"The Gestation of the Codex" or, "From Scroll and Tablets to Codex and Beyond"

   As we have seen, for a century and more after the situation [R&S "experiment"!] described by Martial our literary sources are silent regarding  the development of the codex. The evidence of the classical jurists is thus especially welcome, the more so since they would be expected to take account of general social attitudes rather than reflect the idiosyncracies of individual authors.\88/

\88/ This point is well made by E. Schönbauer, IVRA 12 (1961) 137. [[On the Justinian Code in general, and English translations of many of its provisions, see http://uwacadweb.uwyo.edu/blume&justinian/default.asp ]]

   Roman lawyers had to decide what the terms 'books' and 'libraries' denoted, particularly when they occurred in wills or bequests. One of the problems they had to face, namely how to distinguish between books and an author's manuscript or notes, does not concern us except insofar as the very existence of the question illustrates how easy it was for a parchment notebook to acquire, almost imperceptibly, the [[legal]] status of a book.  But the only question which is relevant to our present enquiry is the following: is the codex a book? Ulpian, writing between C.E. 211 and 217 in connection with bequests, says:  Under the heading "books" (librorum) all volumes (volumina) are included, whether they are made of papyrus (in charta), of parchment (in membrana), or of any other material whatsoever; but even if they are written on wood-slabs (in philyra) [Parsons review "bark" = Scott ET]  (as is sometimes done), or upon any kind of prepared skins (in alio corio), they come under the same appellation. If, however, they are codices of parchment (in codicibus sint membraneis), or papyrus (vel chartaceis), or even ivory (vel etiam eboreis), or any other material, or are composed of wax tablets (in ceratis codicillis), let us determine whether they ought to be included? Gaius Cassius writes that where books (libris) are bequeathed, the parchments (membranas) are also included. Hence, it follows that everything relating to them will be included if the intention of the testator was not otherwise. \89/  Then, after discussing the question whether a bequest of libri [books] covers unwritten papyrus rolls (chartae) and unwritten parchments (membranae), he adds: Wherefore, when books (libri) are bequeathed, the question is not inappropriately asked whether those are included which are not yet written upon (nondum perscripti). I do not think they are included, any more than cloth which is not yet entirely woven is included under the heading "clothing." But books which have been written (perscripti libri), but have not yet been beaten or ornamented [??], are included in such a legacy, as well as such as are not glued together,\90/ or corrected [repaired?],\91/ and also parchments (membranae) which are not sewed, are also included.\92/

\90/ On the meaning of these terms cf. Lewis, Papyrus in Classical Antiquity, pp. 51-52, 63, 68-69, especially p.68:  ‘It is clear that gluing and malleting were normally thought of not as processes in the manufacture of papyrus sheets but as finishing processes applied to already constructed and even already written rolls.’

\91/ Emendati perhaps refers to the repair of minor blemishes in the material, cf. Lewis, op. cit., pp. 63-64.

\92/  Digest 32.5 -- 'Unde non male quaeritur, si libri legati sint, an contineantur nondum perscripti. et nonputo contineri, non magis quam vestis appellatione nondum detexta continetur. sed perscripti libri nondum malleati vel ornati continebuntur: proinde et nondum conglutinati\90/ vel emendati\91/ continebuntur: sed et membranae nondum consutae continebuntur.’ [[The ET is adapted from Scott]]

   [[31]] These passages, especially the former, deserve more detailed analysis than they have hitherto received. In the clause quod si in codicibus sint [if they are in codices] etc., the subject of sint [they are] cannot be, as one might expect, volumina [scrolls], since Ulpian is clearly at pains to draw a distinction between volumina [scrolls? or perhaps written entities] and codices [codices], and an expression volumina in codicibus [scrolls/entities in codex format] would thus be a contradiction in terms; it thus seems much more likely that the subject of sint is libri [books], understood from the opening words of the passage (librorum appellatione [The designation "books"]). In listing the various forms of writings of which the inclusion in the term libri is, for Ulpian, in doubt, he appears to divide them into two classes, the second introduced by the words vel etiam [or even], suggesting an even greater degree of dubiety than in the case of those previously mentioned. On this basis the two classes of disputed materials are as follows:

