Beyond doubt the code was at its very origin committed to writing; but that those scholars themselves referred their text not to the original exemplar, but to an official document written down after the Gallic conflagration, is proved by the story of the Tables having undergone reproduction at that time. This enables us easily to explain how their text by no means exhibited the oldest orthography, which was not unknown to them; even apart from the consideration that in the case of such a written document, employed, moreover, for the purpose of being committed to memory by the young, a philologically exact transmission cannot possibly be assumed.

The end of the decemvirate is involved in much obscurity. It only remained—so runs the story—for the decemvirs to publish the last two tables, and then to give place to the ordinary magistracy. But they delayed to do so: under the pretext that the laws were not yet ready, they themselves prolonged their magistracy after the expiry of their official year — which was so far possible, as under Roman constitutional law the magistracy called in an extraordinary way to the revision of the constitution could not become legally bound by the term set for its ending. The moderate section of the aristocracy, with the Valerii and Horatii at their head, are said to have attempted in the senate to compel the abdication of the decemvirate; but the head of the decemvirs Appius Claudius, originally a rigid aristocrat, but now changing into a demagogue and a tyrant, gained the ascendancy in the senate, and the people submitted. The levy of two armies was accomplished without opposition, and war was begun against the Volscians as well as against the Sabines. Thereupon the former tribune of the people, Lucius Siccius Dentatus, the bravest man in Rome, who had fought in a hundred and twenty battles and had forty-five honorable scars to show, was found dead in front of the camp, foully murdered, as it was said, at the instigation of the decemvirs. A revolution was fermenting in men’s minds; and its outbreak was hastened by the unjust sentence pronounced by Appius in the process as to the freedom of the daughter of the centurion Lucius Verginius, the bride of the former tribune of the people Lucius Icilius — a sentence which wrested the maiden from her relatives with a view to make her non-free and beyond the pale of the law, and induced her father himself to plunge his knife into the heart of his daughter in the open Forum, to rescue her from certain shame. While the people in amazement at the unprecedented deed surrounded the dead body of the fair maiden, the decemvir commanded his lictors to bring the father and then the bridegroom before his tribunal, in order to render to him, from whose decision there lay no appeal, immediate account for their rebellion against his authority. The cup was now full. Protected by the furious multitude, the father and the bridegroom of the maiden made their escape from the lictors of the despot, and while the senate trembled and wavered in Rome, the pair presented themselves, with numerous witnesses of the fearful deed, in the two camps. The unparalleled tale was told; the eyes of all were opened to the gap which the absence of tribunician protection had made in the security of law; and what the fathers had done their sons repeated. Once more the armies abandoned their leaders: they marched in warlike order through the city, and proceeded once more to the Sacred Mount, where they again nominated their own tribunes. Still the decemvirs refused to lay down their power; then the army with its tribunes appeared in the city, and encamped on the Aventine. Now at length, when civil war was imminent and the conflict in the streets might hourly begin, the decemvirs renounced their usurped and dishonored power; and the consuls Lucius Valerius and Marcus Horatius negotiated a second compromise, by which the tribunate of the plebs was again established. The impeachment of the decemvirs terminated in the two most guilty, Appius Claudius and Spurius Oppius, committing suicide in prison, while the other eight went into exile and the state confiscated their property. The prudent and moderate tribune of the plebs, Marcus Duilius, prevented further judicial prosecutions by a seasonable use of his veto. So runs the story as recorded by the pen of the Roman aristocrats; but, even leaving out of view the accessory circumstances, the great crisis out of which the Twelve Tables arose cannot possibly have ended in such romantic adventures, and in political issues so incomprehensible. The decemvirate was, after the abolition of the monarchy and the institution of the tribunate of the people, the third great victory of the plebs; and the exasperation of the opposite party against the institution and against its head Appius Claudius is sufficiently intelligible. The plebeians had through its means secured the right of eligibility to the highest magistracy of the community and a general code of law; and it was not they that had reason to rebel against the new magistracy, and to restore the purely patrician consular government by force of arms. This end can only have been pursued by the party of the nobility, and if the patricio-plebeian decemvirs made the attempt to maintain themselves in office beyond their time, the nobility were certainly the first to enter the lists against them; on which occasion doubtless the nobles would not neglect to urge that the stipulated rights of the plebs should be curtailed and the tribunate, in particular, should be taken from it. If the nobility thereupon succeeded in setting aside the decemvirs, it is certainly conceivable that after their fall the plebs should once more assemble in arms with a view to secure the results both of the earlier revolution of 260 and of the latest movement; and the Valerio-Horatian laws of 305 can only be understood as forming a compromise in this conflict.

