II. Senate. Comitia Curiata the number of the Senate was CHAP. 300, and it consisted only of the patrician order. When Servius Tullius organised the Comitia Cen- Constitu turiata, and established the census, the Senate was tion of the then opened to the plebeians, for a certain amount of property was necessary to acquire and to preserve the equestrian rank; so that whilst a plebeian might obtain, a patrician might lose the rank'. The office of Censor was established in the year of the city 311, when it appears that all the Curule magistrates, and also the Quæstors, had, by virtue of their office, a seat in the Senate; and after the institution of the Censorship, the Censors had the right to elect new members into the Senate from among the ex-magistrates, and to exclude such as they deemed unworthy2. The Senate, therefore, gradually became an assembly representing the people, for the Censors were confined in their nomination to such persons as had received the confidence of the people by their previous election to a magistracy in the Comitia. During the Republic, the Senate was a council of state with no legislative power. They had the superintendence of the treasury and the coinage; the management of embassies; the administration of the provinces subject to Rome; and the appointment of days of public prayer and thanksgiving. When Augustus became emperor the Comitia were discontinued, and upon the accession of his successor Tiberius, A.D. 14, the right of electing magistrates, which the people had so long and jealously kept in their own power, was transferred to the Senate. From this period the Senatusconsulta became leges, and are found in the Corpus Juris with their distinctive titles, such as the Senatusconsultum Trebellianum, Pegasianum, Macedonianum, &c. But as the Senate under the Republic had nothing more than a veto upon an absurd or obnoxious law, so now it was 2 Cicero de Leg. III. 12. 1 Gravina, 3. 3 Hein. Ant. I. 2. 45. 4 Haub. II. 50. Mode of voting in the Senate. BOOK nothing more than the echo of the emperor's will. I. He made his relatio, whereupon the Senate voted pro forma. "Eo prolapsa erat patrum adulatio, ut orationes Principum non nisi acclamationibus exciperent'." When the Senate met for business the consul presided. He made the relatio, which was a statement of the subject, ending with the usual form Referrimus ad vos P. C.; then followed the debate, after which the votes were taken, sometimes separately, sometimes per discessionem, and the house divided. Pedibus ire in sententiam was to give a silent vote. If the proposed measure were carried, it was reduced to writing. Finally, the Confirmatio was essential to give it authority. This was by the tribune affixing his official signature T., without which it did not become a Senatusconsultum, but was merely Senatus auctoritas, the opinion of the Senate. Senatus auctoritas. gistra Edictam a- Edicta magistratuum are edicts of the Prætors and Ediles, which together made up the system called Jus Honorarium. tuum. Prætor In the year U.c. 3872 one of the consuls was for the first time elected from the plebeians. Up to this period it would appear that the consuls had discharged the office of administering justice. It is said the patricians made this concession to the plebeians only on condition that a new magistrate should be created to discharge the duties of the consuls in their absence3. This was the Prætor Urbanus, first elected in the year above mentioned, and to whom was especially assigned the province of administering justice. It may be doubted whether this alone was the real cause that called the Prætor into existence. It seems to be better explained from the fact, that the administration of justice was no longer the simple process which marked an infant state, but that it was becoming so complex and onerous that it required some one whose rity. II. habits were fitted for, and whose time should be CHAP. dedicated to, the discharge of it. The office of Prætor was annual. He was elected in the Comitia. After his election, and previous to entering upon the duties of his office, he published his Album, his rules of court, whereby he set forth Prætor's those cases of which he would take cognizance, Album. together with a declaration in some instances of the amount of redress he would give the suitor who proved his case, such as in simplum dabo, in duplum dabo, &c. The power of the Prætor in His power the administration of justice was expressed in and authothese three words: Do, Dico, Addico. Dabat, he granted petitions to sue and to plead. Dicebat viam in vindiciis, he determined what form of action the plaintiff should adopt. Addicebat, he gave judgment. For a long period each Prætor, at the commencement of his office, was at liberty to expunge from the Album any rules he