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p681 Lex

The more general section (pp681‑683) of an article by George Long, M.A., Fellow of Trinity College
on pp681‑702 of

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

LEX. Lex is defined by Papinian (Dig. 1 tit. 3 s1):— "Lex est commune praeceptum, virorum prudentium consultum, delictorum, quae sponte vel ignorantia contrahuntur, coercitio, communis reipublicae sponsio." Cicero I (de Leg. I.6) defines it thus:— "Quae scripto sancit quod vult, aut jubendo, aut vetando" (see also de Leg. II.16). A Law is properly a rule or command of the sovereign power in a state, published in writing, and addressed to and enforced upon the members of such state; and this is the proper sense of Lex in the Roman writers.

In the Institutes (1 tit. 2 s4) there is a definition of a Lex, which has a more direct reference to that power which is the source of law:— "Lex est quod Populus Romanus senatorio magistratu interrogante, veluti Consule, constituebat." The definition of Capito (Gell. X.20) is "Generale jussum populi aut plebis rogante magistratu;" p682but this definition, as Gellius observes, will not apply to such cases as the Lex about the Imperium of Pompeius, or that about the return of Cicero, which related only to individuals, and were properly called Privilegia.

Of Roman Leges, viewed with reference to the mode of enactment, there were properly two kinds, Leges Curiatae and Leges Centuriatae. Plebiscita are improperly called Leges, though they were Laws, and in the course of time had the same effect as Leges.

Originally the Leges Curiatae were the only Leges, and they were passed by the populus in the Comitia Curiata. After the establishment of the comitia centuriata, the Comitia Curiata fell almost into disuse; but so long as the Republic lasted, and even under Augustus, a shadow of the old constitution was preserved in the formal conferring of the Imperium by a Lex Curiata only, and in the ceremony of adrogation being effected only in these Comitia. [Adoptio.]

These Leges, properly so called, with which we are acquainted, were passed in the Comitia Centuriata, and were proposed (rogabantur) by a magistratus of senatorial rank. Such a Lex was also designated by the name Populi Scitum (Festus, s.v. Scitum Pop.). As to the functions of the Senate in legislation, see Auctor and Senatus.

Plebiscitum was a law made in the Comitia Tributa, on the rogation of a Tribune: "Plebiscitum est quod plebs plebeio magistratu interrogante, veluti Tribuno, constituebat." (Inst. 1 tit. 2 s4). "Accordingly," says Gaius (I.3), "formerly the patricii used to say that they were not bound by Plebiscita, because they were made without their sanction (sine auctoritate eorum); but afterwards the Lex Hortensia was carried (B.C. 288), which provided that Plebiscita should bind the whole populus (in the larger sense of the word), and thus they were made of equal force with Leges" (Liv. VIII.12; Gell. XV.27; Leges Publiliae.)

When the Comitia Tributa were put on the same footing as the Centuriata, the name Lex was applied also to Plebiscita, and thus Lex became a generic term, to which was sometimes added the specific designation, as Lex Plebeivescitum, Lex sive Plebiscitum est [Plebiscitum].

Cicero, in his enumeration of the sources of Roman law (Top. 5), does not mention Plebiscita, which he undoubtedly comprehended under "leges". Various Plebiscita are quoted as leges, such as the Lex Falcidia (Gaius, II.227) and Lex Aquilia (Cic. pro Tullio, 8.11). In the Table of Heraclea the words "lege plebivescito" appear to refer to the same enactment; and in the Lex Rubria there occurs the phrase "ex lege Rubria sive id plebiscitum est" (Savigny, Zeitschrift, &c. vol. IX p355).

