LEGISLATION OF THE TWELVE TABLES.
We pass over the unimportant wars with the Æquians and Sabines, and over some laws which indeed are of the greatest moment for the study of antiquity. If we could review in detail the debates on the Lex Terentilia concerning the equalization of the two orders, it would be very interesting; but this is impossible, and we can only dwell on quite detached notices. One of them is this, that a trireme was sent out from Rome with three envoys to collect the Greek laws, particularly those of Athens. The credibility of this story has been much discussed. I now retract the opinion which I expressed in the first edition of my Roman History. I had considered as little as my predecessors, that the questions whether the Roman laws have sprung from the Attic ones, or whether envoys went from Rome to Athens, are quite distinct. If the question be put in this way,—“Are the Roman laws borrowed from those of the Athenians?” the answer is a decided “No.” Two laws of Solon only are quoted in support of it, which are said to be met with in the Pandects; yet these are not only quite insignificant, but they are also such as might just as well be borrowed from other codes: we may find as many detached Germanic laws, which coincide with the Roman ones. Nor can we know how far the common descent from the Pelasgian stock may have produced a similarity of laws. All that is distinctive in the Roman law, is not to be found in the Athenian; and distinctive it is with regard to the rights of persons and things. Never had the Greeks the right of paternal authority like the Romans; never the law, that the wife by her marriage entered into the relation of a daughter and co-heiress; never the jus mancipii, the formality in the purchase. The difference between property by formal purchase and simple property, between property and hereditary possession, does not exist in the Attic law: the Roman law of inheritance, the Roman law of debt; the Roman system in contracts of borrowing and lending, are quite foreign to the Athenians; the Roman method of procedure is thoroughly different from the Attic. The Attic law belongs to a much later time, when the forms were already very polished; and we behold in Athens a social body which is deficient in the very features which distinguish the Romans. And what we also know of the laws of the other Greek nations has nothing to do with the Romans. If the laws of the states in Magna Græcia should chance to bear any resemblance to those of Rome, this is certainly much rather owing to their having sprung from the same Italian source. Thus in the tabula Heracleensis, the law of the ager limitatus seems to have been similar to that which was in force at Rome.
For this reason, therefore, the story has been deemed untrue; yet for all this, the real facts may have been quite different. Every one has often in his life done things after long consideration which have never attained their object: the same may happen to a state. The embassy falls just within the time of Pericles, between the Persian and the Peloponnesian wars, the period when Athens was most flourishing, and the fame of that most powerful and enlightened city was certainly spread far and wide. That the senate at a much later age, in the days of Cassander, when wishing to set up a bust of the wisest Greek, did not make choice of Socrates but Pythagoras, was quite in the spirit of the Italian nation; yet that they selected Alcibiades as the bravest, proves how familiar Athens was to the minds of the Romans. They may therefore indeed have sent this embassy not wholly without purpose, as they seem to have derived advantage from it for their political constitution.
There is yet this other tradition concerning this legislation, that a wise Ephesian named Hermodorus, who was staying at Rome, had been consulted about it by the decemvirs. He is said to have been a friend of the great Heraclitus, and to have been banished from Ephesus because he was too wise (ἡμέων μηδεὶς ὀνήϊστος ἔστω). Down to a late period, there was shown at Rome a statua palliata which was referred to him. The tradition is old, and Hermodorus was not so renowned that the Romans should have called him their teacher without good reasons. He could play the part of adviser, as the object of the legislation was laid down, which was to do away with the difference between the two orders, and so far to modify the constitution, that both of these might as much as possible constitute one whole; then also to effect a limitation of the imperium of the consuls. For all this the civil code has no Greek sources whatever. There are points in the Roman law, of which we know for certain that Solon had already abolished them; and in the criminal code there are still greater discrepancies.
The plan from the very first, was to appoint a mixed commission for making laws. In Livy it looks as if the plebeians had entertained the preposterous idea of appointing the lawgivers exclusively from their own order, five in number; but Dionysius has the number ten, evidently therefore there were to be five patricians, and five plebeians. Very strange again is the statement of Livy that the plebeians had earnestly requested, that, if it was once intended to have a revision of the laws, and the patricians did not wish the plebeians to have a share in it, these would begin alone, and come to an agreement with them with regard to the fundamental principles only. People were therefore sensible enough to see, that a mixed commission would only breed the most bitter quarrels among its members; and that on that account all had better be chosen from one order, when the main points were once settled. Nevertheless it is remarkable that all the writers agree in asserting that the obnoxious laws, the ones which were hostile to the liberty of the plebeians, were on the two last tables, which derived their origin from the second set of decemvirs. The ten first are not attacked; they merely granted isonomy, which had already been agreed upon, as Appius in Livy says, se omnia jura summis infimisque æquasse. The quite different rights of patricians and plebeians were made equals; so that with regard to the patricians also, personal arrest, and personal bail could take place.
