Hostname: page-component-cd9895bd7-fscjk Total loading time: 0 Render date: 2024-12-25T08:14:04.023Z Has data issue: false hasContentIssue false
  • English
  • Français

Three Thoughts on Roman Private law and the Lex Irnitana*

Published online by Cambridge University Press:  24 September 2012

David Johnston
David Johnston
Affiliation:
Christ's College, Cambridge
Get access Rights & Permissions [Opens in a new window]

Extract

New discoveries are customarily hailed as events of the greatest importance; whether they always are is a matter more for the judgement of posterity than of the discoverer. But the Lex Irnitana is exceptional. Discovered in Spain in 1981, it has now been published for the first time with translation and commentary. It is the most complete copy yet discovered of the Flavian municipal law already known in more fragmentary form from Salpensa and Malaca. For Roman legal historians the detailed provisions on civil jurisdiction in the tenth and last tablet are of the greatest interest. They fall into three main areas: the first deals with the competence of local jurisdiction and the display of the relevant edictal remedies (chapters 84 and 85); next follow four chapters concerned with the selection of a pool of judges for each year and provisions on how to select them or recuperatores in any given case; finally the law regulates adjournments requested or required and the days on which cases may be heard or for which they may be adjourned. The law is notably well structured, an advantage for us since unexpected omissions may be regarded as significant rather than due to related material being scattered through many tablets, some not extant.

Type
Research Article
Information
The Journal of Roman Studies , Volume 77 , November 1987 , pp. 62 - 77
Copyright
Copyright © David Johnston 1987. Exclusive Licence to Publish: The Society for the Promotion of Roman Studies

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 González, J., ‘The Lex Irnitana: a new copy of the Flavian municipal law’, JRS 76 (1986), 147–243Google Scholar, hereafter Gonzàlez (1986). The following works are also cited by author and date or by the abbreviation noted only: von Bethmann-Hollweg, M. A., Der römische Civilprocess. 11. Formulae (1865)Google Scholar; d'Ors, A., ‘Nuevos datos de la ley Irnitana sobre jurisdicción municipal’, SDHI 49 (1983), 18–50Google Scholar; Kaser, M., Das römische Zivilprozessrecht (1966) cited as RZGoogle Scholar; Lenel, O., Das Edictum perpetuum 3 (1927) cited as EPGoogle Scholar; Pugliese, G., Il processo civile romano. 11. i: Il processo formulare (1963)Google Scholar; Schmidlin, B., Das Rekuperatorenverfahren (1963)Google Scholar; Wlassak, M., Der Judikationsbefehl der römischen Prozesse (1921) cited as JB.Google Scholar

2 Aulus Gellius, Noctes Atticae 14. 2. 1; cf. d'Ors (1983), 45.

3 On fictions see particularly Birks, P., ‘Fictions ancient and modern’ in The legal mind: essays for Tony Honorré, edd. MacCormick, N. and Birks, P. (1986), 83–101.Google Scholar

4 See also chapters 64 (on pledges) and 71 (on summoning witnesses).

5 G. 4. 104.

6 FIRA 1. 67 at 11. 68–9.

7 Ulp., lib. 3 ed., D. 5. 1. 2. 1.

8 Ulp. lib. 77 ed., D. 2. 12. 6.

9 On restitutio see Simshäuser, W., Iuridici und Munizipalgerichtsbarkeit in Italien (1973), 222 ffGoogle Scholar. and in general on the powers of municipal magistrates, 186–232. See also Laffi, U., ‘La lex Rubria de Gallia Cisalpina’, Athenaeum 64 (1986), 5–44 at 26 ff.Google Scholar

10 Lenel, EP, 55 ff. gives, as title 1 paragraph 6 of the edict, de vadimonio Romam faciendo, which features in book two of Ulpian's and Paul's commentaries and book one of Gaius'. See also the Lex Rubria xxi. 22 (FIRA 1. 19) and Fragmentum Atestinum 17 (FIRA 1. 20).

11 On cognitores, Lenel, EP, 86 ff.

12 One oddity concerning the governor's involvement is worth noting here: Paul, lib. 1 ed., D. 2. 12. 4 provides that the governor is to determine the periods during which business is to be postponed, according to local custom. Chapter K of the Lex Irnitana provides, however, that this is to be decided by the decurions. The texts relate to very different periods. At what point the change may have been made is unclear.

