II THE LEGAL PROFESSION

1. The jurisconsults continued to some extent to assist parties * in such private acts as testaments and contracts; a testament, in

particular, was hardly ever made without professional assistance.¹ But the leading men withdrew more and more from what we have called cautelary jurisprudence.

2. The same happened to the cautelary jurisprudence of litiga­tion. The jurisconsults of earlier generations had composed for­mulae of actions and defences and in this way had created entirely new remedies.³ But such a method of legal development had become incompatible with the contemporary tendency towards bureaucracy;⁴ consequently Augustus suppressed it in his usual unostentatious way. Unofficially he gave the judicial magistrates to understand that the development of the law in this way was not favoured by him, and that it was to be left to lex, senatus­consultum, and constitutio principis, so that control would lie in the hands of the princeps and the central bureaucracy. Naturally this was never announced as a principle; it was one of the arcana imperii. But, to give an illustration, if fideicommissa had been made legally enforceable in the days of Q. Mucius or Aquilius Gallus, the development would have come about in the same way as the creation of the actio de dolo or of the actions on the con­sensual contracts. Some jurisconsult would have composed an actio in factum ex fideicommisso, which the praetor would have approved and which, at once or after a period of probation, would have been incorporated in the Edict. But Augustus proceeded quite otherwise. Having shown due respect for republican tradi­tion by first consulting the jurisconsults, he placed the actio ex fideicommisso under the cognitio, which the princeps could direct inconspicuously.® Thus an edictal development of fideicommissa

¹ Cf.

³ Above, p. 50. ⁴ Above, p. too.

’ Zusi. Inst. 2. 23. 1; 2. 25 pr. Cf. v. Premerstein, Vom Wesen des Principals (Abh. Bay. Ak., phil. hist. KI., 1937), 205; Schulz, 182; M. Scarlata Fazio, La successione codicillare (1939), ³9 ff· > Leinerder, RH xiv (1935) 455 ff. was avoided. More generally, the codification of the Edict or­dained by Hadrian (of which below)¹ finally ended the application of cautelary jurisprudence of the grand style to litigation. Though the jurisconsults were still able to propose actions analogous to those existing (actiones in factum, utiles), and did so, of course, throughout the classical period, the drafting of the required formulae had become matter of routine, capable of being performed by lesser lawyers or mere scribes? It is doubtful whether the jurisconsults, when their responsum concluded in favour of the granting of an action, still appended draft formulae.

(ü)

Respondere had been the essential function of the republican jurisconsult, but in our period, as already observed,³ there were jurists who gave no responsa. The responsum still played an important part, but the effects of the change in the constitution of the State extended to this branch of juristic activity also.⁴

i. In principle Augustus did not interfere with the ancient custom of responsa, but sought rather to save it. It was one of the good old customs which he wished to preserve; it belonged to the ‘Republic’ which it was his policy to restore. Nevertheless, he took measures to bring the power of declaring the law which the custom conferred on the jurists into line with his own scheme of government. He bestowed on some, not very numerous, jurists the right to give responsa ex auctoritate principis·. they were to give them by his permission, on the personal auctoritas of the princeps* This did not mean that responsa could only be given by imperial licence:⁶ such a breach with republican tradition would have been in flat contradiction with Augustus' policy, and there is no evidence of it.

¹ Below, p. 127.

² The formularii referred to by Quint. Inst. 12. 3. 1. Cf. Ulp. D. (48. 19) 9. 5.

³ Above, p. 107.

⁴ On what follows: Solazzi, St. Riccobono, i. 95; Wieacker, ‘St. z. Hadrianischen Justizpolitik’ (Romanist. St., Freiburger RechtsgeschichÜ. Abhandlungen, Heft 5, 1935), 43 ff-, where the older literature is cited and considered. Also Wenger, CP § 9, n. 26, p. 87; Praetor u. Formel, 101 ff. (München SB, 1926, Abh. 3); Schulz, 186 ff.;

v. Premerstein, Vom Wesen d. Prinzipats, 202 ff., is uncritical; De Visscher, Con­ferenze, 56 ff., and RH 4, sir. xv (1936), 615 ff. See Addenda.

