De Legibus (On the Laws)
M. Tullius Cicero
4. Marcus: Let us, then, once more examine, before we come to
the consideration of particular laws, what is the power and nature of law in
general; lest, when we come to refer everything to it, we occasionally make
mistakes from the employment of incorrect language, and show ourselves ignorant
of the force of those terms which we ought to employ in the definition of laws.
Quintus: This is a very necessary caution, and the proper
method of seeking truth.
Marcus: This, then, as it appears to me, has been the decision
of the wisest philosophers — that law was neither a thing to be contrived
by the genius of man, nor established by any decree of the people, but a
certain eternal principle, which governs the entire universe, wisely commanding
what is right and prohibiting what is wrong. Therefore, they called that
aboriginal and supreme law the mind of God, enjoining or forbidding each
separate thing in accordance with reason. On which account it is that this law,
which the gods have bestowed upon the human race, is so justly applauded. For
it is the reason and mind of a wise Being equally able to urge us to good or to
deter us from evil.
Quintus: You have, on more than one occasion, already touched
on this topic. But before you come to treat of the laws of nations, I wish you
would endeavor to explain the force and power of this divine and celestial law,
lest the torrent of custom should overwhelm our understanding, and betray us
into the vulgar method of expression.
Marcus: From our childhood we have learned, my Quintus, to call
such phrases as this "that a man appeals to justice, and goes to
law," and many similar expressions "law," but, nevertheless, we
should understand that these, and other similar commandments and prohibitions,
have sufficient power to lead us on to virtuous actions and to call us away
from vicious ones. Which power is not only far more ancient than any existence
of states and people, but is coeval with God himself, who beholds and governs
both heaven and earth. For it is impossible that the divine mind can exist in a
state devoid of reason; and divine reason must necessarily be possessed of a
power to determine what is virtuous and what is vicious. Nor, because it was
nowhere written, that one man should maintain the pass of a bridge against the
enemy's whole army, and that he should order the bridge behind him to be cut
down, are we therefore to imagine that the valiant Cocles [i.e.,
Horatius] did not perform this great exploit agreeably to the laws of nature
and the dictates of true bravery. Again, though in the reign of Tarquin there
was no written law concerning adultery, it does not therefore follow that
Sextus Tarquinius did not offend against the eternal law when he committed a
rape on Lucretia, daughter of Tricipitius. For, even then he had the light of
reason from the nature of things, that incites to good actions and dissuades
from evil ones; and which does not begin for the first time to be a law when it
is drawn up in writing, but from the first moment that it exists. And this
existence of moral obligation is co-eternal with that of the divine mind.
Therefore, the true and supreme law, whose commands and prohibitions are
equally authoritative, is the right reason of the Sovereign Jupiter.
5. Quintus: I grant you, my brother, that whatever is
just is also at all times the true law; nor can this true law either be
originated or abrogated by the written forms in which decrees are drawn up.
Marcus: Therefore, as that Divine Mind, or reason, is the
supreme law, so it exists in the mind of the sage, so far as it can be
perfected in man. But with respect to civil laws, which are drawn up in various
forms, and framed to meet the occasional requirements of the people, the name
of law belongs to them not so much by right as by the favor of the people. For
men prove by some such arguments as the following, that every law which
deserves the name of a law, ought to be morally good and laudable. It is clear,
say they, that laws were originally made for the security of the people, for
the preservation of states, for the peace and happiness of society; and that
they who first framed enactments of that kind, persuaded the people that they
would write and publish such laws only as should conduce to the general
morality and happiness, if they would receive and obey them. And then such
regulations, being thus settled and sanctioned, they justly entitled Laws. From
which we may reasonably conclude, that those who made unjustifiable and
pernicious enactments for the people, acted in a manner contrary to their own
promises and professions, and established anything rather than laws, properly
so called, since it is evident that the very signification of the word
"law" comprehends the whole essence and energy of justice and equity.
