I THE JURISTS AND THE LEGALPROFESSION

In this period the jurists belonged to definite professional groups, and it is to the description of these groups that we must confine ourselves. Quite enough is known of the names of jurists, but for the history of legal science these are of but slight interest: only seldom can we connect particular legal works with them.

(i)

The most prominent and important group is that of the bureau­cratic jurists. It is a group which, as we have previously shown,* already existed under the Principate, but in our bureaucratic period it became considerably larger. But though the number of officials who had made a serious study of law was now certainly greater than before,³ legal knowledge was not even yet a statutory condition of appointment to the higher offices of State. The higher officials were indeed, as a rule, selected from the ranks of the advo­cates, but it was only in 460 that a course of legal studies was prescribed by statute for advocates, and then only in the eastern Empire.⁴ Inside the bureaucratic group the jurists who belonged to the imperial council (consistorium)³ or to the central imperial chancery were naturally the most important. They were the real framers of the imperial rescripts and statutes, the inspirers and composers also of the great codifications. Among them must be sought the composers of the two earliest collections of constitu­tions, Gregorius and Hermogenianus ;⁶ the Codex Theodosianus was produced almost entirely by bureaucratic jurists,⁷ and the soul of Justinian’s codification was undoubtedly Tribonian, who held various high offices of State.⁸

¹ Thus the Prosopogr.

² Above, p. 104.

³ Hirschfeld, Rom. Verwaltungsbeamten, 428; Schulz, 242.

♦ Below, p. 270.

^s Hirschfeld, op. cit. 342; Seeck, PW iv. 930.

⁶ Below, p. 287.

⁷ See the lists in C.Th. (1. 1) 5 and 6, and Nov. Theod. 1; Mommsen, Praef. ad

Theod., p. ix. ⁸ Kubler, PW vi A. 2419.

(Ü)

The profession of advocate underwent an important change.¹ The jurisconsults of the classical period, like those of the last cen­tury of the Republic, had held aloof from advocacy. They left it to the rhetoricians who, possessing themselves only a smattering of law, took their instructions on the law of a case from the jurists.² And so things remained till the close of the third century. Gre­gorius Thaumaturgus, a contemporary of Modestinus, shows as much.³ Wishing to become an advocate (rhetor), he took lessons in Latin at Neo-Caesarea, his native town. His teacher 'knew some Roman law’⁴ and gave him some elementary teaching in it, holding that ‘a knowledge of Roman law would be his best equipment for life, whether he eventually became an advocate or something else’.³ Gregory, then, having studied Roman law, though without great enthusiasm,⁶ with this private tutor, resolved to go to Berytus for more serious studies in the subject. But on his way there, at Caesarea (Palestine), he fell in with Origen, who led him into quite other paths. He stayed a considerable time at Caesarea and did not proceed to Berytus, but returned to his native town to practise as an advocate,⁷ without having studied Roman law seriously.⁸ But by the fourth century things had changed in the eastern Empire : advocates now were really lawyers. It became the rule that an intending advocate should repair to a law school (not merely to a school of rhetoric in which law was taught as a side­line), to Berytus in particular, where he would study Roman law seriously for four or five years.’ This procedure, the full impor­tance of which in the history of jurisprudence has never yet been recognized, is vividly described by Libanius (314-93) in many

¹ On what follows: Bethmann-Hollweg, Rom.

² Above, p. 119.

³ Paneg. ad Origenem, i. 7 f. ; v. 56 f. See Des Gregorios Thaumaiurgos Dankrede an Origines, ed. P. Koetschau (1894). On what follows see also Collinet, Et. ii (1925), 26.

⁴ 5. 58 : ‘ Ιτυχί SI νόμων ούκ άπορος ών in fact just like the schoolmaster at Capua (above, p. no).

³ 5· 60^: μόγιστον ίσΐσβαΐ μοι *t$oSu>v’ (τοΰτο yàp τοΰνομα ckcìvo; ώνόμασίν) tire ns ρήτωρ των èv τοΐς όικαστηρίοις άγωνιουμάνων, tire καί άλλος ns tirai θΐλήσαιμι, την μάθησιν των νόμων.

