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7. 1 10; xxxiv. 1. 1 15. § 1; 1 16. § 2, &c.) and Paulus (D. v. 2. 1 13; XL. 9. 1 26) wrote notes on his writings. Both call him noster, Tryphonin twice, Paul nine times. Modestin speaks of him together with Paulus and Ulpian as οἱ κορυφαῖοι τῶν νομικών, and in a constitution of the emperors Arcadius and Theodosius he is called auctor prudentissimus iurisconsultorum (Cod. Theod. IV. 4. 15). One of the notes of Claud. Tryphoninus is often quoted as a tribute to his great ability: but in truth Tryphoninus (D. xxxv. 1. 1 109) is merely sarcastic. The case was this. A testator appointed two heirs and requested one ut acceptis centum nummis restitueret hereditatem Titiae coheredi suae. Both heir and heiress enter on the inheritance, and die before the 100 sesterces are given. Titia's heir, desirous of getting the trust-inheritance, offers 100 sesterces. Can he claim to have this inheritance (or share of the inheritance)? Scaevola answered 'The heir cannot obey the condition', meaning apparently that, if it was a condition of the trust that Titia should give the 100 sesterces, Titia being now dead, the condition cannot be fulfilled (cf. D. xxx. 1 104. §1). Tryphoninus on this remarks that it was clever of Scaevola to confine his answer to a plain point of law, though there was room for doubt whether there was any condition at all (magno ingenio de iure aperto respondit, cum potest dubitari an in proposito condicio esset). Tryphonin means that acceptis centum nummis may be interpreted 'My will is that you take 100 sesterces (out of the inheritance I leave you) and restore the rest to Titia' (cf. D. xxxv. 2. 1 93). It seems to be simply a harmless ironical compliment to Scaevola for avoiding the real difficulty and merely repeating what every one knew. See Cujac. ad D. xxxii. 41 (Vol. v. p. 99).

Scaevola is an important contributor to the Digest. There are 306 extracts; and many of these are of considerable length, so that they fill 741⁄2 of Hommel's pages, 44 of which are extracts from the Digesta, and 20 from the Responsa. Besides these there are 61 citations. In the books of the Digest, treating of legacies, the extracts from Scaevola's Digesta and Responsa, are especially long and important. See xxxI. 11 88, 89; xxxii. 1 32—1 42; XXXIII. titles 1. 2. 7; xxxiv. titles 1 and 3; xxxvi. 1. 1 77 (75)—82 (80); xL. 5. 1 41 ; 7. 1 40. Some interesting cases are given in D. XLV. 1. 1 122. The general character of the extracts from Scaevola's Digesta and Responsa is that of a string of cases, the facts being stated with neatness and precision, and the opinion or decision of Scaevola added in very brief terms, sometimes with reasons, often with none. The

Quaestiones contained more discussions.
1 34 (35); xxI. 2. 1 69; xxix. 7. 1 14.
2. 1 29 is notorious for its difficulty.

See e.g. D. III. 5. 1 8 (9); The extract given in xxvIII.

It is not unusual to find passages from Scaevola twice over in the Digest and even in the same book. Fitting points out that the cases are given with a fuller statement of the facts in the extracts from Scaevola's Digesta, and that in those from the Responsa they are either abridged or have general names (e. g. Titius, Maeuius) substituted for the actual names. Hence he concludes that the Responsa was subsequent to the Digesta. Mommsen, holding that Digesta was a term applied to an orderly arrangement of the collected works of a lawyer, puts the Digesta as late as after the time of Alexander Severus (Z. R. G. vII. p. 484). But Tryphoninus, who lived under Sept. Severus, commented on the Digesta, and Paulus refers to a case which is also found quoted from Scaevola's Digesta. It is possible that Tryphoninus' notes may have been made on the separate treatises and republished in the Digesta; and that Paul may have got the case from the Responsa. But Fitting's arrangement seems the simpler. That Digesta may have meant 'collected works' is possible enough, but it may have also meant 'collected cases', and been used in that sense by Scaevola.

The following comparisons are interesting.

D. XXXII. 1 93. pr. (Scaev. Resp.) abridged from 1 38. § 4 (Scaev. Digest).

D. ib. § 1 (Scaev. Resp.) abridged from XXXIV. 3. 1 28. §§ 13, 14 (Scaev. Digest).

D. ib. § 5 (Scaev. Resp.) nearly same as 1 38. § 8. (Scaev. Digest).

D. xxxvi. 2. 1 28 (Scaev. Resp.) abridged from XXXIII. 7. 1 28. (Scaev. Digest).

D. xxxiv. 3. 1 31. §§ 2, 3 (Scaev. Resp.) has general names for the historical names given in 1 26. § 4 (Scaev. Digest): but § 3 of the former is omitted in the latter.

