Roman Public Life

by A. H. J. Greenidge

The civil jurisdiction, whether of the urban or provincial praetors, still adhered to the ancient form by which the ruling in law (in jure) was the duty of the magistrate, and the judgment on the question of fact (in judicio) was the function of a single judex or, in matters requiring rapid decision, of a bench of “recoverers” (recuperatores). The rulings of the praetor urbanus had originally followed the forms of the legis actio, but in matters affecting peregrini a custom had grown up for the praetor to devise formularies of action (formulae) which bound the judex in his decision. The convenience of this procedure extended its use to almost all cases, and by a lex Aebutia of uncertain date the simpler formulary procedure almost wholly replaced the more complicated provisions of the legis actiones.[934] The formula was a conditioned acquittal or condemnation; the praetor said to the judex, “If it appears that a debt is due, an obligation has been incurred, etc., condemn the defendant in a certain amount or in a sum left to your estimate; if the condition is not apparent, acquit him” (si paret ... condemna; si non paret, absolve). The judex by his finding changed the conditioned sentence into one that was categorical and final.

In most communities such rulings as those of the praetors would be occasional expositions of a fixed code or of an uncertain body of statute and customary law. At Rome a useful practice was adopted which brought the living law, as opposed to the dead letter of her only code and to statutes which had fallen into disuse, before the eyes of all the people. The praetors announced by means of edicts, issued on their entrance on office, what their rulings would be in any given case. The edict was the “living voice of the civil law”;[935] and it is not surprising to find that by the time of Cicero it had taken the place of the “song” of the Twelve Tables in the legal education of the Roman youth.[936] The profession of the edict was interpretation of the law of Rome; but it was an interpretation that took the form of “assisting, supplementing, and even correcting the civil law.”[937] It was, therefore, not the jus civile of Rome, but the valid modifications of this expressed in what was currently known as magistrates’ law (jus honorarium). The civil law was of course presumed as the background of these documents; it found expression in many formulae which the magistrates continued to give, and the album itself probably contained a line of separation which showed where the formulae based on jus civile ended and those founded on magisterial promises began. The most typical language of the jus honorarium is one of command veiled under the form of promises; the praetor asserts “under certain given circumstances I will grant or will not grant a case” (judicium, actionem dabo ... non dabo). Less frequently the language is more imperative: “I will compel payment or an oath” (solvere aut jurare cogam); before the question of right is decided, “I forbid force to be used” (vim fieri veto).

A consideration of judge-made law, the consequence it may be of precedents drawn from already decided cases, and therefore merely the recognition of practice which had already crept into use,[938] but still expressed, as it is in this case, in a purely abstract form, suggests many questions. First, as to its validity. The edict was law that held good for a year (lex annua):[939] a limitation that would have produced a most unsatisfactory uncertainty as to its validity for future litigants and subsequent magistrates, had it not been for the facts that it was actually continuous, and that it was received, only to be slightly modified in accordance with legislative changes or with the demands of convenience, by successive wielders of civil jurisdiction. To use technical language, the edict was perpetuum et tralaticium.[940] Secondly, we must consider the limitation on the magistrate and the forces that bound him to observe his own promulgated law. At Rome the veto operated successfully for this purpose[941] even before the passing of the lex Cornelia of 67 B.C., which obliged a magistrate to adhere to the rulings of his own edict.[942] In the shaping of the edictal rules the mere fact of publicity in a community so legally gifted as that of the Romans must have sufficed to keep the magistrate within the bounds of prudence; when he was conscious of little legal training, the assistance of eminent jurisconsults must have frequently been called in.