 (1)                                                              (2)

       It will be seen that in order to decide whether materials in both these classes are to be accepted as libri, Ulpian quotes an opinion of the first century jurisconsult Gaius Cassius which has already been discussed on p. 21 above [[Gaius Cassius writes that where books (libris) are bequeathed, even parchments (membranas) are included.]].  It has been objected,\93/ that the quotation from Cassius does not answer the question posed by Ulpian, but this is to misunderstand Ulpian's reasoning. It is true [[32]] that Cassius only specifically mentions membranae. Given the date at which Cassius was writing this must [[!! unless perhaps it included Martial's parchment codices!]] mean parchment note-­books.  Ulpian would have argued that since Cassius says et membranae, 'even membranae' the same must apply (consequenter) to all the analogous forms (cetera) in his Group 2, and, a fortiori, to his Group 1.

\93/  E.g. by Wieacker, op. cit., pp. 105-106.  G. G. Archi, IVRA 12 (1961) 453 has suggested that the Cassius quotation may be incomplete owing to some words having dropped out in the process of copy, but as shown here this hypothesis is unnecessary.

 It is clear that for Ulpian only the roll was fully and unquestion­ably a 'book'; but it is equally clear that the codex will not long be denied its place. Indeed his contemporary and rival in the law, Paulus, who succeeded him as Praetorian Prefect after his murder in 223, goes further and defines the book in such a way that the codex is at last admitted on terms of equality with the roll (if we may accept the attribution of the Sententiae, or at any rate of this quotation, to him): When books (libris) are bequeathed, volumes of papyrus (chartae volumina) , or of parchment (vel membranae) and wood-slabs (et philyrae) are included, and codices, as well (codices quoque). By the designagtion "books" (librorum) not merely volumes of papyrus (volumina chartarum), but also any kind of writing which is contained in anything is understood.\++/. The book is now defined, and well defined, as a self-contained unit, independent of material or format.  With this judgment the codex has arrived; but it has still to become fashionable. This confirms the verdict of the preceding section, namely that the development attested by Martial was not an immediate success, and that the codex emerged as an acceptable form only after a long period of gestation.

\++/ Sententiae 3.6.87: Libris legatis tam chartae volumina vel membranae et philyrae continentur: codices quoque debentur: librorum enim appellatione non volumina chartarum, sed scripturae modus qui certo fine concluditur aestimatur' [[ET adapted from Scott) -- get info on Sententiae]]

        The passages from Ulpian and Paulus are both discussed in detail by Wieacker,\94/ whose principal hypothesis is that the works of the classical jurists were originally published in roll form; that they were re-copied into codices about C.E. 300; and that hand in hand with this re-copying went an extensive re-editing and alteration of the texts. Wieacker's views, which in any case have been strongly challenged,\95/ do not directly concern us except insofar as they involve his contention that the Ulpian and Paulus quotations are not in their original form, but have been largely altered and re-edited. His precise motives in wishing to discredit the evidence of these passages are obscure, but apparently he is concerned that any mention of the codex as a possible literary form at this period\96/ might imperil his contention that the works of the [[33]] classical jurists were first issued in roll form, and were not transferred to codices until about C.E.300.

\94/ Op. cit., pp. 105-106.

\95/ E.g. by E. Schönbauer, IVRA 12 (1961) 117-161, and by G. G. Archi, IVRA 12 (1961) 428-450.

\96/ It is presumably for this reason that Wieacker makes the fantastic suggestion that it is doubtful whether the well-known fragments of parchment codices with works of Demosthenes and Euripides (below,  p. 71) which have been dated to the second century really come from  codices ('doch ist nicht erkennbar, ob se schon Codices sint,' [[but it is not clear whether they actually are codices]] op. cit., p. 104, n. 73).

