aristocratic rule which in the first instance it established, be
justly called a victory of the former --metoeci-- or the -plebs-,
the revolution even in this respect bore by no means the character
which we are accustomed in the present day to designate as democratic.
Pure personal merit without the support of birth and wealth could
perhaps gain influence and consideration more easily under the regal
government than under that of the patriciate. Then admission to
the patriciate was not in law foreclosed; now the highest object of
plebeian ambition was to be admitted into the dumb appendage of
the senate. The nature of the case implied that the governing
aristocratic order, so far as it admitted plebeians at all, would
grant the right of occupying seats in the senate not absolutely to
the best men, but chiefly to the heads of the wealthy and notable
plebeian families; and the families thus admitted jealously guarded
the possession of the senatorial stalls. While a complete legal
equality therefore had subsisted within the old burgess-body, the
new burgess-body or former --metoeci-- came to be in this way divided
from the first into a number of privileged families and a multitude
kept in a position of inferiority. But the power of the community now
according to the centuriate organization came into the hands of that
class which since the Servian reform of the army and of taxation had
borne mainly the burdens of the state, namely the freeholders, and
indeed not so much into the hands of the great proprietors or into
those of the small cottagers, as into those of the intermediate class
of farmers--an arrangement in which the seniors were still so far
privileged that, although less numerous, they had as many voting-
divisions as the juniors. While in this way the axe was laid to the
root of the old burgess-body and their clan-nobility, and the basis
of a new burgess-body was laid, the preponderance in the latter rested
on the possession of land and on age, and the first beginnings were
already visible of a new aristocracy based primarily on the actual
consideration in which the families were held--the future nobility.
There could be no clearer indication of the fundamentally conservative
character of the Roman commonwealth than the fact, that the revolution
which gave birth to the republic laid down at the same time the
primary outlines of a new organization of the state, which was in
like manner conservative and in like manner aristocratic.
Notes for Book II Chapter I
1. I. IX. The Tarquins
2. The well-known fable for the most part refutes itself. To a
considerable extent it has been concocted for the explanation of
surnames (-Brutus-, -Poplicola-, -Scaevola-). But even its apparently
historical ingredients are found on closer examination to have been
invented. Of this character is the statement that Brutus was captain
of the horsemen (-tribunus celerum-) and in that capacity proposed
the decree of the people as to the banishment of the Tarquins; for,
according to the Roman constitution, it is quite impossible that a
mere officer should have had the right to convoke the curies. The
whole of this statement has evidently been invented with the view of
furnishing a legal basis for the Roman republic; and very ill invented
it is, for in its case the -tribunus celerum- is confounded with the
entirely different -magister equitum- (V. Burdens Of The Burgesses
f.), and then the right of convoking the centuries which pertained
to the latter by virtue of his praetorian rank is made to apply to
the assembly of the curies.
3. -Consules- are those who "leap or dance together," as -praesul- is
one who "leaps before," -exsul-, one who "leaps out" (--o ekpeson--),
-insula-, a "leap into," primarily applied to a mass of rock fallen
into the sea.
4. The day of entering on office did not coincide with the beginning
of the year (1st March), and was not at all fixed. The day of
retiring was regulated by it, except when a consul was elected
expressly in room of one who had dropped out (-consul suffectus-);
in which case the substitute succeeded to the rights and consequently
to the term of him whom he replaced. But these supplementary consuls
in the earlier period only occurred when merely one of the consuls had
dropped out: pairs of supplementary consuls are not found until the
later ages of the republic. Ordinarily, therefore, the official year
of a consul consisted of unequal portions of two civil years.
5. I. V. The King
6. I. XI. Crimes
7. I. V. Prerogatives of the Senate
8. I. V. The King
9. I. V. The King
10. I. VI. Dependents and Guests
11. I. VI. Political Effects of the Servian Military Organization
12. I. V. The Senate as State Council
13. I. V. Prerogatives of the Senate
14. That the first consuls admitted to the senate 164 plebeians, is
hardly to be regarded as a historical fact, but rather as a proof that
the later Roman archaeologists were unable to point out more than 136
-gentes- of the Roman nobility (Rom, Forsch. i. 121).
15. It may not be superfluous to remark, that the -iudicium
legitimum-, as well as that -quod imperio continetur-, rested on
the imperium of the directing magistrate, and the distinction only
consisted in the circumstance that the -imperium- was in the former
case limited by the -lex-, while in the latter it was free.
16. II. I. Restrictions on the Delegation of Powers
CHAPTER II
The Tribunate of the Plebs and the Decemvirate
Material Interests
Under the new organization of the commonwealth the old burgesses had
attained by legal means to the full possession of political power.
Governing through the magistracy which had been reduced to be their
servant, preponderating in the Senate, in sole possession of all
public offices and priesthoods, armed with exclusive cognizance of
things human and divine and familiar with the whole routine of
political procedure, influential in the public assembly through the
large number of pliant adherents attached to the several families,
and, lastly, entitled to examine and to reject every decree of the
community,--the patricians might have long preserved their practical
power, just because they had at the right time abandoned their claim
to sole legal authority. It is true that the plebeians could not but
be painfully sensible of their political disabilities; but undoubtedly
in the first instance the nobility had not much to fear from a purely
political opposition, if it understood the art of keeping the
multitude, which desired nothing but equitable administration and
protection of its material interests, aloof from political strife.
In fact during the first period after the expulsion of the kings we
meet with various measures which were intended, or at any rate seemed
to be intended, to gain the favour of the commons for the government
of the nobility especially on economic grounds. The port-dues were
reduced; when the price of grain was high, large quantities of corn
were purchased on account of the state, and the trade in salt was made
a state-monopoly, in order to supply the citizens with corn and salt
at reasonable prices; lastly, the national festival was prolonged for
an additional day. Of the same character was the ordinance which we
have already mentioned respecting property fines,(1) which was not
merely intended in general to set limits to the dangerous
fining-prerogative of the magistrates, but was also, in a significant
manner, calculated for the especial protection of the man of small means.
The magistrate was prohibited from fining the same man on the same
day to an extent beyond two sheep or beyond thirty oxen, without
granting leave to appeal; and the reason of these singular rates
can only perhaps be found in the fact, that in the case of the man of
small means possessing only a few sheep a different maximum appeared
necessary from that fixed for the wealthy proprietor of herds of oxen
--a considerate regard to the wealth or poverty of the person fined,
from which modern legislators might take a lesson.
But these regulations were merely superficial; the main current flowed
in the opposite direction. With the change in the constitution
there was introduced a comprehensive revolution in the financial and
economic relations of Rome, The government of the kings had probably
abstained on principle from enhancing the power of capital, and had
promoted as far as it could an increase in the number of farms.
The new aristocratic government, again, appears to have aimed from
the first at the destruction of the middle classes, particularly of
the intermediate and smaller holdings of land, and at the development
of a domination of landed and moneyed lords on the one hand, and of
an agricultural proletariate on the other.
Rising Power of the Capitalists
The reduction of the port-dues, although upon the whole a popular
measure, chiefly benefited the great merchant. But a much greater
accession to the power of capital was supplied by the indirect system
of finance-administration. It is difficult to say what were the
remote causes that gave rise to it: but, while its origin may
probably be referred to the regal period, after the introduction of
the consulate the importance of the intervention of private agency
must have been greatly increased, partly by the rapid succession of
magistrates in Rome, partly by the extension of the financial action
of the treasury to such matters as the purchase and sale of grain and
salt; and thus the foundation must have been laid for that system of
farming the finances, the development of which became so momentous and
so pernicious for the Roman commonwealth. The state gradually put
all its indirect revenues and all its more complicated payments and
transactions into the hands of middlemen, who gave or received a round
sum and then managed the matter for their own benefit. Of course only
considerable capitalists and, as the state looked strictly to tangible
security, in the main only large landholders, could enter into such
engagements: and thus there grew up a class of tax-farmers and
contractors, who, in the rapid growth of their wealth, in their
power over the state to which they appeared to be servants, and
in the absurd and sterile basis of their moneyed dominion, quite
admit of comparison with the speculators on the stock exchange
of the present day.
Public Land
The concentrated aspect assumed by the administration of finance
showed itself first and most palpably in the treatment of the public
lands, which tended almost directly to accomplish the material and
moral annihilation of the middle classes. The use of the public
pasture and of the state-domains generally was from its very nature
a privilege of burgesses; formal law excluded the plebeian from
the joint use of the common pasture. As however, apart from
the conversion of the public land into private property or its
assignation, Roman law knew no fixed rights of usufruct on the part
of individual burgesses to be respected like those of property, it
depended solely on the pleasure of the king, so long as the public
land remained such, to grant and to define its joint enjoyment; and it
is not to be doubted that he frequently made use of his right, or at
least his power, as to this matter in favour of plebeians. But on the
introduction of the republic the principle was again strictly insisted
on, that the use of the common pasture belonged in law merely to the
burgess of best right, or in other words to the patrician; and, though
the senate still as before allowed exceptions in favour of the wealthy
plebeian houses represented in it, the small plebeian landholders and
the day-labourers, who stood most in need of the common pasture, had
its joint enjoyment injuriously withheld from them. Moreover there
had hitherto been paid for the cattle driven out on the common pasture
a grazing-tax, which was moderate enough to make the right of using
that pasture still be regarded as a privilege, and yet yielded no
inconsiderable revenue to the public purse. The patrician quaestors
were now remiss and indulgent in levying it, and gradually allowed it
to fall into desuetude. Hitherto, particularly when new domains were
acquired by conquest, allocations of land had been regularly arranged,
in which all the poorer burgesses and --metoeci-- were provided for;
it was only the land which was not suitable for agriculture that was
annexed to the common pasture. The ruling class did not venture
wholly to give up such assignations, and still less to propose them
merely in favour of the rich; but they became fewer and scantier, and
were replaced by the pernicious system of occupation-that is to say,
the cession of domain-lands, not in property or under formal lease for
a definite term, but in special usufruct until further notice, to the
first occupant and his heirs-at-law, so that the state was at any time
entitled to resume them, and the occupier had to pay the tenth sheaf,
or in oil and wine the fifth part of the produce, to the exchequer.
