Mommsen’s Encounter with the Code

Brian Crake

Theodor Mommsen (1817-1903) was over eighty when he was invited by the Berlin Academy in December 1898 to embark on a new edition of the Theodosian Code.

Mommsen was always the last in bed and the first up - a habit that stayed with him all his life. The only time I met him was by chance, in 1901 or 1902 [actually June 1899], in the rue de Richelieu between midnight and one o’clock in the morning. He was on his way back, arm in arm with one of his daughters [Adelheid], to the Hotel Louvois. That is where he always stopped in Paris because he only had to cross a small square, without climbing a stair or waiting a minute, to reach the manuscripts he assiduously worked on in the French National Library.^[621]

What this episode illustrates is one of the secrets of Mommsen’s productivity: by sleeping very little he was able to compress two working lifetimes into one.

Mommsen may have been far from young in 1898, but the Berlin Academy knew their man. When he was commissioned to undertake the edition of the Code, Mommsen had just successfully concluded another enormous and complex project: The Auctores Antiquissimi section (1875-1898) of the Monumenta Germaniae Historica (MGH) to which he contributed directly the texts of Jordanes, the Chronica Minora (3 vols) and Cassiodorus’ Variae as well as having played a significant role in most of the other volumes.^[622] The MGH had brought out his innate organisational capacity and scholarly perseverance which had also been exemplified by the Corpus Inscriptionum Latinarum (CIL). Both projects, particularly his editions of the chronicles, had demonstrated his ability to master the most complicated of textual and philological problems and traditions, based on a commitment to research exhaustively every single aspect of a document and its transmission. These works also bore witness to his scholarly method, namely to inspire and organise others to contribute to a necessarily collaborative enterprise. Mommsen was always encouraging and depended on his colleagues to assist in his own work, just as he was unstinting in assisting theirs.

The Academy knew that Mommsen could be counted on and that all it would be required to provide would be his expenses. He would do the rest in his usual way: by indefatigable effort and by prevailing upon the good services of every available collaborator. In the case of the Code in particular Mommsen possessed a unique advantage, namely an intimate knowledge of it derived from long use. The aim of this chapter is to outline Mommsen’s encounter with the Code over nearly seventy years, the making of his edition late in life (drawing on unpublished correspondence) and the aftermath of his edition including the unresolved personal anguish it generated for two of his long-time friends and collaborators, Otto Seeck (1850-1921) and Paul Krüger (1840-1926).

10. Mommsen's Encounter with the Code 219 the considerable preparatory labours of Krüger. Mommsen’s edition of the Code was in a real sense the culmination of a life’s work, not just another new project to be dutifully mastered and completed.

I

Born in 1817, the eldest son of a resourceful Schleswig pastor, Mommsen entered the University of Kiel in 1838 already possessed of a prodigious talent, especially for languages and literature. Yet he did not enrol in the philosophical faculty in order to study languages and literature. Instead he opted for the faculty of law which attracted the majority of students in those days. As a graduate in law he would be trained to take part in the apparatus of government (of either the Danish king or one of the German states) for which law was a prerequisite, or perhaps as an advocate. At this stage, however, especially in Germany, law meant substantially Roman law and Roman law meant the Digest and Codes. Moreover professors of Roman law enjoyed great prestige and exerted considerable influence in contemporary discussions concerning the development of a common law code for the various German states.^[623] Over successive semesters from Summer 1838 to Winter 1842/3 Mommsen took courses in a range of subjects which included Mathematics and Byron’s ‘Childe Harold’s Pilgrimage’. Still, most of his courses were in law: German private, public and criminal law plus Roman private and public law including the great Roman legal texts (Pandects).

fruit in his edition of the Novels of Justinian (1840). From Kiel he moved to Russian Dorpat from where he was eventually expelled because of his pro-German sentiment. Subsequently he devoted himself to German law.^[626] The other teacher whom Mommsen claims to have learnt most from at Kiel was Georg Burchardi (1795-1882) who lectured on Institutions, Erbrecht and Rechtsfälle. More importantly, it was through Burchardi that Mommsen discovered the work of Savigny.^{[627] [628]}

Friedrich Carl von Savigny (1779-1861) was by this stage the founder of a school of historical jurisprudence and the master of medieval legal history whose work on Roman law in the Middle Ages traced the development of legal systems in the barbarian kingdoms which became established within the old Empire. In particular he traced the fortunes of Roman legal procedures and jurisprudence which in turn throws light on the tradition of the Code of Theodosius, the basis of most of the later barbarian Codes.

This revolution in the study of Roman law was initiated by Guillaume Bude (1468-1540) with his Annotations on the Pandects (1508-57) and extended into the epigraphical area by Andreas Alciato (1492-1550), the pioneering editor of theNotitia Dignitatum. Of special interest to the French students of Roman law and institutions was the Theodosian Code. The first significant edition of the Code was by Jacques Cujas (1522-1590) in 1566. Cujas’ main strength was in detecting errors and interpolations in the Code, and providing conjectural emendations of difficult passages. His edition was supplemented by Francois Pithou (1543-1621) and his elder brother Pierre Pithou (1539-1596), who modelled his work on that of Cujas. Pithou’s edition of the Novels, dedicated to Cujas, appeared in 1571

10. Mommsen's Encounter with the Code 221 and he then went on to publish in 1574 the first edition of the Comparison of the Mosaic and Roman Laws from a manuscript at St Denis. Pithou was also interested in collecting inscriptions, especially legal ones, and concentrated on those to be found in Switzerland, a feat later emulated by Mommsen while a professor at Zurich in the early 1850s.^[629]

A Jesuit scholar, Jacques Sirmond (1559-1651), first published the manuscript of the late Roman constitutions which still bear his name and which Mommsen included in his edition of the Theodosian Code.

