Works

In the (11.7), inserted in the collections of Antejustinian law, is an extract from Ulpian, citing a tenth book of Urseius; but what was the precise subject of his works has not been recorded, although it might perhaps be collected from an attentive examination of the extracts from Julianus ad Urseium, in the Digest. In Dig. 9. tit. 2. s. 27.1, Urseius is quoted by Ulpian as reporting an opinion of Proculus (et ita Proculum existimasse Urseius refert), and hence it has been inferred that Urseius was a Proculian. In a fragment of Paulus (Dig. 39. tit. 3. s. 11.2) occurs the controverted expression, apud Ferocem Proculus ait. Conversely, in Dig. 44. tit. 5 . s. 1.10, Cassius (i.e. C. Cassius Longinus) is quoted by Ulpian as reporting an opinion of Urseius (et Cassizus existimasse Urseium refert); and, in Dig. 7. tit. 4. s. 10.5, again occurs, in a fragment of Ulpian, the controverted expression, Cassius apud Urseium scribit. Does the expression, apud Ferocem Proculus ait, mean that Proculus is represented by Ferox as saying what follows, or does it mean that Proculus, in his notes upon Ferox, says "Is it parallel to the expression, in the mouth of an English lawyer, Littleton says, in Coke ? or to the expression, Coke on Littleton, says?" The former interpretation seems more probable, if we merely consider that in Dig. 9. tit. 2. s. 27.1, Urseius is represented as quoting Proculus, for the latter interpretation would require us to suppose that each cited the other, and it is not thought likely that a senior and more distinguished jurist would cite or comment upon a junior contemporary. But this argument is reversed in the case of Urseius and Cassius. If we admit that Cassius cites Urseius, according to the present reading in Dig. 7. tit. 4. s. 10.5, it seems natural to interpret Cassius apud Urseium scribit, as showing that Cassius wrote upon Urseius. There is less improbability that Cassius should have written upon Urseius than that Proculus should have done so, for Cassius was probably younger than Proculus, and, though older than Urseius, he may have thought fit to criticise the writings of a young follower of the opposite school. What are we to conclude ? Are the expressions Cassius apud Urseium scribit, and apud Ferocem Proculus ait, to be understood in different senses,--meaning in the first that Cassius annotated Ferox,--in the second, that Ferox annotated Proculus? Is it not more natural to suppose that Ferox annotated both, especially if there be independent grounds for supposing that he was later than both, and cited both in his writings ? To this hypothesis the chief objection seems to be the passage in Dig. 44. tit. 5. s. 1. 10; but such difficulty, if it were of importance, ought to be got over by altering the reading (in accordance with the more usual Latin order of object and subject) to "et Cassium existimasse Urseius refert." By this simple change, we get rid of any supposition as to two jurists citing each other, and are able to suppose Ferox to have been the annotator and citer both of Proculus and Cassius. This is likely on independent grounds. In Dig. 30. s. 104, there is an extract from the work of Julianus upon Urseius Ferox, in which, apparently in the text of Urseius commented upon by Julianus, is given a responsum of Cassius. It is also by Urseius that Cassius seems to be cited in Dig. 23. tit. 3. s. 48.1, taken from the same work of J ulianus, for the part of this extract which contains the note of Julianus follows the mention of Cassius. Again, in Dig. 23. tit. 3. s. 48.1 (from Julianus in libro 2, ad Urseium Ferocem), Proculus is mentioned in that part of the extract which appears to be the text upon which Julianus comments. To this it may be answered, but without much plausibility, that Julianus took Urseius with the notes of Cassius and Proculus as the subject of his commentary.