The edict is the source of most of our modern Roman law; the titles of Justinian’s Digest are often commentaries on its rubrics excerpted from the writings of the scientific jurists, and that it should become the prototype of the world’s law was only natural when we consider the way in which it was built up. It was not only the collective work of generations of gifted men, who were fortunately not professing lawyers, but it was the outcome of an adjustment of Roman law first with that of Italy and then with that of the provinces. The beginnings of a recognition of a “law of the civilised world” (jus gentium) must be older than the institution of the praetor peregrinus, since for more than a century the praetor urbanus had been issuing edicts not merely for cives but also for peregrini; but, when a separate comprehensive edict was issued for peregrini, equity found a more systematic expression, and its reaction on the comparatively rigid forms of the urban edicts was necessarily great; but the power of this reaction was possibly even surpassed by that of the provincial edict (edictum provinciale), issued originally by the foreign praetors and then by the proconsuls and propraetors in each of Rome’s dependencies.

The connexion of the praetors with criminal jurisdiction was, apart from the rare occurrence of a special judicial commission, due to the growth of the standing courts. These quaestiones perpetuae or judicia publica were to a large extent modelled on the civil procedure by which compensation was exacted through a court of recuperatores. Hence the praetors seemed their most appropriate presidents, and the size of the college was, as we have seen,[943] increased by Sulla to meet the growing number of these courts. For criminal jurisdiction six praetors were available, whose provinces were possibly determined by the Senate and were certainly distributed amongst the designated magistrates by the use of the lot.[944] Although the general principle of distribution made each praetor preside over the jurisdiction ordained by a single law which created a quaestio, yet the spheres of jurisdiction were by no means fixed. Groups of quaestiones or of their branches[945] might be rearranged every year, and it may not even have been necessary for a single praetor to maintain a particular sphere of jurisdiction throughout the whole tenure of his office. The general administrative functions of the office might interfere with jurisdiction, and a readjustment of the original distribution of provinciae, probably with the consent of the Senate, seems to have been sometimes necessary.[946]

The Aediles

The junction of the plebeian and curule aedileships into a single office is testified by their being spoken of together where their duties are mentioned or prescribed by law,[947] and the fusion was so complete that it is sometimes impossible to discover whether a historical reference applies to the plebeian or to the patrician magistracy. But in their respective qualifications for office, forms of election and insignia, the separation was still complete. The plebeian aediles must still be plebeians, while the curule aediles belonged in alternate years to either order;[948] the former were elected by the Plebs, the latter by the comitia tributa of the people; the former sat on the modest bench of the plebeian officials and had no distinctive dress, the latter sat on the curule chair and wore the praetexta;[949] the anomaly remained that the one office was not a magistracy at all, the other a magistracy proper which gave its holder a claim to a seat in the Senate. The one peculiar privilege of the plebeian aediles—the sacrosanctitas which they shared with the tribunes—vanished as a consequence of their employment as officials of the state.[950]

The general position now assumed by the aediles was that of assistants to the consuls in the administration of the city; in the fulfilment of which task they had certain special spheres of competence assigned them.[951]

(1) Their care of the state archives—originally possessed to a limited extent by the plebeian aediles[952]—was still continued, and they divided in some unknown way with the quaestors the custody of senatus consulta in the aerarium Saturni.[953]

(2) The cura urbis involved a series of duties connected with the public sites, buildings, and functions of the city. The aediles had to see to the paving of the streets, to insist on individuals keeping the pathways before their own houses in repair, and to lease out at the public cost the renewal of such thoroughfares as were connected with public buildings.[954] They saw that all public places, such as roads and squares, were kept clean and clear of obstacles, partly from a sanitary motive, partly for the purpose of preventing the encroachments of private buildings on public sites.[955] They controlled the water-supply and prohibited private persons, with the connivance of the water-inspectors (aquarii), taking more than their fair share from the public conduits.[956] Their control of public buildings and temples was limited to inspection and supervision, for the repair of such buildings, at least when undertaken on a large scale, was leased out by the censors. Closely connected with this aedium sacrarum procuratio[957] was their control of the cultus of the community, which obliged them to see that no foreign innovations crept into the primitive form of Roman worship.[958] Their police duties are shown by the edicts which they issued for keeping order at the public games,[959] and by their control of private places of utility or amusement to which the public were admitted, such as baths, taverns, and the like.[960]