Senate Decrees vs. Plebiscites: Class Conflict and the Law in the Roman Republic

This week we will look at two sides of the legislative coin: the decrees of the Senate (Senatus consulta) and the laws passed by the Plebs (plebis scita).  During the Republic, as we’ve said, the Senate was not like our Senates in the US in that it was not a representative legislative body, but rather an advisory “council of elders” made up of men previously elected to a magistracy (consul, praetor, aedile, or quaestor).  It was an honorary body in many ways, and membership in it was extremely prestigious. But being a member did not mean that you wielded the kind of duly vested public authority (imperium) that the elected magistrates of that year possessed. Fundamentally, its power was a consensus of opinion on the part of the senior statesmen, generals, judges, and high priests of Rome.

The Senate passed decrees, but the authority the decrees was problematic. A Senate decree is not the same as a statutory law (lex) as passed by the voting assemblies in Rome. No doubt, some Senators imagined it should be as powerful as a law; but in form, it wasn’t, since the People of Rome did not pass it, only the Senators. We will see where this ambiguity becomes a problem later on in the Republic. However, a Senate decree is a powerful directive to the magistrates in power for the year, men who are just like their colleagues in the Senate and who share common political interests with them. So one way to think of the binding nature on the magistrates is to consider a decree of the Senate “advice that it would be foolish to neglect.” In other words, the decree has a powerful normative force, even if it legally isn’t quite on the same level as the acts of the assemblies (in later imperial times, however, the Senate will come to have a legislative function largely for its convenience—but this is much later on after the Republic has fallen).

We can see the powerful normative and moral force of a Senate decree when we look to a notorious incident from around 186 BCE, the incursion of Bacchic worship into Roman Italy. Bacchus, or the Greek god Dionysus, was a major divinity in Greece; the Dionysian festivals of Athens were the occasions when the great tragedies and comedies were performed. But this cult of the god of wine came into Italy in a private form, an initiation cult known as a “mystery religion.” Much lurid detail is alleged of this cult—and it is very hard to get to the truth of things, much as with the Salem Witch Trials. Whatever the truth of the cult, it is clear that it produced a moral panic among the upper classes of Rome. The Senate reacted vigorously in support of the consuls, and passed a decree that has come down to us thanks to its production in bronze for public posting.

General Assignment for Monday 9/27

1. Read the text of the Senate Decree on the Bacchanalia, and notice its full legal structure and rhetoric.
2. Read Livy’s account of the Bacchic crisis, with especial attention to the details of the investigation, the Senate’s actions, and the punishments meted out.

Group Assignments

Aeneas: Get ready to discuss the Roman characterization of the Bacchus cult. Why is it that they are so upset about it? What key words are used to describe it? What kinds of people does it seem to attract?

Romulus: How does the consul take action to investigate the mysterious goings on? What key testimony helps them to get a fuller picture of the situation? What problems might there be with the testimony?

Remus: Discuss the consul’s speech to the Roman people (39.15 and following). What key values does it reveal? What is his attitude to religion?

Numa: Discuss the final prosecution of the Bacchic adherents and the penalties. Do these seem to fit with the general characterization the Senate and magistrates make of the danger? What particular punishments do you see as problematic or interesting?

For Wednesday 9/29

But what of the people? The Plebs of Rome, as we have seen, had its own representatives in the Tribunes of the Plebs. They could convene the Council of the Plebs and refer legislation to it, which produced a plebis scitum or plebiscite that was, particularly after the Lex Hortensia of 287 BCE, binding on both patricians and plebeians and not subject to senatorial veto or obstruction. Under the tribunates of the Gracchi brothers, this legislative mechanism was used to push through radical land reform that effectively transferred wealth from the aristocracy (more specifically, rich landowners among the senators who had acquired a lot of public land and treated it as private estates) to the poorer citizens of Rome. It wasn’t just land reform, but also the political methods of the Gracchi that caused this political maneuvering to erupt in violence, spelling the end of certain norms of political behavior, a situation that would later spiral into all out civil war.

General Assignment:

1. Read this short reading on the agrarian reforms and the Gracchi. This is from the excellent textbook, The Romans: From Village to Empire (second edition), which I highly recommend if you want a systematic grasp of Roman history.
2. Read excerpts from this agrarian law of 111 BCE, which comes in the wake of the radical legislation of the Gracchi. Note that it is FULL of legislative boilerplate–i.e., long repetitive phrases that specify or restrict the scope of the legislation. I have highlighted the key elements that you can scan to understand where this law is going. There’s an art to reading legislation quickly (and plenty of congressmen don’t even read what they vote on…so this might be a dying art).
3. Read the Homestead Act of 1862 and be prepared to think about how agrarian legislation played a role in American politics.