Wieacker's objections to the text of the Ulpian quotation appear to be two: (1) some of the expressions used, such as 'in quavis alia materia' [in whatever other material], `ut nonnulli conficiunt' [as is sometimes done], 'aut in quo alio corio' [or upon any kind of prepared skins], ‘vel allerius materiae' [or other materials], are elaborations which have the odor of the classroom (‘Schulstubengeruch'), and (2) as already mentioned, the quotation from Cassius does not really answer the question posed by Ulpian; it is thus presumably, in Wieacker's view, an interpolation, and the consequences drawn from it (consequenter igitur cetera quoque debebuntur [it follows that everything relating to them will be included]) must likewise be rejected ('sicher unecht' [[surely inauthentic]]).

       There is, of course, no doubt that the final clause of the Ulpian quotation (si non adversetur voluntas testatoris [if the intention of the testator was not otherwise] is a later addition, since it runs counter to Ulpian's own line of reasoning, which is a typical interpretation of terms without regard to the probable wishes of the testator [[but see elsewhere in this same section, regarding "libraries" and intentions]]. This clause apart, however, Wieacker's arguments are highly subjective, and indeed the only conclusion that even he can draw is that there may have been some tampering with the text (`Wir halten eine (vermutlich vorjustinianische) 'Textveränderung für möglich' -- [[we consider a (probably pre-Justinian) textual modification to be possible]]).

        In the case of the Paulus quotation, there is general agreement that  the Sententiae as they have come down to us were put together about C.E. 300, but this does not imply that the individual opinions attributed to Paulus [[who flourished two generations earlier]] are necessarily unauthentic. Wieacker's sole argument in this instance is that in accepting codices as libri the quotation accurately reflects conditions obtain­ing about C.E. 300, and cannot therefore go back to Paulus himself. It would seem, therefore, that Wieacker rejects the entire passage as unauthentic.

   This is, of course something of a petitio principii [minor point], since Wieacker has to prove not merely that the quotation suits conditions about C.E. 300, but that it does not suit conditions in the time of Paulus; and this he has failed to do.  

       Both Schönbauer\97/ and Archi,\98/ in addition to their general criticisms of Wieacker's work, have specifically rejected his attacks [[34]] on the authenticity of the Ulpian and Paulus quotations and it therefore seems justifiable to continue to use them here as evidence of the increasing prominence of the codex in the Roman world of the early third century.

\98/ Ibid., pp. 434-5.

   Before we leave the jurists, there is one more passage from Ulpian which must be briefly mentioned.  The text runs:  If a hundred books (libri) are bequeathed, we must deliver to the legatee a hundred volumes (volumina), and not a hundred parts which anyone may select as he wishes, each of which constitutes a written book (ad libri scripturam); hence, when the works of Homer are all contained in a single volume (in uno volumine), we do not count them as forty-eight books (libros), but the entire volume of Homer (unum Homeri volumen) should be understood to constitute a "book" (pro libro).\99/  The meaning is perfectly clear [[??]], but what is remarkable, and puzzling, is Ulpian's choice of an actual example, namely a complete Homer in one volumen.  In view of the clear distinction which Ulpian makes between volumen and codex, volumen here can only mean a (papyrus) roll. [[alternatively, it means a written entity, here defined by author! see above on the possible ambiguity of volumen]] But it is unnecessary to demonstrate that a complete Homer in a single roll is a physical impossibility; and since tens of thousands of Homeric manuscripts must have been in existence at the time, this impossibility would have been immediately obvious to Ulpian's readers. We must therefore conclude that the example was a purely hypothetical or imaginary one.  [[or  that the meaning of volumen is already in flux and here it means codex-collection!]]

\99/ Digest 32.52 § I -- Si cui centum libri sint legati, centum volumina ei dabimus, non centum, quae quis ingenio suo metitus est, qui ad libri scripturam sufficerent: ut puta cum haberet Homerum totum in uno volumine, non quadraginta octo libros compulamus, sed unum Homeri volumen pro libro accipiendum est.

 To the papyrologist of today, of course, the impossibility of the example is equally obvious. But it might not have been so had we no Homeric fragments from Egypt to help us. If nothing else, this passage shows how careful we must be in taking what appears to be factual evidence at its face value.

