The two consuls held the highest place in the republic. All other magistrates and officers, except the tribunes, were subordinate to them. They presided in the senate and executed its decrees; they levied the troops and enforced military discipline; and it was their duty to assemble the senate and the comitia, and command the armies in time of war. As Rome was constantly engaged in war, and the consuls who commanded the armies were frequently absent from the city, some important duties of administration formerly intrusted to them were distributed among other magistrates. Thus the prætors were appointed to exercise jurisdiction in civil causes; the censors to take the census every five years, and superintend the manners and morals of the people: the ediles took care of the national buildings, public games, and matters of police; and the questors acted under the directions of the senate, as collectors of the revenue. In the early period of the republic, the Roman constitution, which bore the external appearance of a democracy, was in reality an aristocratical government; for although the plebeians were permitted ostensibly to take a part in the deliberations of the assembly of the centuries, the patricians could always command an overwhelming majority in that assembly, as well as in the senate, and, with the exception of the tribunate, they engrossed all the important offices of the state. All political power was thus placed substantially in the hands of the aristocracy, who frequently abused it by oppressing the poorer classes. the Twelve The earliest legislation deserving of notice during the Re- The law of public, was the celebrated code of laws called the Twelve Tables. Tables, According to historical tradition, three commissioners were A.R. 303. sent from Rome to Athens and other Greek states, for the purpose of inquiring into and collecting what was most useful in their legal systems; and we are told that Hermodorus, a learned Ephesian, then an exile at Rome, contributed valuable aid to the work. On the return of the commissioners, B.C. 452, ten magistrates, called decemvirs, were invested for a year with absolute power to carry on the government, and frame a body of laws for the republic. At first ten tables were completed and made public by the decemvirs, and two other tables were added the following year. These laws, after being approved of by the senate and solemnly confirmed in the Comitia Centuriata, were engraved on twelve tables, and fixed on the most conspicuous part of the forum. This ancient code, which is highly praised by the Roman </ writers, and was long considered as the foundation of all law, has not come down to us. Our knowledge of it rests on a few isolated fragments and some historical relations of what has been lost. The best attempt to restore the text is that by James Godefroy; and some additional light has been thrown on this subject in our days by the criticism and research of Haubold and Dirksen.3 Only a few provisions of the decemviral code need be noticed here. (1.) Insolvent debtors were treated with great severity. They were liable to be seized and imprisoned by their creditors, and, after being kept loaded in chains for sixty days, might be sold into foreign slavery. (2.) The old law or custom which prohibited all marriages between patricians and plebeians was confirmed. (3.) In bodily injuries the barbarous principle of retaliation was sanctioned-an eye for an eye, a limb for a limbunless the injured party chose to accept of any other satisfaction. (4.) Any one who wrote lampoons or libels on his neighbours was liable to be deprived of civil rights. (5.) An appeal might be made to the people from the sentence of every magistrate; and no citizen was to be tried for his life except before the Comitia of the Centuries. 1 Cicero de Orator., i. 34. Titus Livius, iii. 34. "Fons omnis publici privatique juris."-Tac. Ann., iii. 27. See Quatuor Fontes Juris Civilis, Geneva, 1653. Otto's Thesaurus, t. iii. p. 1. 3 Haubold, Institutiones Juris Romani Literariæ, t. i. p. 300-306. Dirksen, Sketch of the Efforts made for restoring the Text of the Twelve Tables. See also Ortolan's Institutes, t. i. p. 98. of the By the decemviral code the plebeians gained a consider- Progress able step towards the adjustment of their differences with plebeians. the patricians; but it was nearly eighty years before these differences were settled by the admission of the plebeians to the supreme offices of the state. After a long series of angry contests, the popular party gradually gained ground till they achieved complete political independence. The consuls and higher magistrates, in place of being selected exclusively from the patrician order, were thenceforward chosen from the whole body of the citizens, leaving the field open for men of merit wherever they were to be found. the two orders. The reconciliation of the two orders, by an equal distribu- Fusion of tion of political rights, was followed by two centuries of national prosperity and victory. Rome was long an insignificant state, engaged in waging petty wars with her neighbours. Southern Italy had been peopled with colonies from Greece; the northern division, which now contains Lombardy and the territories of Venice and Genoa, reaching to the Alps, had been occupied by a colony of