Group Assignments:

Servius: What is significant about the date of the Homestead Act, and what does it tell us about the politics of land provisions at this time? What details in the Act make this political import clear? How is the land’s use stipulated by the law, and what do you think that is trying to circumvent?

The 12 Tables of the Law and the Tale of Verginia

We live with a fundamental assumption: the law is a public thing. It exists, can be read to the letter, and when we don’t understand it, we have recourse to lawyers to interpret it for us. The public promulgation of laws seems to be a pretty basic precondition for living in an ordered society. For example, if you are wondering how the crime of homicide is framed in the State of Texas, you can simply go directly online to the Texas Penal Code and see.  Most people don’t spend their time doing this, unless they have a specific problem. But we all assume that somehow we can—or we can hire others who can.

In ancient Rome, according to tradition, the text of the law was not such a public possession originally. The story goes it took popular pressure during the early Republic to get a promulgated law code prepared and then published for all to see, a code we usually refer to as the Twelve Tables of the Law. This seems to be a pretty basic act, but the whole process is recorded with some embellished tales that reveal the social conflict surrounding the simple question: who controls knowledge of the law?

The task for this week will be to: a) read the fragments of the 12 Tables, in order to see something of the legal structure of early Rome and how it came to be; and b) to follow the tale of Verginia to get the feel for yet another sad situation in which the family and the state are put in tension. These are two very different kinds of readings, so be prepared to use different strategies.

Verginius performs a desperate act, and another bad thing happens to a Roman woman.

General Assignment for Monday 9/20:

First, read about the social and political background that led to the 12 Tables in Livy’s History of Rome.  Read Livy 2.28-33 for the story of the Secession of the Plebs, which led to the common people’s own political representatives, the tribunes of the people. Next, read 3.32-36, which tell about the decision to suspend the normal offices of government in favor of a Board of Ten (decemvirs), who would draft and promulgate laws based upon those of Solon of Athens.  Lastly, take a look at the fragments of the 12 Tables, to get a sense for the various things covered in this first law code of Rome. (Note: references to asses are to a bronze coin, not to an animal.)

General Assignment for Wednesday 9/22

Read Livy 3.44-58, which recount the story of Verginia, a young Roman woman who is the center of a notorious incident. Try to get a feel for the social dimensions of this story.

A bronze as coin, seen on both sides

Group Assignments

Aeneas: At 3.34 in Livy’s History of Rome, what is interesting about the way the decemvirs introduced the drafted laws to the Roman people? What does this say about Rome as a “law and order” society?

Remus: At 3.36, what are the immediate signs that the second set of decemvirs are not going to be like the first? Who are they mostly against?

Romulus: What historical parallel does Livy draw at the beginning of 3.44 in order to frame the story of Verginia? How well does the paralllel work?

Numa: How does Icilius’ speech at 3.45 mix historical, political, and personal themes? What about him makes it especially poignant that he makes this speech?

Servius: At 3.48, how are we to understand Verginius’ action? Why is it that, whether Verginia is considered a slave or freeborn, he is still not guilty of murder either way?

Monarchy turns to tyranny and revolution…and another bad thing happens to a Roman woman.

This week we take a look at the end of the early Roman monarchy, which descends into some pretty lurid stories of intrigue, murder, and rape. As we discussed earlier, the problem of monarchy lies in the character of the king, which is why the royal history tends to unify the narrative around the individual nature of each king. From Romulus to Ancus Marcius, we have toggled back and forth a bit between ruthless go-getters and pious men with good “soft skills” (though Ancus supposedly had enough of both qualities), and now from Tarquin the Elder to Tarquin the Proud, we will see the rot set in to the monarchy as the principle of meritocracy vies with hereditary entitlement. Tarquin, an Etruscan outsider, brings in a new perspective to the monarchy, and manages to get in good with King Ancus, eventually becoming the guardian of his sons. Tarquin deftly manages to secure his own succession as king, as Livy claims (1.35), by courting the votes of the people and making campaign speeches (a very republican thing to do!). He expands the Senate, builds the Circus Maximus and institutes the very popular Roman and Great games in honor of Jupiter, whose temple he planned to build on the Capitoline hill (his son would complete it). But sadly the sons of Ancus were not pleased at their displacement by this outsider, and planned his assassination (1.40-41). Part of their resentment was caused by Tarquin the Elder’s clear favoritism for Servius Tullius, a man supposedly of servile origin who was marked out by the gods for greatness by an extraordinary sign (see 1.39). He became the son-in-law of the king, and when the sons of Ancus fatally wound Tarquin in their attempted assassination, the queen manages to secure Servius as his successor. This is the first instance, then, of the sons of a former king feeling displaced from their rightful position by an outsider. Notice how we’ve not really had this issue before. That’s a reminder that the hereditary principle was not seen as the natural form of succession, at least in the form we have this regal history.

