II THE LEGAL PROFESSION

The present chapter describes the field in which the jurists operated and the forms of their operations. Though these forms were every­where very similar, it will be necessary to treat sacral, private, and public law separately and, with regard to sacral and public law, owing to the scantiness of our information as to the archaic period, to rely on evidence from the following period.

(i)

i. The chief duty of the Roman as of other priests was, by medi­tation on the nature and will of the divinity and from religious experience, to discover the laws governing the relations of man to God (ius divinum, sacrum, fas) ;* in other words, to define and in­terpret the sacral law.² To the priests were due the complicated rituals, such as the hymn of the Arvai brethren,³ the chants of the S altaresfi and the multitudinous ceremonial rules which are to be inferred from various fragments³ and the Tabulae Iguvinae? To them also were due the principles governing vows, dedications and consecrations, the statutes of the temples and sacred groves, the sepulchral law, and the international law of declaration of war and conclusion of treaties.⁷ In these matters, though in general the State left them a free hand, they were limited by the ius publicum. It was for the State to determine what cults might and should be practised within its territory, and it was within its competence to reject as erroneous the legal pronouncements of the priests.⁸

¹ Berger, PW X. 1212,1292; Mitteis RP i. 22 ff.

² Cic. De dome, 41.107: * Equidem sic accepi, pontifices, in religionibus suscipiendis

caput esse interpretari, quae voluntas deorum immortalium esse videatur.’ De harusp. resp. 6. 12: ‘... quod tres pontifices statuissent, id semper populo Romano, semper senatui, semper ipsis dis immortalibus satis sanctum, satis augustum, satis religiosum esse visum est.’ Cf.

³ Text and older literature: Schanz-Hosius, i, s. 7; later especially Ed. Norden, Aus altrbm. Priesterbuchern, 109 ff., on which Weinstock, J RS xxx (1940), 84 ff.

⁴ Schanz-Hosius, i, s. 7.

⁵ On the existing collections of fragments (defective and in part difficult of access) see G. Rohde, Die Kultsatzungen d. rom. Pontifices (Religionsgeschichtliche Versuche u. Vorarbeiten, xxv, 1936), 6 ff.; Wissowa, s. 1 and p. 527, n. 5.

⁶ On the Tabulae Iguvinae see Philipp, PW ix. 968. Latest edition: Devoto,

Tabulae Iguvinae, 1937. ⁷ On all these conceptions: Wissowa.

^s Nillsson, 251, is wrong.

Conflicts with magistrates, Senate, and Comitia were inevitable,¹ but, owing to the sociological character of the priestly colleges^{[13] [14] and to Roman discipline and piety in this period, also rare.}

2. Sacerdotal declarations of the law took the following forms: (i) general rules in the style of the Twelve Tables, such as we have in the so-called leges regiae ;^[15] (ii) instructions for the performance, whether by priest or layman, of sacral acts;⁺ (iii) oral formulae for use in sacral acts, often combined with the ceremonial instructions just mentioned; (iv) ‘opinions’ {responsa, decreta) on questions of sacral law,^[16] to which we shall return immediately, (v) There is no mention of a sacerdotal ius edicendi, but the pontifex maximus must surely have possessed it,^[17] seeing that inscriptions^{[18] [19] [20] have preserved edicts, though not earlier than the time of Augustus, of the quindecimviri, who correspond to the decemviri sacris faciundisfi of our period. There was, however, no development of pontifical edictal law parallel to that of the praetorian edictal law of later days.}

3. The formalism of the sacral law caused the assistance of a priest at the performance of the more important sacral acts to be considered desirable and even necessary. The actual performer of a votum, devotio, dedicatio, or consecratio was the magistrate, but he was assisted by & pontifex, who prompted him in the verbal formula and any prescribed ritual gestures.’

4. Of special importance in the development of legal science were the sacerdotal 'opinions’ {responsa, decreta).^[21] When the question put to the priests was whether a contemplated sacral act was admissible and, if so, in what form, the opinion would be in the

nature of advice on action to be taken: we will call such opinions ‘cautelary’. But the priests might also be prayed to pronounce on the legality of an act already performed; in this case the answer would be in the nature of a judicial pronouncement, though not of a judicial sentence in the legal sense: we will call such opinions 'judicial’. In neither case did the priests inquire into the facts of the case; their answer would be given on the hypothesis that the allegations of fact were true (‘si haec quae proponuntur vera sunt, secundum ea quae proponuntur’), and would thus deal solely with the question of law. In principle a priestly declaration of law was not argued, but authoritative: stat pro ratione auctoritas. One could disregard it, but at one’s own risk.¹ Whether the responsum was given by the whole college or by an individual member of it depended on the importance of the case and of the person puttingthe question.² A magistrate, naturally, was always entitled to demand a responsum of the whole college, since in sacral law the four priestly colleges were his consilium, as the Senate was in public law.

