and to the words of our Fathers, so that if you should encounter some who speak of the deadline of our life as determined, and others as undetermined, you may not think the doctrines disagree with one another, but judge that the one is expressed in the former manner, the other in the latter.
6. Furthermore, I wish you to know that our nature is not simple, but that we are full both of being and of coming-to-be, and that we are governed partly by providence, partly by nature, and partly by choice. And I do not say this as if something escapes providence and God, but that other things which have received their existence from thence act upon us either naturally or by choice. Therefore, both frosts and heat remove us from life, because we have a share in nature; and, in turn, foolish counsels extinguish our life by an act of the will. God indeed knows all things definitely; but those things operate according to their own nature.
Now you have the brief solution to your question, most learned and most reverend of Fathers. B
MICHAEL PSELLOS THE SECOND PART OF HIS WORKS COMPRISING LEGAL AND CANONICAL MATTERS DEDICATION OF THE NOMOCANON TO EMPEROR MICHAEL DUCAS
(Meerman Thesaurus Juris, I, p. 77, in Greek; we have added our own translation.)Know, I pray, emperor, also the Nomocanon. C A book composed of laws and of canons. Of synodical canons, and of diverse laws, And especially of recent, all-wise decrees, Which support most excellently the written canons. The first synod, by honor and by order, is that Of the pious Fathers who gathered at Nicaea, Under the faithful emperor Constantine, Who was rightly named great and extraordinary; And they were three hundred and eighteen in number. The second, though earlier in time, is after this one, Of the blessed Fathers gathered at Ancyra, Who set forth twenty-four canons, While the Nicene synod had set forth but twenty. The third synod was held at Neocaesarea; This one is prior even to the one at Nicaea, Yet it holds the third place, as being smaller than the two
in holiness and in antiquity. Of this synod also, fourteen canons remain. The fourth, held at Sardica after the one at Nicaea, A Sanctioned twenty-one canons. The fifth was gathered at Gangra, where The Fathers promulgated only twenty canons. To the sixth they assembled at Theopolis, For so they call the city of Antioch; And there remain twenty-five canons of this synod. The seventh synod was held at Laodicea, And there were published dogmatic canons, Fifty-nine, entirely perfect in faith. The eighth synod was held at Constantinople By the gathered Fathers, of which seven canons exist. The ninth synod was held at Ephesus, By which were promulgated only nine canons. The tenth in number gathered at Chalcedon The Fathers, who established twenty-seven canons. B And Basil the Great, the foundation of dogmas, Issued sixty-eight canons. At Constantinople, moreover, a select band of pious Fathers Gathered twice and three times, whose canons are known. And many other faithful and venerable men Have set forth canons for the sake of strengthening the faith. Among whom are Dionysius of Alexandria, Gregory, bishop of Neocaesarea, Timotheus the pious, and Cyril the excellent, And the illustrious Gennadius, who promulgated encyclicals. Before these, moreover, by means of Clement were recorded the canons C Of the venerable, holy, and divine apostles, Eighty-five sacred canons. Not all, however, treat of theology, But some strengthen the faith with appropriate discourse, Some indicate terms of penance for sinners, Some immediately provide regulations for those being ordained. But all bring profit to life. And he who has gathered all the canons ingeniously, As many canons of the Fathers as he found Written opportunely on the same subject, Has brought them all into one and distinguished them by titles. But as for that which is inherited, master, many on account of some D Transgression, become inadmissible to the order into which they were co-opted. Wherefore many have issued canons concerning those not to be admitted, And a select band of venerable and holy apostles, And Basil the Great also have treated of these matters. So that, therefore, one may feel no hardship in searching through the canons, He who has compiled all into one volume, O king, Has provided a specimen of admirable art in this; For according to the nature of the matter sought, He has most prudently gathered the canons that pertain to it. There is also, master, an order and progression of the canons.
Composed in various ways against various passions A. For there are those who cast them out of the divine Church. Others deprive the ordained only of their office. Some terrify the pious with the penalty of excommunication, Others deal judicially with punishments. You have here a concise doctrine of the sacred canons.
MICHAELIS PSELLI SYNOPSIS LEGUM
(SYNOPSIS OF THE LAWS OF MICHAEL PSELLUS) Edited in Greek, illustrated with Latin interpretation and notes, by the work and study of Franciscus Bosquetus, a jurist of Narbonne, from the library of the Archbishop of Toulouse. To this second edition have been added the Observations of Cornelius Siebenius, a jurist. (MEERMAN, Thesaurus juris, p. 36.)PREFACE
There follows the *Synopsis of Laws* of Michael Psellus, written in iambic and political verses, which the illustrious Franciscus Bosquetus, jurist of Narbonne, first brought to light in its entirety at Paris in the house of Joannes Camusat in 1632, in octavo. Since this edition became extremely rare, the illustrious Cornelius Siebenius had conceived the plan of issuing a new and more accurate one; but what hope there was vanished entirely when that most learned man was snatched away from the living. Yet it was a good deed that he had previously published various *Animadversions on our Poet* separately, which I have appended to Bosquetus's notes, having taken them from the sixth volume of his *Miscellaneous Observations on Ancient and Modern Authors*, p. 199 et seqq., as I judged them entirely necessary for the understanding of Psellus. For Bosquetus's translation was not everywhere accommodated to the author’s meaning, as in it he committed gross errors at times, and what is worse, he neglected to translate entire verses; yet for this reason the man, learned in other respects, deserves leniency from fair arbiters of such matters, inasmuch as he finished this interpretation in a few days, and had then scarcely completed his nineteenth year. See Niceron, *Memoirs*, Vol. XII, p. 168. This defect, however, was supplied in many places, and the translation, where it was manifestly false or mutilated, was amended and restored by the Reverend and most learned Archibald Maclaine, a most diligent minister of the divine word in the English Church which is at The Hague, who undertook this task of his own accord, and to whom I offer the greatest thanks that I can for this reason.As far as Michael Psellus himself is concerned: he was the tutor of the Emperor Michael Ducas, and by his command wrote this *Synopsis*; for it is to this Emperor that the little work is inscribed in most manuscript codices. Leo Allatius confirmed this in many ways in his *Diatribe on Psellus and his writings*, § 48, where he deals most fully with our author and his works, and in § 33 he provides clear testimony of his erudition in these words: "This Psellus, therefore, as he was most distinguished in learning, so he was the most prolific of all writers." I would dare to say that no one in that or the following age has been found who has interpreted Greek more sharply, or ordered it more aptly, or spoken more eloquently, or treated matters more profoundly: there was no thought which he did not either illustrate with notes, or treat in a compendium, or explain with the best method. Which judgment, however — although Psellus is not to be deprived of his praise — will perhaps appear too benign to many regarding this *Synopsis*, since Antonius Augustinus felt otherwise about it in *Emendations*, Book IV, ch. 3. Moreover, Joannes Leunclavius had already before Bosquetus published a few things from this *Synopsis* in Volume II of his *Jus Græco-Romanum*, and had used them as Scholia appended to the *Pragmatica* of Michael Attaliates, who flourished under the same Ducas, yet in such a way that he was unaware that it had been written in meter, as Allatius had already observed in the aforementioned § 48.
There exist, however, even now various manuscript codices of this *Synopsis*, as in the Royal Library at Paris: see Vol. II of the *Catalogus Manuscriptorum*, no. 476, no. 4482 (where many other writings of Psellus, including legal ones, are mentioned), no. 1371, and 2749; in the Imperial Library at Vienna: see Lambecius, *Commentaries*, Vol. VI, p. 46, and Nesselius in the *Breviarium*, Part II, p. 28; in the Medicean Library, see Wilh. Langius, *Catalogus*, Plut. 80, no. 6; in the Vatican, see Montfaucon in *Bibliotheca Bibliothecarum MSS.*, Vol. I, p. 9; furthermore also in the Palatine library, which is now joined to the Vatican, Codex 346, and the Constantinopolitan, in the index of Joannes Maria Suaresius in *Notit. Basilic.* § 7, from which, if various readings had perhaps come to hand, many places in Psellus which are now read corruptly could have been restored.
SYNOPSIS OF THE LAWS, BY IAMBIC AND POLITICAL VERSES
BY THE MOST WISE AND MOST HONORABLE MICHAEL PSELLUS
To the Emperor Caesar Michael Ducas, by the command of his father and emperor.
The science of the law is manifold and difficult to contemplate, obscure in compendium, impossible to comprehend summarily, and difficult to explain in words; yet it is necessary, especially for an emperor, who ought to have the greatest concern for it, for in judgments justice must be rightly observed. Wherefore, I have condensed many things into a compendium and have composed for you a volume of laws easily searched. And first, it must be explained to you how many parts the law has. The one of these called the Code is a body consisting of twelve books, which they call Constitutions, in which, O master, the decrees of emperors, legal rescripts, and decisions and sentences of lawsuits are contained. The next part they call Digest in the Latin tongue, and Pandects in Greek, because it is a receptacle of laws of every kind; and very many have written the laws of the Pandects.
A The parts of the Digest, O master, are various; for the first ones concern contracts, and the first collection of the first parts is composed of four books. Following this is the volume of seven books, called in Latin De judiciis (Concerning Judgments), or in Greek, "Concerning trials," if one should translate it. The third compilation is called De rebus (Concerning things), an eight-book volume containing a treatise on things. The fourth place of the legal Digest is as it were the eye of all the collections, an eight-book volume, so named from the number of many laws. The fifth is a nine-book volume, named from its primary part, Concerning testaments, though it contains ten thousand other things. The sixth part, O master, contains only two books; it discourses wisely Concerning various degrees, and treats clearly of succession, and mentions the Orfitian and Tertilian laws, B Concerning judgments. [Vers. 33.]
The remaining parts of the Digest, O master, are various, of which the former ones are said to be concerning contracts, and the first collection of the former is composed of four books. Afterward, a volume of seven books, in Latin called De judiciis, in Greek "concerning trials." The third collection is called De rebus, containing an eight-book treatise on things. The fourth place, like an eye of all contracts, its eight books vindicate for themselves the receptacles of many laws. The fifth, indeed, nine books, called from its principal part De testamentis, although it comprises ten thousand other things. The sixth part, O master, contains two individual books, which are rightly called De diversis gradibus (Concerning various degrees), and they perspicuously treat of succession, and the senatusconsulta Orphitianum and Tertilianum, and this part comprises a manifold other ordering of laws. The seventh and last legitimate part of the Digest makes a volume on the firmest stipulations, consisting of two individual books, which
A complete the system. After this there are two terrible books, containing the severity of the punishments. After this sevenfold division of the laws, another ordering of various legal matters exists, fulfilling the fifty books of the Digest. In addition to these, there is the part of the New Constitutions, then a more concise book of Leo, the sixty-book work which contains all the laws, the Codices, the Digests, and the Novels, succinctly arranging consistent and related laws under appropriate, genuine titles; but it is difficult to interpret, and extremely obscure. There is also another part, like a vision of the laws, shown to be more introductory than the others, having the entire genealogy of the laws, or rather, as I might say, their archaeology. And this book is called the Institutes. Many, having collected individual actions, have composed a syntagma worthy of praise; for it interprets the nature of each action, and refers all questions, all facts, and all cases to the proper action. This alone is the Philosophy of the laws, and if anyone has mastered such a book, he becomes the most learned and skilled in the law. Others again, O Master, have gathered the moments and the times into a brief book, A which they have compiled into a short book on legal matters; they call it *Momenta* (Moments), for it also contains the *Chronoi* (Times).
The law that encompasses all of these is the common covenant of the entire commonwealth, a prevention of offenses, especially those committed knowingly, a guardian of justice, the decree of the most prudent. Justice is the most stable resolve, distributing to all the measure according to desert. The legitimate is a part of justice. And this also has another part, the natural, which consists in the conscience of good and evil. For the remaining natural part is the third part of the law. For of these, one is natural, the third happens to be the national (gentium), and the other more political, and in a way more particular. For the one is dogmatizing about natural things: conception, birth, relationship, and connection. Of the thing itself, nakedly, of such and such, it is general law, but specifically natural. That which looks to contracts and the nature of exchanges, to speak of all the common polities among us, is national law, not that which is barbaric. For the name of the "nation" (gens), when spoken legally, is capable of encompassing those who are subject to laws. The political law is local and needful. The formerly tripartite nature of this law consists of the Twelve Tables of the twelve sages, the Decrees of the kings, and the Laws of the praetors. Now, one must speak of those things with which the law is concerned. These are persons, things, and actions. Although there are many actions, there are four mothers of them, which they call obligations, legal bonds, by [re, verbis, litteris,]
and fourthly by consensus. Those by re generate real actions, and these alone. The mother of the verbis [obligations] is naturally that which is from stipulation. And consensus, too, simultaneously creates agreements. Litteris makes a writing bare of things; for if anyone writes a debt without numbering the money, and does not add, O master, a complaint of non-payment, and two years' time subsequently elapses in the meantime, by the writings alone, O master, it is thenceforth held fast. And they form the litteris [obligation] from silence alone. Re signifies things, verbis, bare words; litteris, the writing; consensus, agreements. And each of the obligations brings forth many actions. B And one is held liable if one does wrong, or contracts, or, to speak more clearly, is transacting with someone. From delict, you would find these actions: the Furti, concerning theft; Vi bonorum raptorum, which interprets the violent seizure of property; the Injuriarum, which signifies petulant insult; [and] the Aquilian, which is concerning damage; from which, again, like the fountains of rivers and subsequent streams, you will find springs of actions fittingly poured forth. The definition of a contract, as it has pleased the laws, is the agreement and consensus of several wills, or at least two, concurring in the same thing, so as to create the power of an obligation immediately. But it must be spoken of, for your sake, of each of C your obligations, so that you may have the arising actions distinctly, and their mothers, for the daughters, accurately. And that [obligation] which is in things is the Deposit, which in Greek is Naturally the [Parakatatheke, i.e.,] deposit; second, the Commodati, the use of things given; and the Pignoratitia, that concerning pledges; another is that concerning the petition of an inheritance, which the Latins call the Hereditatis petitio; and furthermore, what is called in Latin ad exhibendum, that is, concerning the production of hidden things. And of the condictio, which is the general one; in addition to these, [are] the Interdicta, that is to say, injunctions. And of the verbis obligation is that which is from stipulation, D from which the certi condictio is naturally derived, and the incerti; these two actions are from stipulation, O sovereign. For every stipulation is an interrogation, whether of manifest things or of hidden ones, upon which is the condictio, whether for a certain thing or an uncertain. And the condictio is of the nature of a demand; the certi, that is, the manifest, and the incerti, the hidden. And of the verbis obligation is the Aestimatoria, when I appraise a thing and hand it over to you, saying as if I were selling it, "Give me so many coins," and if one does not give so much, give back the thing given. And again, from the verbis obligation comes the Damni infecti, which is set in motion when a neighbor’s house threatens ruin. Again, of the verbis [obligation] is the Precaria, which asks the one who has inherited, reasonably and properly, from how much of a portion he is to seek the inheritance. The Legatorum represents another security for a legacy. And to repeat, the Pecuniae constitutae, which speaks of the counter-promise and the surety. And by the obligation of the litteris is the action of Novatio, which transfers the old debt into a new one. Vers. 155.
A Of these, the Delegatio, or that concerning a legacy. Of the obligation by consent is the action from Vendito, which they interpret thus regarding a sale, O Emperor, from Empto, regarding a purchase; Locati, a certain hiring; Conducti, or leasing; an instruction, the Mandati. The Pro socio is that concerning partnership; and that regarding Betrothal, and Gifts, and Marriages. And of several other actions, and three interdicts—all these are actions of obligation by consent. That concerning the guardianship of the property of others, that is to say, when the owner is entirely unaware, some call it Negotiorum gestorum, and it seems to be an action coming from a contract; likewise the Tutelae, which is against guardians. B The one concerning the Division of common properties, that concerning Peculium, and that from a testament; the Institoria, and the Exercitoria—the one against a person having set up a shop, and the one against a person having set up someone in maritime business. The Quorum legatorum also exists as an interdict, and Usus and Ususfructus, and many other actions. All of these belong to the category of quasi-contracts. And the actions of quasi-delicts, again, are: the one against a judge who has judged unlawfully, and the one against you for having shamelessly broken an edict. There are also some other actions, and some of the In factum.
Accept again a varied division of actions. Of actions, some are from contracts, and others again are derived from delicts. Some are real, and others are personal. Some are in good faith, and others are in some way strict. A Some pursue the matter itself, others the penalty, and others both. Some are moved for the whole, others for a part only. Some exact the simple amount, others the double, and the triple, some even the quadruple, and some more than this. And of these, the heavier ones, in addition to this, impose infamy. Some are timely, others are temporary, and others are limited to forty years. Some even pass down against heirs. Some are what they call arbitrary, as they depend upon judicial mediation and the impression of the judge, if he intends [to act].
Another very great division of laws exists, and this also appears necessary for me to include. As all the canons of the laws, O crown-wearer, are rotten at the roots, for they are partly false. For a canon or Rule is a discourse dividing a matter briefly, which is as if the subject of the rule, and where it stumbles in any way, O master, it falls away from the subject. But because it sits in your mind to summarize all the laws for you, I shall make use of definitive and brief words. Justice is the distribution of what is just. Natural law is common to all living creatures. Of laws, one is written, and the other is unwritten, as is custom. B Freedom is a kind of natural immunity; but Slavery is a subjection of ownership, which, as it is indifferent, is a certain atom. The calamity of the mother, that is, prostitution, does not harm the one in the womb, depriving it of paternal rights.
C Vers. 214.
C If one, bypassing his creditors, seeks to free [a slave], after puberty he may write a testament. But the seventeen-year-old may set one free. Those in the power of their parents, they who are from lawful marriage—for these alone lawfully obey their parents—if one should receive something from the fiscus as a gift from the emperor, or by contracting with him, he immediately becomes master of it, and he is not liable to be sued after four years. A gift D made in view of death is similar to a legacy. A Even if the father gives orders, outside of the military peculium, no one overturns an established testament. But if one has mancipated contracts B and wishes to appoint a slave as heir. Twelve ounces are the measure of the inheritance. As with the testator, a servant may be an heir. No one making a testament, unless he be a soldier, may dispose of part of his estate, but not another part. The substitution is thus formulated: Let Titius be heir to my property; if he does not wish it, let Primus be heir. One who contracts an unlawful marriage is severely punished, and he does not have authority over the children born of it. But if one has children from a former concubine, he makes them legitimate by dowry instruments. One owes a fourth part of his property to the adopted son, [if] he has adopted someone. A mother is condemned as infamous if, upon the death of her husband, she does not seek a guardian for her children. Guardianship is a legal power over a free person for his defense. A guardian manages only until the age of puberty. From then on, curators of the youth govern. He called agnates those descended from the male line. He called cognates those originating from a female line. A boy becomes an ephebe at fourteen years of age, and a girl is an ephebe at twelve. To one who has a guardian, a curator is also given. A minor cannot accuse his guardian, C and D the legatee does not succeed to the whole right; for the heir alone has this right. The laws do not prohibit making a testament without a document, [but] they rightly reject domestic witnesses. If one has made a testament concerning military assets, the testament remains valid for all time, even after retiring from former military service. A filiusfamilias does not make a testament, even if his father commands it, except concerning military assets. Succeeding madness does not overturn a previously established testament. A son, if emancipated, has possession of goods against the [testamentary] tablets. One may also, if one wishes, institute a slave as heir. Twelve ounces are the measure of an inheritance. As the testator, a domestic may be an heir. No one, unless he be a soldier, makes a testament for a part of his property; he does not make a testament for a part. The substitution is thus formed: Let Titius be heir of my things; if he is unwilling, let Primus be heir. One contracting unlawful nuptials is atrociously punished, nor does he have in his power the children born from them. He who has begotten sons from a former concubine legitimizes them with dowry instruments. He who has adopted [a son] owes a fourth part of his property to the adopted one. Infamous becomes the mother who, when her husband is dead, does not seek a tutor for her children. Tutelage is a legitimate power over a free head for his defense. A tutor administers only...
A the affairs of the minor, with the kinsmen cooperating. Things belonging to no one, according to the first who seizes them. The winter wave defines the seashore. What is placed on top yields to what is beneath. A path is a narrow way; B a road is wider. He who alienates another's property knowingly, or hands it over otherwise, commits theft. A second testament breaks the first. But children alone move for the inofficiosum. No one is appointed as a successor to a child in a pupillary testament, C unless he first makes a testament for him. He who presses the claim must provide the proof. The movable things of a dowry are sought immediately; for immovable things, a full year is allowed for the claim. The foundation of a testament is the appointment of an heir. A legacy is cut off and transferred both in testaments and in codicils. The third part, the Falcidian, saves for the heir D out of all the legacies, proportionally. Augustus commanded, it is said, the codicils, in which the writer neither appoints an heir, nor excludes one whom he wrote in the testament. The Tertullian decree rightly calls mothers to the goods of their children. The Orphitian, on the other hand, summons children in return to the goods of their mothers. The mother has a claim over all agnates to the goods of her children, except for siblings. For she comes to the inheritance with them. But if there are sisters, they take half; A but if there are sisters and brothers, they inherit equally. For a child and a parent likewise, a full year is afforded for the possession of goods. For other kinsmen, only one hundred days are granted. A penalty must be set for stipulations. Perpetual leasing is what constitutes emphyteusis. An amount paid in double by one who has denied a debt may not be reclaimed by an action for undue payment. Theft is the fraudulent handling of property; without an evil intention, you do not commit theft. Against a thief, the actio furti applies; even if he is not in possession, having given it away, the Publician action is suited to the one who lost the property. But the Paulian action is given to one cheated in the sale and alienation of his own property. Double the value is recovered by the actio furti and with the Aquilian law. The Law of the Twelve Tables describes theft and the Aquilian action as noxal, B and writes of the noxal action itself as Aquilian. A plea (praescriptio) is a clear legal argument of the defendant against the plaintiff, for a secure action in law, but perhaps unjust by nature. No one institutes a lawsuit against unknown self-judging parties. Also, in a right of claim, the possessor is the stronger. He who violates a chaste woman by force, if he is wealthy, suffers the removal of half his possessions; but if he is poor, he is exiled immediately. Every murderer is liable under the Cornelian law; a judge who accepts bribes is liable under the laws concerning extortion. Also liable under the laws concerning defamation is he who acts to the detriment of another. The duration of time commonly takes the place of law. General laws are more authoritative than specific ones. 332
A The position of women is weaker than that of men. Those born legitimately follow their fathers. Those born of fornication follow their mothers. 10 What is owed by nature, once paid, has No right of recovery, as the law has decided. All private matters do not harm the public interest, A young man is restored unharmed according to the laws. That which is for the lesser to be restored, 15 That is for the greater a charge according to analogous reasons. Between a father and children who are under his power, It is not natural for a question of litigation to arise. Where there is a preliminary act, there is also condemnation. The higher court gives judgment over the lesser. 20 He who gives what is not owed, having knowledge of this, Does not have again the recovery of what was paid. As often as we examine concerning fruits, we consider, What the possessor was able to receive, we calculate. In common ground, a partner does not build. 25 An outsider cannot acquire a servitude. In those cases where the Aquilian law does not apply, To these the action *in factum* is given, and this canon is weak. Whatever things do not have strength according to the laws, Given without result through error, 30 Have no recovery, nor any exaction back. To make the condition of a woman worse regarding her own dowry, Clearly has no power while the marriage stands. To him who has a guardian, another may not be given. The higher court is superior to the lesser ones.
A Or, the criminal matter, [distinct] from that regarding money. Crimes receive just vengeance. In the places where it has been sinned, there the understanding is greater. Where there is a preliminary act, there is also condemnation. B From here I also introduce to you the canons of the Novellae, Signifying the wills of all those who have died, As many as do not contend with the established laws. Marriage creates a dowry, but dowries do not create marriage. What the law gives, no one may take away. An objection of prescription does not exist against the fiscus. A woman marrying a second time before the mourning period Falls out of all things, both dowries and gains, immediately. From a free-born daughter, no slave is born. Let no one overturn the will of those who have died. Marriage is constituted by consent alone, Even if nuptial contracts do not proceed from it. No defender is suitable without a guarantee. He who resolves to give is equal to him who has given. Mothers are able to act as guardians of their children. In the middle of a trial, it is unjust for divine norms to be disregarded. The intention of the testator is to be preferred over all things. Interest not stipulated does not run into debt. The introduction of wicked deeds is not bound by long time. Those marriages which are forbidden must be punished with penalties. Let those who commit offenses give satisfaction justly, Maintained legally for legal successors, If those who have transgressed have [goods] and matters.
Let the magistrate provide guardians for orphans. A He who has been summoned from the first citation must receive the writ of the suit being brought, and must also receive a deadline of twenty days. He who receives a second judgment arising from a recurrence cannot refuse the second judge. After a solemn oath regarding the one hiding and not appearing by the deadline, let the plaintiff be sent into that person's property. He shall not surrender the property to the debtor otherwise, unless he first demands full compensation. Perhaps a poor woman should die leaving a wealthy husband without complete marriage contracts, or even as a poor husband should die leaving a wealthy wife, let the survivor rightfully inherit from the living person only a fourth part of his own possessions. Let him who has brought witnesses three times not bring them again. The mediator who has become involved at the will of the parties must give testimony, even if unwilling, concerning the matter for which they are litigating. Do not think, O master, that all the Novels are useful. For some were not placed in the books of Leo, the knowledge of which is most firm, and the title of which is Royal; some, although placed therein, have become inactive through time; and some have become idle, as life has received change. Such are those about the senators, those about the praetors, B those about the quaestors, those about the count of the consistory, and those about the enumerated provinces. Those which dissolve the marriage by mutual consent, those about the concessions of the remaining public [debts], and those about the churches [(4)] in Sicily.
B That the Mass not be celebrated in private homes, those about establishing perpetual emphyteusis, those about the divine houses of Africa. Truly useful and wondrous are those concerning the Lex Falcidia, those concerning the dissolution of marriages, in the appropriate places, concerning the restitution of dotal goods, concerning the denunciation of new work, concerning curators, concerning immense donations, and those which are directed concerning the dowry not yet numbered. But the entire book of the Novels is not useful; rather, only those [laws] whose action and practice is confirmed by continuous use in the laws.
The collection of actions is manifold and varied, called by Italian names, and in turn designated by Greek terms. Many in a wondrous way relate their etymology. The term *Adulterium* is placed for adultery, and marvel at the composition of him who imposed the name: the Latin speaker calls the defilement *adulteram*; hence it is named the staining of adultery; for adultery is a defilement and a certain falsification. C The husband, father, and uncle move the action for adultery, on the part of the mother, on the part of the father, and the kinsman besides these, all with a formal accusation, even if the husband himself [initiates it].
