Roman Law
12/3/2007
Outline

 

I. GENERALITIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

II. PRO QUINCTIO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

III. PRO CAECINA

 

 

 

 

 

 

 

 

 

 

IV. QUINTILIAN, INSTITUTIO ORATORIA bk 5

V. CICERO, DE ORATORE 1.36–7

 

ORATORS AND JURISTS

 

1.

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.

2.

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.)

3.

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 ... .”

 

1.

Naevius had no grounds for applying to the praetor for a missio

 

 

a.

Naevius has no claim.

 

b.

There was no vadimonium.

 

c.

Naevius should not have asked for a missio even if there had been a vadimonium.

 

2.

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).

 

3.

Naevius never had possession of the goods, and hence Quinctius need not give security.

 

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:

 

 1.

No force (vis) was used because no one got hurt

2.

Caecina was not “ejected” from the farm because he never got there.

3.

Caecina never was in possesion of the farm.  To which Cicero replies:

 

 

a.

the interdict de vi armata does not require possession

 

b.

Caecina was in possession

 

 

 

 

 

 

1.

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?”

2.

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.

 

 

Download this outline.


[Home Page] [Syllabus] [Announcements] [Lectures]

Please send comments to Rosemary Spang

URL:  http://courses.law.harvard.edu/faculty/cdonahue/courses/rlaw/c23.out.html
last modified:  12/14/08

Copyright © 2007. Charles Donahue, Jr.