should be divided into two separate stretches of thirty days 49 D 2.12.1 pr (Ulp. 4 omn. trib: ne quis messium vindemiarumque tempore adversarium cogat ad iudicium venire, oratione divi Marci exprimitur . . . 2. sed excipiuntur certae causae, ex quibus cogi poterimus et per id temporis, cum messes vindemiaeque sunt, ad praetorem venire. 50 Suetonius, Augustus 35.3 51 With the exception of one book: Ad orationem divi Antonini et Commodi: ch. 9 nn.137–140 52 What Trollope says in An Autobiography (1950 ed.) 118–22 is not entirely accurate but, if he fell behind from time to time, his method served to warn him that he had done so and provide an incentive to catch up 53 Boll (1912) 7.2549; Kroll (1937) 54 CJ 3.12.2 (3 Mar. 321); CTh 8.8.3 = 2.8.18, 11.7.13 (3 Nov. 386); 15.5.2 (30 May 394, MS 20 May 386) 55 CTh 15.5.5 (1 Feb. 425: Dominico, qui septimanae totius primus est dies) 56 Boll (1912) 2550, 2556–8, 2571 57 Boll (1912) 7.2547, 2558; Sontheimer (1967) 18.2.2463

188


is now found among all mankind’, including the Romans, among whom it is already treated as a sort of ancestral tradition.58 There is therefore no reason why Ulpian should not have adopted the seven-day week as the period within which he would, when composing his survey, plan to write one book of, say, on average 10,000 words. In the next chapter I consider how far the 40 books of lesser works can be fitted into the five-year plan59 that I attribute to him. In the first edition I supposed that one could assign the major, mediumscale, and lesser works to different parts of the calendar year. But it is clear from what has been said about the parallel composition of Edict and The Proconsul that this is not so. Earlier-numbered books were written before later-numbered books, and this may give us a rough clue to the time of year at which a particular book was composed. But in general Ulpian arranged his work schedule in whatever way suited him best. Did his year begin on 1 January or did he stop writing on 17 December for the Saturnalia and begin a new year’s stint straight afterwards?60 It is impossible to tell and makes little difference. 58 60

59 Liebs (1984) 441: perhaps originally a six-year plan Dio 37.18 Liebs (1984) 449

9 Dates and Plan III: Lesser Works T H E lesser works, which come to thirty-nine or forty books, can be fitted into the scheme set out in the last two chapters. They fit in if Ulpian composed eight books in each year, or eight in four years and seven in the fifth. Some of the lesser works are clearly early and others late, but it is often a guess to which precise year they should be assigned. I deal in turn with the works of the early, middle, and late period, those that seem to belong to 213–4, 215, and 216–7 respectively.1

I . T H E E A R L Y P E R I O D : A D 2 13 A N D 2 1 4

For the early period the background assumption is that On the Edict books 6 to the middle of book 31 together with Proconsul books 1 to 10 were composed in 213. On Sabinus books 1 to the beginning or middle of 26 and ten books of Disputations or Tribunals were written in 214. It may be as well to begin by strengthening the assumption that the first big block of commentary On the Edict and Proconsul belong to the same year, 213. A number of expressions occur only between Edict books 6 and 31 and in Proconsul. Thus Ulpian has four texts with destricte (‘indiscriminately’).2 Discutere, in the sense ‘investigate or decide as a judge’, is found in three texts.3 Commendatio, ‘recommendation’, comes twice.4 The same is true of improbitas, ‘want of scruple’.5 Periculosus, ‘dangerous’ in a legal rather than a physical sense, is found in a quartet of texts.6 All of these come, apart from a single text from Edict book 1, from Edict books 6 to 31 and Proconsul. These parallels, though not individually of much weight, together tend to confirm that, if Edict books 6 to 31 were composed in 213, so was Proconsul. What other works belong to this year? One sign will be that the work was wholly or partly composed in the Caracalla A period, before about the middle of 213. If, in a joint citation, Severus precedes Antoninus, this is some 1 I draw on Honoré (1988) but note that at p.1440 of that study 217 should be 216 and 218 should be 217. 2 D 3.3.13 (8 ed.); 4.4.7.8 (11 ed.); 4.8.15 (13 ed.); 48.18.1.26 (8 off. proc.) 3 D 4.8.13.2; 4.8.25.1 (13 ed.); 48.2.6 (2 off. proc.) 4 D 4.1.1 (1 ed.); 1.16.4.3 (1 off. proc.) 5 D 4.9.3.1 (14 ed.); 1.16.9.4 (2 off. proc.) 6 D 39.2.1 (1 ed.); 3.1.1.3 (6 ed.); 5.1.61 pr (26 ed.); 48.18.1.23 (8 off. proc.)

190

9. Dates and Plan III

evidence that the work from which it comes belongs to that period.7 If, later in the same work, Caracalla precedes Severus, the evidence is strengthened. On the other hand, a text in which Severus precedes Caracalla, and Caracalla is given no title, may be from 217.8 Again, such a text might be one of the half dozen exceptions to the general practice in the Caracalla B period.9 Additional clues are needed. These will often consist in parallels, such as those set out above,10 between two or more works to which certain expressions are confined or virtually confined. 1. Taxation (6 books) The first lesser work to be examined is Taxation, from which Lenel prints ninety-six lines.11 This contains a number of references to contemporary or recently dead emperors: 1 cens.

D 50.15.1 pr

huic enim divus Severus et imperator noster ius Italicum dedit

1 cens.

D 50.15.1.2

quae a divo Severo Italicae coloniae rem publicam accepit

1 cens.

D 50.15.1.3

cui divus Severus ius Italicum concessit

1 cens.

D 50.15.1.4

imperator noster ius coloniae dedit

1 cens.

D 50.15.1.7

divus quoque Severus coloniam deduxit

1 cens.

D 50.15.1.9

a divo Severo ius coloniae impetravit

2 cens.

D 1.9.12 pr

ut scio Antoninum Augustum Iuliae Mammaeae consobrinae suae indulsisse

2 cens.

D 50.15.3

rescripto imperatoris nostri ad Peligianum recte expressum est

The first text shows that Severus is dead and Caracalla sole ruler. The order of mention of the emperors points to the Caracalla A period, and so to the year 213. The text about the indulgence shown to Julia Mammaea is of interest from the point of view of Ulpian’s political career, which Julia Mammaea later on supported. In a few texts Ulpian condescendingly remarks of a rescript, as he does in the above text from Taxation book 2, that it is ‘correct’ or ‘quite right’: imperator recte/rectissime rescripsit:

7

8 Ch. 7 n.89–92 Ch. 7 n.24–70 D 26.10.3.13 (35 ed.); 26.8.5.3 (40 Sab.); 27.3.17 (3 off. cons.); 32.1.4 (1 fid.); 1.15.4 (1 off. pr. urb.); 27.1.9 (1 off. pr. tut.). There are seventy-one texts that follow the normal pattern for this period. 10 Above n.2–6 11 Lenel (1889) 2.384–5; Ind. Flor. xxiv 16; Schulz (1946) 1396, (1961) 330; Jörs (1903) 1452; Fitting (1908) 118; Liebs (1997) §424.13 9

Lesser Works

191

29 ed.

D 17.1.6.7

sed rectissime divi fratres rescripserunt

9 off. proc.

D 48.19.8.12

imperator Antoninus rectissime rescripsit

2 cens.

D 50.15.3.1

rescripto imperatoris nostri recte expressum est

Ulpian’s condescending attitude towards Caracalla in these passages strengthens the case for allotting Taxation to 213. Some other passages display a superior attitude towards emperors, including Caracalla: 2 Sab.

D 29.1.3

nam secundum nostram sententiam etiam divus Marcus rescripsit

3 off. proc.

D 50.2.3.1

Imperator Antoninus edicto proposito statuit . . . et hoc recte

6 Sab.

D 28.6.2.4

quae sententia rescripto imperatoris nostri comprobata est, et merito

The two texts from On Sabinus belong, on the view we have taken, to the earlier part of 214. The condescending texts therefore fit 213 or fairly early 214. Also of interest is the use in Taxation of scio ‘I know’.12 This word (like invenio, ‘I find’) is found in Excuses (De excusationibus), composed before Caracalla’s sole rule began at the end of 211.13 These and other first-person words indicating knowledge are mainly early.14 Virtually absent from the texts of 215 and 216, they reappear a few times in 217. The texts with scio come mostly from Edict up to book 2815 (213 or before) or from book 68 onwards16 (217); from the Sabinian commentary up to book 2117 (214); and from The Proconsul (probably 213).18 This supports the view that the other works with scio, Taxation,19 Disputations,20 The Praetor for Guardianship,21 and Appeals,22 should go in one of these years and not in 215 or 216. Nescio is found only once, in Edict book 8 (213).23 In Edict book 6 there is a list of types of discharge from the army. It is introduced by sentences beginning with est: est honesta . . . est causaria . . . est ignominiosa . . . est et quartum genus missionis.24 The only real parallel comes in the first book on Taxation: Est et Heliupolitana . . . Est et Laodicena . . . Est et Palmyrena civitas. Est et in Bithynia Apamena . . . Est et in Cilicia Selenus.25 Taxation is clearly early, and fits 213 better than 214.

12 15 16 17 18 20 22 24

13 14 D 1.9.1 pr (2 cens.) Lenel (1889) 2.8991; Jörs (1903) 145 Below n.51–4 D 2.14.7.5 (4 ed.); 4.2.9.3; 4.3.2 (11 ed.); 14.1.1.12 (28 ed.) D 43.13.1.7; 43.8.2.33 (68 ed.) D 48.19.3 (14 Sab.); 34.2.19.8 (20 Sab.); 30.39.6 (21 Sab.) 19 D 48.13.7 (7 off. proc.); 48.22.7.9 (10 off. proc.) D 1.9.1 pr (1 cens.) 21 D 28.5.35.1 (4 disp.) D 27.1.15.16; Frag. Vat. 242 (1 off. pr. tut.) 23 D 49.2.1.4; 49.1.3 pr (1 appell.) Frag. Vat. 321 (8 ed.) 25 D 3.2.2.2 (6 ed.) D 50.15.1.2, 3,5, 10, 11 (1 cens.)

192


2. The Market-Masters’ Edict (2 books) The surviving fragments of this commentary26 on the market-masters’ edict contain no reference to contemporary emperors. But parallels with the major and medium-range treatises of Caracalla’s reign suggest that it, too, belongs to that reign. Thus Ulpian has four texts with accipias, ‘take it that . . .’.27 There is also one text with accipies, ‘you will take it that . . .’. 28 These texts point to 213 or 214. Mediocris ‘unimportant’, with three texts, fits the same years.29 Other parallels point more to 213. Four sentences begin Illud plane, ‘The following, of course . . .’.30 There are three texts with erit notandum, ‘it will have to be noted that . . .’31 Four passages have . . . in causae cognitione versabitur ‘so-and-so will be in issue at the trial’.32 The Market-Masters’ Edict is probably from 213 or 214, and perhaps goes better in 213. It is a mistake to think of it an appendix to the commentary on the praetor’s edict, in which case it would belong to 217 or even later. If The Market-Masters’ Edict goes in 213, Ulpian’s Teaching Manual should go in 214. The former fits the segment of Edict composed in 213 well, while Teaching Manual, a work largely about civil as opposed to praetorian law, better fits the commentary on Sabinus of 214, itself concerned with civil law. 3. Disputations (10 books) and Trusts (6 books) In the last chapter Disputations, on discussions in public of moot points of law, was assigned to 214 or 215.33 There are affinities between this work and Trusts.34 It seems best, therefore, to discuss the date of these works together. They both display vivacity and self-confidence. Disputations belongs at least from book 3 to the Caracalla B period. To place these works more precisely, we must look for parallels with the major commentaries. One is the use of probamus, ‘we approve’, a first person plural expressing the author’s authority. This occurs in Sabinus books 5 and 20,35 Edict books 32 and 33,36 and Disputations book 8.37 The Sabinus texts belong, we have suggested, to 214, the Edict texts to 215. But the Edict texts must come fairly early in 215, since

26 Lenel (1889) 2.884–98; Ind. Flor. xxiv 1; Schulz (1946) 198; (1961) 244; Jörs (1903) 1439 (all mistakenly treating this work as an appendix to Ad edictum praetoris); Liebs (1997) §424.2 27 D 21.1.19.4 (1 ed. cur.); 15.1.3.7 (29 ed.); 28.1.20.3 (1 Sab.); 29.2.30.1 (8 Sab.) 28 D 5.3.25.8 (15 ed.) 29 D 21.1.4.6 (1 ed. cur.); 7.8.4 pr (17 Sab.); 1.16.9.4 (1 off. proc.) 30 D 21.1.31.18 (1 ed. cur.); 3.2.6.6 (6 ed.); 5.3.31.4 (15 ed.); 15.3.7.3 (29 ed.) 31 D 21.1.4.5 (1 ed. cur.); 3.6.3.3 (10 ed.); 4.6.21.1 (12 ed.) 32 D 21.1.31.23 (1 ed. cur.); 3.3.27 pr (9 ed.); 4.4.13 pr, 16 pr (11 ed.) 33 Ch. 8 n.38–9; Schulz (1961) 305–7; Wieacker (1960) 385–8; Liebs (1997) §424.24 34 Lenel (1889) 2.903–26; Ind. Flor. xxiv 9; Schulz (1946) 255; (1961) 328; Jörs (1887) 5.1451; Fitting (1908) 117; Liebs (1997) §424.19 35 36 D 28.5.9.5 (5 Sab.); 36.2.5.1 (20 Sab.) D 19.1.11.3 (32 ed.); 24.3.22.6 (33 ed.) 37 D 35.2.82 (8 disp.)

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the middle block of Edict begins at book 31/2 or 32. From the parallels in these texts, the Disputations passage would fit the later months of 214. A similar picture emerges from texts with dicet quis ‘someone will argue’. These come in Sabinus books 13 and 25,38 Edict book 5,39 and Disputations book 4.40 There are two texts with intellegendum erit ‘it will have to be understood’, one from Sabinus book 21 and one from Disputations book 4.41 Then we come to seven texts with pari ratione ‘for the same reason’. These run from Edict book 29,42 presumably latish 213, to Sabinus books 17 and 26,43 in 214, two texts from Disputations,44 and one from Trusts.45 Here the Edict text should belong to the later part of 213 and the Sabinus text to the later part of 214, so that Disputations again fits 214 best. Is the same true of Trusts? One parallel between Disputations and Trusts consists in the fact that Ulpian uses dicebam only in these works. The use of the imperfect points to oral argument.46 Of twelve texts with dicebam eleven come from Disputations and one from Trusts.47 The expression is to be expected in Disputations, which record oral argument, but not in a work on Roman trust law. The most plausible explanation is that Ulpian was working more or less concurrently on these two works and recorded an oral discussion, present to his mind at the time of writing, in the treatise on trusts. The same correlation is found with three uses of referebam ‘I argued that. . .’. Two come from Disputations 48 and one from Trusts.49 Another expression that points to a link between Disputations and Trusts is benignum est, ‘it is fair . . .’, which occurs once in each work.50 So far, then, the evidence rather favours the idea that Trusts and Disputations were both composed in 214. What of the evidence to be drawn from references to emperors? 1 fid.

D 32.1.4

epistula divi Severi et imperatoris nostri

1 fid.

D 32.1.9


2 fid.

D 32.11.19


2 fid.

D 35.1.14


3 fid.

D 36.1.1.13

et est decretum a divo Severo

3 fid.

D 36.1.3.4


4 fid.

D36.1.15.4

et ita invenio ab imperatore nostro et divo patre eius rescriptum

38

39 D 27.9.7 pr (35 ed.) D 38.17.2.41 (13 Sab.); 32.55.7 = 50.16.167 (25 Sab.) 41 D 41.1.33.1 (4 disp.) D 30.39.1 (21 Sab.); 28.5.35.3 (4 disp.) 42 43 D 15.1.11.9 (29 ed.) D 7.1.12.3 (17 Sab.); 23.2.12.4 (26/1 Sab.) 44 45 D 17.1.29 pr (7 disp.); 28.7.10 pr (8 disp.) D 36.1.17.6 (4 fid.) 46 Ch. 1 n.144–5 47 D 27.8.2; 44.3.5.1 (3 disp.); 28.5.35 pr; 28.4.2; 29.1.19; 49.17.9 (4 disp); 36.1.23 pr; 33.4.2.1 (5 disp.); 46.7.13 (7 disp.); 35.2.82 (8 disp.); 34.1.14.3 (2 fid.) 48 49 D 29.1.19 pr; 49.17.9 (4 disp.) D 35.1.92 (5 fid.) 50 D 21.1.49 (8 disp.); 32.5.1 (1 fid.) 40

194


5 fid.

D 40.5.24.5

et est rescriptum ab imperatore nostro

5 fid.

D 40.5.24.9

et imperator noster cum patre rescripsit

5 fid.

D 40.5.26.1

decretum et a divo Severo constitutum est

5 fid.

D 40.5.26.2


5 fid.

D 40.5.26.3

Idem imperator noster cum patre suo rescripsit

5 fid.

D 40.5.26.8

et ita imperator noster cum patre suo rescripsit

5 fid.

D 40.5.30 pr


5 fid.

D 40.5.30.15

Imperator noster Antoninus rescripsit

5 fid.

D 40.5.30.17

rescriptum imperatoris nostri et divi patris eius declarat

5 fid.

D 35.1.92

quod divus Severus rescripsit . . . ex auctoritate divi Severi

6 fid.

D 49.14.43

Imperator noster rescripsit

The imperator noster who is mentioned jointly with the dead Severus in the first text must be Caracalla, and he is still sole emperor in book 6. Of the seven mentions of joint constitutions, six, in books four and five, put Caracalla first. The other, from book 1, makes Severus senior. So the early books of Trusts might belong to the Caracalla A period and the later ones to Caracalla B. Its date might be 213 rather than 214. But D 32.1.4 comes from a letter rather than a private rescript and citations from letters sometimes keep closer to the original. To decide between these possibilities, let us examine the parallels between Trusts and the major commentaries. Several words expressing what the author knows or remembers occur in Trusts and some have parallels in other works: memini,51 invenio and variants,52 retineo,53 nec ignoro.54 The parallels are inconclusive, though perhaps pointing more to 214. Texts with tractatum or tractatum est point towards 214, since many of the parallels come from or straddle the first half of On Sabinus.55 Other parallels point towards 213. There are just two Ulpianic texts with inefficax.56 There are also two passages in which Ulpian rejects in advance the imputation to himself of certain views on the law: ‘let nobody suppose that I think so-and-so’. 1 fid. 16 ed.

D 32.1.1

haec utique nemo credet in testamentis nos probaturos

D 6.2.7.17

nec quisquam putet nos existimare sufficere initio traditionis ignorasse alienam

On balance Trusts, like Disputations, is likely to have been composed in 214. Another possibility is that the two six-book works, Taxation and Trusts, were 51

D 36.1.18.5 (4 fid.); 7.8.2.1 (17 Sab.); Frag. Vat. 220 (1 off. pr. tut.) D 36.1.15.4 (4 fid.); Frag. Vat 177 (1 off. pr. tut.); 38.17.2.47 (13 Sab.); Spicil. Solesm. ed Pitra 1.28214 (6 ed.); 39.3.1.20 (53 ed.) 53 54 D 35.1.92 (5 fid.) D 36.1.17 pr (4 fid.) 55 D 36.1.18 pr, 5 (2 fid.); 36.1.6.1 (4 fid.); 43.8.2.33 (6 ed.); 17.1.58 pr (31/2 ed.); 5.1.50.1 (6 Sab.); 38.16.3.10 (14 Sab.); 7.4.3 pr; 7.8.2.1 (17 Sab.); 30.39.6 (21 Sab.); 34.3.7 pr (23 Sab.); 40.7.9.2 (28 Sab.); 15.1.3.5 (29 ed.) 56 D 40.5.24.2 (5 fid.); 4.8.11.5 (13 ed.) 52

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spread over 213 and 214, with three of each in the first year and another three of each in the second. 4. Teaching Manual (2 books) The two books of elementary teaching, Institutiones, run to 120 lines in the Palingenesia.57 One text refers to a reigning emperor: 2 inst.

Collatio 16.9

Sed imperator noster eas solas personas voluit admitti, quibus decimae immunitatem ipse tribuit

The emperor is Caracalla and the text is concerned, it seems, with legislation on his part restricting to a narrow circle of close relatives the right of intestate succession to freedmen. Arguments from affinity of style suggest that Teaching Manual is an early work. Ulpian has two texts in it with aequissimum putavit, ‘he thought it the fairest solution’.58 There are also two with aequitate motus, ‘moved by reasons of fairness’.59 Both these point, in view of the Edict texts, to 213. There are three texts with ut, cum, or si libuerit, ‘as’ or ‘if he pleases’.60 These rather suggest 214. So do the texts with utpote ‘namely’.61 It is hard to decide between 213 and 214. Taken as a whole, the writings of these first two years are self-confident, even exuberant. Ulpian is relaxed, talks informally to the reader,62 draws on personal experience,63 and feels free to compliment Caracalla on his rescripts64 and Marcus on agreeing with the author’s own opinion in advance.65 Ulpian’s ambitious undertaking gets off to a powerful start. The detailed programme of 431⁄2 books a year for 213 and 214 may have been something like this: 213 Major commentary On the Edict book 6 to middle of book 31 Medium-scale treatise Proconsul 10 books Lesser works Taxation 6 books Market-Masters’ Edict 2 books Total: 431⁄2 books

57 Lenel (1889) 2. 926–30; Ind. Flor. 24.4; Bremer (1863); Mommsen (1904–13) 2.56–63; Collectio 2.157–9; Seckel–Kübler 1.492–4; FIRA 2.305f.; Girard–Senn (1967) 540–2; Wieacker (1960) 206–16; Schulz (1946) 171–2; (1961) 207; Liebs (1997) §424.23 58 Collatio 16.7 (2 inst.); D 2.10.1 pr (7 ed.) 59 Collatio 16.9.2 (2 inst.); D 12.4.3.7 (26 ed.) 60 D 43.26.1.2 (1 inst.); 40.5.46.3 (6 disp.); 50.16.164.1 (15 Sab.) 61 D 1.1.4; 1.4.1 pr (1 inst.); 28.5.17.5 (7 Sab.); 34.4.3.2 (24 Sab.); 46.1.8.8 (47 Sab.) 62 Accipias, accipies: above n.27–8; dicet quis, above n.38 63 Scio, invenio, memini, dicebam, non ignoro: above n.12, 15–8, 45–6, 51–2, 54 64 D 48.19.8.12 (9 off. proc.) 65 D 29.1.3 (2 Sab.)

196


214 Major commentary On Sabinus Medium-scale treatise Disputations Lesser works Trusts Teaching Manual Total 431⁄2 books

book 1 to middle of book 26 10 books 6 books 2 books

There are uncertainties but, whatever the exact plan, the general picture presented here cannot be far from the mark. II. THE MIDDLE PERIOD: AD 215

The middle year of Ulpian’s five-year plan came in 215. We assumed that he was then writing the middle segment of Edict, from the middle of book 31 to the middle of book 56. The medium-range work for the year was thought to be either Disputations or Tribunals. If the arguments for holding Disputations to have been written in 214 are accepted, it follows that Tribunals was composed in 215. There are positive parallels between Tribunals and the thirties and forties of On the Edict. Ulpian often uses non tantum . . . verum etiam, ‘not only but also’. One variant of this, nec tantum verum etiam, ‘nor only but also’ occurs in five texts, all from the middle segment of Edict.66 Another variant, this time a pleonastic one, is non tantum, verum etiam quoque, ‘not only, but, in addition, also’, which is found in four texts.67 Ulpian soon eliminated this superfluous phrase. But the distribution of these four texts suggests that the early part of the middle section of Edict and the early books of Tribunals were being composed at much the same time. If the evidence of these texts can be trusted, one minor work that occupied his attention at this time was the three-book work on The Consul. This picture is strengthened by his use of the diminutive of minutus, viz. minutulus,68 ‘tiny’, and of minutatim, ‘piecemeal’.69 These rather precious expressions seem to have enjoyed Ulpian’s favour briefly, presumably in late 214 and 215. This suggests that Tribunals and The Consul should go in 215. Ulpian’s use of certain polysyllabic, impressive-sounding words falls in the same period and suggests that other treatises on public officials, besides the consul, were composed at much the same time. One type of word of this sort are adverbs in four or more syllables beginning with the prefix in- and ending in –ter: inconsideranter,70 indubitanter,71 incunctanter,72 indifferenter.73 Not 66 67 68 69 70 73

D 9.4.42.2 (37 ed.); 38.2.16.5 (44 ed.); 38.7.2.1; 38.7.2.2 (46 ed.); 38.15.2.4 (49 ed.) D 26.5.7 (1 omn. trib.); 27.4.1.5 (36 ed.); 37.4.3 pr (39 ed.); 25.3.5.12 (2 off. cons.) D 50.16.192 (37 ed.) D 32.55.2 (25 Sab.); 2.15.8.9 (5 omn. trib.); 34.1.3 (2 off. cons.) 71 D 37.11.2.7 (41 ed.) 72 D 40.2.20 pr (2 off. cons.) D 26.10.3.17 (35 ed.) 74 D 26.10.3.16 (35 ed.) D 1.13.1.3 (1 off. quaest.)

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far removed is pervicaciter.74 The distribution of these words suggests that the monographs on the office of consul and quaestor belong together. The next group of words brings in two more books on offices, those of the urban prefect and the community treasurer (curator reipublicae), an imperial commissioner appointed to a municipality. This group of assonant words consists of five-syllable words in -osus or -ose, apart from iniuriosus and iniuriose, which are omitted because of their technical connection with the delict of iniuria. They include perniciosus,75 perniciose,76 facinorosus,77 contumeliosus,78 incuriosus,79 and ambitiosus.80 These pretentious expressions suggest that Ulpian, for whatever reason, indulged at this period in unusual rhetorical excess. Here are other examples from works that appear to belong to 215: D 26.7.7.1 (35 ed.) D 22.1.33 pr (1 off. cur. reip.)

D 1.12.1.8 (1 off. pr. urb.)

non quidem praecipiti festinatione, sed nec moratoria cunctatione non acerbum se exactorem nec contumeliosam praebeat sed moderatum et cum efficacia benignum et cum instantia humanum si verecunde expostulent, si saevitiam, si duritiam, si famem, qua eos premant, si obscaenitatem, in qua eos compulerint vel compellant, apud praefectum urbi exponant

There are further links between the middle section of Edict, the treatise on Tribunals, and the monographs on public offices. Raro or perraro faciendum est ‘it should be done only rarely’ comes only in Tribunals 81 and The Consul.82 Liberalis, in the context of liberal arts or studies, comes in Tribunals 83 and The Community Treasurer.84 Licentiam habet ‘he is allowed’ comes in this block of Edict 85 and The Urban Prefect.86 Licentia erit ‘it will be permissible’ is similar and comes only in this block of Edict.87 Accipere nos oportet ‘we must take it that . . .’ occurs mainly in this edictal block88 and in The Consul.89 There is perhaps a link between acerbum ‘harsh’ and acriter ‘harshly’, the first in Tribunals 90 and the second in The Community Treasurer.91 Three works on the duties of public officials,92 the consul, the urban prefect, and the community treasurer therefore seem to have links with the middle block of Edict, and with Tribunals. Did the whole programme of 75

76 D 26.10.3.5 (35 ed.) D 14.6.3.3 (29 ed.); 24.3.22.7 (33 ed.); 47.2.50.4 (37 ed.) 78 D 1.12.1.10 (1 off. pr. urb) D 2.1.3 (1 off. quaest.) 79 D 22.1.33 pr (1 off. cur. reip.) 80 D 22.1.33 pr; 50.9.4 pr (1 off. cur. reip.) 81 D 26.10.7.3 (1 omn. trib.) 82 D 5.1.82 (1 off. cons.) 83 D 50.13.1 pr (8 omn. trib.) 84D 50.9.4.2 (1 off. cur. reip.) 85 D 24.3.22.8 (33 ed.) 86 D 1.12.1.3 (1 off. pr. urb.) 87 D 24.3.22.7 (33 ed.), 26.7.1.3 (35 ed.) 88 D 9.2.5.1 (18 ed.); 26.2.3.1 (35 ed.); 38.5.1.4 (44 ed.); 38.8.1.6 (46 ed.) 89 D 50.16.99.1 (1 off. cons.) 90 D 47.10.35 (3 omn. trib.) 91 D 22.1.33 pr (1 off. cur. reip.) 92 On which see Jörs (1903) 1452; Solazzi (1920–2) = (1957–63) 2.521–6; Dell’Oro (1960) 98–105; Fitting (1908) 119; Liebs (1997) §424.16 77

198


minor works for 215 consist of monographs on the duties of public officials? If we assume a total of eight books of minor works, these three monographs together come to five books. We can possibly add three out of The Quaestor (probably one book), The Prefect of Police (one book), The Praetor for Guardianship (one book), and Consular Judges (one book). This gives eight books. On the duties of consular judges (circuit judges in Italy) we have only three lines, on the duties the prefect of the watch only one. It is impossible to link them linguistically with the other monographs. But it seems reasonable to suppose that the works on public offices were mostly composed in the same year and were regarded by Ulpian as forming a group. Notes on individual works follow. 5. The Consul (3 books)93 Five passages refer to contemporary emperors: 3 off. cons.

D 27.3.17

Imperatores Severus et Antoninus rescripserunt in haec verba

3 off. cons.

D 42.1.15.1


3 off. cons.

D 42.1.15.3

rescriptum est ab imperatore nostro et divo patre eius

3 off. cons.

D 42.1.15.4

constitutum est ab imperatore nostro

3 off. cons.

D 42.1.15.8


The reigning emperor is Caracalla, in view of the references to joint constitutions of himself and his father. In two of these he precedes Severus, in the third Severus comes first. It is not therefore clear at first sight whether the work belongs to the Caracalla A or B period. It is more probable, however, that texts in which Severus precedes Caracalla will be found in period B than the other way around. This is especially true if the exact words of the constitutions are given, as in the first text listed here.94 Probably, therefore, Office of Consul was composed in 215, which falls in Caracalla B. 6. The Urban Prefect (1 book)95 There are four references to present or recent emperors in this work: 1 off. pr. urb.

D 1.12.1 pr

epistula divi Severi ad Fabium Cilonem missa

1 off. pr. urb.

D 1.12.1.8

officium praefecto urbi a divo Severo datum est

1 off. pr. urb.

D 1.12.1.14

Divus Severus rescripsit

93 Lenel (1889) 2.951–8; Ind. Flor. 24.13; Jörs (1903) 1452; Fitting (1908) 119; Schulz (1946) 243; (1961) 314; Solazzi (1957–63) 2.521–6; Dell’Oro (1960) 31–85; Liebs (1997) §424.16 94 D 27.3.17 (3 off. cons.) 95 Lenel (1889) Pal. 2. 959–60; Ind. Flor. xxiv 19; Schulz (1946) 246; (1961) 313; Jörs (1903) 1454; Fitting (1908) 120; Dell’Oro (1960) 239–49; Mantovani (1988) 171–223; Liebs (1997) §424.17

Lesser Works 1 off. pr. urb.

D 1.15.4

199

Imperatores Severus et Antoninus Iunio Rufino ita rescripserunt

Severus, divus in three references, is dead. We are not told who is currently emperor, but Caracalla is not ruled out. In the last text, however, Severus is mentioned before Caracalla, which points to the Caracalla A period. The rescript mentioned is however a letter (epistula) of which the exact words are cited.96 In this type of case there is sometimes an exception to the order of emperors even in the Caracalla B period.97 In all there are five or six exceptions of this sort to set against seventy-one texts that follow the standard pattern.98 The work may therefore have been composed in 215 along with other monograph on public offices. 7. The Community Treasurer (1 book)99 There are three references to contemporary emperors: 1 off. cur. reip.

D 50.12.1 pr

ut imperator noster cum divo patre suo rescripsit

1 off. cur. reip.

D 50.12.1.5

imperator noster cum divo patre suo ita rescripsit

1 off. cur. reip.

