CHARACTER AND TENDENCIES OF JURISPRUDENCE IN THE ARCHAIC PERIOD

(i)

As we have seen,¹ the jurists of the archaic period were hono­ratiores, coming from the most respected Roman families. This im­parted to their science a distinctive atmosphere, which was not dissipated till the end of the classical period.

¹ Above, p. 6 ff.

² Ennius, Hecloris Lytra (ed. Vahlen, p.

³ Schulz, 107 f.

⁴ Cic. Orat. 42. 144; Cicero himself does not fully accept this. Cf. Cic. Brutus, 89. 306, on Q. Mucius Scaevola: nemini se ad docendum dabat. Below, p. 57.

⁵ Imerius began as a teacher of grammar and logic: H. Kantorowicz, Z xxxi (1910), 37. decisions not on reasons given, but on the authority (auctoritas) of the jurists,¹ an authority which was outweighed only by an enactment of the comitia. It attached no binding force to previous decisions, particularly not to those of the indices, who were mere laymen. Thoroughly aristocratic, too, is the reluctance of the jurists to commit themselves in advance: their principle was to wait till the case occurred,^{[33] [34]} and to feel their way from case to case. Hence their distaste for legislation, which as far as possible was prevented from intruding on the domain of true ‘lawyer’s law’.^[35] Nor was custom, in the sense of Justinian and the ius com­mune, recognized.^{[36] [37]} Long observance did not endow a rule with an authority equal to that of statute. Great as was the importance attached to mos maiorum,³ it was only ‘well established custom’, not lightly to be abandoned, but never as binding as statute. Ab­stract general rules were not deduced from the responsa deciding individual cases; the formularies of acts in the law long remained open to modification; the instructions for the performance of legal acts^[38] remained arcana of the archives and could be varied to meet the occasion. All this shows a determination highly characteristic of an aristocratic regime to keep a firm hold on the development of the law.

Such are the characteristics which formed the soul of Roman jurisprudence. Our period is one of small beginnings, but ‘who dare despise the day of small things, if it has proved to be the dawn of mighty ones?’^[39]

(ii)

The most immediately noticeable feature of archaic Roman jurisprudence is^[40] what we call its actional formalism,^[41] by which

CHARACTER AND TENDENCIES OF JURISPRUDENCE 25 we mean its tendency to endow every act in the law with a definite form.¹

1. This tendency is observable in sacral, public,² and private law, and in the law of civil procedure, in fact throughout the law, but it has seldom been appreciated comprehensively, in its full ex­tension, because the vision of modern Romanists has been narrowed by their one-sided interest in the private law. Roman law is hardly less rich in forms than Germanic, as the latter is presented in Jacob Grimm’s Rechtsaltertumer.³ Its outstanding formality is the spoken word, but witnesses and ritual acts are also found in abun­dance. There is, however, one formality in which the Roman arsenal of forms is deficient, namely writing.⁴ Important legal acts were indeed recorded in writing as early as the sixth century b.c.,⁵ but the writing was purely evidential, the record of an already fully accomplished legal act ;⁶ at most the document might serve to simplify the spoken formula by being referred to in it as containing details.⁷ For international treaties also writing was not essential⁸ nor even for a lex rogata.⁹ A lex came into being as the result of an oral question and answer¹⁰ and of an announcement of the votes cast made by the presiding magistrate’s herald.¹¹ Thus official publication in writing was no more essential to a lex than was a document to the acts of private law during this period.

* Jhering, Geist, ii, s. 45 ff., 470 ff.: antiquated, but fundamental and never yet superseded. Also Mitteis, RP i, s. 15; Rabel, Z xxvii (1906), 290 ff.; xxviii (1907), 311 ff.; Kaser, Z lix (1939), 31 ff.; Buckland, Festschrift Koschaker, i (1939), 16 ff.

² There must have been forms for contracts between the State and individuals. But they were not the forms of private law, and we know little of them. Mommsen’s doctrine (Staatsr. i. 170 ff.; Schr. i. 358, iii. 139) that such contracts were formless is untenable. For the correct view see Jhering, Geist, ii. 518; Rabel, Z xxvii (1906), 329.

³ See Note A, p. 333.

⁴ The same appears to hold of Greek law in pre-Hellenistic times: Beauchet, Hist, du droit privd de la republique AthAiienne, iv. 16 ff.; Hasebroek, Hermes, Iviii (1923), 393 ff. The ‘literal contract’ (Gaius, 3.128) can hardly belong to our period.

⁵ Ed. Fraenkel, Rome, 7. ⁴ Mitteis, RP i. 294.

