The History of Rome, Theodor Mommsen [good english books to read txt] 📗

Law of the Empire

So far as concerns the field of criminal and police law, where the government more directly interferes and the necessities of the case are substantially met by a judicious legislation, there was no difficulty in attaining, in the way of legislative action, that degree of material uniformity which certainly was in this department needful for the unity of the empire. In the civil law again, where the initiative belongs to commercial intercourse and merely the formal shape to the legislator, the code for the united empire, which the legislator certainly could not have created, had been already long since developed in a natural way by commercial intercourse itself. The Roman urban law was still indeed legally based on the embodiment of the Latin national law contained in the Twelve Tables. Later laws had doubtless introduced various improvements of detail suited to the times, among which the most important was probably the abolition of the old inconvenient mode of commencing a process through standing forms of declaration by the parties(104) and the substitution of an instruction drawn up in writing by the presiding magistrate for the single juryman (formula): but in the main the popular legislation had only piled upon that venerable foundation an endless chaos of special laws long since in great part antiquated and forgotten, which can only be compared to the English statute-law. The attempts to impart to them scientific shape and system had certainly rendered the tortuous paths of the old civil law accessible, and thrown light upon them;(105) but no Roman Blackstone could remedy the fundamental defect, that an urban code composed four hundred years ago with its equally diffuse and confused supplements was now to serve as the law of a great state.

The New Urban Law or the Edict

Commercial intercourse provided for itself a more thorough remedy. The lively intercourse between Romans and non-Romans had long ago developed in Rome an international private law (-ius gentium-;(106)), that is to say, a body of maxims especially relating to commercial matters, according to which Roman judges pronounced judgment, when a cause could not be decided either according to their own or any other national code and they were compelled—setting aside the peculiarities of Roman, Hellenic, Phoenician and other law— to revert to the common views of right underlying all dealings. The formation of the newer law attached itself to this basis. In the first place as a standard for the legal dealings of Roman burgesses with each other, it de facto substituted for the old urban law, which had become practically useless, a new code based in substance on a compromise between the national law of the Twelve Tables and the international law or so-called law of nations. The former was essentially adhered to, though of course with modifications suited to the times, in the law of marriage, family, and inheritance; whereas in all regulations which concerned dealings with property, and consequently in reference to ownership and contracts, the international law was the standard; in these matters indeed various important arrangements were borrowed even from local provincial law, such as the legislation as to usury,(107) and the institution of -hypotheca-. Through whom, when, and how this comprehensive innovation came into existence, whether at once or gradually, whether through one or several authors, are questions to which we cannot furnish a satisfactory answer. We know only that this reform, as was natural, proceeded in the first instance from the urban court; that it first took formal shape in the instructions annually issued by the -praetor urbanus-, when entering on office, for the guidance of the parties in reference to the most important maxims of law to be observed in the judicial year then beginning (-edictum annuum- or -perpetuum praetoris urbani de iuris dictione-); and that, although various preparatory steps towards it may have been taken in earlier times, it certainly only attained its completion in this epoch. The new code was theoretic and abstract, inasmuch as the Roman view of law had therein divested itself of such of its national peculiarities as it had become aware of; but it was at the same time practical and positive, inasmuch as it by no means faded away into the dim twilight of general equity or even into the pure nothingness of the so-called law of nature, but was applied by definite functionaries for definite concrete cases according to fixed rules, and was not merely capable of, but had already essentially received, a legal embodiment in the urban edict. This code moreover corresponded in matter to the wants of the time, in so far as it furnished the more convenient forms required by the increase of intercourse for legal procedure, for acquisition of property, and for conclusion of contracts. Lastly, it had already in the main become subsidiary law throughout the compass of the Roman empire, inasmuch as— while the manifold local statutes were retained for those legal relations which were not directly commercial, as well as for local transactions between members of the same legal district—dealings relating to property between subjects of the empire belonging to different legal districts were regulated throughout after the model of the urban edict, though not applicable de jure to these cases, both in Italy and in the provinces. The law of the urban edict had thus essentially the same position in that age which the Roman law has occupied in our political development; this also is, so far as such opposites can be combined, at once abstract and positive; this also recommended itself by its (compared with the earlier legal code) flexible forms of intercourse, and took its place by the side of the local statutes as universal subsidiary law. But the Roman legal development had an essential advantage over ours in this, that the denationalized legislation appeared not, as with us, prematurely and by artificial birth, but at the right time and agreeably to nature.