It is singular that the meaning of the word apud in such connection, if it be not used in different meanings,--important though it appears to be at first view, for the sake of legal biography and chronology, to determine what that meaning is,--is still a matter of undecided controversy. On the one hand we have in an extract from Paulus (Dig. 17. tit. 2. s. 65.8), Servius apud Alfenum notat; in another extract from Paulus (Dig. 50. tit. 16. s. 77), Servius apud Alfenum putat; and, in an extract from Marcellus (Dig. 46. tit. 3. s. 67), apud Alfenum Servius respondet In these cases Servius, Cicero's contemporary, who was the preceptor of Alfenus Varus (Dig. 1. tit. 2. s. 2.44), can scarcely be understood as commenting upon his junior. So we have Servius apud Melam scribit, in an extract from Ulpian (Dig. 33. tit. 9. s. 3.10). Now Mela, though he may have been born before Servius died, was probably a generation later than Servius. On the other hand, we have (Ulpian in Dig. 7. tit. 1. s. 17.1) Aristo apud Cassiuml notat. Now Cassius was an elder contemporary of Aristo, who seems to have been a pupil of Cassius (Dig. 4. tit. 8. s. 40), and to report his response (Dig. 17. tit. 2. s. 29.2), and we have evidence that Aristo wrote notes on Cassius. (Ulpian in Dig. 7. tit. 1. s. 7.3.) If the priority of date be allowed to determine the sense of apud, the expression Cassius apud Vitellium notat (Ulpian in Dig. 33. tit. 9. s. 3. pr.) would indicate that Cassius wrote notes upon Vitellius, for Vitellius was probably rather older than Cassius, having been commented upon by Masurius Sabinus, a contemporary of Tiberius. If it were not for the objection that Africanus was probably a junior contemporary of Julianus, the much controverted passage (Ulpian in Dig. 30. s. 39. pr.) Africanus, in libro 20. Epistolarunm, apud Julianum quaerit, putatque, &c. might be interpreted to imply that a work of Julian contained an extract from the 20th book of the Epistles of Africanus, in which Africanus proposes a question and gives an opinion upon it. (See, for other interpretations of this passage, the article AFRICANUS). The expressions Scaevola apud Julianum lib. 22. Diyestorum notat (Dig. 2. tit. 14. s. 54), and in libro septimo Digestorum Juliani Scaevola notat (Ulpian in Dig. 18. tit. 6. s. 10), have been generally thought to indicate that Cervidius Scaevola commented upon Julianus, although this interpretation would seem to require in librum septimum, instead of in libro septimo. With similar ambiguity we read Scaevola apud Marcellum notat (Ulpian in Dig. 24. tit. 1. s. 11.6). In Dig. 35. tit. 2. s. 56.2, is a fragment which purports to be an extract from Marcellus, and contains a note of Scaevola. Is the extract given as it appeared in the original work of Marcellus, or is it taken from an edition of Marcellus, to the original text of which were subsequently appended notes by Scaevola ? From § 82 of the it is difficult to avoid concluding that the notes of Scaevola were written upon the text of Marcellus, instead of supposing that the text of Marcellus consists of cases with the remarks of Scaevola. What else can we conclnde from the expressions Julianus lib. xxx. Dig. scribit, quamvis Scaevola apud Marcellum dubitans notat, and Marcellus lib. xiii. Dig. scribit, ubi Scaevola notat?

These difficulties have induced some legal biographers (Ménage, Amoen. Jur. 100.43; Otto, Thes. Jur. Rom. 1614-5; Guil. Grotius, De Vitis Jurisc. 2.4.4) to suppose that the word apud is used inconstantly, sometimes governing the name of the commentator, and sometimes the name of the writer who is the subject of commentary. In the present case, we believe that Urseius Ferox was junior to Cassius and Proculus, and that he commented upon them in independent works of his own, which were not considered as their works with his commentaries. We think it unlikely that Cassius, his senior, cited Ferox, and therefore are disposed to adopt the altered reading of Dig. 44. fit. 5. s. 1.10, which we have already mentioned, and which was first suggested by Guil. Grotius, although we do not regard the alteration as absolutely necessary. The only general conclusion we are able to arrive at, from a comparison of the passages we have cited, is, that from such an expression as apud Ferocem Proculus ait, it is impossible to draw any certain inference as to the relative date of Ferox and Proculus. We think, nevertheless, that the word apud in such connection is used constantly in the same sense,--that the writer whose name it governs is in conception the principal, and the other the subordinate. Thus Proculus apud Ferocem ait means that the saying of Proculus was contained in the work of Ferox;--whether the saying were contained in the text or in the notes ;--if in the text,--whether it were in the original text, or in the received text as altered by some subsequent editor ;--if contained in the notes,--whether those notes were expressly written upon the text, or were composed of illustrative extracts from prior or subsequent authors appended to the text. In general, apud seems to govern the name of a writer whose work has been illustrated by notes. In the majority of cases, as in the case of Aristo apud Cassium, the notes seem to have been expressly written upon the work of the author whose name is governed by apud; but sometimes, as in the case of Servius apud Melam, it seems that extracts from the writings of a preceding author are either contained in the original text, or have been appended as notes by a subsequent editor. While, then, Servius apud Melam means Servius in Mela, in like manner, Aristo apud Cassium is a citation of Aristo from a work, which, though it contain matter in addition to the text of Cassius, would, upon the whole, be thought of as the work of Cassius. Our supposition that apud governs the name of the author who is in conception the principal, is confirmed by an instance where it may be doubted which author is the principal, and where, accordingly, a variety of expressions occurs. Julianus composed a treatise which was compiled from certain books of Minicius, with observations of his own, as we learn from the inscription of the extract in Dig. 6. tit. 1. s. 59, which is headed Julianus, lib. 6. ex Minicio. This may be compared with the fuller expression of Gaius (2.188), in his libris, quos ex Q. Mucio fecimus. The work so compiled might easily be thought of, either as the work of Julianus, or as the work of Minicius. In the first case it might be cited, as in Dig. 2. tit. 14. s. 56, where we read Julianus lib. 6 ad Minicium; in the second case. Julianus might be cited as from Minicius, as in Dig. 19. tit. 1. s. 11.15, where we find Julianus lib. 10 apud Minicium ait.

The foregoing explanation, which is believed to be new, appears to remove some difficulties which have hitherto perplexed legal biographers.