Servius thus succeeds Tarquin the Elder in a state of emergency, and as Livy notes (1.41), was the first to assume the kingship without the consent of the people of Rome. Servius tries to avoid what happened to Tarquin by marrying his daughters to Tarquin the Elder’s sons, which normally would allay any concerns about succession, since the families now were joined. But as Livy tells it, Servius was unable to avoid a tragic destiny. What follows is a very lurid story of how one of his daughters conspires to get rid of her husband in order to marry his brother, who is more to her liking, and the two then conspire to murder Servius and usurp the throne. This is a family drama truly worthy of Greek tragedy, as Livy himself remarks (1.46). So after the pathetic murder of King Servius, Lucius Tarquinius “Superbus” (the Proud) becomes the last king of Rome, and immediately rules like a tyrant (1.49). Notice how the issue of irregular succession seems to show the degeneracy of the institution of kingship: it’s a bad sign that the Senate and People of Rome (SPQR as the Republic officially designates itself) are unable to observe all the formalities of the interregnum, the transition of royal power.

Oddly, though, what brings the monarchy to an end is really a crime perpetrated by the king’s son, Sextus, not the king himself. In 1.57-60, Livy recounts the traditional story about the rape of the Roman aristocratic woman Lucretia, which becomes the precipitating cause of Rome’s republican revolution. This may seem a bit odd in that it is a matter between aristocratic families (Brutus the Liberator was King Tarquin’s nephew), yet it erupts into a full blown political revolution that permanently restructures the polity of Rome. All the same, this is the traditional story, and like the tale of the Sabine women, we can’t help but notice how a woman is at the center of it again.

With the banishment of the royal family and the institution of a Republic, Livy now moves on in book 2 to talk of the history of a free people who have achieved the political maturity to live without kings. Brutus is one of the first consuls of Rome, but what ensues is a personal tragedy (2.2-5) that puts to the test the notion that, under a republic, all are equal under the law. Once again we hear a story about how the Roman state must take precedence over the family.

The Suicide of Lucretia by Cranach the Elder, 1529 (MFAH)

General Assignment

Generally, the material for this week comes from pp. 50-90 in the Livy reading, but the most important parts to read are 1.35 on Tarquin the Elder’s accession, 1.40-42 on Servius’ accession, 1.46-49 on Lucius Tarquin’s usurpation of the throne, 1.57-60 on the rape of Lucretia and its aftermath. On Wednesday we’ll look at Livy’s preface to book 2 and the story of Brutus’ difficult position during the conspiracy against the republic (2.1-5). We’ll have to have a more general discussion then about the structure of the Roman Republic, which will set the table for the Rome we will be studying in the coming weeks.

Group Discussion Assignments

Aeneas: Take a look at what Livy says of Tarquin the Elder in 1.34-35. What do these chapters say about Rome as a place and Tarquin as a man? How do they set up a strong contrast with his later successor Tarquin the Proud?

Remus: Read Livy 1.46 and see how Servius manages to finally get the approval of the people of Rome for his rule. What specifically does he do to persuade them? Then read the paragraph at the top of page 69. What extraordinary thing is said there, and what are we to make of it?

Romulus: See if you can explain why the fate of Turnus at 1.50-51 helps to frame Tarquin’s character as that of a tyrant, not a King. Why are the details important here with respect to accusations and evidence? How does Tarquin compare with Romulus in terms of character, decisiveness, and action?

Numa: See if you can understand exactly why Lucretia commits suicide? How does this help her case, and how does her death influence the men she speaks to? Is their desire for vengeance a legal act? Why would it be the origin of a republican revolution?

Servius: Compare what Livy says about the rule of Law in book 2 with what happens with the sons of Brutus.  Why is this rather tragic outcome a fitting way to illustrate something important about republican rule versus royal rule?

