Corpus iurisprudentiae Romanae

1 Gaius, On the Law of the Twelve Tables, Book I. Being about to give an interpretation of ancient laws, I have thought it necessary, in the first place, to go back to the origin of the City, not because I wish to make extensive commentaries, but for the reason that I notice that that is perfect in all things which is finished in all its parts; and indeed the most important part of anything is the beginning. Then, where causes are argued in the forum, if I should say that it is abominable to state the matter to the judge without making any previous remarks, it would be much more improper for those making an explanation to neglect the beginning and avoid reference to the origin of the case; proceeding with unwashed hands, so to speak, without delay to discuss the question which is to be decided. For, unless I am mistaken, these previous explanations render persons more inclined to examine the question at issue, and when we have approached it, make the comprehension of the subject more clear.

2 Pomponius, Enchiridion. It, therefore, seems necessary to explain the origin of the law itself, as well as its subsequent development. 1In fact, at the beginning of our State the people undertook to act at first without any certain statutes or positive law, and all government was conducted by the authority of the Kings. 2Afterwards, the State being, to some extent enlarged, it is said that Romulus himself divided the people into thirty parts which he called curiæ; because he then exercised care over the Republic in accordance with the decisions of the said parts. Thus he proposed to the people certain laws relating to their assemblies, and subsequent kings also made similar proposals, all of which having been committed to writing, are to be found in the book of Sextus Papirius, who lived in the time of Superbus, the son of Demaratus of Corinth, and who was one of the principal men. This book, as We have stated, is called the Papirian Civil Law, not because Papirius added anything of his own to it, but because he compiled in a single treatise laws which had been passed without observing any order. 3The kings having afterwards been expelled by a Tribunitian enactment, all these laws became obsolete, and the Roman people again began to be governed by uncertain laws and customs, rather than by statutes regularly passed, and this state of affairs thus endured for almost twenty years. 4Afterwards, in order that this condition might not be continued, it was decided that ten men should be appointed by public authority, through whose agency laws should be applied for to the States of Greece, and that the Commonwealth should be founded upon statutory enactments. Those thus obtained were inscribed upon ivory tablets, and placed before the Rostra, so that the laws might be the more clearly understood; and supreme authority in the State was conferred upon said officials for that year, so that they might amend the laws, if it was necessary, and interpret them; and that there should be no appeal from their decisions, as there was from those of other magistrates. They, themselves, observed that something was lacking in these original laws, and therefore during the following year they added two other tablets to them, and for this reason they were called the Laws of the Twelve Tables; and some writers have asserted that a certain Hermodorus, an Ephesian exile in Italy, was responsible for the enactment of the said laws. 5These statutes having been passed, it follows as a natural consequence that discussion in the forum became requisite; as a proper interpretation demands the authority of persons learned in the law. This discussion and this law composed by jurists and which was unwritten, was not designated by any particular name, as were the other parts of the law by their specific appellations, but they are called by the common designation the Civil Law. 6Afterwards, at about the same time, certain actions based upon these laws were established, by means of which men might argue their cases; and in order to prevent the people from bringing these actions in any way they might desire, the magistrate required that this should be done in a certain and solemn manner; and this part of the law is called that of statutory actions, that is to say, legal actions. And thus about the same time these three divisions of the law originated; that is, the Laws of the Twelve Tables, and from these arose the Civil Law, and from this source likewise were derived the legal actions. But the knowledge of interpreting all these, and the actions themselves, were assigned to the College of Pontiffs; and it was established which one of them should have jurisdiction over private actions during each year. The people made use of this custom for almost a century. 