Part 98

"The most celebrated system of jurisprudence known to the world begins, as it ends, with a code. From the commencement to the close of its history, the expositors of Roman Law consistently employed language which implied that the body of their system rested on the Twelve Decemviral [Tables, and therefore on a basis of written law. Except in one particular, no institutions anterior to the Twelve Tables were recognised at Rome. The theoretical descent of Roman jurisprudence from a code, the theoretical ascription of English law to immemorial unwritten tradition, were the chief reasons why the development of their system differed from the development of ours. Neither theory corresponded exactly with the facts, but each produced consequences of the utmost importance. … The ancient Roman code belongs to a class of which almost every civilised nation in the world can show a sample, and which, so far as the Roman and Hellenic worlds were concerned, were largely diffused over them at epochs not widely distant from one another. They appeared under exceedingly similar circumstances, and were produced, to our knowledge, by very similar causes. … In Greece, in Italy, on the Hellenised sea-board of Western Asia, these codes all made their appearance at periods much the same everywhere, not, I mean, at periods identical in point of time, but similar in point of the relative progress of each community. Everywhere, in the countries I have named, laws engraven on tablets and published to the people take the place of usages deposited with the recollection of a privileged oligarchy. … The ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing. It is true that the aristocracies seem to have abused their monopoly of legal knowledge; and at all events their exclusive possession of the law was a formidable impediment to the success of those popular movements which began to be universal in the western world. But, though democratic sentiment may have added to their popularity, the codes were certainly in the main a direct result of the invention of writing. Inscribed tablets were seen to be a better depositary of law, and a better security for its accurate preservation, than the memory of a number of persons however strengthened by habitual exercise. … Among the chief advantages which the Twelve Tables and similar codes conferred on the societies which obtained them, was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions. The Roman Code was merely an enunciation in words of the existing customs of the Roman people. Relatively to the progress of the Romans in civilization, it was a remarkably early code, and it was published at a time when Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded."

_H. S. Maine, Ancient Law, chapter 1._

ROME: B. C. 449. The Valerio-Horatian Laws.

On the overthrow of the tyranny of the Decemvirs, at Rome, B. C. 449, L. Valerius Potitus and M. Horatius Barbatus, being elected consuls, brought about the passage of certain laws, known as the Valerio-Horatian Laws. These renewed an old law (the Valerian Law) which gave to every Roman citizen an appeal from the supreme magistrate to the people, and they also made the plebiscita, or resolutions of the assembly of the tribes, authoritative laws, binding on the whole body politic.

_H. G. Liddell, History of Rome, book 2, chapter 10._

See a discussion of the importance of the last mentioned of these laws, in its relations to the subsequent Publilian and Hortensian laws.

See, ROME: B. C. 286.

ROME: B. C. 445-400. The Canuleian Law. Creation of the Consular Tribunes. Progress of the Plebs toward Political Equality.

