II THE LEGAL PROFESSION

In sacral and public law legal practice continued during the Hel­lenistic period unchanged from what it had been in the archaic period. Thus there is nothing to add to what has already been said,¹ and the present chapter may be confined to private law.

(i)

In private law the main function of a jurisconsult continued to be to give cautelary and judicial responsa.²· He had to advise how a will or contract should be framed in order to produce the desired practical results, or on the legal position resulting from the facts of a case submitted to him and on any consequent processual re­medies.

1. The jurists of this period were much engaged in drafting wills and contracts. Cicero gives a clear picture of the importance of this function {cavere) in the practice of the leading men of the second century ;³ he is drawing on a sound oral tradition, in parti­cular on the reminiscences of his teachers,⁴ and what he says is confirmed by M’. Manilius’ book of precedents {formulae), to which we shall return later.⁵ Naturally illustrations cannot be numerous, but the cautio Muciana,⁶ the stipulatio Aquiliana,¹ and the po­stumi Aquiliani³ are sufficient evidence. Even the latest republi­can jurists—Servius, Cascellius, Ofilius, and Trebatius—continued to exercise this same function. In Cicero’s time, however, the routine of advising the ordinary public, especially the small man, had passed into the hands of minor jurisconsults and subordinate scribes. The great iurisconsulti came into action only on behalf of their friends or of exalted personages, or when an unusually knotty point arose.’

2. In its application to litigation cautelary jurisprudence under-

¹ Above, p. 15 ff. ³ Above, p. 19 if. ³ See Note G, p. 334.

⁴ Above, p.

⁷ A form of stipulatio devised by Aquilius Gallus whereby all outstanding obliga­tions of one party to another were novated into a single money obligation, which, having been created verbis, could be released by acceptilatio (Gaius, 3. 170). On our tradition of the precedent: Wlassak, Z xlii (1921), 394 ff.; De Ruggiero, St. Marghieri, 413 ff. (not accessible).

⁸ See D. (28. 2) 29 pr. (interpolated). Cf. U. Robbe, I postumi nella successions testamentaria Romana (1937), 66 ff.; Diilckeit, Z Ivii (1937), 463.

* See Note I, p. 335.

4497.1 E went in this period a notable development. The pontiffs, and the lay jurisconsults who succeeded them, had instructed parties in the solemn words of the forms of action (legis aciiones) by dictation or by prompting in court (either personally or through their secre­taries).¹ By the second century these forms had become stereo­typed ; they were few, and the development of new forms seemed impossible. But with the introduction of the formulary procedure by the lex Aebutia (second century) a task of unprecedented im­portance was laid upon the jurisconsults.^{[70] [71]} It was now the business of the plaintiff to present to the magistrate (the most important was the praetor) a draft statement of claim (formula); the defen­dant might propose modifications of the draft, for example the insertion of a special defence (exceptio); the magistrate too might make his authorization of the proposed formula conditional on the plaintiff accepting certain changes in it. The settling of the for­mula was thus an extremely technical process, for which profes­sional help was indispensable, since neither the parties nor the magistrate, unless by exception he happened to be a jurist himself, would possess the requisite legal knowledge.^[72] The work of the pontiffs in composing the solemn words of the legis actiones was insignificant in comparison with the achievements of the jurists of the Hellenistic period in devising the formulae of the new proce­dure.