13 A further display may have been of the forensic calendar. Chapters K, 91 and 92 give much prominence to its details. Yet there do not appear to be any early examples of calendars intended for public use. N. Ehrhardt, Istanbuler Mitteilungen 34 (1984), 371–404, discusses a Severan example which includes details of both imperial festivals and celebrations provided by local philanthropy. Earlier than this there seem only to be private calendars on papyrus (pp. 398–9), but even they date only from the second century onwards.

14 Chapter 91 not only mentions chapter 12 of the Lex Iulia de iudiciis privatis but also refers to senatusconsulta pertaining to it. It assumes, therefore, the availability of a relatively extensive collection of legal materials. Yet Pliny's letters indicate that the existence of a systematic collection of such materials may be ruled out for Bithynia: so to suppose much for Spain may be too optimistic.

15 G. 4. 30.

16 Wlassak, JB, 274 ff. defending his earlier claims in Römische Prozessgesetze 1 (1888), 190 ff.

17 P. Girard, SZ 34 (1913), 295–372 at 339 ff.; Pugliese (1963), 65 ff.

18 D'Ors (1983), 22; AHDE 53 (1983), 8; Gonzàlez (1986), 150.

19 Girard, SZ 34 (1913), 339 ff. refers to FV 197–8 which cites both laws, and notes the practice of citing disparate measures together, for instance the Lex Iulia et Papia.

20 Kunkel, W., Untersuchungen zur Entwicklung des römischen Kriminalverfahrens in vorsullanischer Zeit (1962), 120.Google Scholar

21 Schmidlin (1963); Kaser, RZ, 142 ff. A more recent study by A. Lintott on epigraphic evidence and recuperatores should soon appear in the Colloques de l'Institut de droit romain (Paris). I am most grateful to Dr Lintott for allowing me to make use of it.

22 Pugliese (1963), 206–15.

23 Schmidlin (1963), 92 ff.; but see n. 31 below.

24 Schmidlin (1963), 97; Wlassak, , Römische Prozessgesetze 11 (1891), 324 ff.Google Scholar; JB 261 ff.

25 Schmidlin (1963), 45 ff. and passim; cf. Kaser, RZ, 144 ff.

26 Schmidlin (1963), 132. This widely-accepted view seems to have been challenged only by Behrends, O., Die römische Geschworenenverfassung (1970), 92 n. 5Google Scholar.

27 Schmidlin (1963), 130.

28 Ibid., 126 ff.

29 So Eisele, F., Beiträge zur römischen Rechtsgeschichte (1896), 44 ff.Google Scholar

30 Cf. Quintilian, Institutio oratorio 5. 7. 9.

31 Schmidlin's exaggeration of this feature was already noted by Kaser, RZ, 145 n. 70.

32 D'Ors, AHDE 53 (1983), 6 ff.; Gonzàlez (1986), 148 etc.

33 Probus 5. 8 (FIRA 11. p. 457): Q.E.R.E.T.P.I.R.D. T.Q.P.D.D.D.P.F. i.e. ‘quanti ea res erit tantae pecuniae iudicium recuperatorium dabo testibusque publice dumtaxat decem denuntiandi potestatem faciam’; cf. Pugliese (1963), 207 n. 124.

34 FIRA 1. 68 v.

35 Ibid., at 1. 117.

36 FIRA 1. 67 at 11. 66 ff.

37 Kaser, RZ, 145 with n. 73; Frier, B. W., The Rise of the Roman Jurists (1985), 202.Google Scholar

38 CIL 111. 7380; the sources are in TLL, s.v. augustus, p. 1391, 11. 5 ff.; s.v. domus, p. 1983, 11 70 ff.; de Ruggiero, E., Dizionario epigraphico di antichità romane 11 (1922), 2061–2.Google Scholar

39 Price, S. R. F., Rituals and Power (1984), 57–62.Google Scholar

40 Of the 29 holidays listed by CIL 12, p. 299, 25 are dateable: 5 to Caesar, 4 to Tiberius, 1 to Gaius but 15 to Augustus.

41 It is not possible to discuss this here. But it is interesting that some of the cases which are traditionally thought to have been reserved for recuperatores are actually excluded under chapter 84 of the law from local jurisdiction: causae liberales; iniuria.

