Roman Law The Jus Civile
tables comitia laws concilium centuries provisions plebeians plebeian public legislation
ROMAN LAW THE JUS CIVILE - The Legislative Bodies of the Period. - The limits and I scope of this article do not permit of any detailed account of the consequences of the change from kings to consuls, sf or of the tribulations of the plebeians during the first two centmies of the republic. Stage by stage they fought and conquered in the uphill battle for social and political equality. In 260 u.c. they got their own special protectors in their tribunes, with the mdiles as their assistants, and judices decemviri to act under their instructions as arbiters in disputes amongst themselves. In 283 they obtained state sanction for their concilium, and recognition of its power to regulate purely plebeian interests. The XII. Tables of 303 were the fruit of their agitation for a revision and wiitten embodiment of the law. It was in deference to their complaints of their practical disfranchisement through the unduly preponderating influence of the patri-cians in the comitia of the centuries that in 305 the comitia of the tribes was instituted. Their repeated pro-tests against the monopolization of the public domain land by members of the higher order resulted at last in the definite recognition of their right to participate in its occupation by one of the Licinian laws of 387. The long course of cruel oppression of plebeian insolvents by- their patrician creditors was put an end to by the Pcetilian law of 428 abolishing nexal contract, and prohibiting the use of chains and fetters on persons incarcerated for purely civil debt. By the Hortensian law of 467 the resolutions of the plebeian council (plebiscita) were declared binding not only on the plebeians themselves but on the whole body of the citizens. And from 333, when a plebeian first reached the magistracy through the qumstorship, down to 502, when they attained to the supreme pontificate, they gradually vindicated their right as citizens to share in all the honours and dignities of the state.
The legislative bodies were thus three in number, - the comitia of the centuries, the conciliunt plebis, and the comitia of the tribes. The first, if not organized by Servius Tullius, at all events grew out of his distribution s' of the populace into classes and centuries according to the value of their freeholds as appearing on the census-list. As just the national army assembled for a peaceful purpose (exercitus civili,$), it could be convened and presided over originally only by a magistrate possessing the military imperium, i.e., a consul ; but, after the creation of the censorship in 311 and the prtorship in 387, the holders of those offices were entitled to convoke it, - the former for its assent to arrangements for the census, and the latter for state trials. It was the centuries that passed the XII. Tables ; but for the most part their legislation was upon questions affecting public and constitutional rather than private interests. The procedure in the centuriate comitia was somewhat cumbrous. There was publication of the proposed law (promulg ado rogationis) a fortnight before the day appointed, sometimes one or more meetings (conciones) being held in the interval for its consideration and discussion. When the day arrived, the auspicia were taken by the pre,siding magistrate, assisted by an augur ; if favourable, the citizens were summoned anew by blast of trumpet, and on their assembling, which originally they did under arms, prayer and sacrifice were offered by president, pontiffs, and augurs. A final concio might then be held if thought necessary ; and, after it was over, on the order to "proceed to the comitia," the citizens marched to the Campus Martius (the formal assembly being incompetent within the city). There the rogatio was read and, if no sign from heaven indicated the dissent of the gods and warned the assembly to disperse, was at once put to the vote–:-- "Is it your pleasure, Quirites, t,o hold. this as law ?" The vote was taken by centuries, those of the knights and the freeholders of full valuation voting first ; if they were unanimous it went no further, for these formed more than a majority of the whole comitia. The resolution, if adopted, was populi jussum, but not yet law. It had still to run the gauntlet of the "fathers," - whether the senate or only its patrician members is disputed; it was in their power to refuse to authorize it (auctores .fieri), usually putting theik dissent on the ground that the gods willed it not ; but if they ratified it, then it became a lex, ordinarily getting the name of the magistrate by whom it had been proposed. The power of veto, however, was considerably qualified by a Publilian law of the year 415, which enacted that in future the " fathers " should grant (or refuse) their auctoritas before the vote was taken.
