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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.¹³⁷ 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;¹³⁸ 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.¹³⁹ 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,¹⁴⁰ 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.¹⁴¹ 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.¹⁴² 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;¹⁴³ 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,¹⁴⁴ 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 387,¹⁴⁵ and the establishment of separate police functionaries which took place contemporaneously in Rome, and was imitated under Roman influence in all the Latin communities,¹⁴⁶ 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.¹⁴⁷ 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-,¹⁴⁸ and was perhaps even extended to the more remote communities of full burgesses,¹⁴⁹—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;¹⁵⁰ and to that separation the private law of Rome was mainly indebted for its logical clearness and practical precision.¹⁵¹ 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,¹⁵² 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 Regillus¹⁵³ 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;¹⁵⁴ 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.

Sacerdotal System

In the sacerdotal system no comprehensive changes, so far as we know, took place. The more stringent enactments, that were made about 465 regarding the collection of the process-fines destined to defray the cost of public worship, point to an increase in the ritual budget of the state—a necessary result of the increase in the number of its gods and its temples. It has already been mentioned as one of the evil effects of the dissensions between the orders that an illegitimate influence began to be conceded to the colleges of men of lore, and that they were employed for the annulling of political acts¹⁵⁵—a course by which on the one hand the faith of the people was shaken, and on the other hand the priests were permitted to exercise a very injurious influence on public affairs.

Military System—

Manipular Legion—

Entrenchment of Camp—

Cavalry—

Officers—

Military Discipline—

Training and Classes of Soldiers—

Military Value of the Manipular Legion

A complete revolution occurred during this epoch in the military system. The primitive Graeco-Italian military organization, which was probably based, like the Homeric, on the selection of the most distinguished and effective warriors—who ordinarily fought on horseback—to form a special vanguard, had in the later regal period been superseded by the -legio—the old Dorian phalanx of hoplites, probably eight file deep.¹⁵⁶ This phalanx thenceforth undertook the chief burden of the battle, while the cavalry were stationed on the flanks, and, mounted or dismounted according to circumstances, were chiefly employed as a reserve. From this arrangement there were developed nearly at the same time the phalanx of -sarrissae-in Macedonia and the manipular arrangement in Italy, the former formed by closing and deepening, the latter by breaking up and multiplying, the ranks, in the first instance by the division of the old -legio- of 8400 into two -legiones- of 4200 men each. The old Doric phalanx had been wholly adapted to close combat with the sword and especially with the spear, and only an accessory and subordinate position in the order of battle was assigned to missile weapons. In the manipular legion the thrusting-lance was confined to the third division, and instead of it the first two were furnished with a new and peculiar Italian missile weapon, the -pilum- a square or round piece of wood, four and a half feet long, with a triangular or quadrangular iron point—which had been originally perhaps invented for the defence of the ramparts of the camp, but was soon transferred from the rear to the front ranks, and was hurled by the advancing line into the ranks of the enemy at a distance of from ten to twenty paces. At the same time the sword acquired far greater importance than the short knife of the phalangite could ever have had; for the volley of javelins was intended in the first instance merely to prepare the way for an attack sword in hand. While, moreover, the phalanx had, as if it were a single mighty lance, to be hurled at once upon the enemy, in the new Italian legion the smaller units, which existed also in the phalanx system but were in the order of battle firmly and indissolubly united, were tactically separated from each other. Not merely was the close square divided, as we have said, into two equally strong halves, but each of these was separated in the direction of its depth into the three divisions of the -hastati-, – principes-, and -triarii-, each of a moderate depth probably amounting in ordinary cases to only four files; and was broken up along the front into ten bands (-manipuli-), in such a way that between every two divisions and every two maniples there was left a perceptible interval. It was a mere continuation of the same process of individualizing, by which the collective mode of fighting was discouraged even in the diminished tactical unit and the single combat became prominent, as is evident from the (already mentioned) decisive part played by hand-to-hand encounters and combats with the sword. The system of entrenching the camp underwent also a peculiar development. The place where the army encamped, even were it only for a single night, was invariably provided with a regular circumvallation and as it were converted into a fortress. Little change took place on the other hand in the cavalry, which in the manipular legion retained the secondary part which it had occupied by the side of the phalanx. The system of officering the army also continued in the main unchanged; only now over each of the two legions of the regular army there were set just as many war-tribunes as had hitherto commanded the whole army, and the number of staff-officers was thus doubled. It was at this period probably that the clear line of demarcation became established between the subaltern officers, who as common soldiers had to gain their place at the head of the maniples by the sword and passed by regular promotion from the lower to the higher maniples, and the military tribunes placed at the head of whole legions—six to each—in whose case there was no regular promotion, and for whom men of the better class were usually taken. In this respect it must have become a matter of importance that, while previously the subaltern as well as the staff-officers had been uniformly nominated by the general, after 392 some of the latter posts were filled up through election by the burgesses.¹⁵⁷ Lastly, the old, fearfully strict, military discipline remained unaltered. Still, as formerly, the general was at liberty to behead any man serving in his camp, and to scourge with rods the staff-officer as well as the common soldier; nor were such punishments inflicted merely on account of common crimes, but also when an officer had allowed himself to deviate from the orders which he had received, or when a division had allowed itself to be surprised or had fled from the field of battle. On the other hand, the new military organization necessitated a far more serious and prolonged military training than the previous phalanx system, in which the solidity of the mass kept even the inexperienced in their ranks. If nevertheless no special soldier-class sprang up, but on the contrary the army still remained, as before, a burgess army, this object was chiefly attained by abandoning the former mode of ranking the soldiers according to property¹⁵⁸ and arranging them according to length of service. The Roman recruit now entered among the light-armed "skirmishers" (-rorarii-), who fought outside of the line and especially with stone slings, and he advanced from this step by step to the first and then to the second division, till at length the soldiers of long service and experience were associated together in the corps of the -triarii-, which was numerically the weakest but imparted its tone and spirit to the whole army.

