Caput I. Lex Aquilia and Statute Law

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iuris praecepta sunt haec:

honeste vivere, altenum non laedere, suum cuique tribuere

The basic principles of law are these:

to live uprightly, not to harm others, and to confer what is due to each person

        Gnaeus Domitius Annius Ulpianus

        Jurist, Late Classical Era, Severan Dynasty

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affirmanti non neganti incumbit probation

The burden of proof is upon him who affirms, not upon him who denies

                                                                       Said by those who suffered a harm by another                              

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Preface

quam diu si contra rationem sit, vim legis non habet. How long the matter continues, if it is against reason, it has no force in law. This remark is the pith of Roman legal pragmatism

Go to Athens, ask a Greek lawyer a question. You receive thirty pages of philosophy. Go to Rome, ask the same question; you receive a paragraph stating options regarding your action before the court

 Roman Law and the Citizen looks at law in the life of citizens. Rome and her Empire, at its height; had approximately 40-45 million inhabitants. How does the civis Romanus, the Roman citizen cope? By examining Roman jurisprudence, it may be possible to gain insight into private lives

Statute law is not the answer, it is ridged and often fails to provide a remedy. Out of this background, the Romans develop case law. Jurisprudence evolves – even matures; not always succeeding but for the most part meeting the need

And, by extension, Roman law influences our-era. How, you ask?

Sir Edward Coke, a judge and jurist in 1604; cites Medieval Law, citing earlier Roman law, that affirms bailiffs have no right in law to invade a man’s home for the purpose of bringing him to the Law Court. The affront is addressed: domus sua cuique est tutissimum refugium, his own house is the safest place of refuge commonly cited: Every man’s home is his castle

Sir Edward owes a debt to the Emperor Justinian. Justinian, following the collapse of the Roman Empire; gathered the juristic opinions of the Roman law court. The result is an assemblage of legal writings. Sir Edward’s citation is from the Digest, 2, 4, 18

Most of the basic principles of English law of Admiralty, Wills, Successions, Obligations, Contracts, Easements, Liens, Mortgages, Adverse Possession, Corporations, Judgements, Evidence come from the survival or revival of Roman law in English law. The fundamental concept of Habeas Corpus and Trial by Jury as well as the many principles of the law of Torts are of Roman origin. As Sir Edward wrote, “…the house of everyone is to him as his Castle and Fortress as well as for defence against injury and violence…” Using word-economy, the cited quote is often referred to as the “Castle law”

Roman Law and the Citizen highlights the daily trial of life. Roman jurisprudence adapts, from statute law to case law. Progress is slow. Jurists struggle. Accommodation occurs. Remedies are awarded. The social need is met

Background

During Rome’s Early Republican era of the 5^th Century BCE daily life is still conducted by customary oral tradition. One irritation for the plebeius, the common people, is access to procedural law, that is: audi alteram partem, to hear the other side or phrased alternately: that no person shall be condemned unheard. The second concern is access to substantive law, that is: conscientia maleficiorum, knowledge or conscience of the offence or deed alleged (to have been) committed. Of the two concerns, the first: audiri, to be heard is considered one of the principles of natural justice. The plebeius protested against judges who favoured the patricus, the patrician class. The question is: quibus etiam est lex, Who’s the law for anyway?

Finally, in the year 450 BCE two, ten-man: decemvir commissions were formed. Each commission looked at existing law, which resulted in the written: lex Duodecim Tabularum, the Laws of the Twelve Tables, or simply the Twelve Tables

The commissioners worked quickly; the Twelve Tables are published in 449 BCE. The written legislation mirrors oral law (with small amendments)

The Twelve Tables change Roman society. Henceforth, property law compensation is cash payment: praemia rei pecuniariae, a monetary reward for things. In-kind or similar transaction is banned. Secondly, prior to 449 BCE; law and justice were unidirectional: state-to-citizen. Now, published written law equalizes all citizens. Former, customary practice of citizen-to-citizen redress, though limited; is now recognized. The litigious plebeius propels an elementary legal process forward to maturation

Nota bene. The legal remedy of: praemia rei pecuniariae, a financial reward from a barter system of kind-for-kind to monetary compensation of loss and profit changes the social sphere. The remedy gives an insight into evolving Roman governance

From 264 BCE to 146 BCE, a period of forty-three years, Rome is engaged in three wars with the city state of Carthage. These wars are collectively known as the First, Second and Third Punic Wars. Of the three Wars, the most consequential is the Second Punic War

Hannibal, a Carthaginian general; invades Italy by crossing the northern Alps, with his troops famously riding elephants. Having traversed the Alps, he ravages northern-Italy but never captures the City of Rome

Nevertheless, Hannibal’s effect is Italy-wide. Northern-Italy is devasted. The City of Rome and southern-Italy while not war devasted suffer too. All of Italy confronts starvation and financial ruin

Rome in 449 BCE changes property compensation from in-kind to pecuniary. What is the presumed effect of this change? Rome, in the interval; institutes governance measures fortuitously in-place to aid post-war reconstruction

Aim

This paper discusses the maturation of Roman jurisprudence: from customary oral tradition, to published written law, to the development of case law. Parallel to the development of Roman jurisprudence is the change of social attitudes, which are reflected in the writings of the juristic legal scholars

This paper cites juristic legal writings, in Latin and English. The juristic writings form the basis of the development of case law, which fills the gap between specified law and contemplated law

