CHAPTER XI
Law and Justice
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.
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)[1]; 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[2]; 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[3], 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.
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.
1. This "chariot-seat" - philologically no other explanation can well be given (comp. Servius ad Aen. i. 16) - is most simply explained by supposing that the king alone was entitled to ride in a chariot within the city (v. The King) - whence originated the privilege subsequently accorded to the chief magistrate on solemn occasions - and that originally, so long as there was no elevated tribunal, he gave judgment, at the comitium or wherever else he wished, from the chariot-seat.
2. I. V. The Housefather and His Household
3. The story of the death of king Tatius, as given by Plutarch (Rom. 23, 24), viz. that kinsmen of Tatius had killed envoys from Laurentum; that Tatius had refused the complaint of the kinsmen of the slain for redress; that they then put Tatius to death; that Romulus acquitted the murderers of Tatius, on the ground that murder had been expiated by murder; but that, in consequence of the penal judgments of the gods that simultaneously fell upon Rome and Laurentum, the perpetrators of both murders were in the sequel subjected to righteous punishment - this story looks quite like a historical version of the abolition of blood-revenge, just as the introduction of the