*Adoptio*, O master, is a generic term divided into two specific names, of which the one is called *adrogatio* and the other *adoptio*. For when someone receives as a son one whom nature denied him, but who is of his own right, he is voluntarily adopted by the power and name of *adrogation*; the disinherited [person] takes the third part. A The *Aquilia* action is given against one not providing to a venerable place the legacy which one dying has left; it has a recovery of fruits if one has delayed. The action *Ad exhibendum* is very much in use, and is a recovery of hidden things; it is personal, and subsequently arbitrary. And it conveniently demands the thing in its entirety, with the young, birth, and every cause. *Ambitus* is a public law, moved by all, yet it is not capital, though it brands with extreme infamy. It is moved, however, against one who has purchased a magistracy with money. There is also a public trial concerning the *annona*, and it is more public than others, for slaves and women also move the action. It is moved if anyone harms the abundance of Rome and bargains for the benefit of the Barbarians in order to induce poverty. D There was a certain tribune of the plebs in Rome, Aquilius, who brought a law concerning damages, which from his name is fittingly called the *Lex Aquilia*. It is divided into three chapters, the second of which is not in use in our affairs. That law
is also *utilis*, and there is also *directa*. If someone causes harm with his body to a body, then it is *directa*; but if someone has caused harm otherwise, it turns out to be *utilis*. If he has not even harmed in that way, that is, neither body to body, but damage has occurred, the action *in factum* is moved. The *Aquilia* makes a double exaction against those who deny, but collects only the simple amount from those who confess, and I seek nothing more. B The action of *bonorum raptorum*, called the action for the theft of goods, is moved against those who snatch away the property of others; within a year it demands the quadruple, the thing itself being included in the quadruple here, so that it happens that the penalty stands at the triple; outside the year it is naturally meant to collect only the simple amount. And if it has been moved first, it stops the action for theft; but if someone moves the action for theft first, he also moves this one, master, but he does not exceed the exaction of the quadruple even if one moves both. The *Depositi* is that concerning a deposit. One demands both *dolus* and *lata culpa*, and interest for delay and use, and it is given to heirs and against heirs; for it is not dishonoring unless one's own *dolus* has intervened. The action concerning *dolus* is both penal and personal; it begins and is completed within two years; if another action is available, you do not move the one for *dolus*. A This *Falsi* action is the law of Cornelius, moved against someone who has committed a forgery. Now, master, the punishment for forgery is *deportatio* for free men and total confiscation of goods; but again, for slaves, it has the ultimate disgrace of a dire punishment. The law of Julius, however, is that of *Peculatus*, which is moved against one who has stolen from sacred sanctuaries, or from safe tombs, or religious sites; and it is harsh, and punishes most direly; for it introduces a change of the former order. It deports, master, the one convicted, and it holds force within five years. The action concerning *Donationes* distinguishes between the twofold nature of gifts—for gift is indeed a donation—the one is *inter vivos*, that is, from then on, but the other is *mortis causa*, for it is on account of death, for *mortis* is death, and *causa* is for the sake of, or that which is given due to the suspicion of death. For perhaps someone was about to sail a dangerous voyage, and he has given money for the fear of death; here, the giver, because of the fear, remains master again of the things given. The one who has received the gift possesses natural possession. Now, a stipulation obtained for someone is naturally meant to be transmitted only to the heir. The *Inofficioso*, or the complaint regarding a testament, is an introduction to an action, it does not turn out to be an action itself, I mean the one concerning the claim of an inheritance; it is given also to children against a father, if it should happen to be so.
A
The action *in rem* is multiform and has many names; for it is general and specific, and of good faith. One kind is the *utilis* (beneficial), which is given to creditors, another is the *confessoria*, another the *negatoria*, another the *prohibitoria* specifically, another the *serviana*, another the *publiciana*. And the actions *in factum* are many and diverse: some are praetorian, others *pupillaria* (for pupils); some descend from law, others are *arbitrariae*. Some recover the simple amount of the debt, others double, triple, or quadruple; some are annual, others perpetual. The use of actions *in factum* is multiform. The action *judicati* is limited to a term of four months from the judge’s condemnation. The action concerning *injuria* (injury) is annual; it occurs in matters of property, but more so in words uttered against a person and his reputation, to his infamy; you may pursue it both pecuniarily and criminally, if you wish, and it is suppressed by the expiration of one single year. As is the case with actions *in rem* and *in factum*, so too is the use of Interdicts, which is very powerful and possesses many names. An interdict is the praetor’s discourse and proclamation, by which he does not terminate a lawsuit, but only instructs how the judge ought to settle a pending dispute, if any are at odds with one another concerning possession. And while natural possession is the holding of material things, a quasi-possession is the use of incorporeal things. B Of interdicts, some are for the purpose of presentations, others for restitution, others are in a way public; some are perpetual, others annual; some are general, others are suited to certain persons. The interdict *unde vi* (whence by force), and then the one *quod vi aut clam*, which is named thus, which the Greeks interpret as "by force or by stealth." And let me not grow long-winded, O Master, by collecting names, for to speak generally, it is also an interdict, regulating the judge in the matter of the pleading of the case. And other matters must be told to you thus in summary. *Conductio*, or *mishthosis* (leasing), and *Locatio*, an action which is fitting, O Master, for the one who has leased, against the one who has hired, for the sake of the one whose property was leased. *Mandati*, concerning a mandate, is by consent. *Metus causa* (by reason of fear) entails the fear of power; it is for one who has given his property or given up a debt; it is personal and is terminated by a year. The *Majestatis* law, O Master, was a law of Julius, and it is set in motion if someone has done anything against the kings; this is a great crime of *laesae majestatis* (lese-majesty), and it carries the confiscation of the property of the condemned person, even if there are children. The *Hereditatis* action concerns matters of inheritance, when there is no difference between agnates and cognates, nor even, O Master, *sui* (heirs) and those manumitted. All *Noxales* actions, as well as praetorian ones, are set in motion against masters for the failings of their servants. The *Repetundis* action is brought against those who take bribes, and especially against those in authority and against members of the council.
it is brought even if the accused is dead. A suit for the recovery of embezzled property is available to women against their husbands, and to a husband against a wife who has stolen or been stolen from. A Stellionate is a form of malpractice, as when a debtor pledges to one creditor an object already mortgaged to another; this is punished by extraordinary procedure. The *Tributoria* action is a method of division. The *Tutela* action is against guardians. The *Tertullianum* senatusconsult is against calumniators. The *Familiae erciscundae* formula has a dual nature in its proceedings, for each of the parties is both plaintiff and defendant. The *Funeratitia* action demands the expenses for a funeral that have been lawfully paid by someone, and these expenses take precedence over all other debts. The *Atilianum* senatusconsult decrees that a possessor in good faith shall neither make a profit from what remains nor suffer a loss. The *Amphianum* senatusconsult has been completely abolished. The *Adrianum* senatusconsult is completely in force. The *Atilium* senatusconsult appropriately forbids that title to stolen goods be acquired through long possession. The *Lex Caii* imposes a fine of one hundred gold coins upon anyone who moves boundary markers, for each marker moved. The *Lex Voconia* has been completely abolished. B The *Asumianium* senatusconsult is of this nature, O King: if someone owes fideicommissary liberty under a condition, or equally under a day, and it is lacking for a valid reason, it directs that the liberty proceed when the day or condition is fulfilled, and he who defaults does not lose his rights of patronage. The *Lex Julia* concerns adultery, *lese-majesty*, and armed violence. The *Claudianum* senatusconsult has been completely abolished. The *Carbonianum* provides aid to minors. The *Lex Cornelia* is against forgers. The *Largitianum* senatusconsult has completely fallen into disuse. The *Ninianum* is not in use. The *Orphitianum* provides children with certain legal rights in the inheritance of their mothers. The *Lex Papia* has been completely abolished. The *Silanianum* senatusconsult introduces a penalty if someone has suddenly suffered a violent act. The *Tertullianum* senatusconsult assists mothers in the full legal inheritance of their children. The *Lex Falcidia* must be explained to you immediately, for it is not a little difficult to understand. The twenty-five years of minority, O King, are computed legally from moment to moment. If a condition is imposed upon someone without a defined time limit, he has two days to fulfill the condition. This is the legal computation of time, O Emperor: the day begins at the seventh hour of the night and passes exactly until the sixth hour of the following night. An appeal is granted within ten days.
After the separation, let the woman make a proclamation within thirty days, according to the custom of those who are pregnant. And after the opening of the testament, O Emperor, let the heir prepare an inventory within three months. For possessions of goods which are conveyed to collateral relatives, a limit of one hundred days is set. Those who are condemned have four months on account of delay; once these have passed, they pay the interest of one hundredth to the plaintiffs. The redhibitory action, O Emperor, which restores the sold item, is moved entirely within six useful months. The action which reduces the price of the sold item, that is, for how much less it is worth, is finished in six fatal months; but if the seller firmly warrants the thing sold, the action shall not exceed a year’s time. A year is set for the gift of a legacy which someone has left to a religious house. A year is set for one who makes an exception after the death of a spouse, for opposing the exception of a dowry not paid. He who is sought for judgment on account of a great crime, unless he presents himself within a year, is rightly cast out from all his goods. The action given against one who has seized a foreign thing—either by some fire or by shipwreck—is limited to a year for quadruple value, and no further; for after the year is complete, he is condemned for the simple value. Every widowed woman shall mourn for only a year. The action concerning deceit is limited by two years. And regarding a plea of unpaid dowry, someone will have two years joined together for the sake of the rebuttals.
An emphyteutic holder A or a tenant of a venerable place, doing worse to the thing leased, or witnessing ingratitude, is deprived of the property in two whole years. If a marriage has been examined in two years and after this has been dissolved by a lawful dissolution, for the husband requesting the written dowry, there is an exception regarding unpaid money; but if the marriage has been extended for ten years, only three months are granted to him to move the suit. Every financial suit moved lawfully ought not to be prolonged beyond three years. After the twenty-fifth year, grant a four-year period for restitution to minors. The time for an *inofficiosum* [undutiful testament] complaint is five years. The crime of adultery is extinguished in five years. The crime of peculation is limited to five years, and the action competes no further. An infant is one of seven years. Within eight years, one cannot be a reader. The period, O Emperor, for the usucapion of immovable things is a decennium among those present, and twenty years among those absent, and no further. The years for an unpaid dowry are ten. She who marries unlawfully before her twelfth year does not contract a marriage; if, however, a betrothal existed, this again remains in law, B if no one wishes to dissolve it as by law. Twelve years is to be considered the age for puberty for females, and fourteen for males, and an eighteen-year-old is able to act as an advocate. He who adopts someone must be older than the person being adopted by eighteen years. C When a female will ask for indulgence of age, acting lawfully at eighteen years, let a man be twenty years old for the sake of indulgence.
A He who is less than twenty years of age cannot judge. The limitation for the expiration of a charge is twenty years; five years only extinguishes adultery, and for this reason also peculation. He who has completed the twenty-fifth year of his age, let him come to the administration of his own affairs. A minor having requested indulgence of age, if he grants any immovable property to someone, the gift shall not be valid unless a decade, or even more, passes after the twenty-fifth year. A long time cuts off the action regarding a sale, and that regarding the recovery of any inheritance; the entire personal action is thirty years, and it is extinguished and destroyed by no means further. The *finium regundorum*, that is, that concerning boundaries, is extinguished and destroyed by no means further, within thirty non-precluded years. A personal action is extinguished appropriately by this time limit, unless it be interrupted. B Temporal actions are extinguished by this time alone; and double judgments, these three only: that regarding the division of certain common things, that regarding the family, and the third regarding boundaries. Neither the theft action, nor the *pro socio*, nor that regarding the abduction of movables, which the Latins have thus named *vi bonorum raptorum*, is valid for an action for more than thirty years. But that which demands the double from a thief is extended for the time of the one who stole the thing. For forty years the hypothecary A action is extended regarding the thing of the debtor, providing he holds and possesses it and clearly occupies it. Actions of good faith are many and such as these: sale, purchase, leasing, partnership, letting, administration of others' property, action against guardians, mandate, deposit, action concerning that which was lent, that concerning a pledge, that concerning the division among co-heirs, that which divides common things, even without partnership, and the *praescriptis verbis* of things exchanged; and again another of similar name, the *aestimatoria*; and the *hereditatis petitio*, which demands, O master, the things of the inheritance. It was formerly *stricta*, and that from *stipulatio*. The Falcidian law has such a nature: if any father of one child should die, writing a disposition but not mentioning the child, but has left the inheritance entire to others, the child shall receive a third part of the paternal B goods. If, however, when he had children, two in his life, he mentions neither in making a testament, each shall receive a sixth of the paternal goods. If, however, there happen to be three children of the deceased, each will have a ninth of the paternal substance; a twelfth, if there happen to be four children; but if there happen to be more, O master, than four, to these is allotted the half portion of all the paternal substance, as seems good to the Falcidian law. Those who conduct a sale of anything without a defense, C obtaining the validity of the action. But that which demands the double from a thief is extended for the entire life of the thief. The hypothecary action for the debtor having the thing, and properly possessing it, is extended to forty years. These are indeed actions of good faith: purchase, and sale, leasing, partnership, letting, administration of others' property, action of guardianship, mandate, deposit, loan, concerning a pledge, concerning division among co-heirs which divides common things even without partnership by prescribed words, whether it be about things exchanged, or again another of similar name, the *aestimatoria*, the *hereditatis petitio*, which demands, O master, those things which belong to the inheritance: from *stipulatum* it was strict. The Falcidian law has this nature: if any father of one son has died, but in writing a testament does not mention the son, but has left the inheritance untouched for others, the son shall receive the third part of the paternal goods; if the father of two sons has died and, making a testament, has not mentioned them, each will be a participant of the sixth part of the paternal goods; if however there are three sons upon the death, each will have the ninth part of the paternal substance, but the twelfth will be divided into four sons: if there are more, O master, than four, to them it pleases the Falcidian law that half the part of the father's substance be divided. Those selling any thing without defense, in only D
A the price of the thing sold are they condemned; but those who defend it, they pay also the price and the penalty of the double, for so it was ordained. The exchange, O master, must be declared to the judge. Of a deposit alone there is no exchange. That which has a simple condemnation, from stipulation, that from loan, that from purchase, that from hiring, that from mandates. They have a double exaction, that of Aquilius, hidden theft, or a deposit. But quadrupled is that of manifest theft, and of very many other actions and of more "in factum" actions, of fear, and of calumny, and of other lawsuits again. A double-quadruple is what he who, O master, has justly seized goods from a shipwreck pays; and one quadruple is assigned to the treasury, and the other quadruple the one who suffered the shipwreck has. No one summoned to court in his own name, or conducting another's lawsuit before judges, not having shown a written mandate of the principal actor, shall rightly be required to give security for the judgment. Some actions are from law, others from imperial constitutions, and are perpetual as it pleased the laws. The laws of the praetors are by nature annual; and few praetorian actions are perpetual, as that concerning theft, and that which is given to legitimate possessors of goods, O master, for those more practiced in the law. But penal actions, so called, are given to heirs, but not against heirs, B as is the case of theft, of seized goods, of the Aquilian law, of damage, of injuries: if one has initiated the trial of the lawsuit in the courts, then it is given both to heirs and against heirs. A woman after widowhood, not marrying a second time, divides the paternal inheritance with her children, and takes an equal share with one of the children, both as to use and as to ownership; and the same reciprocity holds also for a husband. A son independent by law, dying without children, let him give the legitimate fourth part to his parents. He who has violated a maiden and violently seized her with barbaric swords must be punished with the sword. If, however, anyone should seize a maiden without weapons, he undergoes both confiscation and has his hand cut off, or rather he is not confiscated, but to her who was violated the entirety of his property is justly applied; and from such a deed a marriage must not be performed. One must, according to the custom formerly established, have the distances between markers in the sea be three hundred and sixty-five cubits, exact and predetermined, so that half of this entire measure stands from the boundaries, O master, of the one part, and the rest extends to the neighbor. He has the same treatment if he blinds the pupils of the eyes, except that he shall deservedly give an eye for an eye; but if anyone should gouge out the eyes, alas! the two, he himself shall have one eye only gouged out,
instead of the one missing; let him give the double portion to the one blinded by him from his own possessions; but if he be most destitute, let the two be gouged out. Poor and destitute women who have not remarried shall receive a fourth part of the husband’s possessions, and let them be masters of this, even if children exist. Betrothal does not occur under the laws for a six-year-old. He who sells a fugitive slave contrary to the laws gives the difference, or is made to pay double. Actions that bring infamy, my master, are: injury, theft, guardianship, deceit, deposit, and the violent seizure of goods. The action for theft, master, for injury, for deceit, and for violent seizure of others' goods, even if one is not condemned, but escapes condemnation by giving something, is subject to infamy. Before real possession, no one recovers possession by intention alone. However, I can retain by intention alone possession acquired for me by body. The interdict "unde vi" is understood appropriately if someone should cast out of possession him who possesses an immovable thing; for if he who inflicts force knows that that immovable thing belongs to the possessor, the possession and its valuation are exacted from him; but if he who inflicts the force is the owner of the thing, he sustains the penalty of total deprivation of that thing for his audacity.
The name creditor is general in law, for everyone to whom something is owed for any reason is by law a creditor of the one who owes; and again, another is specifically called a creditor A who has paid out money to the debtor, or a thing which by nature is weighed or measured, that is, which consists of weight, number, or measure. Whatever happens to be of weight, and of measure, and of number, is B by weight, such as gold, silver, and lead; by number, small coins; by measure, wine. The division of debts is by nature this: some are with mortgage, others without mortgage; and of debts called mortgaged, some have privileges, others are without privileges; and those without mortgage, call personal to me, but those having a mortgage must be called real; and debts prior in time, being public, are by nature preferred to mortgaged debts, and to the dowry itself, I mean the later one, but a mortgaged creditor having priority—whether general or specific—of the later one, is by nature always to be preferred to the public [claim]. The dowry, even of the mortgaged creditors, is by nature preferred and later. There are other debts of the later ones that change the force of the dowry in a wonderful manner, such as that given to soldiers first, and that which is lent for the sake of purchasing a military commission. Call it "condictio," a certain recovery by law. A mortgaged creditor, even a later one, defeats in some way the unmortgaged and prior one. A witness to be rejected is every corrupted person, the mime, the C stage performer, and the gladiator, and as many as have been condemned in the courts.
[...as] those who fight with beasts, or whoever else has been condemned in court as a slanderer, a thief, or an adulterer. An underage person is not a witness, nor is a woman. Yet if the matter be such as escapes the view and sight of men, women shall bear testimony. A slave is also a witness for lack of witnesses, against any other person, except his own master. The infirm, the aged, soldiers, protospatharii, and priests do not bear testimony unwillingly, but only of their own accord. A bishop bears testimony neither unwillingly nor willingly. Other persons may be compelled to give testimony even against their will—especially if one is poor and of lowly condition, and has brought a lawsuit against someone more powerful; because, through the terror and fear of that man's power, the poor man's witnesses might hold their peace, they are dragged by force to give testimony so that that which is true may be established. Two voices of witnesses are sufficient for a payment A if only one pound has been paid. But if more than that, three witnesses must be admitted. For a deposit, bring forward five witnesses. B Testimonies are fittingly rejected if someone, having paid a debt which he had begun in writing from a creditor, obtained a written receipt confirmed by the signatures of three witnesses; for if he has not done this, he shall be bound a second time, unless five witnesses produced say that the receipt was given to the debtor, and in the presence of those witnesses the creditor said that he had received his own debt from the debtor. If a creditor has executed a receipt for a debt, after thirty days have elapsed, he cannot raise an exception regarding uncounted money, saying that although he wrote the receipt, he did not receive the money before the receipt; but if he proceeds within thirty days, then the debtor is compelled to prove that he truly paid the debt to the creditor. Whoever has legally executed a receipt for a dowry, having set out the whole matter according to the species of the things, this man shall not allege uncounted money at all. If anyone has admitted in writing that he owes a debt, he is limited to two years to institute a plea of uncounted money; and then the judge compels the creditor who is being sued to demonstrate the payment of the loan lawfully. If anyone has confessed a debt in writing, but not because of a counting out of money, but for another cause—perhaps as from a sale—and having made this clear, later denies that he owes the debt and seeks to annul his own confession of the debt before the accuser, he himself is heavily burdened to prove clearly that he confessed a debt he did not owe, and that he wrote it under force or perhaps by deceit. Sons under authority and a father may be admitted as witnesses to the same matter, even in a testament. A testament must be subscribed by the hands of five witnesses and sealed. He who shows the loan when the debtors deny it, has taken a sufficient time of thirty years.
If perhaps he should fail in the presenting of witnesses, he is able to defer an oath to the debtor; and if he swears, the creditor is defeated. But if the one sued should tender back the oath, and the creditor swears, he takes the money. But observe, master, a beautiful and much-sought-after point, that it is allowed to pass from one legal argument to another without any reproach A.
Giving in return for performance, or performance in return for giving, or giving in return for giving, for this is fourfold. Again, the action of *praescriptis verbis* is born; for if this convention, not having found an action homonymous to the contract—namely, being called by the general name of contract—gives the action B *praescriptis verbis*, it tells of the matter without any complaint of another, master. Convention, master, is divided into three. For it is public, if it chance, or private. But he has divided the private again into two parts: the legitimate, most excellent sir, and that of nations (*jus gentium*). Do not, therefore, set down four, but call them only three, for that legitimate one and the one of nations have consumed all private general [conventions]. Therefore, divide the convention into these three: public, legitimate, and that of nations. And the public is, as it were, public peace; the legitimate, that which is established by special law; and that which is neither legitimate nor from the public, is the convention of nations in general. Of such conventions, master, again, some beget an action, while others [beget] an exception in a certain way. But as many as beget a homonymous exception, I mean those to the contracts from which they are generated, are called conventions in a general sense, but they fall into the specific calling of a contract, into sale, into leasing, or into partnership. And if perhaps it should remain unchanged into a specific one, and rather, if it has proceeded, either giving in return for giving, or that called from the intent of the certain, it ends in condemnation C. Of the pacts, some are *ex continenti*, those which happen to be somehow simultaneous with the contracts. Others, the ancients say, are *ex intervallo* laws, or subsequent to the prior contracts. Those they call *nuda*, that is, bare agreements, not producing an action. For no one, having made a pact after the troublesome time, will from that point have an action regarding the agreement. But if anyone should perchance be countered by this, from that point he is barred by an exception against the one countering. Names as sacred the public temples; call the tombs *venerable* and religious. And public, common, for the use of everyone, your sea, the rivers, harbors, and the shores D. The popular things are those belonging to the people, the theaters, and the stadia, and the council-houses. And every creditor who initiates an action for a mortgage against a foreign man who occupies the thing, is barred by the exception of the fixed times.
A minor is prohibited from giving testimony in a criminal case. A A person is called intestate in many ways: he who has not made a will, or has not made it according to the laws, or who has a will that is torn up, or when it is void, or when it is without an heir. He who has not made a will may make a codicil, and someone may write a codicil before a will; an heir may not be disinherited in a codicil, nor may a fideicommissary inheritance be granted, nor may anyone write an inheritance in a codicil, nor is a choice added to heirs in any case at all.
Regarding stipulations, know this: one is judicial, such as the one concerning fraud; one is praetorian; one is mixed in nature; and one arises from the agreement of both parties.
Authentic and pupillary are one will; yet there are two inheritances from one will. When the second will is voided, master, the first is also rightly broken on account of it. He who has made two is intestate. For the heir written in the second will, by not succeeding at once, renders it void; that is the legitimate voiding of a will. But there are also other ways in which it is of no effect; for many flaws, O king, are in the nature of a will: voidance, inefficacy, breaking, and also a complaint. B The complaint belongs only to natural children when they are passed over by their parents. Brothers also complain about the wills of blood relatives if they write heirs who are utterly condemned.
And this, O king, is the third part of the whole discourse. For the name "man," master, is common to both females and males, which he who states, states both sexes. For the nature of an action is one thing, and the nature of an exception is another, even if he who has the exception takes the position and order of a plaintiff in court. By nature, every minor owes a debt, and every creditor of minors is a creditor by nature, not by law. The offspring of a stolen slave-woman, because it was born in theft, is not a part of her; thus there is no penalty of interest on it. A discourse which has neither conjunction nor division should have its meaning according to the mind of the speaker; for if someone, being lord of houses and fields, writes in this way, "I bequeath to my friend houses fields," using a disjunctive phrase, he has spoken collectively; but if he speaks in this way, "I give houses to Peter, fields to Paul; let Peter make the selection," he has divided it, he has not joined it to Paul's word. What is manifest in the sight of the multitude must,—for it is necessary that all the witnesses be present—either state the word or do something immediately. The summons of an action brings with it the collection of the debt.
The name of a trial is properly a genus; it declares, in the strict sense, the entire action. He who speaks of arms, incidentally understands stones as well. Freedom and giving are by nature the same; for if someone should say in the presence of witnesses, "My debtor is freed from the debt," he has clearly spoken as if he had received the debt. Every great negligence is found to be fraud. By saying "acorn," you mean every fruit; and by mentioning the oak, you mention all trees. By saying "son," one speaks also of the grandson; and by claiming one is born of such, he introduces the grandfather. The captive is in no way absent because of time, but he who is shown to be held in the hands of robbers is. For no time runs against captives, but it flows appropriately against those who have been robbed. The designation of property is as a model of a genus, and of movables and immovables, and of corporeal and incorporeal things, it holds rights in a cohesive argument. We call friends not those known by chance, but those possessed by the clear pretext of a fair-seeming friendship. Bonds are common, and of distinct commons, but imprisonment is public and alone. To restore is, in the strict sense, a most exact restitution A of every fortune and cause of bodies.
