CHAPTER II

THE GROWTH OF THE REPUBLICAN CONSTITUTION

The two new magistrates, who were appointed to the headship of the

state, were, like the king, armed with the _imperium_ and its united

powers of military leadership and jurisdiction. Hence they bore the old

titles of _praetores_ and _judices_,[316] while those designations which

denoted a single supremacy in the state, such as _dictator_ or _magister

populi_, were necessarily discarded. The new magistrates were to hold

office for a year and then to transmit their power to two successors.

But their right of nomination was not final. They were, indeed, free

to name as their successors whom they pleased, but this nomination had

to be ratified immediately by the people assembled in their centuries;

and perhaps they were already expected to submit to this _comitia_ the

names of all candidates who offered themselves for this post, although

they could certainly decline to receive such names,[317] and nomination,

or, as it was sometimes called, _creatio_, was an essential part of

the early consular elections. A new practice, that of direct election,

was thus introduced into the Roman constitution, but it was merely an

advance on the previous practice of ratifying a nomination.[318] A far

newer idea—one which distinguished the consulship from the monarchy,

and continued to differentiate it from the dictatorship subsequently

created—was that of _colleagueship_,[319] of two officials exercising

exactly the same sphere of competence, with the inevitable effect of

collision if agreement could not be secured. Perpetual collision was

averted by the simple rule that the dissent of one magistrate rendered

null and void the action of his colleague. But if such dissent was not

expressed (or not capable of expression through the absence of the

colleague) the command of a single magistrate had binding force on the

community. His regal competence was not diminished, but only potentially

checked, by the presence of a colleague. Colleagueship, considered as the

safeguard against abuse of the _imperium_, grew to be so firmly impressed

on popular imagination as the characteristic feature of the new office,

that the earlier titles derived from the monarchy gave place to that of

_consules_.[320]

But this limitation was not sufficient. The unrestricted military

jurisdiction of the magistrate was felt not to be in harmony with the

new _régime_. A law was passed by P. Valerius, the first of the consuls,

allowing an appeal to the people in their centuries against every

sentence of a magistrate which was pronounced against the life of a Roman

citizen. This _lex Valeria_ (509 B.C.) completed the popular jurisdiction

which had been growing up during the monarchy,[321] and from this time no

power but the people has the right to pronounce the final death sentence

within the walls;[322] outside this sphere the military jurisdiction of

the consul can be asserted without appeal—hence the distinction between

the _imperium_ at home (_domi_) and abroad (_militiae_); the limit

between the spheres being originally the _pomerium_, later the first

milestone from the city.[323] Without this limit the axes are borne

within the _fasces_, within it they are laid aside. Tradition adds that

it was this final recognition of popular sovereignty which led to the

custom of the consul lowering the _fasces_ before the people when he

addressed them.[324] It does not appear that this great change was forced

on the higher organs of the state by any popular agitation. It is no part

of a distinctively plebeian movement. Senate and People, Patricians and

Plebeians must have equally accepted as inevitable the doom of a power

which had been dwindling to a shadow during the monarchy.

The change from monarchy also witnessed the first attempt to weaken

the unity of the executive power. The consuls were given two general

assistants, the annually appointed _quaestores_. We have noticed the

tradition which assigns these officials to the regal period,[325] but

it is not wholly inconsistent with that which represents them as a part

of the new constitution of 509. From being temporary delegates they now

became permanent assistants of the consuls. Their sphere was as unlimited

as that of the consuls themselves; they were meant simply to obey his

behests. But two departments in which they represented the supreme

magistracy must have stood out prominently from the first. These were

criminal jurisdiction and finance.[326] The “city quaestors” (_quaestores

urbani_), as they were subsequently called to distinguish them from their

provincial colleagues, were known as _quaestores parricidii_[327] and

_quaestores aerarii_. In their first capacity they were delegates whom

the magistrate employed in criminal jurisdiction, probably occupying with

respect to procedure much the same place as the _duoviri_ in the trial

of Horatius.[328] The designation _parricidii_ may, however, show that

they were employed in such criminal cases as did not directly affect the

welfare of the state,[329] and by their side the _duoviri perduellionis_

reappear at intervals during the early Republic. Their financial

functions are generally taken to imply the existence of a state treasury

(_aerarium_). Tradition credits the first consul Valerius Publicola with

its institution, and makes the quaestors the guardians of its wealth

and probably of its archives.[330] The public chest of Rome must have

been a primitive matter enough at a time when coined money was not in

general use; but it is not improbable that finance did at this time

become a definite department. It could no longer be a purely domestic

matter; the lands of the kings had become crown lands of the state; the

series of wars into which Rome was plunged must have rendered a constant

collection of the war-tax necessary; none would more naturally have been

entrusted with the control and disbursement of revenue than the perpetual

delegates of the consuls; and the formalism of Roman character would

lead us to believe that the consuls had regular modes of acting through

their quaestors, and that these officials so far limited the power of

their masters. It is not improbable that the quaestors were originally

nominated by the consuls without the direct intervention of the people;

but this does not exclude some popular ratification of the choice.[331]

It was not until about the year 449 that their election was transferred

to the newly-constituted _comitia_ of the tribes.

And, as the consuls nominated their delegates, so the regal tradition was

continued which gave them the nomination of their council of state, the

Senate. In their choice of members they were legally as unfettered as

the king had been, and could summon new members or omit to summon those

already on the list.[332] So far as law went, the personnel of the Senate

might now be changed annually. But custom must have been stronger than

law. The body had gained a definiteness in its constitution, based on its

representative character and probably on actual life-membership, which

could not be easily destroyed, and the consul had a colleague at his side

to check any attempt at capricious removal or selection. The short tenure

of office must already have made a magistrate unwilling to exercise a

power which might be so easily turned against himself in the near future.

The discretionary power of the magistrate would have made the choice of

Plebeians possible, now that they were possessed of all the essential

rights of full citizenship;[333] but it does not appear that this choice

could have been often, if ever, exercised. The patrician clans had a

close hereditary connexion with the Senate; the _interregnum_, which was

the transmission of auspices by the _patres_, had long been one of its

privileges, and the prejudices of the patrician magistracy would hardly

have allowed it to dip into the inferior order for councillors. If there

be any truth in the story that, on the abolition of the monarchy, the

thinned ranks of the _patres_ were again raised to 300 by the inclusion

of persons specially enrolled (_adlecti_ or _conscripti_),[334] these

added members were probably, like their predecessors, patrician.

This large increase (placed by some at 164 members) gave rise to a

transitory distinction between the older members and the new members,

which—expressed in the formula of summons “qui patres, qui conscripti

(estis)”—was finally merged in the general appellation of “conscript

fathers.”[335] The expression may have originated with the abandonment

or modification of some original principle of selection; but, if

_conscripti_ be taken to apply wholly to Plebeians, some date later than

the commencement of the Republic must be accepted for the origin of the

term.[336]

The history, indeed, of the next hundred and fifty years shows that the

Senate is the stronghold of patrician prejudice. The power from which

the Plebeians try to shake themselves free, is the _patrum auctoritas_,

and the magistracy must soon have yielded to the demands of the new

burgesses, had it not been backed up by a patrician council. Yet during

the early Republic the Senate was a power distinctly secondary to the

magistrates. Its two undoubted prerogatives were the _interregnum_

and the _patrum auctoritas_. The first was exercised, perhaps, more

occasionally even than it had been under the monarchy, for it could

not be resorted to if one of the two consuls existed to nominate a

successor. The second power, on the other hand, must have become far

more formal than it had been in the time of the monarchy. Then it had

been little more than the claim of the council to be consulted on

important business;[337] now it was put forward as an integral part

of the procedure of the state; it was framed after the voting in the

assembly had taken place, and no law or election could be valid which

had not, after it had passed the people, received this formal consent of

the _patres_. We cannot trace the widening of the other powers of the

Senate; but we must assume that it took up a more independent position

in face of the consuls than it had done in that of the king. Perhaps the

establishment of a treasury and of financial quaestors, who may have

been selected from the council, led to its first connexion with finance.

The new importance that foreign affairs assumed, in the constant wars in

which Rome was engaged with the nations of Italy, must certainly have

strengthened its control of this department.

But, on the whole, the earliest period of the history of the Republic is

the epoch of the power of the magistracy. The traditions of the monarchy

were so little forgotten that eight years after the establishment of

the Republic, kingship in a modified form was again restored.[338]

In 501 B.C., during a war with the Latins, the consuls nominated an

individual with the royal title and powers. It was understood that this

_magister populi_, or, as he was afterwards called, _dictator_,[339]

was to remain in power only so long as the danger lasted; as the danger

was originally military, a single campaign of six months was held to be

the maximum duration of the office. During this time he was to exercise

the full regal _imperium_, within as well as without the city, and the

accompanying military jurisdiction without appeal. He was originally

understood to be a purely military official and the commander of the

infantry force; the command of the cavalry he entrusted to a magistrate

who, on the analogy of the magistracies of the monarchy, was a delegate

of his own, and bore the title “master of the horse” (_magister

equitum_).[340] The dictatorship was conceived of as a purely military

office, and, though it was occasionally used for other purposes in the

later constitution, never lost its primitive character. Although it

impeded for a time some of the most characteristic functions of the

consuls, it was not a suspension, but a part of, the constitution. A

small, struggling, and essentially military society, such as that of

early Rome, contemplated martial law as an occasional necessity; there

were times when the peril of the state was so great that it was felt

that the citizens’ ordinary guarantees of protection should sink into

abeyance if they were thought likely to interfere with the safety of the

commonwealth. The dictatorship had an internal as well as an external

side to its military character; it was even, perhaps, on its earliest

institution, meant to control disobedient citizens as well as to oppose

the enemy,[341] and was thus to some extent a party weapon in the hands

of the Patricians against the refractory Plebs. We shall find that

this summary military jurisdiction within the city was subsequently

abolished, without much loss to the utility of the institution. Its

true merit was the unity of administration which it created, the

advantages of which were made more apparent by the clashing powers of

the magistrates at a later stage of history. But the experience of the

evils of divided authority did not first point out the necessity of the

office. The dictatorship was an integral part of the original Republican

constitution; the law allowing it was forgotten—perhaps it was the first

_lex Valeria_ which secured the appeal against the ordinary magistrates;

but the right of the consul to declare martial law, as he did by

appointing a dictator, was never questioned as was the parallel right,

usurped by the Senate in later times, of arming the consul with military

jurisdiction. But, although the nomination of a dictator could not be

regarded as a violation of, or even as a break in, the constitution,

it was rightly held to be a powerful party weapon in the hands of the

patrician magistracy; and the attempts of the Plebs were directed,

however unsuccessfully, to limit this mighty power which over-rode all

privilege and law.

But the appointment of a dictator was supposed to be due to exceptional

circumstances. It is only when we look to the peaceful life of the state,

to the administration of law by the magistrate or the expression of

popular will in the _comitia_, that we can estimate the strength of the

position held by the patrician families.

