1. STATUTES

Lex and plebiscitum. By ‘statute’ we mean an express enactment of a general rule by a legislator or a legislative body. We have seen that under the Republican constitution there were three legislative bodies—the comitia centuriata, the comitia tributa, and the concilium plebis.

An enactment of the comitia in either of its forms was known as lex,¹ an enactment of the concilium plebis

¹In contrast with lex, ius is the unenacted law. English does not possess two words for these two senses of ‘law’, and the use of one word to translate both lex and ius can therefore be misleading. (The word ‘law’ is not derived from lex.) On the other hand ius, at any rate in later usage, has two meanings, corresponding to the English ‘law’ and ‘right’ (as a noun). The same terminological features are found in modern European languages other than English. Thus, French distinguishes between lot and droit, but uses droit also to mean ‘right’. It is the same with the Italian legge and diritto and (more surprisingly) the German Gesetz and Recht. It is therefore customary to qualify droit, diritto, Recht, &c., as ‘objective’ and ‘subjective’ when the distinction between ‘law’ and ‘right’ is intended. as lang=EN-US style='font-size: 14.0pt;line-height:92%;font-style:italic'>plebiscitum. But this terminology was not at all strictly observed, and plebiscita were commonly referred to as leges.

The layman when he thinks of law commonly thinks first of statute law. But in the history both of the Roman law and, at any rate until recently, of the Common law, statutes have played a very minor part in the development of the private law.

It has been ‘lawyers’ law’ in the sense that its formation has been left very largely in the hands of the professional lawyers—the courts in England, the jurists in Rome. And yet, paradoxically, to the Roman the foundation of all his law was the Twelve Tables, and they were pre-eminently lex.

The Twelve Tables were an early product of the struggle between the Orders. The law was at that time administered by Patrician magistrates, and evidently even the knowledge of its contents was denied to the populace at large. One of the demands of the Plebeians was therefore for the publication of the law. The traditional story—compounded in what proportions of legend and of fact we do not know—is that in 451 b.c., after a delegation had been sent to Greece to study the legislation of Solon, ten men compiled a code which was set up in the marketplace on ten bronze tablets. A further two were added by another commission of ten in the following year (450). In a sense, therefore, the Twelve Tables were both a statute and a code, but one must beware of pressing either word too far. They were not a code in the modern sense of a complete and coherent statement of the law; and though they were in form a statute, it is unlikely that in substance they departed much from the traditional customary law. Such at least are the conclusions which it seems reasonable to draw from what evidence we have, but there is a great deal of uncertainty and conjecture in any assessment of the Twelve Tables, since our knowledge of their content is fragmentary and derives from a much later date. The original tablets are said to have perished when the Gauls burned Rome in 390 b.c., and certainly there was no official text at the end of the Republic, though there must have been many private copies. (Cicero records that in his youth boys learned them by heart at school.) We cannot be sure what proportion of the whole is represented by the surviving fragments, but their scale suggests that only the more salient rules were expressed, the main framework of the customary law being taken for granted.

Procedure seems to have been dealt with in more detail than the substantive law, no doubt because it was here that the unskilled litigant was most likely to be tripped up. In spite of the story of the mission to Greece, nearly all of what survives seems to be of indigenous origin, and this accords with the remainder of the traditional account, which pictures the Plebeians as seeking not the reform of the law but its publication. However this may be, we can at least form an idea of the style of the Twelve Tables. The quotations give us a collection of very brief and abrupt imperatives. The opening passage apparently ran thus: ‘If a man is summoned to court and does not go, let witnesses be called, and then let the plaintiff seize him. If he resists or runs away, let the plaintiff lay hands on him. If he is ill or aged, let the plaintiff provide an animal to carry him. If he refuses this, the plaintiff need not provide a covered carriage.’¹ Other passages run thus: ‘If a man is mad, let the agnates and gentiles have control of him and his property’; ‘If a man commits theft by night and is killed, let the killing be lawful.’²

Although lex was thus in a sense the foundation of the law, it played, as we have said, only a small part in its development. In the four centuries between the Twelve Tables and the end of the Republic we know of only some thirty statutes affecting the private law. The lex Aquilia was of fundamental importance in the law of delict, and others, especially the lex Aebutia, effected important reforms in the law of actions and procedure, but the remainder are for the most part significant only for the detail of the law.

Senatusconsulta.³ We have seen that in the Republican constitution the Senate had in form no legislative power. Its resolutions {senatusconsulta) were merely advice to magistrates, and though this advice was unlikely to be ignored, it had no legal effect until it had been embodied either in a resolution of the assembly or

¹It is impossible to express in intelligible English the abruptness of the original, which runs thus: *Si in ius vocat, ni it, antestamino; igitur em capito.