7Afterwards, Appius Claudius arranged these actions and reduced them to a certain form, and Gnæus Flavius, his secretary, the son of a freedman, gave the book to the people after it had been surreptitiously obtained; and so acceptable was that gift that he was made Tribune of the people, Senator, and Curule Ædile. This work which contains the method of bringing actions is called the Flavian Civil Law; just as the former one is called the Papirian Civil Law; for Gnæus Flavius did not add anything of his own to the book. As the commonwealth became enlarged, for the reason that certain methods of procedure were lacking, Sextus Ælius not long afterwards framed other forms of action, and gave the book to the people which is called the Ælian Law. 8Then, there being in use in the State the Law of the Twelve Tables, the Civil Law, and that of Statutory Actions, the result was that the plebs disagreed with the fathers, and seceded, and enacted laws for itself, which laws are called Plebiscites. Afterwards, when the plebs was recalled because much discord arose on account of these plebiscites, it was established by the Lex Hortensia that they should be observed as laws, and in consequence of this the distinction between the plebiscites and the other laws existed in the manner of their establishment, but their force and effect were the same. 9Then, because it was difficult for the plebs any longer to assemble, and much more so for the entire body of the people to be collected in such a crowd of persons; necessity caused the government of the commonwealth to be committed to the Senate. Thus the Senate began to take an active part in legislation, and whatever it decreed was observed, and this law was called a Senatus-Consultum. 10At the same time there was also magistrates who dispensed justice, and in order that the citizens might know what law was to be applied in any matter and defend themselves accordingly, they proposed edicts, which Edicts of the Prætors constituted the honorary law. It is styled honorary, because it originated from the office of the Prætor. 11Finally as it became necessary for the commonwealth that the public welfare should be attended to by one person, for the mode of enacting laws seemed to have progressed little by little as occasion demanded; and since the Senate could not properly direct the affairs of all the provinces, a supreme ruler was selected, and he was given authority, so that whatever he decided should be considered valid. 12Thus, in Our commonwealth everything depends either upon statute, that is upon legal enactment; or there exists a peculiar Civil Law which is founded without writing upon the sole interpretation of jurists; or there are the statutory actions which contain the method of procedure; or there is a plebiscite passed without the authority of the fathers; or there is the edict of the magistrate, whence is derived the honorary law; or there is the Senatus-Consultum, which is based upon the action of the Senate alone, without any statute; or there is the Imperial Constitution, that is, that whatever the Emperor himself formulates shall be observed as the law. 13After the origin of the law and the procedure have been ascertained, it follows that We should be informed concerning the titles of magistrates and their origin; because, as We have stated, it is through those who preside over the administration of justice that matters are rendered effective; for how much law could there be in a State unless there are persons who can administer it? Next in order after this, We shall speak of the succession of authorities; for law cannot exist unless there are individuals learned in the same, by means of whom it can daily be improved. 14As to what concerns magistrates, there is no question but that in the beginning of the commonwealth all power was vested in the kings. 15There existed at the same time a Tribunus Celerum who commanded the knights, and held the second rank after the king; to which body Junius Brutus, who was responsible for the expulsion of the kings, belonged. 16After the kings were expelled two consuls were appointed, and it was established by law that they should be clothed with supreme authority. They were so called from the fact that they specially “consulted” the interests of the republic; but to prevent them from claiming for themselves royal power in all things, it was provided by enactment that an appeal might be taken from their decisions; and that they should not be able, without the order of the people, to punish a Roman citizen with death, and the only thing left to them was the exertion of force and the power of public imprisonment. 17Subsequently, when the census occupied much time, and the consuls were not able to discharge this duty, censors were appointed. 