⁵ Schulz, 186 ff. It is possible that the expression ius publice respondendi was used

of these authorized jurists. If so, publice means nomine rei publicae: Caes. Bell. Gall. 1. 16; Bell. civ. 2. 21; Sall. Cat. n; Cic. In Verr. 4. 9. 20 (publice commodate); ILS 5513 (publice debere); Wlassak, Prozessformel, i. 41, n. 2. Unfortunately D. (1. 2)

2.49 is a contaminated source. ⁶ Mommsen, Staaisr. ii. 912, is wrong.

privata auctoritate. A ius respondendi existed no more than a right to breathe. Augustus’ idea was that the responsum of an authorized jurist should carry higher auctoritas·, it would be proper for magistrates and iudices to accept the ruling of a man whom the Emperor had trusted, but they were to be under no legal compul­sion ; if they disregarded the ruling, there was no sanction. The whole institution was in complete harmony with Augustus’ state­* craft, combining as it did respectful recognition and even exalta­tion of a republican institution with facilities for the princeps, inconspicuously and under republican forms, to influence the rulings of the jurisconsults. The jurisconsult remained simply a private citizen; he was not a magistrate, but he spoke ex auctoritate principis, and this would be an inducement for praetor and index to accept his opinion, although they were not legally bound to do so.

2. Like so many of Augustus’ creations, this institution did not endure long. Under his successors some of the outstanding lawyers, being in opposition, probably preferred not to ask for imperial authorization, but to give their responsa in the proud old republican fashion, propria auctoritate. Again emperors who, like Claudius² and Caligula,³ disliked the lawyers, may have refused authorization or given it but rarely. Hadrian,⁴ after he had reorganized the consilium principis,³ abandoned the authorization of individual jurists. The entire direction of legal administration and practice was to be centred in the consilium, to which the Emperor had now called the leading lawyers ;⁶ this corresponded better than Augustus’ timid reform with the bureaucratic tendency and yet left to the leading lawyers their traditional influence. Authorization of individual jurists was incompatible with this

¹ Res gestae 34: ‘Post id tempus praestiti omnibus auctoritate, potestatis autem nihilo amplius habui quam qui fuerunt mihi quoque in magistratu conlegae.’

¹ Above, p. 109.

³ Sueton. Calig. 34: ‘De iuris quoque consultis, quasi scientiae eorum omnem usum aboliturus, saepe iactavit: “se mehercule effecturum, ne quid respondere possint praeter eum.” ’ The last word is a corruption, and the older emendations are unsatisfying. Recently Naber has proposed to read eu (heu) instead of aim·. ‘ne quid responderent praeter: “eu 1”’

⁴ Since Vespasian the Augustan principle to reign by auctoritas principis was abandoned: M. A. Levi, ‘ I principi dell’ impero di Vespasiano Riv. di FU. Class. Ixvi (1938), 1 ft.; ‘La legge dell’ Iscriz. CIL vi.930’, Athenaeum, NS xvi (1938), 85 ff.

³ Below, p. 118.

⁶ Above, p. 104.

4497.1 I conception of a Council of State; what was aimed at was the unitary direction of a central office. This is why in the inscriptions recording the cursus honorum of the jurists we never find mention of imperial authorization to give responsa. That relating to Julian¹ mentions no such grant; yet if Hadrian had made such grants, Julian would surely have been a recipient. The style iurisconsultus, which we find applied to Pactumeius Clemens² and Volusius Maecianus,³ cannot be taken as implying imperial authorization ;⁴ this age-old title never betokened anything but a jurist who gave responsa in answer to questions put to him. Even this title is absent from Julian’s inscription and from one of Maecianus’ two inscriptions.

