A. STATUTE

1. Definition of lex

| 78 The oldest form of legislation of the Romans and the only type emanating from the people as a whole was termed lex. Three possible etymologies of this word have been suggested.* It may stem from the word ligare or some related form» in the sense of‘that which binds’.

It would appear that most scholars have accepted the first of these pos­sibilities, to which the sources give some support.¹

Cicero, O ratio pro Cluentio LI 11.146

... Il is a greater shame in that state which rests upon laws to depart from the laws. For law (lex) is a bond (vinculum) which secures our privileges in the commonwealth, is the foundation of our liberty, and the fountain-head of justice. Cf. also Cic. de re pub. 1.32.49.

PapinianuS, Libro I definitionum (D. 1.3. J)

A lex is a general order to all, a response of learned men, the power ofpunish­ment for crimes which are committed intentionally or in ignorance, a common stipulation (sponsio) of the populace.

Lex has been termed by Mommsen the binding relationship between two legal subjects (Rechtssubjekte), on the one side active, on that of the other passive.¹ Hence, in the sphere of private transactions, lex refers to the clause ^{[494] [495] [496] or condition proposed by one of the parties to the transaction, and accepted by the other. Expressions such as lex venditionis (term included by a vendor in a contract of sale) or lex conductionis (condition inserted by a lessee in a lease) and the like are frequent in legal writings.*The similarity between the formal question and answer of the private stipulation and the formalities occurring in the enactment of a law on the part of a magistrate and the popular assembly (see infra, § 85) is reflected in the final phrase of the defini­tion given by Papinian?}

Most scholars have called attention to this resemblance between the bond established by private persons in their transactions and that between the state and its citizens in enacting a law, comparing the lex privata with the lex publica.^{[497] [498] [499] [500] [501] [502] Actually, neither of these phrases was employed by the Romans themselves in a technical meaning, and it has recently been shown that lex publica was very probably not a term of art at all? There is, indeed, reason to suspect that if the passage of Papinian is not actually interpolated,1 it certainly is a reflection of a very late idea, probably inspired by the Epicurean notion of social pact? At any rate, the definition does not reflect the actual nature of the enacted laws of the later Roman Republic or early Empire.}

The second etymological possibility, ‘that which has been laid down’, which is generally accepted as the basis for the English word ‘law’ has not been advanced as the source of lex.^{[503] [504] [505] But the third variant, ‘that which has been declared’, has recently been revived, with strong arguments, by Stein?1 He attempts to show that the meaning of ‘formal declaration’ best fits the vital step in the enactment of a draft bill, namely, the reading out of the proposed enactment by the magistrate (see infra, § 85), and at the same time provides a satisfactory explanation for a number of references to lex in which the connotation of‘binding tie’has not seemed entirely ad equate?1}

It is generally acknowledged, by Stein as well as others, that any etymo­logical meaning had been lost sight of in the last centuries of the Republic. The definition of lex in the classical period is purely descriptive.

Gellius, Nodes Atticae X.20.2

Ateius Capita, most learned in public and private law, defined what lex is in these words: ‘Lexhe said, ‘is a general order of the people or of the plebs, upon the proposal of a magistrate,'

Gaius, Institutionum commentarius 1.3

Lex is what the people orders and determines.

The laws which were enacted upon the proposal of a magistrate were termed leges latae or leges rogalae. Since Mommsen's time such laws were distinguished from those which were ‘given’ (leges datae) by a magistrate who had been empowered to so act.¹¹ Some scholars have considered the Law of the Twelve Tables to be such a lex data,'⁴ but generally leges datae have been described as the orders issued by the first governors of new provinces” or the charters promulgated for municipalities.'⁴ At first im­pression there seems to be reason to conclude that the expression lex data has a technical meaning; for example, in the following passage.

Lex iulia municipalis 159-60(44 B.C.)

Whoever is or has been commissioned by law or plebiscite to give a charter (legis...

Nevertheless, Tibiletti has clearly shown that the expression has no technical significance and was not within the legal terminology of the jurists.” Any pronouncement affecting provincial or municipal administration, whether ’enacted law’ or not, might be termed a lex data. Recently, Frederiksen has argued that these enactments were voted directly by the Roman citizens as ^{[506] [507] [508] [509] [510] formal legislation, but were written up locally in the areas or municipalities to which they were directed.“}

Another classification of laws which, according to Tibiletti, should be discarded is that of leges dictac, that is, unilateral legal determinations im­posed upon property by its owner.¹⁹ Such provisions may be placed upon property by a private person, e g., an easement created at the time of alienation.²⁰ The term has also been employed by modern scholars to signify the legal provisions placed upon the use of state property, e.g., temple ordin­ances, regulation for the operation of state mines, etc.²¹ However, Krüger long since pointed out that the expression is not found in this usage among ancient writers/² and it is clear it has no content for modern scholarly criticism.²’

2. Statute and the Law (lex iusque)

§ 79 In the first decade of this century an Italian scholar, Rotondi, undertook a number of detailed studies on the leges enacted by the Roman people, studies which have served as the point of departure in research on the nature of statutory enactments to this day,¹ It became clear that statutes (leges) served only a limited purpose in the evolution of the Roman law, namely, the attempts of settlement of questions of the moment.² The leges of the Roman state subsequent to the enactment of the Law ofthe Twelve Tables were not designed to bring about broad changes of asocial or economic nature.

18. Frederiksen, JRS 55 (1965) 183, 189 ff.

19. Tibiletti, 'Leges dictae’, Studi Passerini 179-90.

20. The technical expression is legem suae rei diccre, cf. VIR II 227.30-53.

21. Kipp, Geschtohre 48 f.

22. Krüger, Geschichte 257 n.l 1.

23. An index to the so-called leges dictae in the public law held is given by Tibiletti in an appendix to 'Sulle leges romane*. Studi De Frontisti IV 593, 623 ff. ^{[511] [512] [513] enacted law (lex lata) was utilized to supplement the body of law(ius) which was already in existence. Wieacker has emphasized the opportunism which is characteristic of public laws.4 There was never any attempt to regulate the general nature of a particular legal institution; lex was designed for the special situation.5}

The number of leges which can be counted in the sphere of private law was relatively small, some twenty-five or thirty among a total of eight hundred during a period of some five hundred years.* These private leges have been grouped in various ways. Schulz, for example, notes that there was legislation respecting private procedure (a lex Aebutia extending the scope of the formulary process), laws directed to the abolition of social evils (a lex Cincia restricting excessive donations, a lex Plaetoria protecting minors, a lex Voconia curtailing women’s right of succession), others where state action was required to fix definite amounts (a lex Aquilia on damage to property, a lex Falcidia on the quota reserved from testamentary disposi­tion), still others where norms of private law were combined with adminis­trative measuresfa lex Atilia on the appointment of guardians, a lex Cornelia on public actions for injuries).’ It has been suggested that the matters dealt with by legislation were on the borders of the private law, but vital for the undisturbed internal order of the community.’

Only with the Principate did leges take on the full character of statutory enactments, measures introduced by the emperor to carry out (his) state policy.’ Augustus attempted extensive social reforms through a series of leges; ‘for the first time a total purposeful concept of apolitical constitution led to a thought-through legal policy - although ultimately without result due to its artificiality¹.*⁶ During the first century of the empire, a number of leges were enacted, but, as Buckland pointed out, these were in no real sense legislation by a legislative body but merely automatic popular approval of imperial proposals.“ The last known lex was enacted during the rule of

4.

5. GiolTredi, SDH1 13/14 (1947/48) 7, 72 ff., von Schwind, Münch. Beitr. 31 (1940) 24-26, went so far as to deny the identification of lex with 'statute*; lex was the norm provided for the particular case, with no intention of regulating future cases.

6. Enumerated by Rotondi, Leges 100-02.

7. Schulz. Principles 9 f. For other schemes of classification, set Bruns-Lcncl, Geschichte 336-38; De Frandsci. Storla 11.1 205-13: Wieacker. Rom. Recht 61-68.

8. Wieacker. Rom. Recht 66.

9. Pugliese. Atti Cong. Verona II 61. 81.

10. Wieacker, Rom. Recht 78. The text of Augustus’ legislation, as revealed in the sources, with full commentary, is set forth by Biondi, Acta dMAugusti I 101-223. Note also the dis­cussion of Augustan legislation, by Last, CAffX. (1934) 425-64.