D 50.12.1.6


From the mention of joint constitutions with his dead father, Caracalla must have been sole emperor at the time of composition. This monograph falls in the Caracalla B period and could have been composed in 215.100 8. The Quaestor (1 book)101 The twenty-nine lines from this work contain no reference to a contemporary emperor, but, as noted above, from parallels of style could belong to 215.102 Scholarly opinion, going back to Cuiacius, tends to reject the heading to D 2.1.3 (ULPIANUS libro secundo de officio quaestoris), preferring singulari for secundo or proconsulis for quaestoris.103

96

97 Above n.50–1 98 Above n.9 cf. D 27.3.17 (3 off. cons.) Lenel (1889) 2.958–9; Ind. Flor. 24.21; Jörs (1903) 1454; Fitting (1908) 119; Kübler (1925) 221; Schulz (1946) 246; Cassarino (1947–8); Dell’Oro (1960) 220–9; Eck (1974) 224; Liebs (1970) 148–150; (1997) §424.20 100 Above n.7–9 101 Lenel (1889) 2.992; Lydus, De Mag. 1.24.28; Ind. Flor. 24.23; Jörs (1903) 1454; Schulz (1946) 246; (1961) 314; Wieacker (1960) 408–10; Dell’Oro (1960) 98–105; Wesener (1963) RE 24.826; Liebs (1970) 148–50; (1997) §424.15 102 D 1.13.1.3; 2.1.3 (1 off. quaest.) 103 Karlowa (1885–1901) 2.7422 who thinks that D 2.1.3 is likely to come from The Proconsul (off. proc.); Liebs (1970) 149f. There is no reason to think it post-classical (Schulz, 1946, 246). 99

200


9. The Praetor for Guardianship (1 book) This work,104 on the office of the praetor for guardianship, appears to be early, but is in some ways puzzling. Some texts in it are identical with texts from Excuses,105 which was composed before the sole rule of Caracalla, possibly during the reign of Severus, since texts from it contains three references to imperatores nostri ‘our emperors’.106 Office of the Praetor for Guardianship is therefore thought, following Mommsen, to be a second edition or reworking of Excuses. It certainly belongs to the reign of Caracalla, as the sixteen texts referring to emperors show: 1 off. pr. tut.

D 27.1.9

beneficio divi Severi et imperatoris nostri

1 off. pr. tut.

Frag. Vat. 176

et ita imperator noster . . .

1 off. pr. tut.

Frag. Vat. 177a

[imperatores] . . . riae Sabinae rescripser[unt]

1 off. pr. tut.

Frag. Vat. 191

imperator noster et divus Severus rescripserunt

1 off. pr. tut.

Frag. Vat. 200


1 off. pr. tut.

Frag. Vat. 201

divus Severus Flavio Severiano rescripsit

1 off. pr. tut.

Frag. Vat. 204

imperator Antoninus Augustus Cereali [rescripsit]

1 off. pr. tut.

Frag. Vat. 210

idque imp[erator noster rescripsit]

1 off. pr. tut.

Frag. Vat. 211

[ut imperator noster Dio]doto praetori rescripsit

1 off. pr. tut.

Frag. Vat. 212

ut divus Severus constituit

1 off. pr. tut.

Frag. Vat. 232

ut imperator noster rescripsit

1 off. pr. tut.

Frag. Vat. 234

ut Phi[lu]meniano imperator noster cum patre rescripsit

1 off. pr. tut.

Frag. Vat. 235

quam epistulam quodam rescripto imperator noster cum patre interpretatus est. plus etiam imperator noster indulsit

1 off. pr. tut.

Frag. Vat. 236

ut imperator noster et divus Severus rescripserunt

1 off. pr. tut.

D 27.1.10.8

ut imperator noster cum patre rescripsit

1 off. pr. tut.

Frag. Vat. 238–9

Faustino rescripsit imperator noster cum patre. Item Furio Epaphrae rescripsit

104 Lenel (1889) 2.960–6; Ind. Flor. 24.22; Jörs (1903) 1452; Fitting (1908) 118–9; Schulz (1946) 249, (1961) 318–20; Wieacker (1960) 412–6; Dell’Oro (1960) 88–98; De Filippi (1984); Liebs (1987b) 151; (1997) §424.10–11 105 D 27.1.7 (1 excus.) = Frag. Vat. 240 (1 off. pr. tut.); Frag. Vat 145 (1 excus.) = Frag. Vat 222 (1 off. pr. tut.); D 27.1.15.16 (Mod. 6 excus.–Ulp. 1 excus.) = Frag. Vat. 189 (off. pr. tut.) 106 Frag Vat. 125, 147, 159 (all 1 excus.); Fitting (1908) 115 but Ebrard (1917) 144; H. Krüger (1930) 303.

Lesser Works

201

Of the eight texts in which Severus and Antoninus appear jointly, Caracalla precedes his father in seven. In one Digest text,107 however, Severus has priority. The Praetor for Guardianship looks early and we have already come across two texts in it with scio,108 and one each with invenio,109 inveni,110 and memini.111 It is strong on first-person words referring to mental activity. There is a case for allotting it to 213 or 214, but, along with other works on public offices, it is perhaps better placed in 215. 10. Consular Judges (1 book)112 The only sentence that survives from this work comes from a constitution of Marcus. It contains nothing to indicate the period in which the work was composed. 11. The Prefect of Police (1 book)113 There are only five words from this work, which give no clue as to its date. Certainty is not possible, but it seems likely that the 43 books composed in 215 consisted of: Major commentary

from middle of 31 to middle of 56 Medium-scale work Tribunals 10 books Lesser works The Consul 3 books The Urban Prefect 1 book The Community Treasurer 1 book The Quaestor 1 book The Praetor for Guardianship 1 book either The Prefect of Police 1 book, or Consular Judges 1 book Total: 43 books On the Edict

III. THE LATER PERIOD: AD 216 AND 217

In fixing the detailed programme for 216 and 217 we can begin by eliminating the minor works already assigned to the first three years of the quinquennium. 107

108 D 27.1.9 (1 off. pr. tut.) Frag. Vat 189, 242 110 Frag. Vat. 189 cf. D 27.1.15.16 (1 excus.) Frag. Vat. 177 111 Frag. Vat. 220 112 Lenel (1889) 2.950; Jörs (1903) 1452; Schulz (1946) 247, (1961) 315; Dell’Oro (1960) 260–3, 299; Liebs (1997) §424.12. Not in Ind. Flor. 113 Lenel (1889) 2.960; Ind. Flor. 24.20; Jörs (1903) 1454; Schulz (1946) 246; (1961) 314; Dell’Oro (1960) 250, 254f.; Vriesendorp (1984); Liebs (1997) §424.18 109

202


This leaves: Adultery The Aelio-Sentian Law Appeals Engagement to Marry The Speech of Marcus and Commodus Consular Judges/Prefect of Police

5 books 4 books 4 books 1 book 1 book 1 book

This makes sixteen books, eight each year, which is the number required to bring Ulpian’s total up to 431⁄2 books for each of these years. In 216 the block of major commentary is thought to have been 251⁄2 books On Sabinus, from the middle of book 26 to the end of book 51 and the middle range treatise for that year is thought to have been the first ten books on the Julio-Papian Law. In 217 the block of major commentary is thought to have run from the middle of Edict book 56 to the end of book 81, which again comes to 251⁄2 books. The middle-range treatise for that year is thought to have been the last ten books of The Julio-Papian Law. If eight books of lesser works are added each year we arrive at the required total. If this outline is correct, a pattern emerges. Ulpian’s commentaries on statutes (leges) belong to the last two years of the quinquennium. No work of this sort seems to come in the first three years. Counting twenty books on the Julio-Papian Law, five for the Julian Law on Adultery, and four for the AelioSentian Law, we have twenty-nine books on statutes in the last two years. Somewhat as in the Digests (Digesta) of Celsus, Julian, and Marcellus,114 the analysis of statutes formed an appendix to the discussion of other branches of the law. The various lesser works are now dealt with in turn. 12. Appeals (4 books)115 Ulpian often uses et magis est, ‘and the better view is’.116 One variant of this, magisque est, occurs only in thirteen texts, concentrated in later 216 and early 217.117 This distribution of texts tends to confirm the view that the last books of Sabinus, ending at book 51, and the first books from the final block of Edict texts, beginning from the middle of book 56, belong to the same period, 114

Lenel (1889) 163–9 (Cels. 28–9 dig.), 1.464–84 (Iul. 59–90 dig.), 1.627–32 (Marc. 21–31

dig.) 115 Lenel (1889) 2.379–84; Ind. Flor. 24.12; Jörs (1903) 1452; Schulz (1946) 256; (1961) 329; Fitting (1908) 120; De Giovanni (1989) 95–101; Liebs (1997) §424.22 116 Eighty-eight texts: Honoré–Menner (1980) fiche 56 ET MAGIS EST 117 D 49.4.1.9 (1 appell.); D 37.14.16.1 (10 leg. Iul. Pap.); D 45.3.7 pr (48 Sab.); D 42.4.3.3 (59 ed.); D 40.5.4.15, 16, 22 (60 ed.); 28.8.8 (61 ed.); 29.2.71.1, 9 (61 ed.); 44.2.7.3 (75 ed.); 46.7.3.3, 8 (77 ed.)

Lesser Works

203

late 216 and early 217.118 The tenth book of The Julio-Papian Law fits this pattern, since it should belong to late 216. Appeals could, consistently with this bunching, belong to either year, but perhaps fits 217 rather better. Some evidence can be drawn from a study of another construction, palam est (‘it is clear’). In earlier years Ulpian uses this at the end of a clause. Palam est follows the object or accusative and infinitive that it governs, as in ex conducto actionem transire palam est.119 In a later group of texts, however, it is the other way round: palam est precedes the object or accusative and infinitive which it governs.120 Appeals is again associated with texts that belong to late 216 or 217. One text from Appeals refers to a reigning emperor: 4 appell.

D 49.5.5.3

idque rescriptis imperatoris nostri Antonini declaratur

Antoninus might be Caracalla or Elagabal.121 But if the work was composed in 216 or 217, as seems likely, the reference must be to Caracalla, and must relate to a time before the news of Caracalla’s death on 8 April 217 reached Ulpian. 13. Adultery (5 books)122 A number of phrases from this work on adultery suggest that it should be placed in 217. Another variant of magis est is magis putamus, ‘we rather think’, which comes twice, once in the last books On Sabinus and once in Adultery.123 Praeripere ‘snatch away’ comes in the last Edict block and in Adultery.124 A similar pattern comes in three texts with nec/non ab re est, ‘it is not out of place’,125 with nec/non mediocriter ‘to no small extent’,126 and with per(quam) iniquum esse ‘to be very unjust’.127 In the first text Ulpian cites Marcellus, and plausibly so, since Marcellus uses periniquum in another text.128 The argument from affinity here takes the form that it was this citation from Marcellus that suggested to Ulpian that he should use a word which was not normally part of his vocabulary. There is also a plausible link between perquam durus129 and durissimus.130 118 Further evidence of this linkage is provided by texts with the phrase praeterea sciendum est: D 46.1.8.1 (47 Sab.); 42.6.1.12 (64 ed.); 42.8.6.9 (66 ed.); 43.19.1.10; 43.20.1.23 (70 ed.); 42.8.10.6 (73 ed.); 44.4.4.10 (76 ed.) 119 D 19.2.19.8 (32 ed.) 120 D 49.4.1.11 (1 appell.); 19.1.10 (46 Sab.); 18.4.2.3; 45.1.38.3 (49 Sab.); 42.8.3 pr (66 ed.); 43.16.1.24 (69 ed.); 43.21.1.7 (70 ed.); 44.4.2 pr (76 ed.); 46.7.5.3 (77 ed.) 121 Lenel (1889) 2.3791 122 Lenel (1889) 2.931–9; Ind. Flor. 24.11; Jörs (1903) 1446; Schulz (1946) 188, (1961) 232; Fitting (1908) 120; Liebs (1997) §424.8 123 D 48.5.18.2 (2 adult.); 46.1.8.5 (47 Sab.) 124 D 48.5.16 pr (2 adult.); 42.8.6.7 (66 ed.) 125 D 48.5.18.6 (2 adult.); 40.5.4.5 (60 ed.); 42.1.26 (77 ed.) 126 D 48.5.30.3 (4 adult.), 47.10.7.2 (57 ed.) 127 D 48.5.14.5 (2 adult.), 42.4.3 pr (59 ed.); 36.3.14.1 (79 ed) 128 D 26.7.29 (Marc. 8 dig.) 129 D 40.9.12.1 (4 adult.) 130 D 5.1.19.2 (60 ed.)

204


These links suggest that Adultery was composed in 217. What of the evidence from references to emperors? There are two: 2 adult.

D 48.5.14.3

Divi Severus et Antoninus rescripserunt

2 adult.

D 48.5.14.8

poterit accusari ex rescripto divi Severi, quod supra relatum est

Severus is clearly dead. What of Caracalla? One could with Lenel and Fitting take the first text as showing that Adultery was composed after Caracalla’s death and deification. But the second reference is to the same rescript as the first. It implies that, though technically a joint rescript, it was in substance the ruling of Severus. This suggests that Ulpian is writing after Caracalla’s death when it was no longer necessary to treat him as the real author of constitutions issued by Caracalla jointly with his father. Besides it is easier to insert divus or divi into a text retrospectively than to eliminate it.131 The first reference could originally have read Severus et Antoninus rescripserunt. In that case the mode of citation is appropriate to the reign of Macrinus132 and can properly be placed in the year 217. This seems to me the correct interpretation. Adultery should be assigned to 217. 14. The Aelio-Sentian Law (4 books)133 This work on the Aelio-Sentian law concerns a statute of AD 4 about the manumission of slaves. Thirty-seven lines have been preserved but they do not refer to a reigning or recently dead emperor. A possible date is 216, and there is a slender piece of evidence in its favour. Verum est followed by the accusative and infinitive comes only in The Aelio-Sentian Law134 and in a late book On Sabinus.135 15. Engagement to Marry (1 book)136 The two excerpts from this contain only seven lines as printed in the Palingenesia. They do not point to any particular year.

131

132 Above ch. 7 n.88–92 Mommsen (1904–13) 2.169 Lenel (1889) 2.930–1; Jörs (1903) 1446; Schulz (1946) 189, (1961) 232; Liebs (1997) §424.6. Not in Ind. Flor. 134 D 50.16.216 (1 Ael. Sent.) 135 D 50.17.31 (42 Sab.) 136 Lenel (1889) 2.1198; Ind. Flor. 24.18: Jörs (1903) 1451; Schulz (1946) 253; (1961) 325; Liebs (1997) §424.9 133

Lesser Works

205

16. The Speech of Marcus and Commodus (1 book)137 Though this work is not in the Florentine Index and is not confirmed by any text heading, it must have existed.138 The quotation from it in Paul’s monograph contains the phrase ‘the point at issue is’ (quaestio in eo est).139 This is found otherwise only in four texts of Ulpian.140 These point to 216 or 217, the years of the later books On the Edict and On Sabinus. This brings to an end the discussion of the dates of Ulpian’s lesser works. Which of them are to be attributed to 216 and which to 217 is doubtful. The following is a possible scheme: 216 Major commentary

middle of 26 to end of 51 Medium scale treatise The Julio-Papian Law books 1–10 Lesser works The Aelio-Sentian Law 4 books Engagement to Marry 1 book Consular Judges/Prefect of Police 1 book Appeals books 1–2 Total: 431⁄2 books On Sabinus

217 Major commentary

middle of 56 to end of 81 Medium-scale treatise The Julio-Papian Law books 11–20 Lesser works Adultery 5 books Appeals books 3–4 Speech of Marcus and Commodus 1 book Total: 431⁄2 books On the Edict

The overall picture is that of 217 books composed in the five years 213–7. According to the scheme set out, 431⁄2 books were written in four of these years and 43 in the fifth (assumed to be 215). Given the sustained quality of the text this constitutes a monumental achievement.

137 Not in Digest or Ind. Flor. but cf. Paul, Ad orat. d. Ant et Comm: Lenel (1889) 1.1145–6; Ind. Flor. 25.50; Liebs (1997) §423.17 138 Ch.5 n.35–40 139 D 23.2.60.4 (Paul 1 or. d. Ant. et Comm.) 140 D 47.2.43.11 (41 Sab.); 41.1.23.1 (43 Sab.); 37.6.1.21; 43.26.6.4 (71 ed.)

10 Spurious Works T H E argument presented in this chapter is that five works attributed to Domitius Ulpianus in Justinian’s Digest were not written by him. Nor are they, with minor exceptions, excerpts from his work collected by someone else. They are spurious, though one or two may have been composed, it has been suggested,1 by some other Syrian lawyer called Ulpianus. The argument for their spuriousness is largely, though not entirely, negative. They lack the turns of phrase that were shown in chapter 2 to be typical of Ulpian. Since his style is consistent, and reflects speech, it is not plausible to attribute to him works composed in a very different way. It is true, of course, that how they came to be attributed to Ulpian needs to be explained. The five works in question are Rules in one book, Encyclopaedia in ten books, Rules in seven books, Opinions in six books, and Replies in two books. The five spurious works are attributed to Ulpian in the Florentine Index to the Digest,2 but whereas the Index3 speaks of 10 books of Encyclopaedia (πανδκτου βιβλ α δκα) the two excerpts in the Digest have the heading liber singularis pandectarum and so make this a one-book work.4 Justinian’s compilers evidently possessed only a one-book summary of the original ten-book work. If this is correct, 26 of the total of 244 books attributed to our author in the Index were not his. That is a significant, but not overwhelming, proportion. Fame attracts false attribution, sometimes deliberate, sometimes mistaken. When these books were written and how they came to be attributed to Ulpian does not admit of a simple answer. Two of them appear to be by contemporary or near-contemporary classical authors. These works may have been mistakenly included in Ulpian’s papers when he died or may be the work of an Ulpian other than the famous Domitius Ulpianus. Two others can plausibly be dated to the late third or early fourth century. These last were passed off as Ulpian’s because at that period there was a demand for relatively short works in five to seven books. To satisfy the demand works were composed such as Hermogenianus’ Summaries of the Law (Iuris Epitomae) in six books, which was authentic, and Paul’s Views (Sententiae) in five books, which was not. A new work was more likely to succeed if it claimed to be a selection from the works of a writer of authority such as Paul and Ulpian. To prove the claim 1 4

Liebs (1997) §428.6 D 12.1.24; 40.12.34

2

Index Flor. 24.7, 8, 10, 15, 17

3

Index Flor. 24.7

10. Spurious Works

207

false was virtually impossible, since hardly anyone had time to read through their voluminous works. We have very few texts from these five works outside the Digest. Three replies (responsa) of Ulpian are cited in other sources, but they are not attributed to any published work of his.5 In fact none of these works is mentioned outside the Digest with the exception of Rules in one book, which will for convenience be given its Latin abbreviation, LSR for Liber singularis regularum. Three texts from LSR6 appear in the Collatio (Romanorum et Mosaicarum legum Collatio, or Lex dei quam deus praecepit ad Moysen). This compilation of biblical and legal sources, which was intended to show that the law of Moses said the same thing as Roman law but at an earlier date, was composed between 390 and 410.7 Hence LSR was known in the late fourth or early fifth century. 1. Rules in one book8 It is convenient to discuss the authenticity of LSR first. The title is misleading, because its length is more than that of an ordinary book such as a book of Gaius’ Teaching Manual (Institutiones).9 On the other hand its character is more that of a teaching manual than of a collection of Rules (Regulae),10 such as the Rules of Modestinus11 or Licinius Rufinus.12 The question of its provenance is involved. Du Tillet in 1549 published a tenth-century manuscript13 of which the introductory words are ‘here begin titles from the body of Ulpian’s work’ (incipiunt tituli ex corpore Ulpiani). The manuscript comprises twenty-nine titles or short chapters. It may for convenience be called Tituli (abbreviated Tit.), though that was not its original name. A simple manual oriented towards practice, it gives information about Roman family and inheritance law that is not available elsewhere. Two of the three Collatio texts mentioned14 and one Digest text,15 all of them headed Ulpianus liber singularis regularum, are verbally almost identical with texts in Tituli. This points to the conclusion that Tituli comes from a version of LSR, 5

D 19.1.43 (Paul 5 quaest.); 50.5.5 (Macer 2 off. praes.); CJ 8.37.4 (Alexander 31 March 222) Collatio 2.2.1; 6.2.1–4; 16.4.1–2 7 Liebs (1987b) 162–74 8 Lenel (1889) 2.1016; Krueger, Collectio 2.1–38; Seckel–Kübler 1.436–491; FIRA 2.259–301; Lachmann (1838) 174–212; Mommsen (1855/1904–13); Arangio-Ruiz (1921/1974); Rotondi (1922) 1.453–85; Albertario (1922/1937); Buckland (1922); (1924); Schulz (1926); Arangio-Ruiz (1927) 191–203; Schönbauer (1956); Wieacker (1960) 58f., 68f., 89; Schulz (1961) 221–3; Schönbauer (1961) 145–58; Müller (1970); Cancelli (1973); Nelson (1975) 138–44; Gaudemet (1979) 98f.; Nelson (1981) 80–96; 338–60; Liebs (1982) 282–7,292; (1987b) 162–74; Mercogliano (1990),(1997),(1998); Nelson (1993); Liebs (1997) §428.5; Honoré (2000) 525–8 9 Nelson (1981) 82§ 10 On Regulae see P. Stein (1966), Schmidlin (1970) 11 Lenel (1889) 1.732–740 12 Lenel (1899) 1.559 13 Codex Vaticanus Reginensis latinus 1128; Du Tillet (1549). 14 Collatio 6.2.1–4 = Tit. 5.6–7; 16.4.1–2 = Tit.26.1 15 D 22.5.17 = Tit. 20.6 cf. D 44.7.25, headed Ulpianus LSR but from a missing part of Tit. 6

208

10. Spurious Works

a version that breaks off about two-thirds of the way through. The revised version probably belongs to the fourth century, since Tituli omits references to the penalties imposed on unmarried and childless people by Augustus’ laws. The omission probably reflects Constantine’s law of AD 320, which removed the penalties.16 The fourth-century version of LSR should therefore be later than 320 but perhaps earlier than 342, when Constantius II repealed the law, designed to accommodate the emperor Claudius, that allowed a man to marry his brother’s daughter.17 Tituli does not take account of this last repeal. Indeed it contemplates gifts by will to certain pagan tutelary gods.18 Schulz went further. He argued in the introduction to his edition of Tituli, which he called Epitome Ulpiani,19 that LSR was a post-classical work derived mainly from Ulpian but also from other classical authors, such as Modestinus. But Tituli appears, apart from the disabilities of the unmarried and childless, to state classical law, though with some omissions. Indeed in its original form it antedates the Antonine constitution of AD 212, since it refers repeatedly to foreigners (peregrini) and those of Latin status (Latini) in a way that implies that their status is still of daily concern.20 In short Tituli seems to come from a fourth century edition of a classical but pre-212 LSR, marked by some omissions but few if any additions. What was the nature of the original LSR? On one view it was a reworking of Gaius’ Institutes. There are some passages that look rather similar,21 and one unusual common phrase.22 The strongest verbal parallel concerns a resolution of the senate on the appointment of guardians.23 But this perhaps merely shows that both authors followed the wording of the resolution. Though the order in which topics are treated is on the whole similar to that of Gaius, sometimes there are omissions, alternative ways of expressing things, or a different order of exposition. The author of LSR is an independent teacher and author.24 In my view his work can be taken as a ‘nutshell’ type handbook that follows in the footsteps of Gaius but tries to improve on him.25 In particular LSR outdoes Gaius by dividing more subjects up by numbers (e.g. ‘three types’,26 ‘four ways’27) and providing more lists.28 This technique, designed to make the law easy to remember, succeeds in providing a clear guide to the main rules of Roman civil law, a guide that earned 16

17 CTh 3.12.1 (31 March 342) 18 Tit.22.6 CTh 8.16.1 (31 Jan 320) Schulz (1926) 8–9 20 Tit. 1.5, 12, 16; 3.1–6; 5.4,8–9; 7.4; 10.3; 11.16, 19; 17.1; 19.4; 20.8, 14; 22.3,8; 25.7; Schönbauer (1956, 1961) 21 Gaius, Inst. 1.102; 2.119, 124, 147, 232; 3.43 cf. Tit. 8.5; 22.17; 23.6; 24.16; 28.6; 29.2 22 Paenitentia actus: Tit. 22.30; Gaius, Inst. 2.168 23 Gaius, Inst. 1.182; Tit. 11.23 24 Nelson (1981) 92–6 against an overestimate of Gaius’ influence by Grupe (1899) 90; Mommsen (1904–13) 2.48; Fitting (1908) 52; Schulz (1926) 13–4; Buckland (1922, 1926, 1937) 25 26 Mommsen (1904–13) 2.47–8; Schulz (1961) 221 Genera tria: Tit. 20.2 27 Quattuor modis: Tit.24.2 28 e.g. Tit. 3.1; 6.1,9, 14; 8.3; 11.2, 27; 19.2; 20.7, 13; 23.1; 28.7 19

10. Spurious Works

209

Mommsen’s admiration.29 At the same time LSR covers topics of practical importance that Gaius omits, such as dowry and the Augustan marriage legislation. LSR was almost certainly composed in Rome.30 If LSR is not a reworking of Gaius is it a genuine work of Ulpian? No parallel of style is particularly close. On the contrary LSR’s clipped pragmatism is alien to Ulpian’s normal manner. Some authors, however, have argued that Ulpian adapted his writing to this different literary genre.31 One problem with this theory concerns the date of composition of LSR. Marcus is imperator Antoninus in one text32 and divus Marcus in another.33 The author has copied his sources rather than adopting a uniform way of referring to present or past emperors. But, given that Marcus has been deified the work must be later than 180. It must in my view be not later than 212, given the mentions of foreigners and Latins, though Nelson, who overlooks that in LSR the old form of criminal procedure (iudicia publica) is still in operation,34 is prepared to put it as late as 262. This was when the Goths destroyed Ilium and Ephesus and so rendered mention of their tutelary gods inappropriate.35 Arguments based on failure to mention recent changes in the law can be unreliable, but failure to take account of the extension of citizenship in 212 to all free people in the empire is inexplicable, especially in an author who sets out the law historically. This the author of LSR does, often with expressions such as ‘in former times’ (olim), ‘previously’ (antea), ‘afterwards’ (postea/sed post), ‘today’ (hodie), ‘but now’ (nunc autem), and ‘the old law’ (ius antiquum).36 He is alert to the contrast between the older civil law and praetorian and imperial innovations. The possible dates of composition of LSR perhaps run from the sole rule of Commodus to early Caracalla, 180 to 212. This agrees with Schönbauer’s estimate of the period of popularity of the pagan gods to whom according to LSR legacies may be given.37 The statement in LSR that ‘today by the law of the emperor Antoninus all escheatable property falls to the fisc but without prejudice to the old law regarding children and parents’38 is generally taken to refer to Caracalla. This seems to be supported by Dio, who attributes to Caracalla objectionable changes in the law of succession.39 But in another LSR text imperator Antoninus is Marcus,40 so that he rather than Caracalla might be the author of the law in question. With this exception, nothing in LSR requires a date later than Commodus or early Severus. The most recent author cited is Iunius 29

Mommsen (1904–13) 2.48 Tit. 1.13a; 3.3; 8.2f.; 11.18, 20; 11.14, 27; 12.1, 3; 25.26; Liebs (1982) 284 31 32 33 Most recently Mercogliano (1997, 1998) Tit. 26.7 Tit. 22.34 34 35 Tit.13.2; Liebs (1982) 284. Nelson (1981) 91 36 Tit. 1.8, 10, 21; 5.6; 8.5; 11.8, 20, 17.2; 18.1; 20.2; 22.34; 24.12, 13, 31; 26.7; 29.3,6 37 Schönbauer (1956) 308f. 38 Tit. 17.2: hodie ex constitutione imperatoris Antonini omnia caduca fisco vindicantur, sed servato iure antiquo liberis et parentibus 39 40 Dio 78.9 Tit. 26.7 30

210

10. Spurious Works

Mauricianus,41 who wrote under Pius.42 The case for an early date is made by Avenarius in a forthcoming study based on an analysis of individual texts in LSR.43 Various aspects of LSR set it apart from Ulpian’s work. The author calls the Sabinians Cassiani.44 He refers to Neratius as Priscus,45 which is contrary to Ulpian’s uniform practice in 76 texts where he calls the author Neratius.46 In his Teaching Manual (Institutiones) Ulpian refrains from vague appeals to authority of the sort found in LSR such as ‘most lawyers think’ (plerisque placet),47 ‘it is held’ (placuit),48 ‘it is agreed’ (constat),49 ‘some say’ (sunt tamen qui dicunt),50 and ‘that is the general practice’ (et id observatur magis).51 Apart from one mention of Celsus52 and one of imperator noster (Caracalla)53 he does not cite authority at all in this elementary work. Whether in general the style of LSR is consistent with Ulpian’s authorship has led to a conflict of opinion. To a number of authors including myself LSR is plainly not his work.54 Its unadorned definitions and dry numbered lists do not fit any of Ulpian’s admittedly genuine writings. Even a juvenile Ulpian would have explained himself more fully. There are virtually no linguistic parallels with genuine works, apart from the phrase ut puta (‘for example’), which occurs four times in LSR.55 In the Digest it comes from texts of Ulpian 229 times out of 244, so that it is clearly a mark of his style, though it is also found occasionally in Callistratus,56 Papinian,57 and Paul.58 But a single trait of this sort is not enough to stamp LSR as Ulpian’s, though as all four authors are Severan lawyers it perhaps fits that period. Statements of the law by Ulpian and LSR sometimes diverge. According to LSR a trust in contrast with a legacy can be in Latin or Greek,59 whereas according to Ulpian it can be in any language.60 Other authors, however, take the view that LSR could be a work of Ulpian, or at least a work put together from his writings by a pupil or associate.61 To leave out connective tissue was correct, says Mommsen, in a work aimed at practice.62 Nelson argues that rules (regulae), nominally the genre of LSR, can be composed in a different style from more extensive works. But his 41

42 43 Tit. 13.2 Liebs (1997) §421.3 In preparation 45 46 Below n.73 Tit. 11.28 Honoré–Menner (1980) fiche 64 47 48 49 50 51 Tit. 1.18 Tit. 1.21 Tit. 1.21 Tit. 1.21 Tit. 22.22 52 53 D 1.1.1 pr (1 inst.) Collatio 16.9.3 (Ulp. inst.) 54 Schulz (1926, 1961); Arangio-Ruiz (1921, 1927); Liebs (1982, 1987b); (1997) §428.5; Honoré (1982, 2000); Marotta (2000) 2556 55 Tit. 2.7; 24.17, 25, 27 cf. 19.18; 25.14; 29.1 (puta) 56 D 14.2.4.2 (Call. 2 quaest.) 57 D 11.7.43 (Pap. 8 quaest); 22.1.3.2 (20 quaest.); 45.2.9 pr (27 quaest.); 48.5.39 pr (36 quaest.); 5.1.45 (3 resp. but this is an editorial insertion) 58 D 2.7.4 pr (Paul 4 ed.); 4.8.19.2, 4.8.28 (13 ed.); 10.1.4.8 (23 ed.); 2.14.9 pr (62 ed.); 19.1.4.1 (5 Sab.); 12.6.15 pr (10 Sab.); 28.6.38.1 (1 sec. tab.) 59 60 Tit. 25.9 D 32.11 pr (Ulp 2 fid.) 61 Mommsen (1855/1905); Schönbauer (1956); Müller (1970); Nelson (1975, 1981, 1993); Mercogliano (1990, 1997) 62 Mommsen (1904–13) 2.49 44

10. Spurious Works

211

argument is not convincing, least of all for Ulpian, the style of whose Teaching Manual (Institutiones) resembles his large-scale works like the edictal commentary and his monographs on special subjects like trusts.63 The author of LSR has his own turns of phrase, such as praetor urbis 64 for the urban praetor where other lawyers use praetor urbanus. A person can give a gift by will ‘imperatively’ (imperative)65 or ‘by request’ (precative).66 Neither word is found in the Digest. He is fond of the preposition per: per eminentiam,67 per consequentiam,68 per similitudinem,69 per formulam.70 There are some parallels with Paul’s vocabulary. Paul and the author of LSR, along with Pomponius71 and Pliny the Younger,72 call the well-known school deriving from Cassius Longinus and Masurius Sabinus Cassiani.73 Ulpian74 and Marcianus75 call them Sabiniani. Abalienare for ‘to alienate’ is found, apart from LSR, only in Paul and his teacher Scaevola.76 Infinite (‘without limit’) is found in LSR and otherwise only in a Paul comment on Labeo.77 ‘But it is safer’ (sed tutius est), a sign of interpolation according to an earlier generation,78 also has a Paul parallel.79 The LSR does not much resemble other collections of rules, but is more of a teaching manual. In any case rules are not all composed in a special style. Licinius Rufinus, a pupil of Paul and a Severan lawyer, composed twelve books of Rules with pithy sentences such as ‘a ward who takes a loan is not bound even by natural law’.80 A Thyatira inscription81 records Licinius as π τν ποκριµτων, which in my view means secretary for petitions (a libellis), in the 220s.82 The most likely period is October 222 to October 223, roughly when Ulpian was sole praetorian prefect.83 The rescripts of this period display the same well-turned, pithy phrases that are found in Licinius’ Rules. Thus, ‘no law forbids a woman from giving her whole estate to her husband as a dowry’.84 To a limited extent authors certainly adapt their writing to the particular genre. But though rules and rescripts belong to quite different genres, Licinius’ Rules and the rescripts composed for Alexander

