The History of Rome, Book II - Theodor Mommsen
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20. II. VI. Last Campaigns in Samnium
21. II. VII. Decline of the Roman Naval Power
22. According to Servius (in Aen. iv. 628) it was stipulated in the
Romano-Carthaginian treaties, that no Roman should set foot on (or
rather occupy) Carthaginian, and no Carthaginian on Roman, soil, but
Corsica was to remain in a neutral position between them (-ut neque
Romani ad litora Carthaginiensium accederent neque Carthaginienses
ad litora Romanorum.....Corsica esset media inter Romanos et
Carthaginienses-). This appears to refer to our present period,
and the colonization of Corsica seems to have been prevented by
this very treaty.
23. II. VII. Submission of Lower Italy
24. The clause, by which a dependent people binds itself "to uphold
in a friendly manner the sovereignty of that of Rome" (-maiestatem
populi Romani comiter conservare-), is certainly the technical
appellation of that mildest form of subjection, but it probably did
not come into use till a considerably later period (Cic. pro Balbo,
16, 35). The appellation of clientship derived from private law,
aptly as in its very indefiniteness it denotes the relation (Dig.
xlix. 15, 7, i), was scarcely applied to it officially in earlier
times.
25. II. IV. South Etruria Roman
26. II. VI. Consolidation of the Roman Rule in Central Italy
27. II. VI. Last Struggles of Samnium
28. II. V. Complete Submission of the Volscian and Campanian
Provinces
29. II. V. Complete Submission of the Volscian and Campanian
Provinces
30. That Tusculum as it was the first to obtain passive
burgess-rights (II. V. Crises within the Romano-Latin League)
was also the first to exchange these for the rights of full burgesses,
is probable in itself and presumably it is in the latter and not in
the former respect that the town is named by Cicero (pro Mur. 8, 19)
-municipium antiquissimum-.
31. II. V. Complete Submission of the Volscian and Campanian
Provinces
32. II. IV. South Etruria Roman
33. -V. Cervio A. f. cosol dedicavit- and -lunonei Quiritri sacra. C.
Falcilius L. f. consol dedicavit-.
34. According to the testimony of Cicero (pro Caec. 35) Sulla gave to
the Volaterrans the former -ius- of Ariminum, that is--adds the
orator--the -ius- of the "twelve colonies" which had not the Roman
-civitas- but had full -commercium- with the Romans. Few things have
been so much discussed as the question to what places this -ius- of
the twelve towns refers; and yet the answer is not far to seek. There
were in Italy and Cisalpine Gaul--laying aside some places that soon
disappeared again--thirty-four Latin colonies established in all.
The twelve most recent of these--Ariminum, Beneventum, Firmum,
Aesernia, Brundisium, Spoletium, Cremona, Placentia, Copia, Valentia,
Bononia, and Aquileia--are those here referred to; and because
Ariminum was the oldest of these and the town for which this new
organization was primarily established, partly perhaps also because it
was the first Roman colony founded beyond Italy, the -ius- of these
colonies rightly took its name from Ariminum. This at the same time
demonstrates the truth of the view--which already had on other grounds
very high probability--that all the colonies established in Italy (in
the wider sense of the term) after the founding of Aquileia belonged
to the class of burgess-colonies.
We cannot fully determine the extent to which the curtailment of the
rights of the more recent Latin towns was carried, as compared with
the earlier. If intermarriage, as is not improbable but is in fact
anything but definitely established (i. 132; Diodor. p. 590, 62, fr.
Vat. p. 130, Dind.), formed a constituent element of the original
federal equality of rights, it was, at any rate, no longer conceded
to the Latin colonies of more recent origin.
35. II. V. League with the Hernici
36. II. VI. Pacification of Campania
37. II. VI. Victory of the Romans
38. II. VII. The War in Italy Flags
39. It is to be regretted that we are unable to give satisfactory
information as to the proportional numbers. We may estimate the
number of Roman burgesses capable of bearing arms in the later regal
period as about 20,000. (I. VI. Time And Occasion of the Reform) Now
from the fall of Alba to the conquest of Veii the immediate territory
of Rome received no material extension; in perfect accordance with
which we find that from the first institution of the twenty-one tribes
about 259, (II. II. Coriolanus) which involved no, or at any rate no
considerable, extension of the Roman bounds, no new tribes were
instituted till 367. However abundant allowance we make for increase
by the excess of births over deaths, by immigration, and by
manumissions, it is absolutely impossible to reconcile with the narrow
limits of a territory of hardly 650 square miles the traditional
numbers of the census, according to which the number of Roman
burgesses capable of bearing arms in the second half of the third
century varied between 104,000 and 150,000, and in 362, regarding
which a special statement is extant, amounted to 152,573. These
numbers must rather stand on a parallel with the 84,700 burgesses of
the Servian census; and in general the whole earlier census-lists,
carried back to the four lustres of Servius Tullius and furnished with
copious numbers, must belong to the class of those apparently
documentary traditions which delight in, and betray themselves
by the very fact of, such numerical details.
