I. ROMAN PRIVATE LAW
1. The Twelve Tables
2. Civil Procedure
3. Jus honorarium
4. The praetor peregrinus
5. Imperial Ordinances
6. Golden Age of Juristic Literature
7. Codification in the Later Empire
II. ROMAN CRIMINAL LAW
1. Jurisdiction in the Royal Period
2. The Right of Appeal
(2) The Porcian Law
3. Popular Jurisdiction Curtailed
5. Disappearance of Criminal Courts
6. Right of Trial at Rome
In the present article we shall treat (I) Roman Private Law and (II) Criminal Law only, reserving a consideration of the development of the principles of constitutional law for the article on ROME, since it is so closely interwoven with the political history of the state.
It will be necessary to confine the discussion of private law to its external history, without attempting to deal with the substance of the law itself. In the treatment of criminal law attention will be directed chiefly to the constitutional guaranties which were intended to protect Roman citizens against arbitrary and unjust punishments, these being one of the most important privileges of Roman citizenship.
Roman law found its original source in the family as a corporation. The proprietary rights of the pater familias as representative of this primitive unit of organization are a fundamental element in private law, and the scope of the criminal jurisdiction of the state was limited by the power of life and death which was exercised by the head of the family over those who were under his authority, by virtue of which their transgressions were tried before the domestic tribunal.
It is likewise of fundamental importance to recall the fact that before the earliest period in the history of Roman law of which we have positive information, there must have been a time when a large number of different classes of crime were punished by the priests as sacrilege, in accordance with divine law (fas), by putting the offender to death as a sacrifice to the offended deity, while restitution for private violence or injustice was left to private initiative to seek. For a law of the Twelve Tables that the person guilty of cutting another's grain by night should be hanged, as an offering to Ceres, is a survival of the older religious character of condemnation to death, and the right to kill the nocturnal thief and the adulterer caught in the act may be cited as survivals of primitive private vengeance The secular conception of crime as an offense against the welfare of the state gradually superseded the older conception, while private law arose when the community did away with the disorder incident to the exercise of self-help in attempting to secure justice, by insisting that the parties to a disagreement should submit their claims to an arbitrator.
I. Roman Private Law.
1. The Twelve Tables:
Roman private law was at first a body of unwritten usages handed down by tradition in the patrician families. The demand of the plebeians for the publication of the law resulted in the adoption of the famous Twelve Tables (449 BC), which was looked upon by later authorities as the source of all public and private law (quae nunc quoque in hoc immenso aliarum super alias acervatarum legum cumulo fons omnis publici privdtique est iuris: Livy iii.34, 6), although it was not a scientific or comprehensive code of all the legal institutions of the time. This primitive system of law was made to expand to meet the growing requirements of the republican community chiefly by means of interpretation and the jus honorarium, which corresponds to equity.
2. Civil Procedure:
The function of interpretation may be defined by mentioning the principal elements in civil procedure. The praetor, or magistrate, listened to the claims of the litigants and prepared an outline of the disputed issues, called a formula, which was submitted to the judex, or arbitrator, a jury, as it were, consisting of one man, who decided the questions of fact involved in the case. Neither praetor nor judex had special legal training. The court had recourse, therefore, for legal enlightenment to those who had gained distinction as authorities on the law, and the opinions, or responsa, of these scholars (jurisprudentes) formed a valuable commentary on the legal institutions of the time. In this way a body of rules was amassed by interpretative adaptation which the authors of the Twelve Tables would never have recognized.
3. Jus honorarium:
Jus honorarium derived its name from the circumstance that it rested upon the authority of magistrates (honor = magistracy). In this respect and because it was composed of orders issued for the purpose of affording relief in cases for which the existing law did not make adequate provision, this second agency for legal expansion may be compared with English equity. These orders issued by the praetors had legal force during the tenure of their office only; but those the expediency of which had been established by this period of trial were generally reissued by succeeding magistrates from year to year, so that in time a large, but uniform body of rules, subject to annual renewal, formed the greater part of the edict which was issued by the praetors before entering upon their term of office. By these means Roman law maintained a proper balance between elasticity and rigidity.