63

64 Tit. 11.20, 24 65 Tit. 24.1 Honoré (1982) 100 67 Tit. 11.3 68 Tit.11.3 69 Tit. 11.5 Tit. 25.1 cf. 24.1: precativo modo 70 Tit. 19.16 71 D 1.2.2.52 (Pomp. 1 enchir.) 72 Letters (Epist.) 7.24.8 73 Tit. 11.28; D 47.2.18 (Paul 9 Sab.); 39.6.35.3 (6 leg. Iul. Pap.) 74 Frag. Vat. 266 (Ulp. 26 ed.); D. 24.1.11.3 (32 Sab., citing Marcellus) 75 D 41.1.11 (Marci. 3 inst.) 76 Tit. 2.4; D 32.38.7 (Scae. 19 dig.); 10.3.14.1 (Paul 3 Plaut.); 41.1.48 pr (17 Plaut.); 4.7.8.5 (12 ed.) 77 Tit. 5.6; D 22.3.28 (Lab. 7 pith. Paul epit.) 78 Gradenwitz (1887) 133; Beseler (1910–20) 2.164, 4.159; Schulz (1926) ad Tit. 22.22 79 Tit. 22.22; Paul 19.5.5.4 (Paul 5 quaest.) 80 D 44.7.58: pupillus mutuam pecuniam accipiendo ne quidem iure naturali obligatur 81 82 Herrmann (1997) 111f. Millar (1999) 90–108 83 Honoré (1994) 98–101 (secretary no.7) 84 CJ 5.12.4: nulla lege prohibitum est universa bona in dotem marito feminam dare cf. Honoré (1994) 98 66

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Severus in 222–3 have this common feature, which supports the notion that he composed the rescripts. Can LSR, if not a work of Ulpian himself, be a selection from his works put together by a pupil or associate?85 One difficulty with this fence-sitting compromise is that up to 212 there would not be much material of Ulpian from which to choose.86 An alternative that keeps a link with Ulpian is that early in his career the great lawyer encouraged a pupil or associate to produce this manual as a guide to study and practice.87 The work was written but not re-edited after 212, perhaps because Ulpian’s own elementary Teaching Manual (Institutiones) in two books supervened in about 214.88 But in that case how did LSR come to be attributed to Ulpian? Perhaps through Modestinus, Ulpian’s pupil89 and the most likely recipient of his papers when he was murdered. As the probable secretary for petitions from October 223 to October 225,90 Modestinus must have been in Rome at the time of Ulpian’s death or shortly afterwards. There are close parallels between the definitions of acquisitive prescription (usucapio) in LSR and Modestinus.91 The same is true of the passages on the enactment, amendment and repeal of laws.92 Schulz thought that the supposedly post-classical author of LSR borrowed from Modestinus. But it could be the other way round. Perhaps Modestinus borrowed from the author of LSR when compiling his Encyclopaedia (Pandectae) and Rules (Regulae). LSR, a product of Ulpian’s circle of pupils or associates, came to be treated as a genuine work of his. This is speculation. Given the dates, and despite the traditional name, a pupil or associate of Paul is not ruled out as the author of LSR. Or the work may have been anonymous until it was attributed to Ulpian in the fourth century.93 Much depends on when the canonical list of works of the leading lawyers was settled. Perhaps under Constantine. If one useful elementary work, PseudoPaul’s Sentences (Pauli sententiae) could then be falsely assigned to Paul in order that it might be used in court,94 why not another to Ulpian? 2. Encyclopaedia (10 books) The Digest has two fragments95 ascribed to Ulpian liber singularis pandectarum.96 The Florentine Index, however, mentions ten books, of which 85 87 89 91

86 Ch.1 n.246–9 NNDI (1973) 392 (Cancelli); Mercogliano (1990) 195 ‘Pseudo-Ulpianus’: Liebs (1997) §428.5 88 Ch.9 n.57–65 D 47.2.50.20 (Ulp. 48 ed.) 90 Honoré (1994) 101–7; Liebs (1997) §427 p.195–6 92 Tit. 19.8; D 41.3.3 (Mod. 5 pand.) Tit.1.3; D 50.16.10 (Mod. 7

reg.) 93

Liebs (1983b) 121 CTh 1.4.2 (27 Sept 327, citing recepta auctoritas). For the reality see Liebs (1989) §507.1, (1993) 95 D 12.1.24; 40.1.34 (1 pand.) 96 Lenel (1889) 2.1013; Jörs (1903) 1447; Fitting (1908) 120; Schulz (1946) 222, (1961) 280–1; Liebs (1971) 51f.; Honoré (1982) 117–20; (1994) 95–8; Liebs (1997) §428.6 Ulpianus II 94

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presumably only one survived for Justinian’s compilers to excerpt.97 The author is not the famous Domitius Ulpianus and in this instance we can, on the basis of these two fragments, form an idea of who was. The first text is about the accounts of a freeman who has been treated as a slave. The emperor Antoninus decided that proceedings to establish his freedom should not be allowed until he had submitted accounts of his affairs while he was treated as a slave. Imperator Antoninus constituit non alias ad libertatem proclamationem permittendam, nisi prius administrationum rationes reddiderit, quas, cum in servitute esset, gessisset

The compilers have substituted, for proceedings to establish freedom, proclamatio in libertatem for the classical libertatis adsertio.98 But this cannot disguise the fact that the text is not Ulpian’s. Ulpian avoids the juxtaposition of verbs at the end of a sentence, as in esset gessisset, and also avoids the assonance of ‘s’ sounds. Nor is the pleonastic non alias nisi prius (‘not otherwise unless before’) found in his genuine works. The sequence of long words administrationum rationes reddiderit is also alien to Ulpian. The other Digest text99 is no better. If a person stipulates formally for something certain, he cannot sue on the action for stipulation but should bring the action on condictio by which a certain thing is sued for. Si quis certum stipulatus fuerit, ex stipulatu actionem non habet sed illa condicticia actione id persequi debet, per quam certum petitur.

The word condicticia is suspect, for it has in several texts been interpolated by the Digest compilers.100 But not all mentions of the word are spurious. Ulpian cites Julian in a text that draws a valid distinction between the penal action for theft (actio furti) and the personal action (actio condicticia) to recover the value of the stolen property.101 In the text set out, condicticia may be authentic, but it is another matter to defend it as genuine Ulpian. The sentence states the obvious. If the stipulation was for a certain thing, then the action must of course be for a certain thing. The phrase actione per quam certum petitur is also pleonastic. You do not sue by bringing an action. To bring an action, agere, is to sue for something, petere. These two texts do, however, have affinities of style with the rescripts of March to October 222, when Ulpian was prefect of supply and later praetorian prefect to Alexander. The composer of these rescripts, my secretary no.6,102 favours assonances with sibilant sounds, like the esset, gessisset of D 40.1.34.1. Rescripts of this period have the sequences fuistis . . . adquisistis,103 97 99 100 101

98 Lenel (1889) 2.1013 Lenel (1889) 2.10135: Liebs (1997) §428.6 p.209 D 12.1.24 Ind. Interp. ad loc. (Seckel, Triantaphyllopoulos, Naber, Pernice, Lenel, Beseler) 102 Honoré (1994) 95–8 103 CJ 4.50.2 (20 March 222) D 12.2.13.2 (Ulp 22 ed.)

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dicitis . . . contenditis,104 mandasti . . . habuisti,105 fuisti . . . potuisti,106 consensisti . . . amisisti,107 and, from the overlap period between no.6 and his successor no.7,108 curastis, gessistis . . . potestis.109 A variant of ‘not otherwise unless before’ (non aliter nisi prius) comes in a rescript of this period110 and in pseudo-Ulpian’s Opinions,111 but not in genuine Ulpian.112 Another rescript has a parallel to the clumsy notion of ‘bringing an action by a suit’. ‘You have a suit against him by an action on the facts’ (adversus eum petitionem per in factum actionem habes),113 instead of ‘you have an action against him on the facts’ (adversus eum in factum actionem habes). The use of per and the accusative instead of the instrumental ablative, as in actione per quam certum petitur114 instead of qua certum petitur, is found in several rescripts of this period: per vim coactus115 instead of vi coactus, damnum per iniuriam datum116 instead of damnum iniuria datum, per iudicem compellitur117 instead of a iudice compellitur. There is a case for identifying the author of the ten books of Encyclopaedia attributed to Ulpian with secretary of petitions no.6 of March to October 222. This secretary seems to have been a person of some substance. A text of December 218 from early in the reign of Elagabal has assonances similar to the one already noticed: fuisti . . . crevisti . . . quaesisti.118 Since Elagabal’s memory was condemned his rescripts have mostly vanished, but it is not impossible that no.6 held the office of petitions for much or all of Elagabal’s reign from 218 to 222 and continued as secretary during the first months of Alexander. Liebs, who points to other Ulpiani of the period, and has suggested that his name was Ulpianus, calls him Ulpianus II.119 The name was certainly common in Syria and, if an Ulpian held this office under Alexander, that might explain the assertions by Eutropius,120 Festus,121 and the Historia Augusta122 that Alexander had a secretary (magister scrinii) called Ulpianus. That is speculation. What is not a matter of doubt is that the author, though a contemporary, is not our Ulpian. How did the ten books of Encyclopaedia come to be accepted as genuine Ulpian? Whoever the author was, he must have had some connection with our Ulpian, who was a prominent figure during at least part of his tenure of the secretaryship for petitions. Perhaps his writings were found in Ulpian’s papers on his death and came to be treated as his, the more readily if Liebs is 104 106 108 110 112 113 116 118 119 121

105 CJ 7.64.1 (25 March 222) CJ 7.56.1 (7 May 222) 107 CJ 7.8.4 (10 May 222) CJ 3.32.3 (30 Oct 222) 109 Honoré (1994) 97 CJ 2.18.10 (20 Nov 222) 111 CJ 9.1.3 (3 Feb 222) D 8.4.13.1 (6 opin.) It is found in a Marcellus text: D 33.2.15.1 (Marc. 13 dig.) 114 115 CJ 4.14.3 (13 Sept 222) D 12.1.24 (1 pand.) CJ 4.44.1 (1 March 222) 117 CJ 3.35.1 (7 Nov 222) CJ 2.3.9 (28 Sept 222) Cod. Greg. Visi. 13.14.1 (30 Dec 218) 120 Liebs (1971) 51f.; (1984) 446; Liebs (1997) §428.6 Eutropius 8.23 122 Festus 22.3 HA Severus Alexander 26.6

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right about his being a namesake. Modestinus, the probable recipient of Ulpian’s papers, composed twelve books of Encyclopaedia (Pandectae), the second author to use this title. It is, as the name suggests, an eastern genre. 3. Rules in seven books123 In Lenel’s reconstruction there are 107 lines attributed to this work. The fragments deal predominantly with private law. The order of treatment is obscure and there are no references to legal authors or emperors. The work includes some famous maxims, such as that justice is the constant and perpetual will of giving each his own;124 that the precepts of law are to live honestly, not to harm others, and to give each his own;125 that jurisprudence is the knowledge of things divine and human, of the just and unjust;126 and that gross negligence consists in not understanding what everyone understands.127 The author clearly had philosophical leanings. The work’s authenticity has long been assumed. But, as I pointed out in the first edition,128 there are no grounds for attributing it to Ulpian, painful as it may be to jettison him as author of these famous maxims.129 Rules contains none of his favourite phrases. It has expressions and constructions foreign to his style. For example the author uses voluptuosus,130 as does the author of LSR, whereas Ulpian consistently uses voluptarius for ‘luxury’ expenses etc.131 Another spurious expression is ‘on a favourable interpretation’ (benigna interpretatione), as in ‘on a favourable intepretation it is replied rather by most lawyers that no one is disinherited’.132 Apart possibly from one text with ‘on a humane interpretation’ (humana interpretatione),133 which has plainly been altered by the compilers,134 Ulpian does not use this type of expression at all, though it occurs in Scaevola.135 In any case the pleonastic ‘rather by most lawyers’ is impossible in such a forthright author as Ulpian. And ‘it is replied’ (respondetur) is a vague expression not found in Ulpian apart from this text.136 ‘According to the opinion of all’ (secundum omnium sententiam) is, again, a stereotyped appeal to authority of the sort that points to a provincial lawyer with limited access to original texts. Another text 123 Lenel (1889) 1.1013–1015; Honoré (1982) 111f.; Frezza (1983) 416; Liebs (1982) 282–92; (1984) 446; Huchthausen (1985) 719f.; Mayer-Maly (1961) 569; Liebs (1989) §507.3 124 D 1.1.10 pr (1 reg.) 125 D 1.1.10.1 (1 reg.) 126 D 1.1.10.2 (1 reg.) 127 D 50.16.213.2 (1 reg.) 128 First in a lecture on 27 February 1981: Liebs (1982) 282 129 How could giving each his own be both the criterion of justice and one of three precepts of law? 130 D 25.1.14.2 (5 reg.) 131 Tit. 6.14, 17 (voluptuosus) as against D 25.1.1,7,9, 11 pr (36 Sab.); 7.1.13.4 (17 Sab.), all voluptarius 132 D 28.2.2 (6 reg.) cf. 39.5.16 (2 resp., also spurious) 133 D 38.17.1.6 (Ulp. 12 Sab.); Crifò (1985) 608–9 134 Index interp. 3.72 135 D 34.1.20.1 (Scae. 3 resp.) 136 It occurs in Tryphoninus: D 37.4.20.1 (Tryph. 19 disp.) and Paul: D 19.4.1.1 (33 ed.)

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speaks of a husband being able to choose which remedy to use against his wife: ‘and it is in [the husband’s] power which action he chooses to use’ (et in potestate est, qua velit actione uti).137 In all other passages of Ulpian ‘in potestate est’ means that someone, such as a son, is in the legal power of another, such as his father. The phrase is ungrammatical. It should run ‘and it is in his (or the husband’s) power’ (et in eius/viri potestate est). There are also sentences that run two points together in a confusing way that Ulpian avoids. ‘If someone knowingly buys a free man a capital crime arises’138 runs together two rules. The knowing purchase amounts to kidnapping and kidnapping is a capital crime. It was not, however, a capital crime in Ulpian’s day.139 ‘When the instititution of an heir is made subject to a impossible condition consisting in an abstention’ is expressed as Si in non faciendo impossibilis condicio institutione heredis sit expressa.140 It ought, in the interests of clarity to run Si institutione heredis impossibilis condicio, quae in non faciendo consistit, sit expressa. Even so, ‘when an heir is instituted’ (cum heres instituitur) would be more like genuine Ulpian than institutione heredis. The author has again run together ideas that Ulpian would have expressed in separate clauses, and moreover has put them in the wrong order. ‘Apart from the fact that’ (praeterquam quod),141 an ugly expression, is not otherwise found in Ulpian except in a quotation from the praetor’s edict.142 The author is fond of asyndeton: honeste vivere, alterum non laedere, suum cuique tribuere;143 aggeres facere, flumina avertere, aedificia vetera fulcire itemque reficere, arbores in locum mortuorum reponere;144 et bonorum possessionem dare potest et in possessionem mittere, pupillis non habentibus tutores constituere, iudices litigantibus dare.145 He likes to invert the conditional: Communis servus etiamsi . . .;146 procurator si quidem . . .;147 servus communis ab extero heres institutus si . . .;148 servum meum heredem institutum cum libertate si vivus vendidero . . . 149 Another inversion is: statulibera quidquid peperit . . .150 None of these traits is a feature of Ulpian’s writing. Can we fix the date and place of composition of Rules in seven books? What type of author is likely to be responsible for the work? Frezza showed that the author had links with Origen’s circle.151 Liebs suggests that the author was a late-third-century provincial lawyer with philosophical interests, perhaps a Beirut teacher in touch with that circle.152 That the magistrate having jurisdiction can appoint guardians to those under age points away 137 138 139 141 144 147 150 151 152

D 25.2.24 (5 reg.) D 48.15.1 (1 reg: Si liberum hominem emptor sciens emerit, capitale crimen nascitur) 140 D 28.5.51.1 (6 reg.) Collatio 14.3.3–5 (Ulp. 9 off. proc.) cf. CJ 9.20.16 142 D 43.8.2 pr (68 ed.) 143 D 1.1.10.1 (1 reg.) D 46.3.43 (2 reg.) 145 D 2.1.1 (1 reg.) 146 D 41.2.42 pr (4 reg.) D 25.1.14 pr (5 reg.) 148 D 29.2.67 (1 reg.) 149 D 28.5.51 pr (6 reg.) D 41.2.42.1 (4 reg.) D 40.7.16 (4 reg.) Frezza (1983) 416, but arguing that Ulpian might himself be the author Liebs (1982) 282–92; Huchthausen (1985) 719f.; Liebs (1997) §507.3

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217

from Rome, where the praetor for guardianship (praetor tutelaris) had this special jurisdiction. The author may have been an Ulpianus, that name being common in Syria, or the name may have been falsely attached to the work in order to boost circulation, something that, to judge from Pseudo-Paul’s Sententiae, was a popular technique around AD 300 and a little later. The book was the right length and the author or his agent could safely pretend that it consisted of a collection of texts from the voluminous writings of Ulpian, whose work may indeed have been one of the sources used. 4. Opinions (6 books)153 As printed in Lenel’s Palingenesia, we have 645 lines from six books of texts attributed to the Opinions of Ulpian. The title (Opiniones) is unique in juristic literature and seems to echo the statement of Gaius that the opinions and views of lawyers of authority have the force of law, rather as does the title of Pseudo-Paul’s Sententiae.154 The authenticity of the work has been in doubt since Gothofredus first questioned it.155 Lenel and others held it to be a postclassical compilation from genuine writings of Ulpian.156 Rotondi argued that it was an anthology composed in the fourth century on the basis of fragments of Ulpian.157 Wieacker pointed to the absence of Ulpian’s syntax and vocabulary, to borrowing from the chancery style of the fourth century, to contents that can be explained only on the basis of post-Diocletianic imperial law, and to an arrangement that conforms more to collections of imperial constitutions than to the order of the edict.158 Santalucia, however, in an extensive study, argued that the Opiniones are, despite differences of style, a genuine work of Ulpian.159 In the first edition I rejected his view but argued that the work, though not Ulpian’s, might belong to the third century, even to the reign of Alexander Severus. The author could perhaps be identified with secretary for petitions no.7, who held office from October 222 to October 223. Liebs rightly rejected this identification on the ground that, though the author may well have included material from the rescripts of this period, none of the parallels I pointed to was compelling.160 It has since become clear that there is a better candidate for secretary no.7 in 153 Lenel (1889) 2.1001–13; Jörs (1903) 1450; Schulz (1946) 182; (1961) 22; Rotondi (1922) 1.453–85; Santalucia (1971); Volterra (1972); Wieacker (1973) 196–207; Liebs (1973); (1976) 321, 332–8; (1981); Honoré (1981) 120–8; Liebs (1983a) 499–501; (1984) 446; Honoré (1994) 101; Liebs (1989) §507.4 154 Gaius, Inst. 1.7: Responsa prudentium sunt sententiae et opiniones eorum quibus permissum est iura condere 155 Gothofredus (1653) 259 ad D 50.17.61; Rotondi (1922) 1.453f.; Arangio-Ruiz (1946) 169f; Schulz (1961) 223 156 157 158 Lenel (1889) 2.1001–13 Rotondi (1922) 1.453 Wieacker (1960) 68f 159 Santalucia (1971) criticized by Liebs (1973) 279–310; (1976) 332–8; (1983) 499–501 but contra Wacke (2000) 513–8. 160 Liebs (1983) 499–501

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the person of Licinius Rufinus.161 Liebs argued that Opinions is a fourthcentury compilation intended for provincial governors. In the age of Constantine it was successfully passed off as the work of the famous classical lawyer. We must consider the style, nature, date, sources, and arrangement of the work. The main ground on which doubts have been expressed about the work has been its style. This, both on a casual reading and after long scrutiny, differs from that of the classical lawyers, and in particular, Ulpian, in their authentic writings. For example we know that Ulpian normally avoids juxtaposing verbs, especially those drawn from different clauses. It is therefore striking that the author of Opinions adopts a word-order so orthodox that it often results in three, four, or even five verbs coming together at the end of a clause or sentence. One example comes in a text that deals with the position when a debtor has made an agreement with the purchaser of the land mortgaged by him to the creditor to get back the land in certain events: Si inter debitorem et eum, qui fundum pigneratum a creditore quasi debitoris negotium gereret, emerit, placuit ut . . .162

The juxtaposition gereret, emerit, placuit is quite alien to Ulpian’s writing. There are many other examples.163 The stringing together of a series of long words is also not Ulpianic. One Opinions text provides that the provincial governor is to repress illicit services that consist in extorting money on the pretext of helping soldiers: Illicita ministeria sub praetextu adiuvantium militares viros ad concutiendos homines procedentia prohibere . . . curet164

There are eight words between ministeria and procedentia in this portmanteau explanatory phrase. Others texts in Opinions have nominal phrases that come close to it in length.165 Opinions also has alliterative assonances that are foreign 161

Above n.80–4 162 D 2.14.52.1 (1 opin.) D 2.14.52.1 ( fecit, fidem praestare debet); 46.8.21 (1 opin: professus est, prodest); 49.1.2 (facere non debuit, consensisse); 50.4.3.13 (contingit, suscipi oportet); 50.5.2.2 (excusari desiderant, probare debent); 50.7.2.2 (2 opin: ut oportet obiit, non nocet); 2.14.53 (datum erit, non licet); 50.6.1 (3 opin: nati sunt, non pertinent); 3.6.8: (facerent aut non facerent, accepisse diceretur, restitui iubeat); 4.2.23.3 (profecerunt, revocare incivile est); 4.3.33 (4 opin: venumdari potuit, peremit, destitit); 4.4.44 (habuerunt amiserint . . . potuerunt omiserint . . . non suscipere licuit, obligaverunt); 4.6.40.1 (erat adempta, probatum fuerit); 12.1.26 (fuerit, placuit); 48.23.2 (subiectus fuerat, non poterit); 49.15.21 pr (5 opin: visus est, officere debet); 1.7.7.27 (susceperat tenet, exhibere iubendus est); 5.2.29.3 (existimabat, agere potest); 8.5.15 (erat, officiatur, efficit . . . factum est, tollatur); 13.7.27 (6 opin: is qui susceperat tenet, exhibere iubendus est) 164 D 1.18.6.3 (1 opin.) 165 D 1.18.6.6 (a quibusdam propria sibi commoda inique vindicantibus); 1.18.6.7 (1 opin: praetextu humanae fragilitatis delictum decipientis in periculo homines innoxium esse non debet); 50.10.1 pr (2 opin: curator operum creatus praescriptione motus ab excusatione perferenda); 40.8.2 (de exemplo posterioris locationis praeteritarum conductionum); 50.8.3.2 (si in locatione fundorum 163

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219

to Ulpian, such as calumniosos criminibus insectentur innocentes.166 It admits complex ablative absolutes at the end of a sentence. There is a text about an adult who as a minor transferred his father’s land to settle the father’s liability as a guardian. If the adult obtains restitution the fruits of the land are set off against interest on the debt. This point is made in a final ablative absolute clause: usuris pecuniae, quam constiterit ex tutela deberi, reputatis et cum quantitate fructuum perceptorum compensatis.167

There are grammatical ineptitudes. ‘As regards civil disturbances, though the local authority often suffers harm from them, yet . . . ’ (In civilibus dissensionibus quamvis saepe per eas res publica laedatur, non tamen . . .)168 should run ‘Though the local authority often suffers harm from civil disturbances.’ ‘Ignorant of everything that was in truth’ instead of ‘everything that was true’ or just ‘ignorant of the truth’ (ignorans universa, quae in vero erant)169 is inept. The author of Opinions has his own slightly offbeat way of expressing ideas. Documents and proceedings can be inanes (legally worthless).170 Conduct can be incivile (wrongful)171 and people can act civiliter (rightfully)172 or inciviliter (wrongfully).173 He is guilty of clumsy and technically inept Latin phrases: ipsa non habendi necessitate;174 munera quae in homines obiri possunt;175 equi alieni a sciente possessi;176 curator iuvenis;177 numerus liberorum aut septuaginta annorum;178 quae solutioni debitarum ab eo quantitatium profecerunt.179 The author’s heart is in the right place, as is shown by frequent appeals to equity180 and nature or natural law.181 But Ulpian could not have composed this work. The nature of Opiniones shows it to have been composed in a province. Its content is largely provincial and especially municipal law. The provincial pro sterilitate temporis boni viri arbitratu in solvenda pensione cuiusque anni pacto comprehensum est); 50.9.1 (3 opin: medicorum intra numerum praefinitum constituendorum); 50.10.2 (similes civium in patrias liberalitates); 3.5.33 pr (4 opin: sumptus honeste ad honores per gradus pertinentes factus) 166 D 1.18.6.2 (1 opin.) cf. 2.14.52.3 (1 opin: produci ad perpetuam praestationem id pactum postulabatur); 49.18.2.1 (3 opin: onera sollemnia omnes sustinere oportet); 27.9.9 (5 opin: tam callidum commentum); 8.4.13.1 (6 opin: solitum solacium) 167 D 4.4.40.1 (5 opin.) cf. 1.18.6.9 (1 opin: reprehensa exactorum illicita avaritia); 10.1.8.1 (oculisque suis subiectis locis); 27.9.10 (6 opin: illicite post senatus consultum pupilli vel adulescentis praedio venumdato) 168 D 49.15.21.1 (5 opin.) cf. 1.18.7 (3 op: inspectis aedificiis . . . ea instead of inspecta aedificia) 169 170 D 2.15.9.2 (1 opin.) D 50.8.2.2 (4 opin.); 4.3.38 (5 opin.); 10.4.18 (6 opin.) 171 172 D 4.2.23.3; 50.13.3 (5 opin.) D 4.2.23.3 (5 opin.) 173 174 D 50.13.2 (1 opin.); 4.2.23.2, 3 (5 opin.) D 50.4.4.2 (3 opin.) 175 176 177 D 50.5.2.7a (3 opin.) D 50.13.2 (1 opin.) D 12.1.26 (5 opin.) 178 179 D 50.5.2.1 (3 opin.) D 4.2.23.3 (5 opin.) 180 D 2.14.52.2; 2.15.9.3; 50.13.2; (1 opin.); 50.5.1 pr (2 opin.); 50.8.2.9 (3 opin.); 3.5.44.2 (4 opin.); 10.1.8.1; 10.2.50; 27.9.10 (6 opin.) 181 D 37.15.1.1 (1 opin.); 9.2.50 (6 opin.)

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governor (praeses provinciae) is mentioned twenty-nine times,182 the municipal agent (civitatis actor),183 municipal treasurer (curator rei publicae),184 and proconsul185 once each. The urban prefect (called praefectus urbis instead of praefectus urbi)186 and the praetor187 are mentioned once each, but their mention probably stems from imperial constitutions that applied not only to the provinces but to Rome itself. Many texts are addressed to the governor in the jussive subjunctive. Civilians must obey the law of their home town and of the province.188 Some of the law stated is specifically provincial. Thus servitudes can be created by a clause in a contract of sale.189 None of the law set out is exclusively metropolitan. Since Ulpian composed a ten-book work on the office of proconsul,190 it is not obvious why he should have duplicated it with another work largely concerned with the duties of provincial governors. But it is not possible without a detailed study of each text to say from which province or area the work springs. Santalucia put the date of composition before the end of Alexander’s reign. He argued that an undated rescript of that reign changed the law to the disadvantage of discharged soldiers. If they waived their privilege to refuse to become municipal councillors (decurions) in their home town the waiver was henceforth irrevocable unless they made a special agreement to preserve it.191 A text of Opinions on the other hand treats the waiver of liability to public duties (honores, munera) as revocable.192 But the Opinions text may represent a later rather than an earlier state of the law. Other texts show that the privileges of discharged soldiers were progressively extended.193 In general only a person who freely accepted the office of town councillor lost his immunity irrevocably.194 So there is no necessary contradiction between Alexander’s rescript and the Opinions text.195 Moreover, Opinions texts are often loosely expressed, and it is not clear whether the author of this text means the right of revocation to extend to the office of town councillor. If it does, then it may reflect the very wide exemption that Constantine granted to his veterans at the end of the civil war against Licinius in 325.196 182 D 1.18.6 (1 opin., ten times); 47.9.10; 50.13.2 (1 opin.); 50.2.1; 50.4.3.15 (2 opin.); 1.18.7; 50.5.2.7,8; 50.8.2.3, 10; 50.9.1; 50.10.2.1, 2 (3 opin.); 4.2.23.1, 3; 47.13.1 (twice); 27.9.9; 50.13.3 (5 opin.); 10.1.8 pr (6 opin.) 183 D 3.3.74 (2 opin.) 184 D 50.8.2.4,6 (3 opin.) 185 D 49.1.12 (2 opin.) 186 D 37.15.1.2 (1 opin.) cf. above n.63 (praetor urbis) 187 D 2.1.17 (1 opin.) 188 D 50.4.3.1 (2 opin.) 189 D 8.4.13 pr (6 opin.) cf. Gaius, Inst. 2.31 190 Ch.8 n.23–37 191 CJ 10.44.1 (Alex: Veterani, qui, cum possent se tueri immunitate his concessa, decuriones se fieri in patria sua maluerunt, redire ad excusationem quam reliquerunt non possunt, nisi certa lege et pacto servandae immunitatis vel partem eius oneris agnoverunt) 192 D 49.18.2 pr (3 opin: Honeste sacramento solutis data immunitas etiam in eis civitatibus apud quas incolae sunt valet: nec labefactatur si quis eorum voluntate sua honorem aut munus susceperit) 193 D 49.18.5 (Paul 1 cogn.); 50.6.2 (Ulp. 4 off. proc.); CJ 10.44.2 (Dio et Max.); D 50.4.17.1 (Herm. 1 iur. ep.); 50.6.6.13 (Call. 1 cogn); 50.4.4 pr (3 opin.); 50.2.2.8 (Ulp 1 disp.) 194 CJ 10.44.2 (Dio. et Max.) 195 Liebs (1973) 280–5 196 CTh 7.20.2 (Apr 325?)