11. Buckland, Text-Book 7. The course of this legislation is set forth, briefly, by De Frandsci, Storla II. 1 278-80.

Nerva; presumably the legislative process was not abolished de iure, but de facto ceased to be utilized.¹² Lex was replaced, in part by senatorial resolu­tions upon the proposal of the emperor (infra, chap. X), and in part by im­perial constitutiones (infra, chap. XI).

The relation of enactment (lex) to the body of law in general in early Rome has long been a matter of dispute among scholars in the field?² Ac­cording to Mommsen, ius meant the juridical system as a whole while lex was the particular, positive enactment which was joined to the existing body of law.¹⁴ Mitteis held that lex signified reference to a specific legal principle and the remembrance of the origin of an individual legal rule; ius was the existence of law and of its totality. “Ius was thus the more genera), though it could also signify the unformulated rule. Rotondi contended that lex was a secondary and supplemental source of law, in antithesis to the normal source, ius, and that consequently the relation of lex to ius was one of sub­ordination rather than of co-ordination?* Arangio-Ruiz contrasted the Greek view of law - where statute was considered the source of law par excellence - with that of Rome where ‘law was constituted by custom’ (ius moribus constitutum est) eternal, yet capable of adaptation.“ Lex was the exceptional measure for special situations, and - as he believed - constitu­tionally limited, in that it could not derogate from ius in certain respects (see infra, § 90).

The identification of ius with ‘custom of the ancestors’ (mores maiorum) has led to the unwarranted assumption that it connoted customary law (see further, infra, §§ 92-98). Too much stress cannot be laid upon the caution expressed by Schulz, in emphatic words: ‘The traditional rules emerging from the combination of legal decisions and practice [ius] may be called customary law, but it must not be forgotten that this “customary law” of the era up to the end of the classical period is not identical with the customary law of Justinian or modem continental theory.’¹¹ Unfortunately, many writers have identified ius with customary law. Recently, however, the view has gained favor that ius was looked upon as that body of norms which had always existed; hence the determinations of judicial organs or juristic inter­pretation were merely recognition of existing law?* Continental scholars

12. Karlowa, Rechisgesehichle I 624.

13. A summation of various views by Biondi, ‘lex e ius’, BIDR 67 (1964) 39-69.

14. Mommsen, Staatorecht III 310.

15. Mitteis, Row. Privatrechl I 30-35.

16. Rotondi, Scrilli I 31-34; accord, De Francisd, Storia I 226 ff.

17. Arangio-Ruiz, Rariora 241,

18. Schulz, Principles 13 f.

19. Kaser, Aitrom. Ius 35 fl., 63, 67 ff., and Rom. Privatredu 1 24; Orestano, BIDR 46 (1939) 194, 227 ff.

as well as those trained in the Anglo-American legal system have recognized that the relation of lex to ius in Rome was quite similar to that of statute law to common law in an early period of English law.¹⁰ Hence, we may look upon ius and lex as independent sources of the law, the former - as we shall see (infra, chap. VIII) - largely provided by the interpretation of the jurists, jurists’ law, and the latter the enactments of the popular assembly, the acceptance of draft proposals submitted by magistrates.

This section may be concluded by reference to those instances where the usual contrast between ius and lex - which has just been set forth-does not hold.

Pomponius, Libro singulari enchiridii (D. 1.2.2.1)

at the beginning of our state the people undertook at first to act without fixed statute or fixed law (lege cert a hire certo). and everything was personally governed by the kings.

Gelltus, Nodes Atticae V. 19.9

The words of this request (for the adrogation of a person of majority} are as follows:⁴Do you wish and will you order that L. Valerius become the son of L. Titius as lawfully and legally (iure legeque) as if he had been born ofthat father and mother of the family, and that Titius have the power of life and death over him which a father has over a son. This, as I have stated it, I thus ask of you. fellow Romans.⁴

Lex antonia de termessibus 11.18-22 (71 B.C.)

What statutes and what law and what custom (quae leges quodque ius quaeque consuetude) were in force between Roman citizens and those of Greater Termessus in Pisidia during the consulship of L. Mardus and Sex. lulius. let there be the same statutes and the same law and the same custom between Roman citizens and those of Greater Termessus:....

Cf. also Cic. pro Balbo, 8.21-22; Gell. 16.13.6.

Lex coloniae genettvae iuliae LXXIX.5-7 (44 B.C.)

In like manner the persons who own or possess or shall own or shall possess the said land, let them have the law and right (lex iusque) of the right of way to the waters.

20. von Ltibtow, SZ 66 (1948) 458, 559 ft, and Volk 505; Clark, Melanges Fitting 1241,246; Schulz, Principles 16 f, quoting Munroe Smith’s characterization of American case law; Stein, Argu/af 4-7.

Among literary and legal authors ius and lex were frequently employed with little discernible differentiation in meaning, as in the Ciceronian and Pomponius passages above?' In archaic formulae like that uttered in the case of adrogatio, both elements appear to connote the same creative force of norms.^{[514] [515] The legislative draftsman certainly intended, by the clause lex iusque esto, Met there be law and law’, to express a single concept, that of law encompassing all conceivable forms, without reference to a particular norm of ius or a given enactment (lex).[516]’ Broggini has recently canvassed all the occurrences of the binomial expression, setting forth the particular connota­tions of each, and noting that it is difficult to ascribe an antithesis to ius and lex, or even to stress the exceptionality of lex (statute) in contrast to the normality of ius (law). Ius, he says, means the just solution; and ius lexque esto is not very different in its connotation.[517]}

3. Legislative Assemblies

§ 80 There were four methods of assembling the citizenry in Rome for the purpose of enacting legislation: the curiate assembly (comitia curiata), the ccnturiate assembly (comitia centuriata), the tribal assembly (comitia tributa), all assemblages of the whole citizenry; and the meeting of the plebs (concilium plebis).

a. Comitia

§ 81 Geixius, Nodes Atticae XV.27.1-2, 5

In the first book of Laelius Felix on Q. Mucius it is stated that Labeo writes: Comitia (assemblies) are ‘convoked’ which are held before the college of pontiffs for the purpose of inaugurating either a king or fiamines (priests). (2) Some of these (assemblies) are ‘curiata’, others ‘centuriata’. ’Curiata’ are called, that is, ‘convoked’ by the curiate lictor, ‘centuriata ’ by the trumpeter. (5)... In the same book this also was written: ‘ When a vote is cast by families (gentes) of men the assembly is “curiata”, when according to censusandage “centuriata”, when according to regions and places “tributa”; moreover, comitia centuriata may not constitutionally be convoked within the pomerium (bounds of Rome) because the army ought to be commanded outside the city, and not lawfully commanded within the city. Therefore, the centuriata is wont to be held on the Campus Martins, and the army ordered for the purpose of defense while the people is engaged in casting votes. '

Gellius, Nodes Atticae XIII. 16.1-3.

The same Messala in the same book ‘On minor magistrates' wrote as follows: ‘A consul can call off both an assembly (comitiatus) or a meeting (contio) called by any of the magistrates. 4 praetor can call off an assembly ora meeting in any case except (when called) by a consul. The minor magistrates can never call off an assembly or a meeting. In this matter the one who first calls an assembly does so properly, since there cannot be twofold action with the people (on the same matter), nor can one call off that of the other. But if they desire to address the people without ading with them, any number of magistrates may hold a meeting (contio) at the same time. ’(2) It is clear from the words of Messala thatitisone thing ’to act with the people', another 'to have a meeting’. (3) For 'to act with the people' is to propose something to the people which it may order or forbid by its votes; however, ‘to hold a meeting’ is to speak to the people without any proposal (being put before them).

It is unnecessary to enter into a lengthy discussion of the formal assem­blies and the meeting of the plebs. For further treatment of what is here presented in outline consult the standard works on legal history and public law.* The following summary attempts to present the highlights in the development of the legislative functions of the various assemblies, omitting the remainder of their activities.