Undoubtedly, the ten first decemvirs were all patricians from old families; decemviri consulari potestate legibus scribundis, was their name according to the consular Fasti which have been recently discovered. They were appointed in the place of the consuls, the city præfect, and the quæstors. But, are Livy and Dionysius correct in stating that the tribunate also was abolished? It is not to be believed. It would have been madness, if the plebeians had thus given themselves up with their hands fettered. At the second decemvirate only, we find them appellationi invicem cedentes: we then meet with C. Julius, who brings a criminal cause before the people. The tribunes must have said, we are willing that there shall be ten patrician lawgivers, but the continuance of the leges sacratæ is to us the guarantee of our rights; for the leges sacratæ referred to the tribunate. The mistake may easily be accounted for; it arose, because such was the case under the second tribunate. On this supposition, that the tribunate was not abolished during the first decemvirate, and that a general law of the land was the object aimed at, every thing is clear. All the points about which there might be dispute, were reserved.
Besides drawing up a general code of laws, they were also commissioned to settle the constitution on the basis of equality between the two orders. In this constitution which they worked out, the tribunate was to be done away with, and the supreme authority to be held by men of both classes. The five last names which Livy mentions in the second decemvirate, are plebeian, from families which do not occur in the Fasti before the Licinian laws. Three among them, Dionysius expressly names as such; with regard to the two others, who, it is stated, were chosen by Appius and the chief men from the lesser clans, it is equally evident to any one who knows the Roman houses, and therefore Livy places them at the bottom of the list. The mistake of Dionysius arises from his having confounded the two decemvirates. The first decemvirate represented the decem primi of the senate, chosen by the centuries from a προβούλευμα of the Patres; the second, on the contrary, was a συναρχία after the pattern of the archons of Attica, perhaps even originating in the knowledge of the Athenian laws. The second election was quite different; the most eminent as well as the most humble patricians solicited the votes of the plebeians. Here for the first time we meet with canvassing, and therefore perfect freedom of election. There were six Tribuni Militares, three patricians and three plebeians, who were intrusted with the real command in war: of the rest, two are to be considered as invested with the censorial power, combined with that of the Præfectus Urbi, and with the presidency of the senate; the two others, with the authority of the quæstors, being also in certain cases charged with military functions. Of course, in each of these two pairs were also one patrician and one plebeian. If, therefore, Dionysius had read that there were three patrician and three plebeian Tribuni Militares, he might,—as the old books were surely written in very obscure language,—have easily overlooked the circumstance that the other four were likewise equally divided among the two orders. The three plebeians, acknowledged as such by Dionysius, are Q. Poetelius, C. Duilius, and Sp. Oppius.
This constitution was intended to last for ever, and it is easy to see what was the object which its authors had before them, and in what manner it was secured. From that time, the distinctions between the older and the younger clans (gentes majores and minores), altogether disappear. These lawgivers took the same view of the state, as the government. For they reasoned thus:—that, as the state had become unprosperous since the Publilian law, the question was merely this, that the decemvirs should have the authority of the tribunes to bring any matter to discussion. In this manner, the Plebes would obtain all that it could reasonably ask for: Plebes and Populus would stand each for itself by the side of the other, but should together form a whole. The Plebes would not then want any more tribunes, as one might indeed appeal from the patrician to the plebeian decemvirs. Moreover, it was fair that the patricians and the plebeians should share the senate, yet that the plebeians should only come in by degrees, until they had a certain number. The two orders were to be carefully distinguished; but yet be invested with equal power. The former law, that the gentes should send their representatives into the senate, and that when a gens became extinct, the cury, or perhaps the consuls, had the election,—these last, however, having a power far more limited than the censors afterwards, were to be replaced by a new institution. A special authority was to be created, which had to superintend and to decide on the changes from one step to another in the scale of civic rank; which should receive the ærarius into the Plebes, and place the plebeian nobles on an equal footing with the patrician ones. These are the chief points of the second decemviral legislation: what were the results of these laws, and how little they answered men’s expectations, is shown by the subsequent history.
Of the statutes of the Twelve Tables concerning the civil law, there has hardly any thing been preserved. Among the little that we know, is a decree, which was on one of the two last Tables, that there should not be any connubium between the Plebes and the Patres. This principle is fraught with such consequences, that the spirit of the whole legislation may be judged from it. The ordinance is generally looked upon as an innovation, for instance, by Dionysius, and by Cicero in the books De Republica; but this is all grounded upon the mistaken belief that this body of laws was entirely new, as if the Romans before that time had either had no laws at all, or altogether different ones. No one in the ancient world took it into his head to make quite a new system of laws; they merely amended those which they had inherited. As it was now intended to bring the orders nearer to each other, and to equalise their rights, they surely could not have established such a separation between them as a new institution. In the middle ages also, a legislation merely sprung from the will of the lawgiver is scarcely to be traced anywhere: it is to be found in the laws of the emperor Frederic II. only, as Savigny has observed. The opinion of the above mentioned writers is therefore based on nothing but their own fancy; so that there is no authority for it, but on the contrary its extreme improbability in every respect is against it.