The criminal law, which was doubtless during this period becoming more

and more secularised and divorced from the direct control of religion,

was the monopoly of the official class. A criminal case was an inquiry

undertaken solely on the initiative of the magistrate; no question

could come before the people until he had investigated it, and was

then only submitted in a _form prepared by him_. In the early popular

courts at Rome there was no power of amendment; the people could answer

only “Yes” or “No” to the question put before them. We are ignorant of

the extent of popular jurisdiction; it is possible that only sentences

affecting the _caput_ of a citizen were submitted to the assembly.[342]

But there was no real guarantee that even such questions could be

forced from the magistrate’s court. The _lex Valeria_ which admitted

the _provocatio_ imposed no penalty on the magistrate who violated its

provisions; the only hope lay in the veto of his colleague, and, if two

consuls were in agreement, they might ride roughshod over the law. The

consuls were ostensibly the only guardians of the criminal code; as it

is inconceivable that, in an age which made little use of writing, two

men selected on very varied grounds could have been regarded as fit

expounders of this form of _jus_, we must, even in the domain of criminal

law, go behind them and seek its true source in that formidable body,

the college of pontiffs. The learning and activity of this body is known

to us, however, chiefly in connexion with the divine or family or, as it

would have been called in later times, the civil law. The change from

monarchy to aristocracy introduced, in Rome as in Greece, an epoch of

religious tyranny. A king, who is the head of the religious as well as of

the secular life of the state, may hold the balance between the classes.

He is more likely to repress than to encourage his advisers; he may find

in popular rights a useful check to religious insolence. But remove the

king and substitute an aristocracy like the Patriciate whose members hold

supreme office in turn; let there be no distinction between clergy and

laity in this body, so that there can be no conflict between the secular

and sacred power, which may enable a third power to gain a footing; and

let this body have a monopoly of the civil law—and we get unequalled

possibilities of judicial tyranny. For two hundred years (509-304) the

knowledge of the forms of procedure, the _legis actiones_, which formed

the whole content of the civil law, was open to the patrician pontiffs

alone.[343] We are told that, even after the outlined codification and

publication of the law in the Twelve Tables, the formularies could only

be repeated correctly under the guidance of the college, which for this

purpose annually appointed one of its members to “preside over private

suits.” It is true that the theory of civil procedure was the same as

it had been in the time of the monarchy; the magistrate decided what

special rule of process was applicable, and then the case was settled

by an arbitrator chosen by the litigants.[344] But the magistrate must

often have been unskilled, one of the college must always have stood by

his side, and the pontiff so officiating was not merely an adviser to

the parties but a witness to the performance. The pontiffs, however,

were more than interpreters. They had, as the guardians of _fas_, their

own sphere of law, relics of which survived into the late Republic,

and within this sphere they were judges. They had a graduated scale of

expiations for sins (_piacula_); they were the police who protected the

sanctity of festal days (_feriae_), and inflicted spiritual penalties on

the magistrate himself who dared to exercise jurisdiction on a day which

they had declared holy; they issued and enforced commands which protected

sacred places (_loci sacri_) and burial-grounds.[345] Vows (_vota_), to

be effective, must be prescribed by them, and peculiarly efficacious

were those fixed forms of prayer (_certae precationes_) which they had

dictated word for word (_de scripto praeire_).

Against this phalanx of patrician power what forces could the Plebeians

boast?

A certain amount of voting power in the _comitia_ was all that they

possessed. But this voting power, except on certain established

points—the declaration of war and, when the law was observed, criminal

jurisdiction—was very ineffective, for the assembly was wholly dependent

for its summons and expression of opinion on the patrician consuls, and

liable to interruption from the pious scruples of patrician augurs; and

we have already seen how even the choice of magistrates could be hampered

by the formalities which still conditioned the election.[346] But, even

had these adverse circumstances been avoided, the voting power of the

Plebeians was small. The _comitia centuriata_ contained chiefly the

propertied—for the most part the landed—class; and even in this assembly

the two first classes and the knights, which would have consisted mainly

of Patricians, had a majority of votes (118 out of 193). The small

farmers and the artisans commanded but 74 or 75 votes; the great mass of

the Proletariate was either wholly unrepresented or could dispose of but

a single vote. It is important to inquire whether these classes excluded

from the centuries were represented elsewhere, or whether there was an

assembly possessing any real power in which Patricians and Plebeians were

alike represented.

It has been proved beyond a doubt that at some period during the first

three centuries of the Republic Plebeians came to be included in the

_comitia curiata_.[347] The change was the result of two circumstances;

firstly, the perfect equality of private rights between the members

of the two orders—adrogation and adoption, both of which followed the

possession of a _familia_, and in many cases _gentilitas_, being common

to both—which rendered it impossible to draw distinctions amongst the

_curiales_; and secondly, the reactionary influence of the centuriate

assembly, which emphasised the idea that Patricians and Plebeians

together made up the Populus.

Such a change must have been gradual; but, when it had occurred, the

admission of the Plebeians made this assembly thoroughly democratic in

form, for a vote in this _comitia_ depended neither on land or wealth,

but simply on personal membership of a _curia_, which was common to all

the citizens. But it is the very comparison of such a body with the

thoroughly timocratic organisation of the _comitia centuriata_ which

leads us to believe that, at the time when the Plebeians were admitted,

the _curiae_ had ceased to be a power. The condition reached by the

_comitia curiata_ in historical times will be described elsewhere. Its

most distinctive right—the _lex curiata_—had perhaps been a real power

in the hands of the Patricians, as long as they were its sole members,

although their preponderance in the _comitia centuriata_ would have made

a conflict between these two bodies unlikely; but there probably never

was a time when the masses of the Plebs gathered _curiatim_ upset the

verdict of the Patricians and wealthy Plebeians assembled _centuriatim_.

When we consider this situation, it is not surprising that the leading

features of the first period of development of the Roman constitution

(494-287 B.C.) were an attempt to limit the power of the magistrates,

and a struggle of the Plebs for equality with the Patriciate. The two

struggles do not run on parallel lines but are interwoven at every point,

since the magistracy represented the Patriciate. Nor do they represent

merely an effort to weaken or to obtain political privilege; in their

earlier stages the motive of the Plebs is not ambition, but defence.

Their first efforts have the negative object of the protection of rights,

not the positive design of an attempt to share in a political power which

was closed to their order.

Tradition represents the earliest social struggles of the Plebs as

centring round two questions—the possession of the public land, and the

law of debtor and creditor. They were no doubt closely connected, for

assignment of land meant relief of debt, but the agitation that gathered

round the public land was directed by individuals, was merely occasional,

and led to no permanent results; it is less a part of constitutional

than of political history, and its true nature is obscured by the fact

that we cannot say how far the annalists have transferred to this early

period the circumstances of the agrarian agitation of a later day. But

the early mode of assignment of the public land deserves consideration;

for, as one of the undoubted grievances of the Plebs, it may have been

one of the motives that led to the first great political reform. Land

conquered from the enemy was sometimes assigned to poorer citizens in

small allotments by the state (_ager assignatus_); in later times it was

sometimes sold by the state through its quaestors (_ager quaestorius_);

and in both these cases it became private property. But, in the early

Republic, the custom was growing up of leaving a great portion of

conquered land—especially such as was fit only for pasturage or had been

devastated in war—as state domain (_ager publicus_), and of allowing

it to be held in usufruct (_occupatio_) by squatters who paid to the

state for their privilege a proportion of the produce (_vectigal_), a

tithe or a fifth. Large portions of such _ager publicus_ had probably

been originally a part of the king’s domains, and had been held by his

clients, who would, of course, have been members of the lower class of

the Plebs. But under the new conditions of things it was all the property

of the state; and the theory was started, or confirmed, that in this

case Patricians alone could be its occupants,[348] a privilege that had

probably originated with the assumption that only the conquerors of the

land could share in the spoils of war.[349] This privilege—comprehensible

but legally absurd in that it involved the theory that clients of the

state must belong to a particular order—could no longer be upheld on the

same grounds, for Plebeians now marched to battle and could justly claim

a share in the prizes of war. But the maintenance of this principle, even

if justly carried out, could not have wholly solved the social problem.

The Proletariate, who had no share in winning the prize, would have still

been justly excluded; but it would at least have benefited the small

plebeian farmer, and perhaps it was he that had most need of benefit.

For the small independent landholder was in a hopeless plight—far more

hopeless than that of the client or emancipated slave who could claim

his lord’s protection. His condition was due to the law of debtor and

creditor—one, it seems, that was unknown to the old patrician community,

and had originated within the plebeian order, but which the Patriciate,

by adopting plebeian forms of law, could use with terrible force against

its inventors. The original procedure was one of the manifold forms of

_nexum_, or binding obligation created by the copper and the scales

(_per aes et libram_). A man who borrowed was allowed to sell his

perpetual services to his creditor conditionally—the condition being the

non-repayment of the debt within a given time.[350] When the prescribed

period had elapsed, the debtor and his whole _familia_ passed into

the power of his purchaser; he became his bondsman (_nexus_) until the

debt was paid by his labour. As in such circumstances the debt was

never likely to be liquidated, the small farmer became a mere dependent

member of the household of the rich landowner, leaning on his mercy and

subject to his caprice. No judicial process was necessary to create the

condition. The simple proof (perhaps given before a magistrate) of the

witnesses to the contract was all that was required. The enslavement of

the citizen was, it is true, forbidden by Roman public law,[351] and the

_nexus_ remained a burgess.[352] But a very thin line separated such a

condition from one of actual slavery.

It is probable that in early times plebeian law recognised no debt except

that created by the nexal contract. But as Roman commerce extended it

was impossible to observe this limitation; refinements of procedure

extended this penalty to debts incurred by the patrician form of mere

verbal promise (_stipulatio_, _sponsio_). The form of procedure in this

case is known to us from the Twelve Tables. If the debt was confessed

or proved before a court, an interval of thirty days was given to the

debtor wherein to pay; at the end of this period he was arrested by the

creditor (_manus injectio_) and brought before the consul, by whom, if

no champion (_vindex_) presented himself to contest the debt, he was

bound over (_addictus_) to the creditor. The latter could take him home

and put him in bonds, but must give him a pound of corn a day. Another

interval of sixty days followed, within which the prisoner was presented

to the magistrate on three court days (_nundinae_). On the last his

fate was sealed. He was no longer in the condition even of the _nexus_.

