The History of Rome, Book I

Phoenicians and Italians in Opposition to the Hellenes

Perhaps the element in this reaction which exercised the most momentous influence in the sequel was the close relation into which the weaker Phoenicians entered with the natives of Sicily and Italy in order to resist the Hellenes. When the Cnidians and Rhodians made an attempt about 175 to establish themselves at Lilybaeum, the centre of the Phoenician settlements in Sicily, they were expelled by the natives—the Elymi of Segeste—in concert with the Phoenicians. When the Phocaeans settled about 217 at Alalia (Aleria) in Corsica opposite to Caere, there appeared for the purpose of expelling them a combined fleet of Etruscans and Carthaginians, numbering a hundred and twenty sail; and although in the naval battle that ensued—one of the earliest known in history-the fleet of the Phocaeans, which was only half as strong, claimed the victory, the Carthaginians and Etruscans gained the object which they had in view in the attack; the Phocaeans abandoned Corsica, and preferred to settle at Hyde (Velia) on the less exposed coast of Lucania. A treaty between Etruria and Carthage not only established regulations regarding the import of goods and the giving due effect to rights, but included also an alliance-in-arms (—summachia—), the serious import of which is shown by that very battle of Alalia. It is a significant indication of the position of the Caerites, that they stoned the Phocaean captives in the market at Caere and then sent an embassy to the Delphic Apollo to atone for the crime.

Latium did not join in these hostilities against the Hellenes; on the contrary, we find friendly relations subsisting in very ancient times between the Romans and the Phocaeans in Velia as well as in Massilia, and the Ardeates are even said to have founded in concert with the Zacynthians a colony in Spain, the later Saguntum. Much less, however, did the Latins range themselves on the side of the Hellenes: the neutrality of their position in this respect is attested by the close relations maintained between Caere and Rome, as well as by the traces of ancient intercourse between the Latins and the Carthaginians. It was through the medium of the Hellenes that the Cannanite race became known to the Romans, for, as we have already seen,87 they always designated it by its Greek name; but the fact that they did not borrow from the Greeks either the name for the city of Carthage88 or the national name of the -Afri-,89 and the circumstance that among the earlier Romans Tyrian wares were designated by the adjective -Sarranus-,90 which in like manner precludes the idea of Greek intervention, demonstrate—what the treaties of a later period concur in proving—the direct commercial intercourse anciently subsisting between Latium and Carthage.

The combined power of the Italians and Phoenicians actually succeeded in substantially retaining the western half of the Mediterranean in their hands. The northwestern portion of Sicily, with the important ports of Soluntum and Panormus on the north coast, and Motya at the point which looks towards Africa, remained in the direct or indirect possession of the Carthaginians. About the age of Cyrus and Croesus, just when the wise Bias was endeavouring to induce the Ionians to emigrate in a body from Asia Minor and settle in Sardinia (about 200), the Carthaginian general Malchus anticipated them, and subdued a considerable portion of that important island by force of arms; half a century later, the whole coast of Sardinia appears in the undisputed possession of the Carthaginian community. Corsica on the other hand, with the towns of Alalia and Nicaea, fell to the Etruscans, and the natives paid to these tribute of the products of their poor island, pitch, wax, and honey. In the Adriatic sea, moreover, the allied Etruscans and Carthaginians ruled, as in the waters to the west of Sicily and Sardinia. The Greeks, indeed, did not give up the struggle. Those Rhodians and Cnidians, who had been driven out of Lilybaeum, established themselves on the islands between Sicily and Italy and founded there the town of Lipara (175)Massilia flourished in spite of its isolation, and soon monopolized the trade of the region from Nice to the Pyrenees. At the Pyrenees themselves Rhoda (now Rosas) was established as an offset from Lipara, and it is affirmed that Zacynthians settled in Saguntum, and even that Greek dynasts ruled at Tingis (Tangiers) in Mauretania. But the Hellenes no longer gained ground; after the foundation of Agrigentum they did not succeed in acquiring any important additions of territory on the Adriatic or on the western sea, and they remained excluded from the Spanish waters as well as from the Atlantic Ocean. Every year the Liparaeans had their conflicts with the Tuscan "sea-robbers," and the Carthaginians with the Massiliots, the Cyrenaeans, and above all with the Sicilian Greeks; but no results of permanent moment were on either side achieved, and the issue of struggles which lasted for centuries was, on the whole, the simple maintenance of the -status quo-.

Thus Italy was—if but indirectly—indebted to the Phoenicians for the exemption of at least her central and northern provinces from colonization, and for the counter-development of a national maritime power there, especially in Etruria. But there are not wanting indications that the Phoenicians already found it worth while to manifest that jealousy which is usually associated with naval domination, if not in reference to their Latin allies, at any rate in reference to their Etruscan confederates, whose naval power was greater. The statement as to the Carthaginians having prohibited the sending forth of an Etruscan colony to the Canary islands, whether true or false, reveals the existence of a rivalry of interests in the matter.

