The History of Rome. Book II

by Theodor Mommsen

  Moderation of the Government

  But the Roman senate had the wisdom not to overlook the fact, that the only means of giving permanence to despotism is moderation on the part of the despots. On that account there was left with, or conferred on, the dependent communities an autonomy, which included a shadow of independence, a special share in the military and political successes of Rome, and above all a free communal constitution - so far as the Italian confederacy extended, there existed no community of Helots. On that account also Rome from the very first, with a clear-sightedness and magnanimity perhaps unparalleled in history, waived the most dangerous of all the rights of government, the right of taxing her subjects. At the most tribute was perhaps imposed on the dependent Celtic cantons: so far as the Italian confederacy extended, there was no tributary community. On that account, lastly, while the duty of bearing arms was partially devolved on the subjects, the ruling burgesses were by no means exempt from it; it is probable that the latter were proportionally far more numerous than the body of the allies; and in that body, again, probably the Latins as a whole were liable to far greater demands upon them than the non-Latin allied communities. There was thus a certain reasonableness in the appropriation by which Rome ranked first, and the Latins next to her, in the distribution of the spoil acquired in war.

  Intermediate Functionaries - Valuation of the Empire

  The central administration at Rome solved the difficult problem of preserving its supervision and control over the mass of the Italian communities liable to furnish contingents, partly by means of the four Italian quaestorships, partly by the extension of the Roman censorship over the whole of the dependent communities. The quaestors of the fleet[42], along with their more immediate duty, had to raise the revenues from the newly acquired domains and to control the contingents of the new allies; they were the first Roman functionaries to whom a residence and district out of Rome were assigned by law, and they formed the necessary intermediate authority between the Roman senate and the Italian communities. Moreover, as is shown by the later municipal constitution, the chief functionaries in every Italian community[43], whatever might be their title, had to undertake a valuation every fourth or fifth year - an institution, the suggestion of which must necessarily have emanated from Rome, and which can only have been intended to furnish the senate with a view of the resources in men and money of the whole of Italy, corresponding to the census in Rome.

  Italy and the Italians

  Lastly, with this military administrative union of the whole peoples dwelling to the south of the Apennines, as far as the Iapygian promontory and the straits of Rhegium, was connected the rise of a new name common to them all - that of "the men of the toga" (togati), which was their oldest designation in Roman state law, or that of the "Italians", which was the appellation originally in use among the Greeks and thence became universally current. The various nations inhabiting those lands were probably first led to feel and own their unity, partly through their common contrast to the Greeks, partly and mainly through their common resistance to the Celts; for, although an Italian community may now and then have made common cause with the Celts against Rome and employed the opportunity to recover independence, yet in the long run sound national feeling necessarily prevailed. As the "Gallic field" down to a late period stood contrasted in law with the Italian, so the "men of the toga" were thus named in contrast to the Celtic "men of the hose" (braccati); and it is probable that the repelling of the Celtic invasions played an important diplomatic part as a reason or pretext for centralizing the military resources of Italy in the hands of the Romans. Inasmuch as the Romans on the one hand took the lead in the great national struggle and on the other hand compelled the Etruscans, Latins, Sabellians, Apulians, and Hellenes (within the bounds to be immediately described) alike to fight under their standards, that unity, which hitherto had been undefined and latent rather than expressed, obtained firm consolidation and recognition in state law; and the name Italia, which originally and even in the Greek authors of the fifth century - in Aristotle for instance - pertained only to the modern Calabria, was transferred to the whole land of these wearers of the toga.

  Earliest Boundaries of the Italian Confederacy

  The earliest boundaries of this great armed confederacy led by Rome, or of the new Italy, reached on the western coast as far as the district of Leghorn south of the Arnus[44], on the east as far as the Aesis north of Ancona. The townships colonized by Italians, lying beyond these limits, such as Sena Gallica and Ariminum beyond the Apennines, and Messana in Sicily, were reckoned geographically as situated out of Italy - even when, like Ariminum, they were members of the confederacy or even, like Sena, were Roman burgess communities. Still less could the Celtic cantons beyond the Apennines be reckoned among the togati, although perhaps some of them were already among the clients of Rome.