42 Pliny, ep. 3. 20. 9; G. 4. 185.

43 Recuperatores feature in neither of the chapters concerned with intertium; in addition, although they do appear in chapter 92, they are not mentioned when the matter of intertium is raised at 11. 46–8.

44 In chapters 90–2 of the law intertium appears to be an indeclinable substantive, and is treated as such in this paper.

45 The text deals with days when business is postponed (res prolatae) and what acts the magistrates are not to allow to take place during those periods. Chapter K, 11. 40–4 as printed by Gonzalez (1986), 161–2 reads: ‘inque eos dies vadimonia fieri nisi de iis rebus de qui/bus Romae messis v[indem]iaeve causa rebus prolatis ius di/ci solet ne sinunt[o; ite]m de <interti> is nisi in eos dies qui prox | sumi futuri erunt pos[t e]os dies qui turn rerum prolatarum | erunt fieri n[e s]inu[nt]o'. Where intertiis is printed, the bronze actually has decretis, with the letters eter added above the reti of decretis. But the restoration there of intertiis is unconvincing: not only is it found in conjunction with a redundant de, but it is in conflict with the apparent indeclinability of intertium elsewhere; it is also remote from the letters on the bronze and inconsistent with another chapter of the law: for chapter 92 provides that intertium is normally not to be made for various days (including those of res prolatae) but may be if the parties and judge agree. Yet chapter K—if the restoration were correct—would provide that intertium could not be made for days during which business was postponed but only for the days immediately following them. The bronze indicates that originally decretis was written and then amended, apparently to de ceteris. What then are the cetera? The preceding sentence prohibits vadimonia for days of postponed business except for certain special cases: de iis rebus they are allowed. It then continues: de ceteris they may be made only for the days immediately following. So the ‘others’ referred to are the normal cases for which the special dispensation of a vadimonium (which of course implies a hearing before the magistrate) for a day during res prolatae would not be allowed. There are of course two types of vadimonium: (a) the ‘Dilationsvadimonium’, which could only arise before res prolatae: the law states that, unless it is an exceptional case, the magistrate is not to fix a vadimonium for days during which business is postponed. So if res prolatae intervene during process in iure a long gap must be accepted in most cases, (b) The ‘Ladungsvadimonium’ (on which see Wolf, J. G. in Satura R. Feenstra (1985), 59–69Google Scholar) could be fixed by the parties alone and could therefore be made even during res prolatae. It too, however, could not take effect in a normal case until afterwards.

46 Cf. d'Ors (1983), 40. On comperendinatio see Karlowa, O., Der römische Civilprocess zur Zeit der Legisactionen (1872), 360 ff.Google Scholar; Th. Kipp, RE, s.v. iv. 788–91.

47 G. 4. 15.

48 Cicero, pro Murena 27; Probus 4. 9 (FIRA 11. p. 456): I.D.T.S.P. i.e. ‘in diem tertium sive perendinum’.

49 Aulus Gellius, Nodes atticae 14. 2. 1.

50 Tab. Pomp. 24 (in AE 1973, no. 145) with discussions by Crook, J. A., ZPE 29 (1978), 231–2 (but see n. 74 below)Google Scholar; Bove, L., Documenti processuali dalle Tabulae Pompeianae di Murecine (1979), 114 ff.Google Scholar

51 This might be supported by Macrobius, , Saturnalia 1. 16. 3 and 13–14Google Scholar which refer to comperendini dies as a category of profesti, that is non-festive days. But for difficulties in Macrobius' definition of them see the text below at n. 62.

52 Contrast d'Ors (1983), 42 who takes ‘in biduo proximo’ to mean ‘para el dia siguiente’ which seems impossible. For in emphasizing in temporal expressions ‘die Zeit, innerhalb welcher etwas geschieht’, see Kühner, R. and Stegmann, C., Ausführliche Grammatik der lateinischen Sprache5 (1976) 11. i. 358 etc.Google Scholar

53 It makes of course no sense to associate the notice within the two preceding days with the ‘third day’ concealed in intertium: for you cannot call it the third day with respect to the notice unless (counting inclusively) the notice was given on the first of the two preceding days.

54 Gonzalez (1986), 234 (commentary on chapter 90 1. 26).

55 This is a further significant difference from comperendinatio, which precedes process before the judge. Comperendinatio came, however, to have a broader meaning (cf. n. 70), and it is possible that it also came to describe adjournments apud iudicem (Karlowa, op. cit. (n. 46), 364).

