Legal Latin Mores

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I. The Roman Legal System

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One of the most apparent of Rome's continuing influences on today's society exists in the governmental structure and legal system in use in much of the western world. The Roman law as codified by Gaius during the Flavian emperors is today the basis for most European legal systems and laws. In this system, all laws are listed by crimes in one or more books. In England and the United States a variation of the Roman law called Common Law,is used. The judgment and punishments are based on precedent, on rulings that previous judges and juries have made. Where we see Latin influence most in the legal system of the United States is in the language of the courts.

Most early civilizations were ruled by custom or the arbitrary judgments of kings or priests Laws and the punishments for not following the laws were at the whim of the ruler. However, in 450 BC, after a revolt of plebs who felt they were entitled to know and be able to interpret the code of laws, the Twelve Tables were established. A ten-man commission with extraordinary powers, decemviri legibus scribundis, set forth the basis of law for all Roman citizens. It was a complete ius civile. These tables covered all areas of the law emphasizing the procedure that was to be followed for various crimes. They made the law open and applicable, supposedly, to all citizens but those with wealth generally found ways to escape judgment. The laws of the Twelve Tables were never repealed but some fell into disuse as the centuries passed. We, too, have some laws still on the books but not practiced. In Kentucky, for example, it is illegal to carry an ice cream cone in one's pocket!

One must keep in mind the extent of time covered by Rome's republic and empire. About 160 AD, about 600 years after the establishment of the Twelve Tables, a jurist named Gaius wrote about Roman laws. About 400 years later the Emperor Justinian engaged jurists to create a complete compilation of Roman laws. Thus we know much of what the law was, but we have limited knowledge of the application of these laws, especially with regard to women, the lower classes, or peoples outside of Rome. We know some of the application of laws to members of the upper classes but again do not know to what extent bribery and corruption altered the course of justice. This is due to the fact that most of our knowledge comes from upper class males.

Citizenship was exclusive and the Roman Empire was marked by strong class distinctions. The wealthy had control of most of the legal customs prior to the establishment of the Twelve Tables and they kept their influence in the Roman courts. Quaestiones perpetuae ("standing jury courts") basically comprised the criminal courts of the late Republic. There were several of these courts, each one dealing with a different statutory offense. The large juries were drawn from a list of upper class citizens and ruled by majority vote. The option of appeal did not become available until after Augustus's rule.

Crime, especially violent crime, increased during the Punic wars as the lower class population, forced from their small farms by the large farm owners, swelled the population there. Slaves were brought to Rome as a consequence of the wars as well, creating mass unemployment amongst the people. Idleness too led to the increase of crimes. Anyone accused of a crime could be brought in front of the praetor urbanus by his accuser. This dispute could also be settled by a junior magistrate. In either case, the punishment, we think, was severe.

Not much has been written about punishments of the lower class folk. Crimes such as false witness, adultery and counterfeiting were punished with the death penalty. Less serious crimes were punished in a policy of "an eye for an eye". The death penalty was enforced by burying alive, throwing from a cliff or burning the guilty one. Executions were even ordered for possession of weapons with criminal intent or for possession of poison. (Think how lucky Americans are to be protected by our constitution from "cruel and unusual punishment.") Such strict punishment was generally only enforced on criminals of the lower class. Members of the senatorial and equestrian classes were generally exiled for a given time (food and water forbidden within a given distance of Rome) and their property confiscated. Plebeians were scourged or sent to work in the mines. During the empire, one could also choose to be sent to the arena. Since scourging and working in the mines often meant a slow lingering death, the choice of the games seemed a kinder solution to some. There is contradictory evidence of whether a citizen could be given a death penalty but, in effect, many of the punishments that members of the lower classes received were a sentence to death. If a Roman citizen were in a province, he was not allowed to be put to death, flogged, tortured or put in chains by verdict of a court in the provinces. If accused of a crime, a citizen could petition to be sent to Rome for his trial. If a crime was significant, the accused could be sent to Rome against his will for a trial. When there seemed no way to avoid a conviction, the accused patrician would commit suicide prior to being brought to trial, thus avoiding both a conviction and the resulting ignominy.

The role of the Roman lawyer was much different than that in the United States. The individual plaintiff and defendant were largely responsible for their own representation. Throughout the proceedings, the lawyer could offer strategic advice and could give a speech on behalf of the client, but he was not allowed to be paid for his services. The lawyer was not trained in the law but in the art of speaking. During their training, they followed the speeches of others and learned of the law in this fashion. Some did record their cases of interest for which we today are grateful. They were all men of means, interested more in practical solutions than in theory, and had other interests, usually working their way up the cursus honorum.

