Roman law is one of the key legal systems from which modern European law is derived. This book presents a survey of the history of Roman law. Olga Tellegen-Couperus divides the year long history of Roman law into four periods, based on political developments.
Table of contents
The periods in which these types of procedures were in use overlap to a certain extent; the legis actiones were generally used during the republic, the formulary system was in use from the second century BC to the third century AD and the cognitio extraordinaria was used in the empire. The legis actiones literally, actions based on the law is the oldest known form of lawsuit. It was conducted orally and was divided into two phases. The first phase in iure originally took place before a pontiff; he decided whether the parties could take legal action, and, if so, in what manner; after the leges Liciniae Sextiae were passed in BC his task was entrusted to a magistrate, namely the praetor.
The iudex was a citizen appointed as judge by both the pontiff or praetor and the parties concerned. No one knows for certain why the proceedings were split into two sections. A possible explanation is that in early Rome the evidence was often obtained with the help of irrational, supernatural methods such as ordeal or the taking of auspicia by observing the flight of birds.
During the monarchy the king would probably have been responsible for deciding which method would be used to obtain evidence and arrive at the verdict; during the republic this task was probably performed by a iudex; the two-phase proceedings possibly developed as a result of this background. During the republic a new type of procedure, the formulary system, came into being; at first it existed side by side with the legis actio procedure, but in time it gradually replaced the legis actiones.
In about 17 BC the legis actiones were abolished, but the procedure was still used in a few exceptional cases. Various formal rules applied to the first phase of the legis actio procedure. First of all, the case could not be heard unless the two parties were present. As soon as plaintiff and defendant stood facing the pontiff or the praetor, the plaintiff had to open the proceedings by pronouncing his claim in a set form of words prescribed for the case in question. In other words he had to utter a pithy sentence that summarised his claim.
The defendant had to reply, also in prescribed phrases, and finally 22 THE LAW the pontiff or magistrate intervened, again by means of specific formulas, so the case might be sent for trial before the index. Gaius tells us in his Institutes 4. Within these models various claims could be formulated, but only using prescribed phraseology. From the example that Gaius gives in his Institutes we see how strict this formalism was. According to Gaius a man had once instituted a legis actio against another man who had chopped down his vines.
Although there were formal rules for the in iure phase there were none for the second phase before the iudex. Both parties were heard and they could produce evidence to support their respective standpoints. It sometimes happened that a prominent citizen delivered a plea in support of one of the parties, but this did not become normal practice until the later republic. It was up to the iudex to decide how much weight he would attach to the evidence produced. He could seek support for his verdict from a consilium, an advisory council which he appointed for that purpose when necessary.
He gave the verdict orally in the presence of the two parties. It was not possible to appeal against the verdict by referring the case to a higher authority because both parties had agreed to the choice of the iudex and had thereby agreed in advance to accept his verdict. If the verdict turned out in favour of the plaintiff and the defendant was not prepared to comply, the plaintiff could not turn to the state and ask for the fulfilment of the judgment: Therefore he had fairly powerful measures at his disposal; with the help of the pontiff or magistrate he could restrict the personal freedom of the defendant.
By using one of the two legis actiones formulated for enforcing a judgment he could have the defendant handcuffed until he, or someone else acting on his behalf, had fulfilled the judgment. Because there was still a close link in those days between religious and juridical rules, it is not surprising that the pontiffs were made responsible for the interpretation. As was stated earlier, the pontiffs had control over the first phase of the legis actio procedure and could exert considerable influence on the development of the law. They could widen the scope of a legis actio by interpreting it broadly or they could restrict its scope by interpreting it narrowly.
The pontiffs used their knowledge and power both in procedures and in other ways. They were often consulted by citizens who wanted to know whether there were specific rules of law which applied to their particular case. In their advice, however, the pontiffs not only interpreted existing legal concepts, they also introduced entirely new institutions while pretending to give interpretations.
For instance, they used a recognised form of procedure for purposes other than the one for which it was intended. In this way the in iure cessio, the words of which originally marked the beginning of a lawsuit concerning ownership, also came to serve as a way of transferring ownership. The XII Tables did not contain any provision relating to the way in which a father could set his son free from patria potestas, but it did contain a clause which was apparently intended to protect a son against abuse of power by his father.
A father could mancipate his son to another citizen for money on the understanding that the son would be manumitted after having worked for this other person. As a result of the manumission the son returned automatically into the potestas of his father, whereupon the father could sell him again. The pontiffs used this provision to free a son from patria potestas. The father mancipated the son three times to a friend and the friend manumitted the son after each mancipation.
Usually, however, the son was mancipated back to the father who thereupon manumitted the son himself. A possible reason for this kind of emancipation was that a father might have several sons among whom his estate would have to be divided when he died; he could prevent his estate from being split into small plots by dividing it out among his sons during his lifetime.
