Law and Rhetoric in the Causa Curiana · 5. On the influence of Hermagoras in the development of...

JOHN W. VAUGHN

Law and Rhetoric in the Causa Curiana

THE EMINENT PHILOLOGIST Johannes Stroux published in 1926 a work which posited the considerable influence of Greek rhetorical theory on the

development of Roman jurisprudence in the Republic.1 Stroux maintained that the archaic rigidity of Roman juristic interpretation (based, as it were, on

analyzing from the "letter" of the law) gradually gave way to the Aristotelian

concept of to epieikes, aequitas, under the influence of the Greek rhetorical tradition which had provided Roman orators with arguments for use in court based on the "spirit" of the law. Fundamental to his thesis is his analysis of the evidence provided by Cicero for the famous causa Curiana (ca. 92 B.c.), which

pitted the most eminent jurisprudens of the day, Q. Mucius Scaevola Pontifex, against the brilliant orator L. Licinius Crassus, in a trial before the Centumvi ral court on the validity and construction of a will.2

I should like to thank Elaine Fantham, John Crook, Peter Stein, Geoffrey Woodhead and the

anonymous readers for their invaluable advice and criticism. 1. Summum ius, summa iniuria. Ein Kapitel aus der Geschichte der interpretatio iuris (Leipzig/

Berlin 1926; republished in Romisches Rechtwissenschaft und Rhetorik [Potsdam 1947]). For sum maries of the reaction to this work see A. Schiller, "Roman Interpretatio and Anglo-American Interpretation and Construction," pp. 79-82 in An American Experience in Roman Law (Gottingen 1971); F. Serrao, Classi partiti e legge nella Repubblica Romana (Pisa 1974) 142-48; W. Stroh, Taxis und Taktik (Stuttgart 1975) 85-88; A. Schiller, Roman Law: Mechanisms of Development (The Hague/New York 1978) 572-77, to which add Watson's discussions in The Law of Succession in the Later Roman Republic (Oxford 1971) 53f., 94-96, and Law Making in the Later Roman Republic (Oxford 1974) 106f., 129-31; and R. Bauman, "The 'Leges iudiciorum publicorum' and their Interpre tation in the Republic, Principate and Later Empire," ANRW 2, 13 (Berlin 1980) 112-16.

2. Cic. De Orat. 1.39.180, 1.57.242-245, 2.6.24, 2.32.140 f., 2.54.220-223; Brut. 39.144 f., 52.194-53.199; Top. 10.44; Pro Caec. 18.52f., 67-70; Quint. 7.6.9-10 appears to be derived from

? 1985 BY THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

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VAUGHN: Law and Rhetoric in the Causa Curiana 209

A certain Coponius had drawn up a will and had named an as-yet-unborn son his heir. He appointed Manius Curius as substitute heir to succeed to the estate in the event that his son should die before reaching his majority. Copo nius then died and no son was born. Curius entered the inheritance on the

ground that the substitution remained valid in the absence of an heir given the intent of the testator; the proximus agnatus, Marcus Coponius,3 pleaded his claim based on intestacy by suing for the revocation of the will on the ground that a prior condition (namely, the birth of a son) had not been fulfilled. Scaevola pleaded on behalf of the family, Crassus on behalf of Curius. The

great orator persuaded the court in favor of his client. We are to see in

Crassus' victory, according to Stroux, an equitable decision based on judicial acceptance of the philosophical concept of aequitas and in Scaevola's defeat the

rejection of a juristic interpretation founded on a narrow and formalistic exege sis of the written word (scriptum).4

Much of the considerable literature generated by Stroux's monograph has been devoted to testing the validity of his overall thesis by searching the juristic writings for evidence of the technical vocabulary of the Greek rhetoricians, especially the status system of Hermagoras expounded by Cicero in the De

Inventione.s It is the purpose of the present work to examine the legal question

Cicero. The case discussed at Cic. De Inv. 2.42.122 f. certainly alludes to the causa Curiana despite the fact that the parties in the suit are not identified (see infra n.13). The literature on the trial is enormous. In addition to the works cited above see B. Perrin, "La substitution pupillaire a

l'6poque de Ciceron," RHDFE 27 (1949) 335-76, 518-42; F. Wieacker, "The Causa Curiana and

Contemporary Roman Jurisprudence," I 2 (1967) 151-64 (cf. lura 20 [1967] 468-75); U. Wesel, "Zur Deutung und Bedeutung des Status Scriptum et Sententia," TR 38 (1970) 350-55; M. Fuhr

mann, "Philologische Bemerkungen zur Sentenz 'summum ius summa iniuria,' " Studi Volterra 2

(1971) 53-81; H. Wieling, Testamentsauslegung im Romischen Recht (Minchen 1972) 7-15; G. Turiel de Castro, De Causa Curiana (Salamanca 1976) passim; G. Falchi, "Interpretazione 'tipica' nella 'causa Curiana,'" SDHI 46 (1980) 383-430; R. Bauman, Lawyers in Roman Republican Politics (Munchen 1983) 341-51; J. Tellegen, "Oratores, Iurisprudentes and the 'Causa Curiana,' " RIDA 30 (1983) 293-311. See now B. Frier, The Rise of the Roman Jurists (Princeton 1985) 135 37. The present work follows upon M. Bretone's suggestion ('II giureconsulto interprete della

legge," Labeo 15 [1969] 310) that the question of the relationship between law and rhetoric should be approached by distinguishing specific individuals and cultural trends rather than by setting up "law" and "rhetoric" as abstract and immutable categories.

3. The proximus agnatus alone was entitled to contest: M' Curii causa Marcique Coponi (De Orat. 1.39.180). The testator's name is derived from that of his agnati. Cicero's "agnati" (De Inv.