⁴ 5· O2 : ίξΐπαιΖΐυόμ'ην ΐκων καί άκων τούς νόμους TooaSt. ³ $6, 2Of.

⁸ Koetschau, Praef. p.

⁹ Below, p. 275.

passages.¹ Libanius, here as always a reactionary devoid of any sympathy for or understanding of contemporary developments, exalts the good old times when the rhetorician had no need to study law but could devote himself entirely to the study of rhetoric.² To-day, he complains, young men—and indeed those of the best families—go (Athene forgive them!) to Berytus³ to study Roman law,⁴ instead of receiving their initiation into the higher mysteries of rhetoric from himself. Once again, and for the last time in the history of the ancient world, Roman law was showing its power of attraction. As of old under the Republic, and still under the Prin- cipate, it was precisely the educated and well-to-do classes who in the eastern Empire⁵ turned to jurisprudence with the object of becoming advocates and higher officials; for in the East as in the West the higher offices were in principle filled from the ranks of the advocates. The effects of this continuous stream of fresh and edu­cated recruits for legal science during the fourth century produced in the fifth an efflorescence of jurisprudence at Berytus and among the higher officials an increasing knowledge of law and an interest in legal science. To this new interest it is that we owe the Codex Theodosianus and in the end Justinian’s codification and the con­sequent preservation of Roman jurisprudence for future ages. But even in the East a course of legal studies was not at once imposed on intending advocates by statute. Once again Libanius shows quite clearly how the bureaucracy went to work: magistrates found the elegant disquisitions of rhetoricians unlearned in the law weari­some ; so they laughed them out of court and showed them the door Tike very criminals’.⁶ Stripped of rhetoric this means that a rhe­torician who had not studied law was no longer acceptable to the magistrates as an advocate. Moreover, legal studies had material

¹ Often commented on, but without the far-reaching effects of the phenomenon described being recognized, or the fact of their being confined to the East.

² Epist. ivjo (ed. Foerster; 1116 ed. Wolf); Orat. 62. 21 f. (ed. Foerster); 2. 44.

³ Ibid. 62. 21: νεανίσκοι, λίγΐΐν· tlSArts καί Kivtiv ακροατήν Ιχοντας, «is Βηρυτόν βίουσιν. He means the young men whom he has just described as οϋδαιμόνων οικιών οίς γόνος τπιφανίς καί χρήματα.

* Ibid. 2. 44: ‘He who studies rhetoric runs on the rocks. Only elsewhere is there profit—from the Latin tongue (holy Athene!) and the law: καρποί 8’ ίτόρωθον am τής ‘Ιταλών φωνής, ω δέσποινα Άθηνα, καί των νόμων (a passage misconstrued by Mitteis, Reichr. u. Volksr. 192, n. 5).

⁵ So Libanius, expressly, in the passage quoted above, n. 3. ¹

⁶ Orat. 2. 44: (6. 48) 1. 1

’ Bethmann-Hollweg, iii. 163, 165.

* Diocletian’s Edictum de pretiis, 7. 72; ‘ Ordo salutationis sportularumque pro­vinciae Numidiae’ (Bruns, no. 103) 1. 26. Bethmann-Hollweg, 164; De Ruggiero, Diz. Epigr. i. 121.

’ Licrivain, Note sur le recrutement des avocats, &c. (above, p. 268, n. 1).

¹⁰ Above, p. 109. e.g. Ammianus, 28. 1. 5: ‘Maximinus regens quondam Romae vicariam praefecturam...