His creditor might put him to death or sell him as a slave beyond the

Tiber.[353] If there were more creditors than one,[354] they might

divide the debtor’s body into equal portions; and the Twelve Tables

gave immunity to the creditor who took more than his fair share of the

flesh. This death-penalty was doubtless a humane alternative to perpetual

imprisonment. Even if it did not submit the penalty, as a capital one,

to appeal (_provocatio_), the danger, which could be brought home to

relatives and friends by gradual mutilation, disfiguring but not fatal,

must have roused their efforts to effect a ransom. It was the application

of this law of debt, perhaps in even a harsher and more primitive form,

that called forth the first resistance from the Plebs. The perpetual

struggle for existence in which Rome was now engaged kept her armies

constantly in the field, and the small farmer on service, who had no

slaves, had to let his farm go to ruin in his absence and to mortgage

his body when he returned.[355] The most obvious remedy was a general

strike against the military levy; and this was attempted. Already in 495

a riot had been raised in Rome, which was only appeased by the promises

of a popular consul, Servilius, that the _nexi_ should be released for

service, and that no one should seize goods or pledges from a soldier

while he was in the field. The liberated citizens scattered the Volsci

and Aurunci; their reward was a more rigorous enforcement of the law

of debt by the other consul Appius. Servilius was appealed to, but

would not use his right of veto against his colleague. It was plain

that no one could rely on a consul’s _auxilium_ being used on behalf of

the Plebs.[356] A fierce stand against the conscription was now made

by the desperate Plebeians; the patrician answer was the appointment

of a dictator. Again the army took the field against the Volscians

and the Sabines; but, when victory was assured, the legions were not

disbanded, and a pretext was found for another campaign. On the march

from Rome the plebeian contingents suddenly turned aside to a hill in the

territory of Crustumerium, which, from the oath taken on its summit, was

thenceforth called the “Mount of Curses” (_sacer mons_).[357] A plan,

carefully thought out in the coteries and gatherings that had preceded

the campaign,[358] was now carried into effect. The Plebs had already

gathered in informal meetings (_concilia_) to discuss their grievances.

All that they lacked to become a corporation which might rival that

of the Populus, was to have at their head magistrates with great and

recognised powers. They were now met in battle array to carry out this

resolve; and it was not unnatural that the two plebeian magistrates whom

they chose to rival the power of the consuls should bear the military

appellation of tribunes.[359] It was made a condition of reconciliation

with the patrician state which they had quitted, that these officers

should have the power of suspending the decree of the consuls when

levelled against a member of the Plebs. But, since little confidence was

to be reposed in the government, the Plebs bound themselves by an oath,

similar to that taken on the expulsion of the king, to destroy any one

who offered injury or insult to their magistrates. The recognition of

these new magistrates, with the powers their appointment involved, was

effected by a _lex centuriata_ perhaps passed in the very year of the

secession (494 B.C.). The office of the _tribuni plebis_ or _plebei_

was modelled as closely as possible on that of the consuls. They were

originally two in number, and had, with reference to each other, the

mutual power of veto which the collegiate principle implied. They were

from the first magistrates of the Plebs, hence none but Plebeians were

eligible,[360] and they must from the first have been elected by an

assembly of the Plebs. This assembly, however, did not perpetuate its

original military character, and the unit of voting naturally selected

for the city-gatherings at which the tribunes were appointed was the

_curia_, to which Plebeians had for some time belonged. This assembly of

the Plebs was known as the _concilium plebis curiatim_.[361]

With respect to power the tribunate has, from its origin, a double

character. It possesses a negative control of the whole people (generally

in the person of its magistrate) exercised in defence of the Plebs, and

a positive authority within the plebeian community. The first power

asserts itself in the right of veto, the second is shown in the power of

eliciting resolutions (_scita plebei_ or _plebiscita_) from the plebeian

_concilium_. The first power, that of offering assistance (_auxilium_)

to any Plebeian[362] who feels himself aggrieved by the decree of the

magistrate, and suspending this decree by the exercise of the “veto,” was

the _raison d’être_ of the tribunate. The tribune was created to meet

the consular imperium (_contra consulare imperium_),[363] and the fact

that he could only exercise this power in person imposed on him certain

obligations. The tribune might not stay a night without the walls, and

the doors of his house were open day and night.[364] It was doubtless

through the insufficiency of these presidents of the Plebs to cope with

the demands for their assistance that their number was raised first to

four (471 B.C.), and before the year 449 B.C. to ten[365]—changes which

were ratified by the centuries and the Senate.

But a negative control over the magistrates of the state must be wholly

ineffective unless there be some means of enforcing this control. Had

the tribunes possessed no coercive power, the consul, in carrying out

the law of debt or in summoning Plebeians for the levy, would simply

have set their veto aside. We should have expected that such breaches of

the law would have been guarded against by judicial prosecution before

the courts of the community. But this was not consistent with the Roman

idea of magistracy. Each magistrate had, to a greater or less degree, the

power of enforcing his own decrees (_coercitio_), limited only by the

right of appeal or the veto of his colleague; and this power could not

be denied to the tribune. A logical consequence of his right of veto was

that he could exercise this _coercitio_ against the consuls themselves;

the sanctity of his person (guaranteed by the Plebs and accepted by

the Populus) rendered resistance hopeless; and all the weapons of the

_coercitio_—arrest, imprisonment, fines, stripes, and death—were at the

disposal of the champion of the Plebs.

_Coercitio_ implies summary jurisdiction; and the infliction of fines

beyond a certain limit, scourging, or death subjected a magistrate to

the _provocatio_, and therefore made him a partner in a trial before

a popular assembly. Hence the judicial power of the tribune, also a

necessary consequence of his power of veto. Undoubtedly when the office

was created this consequence was not foreseen. When it was found to be

a necessary accompaniment of the tribunician power, tradition tells us

that it was questioned by the Patricians. The historically worthless but

typical trial of C. Marcius Coriolanus in 491 B.C. elicited a protest

that the _jus_ of the tribunes extended only to Plebeians.[366] The

protest was idle, for the _jus auxilii_ could not exist without the

_jus poenae_ against its violators. The violation of plebeian rights

which was thus met by tribunician coercion and jurisdiction, was always

an infringement of the safety or dignity of the tribune himself. Even

the infliction of wrong on an individual through the violation of the

tribune’s decree was a wrong done to the Plebs through him; it was not

held to affect the rest of the community; hence the not unnatural belief

of our annalists that, when the tribune pronounced a sentence against

which there was an appeal, he brought the matter before the assembly of

the Plebs.

This right of reference implies the power known as the _jus agendi cum

plebe_. It was a power that could not have been contemplated on the

establishment of the tribunate, but it proved a necessary consequence of

the _auxilium_. Its acquirement meant a new infringement of the rights of

patrician magistrates; for the summoning of the Plebs meant the calling

away of a large portion of the Populus from the consuls. Two summonses of

two assemblies containing the same individuals by different magistrates

meant an inevitable conflict of authority, and the tribunician right

of transacting business with the Plebs could not be secured but by a

definite guarantee against consular interference. This guarantee was

given, tradition says, by a resolution of the Plebs itself, passed in

492 B.C., two years after the institution of the tribunate, under the

presidency of the tribune Sp. Icilius.[367] The date is probably too

early, and the resolution must have been subsequently ratified by a _lex_

of the centuries. It enacted that when the tribune addressed the Plebs no

one should speak against or interrupt him; that the tribune should fine

the offender and demand securities. If securities were not forthcoming,

the offender should be punished with death and his property confiscated

to the gods. If the fine were disputed the judgment should rest with

the people. Whether by “people” here was meant Populus or Plebs, it was

doubtless on this law that the plebeian assembly based its jurisdiction

in the case of injury or insult being offered to its magistrate.

But the right of acting with the Plebs, which was thus guaranteed to the

tribune, had another and more positive aspect. It might be used to elicit

formal resolutions passed by the whole plebeian _concilium_ in their

own interests, and to give this body the character of a guild which,

within certain limits, could pass rules binding on all its members.

So long as the resolutions of this body were purely self-regarding,

did not infringe on the public law, and were voluntarily accepted by

all the members, they did not need formal ratification by any higher

authority. But sometimes resolutions were passed which the Plebs was

incapable of carrying into effect; in this case they were mere petitions

to the only recognised legislative power, the consuls presiding over

the _comitia centuriata_. We have an instance of this procedure, dated

within forty years of the establishment of the tribunate, which shows

how far-reaching the demands of this _concilium_ might be. In 456 B.C.

the tribune Icilius elicited from this assembly a resolution to the

effect that the Aventine, until that time state property,[368] should

be assigned to the Plebs. With this petition he approached the consuls

and the Senate, and requested them to gain the consent of the _comitia

centuriata_ in due form of law.[369] The same procedure must be imagined

for any _plebiscita_, which refer to matters affecting the whole

community, down to the year 287, when, as we shall see, these resolutions

of the Plebs were first raised to a level with the laws. In framing its

resolutions the Plebs was as dependent on the tribune as the _comitia_

was on the consuls; the _rogatio_ of the magistrate could only be

answered by the “Yes” or “No” of the burgesses. Its elective proceedings

were similar to those of the whole people. The tribune, before he

quitted office, nominated successors and submitted their names to the

Plebs. The differences were that the voting was by _curiae_ and not by

_centuries_, that the _patrum auctoritas_ had here no place, and that

the formal taking of the auspices was not necessary to the validity of

the proceedings, although doubtless the tribunes employed their right of

taking private auspices[370] to give a sanctity to the act of the Plebs.

In one further and less important respect was this community of the Plebs

modelled on the larger community of the Populus. In the year when the

tribunate was established, the magistrates of the Plebs were given two

assistants,[371] who bore the same relation to them as the two quaestors

did to the consuls. Their functions were as undefined as those of the

quaestors; but, when the powers of the tribunate were slightly better

established, these delegates seem, like their prototypes, to have been

concerned mainly with criminal jurisdiction and finance. They also kept

the archives of the Plebs in the temple of Ceres, and it was thought that

it was from this that their name _aediles_ (possibly not their original

title) was derived.[372] They served the tribunes in the exercise of

their _coercitio_, seizing the offender or inflicting the death penalty.

We find them performing this function in the trial of Coriolanus.[373]

After the tribunes had gained criminal jurisdiction, they assisted them

as delegates.[374] Their original financial functions are somewhat

indefinable; but such functions are suggested by their office at the

temple of Ceres and the archives which they guarded there—functions which

find exact parallels in those of the quaestors at the temple of Saturn.