Gauls, and on that account was known to the Romans as Cisalpine Gaul. About the close of the fifth century from the foundation of the city, and 250 years after the establishment of the republic, Rome had conquered the whole of Italy from the Alps to its southern extremity; and, having become a powerful state, began to lay the foundations of that universal dominion which at a later period rendered her the mistress of the civilised world. At the period when the constitution of the Roman republic Sources of had attained its full development, legislation emanated from three different authorities-the Comitia Centuriata, the Comitia Tributa, and the Senate; so that laws might be promulgated in the three forms of leges populi, plebiscita, and senatus-consulta. law. The leges, or laws properly so called, were proposed by the Laws of the peopleconsuls or other senatorial magistrates, and passed by the Leges. Plebiscita. Decrees of the senate. whole body of Roman citizens, patricians and plebeians, in the assembly of the centuries. The plebiscita were laws proposed by the tribunes and passed by the assembly of the tribes, which was originally composed of plebeians only. At first these acts were only binding on the plebeians; but after the Lex Hortensia, in the year of Rome 465, both orders recognised the authority of each assembly to pass general laws binding on the whole state. Both the leges and the plebiscita were usually distinguished by the name of the magistrates who prepared them-as Lex Aquilia, Lex Cincia, and the like. After the Hortensian law the Roman constitution presented the singular anomaly of having two distinct legislative assemblies, each of which exercised full and absolute authority within itself to make laws for the republic. In the assembly of the centuries the people voted according to their fortunes, as ascertained by the census; so that when the first class was unanimous, as generally happened in all party divisions, though it contained only a small portion of the citizens, it determined everything, and established laws with the sanction of the senate. In the assembly of the tribes every vote was alike; and the democracy, led by the tribunes, had unlimited power to pass acts binding on the whole community, without any negative being allowed either to the consuls or to the senate. This political anomaly of two distinct legislative bodies in the Roman republic, however objectionable in theory, did not practically produce that discord and confusion which might reasonably have been expected from it, mainly in consequence of the prudent conduct of the senate and the aristocracy, who carefully avoided any struggle with the popular assembly after it had acquired authority to give laws to the whole state.1 Modern historians are not quite agreed as to the obligatory force of the ordinances of the senate during the republic. The power of the senate seems to have been different at different times. At first its legislative action was limited to the right, asserted from the most remote times, to grant or 1 Hume's Political Discourses, Essay 9-Of some Remarkable Customs. refuse its approbation to laws voted by the people. During the republic the supreme power belonged to the people; but they seldom passed acts without the authority of the senate. In weighty affairs it was common for the senate to deliberate and decree, and for the people to interpose their sanction. But there were many things which the senate determined by its own authority, even during the free republic, if not by express law, at least by the custom of their ancestors. When the popular cause gained ground, the tribunes assumed the right of putting a negative on the decrees of the senate, which rendered them of no effect; and, on the other hand, acts were passed by the people in the assembly of the tribes, which did not require the concurrence or approbation of the senate. Under the empire, when the comitia had disappeared, the senate had, for a time, undoubted authority to make decrees, which had the force of law, but subject to the veto of the emperor under his tribunitian power. Upon the edicts of the magistrates, at Rome and in the Edicts of the magisprovinces, was built up a system of equity which supplied rates. the deficiencies of the common law, and exercised the most beneficial influence on the development of Roman jurisprudence. This branch of law was called the jus honorarium, in opposition to the jus civile. When the prætor entered on his office,' he published, as already explained, an edict estab lishing certain rules, according to which he professed to administer justice for the year; and a similar course was followed by the curule ediles at Rome, and the proconsuls and proprætors in the provinces. Each prætor might frame a new edict if he chose; but it was not uncommon for him to adopt the edict of his predecessor, in whole or in part, and to make such additions and changes as circumstances required. The principal object of the edict was to promulgate the changes which custom and the practice of the courts had introduced; and, where no remedy could be obtained by the strict civil law, the prætor explained the manner in which 1 The prætor urbanus was first appointed in the year of Rome 387, and the prætor peregrinus in the year of Rome 508. The number of prætors |