2. THE CONSTITUTIONAL AND HISTORICAL BACKGROUND

No system of law can be fully understood in isolation from the history of the society which it serves and regulates. What follows can be, however, no more than a sketch of some of the salient features of the history of Rome in the thirteen centuries which end with the death of Justinian in a.d.

The struggle between the Orders, and the Republican constitution. For the history of the first period, ending traditionally in 510 b.c. with the expulsion of Tarquinius Superbus, the last king, we have little reliable evidence, and for its law even less. From this period the Roman Republic emerges as a small city-state, based mainly on agriculture but already acquiring some commercial importance and showing signs of those military abilities which were to extend her frontiers far beyond the Mediterranean world. However, the first century and a half of the Republic (510-367 b.c.) was devoted largely to the internal struggle be­tween the two Orders or classes into which the citizen body was divided—the Patrician nobility and the Plebeians who formed the bulk of the population. The struggle was for equality, partly economic but mainly political. It was important for the early development of the Roman constitution, but since it was finally over by at the latest 287 b.c., and the significant develop­ment of the private law did not begin for at least another century after that, we may be content merely to glance at the relevant features of the Republican constitution. This constitution con­sisted from the beginning of three elements—the magistrates, the Senate, and the assemblies.

New Roman">The magistrates were the inheritors of the royal power. For the principal political consequence of the revolution which inaugurated the Republic was simply the replacement of the King by two magistrates, eventually known as Consuls.

The magistracy which most vitally concerned the private law was the Praetorship, created in 367 b.c. to take over that part of the Consuls’ duties which concerned civil (as opposed to criminal) jurisdiction. The Praetor was thenceforth responsible for the administration of the civil law, though the period of his great formative influence upon it was not to come for another two centuries. In about 242 b.c. a division of his functions became necessary and thereafter two Praetors were appointed. One had jurisdiction in cases in which both parties were citizens and was called the Urban Praetor {praetor urbanus), and the other had jurisdiction in cases in which at least one party was a foreigner {peregrinus), and was called the Peregrine Praetor {praetor peregrinus, or, in full, praetor qui inter peregrinos ius dicif). In the later Republic the number of Praetors was greatly increased, but only these two were concerned with the private law.

The two Curule Aediles, also appointed for the first time in 367 b.c., were the magistrates responsible for what might be called public works in the city, and also for the corn supply, but their importance for the private law lies in their control of the market place, in connexion with which they exercised a limited civil jurisdiction.

The Censors, first appointed in 443 b.c., were appointed every four or five years and held office for not more than eighteen months. They had no direct concern with the law, but they exercised a general supervision over morals which might form an important supplement to the law. This supervision of morals derived from their main function, which was the taking of the census. This involved the allotting of each citizen to his appro­priate group for political and military purposes and for taxation. In carrying out this duty the Censors might place a mark {nota} against the name of any man of whose conduct, in public or in ¹ See below, pp. 181 f.

private life, they disapproved, and this would usually have the effect, inter alia, of virtually disenfranchising him. Their discre­tion was quite unrestricted: we hear of the affixing of the nota for abuse of paternal power, for luxurious living, for bad hus­bandry, for desertion in the army, or for improper conduct as a magistrate. This power was even more important in the dis­charge by the Censors of their function of revising the list of mem­bers of the Senate, a function which was transferred to them from the Consuls probably in the fourth century b.c. They enjoyed in consequence a prestige exceeding even that of the Consuls,¹ and from the middle of the third century b.c. they were drawn almost exclusively from among those who had already held the consulship. In the last fifty years of the Republic, however, the office was in decay, and no Censors were appointed after 22 b.c., though the Emperors continued to exercise the power of the nota.

The Senate was a council of elders, recruited in historical times almost entirely from the ranks of ex-magistrates and numbering until the last century of the Republic three hundred.

The Assembly was a very different body from a modern legislature. Like all ancient assemblies it was composed not of representatives but of the entire citizen body. An even more important difference was its lack of initiative. It was presided over by a magistrate who alone could convene it and who alone decided what motions should be put before it. There were no ‘private members’ bills’ and no power of amendment. The Assembly could only accept or reject a proposal put before it by the magistrate, and that proposal would previously have been debated and approved by the Senate. Further, though every citizen was entitled to vote, voting was by groups, not by heads: there was no principle of one man one vote. It was this group voting which had enabled the Patricians to retain their supremacy

¹ They had however no imperium.

during the struggle between the Orders. For the voting groups were so ‘weighted’ as to give the Patricians a majority.

size=4 color=black face="Times New Roman">To speak of the Assembly in the singular is in fact inaccurate. There were three assemblies of the whole people, differing in the unit on which the voting group was based. The precise nature of each voting unit is uncertain, and from the viewpoint of the private law unimportant. The earliest assembly was the comitia curiata, in which voting was by thirty curiae (perhaps a territorial unit), but in historical times this had only a vestigial political function.