4. The praetor peregrinus:
After the institution of the praetor peregrinus (241 BC) who heard cases in which one or both of the parties were foreigners, a series of similar edicts proceeded from those who were chosen to this tribunal. The annual edicts of the praetor peregrinus became an important means for broadening Roman law, for the strangers who appeared in the court of this magistrate were mostly Greeks from Southern Italy, so that the principles of law which were gradually formulated as a basis for proceedings were largely an embodiment of the spirit of Greek law.
5. Imperial Ordinances:
Direct legislation superseded the other sources of law under the empire, taking the form, occasionally, of bills ratified by the people (leges), but usually of enactments of the senate (senatus consulta), or imperial ordinances. The latter, which eventually prevailed to the exclusion of all other types, may be classified as edicta, which were issued by the emperor on the analogy of the similar orders of the republican magistrates, decreta, or decisions of the imperial tribunal, which had force as precedents, and rescripta, which were replies by the emperor to requests for the interpretation of the law. All these acts of imperial legislation were known as constitutiones.
6. Golden Age of Juristic Literature:
In the 2nd century Salvius Julianus was commissioned to invest the praetorian edict with definite form. The Institutes of Gaius appearing about the same time became a model for subsequent textbooks on jurisprudence (Gaii institutionum commentarii quattuor, discovered by Niebuhr in 1816 at Verona in a palimpsest). This was the Golden Age of juristic literature. A succession of able thinkers, among whom Papinian, Paulus, Ulpian, Modestinus, and Gaius hold foremost rank (compare Codex Theodosianus 1, 4, 3), applied to the incoherent mass of legal material the methods of scientific investigation, developing a system of Roman law and establishing a science of jurisprudence.
7. Codification in the Later Empire:
The period of the later empire was characterized by various attempts at codification which culminated in the final treatment of the body of Roman law under Justinian. The work of the board of eminent jurists to whom this vast undertaking was entrusted was published in three parts: (1) the Code, which contains a selection of the imperial enactments since Hadrian in twelve books, (2) the Digest or Pandects, which is composed of extracts from the juristic literature in fifty books, and (3) the Institutes, which is a textbook in four books. In this form mainly Roman private law has come down to modern times, and has become, in the words of an eminent authority Bryce, Studies in History and Jurisprudence, Oxford, 1901), next to the Christian religion, the most plentiful source of the rules governing actual conduct throughout Western Europe.
II. Roman Criminal Law.
1. Jurisdiction in the Royal Period:
In the royal period criminal jurisdiction, in so far as it was a function of secular administration, belonged by right to the king. The titles quaestores parricidii and duumviri perduellionis, belonging to officials to whom the royal authority in these matters was occasionally delegated, indicate the nature of the earliest crimes brought under secular jurisdiction. The royal prerogative passed to the republican magistrates, and embraced, besides the right to punish crimes, the power to compel obedience to their own decrees (coercitio) by means of various penalties.
2. The Right of Appeal:
But the right of the people to final jurisdiction in cases involving the life or civil status of citizens was established by an enactment (lex Valeria) which is said to have been proposed by one of the first consuls (509 BC), and which granted the right of appeal to the assembly (provocatio) against the execution of a capital or other serious penalty pronounced by a magistrate (Cicero De Re Publica ii.31, 54; Livy ii.8, 2; Dionysius v.19). This right of appeal was reinforced or extended by subsequent enactments (leges Valeriae) in 449 and 299 BC. It was valid against penalties imposed by virtue of the coercive power of the magistrates as well as those based upon a regular criminal charge. Generally the magistrates made no provisional sentence of their own, but brought their charges directly before the people.
The death penalty was practically abrogated in republican times by allowing the accused the alternative of voluntary exile. The Romans rarely employed imprisonment as a punishment. The imposition of fines above a certain amount was made subject to the right of appeal. At first the dictator possessed absolute power of life and death over the citizens, but this authority was limited, probably about 300 BC (Livy xxvii.6, 5), by being made subject to the right of appeal
(2) The Porcian Law.
The right of appeal to the people was valid within the city and as far as the first milestone; and although it was never extended beyond this limit, yet its protection was virtually secured for all Roman citizens, wherever they might be, by the provision of the Porcian law (of unknown date), which established their right to trial at Rome. In consequence of this a distinction of great importance was created in criminal procedure in the provinces, since Roman citizens were sent to Rome for trial in all serious cases, while other persons were subject to the criminal jurisdiction of the municipalities, except when the governor summoned them before his own tribunal.
