by Will Durant
3. The Beginnings of Roman Law
Within this unique constitution the magistrates administered a system of law based upon the Twelve Tables of the Decemvirs. Before that epochal enactment Roman law had been a mixture of tribal customs, royal edicts, and priestly commands. Mos maiorum—the way of the ancients—remained to the end of pagan Rome the exemplar of morals and a source of law; and though imagination and edification idealized the ruthless burghers of the early Republic, the tales told of them helped educators to form a stoic character in Roman youth. For the rest, early Roman law was a priestly rule, a branch of religion, surrounded with sacred sanctions and solemn rites. Law was both lex and ius—command and justice; it was a relation not only between man and man but between man and the gods. Crime was a disturbance of that relation, of the pax deorum or peace of the gods; law and punishment were in theory designed to maintain or restore that relation and peace. The priests declared what was right and wrong (faset nefas), on what days the courts might open and the assemblies meet. All questions regarding marriage or divorce, celibacy or incest, wills or transfers, or the rights of children, required the priest as now so many of them require the lawyer. Only the priests knew the formulas without which hardly anything could be legally done. They were in Rome the first iurisconsulti, consultants in the law, counselors; they were the first to give responsa, or legal opinions. The laws were recorded in their books, and these volumes were so securely guarded from the plebs that suspicion charged the priests with altering the texts, on occasion, to suit ecclesiastical or aristocratic ends.
The Twelve Tables effected a double juristic revolution: the publication and secularization of Roman law. Like other codes of the sixth and fifth centuries—those of Charondas, Zaleucus, Lycurgus, Solon—they represented a change from uncertain unwritten custom to definite written law; they were a result of increasing literacy and democracy. The ius civile, or law of citizens, freed itself in these Tables from the ius divinum, or divine law; Rome decided not to be a theocracy. The priestly monopoly was further deflated when the secretary of Appius Claudius the Blind published (304) a calendar of court days (dies fasti—“days of utterance”), and a “formulary” of proper legal procedures, which had till then been known to few but the priests. Secularization took another step when Coruncanius (280) began the first known public instruction in Roman law; from that time onward the lawyer replaced the priest and dominated the mind and life of Rome. Soon the Tables were made the basis of education; till Cicero’s day all schoolboys had to learn them by heart; and doubtless they had a share in forming the stern and orderly, litigious and legalistic, Roman soul. Amended and supplemented again and again—by legislation, praetorial edicts, senatusconsulta, and imperial decrees—the Twelve Tables remained for nine hundred years the basic law of Rome.
The law of procedure was already complex in this code. Almost any magistrate might act as a judge; but the praetors were the usual court, and their revisions and interpretations of the statutes kept Roman law a living growth instead of a corpse of precedents. Every year the praetor urbanus, or chief city magistrate, drew up a list or “white tablet” (album) of senators and equites eligible for jury service; the presiding judge in an action chose jurors from this list, subject to a limited number of rejections by plaintiff and defendant. Lawyers were permitted to advise clients and plead in court; and some senators gave legal advice in public sittings or at home. The law of Cincius (204 B.C.) forbade taking pay for legal services, but legal skill found ways of circumventing this counsel of perfection. Slaves were often tortured to elicit evidence.
The Twelve Tables constituted one of the severest codes in history. They retained the old paternal omnipotence of a military-agricultural society; allowed the father to scourge, chain, imprison, sell, or kill any of his children—merely adding that a son thrice sold was thereafter free from his father’s rule.16 Class division was preserved by forbidding the marriage of a patrician with a plebeian. Creditors received every right against debtors.17 Owners could dispose freely of their property by will; property rights were held so sacred that a thief caught in the act was given as a slave to the man whom he had robbed. Penalties ranged from simple fines to exile, enslavement, or death. Several took the form of equivalent retaliation (lex talionis); many were fines delicately adjusted to the rank of the victim. “For breaking the bones of a freeman, 300 asses; of a slave, 150 asses.”18 Death was decreed for libel, bribery, perjury, harvest thieving, nocturnal damage to a neighbor’s crops, the defrauding of a “client” by a patron, “practicing enchantments,” arson, murder, and “seditious gatherings in the city by night.”19 The parricide was tied in a sack, sometimes with a cock, a dog, a monkey, or a viper, and cast into the river.20 Within the capital, however, appeal from any but a dictator’s sentence of death could be taken by a citizen to the Assembly of the Centuries; and if the accused perceived that the vote there was going against him he was free to commute his sentence into exile by leaving Rome.21 Consequently, despite the severity of the Twelve Tables, capital punishment of freemen was rare in republican Rome.