⁷ As in the testamentum per aes et libram, Gaius, 2. 104: ‘haec ita, ut in his tabulis cerisque scripta sunt, ita do ita lego ita tester.’ In the dedicatio of an altar reference might be made to the already existing statute of some other temple: Bruns, 106; ILS 112: ‘ceterae leges huic arae titulisque eaedem sunto quae sunt arae Dianae in Aventino.’ Similarly ILS 4907; Bruns, 107.

⁸ Cf. the formulary for the conclusion of a treaty by the Fetiales in Liv. 1. 24.6 f.: ‘ut ilia palam prima postrema ex illis tabulis cerave recitata sunt’; on this Heuss, Klio, xxvii (1934), 16, 250. Mommsen, Staatsr. i. 248, is. right and iii. 314 is wrong.

⁹ Ibid. iii. 314 is wrong.

¹⁰ The ballot was introduced only by a law of Papirius Carbo of 131 B.c.: ibid,

iii. 404. ¹¹ Ibid. iii. 413.

¹² Ibid. iii. 370;ScAr. iii. 293.

that the bill was read out to the assembly* and that the resolu­tion arrived at was framed by reference to the written project.

2. At Rome, as everywhere, actional formalism passed through three stages of development.⁴ In the earliest the jurists regarded the forms as what in fact they were, namely as creations of their own untrammelled cautelary science; at this stage the forms were plastic, adaptable, and capable of being added to. In the second stage the forms became petrified; the jurists felt that they ought not to be further altered; thus their canon became closed. In the third stage the forms were either simply disused or observed as an ancestral rigmarole to be gabbled with a smile; further develop­ment of the old forms ceased; in some cases new forms were de­liberately devised, in others formalism was abandoned. The first two stages fall within the archaic period, but our defective tra­dition affords only occasional glimpses of the development.

In its youth mancipatio was plastic and adaptable. It began as a form of conveyance by way of sale for cash, but the form was extended to conveyance by way of gift or security or in trust, by means of the insertion of appropriate words, the price becoming nominal inummus unus).^s Coemptio was mancipatio with a clause showing that the bride

¹ Mommsen, Staatsr.

² Leo, Gesch. d. rom. Lit. i. 24; but see above, p. 5, n. 4.

³ For example, the question at what moment a declaration becomes effective, or how mistakes and misunderstandings are to be treated.

⁴ On what follows see Kaser, Z lix (1939), 3r ff., 64.

⁵ Examples of mancipation donationis causa: Bruns, 136-40; Jidifiduciae causa: Bruns, 135; P. M. Meyer, Jurist. Papyri, 9; FIRA iii. 291 ff.

CHARACTER AND TENDENCIES OF JURISPRUDENCE 27 was not becoming the slave of the coemptionaior.¹ A normal manci­patio did not admit of the insertion of a condition; yet mancipatio for testamentary purposes was so framed that, though the familiae emptor became owner, he did so only on condition of his surviving the testator.² With these simple adaptations contrast the clumsy and artificial rituals of emancipation and adoption; here petrifaction has set in and the origination of new formulae has been abandoned.³ The process is car­ried a step farther when forms are applied, to alien purposes, without being suitably modified, with the result that the declarations of the parties are at variance with the facts. Thus, in spite of what he said, the familiae emptor of the mancipatory testament in its latest stage did not become owner, even if he fulfilled the condition of surviving the testator.⁴ Again, acceptilatio and solutio per aes et libram were formal acknowledgements of payment received; their employment, unaltered, as methods of release from obligation involved that the creditor acknow­ledged untruly that the obligation had been performed.⁵

A similar evolution occurred in sacral law. Petrifaction at­tacked the purely religious forms first. From early days the lan­guage of the hymns of the Arvai brethren and the Saliares was left unaltered, with the result that in the end not even the singers understood them;⁶ they are our oldest monuments of Latin.⁷ On the other hand, the language of the not purely religious for­mulae—of votum, consecratio, devotio, and evocatio—was con­tinuously modernized:⁸ later grammarians could discover no archaic Latin words in them. The formula of a votum 'Nas in no respect stereotyped, not even the word voveo being obligatory.’ The story that Scipio Africanus the younger altered the lustral oath may be apocryphal,¹⁰ but it shows at least that such an

* So, expressly, Gaius, 1. 123; cf. Kaser, 33 ff.

² Kaser, 49. Mancipatory will was unknown to the Twelve Tables, as Gaius, 2. ror, T02 clearly shows (initio... deinde). About the law of the times before the Twelve Tables Gaius could know nothing. See, on this question, Kunkel, s. 22, 3; Kubler, PW v A, 987, Leifer, Festschr. Koschaker, i. 239 ff.