Laws of the Twelve Tables

The Twelve Tables are the foundation of Roman law. Their publication in written form in 449 BCE consolidates earlier traditions into an enduring set of laws. The Twelve Tables have an immediate effect; all citizens now have access to the law with the effect that all citizens are equally bound by the law

There is an additional bonus: the Romans are enthusiastic! The Twelve Tables are fundamental. Schoolboys memorize passages. The Twelve Tables are written on vellum, they are also written on bronze tablets. The tablets are affixed to the rostrum, the outdoor speaker’s platform in front of the domus curia, the Senate House

Unfortunately, the bronze tablets are destroyed during the Gallic invasion of 390 BCE. Yet, our understanding of the Twelve Tables is comprehensive. For every grieved plebeius quotes passages. The Twelve Tables are re-assembled, cited below:

The Twelve Tables are an assemblage of specified law and contemplated law. They take their guidance from customary oral tradition that governs the family and the state. They also outline a range of specific provisions for daily activities

Foremost, the Twelve Tables affirm the civis, the citizen in the public sphere. They create a balanced society. They also provide a safeguard against social and economic exploitation, in all; the Twelve Tables create a distinct Roman identity of shared values

Table IX establishes Fundamental Points of Law and Legal Process

Table IX defines Roman citizenship. Only the maximus comitatus, the highest assembly can define who is a citizen. (Though not clear, maximus comitatus may refer to the senatus populusque Romanus, the Senate and the People of Rome.) Among fundamental principles of natural justice are the following: civis non sit sine iudicio supplicium, a citizen cannot be executed without trial and civis ad inimico non sit dimittere, a citizen cannot be extradited to an enemy

Table IX also establishes legal fundamentals. One fundamental is an independent and impartial judiciary, its maxim is nemo iudex in causa sua, no one is judge in their own case. The maxim’s sense is no one can judge a case in which they have an interest. The maxim’s intent is to avoid an appearance of bias, even when there is no bias. Thus, nemo iudex in causa sua cited in later English case law, its derivative maxim is, iustitiae non solum facienda, sed etiam facienda, justice must not only de done but must also be seen to be done. Further civis non potest se immiscere iudici et cum processu iudiciali, a citizen cannot interfere with judge and with judicial process. As for the citizen, as for the judge; for the iudex, the judge too is bound by fundamental principles

Nota bene. The principle of an independent and impartial judiciary can be traced back to Sir Edward Coke (whom we met in this paper’s Preface). Sir Edward read and cited Roman juristic comments. His reasons for citing commentary are not known beyond due diligence in advocating for his clients

Sir Edward is due thanks for first annunciating and, therefore introducing, juristic comments in the Medieval, English Law Court. His effect is profound and pervasive: nemo iudex in causa sua

The Twelve Tables nudge the judicial process, with statute law rigidity giving way to case law’s nuance. Case law builds on previous decisions, as summed in the maxim stare decisis et non quieta movere, to stand by things decided and not disturb settle points. The maxim binds the judge to accept earlier deciding decisions. Thus, precedent over time evolves to meet an adaptive process

The Twelve Tables are clear si iudex reus est accepto praemio pro arbitrio dandi, if the judge is guilty of receiving a bribe for a decision non est immunis ab accusatione, he is not immune from indictment

Table IX and The Ciceronian Crisis

Marcus Tullius Cicero stands in the Senate and demands the arrest and summary execution of Lucius Sergius Catilina, for Catiline and his followers have plotted to overthrow the state.  Cicero concludes his speech with the word, vixerunt, they have lived. The Senate in turn declares Cicero pater patriae, father of the fatherland

The Senate also passes legislation that affirms: senatus consultum ultimum, the Senate asserts the highest force. But the Senate is a legislative assembly, not a judicial body. Cicero’s speech let loose a fury that crosses all social classes

Yet, it is Cicero who wrote of the Twelve Tables: fremant omnes licet, dicam quod sentio, bibliothecas me hercule omnium philosophorum unus mihi videtur XII Tabularum libellus, si quis legum fontis et capita viderit, et auctoritas pondere et utilitatis ubertate superare. Though all the world exclaims against me, I will say what I think, that single little book of the Twelve Tables, if any one look to the fountains and sources of laws, seems to me, assuredly, to surpass the libraries of all the philosophers, both in weight of authority, and in extent of usefulness

Cicero’s Catiline speech negates Table IX, no execution without trial. Romans are divided. The debate in-the-street is trial-versus-no trial, the substantive debate is on being Roman, the Tables are the affirmation of common social and legal values

Nota bene. Catiline flees Rome. He dies at the Battle of Pistoria on the ante diem III Nonas Ianuarius, the third day before the Nones of January in 63 BCE

Nota bene. Cicero forgets his stirring words regarding the Twelve Tables. Following the civil crisis of the idus Martiae, the Ides of March, the assassination of Caesar; one of many out-comes of Caesar’s death is Cicero’s own assassinated on ante diem VII Idus Decembres, the seventh day before the Ides of December in 43 BCE due to his assertion of execution without trial

The Twelve Tables and Lex Aquilia

Table VIII allows for compensation for property damage. Compensation is recognized for two classes of property: cattle and slaves. Compensation is in-kind, but kind-for-kind is clumsy and rarely satisfactory for either plaintiff or defendant

The defendant kills your cow. You, the plaintiff; demand compensation. Simple: cow-for-cow. “Not so fast…” says the plaintiff, “my cow has 27 special characteristics. Shall, I numerate the merits?”