This was simply the -precarium- already described(2) applied to the
state-domains, and may have been already in use as to the public land
at an earlier period, particularly as a temporary arrangement until
its assignation should be carried out. Now, however, not only did
this occupation-tenure become permanent, but, as was natural, none but
privileged persons or their favourites participated, and the tenth and
fifth were collected with the same negligence as the grazing-money.
A threefold blow was thus struck at the intermediate and smaller
landholders: they were deprived of the common usufructs of burgesses;
the burden of taxation was increased in consequence of the domain
revenues no longer flowing regularly into the public chest; and those
land-allocations were stopped, which had provided a constant outlet
for the agricultural proletariate somewhat as a great and well-regulated
system of emigration would do at the present day. To these
evils was added the farming on a large scale, which was probably
already beginning to come into vogue, dispossessing the small agrarian
clients, and in their stead cultivating the estates by rural slaves;
a blow, which was more difficult to avert and perhaps more pernicious
than all those political usurpations put together. The burdensome and
partly unfortunate wars, and the exorbitant taxes and task-works to
which these gave rise, filled up the measure of calamity, so as either
to deprive the possessor directly of his farm and to make him the
bondsman if not the slave of his creditor-lord, or to reduce him
through encumbrances practically to the condition of a temporary
lessee of his creditor. The capitalists, to whom a new field was
here opened of lucrative speculation unattended by trouble or risk,
sometimes augmented in this way their landed property; sometimes they
left to the farmer, whose person and estate the law of debt placed in
their hands, nominal proprietorship and actual possession. The latter
course was probably the most common as well as the most pernicious;
for while utter ruin might thereby be averted from the individual,
this precarious position of the farmer, dependent at all times on the
mercy of his creditor--a position in which he knew nothing of property
but its burdens--threatened to demoralise and politically to
annihilate the whole farmer-class. The intention of the legislator,
when instead of mortgaging he prescribed the immediate transfer of
the property to the creditor with a view to prevent insolvency and to
devolve the burdens of the state on the real holders of the soil,(3)
was evaded by the rigorous system of personal credit, which might
be very suitable for merchants, but ruined the farmers. The free
divisibility of the soil always involved the risk of an insolvent
agricultural proletariate; and under such circumstances, when all
burdens were increasing and all means of deliverance were foreclosed,
distress and despair could not but spread with fearful rapidity among
the agricultural middle class.
Relations of the Social Question to the Question between Orders
The distinction between rich and poor, which arose out of these
relations, by no means coincided with that between the clans and the
plebeians. If far the greater part of the patricians were wealthy
landholders, opulent and considerable families were, of course,
not wanting among the plebeians; and as the senate, which even then
perhaps consisted in greater part of plebeians, had assumed the
superintendence of the finances to the exclusion even of the patrician
magistrates, it was natural that all those economic advantages, for
which the political privileges of the nobility were abused, should go
to the benefit of the wealthy collectively; and the pressure fell the
more heavily upon the commons, since those who were the ablest and
the most capable of resistance were by their admission to the senate
transferred from the class of the oppressed to the ranks of
the oppressors.
But this state of things prevented the political position of the
aristocracy from being permanently tenable. Had it possessed the
self-control to govern justly and to protect the middle class--as
individual consuls from its ranks endeavoured, but from the reduced
position of the magistracy were unable effectually, to do--it might
have long maintained itself in sole possession of the offices of
state. Had it been willing to admit the wealthy and respectable
plebeians to full equality of rights--possibly by connecting the
acquisition of the patriciate with admission into the senate--both
might long have governed and speculated with impunity. But neither
of these courses was adopted; the narrowness of mind and short-
sightedness, which are the proper and inalienable privileges of
all genuine patricianism, were true to their character also in Rome,
and rent the powerful commonwealth asunder in useless, aimless,
and inglorious strife.
Secession to the Sacred Mount
The immediate crisis however proceeded not from those who felt the
disabilities of their order, but from the distress of the farmers.
The rectified annals place the political revolution in the year 244,
the social in the years 259 and 260; they certainly appear to have
followed close upon each other, but the interval was probably longer.
The strict enforcement of the law of debt--so runs the story--excited
the indignation of the farmers at large. When in the year 259 the
levy was called forth for a dangerous war, the men bound to serve
refused to obey the command. Thereupon the consul Publius Servilius
suspended for a time the application of the debtor-laws, and gave
orders to liberate the persons already imprisoned for debt as well as
prohibited further arrests; so that the farmers took their places in
the ranks and helped to secure the victory. On their return from the
field of battle the peace, which had been achieved by their exertions,
brought back their prison and their chains: with merciless rigour
the second consul, Appius Claudius, enforced the debtor-laws and his
colleague, to whom his former soldiers appealed for aid, dared not
offer opposition. It seemed as if collegiate rule had been introduced
not for the protection of the people, but to facilitate breach of
faith and despotism; they endured, however, what could not be changed.
But when in the following year the war was renewed, the word of the
consul availed no longer. It was not till Manius Valerius was
nominated dictator that the farmers submitted, partly from their awe
of the higher magisterial authority, partly from their confidence in
his friendly feeling to the popular cause--for the Valerii were one of
those old patrician clans by whom government was esteemed a privilege
and an honour, not a source of gain. The victory was again with the
Roman standards; but when the victors came home and the dictator
submitted his proposals of reform to the senate, they were thwarted
by its obstinate opposition. The army still stood in its array, as
usual, before the gates of the city. When the news arrived, the long
threatening storm burst forth; the -esprit de corps- and the compact
military organization carried even the timid and the indifferent along
with the movement. The army abandoned its general and its encampment,
and under the leadership of the commanders of the legions--the
military tribunes, who were at least in great part plebeians--marched
in martial order into the district of Crustumeria between the Tiber
and the Anio, where it occupied a hill and threatened to establish
in this most fertile part of the Roman territory a new plebeian city.
This secession showed in a palpable manner even to the most obstinate
of the oppressors that such a civil war must end with economic ruin
to themselves; and the senate gave way. The dictator negotiated an
agreement; the citizens returned within the city walls; unity was
outwardly restored. The people gave Manius Valerius thenceforth the
name of "the great" (-maximus-)--and called the mount beyond the Anio
"the sacred mount." There was something mighty and elevating in such
a revolution, undertaken by the multitude itself without definite
guidance under generals whom accident supplied, and accomplished
without bloodshed; and with pleasure and pride the citizens recalled
its memory. Its consequences were felt for many centuries: it was
the origin of the tribunate of the plebs.
Plebian Tribunes and Plebian Aediles
In addition to temporary enactments, particularly for remedying the
most urgent distress occasioned by debt, and for providing for a
number of the rural population by the founding of various colonies,
the dictator carried in constitutional form a law, which he moreover
--doubtless in order to secure amnesty to the burgesses for the
breach of their military oath--caused every individual member of the
community to swear to, and then had it deposited in a temple under the
charge and custody of two magistrates specially appointed from the
plebs for the purpose, the two "house-masters" (-aediles-). This law
placed by the side of the two patrician consuls two plebeian tribunes,
who were to be elected by the plebeians assembled in curies. The
power of the tribunes was of no avail in opposition to the military
-imperium-, that is, in opposition to the authority of the dictator
everywhere or to that of the consuls beyond the city; but it
confronted, on a footing of independence and equality, the ordinary
civil powers which the consuls exercised. There was, however, no
partition of powers. The tribunes obtained the right which pertained
to the consul against his fellow-consul and all the more against an
inferior magistrate,(4) namely, the right to cancel any command issued
by a magistrate, as to which the burgess whom it affected held himself
aggrieved and lodged a complaint, through their protest timeously
and personally interposed, and likewise of hindering or cancelling
at discretion any proposal made by a magistrate to the burgesses,
in other words, the right of intercession or the so-called
tribunician veto.
Intercession
The power of the tribunes, therefore, primarily involved the right
of putting a stop to administration and to judicial action at their
pleasure, of enabling a person bound to military service to withhold
himself from the levy with impunity, of preventing or cancelling the
raising of an action and legal execution against the debtor, the
initiation of a criminal process and the arrest of the accused while
the investigation was pending, and other powers of the same sort.
That this legal help might not be frustrated by the absence of the
helpers, it was further ordained that the tribune should not spend
a night out of the city, and that his door must stand open day and
night. Moreover, it lay in the power of the tribunate of the people
through a single word of a single tribune to restrain the adoption
of a resolution by the community, which otherwise by virtue of its
sovereign right might have without ceremony recalled the privileges
conferred by it on the plebs.