This example illustrates how a provision in the XII Tables was used for a purpose that was quite different from the original purpose, and how by means of the interpretation of this provision a new institution, namely that of emancipation, was created. Roman legal science eventually developed from the interpretations given by the pontiffs. Our knowledge about this period is based mainly on literary sources; for instance, the Greek historian Polybius and the Roman historian Livy, mentioned in Part I, supply us with very valuable information.
Works by writers such as Caesar and Sallust contain important information about political developments, particularly during the last few decades of the republic; because these authors write about events that occurred within their own lifetime the information they give is fairly reliable. Of course, the comprehensive works of Cicero have to be mentioned in this connection: In addition to these literary sources all kinds of inscriptions have come down to us; they provide supplementary information.
The most important of these are on bronze, stone or copper and reproduce laws, decisions of the senate and other documents; these inscriptions concern for instance rules relating to provincial government. Specifically juridical literature from this period is very scarce and has only come down to us indirectly, via the Corpus luris Civilis of Justinian. At the end of this period a large part of the world as far as it was known at the time was under Roman rule.
This expansion was not the work of one man and cannot be compared to the rapid conquests made by Alexander the Great, but it was the result of several centuries of conflict and persistent effort. The conquest of Italy When in BC the Romans changed the organisation of the state by means of the leges Lidniae Sextiae and thereby practically put an end to the conflicts between patricians and plebeians, they were able to concentrate once more on expansion.
First of all, with the help of the Samnites the Romans defeated the Latin league which had been enviously watching the growing power of Rome and had demanded greater political power in the alliance; the alliance was dissolved and in BC Latium came completely under Roman domination. Then, after a number of battles, the Samnites were defeated; their land as well as that of the Etruscans and the Celts who had allied themselves with the Samnites was conquered by Rome.
By the beginning of the third century the Romans were the undisputed masters of central Italy. During this period Rome had acquired more and more influence in the south of Italy; ultimately this was what prompted the largest Greek city, Tarentum, to declare war on Rome. Tarentum received assistance from King Pyrrhus of Epirus in present-day Greece.
King Pyrrhus defeated the Romans several times, but ultimately, after an indecisive battle, left the Tarentines to their fate. Thus the Romans were able to quickly subjugate the south of Italy as well BC. In this way they established their authority over the whole of Italy, i. Some of the towns in the south were annexed, and with others Rome made various kinds of treaties and alliances.
In addition a large number of new municipia and coloniae were founded. The administration of these towns was left mainly to local authorities, but the latter were not completely autonomous; for instance, they were forbidden to make alliances with anyone except the Romans. Some were granted complete Roman citizenship, some were granted citizenship without voting rights and others were not granted citizenship at all. It was not until 89 BC— and then only after several years of bitter fighting the so-called Social War or War of the Allies —that Roman citizenship was granted to all people living in Italy south of the river Po.
The conquest of the Mediterranean area Of the great powers in the Mediterranean area Carthage a town on the coast of present-day Tunisia was the one that ruled the western part. Carthage was founded by the Phoenicians and Rome had had contact with Carthage since the second half of the fourth century BC and was linked to it via various treaties made between — BC.
Hitherto Rome had had very little contact with the other powerful empires such as Macedonia, Egypt and Syria, which had developed following the collapse of the empire of Alexander the Great in about BC. It was only in the third century that the Romans began the struggle which eventually—some three centuries later—was to lead to the Roman domination of the entire Mediterranean area. This expansion took place in the following way: Rome was able to break the power of this king and obtain control of the eastern part of the Mediterranean by means of a system of alliances.
Numidia in the north of Africa was annexed by Rome. These developments are reflected in the new name given to the Mediterranean: Because it turned out to be impossible to govern these newly conquered territories from Rome, the task was entrusted to magistrates appointed for that specific purpose, and from the second century BC to ex-magistrates chosen from and by the senate. These governors, who represented the authority of the Roman state in the province assigned to them, had duties in the military and administrative sectors and were responsible for the administration of justice.
Where possible the existing territorial organisation was maintained. During the republic the inhabitants of the conquered territories were not granted Roman citizenship; nevertheless, they had to pay tax to Rome. Although the Romans dominated the conquered peoples militarily and economically they did not always do so culturally. From the second century BC Rome became strongly influenced by Greek culture and particularly by Greek literature, philosophy and the fine arts.
The economic changes which occurred from the third century BC onwards gradually altered the social relationships. New orders developed, but these are not easy to classify because the citizens within the various orders except for the highest stratum did not form a homogeneous group. Three orders can be distinguished: The senatorial aristocracy Those families which had one or two of their members in the senate enjoyed the highest standing in Roman society. At the end of the second century BC someone who had been a plebeian aedile or a tribune was also entitled to become a senator.
