A History of the Roman World (15 page)

Having gained protection against the magistrates, the plebs next demanded that the law should be published so that the patricians might no longer be able to interpret unwritten custom as they willed. Tradition relates that the agitation started with the tribune C. Terentilius Harsa, who in 462 proposed to set up a commission of five men with consular power to write down the laws (less probably their purpose was to limit the consular
imperium
). The patricians resisted the proposal and a regular struggle between the orders continued until a compromise was reached in 454, when three commissioners were sent to Greece to study foreign legal systems. On their return it was decided to suspend the regular constitution and the magistrates, consuls and tribunes alike, and to set up as the executive government in 451 a Commission of Ten who were unhampered by the right of appeal. These decemvirs, all of whom were patricians, acted with vigour and justice and issued a code inscribed on Ten Tables, which was duly sanctioned by the Comitia Centuriata. In 450 a similar commission was established to complete their work; apart from its leader, Appius Claudius, its members were all different from those of the first commission, and some were plebeians. These commissioners added two more tables of what Cicero dubs ‘unjust laws’ to the existing ten and began to rule oppressively, refusing to resign. During a reign of terror when most of his colleagues were absent on military service Appius Claudius, in particular, played the tyrant. Two acts of violence heralded their fall: a brave warrior and tribune, Sicinius Dentatus, was murdered, and the maiden Verginia was slain by her own father to save her from the clutches of Appius. The plebs thereupon seceded, the decemvirs abdicated, and negotiations resulted in the restoration of constitutional government. Ten tribunes and an
interrex
were appointed, and L. Valerius Potitus and M. Horatius Barbatus were elected consuls for 449.

Few details of the account are above suspicion, but the outline is certain and is supported by the Fasti and by the fragments of the code which, though revised by later Roman jurists, still survive. Many details about Terentilius are merely later inductions, but the rarity of his name and the consensus of sources regarding the importance of his work may establish him as the pioneer in the movement to obtain a written code. The supposed visit to Greece is more doubtful, since the object was to publish existing law, not to
make new laws. The story of Dentatus, a plebeian hero who was the object of patrician treachery, may have been incorporated into the more famous legend of the tyranny of the decemvirs. The poetical legend of Verginia bears some similarity to that of Lucretia, who caused the fall of another tyrant. The oppression of the second decemvirs may have been overemphasized; the necessarily somewhat harsh conditions of a primitive code may have given rise later to the view that the lawmakers were themselves harsh: were not Draco’s laws said to be written in blood? Or, since the names of the second decemvirs are somewhat suspect, this second group might have been invented merely because the commission lasted more than one year. Further, the secession of the plebs is difficult to explain if five of the decemvirs were really plebeian. It has been suggested that Appius Claudius sought to abolish the ‘state within the state’ by allowing the plebeians a share in the supreme magistracy as well as equal laws. But as certain concessions were won by the plebs in the following year, possibly these resulted from a secession that had aimed at restoring the tribunes and the regular government when once the immediate object of the publication of the law had been attained.
¹⁸

The Twelve Tables contained the ‘whole body of Roman law’ and formed ‘the fountainhead of all law, public and private’.
¹⁹
Schoolboys in Cicero’s day still learnt their sentences by heart. In some respects they were the Ten Commandments of the Romans. Like many early codes, such as Hammurabi’s, they were a medley of primitive survivals and more progressive ideas. But they affirmed the equality of all free men in the eyes of the law and so they survived as a sound basis for society, while Hammurabi’s code, which, though superior in some respects, recognized a regal power superior to law, collapsed with the civilization of Babylon. In the main the Twelve Tables are the codification of customary law, now made statute law; but in the process they were simplified and brought up to date. Though not directly modelled on Solon’s code, they show the influence of Greek law, which came perhaps from contact with Greek colonies: hence the story of the Roman embassy to Greece. As the form in which they survive shows traces of further modernization by later Roman jurists, clearly they were regarded not merely as of antiquarian interest, but as a continuing living source of law.

It is not possible here to discuss the contents of the Tables or their relative antiquity, though some may be enumerated to illustrate the wide scope of the legislation. In private law a slight weakening of the
patria potestas
is noticeable in a greater recognition of a wife’s rights (pp. 322ff.). But intermarriage between members of the two orders was forbidden in one of the two supplementary Tables. Since hitherto it is likely that custom rather than law had discouraged intermarriage, this measure looks like a somewhat desperate bid by the patricians to create an even stricter caste system at a time when they saw other privileges threatened. Other rules facilitated the emancipation of
sons and of slaves, granted freedom of testamentary disposition, regulated inheritance, debt, usury, contracts and conveyances e.g.: ‘If a man enters into a personal obligation or makes a purchase, as the tongue has spoken, so shall it be.’); the rights of association were defined, assemblies by night were forbidden as leading to treason, while guilds were permitted. Amid much that was progressive in civil law, such as a clear conception of contract and liberal testamentary laws, the executive machinery of criminal law was lacking, apart from the
quaestores parricidii
. For instance, a plaintiff received little help in carrying out a judgment which was given in his favour, and the
lex talionis
survived: ‘If one breaks another’s limb and fails to compound with him, let limb be given for limb’; a burglar at night could be killed on the spot. Hanging was the penalty for the destruction of standing corn; this represents an old religious survival. But while the rules of procedure for all civil actions were published, yet the set forms of words in which pleadings were to be conducted (
actiones
) remained the secret of the patrician pontiffs. The plebs had won a great victory, but they had even so to press close on the heels of their retreating foe.

