The government of the senate rested essentially on this twofold police control supreme and subordinate, vested in the community and its officials, and furnished with powers as extensive as they were arbitrary. Like every such arbitrary government, it was productive of much good and much evil, and we do not mean to combat the view of those who hold that the evil preponderated. But we must not forget that - amidst the morality external certainly but stern and energetic, and the powerful enkindling of public spirit, that were the genuine characteristics of this period - these institutions remained exempt as yet from any really base misuse; and if they were the chief instruments in repressing individual freedom, they were also the means by which the public spirit and the good old manners and order of the Roman community were with might and main upheld.
Along with these changes a humanizing and modernizing tendency showed itself slowly, but yet clearly enough, in the development of Roman law. Most of the enactmerits of the Twelve Tables, which coincide with the laws of Solon and therefore may with reason be considered as in substance innovations, bear this character; such as the securing the right of free association and the autonomy of the societies that originated under it; the enactment that forbade the ploughing up of boundary-balks; and the mitigation of the punishment of theft, so that a thief not caught in the act might henceforth release himself from the plaintiff's suit by payment of double compensation. The law of debt was modified in a similar sense, but not till upwards of a century afterwards, by the Poetelian law[6]. The right freely to dispose of property, which according to the earliest Roman law was accorded to the owner in his lifetime but in the case of death had hitherto been conditional on the consent of the community, was liberated from this restriction, inasmuch as the law of the Twelve Tables or its interpretation assigned to the private testament the same force as pertained to that confirmed in the curies. This was an important step towards the breaking up of the clanships, and towards the full carrying out of individual liberty in the disposal of property. The fearfully absolute paternal power was restricted by the enactment, that a son thrice sold by his father should not relapse into his power, but should thenceforth be free; to which - by a legal inference that, strictly viewed, was no doubt absurd - was soon attached the possibility that a father might voluntarily divest himself of dominion over his son by emancipation. In the law of marriage civil marriage was permitted[7]; and although the full marital power was associated as necessarily with a true civil as with a true religious marriage, yet the permission of a connection instead of marriage[8], formed without that power, constituted a first step towards relaxation of the full power of the husband. The first step towards a legal enforcement of married life was the tax on old bachelors (aes uxorium) with the introduction of which Camillus began his public career as censor in 351.
Changes more comprehensive than those effected in the law itself were introduced into - what was more important in a political point of view, and more easily admitted of alteration - the system of judicial administration. First of all came the important limitation of the supreme judicial power by the embodiment of the common law in a written code, and the obligation of the magistrate thenceforth to decide no longer according to varying usage, but according to the written letter, in civil as well as in criminal procedure (303, 304). The appointment of a supreme magistrate in Rome exclusively for the administration of justice in 387[9], and the establishment of separate police functionaries which took place contemporaneously in Rome, and was imitated under Roman influence in all the Latin communities[10], secured greater speed and precision of justice. These police-magistrates or aediles had, of course, a certain jurisdiction at the same time assigned to them. On the one hand, they were the ordinary civil judges for sales concluded in open market, for the cattle and slave markets in particular; and on the other hand, they ordinarily acted in processes of fines and amercements as judges of first instance or - which was in Roman law the same thing - as public prosecutors. In consequence of this the administration of the laws imposing fines, and the equally indefinite and politically important right of fining in general, were vested mainly in them. Similar but subordinate functions, having especial reference to the poorer classes, pertained to the three night - or blood-masters (tres viri nocturni or capitales), first nominated in 465; they were entrusted with the duties of nocturnal police as regards fire and the public safety and with the superintendence of executions, with which a certain summary jurisdiction was very soon, perhaps even from the outset, associated[11]. Lastly from the increasing extent of the Roman community it became necessary, out of regard to the convenience of litigants, to station in the more remote townships special judges competent to deal at least with minor civil causes. This arrangement was the rule for the communities of burgesses sine suffragio[12], and was perhaps even extended to the more remote communities of full burgesses[13], - the first germs of a Romano-municipal jurisdiction developing itself by the side of that which was strictly Roman.
6. II. III. Laws Imposing Taxes.
7. I. VI. Class of
8. I. V. The Housefather and His Household, note.
9. II. III. Praetorship.
10. II. III. Praetorship, II. V. Revision of the Municipal Constitutions, Police Judges.
11. The view formerly adopted, that these
12. II. VII. Subject Communities.
13. This inference is suggested by what Livy says (ix. 20) as to the reorganization of the colony of Antium twenty years after it was founded; and it is self-evident that, while the Romans might very well impose on the inhabitant of Ostia the duty of settling all his lawsuits in Rome, the same course could not be followed with townships like Antium and Sena.