Ill CHARACTER AND TENDENCIES OF ROMAN JURISPRUDENCE IN THE HELLENISTIC PERIOD

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In this period the leading jurists still came from the most esteemed and influential families. A detailed picture of their social position could only be obtained by tracing their interrelationships by mar­riage and adoption, their political associations and personal friend­ships.¹ We have no need to pursue the subject thus far; suffice it that our sources stress the fact that the leading jurists belonged to the class of clarissimi et amplissimi viri,¹ and leave us in no doubt as to their membership of the ruling classes and their consequent authority.

i. Jurisprudence was occupied not so much with the interpre­tation of the statutes or of books of authority, nor with the ex­position and discussion of the law, as with its advancement and development, whether by means of lex rogata, Edict, formula, or responsum.³ This was the tradition of the legal profession and the republican jurists were at pains to preserve it. One may claim that the wisdom of the Roman method of legal progress lay precisely in the fact that the lawyers had, in principle, authority to create and modify the law.⁴ This authority was used by them with the conscious purpose of defending the law from petrification and sterilization. For this purpose statutory legislation was used as little as possible,⁵ though naturally in some cases it was unavoid­able. It was required, for example, where the functions of State organs had to be regulated: thus the criminal procedure of the quaestiones and the use of the formula in litigation between cives were introduced by statute, as was appointment in certain cases of tutors by the praetor and tribunes Ifutela Atiliana).

¹ For this purpose see F. Münzer, Rom. Adelsparteim u. Adelsfamilien (1920), and Μ. Geizer, Die Nobilitäi der rom. Republik (1912).

² e.g. Cic. De or. 1. 45.198; 1. 55. 235; De leg. 1. 4.14; 1. 5.17.

³ On their forms see the previous chapter.

⁴Mommsen, Sehr. vii. 212. s Schulz, 6 ff.

CHARACTER AND TENDENCIES OF ROMAN JURISPRUDENCE 6l empty rhetorical,Towo?.’ Caesar’s scheme for a codification of the civil law^{[94] [95] was conceived in a thoroughly Hellenistic spirit, but it received no support from the lawyers and died with him on the Ides of March. But all this does not imply that customary law in the sense of Justinian and the ius commune was admitted.[96] Pre­vious decisions had no binding force. For all their traditionalism the jurists were determined to keep their hands free to preserve the law from becoming petrified. The Edict, which is the most characteristic product of the jurisprudence of the Hellenistic age,[97] provides the clearest proof of this. It was a method of legislation after the jurists’ own heart—a lex annua, to use their own expres­sion,[98] deliberately enacted for one year only and bearing on its face the stamp of work not yet finished and therefore to be re­sumed and completed. Equally characteristic is the fact that the lawyers did not move a finger to provide the public with a correct text of the existing statutes ;[99] we know of no published collection of statutes; no jurist troubled to establish a correct version of even the Twelve Tables.}

2. Jurisprudence remained authoritarian: responsa were brief and in principle disdained to give reasons,^[100] forming thus a com­plete contrast to the lengthy argumentation of a medieval consi­lium or a modem counsel’s opinion.

The short and accurate account given by the orator Crassus (Cic. De oral. 1.45.198) is worth quoting: 'whereas the Greek practice is that men of the lowest orders assist the advocates in their cases in return for a pittance,... in our State, on the contrary, men of the highest esteem and renown... having attained eminence by their talents, are thereby enabled to give legal advice which carries weight rather on account of their authoritative position than of their very talents.’ Also significant is a story told by the orator Antonins (Cic. De oral.

i. 56. 239). The pontifex maximus and jurisconsult P. Licinius Crassus had occasion to give an unfavourable opinion to a peasant who had consulted him in a case. The peasant went away sorrowful and, meeting the orator Galba, laid the case before him too. Galba held Crassus’ responsum to have been mistaken, and asked him how he could have so decided. Crassus replied that the law was unquestionably as he had stated, but, proving no match for Galba in the discussion, took refuge in auctoritas, claiming that his brother P. Mucius Scaevola and Sex. Aelius Paetus would have held precisely what he had. Again, Q. Mucius Scaevola, appearing as advocate in the famous causa Curiana, appealed expressly to the auctoritas of his father who, he said, had always been of the opinion he was now maintaining (Cic. Brut. 52.197). In letters to Trebatius Cicero caricatures the authoritarian juristic style. Thus (Adfam. 7.17): 'take the present opportunity of making friends with that famous and generous man [Julius Caesar]; if you miss it, you will never find another so good. This was also the opinion of Q.

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i. Thus far jurisprudence simply held to the tradition of the third century. But the importation of the dialectical method from Greece worked a far-reaching change.¹ To Plato this method meant, in a word, the study of kinds (genera and species). Kinds were to be known by distinction (differentia, Siaipeais) on the one hand and synthesis (συναγωγή, συνθ&ης) on the other.² This discernment of kinds was to lead on to the discovery of principles governing the kinds and explaining individual cases.³ The

¹ On what follows see especially the learned studies by La Pira: ‘La genesi del sistema nella giurisprudenza Romana, I. Problemi generali ’ (in Studi in onore di

F. Virgilii, 1935); ‘II. L’arte sistematrice’ {Bull, xlii, NS 1, 1934, 336 ff.); ‘III. Il metodo’ (SD i, 1935, 319 ff.); ‘IV. Il concetto di scienza’ (Bull, xliv, 1936,131).

² Plato, Sophistes, 253 d : το κατά γίνη Üèèð³³àâø. On this text see Julius Stenzel, Plato’s Method of Dialectic (transl. by D. J. Allan, 1940), pp. 96 ff.

³ Every work on Plato’s philosophy naturally describes his dialectic. Cf. Ed. Zeller, Die Philosophic d. Griechen, ii. 1 (ed. 5, 1922, a mere reprint of ed.

CHARACTER AND TENDENCIES OF ROMAN JURISPRUDENCE 63 method, which had brought the Academic school good repute and evil,¹ was also practised in the Aristotelian⁴ and Stoic schools.³ It was, of course, well known to the leading Roman lawyers, re­gardless of the particular philosophic school they individually followed. M’. Manilius, Q. Mucius Scaevola augur, P. Rutilius Rufus, Q. Aelius Tubero, and Q. Mucius Scaevola pontifex all be­longed to the circle of the younger Scipio and Panaetius.⁴ Q. Mucius Scaevola pontifex naturally.passed the method on to his pupils: only philosophical studies can be referred to when Lucilius Balbus is called doctus et eruditus.⁵ Servius’ education was the same as Cicero’s, and his vigorous application of the dialectical method is praised by Cicero.⁶ Similar knowledge of the method must be presumed in other leading lawyers from the second half of the second century onwards. If they did not make its acquaint­ance by philosophy, they certainly did so by their studies in mathematics, rhetoric,⁷ and grammar, for in all these branches of knowledge they met the same dialectic method. Especially grammatical studies provided them with models showing how to reduce to a system an extensive and unwieldy material.⁸

2. The adoption of dialectic by jurisprudence thus led to a systematic study of legal genera and species.® The technical name for such distinctions had been since Aristotle buupeats ;¹⁰ in Latin it was divisio, distinctio, or differentia; in the medieval Bolognese school the designation distinctio became technical.¹¹

406 ff.; Mutschmann, Divisiones quae vulgo dicuntur Aristoteleae (ed. Teubner, 1906), praef. p. vii. Theiler, Die Vorbereitung des Neuplatonismus (1930), 4 ff. The method is brilliantly illustrated by Aristotle’s Poetica, Politica, and Historia animalium.

¹ See the mocking line of the comic poet Epicrates in Athenaeus, 2, 59of other objects, formulated for the latter the principle that a husband is responsible for damage caused by himself intentionally or through negligence. Whether Servius was the first to formulate this abstract principle we do not know. P. Mucius was content simply to decide the actual case; of course the principle was implicit in his decision (D. 24. 3. 66. pr.).³

Another instructive example is furnished by the evolution of the principles governing furtum usus. A man borrowed a horse to ride from Rome to Aricia, but rode through Aricia up the hill beyond. He was held liable for furtum. Thus far Valerius Maximus (8. 2. 4), we know not from what source. Gellius (6.15) adds an extract from Labeo on the Twelve Tables which seems to show (the text is corrupt) that in the second century Brutus advanced but one step beyond the reported case, laying down that in general one who borrowed a horse was guilty of theft if he took it elsewhere or farther than he had stated when borrowing it. Q. Mucius’ formulation, also reported by Labeo, is far more abstract: he makes the principle extend to depositum as well as commodatum, and for horse substitutes res in general. He was feeling his way to the general category, furtum usus, but had not yet got beyond two of its species. A complete formulation would be: 'furtum fit si quis usum alienae rei in suum lucrum convertat’.¹

The technical Greek name for such principles is opot^{[102] [103] or «avoves,[104] [105] [106] the Latin definitiones or regulae the importation of dialectic into jurisprudence thus led to the composition of regulae iuris.s There were certainly many republican principles or regulae, but once again our materials do not permit us to draw an exact line between republican and classical regulae, because the classical writers repeated many formulations of republican jurisprudence without marking them off from their own ;[107] and even where they cite republican authority, it is possible that instinctively they gave what they borrowed a more abstract form than had republican jurisprudence, which often was content simply to decide the concrete case laid before it.}

The republican search for principles has been designated ‘ regular jurisprudence’,^[108] an unhappy expression, based on insufficient comprehension of the method in question. Since regula means simply principle, any and every search for principles ought to be described as ‘regular jurisprudence’, which would be absurd. Further, the expression leads to regula being taken as designating a short maxim in the style of the rules of school grammar. Among the Roman principles we certainly do find sjhort proverbial formu-

lations, but the term regula or definitio was not confined to such as these.¹ True Sabinus (D. 50.17.1) says: ‘regula est quae rem breviter enarrat...* per regulam igitur brevis rerum narratio traditur’, but then, in comparison with the statement of the facts of a particular case, every principle is brevis. Lastly, the expression ‘ regular jurisprudence ’ emphasizes only the search for principles and ignores the preceding διαίρεσις. It ought therefore to be abandoned in favour of the expression ‘dialectical jurisprudence’.

