Sources of law in the republic (III): Edicta magistratuum

All the higher magistrates had the right to issue edicts, i.e. proclamations in which they notified the people of their orders and of their intentions, each naturally within his own sphere. From the edicts of those whose duty included jurisdiction, especially from that of the praetor urbanus, there arose the ius honorarium or magisterial law, which came to be placed side by side with the ius civile arising from statute and interpretation, and was interwoven with it in a way which, in spite of important differences, may be compared with the manner in which the common law and equity have combined to make up the English legal system. In the case of the praetor and the other jurisdictional magistrates, it was the practice that the edict should be published each year when they entered upon their office and put up in a conspicuous place in the forum. As it was intended that it should be valid throughout the year, it was called perpetuum (continuous). Each praetor had, in theory, a perfectly free hand in the matter of his edict, but it became customary for him to take over and republish as his own the bulk of his predecessor's edict, making only such erasures or additions as he or his technical advisers saw fit, and there thus grew up a document of considerable size, known as the edictum tralaticium, because it was thus "carried on" from year to year; it was this document on which the jurists wrote commentaries. There was originally no compulsion on the magistrate to adhere to the intentions he had expressed in his edict; presumably the pressure of public opinion was enough, but towards the end of the republic, when, as we know from Cicero's account of Verres' misdeeds, unscrupulous magistrates did not hesitate to misuse their powers in their own or their friends' interest, a lex Cornelia of 67 B.C. was passed forbidding praetors to depart from their edicta perpetua.

The praetor was entitled to issue edicts and, in fact, these edicts were a very important source of law, but the praetor was not a legislator; he could not alter the law directly and openly as could the sovereign assembly by a lex or a plebiscitum, and his edict consequently did not take the same form as a statute. It consisted, on the contrary, chiefly of statements by the praetor of what he would do in certain circumstances, of the way in which he would carry out his duty of jurisdiction, and it was the great freedom he had in this respect that made it possible for him to influence the law to such an enormous extent. He would thus say that in such and such a case he would give in action (iudicium dabo), i.e. if a man came to him with a complaint against another which did not, at civil law, give him any claim against that other for redress, the praetor might nevertheless allow him an action. Or the praetor might say that in certain circumstances he would put a man into possession of property (possidere iubebo, bonorum possessionem dabo), or that he would put a man back in his original position (in integrum restituam), i.e. account some transaction, e.g. a contract into which the complainant had been induced to enter by fraud, as never having taken place, and so on. The praetor could also refuse to allow a plaintiff to proceed with his claim, though he did not as a rule announce his intention in exactly this way in the edict. The essence of the praetor's power lies in fact in his control over remedies. He does not give a right (as a law can), he promises a remedy, and once there is a remedy there is, by implication, a right also. This is perhaps most clearly seen from an example taken from the law of inheritance. If a man died intestate leaving no children and no relations, then there was, at civil law, no heir to his estate and it was open to anyone to seize the property without any fear, so far as the civil law was concerned, that any other person would be able to bring an action to get it away from him. The praetor was of opinion that in these circumstances the widow of the deceased should have a claim. He could not however assert that she was heir; at civil law she was not, and he could not alter the civil law, but he could, and did, say in his edict that he would "give her possession of the goods", i.e. that he would give her a remedy by which she could get the property of the deceased from anyone who had taken possession of it, and since there was no one who could show a better title she would be able to keep what she had got. We can thus say that by the ius honorarium the widow had a right, although she had none at civil law, and though the praetor did not, in so many words, say that she had one at all. This is, of course, but one example of a whole complex system of bonorum possessiones, all of which taken together from the praetorian law of succession which became engrafted on the civil law rules of hereditas. In a similat way, as we shall see, it becomes possible to speak of praetorian ("bonitary") ownership, i.e. ownership protected by praetorian remedies in opposition to ownership strictly according to the civil law (dominium ex iure Quiritium), and the parallelism extended throughout the whole legal system. How the civil and praetorian rules worked in with each other in practice is of course a matter for detailed study in each instance, but one famous remark on their relationship may be explained here. Papinian says that the function of the ius honorarium is to "aid, supplement or correct" the civil law. Again the system of inheritance, of which Papinian is probably thinking, helps us to see best what is meant. "Aiding" refers to the provision of praetorian remedies in addiction to those of the civil law for the use of a person who has a civil law right; thus the interdict quorum bonorum (like all interdicts a preatorian remedy) was in many cases available for the person who was civil law heir. "Supplementing", though it is not possible to draw a hard and fast line between it and "aiding", refers especially to the granting of remedies to persons chosen according to the praetorian system in default of any who had rights at civil law, as in the case of the widow mentioned above. "Correcting" occurs when the praetor gives remedies to a person who is not entitled at civil law although there does exist someone who is so entitled, e.g. a person nominated heir in a will which satisfies praetorian but not civil law requirements will be preferred to the intestate heir, who, since the will is invalid at civil law, is by the civil law entitled to succeed.