The Twelve Tables are the best antidote to those later heroising narratives. The original bronze tablets no longer survive. But some of their content has been preserved because later Romans looked on this motley collection of regulations as the beginning of their distinguished tradition of law. What had been inscribed on bronze was soon put into pamphlet form and was still being learned by heart, so Cicero tells us, by schoolboys of the first century BCE. Long after the rules had any practical force, they continued to be reissued and re-edited, and several ancient scholarly commentaries were compiled on the meaning of the individual clauses, their legal importance and language — to the irritation of some lawyers in the second century CE, who felt that their book-bound colleagues were rather too interested in the linguistic puzzles of old Roman precepts. None of this voluminous literature survives intact. But some of it is quoted or paraphrased in writing that does, and by scouring through this, including some of the remotest byways of Roman literature, scholars have tracked down the eighty or so clauses of those fifth-century BCE tables. The whole process has been ferociously technical, and intricate debates still rage about the exact wording of the clauses, about how large and how representative a selection of the original they are and about how accurate the later Roman scholars were in their quotations. Some modernizing has definitely gone on: the Latin looks archaic, but not quite archaic enough for the fifth century BCE, and on occasion the paraphrases have tried to bring the original sense into line with later procedures in Roman law.

In some cases, even learned Roman lawyers misunderstood what they read in the Twelve Tables. The idea that a defaulting debtor who had several creditors could be put to death and his body divided between them, in appropriately sized pieces, according to the amount owed, looks like one such misunderstanding (or so many modern critics have hoped).

All the same, these quotations offer the most direct route into mid-fifth-century BCE society, into its homes and families, worries and intellectual horizons. It is a much simpler society, and its horizons much more restricted, than Livy’s account ever implies. That is clear from the language and forms of expression as much as from the content. Although modern translations do their best to make it all sound fairly lucid, the original Latin wording is often far from that. In particular, the absence of nouns and differentiated pronouns can make it almost impossible to know who is doing what to whom. ‘If he summons to law, he is to go. If he does not go, he is to call to witness, then is to seize him’ presumably means, as it is usually translated, ‘If a plaintiff summons a defendant to law, the defendant is to go. If he does not go, the plaintiff is to call someone else to witness, then is to seize the defendant.’ But it does not exactly say that. All the signs are that whoever drafted this and many other clauses was still struggling to use written language to frame precise regulations, and that the conventions of logical argument and rational expression were very much in their infancy. Yet the mere attempt to create a formal record of this sort was an important stage in what is now often called state formation. One of the key turning points in many early societies is the rudimentary, usually very partial, codification of law. In ancient Athens, for example, the work of Draco in the seventh century BCE, though now a byword for harshness (‘draconian’), was notable as the first attempt there to put what had been oral rules into writing; a thousand years before that in Babylon, Hammurabi’s code did something similar. The Twelve Tables are much on that pattern. They are a long way from being a comprehensive legal code and may well never have been intended as such. Unless the range of surviving quotations is very misleading, they included almost nothing on public, constitutional law. What they do imply is a commitment to agreed, shared and publicly acknowledged procedures for resolving disputes and some thought on dealing with practical and theoretical obstacles to that. What was to be done if the defendant was too elderly to come to meet the plaintiff? The plaintiff was to provide an animal to transport him. What was to happen if the guilty party was a child? The penalty in that case might be beating rather than hanging — a distinction that heralds our ideas of the age of criminal responsibility. The themes of the regulations point to a world of multiple inequalities. There were slaves of various types, from defaulters on their loans who had fallen into some form of debt bondage to those fully