The word Rogatio (from the verb rogo) properly means any measure proposed to the legislative body, and therefore is equally applicable to a proposed Lex and a proposed Plebiscitum. Accordingly there occur the expressions "populum rogare," to propose a lex to the populus; and "legem rogare," to propose a lex (Festus, s.v. Rogatio). A Rogatio then is properly a proposed lex or a proposed plebiscitum. The terms Rogare, Rogatio also apply to a person being proposed for a magistratus at the Comitia (Sall. Jug. 29). The form of a Rogatio, in the case of Adrogatio, which was effected at the Comitia Curiata (per populi rogationem), is preserved by Gellius (V.19): it begins with the words "Velitis, jubeatis, &c.," and ends with the words "ita vos Quirites rogo." The corresponding expression of assent to the Rogatio on the part of the sovereign assembly was, Uti Rogas. The rejection of a Rogatio is expressed by Antiquare Rogationem (Liv. XXXI.6). The term Rogatio therefore included every proposed Lex, Plebiscitum, and Privilegium, for without a Rogatio there could be no command (jussum) of the Populus or Plebs. But the words Lex, Plebiscitum, and Privilegium were often improperly used to express laws (Gell. X.20); and Rogationes, after they had become laws, were still sometimes called Rogationes. The term Rogationes is often applied to measures proposed by the Tribunes, and afterwards made Plebiscita: hence some writers (improperly) view Rogatio as simply equivalent to Plebiscitum. Besides the phrase "rogare legem," there are the phrases "legem ferre," to propose a Lex, and "rogationem promulgare," to give public notice of the contents of a Lex which it was intended to propose; the phrase "rogationem accipere" applies to the enacting body. "Lex Rogata" is equivalent to "Lex Lata." Legem perferre and Lex perlata apply to a Rogatio when it has become a Lex (Dig.35 tit. 2 s1 Ad legem Falcidiam). The terms relating to legislation are thus explained by Ulpian (tit. 1 s3):— "A Lex is said either rogari or ferri; it is said abrogari, when it is repealed; it is said derogari, when a part is repealed; it is said subrogari, when some addition is made to it; and it is said obrogari, with some part of it is changed." A subsequent lex repealed or altered a prior lex which was inconsistent with it. It appears to have been also a principle among the Romans that a Law by long desuetude became of no effect (cf. Liv. XXI.63, and Cic. in Verr. V.18).

As to their form, we can judge of the Roman style of legislation by the fragments which exist. The Romans seem to have always adhered to the old expressions, and to have used few superfluous words. Great care was taken with such clauses as were proposed to alter a former lex, and great care was also used to avoid all interference with a former lex, when no change in it was intended. The Leges were often divided into chapters (capita) (see the tablet of the Lex de Gallia Cisalpina; and Cic. ad Att. III.23). The Lex was cut on bronze (aes) and deposited on the Aerarium (Suet. Caes. 28; Plutarch, Cat. Min. 17). Probably the fixing of a Lex in a public place was generally only for a time (Cic. ad Att. XIV.12). The title of the lex was generally derived from the gentile name of the magistratus who proposed it, as the Lex Hortensia from the dictator Hortensius. Sometimes the lex took its name from the two consuls or other magistrates, as the Acilia Calpurnia, Aelia or Aelia Sentia, Papia or Papia Poppaea, and others. It seems to have been the fashion to omit the word et between the two names, though instances occur in which it was used [Julia Lex et Titia.] A lex was also often designated, with reference to its object, as the Lex Cincia de Donis et Muneribus, Lex Furia Testamentaria, Lex Julia Municipalis, and many others. Leges which related to a common object, were often designated by a collective name, as Leges Agrariae, Judiciariae, and others. Sometimes p683a chapter of a lex was referred to under the title of the lex, with the addition of a reference to the contents of the chapter, as Lex Julia de Fundo Dotali, which was a chapter of the Lex Julia de Adulteriis. A lex sometimes took its name from the chief contents or its first chapter, as Lex Julia de Maritandis Ordinibus. Sometimes a lex comprised very various provisions, relating to matters essentially different, and in that case it was called Lex Satura [Lex Caecilia Didia, Lex Julia Municipalis.]

The terms in which a Lex was expressed were fixed by the person who proposed it; but in many cases probably he would require the assistance of some person who was acquainted with technical language. A Lex was proposed to the Comitia in its entire form for acceptance or rejection: there was no discussion on the clauses, and no alteration of them in the Comitia, and indeed discussion of details and alteration were impossible. The Sanctio of a Lex (Rhet. ad Herenn. II.10; Papinian, Dig. 48 tit. 19 s41) made a Lex which the Romans call Perfecta. In a Lex Perfecta, the act which is done contrary to the provisions of the Lex, is declared by the Lex to be null. If a Lex did not contain this Sanctio, it was called Imperfecta. A Lex was called minus quam perfecta, when the act which was done contrary to its provisions was not declared null, but the Lex imposed a penalty (Savigny, System, &c. vol. IV p549, &c.). This division of Leges into Perfectae, &c. is obviously only applicable to such Leges as referred to what the Romans called the department of Privatum Jus.

