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Law – Ancient and Modern



   and the


Now Roman is to Roman

More Hateful than a Foe,

And the Tribunes beard the High,

And the Fathers grind the Low

-Lord Macaulay,

Lays of Ancient Rome, xxxiii

Roman Law, as it has been handed down to us, reached its final distillation in the Corpus Juris Civis and Digest of Justinian, compiled during his reign (527-565) and first published in 534.  Therein was summarized the work of the Classical jurists of the first three centuries of the Christian era.  They in turn had drawn upon sources dating to Republican times, which are now lost to us.  These sources had their own antecedents, stretching all the way back to the Decemvirs, Rome’s first lawgivers, who set down the Twelve Tables in 451-450, BC.  They had done this to end the Secession of the Plebians, whose capital demand was that the Law be written down, so that everyone could know what it said.  The Decemvirs built upon the oral tradition that had existed for as long as Rome had, whose origin lay beyond the horizon of history and legend. They seasoned these precepts with what they found in Athens, after having sent a delegation there to study the works of Solon.

Prior to Cicero’s numerous works, we have, in the field of jurisprudence, interpretation and commentary not much more than fragments, yet it is well-known that the major achievements of Roman Law antedate Arpinium’s most famous son, so that when it is first encountered in abundance in literature, it springs upon us full-formed and complete, like Minerva from Jupiter’s brow.  As Lord Macaulay did for early Roman history with his Lays of Ancient Rome, we will attempt to do in reconstructing the legal tradition long ago swallowed in historical night.

The foundation and ultimate source of Roman jurisprudence was, as we have seen, the Twelve Tables.  These laws, having been passed by the Centuriate Assembly in 450, became Rome’s first written law and were the textbook of every schoolboy down to Cicero’s day, four centuries later. Of the various civil and criminal subjects dealt with in the Twelve Tables, wills, estates and inheritances make up a notable part.  They were grouped together under the subject-name of ‘Succession.’ (1)  At the time of the Twelve Tables, Succession was a matter of ‘institution’ or ‘intestacy.’  A Roman citizen could either appoint his heirs (heres) in his will, or, dying intestate (without a valid Last Will and Testament) his estate would pass according to the Law of Succession to his next of kin.

The focus of the Roman system is on the heir, or universal successor.  Upon the death of a man, his heir(s) take over his legal standing, and with it, all rights and duties pertaining thereto, even to having to settle his debts at his/their own expense, if the deceased’s estate was insufficient to do so.

Succession was by intestacy if no heir was designated in a valid will.  Without at least one designated heir, no valid succession was possible, in which case the estate was transmitted to the agnates (next of kin), orfailing that to the gentiles, members of the deceased=s clan (gens), such as the Julian, Claudian, etc., which were themselves subunits of the tribes of which every Roman citizen was a member.  (Citizenship was predicated on tribal membership in the same fashion as US citizenship was dependent on State citizenship before the 13th Amendment.)  Heirs were further subdivided into two classes: sui heres, who had been in the potestas or manus of the deceased at the time of his passing, and extranei heres, which comprised everyone else.

Heirs who were sui had primacy of title to successions.  Those persons who, being under the manus (hand) or potestas (subject to) the deceased at the time of his passing became sui iuris (legally their own free agent).  Sui heirs differed from extraneai in three respects: (2)

1.     They automatically succeeded on the death of the Paterfamilias (head of household), whereas extraneai had to make entry (aditio) to indicate approval of the succession;    

2.     They became heirs even without their consent or knowledge (sui ei necessarii heredes), as in the case of inheriting a bankrupt estate; and

3.     Any will, to be valid, had to mention them, either to inherit or disinherit.  Extraneous heirs entered the estate property and confirmed their status by ‘acting like an heir’ in the eyes of the law.

Intestate succession was accomplished in the absence of a valid will; the first to be in line of succession were the sui heres, next, the nearest agnate(s).  Lacking agnatic succession, gentile succession would be accomplished.

Testementary succession was originally based on two kinds of wills: those made comitiis calatisi in front of the Pontifex Maximus, who was semiannually president of the comitia calata (the committee charged with hearing wills and acting as notary public for them), and the testamentur in procinctu, sworn in front of several fellow citizen-soldiers on the battlefield, as a last resort, before combat was to be joined.  A later addition was the mancipatory will, a private document that gave the testator’s estate into the hand of a friend (familiae emptor) to dispose of according to prior instruction. (3)

As time passed and the caseload grew, the Centumuiral Court was established to hear matters relating to succession, among other things.  The Centumuiral Court heard its earliest known case in 145, B.C., but was much older. (4) Seating three men from each tribe, it surpassed the hundred-mark in size in 241, B.C., but in some form likely existed in earlier epochs.  With power to hear cases relating to inheritance (heredity petitio and quarrela inofficiosi testementa) this court would be marked out by design to hear cases like the Causa Curiana, and customarily attracted the preeminent orators of the bar. (5) Numbering 105 men in later times, for each case a concilium of smaller number was selected to sit in judgment.  The symbol of the Centumuiral Court was a spear thrust into the ground, holdover from earlier and more martial times.  The parties would stand before the iudex (judge, chief magistrate of the concilium appointed for the case) and the plaintiff would in formulary, rote language accuse the defendant, who replied in kind.  Argument and counter-argument were then given, and a judgment pronounced.