  First Steps towards the Latininzing of Italy - New Position of Rome as a Great Power

  The new Italy had thus become a political unity; it was also in the course of becoming a national unity. Already the ruling Latin nationality had assimilated to itself the Sabines and Volscians and had scattered isolated Latin communities over all Italy; these germs were merely developed, when subsequently the Latin language became the mother-tongue of every one entitled to wear the Latin toga. That the Romans already clearly recognized this as their aim, is shown by the familiar extension of the Latin name to the whole body of contingent-furnishing Italian allies[45]. Whatever can still be recognized of this grand political structure testifies to the great political sagacity of its nameless architects; and the singular cohesion, which that confederation composed of so many and so diversified ingredients subsequently exhibited under the severest shocks, stamped their great work with the seal of success. From the time when the threads of this net drawn as skilfully as firmly around Italy were concentrated in the hands of the Roman community, it was a great power, and took its place in the system of the Mediterranean states in the room of Tarentum, Lucania, and other intermediate and minor states erased by the last wars from the list of political powers. Rome received, as it were, an official recognition of its new position by means of the two solemn embassies, which in 481 were sent from Alexandria to Rome and from Rome to Alexandria, and which, though primarily they regulated only commercial relations, beyond doubt prepared the way for a political alliance. As Carthage was contending with the Egyptian government regarding Cyrene and was soon to contend with that of Rome regarding Sicily, so Macedonia was contending with the former for the predominant influence in Greece, with the latter proximately for the dominion of the Adriatic coasts. The new struggles, which were preparing on all sides, could not but influence each other, and Rome, as mistress of Italy, could not fail to be drawn into the wide arena which the victories and projects of Alexander the Great had marked out as the field of conflict for his successors.

  CHAPTER VIII

  Law, Religion, Military System, Economic Condition, Nationality

  Development of Law

  In the development which law underwent during this period within the Roman community, probably the most important material innovation was that peculiar control which the community itself, and in a subordinate degree its office-bearers, began to exercise over the manners and habits of the individual burgesses. The germ of it is to be sought in the right of the magistrate to inflict property-fines (multae) for offences against order[1]. In the case of all fines of more than two sheep and thirty oxen or, after the cattle-fines had been by the decree of the people in 324 commuted into money, of more than 3020 libral asses (30 pounds), the decision soon after the expulsion of the kings passed by way of appeal into the hands of the community[2]; and thus procedure by fine acquired an importance which it was far from originally possessing. Under the vague category of offences against order men might include any accusations they pleased, and by the higher grades in the scale of fines they might accomplish whatever they desired. The dangerous character of such arbitrary procedure wa
s brought to light rather than obviated by the mitigating proviso, that these property-fines, where they were not fixed by law at a definite sum, should not amount to half the estate belonging to the person fined. To this class belonged the police-laws, which from the earliest times were especially abundant in the Roman community. Such were those enactments of the Twelve Tables, which prohibited the anointing of a dead body by persons hired for the purpose, the dressing it out with more than one cushion or more than three purple-edged coverings, the decorating it with gold or gaudy chaplets, the use of dressed wood for the funeral pile, and the perfuming or sprinkling of the pyre with frankincense or myrrh-wine; which limited the number of flute-players in the funeral procession to ten at most; and which forbade wailing women and funeral banquets - in a certain measure the earliest Roman legislation against luxury. Such also were the laws - originating in the conflicts of the orders - directed against usury as well as against an undue use of the common pasture and a disproportionate appropriation of the occupiable domain-land. But far more fraught with danger than these and similar fining-laws, which at any rate formulated once for all the trespass and often also the measure of punishment, was the general prerogative of every magistrate who exercised jurisdiction to inflict a fine for an offence against order, and, if the fine reached the amount necessary to found an appeal and the person fined did not submit to the penalty, to bring the case before the community. Already in the course of the fifth century quasi-criminal proceedings had been in this way instituted against immorality of life both in men and women, against the forestalling of grain, witchcraft, and similar matters. Closely akin to this was the quasi-jurisdiction of the censors, which likewise sprang up at this period. They were invested with authority to adjust the Roman budget and the burgess-roll, and they availed themselves of it, partly to impose of their own accord taxes on luxury which differed only in form from penalties on it, partly to abridge or withdraw the political privileges of the burgess who was reported to have been guilty of any infamous action[3]. The extent to which this surveillance was already carried is shown by the fact that penalties of this nature were inflicted for the negligent cultivation of a man's own land, and that such a man as Publius Cornelius Rufinus (consul in 464, 477) was struck off the list of senators by the censors of 479, because he possessed silver plate to the value of 3360 sesterces (34 pounds). No doubt, according to the rule generally applicable to the edicts of magistrates[4], the sentences of the censors had legal force only during their censorship, that is on an average for the next five years, and might be renewed or not by the next censors at pleasure. Nevertheless this censorial prerogative was of so immense importance, that in virtue of it the censorship, originally a subordinate magistracy, became in rank and consideration the first of all[5].

