ROMAN LAW

Roman Law bound Rome like Roman cement. Its genius was its complexity and its fairness, which gained it acceptance for thirteen centuries by millions of people. It lasted from Romulus in 753 BC to Justinian in AD 535, when 3 million judgements were finally consolidated into sixteen volumes by sixteen commissioners. In the realm of jurisprudence, Roman Law is rivalled only by the English and the First World still responds to one or other of these systems.

The power of Rome grew through conquest, followed by treaties, and a process by which local gods and local laws were subsumed by Rome. The British, when collecting their Empire through annexation and the spoils of war, were not so respectful of ‘native’ rights; for instance, after a career such as his in Africa, Cecil Rhodes would have been prosecuted for extortion12 had he been a Roman. Indeed it was with this charge that Cicero, champion of the Republic in its dying days, leapt into Roman history to prosecute Verres, a governor of Sicily.

Cicero, darling of Classics masters, is most eloquent in his analysis of Roman Law – whose twelve tables schoolchildren had to learn by heart – and in the preaching and practice of the Republican virtues of dignity, probity, industry, virtue, respect (for authority) and prudence, which are all Latin words and Roman concepts. He could also be a thumping bore and wrote the worst hexameter extant:

O fortunatam, natam me consule Romam

which has been neatly translated as, ‘How fortunate of Rome to date/her birthday from my consulate’, and his penchant for self-congratulation and his long letters of advice must have contributed to his being purged, after the coup which brought Octavian (later Augustus), Antony and Lepidus into power as dictators.

The establishment of that triumvirate was, in typical Roman fashion, enacted by the Senate with 400 centurions and soldiers hovering around to help them make up their minds; for the seizure of power in Rome was always cloaked with legality, and the Senate, which finally disposed of Nero, remained an institution respected by tyrants, until the arrival of the ‘African’ Emperor Severus.

Roman Law, in the beginning, was based on the authority of the paterfamilias, the head of the family, who had the right, until the end of the Empire, to sell his children. It was he who insisted on boni mores – dutiful service, chastity and respect for superiors. He could and did punish adultery in his children with death. The Romans were always monogamous, though later divorce was easy. Strangely, there is no trace of primogeniture, although a Roman must ensure his posterity, otherwise enjoy no happiness in the grave. Hence the frequency of adoption, because the upper classes were far from philoprogenitive – which led Augustus, as part of his campaign to restore ‘old-fashioned values’, to give tax concessions to citizens who produced three or more children, rather like the almost free rail travel and state benefits for large families in present-day France.

The original Roman paterfamilias was the incarnation of the law. There was one law for the patricians and none for anybody else. Between these patricians – who belonged to a gens (like the gens Julia of our first five Emperors), of which there were 300, which was in turn one of the thirty curiae making up the three tribes of Ancient Rome – there was at first no need for complicated laws of contact, because a Roman’s word – to another Roman – was his bond.

Each was a legal personality with a lot of land in the centre of Rome – his heredium – to which the family clung throughout the generations; and as they grew with Rome, so they attracted a clientela, a group of dependents – poorer citizens and freedmen – whom they protected in return for votes or willingness to participate in a claque in court.

Freedmen and ‘foreigners’, which were soon the majority in Rome, could only sue in the courts via a Roman paterfamilias, so it was essential to belong to a clientela right up until Caracalla – he of the Baths – enfranchised all free men in the Empire. Roman lawmakers moved in great strides to deal with the problems, and the benefits, of increasing population and prosperity. At first one of the magistrates, called a praetor, interpreted the tables of the law in Rome; after the conquest of Sicily there were four, with Spain six; Sulla the Dictator made eight and Caesar, sixteen; they began to create case law with their decisions, which were posted on a white board (album) displayed in the Forum.

More through the influence of Seneca than of Christianity, Roman Law softened with time, until even slaves gained certain rights. A creditor could no longer seize the son of a debtor and put him in irons. Debt, and the means of its recovery, often by a patrician from a small farmer, had been the cause of the greatest riots in early Rome. At that time it was not only legal, but a religious duty to revenge murder of a kinsman with another death. This law is now only observed by the Mafia. However, a citizen could still kill a thief if he came by night or, in the daylight, carried arms.

Laws like this, which came from the original twelve tables, could be chanted by schoolboys, but later legislation regulating, say, repossession of mortgaged property or restitution for damage done by a slave to another citizen’s mule or alienation by a trustee of a minor’s fortune had to be studied, together with the art of rhetoric, in law schools throughout the Roman world. Cicero studied under Scaevola, who was an augur (one of twelve interpreters of Roman religion) and was, more to the point, the expert on Civil Law. He went on to take instruction under Philo the Academician, then attended the lectures on rhetoric of Apollonius Molon in Rhodes, and finally he toured Greece, improving his lung power. His subsequent successes in political trials gave him (a novus homo,without family connections) enough support among the electorate – the knights, the country grandees, the smart young men about town – to become a consul. So success at the bar, like success on a military campaign, was the first step in the cursus honorum,which led to the top of the Roman state.

Our five Emperors all, in their fashion, respected the laws of Rome. Augustus, who had, as Octavian, proscribed 2,000 knights and 300 senators in 43 BC, became the benign father of the state, whose mission it was to restore the institutions of the Republic, so battered by the civil wars in which he was the only winner. He followed the forms of the Republic and in being elected consul thirteen times demonstrated that his authority came from the Senate and People of Rome.

The Roman term imperator was given to a general by the acclaim of his troops, whereas the superior king figures of modern history derive their status from the Judaeo-Christian ritual of being anointed with oil by a priest, in early days under instruction from the Almighty. Emperors in Rome never claimed divine right and had to wait for death to be deified. They believed in vox populi – vox dei, that the voice of the people expresses the will of God (and not, as revolutionaries would have it, the other way round); they insisted that the people, that is to say the legislators, had to approve their most outrageous actions.

This explains the amount of time the successors of Augustus spent terrorizing the Senate. Nero, having failed to arrange a fatal accident for her, had his mother killed but legalized matricide by inventing a conspiracy which she was supposed to have mistress-minded. As we shall see, he even managed to convert the event into a Triumph. And consider Caligula, always billed as the monster of the classical world; feckless, whimsical and cruel, he would have approved the dictum of his latest (American) biographer, that while power corrupts, absolute power is more exciting. In fact, making his horse into a consul never happened, and was his joke anyway. His thirty-nine named victims were carefully chosen and were fewer than those of the Emperor Claudius (who couldn’t be kept out of the courtroom).

Caligula despised the Roman people which is why he was wished on them by his predecessor, Tiberius, equally contemptuous, but less amusing and amused; but he respected their laws. By modern standards – Hitler executed 10,000 Germans after the July plot – Roman Emperors were restrained in their treatment of conspirators, having no secret police and only rarely holding trials in camera. In fact, Caligula practised ‘open government’, in that when reintroducing the Lex Maiestatis (discouraging lèse-majesté – offences against his sacrosanct person) he had the terms set out on a bronze tablet. He published his accounts, lifted censorship and even published the names of the clients at his brothel on the Palatine. (Another of his terrible practical jokes.)

The Roman Empire could not have lasted so long had its subjects not believed in the efficacy and eventual justice of Roman Law. One of its most famous citizens, Saul of Tarsus, knew exactly what he was doing when he appealed unto Caesar.

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