Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/703

JUS CIVILE.] ROMAN LAW 679 iitia comitia of the tribes. The first, if not organized by l>e Servius Tullius, at all events grew out of his distribution ,uries. Q ^ e p p u i ace f n to classes and centuries according to the value of their freeholds as appearing on the census-list, i As just the national army assembled for a peaceful purpose (exercitus civilis), it could be convened and presided over originally only by a magistrate possessing the military imperium, i.e., a consul; but, after the creation of the censorship in 311 and the praetorship in 387, the holders of those offices were entitled to convoke it, the former for its assent to arrangements for the census, and the latter for state trials. It was the centuries that passed the XII. Tables ; but for the most part their legislation was upon questions affecting public and constitutional rather than private interests. The procedure in the centuriate comitia was somewhat cumbrous. There was publication of the proposed law (promulgatio rogationis) a fortnight before the day appointed, sometimes one or more meetings (condones) being held in the interval for its consideration and discussion. When the day arrived, the auspicia were taken by the presiding magistrate, assisted by an augur ; if favourable, the citizens were summoned anew by blast of trumpet, and on their assembling, which originally they did under arms, prayer and sacrifice were offered by president, pontiffs, and augurs. A final concio might then be held if thought necessary ; and, after it was over, on the order to " proceed to the comitia," the citizens marched to the Campus Martius (the formal assembly being incompetent within the city). There the rogatio was read and, if no sign from heaven indicated the dissent of the gods and warned the assembly to disperse, was at once put to the vote "Is it your pleasure, Quirites, to hold this as law 1 ?" The vote was taken by centuries, those of the knights and the freeholders of full valuation voting first; if they were unanimous it went no further, for these formed more than a majority of the whole comitia. The resolution, if adopted, was populi jussum, but not yet law. It had still to run the gauntlet of the "fathers," whether the senate or only its patrician members is disputed ; it was in their power to refuse to authorize it (auctores fieri), usually putting their dissent on the ground that the gods willed it not ; but if they ratified it, then it became a lex, ordinarily getting the name of the magistrate by whom it had been proposed. The power of veto, however, was considerably qualified by a Publilian law of the year 415, which enacted that in future the " fathers " should grant (or refuse) their auctoritas before the vote was taken. The points of difference between the enactments of the l concilium plebis and the later comitia tributa are indicated by Mommsen in a paper in his Researches. 1 (1) The utia comitia was an assembly of the whole body of the people, lie voting according to tribes instead of centuries ; the ' es - concilium was an assembly of plebeians only, also voting tributim. (2) The comitia was convened and presided over by a patrician magistrate, not necessarily, however, with military imperium, and therefore very frequently by the praetor ; whereas the concilium could be convened and presided over only by a plebeian official, either a tribune or an sedile. (3) In the comitia the auspicia had to be taken before the proceedings commenced ; in the concilium the will of the gods was not demanded, although listened to if communicated in a thunder-storm or the like. (4) The resolution of the comitia required to be confirmed by the " fathers " ; while that of the concilium did not. (5) An enactment of the comitia was a lex, and bound the whole people ; but before the Hortensian law an enact- ment by the concilium plebis was in the ordinary case no 1 " Die Sonderversammlungen der Plebs," in his Rom. Forschungen, vol. i., Berlin, 1864, p. 177 sq. more than a plebiscitum, and of force only amongst the plebeians themselves. But there was an exception when, because of some constitutional change proposed by it, the senate had previously sanctioned the legislation, as in the case of the Terentilian law, which paved the way for the XII. Tables, of the Canuleian law authorizing the inter- marriage of patricians and plebeians, of the Licinian laws about the occupation of the public lands, &c. ; in such cases, although the final vote was that of the concilium, the enactment was binding on the citizens generally, and was spoken of as a lex rather than as a plebiscitum. The latter name seems practically to have been dropped after the Hortensian law had equalized them so far as their effects were concerned. The greater part of the legislation for amending the private law latterly fell to the concilium, owing so far, perhaps, to the greater simplicity of its pro- cedure, but also to some extent to the fact that -the praetors preferred making their amendments tentatively by edicts (which were revocable), instead of embodying them in statutes, which, as passed under divine auspices and representing the divine will, could not easily be repealed. The XII. Tables. We have already shown the efforts Uncer- made by Servius Tullius to secure that the dispensation of tainty of justice should neither be neglected nor left to caprice or hap- law - hazard, one rule to-day and another to-morrow. With the consulate and the disregard of the " royal laws " and of Servius's instructions to the judges all this was changed. The consuls, with their harassing military engagements, could have little time to devote to their judicial functions or properly to instruct those to whom they delegated the duty of investigating and adjudicating on the merits of a complaint ; and the yearly change of magistrates must itself have been a serious obstacle to uniformity either of rule or practice so long as the law rested on nothing but unwritten custom. One can well believe too, when feeling was so embittered between the orders, that it was no rare thing for a consul to use his magisterial punitive powers (coercitio) with undue severity when a plebeian was the object of them, or to turn a deaf ear to an appeal for justice addressed to him from such a quarter. The state of matters had become so intolerable that in the year 292 the demand was made by C. Terentilius Arsa, one of the tribunes, that a commission should be appointed to define in writing the jurisdiction of the magistrates, so that a check might be put on their arbitrary, high- handed, and oppressive administration of what they were pleased to call the law. His colleagues induced him for the moment not to press his demand, which he was urging with a violence of invective that was unlikely to promote his object. But next year they made common cause with him, requiring that the whole law, public and private, should be codified, and its uncertainty thus as far as possible be removed. After a few years' resistance the senate was induced to give its assent to a demand that in itself was too reasonable to be longer withstood. The first practical step towards its realization was the Compila- despatch of a mission to Greece and the Greek settlements tion of in southern Italy, to study their statute law and collect J any materials that might be of service in preparing the projected code. On the return of the ambassadors in 302 all the magistracies were suspended, and a commission of ten patricians (decemviri legibus scribundis) was appointed with consular powers, under the presidency of Appius Claudius, for the express purpose of reducing the laws to writing. Before the end of the ensuing year (303) the bulk of the code was ready, and was at once passed into law by the comitia of the centuries, and engraved or per- haps painted on ten tables of wood, which were exposed in the Forum. Next year the decemvirate was renewed XI1 '