to have been made in the cases brought before the king; the more important were tried by himself in person, the less important transmitted to judges chosen from the Senate.[1] This may be the germ of a distinction which is said to have been perfected by Servius Tullius. Crimes affecting the public welfare he tried himself; wrongs done to private individuals he entrusted to others.[2]
This principle of delegation is mentioned only in connexion with criminal jurisdiction. But, whatever its extent, it necessitated the grant by the magistrate to his delegate of a formula or lex, which was the expression of jus. This jus, "that which is right or fitting," expressed the order of society, as realised through human agency, not directly through the divine will.[3] It is possible that even in early Rome it was treated as a right, a faculty of action (facultas agendi) or liberty enjoyed by one man against another, by individuals against corporations or by corporations against individuals. The differentiation between the rights of the state and the rights of the individual, always marked in procedure long before it is formulated in theory, finds expression in the change which tradition attributes to Servius.[4] But there was never any clear line of demarcation between the two spheres. Much of what we call criminal law was at Rome a matter for civil actions dependent on private initiative, and such actions could in early times be brought only by the head of the family. But in so far as the early Romans had a criminal law, in so far, that is, as an offence against the individual could be regarded as a wrong done to society, this law was a part of the jus publicum.
The king was the sole exponent of this sense of violated right, and the sole interpreter of the jus fixed by custom or by law. Over the penalty he probably had little control. It was enjoined in his ruling and carried out by his lictors; but, in its various. It is difficult, however, to determine whether the reference is to civil wrongs or to crimes.](Servius Tullius) [Greek: dielôn apo tôn idiôtikôn (enklêmatôn) ta dêmosia, tôn men eis to koinon pherontôn adikêmatôn autos epoieito tas diagnôseis, tôn de idiôtikôn idiôtas etaxen einai dikastas, horous kai kanonas autois taxas, hous autos egrapse nomous]. The principle here described perhaps refers to delegation rather than to the distinction between jus and judicium in civil process.]
- ↑ Dionys. ii. 14 (amongst the powers of the king were) [Greek: tôn te adikêmatôn ta megista men auton dikazein, ta d' elattona tois bouleutais epitrepein
- ↑ ib. iv. 25 [Greek: ekeinos
- ↑ For derivations of jus see Clark Pract. Jurisprudence pp. 16-20; Bréal "Sur l'origine des mots designant le droit en Latin" in Nouvelle Revue Historique de droit vol. vii. (1883) pp. 607 sq.
- ↑ Dionys. l.c.
