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New Light on the Roman Legal System: the Appointment of Judges

Published online by Cambridge University Press:  16 January 2009

Peter Birks
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In Spain in 1981, near Seville, there was a spectacular discovery. It allows us to see back to the reign of Domitian, third and last of the Flavian emperors (AD 81–96), and to recreate a vivid picture of the little local senate of Irni meeting in the very shadow of the municipality's newly acquired constitution. Ten bronze tablets, each nearly a metre wide and rather more than half a metre high, were fixed along the wall of its council-chamber, presumably at a level at which letters about half a centimetre high could be clearly read from ground level. Each rectangular tablet carried three columns of writing, each column about fifty lines, each line an average of about ten words. At five hundred words a column and thirty columns, the Statute of Irni— the lex Irnitana—was thus a massive document. The discovery in 1981, by people using metal detectors to search for coins, was of no less than six of the ten tablets. Later excavation discovered a few more fragments. The last tablet bears at its end the date 11th October, AD 91.

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The Cambridge Law Journal , Volume 47 , Issue 1 , March 1988 , pp. 36 - 60
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Copyright © Cambridge Law Journal and Contributors 1988

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References

1 The lex itself requires notices to be displayed “so as to be clearly readable from ground level.” E.g. ch. 86, 9C.23, ch. 90, 10A.31. The references to the lex give the chapter followed by the column and line.

2 Not strictly the date of the lex but of a subscript of Domitian engraved after the last chapter, itself an addendum, but, semble, statute, addendum and rescript were all engraved together at one time. Cf. González, op. cit., note 3 below, 238. On the date and the subscript see now Mourgues, J.-L., “The So-Called Letter of Domitian at the End of the Lex Irnitana,” (1987) 77 J.R.S. 78, 83Google Scholar.

3 González, J., “The Lex Irnitana: A New Flavian Municipal Law” (1986) 76 J.R.S. 147Google Scholar.

4 F.I.R.A. (2nd ed.) vol. 1, 208. Further discussion, González, op. cit. n. 3 above, 148, 150.

5 “Municipes and municipia arc words which come easily to the lips and are frequently met, and you would not find anyone who doubted he knew exactly what he meant in using them. But the truth is different…” Aulus Gellius, Noctes Atticae, 16.13.1. But Millar shows that even Gellius' careful-looking account cannot be relied on and that a perfect differentiation of municipium from other types of town is unattainable: Millar, F., The Emperor in the Roman World (London. 1977), 398–406Google Scholar.

6 See below, text post n. 41.

7 It was necessary to be an eques and hence to have a rating of 400,000 sesterces. The requirements are discussed by Wiseman, T. P., “The Definition of Eques Romanus in the Late Republic and Early Empire” (1970) 19 Historia 67Google Scholar; Jones, A. H. M., The Criminal Courts of the Roman Republic and Principate (ed. Crook, J. A.) (Oxford, 1972), 86–90Google Scholar. And see below, text to n. 42.

8 Ch. 86, 9C.1.

9 G.4.30: “Those legis actiones were abolished by the Acbutian Act and the two Julian Acts, and it was brought about that our litigation became conducted in words drafted for the case (per concepta verba), that is by formulae.” On the relationship between the lex Irnitana and the Julian Acts, see text to n. 27.

10 A colloquium was held on this subect in Cambridge under the chairmanship of Professor J. A. Crook on 23, 24 March 1987, a note of whose proceedings is to be published in Z.P.E. See also, in addition to González, op. cit. n. 3 above, d'Ors, A., “Nueves datos de la lex Irnitana sobre la jurisdiccion municipal,” (1983) 49 S.D.H.I. 18, 40Google Scholar; Johnston, D. L., “Three Thoughts on the Lex Irnitana,” (1987), 77 J.R.S. 62, 70Google Scholar.

11 “We have increasingly been using the expression ‘civil justice’ in place of ‘civil procedure,’” SirJacob, Jack, The Fabric of English Justice, Hamlyn Lectures, 38th ser., (London, 1986), 2fGoogle Scholar.

12 Iudex and arbiter may at one stage have been separate but became indistinguishable (though in Broggini's view less and later than in prevailing doctrine). See Cicero, pro Murena, 27; Broggini, G., Iudex Arbiterve (Cologne/Graz 1957)Google Scholarpassim; Kelly, J. M., Studies in the Civil Judicature of the Roman Republic (Oxford, 1976), 117ffGoogle Scholar.

13 The text speaks consistently of “the man in charge of the administration of justice.” In the translation I have used that in full but, since the office corresponds to that of the urban praetor in Rome, in the discussion I have used the term “local praetor.” There was no praetor eo nomine in the municipium, the senior magistrates being the duumvirs and then, below them, aediles and quaestors. See, e.g., ch. 26.