4. In the formulation of definitions in the ordinary sense of the term (likewise covered by opoy, definitio, regula) republican juris­prudence was decidedly backward, and even in classical juris­prudence, though it inherited many a definition from the earlier age, quite a number of fundamental legal conceptions are still left without a definition—for example, actio, dominium, possessio, servitus, pignus, obligatio, contractus, delictum, heres, legatum, dos, and so on.³ In the last century of the Republic dialectical jurisprudence was still in its infancy and the definition of funda­mental conceptions was beyond its capacity. Here and there we find traces of the Hellenistic theory of language.⁴ The Stoic doctrine, accepted by other schools also, was that words possess a natural meaning, in which they ought to be used. That meaning is given by etymology. Hence we find the republican jurists apply­ing etymological analysis to legal terms, though their common sense saved them from straying far on this false trail. Many examples might be cited.’

5.The importation of dialectic was a matter of extreme sig­nificance in the history of Roman jurisprudence and therefore of jurisprudence generally.⁶ It introduced Roman jurisprudence into the circle of the Hellenistic professional sciences and turned it into a science in the sense in which that term is used by Plato and Aristotle no less than by Kant. It is only systematic research

¹ One has only to look at Gaius, 1. 83-5; 2. 68, 78, 114; 3. 142.

² Reminiscent of Cic. De or. 1. 42. 189 and Aristot. Top. 7. 5. 154*31.

³ Schulz, 43 ff.

⁴ Gell. 10. 4; Augustinus, De dialectica (ed. A. Wilmanns, De Μ. Terentii Varronis

libris grammaticis (1864), 141 ff.); Orig. Contra Celsum, x. 24. Cf. Steinthal, Gesch. d. Sprackteissensch. bei d. Griechen und Romern (1863), 39 ff., 312 ff.; Ludwig Stein, Die Erkenntnistheorie der Stoa (Berliner St. f. klass. Philol. u. Archäologie, vii. 1 (1888)), 76 ff.; Zeller, Philos. d. Griechen, ii. 1. 629 ff.; H. Dahlmann, ‘Varro u. d. hellenistische Sprachtheorie ’, Problemata, v (1932), 4 ff.; O. Rieth, Problemata, ix (1933), 36 ff.; Reitzenstein, PW vi. 807 ff.; Luigi Ceci, La lingua del diritto Romano, 1, Le etimologie dei giureconsulti Romani (1892; not continued). There is no satisfactory modern exposition. ’ See Note L, p. 336.

⁶ Not sufficiently noticed by historians of Roman jurisprudence and entirely ignored by historians of philosophy. and organized knowledge that can properly be so called,¹ and these are attainable only by the dialectical method.^{[109] [110]} It was only through dialectic that Roman jurisprudence became fully logical, achieved unity and cognoscibility, reached its full stature, and developed its refinement. Not only does dialectic subsume indi­vidual phenomena under their genera; it is also an instrument of discovery, suggesting, when applied to jurisprudence, problems which have not actually occurred in practice.^[111] But, as Plato saw, dialectic is a method easy to describe but difficult to em­ploy:^[112] as might be expected, a critical examination of the republican dialectical jurisprudence reveals shortcomings and defects.^[113] The fact, however, remains that the importation of the dialectical method transformed Roman jurisprudence into a systematic science, and was therefore of incomparable importance in the history of legal science. Here, if anywhere, Plato’s en­thusiastic laudation of the dialectical method^[114] is seen to be fully justified: for Roman jurisprudence it proved to be verily the fire of Prometheus.

6. It remains to consider what Cicero has to tell us of this memorable development. His philosophical studies had made him acquainted with the dialectical method,^[115] and his personal relations with the jurisconsults had made him aware that it had been imported into their science. He extols his friend Servius as the first and only representative of dialectical jurisprudence, hailing him, with evident reference to the passage in Plato’s Philebus cited above, as the new Prometheus, the bringer of the

heavenly light of dialectic into the murky world of law. This, however, was a gross exaggeration.¹ Cicero was too much biased in favour of his friend to realize that dialectic had already been employed by Q. Mucius and even earlier, and that Servius stood by no means alone. He also failed to perceive that the jurists, Servius included, were far more cautious in their employment of the new method than he chose to imagine. But on the whole his appreciation and description of the development is correct enough. Insufficient use has been made by scholars of the passage in which he contrasts the rule-of-thumb knowledge of law acquired by Q. Scaevola and others in the course of mere practice with the true science to which Servius had attained by the systematic applica­tion of the dialectical method.² And it is in similar terms that he represents the orator Crassus as expounding a plan for the dialec­tical presentation of the ius civile,³ though whether Crassus ever conceived or intended to execute such a plan is doubtful. It is certainly the plan which Cicero, in his lost work De iure civili in artem (i.e. to a dialectical system) redigendo, once more pro­pounded and perhaps carried out.⁴ Dialectic was to be applied to jurisprudence. But Cicero’s conception of the task was im­mature and inadequate. What he aimed at was a short, hard-and­fast system, built up out of elementary distinctions, definitions, and principles. What the jurists aimed at was the very reverse: it was, by a systematic application of the dialectical method, to master the evergrowing multiplicity of the concrete cases, an eternal dialectical research, an ' open system ’. The real value of the Promethean fire was better understood by the professional lawyers than by the 'philosopher' Cicero.

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Although, in the manner we have described, Roman jurispru­dence took on the character of a true science, it remained never­theless in the hands of Roman priests, senators, magistrates, and lawyers, of men, that is, immersed in practical politics and law. This produced a clear separation of jurisprudence from other sciences.

1. Although a number of the leading lawyers drank deep of the well of Greek philosophy,⁵ a philosophy of law was not developed, ’ Cf. Di Marzo, Bull, xlv (1938), 261.

* See Note M, p. 336.

³ See Note N, p. 337.

⁴ Cf. Schanz-Hosius, i, s. 171. 6. On what follows see Cic. De leg. 1. 4. 14 ff.

⁵ Above, p. 63. and philosophy stopped at the frontiers of Roman law.¹ This was in keeping with the Hellenistic tendency to division of labour and specialization of the professional sciences. It was equally in keeping with the thorough Romanism of the lawyers, their sturdy, sober sense of realities and their predilection for an intelligible and clearly defined task. The nature of justice, a central problem in Greek philosophy, they do not discuss. About Natural Law, with which generations of Greek thinkers had occupied themselves, the republican jurists have not a word to say. They certainly drew on Natural Law, but, in Aristotle’s terminology, this was relative Natural Law (vaei ZIkomv Kaff viroOcmv), not absolute (dwXais SIkomw),^{[116] [117]} and they did this unconsciously, or at least without reflection, and certainly without saying or writing a word on the subject. Speculation as to the ideal State and the ideal law there was none, not that the jurists were narrow positivists,^[118] interested only in actually existing law—on the contrary, as has been shown above,^{[119] [120]} they were active in developing the law—but that the concrete problems of life, not far-reaching speculations, were what occupied their attention. Nor did they touch on questions of methodology, such as the theory of the interpretation of statutes, although invited to do so by Greek literature.³ They held equally aloof from legal history, where there were no Greek models.^[121] They displayed no interest in comparative law, in which subject an impressive beginning had been made by Aristotle and his school ;^[122] foreign law lay clearly outside the practical scope of the jurisconsults, and they seem to have given no responsa on pere­grine law. Lastly we never find them treating law from the sociological point of view, although here too the Greek contribution was worthy of attention.^[123] They never attempted a description of Roman constitutional law, in the manner of Aristotle’s ZZbXireid

71 ’Αθηναίων, nor a discussion of the Roman constitution, in the style of Polybius. They stood too near these things and were too deeply immersed in political life and legal practice to be able to view their own institutions as matters of purely intellectual interest or to raise questions about their nature and justification. The Greek philosophers from the time of Aristotle, on the other hand, had stood aloof from politics and legal practice,¹ and viewing them with the eyes of strangers saw things which the natives over­looked.

The contrast is well illustrated by a question raised in Aristotle’s Problemata:¹ ‘Why do many legal systems prefer intestate to testa­mentary succession ? Perhaps because family relationships cannot be falsified, whereas experience shows that testaments often are.’ An interesting sociological question, but how remote is the author from the practice of Greek lawl It never occurred to any Roman jurist to raise the converse question: Why does Roman law give preference to testa­ments and treat intestacy as a last resort, to be avoided by all possible means? We are reminded that Aristotle was the non-Athenian in Athens, the stronghold of Macedonian influence in what had formerly been the leading city of the Attic empire.³ He sees things with the eye of the explorer and does not even dare to interrogate the natives, whereas the Roman jurists were at home and their approach to the law was that of men actively engaged in national affairs.

2. The attitude of the orators to these questions was funda­mentally different. Some of them possessed a certain stock of legal knowledge, but they did not belong to the circle of the iuris- consulti⁴ Having acquired the art of advocacy entirely from Greek teachers and manuals, they were more deeply hellenized than the jurisconsults, and adapted their Greek models to native Roman conditions only very superficially. In particular, they took over from Greek rhetoric certain τόποι: the contrasts of ius naturae and ius civile, of ius gentium and ius civile, of ius scriptum and non scriptum, of lex and mos as manifestations of ius, and of ius and aequitas. All these importations from Greece were turned to practical use by the Roman advocates, but were remote from Roman law and jurisprudence. Many scholars have been misled by the Roman toga in which these conceptions are clothed into accepting the utterances of the advocates as revealing Roman jurisprudence, just as, not so long ago, every legal allusion in

¹ This Hellenistic tendency has already been mentioned above, p. 43.

² Probl. 950. 6.

³ W. Jaeger, Aristoteles, 333 (Engl. ed. 313).

⁴ Above, p. 43 f.