I would, therefore, interrogate you on this point, my Quintus, as those
philosophers are in the habit of doing. If a state wants something for the want
of which it is reckoned no state at all, must not that something be something
Quintus: A very great good.
Marcus: And if a state has no law, is it not for that reason to
be reckoned no state at all?
Quintus: We must needs say so.
Marcus: We must therefore reckon law among the very best
Quintus: I entirely agree with you.
Marcus: If, then, in the majority of nations, many pernicious
and mischievous enactments are made, which have no more right to the name of
law than the mutual engagement of robbers, are we bound to call them laws? For
as we cannot call the recipes of ignorant and unskillful empirics, who give
poisons instead of medicines, the prescriptions of a physician, so likewise we
cannot call that the true law of a people, of whatever kind it may be, if it
enjoins what is injurious, let the people receive it as they will. For law is
the just distinction between right and wrong, made conformable to that most
ancient nature of all, the original and principal regulator of all things, by
which the laws of men should be measured, whether they punish the guilty or
protect and preserve the innocent.
6. Quintus: I quite understand you, and think that no
law but that of justice should either be proclaimed as one or enforced as one.
Marcus: Then you regard as null and void the laws of Titius and
Apuleius, because they are unjust.
Quintus: Yes; and I would say the same of the laws of Livius.
Marcus: You are right, and so much more the more, since a
single vote of the senate would be sufficient to abrogate them in an instant.
But that law of justice, the power of which I have explained, can never be
abrogated. Certainly, if I could get you both to agree with me. But Plato, that
wisest of all men, that most dignified of all philosophers, who was the first
man who ever composed a treatise on a Commonwealth, and afterwards a separate
one on Laws, induces me to follow his illustrious example, and to proclaim the
praises of law, before I begin to recite its regulations. Such, likewise, was
the practice of Zaleucus and Charondas, who wrote the laws which they gave
their cities, not for the sake of study or amusement, but for the benefit of
their country and their fellow-citizens. And imitating them, Plato considered
that it was the property of law, to persuade in some instances, and not to
compel everything by threats and violence.
Quintus: What, do you venture to cite Zaleucus, when Timaeus
denies that he ever existed ?
Marcus: But Theophrastus, an author, in my opinion, quite as
respectable, and as may think, much more so, corroborates my statement. His
fellow-citizens, too, my clients, the Locrians, commemorate him; but whether he
was a real man or not, is of no great consequence to our argument; we are only
speaking according to tradition.
7. Let this, therefore, be a fundamental principle in all societies,
that the gods are the supreme lords and governors of all things — that all
events are directed by their influence, and wisdom, and Divine power; that they
deserve very well of the race of mankind; and that they likewise know what sort
of person every one really is; that they observe his actions, whether good or
bad; that they take notice with what feelings and with what piety he attends to
his religious duties, and that they are sure to make a difference between the
good and the wicked.
For when once our minds are confirmed in these views, it will not be
difficult to inspire them with true and useful sentiments. For what can be more
true than that no man should be so madly presumptuous as to believe that he has
either reason or intelligence, while he does not believe that the heaven and
the world possess them likewise, or to think that those things which he can
scarcely comprehend by the greatest possible exertion of his intellect, are put
in motion without the agency of reason?
In truth, we can scarcely reckon him a man, whom neither the regular courses
of the stars, nor the alterations of day and night, nor the temperature of the
seasons, nor the productions that nature displays for his use and enjoyment,
urge to gratitude towards heaven.
And as those beings which are furnished with reason are incomparably
superior to those which want it, and as we cannot say, without impiety, that
anything is superior to the universal Nature, we must therefore confess that
divine reason is contained within her. And who will dispute the utility of
these sentiments, when he reflects how many cases of the greatest importance
are decided by oaths; how much the sacred rites performed in making treaties
tend to assure peace and tranquility; and what numbers of people the fear of
divine punishment has reclaimed from a vicious course of life; and how sacred
the social rights must be in a society where a firm persuasion obtains the
immediate intervention of the immortal gods, both as witnesses and judges of
our actions? Such is the "preamble of the law," to use the expression
Quintus: I understand you, my brother; and I am greatly pleased
to find that you take a different view of the subject, and dwell upon other
points of it, than those which he selects, for nothing can less resemble his
opinions, than what you have just now asserted, even in this preamble. The only
matter in which you seem to me to imitate him, is his style and language.
