The Roman Legal System
Rome's continuing influence on society today is apparent in the government structure and legal system in use in much of
the western world. As codified by Gaius during the Flavian dynasty, Roman law is the basis for most European legal
systems and laws today. In this system, all laws are listed by crimes in one or more books. In England and the United
States a parallel system, called Common Law, is the basis for our legal system: judgments and punishments are based on
precedent, that is, on rulings that judges and juries have made in the past. But we can see the Latin influence, and most
promimently, in the legal system of the United States in the language of our courts.
Development of Legal Codes
Most early civilizations were ruled by custom or by the arbitrary judgments of kings or priests. Laws -- and the
punishments for not obeying them -- were at the whim of the ruler. However, at Rome in 450 BC there was a revolt of
plebs who felt they were entitled to know and be able to interpret the code of laws. Thus the Twelve Tables were
established. A ten-man commission with extraordinary powers, known as the decemviri legibus scribundis, set forth the
basis of law for all Roman citizens. The Twelve Tables was a complete ius civile. They covered all areas of the law,
emphasizing the procedure that was to be followed for various crimes. They made the law transparent and, in theory,
applicable to all citizens. But the wealthy generally found ways to escape judgment.
The laws of the Twelve Tables were never repealed, but some fell into disuse over time. Consider the extent of time -a thousand years -- that Rome's republic and empire included: the Twelve Tables were established in 450 BC; about
600 years later, at around AD 160, the jurist Gaius wrote commentary about Roman law; approximately 400 years
later, the emperor Justinian engaged jurists to make a comprehensive compilation of Roman laws. Thus, although we
don't have a copy of the original Twelve Tables, we know what some of the laws said. Still, we have rather limited
knowledge of the application of the law, especially with regard to women, the lower classes, or peoples outside of
Rome. We do know somewhat of how the laws were applied to members of the upper classes but -- again -- our
knowledge is limited about the extent to which bribery and corruption altered the course of justice. This is because
most of our knowledge comes from the writings of upper class Roman men.
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 retained their influence in Roman
courts even afterwards. "Standing jury courts" -- quaestiones perpetuae -- basically comprised the criminal courts of
the late Republic. There were several such courts, each one dealing with a different statutory offense. The large juries
were drawn from a list of upper class citizens and made their rulings by majority vote. The option of appeal did not
become available until after Augustus' rule.
Crime and Punishments
Crime, especially violent crime, increased during the Punic Wars as the lower class were forced from their small farms
by large farm owners. They moved to Rome and swelled the population there. Slaves as well were brought to Rome as
a consequence of the wars, which created mass unemployment amongst the people. Idleness also led to the increase of
crimes.
Anyone accused of a crime could be brought by his accuser to answer in front of the praetor urbanus. A dispute could
also be settled by a junior magistrate, a triumvir, one of tres viri capitales. If a criminal was caught red-handed or
confessed the deed, punishment was inflicted without trial. If he claimed innocence and was a reputable citizen, trial
was held before the praetor; otherwise, he was tried in front of a triumvir. In both instances, an advisory commission
(consilium) was called to determine the question of guilt. And in either case, the punishment, we think, was severe.
Not much has been written about punishments of lower class folk. Less serious crimes were frequently punished
through a policy of "an eye for an eye." The death penalty was assigned for crimes of violence; incendiarism;
poisoning; theft; carrying weapons with criminal intent; possession, purchase or sale of poison; false witness; adultery;
and counterfeiting. The death penalty was enforced by burying alive, throwing from a cliff, or burning to death (think
how lucky Americans are to be protected by our Constitution from "cruel and unusual punishment"). For lesser crimes,
plebeians were scourged or sent to work in the mines. However, in 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.
Such strict punishment was generally enforced only on criminals of the lower class. Members of the senatorial and
equestrian classes were generally exiled for a specific period of time; food and water were forbidden to them within a
given distance of Rome; and their property was confiscated. If there seemed no way to avoid a capital conviction, the
accused patrician often commited suicide prior to trial, thus avoiding both the conviction and the resulting ignominy.
There is some contradictory evidence about whether a Roman citizen could ever be given the death penalty. But many
of the punishments that members of the lower classes received were, in practical effect, a sentence to death. If a Roman
were accused while in a province, he could not be put to death, flogged, tortured, or even be put in chains by verdict of
the provincial court. The citizen could petition to be sent to Rome for his trial. If a crime was significant, the accused
could be sent to Rome, even against his will, for a trial.
Imprisonment
Perhaps the greatest difference between Roman and contemporary legal systems is the use of prisons. Roman prisons
were not used to punish criminals but instead served to hold persons in detention, awaiting either trial or execution.
Those who disobeyed court magistrates could also be imprisoned. The wealthy were generally held under house arrest
at the home of a friend who would guarantee their presence at the trial. Private prisons existed for the detention of
slaves.
Trial Advocacy
The role of a Roman lawyer differed considerably from that in the United States. The individual plaintiff and defendant
were largely responsible for their own representation. Throughout the proceedings, the lawyer, or patronus, could offer
strategic advice and could give a speech on behalf of his client, but he was not allowed to be paid money for his
services.