Plautus used to be exploited as illustrating Roman law.¹ But the republican jurists took no interest whatever in the Greek con­ceptions we have mentioned; these penetrated into Roman juris­prudence only in classical and post-classical times. Still more remote from Roman jurisprudence is legal philosophy of the kind exhibited by Cicero in his De re publica and De legibus, works which are nothing more than offshoots of Greek legal philosophy. On close analysis they throw no light on Roman jurisprudence.^{[124] [125]}

lustitia. The definitions given by the Auct. ad Herennium and Cicero are simply copied from the Greeks.^[126]

Ius naturae and ius civile. The former term translates pwret, Sticaiov ■ and the latter v6p,a> or ¹equivalent to Roman ius privatum, in contrast to ius publicum which denoted the law respecting the res publica, including that of its relations with cives. This is the only sense in which ius civile is used by the republican lawyers. Q. Mucius’ Libri iuris civilis were confined to private law, including praetorian law which could not be entirely segregated and in the time of Mucius had no literature of its own. The contents of Cato’s Commentarii iuris civilis and of M. Junius Brutus’ Libri de iure civili were similar. Thus Cicero’s usage of ius civile is quite alien to that of the lawyers; nor is it uniform, because he writes now as a Roman and now as a translator of Greek terms. It is some time since scholars have been converted to distinguishing in Plautus what is truly Plautine and what is merely copied from his Greek models,^{[127] [128] and we must apply the same distinction to Cicero.3 In this chapter, therefore, we need not discuss the ius naturae: it is not mentioned by the republican lawyers, and Cicero’s speculations on the subject ought to be treated as an offshoot of Greek theories.[129]}

73 Ius gentium and ius civile.¹ These are respectively translations of Kowov δίκαιον (an occasional substitute is ius commune or ius commune gentium) and πολιτικόν or ίδιον δίκαιον.² The Greek distinction is between law obtaining among all peoples and law obtaining only in 'a given State. But the Greek discussion of these terms did not arrive at precision. The republican lawyers nowhere employ the distinction, it being useless for their purposes. Even in classical legal literature the term ius gentium does not occur before Gaius. In lay literature it occurs for the first time in Cicero. It is not found in Plautus, and that it was used in a speech by Cato Censorinus is not proved by Gellius’ (6. 3) report, which is only a summary and does not pretend to reproduce Cato’s language. Nor does it follow from a well-known passage of Cicero {De off. 3.17.69) that ‘our ancestors’ had used the term.³ It is sheer fantasy to hold that by ius gentium the republican lawyers ever denoted those parts of Roman law which were applicable to pere­grini as well as cives.⁴ If a contract of sale made between two Greeks, or between a Greek and a Roman, came before the Roman praetor, the praetor applied the Roman law of sale, but the republican lawyers never in consequence described that law as being ius gentium. The expression, it may be noted, is coined on the analogy of familiar phrases like ubigentium (where in the world?) and nusquam gentium (nowhere in the world).

Ius scriptum and non scriptum. This simply reproduces the dis­tinction νόμος γίγραμμένος and νόμος άγραφος.³ Here too the Greek meaning vacillates. Since νόμος includes also the rules of social and personal morality and of religion, these were the first rules suggested by the term νόμος άγραφος as not having been originated by statutes and being independent of reduction to writing.⁶ The distinction is one which might well provide the orator with an occasional purple patch,⁷ but how could it serve the lawyer ? Statutes being few, Roman

¹ For the evidence see: Nettleship, Joum. of Philol. xiii (1885), 169 ff.; Thes. vi, i860, 68 f.; Costa, Cicerone giureconsuUo, i. 25 ff. For the older literature, see Weiss, PW x. 1218. Cf. Bruns-Lenel, 330 ff.; Bogli, Beitr. z. Lehre vom ius gentium d. Romer (1913), with Beseler, Bert. Phil. Woch. 1913,1647; Schonbauer, Z xlix (1929), 383 ff.; Beseler, Bull, xxxix (1931), 334 ff.; Frezza, Riv. it. viii (N.S. viii, 1933), pt. 2, no. 3 f.; Kaser, Z lix (1939), 67 ff.; Lauria, Festschr. Koschaker, i (1939), 258 ff.

² Aristot. Rhet. i368^b7 and 1373b.

³ As, for example, P. Krüger, 45, wrongly says. Moreover the words itaque... debet are interpolated: Beseler, op. cit. The term is equally absent from the Auct. ad Herenn., where instead we find ius commune (2. 10. 14; cf. Cic. Verr. i. 4. 13); ius commune gentium: Cic. De harusp. 14. 32.

⁴ e.g. Mitteis, RP i. 62; Kunkel, s. 34,4.

³ R. Hirzel, Agraphos Nomos (1900); Pemice, Z xxii (1901), 82 ff.; Ehrenberg, Arch.f. Gesch. d. Philos, xxxv (NF xxviii, 1923), 125 ff.

⁶ See Diog. Laert. 3. 86 and Mutschmann (above, p. 62, n. 3), p. 10.

⁷ e.g. Cic. p. Milone, 4. 10: * haec, iudices, non scripta, sed nata lex, quam non didicimus, accepimus, legimus, verum ex natura ipsa adripuimus, hausimus, expres­simus, ad quam non docti, sed facti, non instituti, sed imbuti sumus.’ Cf. Auct. ad Herenn. 4. 24.

law consisted very largely of law which had not been reduced to the written form of statute, but what object could a lawyer have in drawing a line between statutory and non-statutory law, when the two were inseparably interlocked? Moreover, the Edicts, though distinct from the statutes, were equally law definitely formulated by the State. Thus’ the republican jurisconsults never mention the distinction and have no special term with which to denote law not formulated in statute. Com­binations such as lex iusque¹ must be taken in the same way as patres conscripti, where conscripti is the wider term and includes patres (the patricians). We read in one place that the republicans used the term ius civile in a restricted sense to denote the private law evolved by juris­prudence, but the source is untrustworthy, and closer examination shows it to be post-classical.²

Leges et mores as constituents of ius. So the Roman orators translated ήθη km νόμοι,³ subsuming both terms under ius. All that the orators meant was that a legal rule (ius) could be proved either from statute or from custom. The jurisconsults certainly admitted the auctoritas of mores maiorum, but they made no use of the distinction leges-mores because they did not admit Roman customary law.⁴

Ius ot lex and aequitas.³ According to Aristotle,⁶ equity (em- ’ Auct. ad Herenn. 1.2,2;

2. 12. 18; 3. 3. 4; Livy, 1. 19. 1; rather less openly Cic. Brut. 2. 7: ‘bene moratae et bene constitutae civitatis’ (i.e. bonis moribus et bonis legibus constitutae civitatis). See further Mommsen, Staatsr. iii. 692, n. 1; Schr. v. 535, n. 2. * Above, p. 61.

³ Kipp, PW i. 598; Costa, Cicerone giureconsulto, i. 29 ff.; Beseler, St. Riccobono,

i. 287 ff.; Albertario, Studi, v. 107; Lanfranchi, Il diritto nei retori Romani (1938), 96 ff., with the literature. ⁶ Eth. Nic. 1137*31 ff.; Rket. 1374*27 ff.

⁷ Cic. De or. 1. 57. 244: ‘pueri apud magistros exercentur omnes, cum... alias scriptum alias aequitatem defendere docentur’; 1. 56. 240: ‘multaque pro aequitate contra ius dicere ’; De off. 3.16. 67: ‘ ius Crassus arguebat... aequitatem Antonius. ’

75 ality of their terms may render them unsuitable in particular cases. But the problem raised for them as practising lawyers was always simply this: is it possible to meet the given case either by interpretation of the statute or by propounding an actio or an exceptio ? A negative responsum rendered further discussion useless, because the amendment of statutes is no part of a practising lawyer’s business, while an affirma­tive responsum purported to lay down what was the law (t'ws), not to correct the law by equity (aequitas).' For them the problem was always the same: what redress ? In their search for its solution Aris­totle’s appeal to the hypothetical intention of the legislator could only be misleading. It would have seemed to them farcical to rack their brains as to what the authors of the Twelve Tables would have laid down had they been called on to advise on the case in hand. Once again we perceive that Aristotle was a student, remote from legal practice and its real problems. In republican legal phraseology the noun aequitas does not occur; aequum est means nothing else than iustum est or ita ius est\ the term iustum is avoided as being too emotional. In translating the standing clause in senatus consulta—Senatus aequum censuit¹—the Roman chancery rendered aequum by δίκαιον? When a jurist in a responsum declares aequum est, he means no more than that such is the law and that any other decision would be against the law.^[130] The distinctions we have been examining were too vague to be kept clearly separate; in both Greek and Roman sources they are entangled one with the other and lack individuality. They served the Greek philosophers well enough in sociological discussions; for the rhetoricians they were just τόποι to be enlarged on according to accepted methods. Modem attempts to extract clear and uniform legal conceptions from Cicero’s disquisitions were, therefore, foredoomed to failure.^[131] The sure instinct of the republican jurists closed the door of jurisprudence to this medley of ideas.

(iv)

In our present period the formalism which we have already de­scribed as characterizing the archaic^[132] period was sensibly moderated.

1. In principle acts in the law still remained formal.¹ The old forms lost vitality, but were piously preserved. The archaic forms of the legis actiones were, after the lex Aebutia, gradually superseded by the more flexible formula,² but acts in private law—contracts, testaments—remained, as before, in principle formal, and oral formalities continued to be preferred to writing,³ the document remaining purely evidential, except in the case of the literal contract.⁴ But by the side of the formal acts there now gradually appeared the formless contracts—the consensual and real contracts and the so-called praetorian pacts, all of which are creations of jurisprudence collaborating with the praetor.⁵

2. Formalism in interpretation was likewise relaxed.⁶ Roman rhetoric adopted the Greek τόπο? of verba {scriptum) against voluntas {mens, aequitas) ;⁷ even schoolboys were taught, as a rhetorical exercise, to argue for and against the literal interpreta­tion of a statute, contract, or will.⁸ On this as on other topics rhetoric taught one to take either side indifferently⁹ {disputatio in utramque partem, δισσοί λόχοι).¹⁰ The question of law, namely which of the two interpretations, the literal or the equitable, ought to prevail, was simply outside the province of rhetoric. An advocate either accepted the view recommended by a juris­consult¹¹ or adopted that which best suited his client’s interest.¹³ Rhetoric is a theory of advocacy, not of law; it arms its pupils against every eventuality, and thus equally to defend or to attack literal interpretation. It may be that rhetoricians were mostly

’ Actional formalism, as we have called it above, p. 24.