Marcus: I wish, indeed, I did, but who is, or who ever will be
able to translate them, and, indeed, that is what I should do if I did not wish
to be altogether original. For what difficulty is there in stating the same
doctrines as he does, translated from him almost word for word?
Quintus: I entirely agree with you; for as you have just
remarked, your arguments ought to be entirely your own. Begin, then, if you
will do us a favor, and expound the laws of religion.
Marcus: I will explain them as well as I can; and since both
the topic and the conversation is a familiar one, I shall begin by describing
the laws of laws.
Quintus: What laws do you mean?
Marcus: There are certain terms in law, my Quintus, not so
ancient as those in the primitive sacred laws, but still, in order to carry
with them greater authority, being of a somewhat greater antiquity than the
common parlance of people. These legal terms, I shall mention with as much
brevity as possible; and I shall endeavor to expound the laws, not, indeed, in
their whole extent, for this would be a boundless subject, but those which
involve the principles, and contain the sum and substance of the rest.
Quintus: This appears a most desirable method; let us therefore
hear the terms of the law.
8. Quintus: Such are the following: — Let men
approach the gods with purity — let men appear before them in the spirit
of devotion — let men remove riches from their temples; whoever does
otherwise shall suffer the vengeance of heaven — let no one have private
gods — neither new gods nor strange gods, unless publicly acknowledged,
are to be worshiped privately — let the temples which our fathers have
constructed in the cities, be upheld — let the people maintain the groves
in the country, and the abodes of the Lares — let men preserve the
customs of their fathers and of their family — let the gods who have been
accounted celestial be worshiped, and those likewise who have merited celestial
honors by their illustrious actions, such as Hercules, Bacchus, Aesculapius,
Castor, Pollux, and Quirinus. Let due honor be likewise paid to those virtues,
by which man is exalted to heaven — as Intelligence, Valor, Piety,
Fidelity; and let temples be consecrated to their honor — with regard to
the vices, let no sacred sacrifices be paid to them.
Let men put aside all contentions of every kind on the sacred festivals, and
let servants enjoy them, their toils being remitted, for therefore they were
appointed at certain seasons. — Let the priests duly render the public
thank-offerings to heaven, with herbs and fruits, on the sacrificial days.
Also, on the appointed holidays, let them offer up the cream of milk, and the
sucklings; and lest the priests should commit any mistakes in these sacrifices,
or the season of these sacrifices, let them carefully observe the calendar, and
the revolutions of the stars. — Let them provide those particular victims
which are most appropriate and agreeable to each particular deity. — Let
the different gods have different orders of priests. — Let them all have
pontiffs in common; and let each separate god have his Flamen.
Let the Vestal Virgins in the city carefully keep the eternal fire of the
public altar always burning; and, that this may be done both publicly and
privately with all due form and ceremony, let those who are not instructed in
the order of the ceremonials learn it from the public priests. Let there be two
classes of these priests, one to preside over ceremonials and sacrifices, and
the other to interpret the obscure predictions of the prophets and diviners,
whenever the senate and the people require it. Let the public Augurs, who are
the interpreters of the all-good and all-great Jupiter, likewise examine the
presages and the auspices, according to the discipline of their art. Let the
priests who are conversant in auguries implore prosperity for the vineyards and
gardens, and pray for the general welfare of the people. Let those who give
counsel in military or civic affairs attend to the auspices, and be guided by
them. Let them guard against the anger of heaven, and appease it; and observe
from what part of heaven the lightnings burst forth. Let them declare what
lands, cities, and temples, are to be held free and consecrated. Whatever
things the augur declares to be unjust, ill-omened, vicious, and accursed, let
them be forsaken as prohibited and disastrous, and whoever will not obey these
divine indications, let him suffer capital punishment.