New, however, is another and most important point, the unlimited right of disposing by will which was granted by the leges XII. tabularum. This right was bestowed upon every pater familias, and it gave to the later jurists occasion for most important changes: it cannot have existed from the earlier ages. The consequence of it was a double form of will, before the curies and in procinctu, that is, before the symbol of the centuries, these representing the exercitus vocatus. Before these the testator declared his will: if it was on the eve of a battle, the soldier made his declaration before the army itself; if a patrician wished to dispose of his fortune, the Pontifex maximus summoned the curies, and these were first to confirm the dispositions of the will. The reason of this was founded on the respective position of the parties. If a person left children, then in the earliest times it may only have been rarely that a will was made; if he remained childless and there were cousins, the latter inherited, otherwise the clans; but, if the clan was quite extinct, the cury inherited. Now, when Plautus says in the Aulularia,[103]
Nam noster nostræ qui est magister curiæ,
Dividere argenti dixit nummos in viros,
I was formerly of opinion, that this was a mere translation from the Greek; for, Euclio represents an ærarius, and what had he to do with a cury? But it is rather a Roman state of things: some property has accrued by death to the cury, and this inheritance is divided viritim.[104] In the same manner, the plebeians may have had gentilician inheritances, which at last fell in to the tribes; if, however, there was a will, the exercitus vocatus, that is to say the centuries, had to give their consent, because for making a will auguries had been requisite, which the tribes of the plebeians had not. A similar system of inheritance still exists to this day in the island of Fehmern, where there are two clans with Dittmarsch rights and customs. If any one belonging to them wishes to make his will, he is obliged to give the cousins a small sum, as compensation for the money which would properly be due to them. This has been kept up there, whilst in Dittmarsch it has become quite obsolete, nor have I anywhere among all the other clans in Germany found any trace of it; from which circumstance we may see, how of important general rights only a few scattered relics will oftentimes remain behind.—The curies might, of course, originally give a negative answer in the case of such a will; but when it was laid down in the Twelve Tables, Paterfamilias uti legassit super pecunia tutelave suæ rei, ita jus esto, it is clear that the consent was only dicis causa. This ordinance has had an immense influence on the Roman manners: yet it was necessary, because the connubium of the two orders had not been permitted. Even the child of a plebeian by a patrician woman could not inherit by law, and therefore it was necessary to have a law of inheritance. When the prohibition of the connubium was afterwards removed, the free disposition of property was still allowed, and in the later profligate ages, it gave rise to the most shameful abuse. That in early times such a tendency was already perceptible, is proved by the Lex Furia testamentaria, which I have good ground for placing about the year 450.
The law of debt must also have been on one of the two last tables, as Cicero describes it as thoroughly unfair. It was binding for plebeians only. Those two tables, we may be sure, consisted chiefly of exceptions. The most important part of the legislation of the Twelve Tables, is that jus publicum which was entirely overlooked by the earlier commentators, who believed them to have been a code of laws like that of Justinian, only most imperfect and barbarous. But Cicero and Livy call them expressly fons omnis publici privatique juris; and Cicero, in the examples in his books de Legibus which are taken from the laws of the Twelve Tables, speaks also of public administration. Yet the Twelve Tables certainly did not touch upon any subject that remained unchanged, as for instance, the whole system of the centuries; of the alterations in the political law which were found in them, we have only a few traces. One of these is the enactment that no privilegia should be issued any more, that is to say, no laws against individuals, nor condemnations of individuals; there must therefore at that time have been methods of proceeding with regard to individuals similar to ostracism at Athens. It is moreover likely that charges were no longer brought by one of the two orders before the other, and that the centuries were looked upon as a grand national court of justice. We have no authority for this; yet, though every story cannot be warranted in detail, thus much on the whole is certain from the events which occurred, that until then accusations were made before the Plebes by the tribunes, and before the curies by the quæstors, but that afterwards such impeachments are no more heard of. Prosecutions before the tribes on account of individual offences are indeed met with; but they are no more connected with the antagonism of the two orders. Probably at that time also the change arose which is afterwards clearly to be perceived, that the clients entered into the tribes; for the plebeian tribes, besides what they were from their particular nature, were also intended to be a general national division, of which we find several hints. Yet it may also have taken place a hundred, or a hundred and twenty years later. If Camillus was condemned by the tribes, it may perhaps be explained in this way, as in his trial his fellow-tribesmen are spoken of. Cicero among the wise laws of the Twelve Tables which he receives in his Leges, mentions, with reference to his own tumultuary condemnation by the tribes, that de capite civis could only be judged per comitiatum maximum. It cannot indeed be positively asserted, that previous to the legislation of the decemvirs, the centuries had not been called upon to give judgment; I have, however, discovered a formula which belongs to an earlier time, and perhaps refers to trials by the centuries, and something definite may yet be found with regard to this point. If it was so, the practice must have been introduced shortly before the time of the decemvirs; previous to this, the judicia capitis were with the curies and tribes. The trials of Coriolanus and C. Quinctius are not yet held before the centuries. If in after times one still finds an instance of a condemnation by the curies, it is an unlawful act of arbitrary power. The tribunes therefore now bring the charge of a crimen capitis before the centuries, and a mere multa before the tribes; and it often happens in such a case, that the person condemned goes into exile, and loses his right of citizenship. Here the saying of Cicero in his oration pro Cæcina holds good, that exile does not necessarily imply the loss of the right of citizenship; for, exile being no punishment, the loss of the right of citizenship is incurred only by the reception into the foreign state. In this light we must look upon the condemnation of Camillus, if ever he was condemned by the tribes, and not, as is far more probable, by the curies.