D. XLIX. 1. 1 24. pr. (Sc. Resp.) is made more general, by the addition of the cases of a tutor and curator, than XLII. 2. 1 64 (Sc. Dig.).

Paul in his libri ad Vitellium has apparently copied Scaevola (Mommsen ad D. xxx11. 1 78): thus

D. VII. 1. 1 50 (Paul.) quotes with name a case given D. xxx111. 2. 1 32. § 5 (Scaev. Digest).

D. XXXII. 1 78. pr. (Paul.) abridged from XXXIII. 7. 1 20. § 6 (Scaev. Resp.).

D. XXXII. 1 78. § 2 same as XXXII. 1 93. § 2 (Scaev. Digesta).

D. XXXII. 178. § 3 more specific than XXXII. 1 101. § 1 (Scaev. Digest).

And compare XXVIII. 2. 1 19; xxxIII. 4. 1 16. esp. § 4 sqq. ; 7. 1 18; XXXIV. 2. 1 32.

PAPIRIUS JUSTUS is named (as Justus) in the Florentine Index, immediately before Ulpian, as author of Constitutiones in 20 books. In the Digest there are 18 extracts, eight of which are taken from the first book, nine from the second book, and one from the eighth book. This last is a rescript of Imperator Antoninus addressed to Avidius Cassius. The others are all rescripts from Imperatores Antoninus and Verus. Fitting refers the work to the time of Commodus. The extracts occupy two of Hommel's pages. Of the longer are XLIX. 1. 1 21; L. 1. 1 38; 8. 11 10—12 (1 9).

PAPIRIUS FRONTO is cited four times in the Digest, viz. twice by Callistratus, D. xiv. 2. 14; L. 16. 1 220. § 1 (Papirius Fronto libro tertio Responsorum ait); twice by Marcianus, xv. 1. 1 40; xxx. 1 114. §7 (Scaevola notat et Papirius Fronto scribit).

TERTULLIANUS is named in the Florentine Index (between Gaius and Ulpian) as the author of two works: Quaestiones in eight books, and a single book de castrensi peculio. From this last there are three short extracts in the Digest xxIx. 1. 1 23; 1 33; xlix. 17. 14. The Code v. 70. 1 7. § 1 a refers to the same book, and calls him iuris antiqui interpres. From the Quaestiones there are two extracts, D. 1. 3. 1 27; XLI. 1. 1 28. These five extracts occupy one page of Hommel. Ulpian cites him in the third book ad Sabin. D. XXVIII. 5. 1 3. § 2 et sane et Iuliano et Tertulliano hoc uidetur : in the eighth book ad Sabin. D. xxix. 2. 1 30. § 6 quod et Sextum Pomponium opinatum Tertullianus libro quarto quaestionum refert; and in his 13th book ad Sabin. D. XXXVIII. 17. 1 2. § 44 quod et in magistratibus municipalibus tractatur apud Tertullianum, et putat dandam in eos actionem.

It is clear that he wrote after Pomponius and before Ulpian's Libri ad Sabinum, i. e. before Caracalla's sole reign. More than this is only conjectural. There seems to be no reason for connecting him

with the S. C. Tertullianum (see p. clxxvi n.). But it is an interesting question whether, as is generally thought, the jurist is the same person as the great ecclesiastical writer, Q. Septimius Florens Tertullianus, who is said by Hieronymus (de Uit. illustr. 53) to have flourished under Severus and Caracalla, to have been from Carthage, and the son of a 'proconsular' centurion (a description which Dessau, Hermes XV. p. 473, suggests is due to Jerome's misunderstanding Tert. Apolog. 9). Eusebius (Hist. Eccl. 11. 2) describes the ecclesiastic as τοὺς Ῥωμαίων νόμους ἠκριβηκὼς ἀνὴρ τά τε ἄλλα εἴδοξος καὶ τῶν μάλιστα éì Рúμns λаμmрŵv. Neander (Antignosticus p. 202 Bohn's transl.) thinks there is sufficient in the method of argument and controversial tactics of the ecclesiastic to enable us to recognize a trained advocate, and in the juridical cast of his language and in his comparisons borrowed from law to find palpable evidence of his early studies. But Neander still hesitates to identify the two in consequence of the frequent occurrence of the name. The extracts in the Digest are few, and we have no other knowledge of the jurist, so that there is really no sufficient evidence for a decision. Mommsen (Z. R. G. VII. 485) notices that the word Digesta is hardly used except in juristic literature; but that Tertullian uses it of the Gospels (adv. Marc. Iv. 3; ib. 5) and (ad Nat. 1) of Varro's sources (ex omnibus retro digestis).