9. As to alliances, peace, war, truces, and the rights of
ambassadors, let the two Fetiales be the appropriate judges, and let
them determine all questions relating to military affairs. Let them report all
prodigies and portents to the Etruscans and soothsayers, if the senate orders
it; and let the chiefs of Etruria explain their system. Then will they learn
what deities it behooves them to propitiate, and deprecate the fury of the
thunderbolt against the object of its vengeance.
Let there be no nocturnal sacrifices performed by women, except those which
they offer according to custom on behalf of the people; and let none be
initiated in the mysteries except by the usual forms consecrated to Ceres,
according to the Grecian ceremonials.
A crime which has been committed and cannot be expiated has been an act of
impiety; as to the faults which can be expiated, let the public priests expiate
Let men temper the public hilarity with song, and harp, and flute at the
public games, as far as can be done without the games of the racecourse and the
wrestling-matches, and let them unite these amusements with the honors of the
gods. Let them retain whatever is best and purest in the ancient form of
worship. Except the devotees of Cybele, to whom this privilege is allowed on
certain days, let no one presume to levy rates for private emolument. Whoever
purloins or robs any temple, or steals any property deposited in a temple,
shall be accounted a parricide. The divine punishment of perjury is destruction
— the human penalty is infamy. With regard to incest, let the chief priest
sentence it to the extreme penalty of the law.
Let not the impious man attempt to appease the gods by gifts and offerings.
Let vows be carefully performed. Wherever law is violated let its punishments
be executed. Let no private person presume to consecrate his land; and let his
consecration of gold, silver, and ivory, be made within the limits of
moderation. Let the sacred actions of private persons be preserved for ever.
Let the rights of the deities of the dead be considered sacred. Let those who
have passed into the world of souls be considered as deified! but let men
diminish the unnecessary expense and sorrow which is lavished on them.
Marcus: The very man, my Atticus.
Atticus: Indeed you do not exaggerate your compliments, nor
bestow them too frequently, for even my Epicurean friends, who do not like any
one to be praised but their own master, still allow me to love Plato as much as
Marcus: They do well to grant you this indulgence, for what can
be so suitable to the elegance of your taste as the writings of Plato, who in
his life and manners appears to me to have succeeded in that most difficult
combination of gravity and politeness.
Atticus: I am glad I interrupted you, since you have availed
yourself of an opportunity of giving this splendid testimonial of your judgment
respecting him; but to pursue the subject as you began.
Marcus: Let us begin, then, with praising the law itself, with
those commendations which are both deserved and appropriate to the subject.
Atticus: That is but fair, since you did the same in the case
of our ecclesiastical jurisprudence.
Marcus: You see, then, that this is the duty of magistrates, to
superintend and prescribe all things which are just and useful, and in
accordance with the law. For as the law is set over the magistrate, even so are
the magistrates set over the people. And, therefore, it may be truly said
"that the magistrate is a speaking law, and the law is a silent
magistrate." Moreover, nothing is so conformable to justice and to the
condition of nature (and when I use that expression, I wish it to be understood
that I mean the law, and nothing else) as sovereign power; without which,
neither house, nor commonwealth, nor nation, nor mankind itself, nor the entire
nature of things, nor the universe itself, could exist. For this universe is
obedient to God, and land and sea are submissive to the universe; and human
life depends on the just administration of the laws of the universe; and human
life depends on the just administration of the laws of order.