It may have been one of their duties to exercise some supervision over

the forced labour (_operae_) of the Plebeians, and this may have led to

an early connexion with the repair of roads and buildings. Their police

functions, their supervision of the market, above all their maintenance

of the state religion amongst the masses, can hardly be referred to this

early period.[375]

The aediles may originally have been nominated by their superiors; but

election by the _concilium_ of the Plebs, under the presidency of a

tribune, is the only form of their appointment which is known to us. The

office was legalised with the tribunate, and its holder possessed the

same personal sanctity as the tribune, conferred first by oath and then

by law.[376]

For the power of these plebeian magistrates rests wholly on a

superstitious belief, consciously applied to fill up a gap in the public

law. It might have been thought that magistrates elected by a large body

of the citizens, whose powers were recognised by public law, would have

been sufficiently protected by their position. But the Romans were slaves

to legal formulae. The Plebs was not the community, nor even at first

a legalised corporation within the city; the tribunes were, therefore,

not magistrates of the state, and wore none of the insignia of office;

they had not the _imperium_ and the _auspicia_, and therefore could

not be protected by the law of treason (_perduellio_), which avenged

wrongs done to the state in the person of its magistrate. A substitute

must be found in a religious sanction. Perhaps Rome is the only state

that has definitely invested the demagogue or “champion of the people”

with a halo of sanctity. This was first given him by the people whom he

championed. The Plebs on the Mons Sacer had sworn an oath to destroy any

one who destroyed their tribune—an oath which they perpetuated to their

descendants. The sanctity of the tribunes, therefore, had originally

no valid religious ground, for the Populus had not pronounced such an

offender to be _sacer_, nor had the oath been taken by a magistrate

on behalf of the whole community. It was simply a proclamation by a

section of the people of the infringement of rights which they held would

justify a revolution; and the declaration was accepted by the Roman state

when it recognised the tribunate. But the inviolability of plebeian

magistrates did not gain legal recognition until the reinstitution of

the office in 449 B.C. Then the violator of the majesty of the tribune

was made a _sacer homo_[377] in its later sense of “an outlaw” for

the whole community, and the aediles and the plebeian _decemviri_ were

protected by the same ban. Yet the Roman jurists held that this law

did not give _sacrosanctitas_, at least to the tribune; that was given

by the “ancient oath” of the Plebs; the law only announced a penalty

which might be carried out by any member of the community. This view

was of importance, because it recognised the capital jurisdiction of

the Plebs in all cases where their magistrates had been injured; and,

although subsequent practice was unfavourable to this jurisdiction, its

legality cannot be questioned. The tribune was himself the defender of

his own personal inviolability and that of his fellow-officers; for it

was he who summarily inflicted the punishment or proposed the penalty to

the _concilium_. The crime of infringing plebeian liberties could not

originally have borne a definite name; in later times it was brought

under the vague conception of _majestas_, “the infringement of the

greatness of the state.” The penalty might be a capital one, while the

acts construed as infringement might be very slight indeed. Physical

compulsion, blows, an attempt at murder were all obvious cases; but

forcible resistance to a tribune’s will[378] came under this head, and,

after the law which guaranteed the right of meeting to the Plebs, any

act, whether of magistrates or individuals, which interrupted a meeting

of the Plebs summoned by a tribune.[379]

In fact, during the earliest years of the struggles of the Plebs, the

rights of the corporation are represented only by the powers of the

tribune, through whom alone it claimed official recognition; and thus

from 494 to the epoch of the decemviral legislation (451) the tribunate

is engaged in efforts to gain a better representation of the plebeian

community, and to secure an equality in the administration of the

law, which should render the clumsy negative system of the constant

interposition of their _auxilium_ less necessary.

The first attempt seems to have been to some extent secured by the

_plebiscitum_ passed by Publilius Volero in 471, which enacted that the

_concilium_ of the Plebs, instead of meeting as before by _curiae_,

should now meet by tribes (_tributim_).[380] As this was a purely

self-regarding ordinance, it probably did not require the consent of

Senate and people,[381] and we are told that it was looked on with

disfavour by the Patricians. The grounds of their objections are not

easily fathomed, nor is the gain to the Plebs brought about by the

change particularly clear.[382] The number of the tribes at this time is

unknown, but it was probably twenty-one. This growth had been brought

about by an abandonment of the Servian principle. After the Roman

territory, lost in great part during the earliest years of the Republic,

had been regained, a wholly new subdivision of the _ager Romanus_ had

been adopted. The four Servian tribes were confined to the ring-wall

of the city, and the land without the walls was now separated into

_tribus_, which were called the country (_rusticae_) as opposed to the

city tribes (_tribus urbanae_). Sixteen of these country tribes bear the

names of patrician _gentes_;[383] they must have been named from the

clan settlements and were obviously the first created. It is affirmed by

Dionysius[384] that, at the time of the trial of Coriolanus (491 B.C.),

the number of the tribes was twenty-one; but it has been conjectured with

some plausibility that the twenty-first was added in this very year 471,

when the tribe was first used for voting purposes, in order to create

an inequality of votes, and that it bears its _local_ name (Clustumina

or Crustumina) in memory of the secession of the Plebs to the Sacred

Mount.[385] The Plebs may have petitioned the consuls to add one more to

the divisions of the state; for it was they alone who could effect the

change, the creation of a tribe being an administrative act which none

but the magistrates of the community could carry out.

These tribes were, like the earlier ones, local, and although there is

no evidence for the view that landholders alone were included in them,

yet the seventeen country tribes would naturally consist for the most

part of peasant proprietors, and would, therefore, be a better organ

for plebeian sentiment than the _curiae_, throughout which the landless

plebeian clients might still be the representatives of their patrician

lords.

This change soon produced an unexpected consequence. At some period

between the passing of the Publilian law and the enactment of the Twelve

Tables, the new plebeian practice was adopted as a basis for gatherings

of the whole people. The Populus began to meet by tribes, and to form a

_comitia tributa_. The Twelve Tables prove that this body early gained

judicial competence;[386] but the history of the great change which

placed a democratic assembly of the Populus by the side of the timocratic

_comitia centuriata_ is wholly unknown to us. It is probable that the

original power of this new parliament was not extensive, and it may have

been confined originally to the hearing of minor judicial appeals from

the magistrates. About twenty years later it was found convenient to

entrust the election of quaestors to the new assembly. Its attractiveness

lay in the ease and rapidity with which the people might be summoned to

meet by tribes within the walls, as compared with the stately formalities

of the gathering of the army in the Campus.

The second great movement of the tribunate was an attempt to secure an

equal administration of the law.

In the year 462 the tribune C. Terentilius Arsa made a proposal to the

_concilium_ of the Plebs that a commission of five should be appointed to

clear up the forms of legal procedure, and by this means to fix limits

to the judicial caprice of the consuls;[387] and in the next year a

resolution of the whole college of tribunes was framed to this effect.

It was obviously a measure which demanded the sanction of the Populus,

and this it was for many years impossible to obtain. Even apart from the

fact that the tribunes apparently intended their commission to consist

wholly of Plebeians, it was felt to be a proposal that was revolutionary

in the extreme; for it was nothing less than the demand for a code, for

a written system of rules which should replace the elastic principles of

justice, which were one of the mainstays of patrician power, and which

would vulgarise the awful sanctity of the consulate and the pontifical

college. It must also have been felt that codification must mean a

compromise—some recognition of plebeian claims which would weaken the

position of the ruling caste. Hence a stout opposition on the part

of magistrates and Senate, and the bill, if it passed the _concilium

plebis_ at all,[388] was not allowed to go a step further. But the Plebs

persisted in its efforts, and its answer to patrician opposition was to

return year after year the same tribunes, formulating the same demands.

In 458 B.C. the college approached the consuls on the subject, and asked

them to formulate their objections to the bill;[389] for the moment there

was the hope of an agreement, but at the end of the year the consent

required was again refused. Three years more of agitation followed,

and then it was felt that the original proposal must be abandoned. The

tribunes expressed their willingness for the initiative to be taken by

the patrician magistrates, and for a joint commission to be appointed.

Meanwhile the years of discussion had caused the original proposal to

assume larger dimensions. Reform which should bear a wholly non-party

character was suggested in place of a mere codification. Information of

the Greek Codes was to be gathered by a commission of three—a suggestion

which was valuable in many ways; it was useful for purposes of delay, it

gave an appearance of learning and thoroughness to the work, and perhaps

some such basis was felt to be absolutely necessary for framing rules on

points which the very indefinite Roman procedure had never considered.

The return of the envoys in 452, after an absence of three years, renewed

the demands of the tribunes for the instant prosecution of the work. A

controversy between the orders as to the constitution of the commission

ended in a compromise. Plebeians might be admitted; but, as a matter of

fact, the patrician influence was so strong that the first board elected

by the _comitia centuriata_ appears to have consisted wholly of members

of that order.[390] The appointment of the commission was a complete

abrogation of the constitution. The consulship was abolished; the Plebs

gave up their tribunate, some have thought in perpetuity, misled by the

hope that the publication of the law would render such a check on the

consular power unnecessary, and as a part of the compromise with the

Patricians, and stipulated only that certain privileges which they had

already gained by law should not be abrogated.[391] The provisional

government appointed for the year 451 took the form of a board of ten

men with consular power but not subject to the law of appeal.[392] The

work was done within the year, and the code posted up on ten tablets

(_tabulae_) and published to the masses. The people were summoned and

told that the commission had created equal rights for all,[393] and the

whole body of law was passed as a _lex_ by the _comitia centuriata_.

But at the end of the year it was declared that the work was not quite

complete. Again the constitution was suspended, and a new board of ten

appointed, this time inclusive of Plebeians.[394] Two new sections were

added, thus bringing up the number of the _tabulae_ to twelve; these also

were confirmed by the centuries, and after the government of the “wicked

ten” had abused its power and fallen, were published with the rest of the

code by the consuls of 448.[395]

Although the law of the Twelve Tables (_lex duodecim tabularum_) was

for the most part a codification of existing rules, it marks a distinct

advance in the recognition of plebeian rights, and thus was of the utmost

political importance in framing rules for the whole state the question

before the commissioners was whether the customary law embodied in the

code should be that which prevailed in the patrician, or that which held

good in the plebeian community. In almost every important particular

plebeian law was preferred. The reason was not any regard for plebeian

rights (the decemvirs re-enacted the rule forbidding marriage between

the orders), but the simplicity and the capacity for universality of

this law. The code is not a hap-hazard collection, but a scientific

compilation; the aim was a “levelling” of the law, an arbitrament between

classes, such as had often formed the task of the Greek legislator; and

in effecting this object the commissioners showed more wisdom than any

Greek legislator of whom we hear. The idea of legislating for a class, or

the still more foolish idea of perfect logical adjustment, are strikingly

absent. The code is thoroughly Roman in its caution and good sense, its

respect for the past, which it disregards only when old custom violates

the rules of common sense, and its judicious contempt for symmetry. Such

a code as this might be changed in detail, but was never likely to be

repealed. It remained the “fountain of all public and private law,” and

justly, for, according to Tacitus, it was the “consummation of equal

right.”[396] Its rhythmical sentences were learnt by heart by school-boys

in Cicero’s time.[397] Elaborate commentaries were written on it by the

republican lawyer Aelius, and the imperial jurist Gaius, and by Labeo,

who stands at the meeting-point between the two _régimes_; and in the

sixth century A.D. Justinian, in the old age of the world, still respects

many of the provisions which date from the infancy of Roman legislation.

The Twelve Tables contained the “whole body of Roman law” (_corpus omnis

Romani juris_),[398] not in the sense that they were a complete and

detailed system, but in the sense that they pronounced on all important

or disputed points in all departments of law, private, criminal, and

public.