The Senate passes the lex Aquilia in 286 BCE. This legislation provides guidance when claiming pecuniary compensation for property damage: damnum iniuria datum, damage unlawfully inflicted

To confound matters, as always; the Senate uses archaic language. In response, the law court asserts analogous phrases to facilitate the legal process, such as: actiones utiles, analogous actions and actiones in factum, actions on fact. Small but necessary phrasing for pecuniary compensation

lex Aquilia provides a financial formula to determine the replacement value of cattle and slaves: pretium magni ex prior anno, the highest price from the previous year. The issue is agreeing on the previous year’s highest value

To claim monetary compensation requires two legal actions. Your first motion establishes you have suffered a harm, called a tortum. If your tort is successful, the second motion is the delictum.  Thus, the delict is the shown harm with its inherent reflexive obligation of sanctioned liability from the defendant to the plaintiff. Therefore, the iudex, the judge orders payment in accordance with the formula

Nota bene: Concerning the cow with 27-characteristics, the lawyers for plaintiff and defendant during pre-trial phase of the legal action negotiate to achieve an agreed sum. If there is agreement, the plaintiff’s lawyer states the sum to the iudex. If there is no agreement, the case goes to trial. Each lawyer argues appropriately. Based on what is said, the iudex reviews the merits of the case, and states the sum owed by the defendant. The ordered payment will meet one-of-three conditions: a sum below market value or at value or above value. The defendant pays the plaintiff the ordered sum

Nota bene. tortum. The neuter past participle of the second conjugation verb: torqueo, torquere, torsi, tortum. To twist. The present era English language noun tort is a derivative and loan word. The tort before the court is a twisted matter

Nota bene. delictum. The neuter past participle of the third conjugation verb: delinquo, delinquere, deliqui, delictum. To show fault. The present era English language noun delinquent is a derivative and loan word. A delinquent is a person who shows their fault. A delict is the shown fault for which compensation is owed

The maturation of tort and delict are explained in the following section

The Praetor Urbanus and the Jurist

This section looks at the role of the Praetor Urbanus, the Urban Magistrate. He is the appointed official responsible for the administration of justice. Among many duties, his role widens the range of cases the court may entertain on either same or similar rulings where existing law is mute. The Romans often refer to the law being, lex non sutura erat, the Law was not seamed, meaning; the law is seamless (no injustice is done)

Nota bene. When the position of Praetor Urbanus is established, the parallel position of Praetor Peregrinus is also established. The division of responsibility is as follows; the Praetor Urbanus is responsible for legal issues concerning the Roman citizen.The Praetor Peregrinus is responsible for non-Roman citizens. This paper discusses only the Praetor Urbanus

The era is the Roman Empire, from the late Republican era of 27 BCE to the height of Empire of 395 CE

Roman law has two sources. Laws passed by the Roman people, that is, the Senate. Secondly, social values that underlay society introduced by the Praetor Urbanus to correct shown harms within existing law

The Praetor Urbanus is the magistrate of Rome. He assumes his appointed on the Kalendae Ianuariae, the Kalens of January is both the first day of the month of January and is also the first day of the new calendar year

Prior to the commencement of the new calendar year, the plaintiff’s lawyer approaches the Praetor Urbanus. The plaintiff’s lawyer outlines the harm to be contested. If there is a basis for the wrong, the case is entered into the edictum, the edict. The edict is published on the kalendae Ianuariae

Let us assume your case fits the definition of a harm cited in statute law, your case is entered into the edictum and assigned a date to be heard

In the alternative, your case mostly fits within statute law, with parts outside. In this instance, the particulars of the case are reviewed. The review process parallels the logic of the Venn Diagram. The Venn Diagram consists of two circles. Circle A, of the Venn Diagram, is your case. Circle B is statute law, the other circle. Where A-B mostly overlay, your have congruency, your case may proceed. Well, not yet! There remains a portion of Circle A outside the overlay. The Praetor Urbanus looks at existing law, and if he deems an argument can be made, he allows the case to be entered in the edict. The iudex is assigned to hear the case. The iudex is usually a lay person. There are two parties to the case: petitor, the plaintiff and reus, the defendant. The parties, prior to going to court; meet and write a formula. Let us assume the action is one of damaged property, a harm committed against a cow. The formula is pretium magni ex prior anno, the highest price from the previous year. The formula has two parts. The first part is the agreed statement of fact which outlines the nature of the action, the tort; the alleged cause of the action. The second part of the formula is the delict, the shown harm with its formula for pecuniary compensation. The iudex decides the case based on the formula

On trial day the respective lawyers debate the case before the iudex. The iudex decides the outcome in accordance with the formula

Let us assume, during the trial a point of law is raised (remember the Venn Diagram, the area outside the overlaying circles). The trial stops. A jurist is called. The jurist is a legal scholar who comments on the point of law at issue. The jurist offers an interpretation beyond statutory law. His orbiter dictum, to do that which is said in passing is not essential to the decision of the action. It does not form part of the ratio decidendi, the reason for the judicial decision, the basis for the facts of the action on which the court reaches its decision. The decidendi is said to be the statement of law applied to the material facts. Only the ratio decidendi is binding on inferior courts, by reason of the doctrine of precedent.