Cautelary responsa of the pontifices. Octavian before marrying Livia, who had recently been divorced and was with child, asked the pontiffs: 'an concepto necdum edito partu recte nuberet’ (Tac.

1 After the pontifical college had advised on the consecration of Cicero’s house (Ad Alt. 4. 2. 3), the pontiffs who were members of the Senate were asked in the Senate for their reasons (‘quid essent in decernendo secuti’); the responsum gave no reasons. They refused to answer: ‘M. Lucullus de omnium collegarum sententia respondit: religionis iudices pontifices fuisse, legis senatum ’ (Ad Att. 4. 2. 4). See the passages of Cicero cited above, p. 15, n. 2.

2 Cf. Joers, i. 36, 43 ff.; Cic. De dome, 45. 117; De harusp. 7. 13.

3 So also Dio Cass. 48. 44, giving also the pontiffs’ answer: it was that if there was any doubt whether conception had taken place, the marriage should be put off, but if the fact of conception was admitted, there was nothing to prevent its taking place immediately.

♦ C1L x.8259; ILS 8381; Bruns, 76. Further evidences: Wissowa,479; Brunsp.385.

⁵= libello, the written question to the pontiffs.

⁶ The text here is defective. ⁷ = puellam. ⁸ = sacello.

4497.1. C

deponere et scripturam tituli at pristinam formam restituere piaculo prius dato operis faciendi ove atra.’¹ In ordinary cases such responsa were usually given by a single pontifex without a decree of the college.²

Cautelary responsa of the Fetiales: ‘consulti fetiales ab consule Sulpicio (200 b.c.) bellum, quod indiceretur regi Philippo, utrum ipsi utique nuntiari iuberent, an satis esset, in finibus regni quod proximum praesi­dium esset, eo nuntiari, fetiales decreverunt, utrum eorum fecisset, recte facturum’ (Liv.

Judicial responsa. In 57 B.c. the consuls asked the pontifical college whether the consecration of Cicero’s house was valid. The terms of the responsum were: ‘Si neque populi scitu neque plebi scitu is, qui se de­dicasse diceret, nominarim ei rei praefectus esset, neque populi iussu aut plebi scitu id facere iussus esset, videri posse sine religione eam partem areae M. Tullio Ciceroni restitui’ (Ad Att. 4. 2.3). A similar responsum: Cic. De domo, 53. 136. Camillus had vowed one-tenth of the spoils to Apollo. Did this extend to movables ? The pontiffs, when consulted by the Senate, decided: ‘Quod eius ante concepturil votum Veientium fuis­set et post votum in potestatem populi Romani venisset, eius partem decumam Apollini sacrum esse' (Liv. 5. 25. 7). In 194 b.c. the pontiffs pronounced that the vow of a ver sacrum had been improperly fulfilled: ‘Cum P. Licinius "non esse recte factum” collegio primum, deinde ex auctoritate collegii patribus renuntiasset, de integro faciendum arbi­tratu pontificum censuerunt’ (Liv. 34. 44. 2). In 327 b.c. the consul named a dictator: 'nec tamen ab dictatore comitia sunt habita, quia, vitione creatus esset, in disquisitionem venit, consulti augures "vitio­sum videri dictatorem” pronuntiaverunt’ (Liv. 8. 23. 14).*

5. The pontifex maximus was the judge in disciplinary pro­ceedings against members of his college,⁵ but otherwise no judg­ments in the true legal sense were delivered by the priests.

6. There was no formal instruction in sacral law. Members of the colleges learnt the law of their department empirically, with assistance from their seniors and the secretarial staff. The college archives lay open to the industrious.⁶

7. Literary activities were confined to the drafting of responsa

1 Further evidences: Wissowa, 479.

2 Settlement of a question by the promagister of the college: ILS 8380; CIL vi. also, but only in A.D. 155; cf. Wissowa, 509.