It was only with the second half of the fourth century that the large
extensions of territory, which must have suddenly and considerably
augmented the burgess roll, began. It is reported on trustworthy
authority and is intrinsically credible, that about 416 the Roman
burgesses numbered 165,000; which very well agrees with the statement
that ten years previously, when the whole militia was called out
against Latium and the Gauls, the first levy amounted to ten legions,
that is, to 50,000 men. Subsequently to the great extensions of
territory in Etruria, Latium, and Campania, in the fifth century the
effective burgesses numbered, on an average, 250,000; immediately
before the first Punic war, 280,000 to 290,000. These numbers are
certain enough, but they are not quite available historically for
another reason, namely, that in them probably the Roman full burgesses
and the "burgesses without vote" not serving, like the Campanians, in
legions of their own, --such, e. g., as the Caerites, --are included
together in the reckoning, while the latter must at any rate -de
facto- be counted among the subjects (Rom. Forsch. ii. 396).
40. II. VI. Battle of Sentinum
41. II. VII. Commencement of the Conflict in Lower Italy
42. II. VII. Quaestors of the Fleet
43. Not merely in every Latin one; for the censorship or so-called
-quinquennalitas- occurs, as is well known, also among communities
whose constitution was not formed according to the Latin scheme.
44. This earliest boundary is probably indicated by the two small
townships -Ad fines-, of which one lay north of Arezzo on the road
to Florence, the second on the coast not far from Leghorn. Somewhat
further to the south of the latter, the brook and valley of Vada are
still called -Fiume della fine-, -Valle della fine- (Targioni
Tozzetti, Viaggj, iv. 430).
45. In strict official language, indeed, this was not the case.
The fullest designation of the Italians occurs in the agrarian law of
643, line 21; -[ceivis] Romanus sociumve nominisve Latini, quibus ex
formula togatorum [milites in terra Italia imperare solent]-; in like
manner at the 29th line of the same -peregrinus- is distinguished from
the -Latinus-, and in the decree of the senate as to the Bacchanalia
in 568 the expression is used: -ne quis ceivis Romanus neve nominis
Latini neve socium quisquam-. But in common use very frequently the
second or third of these three subdivisions is omitted, and along
with the Romans sometimes only those Latini nominis are mentioned,
sometimes only the -socii- (Weissenborn on Liv. xxii. 50, 6), while
there is no difference in the meaning. The designation -homines
nominis Latini ac socii Italici- (Sallust. Jug. 40), correct as it is
in itself, is foreign to the official -usus loquendi, which knows
-Italia-, but not -Italici-.
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 was
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 times--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.
Religion--
New Gods
We are less able to trace the progress of the religious conceptions of
the Romans during this epoch. In general they adhered with simplicity
to the simple piety of their ancestors, and kept equally aloof from
superstition and from unbelief. How vividly the idea of spiritualizing
all earthly objects, on which the Roman religion was based, still
prevailed at the close of this epoch, is shown by the new "God of
silver" (-Argentinus-), who presumably came into existence only in
consequence of the introduction of the silver currency in 485, and who
naturally was the son of the older "God of copper" (-Aesculanus-).
The relations to foreign lands were the same as heretofore; but here,
and here especially, Hellenic influences were on the increase. It was
only now that temples began to rise in Rome itself in honour of the
Hellenic gods. The oldest was the temple of Castor and Pollux, which
had been vowed in the battle at lake Regillus(17) and was consecrated
on 15th July 269. The legend associated with it, that two youths of
superhuman size and beauty had been seen fighting on the battle-field
in the ranks of the Romans and immediately after the battle watering
their foaming steeds in the Roman Forum at the fountain of luturna,
and announcing the great victory, bears a stamp thoroughly un-Roman,
and was beyond doubt at a very early period modelled on the appearance
of the Dioscuri--similar down to its very details--in the famous
battle fought about a century before between the Crotoniates and
Locrians at the river Sagras. The Delphic Apollo too was not only
consulted--as was usual with all peoples that felt the influence of
Grecian culture--and presented moreover after special successes, such
as the capture of Veii, with a tenth of the spoil (360), but also had
a temple built for him in the city (323, renewed 401). The same honour
was towards the close of this period accorded to Aphrodite (459), who
was in some enigmatical way identified with the old Roman garden
goddess, Venus;(18) and to Asklapios or Aesculapius, who was obtained
by special request from Epidaurus in the Peloponnesus and solemnly
conducted to Rome (463). Isolated complaints were heard in serious
emergencies as to the intrusion of foreign superstition, presumably
the art of the Etruscan -haruspices- (as in 326); but in such cases
the police did not fail to take proper cognisance of the matter.
In Etruria on the other hand, while the nation stagnated and decayed
in political nullity and indolent opulence, the theological monopoly
of the nobility, stupid fatalism, wild and meaningless mysticism, the
system of soothsaying and of mendicant prophecy gradually developed
themselves, till they reached the height at which we afterwards find
them.