The History of Rome, Book I

CHAPTER XI
Law and Justice

Modern Character of Italian Culture

History, as such, cannot reproduce the life of a people in the infinite variety of its details; it must be content with exhibiting the development of that life as a whole. The doings and dealings, the thoughts and imaginings of the individual, however strongly they may reflect the characteristics of the national mind, form no part of history. Nevertheless it seems necessary to make some attempt to indicate—only in the most general outlines—the features of individual life in the case of those earlier ages which are, so far as history is concerned, all but lost in oblivion; for it is in this field of research alone that we acquire some idea of the breadth of the gulf which separates our modes of thinking and feeling from those of the civilized nations of antiquity. Tradition, with its confused mass of national names and its dim legends, resembles withered leaves which with difficulty we recognize to have once been green. Instead of threading that dreary maze and attempting to classify those shreds of humanity, the Chones and Oenotrians, the Siculi and the Pelasgi, it will be more to the purpose to inquire how the real life of the people in ancient Italy expressed itself in their law, and their ideal life in religion; how they farmed and how they traded; and whence the several nations derived the art of writing and other elements of culture. Scanty as our knowledge in this respect is in reference to the Roman people and still more so in reference to the Sabellians and Etruscans, even the slight and very defective information which is attainable will enable the mind to associate with these names some more or less clear glimpse of the once living reality. The chief result of such a view (as we may here mention by way of anticipation) may be summed up in saying that fewer traces comparatively of the primitive state of things have been preserved in the case of the Italians, and of the Romans in particular, than in the case of any other Indo-Germanic race. The bow and arrow, the war-chariot, the incapacity of women to hold property, the acquiring of wives by purchase, the primitive form of burial, blood-revenge, the clan-constitution conflicting with the authority of the community, a vivid natural symbolism —all these, and numerous phenomena of a kindred character, must be presumed to have lain at the foundation of civilization in Italy as well as elsewhere; but at the epoch when that civilization comes clearly into view they have already wholly disappeared, and only the comparison of kindred races informs us that such things once existed. In this respect Italian history begins at a far later stage of civilization than e.g. the Greek or the Germanic, and from the first it exhibits a comparatively modern character.

The laws of most of the Italian stocks are lost in oblivion. Some information regarding the law of the Latin land alone has survived in Roman tradition.

Jurisdiction

All jurisdiction was vested in the community or, in other words, in the king, who administered justice or "command" (-ius-) on the "days of utterance" (-dies fasti-) at the "judgment platform" (-tribunal-) in the place of public assembly, sitting on the "chariot-seat" (-sella curulis-);⁹¹ by his side stood his "messengers" (-lictores-), and before him the person accused or the "parties" (-rei-). No doubt in the case of slaves the decision lay primarily with the master, and in the case of women with the father, husband, or nearest male relative;⁹² but slaves and women were not primarily reckoned as members of the community. Over sons and grandsons who were -in potestate- the power of the -pater familias- subsisted concurrently with the royal jurisdiction; that power, however, was not a jurisdiction in the proper sense of the term, but simply a consequence of the father's inherent right of property in his children. We find no traces of any jurisdiction appertaining to the clans as such, or of any judicature at all that did not derive its authority from the king. As regards the right of self-redress and in particular the avenging of blood, we still find perhaps in legends an echo of the original principle that a murderer, or any one who should illegally protect a murderer, might justifiably be slain by the kinsmen of the person murdered; but these very legends characterize this principle as objectionable,⁹³ and from their statements blood-revenge would appear to have been very early suppressed in Rome through the energetic assertion of the authority of the community. In like manner we perceive in the earliest Roman law no trace of that influence which under the oldest Germanic institutions the comrades of the accused and the people present were entitled to exercise over the pronouncing of judgment; nor do we find in the former any evidence of the usage so frequent in the latter, by which the mere will and power to maintain a claim with arms in hand were treated as judicially necessary or at any rate admissible.