Ignorance of the law does not receive pardon, but ignorance of fact is appropriately pardoned by the laws. Let an illegal imperial rescript be void, granting a remission of punishment beyond one's authority. For the sake of accuracy, O master, prefer justice. Let a criminal charge be brought to an end for you within two years. Whoever takes refuge with the powerful for the patronage of a lawsuit falls, O master, from his entire case according to the law. He who is condemned within a four-month period is not subject to the collection of those things which are in the condemnation. If anyone wins a lawsuit by false witnesses, he undergoes both punishment and the dissolution of the things judged. That which has been done through fear is not valid. Every man who perpetrates force is held liable also for fraud; the action regarding fraud is given for a reasonable cause, where another action is lacking. A minor is not assisted in criminal matters. A pact is for specific and manifest things for the sake of a gift; a transaction is the dissolution of uncertain and doubtful things: a transaction is only regarding those things upon which the parties have agreed. Regarding those crimes for which the penalty of blood is imposed, it is permitted to make a transaction, except for adultery; but regarding those which do not impose the penalty of a crime, it is not permitted for the parties to write a transaction, except in the case of forgery. Without confession or the giving of things, a transaction is not accustomed to proceed according to the laws. Partnership proceeds both for a time and in perpetuity. But a division, O master, which has been performed through fraud outside of a court, is intolerable to the laws. Although a deposited object may have become worse with time, an action of deposit is initiated. An uncertain stipulation B
A does not carry a demand. If that which is born comes from a horse and a mare, let the owner of the mare hold power over the offspring. If I purchase land with B good faith at the beginning, but later, having learned it is another’s, I build upon it, I do not receive the expenses for the building, but I am able to remove the materials without damage. C When the land is claimed back, the possessor does not receive the seed which he sowed into that land. He who has the use of fruits pays also the taxes; he who has by law the use of anyone’s house, let him repair it with his own expenses, or let him fix its tiles; but if he has spent anything beyond those expenses, he shall reasonably receive this back from the master. It is forbidden for *filiusfamilias* to borrow, even if they be in high office; only he who possesses a *peculium* may borrow, and this according to the laws. A guardian does not buy property of an orphan. You shall not overturn a sale for a small cause. He who sells grain from the public tax suffers, O master, a capital punishment. The seller not delivering the thing to the buyer reasonably gives the difference, according to the laws. In the court concerning possession, my master, the seller giving the double is not demanded further, D by pretext, as it were, of things written as a matter of custom in the sale. The fruits which have sprouted after the transaction entirely belong to the one who has bought the field. If the thing has been unjustly snatched away by intent, the buyer has no action against the seller; but if anyone has bought another’s property knowing it to be such, he shall never become the owner by way of knowledge of the matter; but if anyone shall buy some property of another not knowing it is another’s, the sale stands; he himself will become the owner through the use of the thing, and the seller is justly liable to the master. If anyone shall receive a thing for some cause, let him fulfill the condition or let him give back the thing. He who is caught in a charge concerning injustice cannot confirm anything by his own testimony. The buyer proves the slave a runaway, if he says that before the sale he was a runaway; so it has pleased the laws. The census is stronger than witnesses. Evidence concerning a debt is not trustworthy if anyone proves it by his own instruments when all the witnesses have died; but let the comparison of the notary himself prevail. An oath brought forward ends a dispute. He who, with no one accusing, has sworn, gains nothing. But one who has sworn that the thing is his own, shall recover both the fruits and the offspring of the animals. Verse 1211.
If someone, owing to some action that is being doubled, perchance makes an oath as if from a denial, he does not have the exaction of the double, but only of the simple. But if, after the oath, he brings a primary lawsuit, he demands the double, having proven the debt. He who is unwilling to swear, and yet has not brought a counter-oath, is condemned immediately as if by confession. A If someone introduces an oath, should he repent, as having securely acquired other legal rights, if, on account of this, he be defeated a second time, he should not introduce the oath again, O Master, and this is proper; for until the decision, let him forgo the oath. The inquiry in a lawsuit touching an oath is not easy. If someone admits to an excessive interest, the transgression ceases and he yields what is proper. If interest not owed before the capital sum is paid to the creditor as part of the capital, if indeed one pays towards the capital, it is altogether recovered, such being pleasing to the law. And interest on the debt paid in portions rightly does not exceed the double. A gift made because of death to someone, on the donor’s recovery, is immediately reclaimed, along with the fruits, the offspring, and the additions. And as for one who gives something as an heir, not being an heir, he recovers that which was given, O crown-bearer. The dowry is not confiscated even if the husband’s goods are confiscated. Both a guardian and a curator, having paid out, recover nothing of what they have paid if the debtor perhaps has a debt without interest.
A The creditor is able to hold back from the fruits, and he does this successfully up to the amount of legal interest. But if perchance the public treasury is selling the pledge, and the creditor sleeps, he loses the thing. If the creditor intends perchance to sell the pledge, let him make his intention clear to the debtor. The father-in-law and mother-in-law, having given a maiden to one who has betrothed her, do not receive her back when the marriage is dissolved. Mutually shared disposition accomplishes the marriage, for it needs no addition of dotal instruments, unless he happens to be a protospatharios or of higher rank. B If someone enters into an unlawful marriage contrary to the law, he is condemned to the loss of his own possessions, unless he has become a father from previous lawful marriages. B When the marriage of an autonomous wife is dissolved, she is immediately restored, as it seems good to the laws; she is not under power, and in this case the dowry from the father becomes in some way common to her and her parent. A dowry is given to the wife even while the marriage is subsisting, so that she may give it to creditors, or buy fields, or provide for children from another marriage. This division of expenses is natural: some are for necessities, some are for profit, and some are spent for pleasure. Among the necessary ones is the breakwater [(17)] for the sea, and the planting of new vineyards and trees, and for the utility of the field, granaries. He who does this improves the dowry, such as a new plantation or a bakery.
A Dowries are not diminished, and yet they are claimed back, in regard to expenses that provide enjoyment. Let no one bring a charge of theft against a wife; Let him instead bring an action for the removal of stolen things. When a husband has received a dowry that has been valued, He is not considered to receive the things themselves as dowry, But only the valuation of the things he received, Of which he exacts the price when the marriage is dissolved. The mother on behalf of her daughter, as the laws have decreed, They say is not compelled to provide a dowry. A woman, while the marriage still subsists, Seeing that her husband has become destitute, May hold his property as if it were mortgaged, Not only for the sake of the dowry, but also for paraphernal property, And for the rights of antenuptial donations. Not the consent of the father, but a legal act, Frees the child from parental power. If someone has natural as well as legitimate children, And the mother of the natural children is still living, He cannot leave more than one ounce to these natural children And their mother; but if there are no natural children, But only a concubine, let her have half an ounce of his property. But if he has neither legitimate children nor parents, Let him give all the measure of his property if he wishes To his natural children, for there is no one to forbid it. But if, while dying, he has some of those who ascend, Let him give to them the lawful portion, And let him bequeath the remainder to his natural children. A eunuch, a *spadon*, can adopt, and only he, For this is forbidden to castrates and *thlibiae*, A For the *spadon* can perhaps beget children. If someone having previously made a testament legally, Should write a second one, let the first not be broken Unless the second is first confirmed legally. One may not make a testament if under fourteen years of age. He who does not give the witnesses their travel expenses for testimony Immediately incurs the loss of the inheritance. Those things which are struck through or erased, If they are so by the knowledge of the testator, Are completely void; but if not, let everything stand firm. A certain heretical stipulation is if one writes thus: "If I die at fifty years of age, Let Nicephorus be heir to my life." What is a fideicommissum? If one should say thus: "Restore, my son, this thing to so-and-so." But the fideicommissum by category is this: "Restore all my estate to this person." No one confirms an inheritance that is useless in a testament By means of codicils, for so it has pleased the law. Codicils written before a testament, Unless confirmed afterwards by the testament, Have no validity at all, as if they had not been written. A guardian, when the guardianship has ceased, gives interest Until the accounts of the guardianship have been rendered. A guardian who buys through an interjected person Does not have a purchase confirmed by the laws. If, after the commencement of a complaint against a testament, A settlement proceeds according to the laws, Hold the disposition as perfectly firm. One who has an adoption from a certain woman Has no power to bring an action against what she has disposed.
A guardian has the power to demand possession, but he cannot renounce it in any way. The first degree is not from the collateral line, for this one alone is of the upper and the lower; of the upper are those who begat, and of the lower, those who were begotten. But when it is a degree of both child and parent, A the children are preferred for the inheritance, and the parents happen to be the first of the collateral line, except for brothers and brothers' children, who naturally have children that have a surplus of members. A pregnant woman sentenced to capital punishment brings forth a free son, and thus the laws have decreed. Some things are of divine right, such as sacred places, monuments, gates, and walls; others are human, which the cutter also calls some private and some public. These are of the community, the former of each individual. A shameful gift made to a harlot is valid according to the laws; and the emperor does not revoke a gift that has been rightly made. All the books of Leo are most useful, but the last of these is very useful: the degrees of relationship drawn in the form of a cross, above and below, O master, and from two directions on the side, will show you the degrees, the first and the last; and even if you thus annotate the verse for these, O king, it will make the knowledge of what has been written easy for you to grasp. Learn also the law sought today, which the elder Romanus introduced to life; for in this way he also forbade sales by the villagers, A those made first to great persons, for against these he walled off even to the last, from acquiring rustic property in any way, whether by purchases, or gifts, or bequests. For a reversal was also appointed to them without payment. And for those of the villagers intending to sell the immovable property which they held in the villages, he gave, for pre-emption, those lying nearby, among whom first are those of the kin living nearby, B after whom those who have possessions mingled with them, and after them those paying the same taxes placed alongside, after whom those joined in part; for these happen to be the last, and they are called *homoteleis* as it pleased the laws—all together those who happen to be of the same subjection, even if they have taxes of different places.
The Porphyrogenitus, the master Basil, closed off to the powerful all strength of time, even if you say forty years, or even if you say twice as many. He forbade the powerful to take back prices which they have perhaps bought from village places, but he undid this law from his grandfather, so that it might have the full power of the things decreed. If some of the villagers, building oratories, have placed the names of monasteries upon them, and from there having found an unexcused impulse, some of the bishops have seized the place, the novella takes away all of these, and again restores the possessions to the villagers. If, however, such possessions have been increased, and many have been shorn in them as ones who have multiplied their greed, or an increase has happened of these oratories— C with eighteen monks having been tonsured in them—none of these things the lawgiver has rightly annulled.
[alt-version omitted]
Next, he decreed regarding the treasury, that no time should ever be valid against it. Then he found a law [that] the protospatharios and all those above the patricians, should they become murderers, be subject to the penalty of infamy alone. Another, harsher one he introduced to life, that all who have been proven intentional murderers, even if they be of the patrician rank, it is just to be put to death.
A These things, O Lord, are sufficient for you, spoken of the laws; for some have been written more specifically, while others have been inscribed more generally, O crown-wearer. I have touched upon all the parts, O Lord, of the legal matters, and I have produced for you a most concise book, ready for comprehension, and handy for knowledge.
Epitome of the laws of the most wise Psellus to the Lord Emperor Alexius. A concise synopsis of the legal chapters to the Emperor Michael Doukas.
Great and difficult to contemplate; both extensive and... ready for comprehension, of the Pandect... a receptacle for varied passages, which he called "Digests" or "Pandect," as being indicative of all the laws. ...for instance, what are called by all "first books" we deposited in four books. ...the next part of the work, which is at once the fourth and the middle, we deposited in eight other books, and the middle part, as it is said, of the whole composition, just like a navel. We gathered into the number of nine books, of which those concerning wills lead the way, and the orders of lineages themselves, and the degrees [of kinship] to these, having inscribed them in the book; the Digests and the Codes and the Institutes, that is, the introduction to the laws, in many places. And having gathered all the Novels themselves into one, and having completed such a treatise in sixty books, he perfectly suspended the so-called Sixty-Book [Basilica]. The Institutes, that is, the introduction of the laws, as the first elements for those learning the laws. Having abridged the introduction to the laws, as first elements for those versed in the law. Of all legal education...
FRANCISCI BOSQUETI JURISCONSULTI AD MICHAELIS PSELLI SYNOPSIM LEGUM BREVES NOTAE, SEU LOCORUM JURIS AD HUJUS OPERIS LUCEM INDICES
The inscription of this work is diverse, for in the Vatican Library one codex has this inscription... But another... That one begins, "Great and difficult," etc. The end, however, etc.
Vers. 1, 4, 7. Anton. Augustinus in his book *De nominibus* first published these verses with some changes, as in verse 14... Rightly here does the codex, Harmenop. lib. I, tit. 1, c... Regarding what concerns the class of this Pandect, for whose sake Augustinus brought forth these verses, Casaubon noted before that, regarding Strabo, it is rightly believed by the Latins that a woman, for whom also the parchment is of the same gender.
Vers. 18. Justinian, in the constitution *De confirm. Digest.*: And in the constitution *De rat. doc.*; "We decree that the first part of the laws be handed down to them, which is called by the Greek term [prota], than which nothing is more prior, because what is first cannot have anything before it." Psellus, however, perhaps here accepts by the name of 'prior' the entire former collection of the Digests, which reaches to the fifth part, which is explained by the nature of all contracts: therefore verse [19] "the first four books of the Digests which are, are called the first part of the prior." Sometimes I wished to read, "by the edict of the praetor which fills this entire part, and from which Justinian testifies he began the Pandect," in the said constitution *De rat. doc.*
Vers. 20 et seqq. Justinian in the said constitution: *De judiciis*, in another seven, and those *De rebus* in no more than eight, etc.
Vers. 26. In the said constitution [in the] Latin [version], the fourth place, however, which is also found to be a sort of navel of the entire composition, received eight books. [In the] Greek: And below: etc.: which lead me to read in this verse...
Vers. 28. Justinian, ibid: etc.
Vers. 30. The sixth part treats various [matters], of which consult the said constitution of Justinian. But two distinct books which conclude that volume, which the moderns call *Infortiatum*, are rightly inscribed regarding the various degrees, since almost all their titles incline toward the successory edict. Therefore deservedly Justinian in the said constitution, etc.
Vers. 38. Justinian, in the said constitution: And after this, two terrible books are placed, for private and extraordinary offenses, as well as for public crimes, which contain all [their] severity and the atrocity of their punishments.
Vers. 44. Harmenop. lib. I, tit. 1: etc. See Attaliata in the preface to the *Synopsis*.
Vers. 50. Harmenop. in the said tit.: Attaliata in the said place: From Justinian in the *Proem. Instit.*, § 4: "As they are the first elements of all legitimate knowledge;"
translated by Theophilus. *Gloss. Basilic.*: "Introduction of legal rules, introduction of laws."
Vers. 63. Undoubtedly he indicates Eustathius the Antecessor in the letter *On chronological intervals from a drop to 100 years*, from which we shall see he derived many things. The inscription of this book here related by Psellus is certainly to be noted, different from that which is commonly edited, whose first title is *On the drop*.
Vers. 66. It is very difficult to observe from what part of the law Psellus gathered these first points: we being greatly destitute of Greek collections, such as the *Small* (collection), the *Prochiron*, and the *Epitomes* of law which are frequently written by letter. However, he seems to have traversed some epitome composed in the likeness of the *Institutes*, as we shall note in their places. This verse, however, explains the definition of law related by Papinian, lib. 1, *Definit.* l. 1, *D. De legib.* Indeed, the *Epitome* of the *Hexabiblos* which is held in the Vatican Library, tit. 1, *On law and justice*, chap. 1: "Law is a common pronouncement, a dogma of wise men," from which Psellus could have excerpted these and the following.
Vers. 72. Such is the mind of Psellus, that he posits a twofold natural law: one which is common to all living creatures, and which is properly called natural, l. 1, § *Jus naturale*, *D. De justit. et jur.*; another which holds force among men alone, namely in the conscience of good and evil, of which D. Paul, *Epistol. ad Rom.* cap. 2: "For when the Gentiles, who have not the law, do by nature those things that are of the law, these having not the law, are a law to themselves: who show the work of the law written in their hearts, their conscience bearing witness thereto, and their thoughts between themselves accusing, or also defending." The law of nations, however, is that which nations use according to the definition given, *d. l.* 1, § *ult.*; yet not all nations, but those at least that live according to some norm of reason: which Theophilus, l. 1, *Instit.*, tit. 2: "Legitimate is that which extends to all men, that is, those willing to live considerately."
Vers. 79. No interpretation has seemed to me more apt for *σχέσιν* (relation) than instinct and appetite; for what is more natural to living creatures than instinct, which they use as if it were reason, and, as Plutarch says, as if it were a genius? Again, however, that *ὄρεξιν* (desire) in Hesychius for *σχέσις*. As animals "use the impulse naturally leading to that which appears proper." Plutarch, *adver. Colot.*: I sometimes wished to read *στέρξεως* (affection) so as to signify the mutual affection of parents and children, for the Greek interpreters use that example of natural law. Theophil. lib. 1, tit. 2 *Instit.*: "And the affection toward those born." Harmenopul. lib. 1, tit. 1, adduces only this: "As mothers loving those born of them."
Vers. 87. It explicitly appears that *τοπικόν* (topical) should be read, not *τεπικόν*. Theoph.: "What is a political legal rule? That which is topical and useful." Harmenop. seems to have said *useful* from *usu*: "A political law is that which one single city uses, because it is advantageous to it."
Vers. 88. He has not followed Papinian, l. 11 *definit.*, where he distinguishes civil law from the praetorian, and enumerates the parts of it. But civil law which comes from laws, plebiscites, senatus consulta, decrees of princes, the authority of the learned, is the praetorian law, that which the praetors introduced, etc. l. *Jus autem civile*, VII *De just. et jur.*; which, however, Justinian confuses in *De jur. nat. gent. et civ.*, and establishes six parts of written law, concerning which also *Basilic.* lib. 11, tit. cap. 14: "It was introduced either from the Twelve Tables, or from those of the decrees, or from the imperial dogmas, or from the authority of the wise. And the praetorian legal rule is the living voice of the political."
Vers. 91. This is the order of the *Institutes* of the law, and of the perpetual edict, which, however, he inverts in the following verse; just as does Attaliata, who at the very beginning of his *Synopsis*, tit. 4, discussed *On obligations and actions*. Wherefore it comes to mind to think that Psellus, and the one from whom he excised these verses, had prefixed those prolegomena of law concerning justice and law, concerning law, etc., and then finally begun from actions as the principal part of law. Furthermore, see to these verses l. 1 and 2, *D. De stat. hom.* and ult. l. 1 *De jur. nat. gent.* tit. 13, Psellus calls obligations "mothers of actions," "ties," "just-ones." Justinian, "an obligation is a tie of law," *voces*, "tie of a just-one." Theoph.
Vers. 95. See *Instit.*, *De obligat.* § 2 Caius omitted l. 1, *D. Oblig. et act.* Greeks: "Actions from a contract, either are in a thing, or in a question, or in an agreement," lib. LII *Basil.* tit. 1, cap. 1.
Vers. 96. I know not from what head of law Psellus drew that an obligation which is contracted by a thing produces only real actions. For that most manifestly opposes our law. For most personal actions arise from a real obligation, indeed the condictions of a loan, and of an undue payment, § 4 *quib. mo. contrah. oblig.* l. *num.* Therefore we shall read *οὐδὲ μόνας* (nor only).
Vers. 100. There is an example of an obligation which is contracted by writings, in the exception of money not actually numbered, which it was formerly permitted to oppose within five years, but Justinian concluded it in two years. *l. In contractib. XIV. C. De non num. pec. § ult.*, *l. De litter. obligat.* But that which is written in verse 104 must be referred to that example, for, with the debtor silent for two years, from that silence joined to the writings, which contained the debt, an obligation of writings arises: or certainly it takes strength by the aid of an exception of silence, which had already been contracted by the speech of the writings. *l. Non figura litterarum XXXVIII, D. De oblig. et act.*
Vers. 107. It is false, speaking exactly, what Psellus here professes; for one action does not beget another when only a single obligation is the mother of the action. Many actions indeed are born from one and the same obligation (though it is not always possible to act with all of them) which, like twin sisters, daughters of the obligation, run together; but nowhere does one of them beget another. Perhaps Psellus is to be understood here concerning obligations: in such a way that he places the principal actions born from an obligation for the obligations themselves: as, when from the same furtive act, the actions of double and quadruple, and condictions, arise, and many items also from the Aquilian law: he says that from the furtive act itself and the Aquilian action, others proceed. Which indeed cannot be expressed in correct speech, since by an act or contract, delict or quasi-delict, diverse actions arise from the same obligation for different figures of cases, not from each other. For we are obligated by an act and contract, and many actions compete against us and for us because of the reciprocation of the contract, arising from the obligation.
Vers. 117. I said contract having followed Ulpian; this definition of contract is common also to every agreement, which is defined as the consent of two or more into the same agreement, *l. 1, § 2, D. De pact.*
Vers. 132. Since the division of an action is most well-known, that one is in rem which is called vindicatio, another in personam which is condictio. *L. XXV, D. De verb. oblig.*; and Psellus here says *ἐν ῥὲμ δὲ ἦ καθόλου*, it is certain that *Οὐινδικτίων* should be read. *Basilic. LII, tit. 1, cap. 3*: "There are two kinds of actions, for they are either in rem, and are called Vindications." *Gloss. Basilic.* on *in rem*: "Generally, that is, the action through a thing." *Scholion.* Greek: cited by Carolo Labbæo *D. loc.* *Basilic.* "Vindication is called the exaction; and Condiction is the demanding."
Vers. 143. It is true what Psellus said generally, that two actions arise from a stipulation, from an obligation of words. Although, however, concerning diverse things
A stipulating matters are posited, from which actions sometimes are marked with a certain name, sometimes null, but come under a general name: here he reviews some of them, as in this verse the *æstimatoria*, which is an action concerning prescribed words. L. 1, § 1, D. De æstimat. act. Rightly, the *Glossa Basilica*: *Praestriptis verbis, when one having imitated a matter provides it to you for you to sell, saying, or bring me for this so many coins, or the thing itself.*
Vers. 146. Another action born from words, *damni infecti* [of damage not yet inflicted], concerning which the *Glossa Basilica* is elegant, which I translate thus: *Damni infecti, namely, concerning imminent and future damage, is a praetorian stipulation, born from an obligation of words, which is personal, and passes against heirs, and to heirs. It is advised, however, when a neighbor's house for fear of incoming rot threatens collapse, if the neighbor is unwilling to take care of it, and also to stipulate. But if it happens that I am affected by damage from that ruin, for that damage to be repaired I am sent into possession of the ruinous house. Therefore, fearing that, the owner of all the buildings places that stipulation. Therefore, if the neighbor is unwilling to stipulate, I am sent into possession to repair the house: and if within four months I receive the expenses from the neighbor, I withdraw from possession; but if I do not receive them, I become the owner of the possession by another decree. For here I think one should read, "but if not, I become the owner of the possession from the other formula."*
Vers. 149. Receive this concerning the stipulations formerly placed between an heir and him to whom an inheritance had to be restored, concerning which see Justinian, I. De fid. hæred. and in the *Basilica*, title *Concerning the restitution of fideicommissary actions*. It is called *Apocatastatica*, lib. XIII. *Basilic.*, title 7, cap. 41, and in the *Schol. Synops.* lib. XVII, p. 186: *The one moved against the one who was previously asked to restore an inheritance to someone.*
Vers. 154. He calls the satisfaction which is provided to legatees by the heir, *Legatorum* absolutely. *Gloss. Basil.: Legatorum icanodosian; Legatorum, by the name of legacy.* Concerning which title, *ut leg. vel fideic. nom. can.*, the common one is called L. *filiusf.* cxiv. D. De l. 1.
Vers. 154. One should read *Novation*, which is the transfusion and transfer of a prior debt into another obligation, either civil or natural. This is when from a previous cause a new one is so constituted, that the prior one is destroyed. For *Novatio* received its name from *novum* [new]. *Gloss. Basilic.: Novation; innovation and the transfer of an old debt into another engagement, from which the first is annulled; and it is called Novation from the new state of the new engagement.* Amend the same *Glossa* to *Novandi animo*. Read: *Novandi animo, renewing the mind.*
Vers. 197. If one may observe order in this *Synopsis*, I would have thought that verses 780 to 794 should be attached to this verse, to which I would then join verses 812 up to 843, with verses 805 to 812 inserted, until the discourse returned to verse 458, from which he begins to treat of actions *kata stoicheion* [alphabetically]. And that treatment finished, I would gather into order the treatment concerning times from verse 672, and that done, to this verse 198, having gone back, I would gather together in one these various rules plucked from the universal law, along with the rules of the Novels up to verse 1078, from which a single line leads the last part to the end. But because the scarcity of Greek interpreters plunges us into these windings, we will free these verses from only the most manifest errors just as they were written.
Vers. 205. Explanation of law 202, D. De reg. jur. *Every legal canon is shaky; for [laws] are easily overturned*; correct to *is overturned*, lib. II, *Basilic.*, tit. 3, c. 194. Thus in *Harmenop.* lib. VI, tit. 2, § 35.
Vers. 202. It is the definition of a rule, from L. 1, D. De div. reg. jur.
Vers. 206. These verses were excerpted from the *Institutes*, whose titles will demonstrate the perverse order of the poems. See lib. I, tit. 1 and 2. B
Vers. 210, § 1, § 2, I. De jur. person., under which title when Justinian had said, *in the condition of slaves there is no difference; but among the free there are many.* *There is therefore a unity in slavery, but among free men we find many differences,* says *Theoph.* Thence Psellus took verse 212.
Vers. 214. From tit. De ingenuis I., § and on the contrary, because the calamity of the mother ought not to harm him who is in the womb. *For he who is being carried will not be harmed by the calamity that has befallen the mother.* *Theophil.*; although he had introduced elsewhere that from which Psellus says, *depriving of paternal [rights].*
Vers. 215. From tit. Qui et quib. ex caus. manum. non poss., and § ult. verso 216 and 217. Today, however, and in the 14th year, a minor can manumit in a testament: *It is permitted for the young at the same time at which it is permitted to them to dispose concerning their other property and their own house-servants by last wills.* Novella 119, cap. 2.
Vers. 218. § Si adversus 12, De nupt. I. Verse 220, § Edicto 14, I. De usu cap. Verse 223, § Hæ mortis causa, I. De donat. Verse 226, § Nam dotale, nendi 2, eod. tit. Verse 223 and following, the whole title, *Per quas person. nob. acquir.* Peruse the remaining verses, and adapt them to the places in the *Institutes*, with no order of titles observed, unless you wish to invert these verses as well. Some things, however, though rarely, are mixed in, excerpted from diverse places of law.