In this manner, the sphere of the nation as a whole, was very much enlarged, and instead of distinct appeals to one of the two orders, there are scarcely any appeals but those to the centuries to be met with. The existence of this law is quite enough to prove how wrong they are who believe, that in this the decemvirs had arrogated to themselves the whole of the jurisdiction. They have confounded with it the fact, that now that the old appeal to the orders was done away, one had to appeal from one board to the other. Instances of appeal from the consuls to the people are very seldom met with from henceforth; and even then, they are altogether problematical. It is most likely that the appeal to the tribunal of the assembled commonalty was abolished, and that the tribunes as the direct representatives of the commonalty took its place, and that by a natural development of the constitution; for a resolution of the commonalty at large is after all a mere form.
Other laws also which are mentioned, might be considered as innovations; for instance, that one who is pledged for debt should have equal rights with him that is free.
From the time of the battle at the Regillus, the narratives of Dionysius and Livy are in many years quite in agreement with each other, and there are rarely any discrepancies of importance. The history of the legislation of the decemvirs is also an instance of this harmony. Other accounts, however, few as we have remaining, do not at all tally with them; so that their accordance is not exactly a proof of their historical truth, and we must suppose that both these historians happened to make use of the same sources for that period. The narrative, especially in Livy, is exceedingly fine and highly wrought. It has already been remarked, that probably the intention was to establish the decemvirs as a permanent magistracy, the consulship and tribunate being abolished; and that the decemvirs of the second year were not chosen as lawgivers, but as supreme rulers, although they were authorised to add two more tables. Another supposition which I set forth pretty positively, is this,—that these decemvirs were not elected merely for one year, but for several, perhaps for five. There is a tradition handed down to us, that they did not go out of office on the Ides of May, and this is considered as an usurpation. If it were so, this would be a real δυναστεία in the true Greek acceptation of the word (it is used in contraposition to τυραννίς, a distinction which is foreign to the Roman language, although not without an example in ancient history).[105] According to an invariable principle, it must have been intended in the election of the decemvirs, that those who should be invested with this dignity, should forthwith pass into the senate; but ten persons every year would give too great an increase. It seems much more likely that the fact of their being appointed for longer than one year was overlooked, than that they should arbitrarily have prolonged their tenure of office, which they indeed could hardly have ventured upon doing.