But these rights would have been ineffective, if there had not
belonged to the tribune of the people an instantaneously operative
and irresistible power of enforcing them against him who did not
regard them, and especially against the magistrate contravening them.
This was conferred in such a form that the acting in opposition to
the tribune when making use of his right, above all things the laying
hands on his person, which at the Sacred Mount every plebeian, man by
man for himself and his descendants, had sworn to protect now and in
all time to come from all harm, should be a capital crime; and the
exercise of this criminal justice was committed not to the magistrates
of the community but to those of the plebs. The tribune might in
virtue of this his judicial office call to account any burgess,
especially the consul in office, have him seized if he should not
voluntarily submit, place him under arrest during investigation or
allow him to find bail, and then sentence him to death or to a fine.
For this purpose the two plebeian aediles appointed at the same
time were attached to the tribunes as their servants and assistants,
primarily to effect arrest, on which account the same inviolable
character was assured to them also by the collective oath of the
plebeians. Moreover the aediles themselves had judicial powers like
the tribunes, but only for the minor causes that might be settled by
fines. If an appeal was lodged against the decision of tribune or
aedile, it was addressed not to the whole body of the burgesses, with
which the officials of the plebs were not entitled at all to transact
business, but to the whole body of the plebeians, which in this case
met by curies and finally decided by majority of votes.
This procedure certainly savoured of violence rather than of justice,
especially when it was adopted against a non-plebeian, as must in fact
have been ordinarily the case. It was not to be reconciled either
with the letter or the spirit of the constitution that a patrician
should be called to account by authorities who presided not over the
body of burgesses, but over an association formed within it, and that
he should be compelled to appeal, not to the burgesses, but to this
very association. This was originally without question Lynch justice;
but the self-help was doubtless carried into effect from early times
in form of law, and was after the legal recognition of the tribunate
of the plebs regarded as lawfully admissible.
In point of intention this new jurisdiction of the tribunes and the
aediles, and the appellate decision of the plebeian assembly therein
originating, were beyond doubt just as much bound to the laws as the
jurisdiction of the consuls and quaestors and the judgment of the
centuries on appeal; the legal conceptions of crime against the
community(5) and of offences against order(6) were transferred from
the community and its magistrates to the plebs and its champions.
But these conceptions were themselves so little fixed, and their
statutory definition was so difficult and indeed impossible, that
the administration of justice under these categories from its very
nature bore almost inevitably the stamp of arbitrariness. And now
when the very idea of right had become obscured amidst the struggles
of the orders, and when the legal party--leaders on both sides were
furnished with a co-ordinate jurisdiction, this jurisdiction must have
more and more approximated to a mere arbitrary police. It affected
in particular the magistrate. Hitherto the latter according to
Roman state law, so long as he was a magistrate, was amenable to no
jurisdiction at all, and, although after demitting his office he might
have been legally made responsible for each of his acts, the exercise
of this right lay withal in the hands of the members of his own order
and ultimately of the collective community, to which these likewise
belonged. Now in the tribunician jurisdiction there emerged a new
power, which on the one hand might interfere against the supreme
magistrate even during his tenure of office, and on the other hand
was wielded against the noble burgesses exclusively by the non-noble,
and which was the more oppressive that neither the crime nor its
punishment was formally defined by law. In reality through the
co-ordinate jurisdiction of the plebs and the community the estates,
limbs, and lives of the burgesses were abandoned to the arbitrary
pleasure of the party assemblies.
In civil jurisdiction the plebeian institutions interfered only so
far, that in the processes affecting freedom, which were so important
for the plebs, the nomination of jurymen was withdrawn from the
consuls, and the decisions in such cases were pronounced by the
"ten-men-judges" destined specially for that purpose (-iudices-,
-decemviri-, afterwards -decemviri litibus iudicandis-).
Legislation
With this co-ordinate jurisdiction there was further associated a
co-ordinate initiative in legislation. The right of assembling the
members and of procuring decrees on their part already pertained to
the tribunes, in so far as no association at all can be conceived
without such a right. But it was conferred upon them, in a marked
way, by legally securing that the autonomous right of the plebs to
assemble and pass resolutions should not be interfered with on the
part of the magistrates of the community or, in fact, of the community
itself. At all events it was the necessary preliminary to the legal
recognition of the plebs generally, that the tribunes could not be
hindered from having their successors elected by the assembly of the
plebs and from procuring the confirmation of their criminal sentences
by the same body; and this right accordingly was further specially
guaranteed to them by the Icilian law (262), which threatened with
severe punishment any one who should interrupt the tribune while
speaking, or should bid the assembly disperse. It is evident that
under such circumstances the tribune could not well be prevented from
taking a vote on other proposals than the choice of his successor and
the confirmation of his sentences. Such "resolves of the multitude"
(-plebi scita-) were not indeed strictly valid decrees of the
people; on the contrary, they were at first little more than are
the resolutions of our modern public meetings; but, as the distinction
between the comitia of the people and the councils of the multitude
was of a formal nature rather than aught else, the validity of these
resolves as autonomous determinations of the community was at once
claimed at least on the part of the plebeians, and the Icilian law for
instance was immediately carried in this way. Thus was the tribune of
the people appointed as a shield and protection for the individual,
and as leader and manager for all, provided with unlimited judicial
power in criminal proceedings, that in this way he might give emphasis
to his command, and lastly even pronounced to be in his person
inviolable (-sacrosanctus-), inasmuch as whoever laid hands upon
him or his servant was not merely regarded as incurring the vengeance
of the gods, but was also among men accounted as if, after legally
proven crime, deserving of death.
Relation of the Tribune to the Consul
The tribunes of the multitude (-tribuni plebis-) arose out
of the military tribunes and derived from them their name; but
constitutionally they had no further relation to them. On the
contrary, in respect of powers the tribunes of the plebs stood on a
level with the consuls. The appeal from the consul to the tribune,
and the tribune's right of intercession in opposition to the consul,
were, as has been already said, precisely of the same nature with the
appeal from consul to consul and the intercession of the one consul in
opposition to the other; and both cases were simply applications of
the general principle of law that, where two equal authorities differ,
the veto prevails over the command. Moreover the original number
(which indeed was soon augmented), and the annual duration of the
magistracy, which in the case of the tribunes changed its occupants
on the 10th of December, were common to the tribunes and the consuls.
They shared also the peculiar collegiate arrangement, which placed the
full powers of the office in the hands of each individual consul and
of each individual tribune, and, when collisions occurred within the
college, did not count the votes, but gave the Nay precedence over
the Yea; for which reason, when a tribune forbade, the veto of the
individual was sufficient notwithstanding the opposition of his
colleagues, while on the other hand, when he brought an accusation,
he could be thwarted by any one of those colleagues. Both consuls and
tribunes had full and co-ordinate criminal jurisdiction, although the
former exercised it indirectly, and the latter directly; as the two
quaestors were attached to the former, the two aediles were associated
with the latter.(7) The consuls were necessarily patricians, the
tribunes necessarily plebeians. The former had the ampler power, the
latter the more unlimited, for the consul submitted to the prohibition
and the judgment of the tribunes, but the tribune did not submit
himself to the consul. Thus the tribunician power was a copy of the
consular; but it was none the less a contrast to it. The power of
the consuls was essentially positive, that of the tribunes essentially
negative. The consuls alone were magistrates of the Roman people, not
the tribunes; for the former were elected by the whole burgesses, the
latter only by the plebeian association. In token of this the consul
appeared in public with the apparel and retinue pertaining to state-
officials; the tribunes sat on a stool instead of the "chariot seat,"
and lacked the official attendants, the purple border, and generally
all the insignia of magistracy: even in the senate the tribune had
neither presidency nor so much as a seat. Thus in this remarkable
institution absolute prohibition was in the most stern and abrupt
fashion opposed to absolute command; the quarrel was settled by
legally recognizing and regulating the discord between rich and poor.
Political Value of the Tribunate
But what was gained by a measure which broke up the unity of the
state; which subjected the magistrates to a controlling authority
unsteady in its action and dependent on all the passions of
the moment; which in the hour of peril might have brought the
administration to a dead-lock at the bidding of any one of the
opposition chiefs elevated to the rival throne; and which, by
investing all the magistrates with co-ordinate jurisdiction in
the administration of criminal law, as it were formally transferred
that administration from the domain of law to that of politics
and corrupted it for all time coming? It is true indeed that the
tribunate, if it did not directly contribute to the political
equalization of the orders, served as a powerful weapon in the hands
of the plebeians when these soon afterwards desired admission to the
offices of state. But this was not the real design of the tribunate.
