on usury, or the lex Voconia on inheritance, as types of a multitude of others. In the matter of civil procedure also a fundamental change, such as that permitting the use of the formula in place of the legis actio in cases falling under the jus civile, required legislation.[1] Yet we feel that it is only a question of degree whether such changes are effected by the people or by the authority of individuals. In matters of substantive law immense changes were brought about by the interpreting authority of the praetor;[2] while in procedure also much was left to the discretion of pontiffs, magistrates, and jurists. The same principle of division of authority applies to police regulations. Wide as were the coercive powers of the magistrates, sweeping infringements on individual liberty, such as those created by the sumptuary laws, were the work of the people.
We may pause here to examine the form of a lex, and especially that portion of it which secured its validity—its sanction. A complete law contained three parts: (1) its preamble (praescriptio), which described the formal circumstances of its enactment;[3] (2) the text, in which a minute and exhaustive formalism was rigorously preserved; (3) the sanction, which contained the pains and penalties pronounced against those who violated the provisions of the enactment. A poena, however, was not of itself sufficient to constitute a perfect law. A lex perfecta was one which declared an act invalid and imposed a penalty for disobedience. The imposition of a penalty without the declaration of invalidity constituted a lex minus quam perfecta.[4] A law without a sanction was imperfecta.[5] The method of repeal most frequently practised at Rome was rather that of supersession than of the declaration of the nullity of the former enactment. Hence the sanction of laws often gives impunity to those who by obedience incur the pains and penalties pro-*Julias. Tribus Sergia principium fuit, pro tribu Sex. . . . L. f. Virro [primus scivit]."]
- ↑ This change was effected by a lex Aebutia (Gell. xvi. 10, 8; Gaius iv. 30).
- ↑ p. 205.
- ↑ The fullest praescriptio which has been preserved is that of the lex Quinctia de aquaeductibus, a consular law of 9 B.C. (Frontinus de aquaeductibus 129). It runs: "T. Quinctius Crispinus consul populum jure rogavit populusque jure scivit in foro pro rostris aedis divi Juli pr(idie) [k
- ↑ Ulpian Reg. praef. 2 "Minus quam perfecta lex est, quae vetat aliquid fieri et, si factum sit, non rescindit, sed poenam injungit ei qui contra legem fecit." The Licinio-Sextian agrarian law of 367 was apparently of this kind.
- ↑ Macrob. Comm. in Somn. Scip. ii. 17, 13 "inter leges quoque illa imperfecta dicitur, in qua nulla deviantibus poena sancitur."