3. Thus in appearance, so far as responsa were concerned, the Republic was ‘restored’. But the codification of the Edict caused an essential diminution of the importance of this juristic function. It now ceased to be an instrument of bold legal innovation and became essentially mere advice on existing law, like a medieval or modem legal opinion; only in matters of detail was there still room for jurisprudential development.⁵

4. In post-classical times there was no clear conception of the

Augustan system of authorization of responsa,⁶ nor was it known which of the jurists had been authorized and which not. The pre-conceptions of a bureaucratic age led to the belief that Augustus and his successors had empowered the jurists iura condere, and all the jurists of the Principate whose writings had survived were assumed to have been so empowered. In these writings references to leges, senatusconsulta, and imperial con­stitutions were so few that in an age when the Emperor, through his central office, was the fountain of all law it seemed incredible that the jurists had spoken as mere private citizens. It was there­’ Above, p.

⁴ An unhappy idea of P. Kruger’s (Quellen, 125).

³ This is shown by the responsa of Cervidius Scaevola, Marcellus, Papinian, Paul, Ulpian, and Modestinus.

* Eunapius (Vitae philosophor. Chrysanthis, ed. Boissonade, 1878, p. 500) writes ' of an otherwise unknown Innocentius of the time of Diocletian: eyeyivei Si αύτω mimos 'IwoKevnos ns, els re πλούτον ίλβών ονκ ολίγον κα» δόξαν ΰπίρ Ιδιώτην τινά λόχων, os γα νομοθιτικην elye δύναμιν παρά των rAre βάσανό ντων emrerpappAvos. It has long been thought that this refers to the ius respondendi (Puchta, Kleine civilist. Schriften (1851), 300; Kruger, 296, n. 6; Seeck-Steinwenter, PW ix. 1558). But this is uncertain and improbable. Diocletian can hardly still have conferred a ius publice respondendi. Probably Innocentius held a prominent position in the imperial Chancery. Hermogenianus, the author of the ‘Codex Hermogenianus’ (below, p. 309), is styled ‘ iurislator ’ by Sedulius (5th cent.): CSE x (1885), p. 172,10; Migne, PL xix. 547. Later ‘legislator’ becomes a title for lawyers: Const. Tanta, s. 20; Savigny, Gesek, i. 472. fore assumed that the Emperor had authorized them to legislate vice principis. This assumption is found not only in the age of Justinian¹ but also in an apocryphal text of the Veronese Institutes of Gaius.² The question then naturally arose how differences of opinion between the classical writers were to be got over. The principle lex posterior derogat priori vtas of no avail, because the chronological order of the writings was far from certain. The simplest solution was to give the judge a free hand in such cases; another was that adopted by the Law of Citations, to which we shall have to return when we come to the next period.³

5. The history of the so-called ius respondendi has been obscured by two apocryphal texts.

(i) Gaius 1. 7: ‘Responsa prudentium sunt sententiae et opiniones eorum, quibus permissum est iura condere, quorum omnium si in unum sententiae concurrunt, id quod ita sentiunt, legis vicem optinet; si vero dissentiunt, indici licet quam velit sententiam sequi; idque rescripto divi Hadriani significatur.’

The fact that Gaius, unlike Pomponius,⁴ puts the responsa prudentium among the sources is in itself suspicious, but more than this, the whole section reflects post-classical ideas so completely that it cannot be genuine. The true contents of Hadrian’s rescript can only be divined. He cannot have imposed on magistrates and indices a legal duty to follow the responsum of an authorized jurist in the particular case for which it was emitted. Of such a principle there is nowhere a vestige;³ it would have been in diametrical opposition to Hadrian’s policy. It is possible that he laid down that if, in a lawsuit, two authorized jurists had given conflicting responsa, the iudex was to be entirely free; but he cannot have confined him to choosing between the two responsa.⁶

(ii) Pomponius D. (1. 2) 2. 48-51.⁷

(1st hand) Et ita Ateio Capitoni Massurius Sabinus successit, Labeoni Nerva, qui adhuc eas dissensiones auxerunt. Hic etiam Nerva (Tiberio") Caesari familiarissimus fuit.