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Another Opinions text says categorically that their sex relieves women of physical public duties (onera corporalia).197 If this was taken to mean that they are relieved of all personal duties (onera personalia) one would have to suppose that the text belonged to the period before Philip198 and indeed to that before Marcus and Verus, who rule that women are liable to personal duties.199 But while in some contexts personal and physical duties, as opposed to pecuniary or patrimonial ones, are treated as one and the same,200 in other contexts such as ill health a physical duty is with good reason treated as something narrower than a personal duty.201 So understood, the statement that women are free from physical public duties can be taken to state a permanent principle, not something progressively eroded. The statement in Opinions202 that the office of ten leading councillors (decemprimatus) in a municipality is a purely pecuniary and not a mixed personal and pecuniary one reflects a classification settled at the time of Diocletian’s tetrarchy,203 though earlier in Diocletian’s reign the office is said to be mixed.204 A law of Constantine of 324 laid down that when a father is excused from a personal burden on the grounds of having five legitimate children, but one son is of full age, that son is subject to the personal burden.205 This law is reflected in an Opinions text, which adds that the reason for the father’s exemption is that his sons will in due course fulfil the personal burden.206 The fact that the reason is given, which is unusual, suggests that the law was fresh in the mind of the author of Opinions. In that case he was writing not long after 324. The last plausible date for Opinions is 4 August 331, when a law of Constantine reduced the minimum age for the office of decurion from 25 to 17 years.207 An author so concerned with municipal law as ours would not overlook this important change. Opinions should therefore be dated to the period between AD 324 and 331. The sources used by the author of Opinions have to be gathered from individual texts. Most of them form a loose chain of elementary or problematical rulings on particular facts such as we find in collections of imperial rescripts. Santalucia rightly points to analogies with the style of rescripts. 197

198 CJ 10.64.1 (Phil.); 10.52.5 (Dio. et Max AA et CC) D 50.4.3.3 (2 opin.) D 50.1.38.3 (Pap. Iust. 2 const.); 50.1.37.2 (Call. 1 cogn.) 200 D 50.4.1.3 (Herm. 1 iur. epit.); 50.4.18.1 (Arcad. Char. 1 mun. civ.) 201 CJ 10.51.3 (Dio. et Max. AA et CC); CTh 6.35.3.2 (Constantine 27 Apr 319); D 50.5.2.7a (3 opin.) 202 D 50.4.3.10 (2 opin.) 203 D 50.4.1.1 (Herm. 1 iur. epit: pecuniary); CJ 10.42.8 (Dio et .Max AA et CC: pecuniary) 204 D 50.4.18.26 (Arcad. Char. 1 mun. civ: mixed), Arcadius Charisius being slightly senior to Hermogenianus: Honoré (1994) 191 205 CTh 12.17.1 pr (19 Jan 324) 206 D 50.4.3.6 (2 opin: ideo enim proprium praemium immunitatis propter filios patribus datum est, quod illi subibunt) 207 CTh 12.1.19 (4 Aug 331). The old law is alive in CTh 7.22.2 (318); 12.1.18 (326); 12.1.7 (329) and D 50.5.2 pr (3 opin.) 199

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Opinions contains little in the way of general principle. Very occasionally the author expressly mentions a rescript (rescriptum est)208 or an imperial constitution (constitutum est) 209 but the second of these seems to be a reworking of a text of Ulpian On the Edict.210 Another Opinions text seems to derive from a rescript of Marcus and Verus as reported by Scaevola,211 a third from a rescript of Diocletian.212 Then there is the one, already mentioned, that reflects a law of Constantine.213 Many of the others may be taken from rescripts of the Constantinian period, which continued to be issued though not on the previous scale.214 No lawyer is expressly cited, but there is the general statement ‘learned lawyers have taken the view that . . .’ (viris prudentibus placuit).215 There are some parallels to Ulpian texts, but many more to imperial constitutions, to Pseudo-Paul’s Sentences and to Hermogenianus’ Summaries of the Law.216 Santalucia is entitled to credit for showing that, contrary to Lenel’s view,217 Opinions does not conform to the edictal or Digest pattern. His positive suggestions about the order that the author followed have been cricitized by Liebs as arbitrary, and Liebs has put forward an alternative scheme.218 On any view the work starts with criminal law and the court system, and books two and three are occupied by municipal law. The central topics of private law, property and succession, come only in book 6. The law of succession, which has for centuries occupied centre stage, is now dethroned. Opinions is a useful but poorly written fourth-century work, one of the last items of private legal writing to scrape into the canon by dint of being attributed to a famous author. 5. Replies (2 books)219 The two books of Replies (Responsa) attributed to Ulpian have been generally regarded as consisting of excerpts from genuine replies by the jurist. Jörs says they are taken from Ulpian’s private archive.220 Schulz argues that the collection is post-classical, but remarks that the editor does not seem to have altered the substance of the law as stated by Ulpian.221 A text in the Vatican Fragments corresponds closely to a surviving excerpt from Replies in the 208

209 D 2.14.52.3 (1 opin.) D 5.2.29 pr (6 opin.) D 49.1.14 pr (Ulp 14 ed.); Liebs (1973) 298 211 D 5.2.29.2 (6 opin.) cf. 2.15.3 pr (Scae. 1 dig.) 212 D 50.4.3.5 (opin.1) cf. CJ 10.32.5 (Dio. et Max. 286) 213 D 50.4.3.6 (2 opin.) cf. CTh 12.17.1 (19 Jan 324) 214 215 Frag. Vat. 32–4, 36; P. Krüger (1912) 324f. D 50.1.6.2 (2 opin.) 216 217 218 Liebs (1973) 30090 Lenel (1889) 2.10012 Liebs (1973) 301–8 219 Lenel (1889) 2.1016–19; Ind. Flor. 24.17; Jörs (1903) 1438, 1446; Fitting (1908) 116; Wieacker (1960) 384f.; Schulz (1946) 241; (1961) 307; Honoré (1982) 113–17, 128: Liebs (1997) §424.26 220 221 Jörs (1903) 5.1446 Schulz (1946) 241; (1961) 307 210

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Digest.222 The Vatican Fragment collection was first put together about AD 320.223 Hence the two books of Replies attributed to Ulpian must have existed by the first half of the fourth century. There is no doubt that Ulpian gave formal replies, three of which are attested.224 In discussing a case about trusts Paul says that a ‘reply of Domitius Ulpianus was read out’.225 Aemilius Macer mentions another.226 A rescript of Alexander refers to a third.227 There are, however, serious obstacles in the way of accepting that the thirty-two short fragments attributed to this work in the Digest are Ulpian’s. The fragments do not contain any phrase typical of his style. They are arranged according to no known system. They often mention the name of the person who consulted him in the form ‘He replied to Aurelius Felix etc.’, giving the name of the consultant followed by the substance of the reply in the accusative and infinitive.228 This feature is not found in any other collection of Replies of the imperial age. In a substantial number of texts, however, the editor or Justinian’s compilers have left out the name of the consultant and kept just the accusative and infinitive.229 There are three texts in which Ulpian is reported as writing ‘I replied that he could have an action’ (habere posse respondi) or something similar.230 Then there a few statements of the law that are not in the form of a reply at all.231 Mention of the person consulting the lawyer makes these Replies unlike any other surviving collection. The normal way of recording an author’s replies is Modestinus respondit, Paulus respondit, or just respondit, without any mention of the person to whom the reply is addressed. The editor seems to be treating these replies as if they were like rescripts of the emperor, which incorporate the name of the petitioner. Could they, all the same, have been edited from genuine replies found in Ulpian’s papers? 232 Even this suggestion is not easy to accept. An editor can abbreviate the text he is editing, but can hardly introduce expressions not in the original. A text from the first book of Replies refers to societas universarum fortunarum, a universal partnership.233 This is what Ulpian in On the Edict calls a societas omnium bonorum,234 the partner being a socius omnium bonorum.235 Societas 222

Frag. Vat. 44 (Ulp. 2 resp.) Mommsen, Collectio 3.1–106; Seckel–Kübler (1908–27) 2.2.191–324; Wenger (1953) 543–5; Raber (1965); Gaudemet (1979) 75f.; Liebs (1987b) 150–62; (1989) §506 224 Above n.5 225 D 19.1.43 (Paul 5 quaest: lectum est responsum Domitii Ulpiani) 226 D 50.5.5 (Macer 2 off. praes.) 227 CJ 8.37.4 (31 March 222) 228 D 30.120 = Frag. Vat. 44 (2 resp: respondit Aurelio Felici . . .) cf. 17.2.73; 22.3.30; 32.68 pr; 46.3.45 pr, 1; 46.5.10; 50.12.5 (1 resp.); 22.3.31 (2 resp.) 229 D 20.4.10; 22.1.31; 22.3.22; 23.4.25; 26.7.19; 27.3.19; 27.6.12; 32.68.1; 40.5.52; 40.12.31; 45.2.8; 49.14.33 (1 resp.); 10.2.53; 11.8.4; 15.4.3; 23.3.51; 24.3.37; 30.120 pr, 1; 39.5.16; 40.11.1; 43.26.20; 49.1.13 pr, 1 (2 resp.) 230 D 27.4.5 (1 resp.); 27.1.23 pr, 1 (2 resp.) 231 D 2.15.10; 32.68.3 (1 resp.), 24.1.40 (2 resp.) 232 Liebs (1997) §424 p.185–6 233 D 17.2.73 (1 resp.) 234 D 17.2.5 pr (3 ed.); 17.2.52.16, 17, 18 (31 ed.); 47.2.52.18 (38 ed.); 42.1.16 (63 ed.) 235 D 17.2.52.16, 17, 18 (31 ed.); 47.2.52.18 (38 ed.); 42.1.16 (63 ed.) 223

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universarum fortunarum, on the other hand, is not found in any other legal writer or imperial constitution. Indeed Ulpian nowhere uses the plural fortunae, though Scaevola does.236 In the second book of Replies the word persolvere is twice used for solvere, ‘to pay’.237 Apart from these texts, Ulpian uses persolvere only twice. In one text persolvere means not ‘to pay’ but ‘to pay back’. A seller may have a choice to forgo the price or to take back the thing sold and pay back the price.238 The other text has plainly been altered by the compilers. Two people go surety for ten. The debtor pays three, and then the sureties pay five each. The surety who pays last can recover three, because if the debtor pays three only seven remain due. If these are paid three have been paid that were not owing.239 As the text stands ‘if these are paid’ (quibus persolutis) refers to the remaining seven being paid, whereas the sense of the text requires that ten should be paid in addition to the three paid by the debtor. So we cannot attribute to Ulpian the use of persolvere for ‘to pay’. On the contrary, he prefers shorter words. Solvere, which he uses in 504 texts,240 is shorter than persolvere. And why, if Ulpian used solvere, should an editor change it to persolvere? The Replies have a sentence beginning 241 and two ending 242 with ablative absolutes, a construction that Ulpian avoids at the beginning and end of sentences, though it would be going too far to say that he never resorts to it. But he certainly never uses the ablative absolute termination with salvo or salva to express a proviso, as in two texts from Replies.243 On the other hand Scaevola ends a reply with a proviso of this sort.244 A text in Opinions book 2 has ‘there is no reason why’ (nihil proponi cur), an expression otherwise absent from Ulpian but found 38 times in Scaevola245 and 9 in Modestinus.246 Though Ulpian undoubtedly gave written replies to those who consulted him, he does not seem to have regarded this as an important part of his work as a lawyer. Apart from the three texts from Replies already mentioned,247 he does not use ‘I replied’ of himself, whereas other writers do so, such as Scaevola, who has 112 texts with respondi,248 Paul, who has 53 texts with respondi,249 and Modestinus, who has five.250 They do this mainly in works other than their Replies, which, in the published form, are normally couched in the third person (respondit). Ulpian once uses ‘I wrote back’ (rescripsi) of 236

237 D 43.26.20 (2 resp.) D 32.34.1 (16 dig: pater exiguarum fortunarum) D 38.5.1.13 (44 ed: utrum malit de pretio remittere an potius rem quam vendidit recipere persoluto pretio) 239 D 12.6.25 (47 Sab: quia tribus a reo solutis septem sola debita supererant, quibus persolutis tria indebita sunt) 240 Honoré–Menner (1980) fiche 73 241 D 30.120.1 (2 resp.) 242 D 32.68 pr (1 resp.), 30.120 pr. (2 resp.) 243 D 32.68 pr (1 resp.: salvo scilicet iure debitoris); 30.120 pr (2 resp: salva tamen causa legati) 244 D 20.6.15 (Scae. 6 dig: salvo iure pignoris prioris contractus) 245 Honoré–Menner (1980) fiche 45 246 Honoré–Menner (1980) fiche 22 247 Above n.230 248 Honoré–Menner (1980) fiche 46 249 Honoré–Menner (1980) fiche 37 250 Honoré–Menner (1980) fiche 22 238

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an answer to an inquiry by his pupil Modestinus.251 He gave advice to Papinian and to various praetors252 but, despite Jörs,253 the texts refer to oral advice, not written replies (responsa). He took part in disputations and in his Disputations and Trusts a number of views that he expressed orally are recorded in the imperfect, with dicebam,254 dicebamus,255 or referebam,256 or in the perfect with dixi.257 It seems that his private practice was on a modest scale and that he did not attach great importance to it. The law recorded in Replies is orthodox. The text shares with the author of Rules in seven books the expression ‘on a favourable interpretation’ (benigna interpretatione).258 The expression is alien to Ulpian259 but is found in a genuine text of Scaevola.260 The style of these brief, pithy replies is in many ways reminiscent of Scaevola. The conclusion I reach is that this collection is drawn from various classical lawyers, perhaps especially Scaevola, but that few if any stem from Ulpian. The editor has not totally disguised the style of the originals, and nothing in his collection of Replies suggests Ulpian. The attribution to Ulpian probably dates from the early fourth century. In this chapter I have used criteria of style to draw more radical conclusions about the authenticity of disputed works than most other scholars. I think that Ulpian’s name was falsely attached to a number of apocryphal works in which he had no part, mainly no doubt in order to make them acceptable for citation in court. There is nothing extraordinary about this. A great many Latin authors’ names were used by the unscrupulous to circulate their own works: Caesar, Virgil, Sallust, Pliny, Quintilian, Cyprian, Galen, Lactantius, Aurelius Victor.261 The spurious works attributed to Ulpian were not all by the same hand. The style of LSR is simple and dates from not later than 212. The author of Encyclopaedia (Pandectae), which is also classical, was probably secretary for petitions (a libellis) from March to October 222, hence a member of Ulpian’s circle. Replies (Responsa) is drawn from classical authors but hardly or not at all from Ulpian. The style of Opinions (Opiniones) is cumbersome and marked by verbal clustering. It belongs to the reign of Constantine and is adapted to the problems of provincial administration at that time. LSR was re-edited at or shortly after that period. Rules in seven books may be a little but not much earlier. I suspect that the one-book version of Encyclopaedia also belongs to the age of Constantine.

251

252 253 D 47.2.52.20 (37 ed.) Ch.1 n.129–45 Jörs (1903) 1438 D 27.8.2; 44.3.5.1 (3 disp.); 28.4.2; 28.5.35 pr; 29.1.19 pr; 49.17.9 twice (4 disp.); 33.4.2.1; 36.1.23 pr (5 disp.); 46.7.13 pr (7 disp.); 35.2.82 (8 disp.); 34.1.14.3 (2 fid.) 255 D 29.2.42.3 (4 disp.) 256 D 49.17.9; 29.1.19 pr (4 disp.); 35.1.92 (5 fid.) 257 D 26.1.7 (2 disp.); 28.5.35.5 (4 disp.); 36.1.23.4 (5 disp.); 2.1.19 pr (6 fid.); 47.2.39 (41 Sab.) cf. probavi (D 28.5.35.1 (4 disp.) 258 259 D 39.5.16 (2 resp.) cf. 28.2.2 (6 reg.) Above n.131–5 260 261 D 34.1.20.1 (Scae. 3 resp.) Marquardt (1886) 832; Sint (1960); Liebs (1973) 295 254

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Legal authors could then no longer write in their own name. They needed a borrowed identity. Legal literature fades out with these summaries and epitomes, of variable quality but all misattributed to classical writers so as to attract a wider sale or greater authority in court. In an age when the canon of legal works was being settled Ulpian’s name carried weight.

11 Epilogue A L E A D I N G writer and lawyer in government, Ulpian was famous in his own age. His pupil Modestinus calls Cervidius Scaevola, Paul, and Ulpian the leaders among lawyers,1 but gives Ulpian a special pre-eminence. A ruling of Severus and Caracalla, he says, laid down that to be the curator of an insane person counted towards being excused from further such offices and ‘the excellent Ulpian said the same about three guardianships’.2 Modestinus uses the phrase ‘the excellent Ulpian’ ( κρτιστος Ολπιανς) in two other texts.3 It is not used of any other lawyer. It is the tribute of a loyal pupil. A rescript composed by Arcadius Charisius in the time of Diocletian is to much the same effect.4 Town councillors and their children should be free from torture, as ‘the most learned Domitius Ulpianus in his book on public disputations relates as a permanent item of learning’.5 Arcadius also cites ‘what Herennius Modestinus with very good reason laid down in his notes and in public disputation’, viz. that the public obligation of the ten or twenty leading members of a municipal council to collect taxes is a mixed personal and patrimonial obligation.6 These are the two predecessors whom Arcadius in the tetrarchy cites in flattering terms. In the late third century Ulpian was seen, then, as the source of a line of authority, especially on public law, carried forward by Modestinus and Arcadius. Both of them probably and Arcadius certainly held the office of secretary for petitions7, as Ulpian had done. The three share a balanced, pragmatic approach to the solution of legal and administrative problems. Further evidence of Ulpian’s standing, probably from the tetrarchic period,8 comes from an inscription in Ephesus. In it a proconsul urges the city to collect together ‘things said on the basis of ancient laws in Ulpian’s De officio’,9 in imperial constitutions, and in resolutions of the senate.10 D 27.1.13.2 (4 excus: ο κορυαοι τν νοµικν) D 27.1.2.9 (2 excus: κρτιστος Ολπιανς) D 26.6.2.5 (1 excus.); 27.1.4.1 (2 excus.) 4 Honoré (1994) 160–2 esp. 161300; Liebs (1989) §508.1 5 CJ 9.41.11.1 (27 Nov 290: vir prudentissimus Domitius Ulpianus in publicarum disputationum libris ad perennem scientiae memoriam refert cf. D 50.2.2.2, Ulp. 1 disp.) 6 D 50.4.18.26 (1 mun. civ: ut Herennius Modestinus et notando et disputando bene et optima ratione decrevit) 7 Honoré (1994) 104–7, 190–1 8 Robert (1967) 46 9 τ τε κ τν παλαιν νµων ν τος ∆ ι[κω παρ’ ] Ολπιαν ερηµ!να 10 JÖAI 45 (1960) Beibl. 82 no.8; AE 1966.436; IK Ephesos 2 (1979) no.217; Millar (1986) 279 1 2 3

228

11. Epilogue

The reference is to Ulpian’s The Proconsul (De officio proconsulis), where he advises a proconsul ‘to arrive first wherever in the province it is customary to arrive and to adhere to what the Greeks call the point of arrival or disembarcation. For provincials will attach great importance to respect for these customs and prerogatives.’11 In the case of Asia, he notes, Caracalla provided that the proconsul was bound to reach Asia by sea and, of the metropolitan cities, to arrive first in Ephesus. Clearly Ulpian was regarded as the leading authority on public law and his views were treated as almost on a level with imperial and senatorial rulings. A conscientious provincial governor would have a copy of The Proconsul to hand to consult as occasion required. Ulpian’s importance to practitioners is shown by the fact that his work was a main source of pseudo-Paul’s Sentences, Hermogenianus’ Summaries of the Law (Iuris Epitomae) and the Vatican Fragments,12 all late third- or early fourth-century works. One result of Ulpian’s prominence is that, as Lactantius mentions,13 he was known to Christians as the author who in that work listed imperial rescripts hostile to their faith. He was of course bound to do so in order to guide provincial governors who had to deal with or try Christians. But there may in Constantine’s reign have been some transient Christian prejudice against Ulpian’s works on this account. Constantine ruled that the notes of Ulpian and Paul on Papinian were to be ‘abolished’ and no longer cited in court.14 This was done with a view to simplifying the law and eliminating some of the ‘endless controversies’ between lawyers. Given this aim, Papinian’s text was perhaps sacrosanct merely because he was regarded as a better lawyer than Ulpian and Paul. But it may be noted that, though Paul was senior to Ulpian, Ulpian is mentioned first as a lawyer who chose to distort Papinian’s views while purporting to admire him. In the Law of Citations of 426 Ulpian comes fourth of the five canonical writers of authority: Papinian, Paul, Gaius, Ulpian, and Modestinus.15 The notes of Paul and Ulpian on Papinian are again rejected as invalid. Consistently with this assessment, Papinian comes first on the list. The others come in chronological order, apart from Gaius, who is evidently a newcomer to the canon. But in Justinian’s Digest Tribonian abandons this hierarchical scheme. He eschews any attempt to rank lawyers of authority in a particular order. No single author is best overall. Which of them gives the best account or advocates the correct view is to be decided case by case. It cannot be 11 D 1.16.4.5 (1 off. cons: ingressum etiam hoc observare oportet, ut per eam partem provinciam ingrediatur, per quam ingredi moris est, et quas Graeci πιδηµας appellant sive κατπλουν observare, in quam primum civitatem veniat vel applicet: magni enim facient provinciales servari sibi consuetudinem istam et huiusmodi praerogativas) 12 Liebs (1997) 179 13 Church Teaching (Div. inst.) 5.11.19 14 CTh 1.4.1 (28 Sept 321/4: Perpetuas prudentium contentiones eruere cupientes Ulpiani ac Pauli in Papinianum notas, qui, dum ingenii laudem sectantur, non tam corrigere eum, quam depravare maluerunt, aboleri praecipimus) 15 CTh 1.4.3 (7 Nov 426)

11. Epilogue

229

decided by counting opinions. A lesser lawyer is sometimes the only one to get the law right.16 When Tribonian applies these principles to the Digest material Ulpian emerges as the author whose account is most often chosen as the best. Excerpts from his work account for just over 40 per cent of the Digest, more than those of any other author. But this figure gives too modest an idea of Ulpian’s impact on the law. In each sub-chapter (title) the Digest compilers normally put Ulpian’s exposition of the law first. Sixty per cent of the Digest titles17 begin with an Ulpian text. From this point of view he dominates all the other thirty-eight authors combined from the beginning to the end of the great compilation. The result is that law students, whether in the late Roman or Byzantine empire or the European middle ages and Renaissance began their study of almost any legal topic with Ulpian. Nor was his role in legal education merely the result of Justinian’s Digest. The Sinai Fragments (Scholia Sinaitica),18 which seem to belong to the fifth or early sixth century, consist of Greek comments, presumably deriving from an eastern law school, on books 36–9 of Ulpian’s On Sabinus, part of the second-year law syllabus. By a process of osmosis Europe’s view of the law has been formed more by Ulpian than by any other lawyer. This is true as regards substance, style, method of reasoning, and background philosophy. Papinian and Julian display greater subtlety, Labeo and Celsus are more inventive, but it was Ulpian who expounded Roman law as a universal system capable, as it turned out, of being adapted to the needs of the radically different societies that emerged from the breakdown of empire. 16 C Deo auctore 6 (15 Dec 530: sed neque ex multitudine auctorum quod melius et aequius est iudicatote, cum possit unius forsitan et deterioris sententia et multos et maiores in aliqua parte superare) 17 Out of 432 titles 260 begin in this way 18 Girard–Senn (1967) 591–604; FIRA 2.637–52

TABLE I List of Latin Words and Phrases Referred to in the Text and Footnotes References in the form 2107 are to chapters and footnotes. When the word or phrase is not the subject of a footnote, the reference takes the form of citing the chapter and the footnotes preceding and following the word or phrase, for example 745–6. abalienare ab re est abusive abusus accedendum erit accipe accipere — debemus — debes — nos debere — nos oportet accipias accipiemus accipiendum erit — est accipies accipietur accipimus accomodabimus accusatorius acerbe acerbus

acriter adaequare addere addimus adfirmator adgressus adite adiutorium adhibemus adimere adlega admittimus

1076 9125 2730 2526,731 2332 2225,422 2420–431 2426 2425 2428 2429 988–9 240–1,423 927,62 2322,421 395 2320 2431 2226,424 928,62 2323,421 2430 7113 2279 2621 2732 2622,733 450,733 980–1,90 991 2439 2440 2250 2527 2528 1197,209 2529 2251 4166 1218 2252 7119–20

adparitio adpendix adpulsus adscribere adsessorium adsidente adsidere adsuetus adsumemus aeque aequissimum erit — est — putavit aequissimus

2530 2531 2532 416–7 2533 1130–1 1132–3 2623 2280 2152 457 2336,719 2335–6,720 958 214–5,20–1,702, 719–721

aequitas aequitate motus aequum aestimabimus aestimamus age ait alicula alioquin . . . inquit alternatio ambitiosus amicalis amicus meus an ergo — vero et angustissimus animadvertimus ante oculos habere antea antiquissimus antistes

428,30,36 959 1199,221 37 443 2281 2253 1213 214–5,100–2 536 2516 2156 2534 2624 980 2625 1307 2138 2139 2703 2254 1204 2473 1036 2704 362

232 apertura apex applicamus apud

Table I 2535 2536 2255 662,208,215, 228–9,263, 270–1,274,310

armipotens ars artare assessor

2626 37 2441 1126–9,141,144, 176–7

atrocissime attamen audacia audacior audacissimus ausim dicere authenticus avare avarissimus benigna interpretatione benigne benignus benignum est bona boni consulere calcitrosus calculator callide calliditas capessere captus Cassiani causari cautior cavus certissimus cessabit cessabunt cessat ceteroquin chartae circumspecte circumspectius civiliter civilius civitas Romana

2815 111 2116–9 2537 2696 2705 2219 2627 2772 448 10132,258 2734 450 2192,191 950 66 2452 2628 2538 2620,736 2539,618–9,737 2442 2629 1073 2443 2697,746 2630 2706 2315–8 2319 2315–7 226–9,121 1116 2773 2807 10172 2808 391

clivosus cogemus colloquium collusorie commendatio comminatio commonere commovere commundare comparamus computamus concubitus concumbere condicticius confringere congruenter conivere conqueri consciscere consequens erit dicere consequenter dicemus consimilis constat — enim constitutum est consuetus consulebar consulere consultissime contaminatio contemptibilis contestatorius contrarium contribuemus contumeliose contumeliosior contumeliosus convertemus corruptela corruptor cottidie crassus credere credimus creditor

2631 2282 2540 2774 2541 94 2542 2444 2445 2446 2256 2257 7119–20 2543 2447 1099–101 2448 2775 2449 2450 2451 2327 7111 819–20 2326 2632 1049 2123 10209 2633 1134–5 2452 2816 2544 2634 2635 2106–7,836–7 2282 2738 2698 2636,739 450 978,80–1 2284 2545 2546 2770 2637 449 66 2258 66

List of Latin Words and Phrases credo criminaliter cultior culpa dolo proxima cum efficacia benignus — instantia humanus — libuerit curate cunctatio curiositas dabimus damus debemus decus dedecus defendimus definiemus dehonestare delatorius deliberabimus delitescere demerere demonstramus demorari desideramus desiderare destricte detrahimus devocare dicas dicebam dicebamus dicendum erit dicet quis dici oportere dicimus dies solis difficile erit diffindere dignitas dilapidare diligentissime dilucidius discutere disicere distinctio

240–1,187 439 2776 2699 447 980–1 980–1 960 1211 451 2547 449 7117 2259 7112 2548 2549 2260 2328 2453 2638 449 2285 7119–20 2454 2455 2261 2456 2262 2457 152 2777 92 2263 2458 240–1,227 1134–5 947,63 10254 10255 2303–313 2329 962 2178 7114 854 2341 2459 385–6 2460 2817 2809 2461 93 2462 2550

distinguendum erit distinguimus diverse dixi diximus docete docilis dolose dolosus domuncula dubio procul dubitanter dubium non erit ducimus duci dulcitudo dummodo meminerimus — non — sciamus — sciat durior durissimus duritia eapropter effervescere efficacia efficimus ego — adquiesco — adsentio — arbitror — credo — moveor — opinor — puto — quaero — scio elatio eleganter elegantissime elocutio eloqui eo loci erit accipiendum — admittendum — agendum — audiendum

233 2333 2264 2778 10257 7122–3 1210 2639 2620,740 2620,640,741 2517 2168 2742 2342 2265 2463 2551 2164 2112 2113 2113 2700 2707 9130 395 980–1 2109 2464 2552 450 2266 2202–215 2208 2209 2210 2211 2212 2213 239–40,206–7 2214 2215 2553 2771 2771 2554 2465 272 2321,352,421 2324,348–9,353 2358 433 2359

234 erit cavendum — cogendum — concedendum — consequens — conveniendum — dandum — decurrendum — defendendum — descendendum — detrahendum — dicendum — excipiendum — exigendum — faciendum — ignoscendum — innovandum — inspiciendum — interponendum — interpretandum — intuendum — invidendum — liberandum — locus — movendum — notandum — obiciendum — observandum — permittendum — plectendum — praestandum — probandum — procedendum — prospiciendum — provocandum — quaerendum — ratum habendum — redhibendum — reducendum — referendum — repellendum — requirendum — restituendum — revocandum — satisdandum — sequendum — servandum — spectandum

Table I 2360 2361 2362 2340 2363 2364 434 2365 2366 2367 2368 214–5,305,354 2369 2370 2371 2372 2373 2374 2375 2376 2377 2378 2379 2339 2380 2325,355 931 2381 2382 2383 2384 2385 2356 2357 2386 2387 2388 2389 2390 2391 2392 2393 2394 2395 2396 2397 2398 2399,825–6 2400

— statuendum — subveniendum — transeundum — transferendum — tribuendum — utendum est (initial) — (final) — aequissimum — agitatum — constitutum — decretum — et . . . — expressum — hoc . . . — iniquum — quaesitum — relatum — rescriptum — tamen tutius — tamen verius — tractatum et — ait — arbitror — constat — credo — dicendum erit — dico — ego puto — erit procedendum — est . . . — — constitutum — — decretum — — dubitatum — — expeditius — — frequentissima — — optimum — — quaestio tractata — — relatum — — rescriptum — — simile

2401 2402 2403 2404 2405 2406 2409–417 7120–2 2720 2409 2410 838–9 2348–9,411 84–5 6394 2412 2418 517 2413 6263 2414 6394 82–5,39–40 2195 2185 2415 247–102,828–9 214–5,100–2 536 260 261 262 263,306 264 251,432 271,347 924–5 552 277 6404 950–1 278 285 286 287 281 279 280 6381–2 950–1 288

List of Latin Words and Phrases — — utile — eveniet — exstat/extat — facilius — finge — fortassis — fortius — generaliter — hoc iure utimur — ideo dicendum erit — intererit — ita erit dicendum — ita utimur — magis est — — puto — mihi videtur — non dubito — non puto — per contrarium — putamus — putat — putem — puto — recte — refert — regulariter — retineo — scio — sunt qui putent — versa vice — verius puto — verum puto — visum est etiamsi . . . attamen evoca evocare ex diverso exaggerare excessus exclusorius excusabimus exemptilis exhortatio exigemus

289 266,345 267 6264–270 293 268 294 295 296,308–9 428 2200 2310 269,346 2307 2199 238–9,70 46–7 9116 249,432 46–7 7105 275 265 250,432 292 257 2438 247–8,432 46–7,66 7104 253–5,432,828 298 272 297 273,298 274 256 299 252,432 252,432 276 2118 1211 2466 683–6 2467 2555 2641 2286 2642 2556 2287

exiguitas eximemus exorcizare exoriri exornare experimentum exploratissimus exprimere exsequemur exsolve exstat/extat — sententia facessere facillimus facinorosus fames fanaticus feriaticus fervor fessus festinatio finge — autem flagitare fluviatilis fons formalis fortasse/fortassis forte . . . inquit fortitudo frequentissimus frivolum frivusculum frugaliter frustra timere fuit quaestionis fulcimentum gemini menses genera tria generaliter — dicendum est gestus gravabitur grave est — exemplo gulosus gutturosus

235 2557 2288 320 2468 2469 2558 2708 2470 2289 7119–20 1217 6228–9,371–6 2160 2471 2709 2643 977 395 2644 2645 2559 2646 451 240–1 2150,224 2472 2648 2560 2647 2343 2158 2561 2710 2562 2518 2779 1202 2154 2563 847 1026 2780 2167 2564 2344 2197 1200 2649 2650

236 habent excusationem habent immunitatem habent vacationem habet aequitatem

Table I 518 519 520 2192,349,419– 420

— rationem

2193,350,419– 420

hoc animo . . . hodie humana interpretatione humanum id observatur idcircoque idem erit dicendum — erit probandum — esse ac si illicere illud plane — sciendum est immergere imminutio immoderate immorari immunditiae immutabilis imperative imperator — Antoninus

2781–3 1036 10133–4 344 442,50 1051 2108 2311 7110 2120 2474 930 2183 2475 2565 2784 2476 2566 2651 1065 717–22,68,71–2 86 713,21–2,30–4, 37,57–9,75

82–5,23–5,40–1 911–2,50–1, 106–7,120–1

— noster

721–2,30–6, 49–50,53–6,84–5

82–5,23–5,27, 29–30,38–41

911–2,50–1,57–8, 93–4,99–100, 106–7,120–1

— Severus

78–9,21–2,30–4, 73,76,78–9,88–9, 91

imperatores Augusti — nostri — Severus et Antoninus imperite

823–4 9106 712 993–6 2785

impetiginosus impetrabilis impostor impostura impotenter imprecari improbissimus improbitas improbum est in ea causa est/sunt in ea condicione est/sunt in ea erit causa in necem in potestate est inaequus inargutus inaugere incantare incaute incautus inceptum incivile incivilis inciviliter incogitabilis incolorate incolumitas inconsideranter incredibilitas increscere incultus incunctanter incuriosus inde indemnatus indevotio indicatio indifferenter indignissimus indoctus indubitanter indubitatior inefficax inexcusabilis infaustus infinite inhumanus

