LEX
LEX This term indicates generally a rule of law binding
universally on the citizens of a given state: “Lex est commune
praeceptum, virorum prudentium consultum, delictorum coercitio, communis
reipublicae sponsio” (
Dig. 1,
3,
1); “Legis virtus est
haec, imperare, vetare, permittere, punire” (ib. 7). In the works
of the Roman writers and jurists it is used to denote an enactment of any
body (or even individual) constitutionally empowered to legislate, but more
properly it is used only of the enactments of the Comitia Centuriata.
Definitions of
lex will be found in Cicero,
de Leg. 1.6 (cf. 2.16); in Aulus Gellius,
10.20 (by the jurist Capito); in Gaius, 1.3
(adopted in Justinian's Institutes, 1.2, 4); and in
Dig.
1,
3,
1 (by
Papinian).
The earliest leges of which we read were those made in the Comitia Curiata
(whence they are called Leges Curiatæ), which till the reforms of
Servius Tullius was the only legislative body at Rome. Some of these--the
so-called
leges regiae--were said to have been
enacted by the Comitia on the motion of Romulus, as well as of the kings who
succeeded him (
Dig. 1,
2,
2,
2). Dionysius says
(3.36) that a collection of these leges regiae was made towards the end of
the regal period by one Sextus Papirius, a commentary on which, written in
the time of Julius Caesar by Granius Flaccus, is quoted in
Dig. 50,
16,
144; but it is improbable that they were anything more than formal
restatements of customary law already binding, and the fact that Sextus
Papirius was (according to Dionysius) a pontifex suggests that they may have
been only of sacerdotal import. (Some of their substance has been collected
in a fragmentary form by earlier writers, and there is an essay on the
subject by H. E. Dirksen:
Versuche zur Kritik und Auslegung,
Leipzig, 1823). It may indeed be doubted whether any large proportion of the
enactments of the Comitia Curiata were genuine “laws,” though
the fifty leges of Servius mentioned by Dionysius (
4.13) seem to have made some general
changes; at any rate it is certain that after the establishment of the
Comitia Centuriata by Servius Tullius the assembly of the Curiae, as a
legislative body, fell almost entirely into disuse. We read of its
conferring the
imperium on the magistrates,
sanctioning testaments and adrogations, and confirming some of the
resolutions of the centuries which were held to require a religious
sanction, and in all these cases it acted by a resolution or
lex, but the difference between such a
lex and a true law is too obvious to need any
further exposition. And though even under Augustus a shadow of the old
constitution was preserved in the formal bestowal of the
imperium by a Lex Curiata only, the assembly of the Curiae
had ceased even before Cicero's time to consist of the old patricians: they
were merely represented by thirty lictors.
In the sense of a genuine enactment, establishing a rule of law,
lex denotes the legislation of the Comitia
Centuriata, in which the law was proposed (
rogabatur) by a magistrate of senatorial rank, usually by one or
both of the consuls for the year (
Inst. 1.2, 4). Such leges
were also called
populiscita (Festus, s. v. Scitum
Pop.).
The resolutions of the Comitia Tributa, whose origin was almost
contemporaneous with that of the centurial assembly, had not at first the
force of law: they seem to have been regarded merely as expressions of
plebeian opinion, by which the patricians gauged the temper of the political
opposition, and were guided to the line of policy which party exigencies
rendered expedient. They were known as
plebeiscita
because the Comitia Tributa was at first attended only by members of the
plebs, though every Roman was in fact enrolled in a tribe, and entitled to
attend. When the tribunate of the plebs was instituted (
circ. B.C. 494), a means was provided by which the resolutions of
the tribes might become law. The tribunes were permitted to appear at the
threshold of the building where the senate deliberated, and lay before it
the proposals of the order which they represented: if approved, these
proposals could then be referred in the ordinary way to the Comitia
Centuriata, and thereby become genuine enactments of the sovereign populus
(
V. Max. 2.2,
7). After the enactment of the Lex Horatia Valeria (B.C. 449) the
patricians seem to have begun to take part in the business of the Comitia
Tributa, and it was perhaps provided by the same statute that plebiscita
which related to matters of purely private law should have binding force
without confirmation by the centuries. This exemption was apparently
extended to all plebiscita by the first of the Leges Publiliae, B.C. 339
(
Liv. 8.12; Gellius,
15.27), and finally a Lex Hortensia (B.C. 287) dispensed with
the requirement of senatorial sanction to plebiscita. By this last change
they were placed on a footing of complete equality with leges passed in the
Comitia Centuriata (
Dig. 2,
14,
7,
7; Gaius,
1.3;
Inst. 1.2, 4): as the latter were proposed to the
centuries by a senatorial magistrate, so they were submitted to the tribes
by a tribune: leges related in the main to administrative and constitutional
matters, plebiscita to matters of private law. The result of the equal
legislative authority of the two comitia was that plebiscita came not
uncommonly to be called leges,
lex becoming a
generic term (
Dig. 1,
3,
32,
1), to which was
sometimes added the specific designation, as “lex plebeivescitum,”
“lex sive plebiscitum est” (e. g. the Tabula Heracleensis,
Savigny,
Zeitschrift, &c. vol. ix. p. 355). Cicero,
in his enumeration of the sources of Roman law (
Top. 5), does
not mention plebiscita, which he undoubtedly included under leges: among the
so-called leges which in fact were plebiscita are the Lex Aquilia (Cic.