^IIProved by Libanius (above, p. 269). See also Licrivain, op. cit. last note but one. ¹² In the first commission appointed by Theodosius in 429 there was one advocate

Apdlem virum disertissimum scholasticum (p. Th. (1. 1) 5). Justinian appointed on the commission for his Codex two advocates ‘Dioscorum et Praesentinum, diser­tissimos togatos fori amplissimi praetoriani’ (Const. Haec quae necessario, s. 1), and on the commission for the Digest eleven (Const. Tanta, s. 9); on that for the revision of the Codex three (Const. Cordi, s. 2). Questions put by advocates to Justinian leading to legislation :C. (2.3) 30; (2.7) 24,29; (6.38) 5; (6.58) 12; (8.4) 11; (8. 40) 27; Inst. (2. 8) 2; (3.19) 12.

positions were filled from their ranks. In the words of a constitu­tion of Theodosius and Valentinian of 442,¹ the profession was seminarium dignitatis. The biographical evidence shows that in fact numerous advocates rose to high and even the highest posts? In these circumstances the exacerbated criticism levelled at the advocates by Ammianus (second half of the fourth century) is of little importance.³ The old soldier apparently found them parti­cularly distasteful and, as usual, he generalized from individual cases of bad behaviour, such as advocates have always been and always will be guilty of. His reproaches are essentially the same as those uttered long previously by Seneca and Juvenal and de­serve to be rated no higher than they.⁴

(iii)

We encountered jurists of the purely academic type even in the second century,⁵ and in the third jurists of the bureaucratic group, such as Papinian, Paul, and Ulpian, seem occasionally to have given instruction.⁶ But in the age we are now dealing with the teaching of law, like everything else, was made bureaucratic. It was given exclusively by professional teachers, in State schools, following a fixed programme over a fixed term of years, at the end of which came a final examination; the professors were now salaried officials. Full details as to the evolution of this system are lack­ing.⁷

¹ Nov. Valent. 2. 2. 1.

² See the cursus honorum of the following advocates: Gaianus, iuris consultor et

amicus Constantini: C1L vi. 33865, Diehl, Inscr.Lat. Christ, no. 748; Seeck, PW vii. 484. Aedesius: CIL vi. 510 = ILS 4152; Ammianus, 15. 5. 4. Memmius Vitrasius Orfitus: CIL vi. 45 and 1741 = ILS 3222 and 1243; Ammianus, 14. 6.1, Seeck, PW iv a. 1144. Ragonius Vincentius Celsus: CILvi. 1759 = ILS 1272; Seeck, PWiii. 1884. Floridus: CIL vi. 31992, Diehl, no. 87. Commentary: G. B. de Rossi, Inscr. Christ, urb. Romae I (1857 f.), p. 283. Further examples: Joh. Sundwall, Abh. s. Gesch. des aus­gehenden Romertums (Helsingfors, 1919), 89 ff. On the East: O. Seeck, Die Briefe desLibanios (Texte u. Untersuchungen z. Gesch. d. altchristlichen Literatur herausg. v. O. v. Gebhardt, A. Hamack, C. Schmidt, xv, 1906), 472; 15th Homily of Makarios, Migne, PG xxxiv. 603; Fr. Fuchs, Die hbhere Schule im Mittelalier, p. 6. (Below, p. 299, n. 1.) ³ 30. 4. 8f.

* Above, p. 109. The axoAacriKos who is a common butt in the Philogelos, a fifth­century book of anecdotes, is not the advocate but the learned dunderhead.

³ Above, p. 107.. ⁶ Above, p. 122.

⁷ On what follows see especially Collinet, £/. ii: Hist, de I’icole de droit de Beyrout, where the older literature will be found. In addition: Max Conrat, Grunhut’s Z xxiii (1896), 401 ff.; ‘ Z. Kultur d. rom. Rechts im Westen ’, &c., Mil. Fitting, i (1907), 6 (offprint); Hans Peters, ‘Die ostromischen Digestenkommentare u. die Entstehung der Digesten’, SB. Leipzig, Ixv (1913), 1. Heft; Kubler, PW i a. 399 ff., and Gesch. s. 43; Barbagallo, Lo stalo e I’istruzione pubblica nelT impero romano (Catania, 1911); Herzog, ‘Urkunden z. Hochschulpolitik der rom. Kaiser’, SB. Berlin, 1935, 907; Ermini, ‘La scuola in Roma nel VI. secolo’, Archivum Romanum, xviii (1934),