CHAPTER XI

Law and Justice

Modern Character of Italian Culture

History, as such, cannot reproduce the life of a people in the infinite variety of its details; it must be content with exhibiting the development of that life as a whole. The doings and dealings, the thoughts and imaginings of the individual, however strongly they may reflect the characteristics of the national mind, form no part of history. Nevertheless it seems necessary to make some attempt to indicate—only in the most general outlines—the features of individual life in the case of those earlier ages which are, so far as history is concerned, all but lost in oblivion; for it is in this field of research alone that we acquire some idea of the breadth of the gulf which separates our modes of thinking and feeling from those of the civilized nations of antiquity. Tradition, with its confused mass of national names and its dim legends, resembles withered leaves which with difficulty we recognize to have once been green. Instead of threading that dreary maze and attempting to classify those shreds of humanity, the Chones and Oenotrians, the Siculi and the Pelasgi, it will be more to the purpose to inquire how the real life of the people in ancient Italy expressed itself in their law, and their ideal life in religion; how they farmed and how they traded; and whence the several nations derived the art of writing and other elements of culture. Scanty as our knowledge in this respect is in reference to the Roman people and still more so in reference to the Sabellians and Etruscans, even the slight and very defective information which is attainable will enable the mind to associate with these names some more or less clear glimpse of the once living reality. The chief result of such a view (as we may here mention by way of anticipation) may be summed up in saying that fewer traces comparatively of the primitive state of things have been preserved in the case of the Italians, and of the Romans in particular, than in the case of any other Indo-Germanic race. The bow and arrow, the war-chariot, the incapacity of women to hold property, the acquiring of wives by purchase, the primitive form of burial, blood-revenge, the clan-constitution conflicting with the authority of the community, a vivid natural symbolism —all these, and numerous phenomena of a kindred character, must be presumed to have lain at the foundation of civilization in Italy as well as elsewhere; but at the epoch when that civilization comes clearly into view they have already wholly disappeared, and only the comparison of kindred races informs us that such things once existed. In this respect Italian history begins at a far later stage of civilization than e.g. the Greek or the Germanic, and from the first it exhibits a comparatively modern character.

The laws of most of the Italian stocks are lost in oblivion. Some information regarding the law of the Latin land alone has survived in Roman tradition.

Jurisdiction

All jurisdiction was vested in the community or, in other words, in the king, who administered justice or "command" (-ius-) on the "days of utterance" (-dies fasti-) at the "judgment platform" (-tribunal-) in the place of public assembly, sitting on the "chariot-seat" (-sella curulis-);91 by his side stood his "messengers" (-lictores-), and before him the person accused or the "parties" (-rei-). No doubt in the case of slaves the decision lay primarily with the master, and in the case of women with the father, husband, or nearest male relative;92 but slaves and women were not primarily reckoned as members of the community. Over sons and grandsons who were -in potestate- the power of the -pater familias- subsisted concurrently with the royal jurisdiction; that power, however, was not a jurisdiction in the proper sense of the term, but simply a consequence of the father's inherent right of property in his children. We find no traces of any jurisdiction appertaining to the clans as such, or of any judicature at all that did not derive its authority from the king. As regards the right of self-redress and in particular the avenging of blood, we still find perhaps in legends an echo of the original principle that a murderer, or any one who should illegally protect a murderer, might justifiably be slain by the kinsmen of the person murdered; but these very legends characterize this principle as objectionable,93 and from their statements blood-revenge would appear to have been very early suppressed in Rome through the energetic assertion of the authority of the community. In like manner we perceive in the earliest Roman law no trace of that influence which under the oldest Germanic institutions the comrades of the accused and the people present were entitled to exercise over the pronouncing of judgment; nor do we find in the former any evidence of the usage so frequent in the latter, by which the mere will and power to maintain a claim with arms in hand were treated as judicially necessary or at any rate admissible.

