It was this quality of precision and formalism which made Rome the lawgiver of Europe. In the battle between law and sentiment the Roman sword has been thrown with decisive effect into the scale of law. All Roman law was originally a series of formulæ, and like all ancient law a part of religion. First the king and then the priests were the only people who knew these formulæ. Thus the king was the sole judge both in private and public right; he might summon a council of advisers or he might delegate his powers to an inferior officer, such as the prætor or the prefect of the city, or the trackers of murder. Both these rights, that of choosing a consilium and of delegating authority, with, however, a right of appeal from the lower to the higher functionary, remained inherent in the Roman magistracy. In all cases, private or public, the king or the magistrate who replaced him had to pronounce the jus first: that is, to state the proper formula for the case in question; then he would send the case for trial of fact, or judicium, before judge or jury. The formula would run “if it appears that A. B. has been guilty of—— condemn him to ——; if not, acquit him.” Jus, human right, was inseparably connected with fas, divine right: no layman could properly interpret either. For a long time it was necessary for one of the priests to be present in court to see that the proper formularies of action were observed with strict verbal accuracy. This was, of course, an enormously powerful weapon in the hands of the patricians.
Then in the course of the struggle between the orders came the usual demand for written laws. The famous story of the Decemviri and their commission to Athens in 451 B.C. is unfortunately very dubious history. It is full of romantic elements, it is part of that systematic depreciation of the Claudii in Roman history which Mommsen has traced to its probable source, it has elements which look as if they were borrowed from the story of the thirty tyrants at Athens, and there is no confirmation from the Athenian side. Professor Pais believes that the fifth century is much too early for such a code. There are, it is true, in the fragments of the Twelve Tables which have come down to us, some enactments closely resembling those of the Greek codes—regulations, for example, limiting the expense of funerals—but we find such laws in other codes than that of Solon. One would like to have fuller details about that later Appius Claudius, the famous censor of 312 B.C. It is said that he desired to reduce the now complicated bulk of legal formulæ to writing simply for the benefit of the priests, but that a low-born scribe, one Flavius, whom he employed for the purpose as his clerk, fraudulently revealed these judicial secrets to the public. The whole tendency of the Claudian falsifications is to make out that the Claudii were tyrannical and anti-democratic. It certainly looks as if the dishonesty of the freedman had been put into the story for the purpose of robbing the famous censor of his credit for helping the people to a knowledge of law.
The whole fabric of Roman law was supposed to rest upon the foundation of the Twelve Tables. Only fragments of them have come down to us. They are undoubtedly very ancient and primitive, more so, it would seem, than the Athenian law of 451 B.C. Fines are to be paid in metal by weight. A creditor has the right to carve up the body of his debtor. Plebeian may not intermarry with patrician. But they also carried something of a charter of liberties for the citizens in that capital punishment could not be inflicted without right of appeal to the assembly, and no law could be proposed against an individual. The language of this famous code is of a rugged simplicity and directness that is truly Roman. On the whole Roman law is merciful, considering its strict character: though much of Roman pleading, as we have it in the mouth of Cicero, is full of appeals to sentiment, Roman law itself allows no appeal to anything so vague as abstract justice. The written letter stands, and there can be no pleading without a legal formula.
The character of the ancient Roman is best described by his favourite virtue of gravitas. In that word is implied serious purpose, dignified reserve, fidelity to one’s promise, and a sense of duty. Levity is its opposite, and among the things repugnant to true Roman gravity were art, music, and literature. It is on the battlefield, in the senate-house, and the law-courts that the old Roman is most truly at home.
II
CONQUEST
quæ neque Dardanus campis potuere perire
nec quom capta capi, nec quom combusta cremari,
augusto augurio postquam incluta condita Roma est.
Ennius.
HE great Samnite wars, which had lasted on and off from 343 to 290 B.C., had been the school of Roman valour. In her citizen legions Rome had evolved a fighting machine unequalled, probably, until the Musketeers of Louis XIV. and Marlborough. Also she was learning politics and the art of government. She was now mistress over the greater part of Italy; all, in fact, except the Gallic plain in the north and the Greek cities of the south. The Pyrrhic war which followed after a short breathing-space forms the transition between domestic expansion and foreign conquest. Our business here is not with wars and battles for their own sake, but it will be important to observe in what manner Rome was launched on her career of empire-making. Seeley has shown how the British Empire grew up in a haphazard manner, without any wise policy to direct its growth, with continual neglect of opportunities, and often in contemptuous ignorance of the work that private citizens were undertaking for its honour and advancement. We shall see that it was very much the same with the Roman Empire. One responsibility leads to another, one conquest leads to many entanglements: if the coast is to be held the hinterland must be conquered. Thus power follows capacity, and the doctrine which seems so unjust, “To him that hath shall be given, from him that hath not shall be taken away even that which he seemeth to have,” is fulfilled in all the dealings between Providence and imperial peoples. By coming into contact with the Greeks of the south Rome was brought definitely to deal with a superior but declining civilisation. The career of Agathocles, the brigand tyrant of Sicily, had lately shown how easy a thing it was to make empires among the opulent and luxurious cities of the Calabrian and Bruttian shores.
One summer’s day in 282 B.C. the people of Tarentum were seated in their open-air theatre, watching the performance of a tragedy. They looked out above the stage over the blue waters of the Gulf of Calabria, and there they saw a small detachment of the Roman fleet sailing into their harbour. The ships were on a voyage entirely peaceful, but there was an old treaty forbidding the Romans to pass the Lacinian Promontory, and these barbarians had lately been interfering in the affairs of their Greek neighbours, always in favour of oligarchy against democracy. The mob was seized with a sudden access of fury; they rushed down to the harbour, butchered or enslaved the sailors, and put the admiral to death. The Roman Senate met this atrocious insult with calm, even with generosity. But the Tarentine mob would have no peace. Looking abroad for a champion they invited the Prince of Epirus to their aid. Pyrrhus was a young man of charm, ability, and ambition almost equal to that of Alexander the Great, whose career he longed to emulate in the West. He was called the first general of his day, and he brought with him 20,000 infantrymen of the phalanx, 2000 archers, 500 slingers, and 3000 cavalry. Moreover he had twenty Indian war elephants. The boastful Greeks had offered to provide 350,000 infantry, but when it came to the point they would do nothing but hire a few mercenaries. However, Pyrrhus was victorious in the first battle near Heraclea. The victory was won, it is said, by the final charge of the elephants. The simple Romans had never seen an elephant before; they called them “snake-hands” and “Lucanian cows,” and their horses were even more alarmed than they. But the next time the Romans had to meet elephants they provided themselves first with wonderful machines, in which chariots were mysteriously blended with chafing-dishes, and then when these failed, with fiery darts, which converted this heavy cavalry into engines of destruction for their owners. That is rather typical of the simple Roman and his way of encountering monsters.
After the victory of Heraclea, Pyrrhus sent to Rome with overtures of peace a smooth-tongued courtier named Cineas, who was much impressed with the incorruptibility of the political chiefs and their wives. It was he who described the Senate as a “council of kings,” so grave and majestic was their bearing and discourse. Nevertheless the Roman Senate would have made terms if it had not been for the great Censor Appius Claudius, now blind and infirm, who laid down for the first time the celebrated doctrine that Rome never listened to terms while there were foreign troops on Italian soil. Therefore, although the Romans had lost 15,000 men, fresh conscripts eagerly enrolled themselves to make a new army.