2. But to come to considerations nearer home, and more familiar to
us, all ancient nations have been at one time or other under the dominion of
kings. Which kind of authority was at first conferred on the wisest and justest
of men (and this rule mainly prevailed in our own commonwealth, as long as the
regal power lasted). Afterward, the authority of kings was handed down in
succession to their descendants, and this practice remains to this day in those
which are governed by kings. And even those to whom the regal domination was
distasteful, did not desire to be obedient to no one, but only to be always
under the authority of the same person.
For ourselves, then, as we are proposing laws for a free people, and we have
already set forth in six books all our own opinions about the best kind of
commonwealth, we shall on the present occasion endeavor to accommodate our laws
to that constitutional government of which we have expressed our approval.
It is clear, then, that magistrates are absolutely necessary; since, without
their prudence and diligence, a state cannot exist; and since it is by their
regulations that the whole commonwealth is kept within the bounds of
moderation. But it is not enough to prescribe them a rule of domination, unless
we likewise prescribe the citizens a rule of obedience. For he who commands
well, must at some time or other have obeyed; and he who obeys with modesty
appears worthy of some day or other being allowed to command. It is desirable,
therefore, that he who obeys should expect that some day he will come to
command, and that he who commands should bear in mind that ere long he may be
called to the duty of submission.
We would not, however, limit ourselves to requiring from the citizens
submission and obedience towards their magistrates; we would also enjoin them
by all means to honor and love their rulers, as Charondas prescribes in his
code. Our Plato likewise declares that they are of the race of the Titans, who,
as they rebelled against the heavenly deities, do in like manner oppose their
magistrates. These points being granted, we will, if you please, advance to the
examination of the laws themselves.
Atticus: I certainly do please, and the arrangement seems
3. Marcus: Let all authorities be just, and let them be
honestly obeyed by the people with modesty and without opposition. Let the
magistrate restrain the disobedient and mischievous citizen, by fine,
imprisonment, and corporal chastisement; unless some equal or greater power, or
the people forbid it; for there should be an appeal thereto. If the magistrate
shall have decided, and inflicted a penalty, let there be a public appeal to
the people respecting the penalty and fine imposed.
With respect to the army, and the general that commands it by martial law,
there should be no appeal from his authority. And whatever he who conducts the
war commands, shall be absolute law, and ratified as such.
As to the minor magistrates, let there be such a distribution of their legal
duties, that each may more effectively superintend his own department of
justice. In the army let those who are appointed command, and let them have
tribunes. In the city, let men be appointed as superintendents of the public
treasury. Let some devote their attention to the prison discipline, and capital
punishments. Let others supervise the public coinage of gold, and silver, and
copper. Let others judge suits and arbitrations; and let others carry the
orders of the senate into execution.
Let there likewise be aediles, curators of the city, the provisions, and the
public games, and let these offices be the first steps to higher promotions of
Let the censors take a census of the people, according to age, offspring,
family, and property. Let them have the inspection of the temples, the streets,
the aqueducts, the rates, and the customs. Let them distribute the citizens,
according to their tribes; after that let them divide them with reference to
their fortunes, ages, and ranks. Let them keep a register of the families of
those of the equestrian and plebeian orders. Let them impose a tax on
celibates. Let them guard the morals of the people. Let them permit no scandal
in the senate. Let the number of such censors be two. Let their magistracy
continue five years. Let the other magistrates be annual, but their offices
themselves should be perpetual.
Let the judge of the law who shall decide private actions, or send them for
decision to the praetor — let him be the proper guardian of civil
jurisprudence. Let him have as many colleagues of equal power, as the senate
think necessary, and the people allows him.
Let two magistrates be invested with sovereign authority; from their
presiding, judging, and counseling, let them be called praetors, judges, or
consuls. Let them have supreme authority over the army, and let them be subject
to none; for the safety of the people is the supreme law; and no one should
succeed to this magistracy till it has been held ten years — regulating
the duration by an annual law.