By the end of the Second Century, B.C., the older forms of will (comitiis calatis and testamentur in procinctu) had become obsolete, and the mancipatory will had evolved to include, according to the Lex Publica, the testator giving the written tablets of instruction to the familiae emptor, and swearing to their veracity.  Intestate succession remained unchanged to the end of the Republic, except that sisters only figured in the agnatic succession, as opposed to the original interpretation, which left inheritance on intestacy open to more remote relations. (6) Praetorian wills (bonorum possessio) had come into use by this time, which empowered the magistrate to grant legal remedies to non-heirs to obtain proceeds from an estate.

The chain of events which led the Causa Curiana to be argued before the Centumuiral Court is unknown, but may well have been forged along these lines:

A certain Roman, Copenius by name, draws up a will, not wanting to leave the settlement of his estate to intestate succession, which is to say, to whomever by chance happens to be his agnate(s) at the time of his decease.  Copenius is childless; whether married or not is a mystery.  As to whether or not the bereaved father of children who had preceded him in death, an enigma.  If struck down in the prime of life, or in his dotage and full of years, he remains a  riddle.  That he in expectant hope looked to be a father we from the text of his will know; but Cato the Elder intended as much in taking a new wife in his old age.(7)  Without further ado, we the rest of Copenius’ life pass over; his death made him more fame than all his years above the ground ever did.

Copenius died.  The hoped-for heir was never born.  The estate passed to Manius Curius, who, in the will, was to succeed in case the presumptive son died before becoming an adult.  Those in agnatic succession pressed a counterclaim.  They argued that no son had been born to dead Coponius, and that Curius could not succeed someone who had never existed.  It may have been ties of patronage that bound Coponius to Scaevola; or, perhaps some debt of honor or obligation to the deceased impelled the August scholar to lay aside, for a time, magistral dignity and become a pleader at the bar of justice on his family’s behalf.  Curius secured the services of former Consul and noted lawyer Marcus Crassus.

The case is recorded in the docket, and, in due course, is called to trial.  The scene is easy enough to imagine: Republican Rome, already noble and murmurous with history, at the zenith of her power and prestige, with the court a fitting arena for the two titans of republican jurisprudence to contest a single point in a private will, even as around them flared and raged the beginnings of civil strife between Rome and the Italian Allies, set against the backdrop of war with Mithradates.  The old-timers who sat there that day could remember the final defeat of arch-foe Carthage and the murder of the brothers Gracchus; the youngsters on their fathers’ knees would know Marius, Sulla, Cicero, and Caesar like their own names in the years to come.

With two such notable personages squared off against each other, plaintiff and defendant waxed insignificant; they were mere spectators at a trial which was in name only their own.  The usual whispered gossip, the easy banter of the courthouse crowd, must have in hushed silence retreated like rippling waves in a pool where a stone is cast, in circles ever outward as the principals from opposite sides of the court entered, relatives, attendants, well-wishers, hangers-on, and the simply curious in array behind, with their closest and most prominent allies and kinsmen in the van.

Muncius Scaevola Pontifex, Consul three years earlier with his opponent, Marcus Crassus, for the family of Coponius.  Cousin of M. Scaevola Auger, himself Counsel in 117, B.C., distinguished scion of an eminent family, the more so for his efforts, spoke first.  The ethos which haloed him as he rose to deliver his speech was unequaled in the firmament of Rome’s leading names.  Like our own John C. Calhoun, a cast-iron man, arch-conservative, logician and legal authority that could compeer the best of his age.  It was taken for granted that the Centumuirial Court would listen intently to his every utterance.   “Among lawyers the best orator; among orators the best lawyer,” (8) Scaevola adhered to the letter of the law and to the literal meaning of the disputed will (“…if one or more sons are born to me, he or they are to inherit my estate.  If a son dies before coming of age, then Manius Curius is to be my heir”).

The ‘right words’ had been used, according to the ancient usage; of this there was no dispute.  Scaevola expounded at length, with learned erudition informing his speech, on well-known points of the law relating to the use of the ‘right words,’ in the proper formulaic expression, to convey exact meaning to a testament, with only the names of the parties involved changing from time to time.  He returned to the will itself.  Coponius only meant for Curius to inherit in the event of his son(s) dying before reaching their majority.  No son being born, none could die, and Curius therefore could not inherit.  “Surely his entire address was concerned with the one contention that the written word ought to prevail to the uttermost,” Cicero assures us in his Orator.(9)   Tully summed up Scaevola again (10) by saying that his entire argument rested on the premise that the person (Curius) who had been nominated heir in the second grade, as a substitute for a posthumous son who had been born and subsequently died, could not inherit, since the dead son had never existed in the first place, to die before coming of age; thus the failure of the pupilary substitution and Coponius, dying intestate, leaves his estate to Marcus Coponius, in agnatic succession next-of-kin, and displaces Manius Curius as the true and native claimant by right and title, under law, to the estate of the deceased.  After all, one has to be born to die, and the substitution of Curius succeeds only upon the death of a minor son. In closing, Scaevola noted that if Coponius had intended both a pupilary and a vulgar substitution, his will would have read thus: “Let my son be my heir.  If my son shall not be my heir, or, if he shall be my heir but die before reaching proper age, then let Curius be my heir.”   Scaevola rested his case.

