susceptibilities. They are the orders of a Police Com- PART I. missioner or of an Ecclesiastical Court. We should expect an order against blocking a river or building on its bank to come from a purely executive magistrate, the consul or the aedile: while a command against the desecration of a sacred place would seem more appropriate to the pontifex than to the praetor. Yet they are injunctions which in the historical period are issued from the Civil Tribunal of Rome. The reason for this appears to be two-fold. In the first place we must remember that an executive magistrate occupied the tribunal, and as such injunctions, which are generally of the nature of prohibitions, are always issued ex post facto, the court and the court-days were the most fitting place and time for their expression. Secondly, the tendency of the administrative, like that of the criminal, law of Rome was to make the individual citizen the guardian of the welfare of the community; the magistrates were exponents but not inspectors, and the protest of a citizen against a breach of public order which affected himself would not unnaturally be heard before the civil court.

mands to

defended

(ii) The function of the interdict as an interim command (ii) Comnecessary to facilitate the course of justice offered an protect unirresistible inducement to its extension. The order for rights. the production of an individual under power by some one who was detaining him must always have been in vogue, although not necessarily in its later interdictal form; when written testaments came into use, a similar 'exhibitory' interdict had to be framed to effect their production. There were some spheres of right which, so far as we can see, could only be enforced by praetorian command, e. g. the prohibition of violence being used against one who cut down a neighbour's tree which impended on his house. Such spheres were ever increasing in fact though not in strict law. One of the newest and greatest of these facts with which the magistrate had

to cope was the growth of a theory of 'possession' which
fell short of perfect ownership. The extension of the
' restitutory' and the framing of the 'prohibitory' decrees
which protected such occupation were a necessary means
of defending by interdict what was not defended by law.
(iii) And this growth of a new praetorian Jurisprudence
-for the protection of rights is nothing less-introduces
us to another probable source for the extension of the
interdictal procedure. The praetor wanted new forms
of action to defend the rights which he was creating.
The original defence was in the imperium alone, but the
estimate of the merits of the case must always have
required some magisterial cognizance (cognitio). But in
an age familiar with the jury-system and to a magistrate
burdened with the cases of Romans dwelling now between
the Padus and the straits of Messina, this system was
burdensome and unsatisfactory. The praetor wished to
state a case for iudex or recuperatores, and one of the
simplest modes of effecting this was to frame an interdict
and then ask the iudicium to decide whether there had
been exhibition,' 'restitution,' or 'violence,' as the case
might be, within the meaning of its terms. The praetor
had, as we shall see, many devices for framing new
actions, but the interdict was perhaps the simplest of
them all.

PART II

THE COURTS OF THE CICERONIAN PERIOD.

§ 1. The Relation of the Magistrates to the Laws.

in the

of civil

THE history of the public is in one respect very different PART II. from that of the civil law of Rome. In the domain of Shares of the magisadministrative or of criminal jurisprudence the tendency trate and is to increase the citizen's liberty by limiting the magis- the law trate's power through legislation. In the civil law, on the increase other hand, we find the growth of new rights unaccompanied rights. by any very marked development in legislation, and it is hardly too much to say that the freedom of intercourse, the abolition of vexatious trammels, the recognition of natural claims were not only accompanied by, but were actually the product of, an enormous increase in the power of the judicial magistrate. It is important to determine how far there was, in Ciceronian times, a recognition of this power, how it was defended when recognized, and how it was supposed to be adjusted to the 'rule of law.'

as the of lex,

It is possible to collect a series of passages from Cicero's Rights philosophical and oratorical works which, taken alone, outcome would tend to exhibit the Roman constitution and the Roman judicature as resting wholly on a basis of statute law (lex). In one passage the magistrate seems to be regarded as the mouthpiece of lex; he is a 'speaking law' as the law is a 'mute magistrate'': in another the im

1 Cic. de Leg. iii. 1, 2 'magistratum legem esse loquentem, legem autem mutum magistratum.'

-

:

BOOK I. perium is the correlative, perhaps it even implied the outcome, of lex1. The lex is the guiding power of the State as the mind is of the body; the magistrates are the ministers of the laws (legum ministri), the iudices their interpreters, the commonalty their slaves 2. Like Aristotle Cicero represents law as the passionless reason, the calm immobility of which should be imitated by the guiders of the Republic 3; like him again he believes that right (ius) can be obtained through the rule of a personality; but the age for this soon passes; a refinement of justice has been attained when leges have been invented to speak with all men ever with one and the same voice. Sometimes these utterances may be due to an unconscious imitation of Greek originals, sometimes they are the outcome of the exigencies of the moment; but while they emphasize the fact that every activity of the State can be found to have somewhere or other its basis, or at least its partial foundation, in a statute, they can hardly be pressed to mean much more than this. In the last-cited passage he has risen to a higher plane than lex-to ius itself, of which he clearly conceives law to be, if an essential, only a partial of ius and expression 5. A full, if popular, summary of the grounds of civic liberty is to be found in the juxta-position of the three phrases ius, mos maiorum, leges. The two latter are partial expressions or modes of manifestation of the first; yet even the second does not adequately

of mos

maiorum.

1 Cic. de Leg. iii. 1, 3.

Cic. pro Cluent. 53, 146' Legum ministri magistratus, legum interpretes iudices, legum denique idcirco omnes servi sumus ut liberi esse possimus.' Cic. de Off. i. 25, 89.

✦ ib. ii. 12, 41, 42; cf. Top. 25, 95 'quoniam lege firmius in controversiis disceptandis esse nihil debet, danda est opera ut legem adiutricem . adhibeamus.'

So procedure (actio) springs from ius; 'ius actionemque' (Cic. pro Caec. II, 32) are right and the means by which it is enforced.

• Cic. pro Sest. 34, 73. A fuller classification of the grounds of ius civile in its widest sense is given in Top. 5, 28 'si quis ius civile dicat id esse quod in legibus, senatus consultis, rebus iudicatis, iurisperitorum auctoritate, edictis magistratuum, more, aequitate consistat.'

convey the idea deeply rooted in the Roman mind that PART II. there are rights which form the background of the structure of the State and which even the law of the State dare not infringe. This belief finds a striking expression in the scruple which led Roman legislators to append to their enactments the saving clause :

SI QUID IUS NON ESSET ROGARIER, EIUS EA LEGE NIHILUM ROGATUM.

The clause safeguarded a law against being a breach of some ultimate religious obligation: but it might recognize, if we follow Cicero on a point on which many jurists of the time were in agreement with him, a right hardly less sacred than one supported by religion. When Cicero read this clause from the law of Sulla which disfranchised Volaterrae and many other towns, he asked 'Is there a ius which the people cannot command or forbid?' 'This ascription declares there is,' he answered; and he agreed, for it guaranteed, in spite of legislation, the citizenship of his client, Caecina the Volaterran 1.

than lex.

If we transfer this idea to the sphere of private rights Ius wider its content is manifestly increased; it is so clear, to use Cicero's own expression, that a iudicium is about a ius 2; it is only an incident if it is also concerned with a lex. The ius, to be validly upheld, must of course have claimed universal or at least authoritative recognition: but the Roman mind does not seem to have regarded it as necessary that this recognition should be based on statute. The courts of Rome, like those of every other aristo

6

1 Cic. pro Caec. 33, 95; cf. pro Domo 40, 106 Quae tua fuit consecratio? Tuleram, inquit, ut mihi liceret. Quid? Non exceperas ut, si quid ius non esset rogari, ne esset rogatum?' An apparent denial of the supremacy of Fas over law in international relations is contained in the words of the pro Balbo (15, 35) 'Sacrosanctum enim nihil potest esse nisi quod per populum plebemve sanctum est.' But it is only apparent, the meaning merely being that a definite legal sanction is required for a thing to be sacrosanctum. Cf. Festus, p. 318.

2ius de quo iudicium est' (Cic. pro Caec. 4, 10). Cf. pro Tull. 18, 42; de Off. ii. 12, 42.