enslaved, presumably (though this is only a guess) captured in raiding or war. And their disadvantage was spelled out: the penalty for assault on a slave is set at half as much as for assault on a free man, whereas a slave could be punished with his life for an offence for which free citizens got off with not much more than a beating. But some slaves were eventually freed, as is clear from a reference to an ex-slave, or libertus. There were hierarchies within the free citizen population too. One clause draws a distinction between patricians and plebeians, another between assidui (men of property) and proletarii (those without property – whose contribution to the city was the production of offspring, proles). Another refers to ‘patrons’ and ‘clients’ and to a relationship of dependency and mutual obligation between richer and poorer citizens that remained important throughout Roman history. The basic principle was that the client depended on his patron for protection and assistance, financial and otherwise, in return for a variety of services rendered, including votes in elections. Later Roman writing is full of rather high-flown rhetoric from the patron class on the virtues of the relationship, and miserable complaints from the side of the client about the humiliations they have to go through, all for a second-rate meal. In the Twelve Tables, the rule simply states: ‘If a patron has done harm to his client, he is to be cursed’ — whatever that meant. For the most part, the Twelve Tables confront domestic problems, with a heavy focus on family life, troublesome neighbors, private property and death. They lay down procedures for the abandonment or killing of deformed babies (a practice common throughout antiquity, euphemistically known to modern scholars as ‘exposure’), for inheritance and for the proper conduct of funerals. Particular clauses prohibit women from tearing their cheeks in mourning, funeral pyres being built too close to someone’s house and the burial of gold—except dental gold—with the body. Criminal and accidental damage was another obvious concern. This was a world in which people worried about how to cope with their neighbor’s tree overhanging their property (solution: it had to be cut back to a specified height) or with their neighbor’s animals running amok (solution: the damage had to be made good or the animal surrendered). They worried about thieves breaking in at night, which was to be punished more harshly than daylight theft, about vandals destroying their crops or about stray weapons accidentally hitting the innocent. But, just in case this all sounds a bit too familiar, it was also a world in which people worried about magic. What should you do if some enemy bewitched your crops or cast a spell on you? Sadly, the remedy for this is lost. To judge from the Twelve Tables, Rome in the mid fifth century BCE was an agricultural town, complex enough to recognize basic divisions between slave and free and between different ranks of citizen and sophisticated enough to have devised some formal civic procedures to deal consistently with disputes, to regulate social and family relations and to impose some basic rules on such human activities as the disposal of the dead. But there is no evidence that it was more than that. The strikingly tentative formulation of the regulations, in places awkward or even confusing, should call into question some of the references in Livy and other ancient writers to complicated laws and treaties at this period. And the absence, at least from the selection of clauses preserved, of any reference to a specific public official, apart from a Vestal Virgin (who as a priestess was to be free of her father’s control), certainly does not suggest a dominant state apparatus. What is more, there is hardly any mention of the world outside Rome — beyond a couple of references to how particular rules applied to a hostis (a ‘foreigner’ or an ‘enemy’; the same Latin word, significantly, can mean both) and one possible reference to sale into slavery ‘in foreign country across the Tiber’, as a punishment of last resort for debt. Maybe this collection had an intentionally internal rather than external focus. All the same, there is no hint in the Twelve Tables that this was a community putting a high priority on relations, whether of dominance, exploitation or friendship, beyond its locality. It all seems a world away from the age of Cicero, and even from the age of Barbatus and Appius Claudius Caecus, a little over a hundred years later, with their parade of public offices, that new road striking south to Capua and the boast about hostages from Lucania (see plate 5). So what changed, and when? The Conflict of the Orders First, what happened in politics at home?