Tradition records that the legislation brought forward by Valerius and Horatius, the consuls who in 449
BC
replaced the decemvirs, was a landmark in the history of the orders: the right of appeal was restored,
plebiscita
were given the force of law, and the sacrosanctity of the tribunes was reaffirmed. But, although modern writers have been busy removing the ancient landmarks, it is nonetheless possible to retain the view that by a secession in 449 the plebs forced the patricians to recognize in law the rights of the tribunes, which hitherto they had been forced to recognize only by custom. This was a great victory. Further, although it is improbable that the decrees of the people were really given the force of law, the plebs may have asserted their right to issue laws, just as previously they had asserted the rights of their tribunes; but the patricians were not yet ready to yield to this fresh plebeian attack.
²⁰
Thus the plebs had finally established their state within the state and had obtained a clear exposition of the law. It remained for them to claim greater social equality and for their leaders to storm the stronghold of the patrician magistracies. During this siege the two opposing forces were gradually welded into one.

In 445 a tribune named Canuleius launched an attack on both the social and political fronts. He forced through a law repealing the statute of the Twelve Tables which prohibited intermarriage between the two classes; it was decreed that children should be enrolled in the
gens
of their father, whatever form of marriage had been contracted by the parents. Though the patrician
rite of
confarreatio
was left untouched, the inclusion of sons of plebeian women in patrician
gentes
undermined the religious claim of the patricians that their clans alone were acceptable to the divine powers. Canuleius’ colleagues then proposed that the consulship should be opened to the plebeians. To parry this thrust the Senate virtually abolished the office by decreeing that ‘military tribunes with consular power’ should be appointed in place of consuls; these officials, who at first numbered three, might be patricians or plebeians. Probably one of the military tribunes first elected in 445 was a plebeian, but plebeian representation was very slight before 400.
²¹
The device was a compromise: the appointment of a larger number of high officials may have answered the military needs of the day, but a real political concession had been wrested from the patricians.

At the same time the patricians, seeing their monopoly of office threatened, strove to retain some control by dividing the functions of the chief magistracy. Hitherto the consuls had been responsible for maintaining the
census
or roll of citizens; it was now decided to appoint special censors. It has been suggested that the ‘Servian’ reforms belong to this date and that censors were created to deal with the new classification of the citizens. Although the origin of this reform is found in the regal period, it is not improbable that the system of classes and centuries was extended at this date. Thus the establishment of the censorship allowed the consuls or military tribunes more freedom from civil affairs, and the patricians to cling to their prerogatives: for whether or not the censorship was closed to plebeians by law, no plebeian held the office for nearly a century (351). There were two censors, appointed first in 443; ten years later their period of office was fixed at eighteen months. It is uncertain how often they were appointed in the early days, but later they took office every five years, when they solemnly purified the people by a
lustrum
(‘cleansing’), a ceremony at which a pig, a sheep and a bull were led in a three-fold procession and then sacrificed while a sacred fire was rekindled. At first the censors’ duties were to register all citizens and their property and to assign them to the due tribes and centuries. They also made up a list of those liable to cavalry service (the equites), and later were empowered by a Lex Ovinia (before 312) to revise the list of the Senate. Gradually they acquired a general oversight over public morals and became responsible for leasing state contracts, as an Office of Works. These various wide powers soon endowed the censors, who lacked
imperium
, with an authority and dignity that raised their office to one of the most honourable in the state: it came to be regarded as the climax of a successful public career.
²²

The necessity to delegate business had resulted in the creation of the quaestors (p. 72). In 421 their number was raised to four and the office was opened to plebeians, and in 409 three out of the four quaestors were plebeians. Their functions were largely financial and they did not receive
imperium
, so that the patricians perhaps regarded this concession as small. But it was the thin end of the wedge. Later the quaestorship became the first step in an official career and gave the right to a seat on the Senate.