A full account of the fruitful use made by the jurists of this great opportunity would carry us into every branch of private law. A few illustrations, must suffice. In the field of delict, the meagre provisions of the l: Aquilia were very considerably extended by means of modified formulae (actiones utiles) ;* also the archaic law of iniuria of the Twelve Tables² was modernized by means of the new actiones iniuriarum, the concept of iniuria, from having de­noted only personal assaults, being widened so as to cover any attack on the moral personality.³ The actiones metus and de dolo were complete novelties. In the field of contract the most impor­tant development was the recognition of the legal validity of the consensual contracts.⁴ How this came about is no mystery: some jurist or jurists proposed to the praetor the formula of an actio empti or venditi which instructed the iudex to award to the plaintiff whatever as a matter of good faith (ex fide bona in contrast to ex iure Quiritium) was due to him from the defendant, and this for­mula was accepted by the praetor and acted on by the iudex, who himself was advised by jurisconsults. The fact that Cicero, not merely in his burlesque pro Murena,⁵ but also in his serious treatises De oratore and De legibus,⁶ jeers at the juristic elabora­tion of formulae is merely further proof that he was indeed ‘vir nihil minus quam ad iurisprudentiam natus’.⁷ Exceptionally we find formulae named after the jurist who first conceived it⁸ or the praetor who first sanctioned it or incorporated it in his Edict.⁹ It would, however, often happen that a formula as first proposed would not be found satisfactory and that it would be perfected by other jurists.¹⁰ Hence, on the whole, the formulae are a corporate work and are consequently anonymous.

¹ Gaius, 3. 219, and the text-books. D. (9. 2) 39 shows that the actio l. Aquiliae utilis was already known under the Republic, for the action allowed by Q. Mucius si consulto equam vehementius egisset was an actio utilis, as we see from Gaius, 3. 219; our text has been shortened. * 8. 2-4.

³ Cf. Lenel, Ed. s. 190 ff., p. 397. ⁴ Below, p. 83.

³ 13. 29; cf. above, p. 44, n. 7.

⁶ De or. 1. 55. 236; De leg. 1. 4. 14; Wlassak, Prozessformel, 1. 37 ff.

⁷ Liv. Perioch. in: ‘ Cicero vir nihil minus quam ad bella natus.’ Cf. above, p. 44.

⁸ So the indicium Cascellianum (Gaius, 4. 166a, 169), from the jurist Cascellius: Wlassak, Prozessformel, i. 32. The actio de dolo is never called after its originator Aquilius Gallus. He probably composed it as a practising jurisconsult, not as praetor. Beseler, Bull, xxxix (1931), 314, believes that he introduced the formula as praetor peregrinus.

⁹ Certain in the cases of the formula Octaviana (Cic. in Verrem, ii. 3. 65, 152; cf. Schulz, Z xliii. 217), of the actio Rutiliana (Gaius, 4. 35), and the actio Publiciana (Inst. 4. 6. 4). In other cases we are left in doubt whether the name comes from a jurist or a praetor: e.g. the actio Serviana of the bonorum emptor and the creditor pignoris, the interdictum Salvianum, the actio Calvisiana, the actio Fabiana. On these actions see Lenel, Ed.; Weiss, Z 1 (1930), 255; Wlassak, Prozessformel, i. 33.

¹⁰ Aquilius Gallus himself did not propound several formulae de dolo·. Beseler, Bull, xxxix (1931), 314, against Wlassak, Prozessformel, i. 26, n. 3.

3. Response in the narrower sense,¹ that is of the type we have denominated judicial, retained their great importance. Gladly and frequently sought by the public, they were readily given by the jurists. Just as a person accused of a crime would procure several orators (sometimes as many as twelve)² to defend him, so on one and the same question of private law the responsa of a number of jurists might be obtained—a parallel to medieval practice in ob­taining consilia.

(ii)

Not less important than their advice to private clients was the advice given by them to lay iudices and to the magistrates ad­ministering private law—the praetors, aediles, and provincial governors. In every branch of Roman life it was the practice that a man who had to make a serious decision should take counsel of competent and impartial persons.⁶ A iudex, once the law had be­gun to shed its primitive simplicity, could hardly dispense with professional advice, unless indeed he happened to be himself a jurist. There is clear evidence that in Cicero’s day iudices normally took jurists into their consilia ;⁷ the magistrates did the same, at

¹ Responsum covers equally advice on drafting of contracts and wills; but some­times responders is contrasted with cavere: e.g. Cic. De or. 1.48. 212; De leg. 1. 5. 17.

