from C. Flaccus, the governor of Gaul; but this was due PART II. to the conviction of that imperator that the proceedings of Quinctius' creditor on the Gallic estate were marked by violence and irregularity 1. The writ of the praetor peregrinus, in a case that came properly within his cognizance 2, would undoubtedly have travelled as far as that of the urban praetor.

edict.

inter

Amongst the limitations of the praetor's edictal authority Practical continuity must be reckoned the short tenure of his power; but the of the practical continuity of the edict, the certainty that any sound and workable rule would be embodied in the album of his successor, made this theoretical rather than practical. A stricter limitation was the veto (intercessio), often exer- Collegiate cised by his colleague, more rarely by the possessor of cession. a superior power, of which we shall have to speak in the section dealing with the appeal. But it was found that the conflict of authority, which at Rome was generally supposed to be enough to keep a magistrate within bounds, was not sufficient to secure a due observance of the edict even by the magistrate who had issued it. The extreme flexibility of its rulings, and the uncertainty of their source, must have offered many opportunities for the indulgence of spite or favouritism. The attempt to limit this discretionary authority was one of the valuable contributions to reform made by the democratic party. A lex Cornelia, Limitaa tribunician plebiscitum of the year 67 B. C., enacted that the edict the praetors should administer justice in accordance with imposed their edicta perpetua3. It is difficult to grasp all the Cornelia. bearings of this ordinance. Did it limit the praetor to the formulae exposed in his album as well as to the edicta

1 Cic. pro Quinct. 7, 28; 29, 90. See Appendix II.

'A case e. g. that should not have been reserved to a free city. 'Asc. in Cornelian. p. 58 ‘Aliam deinde legem Cornelius, etsi nemo repugnare ausus est, multis tamen invitis tulit, ut praetores ex edictis suis perpetuis ius dicerent; quae res summatim (Mommsen, cunctam Baiter, eum aut MS.) gratiam ambitiosis praetoribus, qui varie ius dicere assueverant, sustulit'; Dio Cass. xxxvi. 23; cf. Cic. de Fin. ii. 22, 74 (see p. 84, note a).

tion on

by the lex

BOOK I.

Praetor limited to proceedings in

iure.

Cognitio praetoria, extra

exhibited there? By the time that the law was passed the two portions of the album were so intimately connected that the fixity of the one implied in all probability the fixity of the other. We have already stated the unanswerable question whether the lex Cornelia prohibited the praetor from issuing occasional decrees (other than those necessary to the enforcement of a law), which were not in conflict with, but were as certainly not contained in, the edict which he had issued at the commencement of the year.

A further limitation, one based on custom rather than on law, arose from that fundamental division of the civil judicature into ius and iudicium, on which we have so often touched. One of the leading principles of the courts of the Ciceronian period is that the magistrate should not, in his utterances on the law, prejudge a question of fact. It is not, for instance, on the reality of a debt that he decides, but merely on the legal conditions under which the debt may be held to have been incurred1. The reality of the obligation, as exhibited not only by evidence of facts, but by proofs of the applicability of the praetor's ruling, is first established by the decision of the iudex. It is true that at times the praetor does have to decide, without the ordinaria. assistance of a iudex, a matter which raises at once both a question of law and a question of fact. Such praetorian or 'extraordinary' cognition (cognitio praetoria, extraordinaria) had reference to guarantees which he demanded from litigants, to modes of execution, or to the proof of the grounds of assistance which he offered. The demand for satisdatio, the putting of a creditor into the possession of the goods (missio in possessionem) of his absconding debtor, the quashing of an inequitable sentence (in integrum restitutio), were all decided on personal cognizance. Yet the challenge and the test of the result of such cognizance might be fought out in a case remitted to a iudex. The

1 Cic. ad Q. Fr. i. 2, 3, 10 'praetor solet iudicare deberi?'

praetor, for instance, allows Cicero's client Quinctius to PART II. appeal on a wager (sponsio), and to attempt to prove

before a iudex that there was no adequate ground for the

missio in possessionem under which he laboured 1.

autonomy

granted to

nities of

Our last glance at Italy showed a twofold status enjoyed by its communities. The greater part were free or allied members of the military confederacy; the rest were colonies (coloniae) or partners in the civic rights (municipia) of Rome. The possession of libertas everywhere carried with it a jurisdiction independent of that of the praetor's court; the possession of civitas everywhere entailed a strict limitation of autonomy on the states which enjoyed the right, and subjected them to the judicial control of Rome. But, Fuller even before the great revolution in the condition of the Italian towns created by the Social War, there had been commua tendency towards the levelling-up of the absorbed com- Roman munities in the direction of a fuller independence. A new growth of and truer theory of municipal life, which has influenced the municipal idea the history of the whole world, had begun to dawn upon before the the Roman legal mind. This was the theory of the war. possibility of combining an active local life with the possession of full civic rights in a central state. The conferment of full citizenship on the town of Arpinum in 188 B.C. and the enrolment of its citizens as voters in the Cornelian tribe were not followed by the deprivation of its communal autonomy, and its comitia was still legislating in 115 B. C. 2 Here we have a foreshadowing of the new

