Legal Profession in Ancient Imperial Rome

Notre Dame Law Review

Volume 30 | Issue 4 Article 2

8-1-1955

Legal Profession in Ancient Imperial RomeAnton-Hermann Chroust

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Recommended CitationAnton-Hermann Chroust, Legal Profession in Ancient Imperial Rome, 30 Notre Dame L. Rev. 521 (1955).Available at: http://scholarship.law.nd.edu/ndlr/vol30/iss4/2

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NOTRE DAMELAWYER

A Quarterly Law Review

VOL. XXX AUGusT, 1955 No. 4

THE LEGAL PROFESSION

IN ANCIENT IMPERIAL ROME

I. Introduction

(1)

By the first century B.C. the decisive changes which con-verted the old aristocratic Republic into an absolute mili-tary monarchy had already become manifest. Nearly onehundred years before Emperor Augustus made himself su-preme master of Rome, the Republic and many of its politi-cal institutions had often failed to function properly. Dur-ing the turbulent years of recurring civil wars which pre-ceded the reign of Augustus, Rome gradually had becomeaccustomed to arbitrary powers placed in the hands of suchmen as Marius, Sulla, Cinna, Carbo, Pompey, Crassus,Caesar, Mark Antony, Lepidus and Octavianus. This pro-gressive breakdown of the Republic, resulting from manydeep-rooted causes, cannot be discussed here. The advent ofthe Imperial rule, however, with its far-reaching political,administrative and social reforms, had a profound effect onthe future status and development of the Roman legal pro-

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fession, although this effect, in the main, was not felt imme-diately. A well-established profession, such as the Romanlegal profession of the Republican period', has an inherenttendency not to be suddenly swept away, nor to be at oncesubstantially altered by constitutional innovations. Fur-thermore, the first two Emperors (Augustus, 27 B.C.-14A.D., and Tiberius, 14-37 A.D.), for the sake of appear-ances, did not intend to rush the transition from the Repub-lican rule to the Imperial system. They were determined topreserve a Republican facade as much as this was feasible.This should explain why, at least outwardly, the Romanlegal profession seems to have remained essentially thesame during the first decades of the Imperial regime.

(2)

Even by the end of the second century B.C., the Romanlegal profession, in keeping with Cicero's famous quip:"When the sounds of civil war are heard, our professionbecomes conspicuously mute," had begun to manifest anattitude of political indifferentism by refusing to assumehigh political offices or to participate actively in the politicalaffairs of the day. In this it vastly differed from thepractices of earlier times when, in addition to their profes-sional activities, the leading lawyers and jurists had heldthe most exalted public offices-when, in a spirit of genuinepatriotism and civic-mindedness, the Roman legal pro-fession was atle and willing to assume important politicaland social duties. Conversely, this sudden lack of civic-mindedness on the part of the Roman lawyers during thelast part of the second century and throughout the firstcentury B.C.-an attitude which can be ascribed to the in-fluence of certain defeatist philosophies that had been im-ported from Greece - undoubtedly contributed to the

1 Cf. Chroust, The Legal Profession in Ancient Republican Rome, 30No=E DA3m LAw..97-148 (1954).

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steady advance of absolutist political ideas and practices.Forensic oratory, too, soon began to suffer from the

advent of military despotism. In the turbulent days broughton by dictators and tyrants, free speech could not possiblyflourish, and grand-style oratory, with its frequent refer-ences to social and political conditions, withered under theconstant threat of swift and cruel retaliation. Such oratori-cal activity cannot exist without free institutions, exceptfor the purpose of opposing and denouncing tyranny. Butfew men during those crucial years would risk their livesfor the cause of liberty, which, after the accession ofAugustus, seemed to be a hopeless cause. The tragic fate ofCremutius Cordus and others was sufficient warning forall those who during the early days of the Empire stillharbored hopes for the return of political freedom orthe restoration of a republican form of government.

(3)

Following the general outline of Roman political de-velopment under the Empire, the history of the legal pro-fession in ancient Imperial Rome may be divided intotwo distinct periods: (1) the period from Emperor Augus-tus (27 B.C.-14 A.D.) to Emperor Diocletian (284-305A.D.), a period which is commonly called the Principateor, as regards Roman legal history, the classical periodof Roman Law and Roman jurisprudence; and (2) theperiod from Emperor Diocletian to the final publication ofJustinian's Corpus Juris in the year 534 A.D., a periodwhich is also known by the name of Dominate or, in termsof legal history, the period of "bureaucratic law." Theperiod from Augustus to Diocletian, or the Principate, mayagain be subdivided into two distinct eras, the dividing linebeing the accession of the autocratic Emperor Hadrian(117-138 A.D.), during whose reign the famous juristSalvius Julianus edited the Edictum Perpetuum. This

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Edict, like the reign of Hadrian itself, is important not onlyas a landmark in the history of Roman Law, but also, in itspractical effects, as a turning point in the history of theRoman legal profession. The Dominate, which was the pe-riod of absolute and despotic monarchy largely fashionedafter Hellenistic-Oriental ideas, can also be subdivided intotwo eras, the dividing line being the final and permanentseparation of the Roman Empire into West-Rome and East-Rome (or, the Byzantine Empire) in the year 395 A.D.This historic division greatly affected the future of theWest-Roman legal profession. After the year 395, in themain, the West no longer kept up with the many and sig-nificant developments which in the course of the fifth andsixth centuries A.D. made the East-Roman legal professiontruly progressive.

(4)

Although the Principate already contained all the,essential elements of centralized governmental absolutismwhich in a totally undisguised manner finally came to thefore in the Dominate, for a while it still professed a strongattachment to republican forms and traditions. Hence ittried, often as a mere pretext, to preserve some of the oldand cherished institutions and practices. This policy of" Ccalculated conservativism," so dear to Emperor Augustus

(27 B.C.-14 A.D.) and Emperor Tiberius (14-37 A.D.), isalso reflected in the attitude and activities of the Romanlegal profession under the Principate, especially during theperiod from Emperor Augustus to Emperor Hadrian (117-138 A.D.). It is not surprising, therefore, that during theearly Principate the jurisconsults should still give caute-lary as well as judicial responsa to both officials and privateclients, and that in doing so they should still act in theirold authoritarian manner.

Whenever a renowned jurist or jurisconsult advised or

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spoke on matters of law, his advice was accepted by virtueof both his personal prestige (auctoritas) and his standingin the profession as well as in the community. Cicero al-ready had maintained that in his City the situation wassuch that:

Every person of the most eminent rank and character,such as Aelius Sextus, who, for his knowledge of the law,was called by the great poet [scil., Ennius], 'a man ofthought and prudence, nobly wise', and many other menbesides him, who had gained distinction by means oftheir ability, attained such influence that, in answeringquestions on points of law, it was decided that theirauthority was of more weight than even their ability.

In this sense the jurisconsults of the early Principatemerely carried on, at least for a while, the traditional workof the Republican jurists, though with some modificationsthat were in keeping with the new political situation.

The forensic orators or advocates, too, continued to holdaloof from the jurisconsults, as they had done in the days ofthe Republic: they still preferred oratory to a sound know-ledge of the law. Thus the Principate, to some extent andfor some time to come, permitted the continuance ofthe two separate branches of the Roman legal professionwhich had developed during the second century B.C.,namely, the jurisconsult or jurist and the forensic orator oradvocate.

(5)

The Dominate, that is, the period beginning with Em-peror Diocletian (284-305 A.D.), had a historical meaningof its own in that it brought about further and far-reachingchanges in the development of law and the legal profession.The centralization, monopolization and bureaucratizationof law, which had started with Emperor Augustus, receivedmuch impetus under the autocratic rule of Emperor Had-

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rian. During the Dominate this development went on re-lentlessly, until it became complete and absolute. The in-herent tendency of every bureaucracy to codify the lawand strictly to supervise the application and enforcement ofthe law was finally and fully realized in the Dominate. Bythen nearly all the best legal minds, the leading lawyersand jurists, had entered either the Imperial administration(including the teaching profession) or, somewhat later, theadministration of the Church. In contrast to the classicalperiod of Roman jurisprudence, the great legal work of thisage was done by lawyers who belonged to either the Im-perial Chancery, the Imperial Council or the administra-tion of the Imperial provinces.

While during the Principate the most illustrious juristsstill spoke, wrote and advised in their own names and, ap-parently, on their own authority, from the time of Dio-cletian the centralized bureaucratic system began to imposea conspicuous anonymity on the actual originators anddrafters of the imperial constitutions, statutes, edicts,decretae, epistuIae, mandata and rescripta. Thus only rare-ly, as in the case of Trebonianus, can a particular legalachievement or work be connected with a particular jurist.And even Trebonianus, who presided at the commissioncharged with the publication of the Corpus Juris of Justin-ian, was only the "chairman" of a large committee. Every-thing that emerged from the sacred Imperial Office fromthis time on had to appear as coming directly from the di-vine Emperor himself, the sacred fountainhead of all lawand justice.

The typical juristic products of this period were theofficial or semi-official codifications which culminated inJustinian's final Corpus. With this decisive event in thehistory of law, the body of Roman Law, in the main, be-came stationary, an incident which, of course, also affectedthe Roman legal profession. As a matter of fact, the pub-lication of the Corpus Juris, at least for the legal historian,

[Vol. XXX


marks the beginning of the Middle Ages and, hence, thebeginning of an era which is really outside the scope of thispaper. After the year 534 A.D., Roman Law survived onlyin the form of interpretation and application of this im-posing Corpus, which became the sacred law book and theever-flowing fountain of all legal wisdom, from which thelegal profession had to draw its inspiration and guidance.

11. The Jurisconsults

(1)

Toward the end of the Republican period the jurisconsults(iurisconsulti, iuris periti, iuris prudentes, prudentes orprudentiores), although themselves private persons, weremore and more called upon to assist and advise publicofficials-both judicial and administrative officers-in theperformance of many public duties and tasks. This is notaltogether surprising in a society where since earliest timesthe legal pr9fession had been a sort of public service as wellas an aristocratic calling performed in a spirit of patrioticcivic-mindedness. It was pursued by persons who, on ac-count of their noble birth, exalted social status and inde-pendent economic position, either held or had held someof the highest magistracies in the City. This idea is clearlystated by Cicero when he remarks: "Who does not knowwhat a harvest of honor, popularity and dignity such...[a profession], even of itself, brings to those who areeminent in it?" Furthermore, private parties as well aspublic officials habitually solicited and accepted the

2 The term "jurisconsult" is a technical designation which refers to

a man who is approached or consulted (consulere) by a client seekingadvice on some question of law (ius). Consulere signifies here the activityof the client who "asks for advice" and, hence, is also called consultator,consultor or consulens. The jurisconsult is the one who is being consulted(quis consulitur) about law (de iure). L. Cincius wrote a work on De OficioJurisconsulti. presumably a sort of "Guide for the Practicing Jursconsult."which, however, is lost.

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legal services of a recognized expert. Thus, already duringthe Republican era, administrative 6fficers, especiallyprovincial governors, judicial officers and high govern-mental magistrates would often add to their staff (con-silium) some jurist of repute. At least during the pro-ceedings in lure - where the frequently involved procedu-ral formulae or forms of action, the instructions to the"trier" (iudex) and the "pleadings" for the parties weresettled - the judicial officer (praetor or aedile), who asoften as not was himself a layman, had to have the assist-ance of a legal expert.

Especially with the passing of the tex Aebutia duringthe second century B.C. - when the judicial magistratewas granted-the powerat his discretion to accept, reject ormodify any-formula or form of action proposed by eitherparty- not only the magistrate, but also the parties them-selves required the competent assistance of a legal expert.After the legal reforms introduced by the lex Aebutia,which greatly complicated all matters of procedure, the"trier" or iudex, who in the proceedings in iudicio tried theissues and forms of actions agreed upon or settled in theproceedings in lure, likewise needed the collaboration of anexpert lawyer or jurisconsult. This iudex, as a rule, wasalso a layman and, hence, could hardly be expected byhimself to understand the instructions, which were fre-quently very technical and highly involved, and which hadbeen formulated during the proceedings in lure and for-warded to him by the praetor. Often he did not even masterthe complex technicalities of the proceedings in iudicioproper. Hence he could not -very well dispense withexpert counsel. As a matter of fact, during the last decadesof the Republic it became a rather common practice thatthe iudex should regularly appoint to his consilium or staffsome jurists of renown. This appointment, however, didnot make them "officials" or permanent and salaried mem-bers of the trier's staff; they still acted as private advisors,

[Vol. XXX


serving the commonwealth in a spirit of civic-mindedness.They were men of great reputation in their chosen callingwho felt that they owed this service to the public. However,only on rare occasions did the Republican jurist or juris-consult himself act as a iudex, and the sole noteworthyexception to this general rule seems to have been AquiliusGallus.

(2)

During the early Principate the jurists and jurisconsults,however, came more and more to assume the role of iudicesin both criminal and civil cases. This phenomenon, thebeginning of which can be traced back to Emperor Hadrian(117-138 A.D.) and perhaps even to Emperor Vespasian(69-79 A.D.), was definitely in accord with the new Im-perial policy of turning over certain important publicfunctions to professionally trained (and later also salaried)persons. In addition, an ever larger number of the tradi-tional magistracies, as well as the majority of the newlycreated Imperial offices which also performed judicialfunctions, from then on were awarded to the more re-nowned jurists, jurisconsults and lawyers. The key posi-tions in the Imperial administration, Imperial bureausor chanceries, and Imperial provinces frequently wereassigned to trained lawyers. The same held true, thoughto a lesser extent, for the Senatorial magistracies, such asthe consulship, the praetorship, the aedileship, the tribune-ship, the quaestorship and the governorships in Senatorialprovinces.3 Also, before being admitted to the higher mag-

3 Emperor Augustus divided the administration of the Roman Empireinto two spheres: the Imperial regime and the Senatorial regime. Thisdivision also applied to the provinces, which henceforth were called eitherImperial provinces or Senatorial provinces. The Imperial provinces, like theImperial central administration, were under the direct control of the.Em-peror, who also appointed all officers, including the provincial administrators,while, the Senatorial provinces as well as the Senatorial administration,which still .encompassed many, important governmental functions, were un-

Continued on Page 530

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istracies, especially to the newly created Imperial officesto which important judicial functions (such as those ofthe praefectus praetorio or the praefectus urbi) wereattached, a man was now expected to have served sometime on the "bench," that is, in the decemviral courts.This, in turn, would indicate that he was expected to haveprofessional skill and professional experience as a lawyer;in other words, it would show that he was a man trained inthe law and, hence, qualified to perform the many judicialfunctions traditionally connected with the highest offices ofstate. Beginning with the Principate, which in this appar-ently followed Hellenistic ideas of professionalism, profes-sionally trained men of expert knowledge more and morewere given preference whenever an appointment to animportant office was to be made.

In the early days of the Principate the jurists, juris-consults and lawyers were, to a larger extent, also calledupon to assist magistrates in many an important publicfunction, acquiring thereby what might be styled a semi-official status in that the magistrate frequently deferredto their advice. Nevertheless, they remained, as they hadalways been under the Republic, essentially private per-sons. But even as private persons they still had manyways of asserting their influence on public life and, es-pecially, on the administration of justice and the furtherdevelopment of Roman Law. Hence they were often re-ferred to as iuris auctores (creators of the law) or asveteris (or, antiqui) iuris conditores (framers of the old

Footnote 3 continuedder the nominal supervision of the Senate. Thus the Roman Senate, the"carry-over" from the old Republic, it least until the third century A-D.and then often only by Imperial sufferance, still made appointments toSenatorial offices, very much in the same manner as it had done duringthe days of the Republic. This also accounts for the fact that, in the main,the Imperial administration was more efficient. It employed trained lawyersto a considerably larger extent than did the Senatorial administration which,by comparison, was run in so amateurish, wasteful and frequently incompetenta manner that the Emperor often saw himself compelled to interferewith these Senatorial prerogatives.

[Vol. XXX


law), that is, makers of the law of the Republic -and theearly Principate. Sometimes, to be sure, the jurisconsultsor lawyers themselves were actually officials, that is, eitherjudicial or administrative magistrates, especially duringthe later Principate, when the great Imperial offices orprefectures had acquired wide judicial powers and, hence,were held by trained lawyers and often by eminent jurists.But even those jurists or lawyers who did not hold anyofficial appointment were frequently in a position not un-like that of a "judge" when they gave their authoritativeresponsa to either magistrates or private parties. Theseresponsa, being passed on to the official "trier" or iudex,more likely than not would be relied upon to settle thecase under litigation in that they were accepted by theiudex in full. This was particularly true as regards theresponsa given by "patented lawyers," that is, those law-yers or jurisconsults who, as will presently be shown, hadbeen "licensed" by the Emperor and, hence, spoke exauctoritate principis (with the authority of the Emperor).

(3)

Perhaps the most important and probably the mostdecisive service which the Roman jurisconsult or lawyerof the last century B. C. rendered to the administration ofjustice and, incidentally, to the further advancement ofRoman Law during the Republican era, was the assistancehe gave to the highest Roman judicial magistrates inframing their specific edicts. Although in this he actedin a purely unofficial capacity, he nevertheless becamethe decisive factor in determining the decision of thepraetor whenever the latter gave final form to individualprocedural formulae or forms of action during the pro-ceedings in iure. Out of this praetorian practice, whichoriginally was a purely procedural matter, gradually de-veloped the policy of issuing praetorian (and also aedilici-

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an or provincial) edicts which in the course of time becamesubstantive law (ius honorarium). These edicts contribut-ed much to the sound and practical evolution of thewhole of Roman Law. They were, as Pomponius puts it,the "itis quod sine scripto venit compositum a prudentibus"(the law which, though not being writtdn law, was de-vised by the jurists), or, the "proprium ius civile quodsine scripto in sola prudentium interpretatione consistit"(the civil law proper which, without being written law,consists solely in the interpretation advanced by thejurists).

In the proceedings in iure the jurisconsult, by his cau-telary activity or responsa, actually devised individualprocedural formulae for his clients and thereby createda model which, as a rule, was accepted and officiallyconfirmed as valid law by the judicial magistrate. This,too, added much to the modification and further de-velopment of the existing Roman Law in all its branches,especially since it helped to bridge the obvious gaps ofthe earlier law. The particular function of the juriscon-sult to advise magistrates on the composition or revisionof their edict, in the main, was continued during the earlyPrincipate, at least until the reign of Emperor Hadrian(117-138 A.D.). It is also safe to assume that thosejurisconsults or jurists, who were members of the magis-trate's advisory staff, or consilium, really decided whetheran old formula or form of action was to be allowed in anew application, or whether a completely new formulawas to be devised and accepted, either by way of analogyor by means of an entirely novel creation. In this sensethe Roman jurisconsults or lawyers were more than theRoman "bar"; they were very close to the bench, if notactually on the bench.

