The history of Roman law, so far as we really know anything about it, begins with a code, the XII Tables. No doubt much of the contents of the code was taken from existing customary law, but custom played on the whole a subordinate part in subsequent development. Law was primarily for the Romans statute law, and it was developed (apart from the edict) mainly by what was known as "interpretation" of the statutes.
According to a unanimous and entirely credible tradition this function was, in early times, exercised by the pontifices, a small "college" of men who, though they may be described as priests of a sort, did not have to belong to any special caste, except that until 300 B.C. they had to be patricians. Membership of the college was in no way incompatible with other offices; on the contrary, it was an added distinction to the public career of a member of the aristocracy. Nor must we imagine, on the other hand, that the pontifices were judges; their business was, almost certainly, like that of the later prudentes, advisory. They advised the magistrate as to the law, and they also apparently advised individuals; at least, this is very probably what is meant by Pomponius' enigmatic statement that one of the pontifices was appointed every year "to be in charge of private matters". It is not difficult to understand why it should have been the pontiffs who were the earliest legal authorities. It is true that Roman law took on a secular character at a comparatively early stage in its history, but with the Romans, as with all peoples, law and religion were not originally differentiated, and there were many spheres, even after the XII Tables, and in later times, where the ius sacrum, the religious law strictly so called, touched the ordinary civil law. The pontiffs were the guardians of religious tradition, and, as such, would naturally be the authorities to be consulted in purely legal matters as well. Thus, for instance, the calendar was primarily a religious matter and, as such, regulated to a large extent by the pontiffs; but it was also of great legal importance, as on very many days there were religious reasons why the magistrate might not sit in his court. Again, much of the law relating to the family was of a religious character. Adrogations and, originally, will-making could only take place in the comitia curiata meeting under the presidency of the pontifex maximus, who was especially interested in the preservation of sacra, i.e. the family religious rites, which might be adversely affected by the changes in the natural order of descent which these acts involved.
By their different kinds of advice, the pontiffs were able to influence the development of the law very considerably. They might even, under the cover of "interpretation", create an entirely new institution, as they did in emancipation. The XII Tables apparently provided no method by which a father could voluntarily set his son free from his power, but there was a clause, intended clearly to punish cruel misuse of his rights by the father, which enacted that if the father sold the son three times the son was to be free from his power. A triple sale of this sort was possible because if the buyer of the son manumitted him (which he might do just as he could manumit a slave), the son fell back into the power of the father. By "interpretation" this clause was used for the purpose of emancipating the son from the father's power. The father made a pretended sale of the son to a friend three times; after each sale the son was manumitted by the friend; after the first two manumissions he reverted to the power of his father, but after the third he was sui iuris.
Here we find, as in several other cases in ancient Roman law, the use of a recognised legal proceeding for purposes for which it was never intended; a pretence of a sale is made in order to achieve objects which have nothing to do with ordinary real sales. But when we come to the emancipation of daughters or grandchildren, there is something further, a definite twisting of the clause in the XII Tables to mean what it almost certainly did not mean. The clause mentioned only sons; it was probably only with reference to them that there was this limit on the father's power; it was intended that the head of the family should be able to sell the less important members of the family as often as they were manumitted by a buyer. But once the clause had come to be used to permit of the emancipation of sons, it was interpreted to mean that only in their case were three sales necessary; in the case of daughters or grandchildren one was allowed to suffice; the daughter or grandchild was therefore emancipated by being "sold" once, and once manumitted.
Equally important with this interpretation was the work of the pontiffs in shaping the legis actiones, or forms of words used to bring a claim before the court. Such claims had to follow closely the text of the law on which they were based, and they had to be exactly correct in every word. Gaius tells us that anyone who made the slightest mistake lost his case, and he gives an instance of a person who was non-suited because, wishing to bring an action under the clause of the XII Tables dealing with "cutting down of trees" against someone who had cut down his vines he spoke of "vines" instead of "trees" in his claim. It is clear that the people who could ultimately decide what forms were correct had very great power and that litigation was a very perilous thing for the layman who thought that the justice of his claim was sufficient guarantee of success.
The pontifical monopoly of law, for as such it is represented, was one of the great strongholds of the patricians, from whose ranks the pontifices were originally exclusively drawn. One successful attack on it had, of course, been made when the XII Tables laid down a written text, but much remained to be done.
