The History of Rome. Book II

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 time - 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