Crimes

Judicial procedure took the form of a public or a private process, according as the king interposed of his own motion or only when appealed to by the injured party. The former course was taken only in cases which involved a breach of the public peace. First of all, therefore, it was applicable in the case of public treason or communion with the public enemy (-proditio-), and in that of violent rebellion against the magistracy (-perduellio-). But the public peace was also broken by the foul murderer (-parricida-), the sodomite, the violator of a maiden's or matron's chastity, the incendiary, the false witness, by those, moreover, who with evil spells conjured away the harvest, or who without due title cut the corn by night in the field entrusted to the protection of the gods and of the people; all of these were therefore dealt with as though they had been guilty of high treason. The king opened and conducted the process, and pronounced sentence after conferring with the senators whom he had called in to advise with him. He was at liberty, however, after he had initiated the process, to commit the further handling and the adjudication of the matter to deputies who were, as a rule, taken from the senate. The later extraordinary deputies, the two men for adjudicating on rebellion (-duoviri perduellionis-) and the later standing deputies the "trackers of murder" (-quaestores parricidii-) whose primary duty was to search out and arrest murderers, and who therefore exercised in some measure police functions, do not belong to the regal period, but may probably have sprung out of, or been suggested by, certain of its institutions. Imprisonment while the case was undergoing investigation was the rule; the accused might, however, be released on bail. Torture to compel confession was only applied to slaves. Every one convicted of having broken the public peace expiated his offence with his life. The modes of inflicting capital punishment were various: the false witness, for example, was hurled from the stronghold-rock; the harvest-thief was hanged; the incendiary was burnt. The king could not grant pardon, for that power was vested in the community alone; but the king might grant or refuse to the condemned permission to appeal for mercy (-provocatio-). In addition to this, the law recognized an intervention of the gods in favour of the condemned criminal. He who had made a genuflection before the priest of Jupiter might not be scourged on the same day; any one under fetters who set foot in his house had to be released from his bonds; and the life of a criminal was spared, if on his way to execution he accidentally met one of the sacred virgins of Vesta.

Punishment of Offenses against Order

The king inflicted at his discretion fines payable to the state for trespasses against order and for police offences; they consisted in a definite number (hence the name -multa-) of cattle or sheep. It was in his power also to pronounce sentence of scourging.

Law of Private Offenses

In all other cases, where the individual alone was injured and not the public peace, the state only interposed upon the appeal of the party injured, who caused his opponent, or in case of need by laying violent hands on him compelled him, to appear personally along with himself before the king. When both parties had appeared and the plaintiff had orally stated his demand, while the defendant had in similar fashion refused to comply with it, the king might either investigate the cause himself or have it disposed of by a deputy acting in his name. The regular form of satisfaction for such an injury was a compromise arranged between the injurer and the injured; the state only interfered supplementarily, when the aggressor did not satisfy the party aggrieved by an adequate expiation (-poena-), when any one had his property detained or his just demand was not fulfilled.

Theft

Under what circumstances during this epoch theft was regarded as at all expiable, and what in such an event the person injured was entitled to demand from the thief, cannot be ascertained. But the injured party with reason demanded heavier compensation from a thief caught in the very act than from one detected afterwards, since the feeling of exasperation which had to be appeased was more vehement in the case of the former than in that of the latter. If the theft appeared incapable of expiation, or if the thief was not in a position to pay the value demanded by the injured party and approved by the judge, he was by the judge assigned as a bondsman to the person from whom he had stolen.

Injuries

In cases of damage (-iniuria-) to person or to property, where the injury was not of a very serious description, the aggrieved party was probably obliged unconditionally to accept compensation; if, on the other hand, any member was lost in consequence of it, the maimed person could demand eye for eye and tooth for tooth.