Lawyers were not trained in law but rather in the art of speaking. During their training they would listen to the
speeches of other advocates and learn of the law in this fashion. 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. Some
lawyers did record their cases of interest, for which we today are grateful.
Trial Procedure
The procedure of a trial differed somewhat under the Republic and under the Empire. In Republican times any citizen
could press charges against another through a patronus acting as his advocate. The charge had to be in inscriptione (in
writing), signed by both delator and subscriptores (accuser and witnesses) and delivered to the praetor (judge).
Praetores were in charge of the law courts and presided over the quaestiones (jurors). Eight praetors were elected each
year to administer justice in the courts. In BC 366 plebeians were finally allowed to run for this important office, but
since there was no pay and considerable expense few were interested in the position.
The accused had to be present at the nominis delatio (making a formal charge). The delator and the subscriptores swore
oaths that they would not bring false witness -- and penalties were assessed against the delator, if he or his witnesses
should be found later to have lied. The accuser could ask for as many as 48 subscriptores during the inquisitio, or
hearing of the evidence. All witnesses could be questioned and subjected to speeches attacking their credibility. Rules
for permitting evidence would seem to us to have been very lax, and the court considered the written word or spoken
word as legally binding. The accused was allowed one and a half times the total speaking time of the prosecution. To
cast his vote, each juror in secret erased a 'C' (Condemno) or an 'A' (Absolvo) from a pre-marked tablet; the praetor then
announced the jury's decision.
Because it was easy to bring suit against another person, there were indeed many lawsuits, some of them frivolous, as
people were enticed by the material rewards if a suit were won. If the delator won his case, a praemium was given to
him. But if he lost, he was deemed to have committed a calumnia (false accusation) or a praevaricatio (collusion, or
conspiracy to prosecute falsely) and was fined.
Comparison of Criminal Justice Systems
in Ancient Rome and the modern United States
Title/role
Rome
U.S.
Judge/presider
Praetor or magistrate
Elected
Has consilium of three legal experts
to consult
Judge or Justice
Appointed or elected
Has at least some legal expertise and
extensive law library
Jury
Quaestiones
32 to 75 jurors, depending on type of
case
Chosen from album judicum, list of
men of senatorial or equites class
Verdict decided by majority vote
Usually 12 jurors
Selected from a panel of citizens
Individually examined, accepted, or rejected
by prosecution and defense
Verdict usually must be unanimous
Verdict
C = condemno, A = absolvo
By secret ballot
Result announced by praetor
Guilty or not guilty
By unanimous decision but each juror's vote
can be polled in open court
Decision read aloud by judge
Prosecutor
Accusator
Private citizen
Public official elected or appointed
Defense attorney
Patronus or advocatus
May not accept money, although
Professional lawyer
Accepts retainer or fee or works pro bono
favors allowed
publico
Defendant
Reus
Innocent until proven guilty
Kept under house arrest or
imprisoned until trial
Usually in private home
Innocent until proven guilty
Imprisoned or free on bail or own word until
trial
Witnesses
Subscriptores, required by
magistrate's subpoena
Subpoena can be issued
Scribae to record events
Recorder/stenographer
Makes word-for-word transcript of
proceedings (required in event of appeal)
Clerks
Under the Empire trial procedures changed somewhat. Professional delatores were many because of the monetary
awards ('praemia') that might be won. The senate took over as quaestiones in three criminal courts that were presided
over by the emperor, the consuls, or the prefect of the city. These three courts were exempted from provocatio ad
populum (appeal to be tried by a jury).
The first step was the postulatio or application for a hearing; then, the nominis delatio, the formal charge by a delator
with his subscriptores present; the consuls next summoned the senate to determine if charges should be heard as one
charge or should be divided; next was the inquisitio, in which evidence was heard; debate followed -- and speeches
were limited by a water clock -- and finally a vote on the verdict.
The praetors and propraetors (governors) published a list of principles and formulae of their practices in the form of
edicts at the beginning of each term. Although each could effectively alter the formulae, in general the list remained the
same. (Imagine the chaos and work involved if each had dictated a different set of rules to be in place for only one
year!)
Let's look at a sample of specific judgments that were handed down:
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If one admits to stealing or killing an animal or slave, he must pay the rightful owner the value of the property. If he
denies the action and is found guilty, he is then required to pay double the value.
A thief caught in the night could be killed, if 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, if his son is 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 person.
Incendiaries should be killed by fire.
A cleaner can bring charges against a thief who stole clothing from him IF the cleaner is solvent. If he is not, by
having nothing he risks nothing in bringing suit, and so the charges must instead be pressed by the actual owner of
the stolen clothing.
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 Roman legal system is indeed different from what we follow but there are parallels in the roles of the participants,
in the value of established procedure and precedent, and particularly in the many Latin terms and phrases that are still
part of our legal language today.
Joan Jahnige, May 2002 (revised 2006)
Sources for Roman Law and Government pages
Justinian: The Digest of Roman Law, translated by C.F. Kilbert, Penquin Classics, 1979.
Legal Latin, Dr. R. Masciantonio, American Classical League.