The points of difference between the enactments of the concilium plebis and the later comitia tributa are indicated by Mommsen in a paper in his Researches.1 (1) The comitia was an assembly of the whole body of the people, votin,,o. according to tribes instead of centuries ; the concilium was an assembly of plebeians only, also voting tributim. (2) The comitia was convened and presided over by a patrician magistrate, not necessarily, however, with military imperiuni and therefore very frequently by the prwtor ; whereas the concilium could be convened and presided over only by a plebeian official, either a tribune or an mdile. (3) In the comitia the auspicia had to be taken before the proceedings commenced ; in the con,cilium, the will of the gods was not demanded, although listened to if communicated in a thunder-storm or the like. (4) The resolution of the comitia required to be confirmed by the " fathers "; while that of the concilium did not. (5) An enactment of the comitia was a lex, and bound the whole people ; but before the Hortensian law an enact-ment by the concilium plebis was in the ordinary case no • " Die Sondeiyersammlungen der Plebs," in bis RE■rn. Forschungen, vol. i., Berlin, 1864, p. 177 sq.
more than a plebiscitum, and of force only amongst the plebeians themselves. But there was an exception when, because of some constitutional change proposed by it, the senate had previously sanctioned the legislation, as in the case of the Terentilian law, which paved the way for the XII. Tables, of the Canuleian law authorizing the inter-marriage of patricians and plebeians, of the Licinian laws about the occupation of the public lands, &c. ; in such cases, although the final vote was that of the concilium, the enactment was binding on the citizens generally, and was spoken of as a lex rather than as a plebiscitum. The latter name seems practically to have been dropped after the Hortensian law had equalized them so far as their effects were concerned. The greater part of the legislation for amending the private law latterly fell to the concilium, owing so far, perhaps, to the greater simplicity of its pro-cedure, but also to some extent to the fact that .the prtors preferred making their amendments tentatively by edicts (which were revocable), instead of embodying them in statutes, which, as passed under divine auspices and representing the divine will, could not easily be repealed.
The XII. Tables. - We have already shown the efforts made by Servius Tullius to secure that the dispensation of justice should neither be neglected nor left to caprice or hap-hazard, one rule to-day and another to-morrow. With the consulate and the disregard of the " royal laws" and of Servius's instructions to the judges all this was changed. The consuls, with their harassing military engagements, could have little time to devote to their judicial functions or properly to instruct those to whom they delegated the duty of investigating and adjudicating on the merits of a complaint ; and the yearly change of magistrates must itself have been a serious obstacle to uniformity either of rule or practice so long as the law rested on nothing but unwritten custom. One can well believe too, when feeling was so embittered between the orders, that it was no rare thing for a consul to use his magisterial punitive powers (coercitio) with undue severity when a plebeian was the object of them, or to turn a deaf ear to an appeal for justice addressed to him from such a quarter. The state of matters had become so intolerable that in the year 292 the demand was made by C. Terentilius Arsa, one of the tribunes, that a commission should be appointed to define in writing the jurisdiction of the magistrates, so that a check might be put on their arbitrary, high-handed, and oppressive administration of what they were pleased to call the law. His colleagues induced him for the moment not to press his demand, which he was urging with a violence of invective that was unlikely to promote his object. But next year they made common cause with him, requiring that the whole law, public and private, should be codified, and its uncertainty thus as far as possible be removed. After a few years' resistance the senate was induced to give its assent to a demand • that in itself was too reasonable to be longer -withstood.
The first practical step towards its realization was the' despatch of a mission to Greece and the Greek settlements I in southern Italy, to study their statute law and collect 1, any materials that might be of service in preparing the projected code. On the return of the ambassadors in 302 all the magistracies were suspended, and a commission of ten patricians (decemviri legibus scribun,clis) was appointed with consular powers, under the presidency of Appius Claudius, for the express purpose of reducing the laws to writing. Before the end of the ensuing year (303) the bulk of the code was ready, and was at once passed into law by the comitia of the centuries, and engraved or per-haps painted on ten tables of wood, which were exposed in the Forum. _ Next year the decemvirate was renewed with a slight change of personnel, but under the same presidency as before ; and in the course of a few months it had completed the supplemental matter, which was passed in due form, and displayed on two other tables, thus bringing the munber up to twelve and giving the code its official name of Lex Tabularum.