Vers. 235. There are *idikai ktiseis* [special acquisitions] and *kath' omada* [by group], ult. I. *Per quas pers. nob acq.* Vers. 238, § ult. I. *De testam. ord.* Verse 239, § 6 and following, I. *eod. tit.*, that is, of those who are under the same power, they can be neither witnesses in a testament, nor in any other business in which any utility of the parent or oneself is involved, L. *Qui testamento*, xx § *Quæ autem*, D. *Qui test. fac. poss.* Rightly, *Harmenop.*: *Domestic testimonies are rejected, when it is clear that the one offering the testimony is about to be born.* From which I think one should supplement cap. 24, tit. 1, lib. XXI, *Synops. Basilic.*
Vers. 249, § si filiusf., I. *eod. t.*, § 3 and following, *De milit. test.* L. § 2, *Quib. non est perm. fac. testam.* Verse 243, § 1, I. *Quib. non est perm. fac. test.* Verse 245, § *Præterea* versicle *filius*, *eod. tit.* Verse 246, § *Emancipatus* 3, I. *De exhæreditat. liber.* Verse 247, I. *De hæred. instit. imp.* Verse 248, § *Hæreditas* 5, *eod. t.* Verse 249: this verse seems erroneous. Vers. 250, *eod.* § 5. Version; for neither *ex parte*, I. *De hæred. instit.* Verse 252, from tit. *de vulg. substit.*, but verse 254 seems to be attached to verse 285.
Vers. 255. He returns to lib. 1, *Institut.*, tit. *De nupt.* § 1 *Inter eas*, and § *Si adversis* 12. Verse 257, § *Aliquando*, 13 I., *eod. tit.* Verse 239, § 4. Verse *item, non aliter*. I. *de adoption.* From verse 221 to 273 from the treatise *de tutel. de suspecto* verse 273 receive, § 4, I. *De suspect. tut.*, and explain verse 261 from Novell. 22, cap. 40.
Verse 274, § *Fere igitur*, 12 I. *De rer. divis.* Verse 275, § *Est autem litus*, 3 I., *eod. tit.* Verse versicle *Ekeino*, which he also calls a canon. Verse 277, from tit. I *de servit.* *Gloss. Basilic.: Axtos, a wider path.* Verse 278, § *Quod autem*, 3 versicle: whence I. *de usucap.* Verse 280, § *Posteriore* 2, I. *Quib. mob. test. infirm.* Verse 281, *in princ.* tit. *De inoff. test.* L. *Ab hinc adversum* 365 of the *Institutes*, and the places of law which are adapted: let it suffice to have demonstrated the order in the above.
Vers. 365. Up to verse 477 he gathers promiscuously and *ataktos* [disorderly] diverse rules from the Novels of Justinian as in verse 366, *Novell. in præfat.*, verse 368, *Novell. 18, cap. 4*; verse 369, without doubt from cap. 1, *Novell. 1*, which the common *Glossa* has also noted,
A verse 372: *Novell.* 22, cap. 22; verse 373: *Novell.* 54 in *præfat.* and cap. 1; verse 374 *passim* (see *Novell.* 22, cap. 41 at the end, and cap. 46, § 1); verse 375: *Novell.* 22, cap. 3, and *Novell.* 117, cap. 3; verse 377: *Novell.* 88, cap. 2, unless [it is] concerning bad magistrates or defenders; verse 374: *Novell.* 94 and elsewhere; verse 380: *Novell.* 113, [text: "that divine forms should not be made in the middle of a trial," etc.]; verse 377: *Novell.* 136, cap. 4. [text: "That it is not proper for interest to run without inquiry."]; verse 379: *Novell.* 12. Concerning forbidden marriages. Verse 385: perhaps it should be read "not" instead of "of" from *Novell.* 124; verse 386: *Novell.* 47, cap. 12; verse 388: the same *Novell.* 47, cap. 9; verse 389 and following: *Novell.* 134, cap. 10. Regarding verse 407, verse 402 to 406: *Novell.* 118, cap. 21; verse 413 and what follows: see *Novell.* 90 on witnesses; verse 418 and following: from *Novell.* on the exhibition and introduction of defendants, 53.
Verse 436. And this is apparent from the Latin-Greek edition of the *Novellae* of Justinian, in the margin of which it is often written at the heads of the *Novellae*, "not found in the *Basilica*," just as in verse 443 he understands *Novellae* 24, 25 and following, concerning the governors or praetors of different provinces; and in verse 446 it is certain that it should be read "concerning the *ekkletōn*," from *Novell.* 75, "Concerning the appeals of Sicily." Furthermore, to this treatise of the *Novellae*, I would like to subjoin the *Novellae* of Leo, from which verses 843 to 875 [are taken], with a few exceptions which are excerpted from the *Novellae* of Justinian themselves; and which demonstrates the continuation of these verses.
Verse 458. Here the specific treatment of actions begins, arranged alphabetically: [this] being observed, indeed, [by] the first letter of the Latin word; yet it is interrupted by alien verses, which, that we might observe some order, we shall place in their own seats.
Verse 462. Note the *Glossa Basilic.*: *Adoulteris*, read *Adulterii*, "the law established indeed by Augustus, but guarded by Julius [perhaps one should read, "but by Augustus and by Julius"], and it is moved concerning adultery and defilement of a virgin; and adultery exists indeed among the married. But defilement is moved concerning virgins, and widows, and male children. And he is called an adulterer from *paracharattein* [to counterfeit]; for an adulterer is a counterfeiter [read *Adulterium*, or "the counterfeiter"], and the adulterer also counterfeits the marriage bed of another, and confuses the justice of nature through the bastardy of children."
Verse 470. Rightly [is it interpreted] *thesis* [position/adoption], for adoption is the name of a thing which is not so by nature, yet is fashioned by law. *Gloss. Basilic.*: *Adoption*, "child-making"—for so it should be read there, and *huiothesia* [son-making], which with *adoption* they said is a species of adoption, no longer looked toward this image of nature, as it is in adoption taken specifically, as it is different from adrogation. Truly by this name adoption is commonly cited among the Greeks, as in the *Schol.* lib. xxxv, tit. 43, *Synops. Basil.*: "The *thesis* imitates nature," [that is, adoption imitates nature].
Verse 481. The Greek jurists confused *legitima falcidia*, and the name of the third and fourth part, after the *Novella* of Justinian, to the extent that they often call the *legitima falcidia* that third part of the goods. As here [they call it] the fourth, which by the constitution of *D. Pii* [Antoninus] one ought to leave to an adrogated person from his own goods, whether he emancipates him or disinherits him, *l.* VIII, § *Si quis impubes D. De inoffic.* [28, 2, 8]; *l.* I, § *Si impubere*, *D. De collat.* [37, 6, 1]. *Theophilus* nevertheless at § 3, *l. De adopt.* and *Harmenop.* tit. 8, § 88, lib. v, called it the *tetarton* [fourth]. In the same way above at verse 290 *Psellus* called the *falcidia* the third part, as *Harmenop.* lib. v, tit. 9, § [and] *Basilic.* lib. XLI, tit. 1, cap. 71: "The third part of the *falcidium* is retained from all the legatees proportionately," so it must be read, observes *C. Labbæus*.
Verse 477. The *Glossæ Basilica* refer to this: *"Aquilia* action moved against him who delayed to give what was left."
B Verse 486. "*Ambitus*" must be read, concerning which law [see] *Gloss. Basilic.* *Ambitus* is called a lust for dignity, an unbridled giving of gifts, a circling, a corruption of judgment. It is moved, however, against those who bought a magistracy or honor with money. And *ambitus* inflicts upon the guilty party a penalty of a hundred numismata and infamy, as *l.* *Bas.* lx, tit. 46, *Digest* 48, tit. 14. *Ambitus* is [a crime], and it is moved against those corrupting judgments (read: "against those corrupting the judgments," not as it is corruptly held, "the girls") and it does not exact a capital penalty: it is the *Lex Julia Publica*, which can be moved by everyone by public law. So far the *Gloss*.
Verse 489. ["Public" is used] better than "general," not because it is not public, for [these] are numbered among public judgments, *l.* I, *D. De public. jud.* [48, 1, 1], but because it is not permitted for a woman to make anyone a defendant in a public judgment, *l.* I, *D. De accus. et inscript.* [48, 2, 1], nor for a soldier, *l. Qui accusare* VIII, *eod. tit.*, nor for a slave: a woman, however, a soldier, and a slave are admitted to this accusation, from the *Lex Julia de annona*, *l. Mulierem* xiii, *D. De accusat.* [48, 2, 13]; *l.* I, *D. De leg. Jul. de annon.* [48, 12, 1].
Verse 491. I have rendered *tyrannein* as "to harass," for this is the proper word for such a crime, as is also "to attempt," *l. Annonam* VI, *D. De extraord. crim.* [47, 11, 6]. But *Psellus* without doubt borrowed *katapragmateuetai* from Gregory of Nazianzus, who, speaking in the same matter concerning those who flagellated the grain supply of the Dardarians, says: "They watch the times and they traffic in the need," in *orat. funeb. Basil. Magn.*
Verse 493. These verses are to be connected with the previous ones concerning the *Lex Aquilia*: for it is a plebiscite, when a tribune of the plebs has asked for it, says *Ulp.* *l.* I, § 1, *D. ad l' Aquil.* [9, 2, 1]: "It made it necessary for us to accept the long-standing legislation of the people, which he wrote through one of his own tribunes, receiving the name of *Aquilius* from that [man]." *Justin. Novell.* 18, cap. 8, where the Latin interpreter reads "again" [palin], not "long ago" [palai]. Furthermore, what *Psellus* has here up to verse 510, you have [interpreted] at length in *l. de leg. Aquil.*; note only that in verse 500 *tetrapodon* [four-footed] should be read.
Verse 510. The action of "goods taken by force" [*vi bonorum raptorum*], which is given against an evil thief, says *Justinian* in *p. I. h. t.*, "a most shameless thief," *Theophil.* "a more dishonest thief." *Julian*, *l.* II, § 9, *D. h. t.* [47, 8, 2], differs in this from the action of theft, because that [action] is exacted sometimes by double, sometimes by quadruple: but in this ['vi bonorum raptorum'] the penalty is always triple. § *Quæ actio*, *l. eod.* [47, 8, 2, 19], indeed exacts quadruple, but the thing is comprehended in that; the same section says that it concurs with it, so that if it were acted upon, for instance, of a non-manifest theft, where only double is exacted, for the remaining double which is sought by the action of *"vi bonorum raptorum"*, it will be able to be acted upon, *l.* I, *D. h. t.* [47, 8, 1]. Furthermore, only movable things are sought by this action: wherefore correct the *Gloss. Basil.* which has: *Bi bonorum raptorum*. "The action against those seizing movable things, not immovable," *l.* I and II, *C. vi bon. raptor.* [9, 33, 1]. So the *Synops. Basilic.* lib. x, tit. 2: "The action of violent seizure of things is suited to movables, not to immovables."
Verse 520. It should be read "of Deposit," which is an action of good faith, and therefore the fruits and every cause and birth will have to be said to come into this action, [including those] from delay or use, *l.* II, III, IV, *C. eod.* [4, 34]. Moreover, the depositary will provide custody and equal diligence and care as in his own affairs; therefore he will be held only for deceit, and for that broader fault which is near to deceit, *l. Quod Neru* 32, *D. eod.* [16, 3, 32]. *Gloss. Basil.*: *Koulpa* "is great negligence, but great *koulpa* is deceit." The same *Glossæ* were edited by *C. Labbæus*. [The action] of Deposit is an action *peri parakatathēkēs* [concerning a deposit], an obligation which is contracted by the thing [itself]; he provides for deceit, and broad fault, and half-cent-interest due to delay, and use; it is not subject to fortuitous cases unless that has been agreed upon: it causes infamy, and is perpetual, and is given to heirs, and against heirs. It is also moved concerning...
the goods of the deceased, and concerning the restitution of things, and concerning the dowry, and concerning the division of an inheritance. Migne’s notes follow.
A and how he was grateful to his benefactors, he himself, and no other, would bear witness for you, sharpening like a sword day by day his tongue against him who first raised him to this divine height, and not even sparing him though dead—him whom, while living, he had often plotted against, and by whom he had been insulted with public outcries—if indeed he has not forgotten those other letters of infamy, and that stage of his most shameful and unspeakable acts, which their master, having been caught in them, was not ashamed of. Was he then of such a sort toward that man, and justly so, as it seems to me, defending himself against his irrational judgment of him, but towards the empress who followed, more solemn and more reverent? Far from it. And what need is there to string everything together in order? The desire for the throne, the strife over this, the insolence—how because of these he was thrust aside and reckoned in the lot of Car; for, as knowing these things yourself, I pass over the greater part in silence. But has this man, this hater of kings, after being struck so often, been restrained and brought to his senses since then? And since he placed the crown with his own hands upon the emperor, has he assigned any portion of respect, or rather, has he abated any of his arrogant intent? By no means. But upon him, as you know, he poured out his entire venom and became more lawless than the lawless, and more beastly than the beasts. But I ask you again, O Emperor, that you not blame me for such words. For I add nothing to what has occurred, nor do I subtract anything from your dignity. Rather, I even make it more solemn by your respect for him, since you yourself, having received his second embassy and supplication, laid aside all your agitation and, having made peace as best you could, made your entry into the palace more legitimate for yourself. But I would ask you, and with great earnestness: do you truly wish, most divine and most philanthropic of all emperors, to also tell of the madness and audacity of the high priest against your power, or rather—but how could I speak, entangling things?—and the doubly plotted conspiracy, because of which, all but everything would have been destroyed and rendered invisible, I do not say by the absurdity having taken place—may I not be so mad—but by the imperial head having campaigned again and having organized a new camp against your venerable and sacred head? Do you wish, then, to stir up even this great chapter and to deluge the entire priestly assembly?
A When a vendor does not provide a guarantee concerning those things contained in the edict, the action is brought within six months, according to the interest of the buyer. I. *Si debitor*, 28, D. *De ædilit. ed.* If the thing is defective, an annual action is useful, in the same place; l. 11, C. *De ædilit. action*. Verse 690: l. *Sancimus* 46, C. *de episc. et cleric.*, which Eustathius testifies not to be in the Basilics. Verse 692, l. ult., C. *De non nu. pec.*; l. 111, C. *De dot. caut. non nu.* Verse 695, l. 1 and l. ult., D. *de requir. reis*. Verse 698, l. 1, D. *De incend. ruin.* Verse 703, l. 11, D. *De his qui not. infam.* Formerly ten months, today twelve, are the legitimate times of mourning. Verse 704, l. ultim., C. *De dol.*, verse 705, l. *In contractibus* 14, C. *De non num. pec.* Perhaps one should read the following verse: *δύο τὴν συναπτά*. Verse 707: Novell. 126 concerning alienations, emphyteusis, and leasing, cap. 8; for one is expelled if *ἐπὶ διετίαν μὴ καταβάλῃ τὸν παρ' αὐτοῦ ὁμολογηθέντα ἐμφυτευτικὸν ἢ μισθωτικὸν κανόνα*. Verse 710: Novell. 100 concerning the non-payment of money above the dowry. Verse 710, l. *Properandum* 13, § 1, C. *De judic.*, from which supply: except for those things which pertain to the fiscal law, or which concern public functions, and those regarding legacies and fideicommissa. See Cujacius on Novell. 4. Verse 718: it succeeded in an annual term, a continuous quadrennium, l. *Supervacuam* ultim., C. *De tempor. in integ. restit.* Verse 720, l. *Contra majores* 16, C. *De inoffic. testam.* Verse 721, l. *milites* 11, § *Adulterii* 4; l. *Quinquennium* 31, D. *Ad l. Jul. de adulter.* Verse 722, l. *peculatus* 6, D. *Ad l. Jul. peculat.* Verse 724: thus read in the Gloss of the Basilics: *Ἰνφανς ὁ ἑπταετής, καὶ ἔνφανς ὁ ἥττων τῶν ἑπτὰ χρόνων*. Verse 725: Novell. 123 concerning holy bishops, cap. 13, which nevertheless [says] *οὔτε ἀναγνώστην ἐλάττονα τῶν ὀκτὼ καὶ δέκα ἐνιαυτῶν*. But Eustathius, from whom Psellus [draws], has eight years younger. It is certainly established from the Nicene Synod, 2, cap. 44, that lectors younger than 18 were ordained. Of these, we speak elsewhere. Verse 726: Novell. 119 concerning spousal gifts, cap. 7, and C. *De præf. long. temp.* 10 or 20 years. Verse 730, l. *Quæsitum* 9, D. *De sponsalib.* Verse 736, l. 1, D. *De postuland.* Verse 737, § *Minorem*, l. *De adopt.* Verse 739, l. *Omnes* 11, C. *De his qui ven. æt. impet.* Verse 742: the translator of Eustathius wrongly translated it as "to litigate," he should have said "to judge," l. *Cum lege* 41, D. *De recept.* Verse 744: See Eustathius, *Περὶ χρόνων* n. 7, where he introduces the exception of adultery; from whom our author [draws], as he does for the rest, which you should consult. Let it suffice to have indicated these things.
Verse 775: There is another division of actions, which should be conjoined to the prior treatment of actions: to this [must be added] verses 805 and 806, for compensation is considered [an action] of good faith, by the constitution of Justinian l. ult., C. *De compens.* Psellus, however, has followed the order of Justinian, 3, § *In bon. fidei*, l. *De actionib.* Verse 783: Here the negation is redundant, unless you read *οὐεστιματόρια*; it is [an action] of good faith, l. *unic.*, D. *De æstimat. act.* See tit. 1, *De action.*, so that you may perceive these divisions. Verse 786: Take this verse concerning an action from stipulation, which succeeded to the action of the wife’s property, and was made [an action] of good faith by Justinian, § *fuerat antea* 29, l. *De action.*, l. *unic.*, *De rei uxo. act.* Verse 787: We noted the order of these verses above. By the Falcidia, however, understand the legitimate [portion] owed to children from the Novella of Justinian, as I noted above. Verse 801: There is another division of actions, namely, that some demand a simple [amount], others a double or triple, concerning which [we speak] in the following, and it begins from eviction and the double stipulation, in which the Greeks retained the verb "to defend," and he said that the debtor is summoned to defend the thing, Hermogenianus, l. *Si plus* 74, D. *de evict.* Thus Harmenopulus, lib. 1, tit. 9, § 21: *Ἀγωγὴ ἀναγκάζουσα τὸν πράτην δεφενδεύειν*. Verse 815: Unless my conjecture fails me, by a senatusconsultum made when Neratius Priscus and Annius Verus were consuls, l. 984 *Is qui servum*, D. *Ad leg. Cornel. de sicariis*, it was cautioned that those who seized [goods] from the most miserable fortune of shipwrecks, if they had thrived through evil intent, ought to pay as much to the treasury as would be given in an action by the edict of the praetor, l. *Quo naufragium* 3, § ult. D. *De Incend. ru. nauf.* But the praetor gives a judgment for quadruple, l. 1, in p. D. *eod.* Thus the Scholiast of the Basilics interprets these words, *πρὸς τῇ ὡρισμένῃ ποινῇ*, which are found in lib. 60 of the Synopsis, tit. 17, and in Harmenopulus, lib. vi, tit. 7, § 6. "That is to say," says the Scholiast, "*ἵνα καὶ τῷ δημοσίῳ τόσον παρέχῃ, ὅσον τῷ ἐνάγοντι*." See Novell. 64 of Leo.
Verse 819: Perhaps these verses are taken from tit. 1, *De satisdat.* and tit. *De perp. et temp.*, which follow the title *De actionib.* Verse 836: l. *unic.*, C. *Ex del. def.*, l. 1, D. *De priv. del.*, § *Pœnales*, l. *De perpet. et temp.* Verse 838: These verses should follow 877 in the treatment of the Novels of Justinian, for they are excerpts from the Novels of Leo. On this, see Novell. Justin. 127, c. 13, and Leo's Nov. 22, verse 845; Novell. 34 and 35 of Leo. Furthermore, these verses were written in place of the scholion to tit. 83 of the Synopsis of Attaliates; everywhere, however, verse 846 reads *βαρβαρικῶς*; I preferred to understand it as "barbaric swords." Verse 847 is only *ἄνευ*, as in Novell. 35; which Leunclavius correctly noted in verse 849, excerpted from Novell. 34 of Leo, which deals with a ravisher of his ward. Note, however, that one should read *προστιμήτιον* in verse 844, in which name rectify the Glossae Basilicae, which have *ποστιμονίου, νομίμου, πούστιον μέρος, τὸ νόμιμον μέρος*. Verse 852: Just as the place which is before the atrium of our houses yields to the place of a vestibule, in the same way in maritime estates, the sea upon which they look serves as a vestibule; for which reason the Greeks call it *πρόθυρον*. In that space and interval, which extends not only straight ahead, but also transversely, *οὐ μόνον κατ' εὐθεῖαν, ἀλλὰ καὶ ἐκ πλαγίας*, formerly nets used to be extended to poles, in which fish would linger and be enclosed; they called them *ἐποχαί* and *θράναι* or *τράναι*, for which the owner of the estate paid annual *φόροι*. When, therefore, the small width of the estate, to the measure of which the right of the master extended into the sea, was not sufficient for ample *ἐποχαί* [suitable] for fishing, it was established that the neighbor might receive a portion of the *πρόθυρον* of the neighbor's estate for a legitimate *θράναν*, and share with him the profit from the fishing, and so that these delays and terms would not extend to infinity, it was already introduced by custom that they should not exceed 365 cubits, which Emperor Leo confirmed. Consult his Novellas 50, 57, 102, 103, 104; Harmenopulus, lib. II, tit. 1, n. 63. Attaliates at the end of his Synopsis, tit. *περὶ ἐποχῶν*, and Cujacius, lib. xiv, observ. 1. Verse 859: Novell. 92 of Leo. Verse 866: Novell. 106 of Leo. Verse 869: Novell. 109 of Leo. Verse 872: There is another division of actions to be conjoined to the above; see l. 1 and following, D. *De his qui not. infam.*, and l. *De pæn. temp. litig.* Verse 879: To attain possession, two things must concur, intent and body; one of them does not suffice: just as it is not enough for losing possession to have departed from the body, for we retain it, indeed, by intent. See l. *Qui universas* 39; l. *Possidere*, § *Saltu*, and others; D. *De acq. poss.* Verse 882: [refers] to the interdicts mentioned above. Verse 889: Unless these verses are relegated to the end of this part in the treatment of actions, I see no order [to them] under the proper titles of loan, witnesses, or testament. Certainly, in the *πρόχειρον* of Harmenopulus, those titles are read, which Psellus seems to have run through—perhaps from the *Mικρόν*, from which Harmenopulus, lib. III, tit. 5, *Περὶ δανείων*. This, however, [relates to] verse 60, l. *Creditores* 10 and following, D. *De verb. et sig.* Verse 915: From l. 3, *De primipilo*; lib. x, C. *Scholiast. Basilic.*; lib. VIII, Synopsis, tit. 5: *Πριμιπιλόν*.
Πριμιπιλόν*. A *Primipilum* is the name for military rations; hence, if anyone owes a *primipilum* and a dowry, the *primipilum* is preferred. And correctly does Theodorus Hermopolites say (lib. ix, tit. 9): "The *primipilum* is the grain ration given to the leading spearmen/soldiers, in order that they may distribute it among them." The *primipilum* is rations, given to the *Primipilares* so that they may distribute them to the soldiers. For the *Primipilares* were formally assigned to the frontiers to feed the soldiers (l. vi, *C. Th.*, *De cohortal. princip.*). See l. *Lalis*, *C.*, *In quib. caus. pig. tac. cont.*; l. *Non verum*, *C.*, *De donat.*; *int. vir.*, etc.
Verse 917. In the *Micro* [synopsis], or the book from which Psellus made this florilegium, he found the privileges of the *Primipilum* treated among the things to which reference is made in l. i, *C. De condict. ex leg.*, on the occasion of which and perhaps by virtue of which the *condictio ex lege* was defined; hence Psellus excerpted this verse; otherwise, this is certainly erroneous in this place.
Verse 920. The following verses are excerpted from the *Micro* [synopsis], or another book with the same title as is in the *Basilica*, "Concerning trustworthy and unworthy witnesses"; from which Harmenopulus also collected tit. 6, lib. 1: which you should consult, and [also] the laws noted there by Gothofredus.
Verse 925. Harmenopulus, dict. tit. 6, 14, n.: "Αἱ γυναῖκες μαρτυροῦσιν, ἔνθα ἡ τῶν ἀνδρῶν βία ἀπείργεται," which Mercerus translates: "Women can bear witness there where the violence of men is prohibited." Where he is certainly deceived by the author of the *Harmenopulus*; for in it one ought to read "θέα" [sight], not "βία" [violence]. Gothofredus corrected this passage. However, you must take both Harmenopulus and Psellus here to mean that a woman can be a witness in those matters to be proven where men are not admitted. On these matters, the *Basilica* (lib. XXI; *Synops.*, tit. *Περὶ μαρτύρων*, κεφ. ις') holds: "A woman does not bear witness in a will; but in other [matters] she provides testimony, in which men are not summoned," which Harmenopulus records in the same words (dict. tit. 6, n. 52). On which place his Scholiast [says] very well: "However, regarding childbirth, they who keep the aforementioned manner of propriety are able to bear witness." Regarding birth, indeed, those who have preserved the said integrity of morals can offer testimony. Add the examples in l. i, § 10, and others, *D. De inspic. vent.*, and in sacred things from which men are excluded, and in baths, as Attaliata elegantly observed in the *Synopsis*, tit. *De testibus*: "Πλήν βαλανείου, καὶ λογείας ἔνθα ἄνδρες εἰσελθεῖν οὐ δύνανται."
Verse 927. L. vii, *D. de testib.*; for neither do the examinations of slaves against their masters, nor legal judgments, nor interrogations, nor testimonies hold, [yet] they obtain force against others [only] by the scarcity of witnesses. The same l. vii, *D. De probat.*; l. lviii, § ult., *D. De ædilit. edict.*; l. i, § 16 et 9; l. ix, § fin., *D. De quæst.*; l. *Servus* viii; *C. De testib.* Nevertheless, Justinian seems to have indiscriminately taken away the ability of slaves to testify (*Novell. de testib.* 90, cap. 6, which Leo confirmed, *Novell.* 49).