3 Further evidences on this question: Wissowa, 551, n.

4 Similar responsa of the augurs: Wissowa, 531.

5 Mommsen, Staaisr. ii. 54 ff.; Wissowa, 510; Zmigryder-Konopka, ‘Pontifex maximus, iudex atque arbiter rerum divinarum humanarumque’, Eos, xxxiv (1932/3), 361 ff·

6 Thus, in this period, one who was not a member of a priestly college could not study sacral law. This is Cato’s meaning when he says: ‘Ego me nunc “volo” ius pontificium optime scire: iamne ea causa pontifex capiar? si “volo” augurium optime tenere, ecquis me ob eam rem augurem capiat?’ (Cato, Orig., in Geli. I. 12.17. See below, p. 40). and of minutes for the archives. We shall have occasion to return to this subject below.¹

8. The priests’ purely religious functions lie outside our scope. Even the very singular proceedings of the Fetiales acting as inter­national heralds of the Roman State (publicinuntiipopuli Romani)* require no more than bare mention.

1. The rules of private law, like those of sacral, were ‘found’ by the pontifices, but the forms taken by their 'findings’ were some­what different. There was no formulation of abstract rules. Apart from the rogatio of the pontifex maximus in the comitia calata, the responsum was the sole medium available. We must proceed to further discussion of both rogatio and responsum.

2. From ancient times the pontifex maximus had the right to convoke the comitia curiata and to elicit its consent to adrogations (adoptions of persons sui iuris) and testaments.^[22] The power of developing the law involved by this right, which was as old as ad­rogation and testament, should be clearly realized. A magistrate who wished to pass a statute through a popular assembly had to lay before it an exactly formulated proposal, which the assembly could only either accept or reject as a whole.^[23] The pontifex maxi­mus, similarly, had to present to the comitia curiata an exactly formulated adrogation or testament. Now this means that the Pontifex maximus had complete control of the form to be taken by these acts in the law. He could refuse to propose any formulation which he judged to be incorrect: for example, he might insist that a testament should begin with the institution of a heres,^{[24] [25] that this should be by the words heres estop that children not instituted must be expressly excluded (exheredaiid), sons nominaiim, daugh­ters and grandchildren by a general clause,7 and so on. In this way, so long as the testamentum calatis comitiis remained in use,8 the pontifex maximus exercised a decisive influence on the develop­ment of the law of wills.}

3. In private law, as in sacral, the giving of responsa or ‘opinions’, whether with regard to acts contemplated (cautelary opinions) or acts already performed (judicial opinions), was the most important form of juristic activity. We read that the pontifical college dele­gated this function annually to one of its members,¹ which is likely enough, since the work would mostly be routine.^{[26] [27] By their cautelary responsa the pontifices supplied applicants with the mani­fold formulae required for the acts (actiones in the wider sense)[28] of the older private and procedural law, and these were accepted by practice. They comprised the forms of institutio heredis (in­cluding the various kinds of substitutio or alternative institution), disinherison, nomination of tutors, cretio and its observation, legacies, confarreatio, adrogation, mancipation (including its fidu­ciary uses for the purposes of making a will and marriage), in iure cessio (conveyance by surrender in court), manumission vindicta, the oldest forms of the verbid contract (sfionsio, fidepromissio), entry into bondage (nexum), release from obligation by the cere­mony with bronze and scales (solutio per aes et libram) or by formal words (acceptilaiio), and finally the forms of action (legis actiones).[29] The whole of this vast treasury of formulae is the work of the pon­tiffs : they are so obviously the product of rational technical think­ing[30] and, on the other hand, so closely similar to the actiones of sacral law, that no other authorship is conceivable.}

Some of these acts were already contemplated by the Twelve Tables, and the work of the pontifices consisted in giving them shape. But in other cases the whole act, form and content, was a pure creation of the pontifical cautelary jurisprudence: examples are adrogation, emancipation, the mancipatory testament, fidu­ciary mancipation, cretio, and the forms of legacy. Naturally the pontiffs would not recommend a formula to a client except as en­suring the validity of the act in question. If later its validity was disputed, an authoritative decision would be given by a court of law. There may have been argument in court, but on this point we have no real information: Pomponius’ reference^[31] to disputation in the forum is certainly not based on a genuine ancient tradition,^[32] but merely depicts olden times with colours borrowed from the last century of the Republic. As a rule the auctoritas of the pontiffs would secure the acceptance of any formula recommended by them. But many a formula may have had its history; the first drafting may not have given satisfaction, and there would be revision, ad­ditions, and clarifications until it was considered that the utmost perspicuity and legal precision had been achieved.