² Mommsen, Strafr. 377.

³ Cic. De or. 1. 45. 200, from personal observation; 3.

⁴ Pomp. D. (1. 2) 2.49: the subject to scribebant is qui consulebant;see De Visscher,

RH xv (1936), 618. ⁵ Wlassak, Prozessformel, i. 40 ff.

⁶ Mommsen, Staatsr. i. 307 ff.; Liebenam, PW iv. 915; Schulz, 168.

⁷ Cic. Top. 17. 65: ‘Privata enim iudicia maximarum quidem rerum in iuris consultorum mihi videntur esse prudentia. Nam ?t adsunt multum et adhibentur least on occasion,! and furthermore their secretarial staffs would possess some knowledge of the law.² But more important than this is the unofficial collaboration of the jurists in the composition of the Edicts. It is beyond doubt, though there appears to be no direct evidence,³ that the real authors of the praetorian, aedilician, and provincial Edicts were the jurisconsults.⁴ That this is true of individual model formulae offered by the Edicts has already been pointed out.⁵ More than this, the whole principle underlying the edictal development of the law can have been originated by no lay­man. It consisted in utilizing the fact that the formula was an agreement on the terms of an arbitration confirmed by the magis­trate in such a way as to amend and complete every branch of private law. Those who conceived this masterly idea were surely pupils of the pontifices, who in their own day had found in agree­ment an instrument for introducing some striking reforms, such as the mancipatory will.⁶ Technicalities such as nudum ius Quiri­tium and bonorum possessio are manifestly of professional origin.

(ui)

Like any other qualified persons jurisconsults might serve as indices, and occasionally we hear of their doing so.⁷ But in general their activities in this respect were not important; only Aquilius Gallus seems to have engaged in them to any notable extent.⁸

(iv)

The jurisconsults of this period also appearedin court as advocates. So far as proceedings before the magistrate (in iure) are concerned, this is implied by their collaboration in the drafting of formulae.⁹

in consilia et patronis diligentibus ad eorum prudentiam confugientibus hastas ministrant.’ Cf. Joers, 241; Schulz, 241.

¹ Cic. p. Flacco, 32. 77; De or. 1. 36. 166; 1. 37. Cf. Joers, 241; Wlassak, Prozess­

formel, 23. Not right: Mommsen, Staatsr. ³. 310; De Ruggiero, Diz. epigr, i. 101;

ii. 612. -

² Cic. De leg. 3. 20. 48: ‘animadverto plerosque in magistratibus ignoratione iuris sui tantum sapere quantum adparitores velint.’ The adparitores were the magistrate’s scribae. On their legal knowledge see above, p. 12. Seneca, De tranqu. 3. 4: * Praetor adeuntibus adsessoris verba pronuntiat.’

³ Karlowa, RG i. 479. Joers, 241.

♦ Mommsen, Schr. vii. 712; Joers, l.c. ’ Above, p. 50 f. ⁶ Above, p. 26 f.

⁷ P. Mucius as iudex: Auctor, ad Herenn. 2. 13. 19. Aquilius Gallus: Vai. Max. 8. 2. 2, and in Quinctius’ case: Kiibler, Z xiv (1893), 54.

⁸ Aquilius Gallus refused the consulship (above, p. 43), ‘et iuravit morbum et illud suum regnum iudiciale opposuit ’: Cic. Ad Ait. 1.1.1; cf. Wlassak, Z xlii (1921), 394. Cic. Ad fam. 9. 18.1 refers to his own regnum forense.