The ordinances of private law embraced regulations as to marriage and

family relations, testamentary disposition, inheritance, debt, and usury.

The marriage recognised was the consensual contract of the Plebeians

strengthened by _usus_. Emancipation was recognised as a consequence of

the threefold sale of a son, and a form of adoption, probably already

in use in the plebeian community, was thus made universal.[399] The law

also facilitated the emancipation of slaves who had purchased their

freedom and so helped to create the wealthy freedman class.[400] Perfect

freedom of testamentary disposition, in accordance with the plebeian

form of testament _per aes et libram_, was recognised; while in intestate

inheritance and in guardianship the rights of the _agnati_, common to the

Plebeians, were recognised as prior to those of the _gentiles_; sometimes

peculiar to the Patricians.[401] The freedom of contract, guaranteed

by the Tables, implied the old harsh law of debt; but the penalty was

defined, the procedure carefully described, and every loophole of escape

offered to the debtor.[402] At the same time usury was severely punished;

ten per cent (_unciarium fenus_) was recognised as the legal rate of

interest, and the usurer who exceeded it was punished more severely than

the thief and compelled to restore fourfold.[403] The rules of procedure

for all civil actions were laid down, such as the summons of parties and

witnesses and the length of the trial. But the law did not reveal the

forms of action; these were still hidden with the pontiffs.

In criminal matters the Twelve Tables recognise the old principle of

self-help; a limb was to be given for a limb; but for minor wrongs

compensation was allowed, and twenty-five asses were full reparation

for a common assault. But there are survivals of the old religious

penalties; the man who destroyed standing corn was hanged as an offering

to Ceres,[404] and the involuntary homicide could expiate his guilt with

the _piaculum_ of a ram. The law was heavy on the abuse of freedom of

speech; for death was the penalty for incantations or libels against

a citizen.[405] The same penalty was inflicted on the _judex_ who had

accepted bribes;[406] while for _perduellio_ in the form of “rousing

an enemy against the state or handing over a citizen to the enemy” the

death penalty was also enjoined.[407] Reference must have been made to

criminal procedure since the _quaestores parricidii_ were mentioned in

the law.[408]

The principle of the constitution which guaranteed a fair trial to

the citizen was upheld; for we have the statement of Cicero that the

Twelve Tables granted the _provocatio_ “from every kind of court and

punishment”[409] In two other particulars they limited the jurisdiction

of the people. It was maintained that no law or criminal sentence (for

this took the form of a _lex_) should be directed against a private

individual (_privilegia ne inroganto_), and it was laid down that

no capital sentence could be passed except “by the greatest of the

_comitia_” (_nisi per maximum comitiatum_),[410] i.e. by the assembly

of the centuries. Later interpretation held that this clause struck

a blow at the capital jurisdiction of the _concilium plebis_; it is,

however, doubtful how far this extraordinary jurisdiction, resting on

a religious sanction, could be affected by a law which, as we shall

see, never treated the Plebs as a political corporation at all. Another

important constitutional provision of this code was one which granted the

right of free association. The Twelve Tables, while severely prohibiting

secret gatherings (_coetus nocturni_)[411] which had presumably

treasonable designs, permitted the free formation of guilds (_collegia_

or _sodalicia_). Such colleges were to require no special charter; the

rules which they made for their own guidance should be valid, provided

they were no infringement of the public law.[412] Lastly, the code

guaranteed the sovereignty of the popular assembly by declaring that its

last enactment should be final, without setting limits to the sphere of

its legislative activity.[413] This was a token of the Roman conviction

that there should be no finality in law. The Twelve Tables themselves

were not guarded against repeal. It was a forecast of further development

following the course of the old, of a constitution whose stages were

marked by elasticity and growth, not by rigidity and revolution.

The new law does not appear to have made mention of the Plebs and its

tribunes, for they were hardly a part of the constitution; and yet, in

the crisis that followed the fall of the decemvirate, the question that

gathered round these ignored powers was great enough to obscure every

other issue.

The Plebs might have been satisfied with the compromise, had it not been

for the unfortunate attempt at despotism made by the second board of

decemvirs. It is impossible to believe that this usurpation was really

countenanced by the Patriciate, and that they aimed at staving off

indefinitely the inevitable assaults of the Plebeians on the magistracy

by indefinitely perpetuating this rule of ten annual commissioners

without appeal; but they tolerated their rule, and backed up their

excuses for not retiring, until two acts of tyranny raised mutinies in

both the Roman camps. The plebeian soldiers cast off their allegiance

to the ruling board, and first, under military leaders of their own

choosing, occupied the Aventine; they then, accompanied by the majority

of the unarmed Plebeians of Rome, wended their way a second time to the

Mons Sacer (449 B.C.). The Senate in alarm sent two of its members,

Valerius and Horatius, who were of good repute among the Plebs, to

ask their wishes. The answer was: amnesty for the breach of military

discipline involved in the secession; the restoration of the _provocatio_

(which meant the dissolution of the decemvirate) and of the tribunician

power.[414] The demands had not increased since the first secession;

protection was all that the Plebeians yet demanded.

Everything was granted; the _decemviri_ were forced by the Senate to

an unwilling abdication; the tribunate was re-established, and, as

no plebeian magistrate existed, the unusual step was taken of having

the election conducted by the _pontifex maximus_.[415] A resolution

was then elicited from the Plebs by the tribune Duilius that consuls

should be created subject to the right of appeal. It was accepted by

the Senate,[416] who appointed an _interrex_. The _comitia_ of the

centuries returned Valerius and Horatius. Under the guidance of the

consuls the assembly proceeded to pass a series of laws (the _leges

Valeriae Horatiae_) which more than satisfied the demands of the Plebs.

One guaranteed the perpetuity of the _provocatio_ by the enactment that

“no one should in future create a magistrate from whom there was no

appeal; any one who created such a magistrate should be protected by

no law sacred or profane and might be slain with impunity.”[417] The

law was evidently called out by the unlimited power of the decemvirate

which had just been abolished; it did more than merely affirm the first

_lex Valeria_,[418] for it rendered the creation of an absolute judicial

power by the _rogatio_ of a magistrate a capital offence, even when this

proposal had been accepted by the people. But the scope of the appeal

was not extended; the “creation” of a magistrate referred to election

sanctioned by the people, and did not, therefore, affect the right of

the consul to nominate a dictator from whom there was no appeal; nor did

it extend the limits of the appeal beyond the original boundaries—the

_pomerium_ or, at the utmost, the first milestone from the city.[419]

Two other laws aimed at giving a legal existence to the plebeian

community. One gave a legal sanction to the _sacrosanctitas_ of the

plebeian magistrates by enacting that any one who injured them should

be _sacer_ to the whole community.[420] Another gave a more binding

character to the formal resolutions passed at the _concilium_ of the

Plebs. Its import is obscure, but there can be no doubt that it marks

an important stage in the validity of _plebiscita_. We are told that

it was meant to settle the controverted question whether resolutions

of the Plebs were binding on Patricians;[421] and that it did this by

enacting that “whatsoever the Plebs commanded by its tribes should bind

the people (_ut, quod tributim plebes jussisset, populum teneret_).” It

is possible that our authority has misunderstood the purport of this law,

but hardly likely that the misconception is so great as that imagined

by some modern theorists. It is certain that there is no implication

that _plebiscita_ had from this time the force of _leges_; it was agreed

that the resolutions of the Plebs did not gain the force of Acts of

Parliament until more than 160 years later. Recent attempts to interpret

the Valerio-Horatian law have been based on the supposition that it was

concerned with some mode in which a _plebiscitum_ might become a _lex_,

that it facilitated the transformation of a resolution of the Plebs

into a binding law of the Populus, through an intermediary channel,

consuls or Senate.[422] The wording of the law (hardly so remote from

its original as has been supposed) scarcely gives a warrant for this

view; it speaks only of giving a “binding character” to such resolutions.

It must be remembered that at this time the plebeian community was not

really bound by the resolutions of its own _concilium_, for this was

not a legally recognised corporation. The Valerio-Horatian law may

have made it such, a corporate body passing resolutions binding on all

its members. But a law which is valid for a corporation is valid for

those outside the corporation. The ordinances, it is true, which have

this binding force must refer immediately only to the affairs of the

community which dictates them. This was the case with _plebiscita_ now.

All self-regarding ordinances of the Plebs bound the Plebeians in the

first degree, the Patricians, if it infringed existing rights, in the

second degree. All _plebiscita_ of a wider scope must still have been

mere petitions to the consuls.[423] We can hardly conceive that the law

discriminated accurately between what was possible to the Plebs and what

was not; it was sufficient to recognise the already established maxim

that corporations could frame their own rules _dum ne quid ex publica

lege corrumpant_.[424] From this time onwards, down to 287, whenever we

find _plebiscita_ affecting matters of national interest or creating

changes in the constitution,[425] we must assume that they were brought

by the magistrates before the people to be ratified as laws; although

doubtless the undefined limits of plebeian prerogative were often

exceeded.

The first great utterance of the Plebs, which followed the

Valerio-Horatian law, was one of this character, for it attached a

criminal (and therefore a public) penalty to a derogation of duty to the

Plebeians. On the proposal of M. Duilius, the tribune, the Plebs resolved

that “any one who left the Plebs without tribunes or created a (plebeian)

magistrate without appeal should be scourged and executed.”[426] It

was a mode by which the Plebs tried to guard itself from any possible

surrender of its liberties such as that which had created the decemvirate.

The Plebs, thus secured in its original privileges, recognised as a

corporate body, and feeling, as a result of the Twelve Tables, that its

law was in the main the law of the state, began to aim at something

more than protection. From this time begins the continuous struggle

for the complete equalisation of the two orders. It was opened by the

tribune Canuleius in the year 445. He rightly held that social must

precede political equality, and proposed in the assembly of the Plebs

that marriage should be permitted between Patricians and Plebeians.[427]

The only reasonable objection which the consuls, representing the

feeling of the Patriciate, could bring forward against the measure, was

the time-worn pretext that was said to have influenced the decemvirs

in inserting the prohibition in their code, viz. that the Plebeians

had no auspices, and that the disappearance of a pure race would mean

a break in the chain which connected the state with heaven.[428] But

the pretext expressed the real fears of the Patriciate. Intermarriage

between the orders would break down the religious barrier which guarded

the consulship; this was the prize for which the Plebs was striving. In

fact a suggestion, emanating from the tribunes at the beginning of the

year, had already assumed the form of a _rogatio_ to the effect that

“the people should have power to choose consuls at its pleasure either

from the Plebs or from the _patres_.”[429] Over the marriage question

the usual contest ensued, and with the usual result. The consuls led

the opposition as long as they could; at last the Senate was beaten,

the magistrates were forced to bring the question before the people,

and marriage between the orders was legalised.[430] The tribunes

followed up their victory by pressing their measure for the opening

of the consulship. It was felt that open resistance would be useless;

and a device was resorted to which illustrates the Roman genius for

adaptability, for dignified political chicanery, and for satisfying at

the same time the demands of reason and prejudice. The immediate evil

felt was the irruption of the Plebeians into supreme office; but there

must have been for some time a growing sense that the executive machinery

of the state was by no means equal to the demands made on it. The two

consuls were at once military leaders, the sole administrators of the

higher civil and criminal jurisdiction, and the sole officials entrusted

with the duty of registering and distributing burdens over the citizens.

