45.
Appius prefaced his decree by observing that the very law, which Virginius's friends were putting forward as the ground of their demand, clearly showed how much he favoured liberty. But that liberty would find secure protection in it on this condition, that it varied1 neither with respect to Cases or persons.2 For with respect to those individuals who were claimed as free, that point of law was good, because3 any person may pro- [p. 214]ceed by law (and act for them); with respect to her who is in the hands of her father, that there was no other
[8??]
person (than her father) to whom her master need relinquish his right of possession. That it was his determination, therefore, that her father should be sent for: in the mean time, that the claimant should suffer no loss of his right, but that he should carry off the girl with him, and promise that she should be produced on the arrival of him who was called her father. When many rather murmured against the injustice of this decision than any one individual ventured to protest against it, the girl's uncle, Publius Numitorius, and her betrothed
[9??]
spouse, Icilius, just come in; and way being made through the crowd, the multitude thinking that Appius might be most effectually resisted by the intervention of Icilius, the lictor declares that “he had decided the matter,” and removes Icilius, when he attempted to raise his voice. Injustice so atrocious would have fired even a cool temper. “By the sword, Appius,” says he, “I must be removed hence, that you may carry off in silence that which you wish to be concealed. This young woman I am about to marry, determined to have a lawful and chaste wife. Wherefore call together all the lictors even of your colleagues; order the rods and axes to be had in readiness; the betrothed wife of Icilius shall not remain without her father's house. Though you have taken from us the aid of our tribunes, and the power of appeal to the commons of Rome, the two bulwarks for maintaining our liberty, absolute dominion has
[10??]
not therefore been given to you over our wives and children. Vent your fury on our backs and necks; let chastity at least be secure. If violence be offered to her, I
[11??]
shall implore the protection of the citizens here present in behalf of my spouse; Virginius will implore that of the soldiers in behalf of his only daughter; we shall all implore the protection of gods and men, nor shall you carry that sentence into effect without our blood. I demand of you, Appius, consider again and again to what lengths you are proceeding. Let Virginius, when he comes, consider what conduct he should pursue with respect to his daughter. Let him only be assured of this, that if he yield to the claims of this man, [p. 215]he will have to seek out another match for his daughter. As for my part, in vindicating the liberty of my spouse, life shall leave me sooner than my honour.”
1 Appius here contrasts two classes of persons, one [2] consisting of individuals, who are in their own power; the other, of those who are not sui juris, but are under the control either of a parent, or some other person. If the question arise concerning a person who is sui juris, whether he is to be consigned to slavery, or to be restored to liberty, then “id juris esse,” sc. that he remain free till the decision is made, because any person, as being homo sui juris, and consequently he himself, “may proceed by law;” but he says, that this does not hold good with respect to a person who is not sui juris, but is in the hands of others; such a person, he says, cannot be pronounced free, but must be subject to the power, either of the parent or master, so that no injury be done to either. Wherefore, since the girl is not sui juris, she must be in the power, either of Virginius, who says he is her father, or of Claudius, who says he is her master. But since Virginius is not present, that she can be in the power [3] of no one but Claudius, until Virginius arrive.
I cannot resist the temptation of giving in full Mr. Gunn's note on the passage, as found in his very neat edition of our author.
“Appius for his own purposes, in interpreting his own law, introduces a distinction betwixt those who were suijuris, entirely free, and those who were subject to the patria potestas. The law, according to him, can apply only to the former, because in them only is there a true claim for [4] liberty, and in them only could a judge give an interim decision secundum libertatem. To give such a decision in favour of Virginia, would be a variatio personarum; it would be introducing as entitled to the benefit of the law a class of persons, who were, even according to their own statements, not entitled to vindiciae [5] secundum libertatem. Besides, and most important of all, the law could act in the former, as any citizen was entitled to plead the cause of one presumptively free. But in this case no one could plead, but either the father as master on the one hand, or the alleged master on the other: as the father was not present, consequently no one had any legal claim to urge the law.”
2 Si nec causis nec personis variet. Sc. lex variet. Some [6] understand libertas as the nominative to variet.
3 Because any person. “As the law permits any strangers to interpose in vindicating an individual's liberty, they have an undoubted right so to do. But the question is not whether this maiden is free: that she cannot be in any case; for she belongs either to her father or her master. Now as her father is not present to take charge of her, no one here but her master can have any title to her.” Appius argues that he could not pronounce in favour of her temporary liberty, without prejudice to her father's right and power over her: as [7??] there was no one present, who claimed a legal right to the possession of her but M. Claudius, the judge had no alternative but to award her during the interim to his safe keep- ing. —Stocker.
Livy. History of Rome by Titus Livius, the first eight Books. literally translated, with notes and illustrations, by. D. Spillan. York Street, Covent Garden, London. Henry G. Bohn. John Child and son, printers. 1857. 1.
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