. There were provisions in them that were almost literal renderings from the legislation of Solon ; and others bore a remarkable corre-spondence to laws in observance in Greece, but there is no authority for saying they were directly borrowed. By far the greater pro-portion of them, however, were native and original, - not that they amounted to a general formularization of the hitherto floating customary law, for, notwithstanding Livy's eulogium of them as the "fountain of the whole law, both private and public," it seems clear that many branches of it were dealt with in the Tables only incidentally, or with reference to some point of detail. The insti-tutions of the family, the fundamental rules of succession, the solemnities of such formal acts as mancipation, nexum, and testa-ments, the main features of the order of judicial procedure, and so forth, - of all of these a general knowledge was presumed, and the decemvirs thought it unnecessary to define them. What they had to do was to make the law equal for all, to remove every chance of arbitrary dealing by distinct specification of penalties and precise declamtion of the circumstances under which rights should be held to have arisen or been lost, and to make such amendments as were necessary to meet the complaints of the plebeians and prevent their oppression in the name of justice. Nothing of the customary . law, therefore, or next to nothing, was introduced into the Tables that was already universally recognized, and not complained of as either unequal, indefinite, defective, or oppressive. Only one or two of the laws ascribed to the kings reappeared in them, and that in altered phraseology; yet the omission of the rest did not mean their repeal or imply denial of their validity, for some of them were still in force in the empire, and are founded on by Justinian in his Digest. Neither were any of the laws of the republic anterior to the Tables embodied in them, although for long afterwards many a man had to submit to prosecution under them and to suffer the penalties they. imposed. In saying, therefore, that for the most part the provisions of the decemviral code were of native origin, all that is meant is that they were the work of the decemvirs them-selves, operating upon the hitherto unwritten law in the directions already indicated.
The original Tables are said to have been destroyed when Rome was sacked and burned by the Gauls. But they were at once re-produced, and transcripts of them must have been abundant if, as Cicero says was still the case in his youth, the children were required to commit them to memory as an ordinary school task. This ren-ders all the more extraordinary the fact that the remains of them are so frag,mentary and their genuineness in many cases so debatable. They were embodied in the Triperlita of Sextus Elius Pietus in the year 557 ; they must have formed the ba.sis of all the writings on the jus civile down to the time of Servius Sulpicius Rufus (who first took the praetor's edicts as a text); and they were the subjects of monog,raphs by a number of authors of distinction, amongst them by M. Antistius Labeo in the early years of the empire and by Gaius probably in the reign of Hadrian. Yet a. couple of score or so are all that can be collected of their provisions in what profess to be the ipsissinza verba of the Tables, - though in a form in most cases more modern than what we encounter in other remains of archaic Latin. These are contained principally in the writings of Cicero, the Nodes ./Itticae of Aulus Gellius, and the treatise De verborum significatione of Festus, the last two dealing with them rather as 'natters of antiquarian curiosity than as rules of positive law. There are many allusions to particular provisions in the pages of Cicero, Varro Gellius, and the elder Pliny, as well as in those of Gaius, Paul, illpian, and other ante-Justimanian jurists ; but these are uot implicitly to be relied on, as we have evidence that they frequently represent the (sometimes divergent) glosses of the inter-preters rather than the actual provisions of the statute. Recon-struction has therefore been a work of difficulty, and the results far from satisfactory, that of the latest editor, Voigt, departing very considerably from the versions generally current during the last half century.' In form the laws contained in the Tables were of remarkablei brevity, terseness, and pregnancy, with something of a rhythmical cadence that must have greatly facilitated their retention in the . memory. Here and there the rules they embodied were potestative ; but for the most part they were peremptory, running on broad lines, surmounting instead of removing difficulties. Their application might cause hardship in individual instances, as when a man was held to the letter of what he haxl declared in a nexunz or mancipa-tion, even though he had done so under error or influenced by fraudulent misrepresentations ; the decemvirs admitted no excep-tions, preferring a hard-and-fast rule to any qualifications that might cause uncertainty. The system as a whole is one of jus as distinguished from fits. In the royal laws execration (sa,cratio capitis, sacer esto) was not an uncommon sanction ; but in the Tables it occurs only once pure and simple, and that with reference to an offence that could be committed only by a patrician, - material loss caused by a patron to his client (patronus, si fraudczn faxsit, sacer esto). In all other cases the idea that a crime was an offence against public order, for which the community was entitled in self-protection to inflict punishment on the criminal, is as pro-minent as the older oue that it was a sin against the gods, to be expiated by dedication of the sinner to the divinity more especially outraged by his offence. Hanging and beheading, flogging to death, burning at the stake, throwing from the Tarpeian rock, - such are the secular penalties that are met with in the Tables ; but often, though not invariably, the hanging and so forth is at the same time declared a tribute to some deity to whom the goods of the criminal are forfeited (consccratio bonorum).