The number of Leges was greatly increased in the later part of the republican period (Tacit. Ann. III.25‑28), and Julius Caesar is said to have contemplated a revision of the whole body. Under him and Augustus numerous enactments were passed, which are known under the general name of Juliae Leges [Juliae Leges.] It is often stated that no Leges, properly so called, or Plebiscita, were passed after the time of Augustus; but this is a mistake. Though the voting might be a mere form, still the form was kept; and if this were not so, the passage of Gaius (I.2, &c.), in which he speaks of leges and plebiscita as forms of legislation still in use, would not be correct. Besides, various leges are mentioned as having been passed under the Empire, such as the Lex Visellia, a Lex Agraria under Caligula, and a Lex Claudia on the tutela of women (Gaius, I. 157, 171). It does not appear when the ancient forms of legislation were laid aside, but they certainly long survived the popular elections to which alone the passage of Tacitus (Ann. I.15) refers.

In the Digest a Senatusconsultum is sometimes referred to as a Lex (14 tit. 6 s9 § 4; s14); in which there was no great impropriety if we have regard to the time, for Senatusconsulta were then laws. Still a Senatusconsultum, properly so called, must not be confounded with a Lex properly so called; and there is no reason for supposing that the Lex Claudia of Gaius was a Senatusconsultum, for when he speaks of a Senatusconsultum of the time of Claudius, he calls it such (I.84, 91). However there is no mention of any Lex being enacted later than the time of Nerva (Dig. 47 tit. 21 s3 § 1).

It remains further to explain the words Rogatio and Privilegium.

Rogatio is defined by Festus to be, a command of the Populus relating to one or more persons, but not to all persons; or relating to one or more things, but not to all. That which the Populus has commanded (scivit) with respect to all persons or things is a Lex; and Aelius Gallus says, Rogatio is a genus legis; that which is Lex is not consequently (continuo) Rogatio; but Rogatio must be Lex, if it has been proposed (rogata) at legal comitia (justis comitiis). According to this definition a rogatio, when enacted, is Lex; there is also Lex which is not rogatio: therefore we must assume a general name Lex, comprehending Lex Proper and Rogatio. The passage of Aelius Gallus is emended by Goettling (Geschichte der Röm. Staatsv. &c. p310); but his emendation is founded on mistaking the sense of the passage, and it converts the clear meaning of Gallus into nonsense. According to the definition of Gallus, Rogatio was equivalent to Privilegium, a term which occurred in the Twelve Tables (Cic. de Leg. III.19); and it signified, according to Gallus, (Festus, s.v. Rogatio) an enactment that had for its object a single person, which is indicated by the form of the word (privi-legium), "privae res" being the same as "singulae res." The word privilegium, according to the explanation of Gallus, did not convey any notion of the character of the legislative measures: it might be beneficial to the party to whom it referred, or it might not. It is generally used by Cicero in the unfavourable sense (pro Domo, 17; pro Sestio, 30; rogationem privilegii similem, Brut. 23). Accordingly in the Republican period Privilegia were not general Laws or parts of the general Law: they bear the character of an exception to the general rule. In the Corpus Juris Privilegium is the common name for a Jus Singulare, the meaning of which is explained by Savigny (System, &c. I. p61).

The meaning of Lex, as contrasted with Jus, is stated in the article Jus.

Some other significations of Lex, which are not its proper significations, are easily explained; for instance, Lex is used to express the terms or conditions of a contract, apparently with reference to the binding force of all legal contracts. In English instruments which contain covenants, it is often expressed that it shall be "lawful" for one or more of the parties to do a certain act, by which is simply meant that the parties agree about something, which is legal, and which therefore makes a valid agreement. The work of Marcus Manilius (Cos. B.C. 149) on sales is quoted by Cicero (de Or. I.58) as "Manilianas venalium vendendorum leges" (see Dig. 18 tit. 1 s40, where Lex means conditions of sale). Accordingly we find the expression Leges Censoriae to express the conditions on which the censors let the public property to farm; and perhaps the term also signified certain standing regulations for such matters, which the censors were empowered to make (Frag. de jure Fisci, s18; Dig. 50 tit. 16 s203). In both the cases just referred to, the phrase Lex Censoria is used (in the singular number); and this Lex, whether a Law proper or not, seems to have been divided into chapters.

Lex simply sometimes signifies the laws of the Twelve Tables.

The remaining 19 pages of fine print that Dr. Smith places under the heading Lex shift to an enumeration and discussion of many hundreds of individual laws. In this Web edition, in order to give you pages of a manageable size, I have preferred to put this material on a separate page: Leges.

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Page updated: 17 Jan 09