’ Schulz, 93. ³ Above, p. 25.

⁴ Gaius, 3.128. ⁵ Above, p. 50 f.

⁶ On what follows see J. Stroux, Summum ius summa iniuria (n.d.); Himmel­schein, Symb. Frib. 373 ff.; Albertario, Studi, v. 91 ff.; Levy, Z xlviii (1928), 668 ff.; Maschi, Studi sull' interpretazione dei legati. Verba et Voluntas (1938); Lanfranchi, Il diritto nei retori Romani (1938), 65 ff., 134 ff. Stroux is correctly judged by Beseler, St. Riccobono, i. 288; Bull, xlv (1938), 172,189, n. 21 (‘ Strouxische Wahnvorstellung ’); Schulz, 130.

⁷ Hennagoras (about 150 b.c.) cited by Quint., Inst. 3. 6.61; Auct. ad Herenn.

2. 9. 13 f.; Cic. De inv. i. 38. 68 ff., 2. 40. 116 ff.

⁸ Cic. De or. i. 57. 244 (above, p. 74, n. 7).

• Cicero (above, p. 74, n. 7) says this expressly—‘alias scriptum alias aequitatem defendere docentur*.

¹⁰ Diels-Kranz, Fragtnente der Vorsokratiker, ii (1935), 405; Diog. Laert. 9. 51, Protagoras  6 (Diels, Doxograph. 266): Ïparr os Ιφη δύο Amyous «Üø παντός πράγματος αντιλεγομένους dAAijAou; Cic. De fin. 5.4. io: ‘Ab Aristotele principe de singulis rebus in utramque partem dicendi exercitatio est instituta’; Orator, 14. 16*. ‘unde omnis in utramque partem traheretur oratio.’ Cf. A. Levi, ‘On Twofold Statements’ (δισσοί AcSyoi), Am. Joum. of Phil. Ixi (1940), 292.

¹¹ Above, p. 55. ¹³ Above, p. 54 f.

77 opposed to literalness, but that was due not to rhetoric but to Hellenistic individualism. If it suited his client, a rhetorician was equally ready to plead for the letter of the law. What other pur­pose was served by the above-mentioned school exercises ? Hence an orator makes no scruple ' eadem de re alias aliud defendere The result was that the Roman jurists found nothing worth learn­ing in rhetoric. They were not interested in how best to argue for or against the letter, which is a rhetorical question, but in the legal question how far it might be right and proper to depart from the letter. These discussions in the schools and in the law courts certainly kept the problem of interpretation ever before the eyes of the jurisconsults. That much must be admitted, but no more. The jurisconsults were thus forced to define their own position. Now what was that position ? The materials for forming a judg­ment on the republican period have not yet been subjected to a comprehensive critical examination, but it is not too early to fore­cast the probable result of such an examination.

(à) Our evidence as to the republican interpretation of leges is very slender. The painfully scrupulous style of the leges rogatae? the growing practice of hedging every clause with safeguards,³ may well suggest the inference that juristic interpretation was growing ever less flexible and more meticulous; but this inference is, of course, not maintainable. Still, the interpretation of the lex Aquilia does betray a clinging to the letter: thus occidere, in the first chapter, was not taken to cover every case of causam mortis praestaref and the difficulty was overcome not by adopt­ing a more elastic interpretation, but by means of actions ‘ on the case’ (actiones in factum), proposed, of course, by the jurists and accepted by the praetor.

(á) In interpreting the Edict the jurists felt somewhat freer, but here too our evidence is slight.

Thus, the edictal phrase ' Quod vi aut clam factum est ’ (Lenel, Ed. s. 256) is interpreted by Mucius {D. 43. 24.5. 8) as covering ‘quod tu fecisti aut tuorum quis aut tuo iussu factum est ’—free interpretation, to judge by the meticulous detail of the I. Silia de ponderibus (Bruns, no. 23), though suggested by the very formulation of the Edict. Again, to the question (D. 43.24.1.5) ‘ quid sit “ vi factum ” vel" clam factum ” ’, Mucius answers: * vi factum videri... si quis contra quam prohiberetur fecerit ’, which is a ‘ principle ’ in the true Mucian style described above. The Edict 'Ex quibus causis maiores’ (Lenel, Ed. s. 44) has the clause:

¹ Thus the orator Antonius in Cic. De or. 2. 7. 30. ³ Above, p. 30.

³ Below, p. 96. ' ⁴ Ofilius, D. (9. 2) 9. 3. 'sive cui per magistratus sine dolo malo ipsius actio exempta esse dicetur’ (D. 4.6.26.4); on this we read“ per magistratus autem factum ” ita accipiendum est, si ius non dixit; alioquin si causa cognita denega­verit actionem, restitutio cessat; et ita Servio videtur. ’ On the Edict ‘ Ne quis eum qui in ius vocabitur vi eximat ’ (Lenel, Ed. s. 12) we read (D. 2.7.1.2): ‘ Ofilius putat locum huic edicto non esse, si persona, quae in ius vocari non potuit, exempta est, veluti parens et patronus.’ Note also the free interpretation of restituere in the actiones arbitrariae.¹

(c) We know rather more of the republican interpretation of acts in private law, but here our materials have been in part falsified, because strictness of interpretation had become intolerable to the Byzantine compilers. Confining oneself to undeniably authentic texts² one arrives at the following principle:³ if a clear meaning can be obtained by taking the expressions used in the sense of common speech, this meaning must be accepted, even if it in no way corresponds to the intention of the party using them. Recti­fication of expressions used was resorted to only with the utmost caution. The maxim falsa demonstratio adiecta non nocet was still under debate at the end of the Republic, and the doctrines of mis­take were in their infancy. A man was protected against his own words only when they had been uttered under duress or owing to fraud;⁺ in the second century even this much relief had been un­known.

A few specially clear illustrations may be given. A testator institutes Titius as heres, with the requirement that he shall make formal accept­ance (cretio) of the hereditas within 100 days; if he fails to do this, Maevius is to be heres, but the testator omits to declare Titius exheres in that event. Titius accepts the hereditas, but without cretio. This lets Maevius in, but with the result that the hereditas is divided equally between him and Titius. This literal interpretation, which obviously defeats the testator’s intention, was not abandoned till a constitution of M. Aurelius (Gaius, 2.177; Epit. Ulp. 22.34). Where a man had made a legacy of all his female slaves ' et omne quod ex his natum erit ’ and one of the women had died, Servius held that there was no legacy of her offspring, because they were bequeathed as appurtenant to their mother. Celsus disapproves this rigid interpretation (D. 30.63).⁵ The owner of two male mules bequeathed to Titius ‘duos mulos qui mei ’ Kaser, Restituere ais Verpflichiungsgrund (1932).

² In the light of these doubtfully authentic texts must be examined. Thus, in Alfenus, D. (35. 1) 27, we must presume that the heredes merely asked whether they were liable to the poena, the answer being: poenam nullam vim habere. Cf. Index Interp. on this passage and on Alfenus, D. (28. 5) 45.

³ So, rightly, Beseler, Bull, xlv (1938), 171 ff., 182, 189, n. 21.

⁴ This too by the Edict! Lenel, Ed. ss. 39, 40.

³ Wrong Maschi, 44; Himmelschein, 405.

79 erunt cum moriar’, but died leaving two female mules. Servius holds that the heres must surrender them to the legatee—a decision which he regards as remarkable (D. 32. 62).¹ Contrast the miserable literalism of his decision that tutors nominated filio filiisque meis are not tutors of the daughters (D. 50.16.122). Servius too held that where a testator had manumitted a slave by his will and left him ' aureos quinque quos in tabulis debeo’ the legacy was void, because a debt from a master to his slave was an impossibility (D. 35.1.40.3). Here falsa, demonstratio nocet.¹· A will says: ‘Cornelius et Maevius, uter eorum volet, heres esto.’ In the event of both of them wishing to be heres, Trebatius holds that neither succeeds, a piece of literalism later rejected by Proculus (D. 28.5.70). A testator appoints L. Titius tutor, or, if Titius is dead,

C. Plautius. Titius dies after having been tutor for some time. Is Plautius now tutor ? No, says the literal Trebatius; yes, and rightly, say Labeo and after him Proculus (D. 26. J. 33). Another very strict interpretation: D. (32) 100.2 Trebatius.^{[133] [134] [135] [136]}

It is against this background that we must appreciate the causa Curiana.* A testator, expecting the birth of a son, instituted him heres and, in the event of the expected son dying before reaching puberty, substituted Curius (pupillary substitution). No posthumous son having been bom, Curius claimed to be heres ex testamento, and the heirs on intestacy that the will had failed. Q. Mucius, appearing for the heirs on intestacy, argued that the testator had instituted Curius as substitute in the event only of the expected son having succeeded and died under age, and that there­fore in the events which had happened the substitution failed. It might have been the testator’s intention to substitute Curius in the further event of no son being bom, and therefore of no previous succession (vulgar substitution), but he had not expressed this. Mucius’ position was undoubtedly in keeping with the whole re­publican tradition. Appearing for Curius, the orator Crassus ap­pealed to the testator’s intention and was successful before the centumviral court, where the orators were constantly to the fore.^[137] We do not know whether this decision led the jurisconsults to abandon their opinion,^[138] but we do know that it remained an isolated decision,¹ and that no republican jurisconsult extended it by analogy. It was a bold foray which the lawyers hesitated to follow up.¹ Outside the formal testamentary law they may have adopted freer methods of interpretation, but on the whole they stuck to the literal method.³ In this respect as in others⁴ they resolutely marked their difference from the forensic orators: they were not the men to be impressed by hellenizing schoolmasters and rhetoricians.

