Roman Law
12/3/2007
Outline
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IV. QUINTILIAN,
INSTITUTIO ORATORIA bk 5
V. CICERO, DE ORATORE 1.36–7
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1.
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In three different places Cicero
describes for us the function of the jurist:
cavere, agere, respondere (De oratore 1.48.212);
respondendi, scribeni, cavendi (Pro Murena 9.19);
respondere, instituere, cavere (Id. 9.22)
— whatever the meaning of the
variable term, it is clear that in Cicero’s time it did not include writing
books, nor did it include teaching or arguing cases — the first two changed
as the jurists became at once more academic and more bureaucratic in the
principate, but the last, it is thought, never changed, giving the jurist
his unique quality — some sense of it remains among the academic lawyers on
the Continent — Brandeis as counsel to the situation.
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2.
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In Cicero’s
Topica, we find the following
significant remark: “Nihil hoc ad ius; ad Ciceronem,” inquiebat Gallus
noster, si quis ad eum quid tale rettulerat, ut de facto quaereretur. This
doesn’t pertain to law; go see Cicero,
our Gallus used say if someone referred a matter to him that involved a
question of fact. (Our Gallus is Gaius Aquilius Gallus, consul in 66 B.C.,
and by all accounts the most distinguished jurist of Cicero’s time. He’s mentioned a nuber of
times in the Pro Caecina.)
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3.
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Servius Sulpicius Rufus was a friend of Cicero’s D.1.2.2.43 (Pomponius
Handbook): “Servius Sulpicius, when he held the chief place in pleading
cases, or at least second to Marcus Tullius (Cicero) is said to have gone
to Quintus Mucius (the pontifex
maximus, and in many ways the first real Roman jurist) to gain advice
on the case of a friend of his and when the latter had responded to him on
the law, Servius understood little; again he asked Quintus and he was
answered by Quintus Mucius, nor did he yet understand, and so he was
reproached by Quintus Mucius; for he said that it was disgraceful that a
patrician and a noble and a pleader of cases was as ignorant of the law in
which he was employed. Servius, struck by this insult, we may say, paid
attention to the ius civile and
recieved a great deal of instruction from those we have mentioned, taught
by Balbus Lucilius, instructed most, however, by Gallus Aquilius ... .”
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1.
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Naevius had no grounds for applying to the praetor for a missio
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a.
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Naevius has no claim.
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b.
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There was no vadimonium.
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c.
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Naevius should not have asked for a missio
even if there had been a vadimonium.
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2.
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The interdict should not have been granted (arguments based on the
wording of the edict)
The praetor will grant a missio against someone “hides for the
sake of fraud and is not defended by the judgment of a good man” and one
who “absent from a trial (iudicio) is not defended.” (Lenel, Edictum Perpetuum, p.
415).
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3.
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Naevius never had possession of the goods, and hence Quinctius need not
give security.
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The interdict at stake in this case reads: “From that place from which
[that’s a lot to jam into unde, and, as Cicero points out, it’s not
the only way that we can read that word] you or your familia or your
procurator [roughly “agent”] ejected [deiecisti, literally
“threw down”] him [i.e., the complainant], with men gathered together or
armed, to that place you should restore [him, understood].” Piso (Cicero’s opponent) in
this case argues:
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1.
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No force (vis) was used
because no one got hurt
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2.
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Caecina was not “ejected” from the farm because he never got there.
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3.
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Caecina never was in possesion of the farm. To which Cicero replies:
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a.
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the interdict de vi armata
does not require possession
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b.
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Caecina was in possession
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1.
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Crassus:
“Can you then ... account them orators for whom Scaevola, though in
haste to go to the Campus Martius, waited several hours, sometimes laughing
and sometimes angry, while Hypsaeus, in the loudest voice, and with a
multitude of words, was trying to obtain of Marcus Crassus, the praetor,
that the party whom he defended might be allowed to lose his suit; and
Cneius Octavius, a man of consular dignity, in a speech of equal length,
refused to consent that his adversary should lose his cause, and that the
party for whom he was speaking should be released from the ignominious
charge of having been unfaithful in guardianship, and from all trouble,
thorugh the folly of his antagonist?”
See: D.26.7.55.1, Table VIII.20b.
“Within these few days, while we were sitting at the tribunal of our
friend Quintus Pompeius, the city praetor, did not a man who is ranked
among the eloquent pray that the benefit of the ancient and usual
exception, of which there is time for payment, might be allowed to a party
from whom a sum of money was demanded; an exception which he did not
understand to be made for the benefit of the creditor …
.”
“But what shall
I say of that great cause betwixt Manius Curius and Marcus Coponius, that was lately pleaded before the Centumviri,
and a vast multitude in court, all curious to know the event? When Q. Scaevola, my equal and colleague,
the man in the world who is best acquainted with the practice of the civil
law, of the quickest discernment and, genius; his style remarkably smooth
and polite; and, as I used to say, of all great lawyers, the most of an
orator, and of all great orators the most of a lawyer; when such a man as
he defended the validity of wills from their letter, maintaining, that
unless the posthumous child expressed in the will of the deceased was born,
and then dead before he was of age, that the person named in the will as
succeeding to the posthumous child, who should thus be born and die, could
not be the heir. I pleaded for the intention of the will; and that the
meaning of the deceased testator must have been, that if he had no son come
to age, then Manius Curius was the heir. Did not we in this cause persist
in quoting authorities, precedents, disputing upon the nature of wills, I mean the essential part of the civil law?”
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2.
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Antonius:
Basically an argument for generalists.
One needn’t be a jurist in order to know these things; one can
consult with those who do. There are
people who are both orators and philosophers or philosophers and poets, but
that doesn’t mean that one needs to be one in order to be the other.
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