(2nd hand) Massurius Sabinus in equestri ordine fuit et publice primus respondit posteaque hoc coepit beneficium dari; a Tiberio Caesare hoc tamen illi concessum erat.

(3rd hand) 49. Et ut obiter sciamus, ante tempora Augusti publice respondendi ius non [a principibus] dabatur, sed qui fiduciam studiorum suorum habebant, consulentibus respondebant; neque

’ See, e.g., Theoph. Paraph. 1. 2. 4 and 9, and below, p. 288.

³ Inst. i. 7. Literature on this passage above, p. 112, n. 4.

³ Below, p. 282. ⁴ D. (1. 2) 2.12. ⁵ See Note R, p. 338.

* So Pernice in his lectures.

⁷ On this text see particularly Wieacker, op. cit. 72; De Visscher, op. cit. 66 ff. (both not satisfying); Lenel, Pal. ii. 51; Beseler, Z xlv (1925), 457. responsa utique signata dabant, sed plerumque indicibus ipsi scribebant aut testabantur, qui illos consulebant. Primus divus Augustus, ut maior iuris auctoritas haberetur, con­stituit, ut ex auctoritate eius responderent: et ex illo tempore peti hoc pro beneficio coepit.

(4th hand) [Et ideo] optimus princeps Hadrianus, cum ab eo viri praetorii peterent, ut sibi liceret respondere, rescripsit eis [hoc non peti sed praestari solere et ideo] 'si quis fiduciam sui haberet, de­lectari se, si populo ad respondendum se ’ [praepararet.] 50. [Ergo.]

(1st hand) Sabino concessum est a Tiberio Caesare, ut (publice} [populo] responderet: qui in equestri ordine [iam grandis natu et] fere annorum quinquaginta receptus est. Huic nec amplae facultates fuerunt, sed pluri­mum suis auditoribus sustentatus est. 51. Huic successit...

Like much of the whole fragment in D. (1.2) 2,^[172] the present passage is very corrupt; besides containing scribal errors it shows signs of stratification. At least four hands have been at work.

1st hand. The beginning of s. 48 is in order, except that ‘Tiberio’ must have dropped out. The text of the first hand is continued in s. 50, Sabino concessum est join up with the last words of the first hand in s. 48, and ergo at the beginning s. 50 is just a hasty piece of tacking. In s. 50 -populo must be a mistake for publice, and iam grandis natu et must be a gloss.

2nd hand. This statement concerning Sabinus cannot be classical: that Sabinus belonged to the equestrian order and was authorized by Tiberius to give responsa is repeated in s. 50; the statement that he was the first to be so authorized is absurd, since Augustus must have made earlier grants. It has been attempted by deleting fuit et to make the text say that Sabinus was the first eques to receive the grant, but this too is improbable, since Trebatius, for example, must have received it? The text is beyond cure; it comes from some glossator who simply did not know of any jurist before Sabinus who had had the ius respondendi. The text was recognized to be an addition by Lenel long ago.

3rd hand. This text cannot have been written by the second hand, as it is in contradiction with the preceding sentence. The second hand believed that the ius respondendi was first granted by Tiberius; the third hand asserted that this ius was introduced by Augustus. The third hand was obviously well informed. The text is mainly sound, except that a principibus must be a silly gloss, seeing that there were no principes before Augustus, and that consultorum must be supplied after iuris.