Of course it was also possible to gain admittance to the senatorial aristocracy by letting oneself be adopted by an old senatorial family; for instance, adoption could be in the interests of such a family when it was about to die out. The wealth of senators consisted mainly of estates in Italy and the provinces; traditionally this was the only known form of wealth in Rome. Since a lex Claudia which was passed in BC senators were even forbidden to own ships that could carry more than amphores, i. On the other hand, those senators who held high ranks in the army often received a considerable share of the spoils of war and were able to acquire land in the conquered territories for little or no money.
The equites In the later republic the equites formed the second class in Roman society. The class originated among the horsemen who had formed the cavalry since the army had been reorganised under King Servius Tullius. During the republic they were chosen by the censor from among the citizens on the basis of their financial, physical and moral strength.
For a long time there was no distinction between equites and senators: This situation did not change even in the third century BC when the horsemen were found to be less effective in battle. The equites began to form a separate class when the abovementioned lex Claudia forbade senators to engage in commerce. From then on much of the commerce fell into the hands of the equites, whereas the senators concentrated on politics.
The equites did not become a completely separate class until the senators were excluded from the eighteen cavalry centuries in about BC. At that time the position of the equites became stronger than that of the senators in many respects. The equites formed a very diverse group from all layers of society: Because the equites were allowed to serve as magistrates it was relatively simple for them to become members of the senatorial class; therefore most of the homines novi in the senate had first belonged to the class of the equites. The middle and lower classes The middle and lower classes of the population were formed by all citizens who belonged neither to the senatorial class nor to the equites.
The small top group, consisting of the aristocracy of the municipia and of the towns in the provinces, dominated the political, cultural and economic life of these places; these people were faithful supporters of Rome and gradually strengthened their links with the capital.
These were the groups that would provide the senators under the principate. People slightly lower down in the hierarchy belonged to the lower middle class: This class also included the agricultural workers and—in the cities—the masses who were unable to support themselves. This urban proletariat was completely dependent on the state or on certain very wealthy citizens and because its members readily accepted bribes they constituted a serious threat to political stability; this became particularly obvious in the latter days of the republic.
Finally, as a result of Roman conquests large numbers of slaves streamed into Rome and Italy. In antiquity it was standard practice for prisoners-of-war to become slaves. However, it was not only defeated opponents who became slaves; so did the civilian population of the conquered territories. Moreover, until the first century it often happened that pirates raiding ships and unprotected harbours kidnapped people and sold them as slaves, for instance at the large slave-market on the island of Delos.
It is not possible to state precisely what percentage of the population were slaves, but by the end of the republic it must have been quite high. Estimates vary from 25 per cent to 50 per cent of the population of Italy; in the provinces the percentage was generally much lower. In particular, slaves from the eastern Mediterranean area, who had often been well educated before being sold as slaves, could have a good life: Others, however, were put to work in agriculture, in the mines or in theatres, and they often had a miserable life.
Of course it was possible for all slaves to be manumitted by their masters and then to live on as Roman citizens; this frequently happened, particularly in the second and first centuries. But there was clearly a very strong interaction between economic and political developments. Initially Roman control strengthened their economic position. Citizens, if they so wished, could easily obtain land there and by reason of their permanent presence in the conquered territories Roman authority was upheld.
In the third century Rome expanded so rapidly that there were not enough people to populate the new territories. The result was that some land remained unallocated. Part of this land could be rented from the state; the rest was divided into large plots and offered for sale at a low price.
Both in Italy and in the provinces large estates latifundia developed; the owners, however, often lived in Rome and were interested primarily in high profits. Some small farms survived along with the new latifundia. This was mainly because when military campaigns came to an end small plots of land were often allocated to veterans who had been honourably discharged from the army after twenty years of service. In the towns the economic development led to the setting up of all kinds of private businesses which specialised in making things or providing a service.
Most of these businesses were run by free Roman citizens working for themselves or working as paid employees of the owner; some were run by slaves. The Romans found it advantageous to use slaves because slaves, unlike Roman citizens, could not be recruited for the army. A plentiful supply of slaves was available and if they were well-trained the results were positive. However, the use of slave labour also had a negative effect: Most of these businesses were small; in antiquity there were hardly any large-scale industries, mainly due to the high costs of transport by land.
Overseas trade increased, particularly in transport from the provinces to Italy. Seaports developed along the Italian coast, the most important one being Puteoli near Naples. However, the Romans themselves did not engage in this activity, leaving it to the Phoenicians and the Greeks. For a long time the expansion of shipping was hindered by pirates. Many kinds of government tasks such as the construction of roads, aqueducts and buildings, the organising of transport, collecting of taxes, supplying the army with food and the exploitation of mines so-called publica were in fact not performed by the Roman state because it lacked the necessary manpower and resources.
Instead these tasks were allocated to private individuals, the so-called publicani. Most of them formed a company for the purpose of spreading the risks and raising the huge funds that were often required for these works. The company which received the contract was generally the one which at a public meeting submitted the lowest tender for the works or services concerned.