18Then, the people having increased in numbers, and frequent wars against neighboring tribes having taken place, it sometimes became necessary for a magistrate of superior authority to be appointed, and hence dictators arose, from whose decisions no right of appeal existed; and who were invested with the power of capital punishment. As this magistrate had supreme authority, he was not allowed to retain it for a longer period than six months. 19To these dictators Masters of Cavalry were added, who occupied the same place as the Tribuni Celerum under the King, whose duties were almost the same as those discharged at present by the Prætorian Prefect; and they were also considered lawful magistrates. 20At the time when the plebs had seceded from the fathers, about seventeen years after the expulsion of the Kings, they created tribunes for themselves on the Sacred Mount, who were Tribunes of the People; and they were called “tribunes” for the reason that formerly the people were divided into three parts, and one tribune was taken from each one, or because they were created by the votes of the tribes. 21Again, that there might be officials who would have charge of the temples in which the people deposited all their statutes, two persons were selected from the plebs who were styled Ædiles. 22Next, when the Public Treasury began to increase in importance, Quæstors were appointed to have charge of the same, and to take care of the funds, and they were so called because they were created for the purpose of examining the accounts and preserving the money. 23And for the reason (as We have already stated), that the consuls were not permitted by law to inflict capital punishment, without the order of the Roman people; Quæstors were also appointed by the people to preside in capital cases, and these were designated Quæstores parricidii, of whom mention is made in the Laws of the Twelve Tables. 24And as it was also determined that laws should be enacted, it was proposed to the people that all magistrates should resign in order that Decemviri might be appointed for one year; but as the latter prolonged their term of office, and acted in an unjust manner, and were not willing afterwards to elect the magistrates who were to succeed them, so that they and their faction might retain the commonwealth constantly under their control; they conducted the public affairs in such an arbitrary and violent manner that the army withdrew from the commonwealth. It is said that the cause of the succession was one Virginius, who when he learned that Appius Claudius, in violation of the provision which he himself had transferred from the ancient law of the Twelve Tables, had refused to give him control of his own daughter, but gave it to a man who, instigated by him, claimed her as a slave, as he, influenced by love for the girl, had confounded right and wrong; and the said Virginius being indignant that the observance of a law of great antiquity had been violated with reference to the person of his daughter, (just as Brutus who, as the first Consul of Rome had granted temporary freedom to Vindex, a slave of the Vitelli, who had revealed by his testimony a treasonable conspiracy) and thinking the chastity of his daughter should be preferred to her life, having seized a knife from the shop of a butcher, killed her, in order that, by the death of the girl, he might protect her from the disgrace of violation; and immediately after the murder, when still wet with the blood of his daughter, he fled to his fellow soldiers, all of whom deserting their leaders at Algidiun (where the legions were at the time for the purpose of waging war) transferred their standards to the Aventine Hill; and soon all the people of the city at once betook themselves to the same place, and by popular consent some of the Decemviri were put to death in prison, and the commonwealth resumed its former condition. 25Then, some years after the Twelve Tables had been enacted, a controversy arose between the plebs and the fathers, the former wishing to create consuls from their own body and the fathers refusing to consent to this; it was resolved that military tribunes should be created with consular power, partly from the plebs, and partly from the fathers. The number of these was different at various times, sometimes there were twenty of them, sometimes more than that, and sometimes less. 26Subsequently it was decided that consuls could be taken from the plebs, and they began to be appointed from both bodies; but in order that the fathers might have more power, it was determined that two officials should be appointed from the number of the latter, and hence the Curule Ædiles originated. 27And as the consuls were called away by distant wars, and there was no one who could dispense justice in the State, it happened that a Prætor also was created, who was styled “Urbanus”, because he dispensed justice in the city. 28Then, after some years, this Prætor, not being found sufficient because of the great crowd of foreigners who came into the city, another Prætor called “Peregrinus” was appointed, for the reason that he usually dispensed justice among foreigners. 