³.. There were law schools at Rome and Berytus and, from 425,¹ but not, it seems, earlier, at Constantinople. Whether true law schools, in which the teaching of law was approximately on a level with the standards of Rome and Berytus, existed elsewhere is doubt­ful. In many other places law was certainly taught, but probably in more or less elementary fashion, as an appendage to grammar and rhetoric, and clearly not in a way that was of the slightest scientific importance. Tribonian, speaking obviously from knowledge/ re­lates that at Alexandria, Caesarea (Palestine), and elsewhere were to be found ignorant teachers of false doctrine; his words are con­firmed only too fully by the production of the school of Autun which we possess.³ Justinian forbade any teaching of law outside the three imperial universities of Rome, Berytus, and Constanti­nople.⁴

2. The professors were appointed by the Senates of the Univer­sity towns.⁵ They received a honorarium⁶ from the students and also a stipend.⁷ Their number appears to have been small. A statute of 425, referring, indeed, solely to Constantinople,⁸ speaks of only two professors of law; at times there may have been more.’ In any case, by the side of the official professors there were private teachers, who, however, were not allowed to use the public lecture­rooms.¹⁰ Professors of law had none of the privilegia which profes­sors of medicine, grammar, and rhetoric had long enjoyed.¹¹ The holding of a professorship was, indeed, an excusatio tutelae as early as classical times, but only at Rome.¹² In the period with which we are dealing professors of law never obtained freedom from public i43^_54 5 Brihier, ‘ Notes sur Hiistoire de l’enseignement sup&ieur h Constantinople ’, Byzantion, iii (1926), 73 ff.; C. A. Forbes, Class. Journal, xxviii (1933), 413-26.

« C. Th. (14. 9) 3 = C. (11. 19) x...........................

² Const. Omnem, s. 7: ‘audivimus etiam in Alexandrina splendidissima civitate et in Caesarensium et in aliis quosdam imperitos homines devagare et doctrinam discipulis adulterinam tradere.’

2Below, p. 301.

⁴ Const. Omnem, s. 7.

⁵ Collinet, Ecole de Beyrout, 197. Eumenius, Pro restaurandis scholis, c. 14 {Panegyr. Latini, iv), gives us an imperial epistula containing the appointment of a professor of rhetoric for the university at Autun.

⁶ See Note GG, p. 342.

⁷ C. Th. (14. 9) 3 = C. (xr. 19) 1; C. Th. (6. 21) 1; Cassiod. Var. 9. 21; Justinian, Const, pro petitione Vigilii, s. 22 (3. 802 in the stereotype Corpus iur. civ.); Collinet, op. cit. 203; Kubier, PW ³ A. 400 ff.

⁸ C. Th. (14. 9) 3. i; cf. Sayigny, Gesch. d. r. R. im Mittelalter, ³ (ed. 2,1834), 460.

⁹ Justinian’s Const. Omnem is addressed to eight professors. See Kühler, Gesch. 427.

¹⁰ C. Th. (14. 9) 3 pr. The prohibition, indeed, concerns only the school at Rome.

¹¹ Herzog, Urkunden z. Hochschulpolitik, äîã].

¹² Modestinus, D. (27.1) 6. Ã2. F.V. 150 is a careless abridgement; it concerns only law teachers in the provinces: Kubier, FW ³ A. 397.

