Institutes of Roman Law. Gaius
forms, if it ever existed, had been already passed, and that even in the time of the Kings something approaching a clear line could be drawn between the functions of Religious Law (Fas) and those of Secular Law (Jus). At the close of the history of the Republic there could be shown, in contradistinction to the great secular code of the Twelve Tables, a collection of religious ordinances, believed to be even more ancient than this code, and known as the Laws of the Kings (Leges Regiae) Ref. 015. These laws are not represented as having formed a code, but merely a compilation. They were believed to be regal ordinances, issued by different Kings, which had been collected in the early days of the Republic by a Pontiff named Papirius Ref. 016. It was held that they had been publicly exhibited in Rome, and were restored, like the Twelve Tables, after the burning of Rome by the Gauls (390 b. c) Ref. 017. At the end of the Republic the compilation was edited, perhaps to some extent revised, by a scholar named Granius Flaccus, who is believed to have been a contemporary of Caesar Ref. 018; but there is no reason for supposing that Flaccus introduced any essential alteration in the tenor of the ordinances. These ordinances, in the form in which they have been preserved to us, bear the strongest internal marks of their genuineness. Some of the provisions which they contain are quite prehistoric and could never have been valid at any period of the history of the Republic. Others deal with purely religious observances, which may belong to any date, but may be as early as the city of Rome itself. The Royal Laws, in fact, contain a series of ordinances, dealing with social, moral and religious life, such as may have been issued over a long period of time by the College of Pontiffs. It is not likely that all of these rules really go back to the epoch of the Kings; but many of them must do so, for they reflect an extremely primitive stage of culture and religious belief. In fact, one of the most surprising features of the Royal Laws is their lack of significance for the ordinary current of Roman life, as it was lived in the historical period. Where they are not a dead letter, they refer only to slight and exceptional contingencies, to the bare outline of the political life of the State and to the faintly defined structure of its hierarchical organization; whereas the Law of the Twelve Tables is a great living force, which pervades the whole of Roman business life. The Royal Laws reflect on the whole the rule of Fas; the Twelve Tables almost entirely the rule of Jus. A comparison of the former compilation with the latter code, in regard to their respective influences, exhibits more effectively than any other evidence could do the triumph of secular over religious law even in the early period of the Republic.
§ 5.: Jus—Its different forms as exhibited in Procedure.
The counterpart to the rule of Fas is the rule of Jus. Jus seems originally to have meant ‘That which is fitting’ Ref. 019, and the word never necessarily conveys the implication, contained in the word Law, that the thing it describes is the result of enactment by a Sovereign. It conveys rather the idea of valid custom, to which any citizen can appeal, and which is recognized, and can be enforced by, a human authority. Jus is a nugatory thing, a vain abstraction, until it can be realized; it is a thing recognized only in practice; and so indissolubly were the ideas of Right and Satisfaction connected with one another in the minds of the Romans that they used the same word ‘Jus’ for Right and for Court Ref. 020. This association of ideas gives us the clue to the fact that the only possible method of distinguishing between the different kinds of Jus is by appealing to Procedure. In early societies, where there is no science of Jurisprudence, the only way in which the distinctions between different kinds of law—public and private, civil and criminal—can be exhibited, is by pointing to the fact that different kinds of mechanism have been created for satisfying different kinds of claims. Thus the characteristics of private law are those of a civil suit. Here the action can be brought only by the injured party or his representative, the satisfaction recovered belongs to the injured party, the Court which gives the satisfaction is composed of some arbitrator or judge (arbiter or judex) chosen by the consent of the parties, but approved by the judicial magistrate who represents the State. Criminal Law may similarly be defined in terms of Criminal Procedure. Here the wrong done is regarded as inflicted, not merely on the individual injured, but through him on the State. The State, therefore, will not depend on the initiative of the injured individual to undertake the prosecution. It can either be taken up by any citizen, or is regarded as the peculiar duty of a magistrate. The magistrate is often both prosecutor and judge. The defendant has no voice in the selection of the Court. The Court consisted, in the earlier procedure at Rome which never became wholly extinct during the Republic, of a magistrate representing the State, or of the State itself in the form of the Sovereign Assembly of the People; at a later period, of a select body of Judices with a President (Quaesitor), both Judges and President being created by statute. The satisfaction recovered from the defendant in such a trial, if it takes the form of a fine, belongs not to the aggrieved individual but to the State; if it assumes the form of punishment which is not pecuniary, such punishment is inflicted by the State. The third class of occasions on which the State intervenes to correct a wrong or to chasten an individual, is that governed by the rules of Administrative Law Ref. 021. The procedure springing from this Law has analogies both to civil and to criminal jurisdiction. Administrative jurisdiction has as its object either the enforcement of a personal service to the State on an individual, or the exaction of a debt which he owes to the State. The obligation to service is generally enforced by a fine imposed by the magistrate. But whether what is demanded by the State takes the form of personal service or a pecuniary debt, the characteristic of Administrative jurisdiction at an early period of Roman History is that the magistrate who represents the State has a double character. He is not only prosecutor or plaintiff but also judge. This principle, however, was eventually modified. If the fine imposed exceeded a certain limit, an appeal to the People was allowed Ref. 022; and, later still, the penalty might be sought either by a magistrate or a common informer before a civil court Ref. 023. When a debt to the State was the object of dispute, the custom may eventually have been established that the magistrate should not himself judge, but should appoint for this purpose a panel of those assessors of debts or damages who were known as Recuperatores Ref. 024.
The question as to what particular cases shall fall under each of these three heads of Civil, Criminal and Administrative Law is one that is answered differently by different political societies; and Rome herself gave different replies to this question at various periods of her history. But we know of no period in the life of Rome when the distinction between these three types of Law and Procedure was not clearly grasped, and expressed by the higher judicial authorities, who were at Rome in a very real sense the makers of law.
§ 6.: The ultimate sources of Jus—The Monarchy and the Early Republic.
The problem of the ultimate source and sanction of Jus was not one that troubled the Roman to any appreciable degree at any period of history. He was content to regard it as the product of Custom assisted by Interpretation. At a later period he supplemented it by acts of Legislation; but, even when he did so, he was much less concerned with the words of the enactment than with the manner in which these words were interpreted. Scarcely any people has had less of a gift, or natural inclination for, scientific legislation or the formation of a Code. The Roman’s dependence on authority and skilled interpretation was, therefore, great; and this authority and power of interpretation are believed to have been represented, in the earliest times, by the King and the College of Pontifices. Justice could only be obtained by a litigant who knew the formularies of action, precise verbal accuracy in which was necessary for the successful conduct of a suit Ref. 025. But this knowledge could be obtained only from the King and his Pontiffs. The King, too, must have given the ruling in law which determined what form of action should be employed Ref. 026. Even at this early period the private Judex or Arbiter may often have been used for the final settlement of a suit Ref. 027; but the King must have assisted in his appointment; and his judgment must have been conditioned by the preceding form of action which the King and the Pontiffs had thought appropriate to the suit.
The change from Monarchy to Republic could have made little difference in the manner in which the law was revealed to the Roman litigant, except in so far as this change may