The obiter dictum is the jurist’s creation. It is the obiter dictum that assists in advancing the case before the court, and incidentally, the development of case law

Nota bene. obiter dictum, to do that which is said in passing, is an incidental statement. In law, the phrase refers to a judicial opinion which is ancillary to the ratio decidendi, the reason for the legal decision. The obiter dictum may or may not be included in the judge’s decision

Which is why the Romans spoke of lex non sutura erat

Today, You’re in Court

The history of exercising Roman law through the courts may be divided into three phases. The phases delineate both the evolution of jurisprudence and its maturing of procedure and process

The first phase is legis actiones, legal actions; followed by formulae ratio, the formulary system. The legis actiones and the formulae ratio are discussed below (discussion of a plena iudicii, the full trial and the cognito extra ordinem trial are discussed on page 7)

The periods overlap, with no definitive separation. The era of legis actiones is the first phase, based on the Twelve Tables. The formulae ratio appears during the last century of the Republican era through to the end of 2^nd century CE, with the cognitio extra ordinem present by the 3^rd century CE

legis actio Procedure

legis actio, the legal action in court, also includes the formulae ratio, are divided in two stages. The first stage is before a magistrate, who supervises all preliminary procedures. The second stage decides the issue and is conducted by a judge. The magistrate is usually either a consul or military tribune. Later when the office of the Praetor Urbanus is created, he provides guidance on judicial matters. The judge is neither a magistrate nor a private lawyer, but an individual agreed by both parties

in ius vocatio Procedure

in ius vocatio, the summons is conducted by voice. The plaintiff requests, with reasons, the defendant come to court. If the defendant fails to appear, the plaintiff can cite reasons and have the defendant literally dragged, that is; physically conducted, to court. Ultimately if the defendant does not appear, he is declared indefensus.  The penalty for non-appearance is severe. The Praetor Urbanus can direct seizure of the defendant’s property, and even allow sale of the property

The defendant, to avoid the severity of physically being brought to court; can post a vadimonium, a promise to appear

praevia auditus Procedure

praevia auditus, the preliminary hearing takes place before the Praetor Urbanus, the parties agree on the issue and appoint a judge. The actual dialogue between the parties follows an exchange of ritual, that is, established phrases. This process of exchange is known as the declaratio, variously translated as either a declaration or an announcement. The declaratio is formally referred to as the legis actio sacramento; a legal process whereby the two parties in the dispute, each deposits a sum of money. The sacramentum is the oath guaranteeing the truth is spoken. The loser of the case forfeits their deposit to the public purse

The legis actio sacramento could be either in rem or in personam. There are two types of action:

The legis actio per iudicis arbitrive postulationem, the action of the law by the arbitrary demand of the judge could be used only in certain cases and did not involve the sacramentum, the oath and the poena sacramenti, the oath’s penalty. With no poena sacramenti, this procedure was less risky for the loosing party. Accordingly, legis actio per condictionem, the action of the law by condition, the parties agree to a fixed sum payable if the action is successful

The alternate course of action:

The legis actio per pignoris capio nem, the action of the law by the capture of the pledge allowed creditors to distrain, that is, seize someone’s property to obtain payment on debt. If successful legis actio per manus iniectionem, the action of the law by the injection of the hand. The action refers to the laying on of a hand, that is, the debtee’s hand on the debtor, to collect the sum owed. But the impecunious man is slippery:

All of the above are statements of claim by both parties. A judge is appointed, who is agreeable to both parties. If the parties cannot agree on selection of the judge, the Praetor Urbanus decides. The names of judges are in the album iudicum, the list of judges.  By the era of the late Republic, the album iudicum cites men of equestrian rank

iusiurandum Procedure

iusiurandum, oath taking was an integral part of Roman jurisprudence

The oath was taken during the preliminary hearing. The plaintiff could challenge the defendant to take an oath supporting his case. If the defendant was willing to swear the oath, he won, and, if not, lost. However, the defendant had a third option, he could tender the oath back to the plaintiff, who similarly won if he took the oath and lost if he did not (custom did not allow the plaintiff to return the oath to the defendant)

Oath taking was serious. An oath was solemn and performed before the gods. If you were caught in perjury, the penalty is severe

si in quocumque genere actionis conveniatur, si iuraverit, proderit …, where a party is sued in any kind of action, if he makes an oath, it will be a benefit to him …,

in atrio diem Procedure

in atrio diem, on Court Day the judge having been appointed, the trial begins

In comparison to the praevia auditus, the trial is informal. In accordance with the Twelve Tables, the trial takes place in public; being an open place such that the public may attend. Traditionally, the Romans used the forum, where the populus may see and hear all

The existing law court is in poor physical condition

When Julius Caesar returns to Rome after his decade-long Gallic Campaign, the booty is given to the Senate to re-build the law court. The Romans referred to the law court as centumvirs, the “one hundred men”. The reference is to the corps of judges

Nota bene. The building site for the proposed law court is dedicated by Caesar in 46 BCE. The building is completed and dedicated by Augustus in 12 CE. The rectangular building has three, colonnaded aisles with a semi-circular apse at one end of the central aisle. The central aisle is higher than the two, side-joined aisles, with windows along the top for light. Individual courts are along each side of the colonnade. Curtains are hung between the columns of the colonnade, either opening or closing them to delineate and separate areas so concurrent cases do not interfere with each other

This style of colonnaded building in three aisles with apse was built throughout the Empire. The building is functional and serves three purposes: law courts, administration and, finance

basilica Iulia, the “Basilica Julia” is the official name of Caesar’s purpose-built law court. In accordance with Latin orthography, basilica, is a first declension feminine noun ending in: -a

Gaius Iulius Caesar, “Gaius Julius Caesar”. The family name is Iulius, a second declension masculine name ending in: -us.