Property

Since the arable land among the Romans was long cultivated upon the system of joint possession and was not distributed until a comparatively late age, the idea of property was primarily associated not with immoveable estate, but with "estate in slaves and cattle" (-familia pecuniaque-). It was not the right of the stronger that was regarded as the foundation of a title to it; on the contrary, all property was considered as conferred by the community upon the individual burgess for his exclusive possession and use; and therefore it was only the burgess, and such as the community accounted in this respect as equal to burgesses, that were capable of holding property. All property passed freely from hand to hand. The Roman law made no substantial distinction between moveable and immoveable estate (from the time that the latter was regarded as private property at all), and recognized no absolute vested interest of children or other relatives in the paternal or family property. Nevertheless it was not in the power of the father arbitrarily to deprive his children of their right of inheritance, because he could neither dissolve the paternal power nor execute a testament except with consent of the whole community, which might be, and certainly under such circumstances often was, refused. In his lifetime no doubt the father might make dispositions disadvantageous to his children; for the law was sparing of personal restrictions on the proprietor and allowed, upon the whole, every grown-up man freely to dispose of his property. The regulation, however, under which he who alienated his hereditary property and deprived his children of it was placed by order of the magistrate under guardianship like a lunatic, was probably as ancient as the period when the arable land was first divided and thereby private property generally acquired greater importance for the commonwealth. In this way the two antagonistic principles—the unlimited right of the owner to dispose of his own, and the preservation of the family property unbroken—were as far as possible harmonized in the Roman law. Permanent restrictions on property were in no case allowed, with the exception of servitudes such as those indispensable in husbandry. Heritable leases and ground-rents charged upon property could not legally exist. The law as little recognized mortgaging; but the same purpose was served by the immediate delivery of the property in pledge to the creditor as if he were its purchaser, who thereupon gave his word of honour (-fiducia-) that he would not alienate the object pledged until the payment fell due, and would restore it to his debtor when the sum advanced had been repaid.

Contracts

Contracts concluded between the state and a burgess, particularly the obligation given by those who became sureties for a payment to the state (-praevides-, -praedes-), were valid without further formality. On the other hand, contracts between private persons under ordinary circumstances gave no claim for legal aid on the part of the state. The only protection of the creditor was the debtor's word of honour which was held in high esteem after the wont of merchants, and possibly also, in those frequent cases where an oath had been added, the fear of the gods who avenged perjury. The only contracts legally actionable were those of betrothal (the effect of which was that the father, in the event of his failing to give the promised bride, had to furnish satisfaction and compensation), of purchase (-mancipatio-), and of loan (-nexum-). A purchase was held to be legally concluded when the seller delivered the article purchased into the hand of the buyer (-mancipare-) and the buyer at the same time paid to the seller the stipulated price in presence of witnesses. This was done, after copper superseded sheep and cattle as the regular standard of value, by weighing out the stipulated quantity of copper in a balance adjusted by a neutral person.⁹⁴ These conditions having been complied with, the seller had to answer for his being the owner, and in addition seller and purchaser had to fulfil every stipulation specially agreed on; the party failing to do so made reparation to the other, just as if he had deprived him of the article in question. But a purchase only founded an action in the event of its being a transaction for ready money: a purchase on credit neither gave nor took away the right of property, and constituted no ground of action. A loan was negotiated in a similar way; the creditor weighed over to the debtor in presence of witnesses the stipulated quantity of copper under the obligation (-nexum-) of repayment. In addition to the capital the debtor had to pay interest, which under ordinary circumstances probably amounted to ten per cent per annum.⁹⁵ The repayment of the loan took place, when the time came, with similar forms.

Private Process

If a debtor to the state did not fulfil his obligations, he was without further ceremony sold with all that he had; the simple demand on the part of the state was sufficient to establish the debt. If on the other hand a private person informed the king of any violation of his property (-vindiciae-) or if repayment of the loan received did not duly take place, the procedure depended on whether the facts relating to the cause needed to be established, which was ordinarily the case with actions as to property, or were already clearly apparent, which in the case of actions as to loans could easily be accomplished according to the current rules of law by means of the witnesses. The establishment of the facts assumed the form of a wager, in which each party made a deposit (-sacramentum-) against the contingency of his being worsted; in important causes when the value involved was greater than ten oxen, a deposit of five oxen, in causes of less amount, a deposit of five sheep. The judge then decided who had gained the wager, whereupon the deposit of the losing party fell to the priests for behoof of the public sacrifices. The party who lost the wager and allowed thirty days to elapse without giving due satisfaction to his opponent, and the party whose obligation to pay was established from the first—consequently, as a rule, the debtor who had got a loan and had not witnesses to attest its repayment—became liable to proceedings in execution "by laying on of hands" (-manus iniectio-); the plaintiff seized him wherever he found him, and brought him to the bar of the judge simply to satisfy the acknowledged debt. The party seized was not allowed to defend himself; a third person might indeed intercede for him and represent this act of violence as unwarranted (-vindex-), in which case the proceedings were stayed; but such an intercession rendered the intercessor personally responsible, for which reason the proletarian could not be intercessor for the tribute-paying burgess. If neither satisfaction nor intercession took place, the king adjudged the party seized to his creditor, so that the latter could lead him away and keep him like a slave. After the expiry of sixty days during which the debtor had been three times exposed in the market-place and proclamation had been made to ascertain whether any one would have compassion upon him, if these steps were without effect, his creditors had the right to put him to death and to divide his carcase, or to sell him with his children and his effects into foreign slavery, or to keep him at home in a slave's stead; for such an one could not by the Roman law, so long as he remained within the bounds of the Roman community, become completely a slave.⁹⁶ Thus the Roman community protected every man's estate and effects with unrelenting rigour as well from the thief and the injurer, as from the unauthorized possessor and the insolvent debtor.