There existed also an assembly of the Plebeians alone, the concilium plebis, the voting unit of which had the same basis as that of the comitia tributa. It was presided over by special Plebeian magistrates, the Tribunes, but its resolutions (plebiscita) had originally no legal effect. Even this, however, was eventually conceded. For the last act in the struggle between the Orders was the lex Hortensia of 287 b.c., which enacted that plebiscita should have full legislative force. There were thus three effective legislative bodies: the comitia centuriata and the comitia tributa con­sisting of the whole citizen body, and the concilium plebis con­sisting of the Plebeians alone. The latter, however, came to be the normal legislative organ because the Tribunes had more time for such duties than the Consuls or Praetors who presided over the comitia.

This concession of legislative power to the inferior section of the population is at first sight surprising, but the Patricians must by this time have constituted only a very small proportion of the citizen body, and the old contrast between Patrician and Plebeian was already out of date. For the struggle between the Orders had been substantially settled eighty years earlier, by the leges Liciniae Sextiae of 367 b.c. This legislation conceded the main economic demands of the Plebeians and also their most important political demand, that one of the Consuls must in each year be a Plebeian; and it was not long before Plebeians were admitted to all magistracies.

The later Republic. The most important phase of internal political strife may therefore be said to have ended in 367 b.g., and in the next century and a half Rome turned her energies to territorial expansion. By 272 b.g. her control over Italy² was virtually complete—partly by direct rule, partly by nominal but unequal alliances—and Rome faced Carthage, her only rival for the control of the Western Mediterranean. In two wars (264-241, 218-201 b.g.) Carthage was eventually defeated, but at heavy cost to Rome in life and in the dislocation of Italian agriculture. As a result of these two wars, however, Rome acquired her first provinces—territories outside Italy which were placed under the government of a magistrate with imperium. The first province was Sicily, created in 241 b.c. ; Sardinia was added ten years later, and two provinces in Spain at the end of the second war with Carthage. It is no coincidence that it was in this period also that the number of peregrines in Rome increased to such an extent as to make necessary, as we have seen, the appoint­ment of the Praetor peregrinus to exercise jurisdiction in cases in which they were parties.

The final destruction of Carthage as a city and as a power did not come until 146 b.c., but in 201 Rome was clearly established

’ Of the 200 Consuls of the century before the tribunate of Tiberius Gracchus (123-122 b.c.), 159 came from 26 families, and, of these, 99 came from only 10 families.

² In Roman terminology ‘Italy’ did not extend much to the north of the modern Florence. Beyond was Gaul.

as the dominant power in the Western Mediterranean. Almost immediately, despite the depletion of her resources, Rome found herself at war in the East, with Macedonia. War with Syria followed, and the result of some seventy years of intermittent fighting was the creation of new provinces in Greece and Asia Minor, and, after the final destruction of Carthage, in North Africa.

This period of territorial expansion in the second century b.c., and Rome’s meeting with the older civilization and commercial wealth of the Near East, had far-reaching consequences in Roman history. Rome became a great commercial power, and capital flowed in from the East and from the other new provinces. And not the least important form that this capital took was slaves in vast numbers. This influx of wealth, coupled with the depletion of the citizen body at home—partly by constant wars and partly by emigration to the newly conquered territories—changed the face of Italy. It was no longer a country of yeomen farmers; the land came more and more into the hands of the rich, who cultivated it in large estates with slave labour. This replacement of the small holding by the large estate was accompanied by a radical change in the use to which the land was put. Egypt and North Africa could now supply corn in larger quantities and more cheaply than could Italy, and Italian landowners therefore concentrated on those products (principally the grape and the olive) which would find the best market overseas and which at the same time were best suited to exploitation by the farmer with capital.

All this in turn produced a great change in Roman society. The old compact citizen body had disappeared. There was now a gulf between the wealthy man of capital and the poor. Now for the first time there emerged a proletariat. For many of those citizens who had lost their land and who had not migrated drifted to Rome and existed as best they could, often as the ‘clients’, or hangers-on, of a wealthy man.

Rome also now felt the full impact of Greek culture. Roman literature, until now slight, began to grow. The models and the inspiration were Greek, the educated man learned Greek, and Greek philosophy began its influence on Roman life. But there was also a debit side to the account of Greek influence on Rome. Greek morals were laxer and more sophisticated than the simple code by which the Roman had hitherto been guided. His intro­duction to this new world of wealth and loose standards was too sudden, and a moral degeneration began.