It was a concession wrung not from the politically privileged order,
but from the rich landlords and capitalists; it was designed to ensure
to the commons equitable administration of law, and to promote a more
judicious administration of finance. This design it did not, and
could not, fulfil. The tribune might put a stop to particular
iniquities, to individual instances of crying hardship; but the fault
lay not in the unfair working of a righteous law, but in a law which
was itself unrighteous, and how could the tribune regularly obstruct
the ordinary course of justice? Could he have done so, it would have
served little to remedy the evil, unless the sources of impoverishment
were stopped--the perverse taxation, the wretched system of credit,
and the pernicious occupation of the domain-lands. But such measures
were not attempted, evidently because the wealthy plebeians themselves
had no less interest in these abuses than the patricians. So this
singular magistracy was instituted, which presented to the commons an
obvious and available aid, and yet could not possibly carry out the
necessary economic reform. It was no proof of political wisdom, but a
wretched compromise between the wealthy aristocracy and the leaderless
multitude. It has been affirmed that the tribunate of the people
preserved Rome from tyranny. Were it true, it would be of little
moment: a change in the form of the state is not in itself an evil
for a people; on the contrary, it was a misfortune for the Romans
that monarchy was introduced too late, after the physical and mental
energies of the nation were exhausted. But the assertion is not
even correct; as is shown by the circumstance that the Italian states
remained as regularly free from tyrants as the Hellenic states
regularly witnessed their emergence. The reason lies simply in the
fact that tyranny is everywhere the result of universal suffrage,
and that the Italians excluded the burgesses who had no land from
their public assemblies longer than the Greeks did: when Rome departed
from this course, monarchy did not fail to emerge, and was in fact
associated with this very tribunician orifice. That the tribunate had
its use, in pointing out legitimate paths of opposition and averting
many a wrong, no one will fail to acknowledge; but it is equally
evident that, where it did prove useful, it was employed for very
different objects from those for which it had been established.
The bold experiment of allowing the leaders of the opposition a
constitutional veto, and of investing them with power to assert it
regardless of the consequences, proved to be an expedient by which
the state was politically unhinged; and social evils were prolonged
by the application of useless palliatives.
Further Dissensions
Now that civil war was organized, it pursued its course. The parties
stood face to face as if drawn up for battle, each under its leaders.
Restriction of the consular and extension of the tribunician power
were the objects contended for on the one side; the annihilation of
the tribunate was sought on the other. Legal impunity secured for
insubordination, refusal to enter the ranks for the defence of the
land, impeachments involving fines and penalties directed specially
against magistrates who had violated the rights of the commons or
who had simply provoked their displeasure, were the weapons of the
plebeians; and to these the patricians opposed violence, concert with
the public foes, and occasionally also the dagger of the assassin.
Hand-to-hand conflicts took place in the streets, and on both sides
the sacredness of the magistrate's person was violated. Many families
of burgesses are said to have migrated, and to have sought more
peaceful abodes in neighbouring communities; and we may well believe
it. The strong patriotism of the people is obvious from the fact,
not that they adopted this constitution, but that they endured it,
and that the community, notwithstanding the most vehement convulsions,
still held together.
Coriolanus
The best-known incident in these conflicts of the orders is the
history of Gnaeus Marcius, a brave aristocrat, who derived his
surname from the storming of Corioli. Indignant at the refusal of
the centuries to entrust to him the consulate in the year 263, he is
reported to have proposed, according to one version, the suspension of
the sales of corn from the state-stores, till the hungry people should
give up the tribunate; according to another version, the direct
abolition of the tribunate itself. Impeached by the tribunes so that
his life was in peril, it is said that he left the city, but only to
return at the head of a Volscian army; that when he was on the point
of conquering the city of his fathers for the public foe, the earnest
appeal of his mother touched his conscience; and that thus he expiated
his first treason by a second, and both by death. How much of this
is true cannot be determined; but the story, over which the naive
misrepresentations of the Roman annalists have shed a patriotic glory,
affords a glimpse of the deep moral and political disgrace of these
conflicts between the orders. Of a similar stamp was the surprise
of the Capitol by a band of political refugees, led by a Sabine chief,
Appius Herdonius, in the year 294; they summoned the slaves to arms,
and it was only after a violent conflict, and by the aid of the
Tusculans who hastened to render help, that the Roman burgess-force
overcame the Catilinarian band. The same character of fanatical
exasperation marks other events of this epoch, the historical
significance of which can no longer be apprehended in the lying
family narratives; such as the predominance of the Fabian clan which
furnished one of the two consuls from 269 to 275, and the reaction
against it, the emigration of the Fabii from Rome, and their
annihilation by the Etruscans on the Cremera (277). Still more odious
was the murder of the tribune of the people, Gnaeus Genucius, who had
ventured to call two consulars to account, and who on the morning of
the day fixed for the impeachment was found dead in bed (281). The
immediate effect of this misdeed was the Publilian law (283), one of
the most momentous in its consequences with which Roman history has to
deal. Two of the most important arrangements--the introduction of the
plebeian assembly of tribes, and the placing of the -plebiscitum- on
a level, although conditionally, with the formal law sanctioned by the
whole community--are to be referred, the former certainly, the latter
probably, to the proposal of Volero Publilius the tribune of the
people in 283. The plebs had hitherto adopted its resolutions by
curies; accordingly in these its separate assemblies, on the one hand,
the voting had been by mere number without distinction of wealth or
of freehold property, and, on the other hand, in consequence of that
standing side by side on the part of the clansmen, which was implied
in the very nature of the curial assembly, the clients of the great
patrician families had voted with one another in the assembly of the
plebeians. These two circumstances had given to the nobility various
opportunities of exercising influence on that assembly, and especially
of managing the election of tribunes according to their views; and
both were henceforth done away by means of the new method of voting
according to tribes. Of these, four had been formed under the Servian
constitution for the purposes of the levy, embracing town and country
alike;(8) subsequently-perhaps in the year 259--the Roman territory
had been divided into twenty districts, of which the first four
embraced the city and its immediate environs, while the other sixteen
were formed out of the rural territory on the basis of the clan-cantons
of the earliest Roman domain.(9) To these was added--probably
only in consequence of the Publilian law, and with a view to bring
about the inequality, which was desirable for voting purposes, in
the total number of the divisions--as a twenty-first tribe the
Crustuminian, which derived its name from the place where the plebs
had constituted itself as such and had established the tribunate;(10)
and thenceforth the special assemblies of the plebs took place, no
longer by curies, but by tribes. In these divisions, which were based
throughout on the possession of land, the voters were exclusively
freeholders: but they voted without distinction as to the size of
their possession, and just as they dwelt together in villages and
hamlets. Consequently, this assembly of the tribes, which otherwise
was externally modelled on that of the curies, was in reality an
assembly of the independent middle class, from which, on the one hand,
the great majority of freedmen and clients were excluded as not being
freeholders, and in which, on the other hand, the larger landholders
had no such preponderance as in the centuries. This "meeting of the
multitude" (-concilium plebis-) was even less a general assembly of
the burgesses than the plebeian assembly by curies had been, for it
not only, like the latter, excluded all the patricians, but also the
plebeians who had no land; but the multitude was powerful enough to
carry the point that its decree should have equal legal validity
with that adopted by the centuries, in the event of its having been
previously approved by the whole senate. That this last regulation
had the force of established law before the issuing of the Twelve
Tables, is certain; whether it was directly introduced on occasion
of the Publilian -plebiscitum-, or whether it had already been called
into existence by some other--now forgotten--statute, and was only
applied to the Publilian -plebiscitum- cannot be any longer
ascertained. In like manner it remains uncertain whether the number
of tribunes was raised by this law from two to four, or whether that
increase had taken place previously.
Agrarian Law of Spurius Cassius
More sagacious in plan than all these party steps was the attempt
of Spurius Cassius to break down the financial omnipotence of the
rich, and so to put a stop to the true source of the evil. He was
a patrician, and none in his order surpassed him in rank and renown.
After two triumphs, in his third consulate (268), he submitted to the
burgesses a proposal to have the public domain measured and to lease
part of it for the benefit of the public treasury, while a further
portion was to be distributed among the necessitous. In other words,
he attempted to wrest the control of the public lands from the senate,
and, with the support of the burgesses, to put an end to the selfish
system of occupation. He probably imagined that his personal
distinction, and the equity and wisdom of the measure, might carry
it even amidst that stormy sea of passion and of weakness. But he
was mistaken. The nobles rose as one man; the rich plebeians took
part with them; the commons were displeased because Spurius Cassius
desired, in accordance with federal rights and equity, to give to
the Latin confederates their share in the assignation. Cassius had
to die. There is some truth in the charge that he had usurped regal
power, for he had indeed endeavoured like the kings to protect the
free commons against his own order. His law was buried along with
him; but its spectre thenceforward incessantly haunted the eyes of
the rich, and again and again it rose from the tomb against them,
until amidst the conflicts to which it led the commonwealth perished.
Decemvirs
A further attempt was made to get rid of the tribunician power by
securing to the plebeians equality of rights in a more regular and
more effectual way. The tribune of the people, Gaius Terentilius
Arsa, proposed in 292 the nomination of a commission of five men to
prepare a general code of law by which the consuls should in future be
bound in exercising their judicial powers. But the senate refused to
sanction this proposal, and ten years elapsed ere it was carried into
effect--years of vehement strife between the orders, and variously
agitated moreover by wars and internal troubles. With equal obstinacy
the party of the nobles hindered the concession of the law in the
senate, and the plebs nominated again and again the same men as
tribunes. Attempts were made to obviate the attack by other
concessions. In the year 297 an increase of the tribunes from four to
ten was sanctioned--a very dubious gain; and in the following year, by
an Icilian -plebiscitum- which was admitted among the sworn privileges
of the plebs, the Aventine, which had hitherto been a temple-grove and
uninhabited, was distributed among the poorer burgesses as sites for
buildings in heritable occupancy. The plebs took what was offered
to them, but never ceased to insist in their demand for a legal code.