(4)

During the later Principate the jurisconsults or jurists

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continued to give technical legal advice to magistrates andjudicial officers, to both Imperial and, especially, Senatorialmagistrates. But while in Republican and early Imperialtimes they did so mainly on a voluntary basis and merelyas private persons without any official standing, duringthe later Principate, that is, beginning with the reign ofEmperor Hadrian (117-138 A.D.), some of them becameregular and even salaried officials appointed to assistpublic functionaries. This novel development was fullyin keeping with the new Imperial policy of monopolizingand centralizing all governmental activities, including thedevelopment and administration of law and justice. It wasclosely related to the new tendency, so typical of anyautocratic regime, that all politically significant officesshould be held by professional and salaried officers who,through their salaries and permanent official status, weremore closely tied to the regime. Emperor Hadrian, whoundoubtedly had inherited this tendency from his pre-decessors, perfected it and made it a veritable system orofficial policy. From this time on, wherever possible, everyhigh magistrate either had to be a trained lawyer himselfor, at least, had to have at his side a trained lawyer as hissalaried permanent legal advisor who was called adsessor,comes or consiliarius. This was especially true with mag-istrates who performed important judicial duties. Thusit came about that the Roman lawyer officially and per-manently entered not only the staff of the Emperor him-self, but also the consilium of every important magistrate.Gradually he became the most important, most influentialand, certainly, the most indispensable member of the staff;he frequently assumed the undisputed role of a "firstsecretary" or confidant of the Emperor or the magistrate towhom he was assigned. On account of his indispensableskill and experience he frequently achieved even a highdegree of independence. He made all sorts of final decisionsin matters which as often as not he merely submitted for

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THE LEGAL'PROFESSION

approval or signature to the chief magistrate or Emperor.This was particularly the case with jurists or lawyers whowere assigned as advisors to provincial governors. Oftenthe governors would turn over to their lawyer-secretariesall administrative and legal questions arising under theirjurisdiction.

(5)

Probably even more important than the expert advicehe gave to judicial or administrative magistrates werethe professional services which the jurisconsults renderedto private clients who were seeking their expert as-sistance. During the last two centuries of the Repub-lican era the jurists or jurisconsults primarily hadbeen engaged in giving to private clients authoritativeopinions, namely, cautelary and judicial responsa. Thiswas advice as to what action should be taken in orderto achieve legally a desired result (cautelary responsum),or a declaration as to the legal validity or consequence ofan act already performed (judicial responsum). This kindof legal service came to be of special importance in thedrafting or interpretation of all sorts of legal instruments,and the well-deserved reputation of many an outstand-ing Roman jurists or jurisconsult was founded on hisresponsa. But during the last days of the Republic themore famous jurist-lawyers or jurisconsults, in the main,withdrew from the general practice of law, especially fromappearing in court to present the case of a client.' Neitherdid these men care to put themselves on a level with the

4 Such well-known lawyers or jurisconsults as A. Cascellius, L.Valerius, Q. Aelius Tubero, Pacuvius Labeo, Aulus Ofilius, C. Trehatius,Servius Sulpicius Rufus, P. Alfenus Varus, Q. Cornelius Maximus,Precianus, Flavius Priscus, Titus Caesius, Cinna, Aufidius Tucca, PubliciusGellius, Aufidius Namusa and Caius Ateius, to mention just a few of thelast great Republican jurists or jurisconsults, did not wish to competein the courts with the steadily rising class of forensic orators or. advocatesand their rather recIdess and often ruthless methods.

[Vol. =X


minor legal practitioners, scribes or legal consultants whogradually took over the task of drawing up simple legaldocuments or of advising clients, especially the "littleman," on all sorts of minor legal matters. Only on rareoccasions would the great jurists become involved inlitigation, and then only if an unusually difficult or sen-sational legal issue did arise, or when a particularly exaltedpersonage had asked for their assistance.

(6)

Toward the end of the Republican period the work ofthe jurisconsult became particularly important in thedomain of cautelary responses. As a result of the lexAebutia (second century B.C.), Roman legal proceduregradually had become extremely technical. In the begin-ning of Roman Law the jurisconsult or lawyer, who waseither a pontiff or a layman, had merely informed theparties as to the exact wording of the solemn forms ofaction (legis actiones) or formulae they were to use inorder to achieve the desired legal result. These forms,which were relatively few in number and, on the whole,fairly simple, in the course of time had become mechani-cal and stereotyped. Hence the early lawyer had nothingmore to do than either to instruct or prompt his clientproperly to recite these rigidly fixed words during theproceedings in lure. But with the passing of the lex Aebutiathe plaintiff was now expected to submit to the presidingjudicial magistrate a provisional statement of his complaintor claim. The defendant, then, could suggest not only anumber of changes or modifications of the original com-plaint, but could also have his defense or "exceptions"included in this provisional draft. In addition, the magis-trate himself might submit his own suggestions and makethe final acceptance of the plaintiff's complaint dependentupon the inclusion of these changes, modifications or ex-ceptions.

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Obviously, the drafting or devising of such involvedformulae, or forms of action, which allowed much leewayto discretion and imagination, was an extremely com-plicated procedure which demanded great professional skilland much experience. Hence the competent advice of atrained lawyer or jurist was well-nigh indispensable, themore so since the presiding magistrate, as a rule, was him-self not a legal expert. Happily enough, the average Romanlitigant and, especially, the Roman judicial magistrate,were never averse to the idea of consulting with a legalexpert on all matters of law and legal procedure. Thisfavorable attitude of the Romans toward their legal pro-fession, which was unique in ancient times, indicates thatthey were a relatively mature people as regards law andthe administration of justice. To consult with a jurist orlawyer on all matters of law was considered a "privilege"enjoyed by every interested party. But there was no suchthing as a "duty" to seek the assistance of a lawyer. Inchoosing his legal advisor, a man had a completely freehand and, if he was dissatisfied with the advice he hadreceived from one jurisconsult, he could always turn toanother jurisconsult. But while no person had an obligationto retain the services of a lawyer or jurist, failure to doso could have disastrous consequences. Ignorance of thelaw (ignorantia iuris), the Digest of Justinian provided,was not accepted as a defense whenever the party had hadan opportunity to consult with a competent jurist or lawyer.

The lex Aebutia, however, had still a further drasticeffect on the development of Roman legal procedure and,incidentally, on the development of Roman Law. In thepast the accepted procedural forms or formulae, as hasbeen shown, had been relatively few and, in the courseof time, had become stereotyped. But now, due to thisprocedural reform, an almost infinite number of forms ofaction could be devised to fit any legal purpose. Beginningwith the lex Aebutia, the presiding magistrate, at his

[Vol. XXX


newly-created judicial discretion, was empowered notonly to accept any and every formula or form of actionsubmitted to him by an ingenious jurisconsult or lawyer,but also to alter this formula in whatever way he saw fit.By the same token the jurisconsult or lawyer was entitlednot only to propose any form of action, including com-pletely novel and unprecedented forms, which he consider-ed proper or necessary for the achievement of a desiredand desirable legal result, but also to suggest the drasticmodification of any old form of action. Such highly tech-nical proceedings, with their various and complicatedsteps, required a great deal of expert knowledge and pro-fessional experience. A party not thoroughly familiar withthese technicalities was likely to find itself without anactionable claim, an effective remedy or a suitable defenseand, hence, was bound to lose its case even before it wasargued in iudicio, unless some experienced professionalwould act in its behalf.

(7)

The general and wholesome effect which the lex Aebutiahad upon the development and expansion of a mature andworkable legal system can hardly be exaggerated. As amatter of fact, the period following the passing of the lexAebutia, which was truly the creative and original period inthe history of Roman Law, in a way came to be the periodof "grand style litigation," where the adroit lawyer throughhis cautelary responsa made fullest use of a great oppor-tunity to develop a great law. By constantly creating,developing and modifying forms of action, the Romanlawyers or jurisconsults devised effective means of defin-ing, delimiting and, above all, securing in legal termscertain human interests and certain human powers ofaction. In other words, they evolved what might be calleda jurisprudence of rights, if by a right we mean primarily

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an interest secured by law or, to be more exact, an "action-able interest." In this they displayed not only outstandingprofessional ability, unusual human understanding andadmirable social skill, but also a profound appreciationof the essential requirements of a living law meant to copeeffectively with concrete practical problems arising in thecomplex lives of individuals and their socially importantinter-relations and inter-actions with one another. Beingprimarily creative thinkers, the lawyers of this particularperiod did not overly stress systematization or balance,something which was actually achieved during the so-called classical period of Roman Law, that is, in the periodfrom Emperor Augustus to Emperor Alexander Severus(222-235 A.D.). They potred out their often magnificentlegal innovations lavishly, leaving it to later and lessoriginal generations to bring some order into this profu-sion of new legal devices.

(8)

The advent of the Imperial rule, as could be expected,brought about certain gradual changes in this kind ofcautelary jurisprudence. The Imperial regime, beginningwith the Principate, was a period of progressive centraliza-tion and bureaucratization of all public and semi-publicactivities. As such it could not fail to influence also thecautelary activities of the jurisconsult. All centralizationtends to monopolize everything connected with law -

that is, with the administration and control of certainsocially relevant aspects of human conduct and humanrelations - and usually reaches a climax in a supremeeffort to codify all laws, public and private, in one singleCorpus. Obviously, such a tendency could not toleratethe "unofficial" methods of developing law and legal pro-cedure that had been employed by the jurisconsults andlawyers of the Republican era when they framed their

[Vol. XXX


cautelary responsa solely on their personal authority. Al-ready beginning with Emperor Augustus, it became some-thing of an official though never publicly declared policythat all lawmaking and law applying from then on wasto be an official act, a constitutio principis (Imperial edict),a senatus consultum (Senatorial decree) or a plain lex,rather than a responsum prudentium, although the re-sponsum prudentium still carried some authoritativeweight.

Thus endtd,.in a rather unostentatious fashion, the un-official lawmaking power of the Roman lawyer or juristto which the evolution of Roman Law had owed so much.From then on all legal development rested in the hands ofthe Emperor or his central bureaucracy. With the codifica-tion of the previous praetorian edicts in the Edictum Per-petuum during the reign of Emperor Hadrian (117-138A.D.), the old-style cautelary jurisprudence of the Romanjurisconsult had completely lost all of its former meaningand, hence, for all practical purposes, had passed out ofexistence. The Edictum Perpetuum, edited by the famousjurist Salvius Julianus at the order of Emperor Hadrian,in itself is an important and decisive step in the generalImperial tendency of centralizing and governmentalizingsuch socially and politically significant activities as law-making and law applying.

The jurists and jurisconsults, by way of analogy, mightstill try to propose some novel action at law, but sincereal and total innovations from this time on were strictlyprohibited, pleading became somewhat a matter of routinewhich even a secretary or scribe could perform. The Edic-turn Perpetuum, which is really nothing other than a kindof "Restatement" of the ius honorarium, directed that inthe future all judicial magistrates must issue their edictsin conformity with its prescriptions. Only within theselimitations did the magistrate (and the jurisconsult) retainsome of their discretionary powers; and only by way of

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analogy were they permitted to allow new forms of actionor new pleadings. Thus it can be maintained that for allpractical purposes the Edictum Perpetuum marks the endof Roman cautelary jurisprudence.

(9)

Not only in the field of cautelary responsa, but also inthat of judicial responsa, the work of the Republican jur-ists and jurisconsults was of decisive importance. It wasa common practice among Romans to consult with a legalexpert concerning the legal validity or legal effects ofcertain acts already performed. The importance as wellas the general popularity of seeking this kind of (judicial)responsum might also be gathered from the fact that fre-quently one and the same client approached several juris-consults for advice. To cite but one instance, Cicero, ina matter of inheritance and its legal consequences, con-sulted first with C. Trebatius, then with Servius SulpiciusRufus, and finally with A. Ofilius. All this goes to showthat the average Roman, a cautious and legally-mindedperson, liberally availed himself of expert legal advice.In other words, in every walk of life it had become a gen-erally accepted practice for a Roman citizen who was aboutto make an important decision to consult with an experi-enced lawyer about the legal consequences of his actions.*Roman legal practice not only permitted, but actuallyencouraged, every person to avail himself of the servicesof a competent lawyer. Conversely, in a spirit of civic-mindedness and professional service, the jurisconsults gavetheir judicial responsa readily and, as a rule, freely. Theseresponsa were not stated in any prescribed form; being

5 Or, as Cicero puts it, "all people had free access to consult themnot only upon various points of law, but also upon such matters as thesettlement of a daughter in marriage, the purchase of an estate, thecultivation of a farm, and, indeed, upon any employment or businesswhatever."

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solicited orally, they were given orally and usually withoutexplanation of the reasons behind them. Only upon specialrequest, particularly if the matter was taken to court, wasthe responsum put into writing. Upon demand the juris-consult might also attach to his judicial responsum thedraft of a cautelary formula, thereby combining both ajudicial and a cautelary responsum. This was done when-ever the client, after having been instructed as to his legalstatus, wished to institute an action on the basis of thisinformation.

(10)

The giving of cautelary as well as judicial responsa,which probably had been the most important activity andcertainly the most valuable contribution of the Republicanjurists or jurisconsults, was decisively affected also by theadvent of the Imperial rule under the Principate. Beingfundamentally opposed to military tyranny and to the gen-eral bureaucratic trend toward centralization and mono-polization of all legal development brought on by thePrincipate, some jurists or lawyers retired from the prac-tice of law, that is, from giving responsa. They began in-stead to concentrate on writing and teaching. Those juris-consults, however, who continued in the profession, soonfelt the effects of the new bureaucratic tendencies. Em-peror Augustus, in keeping with his policy of combiningcaution with expediency, did not wish to abolish the time-honored practice of giving responsa, which had once beenthe glory of the Republican legal profession in Rome.He neivertheless interfered with this practice in a decisivethough unostentatious manner. He considered completeindependence in such socially important matters as lawand the administration of justice as incompatible withhis regime, which strove for strong unification and cen-tralization of such politically and socially significantactivities as the development and application of law. Wish-

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ing to co-ordinate the practice of declaring law with hisideas of centralizing all governmental functions, especiallyall means of social control, Augustus began to grant alimited number of jurisconsults the right to give responsa(ius respondendi) by special Imperial authority or patent.In other words, these favored jurisconsults were empow-ered to give responsa ex auctoritate principis and theythereby became what might be called patented or licensedlawyers.

(11)

In the long run the effects of Augustus' policy as regardsthe activities of the jurisconsults were of far-reaching con-sequences both for Roman Law and the Roman legalprofession, foreshadowing the principle of authoritativeapprobation or "Law of Citations" of 426 A.D., whichunderlies the later official codes. Although Augustus didnot offici.lly decree that responsa could only be given byImperial patent, or that unlicensed jurists and jurisconsultscould not continue to give responsa, this new Imperialscheme did in fact create two disinct classes of jurists orlawyers, namely, "authorized" or "approbated lawyers,"and "unauthorized" or "unapprobated lawyers." An un-authorized jurisconsult or lawyer could still give responsaas he had done in the days of the Republic. But he did soon his own authority, and his clients accepted his legaladvice at their risk. But even an Imperial patent did notconfer upon the jurisconsult any official status; it did notmake him a magistrate or a State official, but merely en-dowed him with what might be called "higher authority,"although there existed no definite rule defining his par-ticular authority. This higher authority helped to induceofficials, judicial magistrates and "triers" to accept theruling or advice of a patented jurisconsult, although theywere under no particular legal compulsion to do so. In

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other words, the patented or licensed jurisconsults andlawyers, like the unlicensed jurisconsults, were, as theyalways had been, private citizens doing private business.But the licensed jurisconsult, who apparently had the trustof the Emperor, spoke ex auctoritate principis (or impera-toris), and this alone exalted him above his unlicensedcolleague who still spoke ex propria auctoritate or exprivata auctoritate.

Formerly the jurisconsults, as a rule, had given theirresponsa orally to their client, who then "reported" themto the praetor or iudex, although upon special request theymight write them down. But now, after the practice oflicensing certain lawyers had come into vogue, the responsawere nearly always reduced to writing and, before theywere handed over to the client, they were sealed in orderthat they might not be tampered with before reachingeither the praetor or the iudex. It is quite likely that thepatented lawyers or jurists were required to use a sealin order to indicate that they spoke ex auctoritate prin-cipis, and no one dared to tamper with this authority. Inaddition, the seal had a most persuasive force and would,in fact, often settle the case. It may be assumed that theunlicensed lawyers also soon used the seal, a practicewhich probably became universal both with patented andunpatented lawyers. Unfortunately, the names of onlytwo patented lawyers have been preserved, namely, that ofMassurius Sabinus, who received his license from EmperorTiberius (14-37 A.D.), and that of Innocentius, an other-wise unknown lawyer who probably lived during the reignof Emperor Diocletian (284-305 A.D.). But it is alsopossible that all those jurists, jurisconsults and lawyerswho published responsa - the last one was Modestinus,the pupil of Ulpian - and most of the jurists who arequoted in the Digest, had an Imperial patent. The policyof licensing certain jurisconsults or lawyers, thus grantingthem a quasi-official standing in the legal profession, cul-

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minated in the Law of Citations of the year 426 A.D., whichdecreed that special weight must be attached to theresponsa, opinions and writings of certain jurists of thepast, whose views were thus confirmed by statute. TheLaw of Citations, in the final analysis, is the ultimate resultof Augustus' policy of licensing certain jurists and lawyers.

(12)

In the early days of the Principate the majority of theleading jurisconsults or lawyers in Rome were strongpartisans of the Republican form of government and, as aresult, they opposed the new Imperial regime and itspolicies. This fact should explain why during the reignsof Emperor Augustus and Emperor Tiberius (14-37 A.D.)relatively few jurists asked for, or would accept, an Im-perial patent. In a spirit of proud defiance they seem tohave preferred continuing the Republican practice of giv-ing their responsa on their own authority. Emperor Cali-gula (37-41 A.D.) and Emperor Claudius (41-54 A.D.),two rather ineffectual rulers who displayed an open dis-like of lawyers in general and jurisconsults in particular,seem unduly to have favored forensic orators. They prob-ably refused to grant any patents to jurisconsults. Tradi-tion has it that Emperor Caligula fiercely denounced thejurisconsults of his time, often threatening them withtotal extinction. Nevertheless, the policy of licensing cer-tain favored jurisconsults, which had been introduced byAugustus, lasted until the time of Emperor Trajan (98-117A.D.) and perhaps even longer, although the distinctionbetween the class of patented lawyers and the class ofunpatented lawyers had little practical significance, at leastnot during the first century after Christ.

(13)

Emperor Hadrian (117-138 A.D.), a capable but auto-cratic ruler, seems to have made the responsa of certain

[Vol. XXX


privileged jurisconsults binding upon the judicial magi-strates and iudices, provided that these jurisconsultsagreed among themselves. In this he merely improvedupon the policy inaugurated by Augustus. In addition,Hadrian abandoned the licensing of individual juriscon-sults and lawyers. But these reforms of Hadrian werenot as startling as they may appear at first sight. Theywere in full accord with his autocratic ideas, which in-cluded an even greater centralization and monopolizationand, accordingly, a more intense bureaucratization of allgovernmental activities.