The publicani, however, wanted their company to make a good profit and they were often notorious for their greed and cruelty. Finally it should be mentioned in this connection that the late republic saw the development of money and banks in Rome. Such things were known much earlier in the eastern countries, in Greece and in the Hellenistic world.
When the Romans conquered these countries they took possession of the large stocks of gold and silver belonging to their victims, and entered the banking business themselves. Romans became established in the large commercial centres where they provided facilities for people to deposit their money; they also arranged for payments to be made and they granted credit. At the beginning the coins that were used had been minted overseas, e.
The oldest known Roman coins date from the beginning of the third century BC. From the second century BC onwards, however, Roman coinage was in general use and it soon even superseded all other types of coinage in the Hellenistic world. Supreme power was in the hands of the senate; the magistrates had to ensure that the various governmental tasks were carried out. In the assembly the magistrates were chosen and votes were taken on bills proposed by the magistrates.
THE SENATE During the late republic the Roman senate was a paragon of shrewdness, tenacity and perseverance; these qualities made it possible for Rome to conquer and rule the world as it was known at the time. Even though a number of senators could not resist the temptation offered by the newly arrived riches and turned to a life of luxury and ease, the senate as a whole managed to keep control up to about BC. Very little is known about how the senate was formed. According to a lex Ovinia of BC two censors had the task of forming the senate and it is possible that this was also the method used before that time.
As a result persons who did not belong to the senatorial class but had been chosen as magistrates because of their knowledge and influence could also become senators. Because these homines novi had to spend a large amount of money in order to be elected and were therefore generally very wealthy, they had no reason to press 38 THE STATE for fundamental social and political changes. Consequently the political character of the senate remained unaltered: The senate met under the leadership of one of the senior magistrates, generally a consul.
At the beginning of the meeting the subject for discussion was announced by the consul; he then asked the most important senators for their opinion, in accordance with the seniority of their ranks, and finally a vote was taken. The decisions of the senate were referred to as senatus consulta. During the republic the senate extended its powers. It had long been the rule that decisions made by the assembly with regard to matters such as legislation and the election of magistrates were not valid until they had been approved by the senate.
After a lex Publilia Philonis had been passed in BC, however, the proposals relating to legislation had to be approved first by the senate. In other words, draft laws could not be submitted to the comitia until they had been approved by the senate; this ruling probably did not apply to the plebiscite, which came into being in the concilium plebis.
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In the third century BC a lex Maenia stipulated that proposals regarding the election of magistrates also had to receive the prior agreement of the senate. Hitherto these changes are usually regarded as a restriction of the powers of the senate because they shifted the final decisions from the senate to the assembly.
However, it seems more likely that in fact they strengthened the position of the senate: As Roman power expanded, the tasks of the senate increased; in the field of foreign policy these tasks consisted of appointing Roman envoys and receiving foreign ambassadors, ratifying international treaties, declaring war and making peace.
In addition, the senate supervised military operations and the administration of the conquered territories. Finally the senate also had to look after the mental well-being of the citizens: A prime example is the action taken by the senate against the sect of the Bacchantes in BC. The new rules referred mainly to the highest offices. Two consuls were to hold the highest office in the magistrature and it was stipulated that from then on one of these was to be chosen from the plebeians.
At the same time the supervision of civil litigation iurisdictio was entrusted to a new magistrate, the praetor. Other magistrates were the censor, the aedile and the quaestor. There was no official hierarchy in these functions: In practice, there emerged an order in which the offices were held; one first became a quaestor, then an aedile or tribune, then a praetor and finally a consul.
The office of censor was usually held by someone who had already been consul; it was the most prestigious of all magisterial functions. In addition, it became standard practice to have a gap of several years between magisterial appointments; this was to permit legal action to be taken against an ex-magistrate. The top magistrates, now called consuls, were chosen by the comitia centuriata from the Roman citizens. They were given a variety of powers. First of all, they were given imperium; this included command of the army, the authority to recruit troops, appoint officers and distribute the spoils of war.
Further, they had the ius edicendi, the right to issue binding regulations edicta. A third important power wielded by the consuls was the coercitio; this was a general power which helped consuls to maintain public order and impose penalties for civil disobedience. Finally, they could summon the assembly and the senate and put forward proposals to these bodies. In the late republic the consuls were mainly active as generals, aspiring to the glamour of victory and seeking a large share in the booty.
In times of crisis each consul had the right to appoint a dictator who ranked higher than himself, his colleague and all other magistrates; a dictator however could not remain in office for longer than six months. Although both Sulla and Julius Caesar proclaimed themselves dictators in the first century BC they were not appointed in the regular manner and their term of office was not restricted to six months. The office of praetor could originally be held only by patricians but since BC plebeians had also been eligible. Like the consuls the praetor was elected in the comitia centuriata.