⁹ Above, p. 50 f. This is what Cic. De or. 1. 48. 212 means by agere (procedure in iure) by the side of cavere and respondere. Cf. Wlassak, Prozessformel, i. 64, n. 15 i.f. But they also appeared before the index or indices and presented their clients’ cases. Here, however, from the middle of the second century they were confronted with the competition of the orators,¹ with which, as time went on, they were less and less able to cope. The elements of rhetoric, which they had learnt as schoolboys,^{[73] [74]} were no longer a sufficient armament in the battle with profes­sional orators. Ordinary private cases before single indices would give little scope for the display of rhetorical skill ;^[75] in the sphere of private law it was the centumviral court that became the favourite arena of the orators.^[76] Jurisconsults such as Q. Mucius pontifex and Servius took up their challenge. But Cicero criticizes Q. Mucius’ style of oratory as ‘too juristic’ ;^[77] it is significant that he can only describe him as ‘the best orator among the jurisconsults’.^[78] Servius was a fully trained rhetorician, but as an orator he was, according to Cicero’s not entirely impartial opinion, only in the second rank.^[79] As a rule the jurisconsults were not masters of the higher flights of rhetoric^{[80] [81]} and had no desire to become such, the truth being that they were not at ease in the unscrupulous atmo­sphere of Hellenistic forensic rhetoric. Faithful to the pontifical tradition they were not mere partisans, ready to forward a client’s cause by any and every available means,’ including falsehood,^[82] calumny,¹ and emotional appeals,¹ but guardians and promoters of the law. To this tradition they were resolved to be true, and fortunate it was for Roman legal science that they stood fast and refused to suffer the noisome weed of rhetoric, which choked so much else that was fine and precious, to invade their profession. The history of Greek law demonstrates that Hellenistic forensic rhetoric was incapable of producing a legal science. As of the philosopher,³ so of the Roman jurisconsult, it may be said that he despised words and sought truth with a single mind: res spectatur, non verba penduntur* Even Servius, trained orator though he was, appeared in court but seldom,⁵ whilst Aquilius Gallus was firm in his refusal ever to do so.⁶ There is no trace of any rhetori­cal activity on the part of Cascellius, Ofilius, Trebatius, or Alfenus. The jurisconsults confined themselves to the quasi-judicial func­tion of instructing the orators in the law.⁷ Here we see profes­sional specialization in the Hellenistic manner carried to its limit, and the words which Tacitus⁸ puts in the mouth of a eulogizer of the republican period give a true picture of our period: ‘whether a man engaged in military matters or in law or in oratory, he con­centrated on that and mastered it.’

(v)

In the field of legal education the Roman jurists were faced with the question how far to yield to the pedagogical tendencies of Hellenism.’ The Hellenistic world was profoundly convinced of

¹ On the technique of Sm/foAij see Arist. Rhet. 3.15, and the Graeco-Roman materials collected by W. Suess, Ethos. St. z. älteren griech. Rhetorik (1910), 245 ff. This deliberate detraction falls under the heading ήθικόν: Cic. Orat. 37. 128.

¹ The παθητικόν of Greek rhetoric: Arist. Rhet. 2.1 ff.; Cic. Orat. 37.128: ‘ παθητικόν nominant, quo perturbantur animi et concitantur, in quo uno regnat oratio Dear.

2. 51. 206 f. Part of it was the parade (παραγωγή) of the weeping family at the end of the speech: Cic. Orat. yj. 130 f.; Kroll, PW s.v. ‘ Rhetorik ’, col. 30; R. Volkmann, Die Rhetorik d. Griechen u. Romer (ed. 2, Leipzig, 1874), s. 28.

³ Schol. Aristid. (Aristides, ed. Dindorff, 3 (1829), p. 484): ‘ Φιλοαίφου ίΜτριον ή φράσις, αλλά μίναν σκοπήσαι άλήθιιαν.’ ⁴ Cic. Orat. ΐ6. ζΐ.

³ Cic. Brut. 42. 155·

⁶ Cic. Top. 12. 51, above, p. 44. Probably he (as other jurisconsults) thought like Μ. Piso (Cic. Brut. &j. 236): ‘ Is laborem forensem diutius non tulit, quod... ineptias ac stultitias quae devorandae nobis (scil. oratoribus) sunt, non ferebat iracundiusque respuebat... ingenuo liberoque fastidio.’