At length, in the year 300, a compromise was effected; the senate in
substance gave way. The preparation of a legal code was resolved
upon; for that purpose, as an extraordinary measure, the centuries
were to choose ten men who were at the same time to act as supreme
magistrates in room of the consuls (-decemviri consulari imperio
legibus scribundls-), and to this office not merely patricians, but
plebeians also might be elected. These were here for the first time
designated as eligible, though only for an extraordinary office. This
was a great step in the progress towards full political equality; and
it was not too dearly purchased, when the tribunate of the people as
well as the right of appeal were suspended while the decemvirate
lasted, and the decemvirs were simply bound not to infringe the sworn
liberties of the community. Previously however an embassy was sent
to Greece to bring home the laws of Solon and other Greek laws; and
it was only on its return that the decemvirs were chosen for the year
303. Although they were at liberty to elect plebeians, the choice
fell on patricians alone--so powerful was the nobility still--and
it was only when a second election became necessary for 304, that
some plebeians were chosen--the first non-patrician magistrates that
the Roman community had.
Taking a connected view of these measures, we can scarcely attribute
to them any other design than that of substituting for tribunician
intercession a limitation of the consular powers by written law.
On both sides there must have been a conviction that things could not
remain as they were, and the perpetuation of anarchy, while it ruined
the commonwealth, was in reality of no benefit to any one. People in
earnest could not but discern that the interference of the tribunes
in administration and their action as prosecutors had an absolutely
pernicious effect; and the only real gain which the tribunate brought
to the plebeians was the protection which it afforded against a
partial administration of justice, by operating as a sort of court
of cassation to check the caprice of the magistrate. Beyond doubt,
when the plebeians desired a written code, the patricians replied that
in that event the legal protection of tribunes would be superfluous;
and upon this there appears to have been concession by both sides.
Perhaps there was never anything definitely expressed as to what
was to be done after the drawing up of the code; but that the plebs
definitely renounced the tribunate is not to be doubted, since it was
brought by the decemvirate into such a position that it could not get
back the tribunate otherwise than by illegal means. The promise given
to the plebs that its sworn liberties should not be touched, may be
referred to the rights of the plebeians independent of the tribunate,
such as the -provocatio- and the possession of the Aventine. The
intention seems to have been that the decemvirs should, on their
retiring, propose to the people to re-elect the consuls who should
now judge no longer according to their arbitrary pleasure but
according to written law.
Legislation of the Twelve Tables
The plan, if it should stand, was a wise one; all depended on whether
men's minds exasperated on either side with passion would accept that
peaceful adjustment. The decemvirs of the year 303 submitted their
law to the people, and it was confirmed by them, engraven on ten
tables of copper, and affixed in the Forum to the rostra in front
of the senate-house. But as a supplement appeared necessary,
decemvirs were again nominated in the year 304, who added two more
tables. Thus originated the first and only Roman code, the law of the
Twelve Tables. It proceeded from a compromise between parties, and
for that very reason could not well have contained any changes in the
existing law of a comprehensive nature, going beyond the regulation of
secondary matters and of the mere adaptation of means and ends. Even
in the system of credit no further alleviation was introduced than the
establishment of a--probably low--maximum of interest (10 per cent)
and the threatening of heavy penalties against the usurer-penalties,
characteristically enough, far heavier than those of the thief; the
harsh procedure in actions of debt remained at least in its leading
features unaltered. Still less, as may easily be conceived, were
changes contemplated in the rights of the orders. On the contrary the
legal distinction between burgesses liable to be taxed and those who
were without estate, and the invalidity of marriage between patricians
and plebeians, were confirmed anew in the law of the city. In like
manner, with a view to restrict the caprice of the magistrate and
to protect the burgess, it was expressly enacted that the later law
should uniformly have precedence over the earlier, and that no decree
of the people should be issued against a single burgess. The most
remarkable feature was the exclusion of appeal to the -comitia
tributa- in capital causes, while the privilege of appeal to the
centuries was guaranteed; which admits of explanation from the
circumstance that the penal jurisdiction was in fact usurped by the
plebs and its presidents,(11) and with the tribunate there necessarily
fell the tribunician capital process, while it was perhaps the
intention to retain the aedilician process of fine (-multa-).
The essential political significance of the measure resided far less
in the contents of the legislation than in the formal obligation now
laid upon the consuls to administer justice according to these forms
of process and these rules of law, and in the public exhibition of
the code, by which the administration of justice was subjected to the
control of publicity and the consul was compelled to dispense equal
and truly common justice to all.
Fall of the Decemvirs
The end of the decemvirate is involved in much obscurity. It only
remained--so runs the story--for the decemvirs to publish the last
two tables, and then to give place to the ordinary magistracy. But
they delayed to do so: under the pretext that the laws were not yet
ready, they themselves prolonged their magistracy after the expiry
of their official year--which was so far possible, as under Roman
constitutional law the magistracy called in an extraordinary way to
the revision of the constitution could not become legally bound by
the term set for its ending. The moderate section of the aristocracy,
with the Valerii and Horatii at their head, are said to have attempted
in the senate to compel the abdication of the decemvirate; but the
head of the decemvirs Appius Claudius, originally a rigid aristocrat,
but now changing into a demagogue and a tyrant, gained the ascendancy
in the senate, and the people submitted. The levy of two armies
was accomplished without opposition, and war was begun against the
Volscians as well as against the Sabines. Thereupon the former
tribune of the people, Lucius Siccius Dentatus, the bravest man in
Rome, who had fought in a hundred and twenty battles and had forty-five
honourable scars to show, was found dead in front of the camp,
foully murdered, as it was said, at the instigation of the decemvirs.
A revolution was fermenting in men's minds; and its outbreak was
hastened by the unjust sentence pronounced by Appius in the process as
to the freedom of the daughter of the centurion Lucius Verginius, the
bride of the former tribune of the people Lucius Icilius--a sentence
which wrested the maiden from her relatives with a view to make her
non-free and beyond the pale of the law, and induced her father
himself to plunge his knife into the heart of his daughter in the
open Forum, to rescue her from certain shame. While the people in
amazement at the unprecedented deed surrounded the dead body of the
fair maiden, the decemvir commanded his lictors to bring the father
and then the bridegroom before his tribunal, in order to render to
him, from whose decision there lay no appeal, immediate account
for their rebellion against his authority. The cup was now full.
Protected by the furious multitude, the father and the bridegroom of
the maiden made their escape from the lictors of the despot, and
while the senate trembled and wavered in Rome, the pair presented
themselves, with numerous witnesses of the fearful deed, in the two
camps. The unparalleled tale was told; the eyes of all were opened
to the gap which the absence of tribunician protection had made in the
security of law; and what the fathers had done their sons repeated.
Once more the armies abandoned their leaders: they marched in warlike
order through the city, and proceeded once more to the Sacred Mount,
where they again nominated their own tribunes. Still the decemvirs
refused to lay down their power; then the army with its tribunes
appeared in the city, and encamped on the Aventine. Now at length,
when civil war was imminent and the conflict in the streets might
hourly begin, the decemvirs renounced their usurped and dishonoured
power; and the consuls Lucius Valerius and Marcus Horatius negotiated
a second compromise, by which the tribunate of the plebs was again
established. The impeachment of the decemvirs terminated in the two
most guilty, Appius Claudius and Spurius Oppius, committing suicide
in prison, while the other eight went into exile and the state
confiscated their property. The prudent and moderate tribune of
the plebs, Marcus Duilius, prevented further judicial prosecutions
by a seasonable use of his veto.
So runs the story as recorded by the pen of the Roman aristocrats;
but, even leaving out of view the accessory circumstances, the great
crisis out of which the Twelve Tables arose cannot possibly have
ended in such romantic adventures, and in political issues so
incomprehensible. The decemvirate was, after the abolition of the
monarchy and the institution of the tribunate of the people, the
third great victory of the plebs; and the exasperation of the opposite
party against the institution and against its head Appius Claudius
is sufficiently intelligible. The plebeians had through its means
secured the right of eligibility to the highest magistracy of the
community and a general code of law; and it was not they that had
reason to rebel against the new magistracy, and to restore the
purely patrician consular government by force of arms. This end
can only have been pursued by the party of the nobility, and if the
patricio-plebeian decemvirs made the attempt to maintain themselves
in office beyond their time, the nobility were certainly the first to
enter the lists against them; on which occasion doubtless the nobles
would not neglect to urge that the stipulated rights of the plebs should
be curtailed and the tribunate, in particular, should be taken from it.
If the nobility thereupon succeeded in setting aside the decemvirs,
it is certainly conceivable that after their fall the plebs should
once more assemble in arms with a view to secure the results both
of the earlier revolution of 260 and of the latest movement; and the
Valerio-Horatian laws of 305 can only be understood as forming a
compromise in this conflict.
The Valerio-Horatian Laws
The compromise, as was natural, proved very favourable to the
plebeians, and again imposed severely felt restrictions on the
power of the nobility. As a matter of course the tribunate of the
people was restored, the code of law wrung from the aristocracy was
definitively retained, and the consuls were obliged to judge according
to it. Through the code indeed the tribes lost their usurped
jurisdiction in capital causes; but the tribunes got it back, as a way
was found by which it was possible for them to transact business as
to such cases with the centuries. Besides they retained, in the right
to award fines without limitation and to submit this sentence to the
-comitia tributa-, a sufficient means of putting an end to the civic
existence of a patrician opponent. Further, it was on the proposition
of the consuls decreed by the centuries that in future every
magistrate--and therefore the dictator among the rest--should be bound
at his nomination to allow the right of appeal: any one who should
nominate a magistrate on other terms was to expiate the offence with
his life. In other respects the dictator retained his former powers;
and in particular his official acts could not, like those of the
consuls, be cancelled by a tribune.
