History of Roman Literature from its Earliest Period to the Augustan Age. Vol. II

by John Colin Dunlop

Towards the conclusion of the dialogue, Cicero mentions so many of his predeceased contemporaries, that Atticus remarks, that he is drawing up the dregs of oratory. Calidius, indeed, seems the only other speaker who merits distinguished notice. He is characterized as different from all other orators,—such was the soft and polished language in which he arrayed his exquisitely delicate sentiments. Nothing could be more easy, pliable, and ductile, than the turn of his periods; his words flowed like a pure and limpid stream, without anything hard or muddy to impede or pollute their course; his action was genteel, his mode of address sober and calm, his arrangement the perfection of art. “The three great objects of an orator,” says Cicero, while discussing the merits of Calidius, “are to instruct, delight, and move. Two of these he admirably accomplished. He rendered the most abstruse subject clear by illustration, and enchained the minds of his hearers with delight. But the third praise of moving and exciting the soul must be denied him; he had no force, pathos, or animation[292].” Such, indeed, was his want of emotion, where it was most appropriate, and most to be expected, that, while pleading his own cause against Q. Gallius for an attempt to poison him, though he stated his case with elegance and perspicuity, yet it was so smoothly and listlessly detailed, that Cicero, who spoke for the person accused, argued, that the charge must be false and an invention of his own, as no one could talk so calmly, and with such indifference, of a recent attempt which threatened his own existence[293].

These were the most renowned orators who preceded the age of Cicero, or were contemporaries with him; and before proceeding to consider the oratorical merits of him by whom they have been all eclipsed, at least in the eye of posterity, it may be proper, for a single moment, to remind the reader of the state of the Roman law,—of the judicial procedure, and of the ordinary practice of the Forum, at the time when he commenced and pursued his brilliant career of eloquence.

The laws of the first six kings of Rome, called the Leges Regiæ, chiefly related to sacred subjects,—regulations of police,—divisions of the different orders in the state,—and privileges of the people. Tarquinius Superbus having laid a plan for the establishment of despotism at Rome, attempted to abolish every law of his predecessors which imposed control on the royal prerogative. About the time of his expulsion[294], the Senate and people, believing that the disregard of the laws was occasioned by their never having been reduced in writing, determined to have them assembled and recorded in one volume; and this task was intrusted by them to Sextus Papyrius, a patrician. Papyrius accordingly collected, with great assiduity, all the laws of the monarchs who had governed Rome previously to the time of Tarquin. This collection, which is sometimes called the Leges Regiæ, and sometimes the Papyrian Code, did not obtain that confirmation and permanence which might have been expected. Many of the Leges Regiæ were the result of momentary emergencies, and inapplicable to future circumstances. Being the ordinances, too, of a detested race, and being in some respects but ill adapted to the genius and temper of a republican government, a great number of them soon fell into desuetude[295]. The new laws promulgated immediately after the expulsion of the kings, related more to those constitutional modifications which were rendered necessary by so important a revolution, than to the civil rights of the citizen. In consequence of the dissensions of the patricians and plebeians, every Senatusconsultum proceeding from the deliberations of the Senate was negatived by the veto of the Tribunes, while the Senate, in return, disowned the authority of the Plebiscita, and denied the right of the Tribunes to propose laws. There was thus a sort of legal interregnum at Rome; at least, there were no fixed rules to which all classes were equally subjected: and the great body [pg 134]of the people were too often the victims of the pride of the patricians and tyranny of the consular government. In this situation, C. Terentius Arsa brought forward the law known by the name of Terentilla, of which the object was the election by the people of ten persons, who should compose and arrange a body of laws for the administration of public affairs, as well as decision of the civil rights of individuals according to established rules. The Senate, who maintained that the dispensation of justice was solely vested in the supreme magistrates, contrived, for five years, to postpone execution of this salutary measure; but it was at length agreed, that, as a preparatory step, and before the creation of the Decemvirs, who were to form this code, three deputies should be sent to Greece, and the Greek towns of Italy, to select such enactments as they might consider best adapted to the manners and customs of the Roman people.

The delegates, who departed on this embassy towards the close of the year 300, were occupied two years in their important mission. From what cities of Greece, or Magna Græcia, they chiefly borrowed their laws, has been a topic of much discussion, and seems to be still involved in much uncertainty[296]; though Athens is most usually considered as having been the great fountain of their legislation.