might deem inexpedient, and to add such as he considered advisable. Those which he adopted from his predecessor were called tralatitia, his own nova edicta. It is evident that many of the leading rules of the Album would soon become so firmly established, that no Prætor could venture to tamper with them without deranging the recognised procedure of the court; still the ever-advancing wealth and interests of the Republic would cause the multiplication of new rules, and the occasional modification of old ones and thus the Album gradually swelled to a large volume. In the year U.c. 687 the Lex Cornelia restrained Lex Corthe Prætor from making any alteration in his rules nelia. of court during his year of office'. Previous to this time the Prætor occasionally issued his Edic- Edictum tum repentinum, professedly to meet some unex- repentipected case which came before him, which savoured very much of an ex post facto law, and which opened the door to great corruption. In the reign of 1 Hein. Ant. I. 2. 22. пит. BOOK Hadrian, A.D. 131, the Edicta of the Prætors were, I. by his command, collected and published by Sal vius Julianus in one volume. This contained the continuous series of Edicta then extant, and was, Edictum therefore, called the Edictum perpetuum, or Jus perpetuum. Honorarium, being chiefly derived from the Album of the Prætor Honoratus, and from this time became part of the written law. Many of the most distinguished lawyers, and among them Pomponius, Gaius, Paulus and Ulpian, wrote Jus Hono- comments on the Edictum perpetuum. The Jus Honorarium thus became the viva vox juris civilis1; and it is described by Pomponius as " quod Prætores introduxerunt adjuvandi, vel supplendi, vel corrigendi juris civilis gratia, propter utilitatem publicam"." rarium. Prætor peregri nus. Responsa Prudentum. In the year U.c. 4883 a second Prætor, called the Prætor peregrinus, was created, whose duty it was to hear and determine all matters where a peregrinus was one of the suitors. At the latter end of the Republic, and in the reign of Augustus, there were sixteen Prætors to whom various departments were assigned, such as the Prætor tutelaris, the Prætor fiscalis, &c. Responsa Prudentum are opinions of those to whom it was permitted to answer authoritatively on matters of law. These, collected together, were called emphatically Jus Civile. The Jurisconsulti had their origin in the early period of the Roman Commonwealth, when the Jus Patronatus was established. The plebs were the clientes of the patricians. Any plebeian might choose whom he pleased as his patron, who was obliged to advise, and to defend him in courts of justice; whilst, on the other hand, the client was expected to perform a variety of services for his patron. These on both sides were gratuitous". This state of things was only adapted to the in 1 D. I. I. 8. 4 D. I. 2. 2. 5. 2 D. I. I. 7. 3 Haub. II. 34. II. fancy of the Republic, for as the Jus Civile became CHAP. gradually developed, it is obvious that the ordinary patronus would, in many instances, be unfit to deal with his client's case: the more astute of the patroni were, therefore, sought out by the clients, and thus, from the simple Patronus, arose gradually the Jurisperitus. This accounts for all the early lawyers being patricians. The house of the Roman lawyer was the common resort of every one who was involved in any legal difficulty'. The jurisperitus was consulted as he walked about the Forum; and he had what we should call an office, or chambers, where he sat. The client on entering said, Licet consulere?. If he were disengaged he answered, Consule. The client then stated his case as concisely as possible, adding, Quæro an existumes? The lawyer replied, Secundum ea quæ præponuntur, existumo, puto, sentio, &c., and, gave his opinion very briefly, with no reason for his answer. These responsa being collected, and arranged under the different heads of which they treated, when recognised by the usus Fori, became one of the most important parts of the Roman law, and were entitled the Responsa Prudentum, comprising, at the close of the Republic, one of the chief heads of the unwritten law. Pruden tum. When Augustus became emperor he gave au- Auctoritas thority to certain lawyers in particular (six in number) respondere de jure, and decreed that their responsa should be regarded as law, hence called Auctoritas Prudentum'. This decree does not appear to have interfered with the responsa of the jurisprudentes in general, who at that period must have been very numerous. Princi Placita Principum are constitutions of the Ro- Placita man emperors. These were, 1. General. 2. Special. рит. The general were Epistolæ, Decreta, Edicta. The special were called Privilegia. 1 Cicero de Orat. I. 44. 3 Haub. II. 47. 2 Id. de Leg. I. 3. 4 Gai. I. 7. |