The excellence of this military organization, which became the primary cause of the superior political position of the Roman community, chiefly depended on the three great military principles of maintaining a reserve, of combining the close and distant modes of fighting, and of combining the offensive and the defensive. The system of a reserve was already foreshadowed in the earlier employment of the cavalry, but it was now completely developed by the partition of the army into three divisions and the reservation of the flower of the veterans for the last and decisive shock. While the Hellenic phalanx had developed the close, and the Oriental squadrons of horse armed with bows and light missile spears the distant, modes of fighting respectively, the Roman combination of the heavy javelin with the sword produced results similar, as has justly been remarked, to those attained in modern warfare by the introduction of bayonet-muskets; the volley of javelins prepared the way for the sword encounter, exactly in the same way as a volley of musketry now precedes a charge with the bayonet. Lastly, the elaborate system of encampment allowed the Romans to combine the advantages of defensive and offensive war and to decline or give battle according to circumstances, and in the latter case to fight under the ramparts of their camp just as under the walls of a fortress—the Roman, says a Roman proverb, conquers by sitting still.

Origin of the Manipular Legion

That this new military organization was in the main a Roman, or at any rate Italian, remodelling and improvement of the old Hellenic tactics of the phalanx, is plain. If some germs of the system of reserve and of the individualizing of the smaller subdivisions of the army are found to occur among the later Greek strategists, especially Xenophon, this only shows that they felt the defectiveness of the old system, but were not well able to obviate it. The manipular legion appears fully developed in the war with Pyrrhus; when and under what circumstances it arose, whether at once or gradually, can no longer be ascertained. The first tactical system which the Romans encountered, fundamentally different from the earlier Italo-Hellenic system, was the Celtic sword-phalanx. It is not impossible that the subdivision of the army and the intervals between the maniples in front were arranged with a view to resist, as they did resist, its first and only dangerous charge; and it accords with this hypothesis that Marcus Furius Camillus, the most celebrated Roman general of the Gallic epoch, is presented in various detached notices as the reformer of the Roman military system. The further traditions associated with the Samnite and Pyrrhic wars are neither sufficiently accredited, nor can they with certainty be duly arranged;¹⁵⁹ although it is in itself probable that the prolonged Samnite mountain warfare exercised a lasting influence on the individual development of the Roman soldier, and that the struggle with one of the first masters of the art of war, belonging to the school of the great Alexander, effected an improvement in the technical features of the Roman military system.

