No system of law can be fully understood in isolation from the history of the society which it serves and regulates. What follows can be, however, no more than a sketch of some of the salient features of the history of Rome in the thirteen centuries which end with the death of Justinian in A. D. 565. The struggle between the Orders, and the Republican Constitution From this period the Roman Republic emerges as a small city-state, based mainly on agriculture but already acquiring some commercial importance and showing signs of those military abilities which were to extend her frontiers far beyond the Mediterranean world.
However, the first century and a half of the Republic (510-367 B. C. ) was devoted largely to the internal struggle between the two Orders or classes into which the citizen body was divided—the Patrician nobility and the Plebeians who formed the bulk of the population. The struggle was for equality, partly economic but mainly political. It was important for the early development of the Roman constitution, but since it was finally over by at the latest 287 B. C.
, and the significant development of the private law did not begin for at least another century after that, we may be content merely to glance at the relevant features of the Republican constitution. This constitution consisted from the beginning of three elements—the magistrates, the Senate, and the assemblies. The magistrates were the inheritors of the royal power. For the principal political consequence of the revolution which inaugurated the Republic was simply the replacement of the King by two magistrates, eventually known as Consuls.
They were endowed with full executive power (imperium), subject only to three limitations: in the first place, though each had full power, each was subject to the veto of the other; in the second place, they held office only for a year; and lastly, their power might be limited by legislation. As Rome developed, other major magistracies were created to relieve the Consuls of their duties in specific spheres, but the principle of the imperium remained—each such magistrate had full power within his own sphere, subject to the same limitations and subject also to the veto of magistrates superior to him.
How sweeping this power was can be seen from the fact that it was only by legislation that a citizen had the right of appeal to the Assembly from a magisterial order for his execution. The magistracy which most vitally concerned the private law was the Praetorship, created in 367 B. C. to take over that part of the Consuls’ duties which concerned civil (as opposed to criminal) jurisdiction. (Lee, 1956) The Praetor was thenceforth responsible for the administration of the civil law, though the period of his great formative influence upon it was not to come for another two centuries.
In about 242 B. C. a division of his functions became necessary and thereafter two Praetors were appointed. One had jurisdiction in cases in which both parties were citizens and was called the Urban Praetor (praetor urbanus), and the other had jurisdiction in cases in which at least one party was a foreigner (peregrinus), and was called the Peregrine Praetor (praetor peregrinus, or, in full, praetor qui inter peregrinos ius dicit). In the later Republic the number of Praetors was greatly increased, but only these two were concerned with the private law.
The two Curule Aediles, also appointed for the first time in 367 B. C. , were the magistrates responsible for what might be called public works in the city, and also for the corn supply, but their importance for the private law lies in their control of the market place, in connexion with which they exercised a limited civil jurisdiction. (Borkowski, 1997) This jurisdiction enabled them to make an important contribution to the law of sale.