Guardianship

Protection was in like manner provided for the estate of persons not capable of bearing arms and therefore not capable of protecting their own property, such as minors and lunatics, and above all for that of women; in these cases the nearest heirs were called to undertake the guardianship.

Law of Inheritance

After a man's death his property fell to the nearest heirs: in the division all who were equal in proximity of relationship—women included—shared alike, and the widow along with her children was admitted to her proportional share. A dispensation from the legal order of succession could only be granted by the assembly of the people; previous to which the consent of the priests had to be obtained on account of the ritual obligations attaching to succession. Such dispensations appear nevertheless to have become at an early period very frequent. In the event of a dispensation not being procured, the want of it might be in some measure remedied by means of the completely free control which every one had over his property during his lifetime. His whole property was transferred to a friend, who distributed it after death according to the wishes of the deceased.

Manumission

Manumission was unknown to the law of very early times. The owner might indeed refrain from exercising his proprietary rights; but this did not cancel the existing impossibility of master and slave coming under mutual obligations; still less did it enable the slave to acquire, in relation to the community, the rights of a guest or of a burgess. Accordingly manumission must have been at first simply -de facto-, not -de jure-; and the master cannot have been debarred from the possibility of again at pleasure treating the freedman as a slave. But there was a departure from this principle in cases where the master came under obligation not merely towards the slave, but towards the community, to leave him in possession of freedom. There was no special legal form, however, for thus binding the master—the best proof that there was at first no such thing as a manumission,—but those methods were employed for this object which the law otherwise presented, testament, action, or census. If the master had either declared his slave free when executing his last will in the assembly of the people, or had allowed his slave to claim freedom in his own presence before a judge or to get his name inscribed in the valuation-roll, the freedman was regarded not indeed as a burgess, but as personally free in relation to his former master and his heirs, and was accordingly looked upon at first as a client, and in later times as a plebeian.⁹⁷

The emancipation of a son encountered greater difficulties than that of a slave; for while the relation of master to slave was accidental and therefore capable of being dissolved at will, the father could never cease to be father. Accordingly in later times the son was obliged, in order to get free from the father, first to enter into slavery and then to be set free out of this latter state; but in the period now before us no emancipation of sons can have as yet existed.

Clients and Foreigners

Such were the laws under which burgesses and clients lived in Rome. Between these two classes, so far as we can see, there subsisted from the beginning complete equality of private rights. The foreigner on the other hand, if he had not submitted to a Roman patron and thus lived as a client, was beyond the pale of the law both in person and in property. Whatever the Roman burgess took from him was as rightfully acquired as was the shellfish, belonging to nobody, which was picked up by the sea-shore; but in the case of ground lying beyond the Roman bounds, while the Roman burgess might take practical possession, he could not be regarded as in a legal sense its proprietor; for the individual burgess was not entitled to advance the bounds of the community. The case was different in war: whatever the soldier who was fighting in the ranks of the levy gained, whether moveable or immoveable property, fell not to him, but to the state, and accordingly here too it depended upon the state whether it would advance or contract its bounds.

