those who were to enjoy in future the privileges of quiritarian right,—and
multiplying the sources of future disputes that would have
to be determined by the tribunals. The nature of the jurisdiction
created by him, if any, to meet the new aspect of things is much
controverted. He has been credited with the institution of the
collegiate courts of the Centumviri and the Decemviri (stlitibus
judicandis) as well as the private judge (unus judex), but the
arguments in support of this view are not strong, and are, of course,
based wholly on presumptions. However, it will be convenient to
say a few words about each of these courts here.
The centumviral court[1] is often referred to by Cicero, and the range of its jurisdiction in his time seems to have included every Centumviral court. possible question of manus in the old sense of the word—status of individuals, property and its easements, and court inheritance whether testate or intestate. By the time of Gaius the only matters apparently that were in practice brought before it were questions of inheritance by the jus civile, though theoretically it was still competent in all real actions, and the lance, the emblem of quiritarian right generally, was still its ensign. During the later Republic the Centumviri formed a quasi-corporate body of private judges selected originally from the tribes (afterwards from the ordinary list of judices) annually by the urban praetors.[2] Some writers identify the centumviral court with the Romulian senate of 100; others attribute its institution to Servius Tullius and hold that it was a plebeian court at first; others make it contemporaneous with the XII. Tables; others bring it down to the 6th century of the city; while the weight of recent authority is in favour of the view that it is not earlier than the beginning of the 7th century. The arguments in support of these several views cannot be gone into here. It is enough to say that we have no positive proof of its existence earlier than the 7th century, though presumptions are in favour of its having been somewhat earlier. In the exercise of their office the Centumviri acted more independently than private judices ventured to do, and even introduced some considerable reforms into the law.
There was a court at Rome during the Republic called the Decemviri stlitibus judicandis.[3] These decemvirs in historic times Decemviral court. constituted a quasi-corporate body of judicial magistrates, whose duty it was to try certain kinds of actions, especially those relating to personal liberty. During the Principate, while ceasing to act as a separate court, they presided over the divisions into which the centumviral court had been under Augustus divided. Their origin is quite unknown. Pomponius indeed says that they were originally created soon after the institution of the peregrin praetorship in 242 B.C. for this very purpose of presiding over centumviral cases,[4] but this statement is generally discredited and, if true, their practice of so presiding must quickly have gone into disuse. Those writers who attempt to trace back the centumvirs to the regal period give, as a rule, a like antiquity to the Decemviri stlitibus judicandis. On the other hand, some authorities identify them with the decemviri judices mentioned by Livy[5] as having been declared by the lex Valeria-Horatia to be as sacrosanct as the tribunes of the plebs. But these latter judices seem to have been a purely plebeian court which early went into desuetude, and there is really no evidence of identity.
So far back as historic evidence goes we find that actions were tried and judgments pronounced by judices and arbitri. There “Judices” and “arbitri.” never was more than a single judge (unus or unicus judex) appointed to try a case, but there might be more than one arbiter, and frequently there were three. All kinds of actions, even a sacramental action in rem, could be brought before the unus judex, but especially appropriate to him were all personal claims of alleged indebtedness, whether arising out of a legal or illegal act, denied either in toto or only as to the amount. Matters of that sort involved as a rule no general principle of law but rather mere disputes as to facts, which could well be decided by a single individual. There is much more reason for crediting Servius with the institution of the single judge (the arbiters may have been a creation of the XII. Tables) than with either of the collegiate courts. If we believe that in the early regal period the king acting with the pontiffs kept all jurisdiction in his own hands, it is plain that this must have become a practical impossibility after the admission of the plebeians to citizenship. For the trial of disputed facts it would be necessary to delegate jurisdiction, and the earliest judices may have been the king's commissioners for such cases. If this be right, it was the beginning of a system that bore wondrous fruit in after years, and that, as will be shown in the sequel, helped the praetors to build up, through the formulae, the whole body of equity.