Of judicial responsa, on acts already accomplished, we know little except that they certainly were given.¹

4. The pontifices did not function in the field of private law either as judges, in the proper sense, or even as advocates.² Nor, apparently, did they assist at the accomplishment of private acts in the law, the formulae being here simpler than those of sacral law. In the legis actiones parties were certainly prompted in their formal utterances by experts,³ but this was a matter of routine, which the pontiffs may well have left to their secretarial staff.⁴

5.Instruction in private law was at first to be acquired only in the same way as in sacral. But early there grew up a kind of public instruction, in that responsa were given to some extent in public, which means that a circle of auditors was admitted to the consul­tations. We have already maintained that the tradition which gives Tiberius Coruncanius the honour of having been the first pub­lic teacher of private law rests on shaky foundations.⁵

6. Literary activity in private law was confined to the drafting of responsa and formulae. At first these were not published, but reposed in the pontifical archives.⁰ We have already spoken of Cn. Flavius’ collection of formulae.⁷

7.The responsum, whether cautelary or judicial, was so much the essential function of the jurists who, from the second half of the third century b.c., practised in private law without being members of the pontifical college,⁸ that it gave them their title: they are called iuris consulti. But it was from this group of jurists that, to­wards the end of our period, came the first literary publications. The commentaria tripertita of Sex. Aelius Paetus Catus⁹ are the

¹ The responsum reported Gaius 4. 11 must come from this period. Responsa of Tib. Coruncanius are mentioned by Pomp. D. (1. 2) 2. 38, but the two that survive (Bremer, 1, 8) are on sacral law. Responsa of Sex. Aelius Paetus are mentioned by Cicero, De or. 3. 33.133; De re pub. 1.18. 30.

² So Joers, 46 ff. Cf. Wlassak, Prozessformel, 108, n. 83, giving the literature.

³ Cic. p. Mur. 12. 26: ‘ transit idem iure consultus tibicinis Latini modo. ’ Cf. Wlassak, Anklage u. Streitbefestigung, Abwehr 9; Prozessfarmd 84; Cic. De or. 3. 60. 225; R. Büttner, Porcius Licinus (1893), 80 ff.

⁴ Above, p. 12. ^s Above, p. 10. ⁶ Below, p. 34.

7 Above, p. 9. ⁸ Above, p. 11. ⁹ Above, p. 10. first juristic work which advanced beyond a bare collection of formulae and which was composed for publication.¹

(iii)

Within the limits set by statute (leges), the development of public law was in the hands of the circle of men whom we have pre­viously² designated ‘jurists of the public law’. Their work took the form of the composition of ceremonial instructions and formulae for the various acts of the public law. All the regulations and rules which we are accustomed to term indiscriminately ‘Roman con­stitutional law’ are of their making, for example the regulations governing the holding of the popular assemblies (comitia), of pre­paratory meetings (contiones),³ and meetings of the Senate,⁴ the scheme and style of a lex or senatusconsultum, the rules and pro­grammes of certain regularly recurrent acts of the magistrates— prayers, oaths, official nominations and instructions.⁵ The crabbed formalism of these sacramental formulae and symbolic rituals is the counterpart of the formalism of sacral and private law; it be­trays infallibly the hand of the professional jurist. Their authors, of course, also functioned as consultants, but in this matter no special forms were developed, because legal advice on questions of public law would simply be delivered at a sitting of the Senate. Literary productions consisted merely in the drafting of cere­monial instructions and formulae, of the official records of the magis­trates, and lastly of the leges and senatusconsulta themselves.⁶ None of these productions, except the last, were intended for publication; they were kept in the archives of the State and of the earlier magistrates. In the official classes instruction in public law was often imparted by father to son, with the help of the family archives ;⁷ apart from this, a man was left to acquire his knowledge of and insight into the ius publicum in the school of political ex­perience.

¹ On this work see below, p. 35.

² Above, p. 11.

⁴ Ibid. iii. 906 ff.

⁶ Below, p. 36.

³ Mommsen, Slaatsr. iii. 369 ff.

³ Below, p. 36.

⁷ Mommsen, op. cit. i. 5, no. 2.