A comitia is an assembly of the populus Romanus, convened by a magis­trate and organized in a particular fashion. It is to be distinguished from a contio, the informal gathering of the people not assembled in accordance with any political arrangement, without power of final decision, called only to receive reports from magistrates or to consider proposed legislation prior to voting upon it.^{[518] [519] Similarly, comitia is to be distinguished from concilium, for the latter is a general term for any gathering of the people, or, as a tech­nical term, connotes the assemblage of part of the citizenry, the concilum plebis?}

The oldest comitia, the comitia curiata, probably grew out of earlier re­unions of the curiae (wards) in the time of the Kingdom, convoked by the king to witness the completion of certain solemn acts undertaken by the state.^{[520] [521] [522] [523] [524] [525] [526] [527] It is unlikely that the comitia curiata ever exercised true legislative functions, though in late republican times its attestation of certain private acts, such as adrogation - the adoption of a son to carry on the family name and duties - or the naming of a son and heir by testament (testamentum calatis comitiis) entailed the formality of the collaboration of the populace, meeting in curtate assembly? Throughout the time of the republic, also, this assembly gave its approval to the investing of newly elected magistrates with sovereign power (lex curiata de imperio)?}

At an early time - tradition attributes it to Servius Tullius - a second assembly, the comitia centuriata, was created? If, at the start, it was an assembly of patricians and plebeians organized by centuries, the military unit of a hundred men/ the organization of the 193 centuries of the early republic was determined by the property assessments of the population? The arrangement was such that the wealthy, aristocratic elders had a pre­ponderant voice in the actions of the centuriate assembly. Reforms in the 3rd century B.C. gave a more democratic cast to the organization of the as­sembly, but did not accord rule to the majority of the citizens of Rome?⁰ In the early period of the republic the centuriate assembly was the pre­dominant force in legislation, but with the entry of the comitia tributa into this field (see below) and the equal force of plebiscites with comitial legisla­tion (see § 82), the comitia centuriata ceased to play a significant role in enacting legislation affecting the private law."

At an uncertain date, but presumably prior to the Twelve Tables, a third method of assembling the populace was established, the comitia tributa.'¹ Some scholars have maintained that this assembly was but a transformation of the meeting of the plebs (concilium pie bis). It resulted, according to Arangio-Ruiz, when patrician magistrates brought certain measures before the plebeian tribal assembly;^{[528] [529] [530] according to Weiss, when the patricians participated in the acts of the plebeian meeting subsequent to the lex Hortensia.’[531] [532] [533] The prevailing opinion, however, is that the comitia tributa is quite distinct from the concilium plcbis." The assembly ‘by tribes’ was organized according to the residence of the voters, in the four urban districts or within the sixteen, eventually thirty-one, rural areas.’4 All new citizens were assigned to one of the existing tribal communities by action of the censors, a device that preserved patrician control.[534] [535] The conservative, agricultural element was predominant in the rural districts so that the more numerous landless citizenry of urban Rome had little voice in the determinations of the comitia tributa, for each tribe had but one vote. This assembly was responsible for the enactment of much of the legislation during the late republic, its sphere of activity not clearly distinguishable from that of the comitia centuriata.11}

The special characteristics of the popular assemblies during the early principate are touched upon in the chapter devoted to the emperor, chap. XI.

b. Concilium plebis

§ 82 Gaius, Institutionum commentarius 1,3

A lex is what the people (populus) orders and establishes. A plebisdtum is what the plebs orders and establishes. Moreover, the plebs differs from the people in this, that by the term populus the whole citizenry is meant, including the patri­cians: by the word plebs, however, all the other citizens excluding the patricians are meant. Therefore, formerly, the patricians said that they were not bound by plebiscita since they had been made without their authority. But later a lex Hortensia was passed, by which it was provided that plebiscite should bind the whole people. Accordingly, in this way they were equated to leges.

The fourth assembly to which references has been made was that known as the concilium plebis (the meeting of the plebs). It was convened by the plebeian ‘magistrate’, the tribune of the plebs, and its enactments were known as plebiscita, literally ‘orders of the plebs’.¹ The occasion for the earliest acts of the plebeians was the strife between the two classes of early Roman society, culminating-as we have seen-in the successive concessions granted to the plebeians.¹

Livius, Ab urbe condita 01.55.1-3 (449 B.C.)

L. Valerius and M. Horatius were elected consuls through an interrex, and at once occupied the magistracy. Their consulship was favorable to the populace without any injury to the patricians, yet not without offense to them; (2)for whatever measure was provided for the benefit of the plebs, they regarded as diminishing their own resources. (3) First of all - since there was a legal dispute whether the patricians (patres) were bound by plebiscita - they (the consuls) proposed a statute to the centuriate assembly that whatever theplebs. by tribes, had ordered should bind the people, by which law a most keen weapon was given to proposals by the tribunes.

Lex Valeria Horatia de plebiscites; cf. also Dionys. Hal. 11.45.

Livius, Ab urbe condita VOL 12.14-15 (339 B.C.)

The dictatorship (of Q. Publilius Philo) was popular for in his speeches he hurled invectives against the Senate (patres) and because he offered three laws most advantageous to the plebs and hostile to the nobility: (15) one. that plebi­scites should bind all citizens: > · · ^{[536] [537]}

Gellius, Nodes Atticae XV.27.4

In the same book of Laelius Felix these matters were written: ’One who orders Mt the entire people but some part thereof to attend, ought not to proclaim a "comitia" but a "concilium". Moreover, the tribunes neither summon the patricians nor can they refer to them about any matter. So the proposals of the tribunes of the plebs which have been approved are not correctly called "leges" but "plebiscita", by which proposals patricians were not bound until Q. Horten­sius, the dictator, passed a statute that all the citizens were to be bound by a law which the plebs had enacted.'

Cf. also D. 1.2.2.8.

Tradition accounts three separate occasions on which plebiscites were said to bind all, and thus be equated to leges: the lex Valeria Horatia of449 B.C., the lex Publilia Philonis of 339 B.C, and the lex Hortensia ofc. 286 B.C. Scholars have by no means agreed upon the relation of these laws to one another, or indeed upon the significance of any of this legislation? Costa, for example, advanced the view that the lex Hortensia equated the enactments of the comitia tributa with the leges of the centuriate assembly, and had nothing to do with plebiscita? Baviera maintained that the lex Hortensia placed plebiscites concerned with private law on a par with leges? Voigt thought that the lex Publilia Philonis and lex Hortensia were mere reitera* tions of the lex Valeria Horatia? The majority, on the other hand, take the first two as legendary, the lex Hortensia being the sole act which brought plebiscita to the level of leges? More recently, the view has gained ground that the lex Valeria Horatia is fictional, while the lex Publilia Philonis pro­vided that if plebiscita were to be binding upon the whole citizenry they had to be approved by the Senate, and transformed into true leges by the vote of the centuriate assembly. Then by the lex Hortensia, senatorial action was postponed until the proposal had been accepted by the assembly? Just what does this mean: that plebiscites, like leges, were subject to auctoritas patrum, the ‘approbation of the Senate’, or the reverse, that laws as well as plebiscites were relieved from subjection to auctoritas patrum?

3. Earlier bibliography by Kipp, Geschidite 29 f.; Siber, s.v. Plebiscita, RE 21 (1951) 58 if. More recently, survey of the literature, Biscardi. BIDR 48 (1942) 403,432-503; von Lilbtow, Volk 104 no. 482-83; note also Weinrib, 5Z87 (1970) 394, 418-25.

4. Costa, Storla delle forut 15-19, and Man. Bologna set. 1.6 (1912) 77—85.

5. Baviera, Studi Brugi 365, 371-76.

6. Voigt, Rechtsgeschichte 1814-17.

7. Pacchioni, Bonfante, Lend, Kipp, KQbler, De Francisci, Siber, Kaser; reff. by KQbler, Geschidite 72 n.4 and von Liibtow, Volk 104 n.483.

8. Guarino. ‘L'cxacquatio legibus dei plebisdta', Festschrift Schulz 1458-65, with further reff. [= reprinted with postilia, Guarino, Ordinamento 376-84]; cf. Gaudemet, Institutions 388-89.

c. Auctoritas patrum

§ 83 Cicero, De republics 1.32.56

In those times (the earliest republic) the Senate held the state in such a situation that, although a free people, little was done by the people and a good deal by the authority of the Senate (auctoritas patrum), ordained by law or by custom. Furthermore, the consuls had a power limited to a year in time but regal by nature and by law. And that which particularly led to the retention of power by the aristocracy was strenuously maintained, that the assemblies of the people should not be valid unless the authority of the Senate had approved them.

