I THE JURISTS

The very names of the numerous jurists known to us as con­sultants, teachers, and writers under the Principate tell a tale. The families prominent in public affairs during the last century of the Republic are no longer represented.

Labeo was the son of Pacuvius Labeo, who was of the circle of Brutus, Caesar’s murderer, but held no magistracy.⁶ Capito was grandson of a Sullan centurion who reached the praetorship.⁷ Massurius Sabinus was of an impoverished Veronese family; he had to be supported by his pupils and became an eques only at the age of 50.⁸ Pegasus was the son of a trierarch,’ taking his name from the figurehead—a winged horse— ’ Prosopogr. ii’. 118; Joers, PW iii. 1736.

² R. Syme, The Roman Revolution (1939), 490 ff.; BSR xiv (1938), 1-31; JRS xxvii (1927), 127-33; Stech, Klio, Beiheft x (1912), 127 ff., 142 ff.

³ On 0. Spengler’s groundless views see Schulz, 132. It is not certain even of Gaius, Tryphoninus, and Callistratus, that they were not of Roman stock. Their manner of speech is not decisive.

⁴ Juv.

³ Dessau, * Die Herkunft der Offiziere u. Beamten des rom. Kaiserreiches während d. ersten zwei Jahrhunderte ’, Hermes, xlv (1910), iff. ⁶ Above, p. 42.

⁷ Tac. Ann. 3. 75; Prosopogr. i². 260; Joers, PW ii. 1904.

⁸ D. (1. 2) 2. 50; A. Stein, Der rom. Ritterstand, 131.

⁹ Schol. ad Juv. 4. 76,77 (Juv. Sat. libri v, ed. Friedländer, i (1895), 246; ed. Wessner, Teubner 1931, p. 59 f.): * Filius trierarchi, ex cuius libumae parasemo nomen accepit, iuris studio gloriam memoriae meruit, ut “liber” vulgo, non homo diceretur. Hic functus omni honore cum provinciis plurimis praefuisset, urbis curam administravit.’ Cf. Mommsen, Sehr. v. 407; A. Stein, Ritterstand, 205; Cichorius, Rom. St. (1922) 257 ff., 403 ff.; Dessau, Die Herkunft der Offiziere, 24 ff.; Ch. G. Starr, The Roman Imperial Navy (1941), 50, n. 71. According to Mommsen Pegasus’ father was a freedman. Against Mommsen (scarcely convincing) Starr, 66 ff. See ILS 2815 ff. of his father’s ship. Julian was of a respectable family of Hadrumetum in Africa;¹ Pactumeius Clemens was from Cirta in Africa.² Gaius must have been from some eastern province.³ Licinnius Rufinus was from Thyateira in Lydia ;⁴ Ulpian from Tyre ;⁵ and both Tryphoninus and CaUistratus were also from the East.⁶-⁷

(Ü)

1. Up to Vespasian the participation of the jurists in public administration remained essentially what it had been during the last decades of the Republic. Labeo pursued the cursus honorum as far as the praetorship, but as a republican frondeur refused the consulship offered him by Augustus.⁸ Capito held the republican magistracies, being consul suffectus in a.d. 5 and during the last nine years of his life curator aquarum.⁹ Cocceius Nerva, grand­father of the Emperor and friend of Tiberius, was consul suffectus in 24, curator aquarum in 24-33.¹⁰ C.

2. With Vespasian a new type appears. We now encounter a group of jurists who for the greater or at least the more important part of their lives were constantly in office and increasingly in receipt of salaries.¹⁴ The old conception of the statesman-jurist assumes a new shape, more suited to the times. Like Manilius and Q. Mucius of old, these men belonged to the class of clarissimi et amplissimi viri, were intimately connected with government,

¹ Mommsen, Sehr. ii. 2 ff.; Ferrini, ii. 497; disputed by Komemann, Klio, vi (1906), 178 ff., 182 ff.; Dessau, Die Herkunft der Offiziere, 21; W. Weber, Hermes, 1 (1915), 52.

¹ Dessau, Herkunft, 21. Mommsen, Sehr. v. 470 ff. 485.

³ This would not exclude his having been a law teacher at Rome: Kubier, PW vii. 489 ff.; Brassloff, Wiener St. xxxv (1913), 170 ff.

♦ Two inscriptions from Thyateira (CIG ii, nos. 3499, 3500) call him ktIott)v· kVIII Voluntariorum.³ In spite of the discrepancy as to

iv. 3745 ILS 1033; Asbach, Bonner Jahrb. Ixxii (1882), 23 ff.; Ritterling, Archaeol.- epigraph. Mitteü. aus Oesterreich-Ungarn, xx (1897), 14ff.; Stech, Klio, Beih. x (1912), 47; Berger, PW xvi. 2549.

