Roman Law

(d) The Early Empire and the Classical Period.—The change from republic to empire did not make any immediate difference to private law, except in so far as, bringing peace after a century of turmoil, it was favourable to legal progress. Legal literature, too, increased in volume and a number of quotations from authors of the first century survive in the Digest. This age in fact merges insensibly into the classical period, which is generally taken to include the second century A.D. and the early third century, and is thus considerably later than the classical period of Latin litera ture. It falls roughly into two divisions, an earlier one covered by the reigns of Hadrian (A.D. 117-138) and the Antonine emper ors (death of Commodus A.D. 193) and a later one under the Severi (accession of Septimius Severus A.D. 193—death of Severus Alexander A.D. 235). Not that there is any break in the continuity of development, but the work of the earlier period was of a more creative character, while the later represents the working out of existing principles over the whole field of law. In the Digest there are quotations from all the authors of the classical age, but those taken from three writers of the later period (Papinian, Paul, Ulpian) alone comprise over half the work.

(e) The Post-classical Period.—With the era of confusion that followed the murder of Severus Alexander, there came a rather sudden falling off in the value of the legal work done, and the restoration of order by Diocletian (A.D. 284-305) did not revive legal literature. The law, of course, did not stand still. New ideas were introduced, especially from Greek sources, through the estab lishment of the Eastern empire with its capital at Constantinople, and through the growth of Christianity, while the great social and political changes of the sinking empire necessarily had their reper cussions on private law. But it was not until the age just preced ing Justinian that there was something of an intellectual revival in legal matters, and this revival Justinian was able to use for his great purpose.

The Romans themselves divided their law into ius scriptum and ius non scriptum; by "unwritten law" they meant custom, by "written law," not only that derived from legislation, but, liter ally, that which was based on any source which was in writing and the list of written sources comprises leges, plebiscita, senatus con sulta, edicta magistratuum, responsa prudentium and constitu tiones principum. This list is repeated in Justinian's Institutes though ever since the close of the classical period the only source of new law (apart from custom) had been the emperor's con stitutions.

A. his Non Scriptum or Custom.

Custom (mos maiorum, consuetudo) was recognized by the Romans not only as having been the original source of their law, but as a source from which new law could spring. The theory given by the jurists is that the people, by adopting a custom, show tacitly what they wish to be law, just as they might do expressly by voting in the assembly. In the developed law it would seem, however, that custom as an independent source was not very fruitful, and that it exercised its influence rather through the medium of juristic opinion and the practice of the courts.

B. Ius Scriptum.

(I) Leges and Plebiscita.—Lex is properly an enactment of one of the assemblies of the whole Roman people, the comitia centuriata, tributa or curiata (see Comm), but the most ancient of these, the comitia curiata, ceased, before the beginning of reliable history, to have any real political func tions, though it continued right up to classical times to exist for certain formal purposes. The validity of plebiscita, i.e., resolu tions of the purely plebeian assembly, was one of the chief mat ters of contention between the patricians and plebeians, and the struggle between the orders may be said to come to an end in 287 B.C. when, by the lex Hortensia, plebiscita were given the force of leges. Thereaf ter enactments which were strictly plebiscita were often loosely referred to as leges.

Roman assemblies, like those of the Greek city states, were primary, i.e., the citizen came and voted himself and did not send a delegate, but their power was restricted by the rule that only a magistrate could put a proposal before them and by the absence of any opportunity for amendment or debate. The only function of the people was to answer "yes" or "no" to the magistrate's "asking" (rogatio), and constitutional practice further required that the magistrate should consult the senate before putting a pro posal to the assembly. In the later republic, at any rate, rejection of a bill was practically unknown and the real power lay with the senate and the magistrates.

Leges Regiae.—The historians have a good deal to say of leges passed in the time of the kings, but legislation at so early a date is unlikely. What they took for laws were probably statements of ancient custom from pontifical sources.

The XII. Tables.—Of much greater importance are the XII. Tables, said to have been passed in 451-450 B.C., some 6o years after the expulsion of the kings. The accounts given by the his torians of their compilation (see ROME, History) are inconsistent and mainly mythical, but tradition is no doubt right in representing it as an incident in the struggle of the plebeians for political equal ity. The moving cause was a desire to obtain a written and public code which patrician magistrates could not wrest at their will against plebeian litigants. What weight should be given to that part of the story which tells of a preliminary embassy sent to Athens to study the laws of Solon, has been much debated. That the embassy itself is legendary can hardly be doubted, but on the other hand, that there was some Greek influence is clear. (See, e.g., Tab. VII. 2-D. 10.1.13.) In the main, however, the materials of the code were taken from native customary sources. The authenticity of the whole compilation has been attacked in recent times, but the most authoritative modern opinion holds, in spite of all scepticism as to details, that the XII. Tables really were an enacted code of law, and that tradition is not far wrong in ascrib ing them to the middle of the fifth century B.C.