4th hand. The text yields no reasonable meaning and is therefore certainly unclassical. It has been suggested³ that Hadrian was taking the petition literally: the viri praetorii had petitioned for leave to give responsa and not for leave to give them ex audoritaie principis, to which Hadrian replied that no leave was required to give responsa. But it is unbelievable that Hadrian resorted to so perverse a misconstruction of a petition from men of so high rank. If in some such case Hadrian really answered that he would be delighted if the petitioners would give responsa propria, non principis, audoritaie,¹ he must be taken to have been, intimating that his intention was to make no further grants of ins police respondendi at all. That would be an important declaration of policy, and the rescript making it would deserve to be mentioned in juristic literature. After all, whoever wrote our text must have got his information from some book. The word ddedari smacks of a constitution: see in an epistle of Vespasian (Bruns, no. 80): ‘Otacilium Sagittam, amicum et procuratorem meum, ita vobis praefuisse, ut testimonium vestrum mereretur, delector.’ The text cannot have been written by the third hand, as d idea is meaningless. These words are obviously an addition of a redactor who wished to connect this fourth addition with the preceding text. Probably hoc non..,d ideo is a later addition made by someone who wished to clarify the meaning of the rescript.

(iii)

I. As under the Republic,² the jurists still served as advisers on the consilia of indices and magistrates,³ but here too we can observe the effects of growing bureaucratization. The jurists, once aristocratic volunteers, had now become salaried officials. The Principate hesitated before frankly recognizing the principle that the magistracies were to be held by professionally trained officials, but at least from the reign of Hadrian the position was reached that a magistrate should have a permanent legal adviser at his side.⁴ Naturally this applied specially to the magistrates concerned with judicature—the consul, praetor, pro­vincial governor, praefedus urbi, and praefedus praetorio. Such permanent, salaried legal advisers were termed adsessores, comites, consiliarii, or sometimes studiosi iuris. It is intelligible that the adsessor should gradually have overshadowed the other members of the consilium.³ He even acquired an independent competence

’ For ‘populo praestare’ cf. Cic. De leg. i. 4. 14: *sed hoc “civile” quod vocant, eatenus exercuenmt, quod populo praestare voluerunt.’

* Above, p. 52.

³ D. (31) 29 pr.: ‘Celsus: Pater meus referebat, cum esset in consilio Duceni Veri consults....’

⁴ Bethmann-Hollweg, ii. 136 ff.; H. F. Hitzig, Die Assessoren d. rom. Magistrate u. Richter (1893); De Ruggiero, Diz. epigr. i. 97 ff.; Seeck, PW i. 423; Friedlander- Wissowa, Sittengesch. i. 188.

³ Seneca, De tranqu. 3. 4, above, p. 53, n. 2. extending beyond the mere giving of advice; he became a sort of chief secretary, who merely submitted his decisions to his chief for signature and in many matters gave the decision himself.¹

2. The participation of the lawyers in the consilium principis is of special importance.² Augustus and the principes of the first century had already summoned lawyers to their consilium, but this was a consilium of the old republican kind. It was only under Hadrian that it became a standing organ of State with permanent, salaried members. To it, as already observed,³ Hadrian and his successors summoned a number of leading jurists. The competence of this Council of State extended to every branch of legal adminis­tration, in the widest sense. Its establishment by Hadrian is the counterpart of his codification of the Edict and his disuse of the ius auctoritaie principis respondendi. The ancient right of the jurists to apply and develop the law⁴ was respected, but the bureaucratic tendencies of the times demanded centralization and officialization.⁵ The ancient aristocratic jurisprudence was gradu­ally coming to an end.

(iv)

In this period the jurists were more active as judges in civil and criminal cases than they had been under the Republic.⁶ Their service as iudices in cases under the ordinary civil procedure remained as occasional as before, but a number of important offices, with which judicial functions were connected, were now permanently occupied by a group of important jurists.⁷ Since Augustus it had become obligatory to hold one of the offices of the vigintisexvirate before becoming quaestor,* and naturally the office which a jurist would, if possible, choose would be that of a decemvir litibus iudicandis.⁹ The offices of provincial governor, legaius legionis, iuridicus provinciae, and, above all, of praefectus urbi¹⁰ and praefectus praetorio¹' involved some judicial duties, and even the consuls and praetors functioned as judges in civil cases of their competence under the cognition¹·

¹ Hitzig, Assessoren, 45; Seeck, PW i. 425.