4407.1 T munera (immunitas).¹ Even in Justinian’s revised Codex of 534 the relevant statute (C. 10. 53. 6) does not mention them; it is by a later interpolation that legum doctores has got into the text, which implies that they did at long last, we know not when, secure immu­nitas. We do not know the name of a single professor of the law school at Rome,² but no inferences can be drawn from this, since the same is true of the third century. The names of the most important professors in the eastern universities are, on the con­trary, preserved.³ In the fifth century we have the elder Cyrillus,⁴ Patricius,⁵ Domninus,⁶ Demosthenes,⁷ and Eudoxius,⁸ all, it seems, teachers at Berytus, and mentioned with special venera­tion by the jurists of the age of Justinian. They are ‘the famous teachers',⁹ 'the oecumenical teachers’,¹⁰ and sometimes 'the men of old’ or ‘the men of yore’.¹¹·¹² Amblichus¹³ and Leontius,¹⁴ though of a younger generation, still belong to the fifth century. In the sixth, up to Justinian’s codification,¹⁵ the most important are Thalelaeus,¹⁶ Theophilus,¹⁷ Dorotheus,¹⁸ and Anatolius.¹⁹ The high standing of these men is shown by their being included in the commissions for the preparation of the official codifications. There was one professor, Erotius, vir spectdbilis ex vicariis, iuris doctor,^M on the commission for the Codex Theodosianus, and one, Theophi­lus²¹ of the University of Constantinople, on that for the Codex lustinianus in 528. Dorotheus was on the commission for the revi­sion of the Codex.²² Four professors—Theophilus, Cratinus, Doro­

’ Collinet, ficole de Beyrout, 205.

2 Perhaps Floridus was professor of the law school at Rome; see the inscription cited above (p. 272, n. 2): ‘ publica post docuit Romani foedera iuris. *

3 On what follows: Collinet, op. cit. 119 ff.; Heimbach, Proleg. ad Bas. vi, pp. 8 S.

♦ Berger, PW, Suppl. vii. 337. » Berger, PW xviii.

⁶ Joers, PW v. 1521. ⁷ Ibid. ix. 190.

⁸ K&bler, PW ii. 927. ⁹ ol em/aveis (or imfaariararoi) Si&doKahoi.

¹⁰ ol rijs oiKovfilvTjs 8i8d» Ibid. 14X. ¹⁴ Berger, PW, Suppl. vii. 373.

^IS Collinet, op. cit. 303 on what follows. ¹⁶ See Ktibler, PW v a. 1208.

¹⁷ Ibid. 2138. ¹⁸ Joers, PW v. T572.

¹⁹ Hartmann, PW i. 2073. ²⁰ C. Th. (1. r) 6. 2.

²¹ Const. Haee quae necessario, s. 1; Const. Summa, s. 2.

²² Const. Cordi, s. 2.

theus, and Anatolius¹—sat on the Digest commission, while the commission for the Institutes consisted of Triboman and the two professors Theophilus and Dorotheus?

3. We know the plan of studies followed in the two eastern uni­versities.³ Justinian’s Const. Omnem, which regulates the future curriculum under the new codification, relates that which existed in 533,⁴ but we know that this goes back to the fifth century and that it was probably evolved at Berytns. Justinian’s constitution, which was issued in Greek as well as Latin,⁵ has reached us only in the Latin version and unfortunately, in important passages, in a corrupt state.⁶ Nevertheless we can in essentials make out the course of studies, and this throws important light on the intellec­tual state of the Byzantine law schools. The period of study seems to have been fixed by statute only as late as a constitution of Anastasius of 505.⁷ Unfortunately we have only the version of this constitution given by the Codex lustinianus, where the com­pilers, in their usual style, have replaced the definite number of years by per statuta tempora, which tells us nothing. But from Const. Omnem, taken with Const. Imperatoriam, we can see that the period was five years; doubtless Anastasius merely made statu­tory what had long been sanctioned at Berytus by custom. In the first year there were lectures on six books, namely Gaius’ Institutes and four so-called libri singulares (de re uxoria, de tutelis, de testa­mentis, and de legaiis). We must infer that only two of the four books of Gaius’ Institutes were taken,⁸ since it is improbable that a shortened edition of that work, in two books, was used.’ The libri singulares seem to have been anonymous post-classical com­pilations.*⁰ First-year students bore the slang name of dupondii,¹*

¹ Const. Tanta, s. 9. ² Const. Imperatoriam, s. 3; Const. Omnem, s. 2.