The plenitude of the consular power was further restricted in so far
as the administration of the military chest was committed to two
paymasters (-quaestores-) chosen by the community, who were nominated
for the first time in 307. The nomination as well of the two new
paymasters for war as of the two administering the city-chest now
passed over to the community; the consul retained merely the conduct
of the election instead of the election itself. The assembly in which
the paymasters were elected was that of the whole patricio-plebeian
freeholders, and voted by districts; an arrangement which likewise
involved a concession to the plebeian farmers, who had far more
command of these assemblies than of the centuriate -comitia-.
A concession of still greater consequence was that which allowed the
tribunes to share in the discussions of the senate. To admit the
tribunes to the hall where the senate sat, appeared to that body
beneath its dignity; so a bench was placed for them at the door that
they might from that spot follow its proceedings. The tribunician
right of intercession had extended also to the decrees of the senate
as a collective body, after the latter had become not merely a
deliberative but a decretory board, which probably occurred at first
in the case of a -plebiscitum- that was meant to be binding for the
whole community;(12) it was natural that there should thenceforth be
conceded to the tribunes a certain participation in the discussions
of the senate-house. In order also to secure the decrees of the
senate-- with the validity of which indeed that of the most important
-plebiscita- was bound up--from being tampered with or forged, it
was enacted that in future they should be deposited not merely under
charge of the patrician -quaestores urbani- in the temple of Saturn,
but also under that of the plebian aediles in the temple of Ceres.
Thus this struggle, which was begun in order to get rid of the
tribunician power, terminated in the renewed and now definitive
sanctioning of its right to annul not only particular acts of
administration on the appeal of the person aggrieved, but also any
resolution of the constituent powers of the state at pleasure.
The persons of the tribunes, and the uninterrupted maintenance of
the college at its full number, were once more secured by the most
sacred oaths and by every element of reverence that religion could
present, and not less by the most formal laws. No attempt to abolish
this magistracy was ever from this time forward made in Rome.
Notes for Book II Chapter II
1. II. I. Right of Appeal
2. I. XIII. Landed proprietors
3. I. VI. Character of the Roman Law
4. II. I. Collegiate Arrangement
5. I. XI. Property
6. I. XI. Punishment of Offenses against Order
7. That the plebeian aediles were formed after the model of the
patrician quaestors in the same way as the plebeian tribunes after
the model of the patrician consuls, is evident both as regards their
criminal functions (in which the distinction between the two
magistracies seems to have lain in their tendencies only, not in their
powers) and as regards their charge of the archives. The temple of
Ceres was to the aediles what the temple of Saturn was to the
quaestors, and from the former they derived their name. Significant
in this respect is the enactment of the law of 305 (Liv. iii. 55),
that the decrees of the senate should be delivered over to the aediles
there (p. 369), whereas, as is well known, according to the ancient
--and subsequently after the settlement of the struggles between the
orders, again preponderant--practice those decrees were committed to
the quaestors for preservation in the temple of Saturn.
8. I. VI. Levy Districts
9. I. III. Clan-Villages
10. II. II. Secession to the Sacred mount
11. II. II. Intercession
12. II. II. Legislation
CHAPTER III
The Equalization of the Orders, and the New Aristocracy
Union of the Plebians
The tribunician movements appear to have mainly originated in social
rather than political discontent, and there is good reason to suppose
that some of the wealthy plebeians admitted to the senate were no
less opposed to these movements than the patricians. For they too
benefited by the privileges against which the agitation was mainly
directed; and although in other respects they found themselves treated
as inferior, it probably seemed to them by no means an appropriate
time for asserting their claim to participate in the magistracies,
when the exclusive financial power of the whole senate was assailed.
This explains why during the first fifty years of the republic no step
was taken aiming directly at the political equalization of the orders.
But this league between the patricians and the wealthy plebeians by no
means bore within itself any guarantee of permanence. Beyond doubt
from the very first a portion of the leading plebeian families had
attached themselves to the movement-party, partly from a sense of what
was due to the fellow-members of their order, partly in consequence
of the natural bond which unites all who are treated as inferior,
and partly because they perceived that concessions to the multitude
were inevitable in the issue, and that, if turned to due account,
they would result in the abrogation of the exclusive rights of
the patriciate and would thereby give to the plebeian aristocracy a
decisive preponderance in the state. Should this conviction become
--as was inevitable--more and more prevalent, and should the plebeian
aristocracy at the head of its order take up the struggle with the
patrician nobility, it would wield in the tribunate a legalized
instrument of civil warfare, and it might, with the weapon of social
distress, so fight its battles as to dictate to the nobility the terms
of peace and, in the position of mediator between the two parties,
compel its own admission to the offices of state.
Such a crisis in the position of parties occurred after the fall of
the decemvirate. It had now become perfectly clear that the tribunate
of the plebs could never be set aside; the plebeian aristocracy could
not do better than seize this powerful lever and employ it for the
removal of the political disabilities of their order.
Throwing Open of Marriage and of Magistracies--
Military Tribunes with Consular Powers
Nothing shows so clearly the defencelessness of the clan-nobility
when opposed to the united plebs, as the fact that the fundamental
principle of the exclusive party--the invalidity of marriage between
patricians and plebeians--fell at the first blow scarcely four years
after the decemviral revolution. In the year 309 it was enacted by
the Canuleian plebiscite, that a marriage between a patrician and
a plebeian should be valid as a true Roman marriage, and that the
children begotten of such a marriage should follow the rank of the
father. At the same time it was further carried that, in place of
consuls, military tribunes--of these there were at that time, before
the division of the army into legions, six, and the number of these
magistrates was adjusted accordingly-with consular powers(1) and
consular duration of office should be elected by the centuries.
The proximate cause was of a military nature, as the various wars
required a greater number of generals in chief command than the
consular constitution allowed; but the change came to be of essential
importance for the conflicts of the orders, and it may be that
that military object was rather the pretext than the reason for
this arrangement. According to the ancient law every burgess or
--metoikos-- liable to service might attain the post of an officer,(2)
and in virtue of that principle the supreme magistracy, after having
been temporarily opened up to the plebeians in the decemvirate, was
now after a more comprehensive fashion rendered equally accessible to
all freeborn burgesses. The question naturally occurs, what interest
the aristocracy could have--now that it was under the necessity of
abandoning its exclusive possession of the supreme magistracy and of
yielding in the matter--in refusing to the plebeians the title, and
conceding to them the consulate under this singular form?(3) But,
in the first place, there were associated with the holding of the
supreme magistracy various honorary rights, partly personal, partly
hereditary; thus the honour of a triumph was regarded as legally
dependent on the occupancy of the supreme magistracy, and was never
given to an officer who had not administered the latter office in
person; and the descendants of a curule magistrate were at liberty to
set up the image of such an ancestor in the family hall and to exhibit
it in public on fitting occasions, while this was not allowed in the
case of other ancestors.(4) It is as easy to be explained as it is
difficult to be vindicated, that the governing aristocratic order
should have allowed the government itself to be wrested from their
hands far sooner than the honorary rights associated with it,
especially such as were hereditary; and therefore, when it was obliged
to share the former with the plebeians, it gave to the actual supreme
magistrate the legal standing not of the holder of a curule chair, but
of a simple staff-officer, whose distinction was one purely personal.
Of greater political importance, however, than the refusal of the
-ius imaginum- and of the honour of a triumph was the circumstance,
that the exclusion of the plebeians sitting in the senate from
debate necessarily ceased in respect to those of their number who,
as designated or former consuls, ranked among the senators whose
opinion had to be asked before the rest; so far it was certainly
of great importance for the nobility to admit the plebeian only to
a consular office, and not to the consulate itself.
Opposition of the Patriciate
But notwithstanding these vexatious disabilities the privileges of the
clans, so far as they had a political value, were legally superseded
by the new institution; and, had the Roman nobility been worthy of its
name, it must now have given up the struggle. But it did not. Though
a rational and legal resistance was thenceforth impossible, spiteful
opposition still found a wide field of petty expedients, of chicanery
and intrigue; and, far from honourable or politically prudent as such
resistance was, it was still in a certain sense fruitful of results.
It certainly procured at length for the commons concessions which
could not easily have been wrung from the united Roman aristocracy;
but it also prolonged civil war for another century and enabled
the nobility, in defiance of those laws, practically to retain the
government in their exclusive possession for several generations
longer.
Their Expedients
The expedients of which the nobility availed themselves were as
various as political paltriness could suggest. Instead of deciding
at once the question as to the admission or exclusion of the plebeians
at the elections, they conceded what they were compelled to concede
only with reference to the elections immediately impending. The vain
struggle was thus annually renewed whether patrician consuls or
military tribunes from both orders with consular powers should be
nominated; and among the weapons of the aristocracy this mode of
conquering an opponent by wearying and annoying him proved by no
means the least effective.