Among the many constitutional or administrativechanges or reforms which he introduced during his reign,Hadrian reorganized completely the Imperial Councilor consilium principis by putting it on a regular and per-manent basis. Augustus and his immediate successors, tobe sure, had already availed themselves of the advice andthe services of such a Privy Council - an institution whichactually goes back to Julius Caesar, though it first was le-gitimatized by Augustus. The Augustan Imperial Council,however, which included some outstanding and trustedjurists or lawyers, had been a somewhat haphazardaffair of no great significance. But under Hadrian it becamea regular or "constitutional" organ of the Imperial admin-istration, containing regular members who received per-manent appointments and regular (comparatively large)salaries. This re-organized Imperial Council, which laterwent under the name of consistorium, was a relatively largeadvisory body to which a number of leading jurists andlawyers were regularly summoned. The principal mem-ber of the consistorium, besides the Emperor himself, wasthe praefectus praetorio (a sort of Prime Minister), whowas frequently a lawyer and more often than not an out-standing if not the most outstanding jurist of his day. ThusPapinianus, one of the greatest of all Roman jurists, waspraefectus praetorio (and member of the Imperial Coun-

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cil) under Emperor Septimius Severus (193-211 A.D.);the great Ulpian was praefectus praetorio under EmperorAlexander Severus (222-235 A.D.); and Salvius Julianus,the author of the Edictum Perpetuum, was Quaestor Au-gusti as well as a member of Hadrian's Imperial Council,where on account of his great legal learning he receivedtwice the usual salary. Julius Paulus, aside from holdingmany of the highest offices in the Imperial administration,was likewise a member of the Imperial Council whichsince the days of Hadrian had officially monopolized andcentralized the entire development, application and ad-ministration of law throughout the Empire.

(14)

In this manner the time-honored practice of the Repub-lican jurisconsults and jurists to develop law was preservedin a way, but from this time on they worked through theImperial Council. At the same time, the new Imperialtendency toward monopolization and bureaucratic cen-tralization was fully realized. Hence there no longer ex-isted any particular reason for licensing individual juris-consults or lawyers; summons to the Imperial Councilbecame tantamount to licensing. As a matter of fact, in-dividual licensing would have been incompatible notonly with Hadrian's ideas of governmental and admin-istrative centralization, but also with his notions re-garding the functions and tasks of the Imperial Council.The jurist-members of the consilium principis from thenon spoke on all matters of law through this Imperial Coun-cil and, hence, ex auctoritate principis (or, imperatoris).It was through the reformed Imperial Council that theymade felt their traditional influence on the development,application and administration of Roman Law. The com-petence of the Council in all legal matters now extended toevery branch of the law. Naturally, compared to the old Re-publican practice of giving responsa ex propria auctoritate,

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the ius respondendi (the right to give responses) of theHadrianic and post-Hadrianic jurisconsults and lawyerswas somewhat restricted and of lesser importance eventhough they acted through the Imperial Council. Especiallyafter the passing of the Edictum Perpetuum (during thereign of Hadrian), the respondere, with the exception ofsmall matters of detail, ceased to be primarily a means ofdeveloping new law. From this time on respondere cameto be essentially an instrument for interpreting or com-menting upon already existing law. The main forms of pro-mulgating new laws were either the senatus consulta, thedecrees of the Senate (for under the Principate the RomanSenate had become a legislative body) during the Princi-pate, or the constitutiones principis or imperatoris (theImperial constitutions) during the Dominate.

(15)

With untiring effort the jurisconsults and jurists of thePrincipate again and again subjected the existing body ofRoman Law to minute examination by analyzing its ulti-mate practical consequences. Every problem of law, realor imaginary, no matter how petty and casuistic, wasthoroughly probed and dissected. Sometimes the profes-sional enthusiasm, the penchant for the smallest detail,and the amount of time and labor spent on such problemsseem to be totally out of proportion to the real significanceof these problems. To be sure, they enriched and perfectedevery branch and ramification of the law, especially ofthe civil law, by innumerable contributions and acuteobservations. But in one vital and perhaps most importantaspect these jurists were deficient, a deficiency whichis closely related to the general political, social and intel-lectual atmosphere of the time: they were no longertruly creative. Although they perfected, over-perfectedand systematized the private law as they found it and as

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it had become stabilized through the Edictum Perpetuum,they originated little new private law.

(16)

Because of his activities in giving responsa, especiallycautelary responsa, the jurisconsult frequently had to ap-pear "in court" or, to be more exact, in proceedings in lurebefore the praetor or his representative. Here he acted asthe expert legal advisor who either assisted his client informulating his action or defense, or collaborated with thejudicial magistrate in settling the procedural formula. Thisparticular function, aside from being called cavere (cau-telary function) or respondere, in a general way was alsoreferred to as agere - to act in behalf of a client. But thejurisconsult also appeared, though only on rare occasions,before the "trier" or iudex in proceedings in iudicio, wherehe represented his client and argued in his behalf the for-mula which previously he had helped to devise during theproceedings in iure. But this sort of "trial work," at leastbeginning with the last half of the second century B.C.,to an ever larger degree had been monopolized by theforensic orators or advocates.

Since the second century B.C. more and more trials cameto be held before either the centumviral courts (court ofthe One Hundred) or the comitia (popular assembly),where oratorical appeals to emotions, passions and prej-udices always found a willing ear. In such a milieu theundramatic and cryptic jurisconsult found himself at adecisive disadvantage, especially since these mass-juries,as a rule, were not interested in listening to dry legalexpositions, factual discussions and technical arguments.Unable to compete against the forensic orator, unwillingto match the advocate's reckless and unscrupulous ways,and contemptuous of the orator's ignorance of the law, thejurisconsult withdrew almost completely from "trial work."On request, however, he would instruct forensic orators on

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points of law which the latter wished to argue in court.Determined not to debase his exalted profession by indulg-ing in shallow rhetoric, he also refused to court popularityby resorting to rabble-rousing tactics or by espousing anyand every cause just for the sake of financial rewards ornotoriety. By this laudable attitude he contributed muchto the maintenance of a high level of professional accom-plishment, which was seriously threatened by the legalincompetence of the reckless forensic orators. The juris-consult became responsible for the preservation of thegreat esteem in which the legal profession always hadbeen held among the Romans, and he also succeeded inconserving what was truly valuable and lasting in RomanLaw itself.

(17)

The general aversion of the Roman jurisconsults toengage in advocacy or "trial work" persisted throughoutthe early Principate. Particularly after the death of Emper-or Claudius, who definitely had favored the forensicorators, they were more than ever resolved to remainfaithful to their traditional ideals of high professionalaccomplishment and impeccable deportment. By the timeof Hadrian, when they had achieved a kind of semi-official position, the jurisconsults or jurists displayed evenless inclination to compete against the forensic orators,whose methods they thoroughly despised and whose ignor-ance of the law they deeply deplored. But by then this idealhad the official sanction of the state in that some juriscon-sults had become patented jurists, while others had beensummoned to the Imperial Council, the Imperial Chanceryor some other important- Imperial office. The jurisconsult ofthe Principate, in the main, confined his professional con-tacts with litigation and court work to giving technicaladvice or instructions to forensic orators upon their requestor, as Cicero puts it, to providing advocates with "legal

1955]


ammunition." Only on rare occasions would he make anappearance in a trial court, and then only whenever someparticularly involved point of law was raised in civil litiga-tion where mere rhetoric was of no avail. The rivalry andantagonism between the jurisconsult and the forensicorator, which dated back to the days of the Republic,certainly did not abate during the early Principate. It was,in the final analysis, the basic antagonism that is alwayspresent wherever the expert comes into contact with thedilettante.

(18)

The jurisconsult or jurist, as has been shown previously,suffered a number of restrictions imposed by the Imperialregime. Nevertheless, many of the leading jurists and law-yers became either high government officials and, hence,part of the Imperial bureaucracy or administration, or, ifthey did not wish to become involved in politics, writers orteachers of the law. Despite all the problems which hefaced under the Imperial rule, the jurisconsult, even in hisprivate station, still retained and enjoyed his "authority"as regards legal matters. Such authority (auctoritas),based on recognized competence, dies slowly. Considerableweight was still attached to the private responsa of the oldjurists of established repute. A jurist of standing was aman who in the eyes of his contemporaries and posterityhad mastered the law; his responsa remained the authorita-tive findings of a man who knew the law. He was quotedand relied upon, and if a later jurist of renown endorsedthe opinion of an earlier jurist, he merely added the stampof his own authority to old authority. Such a "confirma-tion," which comes very close to a jurisprudence of staredecisis, was not the result of reasoning or logical approvalby analogy: it was confirmation by force of authority.Authority, not logic, took the place of argument. This

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should also explain why the responsa of the earlier Princi-pate, which in this was still strongly under the influence ofRepublican or, perhaps, aristocratic traditions, abstainedfrom citations, argumentation or reasons. It explains alsowhy, in the main, no attempts were made at proselytizing,contentiousness or persuasion; and why there was reallyno such thing as legal witticism, polemics or criticism ofthe views held by other jurists.

(19)

In keeping with their deep-rooted Republican traditionsand aristocratic leanings, the majority of the more promi-nent jurists and lawyers, at least during the early Princi-pate, displayed a definite aversion and even hostility to-ward the Emperors and their intimate associates.' Particu-larly revolting to, any decent lawyer were the confidants ofClaudius - the three freedmen Callistus, Pallas andNarcissus - who were scoundrels of the worst sort. Theearly Emperors, on the other hand, sensed this antagonismand, hence, were not too friendly toward the lawyers andjurists. This mutual dislike and distrust, however, began todisappear with the so-called "Good Emperors."' But priorto the accession of Nerva it is not altogether surprising thatsome of the better lawyers not only had refused to becomepart of the new Imperial administration, but had, in a spiritof defiance, completely withdrawn from all public ap-pearance. Being. on the whole men of independent mindsand means, the more prominent lawyers not only refusedto ask for or accept an Imperial patent in order to "practicelaw," but they often discontinued advising private clients,

6 Such rulers as Caligula (37-41 AD.), Claudius (41-54 AD.), Nero(54-68 AD.),, and Domitian" (81-96 A.D.), were simply despised, whileAugustus Tiberius (14-27 AD.), and Vespasian (69-79 A.D.) were moreor less distrusted.

I Nerva (96-98 AD.), Trajan (98-117 AD.), Hadrian- (117-138 A.D.),Antoninus Pius (138-161 AD.), and Marcus Aurelius (161-180 AD.).

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preferring to teach or write on legal subjects in completeseclusion from the world of politics.

(20)

Even during the latter part of the Republic there hadexisted in Rome a group of lawyers and jurists who, incontrast to the lawyers of old, refrained from seeking oraccepting public office. Thus C. Aquilius Gallus, who waspraetor in 66 B.C., refused to seek the consulship in orderto concentrate all his efforts on the practice of law. AulusCascellius, for the same reason, turned down the consul-ship which Emperor Augustus had offered him; andTrebatius, a personal friend of Augustus, never considereda public career. Perhaps the most outstanding example isA. Ofilius. Although a close friend of the almighty JuliusCaesar and, hence, in line for an important political ap-pointment, Ofilius withstood all offers to launch him ona distinguished political career, preferring to confine him-self exclusively to his law work. This complete withdrawalfrom politics and public life, together with the tendencyto specialize exclusively in the practice, writing or teachingof law, is definitely due to Hellenistic (Epicurean or Stoic)influences upon the Roman legal profession which becamenoticeable during the first century B.C.' It is also an indica-tion that the profession had lost much of its former civic-mindedness.

During the Principate this trend to abandon public lifeand to specialize in the practice of law became even more

8 This phenomenon is but a manifestation of ancient man's changingattitude toward political life whenever he found himself suddenly confrontedby the heavy-footed and oppressive administrative or military machinery ofa new regime. With the advent of the Imperial rule in 'Rome a generalsense of utter helplessness, disgust or apathy toward all political or socialquestions made itself felt in the ranks of the more educated people. Thewise man began to resign himself to a life-in-retirement, resorting to anattitude of complete withdrawal from public life and public affairs. Cf.Chroust, The Philosophy of Law of the Epicureans, part 1, 26 The Thomist82-117, 86 ff. (1953).

(Vol. XXX

IN ANCIENT -MPERIAL ROME

pronounced. Naturally, the very existence of militarytyranny and the constant threat it engendered for any per-son engaged in political activities, promoted this tendency.It is during this period that we find a relatively large num-ber of lawyers or jurists who never held, nor wished to hold,public office, but who simply were teaching law, writing onlegal subjects and, on occasions, advising clients on legalmatters. Perhaps the most outstanding example of thisclass of lawyers during the first century A.D. were Procu-lus and Massurius Sabinus. Probably during the secondcentury A.D. some of the more renowned jurists becamedecidedly academic. Refraining from holding public officeand refusing to practice law in any form, either as jurists,jurisconsults or advocates, these men concentrated ex-clusively on teaching law or writing legal treatises. With-out doubt, the outstanding representative of this groupof lawyers is Gaius, the author of the Institutes.

III. The Social Standing of the Legal PTofession

(1)

Obviously, the renowned and successful lawyers orjurists of the early Imperial period, whose names and repu-tations (some notorious) have come down to us throughthe ages, were only a small fraction of the Roman legalprofession of that era. Some of the jurisconsults, to be sure,continued to assist clients and private parties, irrespectiveof whether or not they held an Imperial patent. They stilladvised them on a great many legal matters, especially onhow to draft wills, deeds or contracts properly. But thisparticular aspect of cautelary jurisprudence or cautelarylegal practice gradually was taken over by a host of lesser"lawyers" and minor legal practitioners, including legalscribes (tabelliones) and "notaries," especially after thepractice of cautelary jurisprudence had been standard-ized and, consequently, greatly simplified by the passing

19551


of the Edictum Perpetuum. In other words, while thejurisconsults and jurists became more and more academi-cians and less and less practitioners, some minor lawyers,favored by this situation as well as the simplification ofRoman Law, took over much of the legal business at hand.

(2)

Among the forensic orators, too, there arose some lessermen and less eminent pleaders who, as a rule, had suddenlycome up from the lower classes. These men, who, in theirdesire to make a financial success, as often as not wereunscrupulous and ruthless persons, frequently had chosenthe legal profession merely as a stepping stone to higherpositions and quick wealth. As shall be shown presently,their often deplorable conduct and doubtful ambitionswere the constant topic of biting satires and bitter denun-ciations. With some legal practitioners the practice oftaking fees, for instance, had degenerated into a systematicand notorious method of extortion, which frequently im-poverished the unsuspecting client and became a univer-sal subject of reproach, tarnishing the reputation of eventhe most learned and most eminent members of the Romanbar whose professional conduct was above suspicion. Theworks of classical writers, poets, essayists and historianscontain a number of sarcastic and denunciatory allusionsto the rapacity, faithlessness and corruption of certain ad-vocates or lawyers. Champerty or prevarication (praevari-catio), although expressly forbidden by the statute of Em-peror Caracalla (211-217 A.D.), was not an unusual oc-currence. Much of the great wealth which some legalpractitioners succeeded in amassing was, of course, ob-tained by conduct which in our day it would be outrightflattery to designate as unprofessional. Violation of thebasic tenets of morality or professional decency, unfortu-nately, was not always frowned upon by some of the lesser

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advocates whose questionable methods were matched onlyby their questionable legal attainments.

There existed also a host of plain "legal advisors" orordinary scribes and "assessors" not only in the City 9fRome itself, but throughout Italy and the many Romanprovinces beyond the seas. Innumerable drafters of simplelegal documents (tabelliones), men who were self-ap-pointed legal advisors and self-styled legal practitioners ofall sorts, similar to the conveyancers and scriveners inEngland during the seventeenth and eighteenth centuries,attempted to earn a modest living by rendering variouslegal services. For, as Petronius remarked, "Habet haecres panem," which may freely be rendered as "You canalways earn a little spending-money by practicing law."Since many of the legal forms and formulae had becomestereotyped, it was believed that the drafting of certainlegal documents could successfully be performed bynearly everyone able to read and write. Particularly,in some of the smaller and more remote provincial towns,schoolmasters and other people possessing a -modicum offormal education seem to have taken up the "practice" oflaw as a sort of sideline in order to replenish their meagerearnings, and, incidentally, to enhance their social standingwithin the community. These petty legal practitioners cor-responded to what the Germans so aptly called a Winkel-advokat, and their incompetence, avarice and dishonestybecame the favored subject of many complaints and muchridicule.

During the Dominate the class of Winkeladvokaten con-tinued to exist, especially in the provinces and in thesmaller towns of the Western Empire. It was fortunate forthe standing of the legal profession that a number of Im-perial statutes prohibited these people from practicing law,although some pettifoggers succeeded in surviving, verymuch to the detriment of the reputation of the legal profes-sion. But, on the whole, the sound and strict regulations of

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the legal profession issued by the Emperors, especially bythe Eastern Emperors, did much to eliminate such types,and those who managed to survive did so only because theyescaped the attention of officials.

(3)

As might be expected, the advocates, especially the pettylegal practitioners, the shysters and quacks, who canalways be found in any profession, came in for much pan-ning by contemporary satirists. Serious authors during thePrincipate, such as Persius, Seneca, Petronius, Tacitus,Pliny the Younger and Quintilian, deplored the frequentlyrevolting methods employed by some infamous lawyers.Satirists like Juvenal and Martial derided those advocateswho would intone and gesticulate about "the FoundingFathers" in a simple action to recover a stolen hen, andwho, in order to attract attention and business through anair of prosperity, would go about in public places richlydressed in hired garments with a large retinue of borrowedslaves. They ridiculed those lawyers who would erectequestrian statues of themselves in order to commemoratetheir forensic victories, even though they often were un-able to pay their grocery bills and had to betake them-selves to Africa or Gaul in order to escape their creditors.The lawyers' wives were said to be fat and ugly be-cause they had derived from their husbands an insatiablegreed for money, and an equally insatiable appetite forfood. Lucian openly and boldly stigmatized advocacy assomething that could not be disassociated from deceit,impudence and rudeness. Forensic oratory was comparedto the yelping of a mad dog, and the mannerisms of ad-vocates when pleading before a jury were generallymocked.

During the Dominate the most severe critic of the legalprofession seems to have been Ammianus Marcellinus, themilitary historian and soldier, who flourished during the

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second half of the fourth century A.D. Maintaining thatduring his time the Roman legal profession had fallen verylow, he denounced especially the ignorance, lack of con-science, meanness and rapacity of lawyers and advocatesboth in the capital and the provinces. Like most soldiers,Ammianus, who seems to have had in mind the host ofpetty practitioners, apparently had a particular distaste forthe legal profession. Generalizing from some isolated in-stances of reprehensible and revolting behavior, he turnedhis wrath upon the whole profession, proving thereby onlythat at all times and in all places the alleged viciousness oflawyers and advocates is, and always has been, an undyingsubject for sweeping criticism and a perpetual topic forfanciful satires. The dismal picture of the Roman legalprofession painted by the prejudiced Ammianus Marcel-linus, without doubt, is greatly exaggerated.