"The year 449 had not taken from the patricians all their privileges. Rome has still two classes, but only one people, and the chiefs of the plebs, sitting in the senate, are meditating, after the struggle to obtain civil equality, to commence another to gain political equality. … Two things maintained the insulting distinction between the two orders: the prohibition of marriage between patricians and plebeians, and the tenure of all the magisterial officers by those who formed since the origin of Rome the sovereign people of the 'patres.' In 445 B. C. the tribune Canuleius demanded the abolition of the prohibition relative to marriages, and his colleagues, a share in the consulate. This was a demand for political equality." The Canuleian law legalizing marriages between patricians and plebeians was conceded, but not until a third "secession" of the plebeians had taken place. The plebeian demand for a share in the consulate was pacified for the time by a constitutional change which formed out of the consulate three offices: "the quæstorship, the censorship and the consular tribunate. The two former are exclusively patrician. The military [or consular] tribunes, in reality proconsuls confined, with one exception, to the command of the legions, could now be chosen without distinction, from the two orders. But the law, in not requiring that every year a fixed number of them be plebeians, allowed them to be all patricians; and they remained so for nearly fifty years. In spite of such skilful precautions, the senate did not give up the consulate. It held in reserve and pure from all taint the patrician magistracy, hoping for better days. … The constitution of 444 B. C. authorized the nomination of plebeians to the consular tribunate; down to 400 B. C. none obtained it; and during the seventy-eight years that this office continued, the senate twenty-four times nominated consuls, that is to say, it attempted, and succeeded, one year in three, in re-establishing the ancient form of government. {2668} These perpetual oscillations encouraged the ambitious hopes of a rich knight, Spurius Mælius (439 B. C.). He thought that the Romans would willingly resign into his hands their unquiet liberty, and during a famine he gave very liberally to the poor. The senate became alarmed at this alms-giving which was not at all in accordance with the manners of that time, and raised to the dictatorship Cincinnatus, who, on taking office, prayed the gods not to grant that his old age should prove a cause of hurt or damage to the republic. Summoned before the tribunal of the dictator, Mælius refused to appear, and sought protection against the lictors amongst the crowd which filled the Forum. But the master of the horse, Serv. Ahala, managed to reach him, and ran him through with his sword. In spite of the indignation of the people, Cincinnatus sanctioned the act of his lieutenant, caused the house of the traitor to be demolished, and the 'præfectus annonæ,' Minucius Augurinus, sold, for an 'as' per 'modius,' the corn amassed by Mælius. Such is the story of the partisan of the nobles [Livy]; but at that epoch to have dreamt of reestablishing royalty would have been a foolish dream in which Spurius could not have indulged. Without doubt he had wished to obtain, by popular favour, the military tribunate, and in order to intimidate the plebeian candidates, the patricians overthrew him by imputing to him the accusation which Livy complacently details by the mouth of Cincinnatus, of having aimed at royalty. The crowd always can be cajoled by words, and the senate had the art of concentrating on this word 'royalty' all the phases of popular hatred. The move succeeded; during the eleven years following the people nine times allowed consuls to be nominated. There was, however, in 433 B. C. a plebeian dictator, Mamercus Æmilius, who reduced the tenure of censorship to 18 months. These nine consulships gave such confidence to the nobles that the senate itself had to suffer from the proud want of discipline shown by the consuls of the year 428 B. C. Though conquered by the Æquians, they refused to nominate a dictator. To overcome their resistance the senate had recourse to the tribunes of the people, who threatened to drag the consuls to prison. To see the tribunitian authority protecting the majesty of the senate was quite a new phenomenon. From this day the reputation of the tribunate equalled its power, and few years passed without the plebeians obtaining some new advantage. Three years earlier the tribunes, jealous of seeing the votes always given to the nobles, had proscribed the white robes, which marked out from a distance, to all eyes, the patrician candidate: This was the first law against undue canvassing. In 430 a law put an end to arbitrary valuations of penalties payable in kind. In 427 the tribunes, by opposing the levies, obliged the senate to carry to the comitia centuriata the question of the war against Veii. In 423 they revived the agrarian law, and demanded that the tithe should be more punctually paid in the future by the occupiers of domain land, and applied to the pay of the troops. They miscarried this time: but in 421 it seemed necessary to raise the number of quæstors from two to four; the people consented to it only on the condition that the quæstorship be accessible to the plebeians. Three years later 3,000 acres of the lands of Labicum were distributed to fifteen hundred plebeian families. It was very little: so the people laid claim in 414 to the division of the lands of Bola, taken from the Æquians. A military tribune, Postumius, being violently opposed to it, was slain in an outbreak of the soldiery. This crime, unheard of in the history of Roman armies, did harm to the popular cause; there was no distribution of lands, and for five years the senate was able to nominate the consuls. The patrician reaction produced another against it which ended in the thorough execution of the constitution of the year 444. An Icilius in 412, a Mænius in 410 B. C. took up again the agrarian law, and opposed the levy. The year following three of the Icilian family were named as tribunes. It was a menace to the other order. The patricians understood it, and in 410 three plebeians obtained the quæstorship. In 405 pay was established for the troops, and the rich undertook to pay the larger portion of it. Finally, in 400, four military tribunes out of six were plebeians. The chiefs of the people thus obtained the public offices and even places in the senate, and the poor obtained an indemnity which supported their families while they served with the colours. All ambitions, all desires, are at present satisfied. Calm and union returned to Rome; we can see it in the vigour of the attacks on external foes."

_V. Duruy, History of Rome, volume 1, pages 231-239._

ROME: B. C. 406-396. The Veientine wars. Proposed removal to Veii.

"Veii lay about ten miles from Rome, between two small streams which meet a little below the city and run down into the Tiber, falling into it nearly opposite to Castel Giubileo, the ancient Fidenæ. Insignificant in point of size, these little streams, however, like those of the Campagna generally, are edged by precipitous rocky cliffs, and thus are capable of affording a natural defence to a town built on the table-land above and between them. The space enclosed by the walls of Veii was equal to the extent of Rome itself, so long as the walls of Servius Tullius were the boundary of the city. … In the magnificence of its public and private buildings Veii is said to have been preferred by the Roman commons to Rome: and we know enough of the great works of the Etruscans to render this not impossible."

