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CHAP. terms which were merely guessed at in the Augustan XIV.

· age, and which it is hopeless to attempt to understand now. A sixth enactment is expressly ascribed to the last two tables, which Cicero describes as full of unequal laws ?', namely, that between the burghers and the commons there should be no legal marriages; if a burgher married the daughter of a plebeian, his children followed their mother's condition, and were not subject to their father, nor could inherit from

him if he died intestate. The consti- With no further knowledge than of these mere changes ef- fragments, we can judge but little of the tenor fected by the decemvirs of the whole law; but yet, if we had the entire bably not. text of the twelve tables before us, we should prothe twelve bably find in them 80 no direct mention of the great


were pro

contained in


and were called “Sanates :" “quasi and their clients in the tribes, the sanatâ mente.” And the “Fortes," Roman writers could not possibly according to Paulus, were "boni have showed such great ignorance qui nunquam defecerant a populo of the early state of their constiRomano.” This is all improbable tution as they have done actually. enough ; but Niebuhr says that On one point, however, on which the terins sanas and fortis must the twelve tables appear to have probably be understood either of spoken expressly, the practice and bondmen and freemen, or of those the law in after-times may seem to who had hitherto been vassals in have been at variance I allude to the ancient colonial towns, and the famous provision, “ De capite the colonists. It is impossible, in civis nisi per maximum comitithe present state of our knowledge, atum ne ferunto," a provision to give any thing more certain on which appears to make the centhe subject.

turies the sole criminal court, and 79 Cicero, de Republicâ, II. 37. to require that every ordinary

80 The twelve tables were extant felon should be tried before them; down to the latest age of Roman which we know was not the case, literature, and their contents were and would have been in fact abfamiliarly known. Had they con- surd and impossible. But, in the tained therefore many regulations first place, the institution of the of a constituent cast, such for in- judices selecti, in later times, was stance as related to the powers of intended to be a sort of representhe several orders in the state, to tation of the whole people for juthe enrolment of the burghers dicial purposes ; so that a con


constitutional changes which the decemvirs are with CHAP. reason supposed to have effected. Their code of laws 4 was the expression of their legislative, rather than of their constituent power; it contained the rules hereafter to be observed by the Roman people, but would not notice those previous organic changes by which the very composition, so to speak, of the people itself was so greatly altered.

These changes were wrought by virtue of that They were particular branch of their sovereign power which virtue of was afterwards perpetuated in the censorship. When rian power. we find the censor Q. Maximus 81 annihilating at

effected by

their censo

demnation by these judges was the magistrates, using that large
final, and could not be appealed discretion which the practice of
against, like the sentence of a Rome gave them, would punish
magistrate (Cicero, Philipp. I. c. summarily crimes as to which the
9). And, again, there was taken guilt of the accused was perfectly
out of the jurisdiction of the cen- clear, even though he might not
turies all those cases of flagrant have been caught in the fact.
and evident guilt which, accord. When it is further remembered,
ing to the Roman notions, needed that slaves and strangers were
no trial at all. The difference in wholly subject to the magistrates'
the penalty affixed to the crimes jurisdiction, and that there are
of furtum manifestum and nec states of society in which crimes
manifestum, is very remarkable: of a serious description are ex-
in the former case, the thief was tremely rare, it may be conceived
scourged and given over, addictus, that the criminal business of the
to the party whom he had in- centuries would not be very en-
jured ; in the latter case he had grossing.
only to restore twofold. So the However, if M. Manlius was,
man who attacked his neighbour as Niebuhr thinks, tried and con-
in satirical songs, the murderer demned by the comitia of curiæ,
caught “red hand,” the incen- and not by the centuries, it would
diary detected in setting fire to his have been a direct violation of the
neighbour's house or corn, would law of the twelve tables. But the
like the fur manifestus, be hur- story of Manlius, as we shall see
ried off at once to condign pu- hereafter, is too uncertain to be
nishment, and all trial would be argued upon; and it will not per-
held unnecessary. And the same haps be found necessary to sup-
summary justice would be dealt pose that he was really sentenced
to the false witness and to the by the curiæ.
rioter. It is probable, also, that I Livy, IX. 46.