» In rhetorical jargon hastas ministr are, ‘ to provide ammunition ’: Cic. Dear. 1.57. 242; 59· 253; Top. 17. 65.

⁸ Dialog. 28; cf. Ed. Norden, ‘Antike Menschen im Ringen um ihre Berufsbestim­mung ’, Berlin SB 1932, p. xxxvii f.

’ On what follows see Pemice, Labeo, i. 33 ff.; Joers, 231 ff.; Kubier, PW iA, 394 ff.; Dilthey, Ges. Sehr, ix (1934), 55 ff.; H. Peter, Geschichtliche Literatur, i (1897), 3-53 (Geschichte d. Jugendbildung); Barbagallo, Lo state e I’istruzione pubblica nell’ the value of systematic training (παιδεία). From cradle to coffin a man was to be schooled and trained.¹ There was nothing, so men thought, that could not be taught and learnt—statesmanship, art and literature, how to love² and finally how to die, for even αθανασία seemed teachable.³ The instruction of youth was to be provided by State schools and universities, following fixed and uniform programmes, teachers being appointed and paid by the State.⁴ To the Roman of the second century this eternal scholastic education seemed alien and antipathetic,⁵ and the government, usually extremely tolerant in such matters, was moved to take special measures precisely against the Hellenistic teachers.⁶ Never­theless, though there was still no question of State schools,⁷ the Hellenistic system of education was copied, and when a young man whose schooldays were over could not find teachers of more advanced studies at Rome or in Italy, he would betake himself to the Greek provinces in order to prosecute his studies there.⁸ Julius Caesar showed himself, as in other matters, thoroughly Hellenistic by being the first to confer Roman citizenship on the Greek teachers of medicine, grammar, and rhetoric practising at Rome, and by holding out the same prospect to others who should migrate to Rome for the same purpose.⁹

The jurisconsults, however, refused to adopt the Hellenistic impero Romano (1911); Gwynn, Roman Education from Cicero to Quintilian (1926), 22 ff.; R. Herzog, Urkunden z. Hochschulpolitik der rom. Kaiser, Sb. Preuss. Ak., phil.-hist. Kl., 1935, 967 ff. (with the literature), on the republican period 979.

¹ Plato, Protag. 325t: ‘έκ παίδων σμικρών άρξάμζνοι μίχρι οίπιρ αν ζώσι καί διδά­σκουσα και νουθΐτοΰσιν.’ ‘Education and admonition begin in the first years of childhood, and last till the very end of life.’ Cf. Thucyd. i. 84. 4: Πολύ n Suußlpav ον δει νομίζίΐν άνθρωπον ανθρώπου, κράτιστον δί elvai, oans «» τοΐζ άναγκαιοτάτοιζ παιδεύεται.

² As regards politics, art, and literature, a general reference to Plato and Aristotle suffices. On Ovid’s Ars Amatoria and its Hellenistic precursors see Schanz-Hosius, ii, s. 299.

³ Jakob Burckhardt, Griech. Kulturgesch. ii. 420 ff.

♦ Aristot. Eth. Nie. 1180*25; Pol. 1337* lib. 8; Cic. De re pub. 4. 3.

⁵ Cato ridiculed the Isocratean eternal paideia in rhetorics. Plut. Cato maior 23: Την δ’ Ίσοκράτουζ διατριβήν Ιπισκώπτων γήραν φησι παρ' αύτώ robs μαθητάζ ώζ έν ΑΙδου παρά ΜΙνφ χρησομίνονζ ταΐζ τίχναις καί δίκαζ ϊροννταζ. (These eternal students probably think to make use of their art in Hades and to plead before Minos.)

⁶ See the SC of 161 b.c. against the Greek philosophers and rhetoricians, Bruns, no. 38, with Schanz-Hosius, s. 74; also the Edict of the censors against the Latin rhetoricians, Bruns, no. 67, with Schanz-Hosius, l.c.