pro Tullio, 8, 11;
Dig.
9,
2,
1,
1), the Lex Canuleia, Lex Rubria, &c.
[p. 2.33]
The term
rogatio means any measure proposed
(bill,
projet de loi) to the legislative body,
whether on its enactment it would technically be a lex or a plebiscitum:
hence the expressions
populum rogare (
Cic. Phil. 1.10.26),
plebem rogare (
de Leg. 3.3, 9),
legem rogare (
de Republ. 3.10, 17;
Phil. 2.29, 72;
Dig. 9,
2,
1,
1), and, by analogy,
magistratum
rogare, to offer a magistrate for election to the people (
Liv. 3.65,
6.42;
Cic. Att. 9.1. 5,
2, &c.; Sallust,
Sal. Jug. 29:
cf. Festus, s. v. Rogatio). The form of such rogation (in the case of an
adrogation effected before the Comitia Curiata) is given by Gellius,
5.19,
5,
9: “Velitis jubeatis, uti L. Valerius L. Titio
tam jure legeque filius siet, quamsi ex eo patre matreque familias ejus
natus esset, utique ei vitae necisque in eum potestas siet, uti patri
endo filio est, haec ita uti dixi, ita vos quirites rogo.” Assent
to the proposal was expressed in the form “uti rogas” (which
explains the term
sponsio in the definition of
lex above from
Dig.
1,
3,
1); rejection
by the verb
antiquo (
Liv.
4.58,
5.30,
55, &c.;
Cic. de
Off. 2.2. 1, 73;
ad Att. 1.13;
de
Leg. 3.17, 38). The measures submitted were not unfrequently
called
rogationes even after their definite
enactment as leges or plebiscita; and in
Dig. 35,
2,
1, pr., an enacted
statute is termed “lex rogata.”
“
Promulgare legem” denotes the
publication of its terms for the public information (see LEX CAECILIA DIDIA
inf.), such publication being usually followed by
contiones or meetings in which the bill was
explained and recommended to the people by its proposer or supporters
(
suasores): this promulgation and informal
discussion is expressed by the phrase “
ferre legem” as contrasted with
rogare, which is confined to the solemn submission of the
measure to the Comitia for acceptance or refusal: the general term used for
acceptance is “rogationem
accipere.”
“Legem
perferre” is to carry a
rogatio, to convert it into a lex (Cic. Cornel.
fragm.
ap. Ascon.;
Liv. 33.46). Other terms
familiarly used in connexion with leges are explained by Ulpian
(
Reg. 1, 3): “Lex aut rogatur, id est fertur: aut
abrogatur, id est, prior lex tollitur: aut derogatur, id est, pars
primae legis tollitur: aut subrogatur, id est, adjicitur aliquid primae
legi: aut obrogatur, id est, mutatur aliquid ex prima lege.”
By Festus
rogatio is described as equivalent to
what is otherwise called
privilegium:
“a command of the populus relating to one or more persons, but not to
all persons, or relating to one or more things, but not to all:”
cf.
Dig. 50,
17,
196. Privilegia had been forbidden by the Twelve
Tables (
Cic. de Leg. 3.1. 9,
44;
pro Domo, 17, 43), but in the sense of
statutes in favour of or directed against individuals they are common; e. g.
the Lex Centuriata by which Cicero was recalled from exile: “Non sunt
generalia jussa, ... sed de singulis concepta, quocirca
privilegia vocari debent, quia veteres priva
dixerunt quae nos singula dicimus” (Gellius,
10.20,
4). The term is generally used
by Cicero in the unfavourable sense (
pro Domo,
17, 43;
pro Sestio, 30, 65;
Brut. 23, 89), and from the language in
pro Domo, 11, 28, it may be inferred that privilegia were not
considered leges proper: cf. Ulpian in
Dig. 1,
3,
8: “Jura non in
singulas personas, sed generaliter constituuntur.” In the Corpus
juris privilegium is used generally to
denote a
jus singulare or privilege conferred
on classes by law: cf.
