I. BOOK which is heavier than the other, it would be impossible to balance them; the heavier in its descent would continue to send up the smaller to the end of time. Make them equal, and they will remain at rest. There is no longer any superior, and the rule of action is gone. law. Law in its more confined sense denotes the Municipal rules of human action and conduct. Municipal law is a rule of civil conduct, prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong. Jus. rale. tium. All law is natural or instituted. The law of Nature, the law of Nations, and the Civil law were distinguished from each other by the Roman lawyers. Jus is defined by Celsus as Ars boni et æqui1. Jus Natu- It is divided into-1. Jus Naturale. 2. Jus Gentium. 3. Jus Civile. "Jus Naturale est quod natura omnia animalia docuit 2;" e.g. self-preservation, the Jus Gen- procreation of the species, &c. Jus Gentium is defined by Justinian as "quod naturalis ratio inter omnes homines constituit." Puffendorf defines it as ipsum jus naturale integrarum gentium negotiis et causis adplicatum. By modern writers it is reduced to the simple term jus inter gentes, that law which governs the intercourse of civilized nations with each other. Jus Civile. Jus Singulare. Jus Feciale. Jus Civile est quod quisque populus sibi constituit, et cujusque civitatis proprium ests. It is the law by which each independent state is governed. Jus Singulare, called also Privilegium, was where any privilege was granted to a person or class of persons, contrary to the Jus commune. The will of a soldier, and the Senatusconsultum Velleianum, may be taken as examples. Jus Feciale. The Feciales were a body of II. priests said to have been established by Numa, CHAP. whose business it was to declare war, and to ratify peace with neighbouring nations. The rules and regulations established by them were called the Jus Feciale1. Lex is defined by Papinian as commune præ- Lex. ceptum, virorum prudentium consultum: delictorum quæ sponte vel ignorantia contrahuntur coercitio: communis reipublicæ sponsi2. Laws are classed under four heads by Modestinus, Legis virtus hæc est: imperare, vetare, permittere, punire3. Lex differs from Jus as the species differs from the genus. Lex is what was enacted by the whole body of the Roman people, assembled at the Comitia Curiata or Centuriata, at the recommendation of one of the greater magistrates. Curiata. The oldest legislative assembly of the Romans Comitia was the Comitia Curiata, divided into three tribes, the Ramnes, Tities, and Luceres, which were subdivided into thirty curiæ consisting of patrician families. Servius Tullius, the sixth king of Rome, introduced a material change U.c. 176. It became necessary to recognise the plebs as part of the populus, which was not the case in the Comitia Curiata. He established the census, and arranged the citizens when assembled for legislative purposes according to their order when on military service, that is, according to their property. This arrangement considered the whole state as forming a regular army, and it consisted of 195 centuries, thence called the Comitia Centuriata, which con- Centuriata. tinued to be the form of the legislative body until its functions were suspended and finally extinguished by the emperors5. The Comitia Centuriata met in the Campus Martius. The consul presided, and put the question to the people when the moment for voting 1 Colq. I. 287. 2 D. I. 3. I. 3 D. I. 3. 7. BOOK came; hence Lex is said to be quam populus Romanus constituit superiore magistratu rogante'. Lex. tia. I. Plebiscitum. The institution of the tribunes and the Comitia Tributa date from the year U.c. 260. The plebs then acquired the right of holding their own comitia, Lex Hora- and of passing laws by the Lex Horatia obligatory only upon themselves. This assembly was summoned by the tribune who presided; it did not meet in the Campus Martius, but generally in the Flaminian Circus. The laws passed by the plebs were called Plebiscita, i.e. quæ plebs plebeio magistratu interrogante, veluti tribuno constituebat. So long as a plebiscitum bound only the plebs it differed from a lex, but in the year u.c. 468,3 when Lex Hor- the Lex Hortensia was passed, the patricians were compelled to acknowledge the obligatory force of the plebiscita, and from this time they were in fact leges. The Lex Aquilia, Falcidia, Voconia, and many others, were plebiscites. tensia. Mode of passing a Lex. Promulgatio. In passing a Lex the proceedings observed were as follows: First, it was drawn up in writing. Secondly, permission to lay it before the populus was asked of the senate. If this were granted, Thirdly, it was published by being fixed up in some public place during trinundinum, three market days, that the voters might be made acquainted with its provisions. Fourthly, due publication being made, a herald ascended the rostrum in the Campus Martius, and Recitatio. made the recitatio, i.e. he read the law to the assembled voters; then followed, Suasio. Fifthly, the suasio and dissuasio, the debate. This being over, a pause took place in the proceedSortitio. ings during the sortitio, which was the arranging the order of voting of the centuries by ballot. 