(4)

Despite a number of restraining statutes passed by var-ious Emperors, there were instances of unconscionableconduct on the part of Roman lawyers and advocates; ofsuch conduct some lawyers occasionally have been, andprobably always will be, guilty. But such incidents musthave been the exception rather than the general rule, assome reckless lay authors and satirists would have us be-lieve. For otherwise it would be difficult, if not impossible,to explain the many and signal honors or privileges thatwere bestowed upon Roman lawyers, jurists and advocatesby various Emperors. Thus the Emperors Theodosius II(408-450 A.D.) and Valentinianus III (423-455 A.D.) inthe year 442 referred to the Roman legal profession as the"seedbed of all dignity" (seminarium dignitatis) whichthey declared capable of attaining to the highest honors andpositions that can be bestowed upon a group of mortal men.And the Codex of Justinian reiterated the flattering remarkabout lawyers which Emperor Anastasius (491-518 A.D.)

1,9551


originally had made in the year 506 A.D.: "Praiseworthyand necessary to human life is advocacy, which oughtto be rewarded with princely generosity." It would betedious to recite all the words of praise or the signsof Imperial pleasure which in the course of time wereshowered upon the Roman lawyers by their grateful sover-eigns for having held, as the Emperors Theodosius II andValentinianus III conceded in the Imperial edict of 442, "sogreat, so necessary and so sacred an office" as that of thelawyer or advocate.

Emperor Justinian seemed to summarize these favorablesentiments about the Roman legal profession when he re-called the famous statement made by the Emperors Leo I(457-474 A.D.) and Anthemius (467-472 A.D.) in theyear 469 A.D.:

Lawyers or advocates who properly explain ambigu-ous legal questions which arise in the course of litigationand who, by the excellence of their advocacy, frequently,in both private and public matters, restore the fortunesof those who have been ruined, are no less the bene-factors of mankind than if they had saved their countryand their dear ones by risking their very lives in battleand by sustaining wounds.... Those who are equipped asregular soldiers with swords, shields and cuirasses are notto be considered the only defenders of the Empire:lawyers and advocates, too ... contend as soldiers and,trusting in the glorious gift of advocacy, protect thehopes, the lives and the children of those who are inserious distress.

(5)It may be instructive at this point to say something

about the social origins and the social composition of theRoman legal profession. The earliest Roman "lawyers"were the State-priests or sacerdotes publici, the originalguardians and promoters of the law and the administrationof justice. Socially these early pontiff-lawyers were honor--atiores or nobiles, that is, men of noble (patrician) birth, of

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high standing in their community and complete economicindependence; -they were aristocrats who, in addition totheir sacerdotal rank, had held, or were still holding, someof the most exalted magistracies in the City. Both in warand peace they had served the Republic well and, hence,were held in high esteem by their fellow citizens. In asense they practiced law in that they advised people on allsorts of legal matters. The Roman priesthood, like earlyRoman legal practice, therefore, was considered a kind ofpublic service performed not by "holy men," but by lead-ing and public-spirited men in the early aristocratic Re-public. When toward the end of the third century B.C. thepractice of law gradually was taken over by laymen, the newsecular practitioners still came from the same aristocraticfamilies which had supplied Rome with its pontiff-lawyers.Like the old State-priests, they, too, in a spirit of civic-mindedness, aspired to and assumed the highest officesof State. At the same time they still considered the practiceof law a sort of public service which they owed the generalpublic. During the first century B.C., however, a new classof men entered the legal profession. Coming from lessprominent families they had neither the social background,the political ambition, nor the spirit of public service whichonce had exalted the Roman legal profession. These newmen or homines novi, in order to dedicate themselves com-pletely to the practice of law, which by now had come to bea professional (and lucrative) calling rather than an aristo-cratic public service, often refused to take an active part inthe political affairs of their time. Since frequently they hadno means of their own, they could not afford either toaspire to the non-remunerative offices of State, or topractice law just for the sake of rendering a public serviceto their fellow citizens. As a rule they demanded and re-ceived fees for their efforts in behalf of clients.

The forensic orators, who made their first appearance inRome during the second century B. C., in'the main came

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likewise from humble social origins. As a matter of fact,during the Republican period it was practically impossiblefor a young man aspiring to the practice of law to becomea jurisconsult unless he was the descendant of one of theleading families in Rome. Hence he had to choose thecareer of a forensic orator or advocate, since not only washe economically compelled to follow the more lucrativecalling of an advocate, but the prevailing system of "legaleducation" also made it socially impossible for him to suc-ceed in becoming a jurisconsult. A young aristocrat, whowished to become a jurisconsult, had to attach himself tosome famous and established jurisconsult who happenedalso to be a friend of the young man's family. Like the trueapprentice of old, he entered the household of his newmaster and preceptor. The jurisconsult himself wasusually a member of the Roman nobility and as such hewould refuse to form an intimate association with any-one but his peers. Thus the sons of lesser families simplylacked the social connections necessary to be received asapprentices into the household of an aristocratic juriscon-sult.

(6)

On the whole, the men who made up the Roman legalprofession in the days of the Principate, came from lesser(and poorer) Roman families which had gained some in-fluence either during the civil wars or shortly after thefall of the Republic; they also came from Italian towns and,somewhat later, even from the provinces, that is, fromoriginally poor and unknown Roman families which hadsettled either in Italy or abroad and subsequently hadthere risen to prominence and fortune. The old aristocraticand wealthy families which had supplied Rome with itsbest lawyers, in the main had always been ardent partisansof the Republic. But they had either died out, perished

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during the civil wars, or lost their prominence as well astheir wealth.

Especially after the time of Julius Caesar, that greatrevolutionary in Roman history who had encouraged ableand ambitious persons as much as he had despised conser-vative traditionalists, a new type of men began to invade allaspects of Roman political, social and professional life.These newcomers, who often were as adventurous as theywere capable, had been br6ught to the fore by the revolu-tionary changes which Rome underwent during the lastcentury B.C. This holds true for a great many lawyersand jurists who achieved fame during the Principate'

(7)

All these outstanding lawyers or jurists had no suchadvantages as a distinguished family background, money,tradition or connections behind them; they rose to promi-nence through their personal ability, energy and industryor through the many and distinguished services they hadrendered to the new Imperial system. Iavolenus Priscus,after holding some important urban magistracies and somedistinguished military posts in Dalmatia, Moesia and Numi-dia, became consul in 87 A.D.; then he was made governorof Upper Germany, Syria and Africa, and finally became amember of the Imperial Council around the year 106 or107. Pegasus, the son of a freedman, was consul during thereign of Emperor Vespasian '(69-79 A.D.); he probablyheld some other high offices, and finally he became prae-fectus urbi under Vespasian. Salvius Julianus held a great

9 Massurius Sabinus came from an impoverished Veronese family;lavolenus Priscus from Dalmatia; Salvius Julianus, one of the greatestRoman lawyers, from Hadrumetumi in Africa; Pegasus was probably the sonof a freedman; P. Pactumeius Clemens came from Cirta in Africa; LicinniusRufinus from Thyateira in Lydia; Gaius, as well as Callistratus, frominsignificant towns in the East; Aemiliup Papinianus, perhaps the greatestname in the history of Roman Law, probably came from Syria; and Ulpianfrom Tyre in Phoenicia.

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many important positions, including the consulship in 148A.D. and governorships in Lower Germany, Hither Spainand Africa; he was a member of the Imperial Council underthe Emperors Hadrian, Antoninus Pius (138-161 A.D.)and Marcus Aurelius (161-180 A.D.). Ulpian, whose fullname was Domitius Ulpianus, started as an assessor toPapinianus when the latter was praefectus praetorio.Under Emperor Alexander Severus (222-235 A.D.), Ul-pian became magister libellorum, member of the ImperialCouncil, praefectus annonae (sort of minister of supplies)and, finally, praefectus praetorio.

While it seems that certain members of the Roman legalprofession profited immensely by the new Imperial regime,not a few lawyers and advocates, including some of themost outstanding jurists and jurisconsults, soon felt theheavy hand of the new tyrants. There were even instanceswhere a man was raised to the highest position, only to besoon destroyed by despotic whim. C. Cassius Longinus wasbanished to Sardinia by Emperor Nero (54-68 A.D.) inthe year 65 A.D., because he had retained among theportraits of his ancestors one of the Cassius whohad beeninvolved in the assassination of Julius Caesar in the year44 B.C. Tarrunteius Paternus, who had become praefectuspraetorio under Emperor Marcus Aurelius (161-180 A.D.),was executed in the year 183 A.D. by order of EmperorCommodus (180-193 A.D.) for his alleged participation inthe abortive attempt of Commodus' sister, Lucilla, tomurder the Emperor. The real reason for Paternus' execu-tion, however, seems to have been his refusal to go alongwith some of the insane and wicked actions of Commodus.Aemilius Papinianus was executed in the year 212 A.D. byorder of Emperor Caracalla (211-217 A.D.) because herefused to compose a legal justification of the wantonmurder by Caracalla of his younger brother and co-regentGeta. It was said that Papinianus refused the Emperor'srequest with the remark, "It is not so easy to justify

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murder as it is to commit it." This statement is apocryphal;the real cause of his death was probably Papinianus' un-popularity with the Praetorian guards, whose wishesCaracalla was always ready to humor. Domitius Ulpianand Iulius Paulus were both banished in 222 A.D. byEmperor Elagabalus (218-222 A.D.), but they were. re-called the same year by Emperor Alexander Severus (222-235 A.D.). Although Ulpian became the confidant ofAlexander Severus, the latter could not prevent the Prae-torian guards, infuriated by Ulpian's stern disciplinarymeasures as praefectus praetorio, from cutting him downat the very side of the Emperor, who vainly tried to savehis life.

(8)

During the Dominate, ambitious people of humble originstill thronged into the legal profession in the. hope ofmaking a fortune or of attaining to some high and privi-leged position in the Empire. Freedmen, however, wereprohibited from practicing law by a statute of EmperorAlexander Severus (222-235 A.D.), issued in the year225 A.D."° Soon, as they had done in the earlier daysof the Republic, the scions of the best Roman families, thenew Imperial aristocracy, once more strove for thelaw, attracted by the many opportunities it afforded forcarving out a distinguished and prominent career. Afterhaving retired from the practice of law, a man who haddistinguished himself in his calling would be admitted tothe exalted order of Counts (comites) of the first rank; hewas placed among the vires clarissimi of the Empire, a titlewhich signified high social standing.

10 While a law of the Emperors Honorius (393-423 AlD.) and TheodosiusII (408-450 A.D.) of the year 418 provided that Jews were admissible tothe practice of law, the edict of the Emperors Leo I (457-474 A.D.) andAnthemius (467-472 Al).) in the year 468 stipulated that no one could beadmitted to the bar "unless he had been initiated into the holy mysteriesof the Catholic religion."

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The legal profession, aside from the many privileges thatwere connected with it (such as the remission of certainpublic duties and burdens), was by then distinctly anhonored profession and like a distinguished army career,the most promising calling under a regime which graduallyhad developed into a huge administrative bureaucracy.From top to bottom, this Imperial administration with itsmany departments was legalistically minded to the ex-treme. It was truly a "lawyer's paradise" where nearlyall important positions were held by lawyers, and wherenearly all appointments were made from the ranks oflawyers. No wonder that an ambitious and intelligentyoung man should aspire to the legal profession, the gate-way to the most coveted positions in the whole Empire.Through the law he could achieve professional excellence;he could attain eminence of social position and, especiallyin the Imperial administration, a prominent position, whichwas not only permanent and highly salaried, but carriedwith it a whole string of honorific titles and appellations.

IV. The Forensic Orators or Advocates

(1)

As early as the second century B. C., a new class of legalpractitioners had made its appearance in Rome: the foren-sic orators who were referred to first as oratores and lateras advocati and, during the Imperial period, as causidici,togati or patroni. These advocates or forensic orators,among whom there were persons of a lower type andof inferior character, frequently came from humbler andpoorer families. They certainly did not, and probably couldnot, follow the lofty example of the old jurisconsults who,in a spirit of civic-mindedness, had made it a practice toserve private clients as well as the public free of charge.While the origin of forensic oratory must be sought amongcertain Hellenistic notions which, beginning with the

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second century B.C., had invaded many aspects of Romanlife, the rise of the forensic orator to prominence was to alarge extent connected with the fact that, during the latterpart of the Republican period, popular courts (comitia)and centumviral courts began to play a decisive role in theRoman administration of justice. In a society such as theRoman of the last century B.C., which had come to lovedramatics and verbal combat," the excitable and excitingorator certainly provided better entertainment than thestern and dry Roman jurisconsult who, in keeping withhis aristocratic attitude toward every form of public serv-ice, despised verbosity and oratory of any kind.

Although the majority of the forensic orators seem tohave possessed a modicum of legal knowledge sufficient tounderstand the technical instructions or advice they hadsolicited and obtained from the jurisconsults, few of themknew enough law to qualify as jurisconsults. In theirfierce competition with one another and with -the juris-consults, they often became unscrupulous pettifoggers andspellbinders and, hence, they did much to degrade theRoman legal profession. The ever-increasing need forlegal representation as well as the ever-growing volume oflitigation and the opportunity it afforded for preying onthe ignorant and extorting from the timid, played into thehands of these advocates who, ironically enough, were ableto demand and receive ample remuneration for their serv-ices. This alone became a powerful lure for many in-competent people whose greed exceeded their ability,

3 During the Second Punic War (218-201 B.C.) Hannibal had invadedand ravaged Italy for fifteen years. This prolonged ordeal had far-reachingand, perhaps, decisive effects on the political, social and economic life ofancient Rome. The agrarian middle-class, once the staunchest supporterof the Republic and of the "ways of old," was either wiped out oreconomically ruined. Penniless and desperate, the rural population left thecountryside and moved into the City where it soon sank to the level of apolitically irresponsible, noisy and fickle town proletariat. But it stillexercised its citizen rights in the assembly and the popular courts. Beforethis irresponsible and emotional crowd the forensic orator celebrated hisgreatest forensic triumphs.

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knowledge and character.In their scanty and often corrupt knowledge of the law,

some forensic orators even went so far as to maintain thatthe study of law was absolutely useless and even harmfulto the successful practice of advocacy. It was said by themthat, especially in a trial before the popular courts, masteryof the law in no way was an adequate substitute foreffective oratory, and that the jurisconsults had chosenlaw merely because they could not qualify as advocates.Cicero was probably the most outstanding or, at any rate,the best-known representative of this class of legal practi-tioners during the Republican era. In the last years of theRepublic there were quite a number of forensic orators whoacquired both fame and fortune, such as L. Coelius Anti-pater, L. Licinius Crassus, Q. Lucretius Vispillus, P.Orbius and C. Visellus Varro.

(2)

Confronted with the ruthless competition of the forensicorators or advocates, and having no desire to imitate theirfrequently unscrupulous methods or their excursions intomere verbosity, the jurisconsults gradually withdrew fromadvocacy and, especially, from making an appearance inthe Roman courts. Resolved to remain faithful to the sterntradition of their profession, they refused to court popu-larity or to gain wealth by resorting to the "new ways"introduced by the forensic orators. Nevertheless, despitethis withdrawal from forensic practice, the jurisconsults,even during the heyday of forensic oratory, retained aconsiderable influence on the Roman legal profession and,especially, on the development of Roman Law. By main-taining high moral and technical standards, the juriscon-sults contributed much to the preservation of a certainlevel of accomplishment by the legal profession as a whole.In this they also prevented the profession from falling vic-tim to widespread unpopularity, contempt and antagonism.

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IN ANCIENT. IMPERIAL ROME

(3)

During the early part of the Principate these generalconditions persisted: the forensic orators or advocates,still woefully ignorant of the law and ever contemptuousof the legal proficiency which had become synonymouswith the title of "jurisconsult," practically monopolizedall important trial work, while the jurisconsults concen-trated on giving either responsa-with or without Imperialpatent-to private clients or officials, or technical instruc-tions to the forensic orators. On special request they mighteven go to court to prompt an advocate whenever a par-ticularly involved point of law had arisen or whenever anunexpected legal issue was raised on which the advocatehad received no prior instruction from the jurisconsult.Otherwise, however, the "dualism" of jurisconsult andadvocate was carried on, as was the rivalry and antagonismbetween the two. The forensic orator, at least for sometime to come, disdained systematic study or knowledgeof the law, claiming that this would cramp his style, andthe jurisconsult despised the advocate on account of hisignorance and unbecoming conduct.

(4)

The advocates or forensic orators of the Principate, likethose of the late Republic, came from nearly every stratumof Roman society; by this time even the sons of freedmenand perhaps freedmen themselves, if they enjoyed theEmperor's favor, were admitted to advocacy. Naturally,there were many charlatans who had come up from theslums of Rome or some small Italian or provincial city,mostly through their lack of conscience, through theiravarice and, in some instances, through their brazen cor-ruptness. But then, again, there were also men of greateminence, learning and culture among the advocates ofthe early Principate, such as Seneca, the father of the

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philosopher, Tacitus, who acquired immortal fame as ahistofian, Fronto, and especially Pliny the Younger, thepersonal friend of Emperor Trajan (98-117 A.D.). Thelast might be considered the most outstanding representa-tive of the class of Roman advocates during the Principate.He had a most successful legal practice, and, since he wassought out by many clients, he successfully pleaded someof the most sensational causes of his time. In this hecompares favorably with Cicero, who had been called"the monarch of the Forum" or "the leader of the Romanbar" during the days of the Republic.

Like so many forensic orators or advocates, Pliny never-theless had little understanding and little liking for thefiner points of law. But on the whole the palmy days ofthe old-fashioned forensic oratory were soon to becomea thing of the past. It should be borne in mind, however,that during the early Principate forensic oratory did notdisappear at once. Except in political trials where it mighthave been suicidal to espouse the cause of freedom againstthe new rulers, the advocate to some extent still had anopportunity to exercise his talents.

Perhaps the most sensational trial during the earlyPrincipate, in which the outstanding advocates of theirtimes were engaged, occurred when the province ofAfrica, in proceedings de repetundis, tried to impeachMarius Priscus for various high crimes and misdemeanorswhich he had committed while governor of that province.The inhabitants of Africa, the plaintiff, had retained twoof the most formidable and respected advocates to pleadtheir cause, Pliny the Younger and Tacitus. Marius Priscushad engaged Fronto and Liberalis as his lawyers, two menof great professional repute. The trial was held before theRoman Senate, and the Emperor himself presided. Thanksto the brilliant performances of both Pliny and Tacitus,Marius Priscus was convicted, and in a final display ofadmiration for a piece of advocacy well done, the Roman

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Senate gave Pliny and Tacitus a vote of thanks for theexcellent manner in which these two lawyers had con-ducted the case entrusted to them.

