The history of the court of the
Centumviri is obscure. It formed one of the two permanent courts or collegia
of plebeian judges, instituted probably by Servius Tullius (Niebuhr, 1.472),
and exercising jurisdiction at least from the time of that king until,
perhaps, the fall of the Western Empire. The other [p. 1.405]
collegium--that of the decemviri--was, according to Pomponius (Dig. 1.2
; confirmed by Plin. Ep.
, and D. C. 54
), in some way combined with the centumviri in the
presidential functions, though they had an exclusive jurisdiction in
questions relating to free-dom. The actual number of centumviri varied at
different periods. Festus (s. v. centumviralia
) says that they were nominated by the praetor, three being
taken from each of the thirty tribes: the ninety thus obtained would, with
the presiding decemviri, make up the exact sum which the name denotes. When
the number of tribes was increased in B.C. 241 to 35, there were 105
centumviri; but the old name was retained, according to Festus, “quo
facilius nominarentur,” and under the empire the number had risen
to 180 (Plin. Ep. 6.33
). At this time it is
improbable that they were any longer selected from the tribes, between whose
number and their own there was no relation: from the passage of Dio Cassius
referred to above, one might conjecture that they were taken by lot from the
instituted by Augustus,
and from Ovid (Ov. Tr. 2.96
) that no one could
escape the duty if drawn. It would seem that under the republic the court
had no jurisdiction unless the whole number of members sat together, for it
was only in the aggregate that they represented the people; but later
(probably under Augustus) it was divided into four divisions or sub-courts,
which sat and judged apart and independently of each other for the quicker
despatch of business (Quintil. Inst.
13.5, 6), though some
causes were heard by two divisions sitting together (ib. 5.2, 1), and others
even by the whole united body (ib. 6.33), which then (Plin. Ep. 5.21
), as under the republic, was
presided over by a praetor. The old custom was for the court to sit in the
open forum, but in Quintilian's time (12.5, 6) the four divisions sat on
raised seats (tribunalia
) in the Basilica Julia.
The procedure before the centumviri was always that of the legis actio
Even when the legis actiones
in the aggregate
were swept away by the Lex Aebutia, circ.
(Voigt), the old process was expressly retained by that statute for centumviralia judicia
(Gaius, 4.31; Gel. 16.10
) ; so that where an action was to be
tried in this manner the solemn formalities of sacramentum
(described by Gaius, 4.16, 17) had first to be
gone through in jure,
before the praetor, who
then remitted it for trial to the centumviri: but the latter were never
instructed (like a judex privatus
) by formula
], probably because
they could get all the information which a judge got from the formula from
the praetor himself, who was their president.
It seems to be the better opinion that the jurisdiction of the centumviri was
limited to civil causes: the assumption that they dealt also with criminal
matters (for which the only substantial authority is Phaedrus,
3.10) is rebutted by Dionys. A. R. 4.25
, and appears improbable from all our
knowledge of the subject. The civil suits which fell under their cognisance
specially were those known as Real actions (Cic. de Orat. 1.38
, 173), while the decemviri were more
particularly concerned with questions of status (libertas, civitas, familia:
Cic. pro Caec. 33
29, 78). The Real actions comprise
all suits claiming property or jura in re
such as a right of way, a usufruct, &c., and those
relating to inheritances; the scope of the centumviral jurisdiction is
denoted by the planting of the hasta
symbol of Quiritarian ownership) in the ground where the court was sitting
36; Quintil. Inst.
Gaius, 4.16), and by the use of the festuca
the sacramental procedure.
The constant tendency, however, was to narrow the jurisdiction of the
centumviral court. The effect of the Lex Aebutia was to establish an
alternative procedure in Real actions: they might in future be tried before
the centumviri by sacramentum,
or before a
single judex (instructed by formula), either by formula
or per sponsionem
4.91); and all the evidence goes to show that either the praetor or the
parties preferred trial by a single judex. At least, under the empire,
actions relating to inheritances and causae
are almost considered synonymous expressions (Plin. Ep. 5.1
; Quintil. Inst.
3.10, 3, 7.2, 5; Paul. Sent.
4.16, 2; Hieron. Ep. ad Dom.
50), and it is
not improbable that the Lex Julia de judiciis privatis of Augustus (Gaius,
4.30) limited the centumviri to causes of this kind. The special sphere of
their activity was the Querela
a remedy which had entirely
originated in the practice of their court. Cicero (Cic. de Orat. 1.38
, 56; pro
18, 53) and Quintilian (Inst.
4.2, 5) speak of
the subtle, nature of many of the questions which came before the
centumviri; and the younger Pliny, who practised in their court
2.18), makes frequent allusion to it in his letters
(1.5, 5.50, 9.23): it is also referred to in Dig. 5
; ib. 17, pr.; 34,
3, 30; and in Cod. 3, 31, 12, pr.; 6, 28, 4, pr.
Fuller information on the subject will be found in Bethmann-Hollweg,
Ueber die Competent des Centumviralgerichts
5.11); Tigerström, de judicibus apud Romanos;
C. A. Schneider, de Centumviralis judicii apud Romanos origine;
Zumpt, Ueber Ursprung, Form, und Bedeutung des
C. Janssen, in Monogr. liber verschied.
Theile der Rechtswissenschaft.