2.42.122) and Quintilian's "propinqui" (7.6.10), while perhaps indicating that the agnate had the

support of his family, should not be pressed. 4. Stroux (supra n.1) 33-35. 5. On the influence of Hermagoras in the development of Greek rhetoric see G. Kennedy,

The Art of Persuasion in Greece (Princeton 1963) 303-21, and for Hermagoras' influence on

Cicero, the same author's The Art of Rhetoric in the Roman World (Princeton 1972) 126-36, and H. Caplan, ed. [Cicero] Ad Herennium, Loeb Classical Library (Cambridge, Massachusetts 1954) 32f. note c, 90f. note b. On the possible relationship between the rhetorical system and the

development of Roman jurisprudence see the bibliography in B. Schmidlin, "Rhetorik, Dialektik und juristische Regelbildung," ANRW 2, 15 (Berlin 1976) 128-30, to which add Himmelschein,

Symbolae Friburgenses in honorem 0. Lenel (Leipzig 1931) 385-422; E. Bund, Studi Volterra

(Milan 1971) I, 571-79; F. Bona, "L'ideale retorico ciceroniano ed il 'ius civile in artem redi

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210 CLASSICAL ANTIQUITY Volume 4/No. 2/Fall 1985

at issue and Cicero's evidence both for Coponius' will and for the arguments of Scaevola and Crassus during the trial.

Through the legal device of testamentary substitution the testator had the

opportunity of naming a person to succeed to his estate in the event that his designated heir did not inherit.6 Two types of substitution were available. The

first, vulgar substitution (substitutio vulgaris) took the form Titius mihi heres esto. Si Titius mihi heres non erit, tunc Seius heres esto. By using this form the testator made no conditions upon the substitute's institution as heir except that he was to come second after the named heir, who, for whatever reason, could not or did not accept his inheritance. By the operation of the old maxim semel heres semper heres two heirs could not be designated for the same inheritance.7 Thus when Titius entered the estate he became the sole heir and Seius lost all claim. Only in the event that Titius did not accept his inheritance did Seius become the testator's heir.

The second type, pupillary substitution (substitutio pupillaris) was available to a pater who in naming his son his heir designated a substitute to inherit in the event that the son should die before reaching the age at which he could

make his own will. The formula for pupillary substitution ran as follows: Titius

filius meus mihi heres esto. Si filius ante moriatur quam in suam tutelam venerit, Seius heres esto. The formula prompted considerable debate. If the son were to become heir but not reach his majority, a second heir was substituted. Thus it could be said that in violation of tradition the pater had named two heirs to the

same estate both of whom could enter as heirs. The problem could be solved

by suggesting that the son did not become heir until the condition that he reach his majority was met. In the event that he did not reach his majority, the substitute would enter as heir to the father. On the other hand it could be

argued that the pater had written two wills: his own instating his son, and his son's instating the substitute. By this reasoning the substitute could be con sidered the heir only to the son who had succeeded his father and who had died

during his infancy. The late Republican evidence indicates that the question

gere'" SDHI 46 (1980) 282-382; M. Herberger, Dogmatik (Frankfurt 1981) 46-54; T. Giaro, Excusatio Necessitatis nel Diritto Romano (Warsaw 1982) 38-40. Of considerable importance for the controversia ex scripto et sententia, on which the causa Curiana came to hinge, are U. Wesel,

Rhetorische Statuslehre und Gesetzesauslegung der romischen Juristen, Ann.. Univ. Sarav., Hft. 29

(Koln 1967), and B. Vonglis, La lettre et I'esprit de la loi dans la jurisprudence classique et la

rhetorique, Publ. de l'Inst. delDroit Romain de l'Univ. de Paris 24 (Paris 1968); Fuhrmann (supra n.2) passim; Wieling (supra n.2) 13-15; J. Martin, Antike Rhetorik (Miinchen 1974) 46-48.

6. On the types of substitution see G. II.174-184; D. 28.5.24, 29.2.69, 38.16.9; Inst. 2.15.16; C. 6.26; W. Buckland, A Text-Book of Roman Law,3 rev. P. Stein (Cambridge 1975) 303 n.1; M.

Kaser, Das romische Privatrecht2 (Munchen 1971) I, 688-90 (with Nachtrage II, 609); J. A. C.

Thomas, Textbook of Roman Law (Amsterdam 1976) 491-93 with refs.; B. Biondi, Successione testamentaria e donazioni (Milan 1955) 264f.; P. Voci, Diritto ereditario romano (Milan 1963) II, 160ff.; M. Amelotti, II testamento romano (Firenze 1966) 123-30; Falchi (supra n.2) 412-23.

7. G. II.184. A. Watson, Succession (supra n.1) 59f. and "Some Cases of Distortion by the Past in Classical Roman Law," TR 31 (1963) 73-75; Wieling (supra n.2) 9; Falchi (supra n.2) 402-6.

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was still being settled on a practical basis.8 Cicero describes and leaves unre solved a situation in which a testator had used the formula to instate his son,

who then died a minor after having been made an heir (De Inv. 2.21.62). If the substitute were considered the heir to the father, the legacy should fall into

intestacy since it had never belonged to the father's estate. If, however, the substitute were held to be the heir to the son, the legacy would become part of the substitute's inheritance.

These ambiguities led to the development of a formula that combined both

types of substitution: Titius filius meus mihi heres esto. Sifilius meus mihi heres non erit, sive heres mihi erit et is prius moriatur quam in suam tutelam venerit, tunc Seius heres esto. The pupillus was unconditionally instituted as heres pa tris, but the substitute could inherit as heir to the testator if for any reason the son did not become the heir (si filius meus mihi heres non erit.) Thus, according to Gaius, the testator first instates his son as his heir, then the substitute as his heir if for any reason his son does not inherit, and finally the substitute as heir to his son if the son after entering upon his inheritance dies an impubes.9

It has been held that Coponius made his will using the strict form of

pupillary substitution. Since this form presumed the existence of a son (filius meus mihi heres esto) and yet Coponius clearly never had a son,10 Coponius, we are told, must have been overly confident that his wife was pregnant and would bear a son, must have made his will for the purpose of instating this unborn son, and must have died shortly thereafter (i.e., before he could deter mine that his wife was not in fact pregnant).11 This reconstruction forces us to

acknowledge that Coponius had ignored the obvious and very real probability that his familial and testamentary expectations would fail. He has not con sidered the possibility that his wife was mistaken about her pregnancy or that she might have a daughter or that the pregnancy might end in a miscarriage. Furthermore, he has neglected to clarify the status of the substitute Curius, for even if a son were born and died in his infancy, the question would remain: is

Curius the heir only to the son, or to the testator as well?