56 Tab. Pomp. 24. Bove, loc. cit. (n. 50). In his review of Bove, however, Manthe, U., Gnomon 53 (1981), 153Google Scholar, says ex should not be read. For present purposes, this makes little difference: without ex, the tablet arranges for the case to be heard ‘on’ rather than ‘from’ the third day.

57 In other words a denuntiatio effects a temporary stay in proceedings until the magistrate has determined whether a longer adjournment is justified. This explanation also deals with a further difficulty: for if intertium is an adjournment for obtaining such things as new evidence (see n. 63), then it is hard to see why process should continue after a denuntiatio, in the absence of a piece of evidence thought by one of the parties to be essential. But if denuntiatio itself leads to a brief break in proceedings no such problem arises.

58 Overlooked by d'Ors (1983), 44. See n. 74 below.

59 G. 4. 184.

60 XII tables 1.8.

61 The details under the formulary procedure are obscure: Buckland, W. W., A textbook of Roman Law (3rd ed. by Stein, Peter, 1963), 638Google Scholar. Contrast Kaser, RZ, 288 (whose view is that in the text) with Bethmann-Hollweg, 11. 603 ff. (in whose view the case was heard even if the defendant failed to appear; the defendant was not automatically condemned; but his chances were slim if he was not present to counter arguments presented by the plaintiff). Some sort of hearing must have taken place, as Buckland notes, since the amount of the condemnatio had to be determined. If the plaintiff was absent the case was lost, since the burden of proof lay on him.

62 Macrobius, Saturnalia 1. 16. 14.

63 Ulp., lib. 1 de off. cos., D. 2. 12. 7 and D. 50. 16. 99. 2; Paul, lib. 5 sent., D. 2. 12. 10; Call., lib. 1 cogn., D. 5. 1. 36 pr.; Pap., lib. 3 resp., D. 5. 1. 45 pr.; CJ 3. 11. 1 (a.d. 294); Bethmann-Hollweg, 11. 177.

64 Ulp., D. 2. 12.7.

65 The question is discussed for comperendinatio by Girard, P., Histoire de l'organisation judiciaire des romains 1 (1901), 87Google Scholar n. 2 (in favour of understanding it as a minimum interval) and Bertolini, C., Appunti didattici di diritto romano (seconda serie): Il processo civile 1 (1913), 119 n. 2 (against).Google Scholar

66 Tab. Pomp. 24 speaks both of intertium and ex die perendino iudicare. But it is unclear whether this is (a) tautology, the second term adding nothing, since intertium means ‘an adjournment to the third day’, or (b) precision, specifying the day for the hearing to begin, since intertium denotes only ‘adjournment’.

67 Evidence for the involvement of the magistrate in other circumstances once process has begun before the judge is scant, although Ulp., lib. 14 ed., D. 5. 3. 5 pr. does show that the magistrate might intervene even after litis contestatio and cognoscere causam to make sure that assets of an inheritance were not depleted; cf. Bethmann-Hollweg, 11. 107.

68 Ulp., lib. 51 Sab., D. 2. 1. 13. 1 and D. 5. 1. 59; Wlassak, JB, 50 ff., 84 ff.; Bethmann-Hollweg, 11. 108.

69 If the iudicare iubere included the time and place for the judge to hear the case, and intertium modified these, the following considerations arise: (i) What sort of reference to time was made? It seems unlikely that the iudicare iubere, which was issued in iure when the judge need not be present, could have set a precise time for a hearing. It is more likely that it imposed a time limit within which judgement was to be given, (ii) This is consistent with chapter 91 of the law, which seems to indicate the existence of a time limit earlier than that for mors litis (which for iudicia legitima was 18 months: G. 4. 104): it provides (11. 51 ff.) that if there has been neither diffissio nor judgement, the case is to be at the peril of the judge; and that if the time limit has been exceeded, the matter is to cease to be before the court (in iudicio). This appears to suggest that the judge could be failing in his duty if he did not pronounce judgement by a certain point which was earlier than mors litis; and it should be stressed that the law does not suggest that its provisions apply only to a restricted range of cases. The conclusion that there was an earlier limit is unavoidable, unless it is the case that diffissio could prolong the tempus legitimum beyond its normal limit. This seems unlikely (contra, Kelly, J. M., Roman Litigation (1966), 122)Google Scholar. (iii) If this is right, the Lex Irnitana provides further evidence of the iudex ad tempus datus in formulary process. Hitherto most evidence has been explicable as relating to cognitio: Ulp., lib. 3 ed., D. 5. 1. 2. 2 and lib. 1 de off. cos., D. 5. 1. 32. An exception is Ulp., lib. 51 Sab., D. 2. 1. 13. 1 which there is no reason to believe to relate to cognitio: although it is concerned with restrictions on the days for which the magistrate can exercise his iudicare iubere, implicit in the whole discussion is that he can set a day—or at least a limit: Wlassak JB, 71–2. (iv) It may be, then, that we should suppose that even in formulary process the magistrate normally imposed a limit. But this will require further research.