’ Mommsen, Sehr. iv. 384; Stech, Klio, Beih. x. 83; A. Stein, Die rom. Reichs­beamten d. Provinz Thracia (1920), 10; Betz, PW viA. 454; Diehl, PW x. 1363;

P. Lambrecht, La Composition du sdnat remain de Vaccession au träne d’Hadrien ä la mart de Commode (1936), 38. On Dio Cass. 67. 13 see Gianturco, Studi Fadda, v (1906), 37 ff.; K. Scott, Class.

* Inscriptions: (1) CIL viii. 24094 {ILS 8973) from Pupput; (2) CIL vi. 375 (ILS 2104) on his consulship; (3) CIL vi. 855 on his cura aedium; (4) ILS 7776 on the governorship of Germania. Diptych of 148 (on his consulship): Seymour de Ricci, NRH xxx (1906), 483. (For new editions see Schulz, J RS xxxii, 1942, p. 79.) Litera­ture : Mommsen, Sehr. ii. 1; Girard, Mil. i. 214, 322; Komemann, Klio, vi (1906), 178 ff.; De Francisci, RL, sei. II, vol. xli (1908), 442; Hüttl, Antoninus Pius, ii (1933), 90; Niccolini, I Fasti dei tribuni della plebe (1934), 473; Lambrecht, La Composition du sdnat, 38. See Addenda.

³ Inscription: CIL vi. 1421; ILS 1051. The father of the person named in this inscription was C. Aburnius Valens, who was consul in 109, as the Fasti Ostienses now show. The only question is which of the two is to be identified with Aburnius Valens, the Sabinian mentioned by Pomponius, D. (1. 2) 2. 53—the L. Valens of the first inscription or the consul of 109. Groag is for the consul, but his reasons are not compelling. Literature: Prosopogr. ii. 92; Calza, Notiz, d. Scavi, 1932, 190; Groag, Jahreshefte d. oesterreich, archäologischen Instituts in Wien, xxviii (1933), 185; Niccolini, I Fasti dei tribuni della plebe, 472; Lambrecht, La Composition du senat, &c., 56; Hülsen, Rhein. Mus. Ixxxii (1933), 365. On his praefecture of the feriae: Mommsen, Staatsr. i. 671; Sehr. ii. 13; Hüttl, Antoninus Pius, i. 82. On his member­ship of the consilium: SHA, Pius, 12, with Mommsen, l.c.; Hüttl, i. 79, n. 23.

⁴ Revue Archeologique, xvi (1940), 253, no. 176; xviii (1941), 315, no. 54.

’ Chi this cohors see Cichorius, PW iv. 352. the praenomen the prefect may be identical with the jurist¹ (he might have had two praenomina like Julianus and Licinnius Rufinus²); we know that the praefecti cohortium were charged with judicial functions in Hadrian’s times.³

P.

Μ. ViNDius Verus. He was consul with Pactumeius Clemens in 138 and a member of Pius’ consilium.³

Ulpius Marcellus. A member of the consilium under Pius and Mar­cus, he must have held offices, but there is no certain information.⁴

L. Volusius Maecianus. He was law teacher of the future Emperor Marcus, praefectus fabrum, praefectus of cohors I Aelia classica, adiutor of the curator operum publicorum, a libellis under Hadrian and Pius, praefectus vehiculorum and praefectus et procurator bibliothecarum, a libellis et censibus, praefectus annonae, and finally, about 160, praefectus Aegypti. He was of the consilium under Pius, Marcus, and Verus.⁷· ⁸

Tarrutenius Paternus. He had under Marcus the cura epistularum latinarum, was praefectus praetorio at latest from 179 to 183, and was then summoned by Commodus before the Senate and executed for alleged treason.’

Claudius Tryphoninus. Member of Severus’ consilium.¹ Arrius Menander. Member of Severus’ and Caracalla’s consilium.² Aemilius Papinianus. He was assessor of the -praefedi praetorio, then magister libellorum under Severus, and finally praef. pr. from 203 to 211 or 212.³

Iulius Paulus. He was assessor to Papinian as praef. pr., then magister memoriae and member of the consilium. Whether, under Alexander, he became praef. pr., is doubtful.⁴

Μ.