Subdivision of the Magistracy--
Censorship
Moreover they broke up the supreme power which had hitherto been
undivided, in order to delay their inevitable defeat by multiplying
the points to be assailed. Thus the adjustment of the budget and of
the burgess--and taxation-rolls, which ordinarily took place every
fourth year and had hitherto been managed by the consuls, was
entrusted as early as the year 319 to two valuators (-censores-),
nominated by the centuries from among the nobles for a period, at
the most, of eighteen months. The new office gradually became the
palladium of the aristocratic party, not so much on account of its
financial influence as on account of the right annexed to it of
filling up the vacancies in the senate and in the equites, and of
removing individuals from the lists of the senate, equites, and
burgesses on occasion of their adjustment. At this epoch, however,
the censorship by no means possessed the great importance and moral
supremacy which afterwards were associated with it.
Quaestorship
But the important change made in the year 333 in respect to the
quaestorship amply compensated for this success of the patrician
party. The patricio-plebeian assembly of the tribes--perhaps taking
up the ground that at least the two military paymasters were in fact
officers rather than civil functionaries, and that so far the plebeian
appeared as well entitled to the quaestorship as to the military
tribuneship--carried the point that plebeian candidates also were
admitted for the quaestorial elections, and thereby acquired for
the first time the privilege of eligibility as well as the right of
election for one of the ordinary magistracies. With justice it was
felt on the one side as a great victory, on the other as a severe
defeat, that thenceforth patrician and plebeian were equally capable
of electing and being elected to the military as well as to the urban
quaestorship.
Attempts at Counterrevolution
The nobility, in spite of the most obstinate resistance, only
sustained loss after loss; and their exasperation increased as their
power decreased. Attempts were doubtless still made directly to
assail the rights secured by agreement to the commons; but such
attempts were not so much the well-calculated manoeuvres of party as
the acts of an impotent thirst for vengeance. Such in particular was
the process against Maelius as reported by the tradition--certainly
not very trustworthy--that has come down to us. Spurius Maelius,
a wealthy plebeian, during a severe dearth (315) sold corn at such
prices as to put to shame and annoy the patrician store-president
(-praefectus annonae-) Gaius Minucius. The latter accused him of
aspiring to kingly power; with what amount of reason we cannot decide,
but it is scarcely credible that a man who had not even filled the
tribunate should have seriously thought of sovereignty. Nevertheless
the authorities took up the matter in earnest, and the cry of "King"
always produced on the multitude in Rome an effect similar to that
of the cry of "Pope" on the masses in England. Titus Quinctius
Capitolinus, who was for the sixth time consul, nominated Lucius
Quinctius Cincinnatus, who was eighty years of age, as dictator
without appeal, in open violation of the solemnly sworn laws.(5)
Maelius, summoned before him, seemed disposed to disregard the
summons; and the dictator's master of the horse, Gaius Servilius
Ahala, slew him with his own hand. The house of the murdered man was
pulled down, the corn from his granaries was distributed gratuitously
to the people, and those who threatened to avenge his death were
secretly made away with. This disgraceful judicial murder--a disgrace
even more to the credulous and blind people than to the malignant
party of young patricians--passed unpunished; but if that party had
hoped by such means to undermine the right of appeal, it violated
the laws and shed innocent blood in vain.
Intrigues of the Nobility
Electioneering intrigues and priestly trickery proved in the hands
of the nobility more efficient than any other weapons. The extent
to which the former must have prevailed is best seen in the fact
that in 322 it appeared necessary to issue a special law against
electioneering practices, which of course was of little avail. When
the voters could not be influenced by corruption or threatening, the
presiding magistrates stretched their powers--admitting, for example,
so many plebeian candidates that the votes of the opposition were
thrown away amongst them, or omitting from the list of candidates
those whom the majority were disposed to choose. If in spite of all
this an obnoxious election was carried, the priests were consulted
whether no vitiating circumstance had occurred in the auspices or
other religious ceremonies on the occasion; and some such flaw they
seldom failed to discover. Taking no thought as to the consequences
and unmindful of the wise example of their ancestors, the people
allowed the principle to be established that the opinion of the
skilled colleges of priests as to omens of birds, portents, and the
like was legally binding on the magistrate, and thus put it into their
power to cancel any state-act--whether the consecration of a temple
or any other act of administration, whether law or election--on the
ground of religious informality. In this way it became possible that,
although the eligibility of plebeians had been established by law
already in 333 for the quaestorship and thenceforward continued to
be legally recognized, it was only in 345 that the first plebeian
attained the quaestorship; in like manner patricians almost
exclusively held the military tribunate with consular powers down
to 354. It was apparent that the legal abolition of the privileges of
the nobles had by no means really and practically placed the plebeian
aristocracy on a footing of equality with the clan-nobility. Many
causes contributed to this result: the tenacious opposition of the
nobility far more easily allowed itself to be theoretically superseded
in a moment of excitement, than to be permanently kept down in the
annually recurring elections; but the main cause was the inward
disunion between the chiefs of the plebeian aristocracy and the mass
of the farmers. The middle class, whose votes were decisive in the
comitia, did not feel itself specially called on to advance the
interests of genteel non-patricians, so long as its own demands were
disregarded by the plebeian no less than by the patrician aristocracy.
The Suffering Farmers
During these political struggles social questions had lain on the
whole dormant, or were discussed at any rate with less energy. After
the plebeian aristocracy had gained possession of the tribunate for
its own ends, no serious notice was taken either of the question of
the domains or of a reform in the system of credit; although there was
no lack either of newly acquired lands or of impoverished or decaying
farmers. Instances indeed of assignations took place, particularly in
the recently conquered border-territories, such as those of the domain
of Ardea in 312, of Labici in 336, and of Veii in 361--more however on
military grounds than for the relief of the farmer, and by no means to
an adequate extent. Individual tribunes doubtless attempted to revive
the law of Cassius--for instance Spurius Maecilius and Spurius
Metilius instituted in the year 337 a proposal for the distribution
of the whole state-lands--but they were thwarted, in a manner
characteristic of the existing state of parties, by the opposition
of their own colleagues or in other words of the plebeian aristocracy.
Some of the patricians also attempted to remedy the common distress;
but with no better success than had formerly attended Spurius Cassius.
A patrician like Cassius and like him distinguished by military renown
and personal valour, Marcus Manlius, the saviour of the Capitol during
the Gallic siege, is said to have come forward as the champion of
the oppressed people, with whom he was connected by the ties of
comradeship in war and of bitter hatred towards his rival, the
celebrated general and leader of the optimate party, Marcus Furius
Camillus. When a brave officer was about to be led away to a debtor's
prison, Manlius interceded for him and released him with his own
money; at the same time he offered his lands to sale, declaring
loudly that, as long as he possessed a foot's breadth of land, such
iniquities should not occur. This was more than enough to unite the
whole government party, patricians as well as plebeians, against the
dangerous innovator. The trial for high treason, the charge of having
meditated a renewal of the monarchy, wrought on the blind multitude
with the insidious charm which belongs to stereotyped party-phrases.
They themselves condemned him to death, and his renown availed him
nothing save that it was deemed expedient to assemble the people for
the bloody assize at a spot whence the voters could not see the rock
of the citadel--the dumb monitor which might remind them how their
fatherland had been saved from the extremity of danger by the hands of
the very man whom they were now consigning to the executioner (370).
While the attempts at reformation were thus arrested in the bud,
the social disorders became still more crying; for on the one
hand the domain-possessions were ever extending in consequence of
successful wars, and on the other hand debt and impoverishment were
ever spreading more widely among the farmers, particularly from the
effects of the severe war with Veii (348-358) and of the burning of
the capital in the Gallic invasion (364). It is true that, when in
the Veientine war it became necessary to prolong the term of service
of the soldiers and to keep them under arms not--as hitherto at the
utmost--only during summer, but also throughout the winter, and when
the farmers, foreseeing their utter economic ruin, were on the point
of refusing their consent to the declaration of war, the senate
resolved on making an important concession. It charged the pay, which
hitherto the tribes had defrayed by contribution, on the state-chest,
or in other words, on the produce of the indirect revenues and the
domains (348). It was only in the event of the state-chest being at
the moment empty that a general contribution (-tributum-) was imposed
on account of the pay; and in that case it was considered as a forced
loan and was afterwards repaid by the community. The arrangement was
equitable and wise; but, as it was not placed upon the essential
foundation of turning the domains to proper account for the benefit
of the exchequer, there were added to the increased burden of service
frequent contributions, which were none the less ruinous to the man
of small means that they were officially regarded not as taxes
but as advances.
Combination of the Plebian Aristocracy and the Farmers against the
Nobility--
Licinio-Sextian Laws
Under such circumstances, when the plebeian aristocracy saw itself
practically excluded by the opposition of the nobility and the
indifference of the commons from equality of political rights,
and the suffering farmers were powerless as opposed to the close
aristocracy, it was natural that they should help each other by a
compromise. With this view the tribunes of the people, Gaius Licinius
and Lucius Sextius, submitted to the commons proposals to the
following effect: first, to abolish the consular tribunate; secondly,
to lay it down as a rule that at least one of the consuls should be
a plebeian; thirdly, to open up to the plebeians admission to one
of the three great colleges of priests--that of the custodiers of
oracles, whose number was to be increased to ten (-duoviri-,
afterwards -decemviri sacris faciundis-(6)); fourthly, as respected
the domains, to allow no burgess to maintain upon the common pasture
more than a hundred oxen and five hundred sheep, or to hold more than
five hundred -jugera- (about 300 acres) of the domain lands left free
for occupation; fifthly, to oblige the landlords to employ in the
labours of the field a number of free labourers proportioned to that
of their rural slaves; and lastly, to procure alleviation for debtors
by deduction of the interest which had been paid from the capital,
and by the arrangement of set terms for the payment of arrears.