14 On this terminology see Kascr, M., Das Römische Zivilprozessrecht (Munich, 1966), 141Google Scholar [hereafter RZPR]. The Act is scrupulous in its use of “appoint and confirm” (= dare et addicere) of an agreed judge and only “appoint” (= dare) of an imposed judge. Cf. ch. 86, 9C. 26–28 and ch. 88 (recuperators are always dati—though for a recuperatorum addictio see the lex Julia agraria, F.I.R.A. (2nd ed.) Vol. 1, 139, which is, however, probably only formulaic carelessness). For generic contexts covering both agreed and imposed judges, e.g. ch. 89, dare is used, which shows that there always has to be a dare. That the contrast is between dare and dare et addicere, not addicere alone, is not apparent in Kaser.

15 Which would, however, make the judge “datus,” not “addictus”: see preceding note.

16 Ch. 84, 9B.17 et seq.

17 I am grateful to Mr. Mark Chesworth (Edinburgh) for help in clarifying this passage.

18 Ch. 88, 10A.6, quoted below.

19 Below, text to n. 58.

20 But see text to nn. 57–58 for a qualification to this.

21 For simplicity I have rendered decuriones conscriptive simply as “senators” (cf. in Rome patres [et] conscripti, also the parallel “judge-arbiter” above). In some chapters there is a triplet: senatores, decuriones, conscriptive: chs. 21, 30, as to which see González, op. cit. n. 3 above, 202. More strictly one ought perhaps to speak of, say, town-councillors.

22 The phrase excluding tenure of other offices is largely illegible: González, op. cit. n. 3 above,176. Crawford, ibid. 196, makes it a consequence of selection, whereas I make it a precondition of selection, which covers the seeming omission of duumvirs from lines 6–7 of the chapter.

23 G. 1.55: “In our potestas are our children from legal marriage. This potestas is peculiar to Roman citizens. Hardly any other men have the quality of authority over their children that we have.” Under the municipal Act, municipes (pace Aulus Gellius, loc. cit. n. 5 above) are not necessarily cives Romani, since ch. 21 provides for the acquisition of citizenship for office holders and others. See González, op. cit. n. 3 above, 148, 203–4. My explanation may be wrong (cf. González, 203) but these provisions are then for emancipati and those not born ex iustis nuptiis, not very likely.

24 One can analogise to, e.g., the Indian Contracts Act 1872, esentially a codification of English law (F. Pollock).

25 Ch. 91, 10A.53–55

26 “Siremps lex ius causaque esto atque uti …”On these see Birks, , “Fictions Ancient and Modern” in The Legal Mind: Essays for Tony Honoré (Oxford, 1986), 83, 96fGoogle Scholar.

27 González, op. cit. n. 3 above, 150. Johnston, op. cit. n. 10 above, pp. 66f, agrees that the Augustan municipal law must have modernised procedure and introduced the formulary system into municipia but holds back from the conclusion that it was one of Gaius's two leges Juliae. He prefers the view that the second of the two was de iudiciis pubticis and was part of this story because even from iudicia publica the legis actio persacramentum had to be abolished.

28 Mazeaud, J., La Nomination du Judex unus sous la Proćedure Formulaire à Rome (Paris, 1933), 117, 119Google Scholar.

29 For a review of discussions of this famous text, see Kelly, J. M., Studies in the Civil Judicature of the Roman Republic (Oxford, 1976) 120ffGoogle Scholar. Without saying that the republic did use a procedure such as is found in our lex, I think this text not incompatible with the degree of coercion which the lex uses for cases in which there was no agreement. Cicero cannot mean that there could be no trials except before agreed judges.

30 This was a recurrent theme of M. Wlassak's work. See, e.g., Der Judikationsbefehl der romischen Prozesse (Vienna 1921) 247ffGoogle Scholar; Gerichtsmagistrat im gesetzlichen Spruchverfahren (Weimar, 1905–1907), 59Google Scholar. Now largely rejected, see Kaser, RZPR 220, Broggini, G., ludex Arbiterve (Cologne/Graz, 1957), 54ffGoogle Scholar.

31 La Rosa, F., “Decemviri e Centumviri” (1958) 4 Labeo 33, 40ffGoogle Scholar.

32 Pugliese, G., It Processo Civile Romano, 2. II Processo Fomulare, vol. 1 (Milan, 1963), 228–235Google Scholar.

33 G. 4.105.

34 Ch. 87, 9C.43–45.

35 Festus 249, s.v. “procum”: “Est cnim procarc poscere, ut cum in iudice conlocando ‘si alium procas’ ‘nive cum procas’, hoc est ‘poscis’”.

36 Agennius Urbicus, 74.19.26—this is the text referred to by Mazeaud n. 28 above; Pliny the Elder, Praef. 8 (both unreliable for the single judge). Our lex shows no evidence of sortition for the single judge, though nothing would prevent parties agreeing on a name to be identified by lot.

37 Cicero, De Oral. 2.70.85; In Verr. 2.3.60.37.

38 Kaser, RZPR 141–142 (also, for legis actiones, 43–44); Pugliese, op. cit. n. 30 above, 236–237.

39 Pliny the Elder, Nat. Hist. 29.8. Millar, op. cit. n. 5 above, 283; Pugliese, op. cit. n. 30 above, 222–225.

40 For discussion of guesses, see Pugliese, op. cit. n. 30 above, 224.

41 Suetonius, Caligula 16.2.

42 Jones, A. H. M., The Criminal Courts of the Roman Republic and Principate, ed. Crook, J. A. (Oxford, 1972), 89Google Scholar. Removed by Caesar, the i.a. may, says Jones, have been restored by Augustus.