Livius, Ab urbe condita 1.17.8-9 (716 B.C.)

The senators, when they recognized the seriousness of the situation (threat of increased serfdom placed upon the plebs), judged it wise to give up what they could not retain much longer. Yet while they gratified the populace by granting sovereign power to them, they took care not to give up more rights than they retained. (9) For they decreed that when the people elected a king, this should only be valid if the Senate approved (pat res auctoresfie rent). And to this day the same right is afforded with respect to the enactment of lawsand (the election )of magistrates, though the effectiveness of it has been taken away; for before the people goes in to vote, the senators approve the result of the assembly's action while it is still uncertain.

Livius, /16 urbe condita VIII. 12.14-15 (339 B.C.)

The dictatorship (of Q. Publilius Philo) was popular, for in his speeches he hurled invectives against the Senate and because he offered three laws most advantageous to the plebs and hostile to the nobility:... (15) another, that the Senate should approve laws proposed to the centuriate assembly before the vote was taken.

Cicero, De domo sua oral io XIV.38.

And so in a short time the Roman people will not have... approbators (of the acts) of the centuriate and curtate assemblies.

Auctoritas patrum, the‘approbation of the fathers’, a concept presumably sacral in origin,’ gave the patrician element of Roman society a considerable measure of control in the early republic.^{[538] [539] In historical times the patrician members of the Senate exercised the power of approving comitial legisla­tion, either as to its constitutional validity or as to its merit? Whatever the force of auctoritas patrum in the early period, the legislation which pre­scribed that the decision of the Senate respecting legislation be made prior to the vote of the assembly, and subsequently prior to the enactment of plebi­scites, rendered it little more than advice to the proposer of the legislation. Many authorities consider that it became an empty formality, arguing that there must have been a strong temptation in most cases to give auctoritas to a bill and hope for its defeat in the assembly rather than make a constant show of opposition by refusing auctoritas? Kipp thought that the lex Publilia Phi Ion is was of no great effect, but that auctoritas patrum declined since its purpose, the protection of patrician rights, had itself disappeared? Jolowicz suggested that the purpose of auctoritas was really to insure that leges be in accord with the fundamental religious basis of the Roman state and hence disappeared when religion ceased to play an important role? It may, how­ever, be that the statute did not diminish the power of the Senate for it undoubtedly was quite difficult for any magistrate to have a proposed law enacted when the Senate had expressed disapproval of it? There appears to be no particular opposition between the Senate and the representatives of the plebs subsequent to the lex Hortensia to give significance to senatorial approval to plebiscites? All in all, by the last centuries of the republic auctoritas patrum is no longer a factor to be seriously considered in connec­tion with Roman legislation.}

4. The Legislative Process

§ 84 The steps in the enactment of a bill were essentially the same whatever type of assembly was involved, and may be briefly outlined as follows. * (I) A magistrate with the power of calling an assembly prepared a bill, drafted by specialists among his scribes, often submitting the measure to discussion by the Senate, but not necessarily so. (2) The magistrate ‘promulgates’ the bill, that is, makes it known to the people by pronouncement, fixing the meeting

3. A matter of controversy among scholars, cf. De Martino, Storla I 272 ff. Cf. most recently, Branca, /«nr 20 (1969) 49-51.

4. Krüger, GescAÄshre 24; Kubier, Geschichte 107; Biscardi, BIDR 48 (1941) 403,445-49.

5. Kipp, Geschichte 59. Cf. De Martino, Stan« II 149-53.

6. Jolowicz, introduction 30-31.

7. Willems, Sinat II 69-74. Cf. Sibcr, Ve/fassungsrecht 141.

8. Gaudemet, Institutions 351-52.

1. Greenidge, Public Life 255-60; Karlowa, Rechtsgeschichte I 388-405; briefly, Krüger, Geschichte 17-20; Gaudemet, Institutions 389-91.

day upon which it will be voted. (3) A stated interval, three market days (trinundinum), must elapse between the date of the promulgatio and the meeting of the assembly, during which time preliminary discussions at informal meetings (contiones) are held, at which individuals may argue for or against the bill? (4) The night before the meeting of the assembly the magistrate consults the auspices; if unfavorable, the assembly must be post­poned? (5) The meeting assembles, not yet grouped according to any order, a prayer is offered and a sacrifice made, and then the projected bill is read. (6) Limited discussion of the bill follows, in which anyone in the contio may participate. (7) The contio is dissolved, the non-voters leave, the people group themselves according to voting divisions (by centuries or by tribes) and the comitia is now formally convened. (8) The bill is again read and the magistrate puts the question (rogatio): ‘I ask you, Quirites, what you wish?' (9) The voting takes place - originally oral, after the lex Papiria tabellaria of 131 B.C. by secret written ballot - with the units (centuries or tribes) casting a single vote either affirming the proposal: ‘as you request’ (uti rogas, abbrev. V.R.), or declining it: ‘let the law remain as it is* (antiquo, abbrev. A)? The votes are counted and when a majority has been reached, announcement (renuntiatio) is made. (10) The assembly is dismissed and the proposal, if accepted, is now law, unless the bill itself provides that it go into effect at a future date. (11) In the course of time the law was deposited in the archives and, occasionally, publicly posted. The above is a general scheme of the legislative process, and to a few of the items primary evidence and secondary comment is added in the following paragraphs.

a. Rogatio

§ 85 Gellius, Nbctes Atticae X.20.1-4, 7-9.

1 hear it is asked what lex is. what plebisdtum, what rogatio. what privilegium? (2 / Ateius Capita, most learned in the public and the private law. defined in these words what lex is: 'Lex’, he said, 'is a general order ofthe people or ofthe plebs. upon the proposal of a magistrate. ’ (3} If this definition is well framed, neither the inquiry concerning the imperium of Cn. Pompeius nor concerning the return of M. Cicero nor concerning the death of P. Godius nor other commands of the people or of the plebs can be termed ‘leges’. (4) For they are not general orders nor for the whole citizenry, but drawn for individuals. Wherefore, they ought better be called ‘privilegia' (private bills I, since the ancients said priva' where

2. See Kiibler, s.v Suadere legem, rogationem. RE 4A (1932) 465-66.

3. Details, with reff, Rotondi. Leges 137-38.

4. Cf. recently. Hall. ‘Voting Procedure in Roman Assemblies’. Historic 13( 1964) 267-306; Taylor, Roman Voting Assemblies (1966) 34-58.

we say 'singula... (7) But the veryfont and source and, as it were, the fore­head of al! this matter and law (iusf either where the people or the plebs is pro­posed to, or where it pertains to all, is the ‘rogatio’. {8) For all these words (lex, plebisdtum, privilegium) are included within the principal head and name of 'rogatio'; for unless the people or the plebs is questioned, there am be no com­mand of the people or of the plebs. (9) But although these things are so. yet in the old writings we do not notice that there is much distinction between these terms. For they called both 'plebisdta' and privilegia' by the general name of ‘lexand spoke of all these things by the confused and uncertain word ‘rogatio'.

Festus, De verborum significant ‘rogatio’

There is a rogatio when the people is consulted concerning one or many men which does not pertain to all men, and concerning one or many things of which provision is not made for all. For what the people has done for all men or things is called lex. Thus Gallus Aelius says: ‘There is this difference between lex and rogatio. Rogatio is a type of lex, a lex is not always a rogatio; a rogatio cannot be other than a lex if, in fact, it has been proposed at a lawful assembly. ’

CL also Festus, xv. rogat.