29Then, as a magistrate was necessary to preside over public sales, Decemviri were appointed for deciding cases. 30At the same time Quatuorviri also were appointed who had supervision of the highways, and Triumviri, who had control of the mint, who melted bronze, silver, and gold, and capital Triumviri, who had charge of the prisons, so that when it was necessary to inflict punishment it might be done by their agency. 31And, for the reason that it was inconvenient for magistrates to appear in public during the evening, Quinqueviri were appointed on each side of the Tiber, who could discharge the duties of magistrates. 32After Sardinia had been taken, and then Sicily and Spain, and subsequently the Narbonnese province, as many Prætors were created as there were provinces which had come under the Roman rule; part of whom had jurisdiction over matters in cities, and part over provincial affairs. Next Cornelias Sylla established public investigations, as for instance, those concerning forgery, parricide, and assassins, and added four Prætors. Then Gaius Julius Cæsar appointed two Prætors and two ædiles, who superintended the distribution of grain, and were called Cereales, from Ceres. In this way twelve Prætors and six ædiles were created. Then the Divine Augustus appointed sixteen Prætors, and afterwards the Divine Claudius added two more who administered justice in matters of trust; one of whom the Divine Titius dispensed with; and the Divine Nerva added another who expounded the law in questions arising between the Treasury and private individuals. Thus eighteen Prætors administered justice in the Commonwealth. 33All these regulations are observed as long as the magistrates are at home, but whenever they travel abroad one is left who expounds the law, and he is styled the Prefect of the City. This Prefect was created in former times; he was afterwards appointed on account of the Latin festivals, and this is done every year; but the Prefect of Subsistence and that of the Night Watch are not magistrates, but are extraordinary officials appointed for the public welfare; and also those whom we have mentioned as being appointed for this side of the Tiber, were afterwards created ædiles by a decree of the Senate. 34Therefore, from all these things we learn ten Tribunes of the People, two Consuls, eighteen Prætors, and six ædiles dispensed justice in the city. 35Many distinguished men have been professors of the science of the Civil Law; and of these at present We will mention those who enjoyed the highest esteem among the Roman people; to the end that it may appear from whom these laws have been derived and handed down, and what was their reputation. And, indeed, among all who acquired this knowledge, it is said that no one publicly professed it before Tiberius Coruncanius; others, however, before him attempted to keep the Civil Law secret, and only to give advice to those who consulted them, rather than to instruct such as desired to learn. 36Publius Papirius, who compiled the royal laws in one treatise, was in the first rank of those versed in the Royal Statutes; then came Appius Claudius, one of the Decemviri who took the most prominent part in the compilation of the Twelve Tables. After him, another Appius Claudius was the possessor of great legal learning, and he was called “Hundred Handed”, for he laid out the Appian Way, constructed the Claudian Aqueduct, and gave it as his opinion that Pyrrhus should not be received into the city; it is also said that he drew up forms of action in cases of wrongful occupation of property, which book no longer exists. The same Appius Claudius invented the letter R, from which it resulted that the Valesii became Valerii, and the Fusii became Furii. 37After these came Sempronius, a man of preeminent learning, whom the Roman people called sofoV, that is to say, “wise”, nor was anyone either before or after him designated by this title. Next in order was Gaius Scipio Nasica, who was styled by the Senate “The Best”, to whom a house on the Via Sacra was given by the State where he might the more easily be consulted. Then came Quintus Mucius, who was sent as envoy to the Carthaginians, where when two dice were placed before him, one for peace and the other for war, and it was left to his judgment to select whichever he chose and take it to Rome; he took both, and said that the Carthaginians must ask for whichever one they preferred to have. 38After these came Tiberius Coruncanius, who, as I have already stated, was the first of the professors of the law, but no work of his is extant; his opinions, however, were very numerous and remarkable. Next in order Sextus Ælius, his brother Publius Ælius, and Publius Atilius had the greatest success in imparting