^a E. Cuq, Consilium principis, 311 ff.; Mommsen, Staatsr. ii. 902 ff., 988 ff.; Hirschfeld, Verwaltungsbeamte, 339 ff.; Hitzig, Assessoren, 29 ff.; Seeck, PW iv. 926 ff.; Friedländer-Wissowa, Sittengesch. i. 74, 152 ff. ³ Above, p. 104.

♦ Above, p. 60. ³ Above, p. 100. ⁶ Above, p. 53.

⁷ Above, pp. 104 ff. * Mommsen, Staatsr. i. 544, ii. 592.

* Proved in the case of Julian and Pactumeius Clemens; above, p. 105 f. On the decemviri: Mommsen, Staatsr. ii. 605; Kübler, PW iv. 2260.

¹⁰ Ibid. 1066. ¹¹ Ibid. 1120.

¹² Kübler, Gesch. 210 ff.

(v)

From advocacy the jurists continued to abstain.¹ The antagon­ism between jurisconsults and advocates, which had developed under the Republic, remained as sharp as of old. Normally the jurist confined himself to instructing the advocate in the law; if ever he appeared as advocate himself it was an exception, con­fined to civil suits, that is to cases in which rhetoric in the proper sense would be out of place. '

(vi)

Legal education assumed a more definite and academic form in classical times. The admirable, unacademic, legal instruction of the Republic was no longer equal to the growing demand for more lawyers. Unfortunately we are still badly informed as to the history of this change.²

I. There is clear evidence of the existence of two law schools at Rome in the first and second centuries. The chief authorities are Gaius’ Institutes and Pomponius’ Enchiridion,³ though what we have of the latter is a miserable later revision.⁴ According to Pomponius the schools were founded by the two luminaries of the Augustan period, Labeo and Capito,⁵ who were succeeded by other jurists in the two following series:

Antistius Labeo Capito

Nerva pater Massurius Sabinus

Proculus Cassius

Pegasus Caelius Sabinus

Celsus pater lavolenus Priscus

Celsus filius and Neratius Priscus Abumius Valens, Tuscianus, and Salvius lulianus.

Like the rest of the fragment of the Enchiridion this information demands methodical and cautious criticism. The school carried back by Pomponius to Capito was in reality founded by Cassius.

¹ Above, p. 55.

²On what follows see Kübler, PW ³ A. 380 ff., 394 ff., giving the older literature.

Bremer, Die Rechtslehrer u. Rechtsschulen im rom. Kaiserreich (1868), is uncritical and quite out of date. Baviera, Le due scuole dei giureconsulti rom. (1898) and Scr. giurid. ³ (1909), nr ff.; Di Marzo, Riv. it. Ixiii (1920), 109 ff.; Barbagallo, Lo state e I’istruzione pubb. neW impero rom. (1916); R. Herzog, Urhunden nur Hochschul­politik d. rom. Kaiser (Berlin SB, 1935), 907 ff.; Festa, Bull, xliv (1936-7), 13 ff.; FIRA i. 420; Ebrard, Z xlv (1925), 117 ff., goes quite astray—a monument of injudicious research. On Arab’s often fantastic works see H. Krüger, Z xlvi (1926), 392 ^ff· ³ D. (1. 2. 2) 47-53.