1 See Appendix II on the pro Quinctio.

Cic. de Leg. iii. 16, 36 ‘avus quidem noster... in hoc municipio... restitit M. Gratidio... ferenti legem tabellariam... Ac nostro quidem... Scaurus consul (115 B.C.) "Utinam," inquit, "M. Cicero, isto animo atque virtute in summa republica nobiscum versari quam in municipali maluisses."'

citizens;

social

BOOK I. type of municipium, which was to be perfected by the

Consequences of the Social War.

consequences of the Social War. It is, indeed, questionable whether, in the typical instance of Arpinum, any increase in the powers of local jurisdiction was immediately granted to the town. It remained a praefectura, and its magistrates in Cicero's time were still only aediles, a title which conveys no idea of higher jurisdiction. But Italian towns were notoriously conservative in the retention of names that had once signified their status-as indeed Arpinum's preservation of the name municipium proves-and in preserving the old titles of their magistrates; and as Arpinum possessed aediles, even after the Social War1, no certain conclusion can be drawn as to their limited jurisdiction. At the same time we possess evidence of the existence of magistrates called duoviri in coloniae before the Social War. They are found at Puteoli as early as 105 B.C.; the name probably signifies duoviri iuri dicundo, not duoviri aediles, and therefore implies the possession of a jurisdiction inconsistent with the condition of a true praefectura.

The Roman mind had, therefore, to some extent been prepared for the great problem which awaited solution after the lex Iulia had conferred the civitas on those of her allies who had remained faithful during the great struggle 3, i.e. all the Latin States and some of the foederatae civitates, and the lex Plautia Papiria had completed the work by gradually incorporating the rebel states in some manner unknown 4. Yet the situation

1 Cic. ad Fam. xiii. 11, 3.

C. I. L. i. n. 577. Cicero speaks of duumviri as the most ordinary title for magistrates of coloniae (de Leg. Agr. ii. 34, 93), but the reference is to a period after the Social War (83 B. c.); cf. the quattuorvirs at Cumae in 49 B.C. (ad Att. x. 13, 1).

Cic. pro Balbo, 8, 21.

The only clause of this law known to us is one of minor importance, referring to domiciled strangers (incolae) who had been enrolled on the registers of federate states as citizens of those communities (foederatis civitatibus adscripti; cf. ad Fam. xiii. 30, 1). It was enacted that, if at the

presented many anomalies, and two main difficulties stood in the way of removing them. The first was the still surviving sense of the fundamental inconsistency of libertus with civitas; the second, the real inequalities in the amount of communal independence possessed by the incorporated towns. The first was much more than a sentimental difficulty: to the municipal mind the surrender of the local law, even if the extinction of the local courts was not required, seemed a terrible break with the past, and communities such as Heraclea and Neapolis, from this fear as well as from that of added administrative burdens, shrank from the troublesome gift of the civitas1: while the Roman was perplexed with the combined problems of saving the supremacy of the Roman courts. of avoiding the adoption of new administrative machinery, and of preserving the fact of municipal independence. By the side of such questions the gradual levelling of the condition of the Italian towns was a minor difficulty that might be left to time and to isolated action.

PART II.

tion of

juris.

We know that the harder of the two problems had been Adaptasolved by the Ciceronian period; but it is not easy to central point to the method of solution. The old principle of the to local delegation of praetorian jurisdiction to praefecti was not diction. resorted to, although the name praefecturae was still retained by states to which these officers had been sent, and the quattuorviri still went on circuit in their Campanian district 2. It has been held that the policy adopted by the Roman government was the very characteristic one of laisser faire, that the states were allowed to retain their own jurisdiction as though they were liberae, and that an adjustment of the local to the central courts was

time of the passing of the law they had their domicile in Italy, they might receive Roman citizenship by making a professio to the praetor within sixty days (Cic. pro Arch. 4, 7).

1 Cic. pro Balbo, 8, 21 'In quo magna contentio Heracliensium et Neapolitanorum fuit, cum magna pars in iis civitatibus foederis sui libertatem civitati anteferret.' ❜ p. 35.