extracts from Julian's own works. Possibly Papinian had quoted the part of Julian which the compilers have given from the original. In D. 1. 6 the extract from Gaius (11) is interrupted in order to give the full text of Pius' rescript, and for this purpose Ulpian's book de off. procons. is resorted to (1 2). Again Bluhme suggests that ll 5—8 of D. XXXIII. 6 have been placed after 1 4 merely because they, like 1 4, speak of quantity, not quality, of wine, oil, &c. contained in a bequest. In fact a disturbance of order may be due to accident or temporary forgetfulness, or may be due to design, but design may be moved by only a superficial resemblance or by an external connexion. Justinian appears to have hurried the Commissioners in order to signalize his third consulship with the additional distinction of the publication of the Digest (Const. Tanta § 23). Bluhme (p. 372) notes that the later books of the Digest contain less evidence of comparison of the work of the three sections than the earlier books do-a fact which the compilers' weariness or Justinian's haste may well account for. The titles containing most disarrangement of the order are, according to Bluhme, 1. 3, 5, 7. In Book xx. the desire to put Papinian first has avowedly (Const. omnem § 4) been the main motive. Thus the extract from Gaius now standing fourth was clearly intended originally to head the first title of that book.

Under the light thrown by Bluhme's discovery the Digest assumes a different aspect to what might otherwise be taken. The internal connexion of thought was not the motive of the arrangement, and the arrangement cannot therefore be made the guide of interpretation. What connexion of thought there is comes mainly from the compilers having taken as the foundation several systematic works, compared them with one another, and given us blocks of them pared away to avoid repetitions. These blocks may coincide with a natural division of the subject-matter, or may contain parts of two or more sections, or may be merely a string of disconnected cases on different parts of the subject. Mommsen's edition, like some other modern editions, prints each fragment continuously and separates successive fragments. This is quite right when the composition of the Digest has to be shewn. I have however thought it advisable to distinguish in the printing the parts of some fragments and to join together some separate fragments, the order however being preserved. A rearrangement of the matter in each title of the Digest, so as to make an orderly discussion, has been executed by Pothier, but the result is not very satisfactory ;

the difficulty of reference is considerable; and we have a subjective instead of an objective basis to rest on.

As an illustration of the compilers' work, we may examine the order in our present title. The first six fragments are from the work of different committees. Of these the first two are from the Edictal series; 1 3 is from the Sabinian series; 14 from the Edictal series, 15 from the Papinian, and again 1 6 from the Edictal. Moreover 11 4, 6 are from an earlier part of the Edictal series than 11 1 and 2. On examination it is clear that these six fragments have been arranged so as to form an introduction, containing definition, character, mode of constitution, acquisition and loss. With 17 we begin the extracts from Ulpian ad Sabinum which form the bulk of the title. Ulpian's seventeenth book is interrupted by short interpolations (18) from the fortieth book of his commentary on the Edict (one of the Edict books assigned to the Sabinian Committee), and from Pomponius' fifth and Paul's third book ad Sabinum. L 11 is from Paul's epitome of Alfenus, also in the Sabinian series. L 15 begins the eighteenth book of Ulpian ad Sabinum, which is similarly interrupted. L 21 and 1 23 are interpolations from the seventeenth book of Ulpian, which had evidently been postponed on account of the fuller treatment of the subject of acquisition by slaves in the eighteenth book. There is also an interpolation, 1 24, from the tenth book of Paulus ad Sabinum, i. e. a later book than would naturally be taken with Ulpian's eighteenth book. Then follows another extract from Paul's tenth book ad Sabinum, which, if the connexion of thought had been regarded, must have been placed after 1 23 or in some such place. It is put here simply because it was extracted after Paul's third book, and before Julian. The like reason accounts for 1 32. Then comes a curious interpolation from the Edictal series, viz. an extract from Papinian for which Bluhme, as I have said, accounts by the reference in it to Julian. Extracts from Julian, African, Marcian, Ulpian's Rules and Neratius follow in due order: but (1 39) an extract from Gaius ad Edictum prouinciale (one of the Edictal series) is fused with Marcian, We then proceed in 1 45 with the Edictal series, and the first here is another extract from the same book of Gaius. Evidently the Edictal series has been made slightly to overlap the end of the Sabinian, and thus 1 39 has been squeezed into the Sabinian group instead of following 1 44. The extracts from the books on Plautius and from Paul's edition of Vitellius duly follow. After 1 50 should

have come the other extract from the same third book on Vitellius and an extract from Celsus which have been transferred to head the title (11 1, 2). Modestin's various works and Pomponius ad Q. Mucium follow duly. An extract from Gaius ad Edict. prou. follows. According to the Florentine Ms. it is from the seventeenth book, and if so, belongs to the Sabinian series, but the inferior Mss. give the seventh book, and then it belongs to the Edictal series, and is an after-thought of the Edictal compilers, not an intermixture of the two series. With 1 57 begins the Papinian series, the extract from the Quaestiones having been already taken to make 1 33. The series duly extends to 1 63. After this comes a number of extracts from the Sabinian series interrupted by 1 65 and 1 71, and concluded by 174 from the Edictal section. And this collection is composed of two sets of extracts, 11 64-67 and 11 68-73, the former set consisting of extracts from the books on the Edict and a treatise of Julian's, the latter of extracts from Ulpian's seventeenth book and Pomponius' fifth book ad Sabinum. In the order of extraction by the Sabinian Committee, the latter set would precede the former. It is difficult to find any reason for this recurrence of Sabinian extracts at the end of the title and in an inverted order. Probably they were intended for insertion in another title, and have thus fallen out of their normal position. Certainly the connexion of thought can have had nothing to do with this postponement and with the arrangement as we now have it.