During Mommsen’s student days, however, there appeared a new edition of the Theodosian Code which was to remain the standard until his own, sixty years later. The edition was by Gustav Haenel (1792-1878) who had originally been inspired by the first two volumes of Savigny’s Roman Law in the Middle Ages to devote his life to researching and editing the pre-Justinianic legal sources and their Germanic successors. For seven long years (from 1821) Haenel travelled extensively throughout Europe and Britain working in all the available archives and laying the foundation for a half-century of detailed work on the sources of law and their transmission.^[631] What resulted was an edition of the Gregorian and Hermogenian Codes (1837) followed by the Codex Theodosianus (1837-42), then the Novels and Sirmondian Constitutions (1844) and the Lex Romana Visigotho- rum (1849), that is the Breviary of Alaric. In addition Haenel produced in 1857 what he called a Corpus Legum which was simply a combined edition of Roman imperial laws from all non-legal sources, literary and non-literary, but in chronological order. This was a project he had been working on for a long time. It proved to be (and remains) a very useful

work and it is a pity that there is not a modern version of it.¹³

Meanwhile at Kiel Mommsen gradually became impelled to undertake the task of providing a critical edition of epigraphical copies of Roman legal documents, as his ambition turned from law to philology. It was also while a student at Kiel that Mommsen, so it appears, first formulated the idea of providing modern editions of Roman legal documents.¹⁴ Certainly it was during this period that he developed the skilful mastery of legal philology which he applied to so many texts during his life, culminating in the Theodosian Code.¹⁵ A few weeks before his death over six decades later he was able to remark to his friend and colleague Otto Hirschfeld (1843-1922) that ‘The Roman legal sources I have fortunately brought under shelter; only for Paulus [= Sententiae] must something still be done after my death’.¹⁶

As a philological lawyer Mommsen always appreciated and sought to establish the human and administrative context of laws, that is to say who prepared them, how they were framed and how they were communicated and acted upon. Likewise he was always interested in how collections of laws arose and were transmitted. What was a codex? What was a digest? How did a collection get its title? What was a ‘pragmatic sanction’? What exactly was a ‘subscription’ to a law? And what was meant by the ‘edition’ of a constitution? - these were the sorts of questions Mommsen was forever puzzling over.¹⁷ At the same time his continuing researches exhibited his conviction in the underlying continuity of Roman history from the regal to the late imperial period, and even beyond. Indeed he was able to stress that the kingdom of the Ostrogoths in Italy, for example, was essentially Roman in terms of its legal and administrative structures and procedures.¹⁸

As a professor of Roman Law at Leipzig, Zurich and Breslau successively, Mommsen was constantly engaged in interpreting

¹³        cf. J. Gaudemet, La formation du droit seculier et du droit de I’eglise aux IV^e et V^e siecles, 2nd ed (Paris, 1979), 73 n. 4.

¹⁴        At the same time he planned a treatise on Roman criminal law, i.e. Römisches Strafrecht (1899) as well as an edition of the Pandects, i.e. Digest, (1872), as stated in his letter to Gustav Freytag on 13 March 1877 cited in L. Wickert, Theodor Mommsen. Eine Biographie, vol. Ill (Frankfurt 1969), 655.

¹⁵        W. Kunkel, ‘Theodor Mommsen als Jurist’, Chiron 14 (1984), 370-1.

¹⁶        O. Hirschfeld, ‘Theodor Mommsen’, Abhandlungen der königlichen Preussischen Akademie der Wissenschaften (1904), 1025 = Kleine Schriften (Berlin, 1913; repr. New York, 1975), 959.

¹⁷        ‘Die Bedeutung des Wortes digesta' (1868) (= GS 2, 90-6); ‘Die Benennungen der Constitutionssammlungen’ (1889) (= GS 2, 359-65); ‘Die Heimath des Gregorianus’ (1901) (= GS 2, 366-70); ‘Sanctio pragmatica’ (1904) (= GS 2, 426-8); ‘Uber die Subscription und Edition der Rechtsurkunden’ (1851) (= GS 3, 275-85).

¹⁸        ‘Ostgotische Studien’, Neues Archiv 14 (1889), 225-49, 453-544; 15 (1890), 180-6 (= GS 3, 362-484;) cf. ‘Das römisch-germanische Herrscheijahr’, ibid. 16 (1891), 51 (= GS 6, 343).

10. Mommsens Encounter with the Code 223 Roman legal texts in the light of their original context but also with an eye to their contemporary significance, at a time of great debate on the relationship between the Roman law taught in the universities and the practical legal demands of the German states. This was also the period during which the celebrated Römische Geschichte appeared. In 1858 Mommsen was called back to Berlin where he spent the remainder of his life. Initially he came to work on the CIL for the Berlin Academy but later became a Professor of Ancient History for the first time. Still, his historical technique and vision remained primarily anchored in the great juristic texts such as the Theodosian Code.