Tradition ascribes the breakdown of the monopoly to the action of a certain Cn. Flavius, secretary to Appius Claudius Caecus (censor 312 B.C.), and son of one of his freedmen, who is said to have stolen and published a collection of legis actiones made by his master. It became known as the ius Flavianum; and Flavius' act was so much appreciated by the people that they elected him tribune and then curule aedile (304 B.C.), in which latter capacity he put up a copy of the calendar in the forum, so that anyone could see for himself on what days an action might be brought. As Appius Claudius, though belonging to a great patrician house, was himself a democratic innovator, and is mentioned as a jurist of note, it is likely enough that Flavius' publications were really made at his instigation. It is also highly probable that we should connect the popularisation of law with the opening of the pontificate to the plebeians by the lex Ogulnia of 300 B.C.; at any rate it was the first plebeian pontifex maximus, Tiberius Coruncanius (253 B.C.), who, according to Pomponius, primus profiteri coepit. Exactly what these words mean we do not know, but they clearly refer to some sort of public activity, perhaps to the admission of members of the public generally, and especially of students desirous of learning the law, to his consultations. At any rate, there now came into existence a class of men known as iuris consulti or iuris prudentes, persons "learned in the law", who made law their speciality.
For the jurists of the earlier republic almost our only source of information is the long fragment from Pomponius' liber singularis enchiridii (single volume handbook) preserved in Digest I. 2. 2. The fragment is probably the whole of the "historical introduction" to the handbook and falls into three parts, the first dealing with the origin of the law, the second with the different magistracies, and the third with the prudentes. The text is unfortunately very bad; some of the authorities, especially for the most ancient period, that Pomponius used were unreliable, and, like other Roman historians, he is fonder of picturesque anecdote than accurate detail, but the value of the fragment is still very great. For the later republic we have, in addiction to Pomponius, a number of references in Cicero's philosophical works as well as allusions to his contemporaries in the letters and speeches, and there are references in the legal writers of the imperial age.
After Papirius Pomponius first mentions Appius Claudius the decemvir and then passes immediately to his great-grandson Appius Claudius Caecus, who, he says, was the author of a lost treatise de usurpationibus (the interruption of prescription). Next come P. Sempronius (consul 304), called "the wise"; C. Scipio Nasica, who received the surname Optimus and was given a house in the via sacra at the public expense so that it should be easier to consult him; and Q. Maximus, of whose legal work nothing is said. Of Tiberius Coruncanius Pomponius says that none of his writings had survived, but that his responsa were "numerous and memorable". Sextus Aelius Paetus (consul 198) is next mentioned. He was the author of the tripertita, so called because "the law of the XII Tables came first, then followed the interpretatio and finally the legis actio". This may mean that each clause of the XII Tables was given separately and followed immediately by its juristic developments and the appropriate legis actio, or that the three parts were separate; we have no means of judging. Sextus Aelius is also said to have compiled the ius Aelianum, a collection of legis actiones which superseded the ius Flavianum, but whether this was identical with the tripertita or not is unknown. The tripertita still existed in Pomponius' time and were, he says, called "the cradle of the law". With Sextus Aelius are mentioned his brother, P. Aelius (consul 201), and P. Atilius, who was surnamed sapiens. After the Aelii come M. Porcius Cato (censor 184) and his son who bore the same name (died 152). The elder Cato is the famous statesman, but the younger was the more important as a lawyer, and more books of his than of his father's survived. There follow three men of whom Pomponius says that they "laid the foundations of the civil law", which probably means that they were the first to write books which were not mere collections of forms, but contained independent discussions. The three were P. Mucius Scaevola (consul 133 and later pontifex maximus), M, Iunius Brutus (praetor, but not consul) and M'. Manilius (consul 149. Brutus' work, which was called de iure civili, was in the form of a dialogue with his son. Manilius' monumenta are said by Pomponius to have survived in his time and it was probably the same man who was also author of a collection of forms for contracts of sale (Manilianae venalium vendendorum leges) mentioned by Cicero.
After the three "founders of the civil law" came P. Rutilius Rufus (consul 105), a disciple of the Stoic philosopher Panaetius, and probably the originator of the Rutilian type of action; P. Verginius, of whom nothing is known; Q. Aelius Tubero (consul 118), like Rutilius, a disciple of Panaetius; Sextus Pompeius, uncle of Pompey "the Great", and Caelius Antipater, who, Pomponius says, wrote histories and gave more attention to oratory than to law.
