A History of the Roman World (51 page)

Finally, reference may be made to some outlying monuments. On the Quirinal was the Temple of Semo Sancus (466) containing the shield bearing the treaty with Gabii, and bronze wheels from the destruction of Privernum in 329. Outside the Colline Gate were temples to Honos, Virtus (third century) and Venus Erucina (181). Within a grove on the Cispius stood the Temple of Juno Lucina (375) where gifts were offered for new-born children. On the Esquiline was a Temple of Tellus (268) which was sometimes used by the Senate, and here came the aqueduct bringing water from the Anio. On the Appian Way outside the Porta Capena were temples of Tempestates (259) and Mars (388) where troops assembled on setting out for war. In 189 the Appian Way was paved to this point. Beyond the Servian wall was the family tomb of the Scipios, who preferred inhumation to cremation. It was hewn out of the rock and its passages have been cleared. Many famous members of the family were buried here, and it contained a statue of Ennius.

The crowds that thronged the buildings are of more interest than the city itself, but of these we catch only a few glimpses. Plautus in the
Curculio
gives a vivid description of the Forum: ‘If you wish to meet a perjurer, go to the Comitium; for a liar and braggart, near the Temple of Venus Cloacina; for rich married wasters, the Basilica. There too will be harlots and men ready to haggle. Members of dining-clubs, you’ll find in the fish market. In the lower Forum reputable and wealthy citizens walk about; in the middle, near the canal, the merely showy set. Above the Lacus Curtius are those impudent, talkative, spiteful fellows who boldly decry other people without reason and are themselves open to plenty of truthful criticism. Below the Old Shops those who lend and borrow at interest. Behind the Temple of Castor are those whom you would do ill to trust too readily. In the Tuscan street are men who sell their services; in the Velabrum bakers, butchers, soothsayers.’

The purpose of this section is to refer briefly to the principles and method of Roman law, not to the details of particular institutions. Roman law is a peculiar manifestation of the Roman spirit, and its history ‘affords a unique example of the juristic method of legal development, of law not simply positive, but existing of right and co-ordinated and developed by reason… a consistent body of reasoned doctrine, essentially not created by the State,
though sanctioned by its protection’. In this one department of thought the Romans proved superior to the Greeks, despite the richness of Greek jurisprudence. Here Greece did not take Rome captive, but Rome merely accepted from her a few individual ideas. The Greeks ‘enter into the legal history of Europe only by their contribution to the cosmopolitan jurisprudence of Rome.’
²⁴

Our chief concern is with private law. Of the two principal divisions of public law, the development of constitutional law has been treated in connection with Rome’s political history; of criminal law, which was not scientifically handled by the Romans themselves till Hadrian’s day, little need be said. In the Twelve Tables it was not distinguished from private law and though it was marked off when
iudicia privata
were assigned to a praetor (366), much of the field covered by modern criminal law (e.g. theft and assault) fell within the ambit of the civil law of delict. Crimes, such as murder, treason, evasion of military service and certain religious offences, came within the jurisdiction of the magistrates (quaestors, aediles, tribunes) and the assemblies of the people. This procedure by which the accused, if a citizen, could appeal from a magistrate’s sentence to the Comitia Centuriata (whose function resembled that of the English Crown rather than of the Court of Criminal Appeal) and could escape the death penalty by exile, long sufficed, but in the second century it was reinforced by the appointment of special ‘
ad hoc’ quaestiones
. These served as precedents for the later
quaestiones perpetuae
, of which the first was established in 149 (p. 297).

We must now turn to the development of civil law (
ius civile
), the legal customs of the Roman citizens. Early customary law, based in part on religious sanctions, changed very slowly in both its secular (
ius
) and religious (
fas
) aspects. It was interpreted by an exclusively patrician college of pontiffs, who advised the king as a council on religious questions, while its individual members could give professional advice (
responsa
) on matters of private law (
ius
); their function was thus advisory, not judicial. The first breach in this monopoly was made by the publication of the Twelve Tables in reply to popular demand. This code, which marks the beginning of historical Roman law, remained the fundamental statute of the Republic. It is primarily secular and concerned with private law, and is a remarkable testimony to the legal genius of the Romans in that they detached law from religion at so early a date. A small community of peasant-proprietors had established a body of law which found its sanction not in the authority of a divine or human lawgiver, but in a sense of justice and equity which was inherent in the peculiar genius of the Latin race.