43 Pliny the Elder, Nat. Hist. 33.30. The number of members in a panel had increased. The earlier figure was about 300 in each of three panels: see below, n. 45.

44 Jones, loc. cit. n. 42 above.

45 Cicero, Ad Familiares 8.8.5 says 300 senators stood to be called from the courts if the senatcmet. If it is right to think that this number should be simply multiplied by three, the Aurelian album numbered 900, but the CCC of the Cicero manuscript is often amended to a CCCC or CCCLX. Strachan-Davidson, J. L., Problems of the Roman Criminal Law (Oxford, 1912) vol. 2, 76Google Scholar.

46 Cicero, Phil. 1.20.

47 The paragraph compresses public law events of immense complexity, much controverted. See Kunkel, W., Pauly Wissowa R.E., 24.1.755, “quaestio” (1963)Google Scholar; Jones, op. cit. 66–90; Kaser, RZPR 35, 139. Of older treatments, still useful are Greenidge, A. H. J., The Legal Procedure of Cicero's Time (Oxford, 1901)Google Scholar, esp. 433ff, and J. L. Strachan-Davidson, op. cit. n. 45 above, vol. 2, 75ff.

48 Ch. 86, 9C.3, text post n. 22.

49 So both leading studies: Schmidlin, B., Die Struktur des klassischen Rekuperatorenprozess (Freiburg, 1963), 123–125Google Scholar; Bongert, Y., “Recherches sur les Recupéateurs” (1952) Varia 99, 223–225Google Scholar. Cf. Kaser, RZPR 143. Also see now D. L. Johnston, op. cit. n. 10 above, 67–70. As to procedure, as opposed to appointment, Johnston rightly draws attention to the absence from our lex of the special features supposed to distinguish recuperatoral procedure. Johnston recognises that our evidence for recuperatorial trials has hitherto been based on slight and inappropriate evidence.

50 F.I.R.A. (2nd ed.) vol. 1, 111–112.

51 Exiguous evidence of actual numbers: Cicero talks of Verres' corrupt bench as a trio. In Verr. 2.3.12.30; 2.3.12.54. Cf. Livy, 26.48.8. Five in Livy, 43.2.3.

52 Ch. 95, lines 27–28. F.I.R.A. (2nd ed.) vol. 2, 188.

53 Frier, B.W., The Rise of the Roman Jurists, Studies in Cicero's pro Caecina (Princeton 1985) 202Google Scholar. Cf. Bongert, op. cit. n. 49 above, 224.

54 F.I.R.A. (2nd ed.) vol. 2, 403. See M. Kaser, RZPR 143, n. 52 opining that the lex Julia will have introduced a general and unified procedure. Johnston, op. cit. n. 10 above, 64, 69 seems to take the view that the Edictum Venafranum was drawing on the lex Julia only for reiectio not for sortitio, and that the procedure was simply different: we ought not to look for a single model of recuperatorial procedure.

55 Above, text to n. 27.

56 So Bongert, op. cit. n. 49 above, 258ff. In particular, Cicero makes clear that recuperatores sumere is highly irregular(i.e. picking them or otherwise controlling the selection by agreement). Not above all the triple irregularity in In Verr, 2.3.59.60, exp. 60.140. “Apronio permittis ut quos velit de cohorte sumat recuperatores? Indignum est uni potius ex iniquis sumundi quam utrique ex aequis reiciundi fieri potestatem”. Here (i) sumere rather than reiecere, aggravated by (ii) uni not utrique, aggravated by (iii) ex iniquis not ex aequis. On sumere, see J. Mazeaud, op. cit. n. 28 above, 121–126.

57 Cf. In Verr. 2.3.65–70, esp. the Scandilius affair.

58 Stronger public interest is invariably relied upon to explain the use of a bench. Only Kelly goes so far as to see this carried over into powers to enforce judgment, i.e. to effect the recovery implicit in the name: op. cit. n. 29 above, 58ff. The list: (i) violence, under the interdict de vi armala, de hominibus armatis coactisve, ao. iniuriarum (but only some cases), possibly also de turba, sepulchri violati, de incendio, naufragio, rate nave expugnata; (ii) claims to liberty after Augustan reforms; (iii) claims in support of in ius vocatio.

59 It does seem that there was such a limit (100,000 sesterces) for the centumviri: Paul, Sent. 5.9.1, Kaser, RZPR 39, though the evidence is not accepted by Kelly, op. cit. n. 27 above, 16f.

60 Above, text to n. 16.

61 The property of qualification for iudices was only 5000 (9.1); cf. 400,000 for a Roman eques. and 200,000 for the Augustan “two hundred pounders”, above, text to nn. 41–42.