The Fetial Law, A Trial, and a Death Sentence

This week we have only one day, but we can get a lot done by looking at some details from the reigns of Tullus Hostilius and Ancus Marcius, the next two kings of Rome. First we will look at the details of the fetial law (ius fetiale), which the fetial priests of Rome maintained for the sake of declaring war and making treaties with other city states. Livy has an antiquarian interest in the rituals the fetials practiced, which he discusses in the reading assigned for today. The rituals help us to understand the Roman mindset concerning the formal declaration of treaties and the solemn act of declaring war, which continued on in modified form into the Republican period. Originally among the Latin peoples, such as Rome and Alba Longa, the fetials of rival city states could meet for the purposes of striking treaties, something that ceased to be the case as the Roman empire expanded its power and geographical reach. This shows us Livy’s interest in the origins of Rome’s commitment to international law, such as it was at the time.

Tullus Hostilius seemed intent on stirring up a war with Alba Longa, which was Rome’s mother city, you might recall. These passages from Livy’s history describe how a treaty was struck to decide the issue between the two cities by judicial combat, and what follows is clearly a well-rehearsed and oft-told tale of how three brothers fought three brothers, and only one survived. Luckily for Rome, the survivor was a Roman, which meant Rome would rule over Alba Longa. But then a tragedy follows when this same survivor strikes his sister dead for mourning over one of the other champions, who was her fiancé (this really sounds “made for tv”), so now the king must settle the very delicate matter of this man’s trial for a crime that almost everyone was witness to. Notice, then, how he deftly skirts around that in procedural terms. And ask yourself, how does the ritual instituted at the end help to resolve the issue of this crime?

Tullus also takes vigorous action against the Alban leader Mettius Fufetius, who failed to help Rome as promised by treaty. This punishment is extraordinary—and Livy claims unprecedented. Why is this the fitting way to kill this man? This leads to the forcible incorporation of the Albans with the Roman people and the destruction of the city of Alba Longa (which, we might say, having served its purpose of bridging the time of Aeneas to the time of Romulus, has little else to do!).

The reign of Tullus comes to a bad end, and the accession of Ancus Marcius, grandson of Numa, leads to a new dedication to religious observances. Note, then, the formal ritual for the declaration of war (1.32, pp. 47-48) that Livy cites. Can you see how these ritual observances show Rome’s concern for fighting a “just war” (bellum iustum)?

General Assignment

Read Livy, The History of Rome, book 1 chapters 22-33 (pp. 33-50).

Group Discussion Assignments

Aeneas: How does Livy contrast the characters of Tullus Hostilius and Ancus Marcius, and what does this say about the scheme of the royal history?

Romulus: What is the rationale for settling the dispute between Alba Longa and Rome by judicial combat? Why risk so much with so arbitrary an outcome?

Remus: What is Horatius actually charged with for killing his sister? How might we understand this?

Numa: What is the structure and nature of appeal in the trial of Horatius? How does this differ from our understanding of appellate jurisdiction? What consequences does it bring?

Servius: How does Horatius’ father persuade the people to grant his son mercy? What does this say about the intersection of politics and justice in Rome?

Unit 1: Early Roman Law in Livy’s History of Rome.

In the beginning, there was murder…

Our first unit deals less directly with the Roman legal system and more with stories about the early law as related in the works of Livy and Dionysius of Halicarnassus, who both lived during the great transition from Republic to Imperial monarchy (or more technically, the Principate). They look back over many centuries of Roman history and relate traditions that were gathered from various sources, such that we cannot be absolutely certain as to the “facts” of this early narrative. However, we can be certain that these were stories Romans told of the origins of their government, laws, and society, just as we tell stories about the Founding Fathers, the American Revolution, the writing of the Constitution, the abolition of slavery, etc. as a part of our national consciousness.

This week, we begin our discussion of foundational aspects of Roman civilization during the period of the Kings of Rome. We begin on Monday with a consideration of Romulus, the Founding Father of Rome whose manly virtue created a city out of a ragtag group of desperados and runaways. We will examine his foundational acts in the context of ancient culture’s understanding of crime and necessity: why does he kill his brother Remus? What are the implications of this act? Does he appear to suffer any consequences for it? Why does he direct his followers to abduct women from the neighboring Sabines? Lastly, what do the stories of his birth and death have to do with the nature of his actions as a founder? 

Remember that kingship can be understood in different ways, and the way the kings of Rome are presented in Livy’s text is filtered through centuries of Republican (i.e., anti-monarchical) culture and values. On Wednesday we will continue our discussion with a look at the second King of Rome, Numa Pompilius, a very different character from the vigorous and ruthless Romulus. What does it say about the Roman self-understanding of legality and social institutions that their two first founders are men of such utterly different character?