In the later years of the second century the Republican structure began to break down. It was plain that a state dependent for her strength, as Rome was, on her citizen army could not afford to see her citizen body degenerate into a land­less proletariat dependent on the rich man’s dole. But the rich filled the Senate, and no reform was possible. Indeed a public corn-dole was instituted for citizens, and this secured the per­petuation of a proletariat interested only in ‘bread and circuses’. The next step followed before the century was out. Citizens were no longer sufficiently numerous or sufficiently willing to fill the army, and Rome had to resort to the use of a professional army drawn from the lowest class of the citizen body. Henceforward any ambitious general, with an army prepared to serve him as long as he could pay them and with the means to secure by largess the votes of the populace in Rome, could make himself virtually master of the Empire. A succession of such generals provides the pattern of the last century of the Republic. Further sources of danger were a mutinous slave population on the great estates, with little to lose by revolt, and Rome’s Italian allies, re­sentful at her refusal to grant them the citizenship. This griev­ance came to a head in the frightful Social War of 91-88 b.c., which resulted militarily in victory for Rome but politically in the concession of what she had fought to refuse—citizenship for all Italy.

And yet in this period territorial expansion continued without pause. The frontiers were pushed forward to the Channel, the Rhine, the Danube, and the Euphrates, and each fresh conquest brought in new wealth. In this period also and in the years im­mediately following came the finest flowering of Roman literature.

From the succession of contending generals, and from the civil wars to which their contentions gave rise, there eventually emerged alone Octavian, better known by his title of honour, Augustus. The constitution had long been in effect in suspense, but in 27 b.c., with peace restored, he claimed to have restored constitutional government. The restored constitution was only in form, however, Republican, and it is from this moment that we date the beginning of the Empire.

The Empire is usually divided into two periods, that of the Principate (27 b.c.-a.d. 284) and that of the Dominate or absolute monarchy which followed.

The Principate. Julius Caesar had been assassinated because he made too naked an assertion of personal power. Augustus learned the lesson of Caesar’s fall, and dressed his power in Republican forms. There was no ostensible alteration in the constitution. The magistracies remained; what was new was the concentration in the hands of Augustus of powers which had never before been held by one man, and the fact that he held them in practice for life. He was in form merely princeps—first citizen—but in substance his authority extended into every department of government. The popular assemblies were not abolished, but were allowed gradually to die. Their acts were never more than ratifications of the wishes of the Emperor, and they became progressively rarer as the Principate wore on, disappearing altogether by the end of the first century a.d. By contrast, the power of the Senate was, formally at least, enhanced. Political authority was shared between Emperor and Senate, so that the constitution of the Principate has been described as a dyarchy, but there was never any doubt as to which was the predominant member of the partnership. The legislative power which had formerly belonged to the assemblies passed now to the Senate, so that by the early second century a.d. it was beyond question that its resolutions (senatusconsulta') had the force of law. But here too the effective voice was that of the Emperor: the Senate was virtually his mouthpiece.

The Emperor’s authority rested ultimately on the army and on the popular fear of what seemed the only alternative—a return to the disorder and civil war of the closing years of the Republic. The fact of the army’s power was made plain in a.d. 69, when on Nero’s death four generals were proclaimed Emperor by their troops in different parts of the Empire. But this was only a momentary glimpse of the truth. For the last of the four, Vespasian, succeeded in establishing a new dynasty, and there followed a hundred years of largely unbroken peace, prosperity, and good government. Yet the seeds of future troubles were being sown. The centre of balance of the Empire was being shifted from Italy and from the old Roman families.

Several of the successors of Vespasian came from provincial families—Roman by blood, but long settled in the provinces. (It was not until the end of the second century that the first Emperor of non-Roman blood, Septimius Severus, appeared, and he, ironically enough, was of Carthaginian descent.) The imperial civil service, on whom increasingly devolved the effective powers of government, was drawn largely from freed­men¹ or the descendants of freedmen—men, therefore, not of Roman stock. More important still was the change in the composition of the army. The recruits came increasingly not merely from outside Italy but from the frontier peoples of the north, peoples without Roman traditions and with more affinity with the potential enemies of Rome than with Rome herself.

The seeds which were thus sown bore fruit in the last hundred years of the Principate. Marcus Aurelius, the last of the great Emperors of the second century, died in 180. For nearly twenty years there had been trouble on the frontiers—invasions across the Rhine and the Danube, wars with Persia. Now, if ever, the Empire needed a good ruler, but it was disappointed. Commodus rivalled the worst excesses of Nero, even appearing in the arena as a gladiator, while the treasury was exhausted and the food supply in Rome broke down. His assassination in 192 was followed by a brief period of anarchy which was ended, as before, by the seizure of the throne by a soldier, Septimius Severus. Once again the army ruled the Empire and demanded its reward from the Emperor it had created. To meet these and other demands Septimius Severus and his successors resorted to wild taxation and devaluation of the currency. This period of economic crisis, accompanied by frontier wars, culminated in 235 in a collapse of imperial authority. The following fifty years saw a bewildering succession of Emperors or claimants to the title, very few of whom died a natural death. The Empire was torn by civil wars and subjected to invasions along its frontiers. The result was economic and political chaos. If Rome’s enemies had been sufficiently politically developed to seize their oppor­tunities, the history of Rome might well have ended in the third century. Towards the end of this period, however, a few strong Emperors began to restore order, and their work was completed

¹ i.e. slaves who had been given their freedom. See below, pp. 75 f.

by Diocletian (284-305), whose reign is customarily taken to mark the opening of the Dominate.