Such a combination of functions could not continue to exist with the

widening of Rome’s political horizon, and the first attempt was now made

at a division of the military, judicial, and registrative duties of the

supreme magistrate.

To effect this object, and at the same time to make a concession to

the Plebs, it was decided to replace the consulship by the office of

military tribune with consular power (_tribunus militum consulari

potestate_).[431] The change, permission for which may have been granted

by a special _lex_,[432] consisted in raising some of the ordinary

legionary delegates of the consul to a level with the commanding

officer and suppressing the latter.[433] These extraordinary officials

were elected at the _comitia centuriata_ under the presidency of one

of the chief magistrates, whether consul or consular tribune, for the

time being. The normal number, six, was no doubt suggested by the six

tribunes of the old _legio_ or army. But this full number was not always

appointed. The question how many military tribunes should be created

for a given year depended on the exigencies of the state. Sometimes

three were elected, sometimes four, at other times six, a number which

seems never to have been exceeded.[434] It rested formally with the

magistrate who guided the elections, practically perhaps with the Senate,

to determine how many of these officers should be appointed for any

given year. As military posts below the supreme command had long been

opened to the Plebs, it goes without saying that Plebeians were eligible

to the consular tribunate; their admission, in fact, had been one of

the motives of the change.[435] Yet the patrician element was almost

exclusively present in the earlier years of this magistracy, and to

the end of the office it largely preponderated. Even if we reject the

account that it was not until forty-five years after the institution of

the consular tribunate (400 B.C.) that a Plebeian was actually elected

to this post,[436] it is a significant fact that while purely patrician

colleges are found, there is no instance of one composed exclusively of

Plebeians. This fact may be simply a demonstration of the aristocratic

character of elective office, and shows that the masses preferred the

safety of the state to the advancement of their own order; for military

skill and experience, and even knowledge of law, were still chiefly to be

sought in the ranks of the _patres_.[437] Gradually, however, the Plebs

became familiarised with power and displayed greater trust in the leaders

of their own order. The year 400 does in any case mark a turning point in

the history of the office. After it we find more Plebeians elected; in

399 and 396 they form a majority of the college, and events were tending

to the demand, which was soon to be made, that a place in the supreme

magistracy should be reserved for candidates who represented a majority

of the citizens.

The power exercised by the consular tribunes was, briefly, that of the

consuls; they had the same _jus_, _imperium_, and _potestas_,[438] and

they enjoyed their insignia.[439] They presided over the elections

for their successors, and took the auspices on these occasions, the

recognition of a Plebeian’s right to consult the people _auspicato_

breaking down the last barriers of religious prejudice.[440] If this

magistracy was considered inferior in dignity to the consulship and only

a “shadow” of that high office,[441] it must have been only because it

was shared by more colleagues, and from a conviction of its occasional

character. Yet it was noted as a curious fact that, from constitutional

reasons unknown even to the early annalists, no consular tribune had ever

enjoyed a triumph.[442]

It must not be supposed that the consulship was in any way abolished

by this exceptional magistracy; it was simply kept in suspense during

certain years. Each year it was decided afresh whether consuls or

military tribunes should be appointed. Tradition represents the decision

as resting with the Senate;[443] but whether it exercised this function

by law,[444] or merely as the advising body of the magistrate who was to

hold the election, is unknown. This discretionary power shows that the

tribunate was regarded as an exceptional office; but its military and

political convenience caused it practically to replace the consulship

during the years when it was in vogue. The period of the military

tribunate is one of seventy-seven years, extending from 444 to 367. These

years show twenty-two consular _collegia_, and fifty-one of military

tribunes.[445] The stop-gap lasted for half a century, and the compromise

was maintained until in 367 a final settlement of the plebeian claim was

reached.

Meanwhile the consulship had been modified in yet another way—one which

was detrimental to the power of the office, but was meant to preserve

influence to the Patriciate. In the institution of the censorship we find

at work the same double motive which had influenced the government in

creating the consular tribunate—the sense that two men could not manage

all the business of a growing state, and the desire not to share with the

Plebeians the unimpaired powers of the supreme office.

It had been the custom for the king, and subsequently for the consuls,

to make an estimate, at certain intervals of time, of the effective

military strength of the state. This was originally a registration of

all the patrician burgesses; but, after the Servian reforms, it became

a numbering of all the citizens, for the purpose of discovering those

liable to military service, the class in which they should be enrolled,

and, in case of tribute being imposed, the liability of each household

to the property-tax (_tributum_). For these purposes it was sufficient

for the heads of families (_patres familiarum_) to be summoned and

questioned. Their answers formed the record, in accordance with which

military and financial burdens were imposed, and political influence in

the _comitia centuriata_ was determined. The recognition of citizenship

itself was dependent on this enrolment, for it is probable that from the

earliest times membership of a tribe was the symbol of the possession

of civic rights; while now the fact that the tribe was the basis of the

_concilium plebis_ and the _comitia tributa_ gave a vote to every one

enrolled in one of the _tribus_. The importance which the census had

assumed was not compatible with the consular performance of its duties.

The judicial and military functions of the annual magistrates interfered

both with its regularity and its completeness, and the temporary

suspension of the consulship offered a chance of vesting these duties

in other magistrates. In the year 443 B.C. two new officials, called

_censores_, were created,[446] who were to be elected by the _comitia_

of the centuries. The office was to be confined to the Patriciate,

possibly because it was felt that the solemn ceremony of purification

(_lustratio_) which closed the census could not adequately be performed

by plebeian hands. No one as yet dreamed of the future greatness of the

office; its beginnings were small,[447] and the tribunes offered no

opposition to the law which established an office which was to become the

greatest of political prizes.

The censorship, though a standing, was in a certain sense an occasional

office, for the tenure of power by the censors could never have been

coterminous with the interval between each census—an interval usually

of five years. The original tenure is unknown; possibly the censor

was supposed to continue in office until his duties were fulfilled.

It was not until the year 434 B.C. that the censorship was limited to

a definite term of a year and a half by a _lex Aemilia_, proposed by

the dictator Mamercus Aemilius.[448] The censors’ duties were as wide

as the ramifications of the census. His primary function was that of

registration, but one of the meanings of registration was the imposition

of pecuniary burdens on individuals; hence the censor’s first connexion

with finance. Another consequence of registration was of still greater

import. Qualifications of character must always have been considered

a necessary condition for the performance of even the meanest public

functions at Rome. Admission to the centuries and to the tribes, and

therefore the exercise of the active rights of voting and serving in

the army, was possible only to one not stained by crime. The secular

ground, one quite sufficient for a self-respecting community, was perhaps

assisted by the religious idea that no impure man should be present at

the mystic ceremony of purification. Such a testing of character could

have been performed only in the most cursory way by the consuls. But now

that a magistracy had been appointed which had leisure for a rigorous

scrutiny, it was inevitable that the rule of manners (_regimen morum_)

should in time overshadow every other aspect of the censor’s office, and

that this dual papacy should become the most dignified and dreaded organ

of the state.

Beyond the establishment of the consular tribunate, the censorship and

the transference of the election of quaestors to the newly created

_comitia tributa_,[449] the years 449 to 377 are not marked by any

great constitutional changes. They were years of compromise but not

of settlement; the restlessness of the reforming party was stayed by

the constant pressure of war. It could not accuse the military policy

of the governing class, which led its armies to victory and made all

needful concessions to plebeian talent. It was the epoch of wars with the

Aequians, Volscians, and Etruscans, of the siege of Veii, in which Rome

made her first great territorial conquest, and of the Celtic migrations,

which laid Rome in ashes, but made her the bulwark of the central Italian

nations against northern invasions, and gave her strength to remodel

and reform the Latin coalition of which she was the immediate head.

Occasional discontent was at this, as at every other period, excited by

the need of land distributions and the pressure of debt. Sp. Maelius

fell in 439 and M. Manlius in 384; but the government, though it would

not have its hand forced, was not wholly unwilling to make concessions

to poverty. The citizen troops on foreign service were given pay in 406,

and the land conquered from Veii was some years later allotted amongst

the Plebs. While the discontent of the poor was thus kept in check, the

government could afford to make harmless and unavoidable concessions

to Plebeians of higher rank. In 421 the number of quaestors was raised

from two to four; for, owing to the prolonged absence of armies, it was

thought fit that a special quaestor should be assigned to each consul

in the field.[450] The tribunes demanded that a fixed proportion of

these places should be reserved for Plebeians. This was refused, but the

compromise was arrived at that any of the four places might be filled

from the Plebs, a concession which was unavoidable, for the absurdity

of admitting Plebeians to the highest rank in the state and excluding

them from this subordinate duty must have been felt. The permission did

not, however, take effect until twelve years later (409 B.C.); but then

Plebeians were returned for three out of four vacancies at the _comitia_

of the tribes.[451] The first regular elective magistracy, however

limited its powers and dignity, had now been won for the Plebeians.

Meanwhile the provisional government drifted on. It won military

successes; it was gradually building up a hegemony in Italy. But the

effect of war now, as at an earlier period, was ruinous to those to whom

this government had to look for support. In spite of the palliative

measures of pay for the army and occasional land distribution, a large

portion of the yeoman farmers were again in a pitiable state. We cannot

now speak of the social grievances of Plebeians as a whole; those members

of the Plebs who began to occupy the benches of the Senate,[452] and

who aspired to the military tribunate or quaestorship, were as wealthy

as their patrician compeers. The race for office was keen between the

members of the two orders. The Patrician had now to beg for his place on

the curule chair. The first law against canvassing (_ambitus_) was passed

in 432; it prohibited a candidate from whitening his toga with chalk

before the elections[453]—a primitive measure, but one which shows that

the plebeian electorate had at last become a power. But though isolated

members of the Plebs were soaring into the upper regions, the mass of

this body still consisted of bankrupt agriculturists. The situation

which they regarded as desperate was, apart from the harsh law of debt,

the normal condition of a modern proletariate. But the ideal of the

ancient citizen was higher than our own; they wished to be proprietors of

freehold land or of land held on an undisturbed tenure from the state.