(v)

It remains to review summarily the various departments of law: ius sacrum, publicum, and privatum.

I. In this period the sacral law was, for the first time, expounded in books.⁵ But the religion which was the very foundation of the sacral law was being shattered by Hellenistic enlightenment.⁶ The aristocratic class, in whose hands the science of sacral law lay, had abandoned the simple piety of their ancestors for an enlightened, though irresolute, scepticism, which, while accepting the rational­ized theology of Greek philosophy, shrank from breaking with time-honoured usages. When Ennius declares that though the gods exist, they do not trouble themselves with human lot,⁷ he is not simply translating a Greek original. But if that were true, to what purpose were the vota, piacula, auspicia, and the rest of the com­plicated sacral law ? The only possible answer was that they were a useful anodyne for the lower classes. The pontifex maximus Q. Mucius Scaevola openly declared its much.⁸ Applying, as we should expect, his favourite method of bialpems,⁹ he distin­guished three genera of religious tradition: the mythology of the poets, the theology of the philosophers, and the official State cultus. Mythology, in his view, was sheer nonsense; philosophical theo­logy was in part superfluous, and to that extent, he remarked sardonically, might be saved by the maxim superflua non nocent, but for the rest it seemed to him dangerous and unfit for the

¹ One has only to consider Trebatius’ decision, just mentioned (D. 26. 1. 33), in a case similar from the legal point of view. * Schulz, 130, n. 4.

³ D. (5. 1) 80: ‘Si in iudicis nomine praenomine erratum est, Servius respondit, si ex conventione litigatorum is iudex addictus esset, eum esse iudicem, de quo litigatores sensissent.’ The asyndeton nomine praenomine is odd; perhaps nomine is a later addition. ⁴ As in other matters: above, pp. 43, 54.

⁵ Above, p. 40, and below, p. 89.

⁶ Mommsen, Rom. Gesch. i, bk. 3, ch. 13; Wissowa, s. 14; Kroll, Kultur, ii. 1 ff.

⁷ Ennius Seen. 316 (ed. Vahlen): ‘Ego deum genus esse semper dixi et dicam caelitum, / sed eos non curare opinor quid agat humanum genus.’

¹ Augustinus, De civ. 4. 27; also in Bremer, i. 102.

• Above, p. 64, n. 6..

8l masses: public worship must be maintained. This profession of •faith was very like that of the Greek thinkers from whom it was derivedits originality was that it came from the mouth of a Roman pontiff. Now Mucius was only expressing the common creed of the Roman upper classes in the last century of the Re­public.^{[139] [140] The augur C. Claudius Marcellus expressed himself in pre­cisely the same sense on the subject of the auspices.[141] [142] It is no accident that Caesar’s histories never mention consultation of the gods before battle; and Caesar waspontijex maximus*}

The decline of augural science, already deplored by Cato,^[143] pro­ceeded steadily, while Fetial law became fossilized and merely ornamental.^{[144] [145] As early as Cicero the jurisconsults refused to con­tinue to study pontifical law even in that part which cum iure civili coniunctum er at.1 Religious sentiment still survived in the upper classes, but this is a subject which belongs to the history of Roman religion and to biographies of individuals. The science of sacral law was on its death-bed. The founder of Romano-hellen- istic jurisprudence, Q. Mucius Scaevola poni. max., read the times truly when he wrote an epoch-making treatise on the ius civile, but no book on the ius sacrum.}

2. Of the science of ius publicum there is little to be said. The literature dealing with Roman constitutional law, which does not seem to have been bulky, has not reached us. The subject had little attraction for jurists because the last 150 years of the Re­public were occupied by a continuous constitutional crisis. The attempt to govern the Roman empire through legal institutions devised for a city-state exercising hegemony over Italy was absurd and bound to fail. But the law-abiding and conservative iurisconsulti could not reconcile themselves either to revolu­tionary acts^[146] or even to drastic reforms. Thus it was Q. Mucius Scaevola, the famous founder of a new legal science, who by his equally honourable and pernicious legality inflamed more than anyone else the war between Romans and Italians.^[147]

The one considerable achievement of legal science in public law during this period lies outside constitutional law. We refer to the procedure before the quaestiones, which were gradually set up for one offence after another. This procedure, alike in its laxity and its humanitas, bears the unmistakable stamp of aristocratic juris­prudence.¹ There was no prosecution by the State; the prose­cutor was a private citizen, armed with certain official powers which, however, frequently proved inadequate. In principle ac­cuser and accused were equals before the court. The accused was allowed the fullest, indeed excessive, opportunities of defending himself; pending trial, he was not, in practice, put under arrest. The death-penalty was replaced by banishment (aquae et ignis interdictio), which to a member of the aristocracy meant, one must admit, social death. No literature was produced on the statutes governing this branch of law, though their unwieldy and prolix texts presented a special opportunity for the exercise of the dialec­tical method. But the orators naturally found in trials before the quaestiones their most important field of activity. They took over the Greek rhetorical 'topic’ of circumstantial evidence? Thus in the Auct. ad Herennium we find edifying advice on how to incul­pate an accused from his previous fife³ and how to exploit his behaviour since the commission of the crime. If, on first being charged with it, he shows perturbation, the prosecution will claim this as a sign of guilt, while the defence will explain it as due to the greatness of the peril. If he remains calm and collected, the pro­secution cries out on such brazen impudence, while the defence is eloquent on the peace of a good conscience.⁴ The whole 'topic’ was remote from jurisprudence, but it opened up new perspectives, and though the jurists refused to concern themselves with it, it may have influenced the practice of the law courts in their treatment of circumstantial evidence, as it did probably during the Middle Ages and at the beginning of modem times.

3. The jurisprudence of private law is far too abundant to be examined here in any detail. We can mention only what is of the greatest and most general importance.

(a) Apart from the importation of the dialectical method, nothing that happened was of so great moment as the evolution of the prae-

¹ On what follows see Schulz, 205; Levy, * Die rom. Kapitalstrafe ’ {Heidelberg SB

1931), 14 ff·.

² R. Volkmann, Rhetorik d. Griechen u. Romer (ed. 2,1874), 150 ff., is valueless. Clearly the author has never had experience of such evidence taken before a modem law court. Cf. Auct. ad Herenn. 2. 2. 3 f.

³ Ibid. 2. 3. 4 f. ⁴ Ibid. 2. 5. 8.

83 torian and aedilician Edicts, which, as we have already insisted,¹ - were products of jurisprudence. How far their evolution had pro­ceeded by the end of the Republic cannot be established in full detail ;^{[148] [149] apparently but little was added under the Empire to the form they had attained under the Republic. They produced a duplication of private law: ius civile in the sense of private law be­came divided into ius praetorium[150] (in certain matters aedilicium) and ius civile in a narrower sense. The line between them cannot be sharply drawn :[151] for example, while the actio de dolo is pure ius praetorium, rei vindicatio belongs to both departments.[152] There was, however, no need to keep them distinct. No treatise on ‘praetorian law’ was ever written. In their exposition of the Edict the commentaries, which began to appear from the end of the Re­public, took account of the civil law so far as was necessary or convenient. Unfortunately we know very little about the history of the Edict during the republican period,[153] but down to Servius it must still have been largely fluid. At any rate it is unbelievable that from the beginning the actiones fell into the schematized classification which we find in Gaius. The first jurist who drafted an actio empti was not faced with the question whether it should be in ius or in factum concepta, because these two categories had not yet been distinguished. The formula instructed the iudex to decide what, as a matter of good faith (not ex iure Quiritium),^a.s due from seller to buyer—‘quidquid... dare facere oportet ex fide bona’.[154] The action would at first be regarded as an actio in factum con­cepta, just as in English law the question of reasonableness is left as one of fact to the jury. Only later, when the actions came to be classified, the actio empti was conceived of as being in ius concepta, the words ex fide bona being taken not as determining the question of actionability, but as the measure of such performance as might be due.[155] Recently there has been talk of a ‘reception’ of edictal law into the civil law;[156] it is an unfortunate expression, which explains nothing and is even misleading: at the time when the actio empti was taking shape the question whether it belonged to civil law or to praetorian had not arisen, because the idea of ius prae­torium was not yet current among lawyers.}

(6) Private law was kept strictly separate from public.^[157] The jurisconsults concerned themselves with neither constitutional nor administrative law, nor with criminal procedure. Refusing to ap­pear as advocates,² they lost all interest in the question of evi­dence.³ This isolation of private law had its disadvantages, but except in isolation private law could not have been elaborated in its classical purity.⁴

(c) The individualism of Hellenistic liberalism caused the private law to be developed on a basis of freedom and individualism. This feature of republican jurisprudence is so well marked and has so often been described that no more need be said here.⁵

(Leges publicae, s. 16. On the scheme of the senatus consultum see Mommsen, Staatsr.

iii. 1007; O’Brien Moore, PW Suppl. vi. 802. On the scheme of the treaties see

E. Täubler, Imperium Romanum, ³ (1913), 14 ff., 318 ff., 373 ff.; A. Heuss, ‘Abschluss und Beurkundung des griech. und rom. Staatsvertrages ’, Klio, xxvii (1934), 14 ff., 218 ff. On the edictum praetoris see below, p. 148. ⁵ Below, p. 96.

⁶ See Fr. v. Schwind, ‘Zur Frage der Publikation im rom. Recht’, Münchner Beiträge zur Papyrusforschung und antiken Rechtsgeschichle, xxxi (1940) [inaccessible],

⁷ Above, p. 61.

