compared with Coke on Littleton; and the Commentaries on the Edict. These practically amounted to complete dogmatic treatises, only with a text of an ancient writer for a starting-point of discussion, instead of definitions or principles of the writer's own. Other exegetical treatises of moment were Gaius on the twelve tables Pomponius on Q. Mucius, Paul and other writers on the lex Iulia and lex Papia Poppaea, Paul on the lex Falcidia, lex Vellaea, lex Cincia, Marcian on the S. consultum Turpilianum, &c.

III. CASES. These form an important part of the literature and head the Papinian series of books. Papinian's, Paul's, Scaevola's, and Modestin's Responsa are the principal, but Ulpian and Marcellus both have Responsa quoted; Paul's Decreta, Gaius' work de casibus, Javolen and Pomponius' Epistulae belong here; and other works of the same class may lie concealed under more general or ambiguous titles.

IV. INSTITUTIONAL TREATISES. Such were no doubt the Institutes of Gaius, Ulpian, Marcian, Callistratus and Florentin; and though not so elementary, the Regulae of Neratius, Scaevola, Ulpian and Modestin; the Sententiae, Manualia and Breuia of Paul; the Epitome of Hermogenianus, the Aurea (or Res cottidianae) of Gaius, the Handbook of Pomponius. Perhaps also the Definitiones of Q. Mucius and Papinian, and Differentiae of Modestin.

V. DISCUSSIONS. Such were the Quaestiones of Papinian, Africanus, Tertullian, and Paul, the Quaestiones and Quaestiones publice tractatae of Scaevola; the Disputationes of Ulpian and of Tryphoninus, and doubtless the Publica of Maecian, Marcian, Venuleius, and Macer. To this class belongs, according to Mommsen, the Digesta of Julian.

VI. A number of other works, some of them of importance, bear ambiguous titles, so that we cannot refer them with any great probability to one class more than another. Such are the Pithana and Libri Posteriores of Labeo; the Uariae lectiones of Pomponius ; the Membranae of Neratius; the Pandects of Ulpian and Modestin.

The Digesta of Julian, Celsus and Marcellus are similarly ambiguous. Mommsen (Z. R. G. vii. 480) holds that by Digesta was meant the collected works of an author. He adduces, as evidence of this, the fact that many references are double, both the book of the Digest and the book of an individual treatise being

given, e. g. Gellius VII. (VI) 5 cites a passage from Alfenus' Digestorum libro XXXIV. coniectaneorum autem secundo. Again Ulpian quotes Celsus, epistularum libro undecimo et digestorum secundo. Further when the Digesta of a writer are quoted, other works are not quoted. The books of Julian ad Urseium and ex Minicio are only apparent exceptions, for they are probably works of Urseius or Minicius, edited with notes by Julian. Scaevola is an exception, for other works of his are quoted besides the Digesta. But this is an exception which helps to prove the rule, for many passages are quoted, evidently by an oversight, both from the Digesta and from the Responsa, &c., so that the contents were to some extent the same; and those jurists who quote the responsa or quaestiones do not quote the Digesta. Marcellus seems however to be a real exception and to go far to break the proof.

The books of Cassius, Urseius, Plautius, and Minicius, which later jurists edited with notes or commented on, are also of an undetermined character.

In the following pages I shall give a brief account of the lawyers named in the extract from Pomponius, which forms D. 1. 2. 1 2, and of all others named in the Digest, both those whose opinions or statements are cited, and those from whose writings actual extracts appear. The last class are almost all subsequent to the fall of the republic, Q. Mucius and Aelius Gallus being the only exceptions (unless Alfenus be one), and their contribution is quite insignificant. The republican jurists are however of interest, and some are striking figures. They are sometimes denoted collectively by the writers in the Digest by the term Ueteres, whereas those who were officially recognised as law advisers (cf. p. 102) were called iuris auctores, cf. D. XLI. 2. 1 3. § 18; II. 4. 1 4. § 2; xxxv. 2. 1 1. § 9; 1 31, &c. (Dirksen Beitr. pp. 120 foll.; 164 foll.) With Labeo the series of Digest-jurists worthily opens, but few of the subsequent jurists furnish extracts to the Digest till we come to Trajan's time. After that the series is continuous for about 130 years. There are some others whom we only know at second hand.

The information with respect to many is very meagre. I have given what seemed fairly trustworthy without endeavouring to clothe the skeleton by the aid of doubtful inferences. Fitting's tract über das Alter d. Schriften d. römischen Juristen (1860) has been of special service to me, besides the references in Zimmern, Rudorff and

Teuffel-Schwabe's histories'. But it is well to bear in mind the nature of the evidence on which the time of composition of the different writings is based. We have rarely any direct knowledge on this point, and are left to glean hints from the extracts of the book so described or inscribed in the Digest. Sometimes such extracts shew distinct acquaintance with a Constitution, the date of which may be otherwise ascertained; or on the contrary shew what appears to be a significant ignorance of such a Constitution. Frequently they quote other writers, which gives at least a relative date. But the most frequent ground for referring a work to a particular time, or for referring parts of a long work to one time and part to another, is the mode in which they mention the emperors. The following is a summary of the results arrived at by Mommsen in his essay Die Kaiserbezeichnung bei den römischen Juristen in Z. R. G. ix. p. 97 sqq. The designation of an emperor as diuus shews that the work in which it occurs was composed after the death of that emperor. But one cannot safely reverse this and say, that the omission of this title authorises us to conclude that the work was composed in the lifetime of the emperor. Moreover, the rule is applicable properly only to official language. Historians, e. g. Tacitus, and Pliny in his Epistles, do not consistently adopt it. An official document ought to have it, and its absence would be due to carelessness or to transcribers' errors. The jurists adopt it as a rule, but there are instances, relatively few, to the contrary.

