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CHAPTER IX.

TEXT-BOOK LAW: ROMAN PRUDENTES.

Distinction of prudens and patronus. I now come to consider, in more detail than the general notice due to this subject has allowed me to do before, the juridical part played by the Roman prudentes. This appears to have been a little misunderstood by Austin, in his zeal for actual legislation, whether direct or judiciary. The labours of these experts belong, as it seems to me, throughout rather to textbook than to case-law. But the exact judicial character of the prudens varies considerably at different times and is not at any time perfectly easy to determine.

To begin with, we must apparently separate him from the pleader. From the earliest days, among the other duties of a patronus, it devolved upon him to maintain his client's interests in Court-as much, it would seem, by personal influence and character, as by knowledge of law. Tricks of oratory enter gradually into the qualifications of the patronus, as he loses his old position, almost analogous to that of a feudal lord, and assumes the character of mere influential citizen. And his oratory is clearly directed rather to the evasion than to the solution of legal difficulties'. This function of the patronus, in which oratory is of more importance than knowledge of law, descends to Cicero's times, who naturally gives the former the first place,

1 See Plautus, Menaech. 4. 2. 1–29.

although his pleader does condescend to use in Court the ancillary art of the pettifogging jurisconsult. Great part of Cicero's speech for Muraena is a vigorous personal attack upon Ser. Sulpicius3, who, as we know from Pomponius*, had left the business of pleading in Court and taken to that of advising out of Court. From the passages quoted, and similar ones, we see that the prudens answered rather to our equity draughtsman and conveyancing counsel, being consulted at his own house, both by clients directly and by their patroni or public pleaders. In strictness it would seem as if the original of our modern word advocate was properly applied not so much to the ordinary patronus, or court speaker, as to the chamber practitioner summoned into court' by his consulter, who sometimes noted down the opinion of the prudens for the judge to read, sometimes called in the prudens personally.

The mere pleader, then, may evidently be left out of our present consideration. If we could conceive, in our own courts, a class of orators whose business and qualification were simply to throw dust in the eyes of a jury, we should

2 Cicero, de oratore 1. 55. 236. 3 Cicero, pro Muraena, capp. 9—27. 4 Dig. 1. 2. 2. 43. See also the similar case of Tubero ib. 46.

5 Dig. 1. 2. 2. 43. Servius...traditur ad consulendum Quintum Mucium de re amici sui pervenisse &c. See too the early case of C. Scipio Nasica (below p. 289).

6 See Plautus Trinummus 5. 5. 37.

C. Jus hic orat. L. Impetrabit te advocato atque arbitro. It is at least a possible interpretation of Cicero pro Muraena, § 9, that the orator conceives Sulpicius as appearing, in the capacity of patronus, against the man for whom he has advised, as advocatus.

7 The word is probably borrowed from the Attic apaкλnтós, though it may be questioned whether the meaning of the two is precisely the same. See Demosthenes, De falsa legatione 341 (R) 10, and Shilleto's note.

8 Pomponius, Dig. 1. 2. 2. 49. Neque responsa utique signata dabant (sc. prudentes), sed plerumque judicibus ipsi scribebant aut testabantur qui illos consulebant. Among the various interpretations of this clumsy sentence, I prefer that which takes ipsi to be not the prudentes, but their clients.

expect little contribution to law from such a source.

As

little, in all probability, was derived from the ordinary Roman patronus. He backed his friends (adfuit amicis) with the best eloquence at his command, he received from them (at least in the later days of the republic) more or less disguised honoraria or "compliments;" but, as a legal authority, I fear we must admit, even in Cicero's case, that the less said about him the better.

The pontiffs the first prudentes. We come, then, to the legal authority proper, the prudens or expert, considered in our present point of view as a literary authority also, i.e. as leaving some written record, though not jus scriptum in the juridical and Roman sense.

The pontiffs and their books are clearly the only representatives of this class down to the time of Cn. Flavius. Their particular action in the early period represented by the leges regiae is difficult to determine, as those documents have only come down to us in the shape of a few fragmentary quotations. On the very questionable legislative character of these so-called leges I have spoken before". The pontiffs were undoubtedly the repositaries of those primaeval customs which formed the first Roman law, and in all probability the advisers of the early patrician magistrates. Whether they ever recorded individual cases is extremely doubtful", but they appear to have thrown into the form of general rules such applications of national custom and opinion as required declaration or penal enforcement. The form is evident in our fragments, the antiquity of the matter is shewn by attribution to Romulus, Numa, &c.