CHAP. once the political influence of a great portion of the

people, by confining all freedmen to four tribes only;
when we read of another censor, M. Livius 82, dis-
franchising the whole Roman people with the ex-
ception of one single tribe, an exercise of power so
extravagant indeed as to destroy itself, yet still, so
far as appears, perfectly legal, we can scarcely under-
stand how any liberty could be consistent with such
an extraordinary prerogative vested in the magistrate.
But if common censors in ordinary times possessed
such authority, much more would it be enjoyed by
the decemviri. They therefore altered the organiza-
tion of the Roman people at their discretion; the
clients of the burghers, and even the burghers them-
selves, were enrolled in the tribes; and the list of
citizens was probably increased by the addition of a
great number of freedmen, and of the inhabitants of
the oldest Roman colonies, mostly the remains of the
times of the Monarchy. But whether it was at this
time that the comitia of centuries assumed that form
in which alone they existed in the historical period
of Rome, whether the tribes were now introduced to
vote on the field of Mars as well as in the forum, is
a question not to be answered. We may be more
sure that whilst the patricians were admitted into
the tribes of the commons, they still retained their
own comitia of curiæ, and their power of confirming
the election of every magistrate by conferring on him
the imperium, and of voting upon every law which
had been passed by the tribes or centuries.

82 Livy, XXIX. 37.



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But Niebuhr has further conjectured that the de- CHAP. cemvirs were intended to be a perpetual magistracy, like the archons at Athens in their original constitu- of Niebuhr tion; that the powers afterwards divided amongst permanency the military tribunes, the censors, and the quæstores cemvirate. parricidii were to be united in a college of ten officers, chosen half from the patricians, and half from the plebeians, and to remain in office for five years. And as the plebeians were thus admitted to an equal share · in the government, the tribunitian power, intended specially to protect them from the oppression of the government, was no longer needed, and therefore, as Niebuhr supposes, the tribuneship was not to exist in the future constitution.

Niebuhr's conjectures in Roman history are almost like a divination, and must never be passed over without notice. But as the decemvirate, whether intended to be temporary or perpetual, was so soon overthrown, it does not seem necessary to enter further into the question; and the common story appears to me to contain in it nothing improbable. Its details doubtless are traditional, and are full of the variations of traditional accounts; still they are not like the mere poetical stories of Cincinnatus or Coriolanus, and therefore I shall proceed to give the account of the second decemvirate, of the tyranny of Appius and the death of Virginia, not as giving full credit to every circumstance, but as considering it, to use the language of Thucydides, as being in the main sufficiently deserving of belief.




Μάλιστα ευλαβείσθαι δει τους υβρίζεσθαι νομίζοντας, και αυτούς, ή ων κηδόμενοι τυγχάνουσιν αφειδώς γαρ έαυτών έχουσιν οι διά θυμόν επιXelpoûytes.-ARISTOTLE, Politica, V. 11.



for a second year. Appius Claudius.

CHAP. The first decemvirs, according to the general tradi

- tion of the Roman annalist, governed uprightly and are elected well, and their laws of the ten tables were just and

good. All parties were so well pleased, that it was resolved to continue the same government at least for another year; the more so as some of the decemvirs declared that their work was not yet complete, and that two tables still required to be added. And now the most eminent of the patricians?, L. Quinctius Cincinnatus, T. Quinctius Capitolinus, and C. Claudius, became candidates for the decemvirate; but the commons had little reason to place confidence in any of them, and might well be afraid to trust unlimited power in their bands. Appius Claudius, on the contrary, had been tried, and had been found


| Livy, III. 33, 34.

? Livy, III. 35.

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