In circumstances comparable with these the childless Cnaeus Magius acted

8. For a convenient summary of the debate see Watson, Succession (supra n.1) 59f. and at p. 55 his discussion of the doubtful case at Cic. Verr. 2.1.41.104 f.; Wieling (supra n.2) 10; Tellegen (supra n.2) 308; Falchi (supra n.2) 411.

9. G. II. 180 siquidem non extiterit heres filius, substitutus patris fit heres; si vero heres extiterit

filius et ante pubertatem decesserit, ipsi filio fit heres substitutus. 10. Cic. Pro Caec. 18.53 filius non modo non mortuus, sed ne natus quidem esset. Cf. Cic. De

Orat. 1.39.180, 2.32.141; De Inv. 2.42.122; Brut. 52.195. 11. Thus Wieacker (supra n.2) 155 n.12 states: "It might be supposed that a testator would

institute a postumus only if he felt his death to be imminent" (so Schiller, Roman Law [supra n.1] 573) "and simultaneously had to reckon with the birth of a son after his death; if this did not

happen the only reasons could be either that he was mistaken in thinking that his wife was

pregnant" (so Biondi [supra n.6] 264, Martin [supra n.5] 47) "or that a daughter was born, or that a son was born dead. Coponius obviously had neglected to combine pupillary substitution with a

vulgar substitution, because excessive confidence led him not to reckon with these possibilities."

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much more sensibly (Cic. Clu. 33-36). Magius, who feared that he would soon die of an illness, named his nephew, the young Oppianicus, his heir. But when he learned that his wife was pregnant, Magius set aside for her a large sum, which she would receive in the event a son was born (si qui natus erit) as a

charge on his future son's inheritance. He also directed that in the absence of a son the second heir, Oppianicus, would inherit and she would receive nothing (ab secundo herede nihil legat). He further insisted for security reasons that she

was to live with his mother and not enter any other house until the child was

born, and he deliberately refrained from naming the elder Oppianicus (the father of the named heir) guardian to his future son because of his suspicions about Oppianicus' character. Magius therefore named his living relative Oppi anicus Junior the heir but added a clause to enable his unborn son to enter the estate and barred an action on the part of his wife by making her legacy contingent on the son's birth. Thus he effectively avoided intestacy by address

ing all of the possible circumstances.12 Cicero's evidence for Coponius' will indicates that he too had attempted to

address the special needs of his estate: si mihi filius genitur unus pluresve, is mihi heres esto. Deinde quae assolent. Postea: si filius ante moritur quam in suam tutelam veniret, turn mihi ille heres esto (De Inv. 2.42.122).13 Coponius qualified the institution of his son by writing si filius mihi genitur, thus ac

knowledging openly his uncertainty about whether he would have offspring.14 Since, therefore, Coponius cannot be said to have named as existing a nonexis tent son, there is little to support the scenario of a foolish man in extremis who has counted his chickens before they have hatched. He may of course have drawn up the will at a time when he thought his wife pregnant, but this is

unlikely if the words unus pluresve are admitted.15 Since he only expresses the

12. Magius, however, underestimated the inventiveness of the elder Oppianicus, who paid the widow out of his own pocket the amount of her legacy in exchange for an abortion and then

married her himself. 13. Watson, Succession (supra n.1) notes, p. 95 n.2, that Wieacker may be overstating his

case if the will discussed at De Inv. 2.42.122 does allude to the causa Curiana. Corroboration for Watson's argument and additional support for accepting the validity of the will cited in the De Inventione can be found in Cicero's discussion of the causa Curiana at De Orat. 2.32.141 cum

scriptum ita sit "si mihi filius genitur, isque prius moritur," et cetera, "tun mihi ille sit heres" (cf. Top. 10.44 ... qui testamento sic heredes instituti, ut si filius natus esset). See Fuhrmann (supra n.2) 61 n.20; Falchi (supra n.2) 390 n.12, 412-13; Wieling (supra n.2) 9; Tellegen (supra n.2) 305.

14. A child designated as postumus had to be born after the making of the will and no later than ten months after the death of the testator. The pupillus did not have to be conceived at the time of testation (despite F. Schulz, Classical Roman Law [Oxford 1951] 259f.): D. 28.2.4 (Ulp. 3 ad Sab.) placet omnem masculum posse postumum heredem scribere, sive iam maritus sit sive nondum uxorem duxerit; nam et maritus repudiare uxorem potest et qui non duxit uxorem, postea

maritus effici. Nam et cum maritus postumum heredem scribit, non utique is solus postumus scriptus videtur, qui ex ea quam habet uxorem ei natus est, vel is qui tune in utero est, verum is quoque, qui ex quacumque uxore nascatur.

15. Unless, as Wieling wryly comments (supra n.2) 9 n.17, Coponius was counting on having twins!

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possibility of his having children he may actually have written the will years before his death, even during a previous marriage, perhaps as a young man

contemplating future fatherhood.16 Furthermore, Coponius has addressed the

problem of the status of the substitute by inserting the pronoun mihi in the final clause of the testament and thereby naming Curius heir to himself. If the

pronoun had been omitted the agnates could assert that Curius had no claim on the estate, since Coponius intended that he was to inherit only as heir to the son (whether or not one was born), as compensation, perhaps, for his actual or

anticipated guardianship of the infant.17

Although Coponius has given understandable instructions for the disposi tion of his estate if and after a son is born (sifilius mihi genitur) and if and after a son has died (si filius ante moritur quam.. .), he has not specifically ad dressed the circumstance if and after no son were born at all (sifilius mihi non

genitur). 8 Although the first condition of the will indicates his own uncertainty about whether he would have children, the remainder of the document oper ates logically and grammatically on the presumption of the son's existence and, for the substitution of Curius, on the presumption of the son's death. Curius, however, entered the estate on the ground that the failure of the son's birth did not prejudice Coponius' intentions in his favor. The agnates contested on the

ground that the failure of the birth destroyed the will and thereby rendered irrecoverable the testator's intentions.