The history now shows us in the second year the decemvirs in possession of every magisterial power. They are stated to have kept a guard of an hundred and twenty lictors (ῥαβδοφόροι), twelve men each. This was in the style of all the Greek oligarchs; these lictors therefore had quite a different meaning from those of the consuls; they are the σωματοφύλακες of the Greek tyrants. Now the decemvirs of Livy and Dionysius are represented as criminal tyrants. This account is, however, to be received with just as much caution as most of the stories of the ancient tyrants; for, the worst monsters of history in most instances did not commit crimes for the sake of outrage, but for quite different purposes. Thus also Cicero tells us, that though the decemvirs did not altogether behave as good citizens, yet one of them, C. Julius, respected the public liberties, and summoned the people to pass judgment on one who was not reus manifestus. Among them were Appius Claudius and Sp. Oppius, the presidents of the senate; these exercised the jurisdiction in the city, and they seem also to have possessed the censorial power. Now, it is stated by Livy in a very lively description, that the Forum and the Curia had grown silent, that the senate had been called together but rarely, and that no comitia had been holden. This was quite natural. The tribunes were done away with, there was therefore nobody to harangue the people in the Forum; politics there were none, the constitution being quite new, nor was there any change to be made in the civil law; the senate was convoked but rarely, because the board of the decemvirs could manage most of the affairs alone; the patricians therefore went into the country, and minded their estates, and the city passed all at once into a state of the most unruffled peace. Yet the people was so much used to excitement, that it longed for fresh agitation; there was an uncomfortable feeling abroad, because every thing that had filled the whole mind of the public had now for once ceased to exist. In unsettled times, such a transition is very dangerous; just as when one who is accustomed to the use of strong stimulants, or to gambling, is suddenly obliged to give them up. Thus it was in the year 1648, when the Dutch had concluded the peace of Munster with the Spaniards according to the accounts of contemporary writers, people found the state of things insufferably tedious, and thence arose a wild sort of life, and the differences between William II. and the city of Amsterdam. Every circumstance, be it ever so trifling, was laid hold of on which men might vent their passions. The very same thing occurred in France just after the restoration. When such a temper prevails, the necessary consequence is a very sore feeling between government and people. The Romans became discontented with their new constitution. Even though the decemvirs had not been had, or no one else but Appius Claudius had been such, they could not have been borne with, and the people would not have remained quiet. Much besides may be guessed. The plebeians had been mistaken in the men of their order who had become decemvirs. Just at first indeed, the protection of the tribunes is stated not to have been missed; but gradually these persons thought fit to use their power for their own benefit, and to show the same exclusive spirit as the rest. It is easy to understand that the plebeian Sp. Oppius was decidedly most obnoxious, since he addicted the debtor as much as Ap. Claudius did. Such accusations had until then been brought against patricians only.
That a war broke out with the Æquians and Sabines, was an event of which the decemvirs might indeed have been glad, as they gained by it an opportunity of giving the people employment. We are now told that patriots, L. Valerius Potitus and M. Horatius Barbatus, had got up in the senate, and had required the decemvirs first to resign their power; but that the majority of the senate had decided upon the levy. The speeches which are found in Livy on this occasion, I look upon as empty declamations which have arisen from the belief, that the decemvirs had usurped their office. The enemy had invaded and plundered the country; resistance was necessary; there was no time for deliberation. Also there was nothing more easy than such an enlistment, as there were no more tribunes. Just as little foundation does there seem to be for the story of the assassination of L. Siccius; it looks too poetical. The only fact which we can gather from it is, that two Roman armies took the field, of which the larger host stood on the Algidus against the Æquians. In the meanwhile a crime happened in Rome, of a nature which was quite common in the Greek oligarchies, Appius Claudius having fallen in love with the daughter of a centurion L. Virginius, very likely a relative of the tribune Virginius. That her death, like that of Lucretia, became the cause of the downfall of the decemvirs, is uniformly stated by all the accounts; the story is most ancient, and there is no reason to doubt it. The rape of women and boys is quite a common crime of the tyrants against their subjects. Aristotle and Polybius also tell us explicitly that the overthrow of oligarchies was often brought about by such outrages against female virtue. Appius Claudius suborned a false accuser, one of his clients, to assert that the real mother of Virginia had been his slave, who had sold her to the wife of Virginius, as the latter, being barren, wished to pass off the child as her own; and this he offered to prove by the testimony of false witnesses. Appius was resolved upon adjudging the slave to him; yet this was contrary to the law of the Twelve Tables, for, if the freedom of a Roman citizen was impugned, he could claim to remain in possession of it; only he had to give bail, as the value of the person might be estimated in money. This was called vindiciæ secundum libertatem; Appius wanted to give them contra libertatem. Upon this, all who were in the Forum flocked together, and adjured him to put off the sentence, at least until the father, who was serving in the field, should be able to return. When the lictor tried to use force, such a number of plebeians filled the market-place, that Appius had not the courage to insist upon his decision, but requested the plaintiff to rest content with the surety until the next court-day; yet in order to prevent any thing that might appear like a conspiracy, the morrow was named for the trial. At the same time, he sent messengers into the camp to have the father detained with the army; but the latter had already been fetched beforehand by the betrothed lover of the maiden, and other kinsmen, and he appeared on the following day in the Forum. The semblance of justice was now abandoned. Had Appius allowed the cause to be tried in due form, the father would have unmasked the lie; and so he said that he was satisfied that the damsel was the slave of the plaintiff, and ordered her to be taken away. Amidst the general dismay at this decision, Virginius collected himself; and while pretending to bid farewell to his daughter, and to put some questions to the nurse, he stabbed her with a knife taken from one of the stalls in the Forum, under a portico, and with the bloody weapon walked unmolested out of the city back into the camp again. Here the soldiers unanimously refused obedience to the decemvirs, the two armies joining. But the accounts contradict each other: some state that they occupied the Sacred Mount, and at the first secession the Aventine; others the reverse. It is to be remarked that the commonalty has now twenty leaders, and is therefore standing again under the guardianship of its tribunes (phylarchs). These elected among themselves two men who were to hold the presidency, and to treat with the authorities, whom the people in the city had abandoned. The tribuni sacrosancti were abolished by the decemviral constitution; but the tribuni had continued as wardens of their tribes. With these at their head, they held out against the senate and the decemvirs in a more decided insurrection than that of forty years before; for at that time they had separated themselves in order to recover their rights, but now they were completely armed as for war. In this contest the decemvirs must needs have succumbed, especially as many patricians evidently fell off from them, although, as Livy correctly remarks, they were for the most part well pleased with the decemviral constitution, as they were freed by it from the tribunician power. Nevertheless there were many, as for instance Valerius and Horatius, who were for the restoration of the old constitution, because they were convinced that the tribunate worked in a very wholesome manner as a check upon the power of the consuls. Thus it was determined to treat with the Plebes, and a peace was concluded.
