Ancient History & Civilisation

4. THE DECEMVIRS AND LAW

Having gained protection against the magistrates, the plebs next demanded that the law should be published so that the patricians might no longer be able to interpret unwritten custom as they willed. Tradition relates that the agitation started with the tribune C. Terentilius Harsa, who in 462 proposed to set up a commission of five men with consular power to write down the laws (less probably their purpose was to limit the consular imperium). The patricians resisted the proposal and a regular struggle between the orders continued until a compromise was reached in 454, when three commissioners were sent to Greece to study foreign legal systems. On their return it was decided to suspend the regular constitution and the magistrates, consuls and tribunes alike, and to set up as the executive government in 451 a Commission of Ten who were unhampered by the right of appeal. These decemvirs, all of whom were patricians, acted with vigour and justice and issued a code inscribed on Ten Tables, which was duly sanctioned by the Comitia Centuriata. In 450 a similar commission was established to complete their work; apart from its leader, Appius Claudius, its members were all different from those of the first commission, and some were plebeians. These commissioners added two more tables of what Cicero dubs ‘unjust laws’ to the existing ten and began to rule oppressively, refusing to resign. During a reign of terror when most of his colleagues were absent on military service Appius Claudius, in particular, played the tyrant. Two acts of violence heralded their fall: a brave warrior and tribune, Sicinius Dentatus, was murdered, and the maiden Verginia was slain by her own father to save her from the clutches of Appius. The plebs thereupon seceded, the decemvirs abdicated, and negotiations resulted in the restoration of constitutional government. Ten tribunes and an interrex were appointed, and L. Valerius Potitus and M. Horatius Barbatus were elected consuls for 449.

Few details of the account are above suspicion, but the outline is certain and is supported by the Fasti and by the fragments of the code which, though revised by later Roman jurists, still survive. Many details about Terentilius are merely later inductions, but the rarity of his name and the consensus of sources regarding the importance of his work may establish him as the pioneer in the movement to obtain a written code. The supposed visit to Greece is more doubtful, since the object was to publish existing law, not tomake new laws. The story of Dentatus, a plebeian hero who was the object of patrician treachery, may have been incorporated into the more famous legend of the tyranny of the decemvirs. The poetical legend of Verginia bears some similarity to that of Lucretia, who caused the fall of another tyrant. The oppression of the second decemvirs may have been overemphasized; the necessarily somewhat harsh conditions of a primitive code may have given rise later to the view that the lawmakers were themselves harsh: were not Draco’s laws said to be written in blood? Or, since the names of the second decemvirs are somewhat suspect, this second group might have been invented merely because the commission lasted more than one year. Further, the secession of the plebs is difficult to explain if five of the decemvirs were really plebeian. It has been suggested that Appius Claudius sought to abolish the ‘state within the state’ by allowing the plebeians a share in the supreme magistracy as well as equal laws. But as certain concessions were won by the plebs in the following year, possibly these resulted from a secession that had aimed at restoring the tribunes and the regular government when once the immediate object of the publication of the law had been attained.18

The Twelve Tables contained the ‘whole body of Roman law’ and formed ‘the fountainhead of all law, public and private’.19 Schoolboys in Cicero’s day still learnt their sentences by heart. In some respects they were the Ten Commandments of the Romans. Like many early codes, such as Hammurabi’s, they were a medley of primitive survivals and more progressive ideas. But they affirmed the equality of all free men in the eyes of the law and so they survived as a sound basis for society, while Hammurabi’s code, which, though superior in some respects, recognized a regal power superior to law, collapsed with the civilization of Babylon. In the main the Twelve Tables are the codification of customary law, now made statute law; but in the process they were simplified and brought up to date. Though not directly modelled on Solon’s code, they show the influence of Greek law, which came perhaps from contact with Greek colonies: hence the story of the Roman embassy to Greece. As the form in which they survive shows traces of further modernization by later Roman jurists, clearly they were regarded not merely as of antiquarian interest, but as a continuing living source of law.

It is not possible here to discuss the contents of the Tables or their relative antiquity, though some may be enumerated to illustrate the wide scope of the legislation. In private law a slight weakening of the patria potestas is noticeable in a greater recognition of a wife’s rights (pp. 322ff.). But intermarriage between members of the two orders was forbidden in one of the two supplementary Tables. Since hitherto it is likely that custom rather than law had discouraged intermarriage, this measure looks like a somewhat desperate bid by the patricians to create an even stricter caste system at a time when they saw other privileges threatened. Other rules facilitated the emancipation of sons and of slaves, granted freedom of testamentary disposition, regulated inheritance, debt, usury, contracts and conveyances e.g.: ‘If a man enters into a personal obligation or makes a purchase, as the tongue has spoken, so shall it be.’); the rights of association were defined, assemblies by night were forbidden as leading to treason, while guilds were permitted. Amid much that was progressive in civil law, such as a clear conception of contract and liberal testamentary laws, the executive machinery of criminal law was lacking, apart from the quaestores parricidii. For instance, a plaintiff received little help in carrying out a judgment which was given in his favour, and the lex talionis survived: ‘If one breaks another’s limb and fails to compound with him, let limb be given for limb’; a burglar at night could be killed on the spot. Hanging was the penalty for the destruction of standing corn; this represents an old religious survival. But while the rules of procedure for all civil actions were published, yet the set forms of words in which pleadings were to be conducted (actiones) remained the secret of the patrician pontiffs. The plebs had won a great victory, but they had even so to press close on the heels of their retreating foe.

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