Under the kings it is not improbable that several of the legis Civil procedure. actiones, more or less undeveloped, were already in use, but the nature of these actions will be more conveniently considered later on (infra, p. 566).
II. The Jus Civile
(From the establishment of the Republic until the subjugation of central and southern Italy.)
i. Constitutional Events affecting the Law.
Jus Civile contrasted with Jus Quiritium.—The term jus civile, as used to designate this chapter, though almost synonymous Nature of “Jus Civile.” with, may be taken as somewhat more comprehensive than, jus Quiritium. It is a term of of later origin than the latter. Jus Quiritium was based entirely on old custom and legislation, finding, one might say, its culmination in the XII. Tables; whereas in the jus civile, as here understood, there appears the element of doctrinal interpretation of both statute and custom—the magistrates and jurists (particularly the pontiffs) adding much to the earlier law by introducing into it this element. We can say that the jus civile in this sense is jus Quiritium as developed by interpretation. It is as yet, however, little influenced, as was the more comprehensive jus civile of later periods, by the elements of jus gentium and equity. Still nowhere, we must note, are the terms jus Quiritium and jus civile placed in contrast by the jurists; they were each jus proprium civium Romanorum. In the classical law the term jus Quiritium seems to be used principally in formulae framed in accordance with old custom.
Though our information regarding the present period is less legendary than that of the kings, it is still far from being Historic evidence. completely authentic, as no original documents belonging to it are extant. There is little dispute among critics that Rome was sacked and burned by the Gauls about 387 B.C. or a few years later, and it is probable that the original pontifical annals (annales maximi) upon which Livy and other Roman historians have presumably based their narratives of early history were destroyed at that time along with all other written records. What credence, then, we may give to the ancient historical narratives, for the period of the Republic antecedent to this event, depends largely upon how far the pontifices managed to have their lost records restored. In any case, however, there is sufficient presumptive evidence to warrant belief in such prominent events of the early Republic as the creation of two annually elected patrician consuls, with potestas similar to that of the kings, the creation of tribunes of the plebs, the enactment of the decemviral code, and periodic struggles between patricians and plebs, the one to keep and the other to gain political power. To know the exact dates of these events is relatively of little importance.
Legislation in Favour of the Plebs.—In their uphill battle for social and political equality the plebeians conquered stage by stage. The more important of their successes may here just be mentioned, with all reserve as to credibility, in the order of their traditional dates. By the lex Valeria (de provocatione) of 509 B.C. it was provided that no Roman citizen should be deprived of life, liberty or citizenship (i.e. suffer poena capitis), or be scourged, by any magistrate within the city, without an appeal (provocatio) to the comitia centuriata. This statute was often referred to by later Romans as a sort of Magna Carta; Livy calls it unicum praesidium libertatis. In 494 or 471 B.C. the tribunes of the plebs were created with right of intercession, and about the same time plebeian aediles and judices decemviri (the latter to act as judges or arbiters in litigations); the persons of all these officials being declared inviolable during their tenure of office. About 471 B.C. the concilium plebis became legislatively recognized, the tribunes
- ↑ Literature: Huschke, Servius Tullius, pp. 585 seq.; Keller-Wach, Röm. Civil Process (1883), § 6; Bethmann-Hollweg, Geschichte d. C. P. i. § 23; Wlassak, Process-Gesetze, i. 125 seq. and ii. 201 seq.; Girard, Organisation judiciaire des Romains, i. 23 n.; Martin, Le tribunal des centumvirs (Paris, 1904). In this last-named work a succinct account of the court and the various theories about it is given.
- ↑ On the question of their election, see Greenidge, Legal Procedure in Cicero's Time, pp. 41 and 264.
- ↑ Girard, Organisation judiciaire, i. 159; Pauly-Wissowa, Encyklopädie, s.v. “Decemviri.”
- ↑ Dig. i. 2, § 29.
- ↑ Livy, ix. 46, 5; Karlowa, Röm. R.G. i. 118.