In 1859 Mommsen published an article on Frankish interpolations in the Theodosian Code. A law of Constantine to Euphrasius, rationalis of the three provinces (Sicily, Sardinia and Corsica) in AD 325, specified the correct weights for tax payments in gold (CTh 12.7.1). Mommsen observed that the stated rate of seven solidi for an ounce of gold reflected the situation in sixth-century Gaul rather than fourth-century Italy where the exchange was six solidi per ounce. In Mommsen’s view this interpolation showed how Roman laws and the Code in particular were handled in Frankish Gaul.^[632] Three years later he was forced to elaborate on his arguments in answering the criticism of the current editor of the Code, Haenel.^[633] Meanwhile, in 1860 he produced an important study of the chronology of the laws of Diocletian and his tetrarchic colleagues^[634] which remains fundamental as one can see from the way it has been used, for example, by T.D. Barnes in his The New Empire of Diocletian and Constantine.^[635] In this article Mommsen pointed out that most of the subscriptions to the tetrarchic laws are in the Codex Justinianus, yet they have never been properly studied. He then proceeded by means of a collation of the main manuscripts, to determine critically the correct dates and places of each law. Previous attempts, according to Mommsen, had been too mechanical and had ignored essential philological and historical criticism.

The importance of this study was that for the first time it was demonstrated what improvements accurate criticism could bring to a text such as the Codex Justinianus. In addition it focused attention on the inscriptions and subscriptions to the laws. Traditionally the Codes had been the preserve of students of jurisprudence who were mainly interested in their legal content. As an historian, however, Mommsen’s interest was just as much in establishing their procedural and contemporary context. Mommsen clearly possessed a masterful

knowledge of the Theodosian Code and this was shown once more in an

1863    article in which he was able to make sense of the background to two unidentified rescripts on papyrus,²³ just as he was able over a decade earlier to identify an inscription as being the record of a lost constitution dating to 386/7²⁴ and one decade later as being a certain constitution of Julian.²⁵

Mommsen was not only concerned with the Theodosian Code. He was equally involved with the Digest. As early as 1844 on his first trip to Italy he spent time in Florence collating the famous Medicean manu­script of the Digest and by 1862 he addressed the implications of the then inadequate state of the text. In doing so he foreshadowed a new text free from later interpolations and corruptions. At this point he exam­ined the manuscripts and divided the material into five categories. As Mommsen noted, Savigny had been the first to research carefully the tradition of the Digest and related texts; now he was asking that those philologically inclined jurists and those philologists who were not above working with jurists submit the Digest manuscripts to preliminary research and report the findings to him.²⁶

Two years later Mommsen had commenced his edition, having found a diligent and competent collaborator in the person of Paul Krüger. The twelfth child of a Berlin dance instructor, Krüger had been a talented mathematician before turning to jurisprudence at the University of Berlin. He was already a very independent worker and after graduation began a career in the Prussian civil service. At the same time, however, he kept up his investigations into Roman civil law and in the summer of

1864    secured his Habilitation into the faculty of jurisprudence at Berlin. It was just at this time that he met Mommsen and was invited to join him to work on the Digest. By the time the Digest edition was completed Mommsen had already set Krüger to producing a critical edition of the Code of Justinian, which he completed in 1877.²⁷ Mommsen himself was not actively engaged in extensive research on the Code of Justinian but he did possess a profound knowledge of the text, as evidenced in an 1892 article discussing the implications of a new inscription [now CIL III S. 12116 = ILS 1050] from Hierapolis dedicated to a certain imperial legate of Cilicia, Rutilianus, in AD 215. On the basis of the inscription he was able to correct the text of a certain rescript (CJust 9.43.1) which in turn enabled him to show that the text of Haloander was derived from a reliable tradition and should not have been so easily discarded as it had been by Krüger.²⁸

²³‘Fragmente zweier lateinischer Kaiserrescripte auf Papyrus’ (1863) (= GS 2, 342-57).

²⁴        ‘Halsring mit Inschrift’ (1852) (= GS 2, 358).

²⁵        ‘Ein Edict des Kaisers Julianus’ (1875) (= GS 2,341).

²⁶        ‘Über die kritische Grundlage unseres Digestentextes’ (1862) (= GS 2,133).

²⁷        F. Schulz, ‘Paul Krüger’, ZSS RA 47 (1927), ix-xxxii.

^{lang=EN-US style='font-size: 7.5pt'>28}        ‘Zur Kritik des Codex Justinianus’ (1892) (= GS 2, 422-5).

In the late 1860s, with the Digest behind him, Krüger was funded by the Savigny-Stiftung to travel extensively for the purpose of studying and collating Roman legal manuscripts, in particular those of Justinian’s Code. By now too he had resolved, probably at Mommsen’s prompting once again, to complete an edition of the Code of Theodosius. So he was able at that stage to examine most of the main manuscripts. In the same year in which his edition of the Code of Justinian appeared (1877) he contributed an article on the Theodosian Code to the Festschrift in honour of Mommsen’s sixtieth birthday. Soon afterwards he published his apograph of the Turin fragments.²⁹ By about 1880 or so Krüger had collected most of the important material for an edition of the Code. Yet it showed no signs of appearing; in fact he seems to have lost the will to finish it altogether.³⁰ In 1888 Krüger was called to Bonn and for the next decade did not progress much further with the Code.