⁸ Cic. De leg. 3. 20. 46: ‘Legum custodiam nullam habemus, itaque eae leges sunt, quas adparitores nostri volunt: a librariis petimus, publicis litteris consignatam memoriam publicam nullam habemus.’ On this passage Mommsen, Sehr. iii. 291. See further Cic. Verr. 3. 79,183; H. Peter. Geschichtliche Literatur, i. 238. were always so published.^[162] Edicta magistratuum were published on wooden boards (alba), which were destroyed at the end of the magistrate’s term of office.

3. Leges. A full survey is given by G. Rotondi, Leges publicae populi Romani (1912, offprint from Encyclopedia giuridica italiana). Texts in Bruns, Fontes, and FIRA i. To the collection in Bruns’s Fontes add a large fragment of the lex Gdbinia (58 b.c., CIL i². 2500). For the literature see, besides Rotondi, Bruns, and FIRA, PW xii. 2319 ff. and CIL i², Addenda, 123 ff., 139 ff. Useful, though now in part anti­quated: E. G. Hardy, Roman Laws and Charters, i, ‘Six Roman Laws’ (1911); ii, ‘Three Spanish Charters’ (1912)—with translations.

Senaiusconsulta: list by O’Brien Moore, PW Suppl. vi. 808; selected texts in Bruns, Fontes, and FIRA i. 237 ff.

4. The following leges are remarkable for their problematical form:

(«) The lex tabulae Heracleensis, the so-called lex lulia municipalis. It is a rough draft published by Antonius from Caesar’s papers after the latter’s death. Text: CIL ³ (ed. altera), 573; ILS 6085; Bruns, no. 18; FIRA i. 140. Literature: v. Premerstein, Z xliii (1922), 45 ff.; Kornemann, PW xvi. 611; CIL i, Addenda ad no. 573, pp. 724, 739; FIRA l.c. Translation: Hardy, ‘Six Roman Laws’, 136 ff.

(b) Lex de Gallia Cisalpina (Lex Rubria). It was enacted after 49 and before 42 B.c.; the tablet must needs have been written before 42. The text shows stratification—an original text overlaid with additions— but it must nevertheless be the text as enacted, because in the short space of at most seven years lying between the enactment and our inscription the numerous additions and glosses which are recognizable in our text cannot have been inserted by the municipal scribes. The draftsmen of the lex seem to have had a model scheme which they amplified by additions. Perhaps this text also is a rough draft published by Antonius from Caesar’s papers. Text: CIL ³ (ed. alt.), 592; Bruns, no. 16; FIRA i. 169. Literature: CIL i, Addenda ad no. 592, p. 724; Kubler, Geschichte, 143; FIRA l.c. Particularly Gradenwitz, ‘Versuch einer Dekomposition des Rubrischen Fragmentes ’, Heidelberg SB 1915, Abhandl. 9; Beseler, Acta CII, i. 342. Translation: Hardy, 'SixRoman Laws’ (1911), 119.

(c) The case of the lex Ursonensis is somewhat similar. It too dates from the last years of Julius Caesar, and again we discern stratification. Here the interval between the enactment and the inscription (the tablets are of the Flavian period) would suffice for the text to have been amplified by the municipal clerks, but in fact none of the additions

literature: forms and transmission 89

are later than Caesar’s time. Text: CIL i (ed. alt.), 594; Bruns, no. 28; FIRA i. 177. Literature: Manuel Torres, Lecciones de Historia del Derecho Espanol, i (2nd ed. 1935), Lec. 19, pp. 247 ff., 252; CIL i, Addenda ad no. 594, p. 724; Kühler, Gesch. 144; FIRA l.c.; particularly Graden­witz, Heidelberg SB 1920, Abhandl. 17; Z xlii (1921), 565 ff.; xliii (1922), 439 ff.; v. Premerstein, Z xliii. (1922), 113 ff. Translation: Hardy, 'Three Spanish Charters’ (1912), 7 ff.

' (È)

The writers on sacral law have been mentioned already.’ Next to nothing survives of their works. We possess a fairly long frag­ment of Fabius Pictor’s work on pontifical law; it shows that its author still adhered closely to the pontifical archives. In contrast, our two fragments of Messala De auspiciis exhibit the method of Q. Mucius. Granius Flaccus’ De iure Papiriano was a commentary on the so-called leges regiae, that is on rules of sacral law attributed to one or other of the kings.^{[163] [164] In the pontifical archives there ap­pears to have been a collection of such rules, supposed to have been made by one Papirius, a pontifex maximus who was assumed to have lived about the time of the expulsion of the kings.[165] Ob­viously Granius Flaccus cannot have invented these rules—the pontifical college, of which he was not a member, would have de­nounced such an imposture—but simply made use of the pontifical records. The rules themselves are ancient, though their language is not conclusive on the point, since it was then the fashion to archaize. It is possible that the leges regiae were revised for publi­cation ; in that case the pontiffs probably collaborated.[166]}

Surviving fragments. Fabius Pictor, Iuris pontificii libri (at least 16): Bremer, i. 9; Peter, Reliquiae, i. Fabius Maximus Servilianus, Iuris pont. libri (at least 13): Bremer, i. 29. L. lulius Caesar, Augurales (or Auspidorum) libri (at least 16): Bremer, i. 106. Appius Claudius Pül­cher, Auguralis disciplinae libri: Bremer, i. 244. Nothing of C. Claudius, Auguralis disciplinae libri (title conjectural): Bremer, i. 244. Μ. Valerius Messala, De auspiciis libri: Bremer, i. 263. Granius Flaccus, De indigitamentis ad Caesarem: Bremer, i. 262; De iure Papiriano: Bremer, i. 261. Servius Sulpicius Rufus, De sacris detestandis libri (at least 2): Bremer, i. 225. C. Trebatius, De religionibus libri (9 or 11): Bremer, i. 404.

(iii)

Of the literature on ius publicum, likewise, too little survives to permit of its forms being described.¹

C. Sempronius Tuditanus, Magistratuum libri (at least 13): Bremer,i. 35. M. lunius Gracchanus, De potestatibus libri ad Pomponium (at least 7): Bremer, i. 37. Q. Aelius Tubero, On the Senate (exact title unknown): Bremer, i. 367. Anonym.: Liv. 3.55; Mommsen, Strafr. 580.3; Bremer, ii. 2, 530.

(iv)

On the literature of private law we are better informed.

1. Collections of formulae (books of precedents for contracts, wills, and pleadings). This type of literature, which we have encountered already, in the archaic period,² continued to be com­posed during the period now being considered. A collection com­posed byM’. Manilius³ remained in use till the end of the Republic,⁴ but the successors of that very eminent jurisconsult considered this type of literature beneath their dignity and left it to lesser jurists and the scribes. The existence of such a literature is, how­ever, expressly attested by Cicero⁵ and is confirmed by the fact that Varro’s De re rust, makes use of later collections as well as of Manilius’.⁶ Again, the formularies in Cato’s De agri cultura come from some collection the author of which we do not know and which was perhaps anonymous.⁷

2. Commentaries. This form of literature was infrequent. It seems that L. Acilius, an otherwise unknown jurist, wrote a com­mentary on the Twelve Tables; it may have been only a new edition of Sextus Aelius’ already mentioned work.⁸ That there

¹ On the following jurists above, p. 46.

² Above, p. 35. ³ Above, p. 47.

⁴ Lenel, Pal. i. 589; Bremer, i. 26. Literature: Joers, 88; Schanz-Hosius, i, s. 79, p. 239; Munzer, PW xiv. 1135.

⁵ Cic. De leg. 1. 4. 14: ‘an ut stipulationum et iudiciorum formulas componam? quae et conscripta a multis sunt diligenter et sunt humiliora.... ’

⁶ Varro, De re rust. 2. 3. 5; 2.4. 5; 2. 5. n. Cf. Bruns, ii. 63.

⁷ Cf. Bruns, ii. 47; Arcangeli, ‘I contratti agrari nel De agricultura di Catone (prolegomena) St. dedicali alia mem. di P. P. Zanzucchi (Pubbl. della univ. cattolica del Sacro Cuore, ser. 7, vol. xiv, 1927), 65 ff.

⁸ Scholl, Legis duodecim tabularum reliquiae (1866), vii. 25. It is uncertain whether Servius Sulpicius also wrote a commentary on the Twelve Tables: Bremer, i. 228; P. Kruger, s. 9, p. 67, n. 30. should have been no commentaries published on later leges accords with the whole attitude of the jurists towards statute law.¹ That Ofilius wrote a commentary on the laws relating to the taxation of hereditates and manumissions is unlikely.² The Edict was only now reaching its full development; it was made the subject of a commentary only at the end of our period, by Servius in a brief work in only two books. The first extensive commentary on the Edict comes from his pupil Ofilius.³ We have no ascertained fragments of either work.⁴ They were utilized by Labeo for his own commentary, which superseded them, and the citations of them by later writers are obviously at second hand, from Labeo. To the same type, the commentary, belongs Servius’ Reprehensa Scaevolae capita, the earliest work ad Q. Murium, a polemic against Mucius’ ius civile, of which all that survives is one fragment and a few citations.®

3. Responsa. These, if delivered in writing, would be preserved in the family archives of the respondent,⁶ where they would be available for his future literary publications and open presumably to his friends and pupils. Again, pupils present at the consulta­tions of their master might take notes of his responsa⁷ and use them subsequently. Thus preserved, a jurist’s responsa might come later to be published as a collection, it might be in full or abbreviated; for example, they might be compiled from the re­spondent’s own papers after his death. From this class of litera­ture we have numerous citations, sometimes at second hand, but fragments of original text are scarce. The collections of Servius and his pupils were no longer confined to actual cases, but. con­tained, to an indeterminable extent, responsa on theoretical ques­tions raised by friends and pupils. These latter are the earliest examples of a type of literature which in classical times became very considerable, the literature of problems.⁸

¹ Above, p. 61.

² Pomp. D. (1. 2) 2. 44: de legibus vicensimae primus eonscripsit. Cf. Lenel, Pal. i. 798; Bremer, i. 351; P. Krüger, Quellen, s. 9, p. 68, n. 40.