The Centumviri were obliged to weigh these claims in the balance. Would the court in finding for Curius overstep its judicial authority by in essence

writing a new will for the decedent? Would the court in finding for the agnate ignore the testator's wishes on behalf of Curius in order to uphold the logic of the text? Scaevola's task was clear from the outset: he would argue for his

client strictly on the basis of the text itself and amplify for the benefit of the court on the inviolability of the law. Crassus' position was equally clear: he

16. Persons sui iuris achieved testamentary capacity at age 14 (G. 1.196), which corresponds closely with the traditional age for the assumption of the toga virilis. Few perhaps would have made their wills at so young an age, but the device of pupillary substitution, designed, as it were, to suspend the estate only until the son had reached that age, might have been viewed by the son and his agnates as strong encouragement (if not indeed a paternal directive) to make his own will as soon as possible. Coponius at any rate was married when he wrote his will: paterfamilias cum liberorum haberet nihil, uxorem autem haberet (De Inv. 2.42.122). Cato Maior certainly had made his will at a young age since he considered one of his only three mistakes to have been that he had

gone without a will for one day (Plut. Cato Maior 9.6). On the prevalence of testacy among the Romans see Professor Crook's definitive refutation (PCPS 19 [1973] 38-44) of D. Daube's rather too witty thesis to the contrary (Roman Law: Linguistic, Social and Philosophical Aspects [Edin burg 1969] 71-75, and "The Preponderance of Intestacy at Rome," TulLRev 39 [1965] 253-62).

17. On the significance of the inserted pronoun as a qualifier of the testator's intentions see

Tellegen (supra n.2) 308 n.29; Wieling (supra n.2) 10 n.23; Falchi (supra n.2) 412-23 and cf. D. 28.6.38.1 si filius meus intra annum decimum decesserit, Titius ei heres esto (cf. D. 28.6.43.1, 28.6.31, 28.6.2.5-6, 28.6.8, 28.6.21, 28.6.31.1, 28.6.36).

18. The words found in the developed formula (si heres non erit sive) would have been sufficient: so Kaser (supra n.6) 690; Wieling (supra n.2) 11; contra Tellegen (supra n.2) 305.

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would certainly expound on the claims of intention but he would also have to address the juridical question in order to persuade the Centumviri that he was not asking them to render an unprincipled decision.'9

In the Brutus (52-54.193-199) Cicero provides a summary of the argu ments used by both Scaevola and Crassus before the Centumviri.20 In the context of his discussion Cicero observes that a reasonably capable or even an

incompetent orator will succeed unless his opponent can provide the audience with something better for comparison. The causa Curiana is cited as illustrating by contrast that in the situation in which the first speaker (Scaevola) had orated with exceptional skill, his opponent (Crassus) was able to persuade the audience on his behalf and thereby compel his listeners to criticize their former lack of judgment.21

Cicero's overall evaluation of Scaevola's oratory is decidedly favorable: ut

eloquentium iuris peritissimus Crassus, iuris peritorum eloquentissimus Scaevola

putaretur (Brut. 39.145). The jurisprudens is described as beng extremely clever at discovering arguments appropriate not only to the letter of the law but also to equity: Qui quidem cum peracutus esset ad excogitandum quid in

lure aut in aequo verum aut esset aut non esset, turn verbis erat ad rem cum

summa brevitate mirabiliter aptus. Cicero then concludes the passage: Qua re sit nobis orator in hoc interpretandi explanandi edisserendi genere mirabilis, sic ut simile nihil viderim.22 Not only does Cicero praise (as would be expected)

Quintus' knowledge of the law (Brut. 39.145 f., 52.197; De. Orat. 1.39.180) but also his oratorical terseness of expression, clarity, and simplicity (Brut. 30.115, 39.145 f., 52.197; De Orat. 1.39.180, 1.53.229). The deficiencies are in the areas of emotional appeal, embellishment, and debate (Brut. 39.146; cf.

30.115), but these criticisms are offered as qualifications of a strongly positive estimation. In a long digression (Brut. 40.147-150) Cicero has Brutus interrupt

19. Wieacker (supra n.2) 160; Falchi (supra n.2) 400. 20. H. Malcovati, ORF (Torino 1955) 245-48, 260-62. For Crassus, see the references in

Kennedy, Art of Rhetoric, 84 n.113. For Scaevola, see Minzer, RE s.v. Mucius (22) cols. 437-42; Kibler, cols. 442-46, "M. als Jurist," accepts Stroux's reconstruction of the causa Curiana without additional comment; G. Lepointe, Quintus Mucius Scaevola (Paris 1926); Frier (supra n.2) 143-45, 155-71. Scaevola Pontifex is occasionally confused with other members of his gens, e.g., E.

Badian, Studies in Greek and Roman History (New York 1964) 46, 57; S. Bonner, Roman Decla mation (Berkeley 1949) 46.

21. Hic ille de populo iudex, qui separatim alterum admiratus esset, idem audito altero iudi cium suum contemneret; at vero intellegens et doctus audiens Scaevolam sentiret esse quoddam uberius dicendi genus et ornatius (Brut. 53.198).

22. Scaevola's oratorical abilities have come under attack, most notably by Fritz Schulz, who, in the additional notes to his History of Roman Legal Science (Oxford 1953) 335f., in an attempt to "give a correct translation of Cicero's pronouncements on Q. Mucius' oratory," concludes that Scaevola is to be included in Cicero's evaluation of the jurisprudentes as a group: "The criticisms all come to this, that the jurisconsults spoke too tersely, too objectively, too juristically, in other words unrhetorically." The evidence adduced here renders this position untenable (cf. Brut. 52.197: Quae quidem omnia cum perite et scienter item breviter et presse et satis ornate et perele ganter diceret, quis esset in populo qui aut exspectaret aut fieri posse quicquam melius putaret?).