70 Comperendinatio gradually took on a more general meaning of ‘adjournment’ or ‘postponement’: Th. Kipp, RE, s.v. iv. 789, 45 ff.; TLL s.v. 2.

71 Grounds for diffissio appear already in XII tables 2. 2 but are restricted to two: morbus sonticus and status dies cum hoste;cf. Ulp., lib. 74 ed., D. 2. 11. 2. 3. The list was evidently extended, as indicated by the Lex Ursonensis 95 (FIRA 1. 21), on which see d'Ors, A., Epigrafía jurídica de la España romana (1953), 223–4Google Scholar. It is worth noting here again that the Lex Irnitana need not elaborate these grounds since it is able instead to rely on the enumeration in the Lex Iulia de iudiciis privatis promulgated in the meantime. The conception of diffissio as a necessary adjournment forced upon the parties and judge by external circumstance is clearest in Jul., lib. 5 dig., D. 42. 1. 60.

72 Intertium is not dependent on agreement of the parties, which appears to be required only for adjournment to days which are actually holidays; but contrast Gonzàlez (1986), 234 on chapter 90 1. 26.

73 This amounts to the iudex qui litem suam jacit: see A. d'Ors, SDHI 48 (1982), 368–94; P. Birks, TR 52 (1984), 373–87.

74 At this point it is worth referring to other theories on intertium, of which so far only two have been published: (a) J. A. Crook, ZPE 29 (1978), 229–39 at 231–2, which of course pre-dates the discovery of the Lex Irnitana. Our new evidence forces us to reject the theory put forward, which connects intertium with entritos (found in the Gloss) and with the intertiare of the Frankish legal sources, and therefore suggests that intertium sumere is to be translated ‘sequestrate’. (b) A. d'Ors (1983), 40–4 deals specifically with the Lex Irnitana. His interpretation conflicts at many points with that offered here, and is as follows: (i) intertium is the same as comperendinatio; (ii) on the first day a decree of intertium is obtained, on the next (i.e. ‘in biduo proximo’, see n. 52 above) a denuntiatio is made, and on the third day the case is heard. No reasoning is given for this reconstruction, for instance why the decree should precede the denuntiatio; (iii) the law is dealing with provincial practice: there was no denuntiatio at Rome: a curious conclusion since the law establishes for Irni the same right of denuntiatio as exists at Rome; (iv) the law introduces the system of intertium and denuntiatio in place of the in ius vocatio and vadimonium of ordinary procedure. But since intertium relates to the stage of process beyond litis contestatio this is untenable, (c) A further unpublished version suggested to me is that intertium is connected in some way with bringing on the case (like the later denuntiatio). This seems to face two difficulties: first, that it is not clear how the parties and judge can have an opportunity to agree (as the text says they do) to intertium, since until the end of proceedings in iure the judge is not appointed, let alone present; second, that there is no reason in this case why the magistrate's liability should increase day by day. If the magistrate must grant an intertium so that the case can be heard, the only prejudice that can arise to a case is that, if it is not a perpetual action, the right to bring it may lapse because of the magistrate's delay. But this is not exacerbated day by day once that limit has been passed. In any case, a restitutio in integrum was provided precisely for the event that a plaintiff's claim had expired before he had been able to make it good for reasons attributable to the magistrate (per magistratus): Ulp., lib. 12 ed., D. 4. 6. 1. 1; D. 4. 6. 26. 4–7; Savigny, C.F. v., System des heutigen römischen Rechts vii (1848), 182Google Scholar. For further discussion of the problems of intertium, see now the discussion by J. A. Crook, D. E. L. Johnston, P. G. Stein, forthcoming in ZPE.