2652 2653 2567 320 2568 2786 2477 2711 95 2198 2513–4 2511–2 7106 2335 232–3 10137 2654 2655 2478 320 2745 2656 2569 10171 1201 10173 2657 2787 2570 2788 970 2571 2479 2658 2789 972 2659 979 2110 2660 2572 2573 2790 973 2712 2661 2743 971 2701 956 2662 2663 1077 448

List of Latin Words and Phrases iniquum iniuria iniuriosus/e inquit

37 385,98 974–5 2156–9 659–62,111,118, 125,134,141,146, 153,157,163,170, 173,210,213,217, 222

inquiunt inrepere inscius . . . invitus insinuare insolentia insolitum insta instantia instigatus instinctus intellegentia interdum autem — tamen — licet interfrigescere intermiscere interrogator interventio interventor intimus intribuere inutilis inutilitas invalescere inveni invenimus invenio

6182 2480 2664 2481 2574 1200 1214 450 2575 2576 2577 2147 2147 2148 2482 2483 2578 2579 2580 2665 2484 2666 426–7 426–7 2485 9110 2241 6394 83–4 2217 524 662 912–3,50–2,63, 109

invitus ius antiquum — gentium — humanum — Italicum — naturale iustitia

2664 1036 332 3103 194–6,154 911–2 357,104,110,111 34,7,27,62,76

κρτιστος lata neglegentia lego liberalis libri libuerit licentia erit licentiam habet/habeat licet . . . attamen loci loculus locus — erit magis est — putamus magisque est/erit me adsidente — suadente mea fert opinio mediocris melius dicetur memini

237

112–3 447 6309 983–4 1116 960 987 985–6 111,220 272 2519 2723–9 2339 238–92 9123 2180 9117 1130–1 1136 2216 929 2179,330 1136 2218 662 951,63,111 meminisse autem debemus 2163 — oportebit 2162,338 — oportet 2161,337–8 mens 413–5 merito 911–2 messis vindemiae causa 844–5,49 meus 183, 160 minus dubitanter 2742 minutatim 969 minutulus 968 moderatus 450 moderatio 453 moratoria cunctatio 451 980–1 movemur 2267 natura actionis 428 naturalis ratio 332 naturaliter 3100,111 nec ab re est 9125 — ferendus est 2196 — ignoro 954 — mediocriter 9126 — non 2103 — et 2104 — nos dubitamus 2236

238 nec quisquam putet — tantum . . . verum etiam necessitas nec quisquam putet neglegentia nemini dubium est nemo credet nequaquam ambigendum nequaquam — dubium est nervus nescio nihil proponi cur nimia securitas nimis propere nisi forte non ab re est — alias . . . nisi prius — aliter . . . nisi prius — animadvertimus — compelletur — computabitur — difficile — dubitabimus — dubitabis — dubitamus — erit dicendum — erit notatus — erit restituendus — est ambiguum — — incivile — — incognitum — — sine ratione — exigimus — gravate — habebit — idonee — ignoro — improprie — inconsulte — indigne — infavorabiliter — inhoneste — insuptiliter — inutiliter — ita pridem

Table I 2297 956–7 965–6 1223 2297 447,49 2169 2296 956–7 2174 2170 2581 923 10245–6 449 1208 220–4,153, 201–2 5,56 4 9125 1097–9,110–2 10110–2 1204 7111–2 522 2753 545 6338 7111–2 2171,240 7119–20 7111–2 7111–2 7111–2 2175 2177 2176 2194 7119–20 2754 7111–2 2755 963 2763 2764 2765 2766 2767 2768 1196 785–6

— mediocriter — passim — plene — principaliter — recte — secure — sine ratione — solum verum etiam quoque — — — — si — — — omnino — — — quoque — solummodo sed et — specialiter — tantum autem — — verum — — — etiam — — — — quoque — turpiter — videbitur nonnumquam enim nos — consentimus — opinamur — probamus — putamus — sacerdotes appellet nostra sententia notabilis notabiliter notandum quod notavi me putare nova res novimus nugatorius nulla dubitatio est nullius erit momenti num forte numerabimus nunc autem nundinae obdurare obscaenitas obsequens observabimus observamus

2756 9126 2757 2758 2759 1207 2760 7111–2 2134 2133 2136 2135 2137 2761 2130 2132 2131 965–6 967 2762 7111–2 2124 2228–239 2235 2237 2238 6300 2239 2228 6395 2667,748 2747 2165 2301 1206 2242 2668 2172 2337 2140 2290 1036 853 2486 2582 395 980–1 2669 2291 2268

239

List of Latin Words and Phrases obventio obviam ire occultatio occultus occursus offerte officium erit olim olitorius onera corporalia — personalia opacus operiri operula opinamur origo ostendimus ostentatio paenitentia actus palam est par paratio parens meus pari ratione parvi refert passus sum pater meus patria pavidus peculium pecuniarie pedester penuarius per — consequentiam — contrarium — — quoque — eminentiam — formulam — similitudinem perexiguus periculosus periniquus perlucidus perlusorius

2583 2487 2584 2670 2585 1216 2331 1036 2671 10197 10198 2672 2488 2520 2243 178–80 2244 7107 2586 1022 2186 398 9119–20 2673 2587 1310–1 941–5 214–9,72,201, 826–7 3,63–4 4 1138 747 181–2 2674 1151 2791 2588 2589 10113–7 1068 2106–7,836–7 7103 1067 1070 1069 2690 96 441 9127 2691 2692

permodicus permultus pernecessarius perniciosus/e perpaucus perquam perraro persolvere persona servi pervicaciter philosophia placet sententia placuit plane . . . inquit plerisque placet pone popularis meus postea praeceps festinatio praefectus urbis praeripere praeterea sciendum est praeterquam quod praetor urbis precative precativo modo probamus probandum erit probavi probavimus proinde

2693 1184 2694 975–6 2695 2792 9127–9 2793 981–2 10237–240 399 2794 974 37,27 2188 1048 2159 1047 240–1 622 1036 451 980–1 10186 9124 9118 10141–2 1064 1066 1066 2238 6300 2314–6 812–3 2245 229–31,33–4, 38–9,42–7

— ac — et si — si prostituere protervitas punimus putabat putamus putavimus putem puto — autem — tamen quaerimus quaeritur

242 238–9,42–3 238–9,43–4 395 2590 2269 1145 7115 2246,437 240–1 2431–8 428 2435 2436 2270 1134–5

240 quaero quaestio in eo est quaestionis est qualiterqualiter quamvis . . . attamen quantuluscumque quattuor modis quia autem quid enim dicemus — tamen si quin immo etiam quis dubitat raro ratio — iuris — permittit — suadet ratiocinatio ratione duci rationem habere recedendum erit recisio recolere reconducere recorrigere recte rectissime redditio redemptura referebam referimus regulariter relaxare relevare religio remeare remorari remotio repertorium repositorium reprobus repudiatio requirimus res sanctissima

Table I 2221 2155 536 9139–40 2154,832–3 2119,795 2117 7108 2675 1027 2145 545 6338 238–9,151 44 2122 2173 981–2 1222 1203,222 1222 1222,225 2591 2463 1222 2334 2592 2489 2490 2491 2470 911–2 2818–821 911–2 2593 2594 629 948–9 10256 2271 2796 2492 2493 366 2494 2495 2595 2596 2597 2676 2598 2272 38

10251 10208 2496 2599 10136 10230,247–50 2292 1135 2220 953 2497 7122 7122 2498 2273 2600 2499 1074–5 37 38,74 111 2768–9 634 838–9 saevissimus 2713 saevitia 395 980–1 salva 10242–3 salvo 10242–3 sane enim 2126 sapere 2500 sarcinula 2521 satis desiderare 2457 sciendum 2182 scio 2299 524 695 911–8,63,108 scire debes 1205 secundum quod dictum est 2166 — nostram sententiam 2300 secure 2797 securitas 449 sed enim 2126 — est verius 2184 — et si . . . aeque 2152 457 — post 1036 — tutius est 1078–9 seducere 2501 sensus 417 sententia 413–4,19 — mihi vera videtur 2190 — verior videtur 2190 sententiam puto veram 2189 rescripsi rescriptum est resilire resolutio respondetur respondi restituemus retineo retorquere rettuli rettulimus revereri revocamus revocatio rodere Sabiniani sacerdos sacramentum saepissime

List of Latin Words and Phrases — — veriorem 2189 sepositio 2601 septimana 855 sequemur 2293 sequimur 2274 series 2602 servabimus 2294 servari oportet 2181 servi persona 399 — qualitas 399 severissimus 2714 si libuerit 960 — mihi proponas 235–6,223 — quidem . . . si autem 2149 sic accipiendum est 2431 — deinde 2111 signaculum 2525 simulatio 329 simulatus 37 sive autem 2143 sobrie 2749 sobrietas 2603,750 societas omnium bonorum 10234 — universarum fortunarum 10233 socius omnium bonorum 10235 socordia 2604 solemus dicere 2275 7116 solet autem 2144 solitudo 2605 solutius 2810 somnus 2606 sopire 2502 sordide 2798 sortiri 2503 spatiosus 2677 spectamus 2247 7119–20 splendidissimus 2715 squalidus 2678 studere 2504 studiosus meus 1160 stupratio 2607 suadere 1223 231–2 suasi 1139 suasio 1198 suasor 224–5,31,33–4, 608

suasus

225–6,33–4,609

subsidiarius subsimilis subsistimus subterfugere subtilius subveniemus succedaneus sufficienter sumptuose sumptuosus sunt qui dicunt superstitiosus supervacaneus suppellecticarius suspendiosus sustentatio tabernula taciturnitas tamdiu tamenetsi . . . tamen tardissime tarditas temperare tempestivus tenacissimus territio timidius tolerabilius tollimus tractare tractatum trahimus transformare transvolare tumor ubi enim unde enim usitatus usitatissimus usquam ut est . . . — libuerit — puta — rescripsit — videtur utaris

241 2679 2680 2248 7119–20 2505 2811 2295 2681 2799 2751 2682,752 1050 2683 2684 2685 2686 2610 2522 2611 2800–2 2115 2822 2612 452 2687 2716 2613 2812 2813 2276 2506 955 2277 2507 2508 2614 2127 2128 1199,221 2717 2803 7120–121 960 2433–4 42 1055 829–36 696–8 1215

242 utilis utilissimus utilitas utique etiam utpote utrum an vero — autem variatio vaticinatio venatorius verba verecunde verissimus versa vice versabitur verum est — tamen

Table I 426–7 2722 3158 426–7 2129 961 2142 2141 2615 2616 2688 413–5,17,19,23 2804 980–1 2718 2805 932 9134–5 2114 7102

verumtamen vetamus viaticulum videamus videmus vigere vigilanter vilissimus vindemiatorius violentius vir prudentissimus viris prudentibus placuit vituperare vituperatio volo tractare voluptuosus vulnusculum

2114 7102 2249 7119–20 2523 7118 2278 2509 2806 448 2689 2814 115 10215 2510 2617 2222 10130 2524

TABLE II References to Legal Texts References in the form 2370 (Chapter 2 footnote 370) are to texts cited in footnotes. If the text is cited in the main narrative rather than a footnote, the chapter and footnotes immediately before and after the text are referred to, for example 7111–2 (chapter 7 between footnotes 111 and 112). 1. Gaius’ Teaching Manual (Gai Institutiones, G. Inst.) 1.1 1.7 1.32c 1.34 1.39 1.47 1.78 1.102 1.133 1.141 1.182 1.188 2.31 2.64 2.79 2.119 2.124 2.137 2.147 2.168

332 10154 716 716 683 716 683 1021 683 2738 1023 2232 10189 683 244 1021 1021 683 1021 1022

2.193 2.18 2.232 2.245 3.14 3.43 3.84 3.126 3.176 3.189 3.199 3.201 4.3 4.60 4.71 4.77 4.109 4.127 4.155

2152 2110 1021 683 245 1021 683 683 2148 2141 2146 683 683 2232 2721 683 683 2146 2147

2. Paul’s Views (Pauli Sententiae, Paul. Sent.) 5.12.11

2627

3. Vatican Fragments (Fragmenta Vaticana, Frag. Vat.) 32–4 36 44 66 71 75.5 77 80

10214 10214 10222,228 549 2436 2657 6303,313 2159

87 88 90 119 123 124 125 134

2156 6258 2110 717 2570 518 1246 9106 519

244 137 138 142 145 147 148 149 153 155 156 159 161 176 177 177a 185 186 188 189 191 198

Table II 520 519 518 527 9105 1246 9106 2616 1246 517 2442,482 2254,635 9106 522 9106–7 2433 952,110 9106–7 527 2431 2322 527 9105,108–9 9106–7 2436

200 201 204 207 210 211 212 220 222 224 232 234 235 236 238 239 240 242 266 269 321

9106–7 9106–7 9106–7 2196 2167 9106–7 9106–7 9106–7 1136 951,111 527 9105 713 9106–7 9106–7 829 9106–7 9106–7 9106–7 9106–7 527 9105 1137 921,108 732,36 1074 2327,664 2422 923

4. Ulpian’s Rules in one Book (‘Ulpiani’ liber singularis regularum, Tit.) 1.3 1.5 1.8 1.10 1.12 1.13a 1.18 1.21 2.4 2.7 3.1. 3.2–6 3.3 5.4 5.6 5.8–9 6.1. 6.9 6.14 6.17 7.4 8.2 8.3

1092 1020 1036 1036 1020 1030 1047 1036,48–50 1076 1055 1020,28 1020 1030 1020 1036,77 1020 1028 1028 1028,131 10131 1020 1030 1028

8.5 10.3 11.2 11.3 11.5 11.8 11.14 11.16 11.18 11.19 11.20 11.23 11.24 11.27 11.28 12.1 12.3 13.2 17.1 17.2 18.1 19.2 19.4

1021,36 1020 1028 1067–8 1069 1036 1030 1020 1030 1020 1030,36,64 1023 1064 1028,30 1045,73 1030 1030 1034,41 1020 1036,38 1036 1028 1020

245

References to Legal Texts 19.8 19.16 19.18 20.2 20.6 20.7 20.8 20.13 22.3 22.6 22.8 22.17 22.22 22.30 22.34 23.1 23.6 24.1 24.2 24.12

1091 1070 1055 1026,36 1015 1028 1020 1028 1020 1018 1020 1021 1051,78–9 1022 1033,36 1028 1021 1065–6 1027 1036

24.13 24.16 24.17 24.25 24.27 24.28 24.31 25.1 25.7 25.9 25.14 25.26 26.1 26.7 28.6 28.7 29.1 29.2 29.3 29.6

1036 1021 1055 1055 1055 716 1031 1066 1020 1059 1055 1030 1014 1032,36,40 717 1021 1028 1055 1021 1036 1036

5. Collation of Mosaic and Roman Laws (Collatio legum Mosaicarum et Romanarum, Collatio) 1.6.1 2.2.1 2.4.1 3.3.2 3.3.3 6.2.1–4 7.4.1 8.3 11.7.5 12.5.2 12.7.4 12.7.5

716 829 106 2322 394 394 106,14 2113 829 2817 2480,656 6387 6387

12.7.6 12.7.8 12.7.9 14.3.2 14.3.3–5 15.2.1 15.2.2 15.2.5 16.4.1–2 16.7 16.9.2 16.9.3

6387 721–2,28 2125 6207 116 2126 10139 2568–9 2480 2576 106,14 958 959 1053

6. Theodosian Code (Codex Theodosianus, CTh.) 1.4.1 1.4.2 1.4.3 2.8.18 2.8.19 3.12.1

550 1094 1115 854 847 1017

6.4.9 7.20.2 7.22.2 8.8.3 8.16.1 11.7.5

1349 10196 10207 854 1016 2817

246 11.7.13 12.1.7 12.1.18 12.1.19 12.17.1

Table II 854 10207 10207 10207 10213

12.17.1 pr 15.2.5 15.5.2 15.5.5

10205 2576 854 855

7. Visigothic Epitome of the Codes of Gregorius and Hermogenianus (Epit. Cod. Greg. Herm. Visi.) 13.14.1

10118

14.1

1299

8. Justinian’s Digest (Iustiniani Digesta, D.) C Deo auctore 4 C Deo auctore 6 C Deo auctore 8 C Deo auctore 9 C Tanta 1 C Tanta 10 C Tanta 15 1.1.1 pr 1.1.1.1 1.1.1.2 1.1.1.3 1.1.4 1.1.6 pr 1.1.10 pr 1.1.10.1 1.1.10.2 1.1.11 1.2.1 1.2.2 pr 1.2.2.44 1.2.2.52 1.3.2 1.3.3 1.3.5 1.3.13 1.3.30 1.4.1 pr 1.4.1.2 1.4.2 1.5.1 pr 1.5.1.8

54 551 1116 54 54 53 54,5 54 1362 2771 37 995–6 1052 2134, 228,556 37 370 426 2278 357 2416 333,104 961 2263,266 2263 34 10124 34 10125,143 10126 310 2232 373 2231 2792 1071 341,63,126 680 3125 2793 420 3135 680 961 6368 3158 3166 6368 717

1.5.4.1 1.5.8 1.5.10 1.5.17 1.5.24 1.6.2 1.6.6 1.7.7.27 1.7.15.2 1.7.17.4 1.7.32.1 1.7.39 1.9.1 pr 1.9.1.1 1.9.8 1.9.10 1.9.12 pr 1.10.1.2 1.12.1 pr 1.12.1.3 1.12.1.4 1.12.1.5 1.12.1.8 1.12.1.10 1.12.1.14 1.13.1 pr 1.13.1.3 1.14.3 1.15.2 1.15.4 1.16.4 pr

3107 713 249,256 1259 730–1 822 330 2815 394 6352 2188,447 10163 2140,504 2504 2603 713 6353 1252 386 912,19 2803 2503 2132 2793 911–2 2172 995–6 986 6355 2359 2322,582,804 980–1,95–6 2636 978 995–6 2704 532 2790 530 973,102 252 3150 2468 99,95–6 623–4,29–30

References to Legal Texts 1.16.4.2 1.16.4.3 1.16.4.5 1.16.4.6 1.16.6.3 1.16.7 pr 1.16.9.2 1.16.9.3 1.16.9.4 1.16.9.5 1.16.10 pr 1.17.1 1.18.6 pr 1.18.6.1 1.18.6.2 1.18.6.3 1.18.6.4 1.18.6.5 1.18.6.6 1.18.6.7 1.18.6.9 1.18.7 1.18.13 pr 1.18.13.1 1.19.1.2 1.22.1 1.22.6 2.1.1 2.1.3 2.1.7 pr 2.1.7.2 2.1.15 2.1.17 2.1.19 pr 2.2.1 pr 2.2.1.2 2.2.3.1 2.2.3.3 2.2.3.4 2.2.4 2.4.4.2 2.4.8.1 2.4.10.2 2.4.10.5 2.4.10.9 2.7.1 pr 2.7.1.2

2113 2541 94 1164 836 1111 2792 2772 447 6352 825 2754 2634 2669 95,29 2786 3116 2162 716 829 10182 10182 10166,182 10164,182 10182 10182 10165,182 10165 10167,182 10168,182 2753 2487 2418 1127 1133 10145 2643 533 977,102–3 7120–1 2319 2196 10187 10257 2192 3159 7113,115 2438 7111–2 250 2771 2422 2106 7113 7112 7113 3164 2190

2.7.3 pr 2.7.4 pr 2.8.2.3 2.8.2.5 2.8.15.5 2.9.2.1 2.10.1 pr 2.10.1.3 2.11.2.1 2.11.2.2 2.11.2.3 2.11.2.8 2.11.4.1 2.12.1 pr 2.12.1.1 2.12.2 2.13.1 pr 2.13.4.1 2.13.4.5 2.13.6.9 2.13.8 pr 2.14.1 pr 2.14.1.2 2.14.1.3 2.14.7.2 2.14.7.5 2.14.7.6 2.14.7.8 2.14.7.9 2.14.7.10 2.14.7.14 2.14.7.18 2.14.9 pr 2.14.10 pr 2.14.10.2 2.14.12 2.14.27 pr 2.14.27.2 2.14.30.2 2.14.46 2.14.49 2.14.52.1 2.14.52.2 2.14.52.3 2.14.53 2.15.3 2.15.7.2

247 2358 2433 1058 2322 7112,117 2142 7117 2304 6314 958 7111–2 2720 2402 2459 2401,441,443 2183,335,514 849 2327,604 2645 3159 3159 2410 7120 290 446 3160,166 284 2771 27713135 2275,303,431 695 7116 915 2768 2141 415 7122 2618 2771 2550 7122 2104,433 1058 2771 2275 7116 2533 6186 6253 6115 270 6370 2198 10162–3 10180 10166,208 10163 10211 6383

248 2.15.8.9 2.15.8.17 2.15.8.20 2.15.8.22 2.15.8.24 2.15.8.25 2.15.9.2 2.15.9.3 2.15.10 2.15.12 3.1.1 pr 3.1.1.1 3.1.1.3 3.1.1.5 3.1.1.6 3.1.1.7 3.1.1.9 3.1.1.10 3.1.1.11 3.1.5.5 3.1.6 3.1.8 3.1.15 3.2.2 pr 3.2.2.1 3.2.2.2 3.2.2.5 3.2.4.2 3.2.6 pr 3.2.6.6 3.2.11.3 3.2.13.6 3.2.13.7 3.2.19 3.2.23 3.2.24 3.3.1.2 3.3.13 3.3.17 3.3.25 3.3.27 pr 3.3.27.1 3.3.28 3.3.33 pr 3.3.33.1 3.3.33.2 3.3.33.5

Table II 2394 969 2337 2150 2336 2351 2106 10169 10180 10231 2443 2548 3156 2109 96 210,285,667,711,714 2720 7122–3 2422 275,289,438 7119–20 7122–3 7119–20 2435 713 2498 7111–2 2322 2414,417,769 7120–1 924 6324 1166 2422 2440 930 2686 2465 2108,700 6385 2399 2104 78–9 2792 2777 451 92 7122–3 2196,359,404 932 2364 2106 2248–9,252 7119–20 2171 7119–20 721–3 2303

3.3.35.3 3.3.37.1 3.3.39 pr 3.3.39.1 3.3.39.4 3.3.39.6 3.3.40.2 3.3.40.3 3.3.61 3.3.74 3.3.78 pr 3.4 3.4.2 3.4.5 3.4.6 pr 3.4.6.1 3.4.6.2 3.4.7 pr 3.5.1 3.5.3.1 3.5.3.2 3.5.3.4 3.5.3.9 3.5.3.11 3.5.5.3 3.5.5.5 3.5.5.8 3.5.5.11 3.5.5.13 3.5.5.14 3.5.9.1 3.5.11.1 3.5.13 3.5.18.4 3.5.27 3.5.28 3.5.30.2 3.5.33 pr 3.5.43 3.5.44.2 3.6.1.3 3.6.3.3 3.6.5 pr 3.6.5.1 3.6.8 4.1.1 4.1.6

2457 2413 2135 2148,351 7119–20 2417 7111–2 7111–2 2408 10183 2689 2823 2303 7111–2 2165,824 2408,825 2201 254–5 3161 3148 2431 2422 6398 2192,349 251 2151 2504 275 6145–6 2564 6146 2158 2214,247 6321 7119–20 2364 2335 2131 2410 2408 549 10165 838–9 10180 721–2,84 821 2165,325 7111–2 931 2410 2259 10163 2541,618 3148,163 94 2135,410,629,769

249

References to Legal Texts 4.2.3.1 4.2.4 4.2.7 pr 4.2.7.1 4.2.9 pr 4.2.9.1 4.2.9.3 4.2.9.6 4.2.9.8 4.2.14.4 4.2.14.5 4.2.14.10 4.2.14.11 4.2.16 pr 4.2.16.1 4.2.16.2 4.2.17 4.2.21.4 4.2.23.1 4.2.23.2 4.2.23.3 4.3.1 pr 4.3.1.2 4.3.1.4 4.3.1.8 4.3.2 4.3.3 4.3.7 pr 4.3.7.3 4.3.7.8 4.3.7.9 4.3.7.10 4.3.9.1 4.3.9.3 4.3.9.4a 4.3.13 pr 4.3.13.1 4.3.33 4.3.38 4.4.1 pr 4.4.2 4.4.3 pr 4.4.3.1 4.4.3.2 4.4.3.3 4.4.3.4 4.4.3.5

2157 2207 6145 7122–3 270 2339,771 1129 721–2 915 7111–2 2184 7122–3 2821 6145 7122–3 2492 7122–3 2166 2414 7120–1 2304 270 10182 10173 10163,171–3,179,182 2618,640 3163 2618–9 6145 2133 1137 915 2133 2771 2184 2212 2364 2618 2736 95 2550 649,238 648 2364 2210 10163 10170 331 840–1 2267,624,793 721–2,24,28 2247,410,618,740 644 7120–1 2246,437 2307,629 250,210,395,629 716,111–2 829 2629

4.4.3.6 4.4.3.7 4.4.3.10 4.4.4 pr 4.4.5 4.4.7 pr 4.4.7.1 4.4.7.2 4.4.7.3 4.4.7.4 4.4.7.5 4.4.7.7 4.4.7.8 4.4.7.9 4.4.7.10 4.4.7.11 4.4.9.2 4.4.9.4 4.4.9.5 4.4.11 pr 4.4.11.1 4.4.11.2 4.4.11.3 4.4.11.4 4.4.11.5 4.4.11.6 4.4.13 pr 4.4.13.1 4.4.16 pr 4.4.18.1 4.4.18.2 4.4.18.3 4.4.18.5 4.4.19 4.4.20.1 4.4.22 4.4.25 4.4.29 pr 4.4.40.1 4.4.44 4.4.45.1 4.6.1 pr 4.6.8 4.6.10 4.6.13.1 4.6.15.3 4.6.21.1

2150 2629 2629 3160,167 2629 2795 2629 2187 2579 2629 2629 2629 2371,770,773,777 92 6384 721–2 2150 2629 2351 2321 6368 721–2,28 2303 6110 1237,253 2629 721–2,29 2629,757 2629,694,749,764 2629 2460,629 225,32,527,608,629 932 2146,148 2140 932 2629,787,793 721–2,25,28 721–2,75 721–2,25,28,75 2135 2147,410 7120–1 2414,769 7120–1 2106 721–2,26,30 2351 2629 10167 10163 717 2104 717 2549 2436 2521 2165,325 931

250 4.6.21.3 4.6.23.4 4.6.26.4 4.6.26.5 4.6.26.9 4.6.28 pr 4.6.28.1 4.6.28.3 4.6.38 pr 4.6.38.1 4.6.40.1 4.7.4.1 4.7.4.2 4.7.4.3 4.7.8.5 4.8.3.1 4.8.7 pr 4.8.7.1 4.8.11.2 4.8.11.5 4.8.13.2 4.8.13.4 4.8.15 4.8.17.4 4.8.19.2 4.8.21 pr 4.8.21.1 4.8.21.3 4.8.21.4 4.8.21.9 4.8.21.10 4.8.21.11 4.8.25.1 4.8.28 4.8.29 4.8.31 4.8.32.16 4.9.1.1 4.9.1.3 4.9.1.5 4.9.1.7 4.9.3.1 4.9.3.3 4.9.7.3 5.1.2 pr 5.1.2.3 5.1.2.4

Table II 2323 2150 2103 2321 2167,178,367,414,720 2104 2629 2142,259 2326 2171 10163 2510 2135,156 6145–6 2514 1076 2150,665 218 647,145 2151 2428 956 2461 6145–6 93 2336 2148,777 92 2239,361 2433 1058 2151 6229 2422 2193 6242 2151,179,723–724 298,438,771 2461 93 2433 1058 3135 2351,736,740 254 3148,152 3135 2322 218 2158 2363 2336 7111–2 2600 2456

5.1.2.5 5.1.5 5.1.18.1 5.1.19.1 5.1.19.2 5.1.19.4 5.1.36.1 5.1.37 5.1.45 pr 5.1.50 pr 5.1.50.1 5.1.52.2 5.1.52.3 5.1.52.4 5.1.61 pr 5.1.82 5.2.8.2 5.2.8.6 5.2.8.9 5.2.8.11 5.2.8.14 5.2.23 pr 5.2.29 pr 5.2.29.2 5.2.29.3 5.3.3.6 5.3.9 5.3.11 pr 5.3.13.1 5.3.13.3 5.3.13.4 5.3.13.5 5.3.13.8 5.3.13.9 5.3.13.10 5.3.16 pr 5.3.18 pr 5.3.20.12 5.3.20.15 5.3.23 pr 5.3.25.5 5.3.25.6 5.3.25.8 5.3.25.9 5.3.25.11 5.3.25.15

2154,771 2514 6314 268,523 2728 2193,513,522,707,723,728 3135 9130 2183 688 3119 2433 467 2151,662 467 955 2178 2723 250,723 2275 96 982 2769 2797 2323 2176 2162 2142 10209 10211 10163 2247 2796 2126 6187,194 2188 6133,135 2438 2690 2189 2336 794 6215 2188 721–2,29 2322 2142 2201,436,740 250 2226,424 928 263,306 2460 2436

References to Legal Texts 5.3.25.17 5.3.31 pr 5.3.31.1 5.3.31.2 5.3.31.4 5.3.37 5.3.43 5.4.1.4 5.4.1.5 5.4.3 6.1.1.2 6.1.1.3 6.1.5.1 6.1.6 6.1.9 6.1.13 6.1.15.1 6.1.15.3 6.1.35 pr 6.1.35.1 6.1.37 6.1.78 6.2.7.13 6.2.7.17 6.2.9.1 6.2.11 pr 6.2.11.3 7.1.3.1 7.1.7.1 7.1.7.3 7.1.9.2 7.1.9.4 7.1.9.5 7.1.12 pr 7.1.12.2 7.1.12.3 7.1.12.4 7.1.12.5 7.1.13.2 7.1.13.3 7.1.13.4 7.1.13.5 7.1.13.7 7.1.13.8 7.1.15.2 7.1.17 pr 7.1.17.1

2151 2150 2151 2168 930 2336 717 2324 410 3125 221,158 2126 2303 270,726 2127,331 2150 2343 2184 684 6317 2435 2426 2126,400 2297 2321 721–2,29 2147–8 2131 2189,583 6133,135,156,259 2189 2194 6156 2189 661 2151 6327,333 413 943 218,193 2438 2103 251,189 2671 10131 251,413 2507 2422,665 2799 2150 6259

7.1.22 7.1.23.1 7.1.25.1 7.1.25.3 7.1.25.5 7.1.25.6 7.1.25.7 7.1.27.1 7.1.43 7.1.60 pr 7.1.68 pr 7.1.70 pr 7.1.70.2 7.1.70.4 7.1.72 7.2.1.1 7.2.1.3 7.2.3 pr 7.2.3.2 7.2.4 7.2.8 7.4.1 pr 7.4.1.2 7.4.3 pr 7.4.3.2 7.4.5 pr 7.4.5.2 7.4.10 pr 7.4.10.1 7.4.10.5 7.4.10.7 7.4.10.11 7.4.29.2 7.5.3 7.5.5.1 7.5.5.2 7.5.10.1 7.5.11 7.6.1.1 7.6.1.3 7.6.5.1 7.6.5.6 7.8.1.4 7.8.2.1 7.8.4 pr 7.8.4.1

251 2264 6156 2147,151,244 2154 297,158,796 2244 6110 6328 2738 2761 2152 2151 6156,158 6156 2435 6124,128–9 2438 2147,771 6309 6133,136 6295 2143 2106 272,201 2734 6128 955 2193 2112 2706 2151 2131,303 6208 2149,189 2229 2184 2184 2526,655 2526 2375 2367 2351 298,139,141,438 2141 2331 6322 2135,154,218 649,62,238,292 951,55 2378,677 929 2106 625

