Tertullian the Jurist?

In 533 AD the Emperor Justinian1 published a massive volume assembled by his legal staff and known as the Digest of Roman Law, or the Pandects (literally 'all-received')2. It contained a digest of the legal opinions of the Roman jurists3 over a period of nearly a millenium, and made it possible for students to find out what the Roman law actually was, after the long period of anarchy. A legal code was also issued at the same time.

In these words, we find reference to the opinions of a jurist named Tertullianus.4 He is quoted as the author of a single book, De Castrensi Peculio and 8 books of Quaestiones. There are four quotations from the former; five from the latter. Peculium is the personal possessions of a soldier, acquired during his service, or the pocket-money of a slave (who might save it up and buy his freedom). Castrense peculium refers strictly to the former. The Quaestiones relate to family law. The jurist is quoted by Ulpian for a verbal opinion of Sextus Pomponius, which would most naturally make him a pupil of Pomponius, whose eminence was from 130-165AD, meaning his birth cannot of been later than 155.

Is the Tertullianus the Jurist the same as our Tertullian? Opinions have varied.

In favour (e.g. Quasten):

  1. The name is uncommon.

  2. Our Tertullian makes frequent use of a legal approach to questions, in his writings.

  3. The two may have been exact contemporaries.

  4. Eusebius calls our Tertullian skilled in Roman law, and among the most illustrious at Rome.

Barnes however felt all these arguments were capable of demolition:

  1. We know no more of the jurist's name than 'Tertullianus', so we don't know that he did have the same full name. The cognomen is the same, but, while rare, it is attested elsewhere in inscriptions.

  2. Knowledge of Roman law was in no sense the exclusive preserve of a jurist, but a normal possession of any educated man, and Quintilian thought it essential for any public speaking. Since ancient education was primarily oratory, much of which was forensic at this period, few cultured individuals could or would avoid knowledge of the law. Tertullian's legal knowledge is explicable by a normal education.

  3. It is possible our Tertullian was in fact born later than 155, the last date for the jurist that would not require explanation.

  4. How much did Eusebius accurately know about Latin writers anyway?

The reader can form his own conclusion.

If anyone is interested in the opinion of a layman, my own opinion is one of ambivalence. It would be possible to demolish Barnes' arguments in the same way as he demolishes those in favour, by calling it inconclusive. In particular it seems unsafe to base much on the ignorance of Eusebius, who we know very well had access to very early, lost material, including lost works of Tertullian (like the Greek version of the Apologeticum). Barnes second point is reasonable, but points 1 and 3 are weak. The real problem with the identification, however, is simply the weakness of the evidence in its favour. I feel therefore the case in both directions is unproven, and is best left at that. Unless you have to earn a living by giving an opinion, of course, in which case it could be argued either way!

References

Please consult the bibliography for more details.

1. Most of this general stuff from Justinian, The Digest of Roman Law : theft, rapine, damage and insult, edited and translated by C.F.Kolbert, Penguin Classics, London 1979.

2. Pandects is actually an English word, and is listed as such in the Oxford English Dictionary. It refers to the Digest of Roman Law.

3. A jurist (iurisconsultus) was not a professional in the modern sense, but rather a man from the Patrician class who was specially learned in law, probably only as one part of his public career, whose expertise was recognised by others. Under some circumstances the emperor could give some jurists the right to give a legally binding opinion, if consulted on a matter of law, although quite how this worked is unclear.

Famous jurists included Sabinian, Paulus, Gaius, Papinian, and Ulpian. Both the latter were murdered (the former in 212 in the reign of Caracalla, the latter in the reign of Alexander Severus in 224 or 228), during their public careers, and the line of jurists seems to end around the same time. Kolbert comments that with the steady breakdown in the rule of law, when violence was more effective than litigation, men who would have become jurists instead went over increasingly to the study of the law of God - theology. Kolbert, pp23, 31.

4. This page is mostly derived from Barnes, Tertullian, chapter 4. There are extensive references, and the reader is referred to it. There is now an important article by David Rankin on this subject - more details when time permits.

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