⁴ Below, p. 120. ’ Tac. Ann. 3. 75: duo pads decora. We know this from the younger Pliny,¹ whose date is so close to that of Cassius (he was bom in 61 or 62; Cassius died in 69 or shortly afterwards) that his evidence may be accepted unre­servedly.^{[173] [174]} This school was known as schola Cassiana. We know further that Cassius was a pupil of Massurius Sabinus,^[175] of whose wide activities as a teacher we have sure information ;^[176] his short, comprehensive work De iure civili, in three books, was no doubt designed for scholastic purposes.^[177] It is therefore in substance correct to carry the schola Cassiana back to Sabinus, but its formal founder was Cassius. Sabinus was a man without property or standing,⁴ whereas Cassius had both. Possibly the two men conducted the school together for a time. The carrying back of the school to Capito, on the other hand, is nothing but a mistaken historical inference drawn by Pomponius or his sources.^[178] Capito’s contribution to the science of private law was insignificant, and it was to private law that the schools of the first century confined themselves. Indeed, the schola Cassiana paid not the slightest attention to the works of its alleged founder.^{[179] [180]} It was common knowledge that the rival school went back to Labeo, and the personal and political antagonism of Labeo and Capito was also well known? The rivalry between the two schools was therefore traced back to the rivalry between the two jurists.

Pomponius is probably right to derive the other school from Labeo, for Labeo is known to have been very active as a teacher.^[181] That the followers of this school are called Proculiani tells us nothing, since the name appears first in post-classical times;^{[182] [183]} it is never used by Gaius. We do not know the classical name of this school, but Proculus cannot have been its founder, seeing that Gaius expressly refers to the elder Nerva as being a member of it.¹¹

For the rest Pomponius’ two lists may be accepted.¹ The only item that we can check is the mention of Julian, and here Pom­ponius is confirmed by Julian’s own description of himself as a pupil of lavolenus Priscus.²

2. The two schools were not mere schools of thought or intellec­tual coteries, but educational establishments, as is implied by the term schola used by both Gaius and Pliny. Gaius, when referring ■* to his own school, speaks of praeceptores nostri. Pomponius uses the term secta instead of schola, but his meaning is the same. His terminology recurs in an official document (preserved in an in­scription)³ concerning the schola Epicurea at Athens: the school is secta and the passing on of its presidency from one person to another (diadochus) is succession Nothing is known of the organi­zation of the two law schools, but it is certain that as early as Vespasian schools of grammar and rhetoric and schools of medi­cine existed at Rome, which the State recognized as corporations and the teachers in which received salaries and enjoyed a number of privileges.⁵ From the silence of our sources it must be assumed that the law schools were not yet corporations in our period and that they had no definite legal constitution.⁶ The schools of grammar and rhetoric and of medicine had existed at Rome before being granted incorporation; similarly, in the times of Imerius and the Four Doctors neither the university nor the law school of Bologna was a corporation.⁷ Men of the standing of Cassius, Pegasus, lavolenus, Celsus, and Julian cannot be supposed to have engaged continuously in elementary legal teaching; indeed their

¹ Where several jurists are named side by side, without mention of succedere (D. i. 2. 2. 53), the presumption is that several jurists held the succession together. Groag, Jahreshefte d. Osterreich, archäolog. Instituts in Wien, xxxix (1935), Beiblatt 185, overlooks this. ² D. (40. 2) 5.

³ The full inscription is given by Wilhelm, Jahreshefte des Osterreich, arch. Instituts, ii (1899), 270, and in CIL iii, Suppl., nos. 1283 and 14203. 15; a photograph in Otto Kern, Inscriptiones Graecae (Tabulae in usum schol. ed. by Lietzmann, no. 7,1912), tab. 44. Only the Latin text ILS 7784 and FIRA i. 430; only the Greek text in Dittenberger, SyU. (3rd ed.), no. 834. Literature: Mommsen, Sehr. iii. 50; Diels, Arch. f. Gesch. der Philosophie, iv (1891), 153 ff.; Dareste, NRH xvi (1892), 612; Herzog, l.c. (above, p. 119, n. 2); Steinwenter, Z li (1931), 404; Beseler, Z Hi (1932), 284; OHver, TAPhA Ixix (1938), 494.