Domitius Ulpianus. He was assessor to Papinian as praef. pr., next, under Alexander Severus, magister libellorum and member of the imperial consilium, then (at latest by 222) praef. annonae and finally praef. prf

Herennius Modestinus. He was praef. vigilum at Rome. Other offices are not known.⁷

3.By the side of the above there were still in the second and third centuries jurists who held no office, but simply practised as consultants, law teachers, and writers. This group had already existed in the two preceding centuries. But there now developed, perhaps as early as the first century a.d., a further class of jurists, as novel as the bureaucratic group, who not only held no offices, but also were not. practising consultants, but merely teachers and writers. One may call them the academic group. It is represented for us by Gaius, Florentinus, and Marcian.⁸

4. We are not in a position to place each jurist whose name is

known to us in his proper group; and there may well have been intermediate cases.⁹ The names known to us represent, naturally, but a small proportion of the legal profession. Thus there were Literature: Krüger, 215; Beiger, PW ivA. 2405; Prosop. iii. 296. 24; A. Passerini, Le coorte pretorie (St. pubb. dal 1st. Ital. per la storia antica, fasc. i, Rome, 1939), 304. Cf. Fluss, PW iv a. 2407; Laurence L. Howe, The Pretorian Prefect from Commodus to Diocletian (1942), p. 65. ¹ Krüger, 225; Joers, PW iii. 2882.

¹ Krüger, 226; Joers, PW ii. 1257; Prosopogr. i¹. 217.

’ Joers, PW i. 572. Costa, Papiniano 1 (1894). Howe, The Pretorian Prefect, 74. The Greek inscription Bull, de corr. hell. 1883, p. 325, does not concern our Papinian; contra Sir W. Ramsay, The Social Basis of Roman Power in Asia (1941), 298.

⁴ Berger, PW x. 690; Howe, op. cit., p. 105 ff.

’ Four inscriptions: CIG ii, nos. 3499, 3500; Mitteil. d. K. deutsch, archadog. Instituts, Athen. Abt. xxvii (1902), 269; Z xxvii (1906), 420. The three first are from Thyateira in Lydia, Rufinus’ home town. The fourth, from Salonika, shows that he must have held some office there. For the rest: Miltner-Berger, PW xiii. 457. On the amici Augusti: Mommsen, Staatsr. ii. 834 ff.; Sehr. iv. 318 ff.; Cicotti, Diz. Epigr. i. 448; H. Krüger, St. Bonfante, ii. 231, overlooks the inscriptions.

⁶ Joers, PW v. 1436; Howe, op. cit., pp. too ff. ⁷ Brassloff, PW viii. 668.

⁸ There can be no doubt about Gaius. From the fact that Marcian quotes many rescripts it follows that he must have had access to the imperial archives, not that he held a position there. ’ e.g. Pomponius: Krüger, 193 ff. learned assessores,¹ of whom we know little. At Rome, in the Italian towns, and in the provinces there were lawyers of lower standing,² and from the second century there were certainly law schools in the provinces.³ Here and there in Italy there was, as early as the first century, law teaching of an elementary sort, on which Rome looked with disdain.⁴ We must be content barely to note the existence of these lower strata of the profession.

Under the Principate, as during the closing years of the Repub­lic,⁵ there existed by the side of the jurists in the strict sense a class of forensic orators.⁶ The jurists abstained on principle from appearing in either criminal or civil cases ;⁷ they left this to the professional advocates {advocati, causidici, patroni)? These latter knew some law, but not much. Discerning teachers of rhetoric such as Quintilian continued as under the Republic to exhort their pupils to deeper legal studies,’ but obviously with little success. The old lofty contempt of the rhetorician for law, as being work for duller minds, lived on ;¹⁰ a thorough study of law was even regarded as being dangerous for a student of rhetoric.¹¹ The orator needed just enough law to understand the legal advice obtained from a jurisconsult.¹² The antagonism of advocates and jurists is patent on all sides. The younger Pliny, who may be

* H. F. Hitzig, Die Assessoren der rSm. Magistrate u. Richter (1893).

⁸ Among them, e.g. Nasennius Apollinaris, Latinus Largus, and Nymphidius, addressees of letters from Paul: Kriiger, 238. Ulpius Dionysodorus: P. Oxy. 237,

viii. 2. ³ Below, p. 123.

⁴ Petron. Cena Trimalch. 46: qui plus docet quam scit. Sepulchral inscription of a magister iuris, who was an eques, date uncertain: C1L x. 8387; of a Carthaginian magister iuris, date also uncertain: CIL viii. 12418; ILS qqq8. ’ Above, p. 43.

⁴ The two professions are kept apart by Juv. Sat. 14. 191. See F. Lanfranchi, Il diritto nei retori Romani (1938), 39; Mitteis, Reichsr. 189 ff.; Seidl, PWiv A. 1355.

⁷ As under the Republic there were exceptions. Pliny, Epist. 1.22.6, says of Aristo : ‘in toga negotiisque versatur, multos advocatione, plures consilio iuvat.’ Paul, Ζλ (32) 78. 6, says of himself: ‘ego a praetore fideicommissario petebam.’

⁸ These are the titles of advocates in classical times: Tac. Dial. 1; Mommsen,

Schr. i. 453. ⁹ Inst. or. 12. 3. i f.