Iulius acts as an adjective to basilica, therefore; it adopts the feminine ending of: -a. Hence: basilica Iulia

After the collapse of the Roman Empire, the new Christian religion occupies the basilica Iulia. Occupation continues to the Renaissance era. Due to deterioration, the building is abandoned

basilica Iulia contributes two loan words to current era English vocabulary. The basilica-style building with three-aisled colonnade and apse is associated with the design and layout of a type of Christian church, a “basilica”. The judge’s ceremonial armchair with cushions, a cathedra, a first declension feminine noun ending in: -a, is also associated with the Christian religion, a “cathedral”

The ruins of basilica Iulia are extant. The cite may be viewed

in atrio diem the respective lawyers meet in the morning. They review the case. Having reviewed the case, both lawyers then review the formulae, the formulary system. You – a snivelling excuse of humanity are either the petitor, the plaintiff or the defensor, the defendant

The adopted legal reforms of the Twelve Tables change everything, henceforth; all redress is pecuniary: quaerenda pecunia est opifex aequitatis, equity’s labourer is money

Equally, Court procedure following the adoption of the Twelve Tables was formal and archaic, both characteristics hindered the Court’s effectiveness

The lex Aebutia, legislation post-Twelve Tables, reforms Court procedure. The legislation introduced a formulary procedure. Later, Augustus passed two statutes under the name of leges Iuliae iudiciariae, the Judiciary laws of Julia

Defendants were summoned under the formulary system of leges Iuliae iudiciariae. Defendants were summoned orally. the defendant declares his vadimonium, a legal promise to appear consisting of a monetary bond to guarantee appearance. If the defendant fails to appear he may be physically dragged into court. The preferred approach for an absent defendant is a monetary fine. Ultimately, if the defendant can not be brought to court, he is declared indefensus, unprotected. The penalty for being indefensus is severe. The Praetor Urbanus may authorize seizure of the defendant’s property. Seized property is awarded to the plaintiff 

formulae, the formulary system was a written document by which a civil trial authorization was given to the judge to either condemn the defendant if certain factual or legal circumstances are proved or absolve the defendant

The lawyers for the plaintiff and the defendant meet during the morning of the trial day. They review the charge and the evidence, including the payment of any pecuniary sum. The two lawyers either agree or disagree

The lawyers go to the bascilia Iulia for the noon hour, the start of the day’s proceedings. The trial is public. Depending on the case and the lawyer, particularly his oratorical ability; a crowd may gather to watch the proceedings

Based on the morning’s review of the case, if the two lawyers agree, then the plaintiff’s lawyer stands and addresses the judge. He declares there is agreement regarding the formulary system

In the alternative, if the two lawyers do not agree, then the plaintiff’s lawyer stands and address the judge. He declares there is no agreement. The plaintiff’s lawyer begins his exordium, the formal opening speech to his case

The tactic of the exordium is to present the plaintiff in the highest regard. The plaintiff lawyer’s words are carefully selected, speech equivalent to praising heavenly deities: sentio, iudices, pudori iuvenis, pro quo minimum est quod…, I am aware, judges, that to an honorable young man, the least point in whose favour is that he is…

The exordium is planned and structured, the aim is to present the plaintiff and to set forth the key points of the case. The gamble is to win the iudex, the judge to the speaker and therefore the plaintiff

The plaintiff’s lawyer now presents the narratio, the facts. The argumentatio is the heart of the narratio, the propositio causae, the statement of the case follows by dividing the case into relevant parts, the partitio, the division. Each fact of the partitio is examined with the aim to either confirmatio or refutatio. The confirmatio and refutatio tumble about, details are examined and discussed this-way and that-way to leave no doubt. The epilogus is the concluding statement. It is crucial that all details are presented (to leave a positive impression of the plaintiff)

Of course, the defendant’s lawyer stands and presents his client to the iudex and the court…

Since the trial is for pecuniary compensation; it is the plaintiff’s responsibility to collect the sum owed by the defendant. With legal reforms, if the defendant does not pay the ordered sum, the plaintiff can ask the court bailiff to seize the defendant’s property

You’re not happy with the trial result, both parties can appeal. The appeal process is complex. You argue your case through higher and higher courts to stand ultimately before Caesar

Nota bene. Caesar refers both to the historic figure and to the reigning Emperor

plena iudicii, Procedure

plena iudicii, the full trial process follows the legis actiones as cited above

The plaintiff, who is also the creditor; is responsible for executing the judgement. Furthermore, the plaintiff now has a remedy to secure payment of debt, the bonorum vendito, the sale of goods, that is, the sale of the defendant’s property for debt

bonorum vendito, the sale of goods is the name given to the entire procedure of selling the goods of a debtor to the bonorum emptor, the buyer of the goods, who assumes the obligation of paying the debts to the creditor. With the míssio in bona, the release of goods to the creditors (instant, but also subsequent), by decree of the magistrate, are placed in possession of the debtor’s goods and, one of the creditors is appointed by the Praetor Urbanus the curator bonorum, the manager of the goods, and has the task of providing for the custody of the goods in the common interest of the creditors. With this provision: firstly, assets are removed from the debtor’s availability in order to induce him to satisfy his creditors and secondly, the curator can notify with proscríptio bonorum, the public proclamations the entry has taken place in order to give anyone interested the opportunity to intervene or provide for the payment of debts and the redemption of assets

cognitio extra ordinem PROCEDURE

cognitio extra ordinem, knowledge or procedure outside the ordinary was introduced after the Republic, during the early Empire era. The chief difference between the earlier cited systems of jurisprudence; the State provided a system under which the two parties could resolve disputes between themselves, the basis of the case is agreed, but the case is then handed to a private judge with no judgement in default being available. Now, in the cognito system, the State resolves the entire case (similar in manner with current era judicial systems)