252 7.8.6 7.8.10 pr 7.8.10.1 7.8.10.2 7.8.10.3 7.8.10.4 7.8.12 pr 7.8.12.1 7.9.1.2 7.9.1.7 7.9.3.1 7.9.3.4 7.9.7 pr 7.9.9 pr 7.9.9.1 8.1.20 8.2.3 8.2.17 pr 8.2.17.1 8.2.17.2 8.3.1.1 8.3.3 pr 8.3.3.2 8.3.3.3 8.3.16 8.3.5.1 8.3.35 8.4.2 8.4.6 pr 8.4.6.2 8.4.13 pr 8.4.13.1 8.4.18 8.5.8.5 8.5.10.1 8.5.15 9.1.1.4 9.1.1.6 9.1.1.7 9.1.1.15 9.2.5.1 9.2.5.2 9.2.6 9.2.7.1 9.2.7.3 9.2.7.4 9.2.7.8

Table II 271 6258 2103 3135 2139,142 2141 848 848 2190,526 2183 2146 2321 295 2193 285 2183 2207 2417 2723 2106 3135 2532 6133,135 6133,135 6133,135 3119 2532 6133,138,242 2101 721–2 2201 2120 10189 10111,166 684 210,106 2131 10163 2445,628 2575 210,339 358 2146 2322 988 2270,718 234 2795 2364 433 2339 2785

9.2.9.1 9.2.10 9.2.11.8 9.2.11.10 9.2.16 9.2.20 9.2.21.1 9.2.21.2 9.2.22 pr 9.2.23.4 9.2.25.2 9.2.27.1 9.2.27.3 9.2.27.9 9.2.27.11 9.2.27.17 9.2.27.25 9.2.27.28 9.2.27.29 9.2.27.30 9.2.27.31 9.2.29 pr 9.2.29.1 9.2.29.2 9.2.29.7 9.2.35 9.2.41 pr 9.2.41.1 9.2.45 pr 9.2.49.1 9.2.50 9.2.51.2 9.3.1.1 9.3.1.2 9.3.5.2 9.3.5.5 9.3.5.11 9.4.2.1 9.4.2.8 9.4.3 9.4.5.1 9.4.8 9.4.31 9.4.35 9.4.38 pr 9.4.38.3 9.4.42.2

226,609 234 2364 251 234 234 2290 2253 244,46 2820 2165 6209 2718 2297 2193 2322,358,614 6213 2358 2351 2664 2448 2723 721–2,29 2201 2814 234 2114 543 271 2430 2321 10181 2233 3148 2504 2147–8 2113 2247 2193,286 296 2431 2135 2196 2433 2122 2201 2152 966

253

References to Legal Texts 10.1.4.1 10.1.4.8 10.1.8 pr 10.1.8.1 10.2.4.3 10.2.8 pr 10.2.18.1 10.2.18.3 10.2.18.4 10.2.20.1 10.2.20.3 10.2.20.7 10.2.29 10.2.41 10.2.49 10.2.50 10.2.53 10.2.54 10.3.4.4 10.3.6.4 10.3.6.6 10.3.6.9 10.3.7.8 10.3.7.13 10.3.12 10.3.14.1 10.3.21 10.3.23 10.4.1 10.4.3.2 10.4.3.9 10.4.3.11 10.4.3.14 10.4.7.4 10.4.9 pr 10.4.9.2 10.4.9.8 10.4.11 pr 10.4.11.1 10.4.18 10.4.19.1 11.1.2 11.1.4.1 11.1.9.4 11.1.11.3 11.1.11.4 11.1.11.5

2408 2433 1058 10182 10167,180 2627 2627 298,818 721–2,27,29,81 2771 721–2 2159 3135 2408 684 275,132,326,339,512 429 10180 10229 2141 2109 6244 6237 2331 2193 2122,140,152,771 2358 1076 2722 2142 2792 3149 2165 2135 2771 2506 2178 2448 2740 6134 2720 2147,210,618,720,723 10170 2188 3154 2431 2135,327,758 2147 2513 3135

11.1.11.7 11.1.11.8 11.1.11.11 11.1.11.12 11.1.16 pr 11.1.16.1 11.3.1.1 11.3.3 pr 11.3.5 pr 11.3.9 pr 11.3.9.1 11.3.9.3 11.3.11 pr 11.3.11.1 11.3.14.2 11.3.14.9 11.4.1.2 11.4.1.5 11.5.1.2 11.5.1.3 11.6.1 pr 11.6.1.1 11.6.3 pr 11.6.5 pr 11.6.7.2 11.6.7.3 11.7.2.1 11.7.2.8 11.7.4 11.7.4.3 11.7.6 pr 11.7.8 pr 11.7.8.2 11.7.12 pr 11.7.12.3 11.7.14.2 11.7.14.3 11.7.14.7 11.7.14.11 11.7.14.13 11.7.14.14 11.7.20 pr 11.7.20.1 11.7.31 pr 11.7.43 11.8.1.3 11.8.1.6

2578 2171,670,720 446 2718 2117 2117 2243 2618 2463 2534 2545 2154,546 2189 2546 270 2147 2454 2422 647 2165,428 279 3165 2152,785 2740 2365 2103 730–1,69 2185 2193 2150,297 2433 2445,769 2154 2384 730–1,37,57,67 3155 2187 2553 2781 730–1,36 2436 424,28 2810 2151 2693 2111 1057 2315 2469

254 11.8.1.8 11.8.3 11.8.4 12.1.1 pr 12.1.1.1 12.1.6 12.1.7 12.1.8 12.1.9.3 12.1.9.8 12.1.10.4 12.1.11 pr 12.1 12 pr 12.1.18 pr 12.1.24 12.1.26 12.1.40 12.2.3 pr 12.2.5 pr 12.2.5.1 12.2.5.3 12.2.7 12.2.9.4 12.2.9.6 12.2.11.1 12.2.11.2 12.2.11.3 12.2.13.2 12.2.13.6 12.2.16 12.2.30.2 12.2.34 pr 12.2.34.7 12.3.1 12.3.4 pr 12.3.4.1 12.3.4.2 12.3.10 12.4.3.1 12.4.3.5 12.4.3.7 12.4.3.8 12.4.5.4 12.4.7 pr 12.4.13 12.5.2.2 12.5.4 pr

Table II 2135,723 716 10229 66 645 6149 6113 245 2351 2770 3130 2154,550 2152 434 104,95,99,114 10163,177 1142 6102 2709 2389 366 366 2321 2629 2193 2326 2526 2342 3135 10101 730–1,34,53,67 7111–2 2408 2151 2196 2243 2197,769 733–4,36,54,65 733–4,36,54,65 2221 6360 733–4 6133,135 272 331 6335 959 2783,811 2178 6248,299 674 731,36,84 821 6331

12.5.4.3 12.6.3 12.6.9 12.6.15 pr 12.6.21 12.6.23 pr 12.6.23.1 12.6.25 12.6.26 pr 12.6.26.12 12.6.26.13 12.6.64 12.7.1 pr 13.1.10.2 13.1.12 pr 13.1.12.1 13.1.12.2 13.1.17 13.3.1 pr 13.3.3 13.4.1.19 13.4.2.3 13.4.2.8 13.4.4.1 13.5.1 pr 13.5.1.1 13.5.14.1 13.5.14.2 13.5.16.1 13.5.16.4 13.5.27 13.6.1.1 13.6.3.4 13.6.3.6 13.6.5.2 13.6.5.8 13.6.5.11 13.6.5.13 13.6.7.1 13.6.7.8 13.6.12.1 13.6.13.2 13.6.18 pr 13.6.18.1 13.7.4 13.7.8 pr 13.7.9.1

2762 6291 713 2513 2433 1058 2433 2771 84–5,8 10239 731–2,69 2148 2438 3111 2417 2339,800 2771 2771 6133,135 2201 2167 2391,400 3134–5 430 2259,534 6110–1 2723 6289 2473 424,29 2197 331,160 2431 2480 2151 2723 2277 2201 2165 6305 2358 2586 2410 2135 278 6307 2720 2193 2444 2305 2322 2143 2132 2150 2130

255

References to Legal Texts 13.7.9.3 13.7.11.4 13.7.11.5 13.7.11.6 13.7.13 pr 13.7.16.1 13.7.24 pr 13.7.24.1 13.7.24.2 13.7.26 pr 13.7.27 13.7.36 pr 13.7.36.1 14.1.1 pr 14.1.1.5 14.1.1.6 14.1.1.8 14.1.1.12 14.1.1.15 14.1.1.16 14.1.1.20 14.1.1.21 14.2.2 pr 14.2.4.2 14.2.10.1 14.3.1 14.3.5.1 14.3.5.2 14.3.5.17 14.3.7.1 14.3.11 pr 14.3.11.3 14.3.11.5 14.3.13.1 14.3.13.2 14.3.15 14.4.1 pr 14.4.1.1 14.4.1.3 14.4.1.5 14.4.3.2 14.4.5 pr 14.4.5.3 14.4.5.7 14.4.5.8 14.4.5.9 14.4.5.13

2167,308 2194 2562 732–3,36 2414 6381 244,47 2771 261,676 260 2769 838–9 10163 2414,769,820 7120–1 2629 3148 293,150–1,252 2201,287,648 2189 3135 915 2583 463 463 2259 420 2322 2721 2433 689 1056 2723 2149 3159,162 6189 2594 2103 2201 2336 2443 3114 2336,615 2162 2245 2183 3148 6145 2351 2135 2244 2171,236 2201 218,413 2151 2405 2720

14.4.5.16 14.4.7 pr 14.4.7.1 14.4.9.2 14.5.2.1 14.5.4.1 14.5.4.4 14.5.4.5 14.6.3.3 14.6.7 pr 14.6.7.3 14.6.7.11 14.6.7.12 14.6.9.3 14.6.14 14.4.7.1 15.1.1 pr 15.1.1.6 15.1.3.2 15.1.3.5 15.1.3.6 15.1.3.7 15.1.3.9 15.1.5 pr 15.1.5.4 15.1.7.3 15.1.7.7 15.1.9.1 15.1.9.4 15.1.9.5 15.1.9.6 15.1.9.7 15.1.11.2 15.1.11.3 15.1.11.7 15.1.11.9 15.1.17 15.1.19.1 15.1.21 pr 15.1.26 15.1.30 pr 15.1.30.2 15.1.30.6 15.1.32 pr 15.1.36 15.1.40 pr 15.1.41

2591 2150,670 2192,349 2194,259,484 2720 2146 275 2193,514 975 6133,136 2427 2115 2339 2135 2515 2151 2111 2135 2201 955 2135,154 2423 927 2580 2629 6282 6145–6 330 6133,136 2771 2742 2152,154 3100 2189,247 331 2154 2315 2133 942 6242 2809 232 2408 6332 2152 2343 435 2210,409 2771 2271,261

256 15.1.47.4 15.1.49 15.2.1.7 15.2.1.8 15.2.1.10 15.3.1.2 15.3.3.1 15.3.3.2 15.3.3.4 15.3.3.6 15.3.3.9 15.3.3.10 15.3.7.3 15.3.7.5 15.3.10.2 15.3.10.6 15.3.10.8 15.3.13 15.4.1.2 15.4.3 16.1.2 pr 16.1.2.3 16.1.4 16.1.6 16.1.8 pr 16.1.8.10 16.1.8.13 16.1.13.2 16.1.32.2 16.2.5 16.2.9.1 16.2.10.2 16.2.13 16.3.1.1 16.3.1.2 16.3.1.4 16.3.1.10 16.3.1.11 16.3.1.12 16.3.1.18 16.3.1.27 16.3.1.33 16.3.1.36 16.3.1.38 16.3.1.42 16.3.1.47 16.3.3

Table II 2130 2135 275,138,154,363 2506 210 272,97 2152 2796 2469 2103 2151,618 2149,435 930 2190 2506 232 2263,276 2189 2214 10229 716 829 2455,618,736 732–3,70 732–3,36 2159 2593 2493 2223 2515 254 2721 270 2791 2194 2293 3149 3149 2113 2438 2436 2275 2336 2190,771 2525 2210 2629 2145 2443

16.3.5.1 16.3.7 pr 16.3.7.2 16.3.7.3 16.3.11 16.3.14.1 16.3.24 17.1.6.1 17.1.6.7 17.1.8.4 17.1.8.6 17.1.8.8 17.1.10.3 17.1.10.7 17.1.10.8 17.1.12.2 17.1.12.5 17.1.12.9 17.1.12.10 17.1.12.14 17.1.14 pr 17.1.19 17.1.22.4 17.1.29 pr 17.1.29.3 17.1.29.4 17.1.29.5 17.1.29.6 17.1.49 17.1.58 17.1.60.2 17.2.5 pr 17.2.14 17.2.29.2 17.2.33 17.2.52.5 17.2.52.10 17.2.52.16 17.2.52.17 17.2.52.18 17.2.55 17.2.58 pr 17.2.62 17.2.63 pr 17.2.63.3 17.2.63.5 17.2.63.6

2726 446 2112 261 2130,440 2143 2410 552 2363 2618–9,819 911–2 2139 2315 2151 2326 2625 661 2159 2193 2132,336,410,493 732–3,68 2818 2108 2771 2721 2178 944 262,111,187 2536 2618 2720 254 2207 2112 10234 2151,771 2235 2116 732–3,68 2150 10234–5 10234–5 2106 6245,251 10234–5 2223 442 2506 955 6255 2118 221,158 2192,349 2247

257

References to Legal Texts 17.2.63.8 17.2.65.3 17.2.65.8 17.2.73 18.1.1.1 18.1.9.2 18.1.15.2 18.1.18.1 18.1.24 18.1.28 18.1.35.2 18.1.45 18.1.57.2 18.1.58 18.1.79 18.2.2 pr 18.2.4.5 18.2.4.6 18.2.9 18.2.11 pr 18.2.16 18.3.4 pr 18.3.4.1 18.3.4.2 18.3.4.4 18.4.2.3 18.4.2.4 18.4.2.6 18.4.2.7 18.4.2.10 18.4.2.11 18.4.2.16 18.4.2.17 18.5.3 18.6.1 pr 18.6.2.1 18.6.4 pr 18.6.4.2 18.6.18 18.7.1 18.7.10 19.1.4.1 19.1.7 19.1.10 19.1.11.3 19.1.11.5 19.1.11.6

2114,268 2408 6343 10228,233 3121 3135 2304 6342 2761 2172 2190 678 2506 684 2143 6235 2154 2152,771 2315 2151,496 2760 6163–4 2187 732–3,68 732–3,37,58,65 2193 2771 260 251,186 9120 2130 276 281,188 248 2327,339 2327 2210 661,239 254 2326 253–4,142 269,210,670 2244,321 2183 2511,725 6370 2433 1058 2515 2186 9120 2238 6300 936 2114 2214,718

19.1.11.12 19.1.11.16 19.1.11.18 19.1.13 pr 19.1.13.3 19.1.13.5 19.1.13.7 19.1.13.9 19.1.13.14 19.1.13.20 19.1.13.22 19.1.13.25 19.1.13.31 19.1.17.6 19.1.17.7 19.1.24.1 19.1.32 19.1.43 19.2.9.1 19.2.9.4 19.2.11 pr 19.2.13.3 19.2.13.5 19.2.13.6 19.2.13.8 19.2.13.11 19.2.15.2 19.2.15.4 19.2.15.5 19.2.15.6 19.2.19 pr 19.2.19.2 19.2.19.6 19.2.19.8 19.2.19.9 19.2.25.2 19.2.25.6 19.2.49 pr 19.4.1.1 19.5.4 19.5.5.2 19.5.5.4 19.5.14.3 19.5.20 pr 19.5.20.1 19.5.21 20.1.6

6133,136 2244 221,60,114,158 2385 248,106,573 465 2106 2170 249 2188 2720 6230 2106,836 2275 2761 6274 2114 6299 2193 168 6100 105,225 2151,720 732–3,37,59,65 732–3,37,57,67 2142 2151 2440 2499 6275 2490,611 2559,623 2151 1206 2557 732–3 732–3,38 89 2440 283.431 2820 9119 732–3,37,59,65 2598 3127 717 10136 330 2433 1079 2358 432 2558 2435,558 429 2792

258 20.1.11.1 20.1.11.2 20.1.13.2 20.1.15.1 20.1.16.6 20.1.16.8 20.1.21.1 20.1.27 20.2.1 20.2.2 20.2.3 20.2.5 20.3.1.2 20.4.9 pr 20.4.10 20.4.12.5 20.4.12.6 20.4.12.9 20.5.7 20.5.12 pr 20.5.12.1 20.6.4.1 20.6.8.7 20.6.8.11 20.6.8.14 20.6.15 21.1.1.2 21.1.1.3 21.1.1.5 21.1.1.7 21.1.1.8 21.1.1.9 21.1.1.10 21.1.4.2 21.1.4.3 21.1.4.4 21.1.4.5 21.1.4.6 21.1.4.9 21.1.6.1 21.1.8 21.1.9 21.1.10.1 21.1.10.4 21.1.12.1 21.1.12.2 21.1.14.4

Table II 3136 673 675 2770 2110 270,305 2193 544,48 514 675 6140 675 679 2515 10229 673 673 673 676 690 691 2315 2114 2426 2408 10244 2113,618 3163 2183 2339 3135 2164,524 2147,156,644 3135 6141 2116 2567,649 2628,674 2149 931 929 2683 2190,652 267 3135 6280 3135 2390 2650 2606

21.1.14.8 21.1.14.10 21.1.17.1 21.1.17.3 21.1.17.4 21.1.17.14 21.1.17.16 21.1.17.19 21.1.19.4 21.1.21 pr 21.1.23.2 21.1.23.3 21.1.23.9 21.1.25.2 21.1.25.3 21.1.25.7 21.1.25.10 21.1.27 21.1.29 pr 21.1.31.12 21.1.31.18 21.1.31.23 21.1.33 pr 21.1.35 21.1.37 21.1.38.3 21.1.38.4 21.1.38.7 21.1.38.10 21.1.38.11 21.1.41 21.1.49 21.1.59 pr 21.1.59.1 21.2.4 pr 21.2.16 pr 21.2.17 21.2.21.1 21.2.21.3 21.2.24 21.2.37.1 21.2.50 21.2.52 22.1.3 pr 22.1.3.2 22.1.3.3 22.1.3.4

2614 3135 6154 6153 2784 2451,464 6141 2668 686 6153 2336 2183,423,661 927 2593 2321 2451 292,106 6146 2422 640 2165 2111 2322 2183 2322,518 930 932 2189 3101 2127,639 2404 291 2126,561 2130–1 6153 296 2191 950 2513 2381 279 2408 2169 2771 2159 296 2321,634 2530 75 713 2433 1057 1139 2583

References to Legal Texts 22.1.19 22.1.31 22.1.32 pr 22.1.33 pr 22.1.37 22.1.38.14 22.2.1 22.3.9 22.3.18.2 22.3.22 22.3.26 22.3.28 22.3.30 22.3.31 22.5.12 22.5.13 22.5.17 22.6.6 23.1.4.1 23.1.9 23.1.10 23.1.16 23.1.18 23.2.9 pr 23.2.12.2 23.2.12.4 23.2.14.4 23.2.20 23.2.27 23.2.29 23.2.43 pr 23.2.43.1 23.2.43.3 23.2.43.4 23.2.43.8 23.2.45 pr 23.2.45.3 23.2.48 pr 23.2.57 23.2.60 23.2.60 pr 23.2.60.4 23.3.5.1 23.3.5.2 23.3.5.9

2771 10229 675 2112,552,574,622,624, 636,659 449 979–81,91 2410 7120–1 254 2727 2117 2303 10229 685,361 3132 10228 10228 2465,554 2114 1015 2196,547,637–8 448 2770 812 460 717 2201 2500 2106 943 716 943 2831 535 2117,511 250 2131 2607 2818 2135 2322 840–1 2171 2304 2108 2831 535 2101–2,155,832 536,104 671 9139 2142 2142 2199,818

23.3.5.11 23.3.9.3 23.3.12.1 23.3.16 23.3.23 23.3.33 23.3.34 23.3.38 23.3.39.1 23.3.40 23.3.43 pr 23.3.51 23.3.56.3 23.4.4 23.4.6 23.4.11 23.4.17 23.4.25 23.5.13.4 24.1.3 pr 24.1.3.1 24.1.3.3 24.1.3.9 24.1.5.1 24.1.5.13 24.1.5.15 24.1.7 pr 24.1.7.3 24.1.7.4 24.1.7.5 24.1.7.6 24.1.7.9 24.1.11.3 24.1.11.5 24.1.14 pr 24.1.21 pr 24.1.21.1 24.1.22 24.1.23 24.1.31.3 24.1.31.4 24.1.32 pr 24.1.32.1 24.1.32.5 24.1.32.12 24.1.32.14 24.1.32.18

259 2169 1270 248,50,278 3130 84–5,8 2452 2192 2265 2196,321 2664 1077 2227 732–3,69 6113 10229 270 6115 2210,227,452 2106 2712 732–3,69 6250 10229 6114 84–5,10 84–5,7 2277 2130 2223 2598 2172,193,258 84–5,8 2326,395 2771 84–5,8 7122 84–5,8 2183 1074 2106 10144 249 2151 2782 1145 619 82–3,7 2179 2142 2555 7122 84–5,7,10 84–5 2151,781,783 2518 249,216,222,247,260 2252

260 24.1.32.19 24.1.32.27 24.1.32.28 24.1.33.1 24.1.34 24.1.40 24.2.2.3 24.2.4 24.2.6 24.2.9 24.2.11.2 24.3.2.2 24.3.7.8 24.3.7.12 24.3.14 pr 24.3.14.1 24.3.17 24.3.21.6 24.3.22.6 24.3.22.7 24.3.22.8 24.3.24 pr 24.3.24.2 24.3.24.5 24.3.37 24.3.40 24.3.44 pr 24.3.64.4 24.3.64.9 24.3.66.1 24.3.66.2 25.1.1 pr 25.1.1.1 25.1.1.2 25.1.1.3 25.1.3.1 25.1.5 pr 25.1.5.1 25.1.7 25.1.9 25.1.11 pr 25.1.14 pr 25.1.14.2 25.2.3.4 25.2.17 pr 25.2.24 25.3.1.5

Table II 84–5,8 2184,230 811 248 2187,805 2734 10231 2143 2190 296 2322 2315 840–1 2127,500 84–5 2257 2178 522,23 2799 2771 684 2804 2103 936 2168 344 441 975,87 2610,618,713 985 261 2196 2117 10229 2408 6263 2152 2364 6235 6235 10131 2135,351 2351 6222 2328 2321 265 2114,469 10131 10131 10131 10144 10130 6276,279 2326 10137 2165

25.3.1.10 25.3.1.11 25.3.1.13 25.3.5.1 25.3.5.2 25.3.5.4 25.3.5.7 25.3.5.8 25.3.5.9 25.3.5.12 25.3.5.14 25.3.5.19 25.3.5.20 25.3.6.1 25.4.1 pr 25.4.1.2 25.4.1.3 25.4.1.5 25.4.1.8 25.4.1.9 25.4.1.11 25.4.1.13 25.5.1.1 25.5.1.2 25.6.1.10 25.6.1.11 25.7.3.1 26.1.3 pr 26.1.3.1 26.1.3.2 26.1.6.4 26.1.7 26.1.14.5 26.2.1.1 26.2.3.1 26.2.10.1 26.2.10.2 26.2.10.3 26.2.15 26.2.16 pr 26.2.17.2 26.4.1 pr 26.4.1.3 26.4.2 26.4.3.9 26.4.5.3 26.4.5.4

2771 2106 2106 249 2141 2103,282 6353 2108 2161 2131 967 6353 2319 2141 6363 717 2149 2466 2251 2165 249,336,474 248,161,466 2117 2189 2135 2808 275 2129,187 674 2514 2145,252,328 84–5,10 2139 6156 250 10257 2152 2515 2429 988 2274 295,351 2184,500 1158 2511 2140 2460 2146 2172 2130–1 2124,138 2138

261

References to Legal Texts 26.5.6 26.5.7 26.5.8.1 26.5.12 pr 26.5.12.1 26.5.12.2 26.5.18 26.5.24 26.6.2.5 26.7.1.3 26.7.3.2 26.7.3.3 26.7.3.4 26.7.3.5 26.7.3.6 26.7.3.8 26.7.5.2 26.7.5.3 26.7.5.5 26.7.5.8 26.7.5.10 26.7.7 pr 26.7.7.1 26.7.7.2 26.7.7.3 26.7.7.4 26.7.7.7 26.7.7.12 26.7.9 pr 26.7.9.1 26.7.9.6 26.7.9.7 26.7.9.9 26.7.12.1 26.7.19 26.7.23 26.7.25 26.7.28.1 26.7.29 26.7.37.2 26.7.53 26.7.54 26.7.57.1 26.7.61 26.8.1.1 26.8.5 pr 26.8.5.2

2103 2131 967 2117,337 2514 2117,749 6352 788–90 6380 166 113 987 2123,244,297 2117 732–3,36,53,67 2382 2125 2681 2564 2339 249 2331 2795 2596 2201 450 980–1 2798 446 2612 732–3,69 2511,542 2125 2769 2297 2108,684 733–4,37,57,67 2130–1 2106 716 10229 2151,564 2151 544 9128 2110 684 272 2515 2771 2606 2132 2126,337

26.8.5.3 26.8.5.4 26.8.5.5 26.8.5.6 26.10.1 pr 26.10.1.3 26.10.1.4 26.10.1.5 26.10.1.7 26.10.3 pr 26.10.3.2 26.10.3.5 26.10.3.6 26.10.3.7 26.10.3.9 26.10.3.13 26.10.3.16 26.10.3.17 26.10.3.18 26.10.4.2 26.10.5 26.10.7.2 26.10.7.3 27.1.2.9 27.1.3 27.1.4.1 27.1.6.6 27.1.6.8 27.1.6.11 27.1.6.17 27.1.7 27.1.8.9 27.1.9 27.1.10.8 27.1.13.2 27.1.13.6 27.1.13.7 27.1.15 pr 27.1.15.16 27.1.19 27.1.23 pr 27.1.31.4 27.1.44 pr 27.1.45.3 27.1.45.4 27.1.46.2 27.2.1.1

2414,513 84–5,7 99 2120,736 2152 2120 2694,770 3149 2259 2327 737,59,65 2244 6375 733–4,69 733–4,69 2130,564 2798 976 2327 2336,388 2564 733–4,61,66 99 2794 974 2788 970 2514 2595 2196 839–40 2793 981 166 112 2431 166 113 827 6363 717 182 717 2351 527 9105 166 518 99,106–7 166 9106–7 166,70 111 717 717 717 2217 524,27 921,105,109 2717 10230 684 763 2426 2408 762 732–3,68

262 27.2.1.2 27.2.1.3 27.2.2.2 27.2.3.2 27.2.3.3 27.3.1.2 27.3.1.3 27.3.1.4 27.3.1.11 27.3.1.13 27.3.1.15 27.3.1.19 27.3.1.20 27.3.5 27.3.17 27.3.19 27.4.1 pr 27.4.1.3 27.4.1.5 27.4.1.6 27.4.1.7 27.4.3 pr 27.4.5 27.5.1.2 27.5.1.3 27.5.1.5 27.6.1 pr 27.6.5 27.6.12 27.7.4 pr 27.7.4.3 27.8.1pr 27.8.1.2 27.8.1.4 27.8.1.10 27.8.1.17 27.8.2 27.8.4 27.8.6 27.9.1 pr 27.9.3 pr 27.9.3.4 27.9.3.5 27.9.5.3 27.9.5.4 27.9.5.9 27.9.5.10

Table II 2117,154 2769 732–3,69 2114 2473 2779 2106 733–4,69,79 2184,792 2336 2564 733–4,36,54,65 2321,769 6387 733– 4,36 2351 260 2193 2193 6353 99,93–4,96 10229 3155 2339 249,131 967 2151 2213 2431 10230 733–4,69,75,79 2171 2152,564 3159 2147 10229 267,160,244 6265 2527 2201,679 267 547 6372 947 2679 6379 2755 10254 2681 446 6371 733,68 733–4,36,54,65 3135 2103,138 2327 248 2583,757 2103,806

27.9.5.12 27.9.5.14 27.9.7 pr 27.9.7.3 27.9.7.4 27.9.8 pr 27.9.9 27.9.10 27.9.11 27.9.13 pr 27.9.13.1 27.10.1.1 27.10.5 28.1.5 28.1.9 28.1.20.2 28.1.20.3 28.1.20.7 28.1.20.9 28.1.21.2 28.1.21.3 28.1.22.4 28.1.22.5 28.1.22.6 28.2.1 28.2.2 28.2.3.4 28.2.6 pr 28.2.12 pr 28.2.12.1 28.2.28.3 28.2.29.5 28.3.3.6 28.3.6.6 28.3.6.7 28.3.6.8 28.3.6.9 28.3.6.10 28.3.12 pr 28.4.1.1 28.4.2 28.5.1.5 28.5.2.1 28.5.3.2 28.5.3.4 28.5.4.2 28.5.6.2

248 2326,757 2329 939 2216 2113 2172 10166,182 10167,180 2181 6105 762 671,104 6371 2515 2141 696 712 830 2660 2106 2423 927 3102,110 2577 2431 2483 2114 2251 3135 2172 261 10132,258 2189 2413 6301,336 2422 2151 296 2244 2148 262,187 2514 2410,769 2151,410,495 250,410 2108 838–9 2745 947 10254 2258,768 2227 6191 2275,535 2243–4 2275

263

References to Legal Texts 28.5.6.4 28.5.9.2 28.5.9.4 28.5.9.5 28.5.9.14 28.5.9.20 28.5.13.5 28.5.13.6 28.5.17.1 28.5.17.4 28.5.17.5 28.5.19 28.5.30 28.5.35 pr 28.5.35.1 28.5.35.2 28.5.35.3 28.5.35.5 28.5.48 pr 28.5.51 pr 28.5.51.1 28.5.52.1 28.5.85.1 28.6.2 pr 28.6.2.4 28.6.10.5 28.6.10.6 28.6.16 pr 28.6.23 28.6.38.1 28.6.39 pr 28.6.39.2 28.7.8 pr 28.7.8.2 28.7.8.5 28.7.8.6 28.7.10 pr 28.7.20 pr 28.8.3 28.8.5.1 28.8.7.1 28.8.7.2 28.8.7.3 28.8.8 29.1.1.pr 29.1.3 29.1.6

2193 645 2194 2238 935 2190 6295–7 2152 649,238 649,238 2189 2438 961,238,257 6194 730–1 2114,323 947 10254 272,326,592 525 920 10257 2244,565 1148 2114,121,512 941 10257 2305–6 10149 10140 677 2315 2321 2123 6387 82–3 911–2 2223 2193,264 6110 2408 2127 2433 1058 6235 6235 2792,816 2109 2184 2198 944 3137 2103,183 2682 3155 2131 2658 2180 9117 6358 716 2300 911–2,65 2187

29.1.9.1 29.1.11 pr 29.1.13.2 29.1.13.3 29.1.13.4 29.1.15.1 29.1.19 pr 29.1.19.1 29.1.19.2 29.1.28 29.1.41.5 29.2.5 pr 29.2.6.2 29.2.6.3 29.2.12 29.2.13 pr 29.2.13.2 29.2.17.1 29.2.20.1 29.2.20.2 29.2.20.3 29.2.20.4 29.2.21.1 29.2.21.3 29.2.24 29.2.25.2 29.2.25.4 29.2.30.1 29.3.30.3 29.2.30.5 29.2.30.6 29.2.35 pr 29.2.40 29.2.42 pr 29.2.42.3 29.2.62 29.2.67 29.2.71.1 29.2.71.9 29.2.86 pr 29.2.97 29.3.2.1 29.3.2.7 29.3.8 29.3.10.2 29.3.12 29.4.1 pr

2414 2327 2167 2511 733–4,36,55,65 2337 947–8 10254,256 2141 260 2114 2327 2103 2315 82–3 6369 2598 2598 2598 2513,781,783 2475 626 626 2146 2151,598 2154 2414 6156 2135,422–3 927 2431,463 2106 6185,191 2531 2771 256,187,812 10255 2207 10148 2180 9117 2180 9117 715 6103 2730 2141 2118 2670 2627 2618 3163

264 29.4.1.1 29.4.1.5 29.4.1.10 29.4.1.12 29.4.2.1 29.4.3 29.4.4 pr 29.4.4.1 29.4.6 pr 29.4.6.1 29.4.6.2 29.4.10 pr 29.4.10.2 29.5.1.3 29.5.1.7 29.5.1.12 29.5.1.13 29.5.1.24 29.5.1.27 29.5.1.28 29.5.3.11 29.5.3.12 29.5.3.14 29.5.3.17 29.5.3.24 29.5.3.30 29.5.5.1 29.5.15 pr 29.6.1.1 29.7.1 29.7.9 29.7.14 pr 29.7.19 30.4.1 30.7.1.1 30.12.3 30.20 30.24.3 30.30.7 30.34.4 30.37 pr 30.37.1 30.39 pr 30.39.1 30.39.6 30.39.7 30.41.3