4. The Army of the Republic
The Roman constitution rested finally on the most successful military organization in history. The citizens and the army were one; the army assembled in its centuries was the chief lawmaking body in the state. The first eighteen centuries supplied the cavalry; the “first class” formed the heavy infantry, armed with two spears, a dagger, and a sword, and protected by bronze helmet, cuirass, greaves, and shield; the second class had all of these except the cuirass; the third and fourth had no armor; the fifth had only slings and stones.
A legion was a mixed brigade of some 4200 infantry, 300 cavalry, and various auxiliary groups;22 two legions made a consul’s army. Each legion was subdivided into centuries—originally of one hundred, later of two hundred, men—commanded by centurions. Every legion had its vexillum—its banner or colors; honor forbade that this should ever fall into hostile hands, and clever officers sometimes threw it into the enemy’s ranks to stir their men to a desperate recovery. In battle the front ranks of the infantry hurled at the foe, ten to twenty paces away, a volley of javelins—short wooden lances with an iron point—while on the wings archers and slingers attacked with arrows and stones, and the cavalry charged with pikes and swords; hand-to-hand combats with short swords were the final and decisive action. In a siege massive wooden catapults, worked by tension or torsion, hurled ten-pound rocks over 300 yards; immense battering rams, suspended on ropes, were drawn back like a swing and then released against the enemy’s walls; an inclined ramp of earth and timber was built, wheeled towers were pushed and hauled up this ramp, and from these towers missiles were discharged upon the foe.23 Instead of the solid and unwieldy phalanx—six lines of 500 men each—which the early Republic seems to have taken over from Etruria, the legion was rearranged, about 366 B.C., into maniples IV of two centuries each; free room was left between each maniple and its neighbors, and the maniples of each succeeding line stood behind these open spaces. This formation made possible a rapid reinforcement of one line by the next, and a quick veering of one or more maniples to face a flank attack; and it gave free play to that individual combat for which the Roman soldier was especially trained.
The major element in the success of this army was discipline. The young Roman was educated for war from his childhood; he studied the military art above all others, and spent ten formative years of his life in field or camp. Cowardice was in that army the unforgivable sin, punished by flogging the offender to death.24 The general was empowered to behead any soldier or officer, not merely for flight from battle, but for any deviation from orders, however favorable the result. Deserters or thieves had their right hands cut off.25 Food in camp was simple: bread or porridge, some vegetables, sour wine, rarely flesh; the Roman army conquered the world on a vegetarian diet; Caesar’s troops complained when corn ran out and they had to eat meat.26 Labor was so arduous and long that the soldiers begged for battle instea
d; valor became the better part of discretion. The soldier received no pay till 405 B.C., and little thereafter; but he was allowed to share, according to his rank, in the booty of the defeated—bullion and currency, lands and men and movable goods. Such training made not only brave and eager warriors but able and intrepid generals; the discipline of obedience developed the capacity to command. The army of the Republic lost battles, but it never lost a war. Men molded by stoic education and brutal spectacles to a contemptuous familiarity with death carved out the victories that conquered Italy, then Carthage and Greece, and then the Mediterranean world.
Such in outline was the “mixed constitution” that Polybius admired as “the best of all existing governments”: a limited democracy in the legislative sovereignty of the assemblies, an aristocracy in the leadership of the patrician Senate, a Spartan “dyarchy” in the brief royalty of the consuls, a monarchy in occasional dictatorships. Essentially it was an aristocracy, in which old and rich families, through ability and privilege, held office for hundreds of years, and gave to Roman policy a tenacious continuity that was the secret of its accomplishments.
But it had its faults. It was a clumsy confusion of checks and balances in which nearly every command could in time of peace be nullified by an equal and opposite command. The division of power was an aid to liberty and—for a while—a restraint on malfeasance; on the other hand, it led to great military disasters like Cannae, it dissolved democracy into mob rule, and at last brought on the permanent dictatorship of the Principate. What astonishes us is that such a government could last so long (508 to 49 B.C.) and achieve so much. Perhaps it endured because of its muddling adaptability to change, and the proud patriotism formed in the home, the school, the temple, the army, the Assembly, and the Senate. Devotion to the state marked the zenith of the Republic, as unparalleled political corruption marked its fall. Rome remained great as long as she had enemies who forced her to unity, vision, and heroism. When she had overcome them all she flourished for a moment and then began to die.
