The History of Rome. Book II

In the development which law underwent during this period within the Roman community, probably the most important material innovation was that peculiar control which the community itself, and in a subordinate degree its office-bearers, began to exercise over the manners and habits of the individual burgesses. The germ of it is to be sought in the right of the magistrate to inflict property-fines (multae) for offences against order[1]. In the case of all fines of more than two sheep and thirty oxen or, after the cattle-fines had been by the decree of the people in 324 commuted into money, of more than 3020 libral asses (30 pounds), the decision soon after the expulsion of the kings passed by way of appeal into the hands of the community[2]; and thus procedure by fine acquired an importance which it was far from originally possessing.  Under the vague category of offences against order men might include any accusations they pleased, and by the higher grades in the scale of fines they might accomplish whatever they desired. The dangerous character of such arbitrary procedure was brought to light rather than obviated by the mitigating proviso, that these property-fines, where they were not fixed by law at a definite sum, should not amount to half the estate belonging to the person fined. To this class belonged the police-laws, which from the earliest times were especially abundant in the Roman community. Such were those enactments of the Twelve Tables, which prohibited the anointing of a dead body by persons hired for the purpose, the dressing it out with more than one cushion or more than three purple-edged coverings, the decorating it with gold or gaudy chaplets, the use of dressed wood for the funeral pile, and the perfuming or sprinkling of the pyre with frankincense or myrrh-wine; which limited the number of flute-players in the funeral procession to ten at most; and which forbade wailing women and funeral banquets - in a certain measure the earliest Roman legislation against luxury. Such also were the laws - originating in the conflicts of the orders - directed against usury as well as against an undue use of the common pasture and a disproportionate appropriation of the occupiable domain-land. But far more fraught with danger than these and similar fining-laws, which at any rate formulated once for all the trespass and often also the measure of punishment, was the general prerogative of every magistrate who exercised jurisdiction to inflict a fine for an offence against order, and, if the fine reached the amount necessary to found an appeal and the person fined did not submit to the penalty, to bring the case before the community. Already in the course of the fifth century quasi-criminal proceedings had been in this way instituted against immorality of life both in men and women, against the forestalling of grain, witchcraft, and similar matters. Closely akin to this was the quasi-jurisdiction of the censors, which likewise sprang up at this period. They were invested with authority to adjust the Roman budget and the burgess-roll, and they availed themselves of it, partly to impose of their own accord taxes on luxury which differed only in form from penalties on it, partly to abridge or withdraw the political privileges of the burgess who was reported to have been guilty of any infamous action[3]. The extent to which this surveillance was already carried is shown by the fact that penalties of this nature were inflicted for the negligent cultivation of a man's own land, and that such a man as Publius Cornelius Rufinus (consul in 464, 477) was struck off the list of senators by the censors of 479, because he possessed silver plate to the value of 3360 sesterces (34 pounds). No doubt, according to the rule generally applicable to the edicts of magistrates[4], the sentences of the censors had legal force only during their censorship, that is on an average for the next five years, and might be renewed or not by the next censors at pleasure. Nevertheless this censorial prerogative was of so immense importance, that in virtue of it the censorship, originally a subordinate magistracy, became in rank and consideration the first of all[5].