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the narrative with feigned ignorance of Scaevola's ability as an orator. This

provides a vehicle for an extended comparison between the oratorical talents of Crassus and Scaevola through which the unique qualities of each orator are

clearly defined. Cicero in fact notes the concern that he may be thought to have embellished his account and thus concludes by stating the truth of his remarks (Brut. 40.149): Licet omnia hoc modo; sed vereor ne fingi videantur

haec, ut dicantur a me quodam modo; res se tamen sic habet.23 Scaevola relied on his legal expertise to analyze the reasons for the failure

of Coponius' will, but he followed the conventions of the rhetorical tradition in both the arrangement and the selection of his arguments.24 In his discussion of the means of invention applicable to judicial cases concerning legal issues, the

Auctor ad Herennium provides rules for the types of arguments available to the orator on both sides of the "letter" vs. "spirit" question (2.9-10, 13-14). For the orator speaking in support of the letter, the Auctor first prescribes the statement of facts, a eulogy of the framer, the reading aloud of the text, and the questioning of the opponents. He advises that the judge be asked to con sider which should be followed, a document carefully written or an interpreta tion cleverly invented. The advocate should then disparage his opponent's interpretation of the author's intent and ask what risk the writer would have taken by adding information to spell out these presumed intentions, or whether he could not write them out in full. He should then state what the author's

intentions were and why the written document suited those intentions. Finally, examples of judgments awarded on the basis of decisions to uphold the written word should be cited.

Cicero introduces his summary of Scaevola's speech with praise for its rhetorical qualities: qua re quis ex populo, cum Q. Scaevolam pro M. Coponio dicentem audiret in ea causa, de qua ante dixi, quicquam politius aut elegantius aut omnino melius aut exspectaret aut posse fieri putaret (Brut. 52.194). Scae vola discussed the legal aspects of succession, including the requisite formulae

23. It is equally unlikely (despite Schulz' suggestion (supra n.22) p. 336) that Cicero's praise is based on deference to his former teacher. If that were true, one would expect kinder words for

Q. Mucius Scaevola Augur, Crassus' father-in-law and the man to whom Cicero on assuming the

toga virilis (91 B.C.) was entrusted by his father for his education. Cicero's only comment is that the

Augur was no orator: Mucius autem Augur, quod pro se opus erat, ipse dicebat . . is oratorum in numero non fuit (Brut. 26.102; cf. De Orat. 1.49.214).

24. See Falchi (supra n.2) 396-99; Tellegen (supra n.2) 292-96. Watson, Law Making (supra n.1) 130. Wieacker (supra n.2) 158f., however, characterizes Scaevola as an "old jurisprudens" who argued "firmly and drastically," attempted unsuccessfully "to accommodate himself to the rhetorical style," and was induced "to enter the legal arena" because of some "duty of friendship for the Coponian." Watson Succession (supra n.1) 95, states that "so far as we know, Scaevola never appeared as orator in any other case," a view somewhat modified in Law Making (p. 107): "there is a hint that he also argued other suits." The hint is rather that he argued many suits, although it is uncertain as to whether or not these included private trials: et Quintus Mucius enucleate ille quidem et polite, ut solebat . . (Brut. 30.115); Scaevolam-hic enim causas studiose

recipiebat (Brut. 42.155).

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for the different types of substitution and how Coponius might have written his will to allow the substitute to inherit in default of a son.25 His statements were then directed more personally to the judges themselves, who were enjoined to

recognize their responsibility and the importance of their decision-making func tion. This is achieved by an artful progression: first Scaevola argued that the

wishes of an individual, a simple man, were in danger of being disregarded for the benefit of an interpretation of the "wise"; second, that the legal traditions of the Romans were at stake since the auctoritas of his own father's opinion might in the present situation be set aside; and finally, that the institution of law itself was now in jeopardy of being severely compromised by an unjust decision.26 The arguments were then supported by citations of legal experts, precedents, and testamentary formulae.27

Scaevola focused his arguments on the topic that the Auctor places first after the statement of facts: quid iudicem sequi conveniat, utrum id quod diligenter

perscriptum sit, an id quod acute sit excogitatum. His plan was to demonstrate to the court that the text was correctly written for the sole purpose of instating a

pupillary substitute in the event a son was born: cum is probare vellet, M'. Curium, cum ita heres institutus esset, 'si pupillus ante mortuus esset quam in suam tutelam venisset' pupillo non nato heredem esse non posse (Brut. 52.195), and that Coponius might have chosen a different formula if he had wanted to

express contrary intentions: quem ad modum scribi oportuisset, si etiamfilio non nato heres institueretur (ibid. Cf. Auct. 2.9.13: deinde quaeretur quid periculi fuerit si id voluisset adscribere, aut num non potueritperscribi). Scaevola argued, therefore, against a clever analysis that would oblige the court to ignore a

correctly written document in favor of an unwritten one that suited his oppo nent's view of what Coponius had meant to write: quam captiosum esse populo, quod scriptum esset neglegi et opinione quaeri voluntates et interpretatione diser torum scripta simplicium hominum pervertere (Brut. 52.196). This last argument addressed the Auctor's advice to the orator to belittle and weaken his oppo nent's interpretation of the testator's words: deinde ea sententia quae ab adver

sariis sit excogitata et scripto adtributa contemnetur et infirmabitur (Auct. loc.

cit.). The evidence of Coponius' intentions was the text of his will (voluntatis

quasi imaginem, Cic. De Inv. 2.44.128). On the basis of Scaevola's exegesis those intentions were recoverable from the instrument only in the event that a

son was born. Since the text had failed at the conclusion of its first condition (si

mihi filius genitur, is mihi heres esto), the remainder of the document had also

25. Quem ad modum scribi oportuisset, si etiam filio non nato heres institueretur (Brut.

52.195). 26. Quam omnino multa de conservando iure civili? (Brut. 52.197). 27. Quid ille non dixit de testamentorum iure? de antiquis formulis? (Brut. 52.195; cf. De

Orat. 1.39.180 num destitit uterque nostrum in ea causa in auctoritatibus, in exemplis, in testamento rum formulis, hoc est in medio iure civili versari?).