The Twelve Tables were one of the outcomes of what is often now called the Conflict of the Orders (the Latin word ordo meaning, among other things, ‘social rank’), which according to Roman writers dominated domestic politics in those crucial couple of hundred years after the end of the monarchy. This was the struggle by the plebeian citizens for full political rights and for parity with the elite, patrician citizens, who were generally loath to give up their hereditary monopoly of power. In Rome it was seen ever after as a heroic vindication of the political liberty of the ordinary citizen, and it has left its mark on the politics, and political vocabulary, of the modern world too. The word ‘plebeian’ remains an especially loaded term in our class conflicts; even in 2012, the allegation that a British Conservative politician had insulted a policeman by calling him a ‘pleb’—short for ‘plebeian’—led to his resignation from the government. As the story of this conflict unfolds, it was only a few years after the Republic had been established, at the beginning of the fifth century BCE, that the plebeians began objecting to their exclusion from power and their exploitation by the patricians. Why fight in Rome’s wars, they repeatedly asked, when all the profits of their service lined patrician pockets? How could they count themselves full citizens when they were subject to random and arbitrary punishment, even enslavement if they fell into debt? What right had the patricians to keep the plebeians as an underclass? Or, as Livy scripted the ironic words of one plebeian reformer, in terms uncannily reminiscent of twentieth-century opposition to apartheid, ‘Why don’t you pass a law to stop a plebeian from living next door to a patrician, or walking down the same street, or going to the same party, or standing side by side in the same Forum?’ In 494 BCE, plagued by problems of debt, the plebeians staged the first of several mass walkouts from the city, a combination of a mutiny and a strike, to try to force reform on the patricians. It worked. For it launched a long series of concessions which gradually eroded all the significant differences between patricians and plebeians and effectively rewrote the political power structure of the city. Two hundred years later there was little to patrician privilege beyond the right to hold a few ancient priesthoods and to wear a particular form of fancy footwear. The first reform in 494 BCE was the appointment of official representatives, known as tribunes of the people (tribuni plebis), to defend the interests of the plebeians. Then a special assembly was established for plebeians only. This was organized, like the Centuriate Assembly, on a system of block voting, but the technical details were crucially different. It was not based on a hierarchy of wealth. Instead, the voting groups were defined geographically, with voters enrolled in tribes (tribus), or regional subdivisions of Roman territory, nothing to do with any ethnic grouping that the modern sense of ‘tribe’ might imply. Finally, after one last walkout, in a reform that Scipio Barbatus would have witnessed in 287 BCE, the decisions of this assembly were given the automatic binding force of law over all Roman citizens. A plebeian institution, in other words, was given the right to legislate over, and on behalf of, the state as a whole. Between 494 and 287 BCE, amid yet more stirring rhetoric, strikes and threats of violence, all major offices and priesthoods were step by step opened up to plebeians and their second-class status was dismantled. One of the most famed plebeian victories came in 326 BCE, when the system of enslavement for debt was abolished, establishing the principle that the liberty of a Roman citizen was an inalienable right. An equally significant but more narrowly political milestone had been passed forty years earlier, in 367 BCE. After decades of dogged refusal and claims by hardline patricians that ‘it would be a crime against the gods to let a plebeian be consul,’ it was decided to open one of the consulships to plebeians. From 342 BCE it was agreed that both consuls could be plebeian, if so elected. 27. One of the offices that always remained restricted to patricians was the ‘flaminate’ – ancient priesthoods of some of the major gods. A group of these priests are seen here on the first-century BCE Altar of Peace (see Fig. 65), recognizable by their strange headgear. By far the most dramatic events in the conflict surrounded the drafting of the Twelve Tables, in the mid fifth century BCE. The clauses that are preserved may be brief, allusive and even slightly dry, but, as the Romans told the story, they were compiled in an atmosphere involving a tragic, highly colored mixture of deception, allegations of tyranny, attempted rape and murder. The story was that for several years, the plebeians had demanded that the city’s ‘laws’ be made public and not be merely a secret resource of the patricians; and, as a concession, normal political offices were suspended in 451 BCE and ten men (decemviri) were appointed to collect, draft and publish them.

In the first year, the decemviri successfully completed ten tables of laws, but the job was not finished. So for the following year another board was appointed, which proved to be of a very different, and far more conservative, character. This second board produced the remaining two tables, introducing a notorious clause banning marriage between patricians and plebeians. Although the initiative behind the drafting had originally been reformist, it turned into the most extreme attempt to keep the two groups utterly separate: ‘the most inhuman law’ Cicero called it, entirely against the spirit of Roman openness. There was worse to come. This second board of decemviri—the Ten Tarquins, as they were sometimes known—started to ape the behavior of tyrants, right down to sexual violence. In what was almost a replay of the rape of Lucretia, which had led to the foundation of the Republic, one of their number, the patrician Appius Claudius (a great-great-grandfather of the road builder) demanded sex with a young plebeian woman, the aptly named Virginia, unmarried but betrothed. Deception and corruption followed. Appius suborned one of his hangers-on to claim