(5)

However, in contrast to the jurisconsults, many forensicorators of the Principate, like those of the late Republic,were not noted for their high standards of character or pro-fessional conduct. Pliny himself, for instance, probably themost renowned advocate of his day, did not consider it im-proper to demand that a prospective client should also re-tain one of Pliny's partners and proteges, a practice whichapparently had been in vogue for some time among ad-vocates. "You ask me," Pliny wrote to his friend Triarius,"to represent you without a fee .... I will represent you,but not without a fee -. . [and] I shall also ask of you afavor and, indeed, shall make it a condition, namely, thatCremutius Ruso shall be retained along with me. For thisis my usual custom, and what I have done frequently inthe past. . . ."As a matter of fact, many forensic oratorsstill prided themselves in their recklessness, avarice, parti-sanship and ignorance of the law. Perhaps the best ex-ample of this type of shyster was a rogue called Suiliuswho during the reign of Emperor Claudius (41-54 A.D.)acquired much notoriety through his vileness and corrupt-ness. Being primarily interested in material emolumentsrather than in rendering conscientious service to the pub-lic, the forensic orators attempted, and finally succeeded,in monopolizing the handling of criminal cases, wherethey often managed to display fully their total lack ofscruples.

Naturally, the jurisconsults and jurists deeply resentedand strongly resisted the doubtful practices employed bythe forensic orators and advocates, particularly those usedby the pettifoggers and spellbinders. This might be gath-

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ered from the following incident, which also throws somelight on the sharp antagonism that existed between thesetwo classes of legal practitioners. The death of EmperorClaudius in the year 54 A.D. was greeted with relief bythe jurisconsults, and was deplored by some forensicorators who apparently had enjoyed a heyday during hiscorrupt reign. When the forensic orators were overheardbewailing this misfortune and the bleak prospects awaitingthem, a spokesman of the jurisconsults, standing near-by,interrupted their lamentations with the biting remark:"Did I not tell you long ago that this circus would notlast forever?"

(6)

As time went on under the later Principate, the forensicorator or advocate gradually became a lawyer, that is, aprofessional man trained in, and thoroughly familiar with,the law. But this is only another way of saying that soonmere rhetoric ceased to be sufficient qualification for thesuccessful practice of the law and, hence, had to be replacedby legal learning. More than that: oratory no longer sufficedas a means of gaining distinction in public affairs, andthe sole alternative to military service was legal com-petence. The "merger" of advocate and jurisconsult pro-duced some of the truly great lawyers of the later Imperialperiod. This merger, as shall be shown presently, was ex-pedited by the fact that the Imperial administrationwas entrusted progressively to trained and efficient law-yers. In addition, beginning with the early Principate, thepopular assemblies-the comitia tributa and the comitiacenturiata-were deprived of their judicial functions.Through this important constitutional reform the forensicorator also lost his favorite audience.

(7)

It was during the Dominate, in the period from Emperor

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IN ANCIENT. IMPERIAL ROME

Diocletian (284-305' A.D.) to the final publication ofJustinian's Corpus luris in 534 A.D., that the whole of theRoman legal profession, including the class of advocates orforensic orators, underwent some far-reaching changes,especially in the Eastern part of the Empire. It could wellbe maintained that during the fourth century- A.D. theadvocates, forensic orators, causidici or patroni becamefull-fledged lawyers in the modern sense of the term. Inthe past, as has been shown, the antagonism betweenjurisconsult and advocate had been acute: the advocateshad practically monopolized all trial work, while thejurists or jurisconsults had become either "academicians"or advisors who instructed magistrates, judicial officersor advocates on technical points of law. Thus, while thejurisconsult, as a rule, shunned as much as possible thenoisomeness of public trials and, hence, would appearin court only on rare occasions, the advocate, at least intothe fourth century A.D., still dominated the courts, es-pecially the criminal courts.

In the main, training and preparation for the practiceof advocacy until the fourth century A.D. was still deter-mined by the old and traditional distinction between theprofessional aims of the jurisconsult and the specific pro-fessional tasks which the advocate or forensic orator hadset for himself. The forensic orator had retained some ofhis contempt for sound legal knowledge and the systematicstudy of the law, claiming that law was a dull and unin-spiring subject which merely spoiled & man's rhetoricaltalents. He still adhered to the Ciceronian views thatoratorical fluency was the first and noblest art in Rome;that legal opinions and decisions are frequently upsetby a clever address given by an eloquent orator or advo-cate, and that belaboring legal technicalities is the sureroad to defeat in any court. Hence anyone intending tobecome an advocate or causidicus above all took lessonsin oratory or, better, in the art of persuasion. In the course

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of this instruction he might at random pick up somesuperficial knowledge of the law, especially if his teacherhad formerly been a forensic orator himself.

(8)

By the fourth century, however, all this changed radi-cally, at least in the Eastern part of the Empire. In theWest, however, the old conditions remained very muchthe same. A young man in the East who aspired to theprofession of advocacy no longer attended schools ofgeneral rhetoric; he betook himself to one of the regularlaw schools for a period of about four or five years. Therehe would submit to a systematic and rigorous training inthe law under the tutelage of regular law professors. Na-turally, the "old guard" rhetoricians and forensic oratorsridiculed these "pernicious innovations" and loudly de-plored the passing of the good old times when a success-ful advocate did not need to, study law-when, in thewords of Cicero, eloquence alone was sufficient to swaythe courts and turn the scales of justice. But their lam-entations went unheeded; time and circumstances de-finitely worked against the old-style orator. The ever-growing Imperial bureaucracy, which to an increasingextent reserved the majority of the higher administra-tive positions to competent and trained men, demandedmore and more qualified lawyers, that is, men who hadstudied law systematically. From then on appointmentsto these positions were usually made from the ranksof lawyers, provided that they had received adequatelegal training. As a matter of fact, before very long atrained lawyer, a man who had attended a regular lawschool, was considered especially qualified for the higher,even the highest, offices of State. Thus it came about thatan ever-increasing number of expert lawyers took overthe Ilbaperial bureaus. A thorough training in the law bythis time was a sure stepping stone to the most exalted and

[Vol. XXX


most influential positions throughout the Empire; it ledto pe manent and high-salaried appointments which car-ried a number of honors, titles and privileges. All thisbecame a strong inducement for ambitious young men toenroll in one of the regular law schools.

An ever-increasing stream of young people, amongthem the scions of the best families, poured into the lawschools in order later to gain promotion, rank, high salariesand great titles. Conversely, the new preponderance oftrained lawyers in the government had disastrous con-sequences for the old-style advocate or orator. The newclass of lawyer-magistrates had little interest in, and per-haps even less inclination to listen to, the long-windedand fuzzy perorations of dilettante rhetoricians ignorantof the law. In other words, mere oratory had ceased tobe sufficient qualification for the practice of law and,hence, had to give way to the systematic study of law andsound legal knowledge. Thus after many centuries ofundeserved prominence, the forensic orator, this doubtfulproduct of Hellenistic ideas who had done much to dis-credit the Roman legal profession, finally was removedfrom the scene, at least in the Eastern part of the Empire.The circus was definitely over. A forensic orator whohad not thoroughly studied law simply was no longeracceptable as an advocate. In this fashion the real lawyerwas born in the Roman Empire. The advocate became astudent of the law, a skilled and trained legal expert.

(9)

In the year 460 A.D., the East-Roman Emperor Leo I(457-474) decreed that any person wishing to be admittedto the practice of advocacy had to pass an examination be-fore a special board. The candidate or applicant also wasrequired to produce a sworn affidavit of his law professorsthat he had an adequate command of the law, acquired byway of a regular and systematic training in a recognized

19W

THE LEGAL PROFESSION[

law school. "We order," the statute reads, "that personsdistinguished for their legal learning, and doctors of thelaw, shall certify under oath that the person wishing tobe admitted [to the practice of law] is learned -in thescience of law." This statute of Emperor Leo I, however,did nothing more than prescribe by law a requirementthat for some time had been required by custom, at leastin the Eastern Empire. It should be remembered, however,that this statute applied only to the Eastern half of theEmpire.

In the West, unfortunately, there existed no such thingas a required systematic study of law prior to the admissionto legal practice. Thus it appears that in the West the legalpractitioner or advocate remained essentially a forensicorator who, as in the days of old, had to call on the juris-consults for legal instructions and advice whenever heargued an inyolved legal issue. A young man wishing tobecome an advocate might attend the law school in Rome(or, perhaps, one of the lesser law schools in the provinces)and thus acquire a proficient knowledge of the law. But hewas not required to do so and, hence, might prefer to go toa school of rhetoric. The enactment of the West-RomanEmperor Valentinianus III (423-455) of the year 442,makes, to be sure, "systematic study" (studia) a pre-requisite for admission to advocacy in the West; but whatValentinianus had in mind here was the study of rhetoricrather than that of law. As late as the year 452 a statuteof Valentinianus III still upheld the old distinction betweenjurisconsult and advocate (causidicus), giving therebyfull recognition to the class of advocates who, at least inthe West, were still predominantly forensic orators ratherthan expert and trained lawyers.

(10)

The East-Roman requirement of sustained and sys-tematic studies of law in preparation for a regular ex-

[Vol. XXX


amination to be passed prior to the admission to the prac-tice of law, gave the Roman legal profession a decidedlymodern aspect. In addition, it marks the beginning of acontrolled legal profession where the control, however, wasnot so much exercised by a guild-like association of pro-fessionals, but rather by the State itself. This control of thebar by the State still exists in modern continental Europe,which, through the intermediary of the ecclesiasticalcourts, has taken over many of the East-Roman ideas aboutthe legal profession. Admission to the bar entitled theRoman lawyer to practice before a particular court, pro-vided that he had met all the requirements demanded of aprofessional man.

The qualifications for admission to the practice of law,however, included more than mere technical proficiencyin the law, something that had already been ascertained bya sort of previous examination. A man's character, fitness,and morals and religious affiliations likewise came underclose scrutiny. Thus in the year 442 the Emperors Theo-dosius II (408-450) and Valentinianus III (423-455)decreed that prior to the admission of any person to thelegal profession the candidate should be subjected to athorough examination of "his [preparatory] studies, hischaracter, his status of birth and his having performed thecompulsory public services." The statute of the Em-perors Honorius (393-423 A.D.) and Theodosius II (408-450 A.D.) of the year 418 A.D., which excluded Jews fromthe Imperial civil service, declared that the latter wereadmissible to the bar, while the statute of the EmperorsLeo I (457-474 A.D.) and Anthemius (467-472 A.D.) ofthe year 468 A.D., stipulated that only Christians were tobecome lawyers and advocates.

(11)

As early as the last decades of the third century A.D.,apparently, a certain maximum number (numerus

19551


clausus) of advocates or lawyers was fixed by statute foreach higher (praetorian) court in the leading citiesthroughout the Empire. In the year 319, Emperor Con-stantine I (312-337 A.D.) abolished this restriction andgranted "to each and every [qualified] advocate the rightto strive for the glory of his profession according to thepower of his own genius in whatever courtroom he wish-es." But in order to prevent any lawyer or advocate fromhandling too many cases at once and, hence, neglectingindividual clients, Constantine also stipulated that noadvocate could plead before, or be admitted to, more thanone praetorian court. For the same reason the EmperorsArcadius (383-408 A.D.) and Honorius (393-423 A.D.)decreed in 396 A.D. that no advocate should be permittedto plead in a praetorian court and, at the same time, in aminor or provincial court.

In the year 439 A.D., the Emperors Theodosius II (408-450 A.D.) and Valentinianus III (423-455 A.D.) felt, how-ever, that the legal profession in the capital had becomeseriously overcrowded. They indicated that there wasground for serious alarm over the greed and corruption ofcertain lawyers, brought on by the overcrowded conditionsin the profession, and that on account of the special privi-leges granted to advocates and lawyers the maximum num-ber of advocates admitted to practice before the praetoriancourts had been greatly exceeded. Hence it was decreedthat the excess number should be deprived of all theprivileges usually granted to lawyers in good standing,unless they should enter government service and becomeadvocati fisci. It was decided that for the time being nonew lawyers should be admitted to practice before thepraetorian courts, and that lawyers thus compelled to waitfor admission to practice before the higher courts should bepermitted to appear before the minor courts or be en-couraged to go into the provinces where there existed adearth of competent lawyers. It was further decreed that

(Vol. XXX


lawyers who under this statute had settled in one of theprovinces should enjoy the same privileges and immunitiesas the advocates who were admitted to the praetoriancourts in the major cities. To sum up the matter, thestatute of 439 A.D. re-established the policy of restrictingthe number of advocates admitted to practice before thehigher courts.

(12)

The number of "praetorian advocates," that is, advocatesadmitted to practice before a praetorian court, was set atone hundred and fifty. The policy of compelling advocatesto retire after twenty years of practice before the praetoriancourts, which dates back to the fourth century A.D., wasalso prompted by the serious overcrowding of the legalprofession, especially in the capital. In the year 439 A.D.this provision, however, was abolished by the EmperorsTheodosius II and Valentinianus III, only to be revivedagain in the year 454 A.D. In the year 450 A.D. a furtherstatute had provided that the maximum number of regularadvocates (statuti) should not be raised above one hundredand fifty by recognizing "extra-ordinary lawyers" (super-numerarii). But at all times a limited number of suchsupernumerarii were to be recognized in excess of the max-imum number of one hundred and fifty statuti. More spe-cifically, the statute of 469 A.D., issued by the EmperorsLeo I (457-474 A.D.) and Anthemius (467-472 A.D.), laiddown that there should be no more than fifty advocates(statuti) in Alexandria, while the statute of Emperor LeoI in 472 or 474 A.D. provided that only sixty-four regularadvocates were to be admitted to practice before the prae-torian court in Constantinople, the capital city of the East.The number of statuti who were permitted to appear beforethe praefectus praetorio in Constantinople was later in-creased to one hundred and fifty, while the number ofregular advocates admitted to practice before the praefec-

19551

THE LEGAL -PROFESSION

tus urbi was set at eighty in the year 524 A.D. by the stat-ute of Emperor Justinus (518-527 A.D.) In the year 486A.D., the statute of Emperor Zeno (474-491 A.D.) pro-vided that one hundred and fifty advocates were to be ad-mitted to plead before the prefecture of Illyria, and, accord-ing to the statute of Emperor Anastasius (491-518 A.D.) ofthe year 508 A.D., thirty advocates were to be admitted topractice before the prefecture of Syria.

Besides the regular praetorian advocates, who wereconfined to practice before a particular praetorian court,there were always the so-called supernumerarii, that is,those advocates who exceeded the maximum number oflawyers admissible to any higher court. These extraordi-nary lawyers or "excess advocates," who could practice inthe minor courts, were not attached to any particularpraetorian court. According to the principle of senioritythey supplied such vacancies as might occur among thestatuti. The statute of Emperor Anastasius (491-518 A.D.)in the year 505 A.D. provided, however, that in thepromotion from supernumerarius to statutus the sons ofadvocates should be given preference.

(13)

Upon admission to the practice of law in one of thehigher or praetorian courts, the name of the advocate wasentered in the official register as a matter of record.Lawyers thus admitted to the same court formed a sort of"bar association," called schola (school) and, hence, wereoften referred to as scholastici. These "schools" or "collegesof advocates" (collegium togatorum), supervised, amongother things, the professional conduct of their members.They were presided over by a primas, a sort of "presidentof the local bar association," who also held the paid officeof an advocatus fisci or "attorney for the crown." Afterhaving served as president for a period of two years, aprimas was retired from office as well as from the general

[Vol. XXX


practice of law. This would indicate that the primasusually was the "senior member" of the local bar. Eachschola had certain corporate rights, and every member en-joyed a number of privileges and exemptions from certainpublic duties which were secured by law. These "im-munities" alone were always a great inducement forambitious young men to aspire to the legal profession.Strict professional discipline was provided for every"member of the bar," and the disciplinary supervision wasexercised by the court to which he was admitted. Hence anadvocate also had the duty of residence, as may be gatheredfrom the statute of Emperor Justinus (518-527 A.D.) ofthe year 524 A.D.

The professional discipline to which every lawyer oradvocate was subjected may be summarized as follows:An advocate must render professional and competent serv-ice whenever requested, irrespective of the person or per-sons who make this request and without regard for thepopularity or unpopularity of the case; he must diligentlyand faithfully assist, defend and advise his client, alwaysacting with the utmost fidelity; he must not betray thesecrets or the confidence of his client, and he must nothave. any dealings with the adversary; he must not bejudge and advocate in one and the same case; he wouldbe held liable for damages caused to his client by hisnegligence or willfulness; his pleadings must not containimproper or irrelevant matter, but he must confine himselfto the merits of the case at bar and the testimony sub-mitted; he must not use invectives or abusive languageagainst the court, the opposing lawyer or the adversary;he must not undertake an obviously unjust cause, andshould he later discover the injustice of his case, he must"throw up" his brief after having informed his client ofhis intention; he must not be used as an instrument ofmalice, chicanery or some other unlawful motive; he mustnot abuse legal process solely for his own gain; he must not

19551


instigate unnecessary litigation; he must not unnecessarilydelay the trial of a case entrusted to him; he must notdemand or accept an excessive fee; and he must be aperson of good character and adequate professional com-petence. "Therefore, let everyone whom We permit topractice this profession and who wishes to be an advocate,"the Emperors Valentinianus I (364-375 A.D.) and Valens(364-378 A.D.) proclaimed in the year 368 A.D., "knowthat while he does so, he can only pursue his calling andno other."

(14)

In order to prevent all sorts of abuse, the Emperors Gra-tian (367-383 A.D.), Valentinianus II (375-392 A.D.), andTheodosius 1 (378-395 A.D.) decreed in the year 382 thatat the opening of a trial every lawyer or advocate had toproduce his "power of attorney." It also appears that anumber of statutes were enacted, for instance, in 322 A.D.and 393 A.D., prohibiting women from practicing law inthe courts. It was held that women should not meddle inmatters that were contrary to the modesty befitting theirsex. An exception was made, however, in favor of thosewomen, usually the daughters of lawyers, whose fatherswere prevented from conducting their own cases onaccount of sickness or infirmity, and who could not securethe services of a competent lawyer. In the year 368 A.D.the Emperors Valentinianus I (364-375 A.D.) and Valens(364-378 A.D.) commanded that no one "may act as ad-vocate and judge in one and the same case, since a distinc-tion must exist between those who decide cases and thosewho argue them."

