Quintus Mucius Scaevola Pontifex

Quintus Mucius Scaevola Pontifex (sometimes called Q. Mucius, sometimes Q. Scaevola), son of Publius Mucius Scaevola, was born about 140 bce. He was quaestor in 110/109 bce, tribune of the plebs in 106 bce, curule aedile by 100 bce, praetor by 98 bce, consul in 95 bce, and governor of Asia afterwards.

The jurists and the legal science 65 gave orders to the urban praetor Lucius Junius Brutus Damasippus to kill all those who were likely to support Sulla�s return, including Scaevola. He was killed by the Marians in the Temple of the Vestals, and his body was thrown into the Tiber River.

A deep legal thinker and excellent interpreter of the law, Quintus Mucius was the most eloquent jurist (equitable, dispassionate, and also brief in his speeches) but not the most brilliant orator (Cicero, Brutus 39, 145-46). Greatly influenced by Greek dialectic, Quintus Mucius wrote the first systematic legal treatise on civil law in eighteen books, which later jurists such as Gaius and Pomponius commented on in the second century. His treatise is considered the most relevant work of republican jurisprudence. Based on the Twelve Tables, Quintus advocated using legal categories (genera and species). A single fragment of his original work on civil law survived, quoted literally by Aulus Gellius (Noctes Atticae 6.15.2): �If anyone has used something that was entrusted to his care, or having borrowed anything to use, has applied it to another purpose than that for which he borrowed, he is liable for theft.� Scaevola also wrote a handbook of short rules and explanations on legal terms called Horoi (definitions), which was used in Justinian�s Digest.

Quintus Mucius was the creator of the famous cautio Muciana, which allowed a widow who was left a legacy by her husband on the condition that she not remarry to benefit from the bequest. He was also the designer of the praesumptio Muciana, which established that all that a wife possessed was given to her by her husband, unless she could prove the contrary.

In 93 BCE, Scaevola confronted his former colleague Lucius Licinius Crassus, the greatest orator of his time, in the famous causa Curiana (Cicero, De oratore 1.180-81). It was a trial before the centumviral court on the validity of a will written by a certain Coponius. Coponius appointed his as-yet-unborn son as his heir and Manius Curius as substitute heir, so that Curius could succeed to the estate in the event that Coponius�s unborn son died before reaching majority (pupillary substitution) and, therefore, without being able to make a testament himself. When Coponius died, he had neither a son nor an unborn son on the way. The question was whether the estate should go to Manius Curius, who claimed it as a substitute, based on a reading of the simple sub�stitution into the will�s provision for pupillary substitution, or to Marcus Coponius, who claimed it on behalf of the intestate heirs. Scaevola appeared for Coponius, and Crasssus for Curius. Scaevola defended the strict literal interpretation of the wording of a will (a simple substitution was not explicitly contained in the will) against the opinion of Crassus, who insisted that the will should be interpreted according to the testator�s intention based on the ordinary use of the language and on equity. Crassus persuaded the court in favor of his client Manius Curius.

Quintus Mucius had many pupils (Volcacius, Lucius Balbus, and probably Cornelius Maximus), but the leader among them was Aquilius Gallus. Aqui�lius was praetor in 66 BCE and a good friend of Cicero, his colleague as praetor. An original and innovative lawyer, Aquilius Gallus was the creator of

the so-called Aquilian stipulation (Inst. 3.29.2 and D. 46.4.18.1), which afforded a legal means of granting a general discharge of claims that one party had against another. He was also the designer of the action for fraud (actio de dolo), which protected persons who suffered loss through the bad faith of another. Aquilius�s speed at giving responsa was legendary (Cicero, Brutus 42.154).