This discontent was the opportunity of the richer Plebeians,[454] who

wished to secure perfect political equality between the orders. In

378 loud cries were raised against the capitalists; a war with the

Volsci gave the tribunes the chance of impeding the military levy, and

some temporary concessions to debtors were unwillingly wrung from the

government.[455] When the next year saw the burdens reimposed, two

ambitious Plebeians, L. Sextius and C. Licinius Stolo, came forward

with the proposition that the only sure way of permanently remedying

the evils of the lower class was by securing one of the places in the

consulship to members of their own order. They formulated a programme

which was an attractive jumble of social and political measures. The

_plebiscitum_ which they promulgated promised a temporary relief from

debt, proposed a limit to the amount of public land which any individual

might possess, and declared that the military tribunate should be

abolished, the consulship should be restored, and that one of the two

consuls _must_ henceforth be a Plebeian. This comprehensive measure,

which attacked land, capital, and office,[456] was easily met. The two

tribunes stood alone, and their eight colleagues were without difficulty

induced to put their veto on the revolutionary measure. But it was

soon shown that, if the veto might be used against the interest of the

Plebs, the negative powers of the tribunes might be employed, with as

much legality and as little justification, to paralyse the life of the

state. The two tribunes, in virtue of the paramount authority which their

_sacrosanctitas_ had in the course of years secured to them, forbade the

election of any magistrate of the people. For five years successively

Licinius and Sextius were re-elected tribunes; during the whole of this

period (375-371) the only magistrates appointed were the plebeian aediles

and tribunes, and the state was without a head. A war with Velitrae led

the tribunes to relax their anarchical edict for the year 370. But the

long stand had reduced the number of vetoing tribunes to five. Another

clause was now added to the original proposals to the effect that the

two _duumviri sacris faciundis_, the keepers of the sacred books, the

storehouse which furnished political intrigue with its surest weapons,

should be raised to ten, and that half of these _decemviri_ should be

Plebeians.[457] None of the tribunes of 368 seems to have been prepared

to offer any effectual resistance to any of the provisions of the

law,[458] and the Patricians, driven from their first stronghold, took

refuge in a dictator. It was a sign that they had lost the game, for the

dictatorship could not be perpetuated. But it required the most strenuous

exertions of the leaders of the Plebs to keep their followers up to the

level of their original demands. The spiritless commons who had failed to

elect members of their own order, consular tribunes and quaestors, when

it had been in their power to do so, were for dividing the proposals,

passing the social measures at once and leaving the question of the

consulship for a future time. But Licinius and Sextius were not prepared

to be social leaders without reward. The only division to which they

subjected the complicated measure was to carry in 368 the clause sharing

the new decemvirate with the Plebeians; the other clauses were postponed.

In the next year, 367 B.C., they were tribunes for the tenth time. The

opposition was worn out, and the Licinio-Sextian laws were passed in

their original form. The greatest of plebeian victories had been won;

from this time the Plebs is really the dominant element in the state.

It was of little consequence that it did not assert its omnipotence

for some years yet; all that it desired further was bound to come. As

the magistracy was far more powerful than the people at Rome, the body

that exercised the whole of the highest prohibitive power through the

tribunate, and monopolised half of the highest positive authority in the

consulship, was bound to be supreme. Even the purely patrician privilege

of the _patrum auctoritas_ was no great disturbance to this power. It

became more a matter of form, the more the plebeian element entered into

the Senate.

The Licinian laws had the unexpected effect of adding two new

magistracies to the state. These were known as the Praetorship and

the Curule Aedileship. The institution of the former office was a

constitutional change of the first magnitude, being nothing less than the

addition of a third colleague to the consuls. It is represented as having

been a part of the compromise between the orders, the Plebeians allowing

a third purely patrician magistracy to be created in exchange for the

confiscated consulship.[459] But, even if we assume that the praetorship

was originally confined to the _patres_—a statement which has with some

reason been doubted[460]—it was necessity rather than ambition which

directed the creation of the office. The impossibility of the consul’s

paying adequate attention to duties of jurisdiction had been one of the

motives which led to the establishment of the consular tribunate. Now

that the consulship was permanently restored, provision had to be made

for the permanent severance of civil jurisdiction from that office.

As jurisdiction implied the _imperium_, and all the possessors of

this regal prerogative were necessarily colleagues, the praetor was a

colleague of the consuls. He was created, as the phrase ran, “under the

same auspices,”[461] and therefore by the same assembly and under the

same formalities of election. He bore the early title of the consuls,

which, in spite of its inappropriateness to his usual peaceful duties,

came to cling to him exclusively. But, though he was needed chiefly

for purposes of jurisdiction, one branch of the _imperium_ could not

be singled out to the exclusion of the others. The praetor possesses

all the aspects of the supreme power, the capacity for command in war,

for initiating legislation, for summoning and transacting business with

the Senate. How these powers were harmonised with, and subordinated

to, the similar powers of the consuls, will be described elsewhere.

The main business of the original praetor did not clash with that of

his colleagues, for, though in theory perhaps the consul never did

lose his control of civil jurisdiction,[462] practice decided against

his interference with it, and the praetor was for more than 120 years

(366-242) the sole civil magistrate of Rome. At the close of this period

a second praetor was appointed, whose duty it was to decide cases between

foreigners (_peregrini_) and between Roman citizens and foreigners—an

addition rendered necessary by the growth of Rome’s territory and

business, and which has no further political significance.

The praetorship, if it ever was a patrician preserve, did not long remain

such. Thirty years after its institution (337 B.C.) a Plebeian, Q.

Publilius Philo, successfully contested the post. The objections of the

presiding magistrate, whether based on law or custom, were overruled and

Plebeians declared eligible for the office.[463]

The appointment, simultaneously with the praetor, of two additional

aediles, secured nothing for the Patricians, but a great deal for the

state. The military duties which prevented the consul from administering

justice and attending to registration, also hindered him from devoting

himself to the _minutiae_ of police and market regulations. It was an

anomaly that these duties, so far as they fell to the lot of any special

officials, should be in the hands of two plebeian assistants of the

tribune.[464] It was from them that the two new magistrates borrowed

their names, and the similarity of title and functions had the happy

result of fusing into one corporation the plebeian officials and the

new magistrates of the community. The latter were known in later times

as _aediles curules_, from the curule chair which they had in common

with the magistrates vested with the _imperium_. The Patriciate is said

to have been the original condition of eligibility to the office;[465]

but this was very soon abandoned in favour of the practice that the

curule aediles should be chosen in alternate years from Patricians and

Plebeians.[466] Later still—at what period is uncertain—the magistracy

was annually accessible to members of both orders.

The accession of Plebeians to the consulship had been the key of the

position; it had broken down the last pretended religious scruple, and

a few years saw the patrician defences of every office overthrown. The

year 356 witnessed the first plebeian dictator;[467] no law appears to

have been required to secure the Plebs admission to this office, the

qualification for the consulship being considered _ipso jure_ to open

a passage to the dictatorship. In 351 a Plebeian was first admitted to

the censorship;[468] but mere admissibility was not enough, and in 339

one of the laws passed by the plebeian dictator, Q. Publilius Philo,

_reserved_ one of the two places in the censorship for members of his

order.[469] How difficult it would have been for the Plebs to secure

this office, apart from such a regulation, is shown by the fact that

the first exclusively plebeian censorship dates only from the year 131

B.C.[470] With respect to the occupation of both of the consular places

by Plebeians, a doubt seems to have existed of its legality, which was

removed in 342 by a _plebiscitum_ passed into law which declared “uti

liceret consules ambos plebeios creari.”[471] We have already noticed

their capture of the praetorship in 337 B.C.

There was but one more fort, but that a strong one, which the plebeian

_principes_ had to storm. This was the circle of the priestly colleges.

The two religious guilds of paramount political importance, apart from

the decemvirate (_sacris faciundis_) to which Plebeians had been already

admitted, were those of the pontiffs and augurs. The pontifical college,

which in the monarchy had consisted of five members, was now composed of

four, the place occupied by the expelled king having never apparently

been filled up.[472] The augural college, which should have consisted of

six, was also at this time reduced by some accident to four members.[473]

In the year 300 B.C. two tribunes, Q. and Cn. Ogulnius, brought forward

a bill for raising the number of the augurs to nine, and that of the

pontiffs to eight, the added numbers in either case to be taken from the

Plebs.[474] The measure was understood to be primarily in the interest of

the noble Plebeians, already in possession of curule office and triumphal

ornaments, but it did to a large extent assist the rights of the Plebs as

a corporation; for the religious veto henceforth, though it might be used

by the nobility against the interests of the lower orders, could not be

employed by the Patricians to check plebeian measures. The bill, which

became law, established the religious equality of the two orders, so far

as religion was a political force. It is true that, as we shall see, the

Plebs were always excluded from certain non-political priesthoods; but,

on the other hand, one of the religious colleges of national importance

established in later times—the _triumviri epulones_, created in 196

B.C. for preparing the _epulum Jovis_ and banquets given in honour of

the other gods[475]—seems from its origin to have been composed wholly

of Plebeians.[476] The change, however, though indirectly favourable

to the Plebeians, was not of a democratic character; the priesthoods

were kept within a few distinguished families through the principle of

appointment. The method was that of cooptation, which we find existing

in 453 B.C.[477] It was not until the last century of the Republic that

the _lex Domitia_ (104 B.C.) ventured to give the election, not indeed to

the Populus, but to a special assembly composed of seventeen out of the

thirty-five tribes chosen by lot, and even then the forms of nomination

by the head of the college, and of cooptation by its members, were

scrupulously observed.[478]

In sketching the invasion of office and honours by the plebeian nobles

we have ventured to anticipate somewhat the chronological sequence of

events. The commons, too, had during this period their share of political

emancipation. Thirty-nine years before the Ogulnian law something had

been done by legislation to increase the independence of the Plebs as a

corporation, and to free the assemblies of the Populus from the legal

control of the Patricians. In 339 B.C. a plebeian dictator, Q. Publilius

Philo, carried a law making _plebiscita_ binding on the people (_ut

plebiscita omnes Quirites tenerent_).[479] The meaning of this law was

clearly not understood by our authority. Its pretended wording is almost

identical with that of the Valerio-Horatian measures;[480] but what was

done on that occasion did not need repetition, and the object of the

Publilian law must have been to secure more immediate legal validity to

such measures passed by the Plebs as did not refer to that corporation

alone—to make, in fact, the stages of transition from _plebiscitum_ to

_lex_ a matter of formal and not of real importance.[481] Another law

passed by the same dictator had reference to the _patrum auctoritas_.

We have seen what this power had become, probably from the dawn of the

Republic.[482] It was a claim by the patrician members of the Senate to

accept or reject any measure of the Populus, when assembled by curies

or by centuries. It never affected _plebiscita_, and we know too little

of the _comitia tributa_ to say whether the measures of that body were

submitted to it or not;[483] the hampering of the _comitia curiata_ was

by this time of no importance, and the _lex Publilia_ confined itself

to the application of the _auctoritas_ to the centuries. By this law it

was enacted that the consent to laws passed by the _comitia centuriata_

should be given before the voting commenced.[484] This provision was

shortly afterwards (perhaps in 338 B.C.) extended by a _lex Maenia_ to

elections.[485] It is evident that neither of these provisions could

have made the _auctoritas_ nugatory, for it was not more difficult for a

section of the Senate to decline to submit a question to the people than

to reject it when passed. The provisions may, however, be a sign that the

_auctoritas_ was becoming a mere form; but its formal character was due

to the rapidly increasing preponderance of Plebeians in the Senate.