An Imperial ordinance of the year 370 A.D., issued bythe Emperors Valentinianus I (364-375 A.D.) and Valens(364-378 A.D.), also provided that care should be takento prevent undue preponderance of legal counsel on eitherside of the litigation. The presiding magistrate was charged

[Vol. XXX


with seeing to it that a fair distribution of the availablelegal talent was observed, and that the leading membersof the bar were not all engaged by one and the sameparty, leaving the opposing party without adequate legalassistance. This was especially important in smaller townswhere only a few lawyers or advocates of standing wereavailable. If, therefore, a party had retained so manylawyers that the adverse party found itself unable to securethe services of a capable counsel, this was to be taken asa proof that the case of the first party was a bad one. Thefirst party was to be officially reprimanded and, if possible,punished by the court, and redistribution of counsel wasto be ordered by the court. Litigants who found themselvesunable to secure legal counsel or who, for good cause, couldnot make a personal appearance in a higher court, hadcounsel assigned to them by order of the court. Any lawyeror advocate who, without good cause, refused to under-take a case on these grounds could be disbarred forever.If a client could prove that his lawyer had betrayed hisconfidence, according to the statute of Emperor Caracalla(211-217 A.D.) of the year 214, the lawyer was severelypunished and the case could be retried. But despite allregulations and restrictions imposed on the legal profes-sion, there were instances of unconscionable conduct.

V. The Remuneration of Lawyers

(1)

The remuneration of Roman lawyers and advocates hasa rather interesting and instructive history. From earliesttimes it had been the custom in Rome to look upon theservices rendered by a lawyer, jurisconsult or advocateas something that ought to be performed in a spirit of civic-mindedness and, hence, given gratuitously. The idea ofgratuitous service was closely related to the social, politicaland economic circumstances under which the legal pro-

19551


fession made its first appearance in early RepublicanRome. It was simply the chivalrous help which was afford-ed by the powerful and influential patrician patron to hismany dependents or "clients" - the intercession of thestrong in behalf of a friend, neighbor or suppliant and,therefore, primarily a spontaneous manifestation of thespirit of neighborliness.' In such a situation the demandfor remuneration was simply unthinkable. Any rewardwhich a "client" might bestow upon his patron or "protec-tor" was purely honorary, that is, an honorarium, given indischarge not of a legal obligation, but of a debt of grati-tude.

(2)

This idyllic situation, however, could not last forever.With Rome's gradual expansion from a pastoral commu-nity to a complex city-state and, finally, to a world-empire,legal business expanded correspondingly and, at the sametime, came to be more technical and involved. Hence moreprofessional effort, study and technical knowledge becamenecessary for a man to qualify as a successful lawyer. This,in turn, required that a man no longer merely dabble in thelaw and consider it as a sort of humanitarian and amateur-ish sideline. The men who decided to apply themselves tothe ever more difficult task of practicing law soon did so inorder to earn a livelihood. Furthermore, the client wasno longer a man dependent on his patron for protectionand, hence, morally entitled to all sorts of assistance;he was a person who on his own sought out a lawyer andengaged his skill and experience.

12 This point is well illustrated by the following anecdote about EmperorAugustus: One of his veteran soldiers, who fought under him in thebattle of Actium (31 B.C.), asked the Emperor to assist him in somelitigation by personally appearing with him in court. When Augustus order-ed an aide-de-camp to substitute for him, the old soldier exclaimed: "AtActium, I had no substitute, but fought for you in person." The Emperorblushed and went along.

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In this manner the practice of remunerating the lawyerseems to have originated in Rome. Also, in the course ofthe second century B.C., the Roman legal profession hadceased to be a purely aristocratic profession, recruitedfrom the wealthiest and most socially prominent families,which could afford to engage in "social work" without pay.The sons of lesser and poorer families, who could notpossibly offer their services without some compensation,began to enter upon a legal career, often as forensic orators.or advocates. These new "upstarts," as has already beenshown, did not share the idealistic views of the old Romanaristocrat who scorned any money-making calling; theycharged and accepted fees for their efforts in behalf of aclient. And, finally, the old aristocratic Roman patricianprimarily had been interested in serving the general publicin order to gain popularity and prestige, the sure road to anexalted public office in early Republican Rome. Thus Livy,the historian and advocate, could proclaim that the scientiaiuris "ad summos honores ... provexit." As a matter offact, during the Republican era, the practice of law or, tobe more exact, the giving of responsa by the jurisconsult,was considered the most honorable occupation for any man.There was no more successful mode of securing a highposition in the commonwealth than either a distinguishedmilitary career or an outstanding performance as a lawyerand advocate.' 3 But with the gradual decline and corrup-tion of the Republican form of government during thefirst .and second centuries before Christ, and, especially,with the advent of military despotism and the Imperialregime, these noble incentives for gratuitous public servicehad all but vanished. The very moment promotion topublic office no longer depended on popular election, but

13 Tradition has it that C. Marcius Figulus, who flourished about themiddle of the second century B.C., decided'to discontinue practicing lawbecause the people had failed to elect him to the consulship. "When theywant free legal advice," he remarked in his disappointment, "they come tome, but when they want a consul they go to someone else."

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on favoritism and the whim of some strong man, thereremained little room for an honorable public career of theold style.

(3)

Although it must be assumed that around the year 200B.C. fee-taking had become a fairly common practice, theold idea of gratuitous legal service must still have beenstrong among the socially influential Romans. It is alsopossible that some notorious scandals had occurred. Inany event, in the year 204 B.C. a statute was enactedwhich, among other things, prohibited anyone from ac-cepting money or other gifts for having pleaded or handleda case for a client. The author of the statute was the tribuneManlius Cincius Alimentus, after whom it was namedlex Cincia de donis et muneribus, or simply, lex Cincia. Thespecific provision which refers to legal fees is recorded byTacitus, and reads as follows: "ne quis ob causam orandampecuniman donumve accipiat." (No one may accept moneyor take a present for having pleaded a cause.)

(4)

It is fairly safe to assume that the lex Cincia, which,incidentally, could not be enforced effectively, was oftenviolated, the more so since the Roman legal profession,especially with the advent of the forensic orator or ad-vocate and his less idealistic attitude toward his calling,came to be pursued more and more for the sake of itsfinancial emoluments. Various expedients were adoptedby unscrupulous legal practitioners to evade the lex Cincia.One of them was the negotiation of fictitious loans, a prac-tice vehemently condemned by later Imperial statutes.Cicero, whom Sallust calls mercenary, corrupt and insati-ably greedy, once received, under the pretext of securing aloan, a fee of one million sestertii, which he invested in ahouse. Another method of circumventing the lex Cincia

[Vol. xxx


was to persuade a client to leave his lawyer a large legacy.Cicero, for instance, boasted publicly that he had received,in such fraudulent legacies alone, more than twenty millionsestertii. Such distinguished lawyers as Hortensius andCrassus are known to have countenanced all sorts of ficti-tious transactions in order to secure high fees. The opulenceof Crassus, who never failed to extort the last coin from hisclients, was fabulous. On his death he left an estate of threehundred and eighty million sestertii, most of which he hadaccumulated through the practice of law. Maicellus Epriusand Vibius Crispus, two lawyers of questionable legal at-tainments, amassed a fortune of over three hundred millionsestertii.

(5)

Since these abuses persisted, Emperor Augustus (27B.C.-14 A.D.) reiterated the lex Cincia, adding the amend-ment that any advocate who charged or accepted feesshould be penalized by fourfold forfeiture. But temptationwas too great to be resisted, and Augustus' re-enactmentlikewise became a dead letter. During the reign of EmperorClaudius (41-54 A.D.) the issue of whether a lawyer or ad-vocate could accept remuneration was raised once more. Aseries of outrages had occurred, most of them connectedwith a scoundrel called Suilius. This person, by his vilenessand greed, which apparently eclipsed anything that hadhappened in the past, had attracted wide-spread publicattention and displeasure. In reality, Suilius was nothingmore than a ruthless extortionist who had caused the ruinof many a decent Roman citizen. When finally called bythe Emperor to account for his infamous conduct, Suilius,unabashed, argued that the lex Cincia was obsolete, andcould no longer be enforced. He asserted brazenly thata lawyer had as much right to all the compensation hecould possibly get as a soldier had to booty and loot. Underpublic pressure the Roman Senate, at last, decided officially

19551


to look into the matter of fee-taking and, in the presenceof Emperor Claudius, debated at great length whether theold lex Cincia and the amendment of Emperor Augustusshould be fully enforced. Suilius himself, hypocrite androgue that he was, suddenly came out strongly in favor ofupholding and enforcing the tex Cincia. With great elo-quence he pointed out that the lawyers and advocates of oldhad worked solely for honor and fame, and had beenmotivated only by the spirit of public service and devotionto the commonweal. He also maintained that if the takingof fees were prohibited there would be less inducement tostart law suits, insinuating by this remark that lawyersfrequently stirred up litigation solely in order to charge afee.

As might be expected, the proposal of Suilius was strong-ly opposed by a number of legal practitioners. It wasargued that the new Imperial system, with its manyadministrative offices, stood in need of a strong legal pro-fession from which it could draw competent public officersand administrators. It was also pointed out that the eco-nomic conditions which once had favored the giving oflegal assistance free of charge no longer existed. The oldpatrician families, which on account of their independentwealth had been able to follow the legal calling withoutfinancial compensation, had all but died out. Hence, inorder to induce capable though poor men to choose a legalcareer, it had to be made attractive, that is, remunerative.But how can one expect a learned profession, which re-quires so much effort, to be attractive and to flourish, howcan it produce competent members, if it has no tangibleinducements? In conclusion it was submitted that everywork well done and every service well performed wasworth its pay. The aristocrats of old, to be sure, werewealthy people and, hence, could well afford to be gen-erous. But now only a few people were able to followa calling which required so much effort, such great ex-

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pense and such long study, without reaping at least somepecuniary reward. To deny a man the right to ask for afair remuneration for his services would be tantamount toexcluding the less wealthy people from becoming lawyersor advocates.

Emperor Claudius was finally persuaded by these latterarguments. He resolved that lawyers and advocates shouldbe permitted to charge a fee or, to be more exact, a gift-feeor honorarium. But he fixed the maximum fee at tenthousand sestertii or one hundred aurei (pieces of gold).Any excess charge was to be prosecuted under the newClaudian law. This limitation upon the fees that might belegally taken continued to be enforced until the very end ofthe Roman Empire, although many instances of its viola-tion have been recorded. Within the prescribed maximumof ten thousand sestertii the court was empowered to de-termine what constituted a fair and reasonable fee in eachcase, taking into account the nature of the case, the abilityof the lawyer or advocate, and the custom of the particularcourt or jurisdiction where the case was tried. This rulewas also incorporated into Justinian's Digest.

(6)

Quintilian (c. 35-100 A.D.) seems to reiterate the argu-ments made before Emperor Claudius in favor of remuner-ating lawyers and advocates for their professional services.He, too, raises the question of whether a lawyer shouldundertake a lawsuit gratuitously. He denies that the onlyhonorable course of action is to work without pecuniaryreward, contending that a man possessing professionalcompetence could accept remuneration without prejudiceto his name or his profession, especially if the state of hiseconomic affairs compels him to do so. The charging of fees,therefore, is not only proper, but necessary, since throughhis exertions and the great amount of time he devotes tothe problems of other people the lawyer or advocate is

1955)


prevented from gaining a livelihood by any other means.As a matter of fact, Quintilian contends, there is no fairerand more proper way of making money than through thepractice of law, that is, through rendering invaluable serv-ices to people in distress. But moderation should always bepracticed: crude bargaining for a fee or taking advan-tage of the predicament of a client in order to exact a largesum of money from him is as reprehensible as it is dis-honest. The honorable man will never essay to collect moreof a fee than is obviously fair, and, whatever he receives,he accepts it not as a simple debt due to him but as a formof honorific acknowledgment well earned.

(7)

During the reign of Emperor Nero (54-68 A.D.) the oldlex Cincia for a while was reaffirmed in its original rigor:advocates and lawyers again were prohibited from takingany fees whatsoever. This renewed restriction was prob-ably due to the many scandals which occurred during thelater reign of Emperor Claudius. But soon thereafter Neroagain relaxed this rule, and the Claudian law, which per-mitted the charging of fees up to the maximum amount often thousand sestertii, was reintroduced. He provided,however, that within this limit a lawyer may not chargehis client more than a definite and equitable fee. Despiteall these efforts to regulate the remuneration of lawyersand advocates, abuses seem to have persisted. This is anindication of the low level of professional morality to whichsome legal practitioners of the early Principate had sunk.Many were the complaints by outraged clients that certainadvocates, after having received in advance an excessivefee considerably larger than permitted under the Claudianlaw, simply abandoned the case, and betrayed the confi-dence of their clients to the opposing side for a bribe or, be-ing in the pay of the adversary, purposely lost the suit. Itbecame a popular saying in Rome during the reign of

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Claudius and his successors that there was no merchandisemore easily bought and sold than the perfidy of an advocateor lawyer. Thus the infamous Suilius once took the enor-mous sum of four hundred thousand sestertii as an advanceretainer fee, only to betray his client's confidence to theadverse party. The client, completely ruined, committedsuicide. Another roguish advocate, Nominatus, acceptedan excessive advance fee, and later simply refused to goon with the case.

Such scandalous incidents, which apparently became afairly common occurrence, finally compelled EmperorTrajan (98-117 A.D.) to have a statute enacted by theRoman Senate making it mandatory for all parties to anaction to take an oath prior to the commencing of the trialthat they had neither paid nor promised in advance adefinite sum of money to their lawyers, and that after theconclusion of the trial they would not pay the lawyer a feein excess of the maximum amount stipulated in theClaudian law. The statute of Trajan apparently was neverrepealed. But, although efforts were made to enforce thislaw, like that of Emperor Claudius, it was more honored inthe breach than in the observance. This may be gathered,among other things, from a statute of Emperor AlexanderSeverus (222-235 A.D.) which stipulated that if a lawyerdied before the case came to trial, the fee paid to him inadvance could not be recovered from his heirs. Also, theCorpus Iuris of Justinian contains a number of provisions,dating back to the third century A.D., which clearly indi-cate not only that fees were regularly paid in advance,but also that lawyers and advocates, after having acceptedan advance retainer fee, failed to go on with the case.Thus, in the year 241 A.D., Emperor Gordian II (238-244A.D.) passed a law enjoining lawyers and advocates notonly to repay all advance retainer fees, but also to restoresecurity furnished by the client, if "no legal business hadbeen transacted during the term of two years."

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(8)

In order to curb the rapaciousness of some lawyers,Emperor Diocletian (284-305 A.D.), in his Edictum depretiis, fixed legal fees by statute. It provided for a maxi-mum fee charge of two hundred fifty denarii for a postu-latio, and one thousand denarii for a cognitio.'4 But thisstatute, too, was frequently ignored. In the year 325, Em-peror Constantine I (312-337 A.D.) denounced the "crim-inal perversity" of certain lawyers or advocates who"preferred enormous and illicit profits to their own reputa-tion, demanding as emoluments ... a certain portion of thecause which they have undertaken to represent ..Such men were to be disbarred. Probably in 326 the sameEmperor decreed disbarment for all lawyers who"demanded that prior to the trial their clients sign overto them the best part of their property." In the year 344,Emperor Constantius II (337-361 A.D.) ordered that thecourts should protect clients against the exorbitant de-mands for fees made by greedy advocates and lawyers, andin 368 the Emperors Valentinianus (364-375 A.D.) andValens (364-378 A.D.) decreed that advocates and lawyersmay not "obtain dishonorable profits and unreasonablefees.... Where, however, they are influenced by the loveof gain and money, they shall be considered disreputableand degenerated, and be classed as the meanest of man-kind." Throughout the fourth and fifth centuries, constant,though apparently futile, efforts were made to regulate bystatute the vexatious fee problem, and to curb excesseseffectively. The maximum fee of ten thousand sestertiior one hundred aurei, established by Emperor Claudiusaround the middle of the first century A.D., remained law,although it was neither always enforced nor alwaysobserved.

14 The average daily wage of an agricultural laborer in the days ofDiocletian was twenty five denarii.

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VI. The Imperial Bureaucracy and the Roman Lawyer

(1)

In the early Principate, that is, the period extendingfrom Emperor Augustus (27 B.C. - 14 A.D.) to EmperorHadrian (117-138 A.D.), a few of the more prominentjurisconsults, jurists or lawyers, as they had done duringthe days of the Republic, still divided their professionalactivities between the practice of law and the holding ofsome public office. Although their number was ever-de-creasing, these public-spirited men aspired to, and actuallyobtained, high political offices after successfully havingpracticed law. 5 Thus C. Cassius Longinus, a prominentlawyer-jurist and an outstanding member of the juristicSchool of Sabinus, (it would perhaps be more correct tocall this School schola Cassiana after C. Cassius Longinushimself), was consul suffectus in the year 30 A.D., pro-consul and governor of Asia in the years 40-41, andImperial Legate of Syria in the years 45-49. CaeliusSabinus, also a distinguished member of the same juristicSchool, was consul suffectus during the turbulent year of69 A.D., while Cocceius Nerva, a friend of EmperorTiberius (14-37 A.D.) and an outstanding member of theProculian School of Jurisprudence, which in fame orimportance rivalled that of the Sabinian School of Juris-prudence, was consul suffectus in the year 24 A.D. Inci-

35 In order to understand this particular situation during the earlyPrincipate, one must keep in mind that inthe "constitutional settlements"of 27 and 23 B.C., Augustus had established the so-called Dyarchy, thatis, a sort of governmental dualism which established two spheres of politicalpower, namely, the Imperial and the Senatorial administration. The Sen-atorial administration retained the old Republican magistracies (such as theconsulship, praetorship, aedileship, tribuneship and quaestorsip), althoughthe latter were somewhat restricted in their powers and competence, whichwere taken over .by the Imperial administration. In addition, the Emperorfrequently "appointed" or, at least, "suggested" candidates for the Senatorialoffices. - It would be more correct to say that these" jurists obtained someof the exalted Republican or Senatorial offices which, due to this strangegovernmental dualism under the early Emperors, survived the downfall ofthe Republic.

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dentally, Cocceius Nerva was also the grandfather ofEmperor Nerva (96-98 A.D.).

The early Principate witnessed an ever-increasing trendtoward bureaucracy as well as a greater governmentalcentralization and monopolization of all politically signifi-cant activities throughout the Empire. Obviously, thistendency started with Augustus, the founder of the Im-perial system, although his preservation of some Republi-can institutions and traditions somewhat obscured andslowed up this trend. It could even be maintained that itgoes back to Julius Caesar's administrative reforms, whichhe tried to put through between 49 and 44 B.C. Caesar hadcopied ideas inherent in the Hellenistic-Oriental conceptionof kingship and had striven for a strong centralization andmonopolization of all governmental activities, including thedevelopment and administration of law and justice. (Hehad even planned to codify all of Roman Law, somethingwhich was not really achieved until Emperor Justinian in534 A.D.) Emperor Vespasian (69-79 A.D.), who was bothan excellent administrator and somewhat of an autocrat,initiated a distinct policy of inducing jurists and lawyers toenter the administration on a professional and permanentbasis. For distinguished service in both Imperial and Sen-atorial offices these men often received ample salaries andpromotion to the rank of Senator or Imperial Councilor.This development, which becomes especially noticeableduring the reign of the great reformer Hadrian (117-138A.D.), undoubtedly affected the whole of the Roman legalprofession as well as the future development of RomanLaw.