  The government of the senate rested essentially on this twofold police control supreme and subordinate, vested in the community and its officials, and furnished with powers as extensive as they were arbitrary. Like every such arbitrary government, it was productive of much good and much evil, and we do not mean to combat the view of those who hold that the evil preponderated. But we must not forget that - amidst the morality external certainly but stern and energetic, and the powerful enkindling of public spirit, that were the genuine characteristics of this period - these institutions remained exempt as yet from any really base misuse; and if they were the chief instruments in repressing individual freedom, they were also the means by which the public spirit and the good old manners and order of the Roman community were with might and main upheld.

  Modifications in the Laws

  Along with these changes a humanizing and modernizing tendency showed itself slowly, but yet clearly enough, in the development of Roman law. Most of the enactmerits of the Twelve Tables, which coincide with the laws of Solon and therefore may with reason be considered as in substance innovations, bear this character; such as the securing the right of free association and the autonomy of the societies that originated under it; the enactment that forbade the ploughing up of boundary-balks; and the mitigation of the punishment of theft, so that a thief not caught in the act might henceforth release himself from the plaintiff's suit by payment of double compensation. The law of debt was modified in a similar sense, but not till upwards of a century afterwards, by the Poetelian law[6]. The right freely to dispose of property, which according to the earliest Roman law was accorded to the owner in his lifetime but in the case of death had hitherto been conditional on the consent of the community, was liberated from this restriction, inasmuch as the law of the Twelve Tables or its interpretation assigned to the private testament the same force as pertained to that confirmed in the curies. This was an important step towards the breaking up of the clanships, and towards the full carrying out of individual liberty in the disposal of property. The fearfully absolute paternal power was restricted by the enactment, that a son thrice sold by his father should not relapse into his power, but should thenceforth be free; to which - by a legal inference that, strictly viewed, was no doubt absurd - was soon attached the possibility that a father might voluntarily divest himself of dominion over his son by emancipation. In the law of marriage civil marriage was permitted[7]; and although the full marital power was associated as necessarily with a true civil as with a true religious marriage, yet the permission of a connection instead of marriage[8], formed without that power, constituted a first step towards relaxation of the full power of the husband. The first step towards a legal enforcement of married life was the tax on old bachelors (aes uxorium) with the introduction of which Camillus began his public career as censor in 351.