With the next name, that of Q. Mucius Scaevola (son of P. Mucius), we enter a new period, and one of which more is known. The writings of the earlier jurists (though copies of some of their works survived) were known in the classical age almost exclusively through quotations, but those of Q. Mucius were clearly read in the original, and even in the Digest there were some excerpts taken directly from his works, while citations from him in the excerpts taken from other writers are innumerable. He was an active statesman, consul in 95 and, like his father, pontifex maximus, and he met his death at the hands of the Marian party in 82. Pomponius says of him that he was the first to "arrange the ius civile in genera", and we can obtain some notion of what this means from Gaius' statement that he distinguished five kinds of tutela. His chief work, eighteen books iuris civilis, was the first systematic legal treatise ever produced and became the basis of most of the later works on the ius civile. In addiction he wrote a liber singulares, i.e. of definitions, but containing rules as well, which is used in the Digest. Some modern scholars would make him the founder of a school of jurists, subsequently continued by Labeo and the Proculians. In any case he had many pupils, chief of whom was C. Aquilius Gallus, a colleague of Cicero's in the praetorship (66 B.C.) and originator of the formulae de dolo as well as of the Aquilian stipulation. A pupil of Gallus was Servius Sulpicius Rufus (consul 51), whose influence on the development of the law was as great as that of Q. Mucius. He was a friend and rival of Cicero's in the courts, and, it is said, only took up the study of the law on account of a reproach levelled at him for his ignorance by Q. Mucius. According to Pomponius, he left "nearly 180 books", several of which were still extant. His works included reprehensa Scaevolae capita, i.e. corrections of Q. Mucius's views, a book on dowries, and the first commentary on the edict in "two very short books". His pupils were many, among them A. Ofilius, who was a friend of Caesar and survived into Augustus' time. He remained a member of the equestrian order and is especially noteworthy as having written the first full commentary on the edict. Another pupil of Servius' was P. Alfenus Varus, said to have begun life as a bootmaker, who became consul in 39 and attained the honour of a funeral at the public expense. His works included Digesta in forty books, two epitomes of which are used in Justinian's Digest. A number of other pupils of Servius are mentioned by Pomponius, of whom scarcely anything is known except that the works of some of them were collected by a certain Aufidius Namusa. More important were A. Cascellius, who was still alive in the time of Augustus, and may have been the creator of the iudicium Cascellianum, C. Trebatius Testa, a friend of Cicero's who enjoyed a great reputation as a jurist and was consulted by Augustus as to the advisability of enforcing codicils, and Q. Aelius Tubero, who is said to have become a jurist only after prosecuting Q. Ligarius before Caesar and failing to secure his conviction. He achieved a reputation for learning in both private and public law and left books in both branches.
That these iurisprudentes were not professional lawyers in our sense is clear; not only did they not receive any remuneration for their services, but they were public men who devoted only some of their time to law, and indeed did so as part of their public career. As we have seen, many of them were consuls, which means that they had gone through the whole cursus honorum, and some were distinguished as generals and as provincial governors. Tiberius Coruncanius was the leader of an army which with-stood Pyrrhus in 280; Sextus Aelius was in command of an army in the first Macedonian war, and Q. Mucius' tenure of the proconsulate of Asia was regarded as a model of what a governor should do. In some cases, no doubt, the chief stimulus to learning was the hope that, by giving legal aid to citizens, the jurist might gain the popularity needed for success at the polls. Towards the end of the republic the legal career was apparently becoming slightly more specialised, though the chief lawyers were still men who held high office, for we hear that Aquilius Gallus refused to stand for the consulship in order to devote himself more intensely to law, and that he retired at times to the island of Cercina where he wrote several of his books. Cicero, discussing what qualities are needed for an ideal jurisconsult, says that he must be one who is skilled "ad respondendum et ad agendum et ad cavendum in all matters of law and custom that can be needed by private people in the state". Of these activities, respondere is the most important. It means giving advice in the sense in which lawyers use that word, i.e. especially advice as to what the law is, and such advice might be given either to a private individual, as with our "opinions" of counsel, or to a judge who was trying a case, for it must be remembered that the judges (iudices) at Rome were not, like our judges, professional lawyers, but laymen, more like our jurymen, except that they generally sat singly and belonged to the wealthier classes of the community. Such a judge, if in doubt as to a point of law, might very well wish to ask the opinion of a jurisconsult, and would be almost certain to follow the opinion when he got it, though, during the republic, there was no compulsion to do so. It might also happen that a litigant had taken the opinion of a jurisconsult and gave evidence of this opinion before the judge who was trying his case. The result was that these opinions were, in effect, very much like decisions, and, though Roman law did not attach any binding force to precedent, the opinions of the jurists helped to mould the law in a manner not entirely different from that in which judgments mould English law. From the beginning of the empire the importance of responsa as a source of law was to become much greater, but they were already among the sources during the republic. As a rule, no doubt, responsa were given for an actual case, whether one which led to litigation or not, but this was not necessary. A purely hypothetical case might be raised, for instance, by a pupil, discussed and decided by the jurist, and, since there was in any event no formality, the influence of the decision might be equal to that of one given on real facts. That discussions in the circle of a jurist did take place is evidenced by Cicero, but whether the curious phrase disputatio fori used as a synonym for interpretatio, i.e. for the law created in this way, has any connection with this practice is uncertain.