3. Popular Jurisdiction Curtailed:
The exercise of popular jurisdiction in criminal matters was gradually curtailed by the establishment of permanent courts (quaestiones perpetuae) by virtue of laws by which the people delegated their authority to judge certain classes of cases. The first of these courts was authorized in 149 BC for the trial of charges of extortion brought against provincial governors. Compensation was the main purpose of accusers in bringing charges before this and later permanent courts, and for this reason, perhaps, the procedure was similar to that which was employed in civil cases. A praetor presided over the tribunal; a number of judices took the place of the single juror. The laws by which Sulla reorganized the systems of criminal jurisdiction provided for seven courts dealing individually with extortion, treason, peculation, corrupt electioneering practices, murder, fraud, and assault.
The judices, or jurors, were originally chosen from the senate. A law proposed by C. Gracchus transferred membership in all the juries to the equestrian class. Sulla replenished the senate by admitting about 300 members of the equestrian class, and then restored to it the exclusive control of the juries. But a judicial law of 70 BC provided for the equal representation of all three classes of the people in the courts. There were then about 1,080 names on the list of available jurors, of whom 75 seem to have been chosen for each trial (Cicero In Pisonem 40). Caesar abolished the plebeian jurors (Suetonius Caesar 41). Augustus restored the representatives of the third class (Suetonius Aug. 32), but confined their action to civil cases of minor importance. He likewise excused the members of the senate from service as jurors.
5. Disappearance of Criminal Courts:
The system of criminal courts (quaestiones perpetuae) diminished in importance under the empire and finally disappeared toward the close of the 2nd century. Their place was taken by the senate under the presidency of a consul, the emperor, and eventually by imperial officials by delegated authority from the emperor. In the first case the senate stood in somewhat the same relation to the presiding consul as the jurors in the permanent courts to the praetor. But the emperor and imperial officials decided without the help of a jury, so that after the 3rd century, when the judicial competence of the senate was gradually lost, trial by jury ceased to exist. An important innovation in the judicial system of the empire was the principle of appeal from the decision of lower courts to higher tribunals. For the emperors and eventually their delegates, chiefly the praefectus urbi and praefectus praetorio, heard appeals from Roman and Italian magistrates and provincial governors.
6. Right of Trial at Rome:
Under the early empire, provincial governors were generally under obligation to grant the demand of Roman citizens for the privilege of trial at Rome (Digest xlviii. 6, 7), although there appear to have been some exceptions to this rule (Pliny, Epist. ii.1l; Digest xlviii.8, 16). Lysias, tribune of the cohort at Jerusalem, sent Paul as prisoner to Caesarea, the capital of the province, so that Felix the procurator might determine what was to be done in his case, inasmuch as he was a Roman citizen (Ac 23:27), and two years later Paul asserted his privilege of being tried at Rome by the emperor for the same reason (Ac 25:11,21).
Roman citizens who were sent to Rome might be brought either before the senate or emperor, but cognizance of these cases by the imperial tribunal was more usual, and finally supplanted entirely that of the senate, the formula of appeal becoming proverbial: cives Romanus sum, provoco ad Caesarem (Kaisara epikaloumai: Ac 25:11).
As Roman citizenship became more and more widely extended throughout the empire its relative value diminished, and it is obvious that many of the special privileges, such as the right of trial at Rome, which were attached to it in the earlier period must have been gradually lost. It became customary for the emperors to delegate their power of final jurisdiction over the lives of citizens (ius gladii) to the provincial governors, and finally, after Roman citizenship had been conferred upon the inhabitants of the empire generally by Caracalla, the right of appeal to Rome remained the privilege of certain classes only, such as senators, municipal decurions (Digest xlviii.19, 27), officers of equestrian rank in the army, and centurions (Dio Cassius lii.22, 33).
Greenidge, The Legal Procedure of Cicero's Time, Oxford, 1901; Kruger, Geschichte der Quellen u. Litteratur des romischen Rechts, Leipzig, 1888; Mommsen, Romisches Strafrecht, Leipzig, 1899; Roby, Roman Private Law in the Times of Cicero and of the Antonines, Cambridge, 1902; Sohm, The Institutes of Roman Law, translated by J.C. Ledlie, Oxford, 1892.
George H. Allen