_T. Arnold, History of Rome, chapter 12 (volume 1)._

"Rome and Veii, equals in strength and size, had engaged in periodical conflicts from time immemorial. … But the time had come for the final struggle with Veii. … How the siege lasted for ten years [B. C. 406-396]; how, at the bidding of a captured Tuscan seer, the Alban Lake was drained (and is not the tunnel which drained it visible to-day?); how Camillus, the dictator, by a tunnel underground took the city, and fore·stalled the sacrifice; how Juno came from Veii, and took up her abode upon the Aventine; how Camillus triumphed; and how the nemesis fell upon him, and he was banished—all this and more is told by Livy in his matchless way. It is an epic, and a beautiful epic."

_R. F. Horton, History of the Romans, chapter 4._

{2669}

At the time of the conquest of Veii, there was a proposal that half the inhabitants of Rome should remove to the empty city, and found a new state. It was defeated with difficulty. A little later, when the Gauls had destroyed Rome, its citizens, having found Veii a strong and comfortable place of refuge, were nearly persuaded to remain there and not rebuild their former home. Thus narrowly was the "Eternal City" saved to history.

_H. G. Liddell, History of Rome, book 2, chapters 13 and 15._

ROME: B. C. 390-347. Invasions by the Gauls. Destruction of the city.

"Before the time we are now speaking of, there had been a great movement in these Celtic nations [of Gael and Cymri]. Two great swarms went out from Gaul. Of these, one crossed the Alps into Italy; the other, moving eastward, in the course of time penetrated into Greece. … It is supposed that the Gael who dwelt in the eastern parts of Gaul, being oppressed by Cymric tribes of the west and north, went forth to seck new homes in distant lands. … At all events, it is certain that large bodies of Celts passed over the Alps before and after this time, and having once tasted the wines and eaten the fruits of Italy, were in no hurry to return from that fair land into their own less hospitable regions. We read of one swarm after another pressing into the land of promise; parties of Lingones, whose fathers lived about Langres in Champagne; Boians, whose name is traced in French Bourbon and Italian Bologna; Senones, whose old country was about Sens, and who have left record of themselves in the name of Senigaglia (Sena Gallica) on the coast of the Adriatic. … They overran the rich plains of Northern Italy, and so occupied the territory which lies between the Alps, the Apennines and the Adriatic [except Liguria] that the Romans called this territory Gallia Cisalpina, or Hither Gaul. The northern Etruscans gave way before these fierce barbarians, and their name is heard of no more in those parts. Thence the Gauls crossed the Apennines into southern Etruria, and while they were ravaging that country they first came in contact with the sons of Rome. The common date for this event is 300 B. C. … The tribe which took this course were of the Senones, as an authors say, and therefore we may suppose they were Gaelic; but it has been thought they were mixed with Cymri, since the name of their king or chief was Brennus, and Brenhin is Cymric for a king." The Romans met the invaders on the banks of the Alia, a little stream from the Sabine Hills which flows into the Tiber, and were terribly defeated there. The Gauls entered Rome and found, as the ancient story is, only a few venerable senators, sitting in their chairs and robes of state, whom they slew, because one of the senators resented the stroking of his beard by an insolent barbarian. The remaining inhabitants had withdrawn into the Capitol, or taken refuge at Veii and Cære. After pillaging and burning the city, the Gauls laid siege to the Capitol, and strove desperately for seven months to overcome its defenders by arms or famine. In the end they retreated, without success, but whether bribed, or driven, or weakened by sickness, is matter of uncertainty. The Romans cherished many legends connected with the siege of the Capitol,—like that, for example, of the sentinel and the sacred geese. "Thirty years after the first irruption (361 B. C.), we hear that another host of Senonian Gauls burst into Latium from the north, and, in alliance with the people of Tibur, ravaged the lands of Rome, Latium and Campania. For four years they continued their ravages, and then we hear of them no more. A third irruption followed, ten years later [B. C. 347], of still more formidable character. At that time, the Gauls formed a stationary camp on the Alban Hills and kept Rome in perpetual terror. … After some months they poured southwards, and disappear from history."

_H. G. Liddell, History of Rome, book 2, chapter 14 (volume 1)._

ALSO IN: _T. Mommsen, History of Rome, book 2, chapter 4._

_A. J. Church, Stories from Livy, chapters 13-14._

ROME: B. C. 376-367. The Licinian Laws.

"C. Licinius Stolo and L. Sextius … being Tribunes of the Plebs together in the year 376 B. C. promulgated the three bills which have ever since borne the name of the Licinian Rogations. These were:

I. That of all debts on which interest had been paid, the sum of the interest paid should be deducted from the principal, and the remainder paid off in three successive years.

