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1. Public Law in Rome
- University of Michigan Press
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3 chapter one Public Law in Rome h in 81, at the conclusion of a bloody civil war, the Roman people approved a bill sponsored by L. Valerius Flaccus, as interrex, making L. Cornelius Sulla “Dictator for Writing the Laws and Restoring the State” (dictator legibus scribendis et rei publicae constituendae).1 Sulla’s first act as dictator was an innovation . By the authority of dictator granted him by the lex Valeria, Sulla posted the names of forty senators and sixteen hundred equestrians in the Forum with the directive that anyone who wished might kill with impunity the men whose names appeared there. Later more senators were added to the list. Eventually, a total of forty-seven hundred wealthy men of all ranks were proscribed and their property confiscated and sold or reassigned. The restoration of the Roman state had begun. Over the next eighteen months Sulla continued his campaign to restore order, sometimes on his own authority as dictator but often by the full process of public law requiring the sanction of the Roman people. The dictator promulgated at least twenty proposals, which the Roman people, when the scheduled day of voting arrived, in public accord embraced as law. Sulla stepped down as dictator in 80, his task completed.2 Thirty-four years later, in 46, C. Julius Caesar in his turn was created “Dictator for Writing the Laws and Restoring the State” during a bigger and more costly civil war.3 Over the next two years Caesar presented at least twelve public law proposals. Not since the Romans created a board of “ten men for writing the laws” (decemviri legibus scribendis) at the end of the fifth century had there been such intensive lawmaking efforts in Rome.4 But never before the dictatorships of Sulla and Caesar had public law been used so extensively and so directly to resolve specific political and social crises. For centuries the Romans reached decisions about law relating to the most critical aspects of their society in a public process concluded in the voting assemblies of Rome. The first reported public lawmaking occasion fell in the first year of the Republic, 509, when the first consul M. Iunius Brutus, in accordance with a Senate decree, carried a measure to exile all members of the Tarquin clan. The last reported occasion of certain date occurred during the reign of the emperor Nerva, CE 96–98, when the emperor himself presented a bill assigning land to poor Romans. In between lay roughly six hundred years and 750 unevenly reported public law proposals or enacted public laws. Over the many centuries of public lawmaking activity, the historical circumstances surrounding the production of public law are haphazardly recorded. It is paradoxical that the most famous public laws with the profoundest consequences are sometimes puzzlingly detached from precise historical circumstances. A plebiscite commonly known as the lex Aquilia de damno, for instance, dating perhaps to the early third century, between 287 (the date of the lex Hortensia making plebiscites binding on the entire Roman community) and 133–12 (the period of the Gracchi) provided the foundations for the fundamental Roman delict, or tort, dealing with wrongful damage to property, damnum iniuria datum. Roman jurists commented extensively on the meaning and application of relevant provisions of the lex Aquilia, much of their commentary surviving in the Digests, where it provides a clear measure of the importance of the lex Aquilia in the development of Roman private law. Yet we know next to nothing of the contemporary issues prompting a lawmaker possibly named Aquilius to draft and promulgate such a public law proposal and prompting the Roman plebs at some time reportedly in the first half of the third century to accept it as law.5 Why was this issue addressed in a public law at all, rather than by the praetor in his edict? Another famous public law, the lex Agraria of 111, owes its celebrity primarily to the accidents of survival facing a bronze tablet on which the law was engraved in the late second century, possibly in the Roman town of Forum Sempronia (Fossombrone) in Umbria.6 Ceremonially displayed in a town center or temple precinct, bronze tablets engraved with laws provided a monumental record of the enactments of Rome’s assemblies. Since very few such tablets have survived to the modern period, chance alone has given us a record of this single most instrumental public law in the development of Roman land tenure, 4 the laws...