³ Emancipatio: Gaius, 1. r32. Adoptio: Gaius, 1.134. Cf. Kaser, Z lix (1939), 34,64.

⁴ Gaius, 2. ro3·

^s Formula of an acceptilatio'. Gaius, 3. 169; cf. Rabel, Z xxvii (1906), 331; xxviii (T907), 374. Usage of the formula for release is already presupposed by the lex Aquilia, cap. 2 (Gaius, 3. 215; on the date of the lex see below, p. 30, n. 7). Cf. Mitteis, RP i. 263, n. 22; Solazzi, L’estinzione della obbligazione, 64, n. 3, combating Kniep on Gaius, 3. 215 (p. 561). Formula of a solutioper aes et libram·. Gaius, 3.174. Cf. Rabel, Z xxvii (1906), 333; xxviii (1907), 374; further literature is cited by Kunkel, s. 122. Usage of this formula for release is also old: Mitteis, RP i. 263.

⁶ Quint. Inst. 1. 6. 40. Marcus Aurelius, the model Saliaris, knew the traditional formulae by heart and needed no prompter: Vita M. Antonini (SHA), 4. 4.

⁷ Above, p. 75. ⁸ Below, p. 34.

⁹ See the formula of a votum of 191 B.c.: Liv. 36. 2. 3. Cf. Petron., Cena, 85, 86.

¹⁰ Vai. Max. 4. 1. 10; cf. Marx, Rhein. Mus. xxxix (1884), 65 ff. alteration was considered permissible. Changes of the ritual for the declaration of war by the Fetiales are mentioned by our tradition.¹

3. The legal importance of these forms was not always the same. All sprang from the natural instinct for form, from human delight in fine speech and significant gesture, reinforced by that straining after complete perspicuity which is characteristic of cautelary jurisprudence in all ages, even the present. But not every detail of these forms was essential so that if they were disregarded the act would be void. All the forms of ius publicum were probably only customary and not essential. In the sacral forms ancient magical beliefs naturally played a part, but even here not every detail was essential. The formula had to be spoken faultlessly, without slip or stutter, else the act would be void and have to be repeated,¹ for God (so it is believed) listens only to perfect utterance. The prac­tice therefore was to draw up the formula in advance, usually in writing, and either to read out the studied words {concepta verba)³ or to repeat them from a prompter. In principle a declarant was free to choose his own words, but naturally certain formulae be­came customary.⁴ An example of a non-essential is the clause 'according to my meaning’ or ‘intent’, which constantly occurs in sacral formulae,⁵ but in no others.⁶ Its purpose, like that of the clause qua de re agitur¹ in profane law, was clarification. Its omission left the act valid, but liable, in possible circumstances, to produce results not contemplated by the declarant. If Jephthah had inserted some such clause in his vow, he would not have been obliged to sacrifice his daughter.⁸ So with the formulae of private and procedural law: not every one of their concepta verba was

¹ Wissowa, 554. Changes in forms belonging to public law: Varro, De 1.1. 6. 95 (Bruns, ii. 60): ‘hoc nunc aliter fit atque ofim.’

² Wissowa, s. 61 (p. 397).

³ This is all that is meant by concepta verba: Voc. i. 864, 49 f.: Thes. 4. 55. 7 f.; Wissowa, 397; Ed. Norden, Aus altrom. Priesterbüchern, 91 ff.

♦ See above, p. 27, on votum. Wissowa, 397, is not satisfactorily expressed from the legal point of view.

³ See Note B, p. 333.

⁶ For God alone reads the heart. See Kritias in Fragmente der Vorsokratiker (Diels-Kranz), ii (1935), no. 88, B 25: ‘There is a God (8from Livy’s account of the reserva­tions it was deemed necessary to make in the vow of the ver sacrum of 217 b.c? In some cases juristic reasoning can be discerned behind formalistic interpretation. Thus, a vitiating noise occurring during a sacral act was innocuous if not heard by the celebrant; an unfavourable omen from birds might be ignored if not seen? As Cato the elder put it: 'What I do not notice does not hurt me.’⁴ This piece of formalism was taken so literally that it was applied even when precautions had been taken against seeing. For ex­ample, Hannibal’s opponent, M. Marcellus, himself an augur, had no scruple in declaring that, when he had decided to give battle, he had himself carried in a veiled litter, ne auspiciis impediretur.³ Especially to the layman this interpretation will appear highly archaic, but modem German courts have argued in precisely the same way in holding that the rule that an oral declaration is in­operative if not received by the addressee applies even where the addressee stops his ears or hangs up his telephone receiver.⁶

2. In private law interpretation was less strict? Formalism in

¹ In Gaius, 1. 119 the formula of tnandpaiio ends: ‘isque mihi emptus esto hoc aere aeneaque libra.’ If we had no other evidence, modem Romanists would un­doubtedly pronounce every bit of this formula to be essential. But for familiae mancipatio to a.familiae emptor Gaius, 2.104 reports: ‘ hoc aere, et ut quidam adiciunt, aeneaque libra esto mihi empta.’ Thus the words aeneaque libra were not essential —a warning against exaggerating formalism. How much of these formulae was essential we modems are naturally not in a position to say.