IX.

On the other hand, the emperor reigning at the time is called imperator, more rarely Augustus or princeps. But it is a secular title and therefore is not attached to a consecrated emperor, now a god. There are some exceptions, most of which may be classed under three heads: (a) A constitution is sometimes given by a writer in its original terms. Then imperator is retained (e. g. D. 1. 15. 1 4; XXXIV. 1. 1 13. § 1, &c.): (b) Papinian often omits diuus in his Quaestiones, but not in his Responsa: (c) Ulpian in the first thirtyfive books of his Commentary on the Edict in twelve places denotes Severus as imperator, in more places as diuus. Probably these books were written before, and only imperfectly corrected and published after, the death of Severus, A. D. 211. Some other exceptions are due either to similar want of correction or to carelessness, or to confusion either of author, or scribe, or Justinian's compilers.

1 Some use has also been made of Hommel and of Anton. Augustin's work de nominibus propriis Пavdékтov (in Otto's Thesaurus, Vol. 1.).

Mommsen adds a notice of the mode in which the different emperors called Antoninus (Pius, Marcus, Caracalla) are spoken of by the jurists.

1. Pius is properly diuus Antoninus Pius, frequently shortened to diuus Antoninus or diuus Pius. The jurists who wrote in Marcus' reign, Pomponius, Gaius, Marcellus, call him usually diuus Antoninus. Those who wrote after Marcus' death usually call him diuus Pius, sometimes diuus Pius Antoninus or diuus Antoninus Pius.

2. Marcus is properly diuus M. Antoninus Pius; by the jurists he is regularly called diuus Marcus.

His adoptive brother is officially diuus Verus: in the jurists he is sometimes called this and sometimes diuus Lucius, most commonly they are spoken of together as diui fratres.

3. Caracalla's full name of consecration was diuus Antoninus Magnus. No inscription or coin gives him the name of Magnus during life. In the jurists Magnus always implies that the work was written after his death. His usual name however is diuus Antoninus; but, where that was likely to lead to confusion, we have diuus Magnus Antoninus. So the father and son are regularly called diuus Seuerus et Antoninus.

The simple diuus Antoninus is used of all three; the circumstances being generally, though not always, sufficient to say which is meant.

It will readily be seen that, in thus estimating the date at which a work was composed, we are on very unstable ground. Where such use of diuus or imperator is frequent and consistent, it is fairly trustworthy, but where, as is frequently the case, there are only one or two instances in a work, the inference becomes more doubtful, because accident may have so easily interfered. And the inference from the apparent ignorance of a particular matter, e. g. of a constitution, is hazardous, considering that we have only parts, often short extracts, from most works, that these extracts are the results of free handling of the originals by omission, addition, and revision, and that we can only guess at the purpose of the authors in writing a particular work and know nothing of their process of composition and revision. We have not a single complete work of any anteJustinian jurist. Gaius's Institutes is the only book approaching to this description. The little tract on the parts of the as by Volusius Maecianus, whether complete or not, is hardly in question here. So

that we have to presume the basis of our inferences unaffected (1) by the purpose and method of the author, (2) by the revision of the author, (3) by the transcription of the work before Justinian, (4) by the handling of Tribonian and his colleagues, (5) by the copyists of the Digest. But these are possibilities only of error, and we have daily experience how many such possibilities may exist while yet reports and inferences are substantially true for all that. If excessive scepticism and suspicion would lead to practical paralysis in the affairs of life, there is no reason in deferring too much to a similar temper in matters of history and speculation. But the superstructure cannot but be treated with caution, where the ground is not assured.

The Florentine Index, i.e. the list of authors prefixed to the Digest in the Florentine мs. (see p. xxiv), does not usually give the full name of the author; and the titles of the works sometimes differ slightly from the inscriptions of the extracts. The list is roughly chronological, except that Julian and Papinian, no doubt from their great eminence, are placed first and second in the list.

I give the jurists approximately in chronological order, many however being more or less contemporaries. The division into chapters is necessarily made by a somewhat arbitrary line, and in the case of some jurists the date thus assigned to them is in truth hardly more than a guess.

CHAPTER VII.

EARLY JURISTS.

Or the early jurists named by Pomponius in the famous extract from his Handbook, which forms the second law of D. 1. 2, some are very little known; others were leading orators and statesmen, others left books on law, which were in the hands of the jurists whose writings contributed to the Digest.

SEX. PAPIRIUS according to Pomponius lived at the time of Tarquinius Superbus, and made a collection of the leges regiae, which was called ius ciuile Papirianum. In another place he calls him Publius Papirius (D. 1. 2. 1 2. §§ 2, 36). According to Dionysius (III. 36) Gaius Papirius, the chief priest, had the laws and religious regulations, which had become obliterated, put up again in public