Verse 929. These verses up to 939 are reported in the *Synopsis* of Attaliata, partly under the name of the scholion of Psellus, partly of Attaliata. See Harmenop. *dict.* tit. 6, n. 15, 16. l. *presbyteri* viii; l. *Nec honore* vi; *C. De episc. et cler.*; *Novell. De sanctiss. episc.* 123, cap. 7. Furthermore, verse 936, perhaps "ὑποσχολάζουσι" is to be read, and verse 938, "ἀληθῶς," as in Attaliata, or "ἀληθές." Verse 939. Harmenop. *ibid.* 11, 31: "Ἐπὶ τριάκοντα χρυσίου λίτρας, καὶ δύο ἀρκοῦσι πρὸς μαρτυρίαν, καὶ μέχρι δὲ πεντήκοντα τρεῖς ἀρκοῦσι." See l. where the number is in *D. De testib.*; l. *testium* xvi, *C. eod.*
Verse 954. Note in this plea of "lack of money" (ἀναργυρίας exceptione) that it is something far different to assert that a debt has been paid, which exception certainly lasts for 30 years, or rather can hardly be defined, since it is uncertain at what time a creditor will take action, and if, upon his petition, the debtor opposes [it by] saying something else—[namely] that the money which he confessed in writing was not paid out to him: for this complaint (so the Greeks call it "μέμψις") was formerly B C allowed for five years, today it is terminated in two years: l. *In contractib.*, *C. De non num. pec.*; [it is] another thing for a creditor to say that the money which he wrote as having been accepted and paid has not been paid out to him by the debtor; for the creditor can oppose this exception only within thirty days from the written record, *d. l.* The Greeks note, lib. xxiii *Basilic.*, this title: "Η μὲν γὰρ διετία τότε δίδοται, ὅτι ἔχει χειρόγραφόν τις ὡς μέλλων δανείσασθαι, καὶ λέγει ὕστερον μηδὲν εἰληφέναι." Tunc dari biennium, "when someone has accepted a chirograph from a debtor as if he were about to lend to him, who then later says that he received nothing." "Ἡ δὲ τριακονθήμερος δίδοται, ὅτε ὁ χρεωστούμενος ποιήσει ἀπόδειξιν, ὡς εἰληφὼς ὅλον, ἢ μέρος." Tunc vero triginta dies, "when the creditor has made a certificate/record, as if he had received the whole debt or a part of it." There is also a different reason in the case of a dowry: if indeed in dotal documents, as is the custom, the dowry is said to have been paid and settled, a ten-year [period] or another time established for objecting competes to the husband or his successors (*Novell.* 100); but if, when dotal instruments have been drawn up, a certificate outside those instruments is written concerning the paid dowry, no exception can be opposed, *d. l. In contractib.* The Greeks further [say], when "κατὰ εἶδος προίκος ῥητῶς ἐμφέρεται τῇ ἀποδείξει," the species of the dowry is specifically enounced in the certificate, all exception is precluded; but when "καθ᾽ ὁμάδα δηλοῦται" [it is declared in the group], in this way the dowry is declared paid in general, the time defined above now competes. Thus Harmenop. lib. ii, tit. 2, § 7, which is held to be in place of a scholion in lib. xxxiii *Synops. Basilic.*
Verse 975. Provided that no business is transacted between them, as if one were written as heir in a testament, § *In testib.*, *Sed et si filius*, f. l. *eod.* Verse 977, ex *Novell. Leonis* 41, with civil and Justinianean law seven witnesses are employed. Verse 979, understand [this] of him who has received a caution sub-signed by witnesses from his own debtor, who certainly can take action within 30 years. Verse 984, [he] necessarily has to either swear or refer: I do not know if in this verse 983, "ἄλλο" [other], I ought to replace [it]. See l. *Jusjurandum* xxxiv, § *Ait prætor*, *De jurejur.*; l. *Delata* ix, *C. eodem.*
Verse 986. Psellus speaks without doubt of him who, when he has deferred the oath, it not yet having been taken, moved by repentance—inasmuch as he has found new proofs—does not want the adversary to swear. For he permits [him] before the lawsuit has been decided by a sentence, having abandoned the oath, to pass to other proofs, l. *Jusjurandum* ii, *C. De reb. cred. et jurejur.* "Μεταπηδᾶν πρὸς ἑτέρας ἀποδείξεις," say the *Basilica*. Also that he may wish, the oath not being taken, [that] it is lawful to leap over from one defense to another outside the oath: which is not lawful when the lawsuit has been terminated by an oath.
Verse 987. This is the order of Harmenopulus, so that after a treatment regarding witnesses, [and] regarding an oath, and documents (lib. 1, from tit. 6 to 8), he gives a discourse on pacts (tit. 9), whom Psellus follows, who correctly explained this division of conventions according to the mind of the Jurisconsults, l. v, vi, vii, *D. De pact.* Verse 996, it is manifest that here "οὐκ" [not] is redundant. Verse 1005, it must be answered "ἐνώμοτον ἀγωγὴν" [by an oath-bound action], or "ἐναγωγήν," from l. *Jurisgentium* vii, § 1, *D. De pact.* 1019. Correctly did Psellus, in demonstrating the thing, say [it was] an action *præscriptis verbis*: for where the name of a contract does not occur, from which one might take action, and something has been done and covenanted between the parties specifically, against which something is done by one of the parties, the action *præscriptis verbis* is given, if indeed pacts and words have intervened regarding something to be done or given: wherefore the Greeks [say] very well: "Πραισκρίπτις βέρβις ἦ τῶν συμπεφωνημένων ῥημάτων ἀγωγή" which does not happen without a narrative of the matter and a demonstration; especially if nothing was covenanted but something was done which concerns me to say, then for the case by a narration of the matter (since from words which [have] no D
certain name, an action *praescriptis verbis* can be given; if no action *in factum* can be given: both are uncertain, as the learned Psellus [says], because of the uncertain intention of the plaintiff, which is defined by the condemnation of the interest; but that which is the interest is uncertain, see Law 1, *Juris gentium* VII, Digest, *De pactis*, 1. 1, 11, III, and the entire title, Digest, *De praescriptis verbis*. Each also lacks a certain name: yet one properly approaches a contract by *praescriptis verbis*, even if both are given as if it were a contract.
Verse 1022. Concerning pacts made *ex continenti* and *ex intervallo*, which inform an action, which are inherent in contracts, which produce an exception, why and how they are "bare," consult Law VII, Digest, *De pactis*; Cujacius on that title, and the most learned response concerning bare pacts, which is in Volume II of the *Juris Graeco-Romani*.
Verse 1032. See Title I and Digest, *De rerum divisione*. However, these verses seem to be out of order, and A 1038 should be joined to the treatise on loan and creditors, which you should understand when a pledge has been legally alienated, for instance by a senior creditor, or when acquired by prescription by a third party bona fide possessor: for then he ceases to have an action *in rem hypothecaria*, but can proceed by personal action against the debtor. See Law 1, Code, *Si adversus creditorem* [a] *praescriptio opponitur*; Law *Cum notissimi* VII, Code, *De praescriptione* 30 or 40 years. Perhaps also verses 1042, 43, 1053, should be placed in order under the treatise on actions in the letters Σ and Γ.
Verse 1043. From Law 1, Digest, *De suis et legati*. 1047, both before and after a testament, and without a testament, codicils can be written. Law *Ante tabulas*, Digest, *De jure codicillorum*, by which an inheritance can neither be given nor taken away directly, nor can a condition be appended to an inheritance; a fideicommissary inheritance, however, can be, Law II, Law VI, Law X, *De jure codicillorum*; Law XXVII, Digest, *De conditionibus institutionum*; Law LXXV, toward the Senatus Consultum Trebellianum. Wherefore in verse 1050 read *et kleronomia* [inheritance], or something similar.
Verse 1053, Law *Stipulationum* V, Digest, *De verborum obligationibus*.
Verse 1057. I would think a connective is missing here; for Psellus means that the authentic paternal testament and the pupillary one are one and the same testament, even if there are two distinct inheritances, of the father and of the son, Law *Minoribus* II, § *Prius* 4, Digest, *De vulgari et pupillari*.
Verse 1059, he brings an example of an invalid testament, and in what case one who has made two testaments dies intestate: for the first is broken by the second being perfected, but the latter becomes invalid when the heir repudiates the inheritance: and this is the second mode of *akouromenes diathekes* [invalidated testament] of the four mentioned by Harmenopoulos: wherefore in verse 1063 read *tauten me epereomenon* [not violating this].
Verse 1065, see the diverse modes of an invalid testament in Harmenopoulos, Book V, Title 5,
Concerning the Annulment of a Testament
, where he says three "sufferings" trouble testaments: *rhexin* [rupture], *akurosian* [invalidity], *atelian* [incompleteness]; he omitted *mempsin* [complaint], concerning which see the following title, 6, concerning these, Digest, *De injusto rupto irrito*.Verse 1072, I think these verses pertain rather to the complaint of an "undutiful" [testament], which is excluded because of the legitimate portion (the Greeks call it *trimeros*, *triton*, *meridion*), than to the number of the verses (as I have interpreted), even though it is true that only the last part of this work survives, so that now two parts have been completed: *nou logou* [of the word's mind/sense] makes it doubtful: but the Gloss of the *Basilica* calls it *phalkidion*, that which cuts the word.
Verse 1073. This last part of this Synopsis is taken by Psellus from the 60 books of the *Basilica*, whose Synopsis, upon our curious investigation, provided such aid that I do not think anything is to be missed in the order of these verses. And so it begins from Title 2, Book II, this verse from Law *Hominis* CLII, Digest, *De verborum significatione*. The Greeks [say] there: *Te tou anthropou prosēgoria kai anēr, kai gynē dēlountas* [The designation of man signifies both man and woman].
Verse 1075, Law *Verbum* VIII, [1] Digest, *De verborum significatione*; *Basilica*: *Tēs agōgēs to onoma ouk dēloi tēn paragraphēn* [The name of the action does not signify the exception], however, he who excepts, even if he is the defendant, and is called into court, the plaintiff appears, 1082, Law *Partum* XXVI, Digest, *De verborum significatione*; *Basilica*: *O tokos tēs klopimaias, ouk esti meros autēs* [The interest of the stolen [money] is not a part of it].
988 1084, Law *Usura* CXXI, Digest, *De verborum significatione*; *Basilica*: *O tokos tōn argyriōn ouk esti karpos* [The interest of money is not a fruit].
Verse 1085, join to these verses Law *Alienationis* XXVIII, § *ult.*; Law XXIX; Law *Saepe* LIII; Law *Triplici* CXLII, Digest, *De verborum significatione*, and read, *Ho me sumploken echon, me tomen logos* [The word that has no connection, has no division].
Verse 1094, explain from Law *Palam* XXX, Digest, *De verborum significatione*.
Verse 1111, Law *Litis nomen* XXXVI, Digest, *De verborum significatione*.
Verse 1113, Law *Armorum* XLI, Digest, *De verborum significatione*.
Verse 1114, Law *Liberationis* XLVII, Digest, *De verborum significatione*.
Verse 1108, Law *Cedere* CCXI, § *Lata*; 1109, Law *Qui venenum* CCXXXVI, § *Glaudis*, Digest, *De verborum significatione*.
Verse 1111, Law *Filii* LXXXIII, Law *He tōn teknōn* CIV, *Liberorum* CCXX, Law *Appellatione* LI.
Verse 1113, Law *Absentem* CXCIX, § *Abesse*, Digest, *eodem*.
Verse 1117, Law *Pecuniae verbum* CLXXVIII, Law *Pecuniae nomine* CCXXII, Digest, *eodem*.
Verse 1124, Law *Latae* CCXXIII, § *Amicos*, Digest, *eodem*.
Verse 1124, Law *Vinculorum* CCXXXIV, Digest, *eodem*; read in this verse *esti: kai tōn idiōn* [is: and of one's own].
Verse 1126, Law *Plus est* XXII, Law *Restituere* XXXV, Law *Haec verba* LXXIII, Law *Restituere* LXXV, Digest, *De verborum significatione*.
Verse 1129. Book II of the *Basilica*, Title 3, is about the rules of law, which having been gone through above by Psellus, follows Title 4,
Concerning Ignorance of Law or Fact
, from which it is certain that *kanonikos tēn men tou phaktou agnoian oudena blaptein, tēn de tou nomou pantas blaptein* [canonically, that ignorance of fact harms no one, but ignorance of law harms everyone], cap. 8, same title.Verse 1131. Title five of Book II of the *Basilica*,
Concerning Imperial Rescripts
, Law penultimate, Code, *De precibus imperialibus offerendis*.Verse 1133. Omitting the treatises of ecclesiastical things and offices, which at the end of the seventh book [close] from the same book, title *Concerning Judgments and Jurisdiction*, he collects this verse Law *Placuit*, Code, *De judiciis*.
Verse 1134, Law *Properandum* XIII, Code, *eodem*.
135, from the title of the same book,
Concerning those taking refuge to the protection of powerful men
. See Code, *Ne liceat potentioribus patrocinium litigantibus praestare*.Verse 1137, of the same book VII, title
Concerning Usurary Interests
, etc., Law II and I, Code, *De usuris rei judicatae*.Verse 1139. Law VIII of the *Basilica*, title
Concerning Judicial Penalties
. See Law *Falsam* III, Law last, Code, *Si ex falso instrumento vel testimonio*.Verse 1141. From Book X of the *Basilica*, which is concerning restitutions, title
Concerning Fear
.Verse 1143,
Concerning Deceit
, Law 1, Digest, *De dolo*.Verse 1145, title
Concerning Fugitives
, cap. 8.Verse 1146. Book XI of the *Basilica*, from title *De transactionibus*, cap. 1 and cap. 45, whence Law 1, Digest, *De transactionibus* 17, restore [the text].
Verse 1149, of the same title, cap. 26, Law *Transfigere* XVIII, Code, *De transactionibus*.
Verse 1153, of the same title, cap. 45, Law *Transactio* XXXVIII, Code, *eodem*.
Verse 1155. Book XII of the *Basilica*, title
Concerning Community
, cap. 1, where read *e apo kairon, e upo hairesin* [either from a time, or under a condition]. Law *koino pramatōn* [of common things]; and therefore the greater [claimants] are also restored against it, Book III, Code, *Communium utriusque judiciorum*.Verse 1161. Book XV of the *Basilica*, title
Concerning those vindicating [their own]
, etc., Law *Idem Pomponius* V, § *Idem scribit*, Digest, *De rei vindicatione*.Verse 1163, of the same title, Law *Julian* XXXVII, Digest, [of the] same title.
Verse 1167, of the same title from Law *Si fundi possessor* LIII, Digest, [of the] same title.
Verse 1169. Book XVI of the *Basilica*, title
Concerning Fruits
, cap. 7 and 27; Law *Si pendentes* XXVII, § 3; [of the] same Book XV, title 8,Concerning Usufruct and Habitation
, cap. 15; Law *Eum ad quem* VII, Code, *De usufructu et habitatione*.Verse 1175. Book 18 of the *Basilica*, Title 3,
Concerning those under Power
, from Law 1, § *In filiofamilias*, Digest, *Ad senatus consultum Macedonianum*: *Oiosdēpote axiōmatikos upexousios kekōlutai danizesthai; plēn tou echontos idioktēton pekoulion, daneizetai gar mechri tou posou idioktētou pekouliou* [Every person of rank who is under power is prohibited from borrowing; except he who has a peculium of his own ownership, for he borrows up to the amount of his own peculium]. The Greeks call him *axiōmatikos* who [holds] some authority or magistracy ex-and what dignity is in the name of a son who is in a dignity, who perhaps has assumed a decurion's rank, L. 11, D. *Ad municip.*, or an *agonothesia*, L. *Si filia* XX *Neratius*, D. *Fam. ercisc.*; it is said not to be brought into collation if given by the father, from L. 1, § *Se an.* 16, D. *De collation.* A Harmen. lib. V, tit. 8, n. 29, in these words: "The dignitaries do not contribute to their brothers." Thus Matthew the Monk, *stoech.* A, tit. *On heretics.* He says heretics ought not to become dignitaries, nor teach, etc.
Vers. 1178. Lib. XIX *Basilic.*, tit. *On sale and contract*, L. *Cum ipse tutor* V, C. *De contrah. empt.*; L. *Si in emptione* XXXIV, D. *eod.* Vers. 1179, *cod. tit.*, L. 11, C. *Quæ res væn. non poss.* Vers. 1182, tit. 8, cap. 1, L. 1, D. *De act. empt. et vend.* Vers. 1184, *eod. tit.* cap. 11, which take to mean concerning the stipulation of double [value], about which one must understand L. *Ex empto* XL, § *Idem Neratius et seq.*, D. *De action. empt.* Vers. 1189, *eod. tit.*, cap. 65, L. *Expulsos* ult., C. *De act. empt.* Vers. 1191, *eod. tit.*, cap. 66, L. 1, C. *De reb. al. non al.* Vers. 1197, Perhaps this verse was under B the title *De re permutat. præsc. verb.* or *de leg. commissor.*, which exist in this same *Basil.* book.
Vers. 1201. *Eod. lib.* XIX, tit. *On resolution of sale* 10, cap. 41 et 54; L. *Quæro* LVIII, § *ult.*, D. *De ædil. ed.* et lib. XXII *Basil.*, tit., cap. 4, which read thus: "The buyer shows the slave to have been such before the sale," L. *Emptorem* V, D. *De probat.* from those points: *la un deixvutat*, which had crept in from the following chapter. Vers. 1203, *eod. tit.*, L. *On proofs*, L. *Census* X, D. *eod.*, which Attaliata in *Synops.* tit. 16, *De testib.* Vers. 1204, *eod. lib.* XXII, tit. *On confirmation*. See *Novell.* 73, *De fid. instrum.* Vers. 1208, *eod. lib.*, tit. *On oath*, cap. 1, L. 1, D. *De jurejur.* Vers. 1209, *ibid.*, cap. 1, L. III, in p., D. *eod.* Vers. 1210, from L. *Sed si possessori* XI, § *Proinde*, D. *eod.* Vers. 1212, *eod. lib.* et *tit.*, c. 26; L. *Eum qui* XXX, D. *De jurejur.* Vers. 1217, *eod. tit.*, cap. 34, L. *Jusjurandum* XXXIV, § *Ait prætor*, D. *De jurej.* Vers. 1219, *eod. tit.* cap. C *jurejur.* Vers. 1219, read: *ἐνδίκου ὅρκου*, of the oath which is provided for [the determination of] the suit; thus the scholium reported by C. Labbaeus, which is Attaliata in *Synops.*, tit. 18 *De jurejur.*, and in *Basilic.*, although it is written differently in a scholium, *Καὶ ὁ ἐν Αἴτερ*, thus I read: *τὸν ἐν δίκῃ ὅρκον* in *Basil.*, this tit., cap. 4, as also cap. 10. Regarding him who has sworn falsely in this oath for the sake of the valuation of the suit, it is not usually asked easily, says Paul, L. *ult.*, D. *De in lit. jur.*, just as it is asked regarding the perjury of him who has sworn for the sake of deciding the suit; L. *Si duo* XIII, *§ alt.*, D. *De jurejur.*; L. *ult.*, D. *De crim. stellion.*; and Psellus intended this here, from cap. XI of the said *Basil.* title.
Vers. 1225. Lib. XXIII *Basil.*, tit. *On interest*, cap. 27, L. *Placuit* XXIX, D. *De usur.*, from which law is here *τὸ τόκον*. Vers. 1227, *eod. tit.*, cap. 61, L. *Si non sortem* XXVI, D. *De cond. indeb.*; § *Indebitas* XVIII, C. *De usur.*, here read: *πρὸ τόκου*. Vers. 1231, *usuræ κατὰ μικρὸν καὶ κατὰ χρόνον*, paid by time and little by little, could not by ancient law be computed into the double, even if in the same law interest did not exceed the double. L. *Usuræ* X, C. *De usur.*; but from the Constitution of Justinian, *κατὰ μικρὸν καὶ κατὰ χρόνον* or *κατὰ μέρος solutæ usuræ*, *τὸ διπλῷ συμψηφίζονται*, or, which is the same, *τὸ διηγοῦν τοῦ χρέους οὐχ ὑπερβαίνουσιν*, lib. XXIII *Basil.* *eod. tit.*, cap. 72 et 73; which constitution of Justinian Leunclavius divided in the penultimate and last [chapters] of C. *De usur.*: since it is *Novell. Justin.* 121, and *Novell.* 138, which elsewhere in Greek we do not have.
Vers. 1233. Lib. XXIV *Basil.*, tit. 4, cap. 12, L. *Cum quis* 12, D. *De condict. caus. dat.* which the author of *Synops. Basil.* transferred to the treatise on donations, lib. XLVIII, tit. 3. Vers. 1236, *eod. lib.* D tit. 1, cap. 21, related in *Synops.* lib. LII, tit. 3, L. *Si a patre* V, L. *Fideicommissum* VII, C. *De condict. ind.* Vers. 1238, *hoc lib.* XXIV, tit. 4, cap. 2; it is held in *Synops.*, lib. VII, p. 77; that this is treated in this book is clear from tit. 24 of *Synops. Attaliat.* See L. 11, C. *Ne uxor. pro mar.*; L. IX, C. *De bon. prosc.*; *Novell.* 134, *cap. ult.* Vers. 1239, *eod. lib.* XXIV, tit. 6; cap. 4; the author of *Synopseos* reported [it in] lib. XXXVII, tit. 8. See L. *Si procurator* 6, § *ult.*, D. *De cond. indeb.* Vers. 1241. Lib. XXV *Basil.*, tit. 3, L. *Cum debitor* VIII, D. *In quib. caus. pign. tac. contrah.*, where he argues against Hotoman, who reads negatively, [concerning] Psellus' *ἄτοκον χρέος*. Vers. 1244, *eod. lib.*, read *δημόσιον*, L. *Si hypotecas* VIII, C. *De remiss. pign.* Vers. 1246, *ibid.*, L. *Creditor* IV, C. *De distruct. pign.*
Vers. 1248. Lib. XXVIII, *Basil.*, tit. 4, cap. 8 et 12, L. *Cum te sponsæ* IX: L. *Si mater vestra* XII, C. *Donat. ant. nupt.* Vers. 1250, *eod. lib.* XXVIII, cap. 54; from *Novell. Justin.* 117, cap. 2, which said *τοὺς μεγάλους ἀξιωματικούς, μέχρις ἰλλυστρίων*, in place of Protospatharians, as Harmenop. lib. IV, tit. 6, n. 16. Rightly both, for from *Gloss. Basil.*: "*Ἰλλούστριοι, πρωτοσπαθάριοι, Ἰλλουστρίων, ἀξιωματικῶν, ἢ συγκλητικῶν*." Vers. 1253, *eod. lib.* XXVI, tit. 6, cap. 1[?]; from *Novell. [missing title]*, cap. 1; "An unlawful and against nature marriage, which the law [calls] *incestum* and *nefarium* and *damnatum*"; *Basil.*, where, "*Ἀθέμιτόν τε, καὶ παράνομον καὶ κατάκριτον*."
Vers. 1256. Lib. XXIX *Basil.*, tit. 1, perhaps cap. 118, which is missing in *Synops.*, from L. *unic.*, § *Videamus*, C. *De rei uxor. act.*; Harmen. lib. IV, tit. 8, num. 52, here perhaps read *αὐτεξουσίᾳ γαμετῇ*, and vers. 1258, *ταύτην ἀποκτωμένη*. Vers. 1260, *eod. lib.*, tit. 1, cap. 63, L. *Mutu* 73, § *Manente*, D. *De jur. dot.*, et lib. XXVIII *Basil.*, tit. 8, cap. 20, L. *Quamvis* XX, D. *Solut. mat.* See Harmenop. *dict. lib.* tit. 9 in *princip.* Vers. 1263, *eod. lib.* XXIV, tit. 10; See L. 1, 2, 3, 4, 5, 6 et seqq., D. *De impens. in res dot. fact.* Mendacious, indeed, seems verse 1272, unless you refer it to the higher [one]. Vers. 1275, there is tit. *On the action for the removal of things*, lib. XXVIII, tit. 11 *Synops.*, without doubt outside its seat, since Psellus is dealing with lib. XXIX. Vers. 1275, *eodem lib.* XLIX, tit. 1, cap. 91; See L. *Quoties* V, L. *Cum dotem* X, C. *De jur. dot.*, L. *Plerumque* XVIII, C. *eod.* See Harmen. *eo cap.* 61 lib. IV, tit. 8, num. 5. Vers. 1276, neither is a mother compelled to give a dowry for her daughter, unless for a great and probable cause, or by law specifically expressed; nor has a father any power of giving from the goods of his unwilling wife, L. *Mater*, XIV, C. *De jur. dot.*, "*Οὐ μόνον οὐκ ἀναγκάζεται ἡ μήτηρ προικίσαι τὴν θυγατέρα αὐτῇ, ἀλλ᾽ οὐδὲ ἀνὴρ ἐκ τῶν πραγμάτων αὐτῆς μὴ θέλοντος*", which is otherwise in the father who by the Julian law is compelled to endow his daughter, L. *capite* 9, D. *De tit. nupt.* Vers. 1279, *eod. lib. Basil.* XIX, tit. 1, cap. 113: "*Γυνὴ καὶ συνισταμένων ἔτι τῶν γάμων ἐὰν ἄπορον ὁρᾷ τὸν ἄνδρα, δύναται ὑπὲρ προικός, καὶ προγαμιαίας δωρεᾶς, καὶ ἔξω προίκων διακρατῆσαι τὴν αὐτοῦ οὐσίαν, ὡς ὑπὸ ὑποθήκης*". So reads Harmenop. *dict. tit.* 8, n. 38, L. *Ubi adhuc* XXIX, C. *De jur. dot.* *Parapherna* I have said *ἔξω προίκα*, following *Gloss. Basil.*, "*Παράφερνα ἐξπροικα*, thus they say according to the Greeks." For thus it should be read there and in the said place of the *Basil.*
Vers. 1286. Not the number of children, not military service, not dignity, not even the father's consent alone makes a daughter of her own right: paternal power is established by certain modes, [by] nature, and [by] adoption: it is likewise dissolved by certain modes, [by] nature, again or by chance and emancipation. Not by naked consent are children freed from paternal power, but by a solemn act, or by chance: nor is the cause for which the father emancipated the son sought, but the solemnity of the act [is sought]. Say the Emperors, L. *Non nudo* II, C. *De emancip.*, [by] a solemn act, namely [by] emancipation, which *νόμιμος οὖσα ἡ πρᾶξις* — Theoph., § 4, L.
A § 3. D. *De auct. et cons. tut.*, as if a wife, L. *Cum ipse tutor* 5, C. *De contrah. empt.*
TO THE SYNOPSIS OF MICHAEL PSELLUS
Regarding disinheritance, *πρᾶξις ἁπλῶς*, § 6, *Quibus modis jus patr. pot. sol.*, actions [in law], and legal procedure of the jurists. However, this verse is collected from book XXXI of the Basilica, tit. *Περὶ γονέων καὶ τῆς εἰς αὐτοὺς ὑποταγῆς*. Verse 1283, ibid. book XXXI, tit. 2, cap. 4, from Novell. 89, cap. 12, § *Ἵνα μή*. 2. Verse 1300. Book XXXV of the Basilica, tit. 1, *Περὶ υἱοθετούντων*, cap. 52; which is found in Theophilus, § 9, *Τῶν γὰρ εὐνούχων*. L. *De adopt.*, and Rarinonop. book II, tit. 9, *Περὶ υἱοθεσίας*. See L. *Spadonum* 128, D. *De verb. sig.*, regarding the difference of which names observe the passage of Paul the Physician, book VI, where he cites various ways of making a castration. Some, he says, were made by the excision of the testicles, some also of the member, with the testicles, who were urinating through a bronze fistula as is also now the case for those with whom because of disease that part has been cut away. Some were made by the crushing of the testicles, and this was [the way]: the boy being lowered into a bath, gradually grinding the testicles until they appeared as if dissipated and vanished, and twisting [them] so that the vein which carries nourishment to them might be as if interrupted, and thus they would waste away. And so there were eunuchs with testicles cut off, or only with the member: and with those crushed, who for this reason were called *thlibiai*, etc.