⁷ Cic. De re pub. 4. 3: ‘ disciplinam puerilem ingenuis, de qua Graeci multum frustra laborarunt,... (maiores nostri) nullam certain aut destinatam legibus aut publice expositam aut unam omnium esse voluerunt.’ FIRA, r, 247, 305.

⁸ So, e.g., Cicero and Servius. On Cicero: Schanz-Hosius, i, s. 140; Geizer, PW vii A, 838. On Servius: Münzer, PW iv A, 852. Other examples: Kroll, Kultur, ii. 120.

⁹ Sueton. Caes. 42, with Herzog, 979. system of education. Ot their own educational methods at the beginning of the last century of the Republic we are well informed by Cicero. He gives us a lively picture of his own legal studies under Q. Mucius augur and Q. Mucius pontifex,^[83] and also a de­scription of his own conception (formed after the model of the tra­ditional legal education) of how higher studies in rhetoric ought to be conducted at Rome.² We are thus made acquainted with the nature of the legal instruction imparted by the jurisconsults. On leaving school, where he would have acquired some elementary notions of the law,³ a young man attached himself to some juris­consult with whom his parents had some connexion, much as the medieval student attached himself to some dominus,⁴ except that Roman social habits were more aristocratic. Entering the household of his master, the young man lived with him and his family, attended when clients came for legal advice, accompanied his master to the forum and observed his behaviour there both as counsel giving responsa and as member of the consilium of a prae­tor or a iudex, or when he assisted a party in proceedings before a magistrate (in iure) at which the terms of a processual formula were settled. In the evening, in the course of general conversation, the great man would turn to the discussion of some interesting case or would indulge in reminiscences of his own teacher or of the lawyers of the previous generation.⁵ The young man would keep his ears open and take note of what he thought memorable; he would also study lawbooks for himself and discuss difficulties with his master. The traditional method of legal education thus con­sisted in impregnating oneself, by contact with practice and pro­fessional tradition, with the spirit of the law, in ‘living oneself into it’ ;⁶ systematic instruction of the Hellenistic type was entirely lacking. Indeed, teaching in the proper sense was abjured by the jurisconsults as being beneath their dignity.¹ There was no legal propaedeutic, no philosophical or historical introduction to law. The jurisconsults did not discuss with their pupils basic concep­tions like justice,¹ law, or legal science, though to the Greeks these seemed problems of the highest, nay almost of sole, impor­tance.^{[84] [85]} The student was plunged straight into practice, where he was faced with the ever-recurrent question: What, on the facts stated, ought to be done? What he learnt by slow steps was neither a philosophy of law, a theory of legal method, legal history, comparative law, nor sociological jurisprudence, but simply the art of deciding on the concrete case, and his teacher was not the school, but rough-and-tumble practice:^[86] in the Roman phrase ‘he learnt how to fight on the field of battle’.^[87] To this essentially aristocratic type of legal education the jurisconsults clung up to the end of the Republic. Not even Servius abandoned it ;^[88] had he done so, Cicero, who is constantly mentioning him, would have told us. On the contrary, Servius still represents the old-style lawyer-statesman,^[89] and the fact that his enthusiasm for legal science^[90] attracted an unusually large circle of pupils is no ground for inferring that he developed into a teacher of the academic type.

(vi)

Hellenistic example led to some increase of juristic literary activity,^[91] but, apart from the productions of the school of Ser­vius, the volume of legal literature remained small. We know that such great jurists as Aquilius Gallus and Cascellius wrote no books.^[92] The statement^[93] that Servius at his death left 180 books (rolls are meant) refers no. doubt to legal diaries (commeniarii) found among his papers by his pupils and utilized by them. If he had published works of the number or bulk suggested, we should have known at least their titles.¹ Works in the classical style appear only after Servius?

¹ Below, p. 96.

² Below, p. 91.