It was during the 1870s and 1880s that Mommsen was working on what he regarded as likely to be his most durable work, namely the Römisches Staatsrecht. The Staatsrecht was a large-scale analytic description of the system and procedures of Roman public law. Although concentrating on the period largely before the scope of the Code, Mommsen nevertheless made extensive use of it.³¹ Likewise, in his other major systematic analysis of Roman law, the Römisches Strafrecht, he used the Theodosian Code extensively. All through these researches he was relying on the edition of Haenel, whose shortcomings had been itemised by Krüger in 1886.³²

By the 1890s there was clearly a burning need for a new edition of the Theodosian Code. Haenel’s Codex looked out of place alongside Mommsen’s Digest and Krüger’s Codex Justinianus. Its inaccurate and unscientific apparatus was a major flaw; but there had also been some significant textual discoveries too - most notably the Turin palimpsest, but also the Ambrosian manuscript containing the gesta senatus.³³ It was therefore no surprise when Mommsen agreed to prepare a new edition in 1898. Moreover he acknowledged that, although Haenel had been a great traveller and a tireless worker, his qualities deserted him when it came to textual criticism (prol., cxviii). Yet he had shown the

²⁹        P. Krüger, ‘Über die Zeitbestimmung der Konstitutionen aus den Jahren 364 bis 373. Ein Beitrag zur Kritik des Codex Theodosianus’ in Commentationes philologae in honorem Th. Mommsen (Berlin, 1877), 75ff.; ‘Codicis Theodosiani fragmenta Taurinensia’, Abhandlungen der Berliner Akademie der Wissenschaften 1879 (Berlin, 1880).

³⁰        Schulz, ‘Paul Krüger’, xix.

³¹        Mommsen’s use of the CTh in these works can be traced through J. Malitz, Römisches Staatsrecht - Stellenregister (Munich, 1979) and Römisches Strafrecht - Stellenregister (Munich, 1982).

³²        ‘Die Vaticanischen Scholien zum Codex Theodosianus’, ZSS RA 6 (1886) 138ff. cf. Maas, Göttingische gelehrte Anzeigen (1906), no. 8, 608.

³³        P. Jörs,ÄE 4 (1901), 1973.

way, and Mommsen believed that the wealth of information accumulated by Haenel for his edition made his own work all the easier. Mommsen knew that Krüger had long been engaged in preparations for an edition but must have finally decided he would never complete it. After all, Krüger had been sitting on the material for nearly thirty years. He was therefore rather stunned at Mommsen’s announcement because he did plan to complete the task himself eventually. Indeed, initially Krüger was reluctant to co-operate with Mommsen’s request to use his materials but was soon persuaded by Mommsen’s persistence and generous spirit.^[636] So it was that, having secured the necessary support of Krüger, Mommsen set about a task he had never previously contemplated.^[637] He did so against a background of increasing expectation of the value of codes of law, just when the German nation was in the process of producing its own civil Code (Bürgerliches Gesetzbuch) which finally came into effect on 1 January 1900.

Reconstructing the Theodosian Code from what remains of it is no easy task, not least because there is no complete manuscript of all sixteen books. Apart from fragments such as that in Milan, there are only four manuscripts of the Code itself (at Paris, Rome and Turin) which between then only cover Books 1 and 6-16. Special importance is therefore attached to the early sixth-century Lex Romana Visigotho- rum or Breviary of Alaric which was so dependent on the Code and which survives in many versions; there are some complete versions, some incomplete ones, abbreviated versions and partially abbreviated ones. However, the most important of the manuscripts for the Breviarium is O - from the Selden collection in the Bodleian Library at Oxford.

In preparing his edition of the Theodosian Code and the Sirmondian Constitutions Mommsen proceeded in three main ways, just as he had always done. First he inspected manuscripts himself at first hand. 'Ihis was why he was in Paris in 1899 when Carcopino spied him in the early hours of the morning.^[638] It was evidently the only journey he made for the purpose of the Code. Secondly he arranged to have manuscripts transferred to Berlin where he could work on them

10. Mommsen's Encounter with the Code 227 there.^[639] The third aspect of Mommsen’s modus operandi was to press into service all his friends and colleagues in order to collate manuscripts and check details for him. He did not personally inspect the sixth-century Turin palimpsest but preferred to rely on Krüger’s copy of it ‘facta peritissime et diligentissime’ (prol., xxix).^[640] For the sixth-century Gallic manuscript, Vat. Reg. 886, he relied on the collation of Books 9 to 15 previously undertaken for the Berlin Academy by Rudolf Schoell (1844-1893) and that of Krüger who collated Book 16 (Ivi), as well as Meyer who checked the manuscript when in Rome in 1901 (prol., xlvii, 1); while for the Ivrea manuscript of the Breviary he had the manuscript photographed by his friend Giacosa in Turin (prol., Ixviii). Other scholars cited for assistance in collating manuscripts include Zeumer, Goetz, Girard and Clark (through the intervention of Traube), while Mommsen credited the young Paul Maas with pointing out the correct meaning of ‘post alia’ and ‘et cetera’ in several laws (prol., ccix).^[641] All these names were familiar at the time for they were all reputable students of Roman or medieval law and legal texts. Moreover they were nearly all well-known to Mommsen himself.