It is not unworthy of notice that traces remained in the Tables of the old system of self-help. The mantis injectio of the third Table - the execution done by a creditor against his debtor - was essentially the same procedure as under the kings, but with the addition of some regulations intended to prevent its abuse. Against a thief taken in the act something of the same sort seems still to have been sanctioned ; while it was still lawful to kill him on the spot if the theft was nocturnal, or even when it was committed during the day if he used arms in resisting his apprehension. Accord-ing to Cicero there was a provision in these words - " si telum manu fugit magis quern jecit, arietem subicito "; this is just a re-enact-ment in illustrative language of the law attributed to Nunia, that for homicide by misadventure - " if the -weapon have sped from the hand rather than been ainied " - a ram was to be tendered as a peace-offering to the kinsmen of him who had been slain. The original purpose must have been to stay the blood revenge, and it may even have been so with Numa ; but in the Tables it can only have been intended to stay the prosecution which it was incunabent on the kinsmen of a murdered man to institute. So with talionie penalties: " si merribrum rupit, ni cum eo pacit, talio esto" - such, according to Genius, were the words of one of the laws of the Tables, and they undoubtedly contain a reminiscence of a time when talion NVaS recognized, " an eye for an eye, a tooth for a tooth"; but in the mouths of the decemvirs they were nothing more than a clumsy -mode of enabling an injured man to exact the greatest money recompense he could, and to have it measured according to the position and fortune of the individual who had done him injury.
The structure of the provisions of the Tables was not such as to ] enable the plain citizen to apply them to concrete cases, or know how to claim the benefit of them in the tribunals, without some ( sort of professional advice. Pomponius states that no sooner was ' the decemviral legislation published than the necessity was felt for its interpretation, and for the preparation by skilled hands of styles of actions by which its provisions might be made effectual. Both of these duties fell to the pontiffs as the only persons who, in the state of civilization of the period, were well qualified to g,ive the assistance required ; and Pomponius adds that the college annually appointed one of its members to be the adviser of private parties and of the judiees in those mattem The interpretatio, commenced by the pontiffs and continued by the jurists during the republic, which, Pomponius says was regarded as part of the jus civile, was not confined to explanation of the words of the statute, but was in some cases their expansion, in others their limitation, and in many the deduction of new doctrines from the actual jus scrip-tum, and their development and exposition. An event that did much to diminish the influence of the pontiffs in connexion ivith it was the divulgement in the year 450 by Cu. Flavius, secretary of Appius Claudius Clem, and probably at his instigation, of a formulary of actions and a calendar of lawful and unlawful days, which got the name of Jus Flarianum. The practice adopted in the beginning of the 6th century by Tiberius Coruncanius, the first plebeian chief pontiff, of giving advice in law in public had a still greater effect in popularizing it ; and the fits Aeltanum, some fifty years later - a collection that included the Tables, the inter-yretatio, and the current styles of actions - made it as much the heritage of the laity as of the pontifical college.
Subsequent Legislation. - Of legislation during the fourth and fifth centuries that affected the private law we have but scanty record. The best-known enactments are the Canuleian law of 309 repealing the decemviral prohibition of marriages between patricians and plebeians ; the Genu-clan, Marcian, and other laws about usury and the rate of interest ; the Pcetilian law of 428, abolishing the nexal contract ; the Silian law, probably not long afterwards, which introduced a new form of process for actions of debt and appears to have given statutory sanction to the stipulation (in its earliest form of sponsio); and the Aquilian law of 467, which amended the decernviral provisions about actions of damages for culpable injury to property, and continued to regulate the law on the subject even in the books of Justinian.