ceased in the historical period to be a true legislative assembly. It met only for the performance of certain formal acts, such as the lex curiata which ratified the Imperium of the higher and the Potestas of the lower magistrates Ref. 074. For this purpose the thirty Curiae were in Cicero’s day often represented by but thirty lictors Ref. 075. The assembly may have been as scantily attended when it performed the formal acts vested in it when it met as the Comitia Calata Ref. 076. In this capacity it was gathered under the presidency of the Pontifex Maximus for the inauguration of the Rex Sacrorum and the Flamines, and for the Detestatio Sacrorum—the renunciation of preexisting religious obligations which was made by a man who passed from his Gens, either by an act of Adrogatio or by transition from the patrician to the plebeian order Ref. 077.
The assembly of the Plebs Ref. 078 excluded the patrician members of the community, and continued to be organized by tribes Its true designation was Concilium Plebis, Concilium differing from Comitia as a gathering of a part of the people differs from a gathering of the whole Ref. 079. This assembly is often spoken of by ancient writers as the Comitia Tributa; but it differed from the Comitia Tributa Populi in two respects. It did not include Patricians, and it was presided over, not by a magistrate of the People, but by a magistrate of the Plebs. When it met for legislative purposes, it was presided over only by the Tribune of the Plebs. The legislative authority of the Concilium Plebis had developed steadily during the first two centuries of the Republic. At first this assembly could only pass ordinances binding on the members of the Plebs themselves. Then, by the Valerio-Horatian and Publilian laws (449 and 339 b. c.) it gained the right of considering and initiating proposals which affected the interests of the whole community; this right being probably acquired and exercised by the creation of increasing facilities for bringing resolutions of the Plebs as petitions to the assemblies of the people, to be confirmed or rejected by the latter Ref. 080. Since the Plebs came gradually to constitute the majority of voters in the assemblies of the people, these petitions must as time went on have been almost invariably confirmed. The distinction between Plebiscita and Leges must have been growing more and more formal and unreal when the Lex Hortensia (287 b. c.) enacted that henceforth Plebiscita should have the force of Leges Ref. 081. From this time onwards there was no difference between the Populus and the Plebs in matters of legislation, except that it may have been held by some thinkers that fundamental changes in the Constitution, such as those introduced by Sulla, ought to be ratified by the Comitia Centuriata Ref. 082. But in nearly all the spheres subject to the commands of the people, the Populus and the Plebs were equally competent; a Lex could repeal a Plebiscitum and a Plebiscitum a Lex Ref. 083. This dual sovereignty, which is one of the most curious of the theoretical features of the Roman Constitution, was rendered possible and harmless by the fact that the mass of the voters in all the different assemblies were composed of the same individuals, and by the central control exercised by the Senate over all magistrates, and therefore over all assemblies before which these magistrates introduced their proposals. The initiation of legislation was, in fact, during the days of Republican stability, in the hands of the Senate; but, apart from the exercise of this authority, which had long had a de facto recognition, but was not recognized by law until the time of Sulla (88 and 81 b. c.) Ref. 084, the Senate did not pretend to exercise legislative power during the Republic. In its own right it could only exercise certain powers approximating to those of legislation. We find it, for instance, fixing the rate of interest Ref. 085; but such an ordinance technically assumed the form merely of advice to the judicial magistrates as to the rates which they should recognize in their edicts. The Senate, however, exercised the power of dispensing individuals from the existing laws Ref. 086; and we find it also warning the community that some enactment which had passed the people was, on technical grounds, invalid, and was therefore not binding either on the magistrates or on any member of the State Ref. 087.
In few societies of the ancient world was the legislative power so unfettered as it was at Rome. The Romans drew no distinction between constitutional law and other laws; the Roman assemblies could create new assemblies, could alter their own structure, could modify or even suspend the Constitution by granting enormous powers to individuals. There was no sphere of human interest outside their control; their power of utterance was limited only by a respect for religious law Ref. 088. We might, therefore, have expected that legislation would have been the chief path on which Roman law advanced to its maturity. But this expectation is disappointed, so far as the progress of the Jus Privatum is concerned. We do indeed find a certain number of statutes which deal with important matters of private law, such as the Lex Aquilia de Damno, the Lex Furia on testaments, the Lex Voconia on inheritances; and it is also true that certain important changes in civil procedure were sanctioned by the people, the most far-reaching of these changes being perhaps that effected by the Lex Aebutia, which helped to replace the Legis Actio by the Formula Ref. 089. But the legislation referring to private law and civil procedure at Rome is in no way comparable in bulk to that which dealt with criminal and constitutional law. Even those Leges or Plebiscita that dealt with civil procedure, perhaps did little more than ratify a change that had been already accomplished in the courts, or carry this change a few steps further. And, as to the alterations in the material elements of private law, these alterations were determined to a far greater extent by interpretation than by legislation.
§ 11.: Law as the result of Interpretation.—Interpretation by the Magistrate.
Interpretation at Rome assumed two forms. It was either the work of the magistrate or the work of the jurisconsult. The magistrate chiefly concerned with the interpretation of private law was the Praetor. The office of Praetor is said to have originated as a result of the Licinian laws of 367 b. c. Ref. 090 This new magistrate was created for the purpose of performing most of the judicial business of the Consuls, who, on account of the increasing complexity of political life, were found incapable of conducting the whole of the home and foreign affairs of Rome. For more than 120 years this single magistrate administered civil justice to citizens and aliens. At the close of this period (242 b. c.) a second Praetor was appointed Ref. 091 whose duty it was to decide cases between aliens (Peregrini) and between citizens and aliens. The former (Praetor qui inter cives jus dicit) was known by the colloquial name of Praetor Urbanus; the latter (Praetor qui inter peregrinos jus dicit) was known by the similarly abbreviated title of Praetor Peregrinus.
Every magistrate at Rome was in the habit of notifying to the public the manner in which he meant to exercise his authority, or any change which he comtemplated in existing regulations, by means of a public notice (Edictum). In the case of magistrates who were merely concerned with administrative work, such notices were often occasional (edicta repentina); in the case of magistrates concerned with judicial business, they were of necessity valid for the whole period during which the magistrates held their office, and capable of transmission to their successors (perpetua et tralaticia); for jurisdiction does not admit of occasional and isolated ordinances which have only a temporary validity. The edicts of the Praetors were necessarily of this latter type. Each new occupant of the office might admit rulings not recognized by his predecessors; these rulings were forced on him by the fact that new and unexpected combinations in legal relations had been presented to his notice, or that the existing rules did not answer to a growing sense of equity. New rulings cannot be introduced into a system of law without affecting old ones. The fact that there was an edict gave the Praetor a chance of smoothing out anomalies, instead of exhibiting inconsistencies, in the law. The edict admitted of change and development; but it was a change that was subtle and gradual, not violent and rapid. The process by which it was reached professed to be a process of interpretation. It was really creative work of a highly original kind.
The Edictum of the Praetor Ref. 092, in the sense in which this word is commonly used, is really a colloquial expression for the Album, or great notice-board exhibited by the Praetor, which contained other elements besides the Edicta in their true and proper sense. It contained the Legis Actiones and the Formulae of the Civil Law (Jus Civile) Ref. 093, probably preceded