instruction; so that the two Ælii also became consuls and Atilius was the first person invested by the people with the appellation of “The Learned”. Ennius praises also Sextus Ælius and a book of his entitled Tripertita which still exists and contains, as it were, the cradle of the laws. It is called Tripertita because it includes the Law of the Twelve Tables, to which it added the interpretation of the same, as well as the method of legal procedure. Three other books are also attributed to him of which, however, certain writers deny him the authorship. Cato, to a certain degree, followed these men. Subsequently came Marcus Cato, the head of the Porcian family whose books are extant; but a great many were written by his son, from which still others derive their origin. 39After these came Publius Mucius, Brutus, and Manilius, who founded the Civil Law. Among them Publius Mucius left ten works, Brutus seven, and Manilius three; and written volumes of Manilius are also extant. The first two were of consular rank, Brutus was Prætor, and Publius Mucius had been Pontifex Maximus. 40After these came Publius Rutilius Rufus, who was Consul at Rome, and Proconsul of Asia, Paulus Virginius, and Quintus Tubero, the Stoic, a pupil of Pansa, who was himself Consul. Sextus Pompeius, the paternal uncle of Gnæus Pompeius, lived at the same time, and Cælius Antipater, who wrote historical works, but paid more attention to eloquence than to the science of the law. There was also Lucius Crassus, the brother of Publius Mucius, who was called Mucianus, and whom Cicero declared to be the best debater of all the jurists. 41After these came Quintus Mucius, the son of Publius, the Pontifex Maximus, who first codified the Civil Law by drawing it up under different heads in eighteen books. 42The pupils of Mucius were very numerous, but those of most eminent authority were Aquilius Gallus, Balbus Lucilius, Sextus, Papirius, and Gaius Juventius; of whom Servius declared that Gallus had the greatest authority among the people. All of them, however, are mentioned by Servius Sulpicius, but none of their writings are of such a kind as to be generally sought after; and, in fact, their works are not usually found in men’s hands at all, though Servius made use of them in his own books, and on this account it is that the memory of them still survives. 43Servius, while he held the first place in arguing cases, or, at all events, held it after Marcus Tullius, is said to have applied to Quintus Mucius for advice concerning a matter in which a friend of his was interested, and as he had a very imperfect comprehension of the answer given him concerning the law, questioned Quintus a second time, and when the latter replied and he still did not understand, he was rebuked by Quintus Mucius, who told him that it was a disgrace for him, a patrician, a noble, and an advocate, to be ignorant of the law which was his profession. Servius was so affected by this reproach that he devoted his attention to the Civil Law, and was especially instructed by those of whom We have spoken; having been taught by Balbus Lucilius, and also having received much information from Gallus Aquilius, who resided at Cercina; and for this reason many of his books which are still extant were written there. When Servius died while absent on an embassy, the Roman people erected a statue to him in front of the Rostra, and it stands there to-day before the Rostra of Augustus. Many volumes of his remain, for he left nearly one hundred and eighty treatises. 44After him came many others, among whom nearly all of the following wrote books, namely: Alfenus Varus, Gaius, Aulus Ofilius, Titus Cæsius, Aufidius Tucca, Aufidius Namusa, Flavius Priscus, Gaius Ateius, Pacuvius, Labeo, Antistius, the father of Labeo Antistius, Cinna, and Publicus Gellius. Of ten eight wrote treatises, all of which were digested by Aufidius Namusa in a hundred and forty books. Of these pupils Alfenus Varus and Aulus Ofilius possessed the greatest authority; Varus became Consul, but Ofilius remained in the Equestrian rank; the latter was very intimate with the Emperor, and left many works on the Civil Law, which laid the foundation for the greater part of the same, for he first wrote on the laws of the five per cent tax, and on jurisdiction. He was also the first one to carefully systematize the Edict of the Prætor, although before him Servius had left two extremely short books relating to the Edict, which were addressed to Brutus. 