The literal meaning of rogatio is that of the question put to the assembly by the magistrate, ‘I ask what you wish?’ Consequently, it serves to connote the draft bill which has just been read to the assembled citizens.^[540] What, then, do we make of the opening statement in the Festus passage? Mommsen dismissed it cursorily: ‘this distinction between lex and rogatio has neither sense nor reason.*^{[541] [542] [543] The recent discovery of an inscription, the so-called tabula Hebana concerning the election of consuls and praetors in the open* ing years of the Principate, has raised the problem anew? The tabula Hebana uniformly terms itself a rogatio, in contrast to an earlier lex, to which it refers and to which it is supplemental? Schdnbauer thus concluded that the tabula Hebana was merely a draft proposal, and so technically rogatio? But Coli has shown that this cannot have been the case,[544] [545] [546] and that actually the tabula Hebana was an enactment like the bills directed to individuals which Ateius Capito held could not be termed leges.7 It was a legislative enactment conferring posthumous honors upon an individual, Germanicus Caesar, nephew and adopted son of Tiberius.· Coli would thus trace back the first statement in Festus to the views of a grammarian which differed from those of Aclius Gallus. Indeed, he says: ‘I think that the antithesis rogatio/Iex in the tabula Hebana reflects precisely the terminology authoritatively de­fended by Capito against the confusion of the old writings.’·}

Tibiletti, author of a valuable study on the inscription,¹⁰ thought that draft proposals incorporating resolutions of the Senate - which is the case with the tabula Hebana - were binding even prior to approval by the comitial assembly. Stavelcy, in similar view,^{1 [547] thought that the rogatio was worded in the form of a senatorial decree, and its publication in this form on permanent tablets suggests that its projected presentation to the people for conversion into a lex was purely ceremonial. The translators of the text in Ancient Roman Statutes suggested that the text of the rogatio had been forwarded to Heba after enactment, but before the text had been edited by the proposing magistrate.12 In a survey of Roman public law De Martino concluded that the tabula Hebana did not afford conclusive evidence fora solution of the problem rogatio/Iex in the Roman law.”}

b. Validity of leges

§ 86 Cicero, £>e re publica 11.32.56

In those times (the earliest republic)... that which particularly led to the reten­tion of power by the patricians was strenuously retained, that the assemblies of the people should not be valid unless the authority of the Senate had approved them,

Quintilianus, Institutio oratorio II.4.35

Wherefore it am legally be queried ofit (lex), who proposed it, as in the case ofP. Clodius it was alleged that he was not correctly created tribune ; or concerning the rogatio itself, examples being either that it was not perchance promulgated before the third market day or said not to have been passed or proposed on a proper day, or in spite of intercessions, or (unfavorable) auspices, or anything else which prevents its legality; or it is repugnant to any existing laws,

Cicero, In M. Antonium oratio philippica V.4.10

On which account I belive that those laws which M Antonius is said to have enacted were all carried by force and in violation of the auspices, and that the people is not bound by these laws. If M. Antonius is said to have passed any law about confirming the acta of Caesar or ofabolishing the dictatorshipforever, or of founding colonies on the lands, it is required that these laws be passed again with due regard to the auspices in order that they bind the people....

Asconius, In Comelianum, Stangl 54-55 (Or. 67-68)

There are four ways, generally, by H’/uc£r according to the custom of our ances­tors, the Senate determined the status of the laws. One is ofthis type, it held the law to be abrogated, as for example, those laws (enacted) during the consulship of Q Caedlius and M. lunius which hampered military affairs were abro­gated.... Fourth, those things which are alleged to have been enacted do not seem to bind the people, as the leges LMae (enacted) during the consulship of L. Marcius and Sex. lulius.... For it was decreed (by the Senate) that they were enacted contrary to the auspices and did not bind the people.

Only the first and fourth type are spelled out; see Nocera, Il potere dei comizi 290 f.

Lex Latina tabulae banttnae 23-25 (c. 103 B.C.)

Anyone who is or will be a senator or will have expressed his opinion in the Senate after the enactment of this law, in the ten days immediately following the day on which he knows that the people or the plebs have ordered this law, shall swear before the quaestor at the treasury, publicly and in the daytime, by Jupiter and the household gods, that he will do what is properly to be done in accordance with this law and that he neither will act in violation of this law nor will do anything whereby [...]

The remainder of the inscription cannot be understood.

A lex had to be the free expression of the will of the majority, established in proper form. Therefore, any one of a number of irregularities would invalidate a statute: if the vote had been brought about by violence or compulsion; if the auspices had been improperly taken or had been unfavor­able; if there had been no rogatio or if the rogatio had been made by an incompetent magistrate; if an intercessio by a competent magistrate had been disregarded;¹ in sum, if any of the steps of the legislative process had been violated. Any person could raise the question of the validity of a statute before the magistrate who was engaged in the application of the provisions of

1. The doctrine of intercessio has been dealt with, supra, chap. V, $61. the law in a judicial proceeding. In addition, the literary, particularly the rhetorical, sources are replete with references to assertedly invalid legisla­tion?

The discussion at the close of an earlier section (83) revealed that, in the early days of Rome, the Senate had to give its approval to a legislative enact­ment before it gained validity. But when the approbation had to be given before the proposed bill was put to a vote, the senatorial authority lapsed largely into an empty formality. Notwithstanding, in the closing centuries of the republic the Senate took upon itself the power of determining the validity of popularly enacted legislation? The intervention of the Senate in this res­pect will be dealt with in the chapter devoted to the discussion of the func­tions exercised by that body. In spite of these actions, it can be generally affirmed that, during the epoch of classical law, there existed no person or body, and no procedure, to decide authoritatively upon the constitutionality of enacted laws.

To ensure that the law would not be repealed the magistrate who drafted the bill generally included provisions among the so-called sanctio clauses - dealt with below - that would seek this effect, and in addition occasionally required that the present and future members of the Senate, as well as magis­trates, take an oath to respect the provisions of the law and make no attempt to prevent its application? Such is set forth in the lex latina tabulae Bantinae, as well as in other laws of the republic.⁵ This presumably reflects a state of hostility existing between the magistrate proposing the law and the Senate of his time?

c. Promulgation, Publication, Archives

§ 87 Festus, De verborum significatu ‘promulgari’

Statutes are said to be promulgated when they are first made known to the people, that is, provulgari.

The popular etymology is erroneous, see Rotondi, Leges 123 n.4; Wesener, r.v. Promulgatio, RE Supp. 9 (1962) 1239.

2. References collected by Rotondi, Legex 166 f.; Krüger, Geschichte 24 n.92; Willems, S^mt II 111-14,

3. Sec particularly, Noccra, II potere dei comizi e i suoi limiti (1940) 287-92.

4. Maschke, Zur Theorie und Geschichte der romischen Agrargesetze (1906) 35-41; Luzzatto, ‘Sui iusiurandum in legem dei magistrali e senatori romani’, Scritti Borsi (1955) 21-47; briefly, Gaudcmct, Institutions 390 n.6.

5. Cf. also. Lex de piratis persequendis C 11-15 (c. 100 B.C.) [ = FIRA 1 No, 9, trans. ARS No, 56(8)]; Fragmentum Tarentinum de repetundis 20 [ = Epigrafica 9 (1947) 3 if. ]; law proposed by Apuleius, dted by Appian, B.C. 1.29.130 if,

6. Luzzatto, Arch, star, pugliese 4 (1951) 3-16, and briefly, Arch. dr. prive 16 (1953) 86, 87-88.

Cicero, De legibus III.20.46

... We have no custodian of statutes; consequently, those are leges which our public servants will. We seek them from book-sellers; we have no public memory designated for public documents. The Greeks are more careful about this, for among them 'nomophylakes'. guardians of the law, were created, not only for documents - for this, indeed, was the case among our ancestors - but also to observe the acts of men and call their attention to the leges.

Servius, Cbmmentarius in Vergili Aeneidem VII1.322 Antiquity taught this god. Saturnus, both to receive the laws and to stand before the laws. Accordingly. laws accepted by the people were kept in theaerarium, whence it mu called the "treasury of Saturnus'.

Cicero, Scholia Bobiensia pro Sestio 135 (Stengl 140.25-28)

The lex Licina lunia, drafted by the consuls Lidnius Murena and lunius Silanus, having been enacted, provided that it should not be lawful to bring a law to the treasury secretly, since laws are normally stored in the treasury.

Suetonius, De vita Caesarum 1.28.3 (Caesar)

For it had happened that he I Pompey), in proposing a law on the rights of magistrates had forgotten to except Caesar in that chapter in which persons absent were excluded from candidacy for office; shortly thereafter, when the law was inscribed on brass and deposited in the aerarium, he corrected his mistake.