MESSIUS is once quoted by Paul (libro tertio decretorum) in D. XLIX. 14. 1 50 Papinianus et Messius nouam sententiam induxerunt.

PACONIUS is once quoted by Paul (libro octauo ad Plautum) in D. xxxvII. 12. 1 3. There is in Cod. v. 37. 1 6 a rescript addressed by Alex. Severus to A. Paconius, who may or may not be the same man. Mommsen reads Paconius in XIII. 6. 11. § 1 where Flor. and others have Pacunius, and others again Pacuuius.

CLAUDIUS TRYPHONINUS was a contemporary of Papinian, and was perhaps in the council of the emperor, see D. XLIX. 14. 1 50. He wrote notes on Scaevola's Digest, which are often (20 times) given in the Digest appended to extracts from Scaevola. Sometimes they have been treated as separate extracts, e. g. xxxii. 1 36; xxxiv. 9. 1 26 Mommsen; XL. 5. 1 17. His notes are generally given under the name of Claudius; but Claudius Tryphoninus is found in xxvi. 7. 1 58. He calls Scaevola 'noster' (D. xx. 5. 1 12. § 1; xlix. 17. 1 19. pr.). A rescript is addressed to him under his full name by

Antoninus (Caracalla) A.D. 213 (Cod. 1. 9. 1 1). The only work named in the Florentine Index is his Disputationes in 21 books. The date of its composition is about the time of Caracalla. In the 10th book (D. XLVIII. 19. 1 39) he speaks of a rescript ab optimis imperatoribus nostris, which Fitting refers to Caracalla and Geta, for in the earlier books (D. xxvII. 1. 1 44; XLIX. 15. 1 12. § 17 ; cf. III. 1. 111) he speaks of Severus as dead.

The Digest contains 80 extracts from his Disputationes. They fill 18 to 19 of Hommel's pages. Some of the longer extracts are XVI. 3. 1 31; XXIII. 2. 1 67; 3. 178; xxvi. 7. 1 55; xxxvII. 4. 120; XLI. 1. 1 63; XLIX. 15. 1 12; 17. 1 19. A good extract is L. 16. 1 225. In XLVIII. 19. 1 39 he refers to Cicero's speech for Cluentius.

CHAPTER XIV.

PAPINIAN, ULPIAN, PAUL.

AEMILIUS PAPINIANUS was said by some to be a relative of Severus' second wife, Julia Domna. As she was from Emessa in Syria (Capit. Macrin. 9), it is possible that Papinian was also from that province (Bremer p. 88). The first we hear of him is, that he with Severus adopted the legal profession at Rome under Scaevola (cum Seuero professum' sub Scaevola), that is to say after attending Scaevola's lectures and public consultations, he commenced advising and teaching, while retaining in some way the advantage of Scaevola's assistance. He succeeded Severus in the office of Counsel to the Treasury (Advocatus fisci Spart. Car. 8) and afterwards was Master of Petitions and thus framed the imperial rescripts (rescriptum ab imperatore libellos agente Papiniano D. xx. 5. 1 12. pr.). He was probably an assessor in the court of the praefecti praetorio (D. xxII. 1. 1 3. § 3). Under Severus his great friend we find him A.D. 204 Captain of the Guard (praefectus praetorio,

1 Profiteri 'to declare oneself as teacher, jurisconsult, &c.' is used of a teacher of rhetoric in Plin. Ep. 11. 18; Iv. 11 passim; of lawyers, D. 1. 2. 1 2. § 35; of mathematicians (Lampr. Alex. 27). Hence 'professor'. On the subject generally see Puchta Cursus § 103; Bremer Die Rechtslehrer &c. p. 16, who take profiteri to mean a declaration before a public authority (magister census), so as to found a claim for exemption from public burdens. Cf. Vat. Fr. § 204; D. xxvII. 1. 16 § 12; Cod. x. 53 (52).

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