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146

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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. § I, Urseius is quoted by Ulpian as reporting an opinion of Proculus (et ita Proculum eosistimasse 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 Cas­sius eadslimasse 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 1 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 begot over by altering the reading (in accordance with the more usual Latin order of object and subject) to "et Cassium eocistimasse 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 ahnotator 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 Julianus, 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 Ur-Beium Farocem), Proculus is mentioned in that

FEROX.

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 responded 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 Cassium 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 responsa (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. Epistolarum, apud Julianum quaerit, putatque, fyc. 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 Diges-torum 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 Fragmenta Vaticana,' 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 conclude from the expressions Julianus lib. xxx. Dig. scribit,

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