195 tallies, the number of the centuries, marked from I to 195, were put into an urn and drawn out. 1 Hein. El. 46. * Haub. II. 38; Hein. Ant. 1. 2. 18. 2 Haub. II. 32. Bach. II. I. 17. II. The number which came out first decided the cen- CHAP. tury which was to vote first, and so throughout. The century to which the lot fell to vote first was called centuria prærogativa, the second secundo vocata, and so on. This prevented confusion. Here the proceedings might be stopped by the veto of the tribunes, or the adverse interpretation of the auspices. "Si nihil sinistri obnunciabatur," the presiding magistrate then put the question, rogabat populum, in the usual form, Velitis, jubeatis, Quirites, Rogatio. &c. The centuries then departed to the pontes, or poll-booths, erected in the Campus Martius. "Hi nihil aliud erant," says Heineccius, " quam angustæ quædam substructiones, opere subitaneo, e tabulatis solo editis adornatæ, per quas iis, qui suffragia ferrent viritim esset transeundum'." The pons con- Pontes. sisted of a narrow passage along which the voters could only pass in a line, one behind another. At the entrance stood the distributor, who gave to each voter as he came up two tallies, on one of which was inscribed the letter A. i.e. pro antiqua Tallies. lege; upon the other the letters U. R. i.e. uti rogas; the voters passed on, and at the other end stood the custodes, poll-clerks, who received from the voter whichever tally he chose to deliver. This done, the voter stepped down into an enclosure, called the cancellus, where all were confined till the votes of the whole century were given. The Suffragio voting being over, the next step was the suffragio- remptio. rum diremptio, the sorting the votes; if the tallies marked A. prevailed, the proposed law was said to be antiquata, rejected. If those marked U. R. had the majority, the law was passed, and was said to be scita or perlata. rum di tio. Lastly, the confirmatio took place, which was Confirmadone jure jurando, with solemn oaths and sacrifices. The law was then engraved on brass, and fixed up in the Ærarium in the temple of Ceres, which was under the care of the Ediles'. BOOK I. When the introduced. The names of the laws were generally taken from the Gentile names of the two consuls of the year in which they were passed, as the Lex EliaSentia. Occasionally they were named from the Dictator or Prætor who introduced them, as the Lex Emilia; and sometimes from the subject of the law itself, as the Lex Cassia agraria1. The election of magistrates was done in the same manner at the pontes; the tallies having the names of the candidates inscribed upon them. 2 The Roman people appear not to have voted ballot was by ballot before the year U.c. 615. Cicero, speaking of the leges tabellaria, which established this mode of voting, calls them "vindices tacitæ libertatis," and "principium justissimæ libertatis:" and in his oration pro Plancio, he says, "Populo grata est tabella, quæ frontes aperit hominum, mentes tegit: datque eam libertatem, ut quod velint faciant promittant autem quod rogentur." The Roman juries also gave their verdict by tallies, using three. On one was inscribed A. Absolvo; on the second C. condemno; on the third N. L. non liquets. The Plebs. Senatusconsultum. The Plebs are defined as cæteri cives sine senatoribus. They were arranged in thirty tribes, four in the city and twenty-six in the country. The plebiscita were passed by them when assembled, and voting tributim, the Tribune presiding. There was no asking leave of the Senate, and no consulting the auspices. The proceedings in other respects were the same as in passing a lex. A Senatusconsultum was a decree of the Senate concerning such things as were committed to their jurisdiction which had not properly the force of law, unless confirmed by the people. It is necessary here to explain the constitution and authority of the Senate during the Republic, and under the emperors. It appears that during the 1 Hein. Ant. I. 2. 14% 2 Id. 1. 2. 10, and App. I. I. 31. 3 Hence the third verdict of the Scotch Law, "not proven." |