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failed and the will as a whole had ceased to function as the imaginem volunta tis. In this fashion Scaevola neatly disposed of the Auctor's direction that the orator ascertain what the writer's intentions were: deinde a nobis sententia

reperietur (ibid.). Since Coponius' intentions presumed the existence of a son and were therefore inoperable, there was no need to argue them; to do so would be contrary to the testator's wishes: si aliud sensisse scriptor, aliud scripsisse dicetur, is qui scripto utetur haec dicet: non oportere de eius voluntate nos argumentari, qui, ne id facere possemus, indicium nobis reliquerit suae voluntatis (Cic. De Inv. 2.44.128). The logic of Scaevola's argument precludes consideration of the Auctor's topic that requires the orator to analyze why the testator meant to write what he actually wrote: causa proferetur quare id scrip tor senserit quod scripserit (Auct. loc. cit.). In the present case that question

would take the form: Why would a man write a will in which he began by acknowledging his uncertainty about having a son, then presumed the son's

existence, and finally, named a second heir to himself in case the son should die? Scaevola might argue that the question was unanswerable, but in order to arrive at that decison he would have had to discuss the will in its entirety and to

provide an explanation of why Coponius had specifically designated Curius the

reversionary heir to himself and not the heir to his son alone. Were Scaevola to

suggest the admissibility of such a discussion he would have been forced inevi

tably to acknowledge the single fact that his close scrutiny of the text had been

designed to render irrelevant-namely, that Curius and not his own client was named in the will.

Scaevola was asking the court to adjudicate in favor of an intestacy despite the institution of Curius in the will and on the basis of what might be con sidered a narrow reading of the text. It is in the context of this unhappy situation that he recognized the need to amplify his position based on the

higher claims of the law itself: quam omnino multa [dixit ille] de conservando iure civili? (Brut. 52.197). In the fictitious dialogue of the De Oratore Antonius elaborates on his contention that the orator does not need training in discip lines such as law or philosophy but only in rhetoric, and he illustrates his remarks by suggesting that were his interlocutor Crassus to have pleaded on behalf of the letter of Coponius' will, he would have made the appeal (as

presumably Scaevola had) that the validity of all wills would depend on the decision of that court: si testamentum defenderes, sic ageres, ut omne omnium testamentorum ius in eo iudicio positum videretur (Cic. De Orat. 1.57.245).

These remarks follow Antonius' assertion that Scaevola had focused his argu ments not on strictly legal issues but, rather, on a wider appeal aimed at the

importance of maintaining the validity of a correctly written document: quid in illa causa, cum contra te diceret, attulit, quod de iure civili depromptum videre tur? Quam legem recitavit? Quid patefecit dicendo, quod fuisset imperitis occul tius? Nempe eius omnis oratio versata est in eo, ut scriptum plurimumf valere

oportere defenderet (1.57.244). Antonius' strong statement in this passage must

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reflect some of the built-in bias of the fictitious dialogue itself. Scaevola clearly discussed legal issues and indeed relied for his analysis on his father's authority as a jurisprudens.28

Cicero singles out for criticism, however, Scaevola's failure to amplify the issues at the trial of Rutilius in a manner befitting the importance of the case

(nequaquam autem [dixit] ea vi atque copia quam genus illud iudici et magni tudo causae postulabat, Brut. 30.115) and characterizes his demeanor as that of a serious critic to be feared rather than a speaker to be admired for his elo

quence (in augendo, in ornando, in refellendo magis existimator quam admiran dus orator, Brut. 39.146). In the present case Scaevola had clearly managed to

impress the Centumviri by his polished and elegant exposition,29 but the seri ous tone of his remarks may have struck the court as excessive: [Crassus] delectavit animosque omnium qui aderant in hilaritatem a severitate traduxit

(Brut. 53.197). Although Crassus might have expected that the court would be less than

willing to deny the validity of a will in which the testator's intentions appeared to support his client,30 he recognized that he could not press Curius' claim

without controverting both Scaevola's textual analysis, which had been de

signed to render the will technically inoperable, and his serious appeal on behalf of the written word, an appeal which had been made to remind the court of its judicial responsibility. While the great orator was, as Cicero tells

us, a better speaker than Scaevola, it was his custom to avoid an unequal competition with the jurisprudens by claiming an unwillingness to pretend to

legal expertise.3 In the famous digression on the nature of wit in Book 2 of the De Oratore,

Caesar observes that wit serves especially to mitigate and relax sadness and

severity and to dissolve in laughter and jest troublesome matters which cannot be easily weakened by argument.32 Crassus had used this technique against Cn. Domitius Ahenobarbus because it was apparent to him that his distinguished opponent's objection could be more easily rejected by humor than by close

argumentation.33 Caesar distinguishes two types of wit suitable for the orator

28. Quam ille multa de auctoritate patris sui, qui semper ius illud esse defenderat? (Brut. 52.197).

29. Brut. 53.198 (quoted supra n.21). Cf. Brut. 52.194 (quoted supra p. 215). 30. Cf. Quint. 7.6.10 Quis dubitaret, quin ea voluntas fuisset testantis, ut is non natofilio heres

esset, qui mortuo? sed hoc non scripserat. 31. Itaque ut Crassus mihi videtur sapientius fecisse quam Scaevolam-hic enim causas studiose

recipiebat, in quibus a Crasso superabatur; ille se consuli nolebat, ne qua in re inferior esset quam Scaevolam (Brut. 42.155).

32. Maxime quod tristitiam ac severitatem mitigat et relaxat odiosasque res saepe, quas argu mentis dilui non facile est, ioco risuque dissolvit (De Orat. 2.58.236).

33. Erat autem tanta in Domitio gravitas, tanta auctoritas, ut, quod esset ab eo obiectum, lepore magis levandum quam contentione frangendum videretur (De Orat. 2.56.230). For a discus sion of this case see G. Sumner, The Orators in Cicero's Brutus: Prosopography and Chronology (Toronto 1973) 95-97.