  Administration of Justice - Code of Common Law - New Judicial Functionaries

  Changes more comprehensive than those effected in the law itself were introduced into - what was more important in a political point of view, and more easily admitted of alteration - the system of judicial administration. First of all came the important limitation of the supreme judicial power by the embodiment of the common law in a written code, and the obligation of the magistrate thenceforth to decide no longer according to varying usage, but according to the written letter, in civil as well as in criminal procedure (303, 304). The appointment of a supreme magistrate in Rome exclusively for the administration of justice in 387[9], and the establishment of separate police functionaries which took place contemporaneously in Rome, and was imitated under Roman influence in all the Latin communities[10], secured greater speed and precision of justice. These police-magistrates or aediles had, of course, a certain jurisdiction at the same time assigned to them. On the one hand, they were the ordinary civil judges for sales concluded in open market, for the cattle and slave markets in particular; and on the other hand, they ordinarily acted in processes of fines and amercements as judges of first instance or - which was in Roman law the same thing - as public prosecutors. In consequence of this the administration of the laws imposing fines, and the equally indefinite and politically important right of fining in general, were vested mainly in them. Similar but subordinate functions, having especial reference to the poorer classes, pertained to the three night - or blood-masters (tres viri nocturni or capitales), first nominated in 465; they were entrusted with the duties of nocturnal police as regards fire and the public safety and with the superintendence of executions, with which a certain summary jurisdiction was very soon, perhaps even from the outset, associated[11]. Lastly from the increasing extent of the Roman community it became necessary, out of regard to the convenience of litigants, to station in the more remote townships special judges competent to deal at least with minor civil causes. This arrangement was the rule for the communities of burgesses sine suffragio[12], and was perhaps even extended to the more remote communities of full burgesses[13], - the first germs of a Romano-municipal jurisdiction developing itself by the side of that which was strictly Roman.

  Changes in Procedure

  In civil procedure (which, however, according to the ideas of that period included most of the
crimes committed against fellow-citizens) the division of a process into the settlement of the question of law before the magistrate (ius), and the decision of the question of fact by a private person nominated by the magistrate (iudicium) - a division doubtless customary even in earlier time - was on the abolition of the monarchy prescribed by law[14]; and to that separation the private law of Rome was mainly indebted for its logical clearness and practical precision[15]. In actions regarding property, the decision as to what constituted possession, which hitherto had been left to the arbitrary caprice of the magistrate, was subjected gradually to legal rules; and, alongside of the law of property, a law of possession was developed - another step, by which the magisterial authority lost an important part of its powers. In criminal processes, the tribunal of the people, which hitherto had exercised the prerogative of mercy, became a court of legally secured appeal. If the accused after hearing (quaestio) was condemned by the magistrate and appealed to the burgesses, the magistrate proceeded in presence of these to the further hearing (anquisitio) and, when he after three times discussing the matter before the community had repeated his decision, in the fourth diet the sentence was confirmed or rejected by the burgesses. Modification was not allowed. A similar republican spirit breathed in the principles, that the house protected the burgess, and that an arrest could only take place out of doors; that imprisonment during investigation was to be avoided; and that it was allowable for every accused and not yet condemned burgess by renouncing his citizenship to withdraw from the consequences of condemnation, so far as they affected not his property but his person-principles, which certainly were not embodied in formal laws and accordingly did not legally bind the prosecuting magistrate, but yet were by their moral weight of the greatest influence, particularly in limiting capital punishment. But, if the Roman criminal law furnishes a remarkable testimony to the strong public spirit and to the increasing humanity of this epoch, it on the other hand suffered in its practical working from the struggles between the orders, which in this respect were specially baneful. The co-ordinate primary jurisdiction of all the public magistrates in criminal cases, that arose out of these conflicts[16], led to the result, that there was no longer any fixed authority for giving instructions, or any serious preliminary investigation, in Roman criminal procedure. And, as the ultimate criminal jurisdiction was exercised in the forms and by the organs of legislation, and never disowned its origin from the prerogative of mercy; as, moreover, the treatment of police fines had an injurious reaction on the criminal procedure which was externally very similar; the decision in criminal causes was pronounced - and that not so much by way of abuse, as in some degree by virtue of the constitution--not according to fixed law, but according to the arbitrary pleasure of the judges. In this way the Roman criminal procedure was completely void of principle, and was degraded into the sport and instrument of political parties; which can the less be excused, seeing that this procedure, while especially applied to political crimes proper, was applicable also to others, such as murder and arson. The evil was aggravated by the clumsiness of that procedure, which, in concert with the haughty republican contempt for non-burgesses, gave rise to a growing custom of tolerating, side by side with the more formal process, a summary criminal, or rather police, procedure against slaves and common people. Here too the passionate strife regarding political processes overstepped natural limits, and introduced institutions which materially contributed to estrange the Romans step by step from the idea of a fixed moral order in the administration of justice.