Increasingly threatened by blindness, Mommsen launched into the task with youthful enthusiasm (as observers remarked)^[642] and accomplished most of the work for the edition during 1899 and 1900. The Academy provided research subventions on 9 February 1899 (1200 Marks) in order to get the venture under way, then a more substantial amount on 8 June (2,400 Marks),^[643] presumably to cover Mommsen’s trip to Paris, and 4,000 Marks on 21 June 1900.^[644] By now Mommsen had a collaborator, Paul Meyer, who was responsible for editing the Novels. Originally Mommsen was working by himself but was casting about for an appropriate person to take on the Novels.^[645] At the end of 1899 he actually called for volunteers.^[646] Meyer was already a well-established scholar, having produced an acclaimed thesis on the Roman concubinate (1895), and more recently had worked his way into papyrology which was subsequently to become his main field of

interest. He was a particularly careful and painstaking scholar with just the right temperament for Mommsen’s assignment.^[647] They worked closely with each other, so it would appear, and each provided valuable support for the other’s work.^[648]

As noted, one of the more significant manuscripts which needed to be taken into account was one from the Selden collection in the Bodleian Library at Oxford. Furthermore, there is a set of documents relating to the collation of this manuscript which explain and bring to life the daily workings of Mommsen while preparing his edition of the Theodosian Code. The unpublished correspondence of Francis Haverfield (1860-1919), later Camden Professor at Oxford, and Mommsen provides a valuable illustration of precisely how Mommsen engaged others in his own work and how he relied on their expert assistance in contributing together to a common achievement.^[649]

As an undergraduate at Oxford Haverfield developed an interest and aptitude for Roman epigraphy and in 1883 began a serious professional correspondence with Mommsen which soon developed into a strong personal friendship.^[650] In response to a card from Haverfield on the occasion of his 81st birthday, Mommsen wrote:

Your card for many happy returns (may they not be too many!) arrived just as I was about to demand you a service. It is an exceptional way of returning thanks, but you will not take it amiss.

We have begun here a new edition of the Theodosian Code, that is to say our Academy has given orders to collect the materials. Among these probably it will be necessary to get collated your Seldenianus 32 (Bodlei - 3362).^[651] For the moment I want only the fourth book (3 in the manuscript, where the first book is deficient), and I think you will be able to find some person able and willing to undertake this work at a reasonable contribution.

I tried to get the book sent to Berlin, but Mr Nicholson answers that by the gift this is impossible for the Seldeniani; so either we must send some of our young men thither or turn [?] to our Oxonian friends....

I send with this letter a copy of the fourth book; his varia lectio may be written either on the margins or on blank leaves inserted. As by this specimen I shall be able to determine what further measures will be necessary, I want very much to have this work done as soon as possible.^[652]

Mommsen had evidently asked the Bodleian’s librarian E.B. Nicholson if the manuscript could be forwarded to Berlin for collation but had been advised that ‘all the Selden MSS were given under the condition that they should not be lent. There is no dispensing power and we should be obliged to give the same reply to the Queen.’^[653] Mommsen therefore turned immediately to Haverfield who was convalescing in the Alps at the time but replied that he was writing to Oxford that night to ask if anyone could collate the manuscript; if not, he volunteered to undertake the task himself on his return.^[654] Although there is a gap in the correspondence at this point it appears that a certain Anna Parker was identified and agreed to work on Mommsen’s behalf. Within three weeks he had received her collation of the specimen and replied as follows:

Honoured Miss,

Please accept my best thanks for your scholar work, which is admirable well done. I reserve a further answer after having entered the very curious ms. in my apparatus. It will be indispensable to get it collated entirely.^[655]

Back in Oxford soon after, apparently recovered, Haverfield wrote to Mommsen that he was pleased that Miss Parker’s collation was satisfactory and advised that he had himself paid Miss Parker £1 2s 6d. He went on to say that the Academy owed him that amount or if it was preferred he was prepared to regard the amount as a personal contribution to the projected edition.^[656]

Mommsen was apparently not impressed at Haverfield’s absence from Oxford and advised him that ‘Young men like you should not take a health-trip’ before going on to say;

You have obliged me greatly by procuring me the collation of the Seldenianus. It is quite satisfactory and the charge moderate. I hope Miss Parker will continue and collate the whole Theodosianus.

I send to you for Miss Parker a copy of the Breviarium for the remaining part of the collation. Please tell her to send the collation as the work proceeds by instalments.

I send too to you a check for 8; you will pay her as far as it reaches and then give me notice. At the close of work I want a receipt for the sum total

containing my name for our academical accounts.

The MS in itself is not first rate, but derived from an excellent copy. The text has been corrected arbitrarily by William of Malmesbury. Perhaps you may inform me, if the works of this curious author have been recently studied in your country and his materials discussed. His classic library was of unusual extension; as far as I know he is the only medieval writer in England who knew the Breviarium.^[657]

Haverfield soon responded that he had banked the cheque and referred Mommsen to Stubbs’s edition of William, offering to send a copy if it were not to be found in Berlin. Stubbs had concluded that the MS was an autograph original of William and not, as Haenel had thought, a copy of William’s original.^[658] Mommsen readily concurred in this view when he wrote to ask Haverfield to send the final bill since the collation would now be complete:

I am greatly satisfied by my lady collationer. She will have finished; please pay her some pounds that may be wanting and send me her receipt for the sum total; so we will adjust our accounts. The MS is certainly written by William of M. himself; it is very curious and interesting.^[659]

In setting out the final cost details (with the Academy in debt to the tune of £1 14s), Haverfield later reported that according to Miss Parker ‘there are also many pages of Libri Legum Theodosi [i.e. Novels of Theodosius II] which she thinks you do not require, but can do if you wish’.^[660]

Mommsen duly arranged for the arrears to be paid and wrote to Haverfield:

I have just finished the entering of Miss Parker’s collation in my notes, and am generally satisfied with her careful and intelligent work. The Novellae for the moment are not wanted; probably they will be requested later, but I have dispossessed myself of this part of the future edition.^[661]

Seven months later Mommsen again wrote to Haverfield, this time to ask Miss Parker to verify certain readings in the Selden manuscript. By now too he had come to consider that the manuscript is of ‘the highest value’.^[662] It appears that Haverfield himself did the verification and reported back to Mommsen on 17 November.