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in pleading cases (De Orat. 2.54.218): the first, cavillatio (ironical and/or satiri cal banter), is spread regularly throughout an entire speech (aequabiliter in omni sermone fusum); the second, dicacitas (biting wit, raillery), is pointed and concise (peracutum et breve) and reserved for the occasional barb. Both types of wit, says Caesar, are formed by nature and cannot be acquired through technical study (ars) (2.54.219). To Antonius' assertion that Caesar excelled all other men in wit, Caesar replies that such praise belongs to Crassus alone, since he had fully mastered both types and chose between them effectively (2.54.220-223): Quid in omni oratione Crassus vel apud centumviros contra Scaevolam vel contra accusatorem Brutum, cum pro Cn. Plancio diceret? . .. Nam haec perpetua contra Scaevolam Curiana defensio tota redundavit hilaritate

quadam et ioco. Significant in Caesar's remarks is the repeated statement that Crassus chose cavillatio for his response to Scaevola and that his wit informed the entire speech (in omni oratione... perpetuam... defensio tota).34

Through this display, says Caesar, Crassus "foiled35 his opponent's case and

argument" (causam illam disputationemque elusit, De Orat. 2.55.222). The touchstone for an appraisal of the tone of Crassus' remarks is the

brilliant extended image with which he began his response (Brut. 53.197): ut contra Crassus ab adulescente delicato, qui in litore ambulans scalmum repperis set ob eamque rem aedificare navem concupivisset, exorsus est, similiter Scaevo lam ex uno scalmo captionis centumvirale iudicium hereditatis effecisse. The

comparison, which followed immediately upon Scaevola's amplificatio, at once broke the spell of his opponent's auctoritas and serious demeanor (ab adules cente ... similiter Scaevolam) and effectively deflated the method by which he had arrived at his major argument and the nature of the argument itself.36 Just as the boy had chanced upon an oarlock and decided that he could build a

boat, so had Scaevola discovered an oarlock for an argument (ex uno scalmo

captionis) and decided that he could construct a complete case for it (ob eamque rem aedificare navem).37 What was the oarlock of Scaevola's argu

ment? Crassus may have been clarifying the image when, as Cicero reports, he commented that his gifted opponent had come to the realization that a person has to be born before he can die: ingenium Scaevolae, qui excogitasset [cf. repperisset] nasci prius oportere quam emori (De Orat. 1.57.243). This observa

34. Cf. De Orat. 1.57.243 multo maiorem partem sale tuo et lepore et politissimis facetiis pellexisti . .. itaque hilaritatis plenum iudicium ac laetitiae fuit; cf. Brut. 53.198 haec cum graviter turn ab exemplis copiose, turn varie, turn etiam ridicule et facete explicans earn admirationem adsen

sionemque commovit. 35. Reid's translation of elusit was adopted by A. Wilkins, Cicero: De Oratore Libri Tres

(Oxford 1892) 338. 36. It was not Crassus' purpose to ridicule Scaevola himself: parcebat enim adversarii digni

tati, in quo ipse conservabat suam (De Orat. 2.54.221). 37. For nautical analogies to the orator and his craft, see E. Fantham, Comparative Studies in

Republican Latin Imagery (Toronto 1972) 141f., 158f., and for the use of aedificare to designate the construction of a speech, see the examples cited on p. 159.

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tion had been the basis for Scaevola's assertion that Coponius' will was inop erable. The humor in Crassus' retort is obvious: Scaevola had constructed his entire case on the discovery that Coponius had neglected to say something which even unsaid was so obvious to all as to be utterly unnecessary. Crassus' sarcasm underlies the implications of the image: when people walk along the shore (in litore ambulans) they are bound to see oarlocks everywhere, but only a child of limited capacity (delicato) would pick one up in the belief that it was a unique treasure and announce it as such.

Underlying the wit of Crassus' spirited rejoinder is a well-reasoned strategy designed to defend his client's right to inherit, based on fairness (aequum) and intention (voluntas).38 The clearest indication of Coponius' subjective inten tions was the fact that he had named Curius as reversionary heir to himself as

well as the substitute heir to his son. Scaevola had argued, however, that the court was obliged to adjudicate only on the basis of the objective instrument of the testator's intentions, namely, the text of his will, and that the failure of the text had rendered inadmissible the clause of institution. Crassus recognized, therefore, that a defense of Curius' rights based exclusively on the claims of abstract justice would fail to assuage the jurors' suspicions so ably instilled by his opponent and that he had to establish the judicial viability of the entire instrument in order to use it to his client's advantage.39

In citing the causa Curiana in the Pro Caecina (18.53) Cicero acknowledges that the wording of Coponius' will was not sufficient for an uncontested acces sion by the substitute: quid, verbis satis hoc cautum erat? minime. Crassus

pressed his client's claim, however, by arguing that language in and of itself exists for the purpose of revealing the intentions of men and not for the

purpose of concealing them: quae res igitur valuit? voluntas, quae si tacitis nobis

intellegi posset, verbis omnino non uteremur; quia non potest, verba reperta sunt, non quae impedirent, sed quae indicarent voluntatem (ibid.). Thus the fact of the will's existence should assure its operability, since by using words the testator had communicated to the court his desire that it recognize its responsi

38. In his discussion of the causa Curiana in the De Inventione (2.42.122 f., 2.43.127), Cicero comments that since Crassus could not argue that the writer's original intentions had to be adjusted to meet the needs of a new situation, he defended Curius' right to inherit by using the argument that the testator had intended one thing and written another (2.43.127): contra autem dicetur si aut

prorsus aliud sensisse scriptor et scripsisse aliud demonstrabitur; ut in illa de testamento [Coponi], quam posuimus controversia. On the concept of aequitas and its connection with the status legales see A. Burge, Die Juristenkomik in Ciceros Rede pro Murena (Zurich 1974) 48-69 (with refs.);

Wieling (supra n.2) 13f.; D. N6rr, Rechtskritik in der romischen Antike (Miinchen 1974) 32-43; F. Serrao (supra n.1) 143-48, W. Stroh (supra n.1), 86 n.21.

39. Thus Crassus did not use the arguments presented by Cicero in the De Inventione

(2.40.116 f.) for a controversy founded on ambiguity. The question was not how to interpret the testator's language from the context or from his character (ex omni scriptura et ex persona scripto ris, 2.40.117), but, rather, whether or not the correct and understandable language of the complete text had invariably compromised his intentions (ex scripto et sententia).