Caesar's Project of Codification

Such was the state of the law as Caesar found it. If he projected the plan for a new code, it is not difficult to say what were his intentions. This code could only comprehend the law of Roman burgesses, and could be a general code for the empire merely so far as a code of the ruling nation suitable to the times could not but of itself become general subsidiary law throughout the compass of the empire. In criminal law, if the plan embraced this at all, there was needed only a revision and adjustment of the Sullan ordinances. In civil law, for a state whose nationality was properly humanity, the necessary and only possible formal shape was to invest that urban edict, which had already spontaneously grown out of lawful commerce, with the security and precision of statute-law. The first step towards this had been taken by the Cornelian law of 687, when it enjoined the judge to keep to the maxims set forth at the beginning of his magistracy and not arbitrarily to administer other law (108)—a regulation, which may well be compared with the law of the Twelve Tables, and which became almost as significant for the fixing of the later urban law as that collection for the fixing of the earlier. But although after the Cornelian decree of the people the edict was no longer subordinate to the judge, but the judge was by law subject to the edict; and though the new code had practically dispossessed the old urban law in judicial usage as in legal instruction—every urban judge was still free at his entrance on office absolutely and arbitrarily to alter the edict, and the law of the Twelve Tables with its additions still always outweighed formally the urban edict, so that in each individual case of collision the antiquated rule had to be set aside by arbitrary interference of the magistrates, and therefore, strictly speaking, by violation of formal law. The subsidiary application of the urban edict in the court of the -praetor peregrinus- at Rome and in the different provincial judicatures was entirely subject to the arbitrary pleasure of the individual presiding magistrates. It was evidently necessary to set aside definitely the old urban law, so far as it had not been transferred to the newer, and in the case of the latter to set suitable limits to its arbitrary alteration by each individual urban judge, possibly also to regulate its subsidiary application by the side of the local statutes. This was Caesars design, when he projected the plan for his code; for it could not have been otherwise. The plan was not executed; and thus that troublesome state of transition in Roman jurisprudence was perpetuated till this necessary reform was accomplished six centuries afterwards, and then but imperfectly, by one of the successors of Caesar, the Emperor Justinian.

Lastly, in money, measures, and weights the substantial equalization of the Latin and Hellenic systems had long been in progress. It was very ancient so far as concerned the definitions of weight and the measures of capacity and of length indispensable for trade and commerce,(109) and in the monetary system little more recent than the introduction of the silver coinage.(110) But these older equations were not sufficient, because in the Hellenic world itself the most varied metrical and monetary systems subsisted side by side; it was necessary, and formed part doubtless of Caesar's plan, now to introduce everywhere in the new united empire, so far as this had not been done already, Roman money, Roman measures, and Roman weights in such a manner that they alone should be reckoned by in official intercourse, and that the non-Roman systems should be restricted to local currency or placed in a—once for all regulated—ratio to the Roman.(111) The action of Caesar, however, can only be pointed out in two of the most important of these departments, the monetary system and the calendar.

Gold Coin as Imperial Currency

The Roman monetary system was based on the two precious metals circulating side by side and in a fixed relation to each other, gold being given and taken according to weight,(112) silver in the form of coin; but practically in consequence of the extensive transmarine intercourse the gold far preponderated over the silver. Whether the acceptance of Roman silver money was not even at an earlier period obligatory throughout the empire, is uncertain; at any rate uncoined gold essentially supplied the place of imperial money throughout the Roman territory, the more so as the Romans had prohibited the coining of gold in all the provinces and client- states, and the -denarius- had, in addition to Italy, de jure or de facto naturalized itself in Cisalpine Gaul, in Sicily, in Spain and various other places, especially in the west.(113) but the imperial coinage begins with Caesar. Exactly like Alexander, he marked the foundation of the new monarchy embracing the civilized world by the fact that the only metal forming an universal medium obtained the first place in the coinage. The greatness of the scale on which the new Caesarian gold piece (20 shillings 7 pence according to the present value of the metal) was immediately coined, is shown by the fact that in a single treasure buried seven years after Caesar's death 80,000 of these pieces were found together. It is true that financial speculations may have exercised a collateral influence in this respect.(114) as to the silver money, the exclusive rule of the Roman -denarius- in all the west, for which the foundation had previously been laid, was finally established by Caesar, when he definitively closed the only Occidental mint that still competed in silver currency with the Roman, that of Massilia. The coining of silver or copper small money was still permitted to a number of Occidental communities; three-quarter -denarii- were struck by some Latin communities of southern Gaul, half -denarii- by several cantons in northern Gaul, copper small coins in various instances even after Caesar's time by communes of the west; but this small money was throughout coined after the Roman standard, and its acceptance moreover was probably obligatory only in local dealings. Caesar does not seem any more than the earlier government to have contemplated the regulation with a view to unity of the monetary system of the east, where great masses of coarse silver money—much of which too easily admitted of being debased or worn away—and to some extent even, as in Egypt, a copper coinage akin to our paper money were in circulation, and the Syrian commercial cities would have felt very severely the want of their previous national coinage corresponding to the Mesopotamian currency. We find here subsequently the arrangement that the -denarius- has everywhere legal currency and is the only medium of official reckoning,(115) while the local coins have legal currency within their limited range but according to a tariff unfavourable for them as compared with the -denarius-.(116) This was probably not introduced all at once, and in