He also had imperium and the right to issue edicts. He was the praetor qui inter peregrines ius dicit, a title which afterwards was shortened to praetor peregrines. Six of them were given the task of supervising the newly instituted criminal courts, while the other two praetors, urbanus and peregrinus, retained the iurisdictio in Rome and in Italy; outside the capital they were represented by the praefecti iure dicundo. The two censors occupied a special position in the magistrature: In addition to their original tasks making up the census list and appointing senators they were put in charge of the public sales at which publica were leased collection of taxes, exploitation of mines, etc.
The leges Liciniae Sextiae also introduced some changes into the aedileship. Two new aediles were appointed; these were additional to the original two aediles who were assistants to the tribunes. To distinguish them from the original plebeian aediles the new magistrates were referred to as curule aediles. They were chosen by the comitia tributa. The curule aediles also had to supervise the functioning of the public markets; this task is particularly interesting since it included iurisdictio over the sale of slaves and cattle; by issuing edicts on the law of sale the aediles contributed considerably to the development of Roman private law.
A Short History of Roman Law
Like the aediles, the quaestors, who were traditionally assistants to the consuls, were chosen by the comitia tributa. About BC their numbers were doubled, so then there were eight quaestors and at the beginning of the first century BC Sulla even increased their number to twenty. The quaestors could be required to perform a variety of tasks; these included supervising the aerarium, directing criminal proceedings before the comitia and assisting senior magistrates outside Rome. When the differences between the patricians and the plebeians died down in the course of the fourth century BC the tribunes became magistrates for all the Roman people.
They acquired the right to be present at meetings of the senate and later they even acquired the right to summon the senate and make proposals to it; we do not know precisely when this happened. From the end of the second century BC the tribunes, just like the other magistrates, became members of the senate on completing their term of office. From then on even patricians could become tribunes. They were no longer chosen by the concilium pie bis; their election then took place in the comitia tributa.
One of the traditional powers of the tribunes was the right to invalidate the actions taken by magistrates and other tribunes. The right of intercession turned out to be a powerful weapon in the political turmoil of the last years of the republic, particularly because among the ten tribunes there was always bound to be at least one who was closely linked to the senate.
Apart from a short period under Sulla, the tribunate continued well into the principate. It even formed one of the pillars on which the first emperors based their power. Athens in the fifth and fourth centuries BC. Of the four types of assemblies that existed at the beginning of the republic three were still functioning about BC. The comitia centuriata, the comitia tributa and the concilium plebis. The comitia curiata was still in existence but the meetings were no longer attended by all citizens; the earlier tasks of the comitia curiata were now performed by the thirty representatives of the curiae.
The difference between the two comitia on the one hand and the concilium plebis on the other hand diminished, slowly but surely. The number of patricians remained more or less constant, whereas the number of plebeians had increased dramatically after the territorial expansion: When it was decreed by the lex Hortensia in BC that from then on the plebiscites would be binding for all Roman citizens and they would thus be equated with the leges, this did not cause a largescale political shift. By the late republic a remarkable situation had developed.
There were three organs with equal powers to make decisions that were binding for the citizens; two of these, the comitia centuriata and the comitia tributa, consisted of the same people, although they were organised in different ways. The concilium plebis was made up of more or less the same people as the two comitia and was organised in the same way as one of the comitia, namely the comitia tributa.
Which of the three assemblies was summoned depended on which magistrate it was who wished to put a proposal to the people: In practice, it was usual for laws to be formulated in the concilium plebis, because the tribunes generally had more time for and more interest in legislation than the consuls who often had military commitments.
The various magistrates were still chosen by the assemblies which had traditionally had the right to do this. The factors that led to this instability, however, were not identical for the various elements that made up the population of the Roman empire. In the conquered territories the violence and greed of the Romans fanned the flames of nationalism among the local people and caused large-scale rebellions, particularly in Greece and Asia Minor. Among the Roman citizens themselves conflicting interests in the socio-economic field increased steadily.
Members of the senatorial aristocracy wanted to maintain the established order which had allowed them to get rich by sharing in the spoils of war and by acquiring land from the state. Among the senators there was a growing trend towards luxury and individualism; this was in sharp contrast to traditional Roman austerity and readiness to serve the state. Most of the senators lacked the vision required to tackle the problems which were beginning to develop.
The same applied to the equites; they had been able to feather their own nest in the existing situation and therefore wanted to retain their privileges. The small landowners, on the other hand, were not satisfied; the continuing wars and the long period of compulsory military service up to thirty years made it almost impossible for them to keep their businesses running. The owners of large estates, however, did not have this problem because they had their land worked by slaves, who were not eligible for military service. The population of Rome had increased steadily because of the influx of impoverished farming families, veterans from the army, non-Roman merchants and artisans and because of the growing numbers of freed men and women, most of whom were not of Roman origin.