² On what follows: Collinet, ficole de Beyrout, 219 ff.; Kubler, Gesch. 429 ff.; PW i A. 402; Cantarelli, Rend. Line. 1926, ii. 12; Wieacker, Z Ixv. 298.

⁴ Const. Omnem, s. 1. ⁵ Const. Tanta, s. 22 if.

⁶ At the beginning of s. 1. This should be recognized at long last, and attempts by hook or by crook to force a meaning out of the text should be abandoned. The words ‘et primi anni’ rell. show that the lectures of the primus annus have already been mentioned. The six libri spoken of can only have been connected with the lectures of the first year, since Justinian cannot have used the word liber in two different senses in the same sentence. The Accursian Gloss is right; wrong Kruger, 395.

² C. (2. 7) 22. 4. Cf. C. (2. 7) 24. 4.

⁸ Cf. Mommsen, Sehr. ii. 35, n. 25. Only eight books of Papinian’s Responsa were lectured onl

’ Below, p. 304.

¹⁰ Schulz, T xvii (1939), 19 ff.; Dull-Seidl, Z Ixi (1941), 406.

¹¹ Const. Omnem, s. 2: ‘vetere tam frivolo quam ridiculo cognomine “dupondios” appellari.’ meaning simply ‘recruits’J In the second year the lectures were on the Edict, with Ulpian’s commentary as the probable text­book/ and the students were called edictales.^{[439] [440] [441]} In the third year lectures on the Edict continued and eight books of Papinian’s Responsa were also interpreted, the students being therefore called Papinianistae.* In the fourth year Paul’s Responsa were studied, but privately, without public lectures, though no doubt with the help of private teachers, whose existence is expressly evidenced.® The students of this year were called Lytae (λυται),^{[442] [443]} which must mean solutores,¹ the λΰσι? or solutio referred to being the solution of doubtful and difficult legal problems. In the fifth year the im­perial constitutions were studied,^[444] but without compulsory public lectures.^[445]

Further details of the method of instruction are obscure. In the eastern universities, from an early date, lectures were given in Greek. For the fifth century this is an ascertained fact, and that they were given in Latin in the fourth century is a priori improb­able^{[446] [447] and unsupported by any evidence. If Gregorius Thauma- turgus learnt Latin in preparation for Berytus,” that was because the leges, edicta, senatusconsulta, and constitutiones were in Latin, and the classical literature also. Again, when Libanius complains that Latin was triumphing over Greek at Berytus,12 he is referring to the language of the legal sources, not to that in which lectures were given.}

4. In the matter of special law for students, we know that at Rome they were obliged to register with the mctgister census, who supervised their discipline.¹ There must have been similar arrange­ments in the eastern universities. That brawling was rife in the East, at any rate, we learn from Justinian’s strictures.² Diocletian freed the students of Berytus from munera up to the age of 25 ;³ the same probably held good at Rome. There is a western constitu­tion of 370⁴ permitting residence at Rome for the purpose of study only up to the end of a student’s twentieth year. The two ages are irreconcilable: either the compilers have substituted xxv for xx in Diocletian’s constitution, or, as is more probable, we ought to emend vicesimum in Valentinian’s constitution of 370 to vicesimum quintum.

(iv)

Besides the three groups described there was, of course, a body of subordinate jurists in this period. To it belonged not only, as in the earlier period, the scribes (tabelliones),^s but also consultants who, as has been shown above,⁶ continued to exist in the western Empire till the very end of our period. Even in the classical period’ the functions of advising parties and instructing advo­cates had been exercised by an inferior class of lawyers; the change lay in the disappearance during our period of the independent, authoritative jurisconsults of the classical period: for them there was no place in a bureaucratic age.

’ C. Th. (14. 9) 1.

² Const. Omnem, s. 9. Cf. Kubler, Gesch. 433, giving the literature, and Collinet, op. cit. 99 ff.

³ C. (10. 50) r.

⁴ C. Th. (14. 9) r. Collinet, op. cit. 112.

’ Sachers, PW iv A. 1847. ⁶ Above, p. 270. » Above, p. 108.