XX[20arg] The meaning of rogatio, lex, plebisscitum and privilegium, and to what extent all those terms differ.
I HEAR it asked what the meaning is of lex, plebisscitum, rogatio, and privilegium. Ateius Capito, a man highly skilled in public and private law, defined the meaning of lex in these words: 1 “A law,” said he, “is a general decree of the people, or of the commons, answering an appeal 2 made to them by a magistrate.” If this definition is correct, neither the appeal for Pompey's military command, nor about the recall of Cicero, nor as to the murder or Clodius, nor any similar decrees of the people of commons, can be called laws. For they are not general decrees, and they are framed with regard, not to the whole body of citizens, but to individuals. Hence they ought rather to be called privilegia, or “privileges,” since the ancients used priva where we now use singula (private or individual). This word Lucilius used in the first book of his Satires: 3
I'll give them, when they come, each his own (priva) piece[p. 269] Capito, however, in the same definition divided 5 the plebes, 6 or “commons,” from the populus, or “people,” since in the term “people” are embraced every part of the state and all its orders, but “commons” is properly applied to that part in which the patrician families of the citizens are not included. Therefore, according to Capito, a plebisscitum is a law which the commons, and not the people, adopt. But the head itself, the origin, and as it were the fount of this whole process of law is the rogatio, whether the appeal (rogatio) is to the people or to the commons, on a matter relating to all or to individuals. For all the words under discussion are understood and included in the fundamental principle and name of rogatio; for unless the people or commons be appealed to (rogetur), no decree of the people or commons can be passed. But although all this is true, yet in the old records we observe that no great distinction is made among the words in question. For the common term lex is used both of decrees of the commons and of “privileges,” and all are called by the indiscriminate and inexact name rogatio. Even Sallust, who is most observant of propriety in the use of words, has yielded to custom and applied the term “law” to the “privilege” which was passed with reference to the return of Gnaeus Pompeius. The passage, from the second book of his Histories, reads as follows: 7 “For when Sulla, as consul, proposed a law (legem) touching his return, the tribune of the commons, Gaius Herennius, had vetoed it by previous arrangement.” [p. 271]
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