This great achievement outlasted the national period during which Rome conquered Italy, but it naturally had to be adapted to fresh needs. The method of change, or the ‘source of law’, which for English Common Law is statute (Act of Parliament) and precedent (principles established by individual
judges), among the Romans was statute, jurisprudence (or
interpretatio
, and magisterial edict. The original statutes of the Twelve Tables were modified, exceptionally by fresh legislation (as for example by the Lex Canuleia of 445), and constantly by interpretation, first by pontiffs and then by professional jurists. The privileges of the pontiffs were gradually whittled down. Men would still have to consult them after the publication of the Twelve Tables in order to learn the correct legal formalities, but their decisions would now have to square with a public code. The next attack came from Cn. Flavius, who in 304 published the correct forms of procedure, and four years later the College of Pontiffs was opened to plebeians (p. 111). The first plebeian Pontifex Maximus, T. Coruncanius (253),
primus profiteri coepit
; this apparently means that he admitted the public, or at any rate students, to his consultations. There thus grew up a class of men known as
iuris consulti
, or
iuris prudentes
, who interpreted the law to the changing needs of their age. These jurists were professional lawyers in a limited sense; they received no fees and were public men who shared in the administration of the state, e.g. Coruncanius who as consul took the field against Pyrrhus in 280, Publius and Sextus Aelius, the consuls of 201 and 198, and M’. Manilius who attacked Carthage in 149. They were in practice recruited from the
nobilitas
, and they regarded jurisprudence as part of the art of government, so that they developed Roman law to keep pace with the needs of the state. Their chief service was to give advice (
responsa
) either to individuals (cf. our ‘opinions’ of counsel) or to magistrates or judges (
iudices
) who were laymen more like our jurymen than judges. Such opinions, though theoretically only persuasive, were in fact generally accepted as binding precedent by custom, though not by law, and so Roman law was modified and built up much like the ‘judge-made’ law of England. As an example of ‘interpretation’ and of the extraordinary adaptability of Roman institutions the development of the emancipation of children from their father’s power may be cited. The Twelve Tables enacted that a son who had been sold by his father three times should be free from his control. This measure, which was designed to punish the misuse of
patria potestas
, was ‘interpreted’ to emancipate a son by a fictitious threefold sale. Further, it was extended to the emancipation of daughters who need be ‘sold’ only once, since the Twelve Tables demanded three sales for sons and did not mention daughters.

After some 250 years of development which was mainly juristic, fresh need stimulated new methods. The chief need was created by contact with foreigners and the method used was the magisterial edict. Theoretically the
ius civile
applied only to citizens, and foreigners had no rights or duties under it. Commerce demanded that this condition should cease. After extending their rights to the Latins and concluding special treaties with Carthage the Romans had appointed a special
praetor peregrinus
(
c.
242) to deal with disputes in which foreigners were involved and to relieve the
praetor urbanus
of this duty. With the
acquisition of provinces the sphere of foreign jurisdiction was immensely widened; the magistrate had to develop a method of his own, since the Roman
legis action
procedure was not available, and to decide what law to apply, since the
ius civile
was designed only for citizens. To build up a code of ‘private international law’ would prove too cumbersome, and in practice the
praetor peregrinus
and the provincial governor issued edicts, stating what principles they would adopt. These would naturally be based mainly on Roman law, but Roman formalism was tempered by foreign, especially Greek ideas. Thus a system was created which was not the Roman
ius civile
; it governed all free men, irrespective of nationality. This led to the conception of
ius gentium
, or ‘that part of the law which we apply both to outselves and to foreigners’. Later in the first century under the influence of Aristotle’s division of law into ‘man-made’ (
νοµιϰόν
) and ‘natural’ or ‘common’ (
ϕυσιϰόν
:
ϰοινόν
), and of Stoic ideas of ‘life according to nature’, the
ius gentium
was identified with the law of Nature or a law common to all peoples. This creation of
ius gentium
, or commercial law, was a magnificent achievement by which Roman law was modernized. It was made possible by the praetorian edict.

As the English legal system comprises common law and equity, so beside the Roman
ius civile
, which was formed by statute and interpretation, there was created a counterpart to the earlier English equity: a system of magisterial law (
ius honorarium
) grew up from the edicts in which higher magistrates, especially praetors, proclaimed their orders and intentions. Though such edicts were valid only for the year, each magistrate would in practice take over the bulk of his predecessor’s proclamation. Since the praetor could not legislate, his edicts were not statutes, but they were nevertheless an important source of law; he could not give a right but he could promise a remedy, and this in turn implies the existence of a right. According to Papinian the function of the
ius honorarium
was to ‘aid, supplement or correct’ the civil law. It is uncertain when the praetors attained this full right: indeed this is one of the most controversial questions of Republican law. For many years the early system of
legis actiones
and purely civil law prevailed, until the Lex Aebutia (
c.
150) substituted for the stereotyped
legis actiones
a formulary system of procedure by which cases were tried in a form of words which depended on the praetor. It would seem probable that this law was preceded by a period in which a praetor, who had public opinion behind him, could exercise some influence, but he was not legally given a free hand until the enactment of the Lex Aebutia, which marks the beginning of the great period of the praetorian edict. The
ius civile
was gradually amended by the
ius praetorium
. Thus the law of a city-state was adapted to meet the needs of an empire, and Roman law became one of the chief civilizing forces in the history of mankind, and the basis of a large part of modern European law.