When a considerable war is undertaken, or discord is likely to ensue among
the citizens, let a single supreme magistrate be appointed, who shall unite in
his own person the authority of both consuls, if the senate so decrees, for six
months only. And when such a magistrate has been proclaimed under favorable
auspices, let him be the master of the people. Let him have for a colleague,
with equal powers with himself, a knight whomsoever he may choose to appoint,
as judge of the law. And when such a dictator or master of the people is
created the other magistrates shall be suppressed.
Let the auspices be observed by the senate, and let them authorize persons
of their body to elect the consuls in the Comitia, according to the
Let the commanders, generals, and lieutenants, leave the city whenever the
senate decrees or the people orders that they shall do so. Let them properly
prosecute all just wars. Let them spare our allies, and restrain themselves and
their subordinates. Let them increase the glory of our country. Let them return
home with honor. Let no one be made an ambassador with a view to his own
Let the ten officers whom the people elect to protect them against
oppression be their tribunes; and let all their prohibitions and adjudications
be established, and their persons considered inviolable, so that tribunes may
never be wanting to the people.
Let all magistrates possess their auspices and jurisdictions, and let the
senate be composed of these legitimate authorities. Let its ordinances be
absolute, and let its enactments be written and ratified, unless an equal or
greater authority disannul them. Let the order of the senators be free from
reproach and scandal, and let them be an example of virtue to all.
In the creation of magistrates, the judgment of the accused, and the
reception or rejection of laws, when suffrages are employed, let the suffrages
be at once notorious to the nobles, and free to the people.
4. If any question occur out of the established jurisdiction of the
magistrates, let another magistrate be appointed by the people, whose
jurisdiction shall expressly extend thereto. Let the consul, the praetor, the
censor, the master of the people and of the equites, and he to whom the senate
has committed the election of consuls, have full liberty to treat both with the
senate and the people, and endeavor to reconcile the interests of all parties.
Let the tribunes of the people likewise have free access to the senate, and
advocate the interests of the people in all their deliberations. Let a just
moderation predominate in the opinions and declarations of those who would thus
act as mediators between the senate and the people. Let a senator who does not
attend the senate, either show cause of his non-attendance, or submit to an
appropriate fine. Let a senator speak in his turn, with all moderation, and let
him be thoroughly acquainted with the interests of the people.
By all means avoid violence among the people. Let the greatest authority
have the greatest weight in decisions. If any one shall disturb the public
harmony, and foment party quarrels, let him be punished as a criminal. To act
the intercessor in cases of offence should be considered the part of a good
citizen. Let those who act observe the auspices; obey the public augur, and
carry into effect all proclamations, taking care that they are exhibited in the
treasury and generally known. Let the public consultations be concentrated in
one point at a time, let them instruct the people in the nature of the
question, and let all the magistrates and the people be permitted to advise on
Let them permit no monopolies, or privileges. With respect to the capital
punishment of any citizen, let it not take place, unless by the adjudication of
the high courts of justice, and the ministry of those whom the censors have
placed over the popular orders. Let no bribes be given or received, either in
soliciting, discharging, or resigning an official situation.
If any one infringe any of these laws, let him be liable to penalty. Let
these regulations be committed to the charge of the censors. Let public
officers, on their retiring from their posts, gives the censors an account of
their conduct, but let them not by this means escape from legal prosecution if
they have been guilty of corruption.
I have here recited the whole law; now, consider the question, and give your
5. Quintus: With what conciseness, my brother, have you
brought before our eyes the duties and offices of all magistrates! But your
system of laws is almost that of our own commonwealth, although a little that
is new has also been added by you.
Marcus: Your observation is very just, my Quintus, for this is
the very system of a commonwealth which Scipio eulogizes in my treatise, and
which he mainly approves — and which cannot be kept in operation but by a
successive order of magistrates, such as we have described. For you may take it
for granted that it is the establishment of magistrates that gives its form to
a commonwealth, and it is exactly by their distribution and subordination that
we must determine the nature of the constitution. Which establishment being
very wisely and discretely settled by our ancestors, there is nothing, or at
all events very little alteration that I think necessary in the laws.