But though the popular assemblies were thus free from patrician control,

and the magistrates, subject only to the self-imposed limitation of

taking advice from the Senate, could elicit any utterance they pleased

from the _comitia_, there was one grave defect in the existing system

of legislation which called for remedy. The plebeian magistracy, which

circumstances had raised to a pre-eminence above all other powers,

had not the freedom of the other magistrates. The _rogationes_ of the

tribunes, when accepted by the Plebs, still required some further

sanction to become laws. This anomaly might have been remedied in one

of two ways; either by giving the tribune the right of summoning and

presiding over meetings of the people, making him in fact a magistrate

of the community, and thus abolishing all distinction between Populus

and Plebs, or removing the impediments which still hampered tribunician

legislation in the _concilium plebis_. The conservatism of the Roman

character, and perhaps the class feeling reviving again at the beginning

of the third century in consequence of a renewed outbreak of the Plebs,

caused the latter course to be adopted. In the year 287 the commons,

oppressed by debt, again seceded—this time to the Janiculum. The plebeian

dictator appointed to effect a settlement met social grievances by a

political concession. He passed a law which most of our authorities

represent as verbally identical with the Valerio-Horatian and Publilian

laws,[486] but which seems to have been of a very different and far

more definite character. The lawyers[487] regard the _lex Hortensia_

as the measure which gave decrees of the Plebs the full force of laws.

Henceforth there is between _lex_ and _plebiscitum_ merely a difference

of form and name; their _potestas_ is the same,[488] and even legal

formulae use the words as practically identical.[489] A law could repeal

a plebiscite and a plebiscite a law;[490] in the case of a conflict

between the two, the rule of the Twelve Tables held good that the later

repealed the earlier ordinance. It is not, therefore, surprising to

find that in the annalists, even those with pretensions to accuracy,

Populus and Plebs are used indifferently,[491] and it is only at times

by carefully noting who is the presiding magistrate on the particular

occasion, that we can determine whether the ordinance he elicits is

a decree of the _comitia_ or the _concilium_. The difference in the

legislative powers of the two assemblies came in course of time to be

little more than a difference in magisterial right;[492] while the

_comitia_ of the centuries and tribes were presided over by magistrates

with the _imperium_, the _concilium_ of the Plebs could be summoned

and addressed only by plebeian magistrates. Yet the past history of

the various assemblies was decisive as to their elective and judicial

functions, and practice tended still further to fix the scope of the

powers of each. But at the time of the _lex Hortensia_ the difference

between the two parliamentary sovereigns—the Populus and the Plebs—was

even more marked; for the Patricians, excluded from the _concilium_,

were still a considerable body, and the tribune had not yet become, like

the magistrates with _imperium_, quite a servant of the Senate.[493]

The Hortensian law had at the time a political significance which

it afterwards lost; but it had a hidden import which was of vital

consequence for the history of the state. By perpetuating the Plebs as

a separate corporation it preserved the tribunate in all its primitive

majesty, and thus maintained the power subsequently to be used as an

instrument of senatorial and monarchical rule.

The tendencies of plebeian emancipation were almost all in favour of

the upper classes; that it never was a democratic movement or one led

by democratically-minded men is most strikingly evidenced by the utter

indifference shown by the leaders to the economic evils under which the

masses laboured, and which they used as instruments to further their

ambition. Solon abolished slavery for debt at a single stroke; to the

Roman it is a sacred thing, an expression of _Romana fides_; while

the Greek προστάτης struggled for others, the Roman patron fought for

himself. But continued pressure caused some tentative efforts to be made

in the latter half of the fourth century to mitigate the curse of debt.

A _lex Marcia_ of 352 B.C. gave the debtor the right of summary arrest

(_manus injectio_) of the usurer, to recover the fourfold penalty for

the illegal interest;[494] while in 326 an attempt was made to give the

future masters of the world the mastery over their bodies. In 313 a _lex

Poetilia_ was passed forbidding the imprisonment of _nexi_ who could

swear that they had reasonable hopes of ultimately satisfying their

creditors;[495] it therefore abolished most contracts on the security of

the person; although the _addictio_ and imprisonment of debtors by order

of the court continued through the Republic and into the Empire. But if

the harshness of the law was one evil, ignorance of its forms was another

almost equally great. An accident supplied the remedy. The pontiff Appius

Claudius had reduced the forms of action to writing; but the book meant

for the guidance of the pontiffs was immediately revealed to the profane

eyes of the people by his clerk, one Cn. Flavius, a freedman’s son. The

fraudulent secretary also posted up a tablet containing a list of court

days (_dies fasti_) on which the _legis actio_ was possible.[496] The

_penetralia_ of the pontifical college had now become the property of the

masses, and although the chief pontiffs still furnished for centuries

the highest names to Roman law, they professed the science openly,[497]

and secular teaching soon tore the veil from the hidden features of

jurisprudence.

But, apart from these minor benefits, the mass of the Plebeians did not

share to any very large extent in the triumph of their order. The true

reason of the individual Roman being thus thrust into the background

can only be given by a review of the causes, soon to be treated, which

moulded both the theory and practice of the developed Roman constitution.

It must suffice here to trace the painfully inadequate results which were

secured by these centuries of agitation by a glance at the distribution

of power in the Roman state, at the date of the war with Pyrrhus, or the

outbreak of the struggle with Carthage.

The old nobility had relaxed its exclusive hold of office, but only to

give room for the still firmer grasp of a new. This was an aristocracy

of mixed origin, composed indifferently of the leading patrician and

plebeian families. The test of _nobilitas_ was the capacity to point to

ancestors who had held office which carried with it the right to sit on

the curule chair. Its outward sign was the possession of the so-called

_jus imaginum_. The _imagines_ themselves were portrait-masks in wax,

modelled from the face of the dead, and their primary use was for the

purpose of funeral ceremonies. The original was moulded to be placed

on the face of the deceased, and so to perpetuate his life in another

world; but a copy was kept to give verisimilitude to his fictitious

resurrection, which the burial of one of his descendants demanded. At

such funerals actors were hired to represent the mighty dead; they wore

their _imagines_, and were adorned with the insignia of the offices which

these had filled in life, with the _toga praetexta_ of the consul or

praetor, the purple robe or the _toga picta_ of the censor, and they sat

on curule chairs round the Forum to listen to the orator who reminded

them of their own great deeds.[498] As such a public funeral in the Forum

was a concession of the state, the prospective right of having one’s mask

exhibited, which constituted the _jus imaginum_, was a strictly legal

privilege. It was possessed by all those who had been in possession of

the _toga praetexta_ and the _sella curulis_[499]—the dictator, master of

the horse, consul, censor, praetor, and curule aedile. But, even apart

from the occasions of such solemn mummery, the _imago_ was a sign of the

rank of its possessor. When not funereally employed it was suspended on

a bust in the wings of the central hall (_atrium_) of the noble’s house.

Beneath each portrait ran an inscription (_titulus_ or _elogium_), which

gave the names and deeds of the person represented. The portraits were

joined by lines along the walls which showed the _stemma_ or family

tree. It is possible that this display in the _atrium_ was looked on as

a public exhibition, and it may originally have been limited by law; but

in later times it seems best to conclude that the funerary exhibition

alone was the subject of the specific _jus_.[500] But this outward token

of nobility, which at Rome took the place of the modern title of honour,

was of importance as emphasising the distinction between the _nobiles_

and the _ignobiles_, in drawing the plebeian aristocracy closer to

the patrician, which before the date of the Licinian laws had been in

exclusive possession of this right, and in asserting the hereditary claim

to office which the Roman electorate was only too ready to recognise.

The acceptance of the claim was less dangerous than it is in most modern

states, since primogeniture was not recognised in the transmission of

honours,[501] and it was the capable and not the elder son whom the

vote of the _comitia_ raised to the curule chair. The claim too might

become dimmed by disuse, and the Plebeian whose immediate ancestors had

held high rank showed a brighter scutcheon than the Patrician who was

connected with a noble _stemma_ by ignoble links.[502] But the Patriciate

itself conferred a kind of nobility, and one that, whatever its basis,

might have been justified by office, for there could have been few

members of the order who could not point to curule ancestors in the past.

Although the Plebeian who _first_ secured curule office, and thus ceased

to be _ignobilis_, was called a _novus homo_, the designation seems

never to have been applied to the member of a patrician _gens_.[503]

Nobility, if once secured, could never be lost; but the hereditary claim

to the suffrage of the electors was of little avail if unaccompanied by

exceptional merit or by wealth. The claims of the latter were in fact

given a kind of legal recognition by the rule established about the time

of the first Punic war, that the cost of the public games should not

be defrayed exclusively by the treasury.[504] The aedileship, whether

curule or plebeian, was, as we shall see, not an obligatory step in the

ascending scale of the magistracies; but, as it was held before the

praetorship and the consulship, it is obvious that the brilliant display

given to the people by the occupant of this office would often render

fruitless the efforts of his less fortunate competitors, and that this

legitimised bribery would exclude from office both the poorer _nobiles_

and the struggling _novus homo_.[505]

The idea of a privileged nobility, which closed its ranks to new men,

had become fixed by the date of the second Punic war.[506] By the close

of that war the old stock had reached its maturity and had begun to

decline; and, although men like Cato or Cicero might force themselves to

the front by pertinacity and ability, or the belief in privilege might

be rudely shaken by the people’s thrusting into the coterie a Varro or

a Marius, the aristocrats came to look on the introduction of new blood

as a pollution to the order.[507] Time, which purifies all things, had

made the slave-blood of the successful Plebeian as blue as that of the

descendant of kings by whom he sat.

But, in spite of this unholy alliance of the ancient foes, the

distinction between the orders never was abolished. In Cicero’s time

the separate rights of the Patricians could still be enumerated and

defended by the orator. Besides the shadowy and ineffective powers of

the _patrum auctoritas_ and the _interregnum_, they possessed half the

places in the great priestly colleges, which were shared between the

orders, and certain priests—the Rex Sacrorum, the three great Flamines

and the Salii—were chosen exclusively from their ranks.[508] The place

of the Patriciate in the theory of the constitution—as illustrated by

the _auctoritas_ and the _interregnum_—is, as we shall see, very great

indeed; but this theoretical importance conferred very little power, and

the Plebeians, with their exclusive magistracies closed to the _patres_,

with one place reserved for them in the consulship and censorship and the

other accessible to their order, had won in the long race for honours.