Roman Public Life

by A. H. J. Greenidge

The Twelve Tables contained the “whole body of Roman law” (corpus omnis Romani juris),[398] not in the sense that they were a complete and detailed system, but in the sense that they pronounced on all important or disputed points in all departments of law, private, criminal, and public.

The ordinances of private law embraced regulations as to marriage and family relations, testamentary disposition, inheritance, debt, and usury. The marriage recognised was the consensual contract of the Plebeians strengthened by usus. Emancipation was recognised as a consequence of the threefold sale of a son, and a form of adoption, probably already in use in the plebeian community, was thus made universal.[399] The law also facilitated the emancipation of slaves who had purchased their freedom and so helped to create the wealthy freedman class.[400] Perfect freedom of testamentary disposition, in accordance with the plebeian form of testament per aes et libram, was recognised; while in intestate inheritance and in guardianship the rights of the agnati, common to the Plebeians, were recognised as prior to those of the gentiles; sometimes peculiar to the Patricians.[401] The freedom of contract, guaranteed by the Tables, implied the old harsh law of debt; but the penalty was defined, the procedure carefully described, and every loophole of escape offered to the debtor.[402] At the same time usury was severely punished; ten per cent (unciarium fenus) was recognised as the legal rate of interest, and the usurer who exceeded it was punished more severely than the thief and compelled to restore fourfold.[403] The rules of procedure for all civil actions were laid down, such as the summons of parties and witnesses and the length of the trial. But the law did not reveal the forms of action; these were still hidden with the pontiffs.

In criminal matters the Twelve Tables recognise the old principle of self-help; a limb was to be given for a limb; but for minor wrongs compensation was allowed, and twenty-five asses were full reparation for a common assault. But there are survivals of the old religious penalties; the man who destroyed standing corn was hanged as an offering to Ceres,[404] and the involuntary homicide could expiate his guilt with the piaculum of a ram. The law was heavy on the abuse of freedom of speech; for death was the penalty for incantations or libels against a citizen.[405] The same penalty was inflicted on the judex who had accepted bribes;[406] while for perduellio in the form of “rousing an enemy against the state or handing over a citizen to the enemy” the death penalty was also enjoined.[407] Reference must have been made to criminal procedure since the quaestores parricidii were mentioned in the law.[408]

The principle of the constitution which guaranteed a fair trial to the citizen was upheld; for we have the statement of Cicero that the Twelve Tables granted the provocatio “from every kind of court and punishment”[409] In two other particulars they limited the jurisdiction of the people. It was maintained that no law or criminal sentence (for this took the form of a lex) should be directed against a private individual (privilegia ne inroganto), and it was laid down that no capital sentence could be passed except “by the greatest of the comitia” (nisi per maximum comitiatum),[410] i.e. by the assembly of the centuries. Later interpretation held that this clause struck a blow at the capital jurisdiction of the concilium plebis; it is, however, doubtful how far this extraordinary jurisdiction, resting on a religious sanction, could be affected by a law which, as we shall see, never treated the Plebs as a political corporation at all. Another important constitutional provision of this code was one which granted the right of free association. The Twelve Tables, while severely prohibiting secret gatherings (coetus nocturni)[411] which had presumably treasonable designs, permitted the free formation of guilds (collegia or sodalicia). Such colleges were to require no special charter; the rules which they made for their own guidance should be valid, provided they were no infringement of the public law.[412] Lastly, the code guaranteed the sovereignty of the popular assembly by declaring that its last enactment should be final, without setting limits to the sphere of its legislative activity.[413] This was a token of the Roman conviction that there should be no finality in law. The Twelve Tables themselves were not guarded against repeal. It was a forecast of further development following the course of the old, of a constitution whose stages were marked by elasticity and growth, not by rigidity and revolution.

The new law does not appear to have made mention of the Plebs and its tribunes, for they were hardly a part of the constitution; and yet, in the crisis that followed the fall of the decemvirate, the question that gathered round these ignored powers was great enough to obscure every other issue.

The Plebs might have been satisfied with the compromise, had it not been for the unfortunate attempt at despotism made by the second board of decemvirs. It is impossible to believe that this usurpation was really countenanced by the Patriciate, and that they aimed at staving off indefinitely the inevitable assaults of the Plebeians on the magistracy by indefinitely perpetuating this rule of ten annual commissioners without appeal; but they tolerated their rule, and backed up their excuses for not retiring, until two acts of tyranny raised mutinies in both the Roman camps. The plebeian soldiers cast off their allegiance to the ruling board, and first, under military leaders of their own choosing, occupied the Aventine; they then, accompanied by the majority of the unarmed Plebeians of Rome, wended their way a second time to the Mons Sacer (449 B.C.). The Senate in alarm sent two of its members, Valerius and Horatius, who were of good repute among the Plebs, to ask their wishes. The answer was: amnesty for the breach of military discipline involved in the secession; the restoration of the provocatio (which meant the dissolution of the decemvirate) and of the tribunician power.[414] The demands had not increased since the first secession; protection was all that the Plebeians yet demanded.