By the end of the following year (1900), that is just two years after

10. Mommsens Encounter with the Code 231 being entrusted with the task, the text of the edition was already complete as well as much of the preface, while by now Meyer had started work on the Novels.^[663] At this stage Mommsen wrote once more to Oxford, this time to say that he now wanted the Selden Manuscript collated for the Novels.^[664] It was Christmas time; Haverfield was away from Oxford for ten days but he agreed to have the collation done.^[665] For once Mommsen was not in a rush. ‘As the next century is not far off,’ he wrote, ‘take your time without any hurry. The collation may very well wait, we want it in two or three months. I send the book. Regarding the money I await your orders.’^[666] Miss Parker completed the collation by April when Mommsen inquired about the amount due^[667] which was eventually paid to Haverfield in July by his engineer son Hans Mommsen (1873-1941) who was visiting Oxford at that time.^[668]

Typesetting of the edition was now proceeding and by the end of 1901 had reached the end of Book 9; while Meyer was advancing with his assignment, having spent the period from March to August 1901 collating manuscripts in Rome, Ivrea and Paris.^[669] By the end of 1902 the edition was nearly finished and Mommsen fully expected it to appear in the course of 1903; at the same time Meyer too promised that his Novels would soon be ready.^[670] What remained was to tidy up outstanding queries, and so in February 1902 Mommsen wrote with a query on one of his Theodosian novels^[671] and over a year later it is clear that his work on the edition was drawing to a conclusion when he wrote to Haverfield:

You remember the service rendered us by engaging Miss A. Parker to collate the Seldenianus. My collaborator Mr Paul Meyer has finished now the manuscript of the Novellae, but before sending it to the printer we want the answers to a questioning of some bulk, which will arrive to you next week. Please get Miss Parker or, if she is not to be had (I was fully satisfied with her work), some other male or female with that collation. We are quite willing to pay as before.^[672]

The collation was completed by Miss Parker, quicker than either she or Haverfield expected, and the results were soon on their way to Berlin.^[673] In acknowledging receipt of the work Mommsen again asked

Haverfield for a bill.^[674] Mommsen and Haverfield continued to correspond in the ensuing months about their common interest in inscriptions and the exploration of the limes in both Britain and Germany. Haverfield actually planned to visit Mommsen in June but apologised for not being able to fit Berlin into his itinerary.^[675] This letter, dated 20 September 1903, was evidently their last commu­nication. A few weeks later (1 November 1903) Mommsen was dead, with his edition of the Code all but complete. Days later his son Wolfgang Mommsen (1857-1930), who had been a businessman in London and was married to an Englishwoman, wrote to Haverfield to say that ‘only a few days before his death I heard him mention your name, and he was telling me to remind him in a few days to write to you’.^[676] Mommsen never had the chance.

What this exchange between Mommsen and Haverfield provides is an insight into how the great Berlin professor worked on a day-to-day basis. In the first place he was meticulous in planning out a project such as the edition of the Code so that he was able to manage several strands of research simultaneously. More importantly his understand­ing of scholarship as a collaborative venture under firm direction is highlighted here; that is, we can see at close range precisely how he went about arranging for his friends and colleagues to assist him in his work and how, at least in this case, they were only too happy to oblige. Also of interest is the way he necessarily trusted in the quality of the work undertaken by remote collaborators such as Anna Parker and Haverfield. It was through connections such as these in all the main libraries and manuscript collections of his day, and the main academic institutions, that Mommsen was able to organise complex textual projects so effectively and expeditiously.

Ill

Some months after Mommsen’s death his edition of the Theodosian Code appeared. The Novels were all but ready as well and were expected in the winter of 1904,^[677] although they did not finally emerge from the publisher until November 1905 - ‘thereby completing Mommsen’s last work’.^[678] Not only was the new edition of the Code an important step in a textual sense but its preface contained a good deal of new and fundamental research on Mommsen’s part, as well as an appendix (commissioned by Mommsen but completed after his death)

10. Mommsen's Encounter with the Code 233 by Alfred von Wretschko of Innsbruck on the medieval use of the Code and its contents. In the first place Mommsen treated the composition of the Code and its transmission with full details of its complex manuscript tradition, as well as the early editions. More important, however, was his discussion of the authors and recipients of the laws as well as their dates and places. Mommsen began this section (chapter 10) by explaining the nature of the constitutions and the processes for transmitting them (datae, acceptae, lectae, propositae, praelatae, regestae) (prol., cliii-clviii). He then says that he actually agonised long and hard over whether or not to go into the questions of the addressee, date and place of issue of the laws (prol., clvii). It would not be so difficult to do this, Mommsen suggests, if confined to the archetype manuscripts. However extending it to the Codex Justi­nianus adds great complications. Yet, if not the editor’s duty, then it is at least useful for the edition, but there is a danger that there will be too much extraneous matter which would encroach on that ‘excellent man’ Gothofredus, that is to say commentaries will be substituted for an edition (prol., clviii). So Mommsen rested content with three tables: (1) of emperors; (2) of addressees, with year and day date; (3) the laws ordered chronologically with dates and places. Behind these tables lay a considerable amount of preparatory research and thought. In particular he was able to take for granted here what he had argued three years earlier in a substantial article on the Code.^[679] Mommsen had shown, on the basis of the sections of a single original law preserved differently in a number of constitutions, that many of the constitutions were incorrectly dated.