Sources of law in the republic (II): Interpretatio

The history of Roman law, so far as we really know anything about it, begins with a code, the XII Tables. No doubt much of the contents of the code was taken from existing customary law, but custom played on the whole a subordinate part in subsequent development. Law was primarily for the Romans statute law, and it was developed (apart from the edict) mainly by what was known as "interpretation" of the statutes.

According to a unanimous and entirely credible tradition this function was, in early times, exercised by the pontifices, a small "college" of men who, though they may be described as priests of a sort, did not have to belong to any special caste, except that until 300 B.C. they had to be patricians. Membership of the college was in no way incompatible with other offices; on the contrary, it was an added distinction to the public career of a member of the aristocracy. Nor must we imagine, on the other hand, that the pontifices were judges; their business was, almost certainly, like that of the later prudentes, advisory. They advised the magistrate as to the law, and they also apparently advised individuals; at least, this is very probably what is meant by Pomponius' enigmatic statement that one of the pontifices was appointed every year "to be in charge of private matters". It is not difficult to understand why it should have been the pontiffs who were the earliest legal authorities. It is true that Roman law took on a secular character at a comparatively early stage in its history, but with the Romans, as with all peoples, law and religion were not originally differentiated, and there were many spheres, even after the XII Tables, and in later times, where the ius sacrum, the religious law strictly so called, touched the ordinary civil law. The pontiffs were the guardians of religious tradition, and, as such, would naturally be the authorities to be consulted in purely legal matters as well. Thus, for instance, the calendar was primarily a religious matter and, as such, regulated to a large extent by the pontiffs; but it was also of great legal importance, as on very many days there were religious reasons why the magistrate might not sit in his court. Again, much of the law relating to the family was of a religious character. Adrogations and, originally, will-making could only take place in the comitia curiata meeting under the presidency of the pontifex maximus, who was especially interested in the preservation of sacra, i.e. the family religious rites, which might be adversely affected by the changes in the natural order of descent which these acts involved.

Sources of law in the republic (I): Lex and plebiscitum

The phrase "source of law" is used in a number of different senses which will be found discussed in works on Jurisprudence. In the sense in which it is used here it means a method by which new rules of law can come into existence. The corresponding sources at Rome during the republic were: Lex and plebiscitum, interpretatio, edicta magistratuum and custom.

- Lex and plebiscitum

Lex was strictly an enactment of the comitia, either the centuriata or the tributa (1), while plebiscitum was one passed by the concilium plebis. As soon, however, as its enactments had been put on a level with those of the comitia, the concilium plebis became the usual organ of legislation, and laws passed by it were frequently called leges. This practice indeed was so common, even among lawyers, that it can hardly be called incorrect.

Social conditions and the different classes of the population during the republic

Rome owed her rise to the fighting qualities of her peasant-proprietors. The traditional picture of the earliest republic and the struggle between the orders clearly show that then already the normal Roman was a landowner. It is true that the distress of the plebeians indicates that their plots must often have been very small, and it is also true that, according to modern archaeological theories, there had probably existed, before recorded history begins, in Latium generally, as in Etruria, a system of villeinage, i.e. that the bulk of the population had been semi-free tenants working on large estates owned by great landlords. But what we know of the economic side of the struggle between the orders is sufficient to show that this state of affairs was over when that struggle took place. One of the chief complaints of the plebeians is that they are forced to serve as soldiers and that on their return from a campaign they find their land ruined through lack of attention, or worse still actually devastated by the enemy, and that they are thus forced to borrow from the larger landowners in order to begin again. This is not the sort of complaint which would be made by a semi-free tenant, whose lord would have the responsibility for setting him up again. The cry too is that the patricians monopolise the advantages of the public lands instead of dividing them up among the poor plebeians, which again shows that the plebeian is capable of holding land and regards such ownership as his normal condition. The "Servian" constitution (whatever be the date that should be assigned to it) also indicates that the normal Roman is a landowner, for its "tribes" are divisions of the land, and probably only landowners are originally enrolled –a procedure which would not have been accepted had there been a great number of landless men, for the arrangement is clearly intended to include the bulk of the population.