Some of these people succeeded in making a reasonable living, others however soon joined the ranks of the unemployed urban proletariat. The latter were very dissatisfied with the existing situation and were therefore inclined to give their support to anyone who suggested that their prospects could be improved. The slaves, who had to do the heavy work and were often very badly treated by their masters, were of course not satisfied with their lot either; slaves rebelled on several occasions 44 THE STATE and in several areas, e.
Sicily and Asia Minor. Military force had to be used to quell these uprisings. A minority then tried to force through some changes with the help of the assembly. These senators, who were called populares because they relied on the assembly of the people, were led by Tiberius Gracchus. To achieve this goal, state-owned land would have to be given to the poor. By this time most of the state-owned land had fallen into the hands of the large landowners who for the most part regarded it as their own property.
Tiberius Gracchus proposed to re-introduce the norms that had been laid down in an earlier law which had fallen into disuse concerning the size of the state-owned piece of land that a citizen could occupy and the number of animals he could graze on that land. If citizens had more than the permitted amount of land, the extra would have to be divided into small sections and allocated to other persons who had no land.
However, Gracchus manoeuvred so clumsily and overstepped his authority as a tribune to such an extent that he seriously weakened his own position. By continually violating the established constitutional procedure and by basing his actions on the will of the people he gave the impression that he was trying to acquire power for himself. When he tried to get reelected as a tribune, although that too was against the regulations, he was murdered by a number of senators.
His death, however, did not mean the end of the political unrest. Although he acted more cautiously than his brother and achieved a number of successes Gaius Gracchus failed in the end and, like his brother, had to pay for his exploits with his life in BC. In the next few years the reforms of the Gracchi were carried out, but in a much altered form. Power in the senate was undoubtedly back in the hands of the optimates. For instance, it was defeated by King lugurtha in Numidia North Africa , and by the Cimbri and Teutones in Gaul; the optimates were held responsible for these defeats.
In BC one of the leaders of the populares, C. Marius, succeeded in getting himself elected consul. After defeating King lugurtha and the Cimbri and Teutones he returned to Rome as a very powerful man. However, when he claimed state-owned land where he could establish some colonies for his ex-soldiers, the senate, which was still dominated by the optimates, refused to co-operate. He was appointed consul in 88 BC and was charged by the senate to lead the army against Mithridates VI, king of Pontus in Asia Minor, who had persuaded large parts of Asia Minor and Greece to rise up against the Romans.
The assembly, however, decided that Marius must have control of the army. A civil war broke out between Marius and his supporters on the one hand and Sulla and his soldiers on the other. After several years of conflict Marius was defeated. In the years that followed Sulla became a dictator and conducted a reign of terror 82—79 BC. When he died one year later there was a power shift in the senate in favour of the populares. One of their most important leaders was Cn. Pompeius Magnus , a very successful general. Not only did he succeed in eradicating piracy in the Mediterranean area, but he also managed to defeat Mithridates and reorganise the administration of the conquered territory in Asia Minor, Syria and Palestine.
When, upon his return to Italy, he tried to look after his veterans, he—like Marius before him—encountered strong opposition from the senate. Thereupon he formed a triumvirate with two senators, C. Julius Caesar and M. Licinius Crassus, his aim being to divide up the power and bypass the senate 60 BC.
This triumvirate was renewed in 56 BC but when Crassus was killed in 53 BC in the war against the Parthians, the relations between Pompey and Caesar rapidly deteriorated. In 49 BC another civil war broke out: Pompey was supported by the senate and Caesar by the people. It was not until more than four years later—after the Roman legions had faced each other on several occasions—that Caesar was able to defeat his opponent 45 BC.
During this period Caesar had already had himself appointed dictator several times and in 45 BC even for an unlimited period.
A Short History of Roman Law
These senators, however, had no alternative plan for governing the Roman empire. It was another seventeen years before Augustus resolved the crisis by creating a new form of government, the so-called principate. Archaic law, as was mentioned earlier, was closely bound up with religion and consequently it was very formalistic and exclusively Roman; the latter was nothing out of the ordinary in view of the fact that Roman territory was still very limited in size.
The late republic saw a number of important changes in the law which can be summarised by the terms secularisation, internationalisation and liberalisation. A change that was remarkable for the times was the internationalisation of Roman law within the frontiers of the Roman territory. The granting of Roman citizenship had certainly not kept pace with the enlargement of the Roman sphere of influence. As a result more and more people belonging to other nations but living in Roman territory did not have Roman citizenship and therefore could not participate in the Roman ius civile.
Because these foreigners, who were referred to as peregrini, had no access to the old legis actio procedure the praetor began to adapt the proceedings in the second century BC. The new procedure that developed from this was called the formulary system; it could be used almost equally by Roman citizens and peregrini.