The Dominate. The Dominate is so called because the last vestiges of the Republican constitution and of the Emperor as merely the first citizen were cast aside, and the Emperor was openly accepted as do minus, as lord and master of the Roman world. In this, however, the division of history into periods is even more than usually misleading. The fact of the absolute power of the Emperor—that the constitution was, as it has been put, ‘an autocracy tempered by the legal right of revolution’—had been manifest for a century and more. Diocletian’s work was not, any more than that of Augustus had been, one of sweeping innova­tion. Both merely brought together what had grown up in the confusion of the age and made it into a system. The achievement of Diocletian, as of Augustus, was to take facts as he found them and order them into a constitutional form.

The Empire in the third century had suffered from three defects, political, administrative, and economic. Politically, the Emperor was at the mercy of the army; he had continually to be on his guard against the setting up of a usurper who would offer the soldiers more attractive terms. Administratively, a single central authority was not capable of ruling so widespread an Empire, still less of repelling invasions along perhaps ten thousand miles of frontier. Economically, the heavy increase in taxation, in a period when invasion and civil war had drastically weakened the ability of the tax-payer to meet the imperial demands, had led to a continual devaluation of the currency, with its attendant evils. The character of the later Empire is in part summed up in the remedies which Diocletian found for these three defects.

For the political defect the remedy was the completion of the Emperor’s transformation from princeps to dominus. He was now a monarch in the oriental style, appearing rarely, hedged about with an elaborate ceremonial maintained by a numerous court, a figure whose every aspect was sacred and on entering whose presence even the highest in the land must prostrate himself. The forms of Republican government were finally discarded. All power was in the Emperor and was administered by him through a civil service responsible only to him. The Senate lost

i3 even the appearance of legislative power and dwindled to scarcely more than the municipal council of Rome. The Consuls survived, but their office was purely honorific. They could in­deed claim a certain immortality because it was by their names that the years were still dated; and they had also the costly duty of providing the games for the city. So burdensome indeed did this duty become that in 541 Justinian abolished the office.

The administrative defect of overcentralization was met by a division and sub-division of the Empire. For future history the most important feature of this was Diocletian’s sharing of his power with a co-Emperor, Maximian, Diocletian administering the Eastern part of the Empire and Maximian the West. This feature did not, however, become permanent until 395, and even then it was not a division of the Empire: it was a division of the rule of an undivided Empire. All legislation, even though the work of one Emperor, was issued under the names of both. Division was carried even further. For each Emperor appointed an assistant, a Caesar, who administered a part of his territory and was marked out as his successor. And under the Emperors and their Caesars there was an administrative hierarchy of four prefectures, each divided into dioceses, which were in turn divided into provinces.

To remedy the economic ills the Emperors resorted to com­pulsion and to state control. State factories were common, and the state regulated the internal and external commerce of the Empire. A rigid hereditary class system grew up. For example, the son of an artisan was bound to his father’s trade, and peasants were commonly tied to the land in the manner of the medieval villein.

With Diocletian’s successor, Constantine, the Roman Empire becomes the Byzantine Empire. He created in Byzantium a New Rome, thenceforth known as Constantinople, to which in 330 he transferred his capital. The shift in the centre of gravity of the Empire from West to East was thus finally recognized. And seventeen years earlier he had taken the far more momentous step of ending the persecution of the Christians and granting imperial favour to the new religion. There then began the close association of Emperor and Church which was to be so marked a feature of the Byzantine Empire.

By the end of the fourth century the Western Empire was

threatened. In 410 Rome was sacked by the Goths, and there­after successive invasions reduced the imperial power to a shadow. We place the end of the Western Empire in 476, when the Emperor Romulus Augustulus was deposed.

So it was that when, in 527, Justinian succeeded to the throne, he ruled over a Roman Empire of which Rome was no longer a part. But Justinian was a man with a vision, the vision of restoring the glory of the Roman Empire. He set out to recover its lost territories and to revive and perpetuate its greatest intellectual achievement, the Roman law. His territorial ambitions were only momentarily realized: he restored the imperial rule to Italy, North Africa, and southern Spain, but he had over-estimated the strength of the Empire, and his conquests did not last. The law, however, he did perpetuate, but in a way which he could not foresee.