On the return of the deputies to Rome, the office of Consul was suppressed, and ten magistrates, called Decemvirs, among whom these deputies were included, were immediately created. To them was confided the care of digesting the prodigious mass of laws which had been brought from Greece. This task they accomplished with the aid of Hermodorus, an exile of Ephesus, who then happened to be at Rome, and acted as their interpreter. But although the importation from Greece formed the chief part of the twelve tables, it cannot be supposed that the ancient laws of Rome were entirely superseded. Some of the Leges Regiæ, which had no reference to monarchical government, as the laws of Romulus, concerning the Patria potestas, those concerning parricides, the removal of landmarks, and insolvent debtors, had, by tacit consent, passed into consuetudinary law; and all those which were still in observance were incorporated in the Decemviral Code; in the same manner as the institutions of the heroic ages of Greece formed a part of the laws of Solon and Lycurgus.

Before a year had elapsed from the date of their creation, the Decemvirs had prepared ten books of laws; which, being [pg 135]engraved on wooden or ivory tables, were presented to the people, and received the sanction of the Senate, and ratification of the Comitia Centuriata. Two supplementary tables were soon afterwards added, in consequence of some omissions which were observed and pointed out to the Decemvirs. In all these tables the laws were briefly expressed. The first eight related to matters of private right, the ninth to those of public, and the tenth to those of religious concern. These ten tables established very equitable rules for all different ranks, without distinction; but in the two supplemental tables some invidious distinctions were introduced, and many exclusive privileges conferred on the patricians.

On the whole, the Decemvirs appear to have been very well versed in the science of legislation. Those who, like Cicero[297] and Tacitus, possessed the Twelve Tables complete, and who were the most competent judges of how far they were adapted to the circumstances and manners of the people, have highly commended the wisdom of these laws. Modern detractors have chiefly objected to the sanguinary punishments they inflicted, the principles of the law of retaliation which they recognized, and the barbarous privileges permitted to creditors on the persons of their debtors. The severer enactments, however, of the Twelve Tables, were evidently never put in force, or so soon became obsolete, that the Roman laws were at length esteemed remarkable for the mildness of their punishments—the penalties of scourging, or death, being scarcely in any case inflicted on a Roman citizen.

The tables on which the Decemviral Code had been inscribed, were destroyed by the Gauls at the sack of the city; but such pains were taken in recovering copies, or making them out from recollection, that the laws themselves were almost completely re-established.

It might reasonably have been expected that a system of jurisprudence, carefully extracted from the whole legislative wisdom of Italy and Greece, should have restored in the commonwealth that good order and security which had been overthrown by the uncertainty of the laws, and the disputes of the patricians and plebeians. But the event did not justify the well-founded expectation. The ambition and lawless passions of the chief Decemvir had rendered it necessary for him and his colleagues to abdicate their authority before they had settled with sufficient precision how their enactments were to be put in practice or enforced. It thus became essential to introduce certain formulæ, called Legis Actiones, in order [pg 136]that the mode of procedure might not remain arbitrary and uncertain. These, consisting chiefly of certain symbolical gestures, adapted to a legal claim or defence, were prepared by Claudius Cœcus about the middle of the fifth century of Rome, but were intended to be kept private among the pontiffs and patrician Jurisconsults, that the people might not have the benefit of the law without their assistance. Cl. Flavius, however, a secretary of Claudius, having access to these formularies, transcribed and communicated them to the people about the middle of the fifth century of Rome. From this circumstance they were called the Jus civile Flavianum. This discovery was so disagreeable to the patricians, that they devised new legal forms, which they kept secret with still more care than the others. But in 553, Sextus Ælius Catus divulged them again, and in consequence, these last prescripts obtained the name of Jus Ælium, which may be regarded as the last part and completion of the Decemviral laws; and it continued to be employed as the form of process during the whole remaining period of the existence of the commonwealth.

As long as the republic survived, the Twelve Tables formed the foundation of the Roman law, though they were interpreted and enlarged by such new enactments as the circumstances of the state demanded[298]. Thus the Lex Aquilia and Alinia were mere modifications of different heads of the twelve tables. Most of the new laws were introduced in consequence of the increase of empire and luxury, and the conflicting interests of the various orders in the state. Laws, properly so called, were proposed by a superior magistrate, as the Consul, Dictator, or Prætor, with consent of the Senate; they were passed by the whole body of the people, patricians and plebeians, assembled in the Comitia Centuriata, and bore ever after the name of the proposer.