Life and Law of Rome, A.J. Crook, Cornell University Press 1967.
As the Romans Did, Jo Ann Shelton, Oxford University Press 1988, pp. 242-8, 277.
Children of Romulus, G.B. Cobbold, Longman Press 1995 pp. 137-8.
The Romans, Karl Christ, University of California Press 1984 pp. 121-132.
Web site: www.jura.uni-sb.de/Rechtsgeschichte/Ius.Romanum.
Roman Citizenship
Possession of citizenship was desired by Romans and barbari alike. Besides making one safe from the death penalty,
a Roman citizen enjoyed:
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suffragium - the right to vote
commercium - the right to make contracts
conubium - the right to contract a legal marriage
Citizens did have responsibilities: they were taxed, and the men needed to complete a term of military service (in fact,
only a citizen could become a Roman legionary). Only a citizen could use the praenomen-nomen-cognomen set of
names.
A complex set of rules determined who was or was not a Roman citizen. One could be a citizen by virtue of one's birth
if certain circumstances applied. If both mother and father had conubium, the child was deemed a citizen and held the
social class of its father (e.g., eques, patrician, plebeian). If a Roman citizen had a child outside of conubium, the child
took the status of its mother. If the mother was not a citizen, the child was not a Roman citizen and could even be a
slave.
Children born to Roman legionaries during their military service were NOT citizens. it was illegal for legionaries to
wed while serving their 20-year tour of duty and, thus, there could be no conubium. Since the mothers of legionaries'
children generally were not Roman citizens themselves, in the eyes of Roman law the children simply received the
status and nationality of the mother.
Factors other than birthright arose over time to determine citizenship:
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Latini, people from the Latin states, who took up residence in Rome were granted a class of citizenship
with limited rights.
Slaves, upon being freed, became citizens.
Peregrini, foreigners living in conquered lands, could be given full or partial citizenship.
Citizenship could be bestowed as a reward for service to the state. For example, citizenship was eventually
granted to all who served as Auxilii (Peregrini who served as auxiliary troops).
In AD 212, all free inhabitants of the empire were finally granted citizenship.
Joan Jahnige, May 2002
Sources for these Law and Government pages:
Justinian: The Digest of Roman Law, translated by C.F. Kilbert, Penquin Classics, 1979.
Legal Latin, Dr. R. Masciantonio, American Classical League.
Life and Law of Rome, A.J. Crook, Cornell University Press 1967.
As the Romans Did, Jo Ann Shelton, Oxford University Press 1988, pp. 242-8, 277.
Children of Romulus, G.B. Cobbold, Longman Press 1995 pp. 137-8.
The Romans, Karl Christ, University of California Press 1984 pp. 121-132.
Web site: www.jura.uni-sb.de/Rechtsgeschichte/Ius.Romanum.
The Cursus Honorum
The Cursus Honorum was a sequence of government offices held by male citizens, usually of the patrician class, who
undertook the responsibility -- which they were expected to do -- of government service. One began the cursus at age
18 to 20 with a prerequisite of minimum property holdings of over one million sesterces, which was required to qualify
for eventual membership in the senate. The variety of offices gave the man diverse experience and increasing
responsibility in military and civilian affairs, in Rome and in Rome's provinces. Most of these offices were held for one
year only, and a candidate could not run again for a position he had already held until 10 years had passed.
The first office that a young man typically would run for was a post on the Vigintivirate as one of 20 serving on
commissions for the mint, roads management, or legal duties.
The next step would be to acquire two to three years of experience as military tribune in a legion.
At age 30 (or 25 after Augustus' reign) the next position one was eligible to run for was quaestor, or treasurer, which
also gave immediate admission to the rank of senator.
After quaestorship came two years of service either as tribune of the plebs or as aedile, a kind of public works
commissioner.
At age 39 (or age 30 in the empire) one could run for praetor.
After praetorship, one usually served in one of the provinces as propraetor (governor).
At age 42 under the Republic, one could finally run for consul, which was the peak of service. During the empire, a
senator of plebeian origin -- a so-called novus homo -- could become consul but usually not before 42 years of age,
whereas a patrician could do the same at age 33. To gain an office "during one's year" was to be elected to that
particular office at the earliest age possible. In 63 BC, Cicero, who was a novus homo, was elected consul -- and took
great pride in the fact -- "during his year."
After serving as consul one could stand for censor or serve as proconsul in the provinces.
Joan Jahnige, May 2002
Sources for Roman Law and Government pages
Justinian: The Digest of Roman Law, translated by C.F. Kilbert, Penquin Classics, 1979.
Legal Latin, Dr. R. Masciantonio, American Classical League.
Life and Law of Rome, A.J. Crook, Cornell University Press 1967.
As the Romans Did, Jo Ann Shelton, Oxford University Press 1988, pp. 242-8, 277.
Children of Romulus, G.B. Cobbold, Longman Press 1995 pp. 137-8.
The Romans, Karl Christ, University of California Press 1984 pp. 121-132.
Web site: www.jura.uni-sb.de/Rechtsgeschichte/Ius.Romanum.