The Law of Citations

The lex Citationum, the Law of Citations, is decreed by the Emperor Valentinian III in the year 426 CE. The law is subsequently cited by Theodosius II and Justinian I in their respective codices: the codex Theodosianus and the codex Iustinianus

The Law of Citations says: judges can only cite certain juristic writers as sources of authority during the trial, their obiter dictum. These authorities are Papinianus, Paulus, Ulpianus, Modestinus, and Gaius. According to lex Citationum, if most of the writers agreed on an issue, the judge is legally bound to follow the majority view. The judge can only use discretion if the jurists are divided and Papinianus, whose view usually prevails is the tiebreaker unless he is silent on the issue. This allows the courts to deal with conflicting juristic literature by excluding a vast quantity of doctrine whose value is not determined. Therefore, the judge bases his decision on a known and approved source of principle

Nota bene. The juristic writings are learned writings by legal scholars from the Late Republican era through to the end of Empire. The writings discuss points of law to guide both plaintiff and defendant and, the judge

Many readers may be familiar with the writings of Quintilian. The Major Declamations, a three-volume series published by the Loeb Classical Library, Harvard University. Is there a common point between the juristic writings, which are legal comments and Quintilian which trains persons in rhetoric and public speaking?

Marcus Fabius Quintilianus (35 CE – 100 CE), only once discusses an actual legal trial and case: miles Marianus,  “Marius’ Soldier”

Nota bene. Jurists, in their comments; often cite other jurists either to support or refute a point of law. When you read the obiter dictum cited in the cases, lawyers cite opportunistically jurists who may not be recognized in an imperial codex

Roman Jurisprudence Within the Wider Social Context

When you read the juristic comments, you receive the impression Roman society was highly organized and complex, the whole functions as a cohesive and regulated entity. While the forementioned is correct, in parallel; much of the apparatus of the modern state is non-existent

There is no police force to go after criminals nor means to enforce the law. There is no organized system of legal advice or representation. Lawyers are simply men who adopted the title. A lawyer who represents you at court is not allowed to collect a fee. (A lawyer earns fees from legal work outside the law court.) By the end of Empire, there are innumerable laws to be obey, with many laws in conflict

There is no banking system, and health is a matter for which agencies were available, from doctors for the few to sorcerers and holy men for the many. Education receives some attention from the state, with the benefits reserved for the elite. By the era of the late Empire, there are state employees. State employees work solely for the emperor with their number proportional to the population being insignificant. A large part of the population is not directly ‘employed’, that is working for wages but belong to a class of patrons, such as wealthy landowners. Included in this broad class of persons are the urban poor who are sustained by public grants and religious charity. Roman society differs little except in scale from other pre-modern societies, with people resorting to the same mechanisms of patronage and dependence to overcome the practical difficulties of putting a loaf of bread on the dinner table

From the era of the Twelve Tables, 449 BCE onwards; Roman jurisprudence is driven by compensatory liability. If you win your case; it is upon you to collect from the defendant. The system of bailiffs, court appointed officials who collected money from defendants; develops during the late Empire

Sadly, for many, legal redress, then and now, is a matter of those who are able and aggressive receive better justice than those who lack either the ability or the means to assert own interest

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Parsing the First and Third Sections of the lex Aquilia and Case Law

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ecce malefactor quem quaeritis!

Behold the evil doer whom ye seek!

                                                                                                       Said of those who point the accusatory finger

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Lex Aquilia and Grappling with Statute Law

Concerning a society’s governance; its laws and customs must be in harmony, for the public good to be successful

Marcus Tullius Cicero in his works de re Publica, On the Commonwealth and de Legibus, On the Laws writes eloquently concerning the ideal state. We know Cicero’s views; we do not know the chatter of the plebeius

When the plebeius goes to court, he asserts his legal prerogative. He also states his aspirations. Though we lack the trial transcript associated with the trial, we do possess many juristic obiter dicta, gathered by various Byzantine emperors.

lex Aquilia passed into legislation, from a bill to an act; in the early third century BCE. It is assumed it replaces earlier legislation regarding property damage. Legislation is named after the sponsoring Senator, in this instance a tribune named Aquilius

Nota bene. When the Senate passes legislation, the bill, now an act, is named after the sponsoring Senator. lex, is a third declension feminine noun. The sponsoring Senator’s name, a proper noun, modifies lex as an adjective. The Senator’s name adopts a feminine ending: always Aquilia, never Aquilius

lex Aquilia is statute law. It had three sections. The First Section establishes liability, citing the verb occidere, to slay in relation to slaves and four-footed herd animals. The Third Section establishes liability for property in general, except for acts within the First Section, citing the verbs urere, frangere, rumpere, respectively to burn, to break and, to rend. The statute’s Second Section for reasons not known became obsolete. The Second Section is not discussed

lex Aquilia, being statute law, is narrowly defined. To overcome statute law’s narrowness, the Praetor Urbanus implemented the own published Edict which allowed for private citizen actions to be brought before the law court