We have yet some remnants of discrepant accounts concerning the downfall of the decemvirs. Quite different from ours is that of Diodorus, which might have been borrowed from Fabius, did it not contain a fact which is rather strange. According to this version, the decision happened much sooner than Livy places it; on the day after the occupation of the Aventine, peace had been already concluded. According to Cicero, the secession lasted for a long time; nor does he know anything of what Livy says about Valerius and Horatius having been the mediators. Valerius he afterwards mentions as consul, and as continually engaged in reconciling all parties. These are signs of a discrepancy in the traditions, although the character of this age was on the whole quite different from what it had been before, and thoroughly historical. There is an account in Cicero that the plebeians went from the Sacred Mount to the Aventine, which is certainly false. They always occupied the Aventine; and the obscure Lex Icilia had also probably reference to this point, that the Aventine should be excluded from the union with Rome, and, as the peculiar seat of the plebeians, be ruled by their own magistrates. We must therefore understand this statement of his to mean, that the army had betaken itself to the Mons Sacer, and that it had then marched to the towns, and united with the men of its own order on the Aventine. The Capitol was given up to the armed troops, and the circumstance of this surrender is a marked proof of the difference of the then plebeians from those of forty years before. The plebeians were conquerors to all intents and purposes.
The decemvirs laid down their office. The first election which was now proceeded with, was that of the ten tribunes under the presidency of the Pontifex Maximus, which is the strongest possible form of acknowledgment on the part of the patricians; the plebeian magistracy makes its own inviolability part and parcel of the sacred law. By a most remarkable anomaly, they hold the councils in what was in later times the Circus Flaminius, which was for the plebeians what the Circus Maximus was for the patricians. This happened in December: since that time the tribunes regularly entered upon their office in that month. In order to settle the affairs of the state, it was resolved to elect again two patrician magistrates; yet not under the former title of prætors, but under that of consuls, as Zonaras tells us. This change of designation proves, that the magistracy was considered as distinct from the former one; it was a less elevated dignity: prætores were “such as took the lead, generals;” consules were only “colleagues,” quite a general name like decemviri. This new form of the consulate was not, however, designed to reintroduce the old constitution, and to abolish the decemvirate; but it was merely an extraordinary and temporary measure, a proof of which is the further extension, at this period, of the law which denounced outlawry against him who had offended against tribunes or ædiles, in favour of the tribunes, ædiles, judges, and decemvirs. This law has been much discussed; the mention of the decemvirs in it is a certain fact. The great Antonius Augustinus, bishop of Tarragona,—a man highly distinguished for his knowledge of the old monuments and of the political law, but who, with great historical talent, was unfortunately deficient in grammatical acuteness,—has already seen that the judices here are the Centumviri, the judges who were appointed by the Plebes, three for each tribe, to decide in all causes concerning Quiritary property. He merely threw out this assertion; I have proved it fully in the latest edition of my History. Even as these judices were said to have meant the consuls, and the inviolability of these were derived from thence, thus also with equal incorrectness, the decemvirs in the law were made out to have been the decemviri stlitibus judicandis; yet these were first appointed in the fifth century. It refers without doubt to the former decemviri consulari potestate, and indeed to the plebeians among them, as the patricians were already protected by their old laws.
When the tribunate was restored, the patricians might say, “You were in the right; the power, which the former prætors had, was too great, and therefore we shared the decemvirate with you. But now that you have again your tribunes, the power which you would gain, would be excessive; and therefore you must leave the decemvirate to us alone.” This the plebeians did not choose to do; and thus the negotiations for the restoration of the decemvirate came to a stand still. The consular power was retained, yet with a considerable modification. According to trustworthy accounts, the assembly of the electors, down to the year 269, was in possession of an unfettered and real elective franchise. From that time, first by usurpation and then by compromise, the change was introduced that one consul was previously to be chosen by the senate and confirmed by the curies, and the other to be elected by the centuries. At this period, the election of the centuries was again perfectly free, with the reservation of its being confirmed by the curies,—as was the case with all other acts of the centuries,—very likely a consequence of the legislation of the decemvirs.