[[+ details and other references to books in the Digests and Justinian Code -- 
52. Ulpianus, On Sabinus, Book XXIV.

Under the designation of "books" all volumes are included, whether they are made of papyrus, parchment, or any other material whatsoever; even if they are written on bark (as is sometimes done), or upon any kind of prepared skins, they come under the same appellation.

If, however, the books are bound in leather, or papyrus, or ivory, or any other substance, or are composed of wax tablets, will they be considered to be due? Gaius Cassius says that where books are bequeathed, the bindings are also included. Hence, it follows that everything relating to them will be due if the intention of the testator was not otherwise.

(1) Where a hundred books are bequeathed, we must deliver to the legatee a hundred volumes, and not the hundred parts of volumes which anyone may select as he wishes, and each of which will be sufficient to include the contents of a book; hence, when the works of Homer are all contained in one volume, we do not count them as forty-eight books, but the entire volume of Homer should be understood to mean one book.

(2) Where the works of Homer (Homeri corpus) are left, and they are not complete (non sit plenum), as many parts of the same as can be obtained at present will be due.

(3) Sabinus says that libraries (bibliothecas) are not included in legacies of books (Libris). Cassius adopts the same opinion, but he holds that parchment covers that are written upon (membranas quae scriptae sint) are included. He adds, afterwards, that neither book-cases, writing desks (armaria neque scrinia), nor other furniture in which books are kept constitute part of the legacy.

(4) What Cassius stated with reference to blank parchments (de membranis puris) is true, for blank sheets of papyrus (nec chartae purae) are not included in the term, "Books bequeathed" (libris legatis nec chartis legatis), and books are not due under the term, "Sheets of papyrus bequeathed," unless, perhaps, in this case the intention of the testator may influence us; as for example, if one literary man should leave to another sheets of paper (chartas) as follows, "I bequeath all my sheets of paper" ("chartas meas universas"), and he had nothing else but books (libros), no one will doubt that his books (libros) were due; for ordinarily many persons designate books as papers (plerique libros chartas appellant). But what if anyone should bequeath sheets of papyrus (chartas legaverit puras). In this case neither parchments (Membranae), nor any other materials used for writing, nor books which have been commenced (nec coepti scribi libri) will be included.
4. Quod tamen Cassius de membranis puris scripsit, verum est: nam nec chartae purae debentur libris legatis nec chartis legatis libri debebuntur, nisi forte et hic nos urserit voluntas: ut puta si quis forte chartas sic reliquerit "chartas meas universas", qui nihil aliud quam libros habebat, studiosus studioso: nemo enim dubitabit libros deberi: nam et in usu plerique libros chartas appellant. Quid ergo, si quis chartas legaverit puras? Membranae non continebuntur neque ceterae ad scribendum materiae, sed nec coepti scribi libri.

(5) Wherefore, when books (libri) are bequeathed, the question is not inappropriately asked whether those are included which are not yet completed (nondum perscripti). I do not think they are included, any more than cloth which is not yet entirely woven is included under the head of clothing. Books, however, which have been written (Sed perscripti libri), but have not yet been beaten or ornamented, are included in such a legacy, as well as such as are not glued together, or corrected, and leaves of parchment (membranae) which are not sewed, are also included.

(6) The legacy of papyri does not include the material for making the leaves, nor such leaves as are not yet finished.
6. Chartis legatis neque papyrum ad chartas paratum neque chartae nondum perfectae continebuntur.

(7) If, however, a testator should leave a library (bibliothecam), the question arises whether the book-case or book-cases (utrum armarium solum vel armaria), or whether only the books (libri) themselves, are included. Nerva very properly says that it is important to ascertain what the testator intended; for the word "library" sometimes means the place where books are kept, and at others the bookcase (armarium) which contains them (as when we say, So-and-So bought an ivory library (eboream bibliothecam)), and sometimes this means the books (libros) themselves as when we say, "He bought a library;" therefore, when Sabinus stated that a library does not follow the books, this is not absolutely true, for sometimes the book-cases (armaria), which many persons call a library, are also included.