If the normal citizen was a small landowner we must not imagine that the estates of the aristocracy were very great either. The tradition of the patricians who had to be called from the plough to lead the armies of the republic probably represents the truth. Rome was a poor and weak state from the expulsion of the kings until at least the time of the capture of Veii (traditional date 396 B.C.), her first great conquest of a foreign people. The earlier part of the struggle between the orders took place during this period of weakness and the main plebeian victory (the Licinio-Sextian laws of 367) was won very early in the period of expansion. The economic provisions among these laws show that Rome was already beginning to go along the disastrous path of large estates and slave labour. One law limited the amount of public land which could be occupied by any individual to 500 iugera, and another laid down that landlords must employ a certain proportion of free labourers. But these measures themselves, though they were not strictly enforced, at any rate after the first few years, must have done something towards remedying the evils at which they were aimed, and still more was done to help the peasants by the use which Rome made of her conquests. After the capture of Veii the city was razed to the ground and her territory divided among the citizens of Rome in equal lots, the plebeians having their fair share, and subsequently Rome made many "assignations" of conquered territory to individuals in addiction to sending out colonies, which, besides their military function, served the purpose of providing land (in very small lots generally) for her increasing body of citizens.

Italy and the Provinces during the Republic (II): The provinces

Provincia literally means just "sphere of action of a magistrate", and the sense from which our word province is derived is simply the result of the territorial application of the same idea. A "province" is a sphere of action with territorial limits assigned to a magistrate with imperium, and, as such, is outside Italy, for within Italy there were no such geographical limits on the imperium.

It is the unity of command given to the governor within these limits which really constitutes the unity of the province within which may live people actually governed in different ways and standing in varying relationships to Rome. For all of them the governor represents the authority of the Roman state, whether they are Roman citizens resident in the province, members of Roman or Latin colonies or other inhabitants living in their original communities which might or might not have a considerable measure of self-government. It is this fact which explains how the Romans managed to govern their great empire with so few officials. When they acquired territory they did not incorporate it into a coherent administrative system of their own; they left it as a rule in much the same condition as that in which they found it, but subjected great areas of it to the general supervision of a magistrate holding imperium and thus vested with the supreme authority which imperium gave outside the city. The governorship was, in fact, the military command of the Roman general perpetuated as a system of control in times of peace, and the chief limit on the governor's power was not any legal restriction but the physical impossibility of attention to detail with the very small staff which the state put at his disposal.

Italy and the Provinces during the Republic (I): Italy

By the end of the republic the extent of Rome's dominions was every nearly as great as it ever became, and included already the greater part of the known world. This great empire was not, like that of Alexander, the work of a single conqueror, but the result of centuries of warfare and expansion, and its government was therefore not a coherent scheme imposed by a single mind, but an intricate structure embodying the expedients of many successive generations of rulers. Nor can it be said that the political institutions of Rome, though no doubt they helped her to acquire her empire, proved a success as a means of governing it. The city-state constitution broke under the strain imposed on it and had to be replaced by a military monarchy, for the constitution of Rome at the end of the republic, it must be remembered, was still that of a city-state. If the territories which we call the "Roman Empire" can be said to have a constitution at all, it must be described as a kind of federation of city-states of which the sole bond is their common subjection, though in varying degrees, to the supreme city, whose governing organs have to serve the purpose of governing also the whole federation.

In tracing the development of this federation it is best to distinguish three stages, those of the Latin league, the conquest of Italy, and the acquisition of the provinces beyond the seas and beyond the Alps. Not that these stages represent distinct periods; Rome had already conquered several Italian states before she finally suppressed the last revolt of the Latins, and she had acquired provinces overseas before she has finished with Italy, but it was only through her leadership in Latium that she was able to achieve her supremacy over Italy, and at the end of the republic, as well as during the early empire, Italy represented a privileged part of the Roman dominions contrasted with the subject territories beyond her borders.

Roman political history (II): The period of the Republic

- The Kings replaced

Following the expulsion of Tarquinius Superbus in 509 B.C., supreme powers were vested in two magistrates elected annually by the Comitia Centuriata, known first as Praetors. They were endowed with imperium, subject to a veto which each could exercise over the other. Increased powers were given to the Senate.

- The Assemblies

+ The Senate

The Senators were chosen by Consuls, later buy Censors. They were summoned by a magistrate whom they advised on matters of peace and war. They were also required to approve decrees of the Comitia Centuriata. By the end of the third century B.C. the Senate had become the State's policy making executive. A senatusconsultum had the force of law. Sulla (81-79 B.C.) increased the number of Senators to 600. Senators held office for life, unless expelled for serious misconduct. They controlled the Treasury and nominated Dictators (high officials invested with dictatorial powers during an emergency). They were able to remove a citizen from the operation of the law, but Lex Cornelia (67 B.C.) enacted that al least 200 Senators were to be present when such a resolution was passed.