If the connexion of thought had been the ruling principle the arrangement in our title is inexplicable. Why should 11 18-20 be put where they are, instead of being partly put amongst the other miscellaneous extracts and partly interpolated in appropriate places? Why separate 1 10 from 1 48. § 1? and why connect the latter with 1 48. § 2, except because they were, after perhaps divers omissions, left continuous in the book from which they were taken? And the same may be said of the present continuity of 1 19. pr. and 1 19. § 1. Surely 1 12. pr., 1 18, 1 19. § 1, 1 59 ought to come together; and so also 17. § 2 fin. with 1 27. § 3 and 1 52; and 1 44 with 1 7. § 3; and

so on.

Books xxx.

In some titles the three series occur twice over. XXXII. are as it were one title. The Sabinian mass (with a considerable number of interpolations from the others) occupies Book XXX. Book XXXI. as far as 1 63 is Edictal. The rest of XXXI. and the first 42 extracts of XXXII. are Papinian and post-Papinian.

Then we recommence with Sabinian 1 44—1 75; Edictal 1 76—1 90; Papinian 1 91 to end. Evidently these last extracts (xxxII. 1 44 to end) were intended to form a separate title de uerborum et rerum significatione, as in the Code vi. § 8 such a title immediately follows the title de legatis. So the title de ritu nuptiarum (D. XXIII. 2) has what was intended for two titles, 11 1-51 corresponding to Cod. v. 4, and the rest corresponding to Cod. v. 5, de incestis et inutilibus nuptiis. The three series occur twice over here, as they do also in 1. 3, where 1 32 to end appears to have been meant for a title de consuetudine; in XXI. 2, where 1 13 to end may have been for a separate title de duplae stipulatione; and in xxXIV. 2, where the three series recommence at 1 19, Bluhme suggests that uestimenta and ornamenta seem the principal matters in the former part of the title, and aurum and argentum in the latter. In other titles one mass only is repeated, e. g. D. XXXIII. 7, where the Papinian mass occurs first in 11 2-7, and then again Il 19-29. Our title appears to be another instance, though not expressly mentioned by Bluhme under this head.

In the long title de uerb. obl. (XLV. 1) the first hand of the Florentine Ms. has put a new rubric rò В Toû de uerborum obligationibus after 1 47, and a similar one г after 1 122, thus dividing the title into three unequal portions. It is noticeable that the first section thus terminates with the extracts from the books on Sabinus; the second begins with the books on the Edict which were taken by the Sabinian Committee, proceeds with the Edictal series and with Papinian's Quaestiones and Responsa, and ends with a long extract from Scaevola's Digest: the third section has the rest of the Papinian series. This looks as if the division in the Florentine Ms. witnessed to some minor distribution of work among the committees.

CHAPTER V.

COMPARISON OF EXTRACTS WITH THEIR ORIGINALS.

IF Justinian's Commissioners had adopted a different course and compiled each title as a systematic account of the subject-matter, using such materials as they found, but welding them into a new mass, regardless of preserving the words or identity of the authors,

they would have produced what would at first sight have been better for practical purposes and more worthy of the idea of a scientific digest of the law. But we should have been much worse off. We should have had the law as conceived by Byzantine lawyers in the sixth century instead of numerous, often large, extracts mutilated and disarranged, but still preserving much of the practical results and of the characteristic form of the writings of the most brilliant period of Roman Jurisprudence. So far as they used the writings of the old lawyers the work might yet have been valuable, as we can see from Justinian's Institutes, but the historical interest would have largely suffered. If the compilers had been at liberty to compile as they pleased and give no authorities, we should have had much less of the old lawyers than we have, thanks to Tribonian's direction to preserve the names of the authors and to the compilers' method of giving the extracts (at least usually) in the order in which they extracted them. But the question still remains, how far have these extracts been altered by the Commissioners? Justinian gave large powers of correction, and was so stringent in forbidding any comparison of the result with the originals, that we might be sure a priori that these large powers were used. A comparison of Justinian's Institutes with Gaius (as made in Gneist's Syntagma) is not good evidence on this point, because the procedure there was not strictly analogous to that in the case of the Digest. The Institutes were to be a new work, and only a general acknowledgment was made to Gaius and others. The Digest was to be a consolidation of the old lawyers' writings, corrected and compressed. It is well therefore to compare1 the passages of the old lawyers which have been independently preserved to us, with the form which they have assumed in the Digest under the manipulation of Justinian's Commissioners. The comparison is not reassuring. Amendment of the law, decision of controversies, omission of repetitions and of obsolete matters were the duty of the Commissioners, and could not but largely alter the shape of the material. It is clear from this comparison that they have often largely altered it. Though much of the writing of the old jurists is left us in the Digest, and some passages coincide precisely with the words otherwise preserved to us, it is yet somewhat hazardous to say of any fragment, where we have not

1 Something of this kind has been done, not very satisfactorily, by Istrich, Quomodo versati sint compilatores Dig. &c. 1863. I have taken one reference from it.