Everything was granted; the decemviri were forced by the Senate to an unwilling abdication; the tribunate was re-established, and, as no plebeian magistrate existed, the unusual step was taken of having the election conducted by the pontifex maximus.[415] A resolution was then elicited from the Plebs by the tribune Duilius that consuls should be created subject to the right of appeal. It was accepted by the Senate,[416] who appointed an interrex. The comitia of the centuries returned Valerius and Horatius. Under the guidance of the consuls the assembly proceeded to pass a series of laws (the leges Valeriae Horatiae) which more than satisfied the demands of the Plebs. One guaranteed the perpetuity of the provocatio by the enactment that “no one should in future create a magistrate from whom there was no appeal; any one who created such a magistrate should be protected by no law sacred or profane and might be slain with impunity.”[417] The law was evidently called out by the unlimited power of the decemvirate which had just been abolished; it did more than merely affirm the first lex Valeria,[418] for it rendered the creation of an absolute judicial power by the rogatio of a magistrate a capital offence, even when this proposal had been accepted by the people. But the scope of the appeal was not extended; the “creation” of a magistrate referred to election sanctioned by the people, and did not, therefore, affect the right of the consul to nominate a dictator from whom there was no appeal; nor did it extend the limits of the appeal beyond the original boundaries—the pomerium or, at the utmost, the first milestone from the city.[419]

Two other laws aimed at giving a legal existence to the plebeian community. One gave a legal sanction to the sacrosanctitas of the plebeian magistrates by enacting that any one who injured them should be sacer to the whole community.[420] Another gave a more binding character to the formal resolutions passed at the concilium of the Plebs. Its import is obscure, but there can be no doubt that it marks an important stage in the validity of plebiscita. We are told that it was meant to settle the controverted question whether resolutions of the Plebs were binding on Patricians;[421] and that it did this by enacting that “whatsoever the Plebs commanded by its tribes should bind the people (ut, quod tributim plebes jussisset, populum teneret).” It is possible that our authority has misunderstood the purport of this law, but hardly likely that the misconception is so great as that imagined by some modern theorists. It is certain that there is no implication that plebiscita had from this time the force of leges; it was agreed that the resolutions of the Plebs did not gain the force of Acts of Parliament until more than 160 years later. Recent attempts to interpret the Valerio-Horatian law have been based on the supposition that it was concerned with some mode in which a plebiscitum might become a lex, that it facilitated the transformation of a resolution of the Plebs into a binding law of the Populus, through an intermediary channel, consuls or Senate.[422] The wording of the law (hardly so remote from its original as has been supposed) scarcely gives a warrant for this view; it speaks only of giving a “binding character” to such resolutions. It must be remembered that at this time the plebeian community was not really bound by the resolutions of its own concilium, for this was not a legally recognised corporation. The Valerio-Horatian law may have made it such, a corporate body passing resolutions binding on all its members. But a law which is valid for a corporation is valid for those outside the corporation. The ordinances, it is true, which have this binding force must refer immediately only to the affairs of the community which dictates them. This was the case with plebiscita now. All self-regarding ordinances of the Plebs bound the Plebeians in the first degree, the Patricians, if it infringed existing rights, in the second degree. All plebiscita of a wider scope must still have been mere petitions to the consuls.[423] We can hardly conceive that the law discriminated accurately between what was possible to the Plebs and what was not; it was sufficient to recognise the already established maxim that corporations could frame their own rules dum ne quid ex publica lege corrumpant.[424] From this time onwards, down to 287, whenever we find plebiscita affecting matters of national interest or creating changes in the constitution,[425] we must assume that they were brought by the magistrates before the people to be ratified as laws; although doubtless the undefined limits of plebeian prerogative were often exceeded.

The first great utterance of the Plebs, which followed the Valerio-Horatian law, was one of this character, for it attached a criminal (and therefore a public) penalty to a derogation of duty to the Plebeians. On the proposal of M. Duilius, the tribune, the Plebs resolved that “any one who left the Plebs without tribunes or created a (plebeian) magistrate without appeal should be scourged and executed.”[426] It was a mode by which the Plebs tried to guard itself from any possible surrender of its liberties such as that which had created the decemvirate.

The Plebs, thus secured in its original privileges, recognised as a corporate body, and feeling, as a result of the Twelve Tables, that its law was in the main the law of the state, began to aim at something more than protection. From this time begins the continuous struggle for the complete equalisation of the two orders. It was opened by the tribune Canuleius in the year 445. He rightly held that social must precede political equality, and proposed in the assembly of the Plebs that marriage should be permitted between Patricians and Plebeians.[427] The only reasonable objection which the consuls, representing the feeling of the Patriciate, could bring forward against the measure, was the time-worn pretext that was said to have influenced the decemvirs in inserting the prohibition in their code, viz. that the Plebeians had no auspices, and that the disappearance of a pure race would mean a break in the chain which connected the state with heaven.[428] But the pretext expressed the real fears of the Patriciate. Intermarriage between the orders would break down the religious barrier which guarded the consulship; this was the prize for which the Plebs was striving. In fact a suggestion, emanating from the tribunes at the beginning of the year, had already assumed the form of a rogatio to the effect that “the people should have power to choose consuls at its pleasure either from the Plebs or from the patres.”[429] Over the marriage question the usual contest ensued, and with the usual result. The consuls led the opposition as long as they could; at last the Senate was beaten, the magistrates were forced to bring the question before the people, and marriage between the orders was legalised.[430] The tribunes followed up their victory by pressing their measure for the opening of the consulship. It was felt that open resistance would be useless; and a device was resorted to which illustrates the Roman genius for adaptability, for dignified political chicanery, and for satisfying at the same time the demands of reason and prejudice. The immediate evil felt was the irruption of the Plebeians into supreme office; but there must have been for some time a growing sense that the executive machinery of the state was by no means equal to the demands made on it. The two consuls were at once military leaders, the sole administrators of the higher civil and criminal jurisdiction, and the sole officials entrusted with the duty of registering and distributing burdens over the citizens. Such a combination of functions could not continue to exist with the widening of Rome’s political horizon, and the first attempt was now made at a division of the military, judicial, and registrative duties of the supreme magistrate.