By virtue of his ius edicendi the praetor began to introduce new legal remedies which were available to both Roman 48 THE LAW citizens and peregrini and also satisfied the new demands of legal practice, for in those days Rome, with its port of Ostia, began to become a very important centre of trade. The praetor was not solely responsible for the creation of this new form of private law. At the same time a new way of dealing with Roman law, and particularly Roman private law, known as Roman legal science, developed. This literature has become the most important and most original product of Roman culture: It was not until the last century of the republic that penal law began to develop: It is striking that whereas the new elements in penal law were based largely on legislation, private law developed mainly within the framework of the administration of justice and legal science.
In the following section something will be said about legislation and about the development of penal law; thereafter civil procedure and legal science will be dealt with in detail. Furthermore, the concilium plebis could make general decisions, but originally they were binding only for plebeians. It was not until BC when, due to territorial expansion, there were more plebeians than patricians, that the plebiscites were declared binding for all the people by virtue of the lex Hortensia. In BC this rule was reversed and as a result proposed legislation had to be approved by the senate before the magistrate could put it to the assembly.
Until BC this may not have applied to plebiscites but then it probably did. In this way legislation passed definitively into the sphere of influence of the senate. In the first century BC, when the Roman republic was caught up in an administrative crisis and the assembly had lost a good deal of its influence, it sometimes happened that a proposed law which had been approved by the senate was no longer put to the assembly but came into force immediately; on the other hand in those days plebiscites were sometimes formulated which had not been previously approved by the senate and were later declared invalid by the senate.
In Topica V, 28 Cicero mentions both the senatorial decrees and the leges as sources of the law; in an inscription which probably contains fragments of the lex Iulia municipalis of 45 BC leges, plebiscites and senatorial decrees were put on a par as sources of the law. From the middle of the first century AD hardly any new laws came into being by means of leges or plebiscites; senatorial decrees, however, have long been used to create law.
In general the laws rarely had anything to do with private law. A well-known example of a law that did is the lex Aquilia, a plebiscite which probably dates from BC; this law dealt with various types of unlawful damage to property obliging the perpetrator to pay a fine to the owner.
Most of the laws related to politically disputed issues; a good example is the so-called Tabula Bembina, an inscription on a bronze plaque, nine fragments of which have been preserved. On one side of the plaque there is the text of a lex repetundarum and on the other side there is the text of a lex agraria. Nowadays it is assumed that this bronze plaque was first used about BC for one of the laws to curb extortion by provincial governors and that when this law was superseded by another law, the back of the plaque was used in BC for a law on land reform which was to replace the earlier legislation of the Gracchi with regard to this subject.
However, in 50 THE LAW order to gain a proper understanding of how criminal justice was administered in the late republic, one needs to have some knowledge of the earlier history. It should be realised that public criminal law in Rome traditionally covered a more restricted area than modern criminal law.
A large group of offences was regarded as being harmful to the individual citizen but not to the state; the perpetrators were therefore not prosecuted by the state. In such cases the injured party had to institute a civil procedure. If the defendant was found guilty he could be forced to pay a penalty to the injured party. Delicta privata were regarded as part of private law. Offences such as treason or murder had long been part of criminal law. They were referred to by the term crimina publica. There are various interpretations and reconstructions of the way in which murder was dealt with.
According to Mommsen and Jones the proceedings took place in the presence of a magistrate and anyone who was condemned to death by him could appeal to the comitia centuriata? This view has been challenged in various ways. Minor offences, however, like the burial of a corpse within the walls of a city and the holding of nocturnal meetings were punished by the magistrates. About BC, when Rome had grown into a large town with all the associated problems, this system was no longer adequate.
Two measures were taken in order to improve the situation. First of all, low-ranking magistrates were appointed, the tresviri capitales, who judged cases, reported by citizens, involving violent crimes, arson, the making and possession of poison, etc. They judged slaves and foreigners and possibly also Roman citizens from the lower strata of society.
Initially this happened only occasionally, but in BC the lex Calpurnia established the first court for a particular type of offence, namely the quaestio de repetundis; its task was to deal with cases of extortion by Roman governors in Italy or the provinces. Thereafter a few more quaestiones perpetuae were established. They came under the authority of specially appointed praetors.
One of the reforms instituted by the Gracchi was to recruit jurors for the courts exclusively from the equites; Sulla then revoked this revolutionary decision and after much ado Julius Caesar finally stipulated that both senators and equites could serve as juror. Furthermore, within the framework of his political reforms Sulla reorganized the permanent courts and increased their number.
Thereafter there were six courts: We know something about the procedure in the criminal courts because some of the speeches made by Cicero when he acted as advocate or prosecutor in such lawsuits have survived. Every respectable citizen, not only the injured party, could lodge a complaint against someone. If the praetor accepted the complaint, a jury was set up by drawing lots.
The course of the lawsuit was not determined by the judge, as in English law, but by the parties and their advocates. The plaintiff had to prove that the defendant had committed the crime; if he was unsuccessful he ran the risk of being accused himself because he had knowingly lodged a false complaint. If he was successful he would receive a considerable reward: It is not surprising that in time the system was abused and some people even made a profession of accusing rich fellow-citizens.