¹ Liv. 22. 10. 2 f. Cf. Hasenmuller, Rhein. Mus. xix (1864), 402 ff.; Appel, De Romanorum precationibus, 9; Wissowa, 410.

³ Wissowa, 441 ff., 531; Mommsen, Staatsr. i. 86; Wagenvoort, Glotta, xxvi (1938), 12 ff.

⁴ In his trenchant style he writes (Festus, 234 M; ed. Lindsay, 268; Jordan, 18.1): ‘Domi dum auspicamus,... servi ancillae si quis eorum sub centone crepuit, quod ego non sensi, nullum mihi vitium facit.’

⁵ Cic. De div. 2. 36. 77; cf. Plin. Hist. not. 28. 2. rr; Serv. Aen. 5. 530; 11. 2.

⁶ See the commentaries on s. 130 of the German Civil Code.

⁷ Jhering, Geist, ii, s. 44, 441 ff., though at times he sadly confuses evidence from the most various periods. On archaic interpretation: Roscoe Pound, Harvard LR xxi (1908), 383 ff.

interpretation seems to have passed through the same evolution as the forms themselves:¹ at first freedom, then servitude to the letter, and finally, from the Hellenistic period, return to compara­tive freedom.³

The ancient interpretation of the Twelve Tables was liberal. The rules of intestate succession (5. 4), and equally the law of assaults (iniuria,

8. 2), mentioned only males, but from the beginning females were held to be included.³ Again the words (5. 4) 'if a man dies intestate’ were justifiably held to cover not only the case where he had left no valid will, but also that where a valid will was rendered ineffective by the refusal of the heirs named by it to accept the inheritance.⁴ Other liberal interpretations of the archaic jurisprudence are that fundus in the Twelve Tables law of usucapio (6. 5) covered aedes* and that the penalty for cutting another’s trees (8. n) extended to cutting his vines, though the pleading must describe them as trees.⁶

Later jurisprudence, while keeping to such established interpre­tations of the Twelve Tables, interpreted subsequent leges very strictly. Thus, no one thought of extending the lex Aquilia, which certainly falls in our period,⁷ beyond the literal meaning of the words occidere, were, frangere, rumpere? Again, the lex Silia,⁹ when penalizing a magistrate who should falsify weights and measures, meticulously adds 'or procures their falsification’, which permits the inference that procuration would not have been in­cluded by interpretation. Again, if in contrast to the Twelve Tables, later leges constantly specify 'male or female’,¹⁰ it is a fair inference that interpretation would not have ventured to hold that ‘male’ implied 'female'.¹¹

(iv)

A remarkable feature of the old jurisprudence is its tendency to keep sacral and profane law apart: 'Fuit haec sapientia quondam,

¹ That the two kinds of formalism must be kept distinct was pointed out by Jhering, Geist, ii. 443. Mitteis’s ‘external’ and ‘internal’ formalism is not happy: RP i, s. 15.

² Above, p. 26. ³ See Note C, p. 333.

♦ Inst. 3. 1 pr. ³ Cic. Top. 4. 23; Gaius, 2. 42.

⁶ Gaius, 4. 11. Probably even in this period the interdict de glande legenda was not confined to acorns: Jhering, Geist, ii. 459. The liberal interpretation reported by Gaius, i. 165 probably also comes from the same period.

⁷ On its date: Pemice, Zur Lehre v. d. Sachbeschädigungen (1867), 17 ff.; Rotondi, Leges publicae, p. 241; Kunkel, s. 158; Jolowicz, Introduction, 285.

⁸Nor later; recourse was had to adiones in factum.

⁹Bruns, 3; Rotondi, Leges publicae, p. 473.

¹⁰ As early as the I. Aquilia (Bruns, 2) and the I. Cincia of 204 B.C. (Bruns, 5).

¹¹ See Note C, p. 333.