In early days a great variety of languages was spoken in Italy, but by the end of our period Latin predominated, though such dialects as Oscan survived till the first century AD, while Greek was adopted by educated Romans as a second tongue. Apart from Etruscan all these languages were Indo-European and thus akin to one another: in the north was Celtic and the Ligurian speech, which linguistically is intermediate between Celtic and Italic; on the Adriatic coast a group of ‘Illyrian’ dialects is found (Mesopic, Venetic, Rhaetic and perhaps ‘Old Sabellic’); Greek was spoken in the cities of Magna Graecia; in central Italy the Italic dialects prevailed. These last fall into two main classes: Latin and Faliscan; and Umbro-Sabellian including Oscan and minor dialects. Apart from affinities with Greek and Celtic which derive from a distant common Indo-European origin, the Latins borrowed much from their neighbours’ speech in historical times, from Sabine, Oscan, Greek, Etruscan and even Celtic. Of the ten thousand Greek words which came into Latin use, a considerable number was introduced by the actual process of intercourse in speech. The Latins borrowed their alphabet from the Greeks by way of Etruria. But out of a tongue which was uncouth and heavy the Romans by borrowing and still more by adaptation wrought a language which became the medium for one of the noblest literatures; one that outlived the Roman Empire, and became the servant of learning and religion and the direct ancestor of a great portion of the languages of modern Europe.

Few traces of early Latin survive. They include the inscription written alternatively up and down the Forum
stele
under the Lapis Niger (sixth century?), that written (
c.
600
BC
?) from right to left on the Praeneste fibula: ‘
Manios med
fhefhaked Numasioi
’ =
Manius me fecit Numerio
, and that on the Duenos bowl (fourth century) found on the Quirinal which shows Greek influence (
Duenos med feced
). Somewhat earlier than the Hannibalic War is a dedication from Tusculum: ‘
M. Fourio Cf. tribunos militare de praidad Maurte dedet
’ (
M. Furius C.f. tribunus militaris de praeda Marti dedit
.) To the same period belong the epitaphs in Saturnian verse of Scipio Barbatus, consul of 298, and his son, consul in 259: ‘
Honc oino ploirume consentiont
R(
omai
) – (
Hunc unum plurimi consentiunt Romae
) –
Duonoro optumo fuise viro’
– (
Bonorum optimum fuisse virum
) – ‘
Luciom Scipione
’ – (
Lucium Scipionem
). It is uncertain to what extent certain literary remains have been corrupted and how far their archaic Latin is genuine. Examples are the fragments of the litany of the Salii, which was unintelligible in Horace’s day, the hymn of the Arval Brethren which begins, ‘
Enos, Fases, iuvate
’ (
nos, Lares, iuvate
), and the Twelve Tables.

The beginning of Latin prose may be found in official documents such as the Twelve Tables, priestly Commentarii, Acta, Fasti and Annales, and early laws and treaties. Speeches in the Senate and funeral orations stimulated the development of Roman oratory. Early poetry is represented by the hymns already mentioned, by didactic proverbs (e.g. ‘
Hiberno pulvere, verno luto, | Grandia farra, camille, metes
’), lullabies (e.g. ‘
Lalla, lalla, lalla: i aut dormi aut lacta
’), wedding or funeral songs, and by the words chanted by workers in the fields or women at the loom. Whether any real poetry was conceived is uncertain. Varro records that at banquets boys used to sing lays celebrating the deeds of great men; Cato says that the banqueters themselves contributed songs. On such evidence Niebuhr proposed, and Macaulay popularized, the theory of the existence of an early popular ballad literature, from which Livy derived many details of the legends of early Rome. Though Rome produced no Homer to sing the glory of heroes (
κλέαάνδρων
), clearly songs were sung in early days, and the mead-hall of Caedmon’s day had its Roman counterpart. But such
carmina
probably had little influence upon later historiography.
²
The metre of these early songs and litanies was the native Saturnian, which Ennius depised as crude in contrast with his own Hellenic hexameters: ‘
quos olim Fauni vatesque canebant
’ Popular drama originated in Fescennine verses,
satura
, and Atellan farce. Livy (vii, 2) describes how performances with musical accompaniment called
saturae
were enacted by Etruscans in Rome in 364 and replaced the earlier Fescennine banter; the ‘satire’ was in turn superseded by the more regular drama on Greek models introduced by Livius Andronicus.
³
Fescennine verses were rough jests, improvised and sung at harvest and vintage festivals to avert the evil eye; they long survived at marriages and triumphs. These crude jests may have developed into dialogue, but they remained amateur efforts. The term originates from Fescennium in Etruria or from ‘fascinum,’ a phallic symbol to avert the evil eye. The dramatic nature of
satura
has been questioned by some who see in Livy’s account a reflection of Aristotle’s view of the origin of Greek comedy. With Ennius
satura lanx
, a mixed dish, became
a literary miscellany, but it may have started its career on the stage. The
fabulae Atellanae
were Oscan farces, originating at Atella in Campania. When introduced into Rome, perhaps in the third century, they became popular and were acted by amateurs who did not suffer from that stigma which was later attached to professional actors at Rome.
⁴
The characters were stock figures: Maccus the Fool, Pappus the Dotard, Bucco the Glutton, Manduccus the Champer, and Dossennus (probably a glutton rather than a hunchback). From such crude beginnings did Latin literature spring.