Exceptions from these general rules were created by special state-treaties, which secured certain rights to the members of foreign communities within the Roman state. In particular, the perpetual league between Rome and Latium declared all contracts between Romans and Latins to be valid in law, and at the same time instituted in their case an accelerated civil process before sworn "recoverers" (-reciperatores-). As, contrary to Roman usage, which in other instances committed the decision to a single judge, these always sat in plural number and that number uneven, they are probably to be conceived as a court for the cognizance of commercial dealings, composed of arbiters from both nations and an umpire. They sat in judgment at the place where the contract was entered into, and were obliged to have the process terminated at latest in ten days. The forms, under which the dealings between Romans and Latins were conducted, were of course the general forms which regulated the mutual dealings of patricians and plebeians; for the -mancipatio- and the -nexum- were originally not at all formal acts, but the significant expression of legal ideas which held a sway at least as extensive as the range of the Latin language.

Dealings with countries strictly foreign were carried on in a different fashion and by means of other forms. In very early times treaties as to commerce and legal redress must have been entered into with the Caerites and other friendly peoples, and must have formed the basis of the international private law (-ius gentium-), which gradually became developed in Rome alongside of the law of the land. An indication of the formation of such a law is found in the remarkable -mutuum-, "the exchange" (from -mutare- like -dividuus-)—a form of loan, which was not based like the -nexum- upon a binding declaration of the debtor expressly emitted before witnesses, but upon the mere transit of the money from one hand to another, and which as evidently originated in dealings with foreigners as the -nexum- in business dealings at home. It is accordingly a significant fact that the word reappears in Sicilian Greek as —moiton—; and with this is to be connected the reappearance of the Latin -carcer- in the Sicilian —karkaron—. Since it is philologically certain that both words were originally Latin, their occurrence in the local dialect of Sicily becomes an important testimony to the frequency of the dealings of Latin traders in the island, which led to their borrowing money there and becoming liable to that imprisonment for debt, which was everywhere in the earlier systems of law the consequence of the non-repayment of a loan. Conversely, the name of the Syracusan prison, "stone-quarries" or —latomiai—, was transferred at an early period to the enlarged Roman state-prison, the -lautumiae-.