¹⁰ Quint. 12. 3. 9: ‘plerique desperata facultate agendi ad discendtun ius declina­verunt ; quam id scire facile est oratori, quod discunt qui sua quoque confessione oratores esse non possunt I ’ Similarly Libanius, Or. 4.18 (vol. i, p. 292, in Forster’s ed.), says that law is a subject for sluggish minds (τών τήν διάνοιαν βραδύτερων), and, Or. 62. 21 f. (Forster, vol. iv, p. 357), that in the good old times (he means our period, the Principate) ΙδύκίΙ τό μίν τούί νόμου! μανθάνίΐν τής χιίρονο! τύχη!.

¹¹ lulius Severianus (on him Radermacher, PW x. 805; Seeck, PW. ii a. 1930),

Praec. artis rhet. (Rhetorici lat. minores, ed. Halm, 1862, p. 356): ‘luris vero civilis neque omittendum studium est nec penitus adpetendum. Nam nec rudis esse debet orator, et si se multum dederit, plurimum de cultu oratoris atque impetu amittet.’ The author imitates Cicero, De leg. 1. 4. 12. ¹³ See Note Q, p. 338. taken as the leading representative of the orators in our period, as Cicero is in the preceding,¹ appeared in important cases, criminal and civil, especially before the centumviral court ;² like Cicero he expresses aloofness from the jurists.³

This antagonism appears with special clarity in Seneca, Apocol. 12. Claudius’ death was deplored, he says, only by a few causidici, whereas the jurisconsults could once more emerge from the shadows into the light of day. One of the jurisconsults, seeing how the causidici were putting their heads together and bewailing their ill fortune, goes to them and says: ‘Did I not often tell you that the carnival would not last for ever ? ’⁴

Among the orators there were naturally great social differences; there were eminent orators such as the younger Pliny, Seneca, and Fronto, but there were also second- and third-class men who had made their way up from the lower classes. In the advocate’s toga a plebeian could win promotion.⁵ Satirists⁶ inveighed against the unscrupulosity, lack of conscience, and avarice of these petty orators, but that does not justify us in judging them to have been specially corrupt. The vices of advocates are an undying topic for satirists.

(iv)

Lastly we must mention the writers of private documents, who already existed in republican times. They were not a uniform body. The craft was partly exercised by the jurisconsults. By their side were humbler practitioners, who made a living out of their modest legal lore by drafting legal documents (tabelliones).⁷ This was also a popular side-line, for habet haec respanem* and many a

* Above, p. 44.

¹ Mommsen, Schr. iv. 437 ff.

³ Epist. 4. 10: ‘contuli cum prudentibus ’; 5. 7: ‘vereor, quam in partem iuris consulti, quod sum djcturus accipiant.’ Cf. Schulz, 211 ff. The surprise often expressed at Pliny’s ignorance of law shown by his correspondence with Trajan is misplaced: he was no jurisconsult.

⁴ ‘Agatho et pauci causidici plorabant, sed plane ex animo. iurisconsulti e tenebris procedebant, pallidi, graciles, vix animam habentes, tamquam qui turn maxime reviviscerent. Ex his unus cum vidisset capita conferentes et fortunas suas deplo­rantes causidicos, accedit et ait: dicebam vobis: non semper Saturnalia erunt.’ On the Saturnalia as something like carnival see Wissowa, Religion, 207; Nilsson, PW ii A. 201 ff.

^s Petron. Cena Trimalch. 46; Juv. Sat. 8. 44 f.; 14.191; Tac. Ann. n. 7: ‘ cogitaret plebem, quae toga enitesceret ’; Mommsen, Schr. v. 616.

⁶ Collected by Friedlander-Wissowa, Sittengesch. i. 182 ff.

⁷ D. (48. 19) 9. 4. Sachers, PW ivA. 1848; Mitteis, Reichsr. 176; Grundz. 56; Koschaker, Z xxix (1908), 15. The classicality of the text cited is doubtful.

⁸ Petron. Cena Trimalch. 46.

small schoolmaster may have earned a little pocket-money by writing testaments.¹

¹ CIL x. 3969; ILS 7763, a sepulchral inscription from Capua, extols a school­master (magister ludi litterarii) thus: ‘idemque testamenta scripsit cum fide.’ CIL x. 4914; ILS 7750, the sepulchral inscription of a freedman P. Pomponius: * qui testamenta scripsit annos xxv sine iurisconsulto. ’ He was not a hedge-advocate, as Mommsen called him (Schr. iii. 123: * Winkeladvokat *), but a hedge-notary. An inscription from Cadiz mentions a sevir, Q. Valerius Littera (a so-called signum: Diehl, Rhein. Mus. Ixii (1907), 590 ff.; Lambertz, Glotta, iv (1912), 78; v (1913), 99) testamentarius.