Si calvitur pedemve struit manum endo iacito. Si morbus aevitasve vitium escit, iumentum dato. Si nolet, arceram ne sternito.’ That this was the opening passage is inferred from Cicero’s remark that ‘we learned the si in ius vocal as children’, but the remainder of the arrangement habitually adopted in modern editions, though it is convenient for purposes of citation, is almost entirely conjectural.

²For another passage, see below, p. 247.

³Cf. above, pp. 5 and 10.

in a magisterial edict. The advent of the Principate brought no immediate change. Senatusconsulta continued for some time to take effect only through the medium of a magistrate’s edict, but they increased in importance as the assembly withered away. It became plain that they had for practical purposes replaced the old forms of legislation, and constitutional theory accommodated itself to the new facts. Thus Gaius¹ records that in his time (the middle of the second century a.d.) senatusconsulta were acknowledged to have the force of lex, though this had been disputed in the past. When the dispute ended is uncertain: the earliest senatusconsultum which beyond doubt directly created law dates from the reign of Hadrian (a.d. i i 7-38), but the transition may have occurred much earlier.

But the life of the Senate as a substantial source of law was short. By the end of the second century even the semblance of initiative has gone. The Senate merely confirms what the Emperor puts before it, and the jurists when they wish to refer to the measure thus passed speak of it simply as a speech (oratio) of the Emperor. The senatusconsultum has merged into direct legislation by the Emperor.

Constitutiones principis.

Though the senatusconsultum can thus be seen as a bridge between the legislative forms of the Republican constitution and the undisguised imperial power of the later Empire, this power, which is expressed in the famous maxim ‘quod principi placuit legis habet vigorem’,² was in fact acknowledged very early. Gaius, though, as we have seen, he admits the earlier existence of hesitations as to the legislative force of senatusconsulta, makes the no doubt politic assertion that there had never been any doubt that the pronouncements of the Emperor (constitutiones) had the force of lex.

Constitutiones took several forms, and not all were statutes in the sense in which we have used the term. Many were more akin to what an English lawyer would call precedents. The closest to statutes were Edicta. The Emperor held magisterial powers and therefore, like all higher magistrates, could issue

¹See below, pp. 34 ff.

²‘What the Emperor has determined has the force of a statute.’ The maxim, attributed in the Digest to Ulpian, was included in the Institutes of Justinian, and was invoked in medieval and later Europe to justify the absolute power of the prince. See below, p. 49.

edicts setting out his orders or the policy he intended to follow in his sphere; and since the sphere of the Emperor was unlimited, his edicts covered a large variety of subjects. The most famous is the constitutio Antoniniana{c. a.d. 212), which gave Roman citizenship to the bulk of the free inhabitants of the Empire. Mandata also had a certain general character. They were in form administrative instructions to officials, especially provincial governors, but by accumulation they formed what amounted to standing orders.

These were, however, of only minor and sporadic importance for the private law. On this the Emperor’s influence was most vigorously and regularly exercised through his decisions in individual cases, and these provide the great majority of surviving constitutiones. They took two main forms —decreta and rescripta. Decreta were judicial decisions of the Emperor, who exercised jurisdiction either as a trial judge or on appeal. In general there was in Rome no idea of the binding or even persuasive force of precedents, but the unique authority of the Emperor gave to his decisions the character of authentic statements of the law. Rescripta, on the other hand, were not judgments but written answers to questions or petitions. Such questions or petitions might be submitted either by officials or public bodies or by private individuals. Many of them would have no bearing on the private law, but it was permissible for either a judge or a litigant to seek a decision on a point of law involved in a case. There was no judgment, since there was no investigation of the facts, but the imperial ruling would determine what the decision must be if the facts were as stated in the petition. This practice of submitting a preliminary issue of law to the Emperor became increasingly common from the reign of Hadrian onwards, and a great many rescripts from the time before Constantine are preserved, mainly in the Codex of Justinian.¹ They vary greatly in length and complexity, and also in the difficulty of the point of law involved. Indeed one is astonished at how elementary were the questions which were sometimes submitted to the imperial chancery.²

¹See below, p. 42.

²The following are short and simple examples drawn from the Codex of Justinian (to which the citations in brackets refer): ‘The Emperors Diocletian and Maximian to Aurelius. The opinion which has prevailed is that a partnership can validly be created in which one partner contributes money and the other labour’ (C. 4.37.1). ‘The Emperor Alexander to Aurelius Maro, soldier. If your father sold the house

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

1. STATUTES

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