National Economy—

The Farmers—

Farming of Estates

In the national economy agriculture was, and continued to be, the social and political basis both of the Roman community and of the new Italian state. The common assembly and the army consisted of Roman farmers; what as soldiers they had acquired by the sword, they secured as colonists by the plough. The insolvency of the middle class of landholders gave rise to the formidable internal crises of the third and fourth centuries, amidst which it seemed as if the young republic could not but be destroyed. The revival of the Latin farmer-class, which was produced during the fifth century partly by the large assignations of land and incorporations, partly by the fall in the rate of interest and the increase of the Roman population, was at once the effect and the cause of the mighty development of Roman power. The acute soldier's eye of Pyrrhus justly discerned the cause of the political and military ascendency of the Romans in the flourishing condition of the Roman farms. But the rise also of husbandry on a large scale among the Romans appears to fall within this period. In earlier times indeed there existed landed estates of—at least comparatively—large size; but their management was not farming on a large scale, it was simply a husbandry of numerous small parcels.¹⁶⁰ On the other hand the enactment in the law of 387, not incompatible indeed with the earlier mode of management but yet far more appropriate to the later, viz. that the landholder should be bound to employ along with his slaves a proportional number of free persons,¹⁶¹ may well be regarded as the oldest trace of the later centralized farming of estates;¹⁶² and it deserves notice that even here at its first emergence it essentially rests on slave-holding. How it arose, must remain an undecided point; possibly the Carthaginian plantations in Sicily served as models to the oldest Roman landholders, and perhaps even the appearance of wheat in husbandry by the side of spelt,¹⁶³ which Varro places about the period of the decemvirs, was connected with that altered style of management. Still less can we ascertain how far this method of husbandry had already during this period spread; but the history of the wars with Hannibal leaves no doubt that it cannot yet have become the rule, nor can it have yet absorbed the Italian farmer class. Where it did come into vogue, however, it annihilated the older clientship based on the -precarium-; just as the modern system of large farms has been formed in great part by the suppression of petty holdings and the conversion of hides into farm-fields. It admits of no doubt that the restriction of this agricultural clientship very materially contributed towards the distress of the class of small cultivators.

Inland Intercourse in Italy

Respecting the internal intercourse of the Italians with each other our written authorities are silent; coins alone furnish some information. We have already mentioned¹⁶⁴ that in Italy, with the exception of the Greek cities and of the Etruscan Populonia, there was no coinage during the first three centuries of Rome, and that cattle in the first instance, and subsequently copper by weight, served as the medium of exchange. Within the present epoch occurred the transition on the part of the Italians from the system of barter to that of money; and in their money they were naturally led at first to Greek models. The circumstances of central Italy led however to the adoption of copper instead of silver as the metal for their coinage, and the unit of coinage was primarily based on the previous unit of value, the copper pound; hence they cast their coins instead of stamping them, for no die would have sufficed for pieces so large and heavy. Yet there seems from the first to have been a fixed ratio for the relative value of copper and silver (250:1), and with reference to that ratio the copper coinage seems to have been issued; so that, for example, in Rome the large copper piece, the -as-, was equal in value to a scruple (1/288 of a pound) of silver. It is a circumstance historically more remarkable, that coining in Italy most probably originated in Rome, and in fact with the decemvirs, who found in the Solonian legislation a pattern for the regulation of their coinage; and that from Rome it spread over a number of Latin, Etruscan, Umbrian, and east-Italian communities, —a clear proof of the superior position which Rome from the beginning of the fourth century held in Italy. As all these communities subsisted side by side in formal independence, legally the monetary standard was entirely local, and the territory of every city had its own monetary system. Nevertheless the standards of copper coinage in central and northern Italy may be comprehended in three groups, within which the coins in common intercourse seem to have been treated as homogeneous. These groups are, first, the coins of the cities of Etruria lying north of the Ciminian Forest and those of Umbria; secondly, the coins of Rome and Latium; and lastly, those of the eastern seaboard. We have already observed that the Roman coins held a certain ratio to silver by weight; on the other hand we find those of the east coast of Italy placed in a definite proportional relation to the silver coins which were current from an early period in southern Italy, and the standard of which was adopted by the Italian immigrants, such as the Bruttians, Lucanians, and Nolans, by the Latin colonies in that quarter, such as Cales and Suessa, and even by the Romans themselves for their possessions in Lower Italy. Accordingly the inland traffic of Italy must have been divided into corresponding provinces, which dealt with one another like foreign nations.