The lex Aquilia was poorly drafted, and worse; the Senate never updated the legislation. To overcome linguistic impediment of the statute, early jurists provided own interpretation. These early interpretations exercised a strong influence on later juristic writing. In particular, the verbs occidere, to slay and rumpere, to rend

Slaying is narrowly interpreted and acts not strictly within the verb’s narrow sense meant no action can be brought. By contrast, rumpere was broadly interpreted

To prevent injustice, the Praetor Urbanus intervenes by granting actions under one of two broad headings, either actiones utiles, analogous actions or actiones infactum, actions on the facts. Both actions are modelled on statutory law. An example of the Praetor Urbanus intervening is the follow event. The defendant did not directly “slay” a slave but his act results in the slave’s death. The jurists struggled, without great success, to explain the legal basis of the distinction between a statutory and an analogous action. The central point to overcome is the difference between direct and indirect cause of harm

There is an inherent impediment within lex Aquilia, the law is ambiguous. What is the intent: either to reward the property owner or to punish the defendant? To add to the confusion, one provision of lex Aquilia allows for the following: if the defendant denies liability but is subsequently found liable, he pays double the sum to the plaintiff

Seven juristic cases are discussed below: Cases I to VII

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Case I ^{1, 7, 8}

The lex Aquilia is statute law, which refers to deliberate slaying. Archaic Roman law includes all wrongful slaying, including carelessness, but not accidental slaying

The opening sentence of the obiter dictum cites wrongful slaying. The wording implies Roman law may permit lawful slaying, which is murder in self-defence

Cattle and slaves are property. Therefore, the court awards pecuniary compensation. Note the coercive nature of doubling compensation if the defendant denies he interferes with another person’s property

Gaius in obiter dictum, D.9.2.2.2. in addition to a four-footed herd animal cites the following species recognized for pecuniary compensation: sheep, goats, horses, mules, and asses. Gaius, amends his list of animals, adding the following: pigs, elephants, and camels. The following animals are excluded: dogs and wild animals, that is: bears, lions, and panthers

The plaintiff claims the defendant wrongfully slays his slave. The defendant denies the allegation. In this circumstance the Praetor Urbanus grants the plaintiff a formulary action. The formulary action allows the case to proceed to trial. If the defendant is found liable for property damage, that is; the slain slave, compensation is paid by the defendant to the plaintiff. The sum awarded is not know, but the mathematical formula for calculating the sum is know: pretium magni ex prior anno, “the highest price from the previous year”. The issue is agreeing on the previous year’s highest market value

The obiter dictum states the defendant wrongfully slew the slave and denies the allegation

The plaintiff must prove the defendant wrongfully slew the slave to claim compensation

If the defendant is found liable for damaged property, which he denies; then the sum payable to the plaintiff is doubled

Similar formulas were used for other varieties of statutory and analogous Aquilian actions. The issue is interpretation of statute law. What degree of freedom does the Praetor Urbanus have in giving meaning to the words of a statute? Then and now the issue of interpretation of statute law is vexed

Best advice: querenti causam tuam, complainer argue your cause / case

Nota bene: causa, is a first declension feminine noun. The noun cited juristically has the sense of “case”

Case II

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The Third Section of the lex Aquilia is considered difficult, the translation is weak

The class of property has broadened, rerum may be translated as “thing”, “object” or “matter”. The Latin verbs are:  urere, to burn; frangere, to break; and rumpere, to rend.  It is understood jurists allowed the plaintiff to recover at least the reduction in value of the property due to the defendant’s act. Yet, at the same time, the juristic statement acting as a “the thin edge of the wedge” in that the plaintiff may claim quanti ea res erit, “as much money as the matter will be worth”

Roman law allows double damage compensation if the defendant denies liability. Though the obiter dictum does not state the judge’s decision, it is surmised the defendant paid double the owed sum to the plaintiff

Case III

Ulpianus cites different means by which the Aquilian statute interprets “slaying”: with a sword (armed) or hand (unarmed)

The Praetor Urbnanus may supplement an action instituted by statute in areas where the statute is lacking. He does this in the present case by initiating an in factum, “on the facts” action

The defendant is carrying a heavy sack on his back. He throws the sack onto the ground is such a manner the sack strikes a random by-stander causing him to fall to the ground, such that the by-stander is slain

The defendant slew a man outside the definition of Aquilian “slaying”. The key phrase is: fuit enim in ipsius arbitrio ita se non onerare, “for it was in his discretion not to burden himself so”. The action raises the issues of intent and foreseeing the consequences of an act

Ulpianus raises the argument of foreseeing of the consequent of an act

Case IV

Under the lex Aquilia, a person who pushes another is not liable for either injury or death, since the act of pushing is not within statute law

Proculus argues, not statute law but case law, citing the action is in factum, “on the facts”. The pushed person may incur loss: such as lacerations or broken bones or even death. iniuria, “wrongful” has evolved to a wider sense and application

in factum action overcomes statute law’s inadequacy, recognition of a harm where non previously existed

Case V

Ulpianus notes the difference between occidere, the verb “to slay”, that is; the midwife administers the drug versus the midwife leaving the drug with the woman to self-take later. The former action falls under statute law, the latter action under in factum

Crucially, the juristic comment contains the phrase, si quis per vim vel suasum…, “If a person, using force or persuasion…”, then lex Aquilia applies