Vers. 1303. L. *Tunc autem* 11, D. *De injust. rupt.*, book XXXV of the Basilica, where it deals with testaments, and tit. 2, *Περὶ ἀτελοῦς διαθήκης*, as is clear from tit. 32 of the Synopsis of Attaliates; yet the author of the Synopsis write this title in the Basilica, book XXXIX, unless perhaps it is divided in the Basilica itself, there cap. 2: *Ἡ ἀτελὴς δευτέρα τὴν πρώτην οὐ ῥήσσει* and tit. 20 of book XXXV, cap. 2: *Εἰ μὴ τελείαν τις ποιήσει βούλησιν, οὐκ ἀκυροῖ τὴν πρώτην*, with an elegant reason taken from Novell. 107, cap. 2: *γε ἐξῆν διαρρῆξαι τὸ γινόμενον, καὶ ἑτέραν ποιήσασθαι βούλησιν, δηλοῦσαν τὴν τελευταίαν αὐτοῦ γνώμην, ᾗ προσήκει κρατεῖν*; for it was permitted to him to invalidate what had been done, and to establish another will, which would demonstrate his final (the Latin interpreter has perfect) judgment, which it is fitting to hold valid. B Vers. 1306, ibid. book XXXV, tit. 1, cap. 7, L. *A qua ætate* 5, D. *Qui test. fac.*
Vers. 1307. I am not mistaken if I refer these verses to the title *Si quis aliquem testari prohib.*, of which L. 11, Paul says: If anyone acts with malicious intent so that witnesses do not come, and through this the ability to make a testament is deficient, the actions ought to be denied to him who acted with malice. The Greeks refer to book XXXV of the Basilica, tit. 3, cap. 2: *Ὁ κατὰ δόλον κωλύσας τοὺς μάρτυρας εἰσελθεῖν, ἐκπίπτει τοῦ κλήρου*, of which prohibition Psellus brings this elegant example: if one denies to those who have arrived once the witnesses were summoned the expenses and travel money; for he prohibits [them] from approaching, since witnesses should not have to approach at their own expense; and, as Gaius says, L. *Sed si quis* 7, D. *Quemad. test. ap.*, it is unjust that everyone’s office should be injurious to him; for which reason Adrian recorded that expenses should be given to the witnesses by him who produces and summons them, L. *Testium* § *Gubinio*, D. *De testib.*, and the Emperors [recorded that] adequate expenses be given, L. *Quoniam* 11, C. *eod.*, and he shall be obliged to provide expenses to the same for the expedition of making the journey, since justice itself persuades that this should be recognized by him who believed it to be in his own interest that persons be summoned; L. *Eos* 6, § 2, C. *De appellat.* Vers. 1310, ibid. book XXXV, tit. 7, cap. 1. See title D. *De his quæ intest. del.* and read the verse 1311: *Εἰ δ' οὐκ, ἐῤῥώσθω· εἰ δ' ἄλλως, ἔῤῥωται*. Vers. 1312 et seqq., ibid. tit. 12, *Περὶ αἱρετικῶν ἐνστάσεων*.
Vers. 1319. Book XXXVI of the Basilica, tit. 1, *Περὶ κωδικέλλου*.
Vers. 1324. Book XXXVII of the Basilica, tit. 7, cap. 8, where *τοὺς λόγους ἀποδῶσι* · L. *Tutor* 7, § *ult.*, D. *De adm. tut.* Lucius 46, § 3, *eod. t.*; L. 1, § *ult.*, D. *De usur.* Vers. 1326, from the same book or from XXXVIII, which also deals with tutors. For if a tutor should buy the property of a ward through an interposed person, he is in that state, that the purchase is of no moment, L. *Pupillus* 5, C Vers. 1328, book XXXIX of the Basilica, tit. 1, *Περὶ τῆς κατὰ διαθ. μέμψ.* Read in this verse *ἐξ μὲν μετὰ πρὸς τῆς κατὰ διαθ.*, for although the matter has been decided by a transaction in the accusation of a testament inofficious, nevertheless the testament remains in its own right, L. *Si suspecta* 25, § 2, D. *De inoff.*, because it is not doubted that by private agreements the right of others is not harmed, for which reason the testament cannot be seen to have been rescinded by a transaction. Vers. 1331, understand *μέμψιν κατὰ διαθ.*, and receive it concerning one who believed himself adopted by a woman, and falsely judged her to be his adoptive mother, L. 29, § *Quoniam*, D. *De inoff.*, and so explain cap. 20, *them.* 4, tit. 1, of this book XXXIX, when otherwise the adopted person should have a fourth part by unrescripted example of the adrogated.
Vers. 1334. From book XL of the Basilica, in which it is treated *περὶ διακατοχῆς*. See L. *Servus* 7, § *Impubes*; L. *Si pupillo* 11, D. *De bon. poss.* A tutor, however, cannot repudiate the possession of goods belonging to a ward; it is permitted for a tutor to seek [it], not also to repudiate, L. *Tutor* 8, D. *eod.*
Vers. 1341. This succession of ascendants, descendants, and collaterals is excerpted from Novell. 148, cap. 1 and 2; and is described by Leo in book XLIV of the Basilica, tit. 3, *Περὶ βαθμῶν*, where, however, it is incorrectly [stated that] towards parents, or with them, are admitted together with brothers, the children of brothers, whereas Novella 127 finally introduced that. But take Psellus verse 1342 in such a way that he intends for children alone, with no one else admitted nor even ascendants, or [uncles/aunts], all parts of the inheritance to abound and remain without division.
Vers. 1343. From the rescript of Adrian, and therefore it is preserved until she has given birth, L. *Imperator* 18, D. *De stat. hom.*, which law without doubt was written 1345, from the same book XLVI of the Basilica, tit. 3, cap. 4. See the title *De rer. divis.* 1, D.
Vers. 1358. For the sake of affection, neither honest nor dishonest donations are prohibited: honest [are those] towards well-deserving friends, or relatives; dishonest [are those] concerning harlots, L. *Affectionis* 5, D. *De donat.* which is held; book XLVII of the Basilica, tit. 1: However, it is not permitted for a soldier to donate to a concubine, L. *Si ancillam* 11, C. *De donat. inter vir. et uxor.*; but that he can be instituted as an heir is argued by an old sepulchral inscription of Aurelius Vitalis the soldier (Valeria Faustina his concubine and heir), p. 1107, *inscript. Grut.* The concubines, after the example of the soldiers, were called by those girt with the belt of sacred military service *συνεισαχθείσας*, concerning which [see] the first general Council. D Vers. 1352. Psellus does not handle the Basilica beyond book XLVII, which were brought to book LX by Leo, perhaps because he had already narrated in this work what was written in the remaining books. He testifies here about the *εἰκονομία* of the degrees added to them, perhaps the very same which Justinian wished to be depicted in his institutions, which the author of the Synopsis grudged us.
Vers. 1356. Perhaps here one should read *νέον νόμον*, for also to that Novella the iambic *νέον νόμον τίθησι Ῥωμανός* is prefixed, and it is the prior Novella concerning estates occupied by the powerful under any title whatsoever, concerning which [see] also the Basilica of the one born in the purple; consult both from the edition of Leunclavius, book II, *Jur. Græco-Roman.*, and the observations on another of them by the most learned man Carolus Labbeus. For to us (to whom only an interpretation was in mind), that leisure, which we enjoy against our will, exiled from our country without books, has elicited these brief annotations, lest it be turned into idleness: which, such as they are, studious youth of the laws, for you indeed I have written them, I pray they be useful to you, and to eternal wisdom from whom every gift [proceeds], I consecrate them. Narbonne, Marcius. Kalends of December, year of salvation 1630. Glory and grace to God. The printer had brought this work to the navel, when by the benefit of the Very Reverend Father Jacob Sirmond, two
Psellus poems which I received, which without doubt were inscribed to the Emperor Michael, were annexed to this Synopsis. For where that most wise man of emperors taught the laws in a brief compendium, touching upon the knowledge of our faith and the canons with the same brevity and the same style, he composed an epitome of them in these iambic verses, whose very beginnings demonstrate without doubt that another work on the laws follows them. Therefore, I did not think I would be acting to no purpose if, as the pressure of the press allowed me, I subjoined these verses, scarcely transcribed, to the Synopsis.
(The Opuscula of Psellus, concerning which Bosquetus speaks here, Of dogma and Offering of the Nomocanon are extant above at col. 811 and 919.)
CORNELIUS SIEBEN JURISCONSULT SPECIMEN OF CRITICAL OBSERVATIONS ON PSELLUS’ SYNOPSIS OF LAWS
A Many things remain in the Novels and other relics of the Greek jurisconsults which, either not understood to this day, or read as corrupted, all who love literature admit. Jurisconsults all agree. Especially in the Synopsis of Laws of Psellus, I found it deformed by many and very foul errors. This little book had Bosquetus of Narbonne, a jurisconsult, as a translator—by no means a fortunate one. Many things which needed a remedy escaped his industry. Nor are there wanting things which he seems to have left untouched as hopeless. Furthermore, he corrupted many things and so perverted them by his own version that I judge them to correspond with our rules of law about as little as possible. I have decided to publish a few examples, from the many that are at hand, and if I understand that they do not displease, perhaps a more expanded and corrected Psellus will be brought to light. As for the headings of Roman Law, which are treated here, I preferred to indicate everything in a few words rather than to illustrate them with many. B Thus it would have been necessary to repeat things which are found written and repeated so often by others, and I would have gone beyond the limit in writing which the most famous editors of the Miscellaneous Observations established.
*Verse 61.* Psellus relates this among other praises of the book of the Institutions, and deservedly so. However, so that the rationale of the meter and the words may hold together for you, rewrite: *If anyone should examine this book so carefully, / This man becomes the most legal student of the law.* A similar error is found later at verse 970. Restore [the text], where that which the Attics are accustomed to do, and which the Latins imitate, [is used] elegantly by adding the particle of negation to the verb of negation: you may see the most learned Albert in *Observat. ad Novum Testamentum* bringing forward examples from the Greeks; and from the Latins, as well as from our own jurisconsults, the illustrious man and greatest jurisconsult of our times, Bynkershoek (lib. v. *Obs.*, c. 3), has brought forward many things, to which add the unique one, so that I may not dwell longer on a known matter, from § *Instit.* *de suspectis tutoribus*, where also Theophilus... etc.
*Verse 195.* Bosquetus translated: *they are also those which they call arbitrary, which are instructed by judicial judgment to the will of the judge.* But they seem corrupted, and both the rule of law and the rationale of the construction suggest this. What the very nature of an action wants—that it should be arbitrary—that is by no means to be left to the will of the judge; and even if that were granted, it is not established in such a way, C as to what it refers; all error descends from a corrupted *et* [and], for which read *et ou* [and not], [which are] exchanged among themselves quite often in this little book, and thus the sense will be that some actions are arbitrary, but others have nothing in common with the judge’s arbitration. Add v. 574. Moreover, rightly from here the illustrious Schulting defends the word *ἀρυπαμένη* [that which is removed] in the *Glossas Nomicas*, which the construction itself also seems to prove.
*Verse 220.* The same things occur in the *Synopsis* of Attaliates, p. 45, whence here for [it] restore *hinc autem* [but here]; there read [in] Bosquetus’ version—which is obscure here—*fiscus est qui intra quadriennium a vero Domino poterit conveniri* [the fiscus is that which can be convened by the true owner within four years]. Add § *ult. Instit. de Usucapionibus*.
*Verse 240.* Bosquetus translated, *If someone should have testified concerning camp-peculium, the testament is valid for all time*, badly; for Psellus meant to signify that a military testament is valid for an entire year even after discharge, and thus later *χρόνος* often occurs for *annum* [a year].
*Verse 259.* Therefore, according to Psellus, the fourth of the Divine Pius here is the fourth of all goods, which nevertheless he makes the third later at the verse, and thus it seems to confuse [it] with the legitimate portion. Whence one might perhaps think that here also *τὸ τρίτον* [the third] should be rewritten. I would scarcely dare to change anything, however, since neither do other Greeks agree with themselves in this matter. Theophilus (l. 1, tit. 11, § 3) makes mention of the fourth; Harmenopulus writes the same (l. v, tit. 8, § 87), where for *σωτηρώδη*, which is also seen in the Parisian edition, but has no sense, read *σωτηρώδη*. The *Basilica* (l. VIII, § 15, D. *De querela inofficiosi testamenti*) have [text omitted], and the Scholion, however, on that place p. 45, affirms that it claims the fourth place for itself: whose words, since they seem to labor, I shall append, etc. He translated this Fabrot... D but because he has the fourth from the constitution of the divine Pius, Ulpian says it is fitting, or not, to admit him from the beginning to the claim of a testament regardless of office, or if, having been admitted, he has not prevailed, the fourth is not to be taken away from him as if he were unworthy, etc. To the sense these respond generally, I confess.
A However, they perhaps created difficulties for Fabrotus, in which case, having deleted the sign, and having changed ̓́φαιρούμενος into ἀφαιρούμενον, I would wish those words to be taken interrogatively, so that they might mean in Latin: Does the fourth also, from the constitution of the divine Pius, arrive at the fisc, as if taken from an unworthy person? And in this way the following words will contain the solution of the question. B ̓̓ρχή, also, as very often elsewhere, could aptly be rendered here generally. The Basilica also have it in this matter, although the scholiast there makes mention of the fourth once again; furthermore, the words mentioned in L. ii, § 1, κληρονόμος ὁ ἀγαθὸς νομεύς, do not have sense; read κληρονόμος ἢ ἀγαθῶν νομεύς, just as the Nomical Glosses also defined the *bonorum possessor* as ἀγαθῶν δισκάτοχον in *Bonorum possessoris*, where perhaps, for διακάτεχον, διακατέχου should be read.
Vers. 261. Ἀτελὴς συγγινώσκεται μήτηρ, μὴ ἀπαι[τοῦσα Τοῦ ἀνδρὸς τελευτήσαντος, ἐπίτροπον τοῖς τέκνοις. Bosquetus translates: *The mother who does not petition for a guardian for her children when her husband is dead is infamous. But very poorly.* For neither the words nor the laws support this interpretation; but you should translate: *A mother who is a minor deserves forgiveness when not petitioning for a guardian for her children, the husband being dead.* See L. i, C. *Si adversus delictum suum*. Ἀτελής is often used among jurisconsults for a minor, to whom *τέλειος*, who is said to be of his own age, is accustomed to be opposed.
Vers. 309. Τὸ διαπλασιαζόμενον ἔκ τινος ἠρνηκότος Καταβληθὲν ἐνδέβιτον ἀπαίτησιν οὐκ ἔχει. Bosquetus translates: *That which is paid double by one who has denied is not recovered by a condiction of indebitum.* But Psellus wished to signify nothing less than this. You should read διαπλασιαζόμενον, and translate: *That which is accustomed to be doubled by the denier, when paid as indebitum, cannot be recovered by condiction*, and the reason for this matter is to be handed down to distinguished men, because one who pays the simple [amount] is considered to have settled concerning the double. See § ult. Inst. *De obligationibus quæ quasi ex contractu*, and L. iv, C. *De condictione indebiti*.
Vers. 343. Κατὰ τοῦ κλέπτον φούρτιβον, κἂν μὴ [νέμηται δώσας Τῷ ἐκπεσόντι πράγματος πουβλιάνη ἁρμόζει. Bosquetus translates: *A Publiciana action is competent for him who has lost a thing, since he does possess the stolen thing, against the thief*, which I do not understand how they cohere; for δώσας read δώσεις, as *as* and *eis* are often interchanged in this little book, and translate: *You will give a furtive condiction against the thief, even if he does not possess it. To him who has lost the thing, the Publiciana is given.* By *φούρτιβον* here I understand *φούρτιβον κονδικτιτίων*. See § ult. Inst. *De obligationibus quæ ex delicto*, and the matter seems certain from the rules of law. *Πουβλιάνη* however is what is elsewhere correctly called by Psellus *Πουβλικιάνη*, v. 566, which the Nomical Glosses well explain in *Πουλικιάνη*. Where *it has an imitation of ownership and not of bare possession. And it is the revoked possession to him who has not yet for the sake of ownership acquired in good faith.* The former [parts] are correct and are from L. vi, § 7, D. *De Publiciana in rem actione*; the latter are more obscure, for *διὰ κυριότητα* elsewhere is almost always found as *διὰ χρήσεως*, but *νομή* cannot be carried to the end, and that great man Schulting also saw this at this place, who corrects *νομή*; I myself had conjectured *νομῆ*; and it is also confirmed by Harmenopulus L. ii, tit. 1, n. 70, who should be restored from here; his words, *Πουληκιανή ἐστιν ἡ ἀνακαλουμένη τὴν νομὴν τῷ μήπω διὰ κυριότητα καλῇ πίστει νομεῖ*, do not have just sense, whence it is no wonder [that] the version is of no importance; for what, I ask, do these mean, *the Publiciana is what revokes possession for him who on account of ownership is not yet a possessor in good faith*? All error C is born from the omitted word *δεσπόσαντι* before *καλῇ*, which being added, those things which are said are clear.
Vers. 330. Τῷ δὲ δελφάσις ἔνοχος ὃς ἀλοίη πλα- [στεύων. Bosquetus translates: *He who changes by writing falsely is obligated to the law on forgeries.* Wrong; rewrite *ἀλοίη* and render: *having been convicted as caught.* Bosquetus here perhaps thought of the verb *ἀλλοιόω*. For *δελφάσις*, it is patent to everyone that here *διφάσις* should be written.
Vers. 333. Οἱ γενικοὶ τῶν εἰδικῶν ἐγκρατέστεροι νόμων. That Bosquetus held these to be corrupted is evident from his version. For he translates: *General laws are stronger in judgments*, which, however, neither did Psellus say, nor could he correctly say. You should read: *Οὐ γενικοὶ τῶν εἰδικῶν ἐγκρατέστεροι νόμων*, and all things are true, for general laws do not derogate from special ones, even though they should be later; see L. lxxx, D. *De reg. juris*, and the Commentators there, especially the great Bynkershoek L. vii, Obs., c. 15.
Vers. 338. Πάντα τὰ ἰδιωτικὰ δημόσιον οὐ βλάπτει. Restore by a very slight change: for *πάντα*, *πάκτα*, so that it may look to L. xxxviii, D. *De pactis*.
Vers. 354. Ὁπόσα δὲ μὴ ἔχουσιν ἰσχὺν κατὰ τῶν [νόμων Χωρὶς ἀποτελέσματος δοθέντα κατὰ πλάνην, Οὐκ ἔχει ῥεπετίτιον οὐδ᾽ εἴσπραξιν ὀπίσω. Bosquetus translates: *Ex his omnibus causis, quæ jure non valuerunt aut non habuerunt effectum secuta per errorem solutione condictioni locus erit.* I confess these words are [true], for they are the words of L. liv, D. *De condictione indebiti*. But they signify nothing less than that which the Greek bears. Whence, therefore, this version for him was born, I do not see: for he neither signified that a defect was present, nor sought a remedy; if I see anything, I would think the defect lies in the words *κατὰ τῶν νόμων*; wherefore read *κατὰ τὸν νόμον*, and the sense will be: *Whatever things have force according to the law, but are without effect (namely, so that they cannot be sued for), paid through error, cannot be recovered by the condiction of indebitum.* Nor do I thus wander from the law, since it is very well known that a natural obligation hinders a condiction of indebitum, and, if you will, see L. lxiv, D. *De condictione indebiti*, L. xciv, § 3, D. *De solution*.
Vers. 357. Χείρονα ποιεῖν αἵρεσιν γυνή προικὸς [ἰδίας Σαφῶς οὐκ ἔχει δύναμιν ἐν συνεστῶτος γάμῳ. These are very true, and it is evident to anyone that a woman while the marriage is constant cannot render the cause of the dowry worse. See the Interp. ad tit. D. *De pactis dotalibus*, but what is here *ἐν συνεστῶτος γάμῳ*? Perhaps *ἐκ συνεστῶτος γάμου*, or what I would prefer, *ἐν συνεστῶτι γάμῳ*, as it is also in the Schol. ad L. xxi, § 2, D. *De pactis*. Where it is almost the same word for word.
Vers. 362. Ἐκδίκησιν ἐγκλήματα λαμβάνει τὴν δι- [καίαν. Ἐν τόποις οἷς ἡμάρτηται, ἔνθα κρείτνων ἡ γνῶσις. Bosquetus translates: *Crimina justam vindictam habent, quo loco quis deliquit de crimine cognoscitur.* I would prefer to translate, having deleted the period at the end of the previous verse: *Crimes are justly avenged in the places in which they were perpetrated, where the cognizance of them is easier*: which, however, is not the only reason for this established law. See L. xxv, § 15, D. *De pœnis*; L. iii, D. *De re militari*, and Nov. 134, C. 5.
Vers. 383. Τὴν τῶν κακῶν εἰσαγωγὴν οὐ σφίγγει μα- [κρὸς χρόνος. Bosquetus translates: *Improborum accusatio longo tempore concluditur.* But if these are true, Psellus speaks falsely, and is contrary to himself while, below, vers. 745, he says: *Περαίτωσις ἐγκλήματος ὅρος εἴκοσι χρόνων.*
χρόνων.* A For to defend a base man, worth nothing, in place of a man set against him from the opposite direction, adorned with virtues and with such gifts as the other was deprived of—what great distress would this not cause the writer, for whom prevailing is equal to being defeated, and the dishonor of both parties redounds to him? For when Aristides was struggling on behalf of the four against Plato, the philosopher inspired within the orator energy along with cheerfulness of speech; and he himself, feigning reluctance, like a clever rhetorician, says that he does not have enough [resources] to use against such a person in the struggle. But from B Plato’s own speech on his behalf—contending not against Pericles or Cimon, but against some piece of nonsense, such as the account of history depicts Coroebus—the very person struggling against him becomes a precise premise, pointing to the lack of vigor of the speech and the lack of zeal for it, in opposition to Aristides on the part of Plato. These, then, are the reasons why I have taken on the present speech while feeling distressed for a long time, and why I have spent the time up until C now. Since, however, the garrulity of the speech seemed to the many to be sagacity, and the lack of craft of the writer to be genuine and unaffected simplicity, and from this point envy, having gained ground, gathered along with advocates against the Guardian of the Laws, it seemed to me a terrible thing not to assist Plato as well, who was in danger on account of the truly young Aristides, who strengthened our city with many other D speeches, and especially with his political ones. If, therefore, every listener were fair-minded, no difficulty or proof would be needed for the speech, but it would have sufficed to have been rid of troubles by shedding light on the slanderer. For as regards those whose reputation has been foolishly accepted, the very mention of their name is a clear indictment and proofs of guilt. But since the many do not yield to presumptions, but pay heed to the words of slander, in order that we may make their envy more insecure and our own speech more spirited, we shall not grant that Ophyras was the one who wrote it—that foolish old man—but rather someone else, a man who partakes of reason, who clings to political matters, and who knows sufficiently the man who is to stand in defense of the laws.
A And marvel at the composition of the lawgiver; the Italian calls the forgery by a name, as it were, of adultery. Thence, therefore, it is termed "stir" [of adultery], for adultery is a forgery and a certain falsification.
What the author means here is sufficiently clear, and the only thing that creates difficulty for me here is that phrase, "the stir of adultery." *Stropton*, or rather *stroupton*, means the same as *stuprum* (defilement), and more often signifies *porneia* (fornication) in a general sense, such that it even comprehends adultery, just as in the Julian law *stuprum* is sometimes used for adultery. What, therefore, is "the *stuprum* of adultery" here? Why, unless perhaps in the same way that one might wish to defend the crime of adultery and similar things, check whether one ought not to rewrite this passage: "Thence, therefore, is termed the *stropton*, of [illicit] bed; for adultery is a forgery and a certain falsification."
*Molita* seems to abound too often in our text at verses 354 and 963, and those things which are contained in the *Glossae Nomicae* under the word *Adoulteris* fit excellently; the beginning of which is most obscure in the mentioned passage. The words are: "*Adoulteris* is the law promulgated indeed by Augustus, but guarded by the Julian law; it moves regarding adultery and *stropton*. And adultery is with respect to those who are married; but *stropton* is moved concerning virgins, and widows, and male children." What Bosquet attempted regarding this passage, the great Schulting rightly refutes, who conjectures that it should be read: "*Adoulteris* is the law promulgated indeed by Augustus, but guarded by the name of the Julian [law]." Many things favor this most ingenious conjecture; but if you wish to accept it, read in the subsequent lines also, instead of *kinei* (moves), *kineitai* (is moved), or else they will scarcely cohere with what precedes: for to what will you refer that word *kinei*? A law is said not to *kinein* (to move), but to *kineisthai* (be moved), as infra verses 93, 543, 613, 623, and it occurs most frequently among others. It occurred to me once that, with *kineitai* restored, the preceding words should not be tampered with, but that the author had regard for Law 1 and Law 11, *D. Ad legem Juliani de adulteriis*, the words of which are, "This law was promulgated by the divine Augustus, but is guarded by the Julian law, etc.", so that the sense of the Glosses is: The law concerning adulteries was indeed promulgated by the divine Augustus, but is guarded by the Julian law; it is directed, however, concerning adultery and *stuprum*: and thus this error is to be attributed to the fault of the Author, and not truly to another writer; to which Author also must be ascribed those things which are contained in "The Aquilian action, moved against the one who has delayed to give what was left behind." See Psellus, verse 477, since they do not fit the Aquilian law at all, as the excellent man very well perceives. The difference which is recorded here between *stroupton* and adultery is also taught in the Glosses under the word *phthora* (destruction), and the matter is well known. You see whether it is rightly read here, "But *stropton* is moved concerning virgins, etc."; for perhaps *ginetai* (is brought about) should be restored.
