The Republic and The Laws (Oxford World's Classics) (29 page)

The law adds: ‘He shall have a grasp of public affairs’
*
[11]. It is essential for a senator to be familiar with the state of the country (that has wide implications—knowing what it has in the way of troops, how well off it is financially, what allies, friends, and tributaries the country has, what laws, conditions, and treaties apply to each), to understand legislative procedure, and to be aware of traditional precedent. You can now appreciate the whole range of knowledge, application, and memory without which no senator can be properly equipped for his job.

41

Then there are the people’s assemblies. Here the first and most important rule is ‘there must be no violence’ [11]. Nothing is more damaging to a state, nothing so contrary to justice and law, nothing less appropriate to a civilized community, than to force through a measure by violence
*
where a country has a settled and established constitution. The law further requires that a magistrate imposing a veto should be obeyed. There is nothing more admirable than that; for it is better to obstruct a good proposal than to acquiesce in a bad one [11].

As for my rule that ‘The responsibility shall rest with the presiding magistrate’ [11], I have taken the whole provision from the opinion expressed by that very judicious man, Crassus.
*
The Senate followed his advice when the consul Gaius Claudius raised the subject of the disorder fomented by Gnaeus Carbo.
*
It ruled that disorder could not take place in the people’s assembly without the consent of the presiding magistrate; for he had the power to close the meeting as soon as a veto had been exercised and a commotion had begun. Anyone who allows things to go on when no business can be done is inviting violence. By this law he loses his immunity
*
to prosecution.

Then comes the ruling ‘Anyone who blocks a harmful measure shall be deemed a public benefactor’ [11]. Who would not loyally come to the aid of the state if he knew he would be praised by the voice of such an excellent law?

43

This is followed by regulations which we also have in the laws and customs of our state: ‘They shall observe the auspices and obey the official augur’ [11]. It is the duty of a conscientious augur to bear in mind that he must be ready to assist on momentous national occasions, that he has been assigned as an advisor and servant to Jupiter the Best and the Greatest (just as officials have been assigned to him to observe the auspices at his command), and that certain specific areas of the sky have been allotted to him so that he may be able to give frequent assistance to the state from that quarter.

Then come regulations about the reading of bills, the handling of items one at a time, and the right to consult magistrates and private citizens [11].

After that we have two splendid laws taken from the Twelve 44 Tables. One gets rid of legislation directed at private individuals,
*
the other forbids any motion regarding a citizen’s life to be proposed except through the chief assembly
[11].
What an excellent provision our ancestors made for future generations, at a time when seditious plebeian tribunes had not been created or even thought of! They refused to allow laws to be passed against individual people (for that is what
privilegium
means). What could be more unjust than such laws when, by definition, a law is something enjoined and binding on everyone? They forbade legislation against individuals unless it was passed by the Assembly of Centuries; for when the people are split up according to wealth, rank, and age, they think more carefully about their votes than when they meet indiscriminately in their tribes. Hence Lucius Cotta, a 45 man of great ability and deep insight, was all the more justified in saying that in my case no legal measure at all had been passed against me. He pointed out that, apart from the fact that those transactions took place in the presence of armed slaves, no valid decision could be taken by the Council of the Plebs about a citizen’s life, nor by any assembly against an individual; therefore I did not need a law (to rehabilitate me), because absolutely no legal action had been taken against me.
*
However, you and other very distinguished men preferred to take the view that the whole of Italy
*
should make clear its opinion of a man against whom slaves and brigands claimed to have passed a law.

44
45

Next comes a regulation about accepting money and offering bribes. Since laws have to be endorsed by court verdicts rather than verbal formulae, I have added ‘The penalty shall fit the crime’ [11]. In this way each offender is to be paid back in his own coin— violence being punished by death or exile, greed by a fine, improper canvassing by disgrace.

46

The final laws are not in force in our community, but they are necessary for the good of the state. We have no method of protecting our laws; and so our laws are what our clerks want them to be. We obtain them from copyists, but have no official record
*
confirmed by an official text. The Greeks
*
used to be more punctilious in this respect. They used to appoint ‘Guardians of the Law’, and these men would keep an eye, not just on the text of laws (that practice was also current among our ancestors), but also on men’s behaviour, and would call them back when they strayed beyond the law. This duty should be discharged by the censors. (Remember I have enacted that ‘the post of censor shall always have occupants’ [11].) Before these same men, outgoing magistrates are to give a public account of what they have done during their period of office [11], and the censors are to pronounce a preliminary judgement on them. In Greece this function is performed by officially appointed accusers. Yet these men cannot be strict if they are not doing the job voluntarily. So it is better that the account should be given and the case stated before the censors. A full hearing, however, should be reserved for a trial, with prosecutor, in a court of law.
*

47

That is all that needs to be said about magistrates, unless you think I have left something out.

ATTICUS
: Well, even if we say nothing, does the point we have reached not suggest to you what you should deal with next?

MARCUS
: Next? I suppose you mean the courts, Pomponius, for that subject follows on from the magistrates.

ATTICUS
: What? Don’t you think something should be said about the law of the Roman people, as you set out to do?

MARCUS
: What, may I ask, do you find wanting at this point?

ATTICUS
: Wanting? Why, something which I think it is disgraceful for statesmen not to know about. You said a moment ago that the text of the laws was obtained from copyists. By the same token I notice that most magistrates, owing to their ignorance of their own legal system, know only as much as their clerks wish. Therefore, if, when you were setting out your laws about religion, you thought it right to speak about the transference of religious duties, you should see to it, now that your magistrates have been duly appointed, that you discuss the legal powers of those in positions of authority.

MARCUS
: I shall do so briefly, if I can manage it; for Marcus Junius
*
wrote a very full account of the matter to your father, who was a friend of his, and (in my view anyhow) handled it in an expert and thorough manner. As for us, we should think and speak independently on the subject of natural law, but on Roman public law we shall state what has come down to us from earlier generations.

49

ATTICUS
: That is certainly my view, and I look forward to the very treatment you indicate . . .