(2)

Emperor Hadrian, who probably came nearest to JuliusCaesar in the versatility of his talents as well as in his po-litical ideas, made it a deliberate policy to include the lead-ing jurists and lawyers of his time in the Imperial adminis-

[Vol. xxx


tration and, especially, in the Imperial Council, which hehad completely reorganized and raised to the level of aregular or constitutional organ of the Imperial acministra-tion. Since the time of Hadrian this Council contained reg-ular and permanent members who were appointed by theEmperor himself and received regular salaries. Theyformed an advisory body which frequently deliberated anddecided on all major matters of policy. In addition, Had-rian, in his appointments to higher Imperial offices, dis-played a definite preference for men who had some knowl-edge of the law. This would also explain why since thetime of Hadrian the most renowned lawyers and jurists ofthe Empire were to be found in the Imperial Council,where they played a leading role, or in the Imperial Chan-cery or in the key offices of the Imperial administration.But Hadrian did not yet make the systematic study of lawa statutory requirement for promotion to a higher admin-istrative or judicial position.

(3)

The great Imperial bureaucracy of the Dominate, that is,of the period from Emperor Diocletian (284-305 A.D.)to the final publication of Justinian's Corpus luris Civilis inthe year 534 A.D., had its actual beginning with EmperorAugustus if not with Julius Caesar. It had gradually andprogressively expanded during the second and third cen-turies, especially under the impetus given to it by EmperorHadrian and, later, by the Severi, 6 until it found its per-fection" in the Dominate, when the "bureaucratic jurists"became the most outstanding group of lawyers and, inci-dentally, the most influential jurists of the Empire. Likethe bureaucratic system itself, these bureaucratic jurists,to be sure, had existed since the beginning of the Principate

16 Septimius Severus, 193-211; Carcalla, 211-217; Geta, 211-212; Macrinus,217-218; Diadumenianus, 218; Elagabalus 218-222; and Alexander Severus,222-235.

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and had been especially prominent since the reign of Em-peror Hadrian (117-138 A.D.). But during the Dominatetheir number as well as their influence increased vastly.Now they occupied the majority of the key offices inthe huge Imperial administration, where they controlledmany judicial and administrative positions. From that timeon it became something of a general practice to appointnearly all the higher magistrates from the ranks of thelegal profession, especially from the class of the moreprominent lawyers, advocates and jurists.

As time went on, the number of officials who had receiveda systematic training in the law and who possessed acompetent knowledge of the law waxed. This alone wasan incentive for ambitious young men to study law,although during the earlier days of the Dominate system-atic training in the law or a competent knowledge of thelaw was not yet a statutory requirement for an importantgovernmental appointment. Even though the higher offi-cials of State, especially those who had to perform judicialduties, were now chosen, as a rule, from the ranks of thelegal profession, this did not mean that all the members ofthe profession had received a regular training in the law.Many advocates and legal practitioners, especially inthe western part of the Empire, still followed the oldtradition, which had been established by the forensicorators of the Republican era, of attending schools ofrhetoric. Only in the year 460 A.D., the East-RomanEmperor Leo I (457-474 A.D.) had made the systematicstudy of law in one of the official law schools a statutoryrequirement for every advocate or lawyer and, hence, atleast indirectly, a prerequisite for the admission to higheradministrative, executive or judicial offices. This importantImperial-edict, which unfortunately did not apply to thewestern part of the Empire, made statutory what for along time had been common practice.

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(4)

During the Principate and even more so under theDominate the lay iudex or "trier" of the Republican periodgradually disappeared. His place was taken over by Stateofficers, men who held a permanent, official and salariedappointment to this position. This did not mean, however,that the new official "judges'" were professionally trainedjurists: they still were laymen, and they still neededexpert advice by the jurists. In this sense, the old Re-publican tradition seems to have persisted throughout thePrincipate into the Dominate, with the difference that theonce aristocratic and independent jurisconsult of the Re-publican era now became a permanent official advisor whofrequently had risen to his position from social obscurityand poverty through his own efforts and ability. In otherwords, technical assistance, such as the jurisconsult hadonce provided for the Republican iudex, was still neededby the Imperial judicial officer, but by now this assistancewas supplied by a regular staff of salaried legal expertscalled adsessores, consiliarii or comites.

"Assessors" could already be found during the Princi-pate, but during the Dominate their number became con-siderably larger and their functions became vastly moresignificant. Originally, like the jurisconsult of old, theadsessor was simply an advisory (and often a voluntary)member of the magistrate's staff or consilium. Since thereign of Emperor Hadrian (117-138 A.D.), he graduallyacquired an independent competence which extended be-yond the mere giving of advice. Like so many otherImperial officials, the adsessores, as a rule, were takenfrom the ranks of the legal profession. They were ap-pointed by the magistrate under whom they served, andthey received a regular salary out of the State treasury.But, unlike the old Republican jurisconsult, no appointeecould be an adsessor and a practicing lawyer at one and

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the same time, although, if he wished to do so, he couldreturn to the practice of law after having resigned fromhis official position.

(5)The adsessor, consiliarius or comes was held responsible

for the legal advice he gave his superiors who, as a rule,acted upon it. As a matter of fact, the magistrate relied soheavily upon his adsessors that he frequently delegated tothem much of his work, especially his legal, administrativeand judicial duties. In this fashion they became quiteindependent, often acting in excess of their competence.This practice led to so much corruption and dishonesty thatit caused widespread dissatisfaction. Emperor Justinianfinally had to put an end to this abuse of authority. Inparticular, he had to warn against the common practices ofmany adsessores of merely submitting their decisions tothe magistrate for his signature, or of giving the decision intheir own name and on their own authority.

(6)Within the vast bureaucratic system of the Dominate,

with its many ramifications, the lawyers and jurists whowere regular and salaried members of the Imperial Coun-cil (consistorium) or the Imperial Chancery undoubtedlywere the most prominent or, at least, the most importantmembers of the Roman legal profession of that era. Inkeeping with the general policy of the Dominate, namely,that "all good things," including the law, came directlyfrom the divine Emperor himself, these jurists, in the main,preserved their anonymity. They were men of great abilityand learning, and were, without doubt, the true authorsof the immense body of legislation which was framed dur-ing the Dominate and issued in the name of the Emperor.Thus, in the minutes of the Roman Senate of the year 438A.D., which decreed the adoption of the Codex Theodosi-anus, Emperor Theodosius II ordered that this code "shallbe called by Our Name," and that it shall be called "Ours."

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But barring a few exceptions we do not know the names ofthe jurists who actually composed this legislation. Theywere also the men who compiled the great codifications ofthat period, such as the semi-official Codex Gregorianusof the year 291 A.D.; the semi-official Codex Hermogeni-anus which, being a supplement to the Gregorianus, waspublished a few years later; the official Codex Theodosianusof 438 (which could be called a supplement to both theGregorianus and the Hermogenianus); and the officialCorpus Iuris Civilis'7 of Justinian, which was finally com-pleted in the year 534 A.D. In other words, the trueauthors of these codes were the lawyers and jurists in theImperial Council and Imperial Chancery rather than the"law professors," as some people have maintained, al-though law professors were appointed to the editorialcommissions charged with the compilation of the CodexTheodosianus and the Corpus Iuris. The fact that the twoearly codes, which were published just at the beginningof the Dominate and, hence, still belong to the Principate,were semi-official works, should also explain why they

17 The title, Corpus luris Civilis, is not the original or official designationof the whole of Justinian's legislation, but dates back only to the sixteenthcentury. The various steps in Justinian's legislation were the following:(a) The First Code was started February 13, 528 A.D., and completed April 7,529. This code, as will be shown presently, was soon "out of date" and,hence, remained in force only until 534, when the Second Code was pub-lished.(b) The Fifty Decisions which, in a provisional manner, settled some out-standing and pressing legal controversies, or abolished some laws that hadbecome obsolete. This collection, which was probably published either latein 530 or early in 531, has not survived.(c) The Digest, in fifty books, which was begun December 15, 530. It wascompleted December 16, 533, and was made into law December 30, 533.(d) The Institutiones, in four books, which were published November 21,533, and given the force of law December 30, 533.(e) The Second Code, in twelve books, which superseded the First Code(cf. supra) that had become obsolete through the publication of the FiftyDecisions as well as many recent Imperial constitutions. The Second Codepresumably was commenced shortly after the publication of the Digest inDecember, 533. It was completed November 16, 534, and made into lawDecember 29, 534.(f) The Novelle, which comprise the Imperial constitutions enacted afterthe publication of the Second Code.

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were issued in the name of their real authors. The com-pilers of the Codex Theodosianus (named after EmperorTheodosius II) -Antiochus, Theodorus, Eudicius, Eusebius,Joannes, Camazon, Eubulus, Erotius (a "law professor")and Apelles (a practicing lawyer)-were all members or"legal advisors" in the Imperial Chancery. The Corpusluris of Justinian had been compiled by a staff of bureau-cratic lawyers and jurists (and a few "law professors"),who had been appointed by the Emperor himself. Theyworked under the direction of Trebonianus, who himselfhad held many of the most important administrative posi-tions in the Imperial government.

All this would clearly indicate that during the Dominatethe only truly creative work in law-if one may call codifi-cation "creative work"-was done not by private lawyersor jurists as during the Republican period, or by "law pro-fessors," but by lawyers who were permanently employedand highly salaried officials. It was done in the ImperialChancery or the great central bureaus, usually by expressorder of the Emperor, who not only sponsored and super-vised this work but also issued it in his owi name.

VII. Legal Education

(1)

During the Republican period the respectable Romanlawyer, especially the jurisconsult of repute, had insistedthat the only proper preparation for the legal professionwas association and observation. Young men wishing tofollow a legal calling attached themselves to a lawyer ofrepute and experience, and watched him perform either asa consultant giving responsa, or as an advisor assisting aclient in the proceedings in iure (and, less frequently, inthe proceedings in iudicio), or as a consultant to the prae-tor in the proceedings in iure or of a iudex in the proceed-ings in iudicio. Thus, by impregnating himself with the

[Vol. X


law in action through closest contact with practice and pro-fessional tradition, the student of law prepared himself forhis profession. He plunged head-on into legal practice, intothe ways in which law operated. Conversely, the juriscon-sult and lawyer simply refused to teach in the acceptedsense of the term; they did not discuss with their 'appren-tices" principles of law, theories of justice or canons of in-terpretation, although, like all true practitioners, theymight refer to an interesting case they had handled in thepast.

(2)

This method of professional training, which in its re-jection of all systematic instruction is definitely an aristo-cratic method, was seriously threatened however, by somenew pedagogical ideas that had been imported fromGreece. The Hellenistic notion that man ought to beschooled according to some uniform program graduallymade headway in Rome and soon affected legal train-ing, especially the training of advocates or forensic orators.

Probably the turning point in the history of Romanlegal education was the edict of Julius Caesar which con-ferred full Roman citizenship on Greek teachers of gram-mar and rhetoric, thereby giving them some sort of officialrecognition. These new teachers of rhetoric, who alsotaught forensic oratory, were perhaps the first regular"professors of law" in Rome. The schools of rhetoric, whichundoubtedly had imparted some elementary legal instruc-tion, at least since the beginning of the second centuryA.D., flourished also in some of the more important townsin Italy and throughout the Empire. Little is known, how-ever, about the legal activities of these schools, especiallythose in the provinces. But already during the first cen-tury A.D. there existed in the City of Rome two distinct"law schools," where law was taught in a systematic man-ner, and it may be assumed that a real law school operated

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in Berytus (Beirut) in Syria as early as the third centuryA.D. This school was destined to become the most famouslaw school in the Roman world. It is also possible that bythe end of the third or early in the fourth century A.D.some smaller law schools had sprung up in PalestinianCaesarea, Athens, Antioch in Syria and perhaps in Carth-age. In short, some sort of systematic teaching of elemen-tary law had been done in the City of Rome since the lastdays of the Republic, in the major Italian cities since theearly days of the Principate, and in the provinces since thesecond or third century A.D.

Naturally, the true professional lawyers and jurists ofRome, at least at the beginning, looked with undisguisedcontempt on these schools of eloquence, which were attend-ed mostly by men who wished to enter upon a career asforensic orators or advocates. Real law schools, on theother hand, did not appear in Rome until the latter part ofthe first century A.D., and at a much later date in Italy andthe provinces. These law schools, which should not be con-fused with the schools of rhetoric, soon attracted asteachers some of the outstanding jurists and jurisconsultsof that time, particularly those lawyers who wished neitherto become involved in politics nor to continue to practicelaw under the restrictive policies of the new Imperialregime. As early as the second century A.D., such juristsas Gaius or Florentinus were simply legal authors orteachers of the law.

(3)

During the early Empire the Hellenistic ideas abouteducation in general and about specialized professionaltraining in particular began to assert themselves to an ever-increasing extent. The new administrative policy of theEmperors, and particularly the governmental reforms ofEmperor Hadrian (117-138 A.D.), worked in favor of theHellenistic notion that all schooling, including legal educa-

[Vol. Xxx


tion, ought to be systematized. The somewhat haphazardlegal education.of the Republican period, which had beenboth an aristocratic and practical "apprenticeship method,"suddenly was looked upon as inadequate and outmoded.It could no longer supply a sufficient number of properlytrained lawyers, the more so since the new Imperial systemrequired the services of a great many professionally trainedlawyers. Neither could it be subjected to supervision orcontrol. But centralized control and supervision of allpolitically or socially significant activities was one of themajor aims of the new Imperial system. Thus it happenedthat legal education, too, came to be systematized. Legalinstruction was to be provided by special law schools whichadopted a uniform curriculum with permanent and (later)salaried teachers. In this fashion legal training in ImperialRome soon assumed a definite "academic" form.

(4)

The first two regular "law schools" of considerable re-nown during the first two centuries of the Christian erawere the school allegedly founded by Labeo, which laterwent under the name of Proculian School of Jurisprudence(Proculiani), and the school supposedly started by Capito,which is also called the Sabinian School of Jurisprudence(Sabiniani or, schola Cassiana). These two law schools, itis now commonly conceded, were more than mereschools of juristic thought, opinion or doctrine; they weredefinitely educational institutions, where law was taughtin a systematic manner by a regular teaching staff. Thismay be gathered from the fact that these schools wereconstantly referred to as scholae, that the teachers or mem-bers of these institutions were called praeceptores, and thatthe passing on of the scholarchate (the headship of theschool) from one "president" (diadochus) to another wasrecorded as successio (succession). Hence it appears thatthese two schools, in keeping with the general trend toward

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Hellenization of all education, were modelled after theGreek "schools of philosophy," such as the Platonic Acad-emy, the Aristotelian Peripatus, the Epicurean School, etc.,which for some time had been distinct pedagogical insti-tutions with a definite program presided over by a "head"or scholarch. Hence the recorded "leaders" of either theProculian School of Jurisprudence 8 or of the SabinianSchool of Jurisprudence 9 were none other than the headsof these two Schools who succeeded to the headship oftheir respective Schools either by election or through nom-ination by the retiring head.

A further indication that these two Schools of Juris-prudence were also pedagogical institutions may begleaned from the fact that in connection with them thereexists a reference to "stationes ius publice docentium"(places where law was taught in public), as well as fromthe statement that "iuxta Apollinis templum iuris peritisedebant et tractabant ... quia ibi bibliothecam iuris civilis... dedicavit Augustus" (the jurists sat and discussed lawnear the temple of Apollo . . .because it was there thatAugustus had founded a law library). Whether or not thesestationes were the auditoria of later days cannot be deter-mined. But it seems that regular and official auditoria didnot exist during the first century A.D. More likely thannot each lecturer or teacher had to furnish his own audi-torium, either at his private home or in some suitable roomwhich he had hired, or in some other public building, evenperhaps a temple. Somewhat later the government, espe;.cially in the City of Rome, put public lecture halls (audi-toria publica) at the disposal of these law teachers.I8 M. Antistius Labeo, M. Cocceius Nerva (the Elder), Proculus, Nerva

(the Younger), Pegasus, Celsus (the Elder), P. Iuventius Celsus (theYounger, whose full name was P. Iuventius Celsus Titus Aufldius OenusSeverianus) and Neratius Priscus.

'9 C. Ateius Capito, Massurius Sabinus, C. Cassius Longinus, Cn.Arulenus Caelius Sabinus, Iavolenus, Aburnius Valens, Tuscanius andSalvius Julianus.

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(5)

In view of the fact that soon some of the more outstand-ing jurists and jurisconsults, who also happened to bethe scholars and scholarchs of these law schools, becameeither members of the Imperial Council or holders of someof the most important administrative posts in the Empire,it is not likely that they spent much of their time teachinglaw. Labeo, for instance, is said to have taught only sixmonths out of every year in order to have sufficient leisureto write on the law. The time of such outstanding juristsas Salvius Julianus, Papinianus, Ulpian, Paulus and Modes-tinus was so much taken up with official duties that theycould teach only on rare occasions and then probably onlyto a select group of intimate collaborators.

As scholarchs, the leading jurists probably appointeda staff of instructors or a "faculty" which presumably didmost of the regular teaching. Whether or not the scholarchsor the instructors were employed on a permanent basiswith a regular salary cannot be ascertained. But in alllikelihood this seems not to have been the case, at leastnot until the reign of Emperor Hadrian (117-138 A.D.).In any event, the scholarchs and the leading jurists orjurisconsults .probably did not receive any compensationfor their teaching. Ulpian himself points out that it wasunbefitting for a jurist to demand compensation for histeaching, although he may honorably accept a remunera-tion freely offered by the student. "The iuris civilis sapi-entia," Ulpian contends, "in a way is a sacred matter thevalue of which cannot be estimated in terms of a mer-chandise (merces) and, hence, may not be degraded [bybeing sold for a price]." It is safe to assume, however, thatthe instructors were paid and that they could demand"tuition fees." But they could not sue for these fees. Tradi-tion has it, for instance, that the jurist, Massurius Sabinus,after whom the Sabinian School of Jurisprudence is named,

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was so poor that he felt compelled to charge tuition feesor "subscriptions." This conduct of Sabinus in the begin-ning must have been considered as something quite un-usual, but it may be assumed that his example soon wasfollowed by others. Conversely, the charging of regulartuition fees could also be cited as proof that by this timethe teaching of law had become systematized and institu-tionalized. A further indication that Massurius Sabinuswas a law teacher may be seen in the fact that ho authoreda "hornbook" or "textbook" for his students, the Libri Tresfuris Civilis, a sort of brief outline of the Roman civil law.This hornbook, which definitely was composed for didacticpurposes, is the first of its kind, and remained the officialtextbookof the Sabinian School of Jurisprudence until thereign of Hadrian and perhaps even longer. The next text-books, as far as we know, are the Institutiones (and Insti-tutiones meant something like "elementary work") ofFlorentinus, in twelve books, published probably in themiddle of the second century A.D., and the famous Insti-tutiones of Gaius in four books, published shortly after theInstitutiones of Florentinus. The fact that Paulus, Ulpianand Marcianus also wrote Institutiones may be cited as afurther indication that these men taught law.'