III. THE CONQUEST OF ITALY
Never had Rome been so encompassed by enemies as when she emerged from the monarchy as a weak city-state ruling only 350 square miles—equivalent to a space nineteen by nineteen miles. While Lars Porsena advanced upon her, many of the neighboring communities that had been subjected by her kings resumed their liberty and formed a Latin League to withstand Rome. Italy was a medley of independent tribes or cities, each with its own government and dialect: in the north the Ligures, Gauls, Umbrians, Etruscans, and Sabines; to the south the Latins, Volscians, Samnites, Lucanians, Bruttians; along the western and southern coasts Greek colonists in Cumae, Naples, Pompeii, Paestum, Locri, Rhegium, Crotona, Metapontum, Tarentum. Rome was at the center of them all, strategically placed for expansion, but perilously open to attack from all sides at once. It was her salvation that her enemies seldom united against her. In 505, while she was at war with the Sabines, a powerful Sabine clan—the Claudian gens—came over to Rome and was granted citizenship on favorable terms. In 449 the Sabines were defeated; by 290 all their territory was annexed to Rome, and by 250 they had received the full Roman franchise.
In 496 the Tarquins persuaded some of the towns of Latium—Tusculum, Ardea, Lanuvium, Aricia, Tibur, and others—to join in a war against Rome. Faced with this apparently overwhelming combination, the Romans appointed their first dictator, Aulus Postumius; at Lake Regillus they won a saving victory, helped, they assure us, by the gods Castor and Pollux, who left Olympus to fight in their ranks. Three years later Rome signed a treaty with the Latin League in which all parties pledged that “between the Romans and the cities of the Latins there shall be peace as long as heaven and earth shall last. . . . Both shall share equally in all booty taken in a common war.”27 Rome became a member of the League, then its leader, then its master. In 493 she fought the Volscians; it was in this conflict that Caius Marcius won the name of Coriolanus by capturing Corioli, the Volscian capital. The historians add, probably with a touch of romance, that Coriolanus became a hard reactionary, was banished on the insistence of the plebs (491), fled to the Volscians, reorganized them, and led them in a siege of Rome. The starving Romans, we are told, sent embassy after embassy to dissuade him, to no avail, until his mother and wife went out to him and, failing in their pleas, threatened to block his advance with their bodies. Thereupon he withdrew his army, and was killed by the Volscians; or, says another story, he lived among them to a bitter ripe old age.28 In 405 Veii and Rome entered upon a duel to the death for control of the Tiber. Rome besieged the city for nine years without success, and the emboldened towns of Etruria joined in the war. Attacked on every side, and their very existence challenged, the Romans appointed a dictator, Camillus, who raised a new army, captured Veii, and divided its lands among the citizens of Rome. In 351, after sundry further wars, southern Etruria was annexed to Rome under the almost modern name of Tuscia.
Meanwhile, in 390, a new and greater peril appeared, and that long duel had begun, between Rome and Gaul, which ended only with Caesar. While Etruria and Rome were fighting fourteen wars, Celtic tribes from Gaul and Germany had filtered down through the Alps and settled in Italy as far south as the Po. Ancient historians called the invaders Keltai or Celtae, Galatae or Galli, indifferently. Nothing is known of their origin; we may only describe them as that branch of the Indo-European stock which peopled western Germany, Gaul, central Spain, Belgium, Wales, Scotland, and Ireland, and formed the pre-Roman languages there. Polybius pictures them as “tall and handsome,” relishing war, and fighting naked except for golden amulets and chains.29 When the Celts of southern Gaul tasted Italian wine, they were so pleased with it that they decided to visit the land that produced such transporting fruit; probably they were moved more by the quest for fresh acres and new pasturage. Entering, they lived for a time in abnormal peace, tilling and herding, and taking over the Etruscan culture which they found in the towns. About 400 B.C. they invaded and plundered Etruria; the Etruscans resisted weakly, having sent most of their forces to defend Veii against Rome. In 391, 30,000 Gauls reached Clusium; a year later they met the Romans at the river Allia, routed them, and entered Rome unhindered. They sacked and burned large sections of the city, and for seven months besieged the remnants of the Roman army on the Capitol—the crest of the Capitoline hill. Finally the Romans yielded, and paid the Gauls a thousand pounds of gold to depart.V They left, but returned in 367, 358, and 350; repeatedly repulsed, they at last contented themselves with northern Italy, which now became Cisalpine Gaul.
