Prof Timothy Kearley has written the first proper account of Scott’s life. Almost all of what Prof Kearley presents was either unknown, or known only to local historians of Hillsboro, Ohio, Scott’s home town. Scott’s life gives us the setting for his scholarship, and his scholarship includes not only the flawed Corpus Juris Civilis, but other, better received translations, such as Las Siete Partidas. There’s a lot to admire in Scott’s working life.

But not so much in his personal life. Just one example: he was a wealthy man, and he might have used his Last Will to remember the people who helped him. But something peculiar intervened: he was convinced that a certain professor of medicine — via a chance encounter — had cured his hay fever. He was so grateful that he left the bulk of his estate to his benefactor’s medical college. Too bad for poor, faithful Miss Rhoades. And his wife (but see below).

Scott's library was magnificent: over 4,200 titles, most of them on law and history. Prof Kearley discusses how the library reveals Scott's qualities and limitations as a scholar. But let's peel the onion ... 

Scott’s collection of what one might call Victorian gentleman’s erotica, which I didn’t mention in the article, as it seemed irrelevant and unfair, is quite interesting. Scott’s tastes here were what one might call catholic. Much of the collection is in French and ranges from titles such as “Venus dans la Cloitre,” and “Culte de Priape,” to most of the writings of the Marquis de Sade, as well as several works in the “Bibliotheque des Curieux” series — such as “Baisers d’Orient,” “Femmes et la Galaenteries,” and “Maison d’Amour et Filles de Joie.” He did not overlook the English, however, and the titles here include “A History of the Rod,” “Bygone Punishments,” “Phallicism,” and “Cuckoldiana.” There are many more, and in other languages, but I think that offers a representative sample. One cannot help but wonder if these books are connected at all to his unhappy marriage.

In Scott's defense, there's quite a bit of ancient Rome in A History of the Rod. I checked.

This article is part of a larger current. Some years ago Prof Kearley brought to the internet the work of Fred H. Blume (1875–1971), Justice of the Wyoming Supreme Court, and he has written on Blume’s translation of the Code and Novels. Blume’s translation of the Code will be published soon by the Cambridge University Press, edited by Bruce Frier and others. Clyde Pharr (1885–1972), another American Romanist, is the subject of an article by Linda Jones Hall in the 2012 number of Roman Legal Tradition. It’s a delight to see so much Roman law in America recovered.

What's wrong with Scott's Civil Law?

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Samuel Parsons Scott

When I came to this field I was given various warnings, sometimes to treat someone's work with caution, sometimes to  ignore him/her, and sometimes "to believe the opposite."  Maturity means doing none of these things too quickly.  I've consulted Scott's Civil Law a handful of times in my career, not frequently enough to judge its value as a whole.  But for this occasion I spent a little time with his translations of Digest texts I'm familiar with.  What I found were many translations that were perfectly fine, and a few that had gone badly wrong.  Unfortunately, "badly wrong" is a particularly damning misstep for a translator.  It's a hair in the reader's food: are there others?  And it doesn't take many badly-wrongs to hurt a translator's reputation.  In his defense, I doubt anyone has actually counted them (though no one has counted the stars either, and there appear to be quite a lot of them).  In any event, a single badly-wrong will illustrate the problem without condemning the translator out of hand.

The purchaser of a slave might insist on receiving certain guarantees as part of the purchase, and some of these guarantees were regulated by the edict of the curule aediles.  In Digest 21.2.31, Ulpian writes:

Si ita quis stipulanti spondeat "sanum esse, furem non esse, vispellionem non esse" et cetera, inutilis stipulatio quibusdam videtur, quia si quis est in hac causa, impossibile est quod promittitur, si non est, frustra est.  Sed ego puto verius hanc stipulationem "furem non esse, vispellionem non esse, sanum esse" utilem esse: hoc enim continere, quod interest horum quid esse vel horum quid non esse.  Sed et si cui horum fuerit adiectum "praestari," multo magis valere stipulationem: alioquin stipulatio quae ab aedilibus proponitur inutilis erit, quod utique nemo sanus probabit.

This is how I translate it:

If someone, in reply to a stipulator, promises that [a slave]:

is healthy,
is not a thief,
is not a corpse robber

et cetera, the stipulation in the view of some (quidam) is useless, because if the slave is in that condition, then what is promised is an impossibility, and if he is not in that condition, the stipulation is taken in vain.  But I think it is more accurate that that stipulation

is not a thief,
is not a corpse robber,
is healthy

is useful, for it conveys the point that it matters whether any of these conditions is or is not present.  But if, to any of these conditions, it were added "[the promisor] will be liable," the stipulation would be much stronger: on any other view, the stipulation set out by the aediles would be useless, and no sane person would ever approve it.  (Trans. Metzger.)

Many readers will remember that Alan Watson (Spirit of Roman Law, 86–87) criticised the pedantry in this text; the quidam who didn't think you could successfully guarantee against defects were blinded by foolish logic.  Ulpian condescends to explain why the stipulation is perfectly fine; no great powers are on display.

It's Ulpian's condescension that Scott misses, and with that, the entire text: 

Where anyone makes a promise to the stipulating party "That the slave is sound, is not a thief, is not a violator of graves, etc.," the stipulation seems to some authorities to be void, because if the slave is of this character what is promised is impossible, and if he is not, the promise is without effect. I think that the following stipulation is more correct, namely: "That the slave is not a thief, is not a violator of graves, and is sound," and this is in conformity with law, for it contains what it is for the interest of the purchaser of the slave to have and not to have. But if a guarantee is added to any of these statements the stipulation will be still more valid; otherwise the stipulation introduced by the Aediles will be void, because no rational man would approve of it. (Trans. Scott.)

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Monument at the grave of Scott and his wife

Scott is suggesting that the shortcomings of the first stipulation are cured by the second.  Yet the stipulations are identical, except for the order of items.  There is probably a reason, perhaps an interesting one, why Ulpian (or an editor) shuffled sanum esse to the end, but the re-ordered stipulation contributes nothing to Ulpian’s explanation.  The reader who relies on Scott will come away believing that a guarantee "healthy — not thief — not robber" is fatally illogical, but a guarantee "not thief — not robber — healthy" is valid and expresses the interests of the purchaser.  That reader will also have missed the pedantry, and the chance to compare jurists of very different ability.

The civil law bites back

Attentive readers will note with satisfaction that, despite Scott’s efforts to leave only a pittance to his wife, she was able to recover her Falcidian Fourth.  ("How can one’s heart not beat a little faster?," writes Bruce Frier.)  I've made a personal decision not to use this space to jeer at his translation of Digest 35.2, ad legem Falcidiam, since I'm afraid his ghost will come back and kill me, but if any readers think they can find some poetic justice there, I invite them to look and then leave a comment below.

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