Table II 272,201,513 250 2351 2154 2284 254 232 298 2112 2398 2283 2818 2142,149,154,179,363 2450 2135 2771 2117 2183 2723 6359 2170 2514 2141 2720 2201 2771 251 2101 2327 2769 6405 544 6142 545 1150,157 2796 2147 10228 270 6233 2187,321 84–5,7 2152 2210 6117,120 2398 941 2506 917,55 2587 84–5,7

30.41.4 30.41.5 30.41.7 30.41.13 30.43.1 30.44.2 30.45 pr 30.47.1 30.47.5 30.49.1 30.49.8 30.50.1 30.50.2 30.53.2 30.53.5 30.53.8 30.71.1 30.71.3 30.71.4 30.71.5 30.74 30.104.1 30.113.5 30.114.3 30.115 30.120 pr 30.120.1 30.120.2 31.8.3 31.28 31.29 pr 31.43.1 31.49.2 31.61.1 31.64 31.67.10 31.69.4 31.76 pr 31.77.16 31.82 pr 31.87.3 32.1.1 32.1.2 32.1.4 32.1.9 32.5.1 32.11 pr

2179 627 84–5,7 2414 2439 2178 2189 6255 2385 446 2326 2161 2443 2151,774 2120 3135 2336 297 443 2245 443 2117 2321 838–9 3139 673 2101 2187 10229,242–3 10229,241 10228 2433 270 1128 2408 6224,279 840–1 713 713 254 2408 2408 2304 1303 540 2296 6127 3135 99,50–1 950–1 2191 950 127,147,155 3115 1060

265

References to Legal Texts 32.11.1 32.11.2 32.11.6 32.11.8 32.11.12 32.11.13 32.11.15 32.11.19 32.11.20 32.11.21 32.13 32.29 pr 32.29.1 32.29.2 32.34.1 32.38.7 32.45 32.49 pr 32.49.4 32.50.4 32.52.1 32.52.4 32.52.5 32.52.7 32.52.7a 32.52.9 32.55 pr 32.55.1 32.55.2 32.55.4 32.55.5 32.55.6 32.55.7 32.64 32.68 pr 32.68.1 32.68.3 32.70 pr 32.70.9 32.70.11 32.70.12 32.89 32.97 32.100.1 32.100.4 33.1.3.2 33.1.3.3

6127 2481 2169 2443 459 459 6127 950–1 2718 262,187 2408 6235 6235 6341 10236 1076 6162 2469 2125,201 387 2351 2257 1116 150,163 294,329,771 2223 2519 6172 6169 2210 6169 969 6169 1163 3135 1166 2343 6169 938 249 10228,242–3 10229 10231 3135 2187 2187 260,210 270,154 684 6235 6235 2654 2293

33.1.7 33.1.19.1 33.1.21.4 33.2.15.1 33.2.27 33.3.1.10 33.4.1.4 33.4.1.10 33.4.1.12 33.4.2 pr 33.4.2.1 33.4.6.1 33.5.20 33.6.7 pr 33.6.9.3 33.6.11 33.6.13 33.7.4 33.7.8 pr 33.7.8.1 33.7.12.2 33.7.12.3 33.7.12.7 33.7.12.14 33.7.12.19 33.7.12.20 33.7.12.27 33.7.12.31 33.7.12.33 33.7.12.35 33.7.12.43 33.7.25.1 33.7.26.1 33.8.6.1 33.8.6.2 33.8.6.4 33.8.8.7 33.8.8.8 33.9.1 33.9.3 pr 33.9.3.1 33.9.3.2 33.9.3.5 33.9.3.6 33.9.3.8 33.9.3.9 33.9.3.10

270 2114 245 10112 6172 2106 2392 2114 2214 2178,781,783 2512 947 10254 6235,344 6344 6235 2778 2323 2188 6235 6162 2699 2123 6330 444 260,210 2563 6288 2278,479,485 6157,159,162 2685 3101 6133,137 6133–4,137 6235 6235 2351 257 2106,151 421 84–5,8 84–5,8 2141,255,263 2436,572 6162–3,172 6258 2159 617,49,210,238 6169 2320 6169 6170,173,182,234 6274

266 33.9.3.11 33.9.4.5 33.10.7.2 33.10.10 33.10.11 34.1.3 34.1.6 34.1.14 pr 34.1.14.1 34.1.14.2 34.1.14.3 34.1.20.1 34.2.9 34.2.19.2 34.2.19.3 34.2.19.7 34.2.19.8 34.2.19.10 34.2.19.13 34.2.19.17 34.2.19.20 34.2.23.2 34.2.25.10 34.2.25.11 34.2.27.1 34.2.34.2 34.2.39 pr 34.3.3.4 34.3.5 pr 34.3.5.2 34.3.5.4 34.3.7 pr 34.3.9 34.3.16 34.3.20.1 34.4.3.2 34.4.3.9 34.4.7 34.5.13.4 34.5.13.6 34.5.15 34.9.2.2 34.9.3 34.9.5.5 34.9.5.9 34.9.9.1 34.9.18

Table II 2589 2305–6 3138 6235 6235 6353 969 3120 2800 2177 716 829 2303 1134,165 2532 947 10254 10135,260 2769 2413 2193 645 6188,197 2299 917 2597 2247,470 2691 6162 2247 2516,617,632 2446,606 2642 251 2408,820 6235–6 2135 2151,275 219,72,184,201 2379 2415,506 955 2414 6243 2126 961 417 2758 244 2146 2305 2106 674 254 717 2663 628

34.9.22 35.1.7 pr 35.1.9 35.1.10 pr 35.1.14 35.1.15 35.1.23.3 35.1.40.3 35.1.40.4 35.1.50 35.1.52 35.1.62.1 35.1.68 35.1.71 pr 35.1.82 35.1.92 35.2.11.2 35.2.11.6 35.2.35 35.2.47 pr 35.2.49 pr 35.2.56.1 35.2.62.1 35.2.74 35.2.82 35.3.1.4 35.3.1.5 35.3.1.6 35.3.1.11 35.3.1.12 35.3.3.1 35.3.3.3 35.3.3.8 35.3.6 36.1.1.2 36.1.1.8 36.1.1.11 36.1.1.12 36.1.1.13 36.1.1.17 36.1.3.2 36.1.3.4 36.1.3.5 36.1.6.1 36.1.6.2 36.1.6.3

2178 6298 2275 252,126,734 950–1 2543 446 2207 6344 6235 2131 6353 2110 2820 2408 687 2142 1135 273,111,220,298 437 629 949–51,53 10256 713 2151 6113 2126 6246,252 2214 2647 2426 2238,771 937,47 10254 2149 2680 2193 2131 2114 2351 2186 2167 6360 2721 6127 2152 2339 277 950–1 275 272 950–1 2152 2162,184 955 2111 2336

267

References to Legal Texts 36.1.9 pr 36.1.11.2 36.1.13 pr 36.1.13.1 36.1.13.2 36.1.13.3 36.1.13.4 36.1.15.3 36.1.15.4 36.1.15.5 36.1.17 pr 36.1.17.2 36.1.17.3 36.1.17.6 36.1.17.8 36.1.17.9 36.1.17.13 36.1.18 pr 36.1.18.2 36.1.18.3 36.1.18.4 36.1.18.5 36.1.18.7 36.1.19.1 36.1.23 pr 36.1.23.3 36.1.23.4 36.1.23.5 36.1.31.5 36.1.34 36.1.38.1 36.1.46.1 36.1.57.1 36.1.67.1 36.1.67.2 36.1.67.3 36.1.72.1 36.1.83 36.2.5.1 36.2.12.1 36.2.14.2 36.2.20 36.3.1.8 36.3.1.11 36.3.1.13 36.3.1.19 36.3.1.20

2152 2141 2443 2244 2359 2150,187 2687 2718 2217 525 950–2 2598 3135 6127 954 2167 256 6127 2771 6124–5,127 945 6127 2327,339 6127 6124,127 1137 955 2130–1 2321 2320 1137 2218,506 951,55 260,528 2414 6113 947 10254 2126,336,633 446 6133,136 10257 2168 716 2106 677 721–2,28 2413 713 2304 2624 2149 2408 3141 935 2154 6284 2150,393 676 2103 248,805 6371 298 2114,126,720 2114

36.3.5.1 36.3.5.3 36.3.14.1 36.4.1 pr 36.4.1.1 36.4.3.1 36.4.3.2 36.4.5.3 36.4.5.6 36.4.5.12 36.4.5.14 36.4.5.15 36.4.5.16 36.4.5.21 36.4.5.22 36.4.5.25 36.4.5.28 36.4.5.30 36.4.15 37.1.3 pr 37.1.3.2 37.1.3.6 37.1.6.1 37.1.6.2 37.1.6.8 37.4.1.5 37.4.1.7 37.4.3 pr 37.4.3.4 37.4.3.5 37.4.3.9 37.4.4 pr 37.4.8.11 37.4.10.3 36.4.15 37.4.17 37.4.20.1 37.5.1 pr 37.5.1.2 37.5.3 pr 37.5.3.5 37.5.3.6 37.5.5 pr 37.5.5.6 37.5.5.8 37.5.6.4 37.5.8 pr

713 2408 713 2792 9127 2734 2457 2103 2370,397,457 2268 66 2135 2152 232 733–4,39,45 89 2274 2331 733–4,40 2131 2336 2148 2275 66 2328 2172 2103 6149 716 2513 275 2131 967 2108,336,720 2503,549 260 2165 2514 2165 2148 2127,194 10136 331,160 2252 2187 2326 2336 2131 2769 2171 2133 2431

268 37.5.8.1 37.5.8.2 37.5.8.4 37.5.8.6 37.5.10.1 37.5.10.2 37.6.1 pr 37.6.1.2 37.6.1.11 37.6.1.13 37.6.1.17 37.6.1.19 37.6.1.21 37.6.1.23 37.6.2.5 37.6.5 pr 37.6.9 37.7.9 37.8.1 pr 37.8.1.1 37.8.1.10 37.8.1.16 37.8.7 37.9.1.5 37.9.1.7 37.9.1.11 37.9.1.14 37.9.1.15 37.9.1.18 37.9.7.1 37.9.7.2 37.10.1.3 37.10.1.4 37.10.1.5 37.10.1.8 37.10.1.11 37.10.3.5 37.10.3.7 37.10.3.8 37.10.3.9 37.10.3.12 37.10.3.13 37.10.5.1 37.10.5.3 37.10.5.5 37.11.1.4 37.11.1.6

Table II 2139 2114 2172 2133 2287 2114 2192 3159 2129 2152,375,670 2142 2152,371 266 2155 9140 2431 797 2303,326 549 2154 220 2720 3159 2792 2771 254,138,150 2252 2106 298,820 2133 2131,171 2807 2126,392,757 2117 2167 2201 2131,705 221,158 2458 2481,817 6359 2108 462 2201 462 2386 2192–3,349,820 331 2108 2343 2151 2287 2322

37.1.1.8 37.11.1.9 37.11.1.11 37.11.2 pr 37.11.2.4 37.11.2.7 37.11.5.1 37.11.6 37.12.1 pr 37.12.1.4 37.12.3 pr 37.13.1.1 37.14.1 37.14.16 pr 37.14.16.1 37.14.17 pr 37.15.1.1 37.15.1.2 37.15.5.1 37.15.7.4 37.15.7.5 38.1.2 pr 38.1.4 38.1.7.1 38.1.7.5 38.1.7.7 38.1.9.1 38.2.1 pr 38.2.3.20 38.2.6 pr 38.2.8 pr 38.2.8.1 38.2.10.1 38.2.12.4 38.2.12.5 38.2.14.2 38.2.14.4 38.2.14.6 38.2.14.8 38.2.14.11 38.2.16.5 38.2.16.8 38.2.22 38.2.25 38.2.28 38.2.42.2 38.4.1.6

2351 2167 2499 3159 2135,252,602 2743 971 2385 2666 2513 3159 2417 6306 2172 2542 2114,769 2180,273,339 9117 1307 2506 10181 10186 2351 2104 2580 3164 2189 218,208 2538 2201 2125 2707 391,164 2247,259 2675 2720 2402 2134 260 2509 2734 2114 2497 2734 2393 966 2131 675 255 3106 2305 2781,783

269

References to Legal Texts 38.4.1.8 38.4.3.2 38.4.3.5 38.4.5.1 38.4.9 38.5.1.1 38.5.1.4 38.5.1.6 38.5.1.13 38.5.1.14 38.5.1.15 38.5.1.17 38.5.1.19 38.5.1.20 38.5.1.21 38.5.1.22 38.5.1.27 38.5.3 pr 38.5.6 38.5.12 38.6.1.3 38.6.1.4 38.6.1.5 38.6.1.6 38.6.5 pr 38.7.1 38.7.2.1 38.7.2.2 38.8.1.4 38.8.1.5 38.8.1.6 38.8.1.8 38.8.1.9 38.9.1.6 38.9.1.7 38.9.1.11 38.9.1.12 38.11.1.1 38.15.2.4 38.16.1 pr 38.16.1.1 38.16.1.4 38.16.1.7 38.16.1.11 38.16.2 pr 38.16.2.3 38.16.2.5

2142 2252 248 2438 270 2270,272 2429 988 232,117,141,315 2291 10238 2142 637 2114,359 2339 232 2315 2117 275 637 2108 2408 546 6338 2114,598 2244 3155 2252 220 3139 2131 966 966 2322 2323 2429 988 2321,511 2511 2127 2598 2598 2441 2114 966 2763 2219,414 82–3,10 331 2148 2134 2321 2201 2252

38.16.2.7 38.16.3.9 38.16.3.10 38.16.8 pr 38.17.1.3 38.17.1.6 38.17.1.10 38.17.1.11 38.17.1.12 38.17.2.2 38.17.2.8 38.17.2.9 38.17.2.17 38.17.2.29 38.17.2.30 38.17.2.31 38.17.2.34 38.17.2.37 38.17.2.40 38.17.2.41 38.17.2.43 38.17.2.44 38.17.2.47 38.17.5 pr 39.1.1.1 39.1.1.10 39.1.3.2 39.1.5 pr 39.1.5.2 39.1.5.3 39.1.5.4 39.1.5.10 39.1.5.12 39.1.5.16 39.1.12 pr 39.1.20.2 39.1.20.5 39.1.20.7 39.1.20.10 39.1.20.13 39.1.21 39.1.21.6 39.1.21.7 39.2.1 39.2.4 pr 39.2.4.1 39.2.4.5

2598 2495 955 3139 83,7 10133 264 2141 2427,502 6387 83–4 6304 2310 2252 418 418 418 2151,269,351 2435 419 2329 938 2321 2373,438 6191 2241 525 84,7,10 952 2721 2403 651 799 2438 651 799 2162,723 2723 2708 2162,336 2173 651 661 2339 2513 2339 2548 2339 75 2360 656 96 2331 2422 2804 7112

270 39.2.4.6 39.2.4.8 39.2.11.6 39.2.13 pr 39.2.13.2 39.2.13.21 39.2.15 pr 39.2.15.3 39.2.15.5 39.2.15.10 39.2.15.12 39.2.15.13 39.2.15.28 39.2.15.31 39.2.15.33 39.2.15.34 39.2.15.35 39.2.24 39.2.24 pr 39.2.24.9 39.2.26 39.2.28 39.2.29 39.2.30 39.2.30.1 39.2.37 39.2.40.1 39.3.1.9 39.3.1.16 39.3.1.17 39.3.1.20 39.3.1.21 39.3.1.23 39.3.2.5 39.3.2.6 39.3.4 pr 39.3.4.2 39.3.6.2 39.3.6.3 39.3.6.6 39.3.8 39.3.11.2 39.3.22 pr 39.4.3.1 39.4.5.1 39.4.7.1 39.4.12 pr

Table II 2195 7114 239 2193 2142 2476 2360 2165 2422 2820 267,156,160 6266 2179,677 2771 2360 2339 661 2189,315 2320 75 2173,431 2448 75 6259 75 2305–6 75 2141,327 2751 2820 3135 2479 6231 2217 525 662 952 2106 2125,274,282,351 6343 6344 2118 661 2108 248 2805 2331 2131 6209 270 2431 2232 6368 2537 3164

39.4.12.2 39.4.13.2 39.4.13.3 39.4.14 39.4.16.4 39.5.7.2 39.5.7.3 39.5.7.4 39.5.7.5 39.5.7.6 39.5.12 39.5.16 39.5.19.3 39.6.2 39.6.5 39.6.31.3 39.6.35.3 39.6.37 pr 40.1.4.1 40.1.4.12 40.1.14.1 40.1.34 40.2.5 40.2.8 40.2.16 40.2.20 pr 40.2.20.1 40.2.20.2 40.4.12 40.4.13.2 40.4.13.3 40.4.46 40.4.50 40.4.55 pr 40.4.56 40.4.60 40.5.4.1 40.5.4.2 40.5.4.3 40.5.4.5 40.5.4.11 40.5.4.14 40.5.4.15 40.5.4.16 40.5.4.17 40.5.4.22 40.5.12 pr

2152 2143 2151 2109 2769 265 2227 2117 2126,162 2512 2126,368 10132,229,258 2327,340 2445 2646 2101 1073 2162,321 2449 2511 716 1095 1139 1138 2161 972 2765 2362,503 2339 298,818 2223,321 6256 549 2187 717 3120 2185 2303 2129,142 2127,315, 327 9125 2322 2129 2180 9117 2180 9117 2315 2180 9117 717

271

References to Legal Texts 40.5.12.2 40.5.24 pr 40.5.24.2 40.5.24.5 40.5.24.8 40.5.24.9 40.5.24.10 40.5.24.12 40.5.24.14 40.5.24.16 40.5.24.17 40.5.24.18 40.5.24.19 40.5.24.21 40.5.26.1 40.5.26.2 40.5.26.3 40.5.26.6 40.5.26.7 40.5.26.8 40.5.26.10 40.5.29 40.5.30 pr 40.5.30.4 40.5.30.6 40.5.30.13 40.5.30.14 40.5.30.15 40.5.30.17 40.5.32 pr 40.5.37 40.5.45.1 40.5.45.2 40.5.46.3 40.5.49 40.5.52 40.5.55.1 40.7.2 pr 40.7.3.1 40.7.3.2 40.7.3.3 40.7.3.4 40.7.3.11 40.7.3.17 40.7.5 pr 40.7.6.1 40.7.9 pr

6365 2167 294 956 280,414 950–1 416 2706 6387 950–1 388–9 2361 2336,443 248 248,94 2245 256 2410,769 2260 950–1 950–1 950–1 248,154 2120 950–1 2514 2515 950–1 2279 267 6376 6373 2771 950–1 950–1 2408 2364 388 2511 3120 838–9 960 2152 10229 674 2511 272,201 2189 2133 464 2152 464 6237 2187 6255 2151 2109

40.7.9.1 40.7.9.2 40.7.16 40.7.34.1 40.7.39 pr 40.7.39.1 40.7.39.2 40.7.39.4 40.8.2 40.8.7 40.9.12.pr 40.9.12.1 40.9.12.2 40.9.12.6 40.9.14 pr 40.9.15 40.9.30.2 40.9.30.4 40.10.3 40.11.1 40.11.2 40.12.1.1 40.12.7.2 40.12.7.3 40.12.8.2 40.12.10 40.12.12.3 40.12.14 pr 40.12.18 40.12.22.1 40.12.27 pr 40.12.27.1 40.12.27.2 40.12.30 40.12.31 40.12.34 40.15.1.4 40.16.2.1 41.1.5.1 41.1.11 41.1.20.1 41.1.23.1 41.1.23.2 41.1.23.3 41.1.33 pr 41.1.33.1 41.1.41

2651 2190 955 10146,150 2443 6235 6235 2207 6235 10165 762 2108 2792 422 9129 2152 2703 6118 250 718 2168 2142 6362 10229 3109 2805 2126 2126 272,201 2431 2167,463,514,618 2618 3163 248 2322 6353 716 829 2478 6299 10229 104 674 2322 838–9 1075 2114 2155 9140 2167 2142 6110 7122 252 2329 940 6329

272 41.1.44 41.1.48 pr 41.1.63.3 41.1.65.3 41.2.4 41.2.6 pr 41.2.13.1 41.2.13.2 41.2.27 41.2.42 pr 41.2.42.1 41.2.43.1 41.2.44.2 41.2.46 41.2.51 41.3.3 41.3.6 41.3.10.2 41.3.44.4 41.4.7.4 41.9.1.2 41.9.1.4 41.10.1.1 42.1.2 42.1.4.1 42.1.4.3 42.1.4.4 42.1.4.5 42.1.5.1 42.1.15.1 42.1.15.3 42.1.15.4 42.1.15.6 42.1.15.7 42.1.15.8 42.1.15.9 42.1.15.11 42.1.16 42.1.26 42.1.51.1 42.1.57 42.1.59.1 42.2.6.4 42.2.6.6 42.3.6 42.4.2.4 42.4.3 pr

Table II 2210,508 1076 2210 2408 2315 2513 656 2250,440 256,599 623 10146 10147 675 624 624 2408 1091 2257 7119–20 6110–1 2304 2515 2142,413 2193 6281,316 2441,793 2108,512 2332 2327 2257 254,315,431 993–4 993–4 993–4 2319 250 993–4 2336 461 2152 10234–5 9125 254 2720 2414 250 2292 248,113,281 3135 2193,792 9127

42.4.3.1 42.4.3.3 42.4.5.1 42.4.5.3 42.4.7.2 42.4.7.3 42.4.7.4 42.4.7.5 42.4.7.7 42.4.7.11 42.4.7.13 42.4.7.15 42.4.7.16 42.5.9.4 42.2.9.5 42.5.15 pr 42.5.15.1 42.5.24.1 42.5.24.2 42.5.24.3 42.5.31.2 42.5.36 42.6.1.1 42.6.1.3 42.6.1.5 42.6.1.6 42.6.1.8 42.6.1.10 42.6.1.12 42.6.1.13 42.6.1.15 42.6.1.16 42.7.2.5 42.8.1.1 42.8.2 42.8.3 pr 42.8.3.1 42.8.6.1 42.8.6.2 42.8.6.7 42.8.6.9 42.8.6.11 42.8.6.14 42.8.10.1 42.8.10.3 42.8.10.5 42.8.10.6

293 2180 9117 2801 2142 286,710 2327 1267 2584 339 2335,514 298,820 2194 2183,200,585,727 2247 2160 6140,270 716 829 2167 2413 2383 3135 661 534 2126 2734 2740 2505 250,144,793 411 2118 788–90,92 2618 2295 248 2183,315,781,783 2196,443 9118 2321 2196 795 248 2199,189 3149 2315 2186 9120 2133 2512 2514 2182 9124 2183 9118 2364 2257 2149,503 6387 717,88–9.91 2114 248 9118

273

References to Legal Texts 42.8.10.10 42.8.10.11 42.8.10.13 42.8.10.14 42.9.10.16 42.8.10.20 43.3.1.1 43.3.1.2 43.3.1.3 43.3.1.4 43.3.1.8 43.3.1.9 43.3.1.11 43.3.1.12 43.3.2.1 43.4.1.1 43.4.3 pr 43.4.3.1 43.5.1.2 43.5.3.5 43.5.3.10 43.5.3.15 43.8.2 pr 43.8.2.1 43.8.2.10 43.8.2.22 43.8.2.28 43.8.2.32 43.8.2.33 43.8.2.37 43.8.2.40 43.8.2.42 43.8.5.32 43.9.1.1 43.12.1.2 43.12.1.5 43.12.1.14 43.12.1.15 43.13.1.3 43.13.1.7 43.13.1.8 43.13.1.12 43.14.1.7 43.15.1.1 43.15.1.6 43.16.1.1 43.16.1.2

2551 2396 2410,769 2769 2188 2131,315 3159 3159 2103 2145 6194 2413 2303 2376 2315 2430 3157 2327 788–9 2132 2358 2144 248 10142 3150 3155 3130,143 2149 2431 525 916,55 289 656,61 2190,673 2631 3150 3135 2168 2275,588 2339 2167 916 2374,377,701 2406 2336 2722 3148 2165,382 3159 2104 412

43.16.1.15 43.16.1.22 43.16.1.24 43.16.1.25 43.16.1.27 43.16.1.33 43.16.1.35 43.16.1.38 43.16.1.47 43.16.3.6 43.16.3.9 43.16.3.15 43.16.3.17 43.16.8 43.17.3.4 43.17.3.7 43.17.4 43.18.1.1 43.18.1.2 43.18.1.4 43.18.1.5 43.18.1.6 43.19.1.2 43.19.1.10 43.19.1.11 43.19.3.4 43.19.3.7 43.19.3.10 43.19.3.12 43.19.3.15 43.19.3.16 43.19.5.2 43.20.1.13 43.20.1.14 43.20.1.17 43.20.1.18 43.20.1.21 43.20.1.23 43.20.1.25 43.20.1.27 43.20.1.31 43.20.1.37 43.20.1.39 43.20.1.43 43.20.1.44 43.21.1.1 43.21.1.7

2344 2169 2108,186 9120 623 330 2133 2127 656 2179 6141 2781,783 2113 2326 2795 6224 656 3135 2315,364 3148 2140 2259 2336 2145 2511 9118 2187 656 2126 2720 2167 3148,153 2467 251,189 2135 2123–4 2339 2160,209,723 6264 2532 272 2183 9118 2108 267 2145 2134 2422 3149 2653 3118 2163 2722 3148 2186 9120

274 43.21.3.2 43.21.3.6 43.22.1.1 43.22.1.5 43.22.1.7 43.22.1.8 43.22.1.9 43.23.1.2 43.23.1.4 43.23.1.7 43.23.1.8 43.24.1.1 43.24.1.2 43.24.1.3 43.24.1.5 43.24.1.7 43.24.3.1 43.24.3.3 43.24.3.4 43.24.5 pr 43.24.5.1 43.24.5.12 43.24.6 43.24.7.1 43.24.7.3 43.24.7.4 43.24.7.6 43.24.9 pr 43.24.9.3 43.24.11.1 43.24.11.8 43.24.11.11 43.24.11.12 43.24.11.13 43.24.13.4 43.24.13.5 43.24.13.7 43.24.15 pr 43.24.15.4 43.24.15.8 43.24.15.11 43.24.15.12 43.24.21.1 43.26.1.2 43.26.1.3 43.26.2.2 43.26.4.1

Table II 2237,243 2306 2131 2339 3148 2112 2112 2566 2630 2145 6232 2157,425 656,61 2618 3163 272,201 2413 275 6232 2183 2130 2315 656,218 6257 2441 661 270 6140 661 2417 2462 2252 2339 267,160 6267 267,160,315 6210 2795 2252,315 2324 279,98,443,769 2149 2108,664 2822 2131 2315 2145,327 250 960 288 2192 331,160 2161

43.26.6.4 43.26.8.1 43.26.8.3 43.26.8.5 43.26.8.6 43.26.15 pr 43.26.20 43.29.3 pr 43.29.3.1 43.29.3.3 43.29.3.5 43.29.3.7 43.29.3.9 43.29.3.12 43.29.3.13 43.30.1.3 43.30.1.5 43.30.3.4 43.30.3.6 43.32.1.4 43.33.2 44.1.2.2 44.1.2.4 44.2.7 pr 44.2.7.1 44.2.7.2 44.2.7.3 44.2.7.5 44.2.9 pr 44.2.9.1 44.2.9.11 44.2.11 pr 44.2.11.10 44.3.5.1 44.4.2 pr 44.4.2.5 44.4.4.1 44.4.4.6 44.4.4.8 44.4.4.10 44.4.4.15 44.4.4.16 44.4.4.17 44.4.4.18 44.4.4.21 44.4.4.22 44.4.4.23

289,155,722,770 9140 6290 446 2210 2167,309 2192 10229,237 299,805 2247 2513 2501,618 2333 388,90 439 287 2186 380 517 788–90 2732 671 2422 2327 2367 2641 2275 2315 2154 2511 2180,327 9117 2315 248 6140 6140 436 2334 2111 947 10254 2186 9120 2740 272 6289 2189 2160,184 6243,268–9 2351 9118 661 2368–9 2149 6140 2315 2435 251,128,223

275

References to Legal Texts 44.4.4.24 44.4.4.26 44.4.4.29 44.4.4.31 44.4.4.33 44.4.4.34 44.4.7.1 44.5.1.6 44.5.1.8 44.5.1.10 44.5.1.12 44.6.1.1 44.7.1.15 44.7.25 44.7.44.6 44.7.47 44.7.58 45.1.1.2 45.1.1.3 45.1.1.5 45.1.1.6 45.1.3.1 45.1.26 45.1.29.1 45.1.38 pr 45.1.38.3 45.1.38.9 45.1.38.12 45.1.38.22 45.1.41 pr 45.1.58 45.1.63 45.1.70 45.1.72.2 45.1.91.1 45.1.91.6 45.1.99 pr 45.1.131.1 45.1.137.2 45.2.3 pr 45.2.3.1 45.2.8 45.2.9 pr 45.2.12.1 45.2.17 45.3.7 pr 45.3.11

248 2174,769 251 2294 2114,132 2183 2351 2315,351 2201 2114 6208 299,805 232,48,327 2232 1015 2142 684 1080 2130,513 299,805 2666 127–8,156 2106,775 3115 2193 2242 261 2199 2186 9120 2275 248 2335,513–514 2152,274,280,293 2103 2126 183,125 622 2111 2433 2207 2196 611 270 272,201 2170 10229 2433 1057 2120 6245,251 2180 9117 2138,241,315

45.3.12 45.3.13 46.1.6.1 46.1.8 pr 46.1.8.1 46.1.8.3 46.1.8.5 46.1.8.6 46.1.8.7 46.1.8.8 46.1.8.12 46.1.33 46.1.51.2 46.1.56.1 46.1.71 pr 46.2.2 46.3.5.2 46.3.7 46.3.12.1 46.3.12.3 46.3.14.1 46.3.24 46.3.27 46.3.43 46.3.45 pr 46.3.45.1 46.3.72.4 46.3.73 46.3.78 46.3.98.3 46.3.103 46.4.5.5 46.4.6 46.4.8 pr 46.4.8.2 46.4.8.4 46.4.13.1 46.5.1.4 46.5.1.5 46.5.5 46.5.10 46.6.4.2 46.6.4.3 46.6.4.7 46.7.3.3 46.7.3.6 46.7.3.7

2241 3135 272,201 3130 9118 2138 9123 2169 2323 961 2170 2149 2408 684 254 2113 84–5,7 2351 2147 2223 2564 2374,493 611 10141 10228 10228 270 2207 2664 2426 2771 2695 2113 2173,666 650 3128 2327,337 2697 2695 2515 10228 2183 2126 2327 2180,360 9117 2321 2327

276 46.7.3.8 46.7.5.3 46.7.5.4 46.7.5.6 46.7.5.7 46.7.5.8 46.7.13 pr 46.8.12.2 46.8.12.3 46.8.15 46.8.20 46.8.21 47.1.1 pr 47.1.2.5 47.2.1.1 47.2.3.1 47.2.3.2 47.2.3 pr 47.2.4 47.2.7.1 47.2.7.3 47.2.12.2 47.2.14.17 47.2.17.1 47.2.17.2 47.2.17.3 47.2.18 47.2.21 pr 47.2.21.5 47.2.21.8 47.2.21.10 47.2.22.1 47.2.25.2 47.2.27 pr 47.2.39 47.2.41.3 47.2.42.20 47.2.43.5 47.2.43.8 47.2.43.9 47.2.43.11 47.2.46 pr 47.2.46.5 47.2.46.8 47.2.48.7 47.2.50.3 47.2.50.4

Table II 2180 9117 2186,327 9120 2120 2149,151 2142 2183 947 10254 2465,554 3133,135 2795 2207 2135 10163 2117,126 2472 2110 272,201 2723 3130 2431 2118 218 2103,259,438,769 2259 2413 2117,514 2351 1073 2132 270 244 2117 2433 2172 2132,167 250 10257 2199 3135 2188 250 3135 2155 9140 2118–9,509,795 2178 2106,114 2169 2529 975

