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 p267  Centumviri

Article by George Long, M.A., Fellow of Trinity College
on pp267‑268 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

CENTU′MVIRI. The origin, constitution, and powers of the court of centumviri are exceedingly obscure, and it seems almost impossible to combine and reconcile the various passages of Roman writers, so as to present a satisfactory view of this subject. The essay of Hollweg, Über die Competenz des Centumviralgerichts (Zeitschrift, &c., V.358), and the essay of Tigerström, De Judicibus apud Romanos, contain all the authorities on this matter; but these two essays do not agree in all their conclusions.

The centumviri were judices, who resembled other judices in this respect, that they decided cases under the authority of a magistratus: but they differed from other judices in being a definite body or collegium. This collegium seems to have been divided into four parts, each of which sometimes sat by itself. The origin of the court in unknown; but it is certainly prior to the Lex Aebutia, which put an end to the legis actiones, except in the matter of Damnum Infectum, and in the causae centumvirales (Gaius, IV.31; Gell. XVI.10). According to Festus (s. Centumviralia Judicia), three were chosen out of each tribe, and consequently the whole number out of the 35 would be 105, who, in round numbers, were called the hundred men; and as there were not 35 tribes till B.C. 241, it has been sometimes inferred that to this time we must assign the origin of the centumviri. But, as it has been remarked by Hollweg, we cannot altogether rely on the authority of Festus, and the conclusion so drawn from his statement is by no means necessary. If the centumviri were chosen from the tribes, this seems a strong presumption in favour of the high antiquity of the court.

The proceedings of this court, in civil matters, were per legis actionem, and by the sacramentum. The process here, as in the other judicia privata, consisted of two parts, in jure, or before the praetor, and in judicio, or before the centumviri. The praetor, however, did not instruct the centumviri by the formula, as in other cases, which is further explained by the fact that the praetor presided in the judicia centumviralia (Plin. Ep. V.1).º

It seems pretty clear that the powers of the centumviri were limited to Rome, or at any rate to Italy. Hollweg maintains that their powers were also confined to civil matters; but it is impossible to reconcile this opinion with some passages (Ovid, Trist. II.91; Phaedr. III.10, 35, &c.), from which it appears that crimina came under their cognizance. The substitution of aut for ut in the passage of Quintilian (Inst. Orat. IV.1 §57), even if supported by good MSS. as Hollweg affirms, can hardly be defended.

The civil matters which came under the cognizance of this court are not completely ascertained. Many of them (though we have no reason for saying all of them) are enumerated by Cicero in a well-known passage (De Orat. I.38). Hollweg mentions that certain matters only came under their cognizance, and that other matters were not within their cognizance; and further, that such matters as were within their cognizance, were also within the cognizance of a single judex. Hollweg maintains that actiones in rem or vindicationes of the old civil law (with the exception, however, of actiones praejudiciales or status quaestiones) could alone be brought before the centumviri; and that neither a personal action, one arising from contract or delict, nor a status quaestio, is ever mentioned as a causa centumviralis. It was the practice to set up a spear in the place where the centumviri were sitting, and accordingly the word hasta, or hasta centumviralis, is sometimes used as equivalent to the words judicium centumvirale (Suet. Octavian. 36; Quintil. Inst. Orat. V.2 §1). The spear was a symbol of quiritarian ownership: for "a man was considered to have the best title to that which he took in war, and accordingly a spear is set up in the centumviralia judicia." (Gaius, IV.16). Such was the explanation of the Roman jurists of the origin of an ancient custom, from which it is argued, that it may at least be inferred, the centumviri had properly to decide matters relating to quiritarian ownership, and questions connected therewith.

It has been already said that the matters which belonged to the cognizance of the centumviri might also be brought before a judex; but it is conjectured by Hollweg that this was not the case till after the passing of the Aebutia Lex. He considers that the court of the centumviri was established  p268 in early times, for the special purpose of deciding questions of quiritarian ownership; and the importance of such questions is apparent, when we consider that the Roman citizens were rated according to their quiritarian property, that on their rating depended their class and century, and consequently their share of power in the public assemblies. No private judex could decide on a right which might thus indirectly affect the caput of a Roman citizen, but only a tribunal selected out of all the tribes. Consistently with this hypothesis we find not only the rei vindicatio within the jurisdiction of the centumviri, but also the hereditatis petitio and actio confessoria. Hollweg is of opinion that, with the Aebutia Lex a new epoch in the history of the centumviri commences; the legis actiones were abolished, and the formula [Actio] was introduced, excepting, however, as to the causae centumvirales (Gaius, IV.30, 31; Gell. XVI.10). The formula in its nature adapted only to personal actions; but it appears that it was also adapted by a legal device to vindicationes; and Hollweg attributes this to the Aebutia Lex, by which he considers that the twofold process was introduced:— 1. per legis actionem apud centumviros; 2. per formulam or per sponsionem before a judex. Thus two modes of procedure in the case of actiones in rem were established, and such actions were no longer exclusively within the jurisdiction of the centumviri.

Under Augustus, according to Hollweg, the functions of the centumviri were so far modified that the more important vindicationes were put under the cognizance of the centumviri, and the less important were determined per sponsionem and before a judex. Under this emperor the court also resumed its former dignity and importance (Dial. de Caus. Corrupt. Eloq. c38).

The younger Pliny, who practised in this court (Ep. II.14), makes frequent allusions to it in his letters (Ep. I.5, V.1, IX.23). The centumviri are mentioned in two excerpts from the Digest (Dig. 5 tit. 2 s13, 17) and perhaps elsewhere; one excerpt is from C. Scaevola and the other from Paulus.

The foregoing notice is founded on Hollweg's ingenious essay; his opinions on some points, however, are hardly established by authorities. Those who desire to investigate this exceedingly obscure matter may compare the two essays cited at the head of this article.

Thayer's Note:

During the empire, the centumviri met in the Basilica Julia. One of the letters of Pliny the Younger, not cited above (V.9), gives a very good feeling for its proceedings: lots of noise from people simultaneously arguing different cases in flimsily partitioned areas of the building, lawyers playing to the crowds, etc.

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