1.76. Ulpianus, On the Edict, Book II.
Where papers are bequeathed, no one can say that this refers to such as have been written upon, and that books already made up are included in the legacy. This also applies to tablets.

7.12. Ulpianus, On Sabinus, Book XX.

(34) Where land with its equipment is devised, it is well established that the library, and any books upon the premises, which the head of the household made use of whenever he came, are included. If, however, a warehouse should be used for the storage of the books, the contrary opinion must be held.

(43) He also gives it as his opinion that where a house is devised with its equipment, ivory tables and books are not included. This, however, is false, for everything in the house by means of which the owner may be better provided and rendered more comfortable will be included. No one doubts that the furniture is something which contributes to the convenience of the head of a household.

4. Ulpianus, On the Edict, Book XIX.

(1) Noxious drugs and poisons are embraced in this action; but the judge ought by no means to interfere in matters of this description, for it is his duty to perform the functions of a good and innocent man. He should act in the same manner with reference to books which it is improper to read (for instance, those treating of magic and similar subjects); all of these, however, should be immediately destroyed.

18. Paulus, On Vitellius, Book II.

(13) Where a testator made a bequest as follows, "I leave my country-house in the same condition as I myself possessed it, together with the furniture, tables, and the urban and rustic slaves which shall be sent there, and the wines that may be in said house at the time of my death, and ten aurei in addition," as upon the day of the testator's death he had books, articles of glass, and a small clothes-press in the house, the question arose whether these articles should be included among those enumerated in the bequest. Scævola answered that only such articles as were specifically mentioned formed part of it.

3. Paulus, On Sabinus, Book IV.

The following are embraced in bequests of household goods, namely: cupboards, benches, bedsteads, beds, even such as are inlaid with silver, mattresses, coverlets, pillows, vases for water, basins, candelabra, lamps, and ladles.

(2) In addition to these are strong boxes and coffers. Some authorities very properly hold that wardrobes and chests of drawers, if intended for the storage of clothes or books, should not be classed as household goods, because the articles for which they are designed are not included in that category.

19. Paulus, Epitomes of Alfenus, Book IV.

The answer was that the law should not be employed to cause annoyance, and that terms ought not to be captiously construed, but that it was proper to consider with what intention the words were uttered; for, in accordance with this principle, if anyone was desirous of studying some branch of knowledge, he might state that he had an interest in such and such books being produced for his benefit, because if they were produced, after he had read them he would become a more learned and a better man.

Record books (for loans, etc.)

10.6. Alfenus, Epitomes of the Digest by Paulus, Book III.

(1) Small writing tablets and memorandum books are not classed as household goods.

59. Julianus, Digest, Book XXXIV.

Where anyone bequeaths a promissory note, it is understood that he had in mind not only the tablets upon which it is written, but also the rights of action, the proof of which is contained in the tablets. For it is clear that we use the same "note" instead of the said rights of action; so when the note is sold, we understand that the claim was also disposed of. Moreover, where anyone bequeaths a claim, he is understood to have bequeathed what can be recovered by an action at law.

88. Scævola, Opinions, Book III.

. . . The father had kept, in the name of one of his sons, an account book of debts, and it was afterwards decided and held that what remained in said book in the name of his son was due to the latter; but not what had been already collected and placed by his father among the assets of his estate.

32.34. Scævola, Digest, Book XVI.

(1) A testator, having appointed his son his heir to a portion of his estate, with other things left him a preferred legacy in these words: "I request that twenty claims, taken from my account-book (ex calendario), shall be given without fraudulent intent to my son Titius, after he has selected the same." The said testator, during his lifetime, entrusted his son with the transaction of all his business, and the son, after the will was made, and for ten years before his father's death, during which time he acted as his agent, contrary to the usual practice of his father as shown by his account-book, lent new debtors large sums of money, and permitted the old debtors who owed his father small amounts to increase their obligations, in order that the aforesaid twenty claims might almost fill the entire account-book of his father. The question arose whether the son was entitled, as a preferred legacy, to the loans which he himself had made. The answer was that he could only make a choice of those which were in the account-book (in kalendario) of the testator at the time he executed his will.