Thus during the fifth century the plebeians had wrested many concessions from the patricians. In civil law the two orders were equal. Socially, the right of intermarriage was affirmed despite patrician tactics. Politically, the plebeian institutions were recognized, although they did not yet form part of the constitution; the power of the tribunes increased. The patricians were still entrenched behind their religious privileges and maintained their leadership in the Senate and assemblies. Towards the end of the century the plebeians slackened in their demands, partly because there was less unity of purpose among the rich and poor members of their order; partly because the energy of many of their leaders was distracted by the foreign wars against the Aequi, Volsci and Etruscans. When the Gauls sacked Rome in 390, therefore, a fair unanimity had been established in domestic affairs. But the distress of the aftermath fanned the embers once more into a fierce blaze, which finally destroyed the patrician monopoly of government.

When the Etruscan power in Latium collapsed after the Latin
revanche
and the battle of Aricia, the Latins naturally came into conflict with Rome, the most southerly outpost of Etruria. Yet clearly it was to their mutual advantage that ties of blood should prevail and that Rome should once again become the spearhead of the Latins, thrust into the Etruscan flank. Amid the dim mists of legends which envelop this period two facts emerge clearly: that a war was fought between Rome and the Latins, and that it ended in an alliance.
¹

The earliest treaty between Rome and Carthage shows clearly that Republican Rome claimed to uphold the hegemony in Latium which her kings had exercised. The Latins, however, refused to tolerate this and organized themselves into a league from which Rome was excluded. The identification and development of the early federations of Latins, as has been seen (p. 35), is an obscure subject. One federation met at the
nemus Aricinum
; a list of members, preserved by Cato who perhaps saw the inscription which he records, shows us that it once was led by a dictator Laevius (or Baebius) Egerius of Tusculum and included Tusculum, Aricia, Lanuvium, Lavinium, Cora, Tibur, Pometia and Ardea, an area of some 600 square miles. It quite probably should be identified with a league which met at Aqua Ferentina, in which Aricia played a leading part in the time of Tarquinius Superbus (Livy, i, 50). However that may be, the Latins probably gathered
ad caput Ferentinae
to agree their plans for war against Rome. The allied forces then met the Romans at the battle of Lake Regillus (probably Pantano Secco) near
Tusculum (499 or 496). Although tradition enlivens the fray with the presence of the Great Twin Brethren and other romantic episodes, the battle itself remains an historical fact, though it was hardly a glorious Roman victory.
²

As a result a treaty was concluded by Spurius Cassius in 493 between Rome and thirty Latin cities as two independent powers. Rome formally resigned any claim to hegemony in Latium and recognized her position as an equal of the Latins. The Latins were willing to conclude an agreement, not because of any fictitious military disaster, but the Volsci and Aurunci were pressing hard upon them and had perhaps recently destroyed two Latin cities, Cora and Pometia. It was essential that the Latins should present a united front against their foes. The terms of this treaty,
the foedus Cassianum
, were that perpetual peace should be established between Rome and the Latins; they should render mutual aid in war and have equal shares of the booty; possibly the military command should be held in alternate years by Rome and the League; further, there should be a community of private rights between citizens of Rome and any Latin city. This last clause is of fundamental importance as it lays down the principle by which Rome ultimately united Italy. The Cassian treaty, of which a bronze copy survived in the Roman Forum till Sulla’s day, remains a landmark in the early history of Rome.
³

Soon after the Latin alliance Rome concluded a similar treaty with the Hernici of the Trerus valley, who formed a league under the leadership of Anagnia.
⁴
The traditional details of the alliance are uncertain; it is unlikely that the Hernici obtained the treaty by surrendering some of their territory to Rome, while its similarity to the
foedus Cassianum
explains why it also was attributed to Spurius Cassius. But its object is clear: the Hernici were saved from being crushed between the Aequi and Volsci, and the Romans by an early application of the principle of
divide et impera
won a buffer state between their enemies.

This triple alliance of the Romans, Latins and Hernici resulted from a pressing danger. At the beginning of the fifth century the Sabellian tribes of the central Apennines became restless, possibly under the first stirrings of Celtic pressure from the north. Following their tribal emblems, the wolf, bull or boar, the bands of the Sacred Spring were ever advancing to settle in new territories and coveting the fertile lowlands where they saw good winter pasturage for their herds. Their strongest thrust was in southern Italy, but they also pressed hard upon the inhabitants of the mountains that encircle Latium. These in turn presented a grave danger to the Latins. The external history of Rome during the fifth century is the story of how she and her allies had to fight for their very existence against this foreign pressure. For Rome was ringed around by foes. In the north were the Etruscans; in the north-east between the Tiber and Anio were the Sabines from around Reate; in the east among the mountains between the Anio and Trerus lay the Aequi; and in the
south between the Aequi and the sea on the bastion of Monti Lepini were the Volsci. In the nick of time Rome patched up her quarrel with the Latins by a timely self-effacement and then drove a wedge between two of her enemies by the Hernican alliance.