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Moatti, Claudia
2009.
Le monde de l’itinérance.
p.
321.
Article contents
The Lex Rubria: Reconsiderations
Published online by Cambridge University Press: 24 September 2012
Extract
For the municipal jurisdiction of the Roman Republic, the bronze tablet found at Veleia, which is commonly and, as I assume, rightly called the Lex Rubria, is clearly important but it is not in all places intelligible. The law dealt with the conduct of a range of civil cases in the courts of Cisalpine Gaul, from the proceedings in iure and the granting of a formula to the appointment of a iudex (cf. ‘ex hac lege’ ch. xxi 24), the delivery of the iudicium (cf. ch. xx) and the methods of execution available to local magistrates. Together with another more carefully drafted fragment from Ateste, which is at least closely related and may be a portion of the same law (cf. ‘ex hac lege’ in lines 8–9), it offers a glimpse of the legal structure in a crucial period. The Lex Rubria is longer, less carefully drafted, and at the same time more obscure; whence some contributions are offered towards the meaning of the text (I, II, III) and its implications (IV).
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References
1 CIL I2 592; Bruns, Fontes, 97; Riccobono, FIRA, 169. Mommsen, (Ges. Schr. I, 192Google Scholar) suggested a lex data dependent on the Lex Rubria, mentioned in xx 29, 38, but has been clearly answered by Kipp, Gesch. d. Quellend. röm Rechts. 37 f. For bibliography, see Dizionario epigrafico, s.v. Lex, 730. cf. Hardy, Six Roman Laws, 110 ff., from which I differ substantially. Recent studies seem to have added little to the points here at issue.
2 cf. Wlassak, , ‘Konfessio in Jure und Defensions-weigerung nach der L.R.’ in Sb. Bayr. Akad., phil.-hist. Kl. 1934 (viii), 45 f.Google Scholar, who wrongly suspects omissions. The many ways of being indefensus were not all mutually exclusive, see Buckland, Textbook of Roman Law, 635.
3 As in the XII Tables, iii, 1: ‘Aeris confessi rebusque iure iudicatis XXX dies iusti sunto: post deinde manus iniectio esto.’
4 Beseler, , Acta Congr. Iurid., I, 362.Google Scholar
5 Gradenwitz, , ‘Versuch einer Dekomposition des Rubrischen Fragmentes’, Sb. Heid. Adak, phil.-hist. Kl. 1915 (ix), 34.Google Scholar
6 Pöschel, ‘Confessus pro iudicato est’ quoted in Pflüger, H., Z. Sav. Stift. LXIV (1944), 363.Google Scholar
7 Wlassak, ‘Konfessio,’ 66 ff.
8 Greenidge, Legal Procedure in Cicero's Time, 251 ff. (following Bethman-Hollweg) construes correctly, but supposes a ‘sponsio praeiudicialis’ whose outcome could somehow cancel the effects of confession; in which case, as he admits in embarrassment, ‘confessio would not put a stop to the case’.
9 See Gaius IV, 116b; Buckland, Textbook, 654.
10 Buckland, Textbook, 635.
11 ‘Versuch’, 30.
12 ‘;Konfessio,’ 16 ff.
13 There is no help to be had from the vadimonium Romam faciendum of XXI 21–4. This is not required of the man already addictus who still refuses to pay (as Hardy, Six Roman Laws, 130 n.): for why should he, now ‘iure lege damnatus’, appear for re-trial in Rome ? Rather, it refers to cases of pecunia certa outside local jurisdiction. Elsewhere the law had dealt generally with the magistrate's power to enforce a vadimonium (the first ‘ex h.l.’of line 24); this proviso explicitly safeguards him that power, when the sum at issue was too great for addictio.
14 Or, if it existed before Augustus, the later condictio certi (Wlassak, , Römische Prozessgesetze I, 129 ff.Google Scholar); but the c. certae pecuniae and certae rei, united in the Edict, are apparently here separated (Lenel, Ed. Perp. 3, 232).
15 Wlassak, ‘Konfessio’, 47, n. 3, argues doubtfully for the actio ad exhibendum; but, as my colleague Mr. F. M. B. Reynolds has suggested, a noxal action of pauperies is conceivable. Certainty is impossible.
16 Wrongly inferred from Gaius IV, 139; 1, 98 f. For what follows, I owe much to F. Leifer, Die Einheit des Gewaltgedankens, 64 ff.
17 ‘Cum res damni infecti celeritatem desiderat’ (Dig. 39, 2, 1). Leifer, 96 f.; cf. Jobbe-Duval, , Studi Bonfante 1, 192 ff.Google Scholar
18 Ch. XXII, 47; XXIII, 57. cf. Fragm. Atest. 15–16; Lex Urs. 95.
19 Lex Urs. 94, 125, 128. Clearly also L.R. XX, 50: this is not the governor of Cisalpine Gaul (as Hardy suggests, 128, n. 15) but one of the local officers mentioned in 41–2, as is demanded by the words ‘neive … intercedito’, and supported by the parallel clauses in Lex Urs. 94, Lex Mal. 58. The right view is Mommsen's, , Staatsrecht III, 812Google Scholar, n. 2.
20 For tutoris datio, a special case, see Leifer, 110 ff. The duoviri of Mediolanum had power to manumit, AE 1947, 47; cf. Paul., Sent. 2, 25, 4. At a later date, we find a local defensor civitatis granting cessio bonorum, P. Lips. 244. cf. Luzzatto, Studi Paoli, 497 ff.
21 For the Edict on these points, see Lenel, Ed. Perp.,3 72, 410 f.; a verbal echo in the Tab. Heracl. 115.
22 Hardy, Six Roman Laws, 122; cf. the remarks of Schulz, Roman Legal Science, 50 ff.
23 CIL X 4842; and especially F. Serrao, La Iurisdictio del pretore peregrine, 97 ff. (but his view of the L.R., that its whole purpose was to bestow some powers ‘quae magis imperii sunt’, goes too far, since it must also have regulated the actions of ch. XXII; and on its relation to the Edict, Mommsen, Ges. Schr. I, 162 ff.). Bonifacio (Iura 1955, 236 ff.) restates the older view, but misses its difficulties. Why should the peregrine praetor not have missio? Certainly it was later granted to peregrini; they could not get usucapio, but that is another matter.
24 ‘Ein Widerspruch im Beisatz,’ Leifer, 116; Wenger, Inst. d. röm. Zivilprozessrechts, 28 f., 232.
25 Liebenam, RE v, 1829 ff.; Leifer, 114 ff.
26 Lenel, Ed. Perp.,3 53 ff.
27 ibid., 52, 56.
28 Wlassak's view that a ‘Lex Iulia altera iudiciorum privatorum’ had a decisive influence is conjectural (Prozessgesetze II, 221 ff.); for criticisms, Girard, , Z. Sav. Stift. (1913), 340 ff.Google Scholar
29 Davidson, Strachan, Problems of the Roman Criminal Law II, 142 ff.Google Scholar (with reservations), against Mommsen, Strafrecht, 222 ff.
30 This distinction is clearer in Mommsen Staatsrecht I, 223 f., than in III, 813 ff.; but the latter has influenced many, and finds an extreme exponent in Rudolph, Stadt und Staat im römischen Italien.
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