I THE JURISTS

i. The earliest Roman jurists known to us are the State priests (sacerdoies publici),¹ in whose hands lay the application and development of sacral law. Not every such priest can be styled a jurist in the sense previously defined,³ but in the ranks of the priesthood were always to be found larger or smaller groups of men who busied themselves vocationally with the sacral rules affecting their office and thus acquired a professional knowledge of them; these men may be styled ‘jurists of the sacral law’.

2. It is necessary from the outset to be clear as to the religious and sociological character of the members of the four priestly colleges. Priests they were, but the great variety of meanings borne by the term ‘priest’⁶ has often been overlooked by legal historians. In the present case the spiritual and charismatic elements of priesthood are very much in the background.⁷ The Roman State priests were no magicians or soothsayers, no clair­voyants, rainmakers, or medicine men,⁸ they were not ‘men of

¹ For the following see Wissowa 479 ff.

² Above, p. 2.

³ A. A. Boyce, ‘The Development of the “Decemviri sacris faciundis”’, TAPhA Ixix (1938), 161 ff.

* Liv. 36. 3. 7 is authority for a collegium fetialium.

^s Th. C. Worsfold, The History of the Vestal Virgins of Rome, 1932.

⁶ The art. ‘ Priest, Priesthood ’ (by various hands) in Hastings’s Enc. of Religion and Ethics, x. 278 ff., gives an introduction to the morphology of priesthood. See also Bertholet, art. ‘Priesthood’, Enc. of the Social Sciences (ed. Seligman and Johnson), xii. 388 ff.; Max Weber, pt. 2, ch. 4, and pt. 3, ch. 11.

⁷ Mommsen’s (Rom. Gesch. i. 1, ch. 12) is still the best account.

⁸ The pontifices were no ‘ Chaldaeans ’, as Cic. p. Mur. n. 25 calls them, but only in joke, the point being (De fin. 4. 27. 74; Plutarch, Calo 21) that every one knew they were nothing of the sort. Nigidius Figulus was a ‘seer’ who, like Samuel God’ whose divine character derived from some mysterious per­sonal endowment.¹ Though the rex sacrorum, the fiamines, and the Vestals were subject to strict ceremonial precepts and taboos,² these did not apply to the most important priestly body, the ponti­fices, in the narrow sense, nor to the fetiales, augur es, and decemviri. These priests were not ‘spiritual’ persons, leading an exemplary priestly life, but rather typical honoratiores,³ that is men of high social standing, whom their economic position enabled to under­take public duties without pecuniary reward. The door to their illustrious guilds was opened partly by high birth and partly by meritorious service to the State in peace or war. The priests would, as a rule, have been magistrates before becoming priests: a.pontifex maximus who had not previously held a curule magistracy was a rarity.⁴ Some of them would be priests and magistrates at one and the same time; for the principle that priesthood and magi­stracy were incompatible was early abandoned, if ever it existed.⁵ ‘It is’, says Cicero,⁶ ‘our ancient and excellent practice, that leadership in religious worship and in the State should be en­trusted to the same persons, namely the most highly respected citizens.’ The lists of the known members of the pontifical colleges confirm Cicero’s words.⁷

3.

(1 Sam. ix. 8), would find lost property (Apuleius, Apolog. 42), but he was not a State priest (Kroll, PW xvii. 200). In the well-known rain-wonder of the Marcus- column (Mommsen, Schr. iv. 498 ff., 508 f.) Marcus did not act as ponlifex maximus. The ceremony of elicere aquam is not a magical act (Wissowa, 121). The Vestals were believed to be capable of detaining a serous fugitivus by their prayers (Plin. Hist. nat. 28. 13).

’ C. H. Dodd, The Authority of the Bible (1941), 47 ft.

2 Gell. 10. 15; Wissowa, 506 f., 508; J. G. Frazer, ‘Taboo and the Other Perils of the Soul ’ (Golden Bough, 3rd ed., Part II, 1911), 13 ff.

3The term adopted by M. Weber, pt. 1, ch. 3, s. 20. '

♦ Liv. 25.5.4: ‘Ante hunc intra centum annos et viginti nemo praeter P. Comelium Calussam pontifex maximus creatus fuerat qui sella curuli non sedisset.’ Mommsen, Staatsr. ii. 33.

» Leifer, Aemterwesen, i (1931), 125 ff. (Klio, Beiheft xxiii).

⁶ De domo, 1. 1.

⁷ The list of the known pontiffs of this period (up to about 200 B.c.) will be found below, p. 13; the lists of the augurs and decemvirs are given by Carl Bardt, Die Priester der vier grossen Collegien aus romisch-repub. Zeit (K. Wilhelms-Gymn. in Berlin xi. Jahresber., Berlin, 1871), 17 ff., 28 ff. They were reprinted by Brissaud, Le culte chez les Romains, i (1889), 35 ff.