As Scaevola’s last declamations faded into silence, Crassus rose and faced the bar.  Like the proverbial cannon loaded to the lips (as Emerson once described Daniel Webster), Rome’s greatest orator began to lay down the verbal barrage that would carry the day for Curius.  Although lost to us, the speech was famous in Cicero’s day (a generation later) and seemed destined for a place in the canon of Latin letters.  From fragments embedded in later works, we can see the outlines of his counter-defense, with a hinted eloquence that escapes us: like a sailor trying to guess what a shipwreck must have looked like on her maiden voyage, when gazing on a barnacled hulk fathoms under the surface, with only our imagination to supply the masts and spars and canvas billowed by the morning breeze.  Cicero attributes the following to Crassus, in theOrator:

On the other side I was affirming the true intention of the testator

to have been that Manius Curius should be heir in the event of

no son coming of age.  In these proceedings were not both of us

unceasingly preoccupied with decisions, with precedents, with

forms of will, with questions, in fact, of common law all around

us? (11)

Crassus, “that paragon of eloquence and learning,” (12) broke Scaevola’s hold on his hearers’ minds completely with his mesmeric cadences as he derided Scaevola’s assertion that someone has to be born to die. (13) Likening him to a small boy who, finding wave-tossed jetsam on the shoreline, calls up in his mind images of maritime adventure to the point that he imagines himself building a boat with it,  Crassus painted Scaevola as one who, straining at the gnat of literal meaning, has swallowed the camel of the dead man’s intent, without digesting the fact (to Crassus) that the clear intent of the testator was for Manius Curius to inherit if there were no son, whatever semantic flaws there might have been in the rendering of the will.

Crassus continued, “citing many cases of men who, having been named as heirs in the event that a son was born within ten months and died before attaining his majority, would have taken the inheritance” (14) and the recitation of authorities including Scaevola’s brother Publius Mucius and a legal textbook written by Sextus Aelius, among others (15) to drive his point home, successfully, as it turned out.  Manius Curius kept the disputed estate.

In the aftermath of the celebrated case, can Scaevola be judged the ultimate winner?  Roman juroconsultists did not use the Causa Curiana as precedent until Marcus Aurelius’ edict changed the law to be in accord with the verdict in this case.  Only Cicero, amongst all the eminent jurists of the age, celebrated Crassus’ eloquent victory over the letter of the law.

The whole case turned upon the question of whether intent, as conjured by Crassus, should override the plain meaning and intent of the law.  A literal rendering makes Coponius’ will fail, leaving him intestate, leading to inheritance by agnatic succession to Marcus Coponius, there being no sui heres in line before him.  Crassus may have been right about the late Coponius’ intentions, but his argument opened the door (although not entered into for two centuries) for every will to be challenged, no matter how clear and precise the language.  Disputations would follow over the meaning of the commonest words, for, where there is a will, there would be a relative with an opportunistic lawyer, as the litigiousness of our own society has shown.


Cicero, Marcus Tullius. (1960) The Brutus.  Loeb Classical Library.  Cambridge, MA.

Cicero, Marcus Tullius. De Inventione. (1960)  Loeb Classical Library. Cambridge, MA.

Cicero, Marcus Tullius (Michael Grant, trans.). (1986) Murder Trials.  Dorset Press. New York.

Cicero, Marcus Tullius.  (1960) Topica. Loeb Classical Library. Cambridge, MA.

Plutarch. (1965)  Makers of Rome. Penguin Books. New York.

Macaulay, Thomas B. (1905) Lays of Ancient Rome. Longsmans, Green & Co. New York.

Schultz, F.  History of Roman Legal Science. Oxford.  Clarendon Press

Wieacker, Franz. (1967)   The Causa Curiana and Contemporary Roman Jurisprudence.

The Irish Jurist, Vol. 2, #1, pp. 150-164.


1.)  Wieacker, p. 151, note (1.)

2.)  Nichols, p. 123

3.)  Nichols, p. 124

4.)  Nichols, p. 127, and Gaius, 101-104

5.)  Nichols, p. 199

6.)  Nichols, p. 198

7.)  Nichols, p. 249

7.)  Plutarch, Life of Cato  p. 124

8.)  Cicero, The Orator 180

9.) Cicero, De Inventione, 122: Postea: Si filius ante moritur, quam in tutelam suam

venerit, tum mihi dicet  heres esto.

10.) Cicero, The Orator, 244

11.) Cicero, The Orator, 180

12) Cicero, The Brutus, 196

14.) Cicero, The Orator, A 180

15.) Cicero, In Defense of Aulus Cluentius Habitus, p. 213

16.) Cicero, The Orator, 243

17.) Cicero, De Topica, 44

18.) Cicero, The Orator, 240

19.) Schultz, p. 78

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