Vers. 512. *Within time, from within, demanding fourfold.* These things are very true regarding the action for goods taken by force, *raptorum*; but what is *entos chronou esothen*? Should "within completely" be written, as infra verse 690, or rather "of one," as verse 585? Which I would prefer. The same is taught infra verse 703 regarding the time of this action, and, as is evident, truly: since all praetorian penal actions are for the most part finished within a year. Nor do verses 767 and following stand in the way: "Nor regarding the seizure of movables were the Latins, Thus they have termed them *bonorum raptorum*, For more than thirty years does it hold for an action." These things are taken from Law 1, § 1, *C. De annali exceptione*, and anyone can easily see that it is not to be understood regarding our penal action, but regarding the very persecution of the stolen property, which will be given even beyond a year.
D In verse 767 read: "Nor the one regarding the seizure of movables, which the Latins..."
Vers. 525. *But the one regarding fraud is penal and a penalty.* *It is given in cognizance, it is personal,* *And in two years it is begun and completed.* *If there is another action, you do not move the one by fraud.* As far as the law is concerned, what is said here is very true, and the same [is said] infra verses 704 and 1143; but the words of verse 525 are suspect to me, and perhaps it should be rewritten: "But the one regarding fraud is itself both penal and a penalty." See supra verse 501, where there is almost the same manner of speaking. In the following verses, for *archetai* (is begun), put *archetai* (is begun). Join with these the *Glossae Nomicae* under the word *de dolō malō*, where the rationale and equity of the action regarding fraud is rightly handed down from Law 1, *D. De dolo malo*, but the words, "So that neither these might profit from their own wickedness, nor those who are demanded be harmed by their own simplicity; and thus Servius defined fraud..." there is [first] fraud: secret evil-doing in the guise of better things, brought against one's neighbor; the second fraud is every malice, and deceit, and device against a scheme, brought about against another. The celebrated Schulting advises that *blaptontai ei to plēsion* (are harmed, if to their neighbor) should be read. I think many things also in this are labored. For *apaitoumenoi* (those demanded), [read] *apatoumenoi* (those deceived), for the matter concerns those harmed to whom an action should be given, not an exception; furthermore, I do not understand here what is the "first fraud" and what is the "second," wherefore, from the mentioned Law 1, § 2, if place is given for a freer conjecture, I would read: "And thus Servius and Labeo defined fraud; for the first, i.e., by Servius, fraud is, etc.; the second, i.e., by Labeo, fraud is," and thus all things cohere, and they agree excellently with Law 1, § 2, *D. De dolo malo*, which, besides Huber, Schulting, and many others, the man most celebrated in our jurisprudence, Nood, explained excellently in *De forma emendandi doli mali*, chapter 2.
Vers. 548. *For perhaps someone was about to sail a dangerous voyage,* *And gave money through fear of death;* *For here the giver, having been released from fear,* *Is again the master of the things given,* *He who, having received the gift, has natural possession.* Bosquet translates these things: "If anyone, about to enter upon a dangerous voyage, gives money through fear of death, and lets go the given things, he who gives through fear remains master of them, but he who received the gift attains natural possession," but most poorly. All the error arises from the corrupt verses 549 and 550, which restore thus: "And gave the money through fear of death; For here the giver, having been released from fear," and thus the sense will be: Perhaps someone wanted to enter upon a dangerous voyage, but gave things to someone through fear of death; if he who gave is released from that fear, he becomes master of the given things again, and he who received the given things has natural possession of them. These things seem to be drawn from Law 29, *D. De donationibus mortis causa*, where Ulpian, upon the stopping of the danger on account of which something was given, thinks that a *rei vindicatio* (claim for the thing) should be granted; the *Basilica* in Law 29 labors: for *egianē*, which has no sense, read *hygiaina* (sound), which Psellus writes infra verse 1233 and seq., "A *mortis causa* gift given to someone, Having been revoked, is taken back immediately, With fruits, and offspring, and things increased." Refer to Law 12, *D. De condictione causa data non secuta*, by which a *condictio* is permitted to the donor to claim the donated thing with fruits, offspring, and other increases. It seems that in this matter there was a dissension between the Sabinians and the Proculians, and Cujacius thinks that the opinion of both schools was then joined at Law 23, *D. De mortis causa donat*; but I will perhaps treat this more broadly at another time.
A Now another matter is being treated. The *Nomica* Glosses on [Greek: ἡ δονατζιό- νικος] seem to Cl. Schulting correctly to be corrupt, and that great man has excellently conjectured that the words [Greek: μήτε καταστρέ- φεσθαι τὸ δωροώμενον] are clearly displaced from their proper place; yet, so that they might cohere, perhaps more things have been omitted that should be said, and see whether the whole passage should be read thus: Greek: Αἱ μὲν ἐντερβίβους ἤγουν ἐν ζωῇ ὥστε ἀπεντεῦθεν ἔδυ ἔχειν τὸν λαβόντα μήτι καταστρέ- φεσθαι τὸ δωρούμενον, or, if you wish to use less effort, read: "that is, in life, henceforth already, nor that the thing given be destroyed."
Verse 555. [Greek: Ἡ δὲ ἐνοφικίοσο ἡ διαθήκης μέμφις] [Greek: Εἰσαγωγὴ πρὸς ἀγωγὴν, οὐκ ἀγωγὴ τυγχάνει.] For [Greek: μέμφις] read [Greek: μέμψις], and as regards the matter, note that Psellus here agrees with those who distinguish the complaint of an inofficious testament from the petition of inheritance itself; the *Nomica* Glosses write almost the same thing on [Greek: ἐνοικίασο], where in the words [Greek: οὐκ ἔστιν διαθήκης, ἀλλ᾽ αἰτία ἐστίν ἀγωγών], delete [Greek: διαθήκης], repeated through the carelessness of the copyist on account of the preceding word of this kind, or, if you do not like that, rewrite [Greek: ἀγωγὴ κατὰ διαθή- κης], for here to understand [Greek: κατά] as omitted is less pleasing. The following, [Greek: καὶ ἀπόδειξις τοῦ δέοντος κινεῖν τὸν γραφέντα κληρονόμον], I also do not understand, unless you wish to rewrite [Greek: δεόντως], which the Scholiast on Basil, vol. V, page 222, also has, where many jurists of our own time also proceed in almost the same way, word for word, with Psellus and other Greeks, whose opinion nonetheless seems less plausible, as Vinnius, Averanius, and others have excellently shown. We concede to the Greeks that the writing of the testator is the cause of an inheritance, not a petition for inheritance; but what of it? Therefore, as is rightly inferred from what was said, an inofficious testament is the cause of the complaint, not the complaint itself, and this we all confess; and yet we consider the complaint itself to be a petition for inheritance by reason of an inofficious testament, in strict law; but these things take place elsewhere.
Verse 671. [Greek: Ἑβδόμης ὥρας δ᾽ ἄρχεται νυκτὸς καὶ] B [Greek: μέχρι ἕκτης] [Greek: Νυκτὸς τῆς ἄλλης ἀκριβῶς τὴν περαίωσιν ἔχει.] Bosquet translates: A day begins at the seventh hour of the night, and passes exactly until the sixth of the other night, and so he thinks that Psellus errs here in the number. I, however, would rather think that a fault of the writing is present here, and the very structure of the words suggests it: for what is [Greek: ἔρχεται ἐβδόμης ὥρας]? See therefore whether one should read: [Greek: Ἕκτης ἡμέρα δ᾽ ἄρχεται νυκτὸς, καὶ μέχρι ἕκτης], etc. Add Law 8, *D. De feriis*; Law 5, *D. Qui testamenta facere possunt*; Eustathius *on Intervals of Time*, p. 209.
Verse 734. [Greek: Ταῖς μὲν θηλείαις δώδεκα εἰς ἐφηβίαν] [χρόνους] [Greek: Οἱ δὲ τεσσαρεσκαίδεκα τοῖς ἄῤῥεσι κριττέοι.] Either [Greek: χρόνοι] seems to be what should be read in verse 734, or, for [Greek: δώδεκα] I have given [it], for he had already assigned 15 years to girls, verse 730.
Verse 792. [Greek: Εἰ δ᾽ ὅθαν ἐγέννησε παῖδας ἐν βίῷ δύο,] [Greek: Οὐδ᾽ ἑνὸς ἐμνημόνευσε ποιήσας διαθήκην,] [Greek: Ἕκαστος ἔκτον λήψεται πραγμάτων τῶν πατρικῶν.] Treating of the Falcidian portion, Psellus writes these things, but in the version, neglected by Bosquet, of which matter I do not see the cause; verse 792 is corrupt; for what is that [Greek: εἶδ' ἔθαν]? You rewrite from Attaliates, *Synopsis* p. 33, [Greek: εἰδ' ὁ θανών], etc. From this, however, render for Attaliates the two verses 794 and 796 into verse 797: [Greek: Δωδέκατον δ' εἰς τέσσαρες τυγχάνουσιν οἱ παῖδες], restore [Greek: δωδέκατον δ᾽ εἴ τέσσαρες]. The *Nomica* Glosses also, in the entry [Greek: Φαλκίδιος], labor. The words are: "Falcidius is called by the laws (perhaps 'jurists') when from a common thing, to which many participate in a part of these, each of those participating to it is given." Which the common people are accustomed to call a share. Cl. Schulting here wishes [Greek: ἑκάστῳ] (to each) to be read, and so it also exists in Harmenopulus, p. 399, where almost all is word for word; in the following, however, he thinks should be restored: [Greek: ὃ συνήθειαν οἱ κοινωνοὶ ἔχουσι μερίδα φαλκιδίαν καλεῖν]; but perhaps less well. I restore [Greek: οὗτο] also from the Schol. Harmenop. here, nor do I think it refers to [Greek: μέρος] (part), but to [Greek: φαλκίδιος]. But the sense of the following words seems to be this, that what the jurists call a *Falcidium*, that is commonly called a share. Whether this is an accurate description of the Falcidian [portion] we do not now inquire. *Cæterum* in Harmenopulus also [Greek: παρὰ τῷ νόμῳ] (according to the law) is hidden, and, for [Greek: δίδοται], [Greek: διδῶται].
Verse 869. [Greek: Ἑξαετοῦς οὐ γίνεται μνηστεία κατὰ] [νόμους] Rightly is that written by Psellus; for the bride ought not to be less than seven years of age, Law 14, *D. De sponsalibus*. Attaliates has the same in *Synopsis*, page 23, whom restore from here.
Verse 874. [Greek: Ἡ περὶ παρακαταθήκης τε καὶ ἀρπαγῆς] [βιαίας] Correct, so that the verse has 15 syllables: [Greek: Ἡ περὶ παραθήκης τε καὶ ἀρπαγῆς βιαίας], as above in verse 520, where I would also prefer that [Greek: ἡδέ δε ποσίτης] be read, and in verse 522 for [Greek: τόκος] and [Greek: συγχήσεως], [Greek: τόκους] and [Greek: συγχρήσεως]. *Cæterum*, *depositum* is very frequently otherwise called [Greek: παρακαταθήκη], as in Law 37, § 5, *D. De leg.*, where some editions, with words poorly divided, [Greek: παρὰ καταθήκην], perhaps deceived some, since [Greek: εἰς] was omitted, so that more often among the Greeks [Greek: εἰς παραθήκην], or [Greek: ἐν παραθήκῃ], or [Greek: παραθήκης λόγῳ] is used.
Verse 913. [Greek: Εἰσὶ δ᾽ ἕτερα δάνεια τῶν μεταγενεστέ-] [ρων] [Greek: Τὴν δύναμιν κινήσαντα τῆς προικὸς παραδόξως] [Greek: Ὁποῖον τὸ διδόμενον ἀκοντισταῖς τοῖς πρώτοις] [Greek: Καὶ τὸ προφάσει δανεισθὲν στρατείας κινουμένης.] Psellus here follows the opinion of those who, in a competition of creditors, grant the first position before all others to the treasury by reason of the *primipilarius*, Law 11, *D. De primipilo*; second to him who lent money for the purchase of military equipment; third, finally, to the wife by reason of dotal items, *Nov.* 97, c. 4; nor are there wanting today those who think the same as Psellus; whether well or ill I will not examine here, I only wish now to have admonished that in verse 914, for [Greek: κινήσαντα] perhaps one should rewrite [Greek: νικήσαντα], so that [Greek: νικᾶν] is used more often by our writers and by Psellus in verses 919 seq. Furthermore, in verse 916 I do not know who wants [Greek: στρατείας κινουμένης], you see whether [Greek: ὠνουμένης] should be read. What [Greek: δάνειον] is and how it sometimes differs from the word [Greek: χρέος], and sometimes however is comprehended by the same, see the *Nomica* Glosses on [Greek: χρέος], where the words [Greek: καὶ τὸ ἀπὸ λεγάτου καὶ ἀπὸ δια- θήκης] seem to me corrupt, for that which is due from the cause of a legacy is most certain to be due from the testament: Harmenopulus however also has, page 236, [Greek: ἀπὸ διαθήκης], but nevertheless in both places I would prefer to read, for [Greek: ἀπὸ διαθήκης], [Greek: ἀπὸ καταδίκης] from the Attaliates *Synopsis*, p. 18. *Cæterum*, refer here Laws 10 and 11, *D. De V. signification.* From the latter of which Schulting, at the word [Greek: δανειστής], correctly reads [Greek: χρεωστούμενος] instead of [Greek: χρεώμενος], as is also read in Psellus, verse 890: Greek: Πᾶς γὰρ ὁ χρεωστούμενος ἐξ οἰασοῦν αἰτίας Ἐκ νόμου δανειστής ἐστι τοῦ κεχρωστημένου.
Verse 922. [Greek: Καὶ ὅσοι κατεκρίθησαν ἐν τοῖς δικαστη-] [ρίοις] [Greek: Ὡς συκοφάνται μὲν μοιχοι ἢ κλοπὴν εἰργασμένον.] These are referred by Psellus among the witnesses who are barred from testimony entirely, and so he seems to agree with those who deny the faculty of testifying to the infamous in general, which however Duaren, Donellus, and other jurists of great name think to be most false, *arg.* Law 11, § 5, Law 13. *D. De testibus*.
A ...adulterii damnato agit 1. xiv, *D. De testibus*, regarding which the Scholiast on Basil, p. 553, notes that it is to be understood of a condemned person, whose words, being corrupt, I shall transcribe and amend: Οὐκ ἀμφιβαλλόμενος ἀλλ᾽ ὁ πρὸς τῆς ὑπογραφῆς καὶ μαρτυρίας κατηγορηθεὶς καὶ καταδικασθείς, which Fabrottus translates, "Not he concerning whom there is doubt, but he who, the accuser subscribing to the crime and witnesses being given, has been accused and condemned": but the Scholiast intended to say nothing less. Fabrottus was deceived by the corrupt πρός: change this to πρό, and thus the sense of the words will be: "Not he concerning whom there is doubt, but he who, before he has subscribed his name to a testament and served in the capacity of a witness, has been accused and condemned." You will call this a most certain emendation if you consider that in 1. xiv it was sought whether one condemned for adultery can be a witness in a testament. Everyone knows that πρός and πρό are very often interchanged.
*Vers. 924.* Οὐκ ἔστι μάρτυς ἄνηβος οὐδὲ τῶν γυναικῶν τις. Εἰ δέ στι τὸ γενόμενον μὴ δυνάμενον θέαν Ἀνδρικὸν καταδέξασθαι γυναῖκες μαρτυροῦσιν. According to civil law these are false, for it is evident from 1. xviii, *D. De testibus*, that women have the right of giving testimony, except perhaps in a testament or codicils. However, it is certain that by Leo’s Novella 48, women are removed from the giving of testimony, to which therefore reference is made here; the Scholiast on Basil also cited it in the title *De testibus*, p. 545 and 557, in which latter passage the words are corrupt, Ἐπὶ δὲ τοκετῶν καὶ εἴ τι ἕτερόν ἐστιν ὃ μόντην θηλέων ὄψις ὁρᾷ; correct and read ὃ μόνη θηλείων ὄψις ὁρᾷ. Attaliata teaches the same in *Synopsi* p. 15, "and children are forbidden to testify against parents and parents against children, and women" — and then "and women except for the bath-house and *locheia*, where men cannot enter." In the words πλὴν βαλανείου καὶ λογείας, a corruption seems to lurk. Leunclavius reads πλὴν βαλανείου καὶ ἐν τόποις, wrongly; you should read πλὴν βαλανείου καὶ λοχείας; in Harmenopulus, *bino*, for *bia* (βίᾳ), Bosquet shows that B *βίᾳ* should rightly be read at this passage.
*Vers. 927.* Καὶ δοῦλος ἔτι μαρτυρεῖ ἐν σπάνῃ τῶν μαρτύρων. The fact is true, as is evident from 1. vii, *D. De testibus*: but what does ἐν σπάνῃ mean here? You should read ἐν σπάνει, by a very easy mutation; for η and ει are very often confused.
*Vers. 938.* Τοῦ δ᾽ ἄλλους ἀναγκάσειας μαρτυρεῖν ἀκουσίως, Καὶ μᾶλλον εἰ τυγχάνων τις τῶν καταδεεστέρων Πρὸς ἄνδρα δίκην ἔλαχε τῶν ἐπὶ δυναστείαις, Κἀντεῦθεν ὑποκλάζουσι τῷ φόβῳ τοῦ δυνάστου Καὶ τοῦ πένητος οἱ μάρτυρες, τότε γὰρ καὶ πρὸς βίαν Εἰς μαρτυρίαν ἕλκονται καὶ τ' ἀληθὲς τιθέναι.
In verse 933 read τοὺς δ' ἄλλους, and in verse 937 read τοῦ πένητος, with *καί* deleted. But what does *ὑποκλάζουσι* in verse 936 denote? The same Attaliata has it in *Synopsis* p. 15. Bosquet corrects it to *ὑποσχολάζουσι*, which however is less pleasing. It should perhaps be read *ὑποσκάζουσι*, and thus it translates the "wavering faith" in 1. 1, pr. *D. De testibus*; the Scholiast on that passage translates it as *σκάζουσαν πίστιν*. I shall transcribe the whole passage, since it seems corrupt: τῶν μαρτύρων ἡ χρῆσις συνεχής τε καὶ ἀναγκαῖα τὴν ἐξ Ἑλλήνων μάλιστα, χρὴ δὲ προσλαμβάνεσθαι καὶ ἀπαιτεῖν μάρτυρας ὧν οὐκ ἔστι σκάζουσαν τὴν εὑρεῖν ἤτοι τὴν μαρτυρίαν. I do not know what that "chiefly from the Greeks" signifies here, and therefore consider whether it should be rewritten "chiefly from the males." For women were prohibited from being witnesses, by Leo’s Nov. 48 mentioned above. Furthermore, what Psellus teaches here, the Scholiast on Basil also has at the title *De testibus* p. 574, where what I think here is *ὑποσκάζειν* is signified by *ἀναποδίζειν*.
*Vers. 942.* Ἐπὶ δὲ καταθέσεως πέντε μάρτυρας δέχου. Τὰς δέ γ' ἐκ τοῦ παρήκοντος ἀθέτει μαρτυρίας. Bosquet translates these: "Exhibit five witnesses for a deposit, but testimonies from the passing are conveniently rejected." Most wrongly! *Κατάθεσις* in the Novellae and other Greek texts signifies a confession, caution, or deposit, and here too it signifies the confession of a debtor, who, if he confesses a debt without a writing, the confession is held of no moment unless it can be confirmed by five witnesses specially requested to be present at the confession; and so the sense of the words in verse 942 will be: "For the confession of a debtor, admit five witnesses; but translate the following, 'In transitu,' or 'reject testimonies taken from one passing by,' and thus everything accords with the words and meaning of Nov. 90, c. 2 and 3, at which passage, for *ἀκούσει* read *ἀκούσοι*, and that *ὀφείλειν τῷδε* should be read from the aforementioned Novella, it is hardly necessary to admonish. Moreover, the following verses are also to be explained from the same chapter of the Novella."
*Vers. 948.* Εἰ μήγε πέντε μάρτυρες εἴποιεν παραχθέντες Ὡς γέγονεν ἀπόδειξις τοῦ κεχρεωστημένου. Ἢ τούτων κατ᾽ ἐνώπιον ὁ δανειστὴς ἐξείποι Ἀπολαβεῖν τὸ ἴδιον χρέος ἐκ τοῦ χρεώστου.
Bosquet translates: "Unless five witnesses produced have said that a security had been written for the debtor and in their presence the creditor had said that he was receiving his own debt from the debtor": wrongly; nor do five witnesses produced by the debtor suffice, but far more are required beyond the number, as will be evident to one looking at the Novella: I translate, therefore, "Unless five witnesses say that they were summoned when the receipt was made, or unless the creditor in their presence has said that he had received the debt from the debtor." Harmenopulus says almost the same, 1. 1, tit. 6, n. 3: Οἱ μαρτυροῦντες ἐπὶ χρεῶν ἐγγράφων εἰς πάτωσαν ὡς τῇ καταβολῇ παρῆσαν ἢ ἐπ' αὐτοῖς νομίμως κατέθετο ἐπὶ τούτῳ μόνῳ προσκληθέντες δηλονότι, ἐὰν ὦσι πέντε τὸν ἀριθμόν. These are translated, "Those who give testimony regarding written debts should say that they were present at the payment, or that he had legally deposited [it] in their presence, being summoned for this purpose alone, provided they be five in number." These appear to accord less with the Greek text. You should translate, "Let them say that they were present at the payment, or that the creditor in their presence had legally confessed that the payment had been made to him," and if you do not wish *κατέθετο* to be taken passively, perhaps *κατετίθετο* should be read.
*Vers. 996.* Οὐκ οὖν τὴν κομεντίονα εἰς τρία ταῦτα τέμνε Πουβλίκαν λεγίτιμάν τε καὶ τὴν ἰουρισγεντίαν.
Bosquet in verse 997 deletes *οὐκ*, and says that it is manifestly redundant, but wrongly; it ought to be present, and must be joined with *οὖν*. Reason itself demands it, and who does not know that *οὐκοῦν* signifies "therefore"? And thus, rightly, Psellus here gathers from what preceded that, since a convention is divided into private and public, and private is lawful or of the law of nations, three species are best constituted: public, lawful, and of the law of nations.
*Vers. 1250.* Τὸν γάμον ἡ διάθεσις τελεῖ ἡ ἀμοιβαία, Προσθήκης γὰρ οὐ δέεται προικῴων συμβολαίων, Εἰ μὴ πρωτοσπαθάριος, ἢ πλέον τις τυγχάνει.
I wonder that this passage was left unamended by Bosquet: you should correct and read: Προσθήκης γὰρ οὐ δέεται προικῴων συμβολαίων, and from this correct Attaliata in *Synopsi* p. 23, where for *τῶν γάμων ἡ ἀθέτησις τελεῖ ἀμοιβαία*, restore *τὸν γάμον ἡ διάθεσις*, etc. These are drawn from Novella 22, c. 3, and 117, c. 4. The words of Nov. 22, c. 3, are referred to in the *Basilica* tom. IV, p. 255, where what was added, *ἀεί*, is drawn from Nov. 117, c. 4. Psellus reported almost the same above in verses 375 and 376: Γάμος δ᾽ ἐκ διαθέσεως συνίσταται καὶ μόνης, Κἂν μὴ προβῶσι γαμικὰ συμβόλαια πρὸ ταύτης, rewrite, *πρὸ ταύτης*.
*Vers. 1266.* Τῶν ἀναγκαίων πέφυκεν ὁ μόλος τῆς θαλάσσης,
θαλάσσης, to plant new shoots, a vineyard and trees, and for the utility of the farm, granaries. A *Vers. 1269.* "Gain" [is preferred to] "things done better than the dowry." Like a young orchard or a bakery, which indeed do not diminish the dowry, but are nevertheless demanded, concerning expenditures that produce enjoyment. [Regarding] "Superfluous" or "gain," instead of "for gains" or "for a gain," [refer to] 1. 1, N. *profitable.*
*Vers. 1273.* Let no one institute a lawsuit against a wife for theft, but let him institute B an action for removed things. C The husband, having [the right] against her, can—and an action of *condictio*... D
ADDENDA AND VARIOUS READINGS. (From the Sirmond Codex.)
*Vers. 18.* Schol.: For the most primary parts of the Digest receive the title "first of the first," since it is a certain four-book composition by nature concerning contracts, through which all of our law is said to consist.
*Vers. 26.* As if it were a hub of all the compilations, Schol.: As a steady midpoint of circles revolving around it comes to be for the stability of a medium, and for other circles placed on the outside, it is conceived as a certain center and rudder, in which the outer circles possess their rotation and governance, so too is the fourth part of the Digest, for it is as though a hub, and especially of those things previously spoken of and which will be spoken of. For just as all the inner parts are held by the hub, and are not allowed to be pried open, so too is the fourth part of the Digest, as though a hub of legal statutes. For indeed other, manifold collections, even if they arrive at saying something, nevertheless are unable to depart from these.
*Vers. 40.* After the eight-volume [work]. He says: After the eight-volume [work], that is, after this epitome of the eighth of the parts of the Pandects, which, being the eighth from the first part of the Digest, is thus known up to it.
*Vers. 43.* Another part, the Novellae. *Vers. 44.* Very concise. *Vers. 45.* The sixty-title [work] contains all the laws. *Vers. 50.* As a gateway of laws. *Vers. 53.* The ancient genealogy. *Vers. 61.* Even if anyone would examine this accurately. *Vers. 63.* Turns and... *Vers. 65.* Common agreement. *Vers. 67.* Prohibition. *Vers. 68.* For the rest, the natural and the national [law] happens to be [it]. *Vers. 75.* For the natural [part] is the third part of these of the law. *Vers. 76.* Not of this and of that. *Vers. 80.* Nature of contracts. *Vers. 82.* And again. *Vers. 88.* The emperor's edicts. *Vers. 90.* The "verbs," and "letters," [and] fourth, the "concession." *Vers. 95.* Each of the obligations [and] actions. *Vers. 107.* Toward someone. *Vers. 109.* Which [pertains to] violent ones. *Vers. 112.* As pleased the majority. *Vers. 117.* Each. *Vers. 121.* Without confusion. *Vers. 122.* Hereditary, which the Latins call *petitio*. *Vers. 129.* And the *condictio*, the *in rem* or general. *Vers. 132.* Or promises.