² Pomp. D. (1. 2) 2. 44.

* It is not certain that the citations given by Lenel, Pal. ii. 322; i. 795, and by Bremer, i. 232 ff. and i. 341 ff., refer to the commentaries on the Edict.

⁵ Lenel, Pal. ii. 323; Bremer, i. 220. The polemical commentary is a well-known literary yivos·. Herophilus (c. 300 b.c.) wrote one on Hippocrates’ Prognostica (Susemihl, Alexandrin. Literaturgesch. i. 795. See also E. Maass, Commentariorum in Araium reliquiae (1898), p. xi f.).

⁶ The responsa pontificum, of course, in the pontifical archive; see, e.g., Cic. De dome, 53. 136 Qesponsum of the pontifex maximus P. Mucius Scaevola).

r Above, p. 57.

⁸ See below, p. 223. Alfenus (Gell. 7. 5. r) interprets a treaty between Rome and

The Commentarii iuris civilis of Cato (son of Censorinus), in at least fifteen books, were known to Cicero, who informs us that they contained Cato's responsa, word for word, even the names of the parties being retained.¹ But the work was not a mere collection; it contained also theoretical notes by the author, as appears from the unique fragment preserved by Festus (p. 154 M). The original work was no longer used by the classical jurists; thus Paul, D. (45.1) 4.1, is drawing on an inter­mediate work, apart from the fact that his own text has been con­siderably interpolated.¹ For the fragments see Lenel, Pal. i. 1265.

According to Cicero, Brutus' De iure civili libri VII reproduced Brutus’ responsa word for word.¹ But the first three of the seven books were in the form of a dialogue, of which more immediately. The responsa must have been in the last four books,³ which Q. Mucius augur pronounced to be non veri Bruti libri.⁴ One may conjecture that the collection of responsa was annexed to the dialogue posthu­mously. Fragments: Lenel, Pal. i. 77.

Presumably the three books of M’. Manilius (‘Manilii monumenta’), the ten of P. Mucius Scaevola, and the writings of Livius Drusus con­sisted in substance of responsa. Lenel, Pal. i. 589, 755.

Servius left at his death a large collection of responsa; it is to this that Pomponius probably refers when he says (Z>. 1. 2. 2. 43): 'reliquit prope centum et octoginta libros.’⁵ They were published by his pupils, especially by Aufidius in a work of forty books,⁶ and by Alfenus Varus⁷ in his Digesta, of which we possess a considerable number of fragments taken from later epitomes.⁸ The collections of his other pupils are known only through citations. The collectors added responsa of their own. Lenel, Pal. i. 75.37, ii. 324; Krüger, 71.

Trebatius used some of his own responsa in his publications,* but some were probably first published in the writings of his pupil Labeo.

4. The jurists did not make, or at any rate did not publish, collections of notable judicial decisions, their own auctoritas being superior to that of the iudices, who were laymen.¹⁰ But appeals to previous decisions in argument in court were recommended by the schools of rhetoric,¹¹ and the orators therefore presumably made Carthage, which in his time can no longer have raised a case. Nor can the grotesque facts put by Servius in D. (28.5) 46 have arisen in practice. That our texts, wherever they mention a responsum, mean a responsum of die traditional kind is a groundless assumption, though it must be admitted that the line between speculative and practical responsa is often hard to draw: below, p. 224.

¹Cic. De or. 2. 32. 142. ² Above, p. 68, n. 5.

³ R. Hirzel, Dialog (1895), i. 429, Krüger, 61, are in error.

⁴Cic. De or. 2. 55. 224; above, p. 44, n. 5. ³ Above, p. 58.

⁶Pomp. D. (1. 2) 2. 44; cf. P. Krüger, 72. r Above, p. 42.

⁸Below, p. 205. ⁹ Lenel, Pal. ii. 343 ff.; Bremer, i. 396 ff.

¹⁰ Above, p. 24.

¹¹ e.g. Auct. ad Herenn. 2. 13.19; 2. 9.13; 2. 10.14. collections of precedents (exempla) ;* it is from such collections that the reports given by Valerius Maximus are derived.³

5. Epistilio#. The epistolary form³ was not used by the republi­can jurists, though responso would have fallen into it very readily. Republican habits were those of a patriarchal city-state: if one wanted a jurist’s opinion, one came for it or sent a representative. There appears to have been no juristic correspondence with more distant clients. The first collection of juristic letters comes from Labeo.⁴

The subject of Servius’ letter to Varrò (Geli. 2. 20. 1) is certainly juristic, but it contains a question, not a responsum ; it was presumably published in Varro’s Epistolicae Quaestiones. There is nothing juristic in Servius’ two letters to Cicero (Ad fam. 4. 5, 4. I2).^s

6.Occasionally the jurisconsults published their court speeches —Servius,⁶ for example, and probably Q. Mucins.’ Some would have been delivered in cases of private law ; for example, Q. Mucius’ in the causa Curiana⁹ or Servius’ pro Aufidia? But no attention was paid to them in juristic discussions.

7.Monographs were rare. Known to us are only Servius’ De sacris detestandis¹⁰ (at least two books) and his Liber de dotibus. We have an interesting fragment of the latter,¹¹ which was still in use in the second century a.d.

8. There was also but little isagogic literature, such a work as Gaius’ Institutiones being unknown in the republican period, when, as we have shown,¹² legal education in law was so little scholastic that introductions to private law were hardly required. An intro­duction in the form of a dialogue between Brutus and his son was provided by the first three books of lunius Brutus’ De iure civili mentioned above.¹³ In this period dialogue of this kind was

^I Thus Galba, the orator, is ready (Cic. De or. 1. 56. 240, above, p. 62) with multai similitudines, which in the context cannot be understood to have been responso.

* e.g. Vai. Max. 8. 2. 2. On this literary yevor see K. Alewell, Ueber das rhetorische mpd8ay/Mi, Kiel, philol. diss. 1913; C. Bosch, DieQueUen d. Vai. Max. Ein Beitrag z. Erforschung d. historischen Exempla (1929) ; Klotz, Hermes, xliv (1909), 198 ; Philol. Wochenschr. 1914,1129 ; 1929,1327 ; Schanz-Hosius, i, s. 124 ; ii, s. 345 and s. 424, p. 590.

³ Cf. H. Peter, Der Brief in d. rom. Literatur (Abh. Sachs. Ges., phil. hist. KI. xx, 1901), 220. Below, p. 226.

³ On Servius’ letters : Schanz-Hosius, i, s. 198, p. 395.

« Ibid.

⁷ Cic. Brut. 44. 163 : ‘ Scaevolae dicendi elegantiam satis ex eis orationibus, quas reliquit, habemus cognitam.’ ⁸ Above, p. 79.

’ The fragment in Festus, p. 153 M, proves as much.

¹⁰Lenel, Pal. i. 224; Bremer, i. 224.

^II Lenel, Pal. ii. 321 ; Bremer, i. 226. ¹² Above, pp. 55 ff.

¹³ Above, p. 92. Cf. R. Hirzel, Dialog, i. 428. a favourite form for introductory works,¹ the best known being Cicero’s Partitiones oratoriae.¹ Cicero had before him Brutus’ little work, which in 66 b.c. was still a popular elementary law book,³ but he preserves only three short sentences of it⁴ (all we have); for the characterization of this literary form they are important. Also isagogic in character was Q. Aelius Tubero’s De officiis iudi- cis, which was still read in the second century a.d.,^s but it was designed for the lay iudex, not the law student. We must mention finally Q. Mucins’ Liber singularis opan>, of which the compilers of the Digest possessed a copy.⁶ But its authorship is doubtful; the work may have consisted simply of extracts from his lus civile.’’

9.The most considerable work of our period was beyond doubt Q. Mucius Scaevola’s lus civile. A product of the dialectical method, which Mucius was the first to employ systematically,⁸ it was the first dialectical system of law in the grand manner and long remained fundamental. Commentaries on it were written by Gaius and Pomponius as late as the second century and it may still have been read in the third. After that it disappeared; the com­pilers of the Digest did not possess it; otherwise Tribonian’s classi­cism would surely have led him to preserve at least a few frag­ments. We possess a single short fragment of the original text⁹ and, for the rest, only a number of more or less faithful citations.¹⁰ Well may we complain of the fate which has preserved so utterly worthless a work as Cicero’s De legibus, but has allowed the book which laid the foundations not merely of Roman, but of European, jurisprudence to perish.

The general scheme of this work” is recoverable, though not in full detail. The four citations mentioning the number of the book referred to reveal that the making of testaments was dealt with in book i,¹²

¹ Ed. Norden, Hermes, xl (1905), 517 ff.; v. Arnim, Dio von Prusa, 279; Oellacher, Wiener St. Iv (1937), 68 ff., 78. Also Hirzel, Dialog, i. 429, n. 4.

² Ibid. 494.

³ Cic. p. Cluent. 51.141, cites the initia of the three books, adding: quae vobis nota esse arbitror.

♦ Cic. De or. 2. 55.224 (Lenel, Pal. i. 77; Bremer, i. 24). Also Cic. p. Cluent. 51.141. ³ Gell. 14. 2. 20. Nothing survives. Ferrini, ii. 45.

⁶ Fragments: Pal. i. 762; Bremer, i. 103ff.

⁷ Pal. i. 762, n. 7; H. KrGger, St. Bonfante, ii. 336.

⁸ Above, p. 64.

⁹ Gell. 6. 15. 2; Pal. i. 758. The text of the fragment in Gell. 4.1. 17 is not quite sound: Lenel, Pal. i. 757.

¹⁰ Cf. ibid. 757 ff.; Bremer, i. 69 ff.

¹¹ On the scheme see Lenel, Pal. i. 757ff.; Lenel, 'Das Sabinussystem’ (Festg.