(3) A father, having appointed his son and his daughter his heirs, and left to each one of them certain lands and book-accounts (kalendaria) by way of preferred legacies . . . .

41. Scævola, Digest, Book XXII.

(6) A certain man left a legacy in trust to Mævius as follows: "I bequeath whatever I possess in the city of Gades." The question arose whether, if he had any property in the suburb adjoining the city, this also would be due to Mævius under the terms of the trust. The answer was that the meaning of the words will also permit this extension. It was also asked, in the same case, certain notes having been found in the account-book of the testator, he being in the habit of loaning money in his native city of Gades, or in the environs thereof, and having left the property which he had in said city

64. Africanus, Questions, Book VI.

Where a testator appointed his son and his grandson his heirs, and gave to his grandson under a trust certain lands, and whatever might be on them at the time of his death "with the exception of his account book," and, when he died, a sum of money was found in his chest in which the notes and bonds of his debtors were kept, it was held by several authorities to be hardly probable that the testator had the said money in his mind when he created the trust.

 I, however, think that, when anyone wishes his account-book to be delivered to another, it should be taken into consideration, whether it ought to be understood that he expected only the notes of his debtors to be delivered, or whether he also included the money which might be  found, if it was derived from the collection of claims, and was intended to be loaned again.

I go still further, and hold that if the money had been collected and again invested in a similar manner, the change of obligations would neither annul or diminish the effect of the trust, so that if the same money was intended to be placed in the account book, that is to say for the purpose of making new loans, it would still be payable to the beneficiary under the terms of the trust.

Again, I think that it can be maintained that not only the money collected from the debtors, but also such as was obtained from any other source with the intention of being invested in the same way, would belong to the beneficiary.

91. Papinianus, Opinions, Book VII.

Where a tract of land was devised to a daughter as a preferred legacy, "Together with what is due from the stewards and tenants," the legacy of the residue includes what remains of the rents of the lands under the same lease. Otherwise, it could readily be established that rent collected from the tenants and money deposited in the account-book of the testator in the same place, would not form part of what was left, as being due from either the tenant or the stewards, even though the testator may have expressly stated that he desired the stewards to belong to his daughter.

3) "I give and bequeath to Titius the Seian Estate in the same condition as when I purchased it." As the Gabinian Estate had also been purchased with the other for a single price, I gave it as my opinion that the mere proof of the purchase was not sufficient, but that it must be ascertained from the letters and accounts of the testator whether the Gabinian Estate was included in the name of the Seian Estate, and whether the income of both of them had been united and carried on the books as that of the Seian Estate.

4) It has been established that where a house is bequeathed, the baths constitute a part of the same. If, however, the testator permitted public access to them, the baths will form a part of it only when they can be entered through the building itself, and where they have sometimes been used by the head of the household, or his wife; and the rent of the baths has been carried on the books of the testator along with that of other rooms in the house; or where both have been purchased or furnished with money paid out at the same time.

(6) Under the term "house" is also understood a building joined to the same, if both were purchased for one price, and it is established that the rents of both were carried together on the books.

6. Scævola, Digest, Book XVI.
A testatrix left to her grandson the lands which she possessed in a certain district, as they were equipped, together with the wine, grain, and a book of accounts;

27. Scævola, Digest, Book VI.

31. Scævola, Opinions, Book III.

5. Ulpianus, On the Edict, Book XXVIII.

8) Moreover, where a person uses the article lent to him in some other way than was intended, he is liable not only to an action on loan but also to one on theft; as Julianus states in the Eleventh Book of the Digest. He also says, "If I lend you a blank book and you cause your debtor to write therein a note to secure you, and I then erase this; if I lent the book to you in order that you might be secured, I am liable to you in a counter action."

Scaevola libro 17 digestorum