A magistrate proposing a law was required to make it known to the people (promulgatio) and fix thedate when it would be voted upon by the assembly.¹ He could withdraw the entire bill, but no amendment could be made; this required a new promulgation and a new date for the vote. On the basis of the lex Licinia lunia of 62 B.C., and a proposal by Cicero in his treatise on the laws, Mommsen concluded that the draft bill was filed in the archives.^{[548] [549] [550] Now it is believed by most scholars that the lex Licinia lunia was merely the express sanction by statute of a practice that had long existed, namely, the placing of the text of a law after it had been enacted in the general treasury for all official acts of the Roman state.5 It was subsequent to the deposit in the aerarium, also, that Pompey made the correction to the law on magis­trates which he had proposed.}

As has been noted earlier, it was the announcement by the presiding magistrate of the assembly when the votes in favor of the bill had reached a majority (renuntiatio) that gave the act its validity. Von Schwind has shown, at some length, that publication of the law was not a step necessary to its validity.* Deposit in the treasury did not constitute publication, for this was aimed at preservation of the text for posterity, not to bring it to the atten­tion of contemporaries? There was nothing to prevent the proposer of the bill, or any other person or body, from publishing the text of the law, and many magistrates did publish acts considered significant.⁶ And when called for, there might be publication elsewhere in Italy, or in the provinces.¹ But it is apparently true that there was no procedure for gaining general circu­lation of the provisions of the laws enacted in the assembly, or any means of assuring knowledge of the contents for future use. It is in part the absence of publication that was behind Caesar’s project to collect statutes in force? It seems also that ignorance of the true facts led Roman writers to believe that there had been an enormous number of legislative enactments through the centuries’ which, certainly as far as statutes on the private law are concerned, is far from the case. Von Schwind sees the absence of regular publication of laws as one aspect of the Romans’ desire to rely upon the efforts of the jurist rather than those of the legislator to provide for the evolution of the law:

As a people of law and not of statutes, the Romans did not seek a strictly established way of treating a case, but would rather leave it to the jurists in their practice to decide in just what manner a legal dispute was to be

4. Von Schwind, Publikation 26-40.

5. Contra, Landucci, Atti Padova, n.s. 12 (1896) 119, 146.

6. Von Schwind, Publikation 33 f, E.g., the last lines extant of the lex Cornelia de XX quaestoribus of 81 B.C. [= Bruns, Fontes No, 12 « FIRA I No. 10] read: ‘the names of the bailiff* and heralds (selected) for these panels arc posted by the temple of Saturn on the wall within the passage next before this law. -or, according to Cicero's letter to Atticus, Ep. ad Att. 3.15.16; ‘Qodius posted on the door of the Senate house a clause in his law, “it not be permitted to be referred to or mentioned".'

7. Von Schwind, Publikation 40—45.

8. Suet, 1.44: 'from the vast and diffuse mass of statutes to collect the best and most essential in a very limited number of books’. The nature of Caesar’s plans is extensively dealt with by Polay, luru 16 (1965) 27-51.

9. Liv. 3.34.6; Tac. Ann. 3.25; Suet. 1.44.2; even Cicero, pro Balbo 8.21: ‘Among our ancestors G Furius enacted a law on testaments, Q. Voconius enacted one on the inheritances of women; innumerable other statutes (innumerabiles aliae leges) on the ius civile have been enacted.'

determined.... Leges should therefore rather remain in the background in order that their usually casuistic language would not prevent a more satisfactory (less tied to the words) application of the law in another later case.^[551]

5. Form of the Statute

a. Prescriptio and index

§ 88 Cicero, De lege agraria II.9.22

Who proposed the law? Rullus. Who deprived the greater part of the people of the right of voting? Rullus Who presided over the cormtia?... Whom did he declare chief of the decemvirs? Rullus.... I do not suppose he will reject the backers of the agrarian law as his colleagues, who have granted him the first place in the title and heading of the law (in indice et in praescriptione legis).

The short title of a lex, the index, was made up of the name of the proposer or proposers of a bill, and often included an indication of the content of the law. If the proposer was a consul, the names of the two consuls were often given, e.g., the lex Papia Poppaea, proposed under the substitute consuls of the year 9 A.D., M. Papius Mutilus and Q. Poppaeus Secundus. In citation, the name might be followed by a summary indication of the contents, to avoid confusion, e.g., the lex Licinia sumptuaria, proposed by P. Licinius Crassus Dives, c. 103 B.C., to control sumptuary expenditures, and the lex Licinia de sodaliciis, proposed by M. Licinius Crassus, in 55 B.C., against organized electoral frauds.

Fronttnus, De aquis urbis Romae IL 129

T. Quinctius Crispinus, the consul, duly rogated the people and the people en­acted in the forum, before the rostra of the temple of the deified Julius, the day preceding the Ides of July. The tribe Sergia was the first (to vote), S. Sextius L.f Virro voting for the tribe.

The statute itself may formally be divided into (1) thepraescriptio,(2) the rogatio or text of the law, and (3) the sanctio. Cicero has coupled the index and praescriptio, but it would appear that the index was not present in the statute. * In the extant inscription of the lex Antonia deTermcssibus, of c. 70

B.C, the short title is simply I deTermesi. Pisid. mai., that is, ‘thefirst tablet (of the law) concerning (the inhabitants of) Greater Termessus in Pisidia’.^[552] The fullest praescriptio we possess is that of the lex Quinctia de aquaeduc­tibus. It contains the name and office of the consul of 9 B.C. -his colleague Nero Claudius Drusus had died in office. It gives the day and place of voting, the name of the tribe first to vote, and the individual who represented the tribe in this comitia tributa. Staveley, in a recent article,^{[553] [554] points out that the tribe to vote first may have been chosen by lot, but the presiding magis­trate of the assembly named the first voter. The selection of the first voters in the meetings of the comitia tributa was, he believes, intended to influence the votes of those who followed/}

b. The Text

§ 89 Lex quinctia de aquaeductibus 4-14, 22-32 (9. B.C.)

Whoever, after the passage ofthis law, with malice aforethought, pierces, breaks, countenances the attempt to pierce or break, or in any way damages mains, conduits, arches, pipes... of the public water supply,... that person shall be condemned to pay a fine of100,000sesterces to the Roman people.... (22) If any area is marked off on each side of mains, conduits, arches, pipes... of the public water supply,... after the passage of this law no one shall obstruct, construct, fence... or introduce anything into that area. Whoever does anything contrary to these regulations shall be subjected...to the same law, statute and procedure he would be and it is proper he should be, ifhe pierced or broke a main or a conduit contrary to this law.

The language of the texts of statutes should presumably conform to the rather exact language peculiar to legislative draftsmen the world over. Un­fortunately, there has been practically no study of the language of the Roman leges. The most important monograph is that of Daube on particular forms employed in legislative drafting.¹ He has applied the techniques of form criticism to gain further understanding of the nature of various types of enactments among the Romans. The first part of the work concerns itself with forms employed in leges, among other matters, the use of a conditional clause as opposed to a relative clause, the occurrence of ‘oportet’, ‘it is proper’, in lieu of the legislative imperative, the variation in the location of the sanction clause, and several other forms which are found. The passage from the lex Quinctia illustrates the variance between sanctio clauses, and the use of oportet? The monograph by Daube warrants further attention, and further research in legislative form and language is definitely needed. The text was divided into chapters if necessary. If it presented several matters these were sometimes cited separately, even if voted as one, e.g., the lex Julia de adulteriis cocrccndis (the Julian law on the punishment of adultery) and the lex lulia de fundo dotali (the Julian law on dotal property)? In order to stop a magistrate from forcing through an undesirable matter by including it in the same bill with a popular measure, the lex Caecilia Didia of 98 B.C. forbade the inclusion of two or more wholly unrelated matters within one lex, the so-called practice of per saturam? This problem had been attacked earlier, and the lex Caecilia Didia was but the final ruling on the question.

c. Sanctio Clause

§ 90 There are several types of the sanctio clause in a lex. In the first place, according to a standard exposition, the statute may contain a provision res­pecting the penalties to be imposed for the violation of the lex, or regarding the invalidity of the acts performed contrary to the statute? Secondly, Kiibler goes on to state, the sanctio may set forth the relation of the lex to earlier statutes, either (a) that former legislation on the same subject is repealed or, on the other hand, (b) that the earlier legislation is not derogated from by the present law. Finally, the sanctio clause may provide that any effort to repeal or even amend the present law shall be invalid. Gioffredi out­lines four types of sanctio, corresponding to those above? (I) a prohibition against the violation of the provisions of the law, directed to the populace at large; (2) a plea against the abrogation of the lex directed to magistrates not to propose legislation to bring this about; (3) an exemption from liability for anyone violating norms of earlier law contrary to the provisions of this statute; and (4) a self-limitation of the validity of the statute by excluding from its compass legal norms which earlier law declared were not to be nullified.