Finally it was the jury who decided whether the accused was guilty or not and what the penalty would be, if it was not evident from the law. The introduction of the formulary procedure As was mentioned earlier, in the late republic the praetor set about creating a new way of civil litigation, the formulary procedure, and began drawing up new legal norms. We have very little factual information about how or when this happened. We do know however that the introduction of the formulary procedure did not automatically lead to the abolition of the old legis actio procedure.
The latter was even modernised to a certain extent in the third and second centuries BC and continued to exist until the beginning of the principate. IV, 30 this occurred by virtue of a lex Aebutia and two Julian laws. The Julian laws concerned were the leges Iuliae iudiciorum publicorum et privatorum of emperor Augustus, dating from 17—16 BC, which are also known from other sources.
By one of these laws Augustus abolished the legis actio procedure except for jurisdiction by the centumviri see under section 6. We do not know the date or the purpose of the lex Aebutia. It is generally accepted, however, that the law dates from the second century BC. There are various opinions about its purpose. Nowadays it is taken for granted that the lex Aebutia was the first law to allow the procedure by formula to be used for claims which until then could only be made by means of the legis actiones. In these cases—it is not yet possible to ascertain which claims exactly were involved—it was possible for the plaintiff to choose whether he would use the old or the new procedure; however, because the procedure by formula was more advantageous and therefore was generally the one chosen, the lex Aebutia in fact put an end to those legis actiones.
A problem, however, was that because these formulae were not based on a law, something already settled in a formulary action could be judged again in a legis actio procedure. The leges Iuliae must have removed this possibility by abolishing nearly all legis actiones. Thereafter, all claims protected by the ius civile and all claims protected by the praetor could be judged definitively in a procedure by formula.
The first phase of the lawsuit: The first phase took place in the presence of the praetor in iure ; the purpose of this phase was to open the case. The second phase took place in the presence of the judge apud iudicem and its purpose was to obtain a verdict. The most important innovation introduced by the formulary system when compared to the legis actio procedure was that the praetor was no longer bound by the words of the five legis actiones, but could interpret them and make changes, and even introduce new legal remedies for relationships that were not recognised by the ius civile.
Another important change was that the praetor fixed the legal remedy in a written formula and parties no longer had to state their dispute in certain prescribed words, with all the risks that such a procedure involved. The procedure by formula began when parties that had a dispute put their problem to the praetor or in certain cases to the aedile requesting him to appoint a judge who could settle their dispute. The praetor first had to check whether the parties were qualified to be a plaintiff or a defendant in a legal action on the basis of the facts they had submitted; if they did not qualify, then the praetor refused the action denegatio actionis ; if they qualified, then he consulted the edict.
In this edict, which he had issued on the basis of his ius edicendi at the beginning of his term of office and which in principle was applicable for the whole year edictum perpetuum , he had collected all the legal remedies that he was prepared to grant together with the text of the associated formulae. If the edict did contain an action which was already known from the ius civile or had been created by a previous praetor or by himself, then he gave permission to initiate the proceedings. The praetor and the opposing parties chose a judge and they prepared a formula.
A formula generally consisted of three parts: The intentio, other sections and the condemnatio were always contained in one sentence which was 54 THE LAW drawn up according to a fixed scheme.
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The formula for an action where the cause was a loan of money, for instance, ran as follows: Si paret Numerium Negidium Aulo Agerio sestertium milia dare oportere, condemnato, si non paret absolvito. XX must be the judge. If it appears that the defendant ought to pay to the plaintiff sesterces he the judge must condemn him; if this does not appear, then he must absolve him. In this case the judge was charged merely to examine whether the claim of the plaintiff was true; if the praetor considered that this might lead to an unfair result he could, at the request of the defendant, incorporate a defence exceptio in the formula.
If, for instance, the defendant did not deny the existence of the debt but asserted that the money was sued for in contravention of an informal agreement, then the formula would be worded thus: Si paret Numerium Negidium Aulo Agerio sestertium milia dare oportere, et si inter Aulum Agerium et Numerium Negidium non convenit ne ea pecunia peteretur condemnato, si non paret absolvito. If it appears that the defendant ought to pay to the plaintiff sesterces and if it has not been agreed between the plaintiff and the defendant that the money should not be sued for, he must condemn him; if this does not appear, then he must absolve him.
This meant that if the judge concluded that the claim was perfectly good according to the ius civile but that the defence was justified, he would reject the claim. Registered in England and Wales. Terms of Use Privacy Policy. The History of Rome by Titus Livius. Plutarch's Lives Clough's Translation by Plutarch. Hallifax by George Leapingwell. Riddles of Prehistoric Times by James H. Roman History by Julius Koch. Cicero and the Fall of the Roman Republic by J. History of Hannibal the Carthaginian by Jacob Abbott. Manual of Political Ethics Book I.