The date of Flavius' publication is about 304 B.C. For the general fact stated in the text see Livy 9. 46: Cicero, de oratore 1. 41. 186: Pomponius, Dig. 1. 2. 2. 6, 7. The special difficulties attending the last author's account cannot be treated here. 10 Above pp. 38, 92.

11 See my Early Roman Law, pp. 55, 57, as to the story of Horatius.

The legis actiones, represented by Pomponius as springing from the code of the Twelve Tables", to which they possibly owe their general name, though some were most likely of earlier date', may not have involved much introduction of substantive law. It would seem more probable that at least the older were mere form, and therefore, though imposing certain conditions or modes of going to law, which constituted a lucrative secret to the privileged class who kept the knowledge in their hands", did not, even when published, amount to much more than Court procedure. When published, however, in an official or quasi official manner, these together with the actiones of Aelius 15, which probably approximated to the formulae, and the formulae themselves, belong distinctly to the class of statute.

The old jus civile. An obvious instance, on the other hand, of genuine text-book law, appears to be found in the jus civile, under the narrower meaning given to this phrase. It is distinguished slightly by Pomponius from the legis actiones; although in its authors, its original monopoly, and its ultimate publication, it is classed with those forms".

What then was the matter known by this name, which, either accompanying or including the legis actiones, was

12 Dig. 1. 2. 2. 6.

13 See Teuffel, § 77, p. 100. must have preceded these forms.

Gaius 4. 11. only indicates that some leges The oldest, sacramentum, was no doubt known by that name, and in existence, before any legislation of the Comitia Centuriata.

14 Pomponius, Dig. 1. 2. 2. 6.

15 Ib. 7. This jus Aelianum, containing simply forms of procedure, was probably distinct from the tripertita (see below, p. 292).

16 Pomponius, Dig. 1. 2. 2. 6. Ex his (XII tabulis) fluere coepit jus civile: ex isdem legis actiones compositae sunt.

17 Ib. omnium tamen horum (sc. tabularum) et interpretandi scientia et actiones apud collegium pontificum erant, ex quibus constituebatur quis quoque anno praeesset privatis. Ib. 7. hic liber qui actiones continet appellatur jus civile Flavianum.

published by Cn. Flavius, after being so long "hidden in the pontifical recesses with the sacred rites and ceremonies of the Gods 18?" It could scarcely have been the mere table of Court days and Court forms, when we read of the "interpretation of experts" and directly afterwards of the "persons skilled in law, through whom it may be capable of daily improvement"." The author whom I have chiefly quoted, being indeed our main authority on the history of Roman Law, represents this jus civile as springing entirely out of the litigation upon the Twelve Tables, as being therefore either case-law, or generalisations out of cases, arising under that statute. But expressions in other writers would seem to give it a wider meaning, so as to embrace the older law also, of which the pontiffs were so long the sole repositaries 20. I believe we may trace the existence of two elements in this old jus civile, one of record, one of progress and improvement. The ancient quasi-religious rules which had passed into the law of ordinary civil life found their place there, gradually separating themselves from more purely religious matters which never arrived at that stage. By the side of these, after making all allowance for a certain colouring in Pomponius' account (due to the position of the prudentes in his own time), we cannot but recognise a gradual augmentation of the old law, regarded as an interpretation of its statutory

18 Livy 9. 46. Civile jus repositum in penetralibus pontificum evolgavit Cn. Flavius. Valerius Maximus 2. 5. 2. Jus civile per multa saecula inter sacra caeremoniasque Deorum immortalium abditum, solisque pontificibus notum Cn. Flavius...vulgavit.

19 Dig. 1. 2. 2. 12, Pomponius. Aut est proprium jus civile quod sine scripto in sola prudentium interpretatione consistit. 13, Post hoc deinde auctorum successione dicemus, quod constare non potest jus, nisi sit aliquis juris peritus per quem possit cottidie in melius produci.

20 Cicero, de oratore 1. 43. 193. In omni jure civili, et in commentariis pontificum et in XII tabulis. See too above, p. 284.

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