In legal terms, I want to focus especially on homicide and, more specifically, fratricide as a motif in the Romulus-Remus story, which you should compare to the Cain and Abel story from Genesis 4.  Why in both cases is fratricide at the origins of these cultures? How homicide was generally dealt with in the ancient world is a topic we will revisit on several occasions throughout the term. I also want to focus on marriage, since this is another institution that originates in the time of Romulus according to tradition. How is marriage foundational to public order, and what is its relationship to citizenship, property, and social stability?

Assignments in Detail (Group assignments for discussion will be emailed to your groups)

August 30

1. Read pp. 1-26 in Livy’s The History of Rome, with especial focus on the reign of Romulus.
2. To see another version of the Romulus story, read these excerpts from the Roman Antiquities of Dionysius of Halicarnassus, who was a Greek contemporary of Livy. Notice how the story is different, and what the implications are for the differences.
3. Similarly, read the Greek historian’s discussion of the Laws of Romulus.
4. Lastly, you might be interested in Machiavelli’s reading of Romulus’ killing of Remus. You may have heard the maxim, “the ends justify the means”; this is perhaps Machiavelli’s clearest statement of that idea, based on this moment in Livy’s text.

September 1

1. Read pp. 27-33 in Livy’s The History of Rome, focusing on the reign of Numa Pompilius.
2. Read Dionysius’ comments on Numa Pompilius.

Just for fun: check out this weird movie recently made about Romulus and Remus!

First Things First…

This course does something odd: it introduces you to Roman history and culture through legal issues.  That sounds perhaps a little strange as a way of studying Roman culture, but it works for a number of reasons.

First, the law is one thing the Romans took very seriously, so just as one might use military affairs as a way to get to know the Romans, so too one can use the law as a good guide to Roman values, conflicts, and even creativity.

Second, the laws of ancient Rome extended to areas of life that seem quite alien to us, but that are essential to understanding such an ancient society: slavery, the extreme rights of the paterfamilias over members of the family, insults to the Emperor, even certain aspects of religion. On the other hand, they also dealt with things quite familiar to us: electoral corruption, malversation, treason, murder, inheritance, marriage, theft, contracts and civil liability. So studying Roman law can help us to get a feel for just how different Roman society was from ours, while also reminding us of some of the constants in the human creation of legal structures.

Third, the law is also one of the things Rome bequeathed to Western civilization in an enduring way. Not only does the Roman way of conceiving the law endure, but actual Roman law codes underlie the Civil Law tradition in continental Europe (Civil Law here being opposed to our Common Law tradition in the Anglo-American world—more on that later).

We might consider what it would mean to approach American history in this way. You would begin with the charters and legal foundations of the colonies in relation to English Law, then consider the legal reasoning behind the Declaration of Independence and the Constitution, then move on to talk about slavery and the justification for both Secession and Civil War. You could then focus on the legal basis of Reconstruction, the fight for Women’s rights and the later Civil Rights Movement, the striking down of miscegenation and other racist laws, the struggle over abortion rights and same-sex marriage.  In sum, you could conceivably approach American history in this way—and you’d have a much easier time of it! Our history is comparatively well documented and very short by comparison with that of Rome.

The course readings will comprise a range of primary and some secondary materials. First we have some classic Roman texts like Livy’s History of Rome and some speeches and the treatise On the Laws of Cicero. Then we have genuine legal texts, such as the Twelve Tables of the Law (fragmentary), excerpts from the Digest of Justinian, and some curious legal documents like the Senatus consultum de Bacchanalibus.  Part of the skill set developed in the course is how to read different types of primary sources in order to approach topics in Roman law, ranging from mythical and legendary accounts from Rome’s foundation, to the highly biased speeches from the court rooms and the officially promulgated laws themselves. Framing these various readings, we will have recourse in particular to Andrew Riggsby’s monograph, Roman Law and the Legal World of the Romans (Cambridge UP, 2010), which seeks to orient the student to a wide range of topics in relation to how the Romans made, discussed, and experienced the law.

I look forward to teaching this course precisely for the rather novel way it allows us to examine Roman civilization and reflect upon our own. Not only is it a good course for any student who might be considering law school, but also, I think, it would be a great course for any student of history, social theory, or philosophy. The readings will require significant attention, and my lectures will be geared to helping you make sense of it all. This website will contain a continuous blog that will be a part of that process of constant orientation. Look here for the weekly assignments and themes.

GENERAL ASSIGNMENT:

Read chapters 3 & 4 of Roman Law and the Legal World of the Romans.