Statute law and case law are wrestling, the causum mortis, the “cause of death”. The following propositio maxima, the “most important proposition” may apply: verba intentioni, non e contra, debent inservire, “Words ought to be made subservient to the intent, and not the other way about”

obstetrix venenum dominae dedit, eam occidit. “The midwife gave the poison to her Ladyship, slaying her”

Case VI

Ulpianus cites Celsus; he discusses the difference between statute law and in factum, the difference between direct action to slay versus indirect death action to slay. The obiter dictum discusses examples of direct and indirect cause

Direct cause. The case of furnishing the cause of death, giving a drug to someone which contains poison or giving a sword to a lunatic (who is not skilled in swordsmanship). In both cases, not lex Aquilia but in factum. The causal chain is indirect: in factum

Indirect cause. The case of throwing someone from a bridge into the river, the person dies by drowning. Or the case of dashing a boy against a rock. The causal chain is direct; statute law, lex Aquilia

The primary issue of direct versus indirect physical causation of death: is the defendant responsible for the sequence of events? The secondary issue of direct versus indirect physical causation of death: how far down the road must the defendant walk to be responsible for the sequence of events: part-way or all-way?  

To teach the “causal sequence of events”, the following Roman-era tutorial is cited:

A slave is riding a horse; you startle the horse. The slave falls off the horse. There are two sides to the horse. Both sides of the horse are equal chance: one side borders the land; the other side borders the river. The slave falls into the river and drowns

You are responsible for startling the horse. Are you responsible to which side the slave falls: land versus water?

The key to asserting your case is the oratorical art of rhetoric. Your flourish is based on: oratorium pendet saluti Romane, “oratory is crucial to the health of the Roman state”.

You are either the petitor, the “plaintiff” or the defensor, the “defendant”. You commence with the narratio, followed by the argumentatio with its confirmatio and refutatio each tumbling about to leave no doubt, to arrive at the epilogus

Foremost is the propositio maxima, the “most important proposition”: causa proxima non remota spectatur, “The immediate, not the remote cause is considered”. During the argumentatio the following is heard: servus in terram cadit. percusserit caput super petram. mortuus, “The slave falls onto the ground. He hits his head on a rock. Dead!”

Nota bene. The Greeks train the Romans in rhetoric, but it is the Roman rhetorician who shapes Latin. The foremost Roman rhetorician of his era is Marcus Fabius Quintilianus (35 CE-100 CE). He is a practising lawyer. He gains fame championing rhetoric as the ideal education for morality and character. The Emperor Vespasianus creates a scholastic appointment for Quintilian to teach rhetoric. Later in life, he writes his opus: institutio Oratoria, the “Institutes of Oratory” (the work is often cited as: The Orator’s Education)

Quintilian in his celebrated case study: miles Mariuanus, “Marius’ soldier” is presented rhetorically: the proem or “introduction”, the narratio, the argumentatio with its confirmatio and refutatio, and concludes with the epilogus

miles Mariuanus, “Marius’ soldier” is in Book One, Quintilian. The Major Declamations, a three-volume series published by Loeb Classical Library, Harvard University

Quintilian is a lawyer and a rhetorician. His cross-discipline speech accents style and structure

Is the action statute law or in factum? (Be careful how you argue: statute law redresses “probity” of strong moral principles while an in factum action redresses “pecuniary compensation”)

Case VII

Gaius, by contrast with Celsus, Case VI; explains the difference between statutory and in factum acts by emphasizing the degree of the defendant’s physical contact with the victim

Lex Aquilia is very early statute law, the restrictive use and understanding by jurists of the verb occidere, “to slay” may be due to an archaic practice of interpretation. Current era society cites the verb “to kill”

The verb “to kill” implies a close relationship between an act and the result of that act, such that the act and its consequences are not distinguishable as separate events. The “core” meaning of “kill” and its extended usage may be a perception in perceived “directness” of causation: an act in time proceeding to a terminal point

Is there a distinction between administering poison to a slave, with death shortly thereafter (statutory action) versus ordering a slave to be confined, with death long after (in factum action). Have not both defendants acted physically against the victim?

The case demonstrates the problem of physical directness

Conclusion

When the Roman Senate voted and passed legislation, the Bill, now an Act; is named after the senator who sponsored the legislation

lex Aquilia is worded poorly, the language is archaic. The Roman court struggles to understand and interpret statute law’s intent. Out of this confusion develops the role of the Praetor Urbanus, and as a corollary, the jurist and his obiter dictum. From these dual developments, evolves case law and analogous phrases, such as: actiones utiles and actiones in factum

Gaius, Case VII shows the problem of physical directness in juristic interpretation of the Third Section of the lex Aquilia

There is the case of the herdsman who drives a mule too harshly, thereby injuring it physically, or the case of the warden who confines and starves to death a slave. Or the man who physically persuades a slave to do something dangerous, such as, to climb an apple tree. Is the physical act different from the verbal act?

What of the person who shouts “Fire” in a crowded theatre, thereby causing a panic

Cases VI and VII, grapple with the issue of the chain of causation, the physical proximity of the defendant at the time of the act: causa proxima non remota spectatur, the immediate, not the remote, cause is to be considered

Pity, we do not have the particulars of the respective trials. Nevertheless, let your imagination wander back to ancient Rome to construct a plausible scenario of lives lead

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quis custodiet legis custodes?

Who’ll keep an eye on the keepers of the law?

                                                                                                       Said of those watching the watchers

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