_o W

1. At the very beginning of our period, however, one of the four priestly colleges encroached into the domain of private law. The cradle of the science of private law is placed by Roman tradition in the college of pontiffs,¹ and, untrustworthy in regard to early legal history as that tradition in general is, in this matter it speaks truly: without this point of departure the form taken by the science of private law at Rome would be unintelligible.

2. This encroachment requires explanation. Having grasped the true sociological position of the pontiffs, we are in no danger of finding the explanation in sacerdotal lust for power. The idea, too, that the law is a gift of God,² and the priest consequently its natural interpreter, was entirely absent. The true explanation is rather that in this period, when the law of commercial relations was but little developed, private law consisted mainly of the law of the family and of inheritance, and that this was ‘a branch of law adjoining pontifical law’,³ it being of decisive importance for the purposes of family cult (sacra privata) to know who were members of the family and who was Aeres.⁴ The concern of the pontiffs with these branches of private law is thus readily intelligible, and also that this special concern led on to the study of private law (in­cluding that of civil procedure) as a whole.

3. The names of the earliest jurists of private law are known to us from the list of the pontiffs of this period, but this branch of pontifical jurisprudence also was a collective activity, and tradi­tion tells us nothing of individual contributions to it, except that Tiberius Coruncanius, the first plebeian pontifex maximus, was the first to give public instruction in law (private law, of course, is meant), a matter to which we must return below.⁵

(iii)

In the course of the third century a secular science of private law gradually developed by the side of the pontifical.

¹ Pomp. D. (1. 2) 2. 6.

² Demosth. adv. Aristogitonem, 774 (Reiske): was iii. 45.

¹⁰ Jhering, Geist, ii. 393.

¹¹ So F. Leo, Gesch. d. rom. Lit. ³ (1913), 43, n. 2. Further literature: Joers, i. 86; Schanz-Hosius, i, s. 20.

¹² Schanz-Hosius, i, s. 20. ¹³ Mommsen, RF i. 305 ff. sources speaks of the calendar only.¹ But in any case a tradition which, on the strength of these publications, converts Cn.

2. The same judgment must be passed on the late tradition^[4] that Tiberius Coruncanius, the first plebeian pontifex maximus, was the first to provide some sort of instruction in law by giving his responsa publicly. The story is obviously fabricated out of a passage of Cicero,^[5] which names a number of jurists as having given responsa publicly; Coruncanius heads the list. The story thus loses all value: even before Coruncanius pontiffs must on occasion have given responsa in public. How little Coruncanius marks a break^[6] can be inferred from the fact that we know of no important pupils of his.^[7] The first non-pontifical jurists mentioned by our tradition are the brothers Sextus and Publius Aelius Paetus,^[8] and they occur at the very end of our period, at the transition to the next; Sextus was consul in 198 and Publius in 201 b.c.

3. Other milestones are lacking, but the brothers Aelii certainly provide an indication that in the course of the third century B.c. a non-pontifical jurisprudence of private law did develop. One must, however, beware of attaching excessive importance to this. The men who now, towards the end of our period, appear as jurists without being members of the pontifical college come from the same social circles as the pontiffs: they hold high magistracies and even belong to other branches of the priesthood. Of this group the two Aelii are typical: both held the consulship as well as the censor­ship ; Publius was also an augur.¹ Bearing in mind that the pon­tiffs were no ‘Lords Spiritual’, one realizes that, in itself, the ‘secularization of the science of private law’ was of no.great im­portance : its exponents became more numerous, but its character and tendencies as a science remained unchanged. Of a conflict between secular and pontifical jurisprudence there is absolutely no question.

(iv)

There was also, even in this early period, a science of public law. The jurists of the ius publicum were to be found among the magi­strates and especially the senators. It was in these circles that this not very extensive branch of legal science was continuously ap­plied and developed. Once again we can point to no individual achievements, for, as the elder Cato rightly said, the ius publicum of Rome was the collective work of generations, not the creation of gifted individuals.²

(v)

The total result of what has been said is that the jurists, whether of sacral, private, or public law, all came from the same social circles, and that in part it was the same individuals who, as magi­strates and senators, administered public and, as pontifices, sacral and private law. This is why Roman jurisprudence is so uniform and self-consistent; this is the explanation of the far-reaching similarity of its various creations. It is an error to argue, as has been argued from the resemblance of many of the institutions of private law with those of sacral, that the former was influenced by

¹ Joers, 99; Klebs, PW i. 526, 527, no. 105; Schanz-Hosius, i, s. 78.

² Cic. De re pub. 2.1.2*.* nostra res publica non unius ingenio, sed multorum, nec una hominis vita, sed aliquot constituta saeculis et aetatibus.’ Likewise Polyb.

6. 10. 12 f. Com. Nepos, Cato, 3. 4: * Bellorum duces non nominavit (scil. Cato) sed sine nominibus res notavit.’ F. Leo, Gesch. i (1913), 296. the latter, and that the pontiffs ‘just because they were priests’,¹ modelled the ius privatum upon the ius sacrum. This is to overlook the equal similarities displayed by the ius publicum and to miscon­ceive the sociological position of the pontiffs.^{[9] [10]} Sacral, private, and public law were alike forged by the same small, exclusive, socially and economically homogeneous class, and their identity in char­acter needs no further explanation. There can be no question of any primacy of sacral law in this period.