1007 Vers. 136. Besides these, and two more. Vers. 138. Whether manifest or hidden. Vers. 141. The specific, or clearly; A *incertoi*, hidden. 146. Schol.: I say again, along with these: There is also an action called *praetoria*, which reasonably and properly questions one intending to enter upon an inheritance, how much of the inheritance he demands; and *praetoria* is called in Greek "cleansing," for it cleanses and sheds light on the arguments of the plaintiff. 153. He has. 163. Which about. 163. Otherwise. Not knowing. 168. It seems to be a contract. But the *legat(um)*. 185. And some other actions and some of the *emphyt(eutic)*. Does not intend. 204. Having stumbled. Justice is the division of the just, as has been said. Someone is not able. To him. 225. Nor is he able to sell without guardians. 228. And a son, they do not have a complete legal succession. *Extasis* having proceeded to a will. Nor is there any *mancip(ation)*. Schol.: He had previously stated that anyone wishing might appoint his own slave as heir, but now he says that the slave found to be heir possesses the full authority to seek that which is suitable for the inheritance, such as the testator himself possesses. Of his own. Someone having adopted well from his own. Of puberty alone. 279, to another, 282, no one substitutes. Demanding legacies. They say the codicils. To the child's property. In the absence of *diacatochis* (prescription). 322, of one doing wrong. 323, of an unreasonable opponent. 327, if he is a pauper. 328, all are murderers. 332, the specific of the generic, 339, a youth is restored unharmed according to the laws. Between a mother and children. Interest, of those being kept. 397, of one having committed adultery. 403, but the children the two-thirds. 415, in courts. 417, let the ruler betray. 420, let him take twenty. 426. Of the flow; 427. He will demand. 430, but if also a pauper, if he dies. 431, of his possessions. 445, concerning remission. 446, things concerning ecclesiastical matters in Sicily. 450, useful. 464, Italic [law] to the illegitimacy. 468, kinsmen to this. 469, you would say. 487, disgraced. The proposed. 504, another. He collects only the simple, nor does he seek more. He asks. Seventh.
BY THE SAME TO THE DISCIPLES CONCERNING THE NAMES OF LEGAL ACTIONS
A α'. Observing that some of you are very anxious to know the names of legal actions among the Greeks and Romans, which stand as it were as canons for specific political cases, I thought it necessary to speak of them in moderation. And while I oblige you in this, neither wishing to conflate them nor to present them indiscriminately, but rather to proceed in order from the first to the second, I have therefore set forth the Attic legal terms first, after which I shall arrange those of the Romans; not choosing to speak at length about their breadth, but rather about the underlying names, since they are not clear to the majority. For even if Greek [actions] are spoken of with Greek terms, yet unless someone through etymology—where it is possible—unfolds the meaning and explains the reason for their designation, they would never become clearly understood by those who read them. For political reasoning mimics in a certain way the principles of the sciences. B Just as among them there are "summits" and "ultimate chords," and cubes and steps, twelve-sided and twenty-sided figures, spheres and diameters, which no one would know easily unless he had used the language of a master, so also in political [matters]...
ejectio from B questions, epobelia, and other names are very well known to those accustomed to individual political affairs.
2. For we have B aspired now not only to demonstrate court reporting, but also whatever other names were customary among the Attics, such as the *Apaturia*, the *Amphidromia*, the *Tetradistae*, the *Epiteleioma*, the *Apepsephismenos*, the *Hypophonia*, and the *Androlepsia*, as well as the Areopagus, who the Eleven were, who the Eponyms were, and whatever else is in the nature of such a system. But first, I shall discourse on lawsuits.
3. The name of a "lawsuit" (*dike*) is, as it were, a generic term applied equally to all legal actions, but it is also a specific name for a subject. For since each of the offenses is either public or private, the accusation concerning private matters is called a *dike* among the Attics, and the judges determine the penalty for this; for the measure of the penalty is not fixed by law, but the arbitrators either diminish or augment the assessments according to their own will. The *graphe* (public indictment) is somewhat distinguished from the *dike*, and it takes place on the occasion of public offenses, such as malfeasance in an embassy, temple robbery, and whatever else has been referred to the people. But also, the legal action introduced against laws and decrees is likewise called a *graphe*, not simply so, but a "graphe of illegalities."
4. Since at that time the law had not been fully spread out, but there were some scopes for these offenses, while others had not been written down, the introduction of an accusation for some new offense, whether public or private, was called an *eisangelia* (impeachment). No one except the prytanes would report the lawsuit to the Council.
5. An *euthyne* (scrutiny), besides these, is the accusation against those who do not govern the city correctly. The *logistae* choose by lot the courts for these cases; anyone who wishes may act as prosecutor, and the authority to assess the penalty for those convicted is granted to the judges.
6. If anyone brought into court an individual who was undermining a public mine or claim to a public building as his own, or who had managed it poorly, such a person was said to "manifest" the one convicted; and the lawsuit was thenceforth called a *phasis* (denunciation).
7. But if anyone had been disenfranchised according to the laws for having committed malfeasance in an embassy, or for having committed prostitution, or for not having paid to the public treasury the debt owed, or for having unjustly defamed the deceased, and was brought to court, he was subject to an *endeixis* (information); and the name for this accusation was *endeixis*.
8. The *ephēgēsis* (arrest) was given against those who had received a person exiled from the city or those who had secretly stolen public property.
9. Concerning the *diapsēphisis* (review of voters), the *apopsēphisis* (rejection), and the *ephesis* (appeal), it must be divided and interpreted as follows: There were anciently among the Attics tribes, and phratries, and demes, and *trittyes*, from which the one who first ruled in Rome established the city founded by him [in their likeness].
A One was called an Acharnean, another an Eleusinian, whence the demesmen were also called Acharneans or Eleusinians; and the names of those enrolled as citizens were inscribed on revolving columns. And if any one who was inscribed was accused of being a foreigner, those who suspected him would accuse him; and this accusation was called a *recensio* (review). And if a majority of votes expelled the one reviewed, this expulsion was called rejection. But if the one rejected by the demes was transferred to the common tribunal, he was said to "provoke," and that transfer was called an appeal.
10. If those who were ordered to perform a public service, such as commanding a trireme or engaging in construction, put off the time for their service, their opponents were believed to be commencing a judicial contest against them.
B 11. There is this difference between an objection (*probolē*) and a condemnation (*katacheirotonia*). An objection concerns realized injuries of the accused, whereas a condemnation is the joint decision of the people against him.
12. There is a great difference between a direct suit (*euthudikia*) and an exception (*paragraphe*). For the former, which is a common deliberation of the arbitrators concerning a matter not yet brought into tribunal, is a *euthudikia*; but the latter, which is a second investigation and dispute concerning matters already judged and decided according to the laws, is called a *paragraphe*. It is permitted for those accused of something for which there is no law to move for such an exception.
13. The suit for "non-inscription" (*agraphe*) was of this nature. A tablet was fastened to a certain wall of each tribunal, and the name of the man who, by court order, was liable to the public treasury was inscribed there, along with the amount of the debt. If anyone who was a debtor and thus inscribed secretly erased the inscription, he was accused of "non-inscription."
14. Those who had been deprived of their land or house by a court order used to register an action of ejectment (*exoulē*) against those who had driven them out. *Arcere* is an ancient Attic term, which later writers exchanged for a more common Greek term, namely *exelein*, that is, to expel based on legal processes.
15. If any slave happened to be accused by his supposed legitimate masters, the matter was called an action for desertion (*apostasiou dikē*).
16. *Diagraphe* was the term for the dismissing of a case; just as *lēxis dikēs* meant the filing of a complaint in private matters.
17. To "draw a case" (*lachein dikēn*) meant to be the first to prefer charges; to "draw in return" (*antilachein*) meant to be countersued; but *dialachein* is not used for lawsuits, but for the distribution of things.
18. Since in ancient times it was the custom among the Attics for accusers to confirm by oath that their accusation was true, and for the accused to swear that they would oppose no false word against them, the accuser’s oath in the tribunals was called *diōmosia*, and that of the one defending himself, *antōmosia*. But if the judge himself also swore an oath after them, the whole process was termed *amphioskia.*
19. Informing against someone for indecency was called a *renuntiatio probationis* A (prosecution for a trial).
20. The Attic law did not take the term "declaration of assets" in the sense we do; but since the office of trierarch was considered a dangerous one, and forced the trierarch to measure his own means against that danger, the registration of these, and the oath taken regarding them, was "declaration of assets."
21. The *epōbelia* (sixth-part fine) received its name from the condition that followed. For since many who did not place a bridle on their tongues attached themselves to the gentle and those free from business, as if they had gained interest on nautical coin—and some indeed proved their cases, while the majority had clamored in vain against them—the magistrates left the one who proved his case unpunished, but punished the one who had falsely accused him with the payment of an obol, and the name for this penalty was *epōbelia*.
22. Such, then, are the names of the lawsuits; but it is time to speak of the rest, beginning with the Prytaneum.
23. The Prytaneum was a public building, defined by receipts C and expenditures. The "receipt" in this case came from those who had been defeated in actions that had been wrongly brought; the "expenditure" was toward those who had benefited the city in a public capacity. For from this source, statues were cast for those who had distinguished themselves, if they so wished, and a fixed measure of food was given to those who had excelled, and for those who had spent time in the army, when their age had passed for old military service or command, they received a stipend from the Prytaneum.
24. Those called "the Eleven" were a judicial group that determined the punishments D for those convicted of crimes. And so that they might not act too boldly against those handed over to them, they were of an advanced age. This age also remitted some of the debt of punishment for those being punished. Plato also mentions this name. For the keeper of the prison in which Socrates was confined speaks thus to those around Simmias and Cebes: "The eleven," he says, "are releasing Socrates."
25. The arbitrators (and each man is fifty years old, has lived excellently, is exempt from every [bad] reputation, is skilled in the laws, sets lawsuits toward a reasonable outcome, and is altogether a justice of the peace) arbitrate the lawsuits of these people against one another. To one who was not a native, it was not permitted to approach the arbitrator, either as plaintiff or defendant.
26. The *epōnymoi* (eponymous heroes) is, as I think, a certain inversion of the name. For they set aside ten men, from among those who had successfully administered the republic, as examples to the citizens, naming them as chance had it, and they assigned some to this hero and others to that one, and named them after those men, whether they were living or dead and had stood in bronze effigies; whence others
A called the chosen ones heroes, and called those named after them "eponymous." And those who introduced laws did so with these eponymous figures in mind, and they managed the affairs of the state as if these were looking on.
27. The clerk or assistant-clerk is a name given to a minor function. For he used to run after the judges and note down the voices of justice. Whence Demosthenes in their exchanges jeered at Aeschines using this name.
28. The counter-scribe (ἀντιγραφεύς) performed the same tasks as the assistant-clerk, except that he was a magistrate chosen by lot. And whatever the senate administered, he noted down with his reed-pen—which is why he was called "counter-scribe."
29. Magistrates chosen by lot are the tax-collectors, the selectors, and the counter-scribes.
29. I have already explained the role of the counter-scribes. As for the selectors, B they were chosen by lot from the council when, having been established in a state of war, the richer of the citizens had to contribute a common fund; and those chosen for this purpose were called selectors.
30. The tax-collectors were "annual-bearers," bringing in the annual payment of the taxpayers to the public treasury.
31. "Trittys" (third-part) is a name of more recent use among the Athenians. For a certain Cleisthenes, having divided the whole of Attica into thirty parts—and since part of it lies by the sea, part lies in the middle of the land, and part extends around the city—assigned ten parts to the maritime region, set ten over the inland [region], and made ten urban; and C each third-part was called a "trittys."
32. Since in the Attic records this phrase also occurs very frequently, "to place a *loutrophoros* on the tomb," this name must not be passed over in silence. The *loutrophoros* is a vessel prepared for the bath of those who have not yet been united in marriage, and it is broken when they have been united. Therefore, for one who had died unmarried and childless, this vessel was placed on the tomb as a symbol of both his age and his childlessness.
33. To "carry a spear at the funeral" was said of those who had killed, or were thought to have killed. For, as they proceeded to the funeral, the relatives of the dead men would shake a spear adorned with a point D over the bier, as a sign of the murder. Then they would bring an action of homicide against those whom they believed to be guilty; for otherwise it was not permitted to accuse them.
34. The name of the *kolakretai* (public treasurers) is etymologically obscure. These are the keepers of the treasury, who distribute the judicial three-obols to those who wish to act as judges.
35. "Hellenotamias" (treasurer of the Greeks) is a general name, but it refers to a specific task. For the Athenians, when they first stepped upon the islands and seized the mastery of the sea, imposed annual taxes on the islanders, and they named the one who collected the money the *Hellenotamias*.
A 36. The Attics count the days of the month as follows. They consider each of the months to consist of thirty days. Dividing this into three decades, they call the first day of the first decade the *noumenia* (new moon), and they call the succeeding days up to the end of the decade the second, third, and ninth. After the first decade, they invert the numbers, saying "first upon ten," and "second" and "third" likewise up to the twentieth. Calling the last decade the *eikada* (twentieth), they assume the month to grow old from this point, and they say "first of the waning," and "second of the waning," and ninth likewise. And they name the thirtieth day the "old and new."
37. Since the name *dokimasia* (probation) frequently occurs among the Greek writers, it is applied first to boys under guardianship. For there was a determined time for them at which it was the law for orphans, upon reaching that age, to receive their paternal property from their guardians, and this accurate examination during that time was called *dokimasia*. Afterward, the word *dokimasia* was more properly applied to those being inducted into a magistracy or a civic office. For the general B, and the ambassador, and the *dadouchos* (torch-bearer), and the *hierophant* were examined—that is, it was inquired whether they were suitable for the position.
38. The name "Cynosarges" is local, but it is derived from a certain history. For of old, the illegitimate (*nothoi*) had no share in any offices or civic duties in Athens. But when an oracle was issued from Delphi that they should appease those born of Zeus and Alcmene, they erected an altar to Heracles and decreed an annual payment for sacrifices to him. The place where the shrine was founded was named Cynosarges. In this place, it is believed, Heracles is not an indigenous god, nor yet unbegotten, but simple on the father's side, and on the mother's side composite, illegitimate in rank, and added to the list. For this reason, the Attics say the illegitimate contribute to the Cynosarges.
39. Whenever you hear in the writings that the Athenians swore by the other gods simply, but preferred Apollo because he is the ancestral god of the city, believe this to be the cause. They believe the first human was born from Attica, as if the sun had joined with the earth, or, to speak more physically, that it warmed it with its rays and brought forth this animal. But since the name of Apollo is added to the name of the sun, they believe Apollo is for that reason the ancestral/paternal god.
40. The name of the feast *Apatouria* is made from the word *apate* (deceit); it has its origin from the following history. Sometimes the Athenians and the Thebans were waging war against each other; and, as often happens in battles, it seemed proper to the kings that the leaders themselves should settle the matter for the armies in single combat. Hyperthymetus was leading the Athenians, and Xanthus the Thebans. And when the field of battle was designated, Xanthus came forward immediately, but Hyperthymetus, despairing through cowardice, [called for] Melanthius, one of his companions
to yield the kingship and the single combat. And Melanthius, having entered the contest, immediately appeared to be pained by Xanthus, because, while Xanthus was expected to fight alone according to the agreement, he had brought an ally with him. Whereupon the Theban, quite stunned, turned his head to see if anyone was following him; and thus Melanthius, having thrust his spear into his vital parts, slew him and seized the victory of the battle; and having initiated an annual festival because of what had happened, he gave the name Apaturia to the festival.
41. The Athenians call those who have been allotted a life full of labor and misery A *Tetradistae*, a name taken from Hercules, as they say, because they have a harsher life. For it is reported that he was born on the fourth day of the month.
42. *Tethe*, *Titthis*, and *Epitethe*: these three names are used for the same number of persons; however, *Tethe* differs from the other two in that it signifies both a mother and a maternal grandmother; *Titthis* is a sister of the father or the mother; and *Epitethe* is the mother of the *Tethe*.
43. Rhetoricians do not think that *Patria* and *Patroia* are the same. But they call customs, laws, mysteries, and festivals *patria*, while *patroia* signifies house, lands, and money. B
44. *Epiteleioma* is that which is performed at the end of the mysteries, especially those of Persephone and Demeter. But this is completely profane, and I have no desire to speak of it.
45. *Hypophonia*, if I may so call them, are the price of blood. For it was permitted to the heirs of the slain man either to kill the murderer or to receive a price for the murder. Therefore, what was given by the murderer on account of the killing is called *hypophonia*.
46. *Androlepsion* is the seizure of men, as the name itself makes clear; it was a decree of the legislator regarding Athenians killed in some place in Attica. C For when the suspected murderer fled the indictment, the judges to whom the matter belonged would seize three of his relatives, and this was termed *androlepsion*.
47. The Areopagus is the most noble tribunal among the Attics. The name stands midway between myth and truth. Since the place is a snowy mountain, it was called *pagos* (crag); but because Poseidon first joined battle there with Ares over Alirrothius, it was named *Areios pagos*. And those who were judged there could not appeal to another tribunal. D
48. The *tritagonist* is not what the name implies, nor is the thing itself. For the name seems to be composed for a sense of honor, but those who use it appear to do so out of blame. Immediately, Demosthenes, mocking Aeschines, calls him a *tritagonist*, asserting that he has never once excelled in fighting for the Athenians; for he chose not to perform the role of a general, but to act as an orator. The name is used for those actors in tragedies who play the parts of Creons and Agamemnons; and if
they represent the character best, they are called protagonists, but if less well, deuteragonists; and if they act altogether ineptly, they are numbered in the third rank.
B 49. Concerning the fifth part, which is often mentioned by orators, it is necessary to say that since there were five hundred and thirty judges among the Athenians, the votes on controversial matters were sometimes equal, and sometimes unequal, and the law decreed that the majority should prevail. If, however, the accuser did not obtain a fifth part of the votes, he was punished and condemned outright, and it was not permitted for him to accuse again.
50. The Amphidromia is a festival of birth, during which the relatives of the woman who has given birth perform choral dances, jumping and running around the infant. This act is called the Amphidromia.
51. The expressions *Eu oi, uis, atis, uis* are barbarian passwords given at initiatory rites. For *atis* in the Phrygian language is Jupiter, *uis* is an optative, and *saba* is a gentile term; so that the whole prayer is as follows: "Uis, O Zeus Sabazie, uis." Some contend that it is said as *eu oi*, others as *eu boi*. *Eu oi* is more Greek, while *eu boi* is more barbarian; it is said as *eu uis* among the Boeotians by ellipsis. C But as for those things which were spoken or written in the Greek mysteries, one ought not to explain either the names or the letters. For those who once discovered these combinations left them unexplained by divine counsel, perhaps even ignorant themselves of their power. There have come down to us certain voices and certain letters, some similar to signs of accentuation, others set forth in an unordered fashion. And if anyone should set out to explain or amend these voices and letters after the manner of the Greeks—as is written in the *Philocalia* of Origen—he would say or write nothing regarding the proposed words, nor would he even pronounce them as they are, throttled as they are, or write them as they naturally appear, whether he wishes to invoke a material spirit or to enchant the ardor of the soul or body. For material spirits have names, as some philosophers affirm, and the elements of these names have been written down, to which, when naturally pronounced, they are said to be attracted.
52. But let us say no more about these things. There is also among the Athenians a certain register called the *Symmachikon* (social). D This was a register in which the prytanes inscribed those citizens whose age was suitable for embassies or commands, for navarchy and trierarchy, writing down each one by his father's name from his lineage. And when it was necessary to appoint generals or treasurers, they would appoint to these duties from those inscribed whomsoever they wished. Another register was called the *Lexiarchikon*: a register indeed, because it was a public record of the city; but *lexiarchikon*, because all the magistrates, both those chosen by vote and those by lot, were enrolled there.
h BY THE SAME: ON NOVEL DOGMAS AND LEGAL DEFINITIONS OF TERMS CALLED BY ROMAN NAMES h
A Hadrian’s decree, which wills that one dealing in good faith should neither profit nor be fined. The Aquilian law concerning fines, from Aquilius the tribune of the people. The Aphnian decree and the Hadrianic are both abrogated. The Atilian law forbids that stolen items be acquired by prescription. The Agrarian law against those who move boundary stones, punishing slaves with death, and imposing upon freemen a penalty of fifty nummi for each stone. The Visellian law: this punished freedmen who acted the same as nobles without having sought the golden rings; it was abrogated by a more recent one in the seventy-eighth year. The Voconian law: this wished the legatee to receive more than the heir. The Dasumnian decree, ordering that if any debtor establishes a freeborn person as a fideicommissary, either through a pledge or by an action of seizure, he possesses the freeborn person, yet B he himself does not lose the right of patronage. The Julian law, concerning adultery and debauchery and expiation, and concerning armed force and force without arms, and concerning temple-robbers and those who are corrupted by bribes, and others. The Junian decree concerning the freeborn fideicommissary, whether under a condition or a term. The Junian law, forbidding that things possessed twice be acquired by use. The Claudian decree, granting possession to a minor until puberty. C The Cornelian law, concerning forgery, concerning murderers, concerning poisons and sorcery. There is also the Caninian law and the Calvisian law. The Largitionalian decree concerning the manumission of Latins. The Libanian decree, ordering that forgers be declared infamous. The Licinian law, forbidding a partner to sell his own share to some powerful person. The Modestian decree, ordaining that assistance be given by the praetors to those searching for a fugitive slave, for his recovery.
ON THE NAMES OF LAWS
A The Macedonian decree, against those who give money to subjects at interest. The Ninian decree, which ordered that freedmen should never be transferred to the status of free-born. The Orphitian decree, granting children legal rights to their mothers' possessions. The Lex Pappia, prohibiting anyone from possessing property taken by usucapion. The Lex Pompeia, concerning parricides. The Pegasian decree, by which anyone ordered to restore an inheritance may retain a fourth part, and by paying nine ounces, possesses the right to the whole inheritance; which right the Trebellian decree established. The Privilian and Turpilian decrees. Subject to this is he who has provided sureties in writing, for someone to possess without abolition. The Rubrian decree, concerning free fideicommissary property. The Royal Law, which prohibits a woman who has died in labor from being buried before the infant has been extracted. The Silian decree, decreeing that he who has been violently killed should be judged by his own heirs. The Lex Sentia, defending those who were in damage against the freedom of money-lenders. The Tertullian decree, providing mothers with legal rights to the succession of their children. The Trebellian decree, concerning the distinctions of fideicommissaries. The Lex Fabia, concerning those who reduce free persons into slavery. The Lex Falcidia, noted above; it was proposed by Publius Falcidius, tribune of the plebs. It requires that the heir take four ounces of the substance of the estate. (The ounce, furthermore, designated the twelfth part of an inheritance).
And these, then, are the matters regarding the decrees, set forth according to alphabetical order. Regarding the names, the more necessary ones will be explained hereafter.
Agnatus, he who is connected to us by descent through the male line. Actus, a road through which it is permitted to pass with a beast of burden or a carriage. Vitium, blame, diminution, fault. Brumaleum, winter festivals. Velleian decree, assisting women who became liable on behalf of others. Graecus (Greek), Chaldaean, Hellene. Datta, a domestic cat. Genæ, the cheeks. D Decretum (Decree), a declaration of the emperor between two parties judged by him. De inofficioso, a reproach of a testament which indeed holds valid by strict observance of the laws, but is improper by reason of fear. Denarium, a pound of money. Digestum (Digest), that which has been corrected and written in order. Deportatio (Deportation), removal and abduction.
A Detentio (Detention): the right of seeking, demanding, and retaining whatever a dying person has left behind. Even if nothing physical is received in an inheritance, we nevertheless properly accept the detention of the inheritance; for the acquisition of incorporeal things is better than that of corporeal ones. Epistola (Epistle): the Emperor’s response to the report of a magistrate. The term *Ex continente* signifies three days. Extraordinarii (Extraordinary): those who do not proceed according to order, but according to the circumstances of the matter. Eunuchus (Eunuch): one who, by his mother or nurse, has undergone the crushing of the testicles. In potestate (In power): the supreme authority which we have according to political law over our children, but according to the law of nations (gentile) over slaves. Edictum (Edict): a proclamation. Imbeta: things carried. Illata: living things. Judex: an interpretation. Justus: equitable. Intentio: the will or attempt. Jus: that which is just. In capita: by the head. Capitis diminutio (Loss of status): a penalty arising from the circumstances of the law which changes or diminishes the status of the person suffering it. Legio (Legion): a phalanx of soldiers. Legis actio (Legal action): the permission of servitude. B Legatum: a delegated office. Urbanus: a guardian of the city. Plebiscitum: the votes of the people. Postliminium: the right of return. Præjudicium: an action consisting solely of the intention. Prohærede: one who believes himself to be the heir. Propossessore: one who seizes by force. Peculium: property naturally adjudged to those under one's authority. Pactum: an agreed-upon amount. Relegatio: exile. Senatus: the council (gerousia), an embassy. Sactum: a liberation from injury. Otiosa distributio: a distribution free from sedition. Separatio (Separation): the custody of hereditary goods by an hereditary creditor. C Superstes (Survivor): a successor. Satisfactio: the giving of security. Tacitum (Tacit): that which is not known from the reading of the testament. Titulus: an inscription of rank. Tractatum: an explanation, a compendium, an epitome. Tribunal: a judgment seat. Factum: a work or action. Flagellum: a lash made of intertwined thongs. D Such is the explanation of the names in alphabetical order! You must also have these terms explained: Jus civile Romanorum (The Civil Law of the Romans): that is, the political laws of the Roman legislation.
Legis actio, legal abductio. Plebes, the common people. Constitutae, the constitutions of the emperors, distributed into decree, edict, and epistle. Responsum, the answer of the wise.
These are, indeed, the things that we bring to memory. For you know that there is nothing in our writings or histories which was not written at that time. Hence, those who have received our works, thus written impromptu, by making them into parchment books, immediately have books from our writings. And many of our writings may come to your hands, of which I think this is about the eightieth. Most of those which we have interpreted or narrated historically, many still have in their possession in volumes; but many have been corrupted, such as the translation of the whole of philosophy into clarity, and those things which we have treated concerning the rulers of our time. As for the rest, read them yourself in the books. B
MICHAEL PSULLUS, THIRD PART OF THE WORKS, COMPRISING PHILOSOPHICAL TREATISES. FAMOUS OPINIONS ON THE SOUL.
C Some of the faculties of the soul are without reason, others are with reason. Of the rational ones, some are vital and appetitive, others are cognitive. D Similarly, those that are without reason are also divided. Again, those that are with reason and cognitive are divided into three parts: into opinion, understanding, and mind. Opinion, therefore, generally deals with those things which are perceived by the senses: for it knows that everything white can be discerned by sight, and that every man is a biped; furthermore, it knows the conclusions of those things which fall under understanding, but without reason; for instance, it knows that the soul is immortal,