Strassburgf. Jhering, 1892); Bremer, i. 58 ff.; G. Lepointe,Quintus Mucius Scaevola, i (1926), 53 ff., 127 ff. It is best to ignore M. Voigt, * Ueber das Aelius- und Sabinus­system ’ (Abh. d. Sdchs. Ges., phil.-hist. KI. vii. 1879). ¹³ Gell. 15. 27. legacies in book 2,^[167] societas in book 14,² and furtum in book i6.³ For the rest, lacking Gaius’ commentary, we must rely on Pomponius’, which was based on the Mucian order.⁴ Details apart, the general scheme may be reconstructed as follows:

I. Law of inheritance.

(1) Testaments.

(a) Execution of the will. (6) Institution of the heres. (c) Ex- heredation. (d) Acceptance and rejection of the herediias. (e) Legacies.

(2) Intestate succession.

II. Law of persons.

(1) Marriage. (2) Guardianship. (3) Staiuliberi. (4) Patria potestas. (5) Dominica, potestas. (6) Liberti. (7) Appendix: Procurator and negotiorum gestor.³

III. Law of things.

(1) Possession and usucapio. (2) Non-use and libertatis usucapio.

IV. Law of obligations.

(1) Ex contractu.

(d) The real contracts (perhaps only mutuum) ‘⁶ (h) Sale.

(c) Locatio conductio. (d) Appendix: Servitudes.⁷ (e) Societas (perhaps also mandatum).

(2) Ex delicto.

(a) Iniuria? (b) Furtum. (c) Lex Aquilia.

As appears at first glance, we have here a true dialectical system, the same as that adopted by Gaius in his Institutiones, with one small and not very happy modification (I after III). The position of servi­tudes in the Mucian scheme is interesting: the connexion seems to be that both servitudes and locatio conductio involve some sort of right to use another’s thing. Evidently Mucius had not reached the stage of distinguishing between a contractual right and a ius in re aliena, which further explains why under the law of things he treats only of the kinds of things and of possession and ownership. The position of the procurator and negotiorum gestor in appendix to liberti is due to the fact that these persons were mostly freedmen of the principal—a re­version to the primitive practice of grouping by association.

Q. Mucius’ work remained in republican times the only syste­matic exposition of the whole private law. If we had only Cicero to guide us,¹ we should be obliged to accept Servius as the earliest systematizer and to regard Mucius’ treatise as a disorderly assem­blage of materials in the old style. But here, as always where his sympathies are affected, Cicero is untrustworthy. The fact that Servius was his friend and had written a polemic against Mucius² sufficed to make him cheapen Mucius’ work, with which his ac­quaintance was clearly only superficial, and to hail Servius as the true Prometheus. No doubt it is true that Servius employed the dialectical method, but he wrote no systematic work like Mucius’. There is no express mention in Cicero of any works by Servius, but if he had written a systematic work, it would have left traces in later literature, and of such there are absolutely none.³

io. We must mention finally the praetorian and aedilician Edicts, but we know so little of their republican forms that any appreciation of them must be reserved till we come to the classical period.

(v)

Our literary survey must conclude with a few words on the lan­guage of lawyers and the law. We must distinguish:

i. The language of the leges. In contrast to the Twelve Tables the later leges are written in a circumstantial, clumsy, pedantic, and meticulous style, the purpose of which is to achieve complete certainty and to leave nothing to juristic interpretation. These characteristics became ever more pronounced as time went on.⁴ Their stereotyped style shows that the leges were formulated not by the proposing magistrates, but by professional draftsmen drawn from the ranks of the senatorial jurists and the secretari­ate of the archives.⁵ Then suddenly we come upon a retrogression to the style of the Twelve Tables in the lex Ursonensis⁶ which

¹ Cic. Brut. 41. 152, above, p. 69.

² Above, p. 91.

³ Di Marzo, Bull, xlv (1938), 261. Perhaps Alfenus Varus’ Digesta followed the Mucian order, but it was only a collection of responsa.

⁴ Cf.Allen, Law in the Making, 397: ‘The style of (English) statutes has differed greatly from age to age. From the laconic and often obscure terseness of our earliest statutes we swung in the sixteenth, seventeenth and eighteenth centuries to a verbosity which succeeded only in concealing the real matter of the law under a welter of superfluous synonyms.’ It was the same at Rome, between the Twelve Tables and the last century of the Republic.

» Above, p. 87.

⁶ Bruns, no. 28; above, p. 88. Cf. Norden, Aus altrom. Priesterbuchem (1939), 12, n. 3.

g7

archaizes in the manner of Cicero’s De legibus 2,8. There is at present no comprehensive study of the language of the republican leges.¹ The lex Rubria, c. 20/ furnishes a signal monument of their pedantry. The law, having given the text of processual formulae with L. Seins and Q. Lucius as imaginary plaintiff and defendant, deems it necessary to say that in practice the fictitious names are to be replaced by the real names of the parties. It even adds that the fictitious names are to be retained if they happen to be the true names! It cannot be accepted that this monstrous piece of pedantry was meant as a gibe at the newly admitted Gallic citizens.³

2. The language of the senaiusconsulta is different. Here too a stereotyped scheme⁴ betrays the collaboration of the secretariate, but the pedantic circumstantiality of the leges is avoided.⁵

3. The language of the Edicts and their formulae is again dis­tinct. It is not uniform, as the clauses of the Edicts were framed by various hands in various periods; in the main we know only the text settled in the time of Hadrian, rarely the republican. No analysis of edictal language has yet been made.

4. The translation Greek employed by the Roman Chancery when the Roman government was addressing eastern parts of the Empire is peculiar. The style developed in the second century B.c. was adhered to subsequently.⁶

5.The numerous solemn formularies of the ius sacrum, publicum, and privatum belong to very various periods, though, as remarked above,⁷ they were continually being revised. No close study of their language has yet been made.

6.The juristic literature forms a special genus from the lin­guistic point of view. Though we possess but little of it in the original texts, it is permissible to argue back from the classical

¹ Norden (last note) rightly notes this deficiency. J. Swennung, Untersuch, z. Palladius u. z. lateinischen Fach· u. Volkssprache (1935), unfortunately does not concern himself with juristic technical language. J. F. Westermann, Archaische en archaistische Woordkunst (Diss. Amsterdam, 1939), 56, is inadequate. Useful is

O. Altenburg, * De sermone pedestri Italorum vetustissimo ’, Jahrbücher für dass. Phüol. 24th Supplementbd. (1898), 485 ff.

’ Bruns, no. 16 ; above, p. 88.

³ As Gradenwitz, op. cit. (above, p. 88), seems to assume; similarly Hardy Six Rom. Laws, 128, n. 14.

⁴ Above, p. 87.

⁵ But here, too, a growth of empty formularization is observable: Mommsen, Staatsr. iii. 1009, n. 5.

⁴ It was a more or less barbarous languag: eibid. iii. 1007; v. Wilamowitz- Mollendorff, Reden «. Vorträge, ii (ed. 4,1926), 154, n. 1; P. Viereck, Sermo graecus, quo senatus populusque Romanus magistratusque populi Romani ad Tib. Caesaris aetatem in scriptispublicis usi sunt, examinaiur (1888); Galtet, RH, xvi (1937), 259-61.

⁷ Above, pp. 27,34.

4497.1 H style of the next two centuries, because only in the last century B.c. can the classical style have taken shape; such remains as there are of the republican jurists confirm this conclusion. It is a style remote from the overloaded formalism of the leges and equally, or more, from any archaizing.¹ It is elegant, idiomatic Latin, weighty, unadorned, correct, and terse. Contentiousness and rhe­toric are avoided; the sentences are short, the terminology is fixed, things are called by their plain and proper names, clarity and objectivity are the chief aims. However the writers may have spoken and written in daily life, when they wrote of law they were under the sway of the literary tradition of their profession.² The style of the Roman jurists may have been influenced by the Stoic theory of style³ and by the usages of the Alexandrine learned world, but it expresses the innermost core of their national character.

Read, for example, the fragment of Fabius Pictor’s lus pontificium in Gell. io. 15 (Bremer, i. 10), the two fragments of Messala in Gell. 13.15,16 (Bremer, i. 263), or the two fragments from Servius Sulpicius’ De dotibus in Gell. 4.44.4 (Bremer, i. 226). The last is specially instruc­tive, since it exhibits an accomplished orator writing on law: he uses short simple sentences and completely unrhetorical Latin. It has al­ready been observed⁴ that even in their court-speeches the jurists used a simple objective style. Aquilius Gallus defined litus as qua fluctus eluderet (Cic., Top. 7.32); this struck that connoisseur of style, Quintilian, as remarkable. He observes (Inst. 5.14. 34): ‘... cum etiam iuris consulti, quorum summus circa verborum proprietatem labor est, "litus” esse audeant dicere, qua fluctus eludit.’ Evidently what strikes him as extraordinary is the word dudere meaning ‘ as far as the tide disports itself’, which would be suitable in the mouth of a poet or an orator, but in that of a jurist is too metaphorical. It is not the ap­propriate word (verbum proprium). From the period of Hellenism to the end of antiquity the power of literary tradition remained unbroken. Compare, for instance, the execrable and affected rhetoric of Cassio- dorus’ Variae with the simple straightforward style of his Institutiones: to each category of literature its own style. That is a truth to which we must hold fast.

¹ Tubero is an exception, but his archaizing was not liked: D. (1. 2) 2. 46; cf. Beseler, SD 1935, 280.

’ v. Wilamowitz-Mbllendorff, Hermes, xxxv (1900), 25 ff.; Norden, Anlike Kunst, prosa, i (1909), ir, 323, 365; ii. 603. Basically wrong: Kubler, Z xlii (1921), 517, n. 1.

³ Fiske, ‘The Plain Style in the Scipionic Circle’ (Class. St. in Honour of Ch. P. Smite, Wisconsin St. in Language and Literature, iii, Madison, 1919); Stroux, De Theophrasti virtutibus dicendi (1912); Kroll, PW Suppl. vii, art. * Rhetorik ’, 33 ff., 43.

⁴ Above, p. 54.