that she was his slave, who had been stolen by her so-called father. The judge in the case was Appius himself, who of course found in his accomplice’s favour, and strode through the Forum to grab Virginia. In the arguments that followed, her father, Lucius Virginius, picked up a knife from a nearby butcher’s stall and stabbed his daughter to death: ‘I am making you free, my child, in the only way I can,’ he shouted. Virginia’s story has always been even more unsettling than that of Lucretia. It not only combines domestic murder with the brutality of class conflict but inevitably raises the question of the price to be paid for chastity. What kind of model of fatherhood is this? Who was most at fault? Did high principles need to come at such a terrible cost? But once more, (attempted) rape turned out to be a catalyst of political change. The display of Virginia’s body and a passionate speech that Virginius gave to the army led to riots, mutiny, the abolition of the tyrannical board of decemviri and, as Livy puts it, the recovery of liberty. Despite the taint of tyranny, the Twelve Tables remained. They were soon regarded as the honored ancestor of Roman law, excluding the ban on intermarriage, which was quickly repealed. This story of the Conflict of the Orders adds up to one of the most radical and coherent manifestos of popular power and liberty to survive from the ancient world – far more radical than anything to survive from classical democratic Athens, most of whose writers, when they had anything explicitly to say on the subject, were opposed to democracy and popular power. Taken together, the demands put into the mouths of the plebeians offered a systematic program of political reform, based on different aspects of the freedom of the citizen, from freedom to participate in the government of the state and freedom to share in its rewards to freedom from exploitation and freedom of information. It is hardly surprising that working class movements in many countries in the nineteenth and early twentieth centuries found a memorable precedent, and some winning rhetoric, in the ancient story of how the concerted action of the Roman people wrung concessions from the hereditary patrician aristocracy and secured full political rights for the plebeians. Nor is it surprising that early trades unions could look to the plebeian walkouts as a model for a successful strike.

But just how accurate is the story that the Romans told of this conflict? And what light does it shed on Rome’s ‘great leap forward’? Here the pieces in the jigsaw puzzle become hard to fit together. But the outlines of a picture, and some probably crucial dates, do stand out. Many aspects of the story as it has come down to us must be wrong, heavily modernized by later writers or, especially towards the beginning of the period of the conflict, still much more myth than history. Virginia is probably no less a fictional construct than Lucretia. There is an awkward mismatch between the surviving clauses of the Twelve Tables and the elaborate story of the decemviri. Why, if the compilation came directly out of the clashes between patricians and plebeians, is there just one reference to that distinction (in the marriage ban) in the clauses preserved? Much of the argument, and even more of the rhetoric, of the early plebeian reformers is almost certainly an imaginative reconstruction by writers of the first century BCE, drawing on the sophisticated debates of their own day rather than being a product of the world of the Twelve Tables — and it may well be better evidence for the popular political ideology of that later period than for the Conflict of the Orders. What is more, despite Roman certainty that the exclusion of plebeians from power in the state went back to the fall of the monarchy, there are hints that it developed only in the course of the fifth century BCE. The standard list of consuls, for example, however fictionalized it may be, includes in the early fifth century BCE plenty of recognizably plebeian names (including that of the first consul, Lucius Junius Brutus himself), which completely disappear in the second half of the century. That said, there is no doubt that long periods of the fifth and fourth centuries BCE were fractured by social and political struggles between a privileged, hereditary minority and the rest. More than half a millennium later, the formal distinction between patrician and plebeian families still survived, as one of those ‘fossils’ I discussed earlier (p. 79), with a whiff of snobbery attached to it and not much more. It would be hard to explain why the distinction existed at all if the difference between the two groups had not once been a significant marker of political, social and economic power. There are also strong reasons to think that the year 367 BCE was a major turning point, even if not in quite the way Roman historians imagined it. For them, this was the revolutionary moment when it was decided not only that the consulship should be open to plebeians but that one of the two consuls must always be a plebeian. If so, the law was flouted as soon as it was made, as on several occasions in the following years two patrician names are recorded as consuls. Livy noticed the problem and unconvincingly suggests that the plebeians were satisfied with getting the right to stand and not so bothered about being elected. Much more likely is that there was no obligatory plebeian consul but that this was the year when the consulship as the major annual office of state was established on a permanent basis, presumably open to both patricians and plebeians. That would certainly fit with two other significant clues. First, even in the traditional Roman record, the entries for most of the years between the 420s and the 360s BCE name the mysterious ‘colonels’ as the chief officials of the state. That changes once and for all in 367 BCE, when consuls become the norm for the rest of Roman history. Second, it may well be that the senate was given its definitive form at this time. Roman writers tended to take it for granted that the origins of the senate went back to Romulus, as a council of ‘old men’ (senes), and that by the fifth century BCE it was already a fully fledged institution operating much as it did in 63 BCE.