Lucius Seneca - Yale Required Reading - Collected Works (Vol. 2)

"But what if the cases are not trivial, but often of the utmost importance, in which disputes arise concerning points of civil law? What impudence must that advocate have who dares to appear in cases of such a nature without any knowledge of that law? What case, for instance, could be of more consequence than that of the soldier, of whose death a false report was brought home from the army, and his father, through giving credit to that report, altered his will, and appointed another person, whom he thought proper, to be his heir; and after the father himself died, the affair, when the soldier returned home and instituted a suit for his paternal inheritance, came on to be heard before the centumviri? The point assuredly in that case was a question of civil law: whether a son could be disinherited of his father's possessions, whom the father neither appointed his heir by will, nor disinherited by name? 38

"On the point too which the centumviri decided between the Marcelli and the Claudii, two patrician families, when the Marcelli said that an estate, which had belonged to the son of a freedman, reverted to them by right of lineage, and the Claudii alleged that the property of the man reverted to them by right of clanship, was it not necessary for the pleaders in that case to speak upon all the rights of lineage and clanship? 39As to that other matter also, which we have heard was contested at law before the centumviri, when an exile came to Rome, (who had the privilege of living in exile at Rome, if he attached himself to any citizen as a patron,) and died intestate, was not, in a case of that nature, the law of attachment, 40obscure and indeed unknown, expounded and illustrated by the pleader? When I myself lately defended the case of Sergius Orata, on a private suit against our friend Antonius, did not my whole defence turn upon a point of law? For when Marius Gratidianus had sold a house to Orata, and had not specified, in the deed of sale, that any part of the building owed service, 41we argued, that for whatever encumbrance attended the thing sold, if the seller knew of it, and did not make it known, he ought to indemnify the purchaser. 42In this kind of action our friend Marcus Bucculeius, a man not a fool in my opinion, and very wise in his own, and one who has no aversion to the study of law, made a mistake lately, in an affair of a somewhat similar nature. For when he sold a house to Lucius Fufius, he engaged, in the act of conveyance, that the window-lights should remain as they then were. But Fufius, as soon as a building began to rise in some part of the city, which could but just be seen from that house, brought an action against Bucculeius, on the ground that whatever portion of the sky was intercepted, at however great a distance, the window-light underwent a change. 43Amidst what a concourse of people too, and with what universal interest, was the famous case between Manius Curius and Marcus Coponius lately conducted before the centumviri! On which occasion Quintus Scaevola, my equal in age, and my colleague, 44a man of all others the most learned in the practice of the civil law, and of most acute genius and discernment, a speaker most polished and refined in his language, and indeed, as I am accustomed to remark, the best orator among the lawyers, and the best lawyer among the orators, argued the law from the letter of the will, and maintained that he who was appointed second heir, after a posthumous son should be born and die, could not possibly inherit, unless such posthumous son had actually been born, and had died before he came out of tutelage: I, on the other side, argued that he who made the will had this intention, that if there was no son at all who could come out of tutelage, Manius Curius should be his heir. Did either of us, in that case, fail to exert ourselves in citing authorities, and precedents, and forms of wills, that is, to dispute on the profoundest points of civil law? 45

"I forbear to mention many examples of cases of the greatest consequence, which are indeed without number. It may often happen that even very important cases may turn upon a point of law; for, as an example, Publius Rutilius, the son of Marcus, when tribune of the people, ordered Gaius Mancinus, a most noble and excellent man, and of consular dignity, to be expelled from the senate; on the occasion when the chief herald had given him up to the Numantines, according to a decree of the senate, passed on account of the odium which he had incurred by his treaty with that people, and they would not receive him, 46and he had then returned home, and had not hesitated to take his place in the senate; the tribune, I say, ordered him to be expelled from the house, maintaining that he was not a citizen; because it was a received tradition, that he whom his own father, or the people, had sold, or the chief herald had given up, had no postliminium 47or right of return. What more important case or argument can we find, among all the variety of civil transactions, than one concerning the rank, the citizenship, the liberty, the condition of a man of consular dignity, especially as the case depended, not on any charge which he might deny, but on the interpretation of the civil law? In a like case, but concerning a person of inferior rank, it was inquired among our ancestors, whether, if a person belonging to a state in alliance with Rome had been in slavery amongst us, and gained his freedom, and afterwards returned home, he returned by the right of postliminium, and lost the citizenship of this city. May not a dispute arise on a point of civil law respecting liberty, than which no case can be of more importance, when the question is, for example, whether he who is enrolled as a citizen, by his master's consent, is free at once, or when the lustrum is completed? As to the case also, that happened in the memory of our fathers, when the father of a family, who had come from Spain to Rome, and had left a wife pregnant in that province, and married another at Rome, without sending any notice of divorce to the former, and died intestate, after a son had been born of each wife, did a small matter come into controversy, when the question was concerning the rights of two citizens, I mean concerning the boy who was born of the latter wife and his mother, who, if it were adjudged that a divorce was effected from a former wife by a certain set of words, and not by a second marriage, would be deemed a concubine? For a man, then, who is ignorant of these and other similar laws of his own country, to wander about the forum with a great crowd at his heels, erect and haughty, looking hither and thither with a gay and assured face and air, offering and tendering protection to his clients, assistance to his friends, and the light of his genius and counsel to almost all his fellow-citizens, is it not to be thought in the highest degree scandalous?

FOOTNOTES

1 Cretionibus . An heir was allowed a certain time to determine, cernere, whether he would enter upon an estate bequeathed to him, or not. See Cic. ad Att. xi. 12; xiii. 46; Gaius, Instit. ii. l64; Ulpian, Fragm. xxii. 27; Heinecc. Syntagm. ii. 14, 17.

2Marcus Pupius Piso Calpurnianus, to whom Cicero was introduced by his father, that he might profit by his learning and experience. See Ascon. Pedian. ad Pison. 26; Cic. Brut. 67; De Nat. Deor. 7, 16.

3C. xx.

4See Val. Max. iv. 5. 4.

5 Animi atque ingenii celeres quidam motus . This sense of motus, as Ellendt observes, is borrowed from the Greek kinesis, by which the philosophers intimated an active power, as, without motion, all things would remain unchanged, and nothing be generated. See Matth. ad Cic. pro Sext. 68, 143.

6 Tametsi id accidere non potest . 'Quamvis id fieri non possit, ut qui optime dicit, in exordio non perturbetur.' Proust.

7He seems to be Quintus Fabius Maximus Eburnus, who was consul 116 B.C., and who, it is probable, presided as praetor on the occasion of which Crassus speaks. Ellendt.