47.2.52.6 47.2.52.18 47.2.52.20 47.2.71 47.2.93 47.3.2 47.4.1.1 47.4.1.2 47.4.1.3 47.4.1.6 47.4.1.7 47.4.1.11 47.4.1.14 47.5.1.2 47.6.1 pr 47.6.1.1 47.6.1.2 47.8.2.1 47.8.2.8 47.8.2.10 47.8.2.11 47.8.2.22 47.8.2.23 47.8.2.27 47.8.4.3 47.9.1.1 47.9.1.2 47.9.3 pr 47.9.3.3 47.9.3.6 47.9.3.7 47.9.10 47.9.11 47.9.12 pr 47.10.1 pr 47.10.1.2 47.10.1.8 47.10.1.9 47.10.3.1 47.10.3.4 47.10.5.3 47.10.5.8 47.10.5.10 47.10.6 47.10.7.1 47.10.7.2 47.10.7.4

248 10234–5 1160 1089,251 2108,771 2162,776 265 2192,590,618,696 331,160,168 2795 446 2151 2167 2769 733–4,36,53,67 2339 2130 282 2722 3148 2351 2720 3151 2736 2129 2322 2247 2167,440 251 298,252,322,818 3149 2275,323 2511 2126,130 3130 250 10182 3148 446 835 2275 385 6140 6140 2327 2514 2315 2533 795 3135 684 2275,351,418,759 2162,336,450,756 9126 2534

277

References to Legal Texts 47.10.7.5 47.10.7.6 47.10.7.7 47.10.7.8 47.10.9 pr 47.10.9.2 47.10.9.4 47.10.11 pr 47.10.11.1 47.10.11.7 47.10.11.9 47.10.13.2 47.10.13.4 47.10.13.5 47.10.13.7 47.10.15.19 47.10.15.23 47.10.15.26 47.10.15.27 47.10.15.29 47.10.15.34 47.10.15.35 47.10.15.40 47.10.15.41 47.10.15.43 47.10.15.44 47.10.15.48 47.10.17.1 47.10.17.7 47.10.17.9 47.10.17.13 47.10.17.19 47.10.30 pr 47.10.35 47.11.5 47.11.6 pr 47.11.7 47.11.9 47.11.10 47.12.3.3 47.12.3.4 47.12.3.5 47.12.3.7 47.12.3.9 47.12.3.11 47.13.1 47.14.1 pr

6140 733–4,49 2636,698 2605 2154 2201 396 2135 2489 2301 543 2172 2514 49 656,61 2315 280,414,769 3117 2131 2162 2747 2678 2358 397 398 2730 2613 398 397,99 397 2327 2288 2109 2147 2109,132,156 2173 990 2576 2487 2108 1162 3135 48 57 1163 730–1,37,69 730–1 2151 730–1,69 2259 2364,517 10182 6352

47.14.1.1 47.14.1.3 47.14.1.4 47.15.2 47.15.6 47.17.1 47.18.1.2 47.20.3.1 47.20.3.2 47.22.1.2 47.22.4 48.1.5.1 48.2.4 48.2.5 48.2.6 48.2.7.2 48.2.19 pr 48.3.4 48.3.6.1 48.5.2.3 48.5.2.5 48.5.2.6 48.5.4.2 48.5.6 pr 48.5.6.1 48.5.10.2 48.5.14.1 48.5.14.3 48.5.14.5 48.5.14.7 48.5.14.8 48.5.14.10 48.5.16 pr 48.5.16.1 48.5.16.4 48.5.16.6 48.5.18 pr 48.5.18.1 48.5.18.2 48.5.18.3 48.5.18.6 48.5.24.1 48.5.24.4 48.5.26.1 48.5.26.4 48.5.28.2 48.5.28.11

2605 716 829 2463 2182 762 2113 2126 232,152,477,568,618 2112,144 2410 3123 2410 2471 2172 2461 93 248 2175 2436 3136 2544 248 838–9 260 2408 3140 2114,540,723 6118 9130–1 2473 440 9127 2514 9130–1 2351 9124 2488,672 2167 2559 2187,211 2621 9123 2151 2503 9125 2150 2321 2210 248 2252 2486

278 48.5.28.16 48.5.30 pr 48.5.30.2 48.5.30.3 48.5.30.5 48.5.30.8 48.5.30.9 48.5.39 pr 48.5.39.4 48.5.39.5 48.5.39.6 48.5.39.8 48.6.6 48.8.4.2 48.9.6 48.10.6 pr 48.13.7 48.15.1 48.15.3 pr 48.16.13 pr 48.16.14.5 48.16.14.10 48.16.14.13 48.17.1.4 48.18.1.1 48.18.1.7 48.18.1.10 48.18.1.13 48.18.1.15 48.18.1.16 48.18.1.17 48.18.1.18 48.18.1.20 48.18.1.22 48.18.1.23 48.18.1.26 48.18.1.27 48.18.3 48.18.4 48.18.10.2 48.19.1.2 48.19.2.1 48.19.2.2 48.19.3 48.19.6 pr 48.19.8.5 48.19.8.7

Table II 2165 2571 2384 9126 2502 2621 2172 2433 1057 713 713 713 713 6352 6352 6130 2114 274 918 10138 2769 717 2322 699 699 699 673 6352 2769 827 2112 827,34 6352 827 824–5 827 2169,581 6352 2131 96 2777 92 267,124 6352,374 733–5,56,65 2414 6382 254 2106 2172 2322 2215 917 2173,216,802 824–5 2142,167,441

48.19.8.11 48.19.8.12 48.19.9.1 48.19.9.3 48.19.9.4 48.19.9.6 48.19.9.8 48.19.9.10 48.19.9.11 48.19.9.13 48.19.9.14 48.19.9.15 48.19.10.2 48.19.16.6 48.19.17.1 48.19.28.6 48.19.32 48.20.6 48.20.7 pr 48.20.7.1 48.21.1 48.21.2 pr 48.21.3 48.22.6.1 48.22.7.9 48.22.7.10 48.22.7.11 48.22.7.12 48.22.7.13 48.22.7.15 48.22.7.22 48.22.18 pr 48.23.2 48.24.2 49.1.1. pr 49.1.1.1 49.1.1.3 49.1.2 49.1.3 pr 49.1.3.3 49.1.4.5 49.1.5.1 49.1.6 49.1.8 49.1.10.4 49.1.12 49.1.13 pr

2688 2172,688 911–2,64 2103 2187 2144 2723 3135 2506 2126 2132 249,142 2384 2304 3124 3136 245 2398 7111–2 2792 6352 2721 2408, 3106 2795 720 673 2111 918 827 2315 2106 2326 181 2792 182 10163 2769 2491 6357,371 1307 2513 10163 2431 525 922 2436 2161 216 2132 438,52 2183 2414 10185 10229

279

References to Legal Texts 49.1.13.1 49.1.14 pr 49.1.16 49.1.25 49.2.1.4 49.3.1 pr 49.3.1.1 49.4.1 pr 49.4.1.4 49.4.1.5 49.4.1.9 49.4.1.11 49.4.1.14 49.5.5.3 49.7.1.1 49.9.1 49.12.1 49.14.3 pr 49.14.6 pr 49.14.13.5 49.14.13.6 49.14.14 49.14.16 49.14.18.10 49.14.20 pr 49.14.25 49.14.27 49.14.29 pr 49.14.29.2 49.14.30 49.14.31 49.14.33 49.14.34 49.14.42.1 49.14.43 49.14.49 49.14.50 49.15.9 49.15.12.17 49.15.15 49.15.21 pr 49.15.21.1 49.15.27 49.16.3.7 49.16.3.17 49.16.5.6 49.16.6.7

10229 216,32,200,692 10210 2103 540 2769 922 2387 2387 248,618 2387 289,257 2179–180 9117 2186 9120 655 9120–1 2372 2315 6357 2200 688 2436 716 716 2193 2103 716 829 673–4 2546 2417 717 84–6 732–3,69 2121,126,545 838–9 719 6362 10229 720 2145 950–1 717 6103 2172 839–40 763 2811 10163 10168 6235 2140 2104 716 717

49.16.12.1 49.17.2 49.17.6 49.17.8 49.17.9 49.17.19 pr 49.17.19.3 49.18.2 pr 49.18.2.1 49.18.5 50.1.1.1 pr 50.1.1.1 50.1.2.5 50.1.6.2 50.1.8 50.1.11 pr 50.1.25 50.1.27.2 50.1.27.3 50.1.33 50.1.37.2 50.1.38.3 50.2.1 50.2.2.2 50.2.2.3 50.2.2.5 50.2.2.6 50.2.2.8 50.2.3 pr 50.2.3.1 50.2.3.2 50.2.3.3 50.3.1 pr 50.4.1.1 50.4.1.3 50.4.3.1 50.4.3.3 50.4.3.5 50.4.3.6 50.4.3.10 50.4.3.13 50.4.3.15 50.4.4 pr 50.4.4.2 50.4.6 pr 50.4.6.1 50.4.6.2

716 2149 2223 250,247 2598 947–8 10254,256 691 716 716 10192 10166 10193 179 713 2730 7114 6386 10215 2137 713 2112 2435 2723 182 10199 10199 10182 115 2734 2324 2766 10193 2366,452 2467,514 911–2 2172 367 826 2704 10203 10200 10188 10197 10212 10206,213 10202 10163 10182 10193 10174 6352 2512 827

280 50.4.6.5 50.4.17.1 50.4.18.1 50.4.18.26 50.4.18.29 50.5.1 pr 50.5.2 pr 50.5.2.1 50.5.2.2 50.5.2.7 50.5.2.7a 50.5.2.8 50.5.5 50.5.8.4 50.5.13.2 50.5.13.3 50.6.1 50.6.2 50.6.6.2 50.6.6.13 50.7.2.2 50.7.7 50.8.2.2 50.8.2.3 50.8.2.4 50.8.2.6 50.8.2.9 50.8.2.10 50.8.3.2 50.8.4 50.8.12.3 50.9.1 50.9.4 pr 50.9.4.2 50.10.1 pr 50.10.2.1 50.10.2.2 50.10.5 pr 50.11.2 50.12.1 pr 50.12.1.5 50.12.1.6 50.12.2.2 50.12.3 pr 50.12.5 50.12.6.1 50.12.6.2

Table II 2126 10193 10200 10204 116 2143 10180 10207 10178 10163 10182 10175,201 10182 105,225 326 521 2813 1016 10193 6364 6364 10193 10163 6352 827 10170 10182 10184 10184 10180 10182 10165 549 716 10165,182 2624 980 2337 984 10165 10182 10165,182 6354 3122 999–100 6354 999–100 999–100 2601 2410 10228 827 827

50.12.6.3 50.12.8 50.13.1 pr 50.13.1.3 50.13.1.4 50.13.1.5 50.13.1.6 50.13.1.10 50.13.1.11 50.13.1.12 50.13.1.13 50.13.1.15 50.13.2 50.13.3 50.14.2 50.14.3 50.15.1 50.15.1 pr 50.15.1.1 50.15.1.2 50.15.1.3 50.15.1.4 50.15.1.5 50.15.1.7 50.15.1.9 50.15.1.10 50.15.1.11 50.15.3.1 50.15.4.10 50.15.8 50.15.8.6 50.16.3 pr 50.16.6.1 50.16.10 50.16.12 50.16.15 50.16.19 50.16.26 50.16.42 50.16.45 50.16.46 pr 50.16.46.1 50.16.49 50.16.60 pr 50.16.60.1 50.16.63

827 6353 983 2343,567 320 248 326 2453 38,22,74 2538 2112 6356 839–40 2488,672 2414 6356 839–40 839–40 248 317 10173,176,180,182 10171,182 250,618 2520 3130 1154 177,93 2602,626, 704,715–6 512,14 911–2 2417 716 829 2417 511 911–2,25 2417 511 911–225 1272 911–2 2417 511 925 911–2 911–2 2417 511 925 2417 511 925 2470 911–2 2769 1153 1273 2431 2431 414 2595 1092 66 2730 647 6110 330 2322 2275 2767 66 1116 2135 2795

281

References to Legal Texts 50.16.77 50.16.99.1 50.16.99.2 50.16.111 50.16.130 50.16.131.1 50.16.141 50.16.164 pr 50.16.164.1 50.16.167 50.16.177 50.16.178 pr 50.16.178.2 50.16.185 50.16.192 50.16.195.2 50.16.195.3 50.16.195.4 50.16.199 pr 50.16.207

6343 1149 2429 989 2341,792 2275 2763 2132 2103,494 2154 960 294,329,343 938 220 3130 2136 2275 2322 968 2261 2244 2560 2262,723 6277

50.16.213.2 50.16.216 50.16.220.1 50.16.233.2 50.16.239.6 50.16.244 50.17.9 50.17.23 50.17.31 50.17.32 50.17.34 50.17.44 50.17.47 pr 50.17.65 50.17.122 50.17.150 50.17.156.1 50.17.157.2 50.17.209

10127 9134 689 3129 6342 2410 2274 2199 9135 330,43,110 2274,340 2259 2618 220 388 2673 2259 2131 2256

9. Justinian’s Code (Codex Iustinianus, CJ) C Cordi 3 2.1.3 2.3.2 2.3.3 2.3.4 2.3.9 2.11.8 2.12.3 pr 2.12.4 2.18.10 2.31.1 3.8.1 3.9.1 3.12.2 3.26.2 3.28.4 3.32.3 3.35.1 4.1.2 4.2.1 4.14.3 4.32.4

833 1178, 184 1179,196 1180 1221 10117 2351 1210 1220 10109 1214 1197,208–9 1178,184 854 1204 1220 10107 10116 1353 1199,220,223 10113 1214

4.44.1 4.50.2 4.61.1 4.61.3 4.65.4.1 5.12.4 5.15.1 5.18.2 5.37.1 5.62.1 5.62.3 5.66.1 5.69.1.2 5.75.1 6.2.2 6.3.1 6.26.2 6.35.3.2 6.44.1 6.46.2 pr 6.50.5 6.54.6

1297 10115 10103 1220 1216 151,67,301,309 1084 1223 111,203,219,221 1202,212–3 2351 1198 226 1223 1181 1223 1236 1201,211 1222–3 1221,224 10201 1235 1220 747 746

282

Table II 388 1228 10106 1221 731,85 12077.56.1 10105 1226 10104 1310 1205,223,226 1217 1221 1223 1227 151,67,173,286,306 105,225 1206 1223

7.2.15.1a 7.8.3 7.8.4 7.45.1 7.49.1 7.53.1 7.62.1 7.64.1 7.66.2 7.74.1 8.2.1 8.13.4 8.15.2 8.18.1 8.37.4 8.40.3 pr 8.40.3.1

9.1.3 9.8.1 9.9.9 9.20.16 9.41.2 9.41.11.1 10.32.5 10.40.7 pr 10.42.8 10.44.1 10.44.2 10.51.3 10.52.5 10.61.1 10.64.1 12.33.1 12.35.4

1296 10110 1353 1355 10139 1200 115 10212 180 10203 10191 10193–4 10201 10198 824 10198 1215 747

10. Justinian’s Teaching Manual (Iustiniani Institutiones, J.Inst.) 2.17.8

111,218

2.20.12

6387

11. Inscriptions and Papyri AE 1962.228 AE 1966.436 AE 1971.534 AE 1988.1051 CIG V 853 CIL III 14203.8 CIL V 28, X 5286 CIL VI 2086(2) CIL VI 2126 CIL VI 4.1.27118 CIL IX 338 CIL X 1601 CIL XI 3587 CIL XI 6337 CIL XIII 7338 CIL XIV 5347

1263 1110 120 152,71,86,312 515 185 1223 764 764 1105 120 1330 185 172 1143 1263 1175

CIL XV 7773 IKEphesos 2 (1979) no.217 ILS 477 JÖAI 45 (1960) Beibl. 82 no.8 P. Krüger (1881) 86 P. Krüger (1881) 88 P. Krüger (1881) 89 P. Krüger (1884) 171 P. Krüger (1884) 173 P. Krüger (1884) 176 P. Krüger (1884) 177 P. Krüger (1884) 179 P.Oxy. 2565 Spicil. Solesm. ed. Pitra 1.282

172 1110 1302 1110 549 549 549 549 549 549 549 630 549 630 153 2241 952

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Index Aedinius Julianus 32 Aelius Coeranus 20 Aemilius Macer, see Macer Aemilius Papinianus, see Papinian Africa 5–6, 15, 18, 32, 85, 89 Africanus 129–30, 134, 136–7, 139, 147, 153 Ahenobarbus 13 Albinus 5–6, 11 Alexandria 99 Alexander Severus 7–8, 10–1, 14, 18, 27–36, 83, 165, 211, 215, 217, 220, 223 Alexander the Great 10 Alexianus, see Alexander Severus Alfenus Varus 151 Annia Faustina 27 Annius 9, 14, 35 Annius Vinicianus 14 Antioch 10–11 Antoninus 2, 7, 25–6, 156, 169–71, 203, 209, 213 and see Marcus Aurelius, Caracalla, Elagabal Apollonius 81–2 Aquilius Gallus, see Gallus Arabia 10, 18, 95 Arcadius Charisius 227 Aristo 99, 134, 143–4, 146–7, 149–50 Arrianus 130, 142–3 Arrius Menander, see Menander Asia 18, 228 Athenaeus 11–13 Athens 22 Atilicinus 144–7, 156 Atticus 78 Aufidius Chius 149–50 Aufidius Namusa 151 Augustan History 6, 18, 27–9, 31, 33–5, 83, 215 Augustine 101 Augustus (emperor) 145, 154 Aulus Gellius, see Gellius Aurelius 25 Aurelius Victor, see Victor Bassianus, see Caracalla Berytus 10 Bithynia 10 Blackstone vii Britain 2–3, 21

‘Caecilius’ 141 Caelius Sabinus 134, 141 Caesar, see Julius Caesar Callistratus 129, 135–7, 152–4, 160, 210 Callistus 7 Calvinus 13 Canusium 32 Cappadocia 10 Caracalla (emperor) viii, 2–3, 5–7, 9, 11, 14–15, 17, 19–27, 35, 39, 84–5, 89, 97, 101, 137–8, 152, 154, 156–8, 161–71, 176–87, 189–91, 193–5, 198–200, 203–4, 207, 209–10, 228 Antonine constitution viii, 5, 24–6, 35, 80, 84–6, 90, 135, 152, 169, 208 Carnuntum 10 Carthage 11 Cartilius 150 Cascellius 145 Cassiani 210 Cassius Longinus 130, 134, 141, 143, 146–9, 151, 211 Cassius Dio, see Dio Cato 148 Celsus senior 151 Celsus junior 10, 45, 55, 77, 91, 128–32, 134, 137, 141–2, 147–51, 202, 210, 229 Centumcellae 9, 13 Cervidius Scaevola, see Scaevola Chrestus 30–2, 36 Chrysippus 80–2, 90, 137 Cicero 14, 26, 37, 77–80, 84, 92 Cius 10 Civitavecchia, see Centumcellae Claudius 154 Claudius Pompeianus, see Pompeianus Claudius Saturninus 143 Clodius Albinus, see Albinus Cocceius Nerva, see Nerva Comazon 28, 30 Commodus (emperor) 1–2, 4, 12, 30, 154–5, 209 Constantine I (emperor) 124, 212, 220–2, 225, 228 Corbulo 13–14 Cyprian 225 Cyzicus 10 Dalmatia 32 Demosthenes 83, 90

298

Index

Didius Julianus (emperor) 3, 6 Didius Marinus 32 Dio 3, 8, 25, 30–3, 84, 170, 187, 209 Diocletian (emperor) 9, 221–2 Domitian (emperor) 81, 154 Domitius 13, 35 Domitius Honoratus 32 Domitius Ulpianus, see Ulpian Du Tillet 207 Egypt 10, 15, 18, 30–2 Elagabal (emperor) 6–8, 11, 26–30, 33, 35–6, 165–6, 203 Emesa 7, 11, 27 Epagathus 32, 36 Ephesus 98, 209, 227 Euphrates 79 Eutropius 8, 18, 215 Festus 8, 18, 215 Flavianus 30–2, 35–6 Florentinus 88 Fulcinius Priscus 134, 144, 147–9 Gadara 9 Gaius 40, 44, 72, 79, 84, 134–7, 153, 156, 207–9, 217, 228 Galatia 10, 17 Galba (emperor) 31 Galen 1, 12, 77, 89, 225 Gallus Aquilius 145, 147 Gaul 14, 17 Gellius 83 Geminius Chrestus, see Chrestus Gessius Marcianus 24 Geta (emperor) 2–3, 6, 21–3, 25, 35 Gordian III (emperor) 154 Greece 85 Gregorius viii Gregory (wonder-worker) 83 Grotius vii, 35 Hadrian (emperor) 10, 45, 86, 91, 149, 154, 160, 184 Herennius Modestinus, see Modestinus Hermogenianus vii, 28, 206, 222 Herodian 3, 8, 10, 23, 34 Hippolytus 7 Homer 90 Honorius (emperor) 33 Iavolenus Priscus 10, 45, 55, 124, 129, 145–6, 150–1, 153 Ilium 209 Irnerius vii, 35 Italy 4, 6, 17

Julia Domna 5–7, 17, 21–2, 24, 81–2 Julia Maesa 5, 27, 30–1 Julia Mammaea, see Mammaea Julia Paula 29 Julia Soaemias, see Soaemias Julian (emperor), see Didius Julian (lawyer) 16, 91, 98, 100, 102, 128–34, 136–7, 139, 141–3, 146–50, 153, 155, 177, 202, 229 Julius Caesar 154, 225 Julius Flavianus, see Flavianus Julius Paulus, see Paul Juventius Celsus, see Celsus Justinian’s compilers viii, 19–21, 23, 27, 40, 43–4, 105–6, 124, 131, 134–5, 140–1, 144, 150–1, 155, 171, 213, 223, 229 Labeo 85, 91, 128–30, 132–5, 137, 142–3, 145–53, 179, 211, 229 Lactantius 8, 225 Laetus 6 Laodicea 10 Larensis 12 Licinius (emperor) 220 Licinius Rufinus 33, 207, 211, 218 Lorenius Celsus 32 Lydia 25 Macer 161, 223 Macrinus (emperor) 4, 11, 14, 22, 26–7, 31, 35, 158, 165–6, 170–2, 179, 181, 185 Maecenas 84 Maecianus 130, 134, 139–40 Mammaea 5, 7, 24, 27, 30–1, 34, 36, 83, 190 Marcellus 23, 41, 55, 59, 124, 128–32, 134, 136–7, 147–8, 156, 170, 202–3 Marcianus 17, 49, 72, 75, 80, 83, 88, 91, 124, 129, 134, 136–8, 152–4, 161, 183, 211 Marcus Aurelius (emperor) 1–2, 6, 21, 23, 27, 59, 80, 89, 139, 154–6, 164, 169, 177–8, 191, 195, 209, 221–2 Marius Maximus 8 Masurius Sabinus 130, 134, 141, 143, 145–50, 211 Mauricianus 148, 150, 210 Maximian (emperor) 9 Mela 147–9 Meleager 9 Menander 22–4, 152, 160 Messius 4 Minicius 131, 147 Modestinus 4, 8, 17, 30, 33, 35, 136, 153–4, 161, 207–8, 212, 215, 224–5, 227–8 Moses 207 Mucius 130, 134, 142, 145, 147

Index Neratius 100, 130, 140, 143, 146–7, 149–50 Nero (emperor) 150, 154 Nerva senior 134, 144–7, 150, 156 Nerva junior 150 Nerva (emperor) 154 Nicaea 10 Niger 2, 8, 10, 18 Octavenus 134, 144 Ofilius 130, 134, 142, 145, 147 Origen 7, 78, 82–3, 216 ‘Oulpianos’ 11–13 Paconius 149 Palmyra 11 Pannonia 3, 32–3 Papinian 4, 6, 14–22, 30–1, 35, 37, 55–6, 63, 75, 89, 91, 96, 98, 124–5, 128–32, 134–8, 152–3, 155–6, 160, 177–9, 210, 225, 228–9 Papirius Dionysius 30 Papirius Fronto 137 Papirius Iustus 154–5 Paul (lawyer) 3–4, 8, 16–7, 19, 25–9, 33, 37, 40–1, 55, 63, 74, 77, 88, 91, 98, 124, 128–9, 132, 134–9, 141, 143–4, 146–8, 150–5, 161, 166, 171, 179, 204, 206, 210–2, 223, 227–8 ‘Paul’ (author of Sentences) 206, 212, 217, 222, 228 Paul of Tyre 10 Pedius 130, 134, 140, 147 Pegasus 150–1, 156 Pergamum 12 Pertinax (emperor) 3, 10, 154 Pescennius Niger, see Niger Phliscus 81 Philip (emperor) 221 Philostratus 81 Pius (emperor) 86, 150, 154–5, 157, 160–1, 164, 169, 177, 210 Plato 78, 90 Plautius 147–8, 150 Plautianus 6, 19–20, 30 Pliny junior 79, 211, 225 Pompeianus 25 Pomponius 40, 63, 74, 98, 128–32, 134, 136–7, 141–4, 146–7, 149–53, 179, 211 Porphyry 82 Pothier vii Proculus 99, 130–1, 143, 146, 149–51 Publicius 149 Puteolanus 130, 142–3 Puteoli 10 Quintilian 14, 37, 84, 225 Quintus Mucius, see Mucius

299

Raphanae 11 Rome 3, 6, 8, 10, 13, 15–16, 19, 22, 26, 30, 32–3, 35, 77, 104, 186, 222 Sabinians 210–11 Sabinus, see Masurius, Caelius Saittai 25 Sallust 225 Salvius Julianus, see Julian Santa Marinella 9 Savigny vii, 35 Scaevola 98, 128–30, 134, 136–7, 139, 147, 152–3, 156, 211, 215, 222, 224–5, 227 Scotland 3, 16 Seneca 84 Septimius Severus (emperor) 1–3, 5–6, 10–11, 14, 16–23, 26–7, 35, 38–9, 85, 89, 97, 125, 131, 133, 137–8, 152–6, 159–64, 166–70, 177–9, 181–6, 189–90, 193–4, 198–200, 204, 207 Servius Sulpicius 130, 142–3, 145, 147, 151 pupils attending 147 Servius Tullius (king) 86 Severus, see Septimius Severus, Alexander Severus Sextus Caecilius, see Africanus Sidon 11 Sinai 229 Soaemias 5–6, 27 Syncellus 8 Syria 5, 10, 18, 85, 216 Coele 1 Phoenice 9, 11 Tarautas, see Caracalla Tarrutienus Paternus 4 Tertullian 83, 130, 142–3, 147 Theodosius II viii Theophrastus 90 Thyatira 211 Tiberius (emperor) 144 Titius Aristo, see Aristo Titus (emperor) 154 Titus Antoninus, see Pius Trajan (emperor) 45, 55, 140, 154, 160 Trebatius 145, 147, 150 Tribonian 124, 132, 140, 228–9 Trollope 169, 187 Tryphoninus 4, 88, 135–7, 139, 153, 155, 166 Tubero 145, 148–9 Tyre 1, 7–14, 29, 35, 92, 130 Ulpian adjectives 69–71 adverbs 71–3 analogy 51–2, 94 art 76–8

300 Ulpian (cont.): background 1–14 blocks of commentary 172–6 campaign in Britain 21 career 14–35 concern for weak 89–90 dictation viii empirical method 94–104 equality 85–6, 101 equity 93–4, 98–100 first person 55–9 future tense 89–62 human rights viii, 84–93 humanity 100–1 interpretation 96–7 knew Aramaic? 14 ‘nature’ 79–81 nouns 67–9 philosophy viii, 76–93 readership 90–3, 127 relation to Caracalla 22–6, 161–71 relation to Tyre 9–14 religion 82–4 replies by 207 reputation 227–9 rivalry with Paul? 137–8 secretary for petitions 18–22 slavery 86–8 sources 126–57 first hand 128–44 imperial 152–7 second hand 149–51 source books 145–8 Stoicism 80–3 style, oral viii, 37–75 compared to others 136–7 variations in 172–7 use of Greek viii, 5, 14, 89–92 use of Punic etc. 89 utility 92–4, 98 verbs 64–7 word order 62–4 working plan 158–205 WORKS: Latin and English titles xii-xiii Adultery 118, 123, 139, 186, 202–5 Appeals 119, 123, 133, 154,186, 191, 202–3, 205 Consular Judges 122, 124, 186, 198, 201–2, 205 dates 177–205 Disputations 17, 45, 56, 115–16, 123, 133, 137, 139–40, 181, 184–5, 189, 191–4, 196, 225, 227 ‘Encyclopedia’ 206, 212–15, 225 Engagement to Marry 122, 124, 186, 202, 204–5

Index Excuses 23, 121, 123, 186, 191 genuine 102–25 Institutes, see Teaching Manual LSR, see Replies in one book On the Edict 23, 45, 56, 92–3, 105–12, 123, 128, 133–4, 137, 140–1, 144, 158–75, 177–82, 184, 188–9, 191–3, 195–7, 201–3, 205 On Sabinus viii, 27, 45, 56, 105, 112–14, 123, 128, 133–4, 137–42, 144, 167, 173, 176–81, 183, 189, 191, 193, 196, 202–3, 205, 229 ‘Opinions’ viii, 206, 214, 217–22 Notes on Marcellus’ Digest 23, 124 Notes on Papinian’s Replies 23, 124 rate of composition 186–8 ‘Replies’ viii, 206, 222–5 Rescripts of Septimius Severus 18–22, 125 ‘Rules in one book’ viii, 106, 206–12, 215, 225 ‘Rules in seven books’ 206, 215–17, 225 spurious xiii, 206–26 Taxation 24, 26, 118, 123, 186, 190–1, 195 Teaching Manual 17, 76, 119, 123, 186, 192, 195, 210–12 The Aelio-Sentian Law 120, 123, 186, 202, 204–5 The Community Treasurer 120, 123, 154, 186, 197, 199, 201 The Consul 118, 123, 154, 186, 196–8, 201 The Julio-Papian Law 45, 116–17, 123, 181, 185, 202–3, 2205 The Market-Masters’ Edict 119, 123, 140–1, 159, 186, 192,195 The Praetor for Guardianship 120, 123, 186, 191, 198, 200–1 The Prefect of Police 122, 124, 186, 198, 201–2, 205 The Proconsul 45, 83, 114–15, 123, 133, 140, 154, 167, 181–5, 188–9, 191, 195, 227–8 The Quaestor 122–3, 133, 186, 198–9, 201 The Speech of Marcus and Commodus xii, 123, 186, 202, 204–5 The Urban Prefect 120, 123, 152, 154, 186, 197, 201 Tituli, see Rules in one book Tribunals 45, 77, 116, 123, 133, 138, 154, 181, 185, 187, 189, 196–7, 201 Trusts 117–18, 123, 131, 133, 138–9, 185, 192–4, 196, 225 ‘Ulpian II?’ 214, 225 ‘Ulpian III?’ 217 Ulpius Marcellus, see Marcellus Urseius Ferox 143, 145, 147, 149

Index Valerius Comazon, see Comazon Venuleius Saturninus 130, 142–3 Verus (emperor) 23, 154–5, 177, 191, 221–2 Vespasian (emperor) 141, 150 Victor 8, 28–9, 225 Vindius Verus 150 Virgil 225 Vitellius 141–2, 145–7

Vivianus 131, 134, 140, 144–5, 147, 149 Xenophon 90 York 2, 22 Zonaras 8 Zosimus 8, 31

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Ulpian: Pioneer of Human Rights

Ulpian: Pioneer of Human Rights

Practice of human rights

Globalization of Human Rights

Encyclopedia of Human Rights

Encyclopedia of Human Rights

Wilhelm Dilthey: Pioneer of the Human Studies

Human Rights as Indivisible Rights (International Studies in Human Rights)

Human Rights as Indivisible Rights (International Studies in Human Rights)

The Future of Human Rights

Historical Dictionary of Human Rights

Universal Declaration of Human Rights

The Idea of Human Rights

The End of Human Rights

Dictionary of Human Rights, A

The Human Rights of Children

The Politics of Human Rights

The Idea Of Human Rights

Human Rights in Islam

Buddhism and Human Rights

Cultural politics human rights

On Human Rights

Security and Human Rights

Making Human Rights Real

Studying Human Rights

Human Rights (Global Connections)

Achieving Human Rights

A. Philip Randolph, pioneer of the civil rights movement

Human rights, or citizenship?

Achieving Human Rights

Globalization and Human Rights

Ulpian: Pioneer of Human Rights