The surviving Romans found their city so devastated that many of them wished to abandon the site and make Veii their capital. Camillus dissuaded them, and the government provided financial aid for rebuilding homes. This rapid reconstruction in the face of many enemies was a part cause of Rome’s design-lessness and the venturesome crookedness of her narrow streets. The subject peoples, seeing her so near destruction, revolted again and again, and half a century of intermittent war was required to cure their lust for freedom. The Latins, Aequi, Hernici, and Volscians attacked in turn or together; if the Volscians had succeeded they would have shut off Rome from southern Italy and the sea, and perhaps have put an end to her history. In 340 the cities of the Latin League were defeated; two years later Rome dissolved the League and annexed nearly all Latium.VI
Meanwhile the victories of Rome over the Volscians had brought her face to face with the powerful Samnite tribes. These held a large cross section of Italy from Naples to the Adriatic, with such rich cities as Nola, Beneventum, Cumae, and Capua. They had absorbed most of the Etruscan and Greek settlements of the west coast, and enough of Hellenism to produce a distinctive Campanian art; probably they were more civilized than the Romans. With them Rome fought three long and bloody wars for the control of Italy. At the Caudine Forks (321) the Romans suffered one of their greatest defeats, and their beaten army passed “under the yoke”—an arch of hostile spears—in token of submission. The consuls at the front sign
ed an abject peace, which the Senate refused to ratify. The Samnites won the Etruscans and Gauls as allies, and for a time Rome faced nearly all Italy in arms. But the legions gained a decisive victory at Sentinum (295), and Rome added Campania and Umbria to her domain. Twelve years later she drove the Gauls back beyond the Po, and again reduced Etruria to a subject state.
Between the Gallic north and the Greek south, Rome was now master of Italy. Insatiate and insecure, she offered the cities of Magna Graecia a choice between alliance under Roman hegemony and war. Preferring Rome to further absorption by the “barbarian” (i.e., Italian) tribes who were multiplying around and within them, Thurii, Locri, and Crotona consented; probably they, too, like the towns of Latium, were troubled by class war, and received Roman garrisons as a protection of property owners against a rising plebs.32 Tarentum was obstinate, and called over to her aid Pyrrhus, King of Epirus. This gallant warrior, fevered with memories of Achilles and Alexander, crossed the Adriatic with an Epirote force, defeated the Romans at Heraclea (280), and gave an adjective to European languages by mourning the costliness of his victory.33 All the Greek cities of Italy now joined him, and the Lucanians, Bruttians, and Samnites declared themselves his allies. He dispatched Cineas to Rome with offers of peace, and freed his 2000 Roman prisoners on their word to return if Rome preferred war. The Senate was about to make terms when old blind Appius Claudius, who had long since retired from public life, had himself carried to the senate house and demanded that Rome should never make peace with a foreign army on Italian soil. The Senate sent back to Pyrrhus the prisoners whom he had released, and resumed the war. The young king won another victory; then, disgusted with the sloth and cowardice of his allies, he sailed with his depleted army to Sicily. He relieved the Carthaginian siege of Syracuse and drove the Carthaginians from nearly all their possessions on the island; but his imperious rule offended the Sicilian Greeks, who thought they could have freedom without order and courage; they withdrew their support, and Pyrrhus returned to Italy, saying of Sicily, “What a prize I leave to be fought for by Carthage and Rome!” His army met the Romans at Beneventum, where for the first time he suffered defeat (275); the light-armed and mobile maniples proved superior to the unwieldy phalanxes, and began a new chapter in military history. Pyrrhus appealed to his Italian allies for new troops; they refused, doubting his fidelity and persistence. He returned to Epirus, and died an adventurer’s death in Greece. In that same year (272) Milo betrayed Tarentum to Rome. Soon all the Greek cities yielded, the Samnites sullenly surrendered, and Rome was at last, after two centuries of war, the ruler of Italy.