In the following pages the sequence of types set forth by Kiibler is pre­sented.

2. Daube, Forms 23 ff., specifically 27; and Forms 8 ff., specifically 22 f.

3. Biondi, in Acta DM Augusti 112 (introd, note) and 127 n.3.

4. Licbcnam, K Comilia, RE 4 (1901) 679,695.

1. Kiibler, n. Sanctio, RE 1A (1920) 2245-46.

2. Gioffredi, ‘La sanctio della legge e la pcrfectio della norma giuridica’, Arch, penale 2 (1946) 166-85, which Arangio-Ruiz, Sioria 93 n.l [94] terms 'molto acute’. A recent dis­cussion by Serrao, s.k Legge (Diritto romano), EdD 23 (1973) 794, 828-35.

a. Penalties Provided

Papinianus, Libro II defimtionum (D. 48.19.41)

The sanction of laws which has most recently imposed a specific penalty upon those who do not observe the provisions of the statute does not seem to apply to those types in which a penalty is specifically added to the law itself...

The remainder of the text may well be interpolated» cf. Index Interp., ad h.l.

Ulpianus, Libro LXVIII ad edictum (D. 1.8.9.3)

We specially term 'sanctioned' (sanctus) those things which are neither sacred nor profane but are protected by some kind of sand io: thus leges are 'sanctioned' because they are upheld by a particular sanction.... And sometimes it is added in the sanctio clauses themselves that one who does something (offensive) there shall be capitally punished.

Lex iuiia agraria K..LV (Bruns, Fontes No. 15) (59. B.C.)

Whoever founds a colony... shall provide that boundary lines and roads shall be made and boundary stones shall be set up.... Whatever boundary stones are set up by this law, no one shall overthrow or move any of themfrom its place with malice aforethought. If any one shall have done anything contrary to these provisions, for each several boundary stone which he overthrows or moves from its place with malice aforethought, he shall be condemned to pay5000sesterces to the public treasury of those persons within whose borders this land will be; and concerning this matter the curator... shall grant right of action and appoint and assign judges....

CL also Lex latina tabulae Bantinae, 7-9, 19-21.

Modem students are wont to identify sanctio with today's connotation of the word. In this sense one considers sanctio that part of the statute which sets forth the consequences of not carrying out the norms provided in the lex: penalty for violation, nullity of the act performed contrary to the law, damages, etc. Actually, sanctions of this character cannot exist outside the rogatio, as is evidenced above in the passage from the lex Iuiia agraria. Further, sanction in Rome is technically a clause or clauses apart from the rogatio, serving to set forth the relation of this statute to other legislation, prior or subsequent thereto? It may, however, be employed in a less technical sense, as in the Papinian passage, or as is implicit in the classifica­tion of statutes set forth in the passage of late or even post-classical times given immediately below.

3. Well expressed by Arangjo-Ruiz, Storia 93-95; cf. also Rotondi, Leges 151-53.

Ulfianus, Regularum liber singularis, Pr., 1-2

< Leges are either perfectae, imperfectae or minus quam perfectae. A lex per­fects (perfect statute} is one which forbids something to be done and if it be done rescinds it, of which type is the lex (? Aelia Sentia}...A lex imperfecta (imperfect statute} is one which forbids something to be done, and if it be done neither rescinds it nor imposes a penalty on him who has acted contrary to the law, of which type is the lex Qncia, prohibiting donations of more than... sesterces, > except those to certain persons related, and if more has been given, does not rescind it. (2} A lex minus quam perfecta (statute less than perfect} is one which forbids something to be done, and if it be done does not rescind it but imposes a penalty on him who has acted contrary to the statute; of which type is the lex Furia testamentaria which prohibits the taking of more than one thousand asses as a legacy or gift mortis causa, save to persons specially exempted, and imposing a fourfold penalty on anyone who has taken a larger amount.

Restoration of the first paragraph according to the conjectures of Cujas.

It is probably true that Ulpian did not rest his classification of statutes upon any notion of sanctio? yet it would seem that leges imperfectae, which were quite numerous, did not contain a sanctio clause. Whether perfect and less than perfect leges had a separate sanctio clause is open to ques­tion? The basis of the threefold classification of leges is a matter of dispute to this day. An early view was expressed by Huschke* that the absence of the sanctio in the leges imperfectae is evidence of the great antiquity of such leges, for the reason that the freedom of the individual to exercise the rights given him by law (ius civile) could not be tampered with by legisla­tive action in the earliest times. This view is countered by the point that all legislation is restrictive? Nevertheless, Guarino today, in what is perhaps the prevailing view, slates that the classification can only be explained his­torically, for leges imperfectae are ancient or obsolete pre-classical laws, rogated in an era in which the conviction of the immutability of the ius civile was still the governing idea? Frezza would challenge this view? Early leges, such as the lex Claudia de sociis (177 B.C.), requiring the sons of Latins and allies who had emigrated to Rome and been manumitted to be­come Roman citizens, to return to their places of origin before a certain

4. Kruger, GtKtaAe 81 n.21, with reference to Baviora, infra, n il,

5. Cf. Jolowicz-Nicholas. Introduction 87 f.

6 Huschke, D»e Multa und das Sacromeniwn (1874) 86.

7. Krilger, Geschichte 21 n.82.

8. Guarino, Ordinameruo 134 f.

9. Frezza, 'Preistoria e storia della lex publica¹, B1DR 59/60 (1956) 55,79-80. date, and the lex Poetelia Papiria(326 B.C.), which modified the particulars of noxal service, and even a law of the Twelve Tables (450 B.C.), which limited the power of a pater familias to sell his son, giving the latter free­dom from potestas on the third sale, were all leges perfectac, quite clear limitations on an individual’s ability to engage in transactions established by the ius civile. Grosso questioned the evidence offered by Frezza, and Frezza has replied, seeking to justify his position.¹*

Baviera long since” argued forcefully that Ulpian was not concerned with sanctio, but was solely interested in the effectiveness of statutes, in other words, as Gaius says of the lex Furia testamentaria - termed by Ulpian a lex minus quam perfects - ‘this statute failed to accomplish its purpose’.¹¹ Furthermore, Baviera maintained that sanctio had nothing to do with leges of private law, but is to be found only in leges publicae, originally in those laws of penal character. To some extent this view is reflected in recent studies, those of Gioflfredi, Pugliese and Di Paola. Even in the time of the republic, Gioffredi declared,'¹ sanctio came to signify not only a declara­tion that a law was perfect but also imposed the threat of a penalty for a violation of the provisions of the law. Hence the distinction between leges perfectae and leges imperfectae was not concerned with the age of the laws, but with the broad or narrow intervention of the state in private affairs: where the state had little or no interest, it was sufficient for the legislator to express the prohibition without providing a penalty.^{[555] [556] [557] [558] [559] Pugliese advanced the view that it was not a question ofthe efficacy of statutes which led to the distinction between leges imperfectae and leges minus quam per­fectae, but rather the absence of a precise conception of nullity.[560] [561] [562] Di Paola disputes the generally accepted doctrine that leges perfectae were relatively late in appearance because no restriction on the individual’s right to enter into transactions of the ius civile was countenanced in early times.14 He argues, on the contrary, that at no time did leges perfectae sanction the nullification of acts which were prohibited by legislation. The lex Aelia Sentia, a lex perfects, for example, forbade manumissions in fraud of cred­itors. However, such transactions were not nullified, as various texts show,11 but, simply, were of no efficacy. The classification of leges in the Ulpian passage is not a technical one: the threefold classification refers simply to different legislative techniques to which recourse was had to ren­der nugatory the effects of a given transaction.1· The problem of the clas­sification of leges in the passage in Ulpian’s Regulae is far from being settled; we must leave it at that.}

p. Relation to Earlier Statute

i. Repeal of Contrary Legislation

Lex xii tabularum 12.5

WWew the people shall have ordered last, this shall be valid law (iusJ.