Rules for permitting evidence seem very lax and the court considered the written work or spoken work as legally binding. While it was easy to bring suit against another there were indeed many lawsuits, many of which were frivolous as people were enticed by material rewards when a suit was won. This is one aspect of the Roman courts that unfortunately remains in place still today.

Perhaps the biggest difference between Roman and contemporary legal systems is the use of prisons. Roman prisons were not used to punish criminals. Instead they served only to hold people awaiting trial or execution. Those who disobeyed court magistrates could also be imprisoned. The wealthy were generally held in house arrest at the home of a friend who would guarantee their presence at the trial. Private prisons existed for slaves.

The procedure of a trial differed during the Republic and Empire. In the Republic, any citizen could press charges against another through a patronus as his advocate. The accused had to be present at the nominis delatio. The charge had to be in inscription, signed by the delator and subscriptores and delivered to the praetor who presided over the quaestiones. The delator and subscriptores took an oath swearing they were not bringing false witness. Penalties were assessed against the delator should he or his witnesses lie. The accuser could ask for as many as 48 subscriptores during the inquisitio, all of whom could be questioned and subjected to speeches attacking their credulity. A vote by the jury allowed the praetor to announce the verdict. If the delator won the case, he received a praemium. If he lost, it was thought he had brought a calumnia or praevaricatio and he was fined.

During the Empire professional delators were many because of the monetary rewards that awaited a winner. The senate took on the role of the quaestiones in three criminal courts presided over by the emperor, the consuls, or the prefect of the city. None of these three were subjected to the provocatio ad populum. The following procedures were followed: Postulatio; Nominis delatio by delator with supscriptiones present; consuls summoned the senate to determine whether charges should be heard as one charge or divided; inquisitio; speeches were limited by a water clock; evidence heard; debate and a vote on the verdict ensued. Praetors and propraetors published a list of principles and formulae of their practices in the form of an edict at the beginning of each term. Each could effectively alter the formulae but, in general, the list remained the same. Imagine the amount of work involved should each decide a different set of rules to be in place for only one year.

All this data invites a closer look at some of the punishments handed down:

  • If one admitted to stealing or killing an animal or slave, he must pay the rightful owner the value of the property. If he denied the action and was found guilty, he would then be required to pay double the value.
  • A thief, caught in the night, could be killed provided the thief had been forewarned by a shout.
  • One might legally kill to defend oneself.
  • A father might recover the amount of his loss of prospective profit from his son's services should the son be maimed.
  • Excessive brutality on the part of a teacher is culpable.
  • Should one slip while carrying a heavy burden and that burden do harm to another, the 1st party is culpable since he should not have over-burdened himself nor been so negligent as to walk on a slippery surface.
  • If one dies from a drug administered by another, the administering person is culpable. If the drug is given to the victim to take himself and he dies, he is at fault.
  • From an article of the VIIth Table: If anyone mutilates another's limb, he should suffer the same unless he comes to a friendly understanding with the wounded one.
  • Incendiaries should be killed by fire.
  • A cleaner can press charges against one who stole clothing because the cleaner, having nothing, risks nothing by bringing suit.
  • It was considered a crime for a FREEDMAN to claim to be FREEBORN.
  • Paterfamilias could put to death his children and his slaves for any act of disobedience or disloyalty.

The death penalty was assigned for crimes of violence, incendiarism, poisoning and theft, for carrying weapons with criminal intent, possession, purchase or sale of poison. If a criminal was caught red-handed or confessed the deed, punishment was inflicted without trial. If he were a reputable citizen and claimed to be not guilty, trial was held before praetor; otherwise, in front of triumvir. An advisory commission in both instances was called consilium to determine the question of guilt.

The Roman legal system indeed is different from the one we follow but we can certainly see parallels. The Latin influence today is more apparent in the vocabulary of the courts.

revised 2005 - Joan Jahnige - KET

Sources
Justinian: The Digest of Roman Law translated by C.F. Kolbert, Penguin Classics 1979
Legal Latin Dr. Rudolph Masciantonio, et al., American Classical League Resource Center
Life and Law of Rome J. A. Crook, Thanes and Hudson
As The Romans Did Jo Ann Shelton Oxford Press 1988 pp. 242-248, 277
Children of Romulus G.B. Cobbold Longman press 1995 pp. 137-8,/p>
The Romans Karl Christ University of California Press 1984 pp. 121-132
Web Site: www.jura.uni-sb.de/Rechtsgeschichte/Ius.Romanum/ (opens in new window).


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