II. That no citizen should hold more than 500 jugera (nearly 320 acres) of the Public Land, nor should feed on the public pastures more than 100 head of larger cattle and 500 of smaller, under penalty of a heavy fine.

III. That henceforth Consuls, not Consular Tribunes, should always be elected, and that one of the two Consuls must be a Plebeian."

The patricians made a desperate resistance to the adoption of these proposed enactments for ten years, during most of which long period the operations of government were nearly paralyzed by the obstinate tribunes, who inflexibly employed their formidable power of veto to compel submission to the popular demand. In the end they prevailed, and the Licinian rogations became Laws.

_H. G. Liddell, History of Rome, book 2, chapter 15 (volume 1)._

"Licinius evidently designed reuniting the divided members of the plebeian body. Not one of them, whether rich or poor, but seems called back by these bills to stand with his own order from that time on. If this supposition was true, then Licinius was the greatest leader whom the plebeians ever had up to the time of Cæsar. But from the first he was disappointed. The plebeians who most wanted relief cared so little for having the consulship opened to the richer men of their estate that they would readily have dropped the bill concerning it, lest a demand should endanger their own desires. In the same temper the more eminent men of the order, themselves among the creditors of the poor and the tenants of the domain, would have quashed the proceedings of the tribunes respecting the discharge of debt and the distribution of land, so that they carried the third bill only, which would make them consuls without disturbing their possessions. While the plebeians continued severed from one another, the patricians drew together in resistance to the bills. Licinius stood forth demanding, at once, all that it had cost his predecessors their utmost energy to demand, singly and at long intervals, from the patricians. … The very comprehensiveness of his measures proved the safeguard of Licinius. Had he preferred but one of these demands, he would have been unhesitatingly opposed by the great majority of the patricians. On the other hand he would have had comparatively doubtful support from the plebs." In the end, after a struggle of ten years duration, Licinius and Sextius carried their three bills, together with a fourth, brought forward later, which opened to the plebeians the office of the duumvirs, who consulted the Sibyline books. {2670} "It takes all the subsequent history of Rome to measure the consequences of the Revolution achieved by Licinius and Sextius; but the immediate working of their laws could have been nothing but a disappointment to their originators and upholders. … For some ten years the law regarding the consulship was observed, after which it was occasionally violated, but can still be called a success. The laws of relief, as may be supposed of all such sumptuary enactments, were violated from the first. No general recovery of the public land from those occupying more than five hundred jugera ever took place. Consequently there was no general division of land among the lack-land class. Conflicting claims and jealousy on the part of the poor must have done much to embarrass and prevent the execution of the law. No system of land survey to distinguish between 'ager publicus' and 'ager privatus' existed. Licinius Stolo himself was afterwards convicted of violating his own law. The law respecting debts met with much the same obstacles. The causes of embarrassment and poverty being much the same and undisturbed, soon reproduced the effects which no reduction of interest or installment of principal could effectually remove. … These laws, then, had little or no effect upon the domain question or the re-distribution of land. They did not fulfil the evident expectation of their author in uniting the plebeians into one political body. This was impossible. What they did do was to break up and practically abolish the patriciate. Henceforth were the Roman people divided into rich and poor on]y."

_A. Stephenson, Public Lands and Agrarian Laws of the Roman Republic (Johns Hopkins University Studies, 9th series, numbers 7-8)._

ALSO IN: _T. Mommsen, History of Rome, book 2, chapter 3 (volume 1)._

_S. Eliot, The Liberty of Rome, book 2, chapter 7 (volume 1)._

ROME: B. C. 366. Institution of the Prætorship.

"By the establishment of the prætorship (366 B. C.) the office of chief judge was separated as a distinct magistracy from the consulship. … The prætor was always looked upon as the colleague of the consuls. He was elected in the same manner as the consuls by centuriate comitia, and, moreover, under the same auspices. He was furnished with the imperium, had lictors and fasces. He represented the consuls in town by assembling the senate, conducting its proceedings, executing its decrees. … Up to the time of the first Punic war one prætor only was annually elected. Then a second was added to conduct the jurisdiction between citizens and foreigners. A distinction was now made between the city prætor (prætor urbanus), who was always looked upon as having a higher dignity, and the foreign prætor (prætor peregrinus). On the final establishment of the two provinces of Sicily and Sardinia, probably 227 B. C., two new prætors were appointed to superintend the regular government of those provinces, and still later on two more were added for the two provinces of Spain. The number of annual prætors now amounted to six, and so it remained until the legislation of Sulla."

_W. Ihne, History of Rome, book 6, chapter 5._

See, also, CONSUL, ROMAN.

ROME: B. C. 343-290. The Samnite Wars.