The tribunes also had their authority altered in an essential point. Formerly in that board the majority of votes decided; now, according to Dionysius, the right was established by virtue of which the protest of one tribune might paralyse the influence of the whole college, which is equivalent to an appeal to the tribes. The principle was applied to them, vetantis major potestas. According to Livy this right had existed already before; yet it is probable that at least it was now first acknowledged, as the relation of the tribunes to the commonalty was changed. They were no more the deputies, but the representatives of their order; which in fact was a corruption of the right, though the evil consequences of it only became manifest some generations afterwards. In this point also the government gave a signal proof of adroitness; for they might always hope to find some one in the board who would side with them. Cicero says, that the tribunate of the people preserved Rome from a revolution; that unless tribunes had been granted to the people, the kings must needs have been retained. The centuries had now gotten a right of jurisdiction; yet according to the sacred law, the comitia centuriata had auspices, as the gods were asked with regard to the matters which were to be discussed, whether it was their pleasure that they should. Since the tribunes might now prosecute before the centuries, it also follows that they must have been empowered to hold auspices (de cœlo observare). To this the statement in Zonaras refers, that the tribunes had received permission to observe auspices. According to a notice in Diodorus, outlawry was denounced against any one who should be the occasion of the Plebes’ remaining without tribune.—It is quite a phenomenon that at the close of the year two patricians are found among the tribunes: either these are patricians who have joined the Plebes, or the patricians set forth the thoroughly sound principle, that the tribunes of the people, owing to their action upon the machinery of the state, were no longer a magistracy of a part of the nation, but of the whole. That at this period many patricians went over to the Plebes is expressly asserted; yet the other version is also very probable. From this time, we often find the patricians mentioned as fellow-tribesmen of the plebeians. At the discussion of the project for the separation of the Plebes and their settling at Veii, the senators are said to have gone about prensantes suos quisque tribules. In like manner we are told that Mamercus Æmilius, about fifteen years after the time of the Decemvirs, had been struck from the list of his tribe, and placed among the ærarii. Camillus also appeals to his tribules; yet this may perhaps have meant his patrician clansmen. That afterwards, in Cicero’s days, all the patricians were in the tribes is well known. Cæsar belonged to the Tribus Fabia; Sulpicius, to the Lemonia. After the war of Hannibal, C. Claudius says in Livy, that to strike one from the list of all the five and thirty tribes, was to deprive him of the right of citizenship. M. Livius expels his colleague Claudius from the tribes. The number of these examples might easily be enlarged. In the earlier times, there were patrician and plebeian tribes; in the later, the Ramnes, Tities and Luceres are no more spoken of: they only make their appearance still as the sex suffragia in the centuries. The whole Roman nation was now thrown together into the same tribes. The same was done at Athens, when the ten phylæ of the Demos became the only ones, and the four old mixed tribes were broken up. I believed formerly that this was to be attributed to the decemviral legislation; yet, if we bear in mind how carefully the decemvirs otherwise distinguish between the two orders, we cannot possibly suppose, that in this respect they should have aimed at their fusion. We must place it at a somewhat later period, and we are led to decide upon the time of the second censors; it was therefore soon after the decemvirs. In the fragments of Dio Cassius it is mentioned, that the patricians had preferred the plebeian order on account of its greater power, and had passed over to it. Greater power at that time the Plebes had not; but it had greater strength, and it was easy to foresee what it would attain to. It was for many a more pleasing position to be in the ranks of those who were advancing, than of those who stood still.