(vi)

In every aristocratic system an important part is played by a subordinate staff, for the simple reason that the aristocrat has in general little inclination for routine-work. Thus the Roman priests (especially the pontiffs) and magistrates were supported by a large subordinate staff, notably of secretaries and copyists,^[11] which necessarily exercised no small influence on the development and application of the numerous formulae. Sometimes these secre­taries styled themselves jurists,^[12] and quite rightly. Their contri­butions remain unrecorded in the history of Roman jurisprudence, but we should at least remember their existence. An aristocratic regime is unreal and unintelligible if one forgets the existence of subordinate functionaries.

(vii)

The Roman municipalities were organized on the pattern of Rome, having magistrates and priests as at Rome.⁵ There must therefore have existed a municipal jurisprudence, but we can say no more. It played no part in the development of Roman legal science and may consequently be set aside by us.

(viii)

We will now give a full list of the pontifices during the archaic period whose names are known to us (p. = pontifex; p. m. = pontifex maxi- mus). Readers who wish to have a clear picture of the sociological character of these men must read the biographical literature mentioned in the following list. See in general Carl Bardt, Die Priester der vier grossen CoUegien aus romisch-republikanischer Zeit. Jahresbericht des K. Wilhelm Gymnasium Berlin, 1871; P. Habel, Tastes pontificaux’, in Marquardt, Le Culte chez les Romains (trad, par Brissaud), ³ (1889), 385 ff.; Münzer, Adelsparteien, Index v. pontifices.

C. Papirius p. m., legendary, according to Dionys. 3. 36 at the beginning of the Republic.

Q. Furius p. m. 449. Münzer, PW vii. 317.

Μ. Papirius p. m. Münzer, PW vii. 317.

A. Cornelius p. m. 431. Münzer, PW iv. 1252. Sp. Minucius p. m. 420. Münzer, PW xv. 1944. Μ. Folius p. m. 390. Münzer, PW vi. 2828.

C. Fabius Dorsuo p. 390. Münzer, PW vi. 1768.

Μ. Valerius p. 340. Livy 8. 9.

P. Cornelius Calussa p. m. 332-304. Münzer, PW iv. 1273. Cornelius Barbatus p. m. 304. Münzer, PW iv. 1426.

P. Decius Mus. p. 300; cos. 312. Münzer, PW iv. 2282.

P. Sempronius Sophus p. 300, cos. 304, cens. 300. Münzer, PW ii A. 437·

C. Marcius Rutilius p. 300, cos. 310, cens. 294. Münzer, PW xiv. 1590. Μ. Livius Denter p. 300, cos. 302. Münzer, PW xiii. 853.

Tiberius Coruncanius p. m. about 254, cos. 280, diet. 246. Münzer, PW iv. 1663.

L. Caecilius Metellus p. m. 243-221, cos. 251, diet. 224. Münzer, PW iff. 1203.

P. Scantinius p. till 216. Münzer, PW ii A. 352.

Q. Aelius Paetus p. died 216. Klebs, PW i. 526.

L. Cornelius Lentulus p. m. since 221, cos. 237, cens. 236. Münzer, PW iv. 1377.

C. Papirius Maso p. till 213, cos. 231. Münzer, Adelsparteien, ni, 114. Μ. Pomponius Matho p. 217, cos. 231. Münzer, Adelsparteien, 161. L. Aemilius Paullus p. 217, cos. 219.

T. Otacilius Crassus p. 217, praetor 217.

Q. Fabius Maximus Cunctator p. 216, cos. 233. Münzer, PW vi. 1814. T. Manlius Torquatus p. 216, cos. 235. Münzer, PW xiv. 1207.

Q. Fulvius Flaccus p. 216, cos. 237. Münzer, PW vii. 243.

Q. Caecilius Metellus p. 216, cos. 206. Münzer, PW iii. 1206. Μ. Cornelius Cethegus p. 213, cens. 209, cos. 204. Münzer, PW iv. 1279·

Cn. Servilius Caepio p. 213, cos. 203. Münzer, PW ii A. 1780, Adels­parteien, 147.

P. Licinius Crassus p. m. 212, cens. 210, cos. 205. Münzer, PW xiii. ÇDz·

C. Livius Salinator p. 211, cos. 188. Münzer, PW xiii. 888.

C. Servilius Geminus p. 210, p. m. 183, cos. 203. Münzer, PW ii a. 1792, Addsparteien, 147.

Ser. Sulpicius Galba p. 203, aed. cur. 209. Münzer, PW iv a. 759.

C. Sempronius Tuditanus p. 202, aed. pleb. 198, praetor 197. Münzer, PW ii a. 1440.

C. Sulpicius Galba p. 202. Münzer, PW iv a. 753.