possibilities of judicial tyranny. For two hundred years (509-304) the knowledge of the forms of procedure, the legis actiones, which formed the whole content of the civil law, was open to the patrician pontiffs alone.[1] We are told that, even after the outlined codification and publication of the law in the Twelve Tables, the formularies could only be repeated correctly under the guidance of the college, which for this purpose annually appointed one of its members to "preside over private suits." It is true that the theory of civil procedure was the same as it had been in the time of the monarchy; the magistrate decided what special rule of process was applicable, and then the case was settled by an arbitrator chosen by the litigants.[2] But the magistrate must often have been unskilled, one of the college must always have stood by his side, and the pontiff so officiating was not merely an adviser to the parties but a witness to the performance. The pontiffs, however, were more than interpreters. They had, as the guardians of fas, their own sphere of law, relics of which survived into the late Republic, and within this sphere they were judges. They had a graduated scale of expiations for sins (piacula); they were the police who protected the sanctity of festal days (feriae), and inflicted spiritual penalties on the magistrate himself who dared to exercise jurisdiction on a day which they had declared holy; they issued and enforced commands which protected sacred places (loci sacri) and burial-grounds.[3] Vows (vota), to be effective, must be prescribed by them, and peculiarly efficacious were those fixed forms of prayer (certae precationes) which they had dictated word for word (de scripto praeire).
Against this phalanx of patrician power what forces could the Plebeians boast?
A certain amount of voting power in the comitia was all
- ↑ Pompon. in Dig. 1, 2, 2 (§ 3) "exactis deinde regibus . . . omnes leges hae exoleverunt iterumque coepit populus Romanus incerto magis jure et consuetudine aliqua uti quam per latam legem, idque prope quinquaginta (MSS. "viginti") annis passus est." After the Twelve Tables (§ 6) "ex his legibus . . . actiones compositae sunt, quibus inter se homines disceptarent: quas actiones ne populus prout vellet institueret, certas sollemnesque esse voluerunt . . . Omnium tamen harum et interpretandi scientia et actiones apud collegium pontificum erant, ex quibus constituebatur, quis quoquo anno praeesset privatis."
- ↑ p. 64.
- ↑ The later praetorian interdicts (de locis sacris, de mortuo inferendo) are really within the domain of fas and must at one time have been enforced by the pontiffs.