CHARACTER AND TENDENCIES OF JURISPRUDENCE 31 publica privatis secernere, sacra profanis’, says the well-informed Horace.¹

1. For infractions of sacral laws there were penalties, but no system of enforcing them. Deorum iniuriae dis curae: the saying comes to us from a later date, but by the mouth of a thorough Roman;² it was already a leading principle in archaic juris­prudence. Whether a duty of expiation piaculum) was observed or not was no concern of the priests. The pontifex maximus had indeed power to forbid the impius to visit the Roman temples, but we hear little of such prohibitions.³

It is no real exception that the pontifex maximus had a penal jurisdic­tion, extending to power to sentence to death, over the Vestals, whether this be a consequence of his quasi-fotestas or manus over them or a relic of the royal prerogative,⁴ or again that he could impose a fine (multae dictio) on iheflamines of his college and on the rex sacrorum. This was a matter of discipline, and there could be provocatio ad populum against his sentence.⁵

Nor did the magistrates employ the secular arm for the enforce­ment of sacral penalties. The censor might visit impiety in virtue of his regimen morum.^b A magistrate might impose a fine where breach of sacral law had aroused public indignation⁷—a question of police in matters of cult.⁸ But there was absolutely no parallel to the Attic prosecution for ungodliness (δίκη aoeßetaf).

2. If an act in profane law violated some sacral rule, it was not thereby rendered void. It was, in the stereotyped augural phrase, 'vicious',⁹ but just as vitiosa possessio was nevertheless possession, so a magistrate elected without, or with faulty, auspices, though vitio creatus,¹⁰ was none the less a magistrate.¹¹ Similarly, a manu­mission vindicta performed by the praetor on a dies nefastus was still a valid manumission.¹²

¹ Ars poet. 396. Cf. Schulz, 19.

² Tiberius, Tac. Ann. 1. 73. Wissowa, Arch. f. Religionswissensch. xxii (1923/4), 203.

³ Wissowa, 392 ff.; Mommsen, Staatsr. ii. 52; Strafr. 37.

⁴ For potestas: Mommsen, Staatsr. ii. 54; Strafr. 18; for manus: Wissowa, 509, n. 5, citing others; also Wissowa, Arch. f. Religionswissensch. xxii (1923/4), 201 ff.; for relic of royal power: Blumenthal, Rhein. Mus. NF Ixxxvii (1938), 270. See further: Weinstock, PW xix. 441; Münzer, Phil, xcii (1937), 47 ff., 199 ff.

⁵ Wissowa, 510 ff.; Mommsen,Staatsr. ii. 57 ff. See above, p. 6.

⁶ Ibid. ii. 378, n. 4, 381, n. 3.

⁷ Wissowa, 441, but the supposition of priestly multae is wrong; ib. 392, n. 7,

513, n. 1; Mommsen, Strafr. 36; Sehr. iii. 390. ⁸ Ibid. iii. 397 ff.

• Wissowa, 531. Also Hägerstrom, Das magistratische ius (above, p. 12, n. 1), 5 ff.

¹⁰ Liv. 8.15. 6523. 31.13.

¹¹ Expressly stated by Varro, De 1.1. 6. 30 (Bruns, ii. 55); cf. Mommsen, Staatsr. iii.

364. ¹² Varro, De 1.1. 6. 30.

(v)

A last characteristic of jurisprudence, especially in the sphere of private law, is a highly developed capacity for abstract generaliza­tion, in spite of a complete absence of definitions, statements of abstract principles, and systematic arrangement. Stipulatio, for example, may originally have had a limited field of application,¹ but there is no doubt that as early as the fourth century it was just as abstract and just as capable of embodying any kind of obliga­tion as in later days.² This implies that the abstract concept of an act undertaking obligation had already been reached. Simi­larly the extension of mancipatio from its original purpose of con­veyance on account of sale to conveyance on other accounts³ signifies that the concept of conveyance in the abstract had been achieved. Again, the abstract concept of release from obligation was implied, once the forms originally devised as solemn acknow­ledgements of receipt (acceptilatio, solutio per aes et libram) had come to be employed as forms of release without performance.⁴ Thus the native Roman talent for ratio is apparent already in this period.⁵

¹ Mitteis, RP i. 268; Weiss, PW ³³³ë, 2540 ff.; Luzzatto, Per uri ipotesi suite origini e la natura delle obbligazioni Romans (1934), 233 ff., 257. A. Segre, TAPhA Ixxiii (1942), p. xxxi.

² Proved by the new fragments of Gaius (Gaius, 4. 17a), Z liv (1934), 265 ff.; Bull. i, NS (1935), 585. Cf. Levy, Z liv (1934), 296 ff.; Arangio-Ruiz, Bull, ³ (1935), 6l2 ff.

³ Above, p. 26.

♦ Above, p. 27.

³ Ed. Fraenkel, Rome, 25.