Character of the Roman Law

We have derived our outline of these institutions mainly from the earliest record of the Roman common law prepared about half a century after the abolition of the monarchy; and their existence in the regal period, while doubtful perhaps as to particular points of detail, cannot be doubted in the main. Surveying them as a whole, we recognize the law of a far-advanced agricultural and mercantile city, marked alike by its liberality and its consistency. In its case the conventional language of symbols, such as e. g. the Germanic laws exhibit, has already quite disappeared. There is no doubt that such a symbolic language must have existed at one time among the Italians. Remarkable instances of it are to be found in the form of searching a house, wherein the searcher must, according to the Roman as well as the Germanic custom, appear without upper garment merely in his shirt; and especially in the primitive Latin formula for declaring war, in which we meet with two symbols occurring at least also among the Celts and the Germans—the "pure herb" (-herba pura-, Franconian -chrene chruda-) as a symbol of the native soil, and the singed bloody staff as a sign of commencing war. But with a few exceptions, in which reasons of religion protected the ancient usages—to which class the -confarreatio- as well as the declaration of war by the college of Fetiales belonged—the Roman law, as we know it, uniformly and on principle rejects the symbol, and requires in all cases neither more nor less than the full and pure expression of will. The delivery of an article, the summons to bear witness, the conclusion of marriage, were complete as soon as the parties had in an intelligible manner declared their purpose; it was usual, indeed, to deliver the article into the hand of the new owner, to pull the person summoned as a witness by the ear, to veil the bride's head and to lead her in solemn procession to her husband's house; but all these primitive practices were already, under the oldest national law of the Romans, customs legally worthless. In a way entirely analogous to the setting aside of allegory and along with it of personification in religion, every sort of symbolism was on principle expelled from their law. In like manner that earliest state of things presented to us by the Hellenic as well as the Germanic institutions, wherein the power of the community still contends with the authority of the smaller associations of clans or cantons that are merged in it, is in Roman law wholly superseded; there is no alliance for the vindication of rights within the state, to supplement the state's imperfect aid, by mutual offence and defence; nor is there any serious trace of vengeance for bloodshed, or of the family property restricting the individual's power of disposal. Such institutions must probably at one time have existed among the Italians; traces of them may perhaps be found in particular institutions of ritual, e. g. in the expiatory goat, which the involuntary homicide was obliged to give to the nearest of kin to the slain; but even at the earliest period of Rome which we can conceive this stage had long been transcended. The clan and the family doubtless were not annihilated in the Roman community; but the theoretical as well as the practical omnipotence of the state in its own sphere was no more limited by them than by the freedom which the state granted and guaranteed to the burgess. The ultimate foundation of law was in all cases the state; freedom was simply another expression for the right of citizenship in its widest sense; all property was based on express or tacit transference by the community to the individual; a contract was valid only so far as the community by its representatives attested it, a testament only so far as the community confirmed it. The provinces of public and private law were definitely and clearly discriminated: the former having reference to crimes against the state, which immediately called for the judgment of the state and always involved capital punishment; the latter having reference to offences against a fellow-burgess or a guest, which were mainly disposed of in the way of compromise by expiation or satisfaction made to the party injured, and were never punished with the forfeit of life, but, at most, with the loss of freedom. The greatest liberality in the permission of commerce and the most rigorous procedure in execution went hand in hand; just as in commercial states at the present day the universal right to draw bills of exchange appears in conjunction with a strict procedure in regard to them. The burgess and the client stood in their dealings on a footing of entire equality; state-treaties conceded a comprehensive equality of rights also to the guest; women were placed completely on a level in point of legal capacity with men, although restricted in action; the boy had scarcely grown up when he received at once the most comprehensive powers in the disposal of his estate, and every one who could dispose at all was as sovereign in his own sphere as was the state in public affairs. A feature eminently characteristic was the system of credit. There did not exist any credit on landed security, but instead of a debt on mortgage the step which constitutes at present the final stage in mortgage-procedure —the delivery of the property from the debtor to the creditor—took place at once. On the other hand personal credit was guaranteed in the most summary, not to say extravagant fashion; for the lawgiver entitled the creditor to treat his insolvent debtor like a thief, and granted to him in entire legislative earnest what Shylock, half in jest, stipulated for from his mortal enemy, guarding indeed by special clauses the point as to the cutting off too much more carefully than did the Jew. The law could not have more clearly expressed its design, which was to establish at once an independent agriculture free of debt and a mercantile credit, and to suppress with stringent energy all merely nominal ownership and all breaches of fidelity. If we further take into consideration the right of settlement recognized at an early date as belonging to all the Latins,⁹⁸ and the validity which was likewise early pronounced to belong to civil marriage,⁹⁹ we shall perceive that this state, which made the highest demands on its burgesses and carried the idea of subordinating the individual to the interest of the whole further than any state before or since has done, only did and only could do so by itself removing the barriers to intercourse and unshackling liberty quite as much as it subjected it to restriction. In permission or in prohibition the law was always absolute. As the foreigner who had none to intercede for him was like the hunted deer, so the guest was on a footing of equality with the burgess. A contract did not ordinarily furnish a ground of action, but where the right of the creditor was acknowledged, it was so all-powerful that there was no deliverance for the poor debtor, and no humane or equitable consideration was shown towards him. It seemed as if the law found a pleasure in presenting on all sides its sharpest spikes, in drawing the most extreme consequences, in forcibly obtruding on the bluntest understanding the tyrannic nature of the idea of right. The poetical form and the genial symbolism, which so pleasingly prevail in the Germanic legal ordinances, were foreign to the Roman; in his law all was clear and precise; no symbol was employed, no institution was superfluous. It was not cruel; everything necessary was performed without much ceremony, even the punishment of death; that a free man could not be tortured was a primitive maxim of Roman law, to obtain which other peoples have had to struggle for thousands of years. Yet this law was frightful in its inexorable severity, which we cannot suppose to have been very greatly mitigated by humanity in practice, for it was really the law of the people; more terrible than Venetian -piombi- and chambers of torture was that series of living entombments which the poor man saw yawning before him in the debtors' towers of the rich. But the greatness of Rome was involved in, and was based upon, the fact that the Roman people ordained for itself and endured a system of law, in which the eternal principles of freedom and of subordination, of property and of legal redress, reigned and still at the present day reign unadulterated and unmodified.