As we have seen, Mommsen had long since dealt with the chronology of the laws of the tetrarchs (mainly not from the Theodosian Code) and had been followed in 1889 by the ambitious attempt by Otto Seeck to do the same for the laws of Constantine.^[680] Now a further eleven years on and with the challenge of producing a critical edition largely behind him, Mommsen conceded that it was forever difficult to strike the right balance between overestimating and underestimating the indications of date contained in the Code. In his view, Gothofredus and Tillemont had gone too far one way while Seeck had gone too far the other; so far in fact that Mommsen pronounced his article as ‘academically unusable’.^[681] Having then queried some of the dates proposed by Seeck he went on to argue that one must acknowledge the errors in the Code and try to correct them. Seeck, however, dated all the laws but changed dates too arbitrarily in order to suit his arguments. All of which made his article, according to Mommsen, a wissenschaftliche Nullität.^[682] This

was a forthright denunciation from a forthright man but Seeck was not one to be easily wounded.

The relationship between Mommsen and Seeck is an interesting and volatile one, but a very profitable one for the modern study of the Code. As a young man Seeck’s interests were more strictly in the Naturwissen­schaften and so he matriculated at Dorpat in Chemistry. Through reading Roman law books to a blind friend, and being captivated by Mommsen’s Römische Geschichte, Seeck discovered that his real vocation was to be a Roman scholar. He therefore transferred to Berlin where Mommsen was lecturing on Roman antiquities and the Roman Empire. Mommsen may have recognised some of himself in Seeck: he was a very fast worker and spent little time asleep, as well as enjoying a good time. In addition he was widely read in foreign literature, was a great traveller and walker and a noted authority on art history. Despite having to catch up with Latin and Greek, Seeck advanced quickly and in 1876 produced an edition of \heNotitia Dignitatum which he dedicated to Mommsen. Soon after, Mommsen set him to work on the MGH edition of the letters and speeches of Symmachus which eventually led to that splendid edition. Although punctilious and accurate in all his work, Seeck was occasionally erratic in his judgment, which led to his work often being regarded with suspicion by many scholars, including Mommsen.^[683]

In the prolegomena to the Code Mommsen repeated his harsh view of Seeck’s 1889 article on the chronology of Constantine’s laws (fortius opinor quam prudentius\ prol., clix) saying that he himself would never dare to go so far. While Mommsen’s continuing public denunciations of Seeck’s researches on the Code clearly worried some, Seeck himself was apparently unperturbed. In fact in the wake of Mommsen’s passing he pointed out that since all his own work fell in a field where Mommsen had trodden before him he was inevitably able to find Mommsen’s mistakes and felt obliged to point them out. Yet this never worried Mommsen for, although a man of strong views, he readily accepted his mistakes as contributing to the cause of scholarly progress. Obviously their friendship never suffered. Indeed Seeck proudly quotes a letter he received from Mommsen (undated but probably mid-1903) in which the ailing maestro, fearful he would be prevented from seeing the Code completely through the Press, asked Seeck if he would help in the laborious task of checking the references in the prolegomena. T know that, when it ought to count, I can find no truer and more caring friend than you’, said Mommsen, ‘to correct the mistakes of a dying man.’^[684]

Three years later, however, the situation was not so clear. Stung into action by a comment of Eduard Schwartz (1858-1940), Seeck explained that he did not gladly engage in polemic, least of all with Mommsen. Instead, so he says, he remained silent in the conviction that in due course truth would prevail. Yet now Mommsen’s articles on the tetrarchic consuls and prefects^[685] are portrayed (by Schwartz) as fundamental and his own proposals ignored it is his scholarly duty to set the record straight and defend himself.^[686] Seeck attempts to do this by pointing out that determination of correct dates for laws in the Code is a notoriously difficult and frustrating problem. Despite the occasional moment of despair he decided to commit himself to proposing some solutions in 1889. It was this which Mommsen attacked in his 1900 article. Then follows what appears to be an extraordinary piece of special pleading, given that Mommsen was long dead. Seeck claims that Mommsen regretted the tone of his article but it was too late to change it, that he himself wrote a reply which the editor of Hermes refused to publish, that he was now glad of this rejection because he would not have wanted to hurt the feelings of the aged Mommsen, but that now he was dead his mistakes needed contradiction.^[687] So Seeck proceeds.

Finally, in his prolegomena Mommsen refrained from determining the tenure of magistrates and promised that there would be a late Roman prosopography which would be the appropriate place for treating such questions. It is evident that close work on the Code in recent years had set Mommsen thinking about the need for such a prosopography to establish the careers of the addressees. In fact he was actively preparing prosopographical slips while working on his edition. Likewise it was work on the text of the Code which made him realise how valuable it would be to have a chronological list of officials and dates for the period from Diocletian to Justinian.^[688] In 1900 he submitted to his colleagues on the Kirchenvaterkommission, set up to produce a series of texts on the Greek church fathers of the first three centuries, plans for a continuation of the recently completed Prosopographia Imperii Romani down to the end of the sixth century - in effect a ‘Prosopography of the Later Roman Empire’ to include both secular and ecclesiastical strands, and a secular strand under the direction of Seeck.^[689] Work commenced on the prosopography in the winter of 1901/2 with Mommsen excerpting prosopographical notices from the Theodosian Code which he was in the course of editing, as well as from the Code of Justinian and the histories of Ammianus Marcellinus and Zosimus. As the material accumulated it provided the basis for several preparatory studies. For example, it was work on the prosopography which gave rise to many biographical entries written by Seeck for the early volumes of the Pauly/Wissowa Realenzyclopadie der Klassischen Altertumswissenschaft, in addition to his Die Briefe des Libanius zeitlich geordnet^QQ and the planned imperial and papal Regesten up to the time of Justinian (actually to 600).^{[690] [691]} Only the period to 476 was covered in the one published volume.^[692]

