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.