CHAPTER VIII

Law, Religion, Military System, Economic Condition, Nationality

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.

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.