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bility to ratify his wishes.4 This general reflection enabled Crassus to illustrate his argument from a variety of sources with examples which had demonstrated that had the words and not the intent been followed nothing could have been

accomplished: multa conligeres et ex legibus et ex senatus consultis et ex vita ac sermone communi non modo acute, sed etiam ridicule ac facete, ubi si verba, non rem sequeremur, confici nihil posset (De Orat. 1.57.243).41 The argument thus complemented Scaevola's amplificatio by reminding the jurors of the in

justice to the testator were they to find in favor of an intestacy, and at the same time called into question the sincerity of Scaevola's motives in insisting that the

will be disallowed. Crassus' appeal was designed to persuade the Centumviri to give effect to

Coponius' intentions on the basis of the language of the text at hand (ita scribere

plerosque et id valere et valuisse semper, Brut. 53.197) rather than to reject the will on the basis of what that language should have been in order to fulfill

incontestably his opponent's requirements (quantam sibi potentiam Scaevola

adsumeret, si nemo auderet testamentum facere postea nisi de illius sententia, Brut. 53.198). The justification for this directive was based on the premise that Scaevola had separated the form of the language from its function, had then determined on his own what the form had to be, and, finally, had used his

conception of the form to defeat the testator's intentions: tamen probasse nemini

quod defendit [Scaevola], quia verbis oppugnare aequitatem videbatur (Pro Caec.

24.67). Crassus was therefore asking the Centumviri to determine whether one man (jurisprudens notwithstanding) had the right to expect the court to base its decision and thereby bestow its authority on what he considered to be the only viable standard of language. On the basis of this rejoinder Crassus argued with the concurrence of his own father-in-law and many learned men that the grounds on which Scaevola had pressed his client's claim were not legally compelling: ipse Crassus non ita causam apud centumviros egit ut contra iurisconsultos dic

eret, sed ut hoc doceret, illud quod Scaevola defendebat non esse iuris, et in earn rem non solum rationes afferet, sed etiam Q. Mucio, socero suo, multiqueperitis simis hominibus auctoribus uteretur (Pro Caec. 24.69).42

Stroux's thesis was based on the assumption that Scaevola as a jurisprudens argued for a literal interpretation (scriptum) in an effort to uphold the rigor of the law, while Crassus as an orator argued for an interpretation based on

40. Cf. Cic. Pro Caec. 18.52 non ex verbis aptum pendere ius, sed verba servire hominum consiliis et auctoritatibus.

41. Cf. Cic. Top. 10.44 ex eodem similitudinis loco etiam exempla sumuntur, ut Crassus in causa Curiana exemplis plurimis usus est ... quae commemoratio exemplorum valuit, and De Orat. 2.32.141 nihil ad copiam argumentorum neque ad causam vim ac naturam nomen Coponii aut Curii

pertinuit; in genere erat universo rei negotique, non in tempore ac nominibus omnis quaestio. 42. Cf. Cic. Brut. 57.243 in quo quid tibi [Crasso] iuris civilis exercitatio profuerit, non

intellego. Falchi neglects much of the evidence of the Pro Caecina and thus argues wrongly that the

argumentation on both sides was entirely juristic (cf. Frier [supra n.2] 136 n.131).

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fairness alone. This sharp distinction of role and purpose cannot be drawn. Each man argued as an orator on behalf of his client's interests, his personal opinion about the legal question at hand being of little importance and impossi ble to reconstruct. We know that Scaevola was fully capable of arguing from the writer's intention43 and that Crassus argued at least one case in defense of the "letter" of a document.44

Stroux believed that the causa Curiana ushered in a period during which

juristic interpretation was humanized by equitable principles discovered in the rhetorical handbooks and exemplified by Crassus' victory. The verdict of the

Centumviri, however, was founded on a juristic decision.45 The question before the court was whether the language of Coponius' will invariably defeated its

operability. Thus the problem facing the court was the following: could a valid

will, which qualified the testator's intentions with regard to pupillary substitu tion and had then failed, be allowed to operate under the conditions of a vulgar substitution if those intentions clearly supported the substitute? Crassus per suaded the court to find for his client on the basis of a linguistic analysis of the text.46 It has been demonstrated, moreover, that the court's decision met with considerable resistance within the legal community. The precedent won the

approval neither of Cicero's contemporaries Servius and Trebatius nor, later, of the Sabinians Iavolenus and Pomponius, and it was only finally given legal effect by a constitutio of Marcus Aurelius.47

The significance of the causa Curiana for Cicero and his contemporaries should not, however, be minimized. The trial forced a confrontation between an

unusually distinguished pair of advocates whose areas of expertise complemented each other at the outset. Furthermore, both Cicero and his opponent cited the case as authority for their respective arguments in the trial of Caecina (Pro Caec.

24.67). In the context of the citation Cicero was led to consider not only the

question of how the claims of legal authorities were to be weighed but also how the

law itself was to be discovered (67-73). When the court makes a fair decision on a

disputed point of law, Cicero says (Pro. Caec. 24.69), it does not decide against the authorities if it goes against one jurisprudens, any more than it can be said to

rely on them as a group if it supports the claims of one alone. In the end the law is

what the court says it is: id fuit ius quod iudicatum est (ibid.).

The Ohio State University

43. Cf. Brut. 39.145 (quoted supra p. 214). For additional examples see Watson Law Making (supra n.1) 125-27; B. Albanese, "VolontA negoziale e forma in una testimonianza di Q. Mucio

Scevola," Festgabe von Libtow (Berlin 1980) 156-61. 44. Cic. De Off. 3.16.67. Crassus supported the legal right of C. Sergius Orata to sue M.

Marius Gratidianus for selling him property without mentioning the existence of a servitude on the land. Antonius, relying on equity, defended Gratidianus on the ground that his client had in fact

bought the same property from Orata a few years before and that Orata would therefore have known of the existence of the servitude.

45. Thus Falchi (supra n.2) 429; Wieling (supra n.2) 13 and n.41. 46. Thus Wieacker (supra n.2) 161. 47. D. 28.6.4pr. See Kaser (supra n.6) 690; Buckland (supra n.6) 303; Begeler, ZSS42 (1927) 59.

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Law and Rhetoric in the Causa Curiana · 5. On the influence of Hermagoras in the development of...

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