The decemvirs were brought to justice; Appius Claudius and Sp. Oppius died in prison. The latter was of plebeian extraction, a proof that we need not regard the plebeians as the holders of particular virtues. Wherever a state is divided into factions, the strong party abuses its might, so that our interest turns to the weaker one. Sp. Oppius was perhaps one of those who formerly had talked a great deal against tyranny, and now he had become a tyrant himself. Appius was capitally impeached by L. Virginius (Aulus Virginius is certainly a mistake of the transcriber, as the copyists had in their mind the former tribune of that name): L. Virginius as avenger of the blood of his daughter had been appointed tribune. He wished, by virtue of his tribunitian authority, to have Appius cast into prison. Livy’s account of this leads us to a remarkable point. It is indeed a generally received opinion, that every Roman citizen had the right of saving himself from the punishment of death by exile. If such had been the case, one might well have wondered why capital punishments should indeed have been instituted at all, of which notwithstanding the old Roman laws have so great a number. Yet these facts are to be looked upon quite in another light. The views of the ancients with regard to criminal law are very different from ours, and perhaps more so than with regard to any other object in life. According to our notions, a man has also a right to be tried who has been caught in the very act; it is considered as an obligation of the prisoner to deny his guilt, and to allow himself to be convicted by evidence; the lawyers may defend him, and endeavour to lead the judge into error. Of this the ancients had no idea. If any one was taxed with having committed a delictum, the deposition of the witnesses was sufficient to have him instantly arrested and dragged before the magistrate; if it was no delictum manifestum, and he was a plebeian, then he applied to the tribune and gave bail. Should he thus manage to get free, he might leave his sureties in the lurch and go into exile. But if, on the contrary, he had been caught in a delictum manifestum in flagranti, and the testes locupletes asserted that they had been present, thereby identifying his person, no trial was allowed; but he was, obtorto collo, his toga drawn over his head, conducted before the magistrate, who then at once gave judgment. If it did not happen to be a court-day, the culprit was in the meanwhile put into prison. Yet if any body committed a crime worthy of death, but not, however, of a kind in which it would have been possible to catch him in flagranti, the plaintiff had still a remedy in law by which the defendant was brought into prison.[106] Thus, for instance, in the case of Appius Claudius, the charge against him was a crime punishable by death; he had deprived a citizen of liberty. For this offence, Virginius prosecuted him; and would not allow him to give bail, lest by this means he should escape. The prosecutor could then offer to the accused a sponsio, a sort of wager, which consisted on the part of the prosecutor of a sum of money (sacramentum) staked against the personal liberty of his opponent. The prosecutor said, Thou hast deprived a citizen of his liberty; the defendant denied it: if the judge, elected for this purpose, decided for the prosecutor, no further judgment was needed, but the culprit was at once taken before the magistrate and executed; if he decided against the prosecutor, the latter lost the sacramentum. But, if the defendant would have nothing to do with the sponsio, he was thrown into prison. The question now was, whether the prosecutor should be obliged to drop the charge, or to accept bail. The passages which prove this are to be found in Livy and Cicero. It was only until the court-day that the culprit remained in prison, which accounts for the Carcer being so exceedingly small. The staying there, as also its darkness, was already a foretaste of death: he who entered it was lost. Cicero says, carcerem vindicem nefariorum ac manifestorum scelerum majores esse voluerunt; either his neck was broken there, or he was led out and executed. The Greek custom with regard to imprisonment was much nearer our own.
Yet one remark remains to be added. If one had a charge against a filius familias, the father was judge; in causes against the clients, the patron.
Another part of the Roman criminal law which is likewise utterly at variance with ours, is that which takes cognizance of political delinquencies. For many of them no penalty was fixed, as in such cases it was the decided opinion of the ancients, and held by them as a general rule, that the state ought to look to its own preservation (salus publica suprema lex esto). They were well aware that offences against the state might, when taken severally, have the most varied shades: the same act outwardly may either spring from error, or it may be the offshoot of the darkest crime, and it is therefore impossible to assign a distinct penalty for every single case. Hence the Greeks and Romans had for all the judicia publica this most important right, that the prosecutor could sue for a certain penalty in proportion to the matter in question, even though a different degree of punishment might have been inflicted for the same act in another instance. The same privilege was applicable, it seems, even to judicia privata, whenever the criminal code was insufficient; instead of which, in modern times, the foolish notion was entertained that punishment must only proceed from a distinct law, a wretched opinion which has really got the upperhand every where. The ancients held just the opposite principle. The boy who tortured an animal was doomed to die by the popular assembly of the Athenians, although the laws contained nothing for the protection of animals. Hence a man might also be condemned to death, provided that he had committed an act which was contrary to the general feeling of honour.
Until then the patricians had indeed claimed for themselves the privilege of not being liable to be imprisoned at all; for we are told that Appius Claudius had called the Carcer the domicilium plebis. Virginius showed himself generous, and granted to Appius a respite that he might deprive himself of life. Yet Sp. Oppius was executed, because his crime was of another kind, and not merely against an individual who might act with mildness. For that he had ordered an old soldier, who had served twenty-seven years, to be scourged; and that the man had come forward as his prosecutor, is evidently a fiction. Twenty-eight years was the time of effective service for a soldier; and here an old soldier is now brought in, who was in the last year of his military obligation, evidently as a general representation of tyranny. The other decemvirs went into voluntary exile, and their goods were confiscated. One of them was Q. Fabius, the ancestor of what was afterwards the Gens Fabia. The tribune Duilius now proclaimed an amnesty for all those who had committed any offence in this unfortunate time. This incident is of great importance for the history of the Roman method of procedure. I have already, on a former occasion, explicitly stated my opinion about it; but since the discovery of Gaius, the case has become much clearer.