it certainly did not disappear,—witness the famous case in which
Cicero made before them the oration of which he was so proud,
Pro domo sua. The action of the consuls and afterwards of the
censors as guardians of public morals, and the social and political
disqualifications and pecuniary penalties with which they visited
persons who had been guilty of perjury or gross perfidy, did not
a little to foster fidelity to engagements. Through the same agency
the exercise of a variety of rights whose abuse could not be made
matter of action—the husband's power over his wife, the father's
over his children—was controlled and kept within bounds. It
was not on light grounds, indeed, that the majesty of the
paterfamilias within the household could be called in question; it was
only when he forgot that in the exercise of serious discipline within
his family he was bound to act judicially. For he also was a judge—judex
domesticus, as he is often called, though in all cases of
gravity he was required to invoke the advice of his kinsfolk in a
family council. On him lay the duty of controlling his family;
if he failed to do so he was himself in danger of censorial
animadversion.[1]
Between citizens and foreigners with whom Rome was in alliance by a treaty (temporary or permanent) conferring reciprocal rights Reciperatio. of action, the proceedings took the form known as reciperatio or recuperatio.[2] The action was probably always raised in the forum contractus. According to the common opinion the magistrate ordinarily presiding there heard what parties had to say in plaint and defence, and then put into a simple formula the points of fact arising on them, authorizing the recuperators to whom the matter was remitted to find for plaintiff or defendant according to circumstances. The recuperators were generally three, sometimes five, sometimes perhaps still more numerous, but always in odd number; but whether the nationality of both parties required to be represented we are not told. Expedition being in most cases a matter of importance, recuperators were required to give judgment within ten days, and the number of witnesses was usually limited to ten. How execution proceeded upon it, if it were for the plaintiff, does not clearly appear; Voigt, founding on a few words in Festus, concludes it must have been by something like pignoris capio. This recuperatory procedure in time came to be resorted to in processes de libertate and even in some litigations where both parties were citizens. There are numerous instances of the latter in Cicero; and it is remarkable that in the praetorian actions ex delicto the remit was usually not to a judex but to recuperators. The explanation may be in the comparative summariness of the remedy.
III. The Jus Gentium and Jus Honorarium
(Latter half of the Republic.)
i. Influences that operated on the Law.
Growth of Commerce and Influx of Foreigners.—While it may be admitted that commerce was beginning to take root in Influx of foreigners. Rome in the 5th century, yet it was not until the 6th that it really became of importance. The campaigns in which Rome was engaged until the end of the First Punic War absorbed all its energies. But after that time the influx of strangers, and their settlement in the city for purposes of trade, became very rapid—not only of Latins and other allies, but Greeks, Carthaginians and Asiatics. To them and the regulation of their affairs the jus civile—the law peculiar to Rome and its citizens—was applicable only if they were members of allied states to which commercium and recuperatio were guaranteed by treaty. But many were not in this favoured position; and even those who were soon found the range of Roman modes of acquiring property and contracting obligations too narrow for their requirements. Hence a jus gentium was gradually developed[3] which very early in its history drove treaty covenants for recuperatio out of use; its application may for a time have been limited to transactions between non-citizens or between citizens and non-citizens, but it was eventually accepted in the dealings of citizens inter se and became part and parcel of the jus Romanorum. Gaius and Justinian speak of it as “the common law of mankind,” “the law in use among all nations”; but the language must not be taken too literally. The Roman jus gentium was not built up by the adoption of one doctrine or institution after another that was found to be generally current elsewhere. In the earliest stages of its recognition it was “an independent international private law, which, as such, regulated intercourse between peregrins or between peregrins and citizens on the basis of their common libertas”;[4] during the Republic it was purely empirical and free from the influence of scientific theory, but its extensions in the early Empire were a creation of the jurists—a combination of comparative jurisprudence and rational speculation. To say that it was de facto in observance everywhere is inaccurate; on the contrary, it was Roman law, built up by Roman jurists, though called into existence through the necessities of intercourse with and among non-Romans.