As Seeck explicitly recognised in the preface to his Regesten,^[693] the edition of the Theodosian Code and the production of the Late Roman prosopography had gone together in Mommsen’s mind, as indeed had the idea of a work such as the Regesten itself. Moreover, most of the errors and flaws in the edition could be attributed to the fact that the prosopography had not been completed before the edition. In the intervening fifteen years or so work had progressed steadily on the prosopography with the result that, as Mommsen had anticipated, many of the constitutions could now be more correctly dated because it was now possible to identify certain errors in the inscriptions and subscriptions. What was now required was a systematic presentation of Late Roman chronology taking all this into account - hence Seeck’s Regesten. It was now thirty years since Seeck had published his preliminary study of the laws of Constantine and nearly twenty years since Mommsen’s riposte. This was long enough, especially given the enormous amount of work which had been done in the meantime, for Seeck to recognise the shortcomings of his original work. He acknowledged that in matters of detail Mommsen had been right but insisted that despite his mistakes he himself had established the right methods and directions which led to the solutions of so many problems.^[694] In addition, the research for his Geschichte des Untergangs der antiken Welt had obliged Seeck to analyse the date of each law independently.^[695] Finally he explained that he and Mommsen had largely agreed on the doubtful dates but that Mommsen had thought it

10. Mommsen’s Encounter with the Code 237 impossible to correct some of them, whereas he had been prepared to try and do so. For Seeck Mommsen’s approach had been too limited.^[696] Ultimately, however, it can be acknowledged that many of the inscriptions in the Code do require radical correction but that the process of correction can be quite frustrating. Seeck discovered this, and it was reinforced by the rapid exchange in the mid 1930s between Jean-Remy Palanque (b. 1898) on the one side with Ernst Stein (1891-1945) and Higgins, his pupil at the Catholic University of America (Washington, DC), on the other.^[697] As we come to understand better how the Code was put together, and from what sources, we have a more compelling rationale for solving specific problems of imperial and consular dating by drastic emendation.^[698]

IV

In the final analysis it must be said that Mommsen’s edition benefited immeasurably from Krüger’s preparatory work which was acknow­ledged on the very title page (adsumpto apparatu P. Kruegeri) and at other appropriate points.^[699] Nevertheless, rather than reflect on what he owed to Mommsen (who had taken him on as a collaborator in his early twenties and set him on the path of his life’s work in philological jurisprudence), Krüger carried to his grave the bitter feeling that Mommsen had deprived him of his greatest achievement.^[700] For the decade after the appearance of Mommsen’s edition Krüger continued to leave aside his own work on the Code. Then he produced a series of critical essays on various aspects of the text without himself contemplating a new edition.^[701] On his retirement at Bonn, however, he directed his attention towards finalising a completely fresh edition and on 15 September 1921 signed a contract with Weidmann (Berlin) for a work ‘in the same Format and similar layout as the Codex Theodosianus likewise published by Weidmann’.^[702] By now too he was the same age Mommsen had been when editing the Code (his early eighties) but he was not as organised and had no collaborator on which

to draw. Further, he was plagued by increasing personal trauma and loss of memory but did manage to produce half of his edition in print: vol. 1 (Books 1-6) in 1923; vol. 2 (Books 7-8) in 1926.^[703] In all, it did not supersede Mommsen’s edition although it improved on it in some particulars.

In reviewing Mommsen’s edition Paul Maas concluded that ‘It was not granted the tireless ploughman to gaze on the crop. May it spring up soon and abundantly.’^[704] In general, it would appear that Maas’s expectation was not met. Now that we have a serviceable prosopography, however, things are on the move. Yet interest has shifted from textual and chronological problems to the individuality of jurists, the structure and compilation of the Code, as well as its ideology and socio-economic context.^[705] By the 1890s the sort of fundamental philological work embodied in Mommsen’s edition was urgently required for the Later Roman Empire. As he phrased it himself, ‘The dark transition between antiquity and modern history must be illustrated from both sides and science stands before it as engineers before a mountain tunnel....’^[706] By his own conception, therefore, within a few years Mommsen was busy advancing into the tunnel and soon extracted the lode of the Theodosian Code.

Unfortunately, he did not live to exploit this rich ore. He certainly would have liked to. In fact in his latter years he used to say that if he could have his time over again he would devote it entirely to the period from Diocletian to Justinian.^[707] None the less, all his scholarly life Mommsen had been intimately involved with the Theodosian Code because he was always thinking about it and engaged in solving the

10. Mommsen's Encounter with the Code 239 philological and historical questions it poses. He regarded his edition as simply the foundation on which future scholarship could build.^[708] Mommsen’s edition of the Code has been an invaluable contribution to late Roman studies and remains so.