* Kübler’s opinion on the meaning of secta (PW ³ A. 382) is therefore wrong.

⁵ See Kruger, 152, and, above all, Herzog, l.c.; Riccobono jun., Miscellanea critico­storica (AnnaH Palermo, xvii, 1937), 48 ff.

⁶ And no privileges. Ulp. F.V. 150: ‘Neque geometrae neque hi qui ius civile docent, a tuteHs excusantur.’ Contradicted by Modestinus, D. (ay. r) 6. 12, but Modestinus’ work has reached us only through a post-classical revision (below, p. 252). Cf. Kübler, PW ³ a. 397, who, however, is undecided.

1 Koeppler, EHR Hv (1939), 592, dissenting from Rashdall, Universities of Europe in the Middle Ages (ed. Powicke and Emden), ³ (1936), 145· time was largely taken up by the magistracies they held. We must therefore assume that the scholarch provided a (small) staff of regular teachers. Permanent lecture-rooms seem not to have existed as yet ;* as in the German universities of the eighteenth century, it was the lecturer’s own business to find one. If accom­modation was lacking in his own residence, he would hire a room or use one in some public building.^{[184] [185]} It is improbable that the heads of the schools or the great jurists received fees for their services, but the subordinate teachers did so, though without the right to recover them by action, even extra ordinem.^[186]

3. Repeated attempts^[187] to find a fundamental difference of scientific principle between the two schools, to which their numerous differences on points of detail^[188] might be traced, have failed. There is no difference either of point of view or of method; indeed differences of principle existed in the classical period as little as in the republican. 'Idem fons erat utrisque et earum rerum expetendarum fugiendarumque partitio.’^{[189] [190]}

4. That the two schools continued to exist later than Hadrian is shown by Gaius’ Institutes ? it is possible, or even probable, that they continued for a long time after, but conclusive evidence is lacking. Their old controversies were laid to rest by the authority of Julian, whose work dominates subsequent jurisprudence. The discussions of the classical period at its zenith start from the results reached by him. The scientific importance of the schools waned, and the leadership of legal thought lay unquestionably with the great lawyers of the imperial consilium; the professors of the law schools were reduced to the status of purely academic teachers. It may be that jurists such as Papinian, Paul, and Ulpian still did some teaching,^[191] but this would not be in a formal school but, as under the Republic, in the intimacy of a circle of friends. There is no evidence of fresh differences of opinion having arisen between the schools after Julian, and in the subsequent literature mention of conflicts between the Sabiniani and Procu­liani is rare. It is clear that these names are used to denote only jurists before Julian, and seeing that there were still Cassiani and Proculiani such a limitation is strange and can hardly be classical. Gaius never uses the names Sabiniani, Cassiani, and Proculiani, but writes Sabinus, Cassius ceterique nostri praeceptores and diversae scholae auctores. The few texts in which the names are found must all be corrupt or interpolated.¹

5.Legal education was also carried on in the provinces, but our information about the classical period is scanty. All that can be taken as certain is that the law school of Berytus existed by the beginning of the third century.² When Apuleius speaks of Carthage as the Camena togaiorum (i.e. advocatorum),’he is not implying that there was a law school there,⁴ for, as we have shown, the advocaii were rhetoricians. But no doubt some elementary instruction in law was imparted in the school of rhetoric.

6. From the juristic literature we can at least infer this, that in the law schools, as in the schools of rhetoric, there were lectures and disputations, but we have no further information as to classical ways and methods of instruction.

¹ See Note S, p. 338.

² Gregor. Thaumat., Oral. paneg. ad Orig. cap. 5, ed. Koetschau; Collinet, £1. ii (1925), 16 ff., 26.

³ Florida, 4. 20.

* So, wrongly, Kriiger, 153, n. 86; F. Norden, Apuleius (1912), 9 ff.