XIV. 79 CHAP. terms which were merely guessed at in the Augustan 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 constitutional With no further knowledge than of these mere changes ef- fragments, we can judge but little of the tenor fected by the were probably not contained in decemvirs of the whole law; but yet, if we had the entire text of the twelve tables before us, we should prothe twelve bably find in them 80 no direct mention of the great tables. and were called "Sanates:"" 'quasi 79 Cicero, de Republicâ, II. 37. and their clients in the tribes, the Roman writers could not possibly have showed such great ignorance of the early state of their constitution as they have done actually. On one point, however, on which the twelve tables appear to have spoken expressly, the practice and the law in after-times may seem to have been at variance I allude to the famous provision, "De capite civis nisi per maximum comitiatum ne ferunto," a provision which appears to make the centuries the sole criminal court, and to require that every ordinary felon should be tried before them; which we know was not the case, and would have been in fact absurd and impossible. But, in the first place, the institution of the judices selecti, in later times, was intended to be a sort of representation of the whole people for judicial purposes; so that a con XIV. constitutional changes which the decemvirs are with CHAP. reason supposed to have effected. Their code of laws 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. effected by their censo 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 : demnation by these judges was final, and could not be appealed against, like the sentence of a magistrate (Cicero, Philipp. I. c. 9). And, again, there was taken out of the jurisdiction of the centuries all those cases of flagrant and evident guilt which, according to the Roman notions, needed no trial at all. The difference in the penalty affixed to the crimes of furtum manifestum and nec manifestum, is very remarkable in the former case, the thief was scourged and given over, addictus, to the party whom he had injured; in the latter case he had only to restore twofold. So the man who attacked his neighbour in satirical songs, the murderer caught "red hand," the incendiary detected in setting fire to his neighbour's house or corn, would like the fur manifestus, be hurried off at once to condign punishment, and all trial would be held unnecessary. And the same summary justice would be dealt to the false witness and to the rioter. It is probable, also, that the magistrates, using that large However, if M. Manlius was, 81 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, disfranchising the whole Roman people with the exception 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 understand 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 organization of the Roman people at their discretion; the clients of the burghers, and even the burghers themselves, 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. XIV. as to the of the de But Niebuhr has further conjectured that the de- CHAP. cemvirs were intended to be a perpetual magistracy, Conjectures 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. CHAPTER XV. THE SECOND DECEMVIRATE-STORY OF VIRGINIA REVOLUTION OF 305. Μάλιστα εὐλαβεῖσθαι δεῖ τοὺς ὑβρίζεσθαι νομίζοντας, ἢ αὑτούς, ἢ ὧν κηδόμενοι τυγχάνουσιν· ἀφειδῶς γὰρ ἑαυτῶν ἔχουσιν οἱ διὰ θυμὸν ἐπιXELPOÛTES.-ARISTOTLE, Politica, V. 11. CHAP. THE first decemvirs, according to the general tradition of the Roman annalist, governed uprightly and XV. Decemvirs for a second 1 are elected well, and their laws of the ten tables were just and year. good. All parties were so well pleased, that it was Claudius. resolved to continue the same government at least Appius 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 2, 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 hands. Appius Claudius, on the contrary, had been tried, and had been found 1 Livy, III. 33, 34. 2 Livy, III. 35. |