Under respondere in its widest sense can also be included advice given to magistrates in connection with their legal duties, for the magistrates, though as public men they would have some knowledge of law, were only exceptionally experts. Especially in the highly important work of drawing up their edicts they must have been assisted by jurists, so that the edictal law, as well as the civil law proper, is in fact largely the work of the prudentes.
Of the other jurisprudential activities mentioned by Cicero, cavere means the drafting of legal forms for contracts, wills and other transactions where expert help was needed. Perhaps we should include under it what Cicero elsewhere calls scribere, the formulation of written documents, but it must be remembered that many important transactions, which would with us be embodied in written documents and merely signed by the parties, had in Roman law to be concluded by the spoken word (stipulation), even if a document was also prepared as evidence of what had been said.
Agere refers to assistance in litigation –help on points of procedure, the drafting of forms to be used by the parties to a lawsuit especially, in modern authorities are right, the drafting of the formula (in the technical sense), which under the "formulary" system of procedure formed the basis for the trial of the action by the iudex–.
Advocacy proper was not the business of the jurisconsult but of the orator, who, though of course he might also be a jurist, was much more often not legally trained. According to ancient ideas, the training needed was one in oratory itself, and many young Romans went to the Greek schools for the purpose of receiving this sort of education; the strictly legal knowledge necessary for arguing points of law involved in his case the orator was expected to get from an expert on each occasion, though in course of time he would naturally pick up a fair amount for himself. Cicero, for instance, though he did not in the least consider himself a lawyer, obviously knew a great deal of law.
In addiction to his immediate practical activities of respondere, cavere and agere, the jurist, as we have seen, sometimes spent part of his time in writing books on legal subjects. This was the only type of literature in which the Romans were completely independent of Greek models. In Greece there was nothing between the generalities of philosophers who were not interested in the detailed system of any one state and mechanical collections made by attorneys. The Romans, it is true, borrowed some of the generalities, but these remained without much effect in practice, and Roman legal literature was above all practical; the jurist never loses sight of the facts of Roman life and the way in which they had to be treated in the forum. Of republican literature, indeed, nothing has survived except a few isolated fragments from Q. Mucius, but it is clear from the great period which begins with the empire that a solid foundation must have been laid during the republic. The days of mere collections of forms like the ius Flavianum and the ius Aelianum were over long before it ended. Detailed and systematic works of an original character were written, though these too, no doubt, were constructed largely on the "casuist" principle, i.e. on the discussion of individual cases (actual or hypothetical) which continued to characterise Roman legal literature throughout, except in those works which were intended as handbooks for students. Such handbooks did not, so far as we know, come into existence during the republic.
That some jurists were also active as teachers has already been mentioned incidentally. Generally this teaching was confined, in republican times, to the admission of young men to consultations and to the discussions which accompanied them, and some preparation was provided by a knowledge of the XII Tables, which in Cicero's boyhood were still regularly taught at school. It is presumably to the presence at consultations that Pomponius is referring when he speaks of one jurist as having been the auditor of another. Towards the end of the republic, however, there appears to have developed a rather more systematic type of instruction which fell into two stages, one more advanced than the other, but regular lecturing by professional teachers did not exist until the empire.
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- Sources of law in the republic
+ Lex and plebiscitum
+ Edicta magistratuum
+ Custom
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 85 - 95.