Crimes

Judicial procedure took the form of a public or a private process, according as the king interposed of his own motion or only when appealed to by the injured party. The former course was taken only in cases which involved a breach of the public peace. First of all, therefore, it was applicable in the case of public treason or communion with the public enemy (-proditio-), and in that of violent rebellion against the magistracy (-perduellio-). But the public peace was also broken by the foul murderer (-parricida-), the sodomite, the violator of a maiden's or matron's chastity, the incendiary, the false witness, by those, moreover, who with evil spells conjured away the harvest, or who without due title cut the corn by night in the field entrusted to the protection of the gods and of the people; all of these were therefore dealt with as though they had been guilty of high treason. The king opened and conducted the process, and pronounced sentence after conferring with the senators whom he had called in to advise with him. He was at liberty, however, after he had initiated the process, to commit the further handling and the adjudication of the matter to deputies who were, as a rule, taken from the senate. The later extraordinary deputies, the two men for adjudicating on rebellion (-duoviri perduellionis-) and the later standing deputies the "trackers of murder" (-quaestores parricidii-) whose primary duty was to search out and arrest murderers, and who therefore exercised in some measure police functions, do not belong to the regal period, but may probably have sprung out of, or been suggested by, certain of its institutions. Imprisonment while the case was undergoing investigation was the rule; the accused might, however, be released on bail. Torture to compel confession was only applied to slaves. Every one convicted of having broken the public peace expiated his offence with his life. The modes of inflicting capital punishment were various: the false witness, for example, was hurled from the stronghold-rock; the harvest-thief was hanged; the incendiary was burnt. The king could not grant pardon, for that power was vested in the community alone; but the king might grant or refuse to the condemned permission to appeal for mercy (-provocatio-). In addition to this, the law recognized an intervention of the gods in favour of the condemned criminal. He who had made a genuflection before the priest of Jupiter might not be scourged on the same day; any one under fetters who set foot in his house had to be released from his bonds; and the life of a criminal was spared, if on his way to execution he accidentally met one of the sacred virgins of Vesta.

Punishment of Offenses against Order

The king inflicted at his discretion fines payable to the state for trespasses against order and for police offences; they consisted in a definite number (hence the name -multa-) of cattle or sheep. It was in his power also to pronounce sentence of scourging.

Law of Private Offenses

In all other cases, where the individual alone was injured and not the public peace, the state only interposed upon the appeal of the party injured, who caused his opponent, or in case of need by laying violent hands on him compelled him, to appear personally along with himself before the king. When both parties had appeared and the plaintiff had orally stated his demand, while the defendant had in similar fashion refused to comply with it, the king might either investigate the cause himself or have it disposed of by a deputy acting in his name. The regular form of satisfaction for such an injury was a compromise arranged between the injurer and the injured; the state only interfered supplementarily, when the aggressor did not satisfy the party aggrieved by an adequate expiation (-poena-), when any one had his property detained or his just demand was not fulfilled.

Theft

Under what circumstances during this epoch theft was regarded as at all expiable, and what in such an event the person injured was entitled to demand from the thief, cannot be ascertained. But the injured party with reason demanded heavier compensation from a thief caught in the very act than from one detected afterwards, since the feeling of exasperation which had to be appeased was more vehement in the case of the former than in that of the latter. If the theft appeared incapable of expiation, or if the thief was not in a position to pay the value demanded by the injured party and approved by the judge, he was by the judge assigned as a bondsman to the person from whom he had stolen.

Injuries

In cases of damage (-iniuria-) to person or to property, where the injury was not of a very serious description, the aggrieved party was probably obliged unconditionally to accept compensation; if, on the other hand, any member was lost in consequence of it, the maimed person could demand eye for eye and tooth for tooth.

Property

Since the arable land among the Romans was long cultivated upon the system of joint possession and was not distributed until a comparatively late age, the idea of property was primarily associated not with immoveable estate, but with "estate in slaves and cattle" (-familia pecuniaque-). It was not the right of the stronger that was regarded as the foundation of a title to it; on the contrary, all property was considered as conferred by the community upon the individual burgess for his exclusive possession and use; and therefore it was only the burgess, and such as the community accounted in this respect as equal to burgesses, that were capable of holding property. All property passed freely from hand to hand. The Roman law made no substantial distinction between moveable and immoveable estate (from the time that the latter was regarded as private property at all), and recognized no absolute vested interest of children or other relatives in the paternal or family property. Nevertheless it was not in the power of the father arbitrarily to deprive his children of their right of inheritance, because he could neither dissolve the paternal power nor execute a testament except with consent of the whole community, which might be, and certainly under such circumstances often was, refused. In his lifetime no doubt the father might make dispositions disadvantageous to his children; for the law was sparing of personal restrictions on the proprietor and allowed, upon the whole, every grown-up man freely to dispose of his property. The regulation, however, under which he who alienated his hereditary property and deprived his children of it was placed by order of the magistrate under guardianship like a lunatic, was probably as ancient as the period when the arable land was first divided and thereby private property generally acquired greater importance for the commonwealth. In this way the two antagonistic principles—the unlimited right of the owner to dispose of his own, and the preservation of the family property unbroken—were as far as possible harmonized in the Roman law. Permanent restrictions on property were in no case allowed, with the exception of servitudes such as those indispensable in husbandry. Heritable leases and ground-rents charged upon property could not legally exist. The law as little recognized mortgaging; but the same purpose was served by the immediate delivery of the property in pledge to the creditor as if he were its purchaser, who thereupon gave his word of honour (-fiducia-) that he would not alienate the object pledged until the payment fell due, and would restore it to his debtor when the sum advanced had been repaid.