45Trebatius, a pupil of Cornelius Maximus, also lived at the same time; and Aulus Cascelius, a pupil of Quintus Mucius Volusius, as well, and, indeed, in honor of his teacher he left his property to Publius Mucius, the grandson of the latter. He was also of quæstorian rank but he declined promotion, although Augustus offered him the consulship. Among these, Trebatius is said to have been better informed than Cascellius, but Cascellius is claimed to have been more eloquent than Trebatius, but Ofilius was more learned than either. No works of Cascellius are extant, except one of “Good Sayings”, there are, however, several of Trebatius, but they are very little used. 46After this came Tubero, who studied under Ofilius. He was a patrician and abandoned arguing cases for the study of the Civil Law, principally because he had prosecuted Quintus Ligarius before Gaius Cæsar, and failed. This is the same Quintus Ligarius that, while he was holding the shore of Africa, refused to allow Tubero, who was ill, to land and obtain water, for which reason he accused him, and Cicero defended him. The oration of the latter, a very elegant one, which is entitled “For Quintus Ligarius”, is still extant. Tubero was considered to be most learned in both public and private law, and left a great many treatises on both subjects. He had the affectation of writing in ancient language and therefore his works are not popular. 47After him the following were of the highest authority, namely, Ateius Capito, who followed Ofilius, and Antistius Labeo, who studied under all of them, he was also taught by Trebatius. Of these Ateius was Consul, but Labeo declined to accept the office which would have made him temporary consul when it was offered to him by Augustus; but he gave great attention to legal studies, and divided up the entire year so that he could be at Rome for six months with his pupils, and might be absent for the remaining six months, and employ his time in writing books. By doing this he left four hundred volumes, of which a great many are still in use. These two founded, as it were, two different schools, for Ateius Capito retained the principles which had been taught him; but Labeo, from the nature of his genius and his reliance upon his own learning, and who had given attention to other branches of knowledge, made many innovations. 48Massurius Sabinus succeeded Ateius Capito, and Nerva, Labeo; and these still further increased the aforesaid distinction between the schools. Nerva was also very intimate with the Emperor. Massurius Sabinus was of Equestrian rank, and was the first who wrote with public authority, and after this privilege was conceded, it was also granted to him by Tiberius Cæsar. 49And We may remark, in passing, that prior to the reign of Augustus, the right of giving opinions publicly was not granted by the chiefs of the State, but anyone who had confidence in his own attainments gave answers to those who consulted him, but they did not impress their seals upon the latter, and very frequently wrote to the judges, or to those who had consulted them, to bear witness to their opinions. The Divine Augustus, in order to enable the authority of the law to have greater weight, first decreed that jurists might answer in his name; and from that time, this began to be claimed as a privilege. The result was that the distinguished Emperor Hadrian, when certain men of prætorian rank asked of him leave to deliver opinions, told them in a rescript, “that this permission was not to be asked, but was granted as a right; and therefore if anyone had confidence in his knowledge, he should be delighted, and he might prepare himself for giving opinions to the people.” 50Therefore, permission was given to Sabinus by Tiberius Cæsar to give opinions to the people. He was already advanced in age when he attained to the Equestrian rank, and indeed was fifty years old, nor was he a man of great pecuniary resources, but was, for the most part, supported by his pupils. 51He was succeeded by Gaius Cassius Longinus, the son of a daughter of Tubero, who was the granddaughter of Servius Sulpicius; and for this reason he alluded to Servius Sulpicius as his grandfather. He was Consul with Quartinus during the reign of Tiberius, and enjoyed great authority in the State until the Emperor banished him, and having been exiled to Sardinia by the latter, he was recalled by Vespasian to Rome, where he died. 52Proculus succeeded Nerva, and there was, at the same time, another Nerva, a son; there was also another Longinus, belonging to the Equestrian order, who afterwards attained to the Prætorship. The authority of Proculus was, however, greater. The adherents of the two schools were designated respectively, Cassiani and Proculeiani, having derived their origin from Capito and Labeo. 53Cælius Sabinus, who had greater influence in the time of Vespasian, succeeded Cassius; Pegasus succeeded Proculus, who was Prefect of the City during the reign of Vespasian; Priscus Javolenus succeeded Cælius Sabinus; Celsus succeeded Pegasus; the son Celsus and Priscus Neratius, both of whom were consuls, succeeded his father; (Celsus, indeed, was Consul a second time), Aburnus Valens succeeded Javolenus Priscus along with Tuscinaus, as well as Salvius Julianus.