(6)

Very little is known about the organization, constitutionand legal status of these two law schools during the Princi-pate. It should be remembered that they were definite-ly private establishments. But, as early as the reign of

20 Aside from these Institutiones, the so-called Regulae were also

composed primarily for didactic purposes. The Regulae formulated in aconcise and orderly manner the basic principles of law: regula est quaerem quae est breviter enarrat. Neratius, Pomponius, Gaius, Scaevola, Licin-nius, Rufinus, Marcianus, Papinianus, Ulpian, Paulus and Modestinus wrotesuch Regulae. Paulus published two editions of his Regulae, a large editionin six books and a short edition in one book (Liber Singularis Regularum).Ulpian likewise wrote an edition in seven books and an abbreviated editionof one book.

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Emperor Hadrian (117-138 A.D.), there existed in the Cityof Rome a number of medical schools as well as severalschools of rhetoric which probably went back to the timeof Julius Caesar's death in 44 B.C. These medical orrhetorical schools were recognized or chartered corpora-tions with regular and probably salaried teachers whoenjoyed certain privileges. Whether or not the same appliedto the first and second century Roman law schools cannotbe determined. Toward the end of the second century A.D.,however, the State seems to have put at the disposal of thelaw schools some public lecture halls (auditoria publica).Tradition also has it that since the third century A.D. lawteachers, at least in the City of Rome (but apparently notin the East) began to enjoy certain privileges as well ascertain exemptions from a number of public duties andburdens. This would indicate that the Sabinian and Pro-culian law schools, which probably continued to exist along time after the reign of Emperor Hadrian, wereofficially recognized during the latter part of the secondcentury A.D., when they seem to have received a sortof corporate charter. But by the time this took place theimportance of these two law schools for the developmentand advancement of Roman Law already had been greatlyreduced through the legal reforms of Emperor Hadrian and,especially, through the publication of the Edictum Per-petuum. When, finally, the Imperial Council began tomonopolize both the development of new law as well as theadministration of the existing law, the law schools, likethe jurisconsults themselves, lost their creative signifi-cance: From then on the law instructors or professors wererestricted to expounding or commenting on the existinglaw.

No really significant or original legal work in the variousbranches of the law was done at the law schools of theDominate. The writings of the law professors, irrespectiveof their academic merits, actually had little, if any, practical

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influence on the further development of law. They werecomposed primarily for instruction or scholastic interpreta-tion and exegesis of the vast body of existing laws. This isfully in keeping with the authoritarian trend of the Dom-inate which, to an even greater extent than the Principate,insisted on the centralization and monopolization of allinstruments of political and' social control. The law of theDominate was not devised by individual jurisconsults or bythe learned professors of law; it was created in the greatImperial bureaus by anonymous lawyers and published inthe name of the sacred sovereign.

(7)

Probably toward the end of the third century A.D., andcertainly during the fourth century, an ambitious youngman who intended to become a lawyer or an advocate andlater, perhaps, a high official in the Imperial administration,made it a practice to enroll in one of the regular law schoolswhere law was taught in a systematic manner. He fully re-alized the advantages of securing a thorough and profes-sional training in the law. In the Eastern part of theEmpire, in particular, where the old Republican traditionsand practices had been disregarded for some time, onlyprofessional and professionally schooled lawyers by thenseem to have had any success as legal practitioners andadvocates; and only a successful and competent advocatewas considered at this time to be sufficiently qualified fora higher administrative appointment.

But it still took some time before a regular course oflegal studies was made a statutory prerequisite for anyoneaspiring to the legal profession. This did not come aboutuntil the year 460 A.D., when the East-Roman EmperorLeo I (457-474) issued a statute for the Eastern part ofthe Empire which made it compulsory for anyone wishingto become a full-fledged lawyer to take regular trainingat one of the recognized law schools, and to pass an

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examination as well as to submit evidence of his proficiencyin the law. Thus Emperor Leo I enforced what for sometime had been a general practice. But this decree did notapply to the West, where the old training methods inrhetoric, long ago established by the forensic orators, inthe main, survived.

(8)

During the Dominate the teaching of law definitely as-sumed all the aspects of academic professionalism. Ana-logous to the general trend toward universal bureaucratiza-tion, the teaching of law now became an exclusive, pro-grammatic and systematic activity sponsored as well assupervised by the State and pursued by State-appointedprofessionals, that is, by regular and salaried law profes-sors. Regular students now were subjected to an intensivelegal training with a thoroughly organized and compulsoryacademic curriculum. After the completion of their studiesthe students had to pass a final comprehensive examinationwhich included every subject that had been treated duringthe regular period of studies.

The leading law school during the Dominate was un-doubtedly Berytus (Beirut) in Syria. This famous school,which may date back to the third century A.D., was calledby Libanius "the mother of all laws," by Nonnus "the Cityof Laws," and by Emperor Justinian "the midwife of alllaws." There was also a first-rate law school in Rome and,after the year 425 A.D., one at Constantinople. The lawschool in Rome, it seems, was for some time attended bythe largest number of students, who apparently were at-tracted by the magic name of the old City and, hence,flocked there from all parts of the Empire, including theEast, even after the division of the Empire in 395 A.D.All other law schools, and there existed a considerablenumber of them in the greater cities throughout theEmpire, could not possibly compare with the standards

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and reputation of either Berytus, Rome or Constantinople.In addition, especially in the western part of the Empire, afew schools of rhetoric and grammar, which taught someelementary law as a sort of side-line still flourished. In 534Emperor Justinian finally forbade the professional teach-ing of law in the East except in the three great law schoolsof the Empire, namely, Berytus, Rome and Constantinople,insisting that the minor schools had poor facilities and,hence, were teaching "adulterated law" (doctrina adult-erina). He singled out especially Alexandria and Pales-tinian Caesarea. In this fashion Berytus, Rome and Con-stantinople were raised to the status of official Imperial lawschools or "State universities" which held a monopoly inthe teaching of law and were sponsored, controlled andfinanced by the State.

(9)

Originally, the curriculum in the great law schools seemsto have followed no definite plan. It is safe to assume,however, that all legal training started with the study ofGaius' Institutiones. But definite information about this isnot available. The first official program of instruction atBerytus, which subsequently was copied at Constantinople,dates back to the fifth and probably even to the fourthcentury A.D. The fixed period of study was four and laterfive years, although only in the year 505 A.D. was thisperiod determined by a special statute issued by EmperorAnastasius (491-518 A.D.). But it may be presumed thatAnastasius merely legalized what already had been a well-established academic tradition at Berytus. During the firstyear at Berytus the student attended public lectures onthe -original Institutiones (of Gaius) and on the four booksof the so-called Libri Singuiares, an anonymous post-classical compilation of laws. First-year students werecalled dupondii, which simply means "recruits" or "fresh-men." Emperor Justinian, apparently believing that this

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IN ANCIENT IMEPERIAL ROME

nickname was undignified, changed it to Justiniani novi(novices of Justinian). During the second year the publiclectures were based on the Edictum Perpetuum of SalviusJulianus, while Ulpian's commentary to the Edict (theLibri ad Edictum) was probably used as collateral ma-terial. The second-year students were referred to asedictales, that is, students who study the Edict. During thethird year the students continued to attend public lectureson Julianus' Edict and on eight of the nineteen books ofthe Responsa of Papinianus which seem to have dealt withpractical issues. The third-year students, therefore, werecalled papinianistae. During the fourth year the studentsno longer attended public lectures; with the help of tutorsthey studied by themselves the twenty-three books ofPaulus' Responsa, a collection of responsa or problems,mostly taken from practice, which were arranged accord-ing to facts, legal issues and solutions. The Responsa ofPaulus were also used in the "problem method" whichconstituted an essential part of the fourth-year plan ofstudies. Hence the fourth-year students were called lytae(from the Greek term LYTAI) which meant solutores or"solvers of legal problems." During the fifth or last year,when no public lectures had to be attended, the studentsconcentrated on the Imperial constitutions or, as we wouldsay, the Federal Statutes, which could be studied with thehelp of the recent codifications, such as the Codex Gre-gorianus, the Codex Hermogenianus, the Codex Theodo-sianus and, finally, the Codex Justinianus. It is quite like-ly that the fifth-year students, who sometimes were re-ferred to as prolytae or "advanced lytae," attended someprivate lectures and perhaps some colloquia, somethingakin to our "seminars" or "recitations."

(10)

After the final publication of Justinian's Corpus in theyear 534 A.D., the program of studies was modified and

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adjusted to this new and comprehensive codification. Thus,during the first year the Institutiones and the first fourbooks of the Digest were studied or treated in public lec-tures; during the second year either Books V-XI (the parsde judiciis) or XII-XIX (the pars de rebus) as well as BooksXXIII, XXVI, XXVIII and XXX of the Digest; during thethird year either Books V-XI or XII-XIX of the Digest,whichever had not been treated during the second year,and Books XX-XXII; during the fourth year, when publiclectures were discontinued, Books XXIV, XXV, XXVII,XXIX and XXXI- XXXVI of the Digest; and during thefifth year the Codex, which contained the recent Imperialstatutes or constitutions. Books XXXVII-L of the Digest,it was held, could be read in the student's own time or,perhaps, after his graduation from the law school.

(11)

Student discipline in the law school in Rome was han-dled by the censuaies (a sort of census officials in Rome),who could impose on refractory students physical punish-ment, including whipping, or expel them from school. InConstantinople, at least since the time of Emperor Justin-ian, the law students were under the supervision of thepraefectus urbi, while at Berytus disciplinary matters werehandled by either the governor of Phoenicia Maritima, thebishop or the law faculty. Law students in Constantinopleand, probably, in Berytus and Rome, were exempted fromall public duties (munera) until the age of twenty-five,when they were expected to have completed their studies.Emperor Justinian also prohibited the hazing of professorsby students as well as all sorts of mischief.

(12)

In the older program of legal studies and, to some extent,in the reformed curriculum of Emperor Justinian, one

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feature stands out, namely, the preponderance of "aca-demic antiquarianism" as well as the pronounced "classi-cism" of this way of instruction, which seems to have beenimposed by statute. Thus the fourth Book of Gaius' Insti-tutiones, which was used during the first year of instruc-tion, still contained the old legis actiones, although theyhad long since become obsolete. In any event, the Emper-ors Theodosius II (408-450 A.D.) and Valentinianus III(423-455 A.D.) in the year 429 decreed that the proposednew Codex Theodosianus should also contain invalidatedImperial constitutions, because "this Code... [has] beencomposed for more diligent men to whose scholarly effortsit is granted also to know those laws which have been con-signed to silence...." Obviously, this statement contains anofficial concession to, if not a sanction of, legal scholasmas well as to the classicism which still controlled the lawschools. Emperor Justinian, who in conjunction with hisnew Corpus also revised the law school curriculum, finallydeclared in his "Foreward" to the Institutiones that muchof the old classical material was mere "ancient history"(antiquae fabulae). The study of "classical law," therefore,should be terminated after the fourth year (in quartum an-num omnis antiquae prudentiae finis). Thus the publiclectures and the readings of the first four years, at leastprior to the publication of Justinian's Corpus, in the mainwere devoted almost exclusively to the classical writings ofthe past (Gaius, Julianus, Ulpian, Papinianus and Paulus).Only in the fifth year, and then without the benefit of pub-lic lectures, did the average student come in closer contactwith contemporary law, that is, with the more recent Im-perial constitutions.

Although the authoritative text and materials used in thevarious law courses were in Latin, the public lecturesthemselves, at least at Berytus and Constantinople, weredelivered in Greek. It is also interesting to note that whilethe Christian religion had been fully recognized as a State

1955]


religion since the fourth century A.D., the study of law,on the whole, remained true to the old pagan tradition.The law schools, which, as has been shown, were stronglyimbued with the "spirit of classicism," did not championChristianity or Christianization. Neither did they purgethe classical text of their many pagan or polytheistic ele-ments. This was finally done by Justinian during the sixthcentury A.D. It should also be remembered that the greatcodifications during the Dominate did in fact originate inthe Imperial Chancery or with special Imperial commis-sions rather than in the law schools, although some famouslaw professors were called upon for their advice and col-laboration in the drafting and compiling of these codes.

(13)

The regular law faculty at both Berytus and Constanti-nople was relatively small. The statute of 425, the year inwhich the law school at Constantinople apparently wasfounded, refers to only two public law professors in Con-stantinople. But in the year 533 Emperor Justinian men-tions eight public law professors, presumably four inBerytus and four in Constantinople. In addition, therewere a number of "private law teachers" or "instructors"or, as the Germans would say, Privatdozenten. But theirparticular relation to the law school is not fully known.In Rome, at least, these instructors, but not the publicprofessors, were prohibited from using public lecturehalls under a statute issued by the Emperors Theodosius II(408-450 A.D.) and Valentinianus III (423-455 A.D.).The regular or public professors of law apparently wereappointed by the Senate of the university towns. In thebeginhing, at least in the East, they seem to-have possessednone of the special privileges and exemptions from certainburdensome public duties which other officials enjoyed,and even the Codex of Justinian does not grant themany particular privileged status. Nothing definite is known

[VCol. XXX


about their remuneration, although it must be assumed thatthe regularly appointed "professors" received regular com-pensation. In the year 425 A.D., the Emperors TheodosiusH and Valentinianus Ill decreed that Leontius, a "profes-sor of law" who had been appointed to the newly estab-lished law school in Constantinople, was to receive the titleof Count of the First Order as well as the rank of an Im-perial ex-vicar. The Emperors also ordered that all profes-sors of law, "if they show that they are living a praise-worthy life ... if they have demonstrated their skill inteaching... and if they have been deemed worthy... inso far as they perform the duties of professors, wheneverthey reach the twentieth year of service in their constantdevotion and their zealous labor of teaching, shall enjoythe same rank...

(14)

Especially in the Eastern law schools, at Berytus andConstantinople, a great many luminaries seem to havetaught law. Thus, during the fifth century, Erotius (whoalso worked with the commission for the TheodosianCode), the elder Cyrillus, Domninus, Demosthenes, Eu-doxius, Patricius, Amblichus and Leontius taught atBerytus. These men are mentioned by subsequent genera-tions of lawyers and jurists both with veneration and aweas the "ecumenical teachers," the "famous teachers" oras "the great men of old." During the early part of thesixth century the most famous law professors were The-ophilus, who taught in Constantinople, Thalelaeus, Doro-theus and Anatolius. In 528 Theophilus was appointedto the commission charged with editing the Codex Jus-tinianus, while Dorotheus was a member of the commissionworking on the revision of the Codex. Theophilus, Cratin-us, Dorotheus and Anatolius assisted in the compilationof the Digest, and Theophilus and Dorotheus were on the

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T$E LEGAL PROFESSION

commission for the Institutiones.21 Unfortunately, thenames of the professors teaching in the law school atRomeduring this period are unknown, with the possible excep-tioh of Floridus, who might have been teaching law there.The law school in Rome apparently survived the conquestof the City by the Visigoths and later by the Ostrogoths, aswell as the sack by the Vandals. After the reconquest ofRome by Justinian's generals in the year 554 AD., thisschool was reaffirmed by the Emperor as one of the threeofficial State law schools.

VIII. Conclusion

(1)

The barbaric invasions of the West-Roman Empire dur-ing the fifth and sixth centuries A.D. brought about notonly a sharp decline of Roman civilization; at least inthe West, they nearly succeeded in extinguishing theWest-Roman legal profession, which, it should be remem-bered, had failed to attain the high degree of develop-ment and perfection that had been achieved in the East-

Roman Empire. During this prolonged period of recurrentprimitivism, which is often, and probably rightly, referredto as the Dark Ages, one cannot possibly expect to findso progressive a social institution as that of an enlightenedand properly functioning legal profession. This particularera, among other things, was one filled with profoundchanges and constant fluctuations of the law, one in which

21 A number of practicing lawyers or advocates were likewise ap-

pointed to these commissions. Thus one advocate, namely, Apelles, who isreferred to as "the most eloquent jurist" (scholcsticus), in the year 429 AD.worked on the first commission charged with drafting the TheodosianCode. Justinian appointed two advocates, Dioscurus and Praesentinus, whoare referred to as "most learned advocates (togati) admitted to thepraetorian court," to the commission for the Codex; eleven advocates -

Stephanus, Mena, Prosdocius, Eutolmius, Timotheus, Leonidas, Leontius,Platon, lacobus, Constantinus and Ioannes - to the commission for theDigest; and three advocates, Menna (Mena), Constantinus and loannes, tothe commission for the revision of the Codex.

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crude and unstable. legal notions and legal practices fre-quently and suddenly displaced the advanced and stabil-ized institutions of the Roman Law. In addition, theRoman legal language, after centuries of careful evolution,bad attained a very high degree of technical refinementand adaptability to subtle legalism. The dialects of thebarbarians, on the other hand, were extremely primitiveand often -did not go beyond the ordinary purposes andneeds of -daily life. Hence Roman legalism, -purely from alinguistic point of view, remained beyond the corapre-hension of the -Germanic tribes. And, finally, the crudefolkways of the barbarians brought back to WesternEurope a number of notions and prejudices which arecharacteristic of primitive peoples, among them the naiveidea that every man ought to fight his own battles, usinghis own hands or tongue as the occasion required. It isneedless to say that such an attitude begets C'strust of thelawyer and contempt for advocacy.

(2)

Thus the advent of the barbarians, at least in the West,rang down the curtain on many progressive, intelligentand wholesome legal institutions which in the course oftime had been developed by the Romans. Of the West-Roman legal profession and its ideas practically nothing re-mained but a blurred remembrance and a few fragmentaryremnants which miraculously survived through the in-termediary influence of the mediaeval ecclesiastical courts.During the following centuries men had to learn overagain by bitter and costly experience the many lessonsof history which Rome in its own day had both learneditself and taught the world: that an advanced andcomplex civilization cannot possibly attain stability andefficiency without a mature system of laws; and that amature system of laws always requires the presence andactive cooperation of a .competent, confident and respected

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NOTRE DAME LAWYER

legal profession, which is freely permitted and even en-couraged to rise to excellence of professional achievement,eminence of social position and pride in professional ac-complishment. Western mankind in its search for law andjustice had to start again at the beginning. Only aftermany centuries of painful experience and distressingfailure did it succeed in attaining once more the highcultural, intellectual and professional level that was oncesynonymous with Roman Law and the Roman legal pro-fession.

Anton-Hermann Chroust*

* Professor of Law, University of Notre Dame

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Documents

Legal Profession in Ancient Imperial Rome