It may be a little difficult for a modern jurist to say with perfect precision what were the doctrines and institutions of the jus gentium as distinguished from the jus civile. But the distinction was quite familiar to the Romans, as witness, for example, the statement of Marcian, in reference to the ἀπόλιδες, that they enjoyed all the rights competent to a man under the former, but none of those competent to him under the latter.
Institution of the Peregrin Praetorship.—The praetorship,[5] as already mentioned, was an outcome of the Licinian laws of the The peregrin praetor. year 367 B.C. (see Praetor). Down to the end of the 5th century of the city the praetor so appointed superintended single-handed the administration of justice, alike between citizens and foreigners. But with the altered condition of things in the beginning of the 6th century, and the influx of strangers which has already been alluded to, the work seems to have been found too onerous for a single magistrate, and a second praetor was created. The date is generally assumed to have been about the year 242 B.C.; Pomponius says distinctly that the creation of the new office was rendered necessary by the increase of the peregrin population of Rome, and that the new magistrate got the name of praetor peregrinus because his principal duty was to dispense justice to this foreign element. After the submission of Sicily and Sardinia the number of the praetors was increased to four and after the conquest of Spain to six; Sulla raised the number to eight, and Caesar eventually to sixteen. But all the later creations were for special purposes; the ordinary administration of justice within the city was left with the representatives for the time of the two earliest, who came to be usually distinguished as praetor qui inter cites jus dicit (or urbanus) and praetor qui inter cites et peregrinos jus dicit (or peregrinus). It would be going too far to speak of the latter as the principal author of the jus gentium; for a large proportion of the actions for enforcing jus gentium rights were civil, not honorary—a fact which proves that the rights they were meant to protect and enforce had their origin in the jus civile, although moulded to meet new requirements by tacit consuetude and the agency of the jurists. But even in this view the peregrin praetor must have had a powerful influence in giving shape and consistency to the rising jursiprudence, by means of the formulae he adjusted for giving it practical effect.
Simplification of Procedure and Introduction of New Remedies under the Aebutian Law.—The lex Aebutia is only twice mentioned by Reforms of Aebutian law. ancient writers (once by Aulus Gellius and once by Gaius), and we know neither its precise date nor its specific provisions. And yet, to judge by its effects, it must have been one of the most important pieces of legislation in the latter half of the Republic, for Gellius speaks of it as having given the death-blow to many of the institutions of the XII. Tables, and Gaius couples it with two Julian laws of the time of Augustus as
- ↑ On Judex domesticus, see Greenidge, Legal Procedure in Cicero's Time, pp. 376 seq.
- ↑ See Sell, Die recuperatio der Römer (Brunswick, 1837); Huschke (rev. Sell), in Richter's Krit. Jahrbücher, i. (1837), 868—911; Voigt, Jus naturale, &c., ii. §§ 28-32; Karlowa, Röm. Civilprocess, pp. 218-230; Girard, Organisation judiciaire des romains (1901), i. 97 seq.
- ↑ On the Roman jus gentium, see Voigt, Das jus naturale, aequum et bonum, und jus gentium. d. Römer (4 vols., Leipzig, 1856-1875); Nettleship, in the Journal of Philology, (1885), xiii. 169 seq.; Krüger, Gesch. d. Quellen, §§ 16, 17; Mommsen, Staatsrecht, iii. 604 n.
- ↑ Voigt, Jus nat. ii. 661. He distinguishes the jus civile, jus gentium and jus naturale as the systems which applied respectively to the citizen, the freeman and the man.
- ↑ See Labatut, Histoire de la Prêture (Paris, 1868); Mommsen, Staatsrecht, ii. 176 seq.; Karlowa, Röm. Rechtsgeschichte, i. 217 seq.; Girard, Organisation judiciaire, i. 160 seq., and on the peregrin praetorship in particular, pp. 206 seq.