Derived from Liv. 7.17.12; cf. also Liv. 9.34.7.

AUCTOR, Ad C. Herrenium oratio II. 10.15

WTien tw laws are in conflict with one another, it must first be seen whether this is indirect repeal (obrogatio) or partial repeal (derogatio); then whether the statutes so conflict that what one commands the other forbids, or that one compels what the other permits.... Similarly, that defense is weak when it is shown that something has been done which a la w sanctions, the statute having been abrogated or derogated from, while that which has been sanctioned by a later law has been disregarded.

Ulhanus, Regularum Uber singularis, Pr. -3

lex is either rogated, that is, proposed, or is abrogated, that is, a prior statute is repealed, or is derogated from, that is, part of the earlier statute is repealed, or is subrogated, that is, something is added to the earlier statute, or is obrogated, that is, something is changed from the earlier statute.

Cicero, Epistulaead Atticum III.23.2

... The second chapter (of the law of Oct. 29, 58 B. C / onfreedom from penalty is the usual one: 'if something be done by virtue of this law contrary to other laws'.

Fragmentum tuderttnum 7-8

If anyone on the basis of this law shall have done something contrary to other laws or does not do... which such act shall not subject him to prejudice, fine or penalty.

Lex de imperio vespasiani 33-39 (69 A.D.)

Sanctio. If anyone by reason of this law has done or shall do anything contrary

18. But see the critical observations by Gandolfi, Labto 16 (1970) 69, 74-75. to any statutes, rogations or plebiscites or resolutions of the Senate, or if, by reason of this law, he does not do what it is proper for him to do in accordance with statute, rogation or plebiscite or resolution of the Senate, this shall not be to his prejudice nor shall he be liable to pay anything (as penalty) to the people on this account, nor shall anyone have a right of action or a Judgment concerning this matter, nor shall anyone allow an action to be pleaded before him concerning this matter.

In the second place, a sanctio clause may be concerned with the relation of the lex so sanctioned to earlier leges, in that it may provide that earlier statutes dealing with the same subject matter be considered repealed - or at least those which reached a contrary result - and that the transgressor of such earlier legislation go without penalty.” The various types of repeal or modification of legislation are noted in the passages above. Abrogatio legis is the total repeal of an earlier law; so, for example, the law of the Twelve Tables which forbade marriages between patricians and plebeians ‘was later abrogated by the Canuleian plebiscite’ (Cic. de re pub. 2.37.63). Repeal of a portion of an earlier law was known as derogatio(or exrogatio) legis, cf. D. 50.16.102. Indirect repeal, obrogatio legis, raises the question whether the acceptance of this tacit repeal does not often go beyond the intention of the legislator, who would scarcely have had such an objective in mind. Consequently, it was held that tacit repeal of so-called‘constitu­tional laws', such as those regulating the enactment of legislation or the procedure of voting, was not permitted; express repeal was necessary.^{[563] [564]}

ii. Self-Limitation of the lex

Cicero, Epistulae ad Atticum III.23.3

This being so. not only in fact but in traditional opinion and practice, our eight tribunes of the plebs inserted the following clause: If there be anything written, without fraud, in this rogalio, whether in promulgation or in abrogation, dero­gation or abrogation which is or was forbidden under the statutes or plebiscites- which is to say. under the lex Clodia or which would on this account impose penalty or fine upon the person who promulgated, abrogated, derogated or abrogated (this law), such is not enacted by this statute’.

Cicero, Oratio pro A. Caecina XXXIII.95

I answer to you that there was added to this same law by this same Sulla: If anything not legal be proposed, nothing of such nature shall be enacted in this law.' What is there which is not lawful which the people cannot command or forbid?

Probus, De notis iuris 3.13

S.QS.S.E.Q.N.I.S.R.E.H.L.N.R. If something is sacrosanctum, which is not legally to be rogated, such is not rogated by this lex.

The abbreviation is found as the final clause in the recently discovered fragmentum Tarantum.

A very different type of sanctio clause is that which proposes to limit the applicability of the law itself, that expressed by the abbreviation E.H.L.N.R. (eius hac iege nihil rogatur) 'nothing of such a nature is rogated by this law’. In an early study Rotondi suggested that such a clause was a reflection of the reluctance of the legislative body to modify the rules of the ius civile.¹¹ The clauses of self-limitation, he noted, could be classified as those which entail (1) self-limitation with respect to existing laws, (2) self-limitation with regard to norms of a sacrosanct nature, and (3) a more generic self-limita­tion as regards the ius civile. Numerous examples were presented. The view of Rotondi, accepted by Arangio-Ruiz, Grosso and others, has been chal­lenged by Cosentini, Gioffredi and Pugliese?¹ The newer view would limit the effect of this type of sanctio clause to the legislator’s obligation to respect certain fundamental constitutional or sacral law principles of the ius civile. It would seem that the later view has gained general acceptance?¹

y. Prevention of Repeal

Dionysius halicarnassensis, Antiquitates Romanae VI.89.4

And lest in the future power be given to the people to repeal this law. inorder that it remain unchanged forever it was decreed that all Roman citizens swear by the sacra that they and their posterity would abide by this law forever.

The law established the sacrosanctity of the person of the plebeian trib­unes, 494 B.C.

CtCERO, Epistulae ad Atticum III.23.2

Note the third clause. my Pomponius. by whose advice and by whom it was

21. Rotondi, Scrim 1370-38.

22. The discussion by Pugliese, intomo al supposto divieto di modificare legislativamente il ius civile*, Atti Cong. Verona II (1951) 61-84, contains reft, to the earlier discussion.

23. Kaser, Privairechi 31 n.16.

dragged in. For you know that Clodias sanctioned that his law could scarcely or not at all he invalidated by the Senate or by the people. But you recognize that sanctions of those laws which are abrogated are not observed. For, if that were so, hardly any (law) could be abrogated - for there is none which does not hedge itself in with the difficulty of abrogation. But when a law is repealed, that (clause) meant to prevent its being repealed, is itself abrogated.

Fragmentum tudertinum 9-11

Let no one abrogate this law (rogatio) nor abrogate this law nor derogate from this law insofar as anything of it is not done < contrary to the public laws (leges) of the Roman people >.... Whatever else is (apparently) rogated in this law, nothing of such nature is rogated in this law(E.H.L.N.R.).

Festus, De verborum significatu ‘satura’

... Therefore, in the sanctio of leges there is written: nor may it be abrogated or derogated from by a rider’ (per saturam).

Finally, the sanctio clause may be directed to the prevention of the repeal of the statute itself in the future. Such an endeavor, it is universally agreed, was of no avail, for the sovereign power of future generations could not be prevented from exercising the legislative function on its own be­half?⁴ However, as has been indicated above (§ 86 i.f.) statutes could be accompanied by oaths to prevent repeal. The sanctio clause might also seek to prevent abrogation by a rider attached to another proposal, although Kruger has commented that such a sanctio was superfluous.”

The texts and comment reveal that the sanctio of a Roman lex is some­thing other than the ‘sanction* of modern law. It is, in fact, doubtful whether any of the connotations of sanctio has actually the meaning of ‘sanction’ in our sense. Perhaps some of the difficulty in describing the types of Roman sanctio stems from the unwarranted analogy.”

6. Bibliographical Note

§91 In concluding the sections of this chapter devoted to leges (§§ 78-90) note may be made that the important leges of which we have evidence in inscriptions or literary texts are discussed in the standard legal histories.¹

24. Succinctly stated by Cuq, Manuel 19: *En principe, une loi esl toujours revocable.’

25. Krüger, Geschichte 23 n.86.

26. Cf. Arangio-Ruiz, Storla 93 f.

I. Note particularly, RudorfT, ilechtsgeschichte 1 14-106; Costa, Storla delle fonti 12-39.

The texts of those statutes which have come down to us are collected in the usual collections of source materials,^{[565] [566] while an English translation of the great majority has been provided in Ancient Roman Statutes. ’ The work of Rotondi is still the standard survey of the content of all leges which are known to have been enacted, arranged in chronological sequence, preceded by classification according to subject matter with general comment on Roman legislation (the latter somewhat out of date).[567] There are brief chron­ological tables of leges in several text-books, and the dates of the most important are included in an appendix to this volume, 'Important Dates in the History of Roman Law’.}