Contracts

Contracts concluded between the state and a burgess, particularly the obligation given by those who became sureties for a payment to the state (-praevides-, -praedes-), were valid without further formality. On the other hand, contracts between private persons under ordinary circumstances gave no claim for legal aid on the part of the state. The only protection of the creditor was the debtor's word of honour which was held in high esteem after the wont of merchants, and possibly also, in those frequent cases where an oath had been added, the fear of the gods who avenged perjury. The only contracts legally actionable were those of betrothal (the effect of which was that the father, in the event of his failing to give the promised bride, had to furnish satisfaction and compensation), of purchase (-mancipatio-), and of loan (-nexum-). A purchase was held to be legally concluded when the seller delivered the article purchased into the hand of the buyer (-mancipare-) and the buyer at the same time paid to the seller the stipulated price in presence of witnesses. This was done, after copper superseded sheep and cattle as the regular standard of value, by weighing out the stipulated quantity of copper in a balance adjusted by a neutral person.94 These conditions having been complied with, the seller had to answer for his being the owner, and in addition seller and purchaser had to fulfil every stipulation specially agreed on; the party failing to do so made reparation to the other, just as if he had deprived him of the article in question. But a purchase only founded an action in the event of its being a transaction for ready money: a purchase on credit neither gave nor took away the right of property, and constituted no ground of action. A loan was negotiated in a similar way; the creditor weighed over to the debtor in presence of witnesses the stipulated quantity of copper under the obligation (-nexum-) of repayment. In addition to the capital the debtor had to pay interest, which under ordinary circumstances probably amounted to ten per cent per annum.95 The repayment of the loan took place, when the time came, with similar forms.

Private Process

If a debtor to the state did not fulfil his obligations, he was without further ceremony sold with all that he had; the simple demand on the part of the state was sufficient to establish the debt. If on the other hand a private person informed the king of any violation of his property (-vindiciae-) or if repayment of the loan received did not duly take place, the procedure depended on whether the facts relating to the cause needed to be established, which was ordinarily the case with actions as to property, or were already clearly apparent, which in the case of actions as to loans could easily be accomplished according to the current rules of law by means of the witnesses. The establishment of the facts assumed the form of a wager, in which each party made a deposit (-sacramentum-) against the contingency of his being worsted; in important causes when the value involved was greater than ten oxen, a deposit of five oxen, in causes of less amount, a deposit of five sheep. The judge then decided who had gained the wager, whereupon the deposit of the losing party fell to the priests for behoof of the public sacrifices. The party who lost the wager and allowed thirty days to elapse without giving due satisfaction to his opponent, and the party whose obligation to pay was established from the first—consequently, as a rule, the debtor who had got a loan and had not witnesses to attest its repayment—became liable to proceedings in execution "by laying on of hands" (-manus iniectio-); the plaintiff seized him wherever he found him, and brought him to the bar of the judge simply to satisfy the acknowledged debt. The party seized was not allowed to defend himself; a third person might indeed intercede for him and represent this act of violence as unwarranted (-vindex-), in which case the proceedings were stayed; but such an intercession rendered the intercessor personally responsible, for which reason the proletarian could not be intercessor for the tribute-paying burgess. If neither satisfaction nor intercession took place, the king adjudged the party seized to his creditor, so that the latter could lead him away and keep him like a slave. After the expiry of sixty days during which the debtor had been three times exposed in the market-place and proclamation had been made to ascertain whether any one would have compassion upon him, if these steps were without effect, his creditors had the right to put him to death and to divide his carcase, or to sell him with his children and his effects into foreign slavery, or to keep him at home in a slave's stead; for such an one could not by the Roman law, so long as he remained within the bounds of the Roman community, become completely a slave.96 Thus the Roman community protected every man's estate and effects with unrelenting rigour as well from the thief and the injurer, as from the unauthorized possessor and the insolvent debtor.

Guardianship

Protection was in like manner provided for the estate of persons not capable of bearing arms and therefore not capable of protecting their own property, such as minors and lunatics, and above all for that of women; in these cases the nearest heirs were called to undertake the guardianship.

Law of Inheritance

After a man's death his property fell to the nearest heirs: in the division all who were equal in proximity of relationship—women included—shared alike, and the widow along with her children was admitted to her proportional share. A dispensation from the legal order of succession could only be granted by the assembly of the people; previous to which the consent of the priests had to be obtained on account of the ritual obligations attaching to succession. Such dispensations appear nevertheless to have become at an early period very frequent. In the event of a dispensation not being procured, the want of it might be in some measure remedied by means of the completely free control which every one had over his property during his lifetime. His whole property was transferred to a friend, who distributed it after death according to the wishes of the deceased.