Dig. 1,
3,
16;
9,
2,
51,
2;
1,
3,
14 and 15: and see Savigny,
System, i.
p. 61.
Of the form and style of Roman legislation we can judge to some extent from
the fragments which survive. The Romans seem to have always adhered to the
old expressions, and to have used few superfluous words. Great care was
taken with such clauses as were intended to alter a previous lex (whence the
standing clause “de impunitate si quid contra alias leges, ejus legis
ergo, factum sit,”
Cic. Att. 3.2. 3), and to avoid all
interference with prior enactments when no change in them was contemplated
(whence the common formula “ejus hac lege nihil rogatur,”
E. H. L. N. R. Lex Tab. Heracl., Lex Rubria, Lex
Quinctia de aquaed.: cf. Valerius Probus;
Cic.
pro Caec. 33, 95;
pro
Balbo, 14, 32): though the general principle seems to have
been that a subsequent repealed or modified a prior lex with which it was
inconsistent. The leges were often divided into chapters (
capita), e. g. the Lex Aquilia (Gaius, 3.210, 215, 217): cf.
also the tablet of the Lex Rubria or de Gall. Cisalp. and Cic.
ad
Att. l.c. In order to preserve a permanent record, the lex was
engraved on bronze (
aes) and deposited in the
Aerarium (Sueton.
Jul. 28; Plut.
Cat. min.
17): but it also seems to have been usual to cut statutes on tablets of oak
(
Dionys. A. R. 3.36), which were
whitened over and then fixed in a public place for all citizens to read,
though whether they were so exposed for any great length of time is
uncertain (
Cic. Att. 14.1. 2). The title
of the lex was generally derived from the gentile name of the magistrate who
proposed it, and sometimes from those of both the consuls or praetors (e. g.
Lex Aelia Sentia, Junia Norbana, Papia Poppaea, &c.): and it was
sometimes further described by reference to the topic to which it related
(e. g. Lex Cincia de donis et muneribus, Lex Furia de sponsu, Lex Furia
testamentaria, Lex Julia municipalis, &c.). Leges which related to a
common subject were often designated by a collective name, as Leges
agrariae, judiciariae, sumptuariae, &c. When a lex comprised very
various provisions, relating to matters essentially different, it was called
Lex Satura.
The terms in which a statute was expressed were fixed by the proposer, though
he would usually be assisted by others who possessed the requisite
familiarity with technical language: it was proposed to the Comitia for
acceptance or rejection in its entirety, there being no discussion of or
alteration in its clauses, which indeed in such an assembly would have been
injurious, if not impossible. One important part of the lex was its
sanctio--i.e. that part of it which provided a
penalty for, or declared what should be the effect of, its infraction
(
Inst. 2.1, 10; Auct.
ad Herenn. 2.10;
Cic. de Invent. 2.4. 9,
146; Papinian in
Dig. 48,
19,
41). If the sanctio declared that the
act against which the statute was directed should be void, the lex was said
to be
perfecta; if there was no such provision,
it was
imperfecta (e.g. the Lex Cincia): and if
an act was merely penalised, but not declared void, the lex is said by
Ulpian (
Reg. 1, 2) to be called “minus quam
perfecta” (e. g. the Leges Furiae
[p. 2.34]testamentaria and de sponsu): cf. Savigny,
System, iv. p.
549
sq.
The number of leges was largely increased towards the end of the republican
period (
Tac. Ann. 3.25-
28), and Julius Caesar is said to have
contemplated a revision of the whole of them. Augustus, and perhaps his
immediate successors, was careful to conduct his legislation under
republican forms, though it may be doubted whether any statute was enacted
after the fall of the Republic except on the initiative of the emperor, or
at any rate without his sanction express or implied. The Comitia assembled
and gave the force of law to the proposals submitted to them for some time
after the constitution had lost all trace of real freedom (
Tac. Ann. 1.15 relates to the election of
magistrates, not to legislation); and most of the Leges Juliae, a Lex
Visellia, an agrarian law of Caligula, and a law of Claudius (Gaius, 1.157,
171) were enacted in the ordinary way. The last statute which we know to
have been passed in this manner is a lex agraria of the time of Nerva (A.D.
96-98), mentioned in