The tendency of these enactments is obvious. They were designed
to deprive the nobles of their exclusive possession of the curule
magistracies and of the hereditary distinctions of nobility therewith
associated; which, it was characteristically conceived, could only be
accomplished by the legal exclusion of the nobles from the place of
second consul. They were designed, as a consequence, to emancipate
the plebeian members of the senate from the subordinate position which
they occupied as silent by-sitters,(7) in so far as those of them at
least who had filled the consulate thereby acquired a title to deliver
their opinion with the patrician consulars before the other patrician
senators.(8) They were intended, moreover, to withdraw from the
nobles the exclusive possession of spiritual dignities; and in
carrying out this purpose for reasons sufficiently obvious the old
Latin priesthoods of the augurs and Pontifices were left to the old
burgesses, but these were obliged to open up to the new burgesses the
third great college of more recent origin and belonging to a worship
that was originally foreign. They were intended, in fine, to procure
a share in the common usufructs of burgesses for the poorer commons,
alleviation for the suffering debtors, and employment for the
day-labourers that were destitute of work. Abolition of privileges,
civil equality, social reform--these were the three great ideas, of
which it was the design of this movement to secure the recognition.
Vainly the patricians exerted all the means at their command in
opposition to these legislative proposals; even the dictatorship and
the old military hero Camillus were able only to delay, not to avert
their accomplishment. Willingly would the people have separated the
proposals; of what moment to it were the consulate and custodiership
of oracles, if only the burden of debt were lightened and the public
lands were free! But it was not for nothing that the plebeian
nobility had adopted the popular cause; it included the proposals in
one single project of law, and after a long struggle--it is said of
eleven years--the senate at length gave its consent and they passed
in the year 387.
Political Abolition of the Patriciate
With the election of the first non-patrician consul--the choice fell
on one of the authors of this reform, the late tribune of the people,
Lucius Sextius Lateranus--the clan-aristocracy ceased both in fact and
in law to be numbered among the political institutions of Rome. When
after the final passing of these laws the former champion of the
clans, Marcus Furius Camillus, founded a sanctuary of Concord at the
foot of the Capitol--upon an elevated platform, where the senate was
wont frequently to meet, above the old meeting-place of the burgesses,
the Comitium--we gladly cherish the belief that he recognized in the
legislation thus completed the close of a dissension only too long
continued. The religious consecration of the new concord of the
community was the last public act of the old warrior and statesman,
and a worthy termination of his long and glorious career. He was
not wholly mistaken; the more judicious portion of the clans
evidently from this time forward looked upon their exclusive political
privileges as lost, and were content to share the government with the
plebeian aristocracy. In the majority, however, the patrician spirit
proved true to its incorrigible character. On the strength of the
privilege which the champions of legitimacy have at all times claimed
of obeying the laws only when these coincide with their party
interests, the Roman nobles on various occasions ventured, in open
violation of the stipulated arrangement, to nominate two patrician
consuls. But, when by way of answer to an election of that sort for
the year 411 the community in the year following formally resolved
to allow both consular positions to be filled by non-patricians, they
understood the implied threat, and still doubtless desired, but never
again ventured, to touch the second consular place.
Praetorship--
Curule Aedileship--
Complete Opening Up of Magistracies and Priesthoods
In like manner the aristocracy simply injured itself by the attempt
which it made, on the passing of the Licinian laws, to save at least
some remnant of its ancient privileges by means of a system of
political clipping and paring. Under the pretext that the nobility
were exclusively cognizant of law, the administration of justice was
detached from the consulate when the latter had to be thrown open
to the plebeians; and for this purpose there was nominated a special
third consul, or, as he was commonly called, a praetor. In like
manner the supervision of the market and the judicial police-duties
connected with it, as well as the celebration of the city-festival,
were assigned to two newly nominated aediles, who--by way of
distinction from the plebeian aediles--were named from their standing
jurisdiction "aediles of the judgment seat" (-aediles curules-).
But the curule aedileship became immediately so far accessible to
the plebeians, that it was held by patricians and plebeians
alternately. Moreover the dictatorship was thrown open to plebeians
in 398, as the mastership of the horse had already been in the year
before the Licinian laws (386); both the censorships were thrown open
in 403, and the praetorship in 417; and about the same time (415) the
nobility were by law excluded from one of the censorships, as they
had previously been from one of the consulships. It was to no purpose
that once more a patrician augur detected secret flaws, hidden from
the eyes of the uninitiated, in the election of a plebeian dictator
(427), and that the patrician censor did not up to the close of our
present period (474) permit his colleague to present the solemn
sacrifice with which the census closed; such chicanery served merely
to show the ill humour of patricianism. Of as little avail were the
complaints which the patrician presidents of the senate would not fail
to raise regarding the participation of the plebeians in its debates;
it became a settled rule that no longer the patrician members,
but those who had attained to one of the three supreme ordinary
magistracies--the consulship, praetorship, and curule aedileship
--should be summoned to give their opinion in this order and without
distinction of class, while the senators who had held none of these
offices still even now took part merely in the division. The right,
in fine, of the patrician senate to reject a decree of the community
as unconstitutional--a right, however, which in all probability it
rarely ventured to exercise--was withdrawn from it by the Publilian
law of 415 and by the Maenian law which was not passed before the
middle of the fifth century, in so far that it had to bring forward
its constitutional objections, if it had any such, when the list
of candidates was exhibited or the project of law was brought in;
which practically amounted to a regular announcement of its consent
beforehand. In this character, as a purely formal right, the
confirmation of the decrees of the people still continued in
the hands of the nobility down to the last age of the republic.
The clans retained, as may naturally be conceived, their religious
privileges longer. Indeed, several of these, which were destitute
of political importance, were never interfered with, such as their
exclusive eligibility to the offices of the three supreme -flamines-
and that of -rex sacrorum- as well as to the membership of the
colleges of Salii. On the other hand the two colleges of Pontifices
and of augurs, with which a considerable influence over the courts
and the comitia were associated, were too important to remain in the
exclusive possession of the patricians. The Ogulnian law of 454
accordingly threw these also open to plebeians, by increasing the
number both of the pontifices and of the augurs from six to nine, and
equally distributing the stalls in the two colleges between patricians
and plebeians.
Equivalence of Law and Plebiscitum
The two hundred years' strife was brought at length to: a close by the
law of the dictator Q. Hortensius (465, 468) which was occasioned by a
dangerous popular insurrection, and which declared that the decrees of
the plebs should stand on an absolute footing of equality--instead of
their earlier conditional equivalence--with those of the whole
community. So greatly had the state of things been changed that
that portion of the burgesses which had once possessed exclusively
the right of voting was thenceforth, under the usual form of taking
votes binding for the whole burgess-body, no longer so much as asked
the question.
The Later Patricianism
The struggle between the Roman clans and commons was thus
substantially at an end. While the nobility still preserved out
of its comprehensive privileges the -de facto- possession of one of
the consulships and one of the censorships, it was excluded by law
from the tribunate, the plebeian aedileship, the second consulship
and censorship, and from participation in the votes of the plebs
which were legally equivalent to votes of the whole body of burgesses.
As a righteous retribution for its perverse and stubborn resistance,
the patriciate had seen its former privileges converted into so many
disabilities. The Roman clan-nobility, however, by no means
disappeared because it had become an empty name. The less the
significance and power of the nobility, the more purely and
exclusively the patrician spirit developed itself. The haughtiness
of the "Ramnians" survived the last of their class-privileges for
centuries; after they had steadfastly striven "to rescue the consulate
from the plebeian filth" and had at length become reluctantly
convinced of the impossibility of such an achievement, they continued
at least rudely and spitefully to display their aristocratic spirit.
To understand rightly the history of Rome in the fifth and sixth
centuries, we must never overlook this sulking patricianism; it could
indeed do little more than irritate itself and others, but this it
did to the best of its ability. Some years after the passing of the
Ogulnian law (458) a characteristic instance of this sort occurred.
A patrician matron, who was married to a leading plebeian that had
attained to the highest dignities of the state, was on account of this
misalliance expelled from the circle of noble dames and was refused
admission to the common festival of Chastity; and in consequence of
that exclusion separate patrician and plebeian goddesses of Chastity
were thenceforward worshipped in Rome. Doubtless caprices of this
sort were of very little moment, and the better portion of the
clans kept themselves entirely aloof from this miserable policy of
peevishness; but it left behind on both sides a feeling of discontent,
and, while the struggle of the commons against the clans was in itself
a political and even moral necessity, these convulsive efforts to
prolong the strife--the aimless combats of the rear-guard after the
battle had been decided, as well as the empty squabbles as to rank
and standing--needlessly irritated and disturbed the public and
private life of the Roman community.
The Social Distress, and the Attempt to Relieve It
Nevertheless one object of the compromise concluded by the two
portions of the plebs in 387, the abolition of the patriciate, had
in all material points been completely attained. The question next
arises, how far the same can be affirmed of the two positive objects
aimed at in the compromise?--whether the new order of things in
reality checked social distress and established political equality?
The two were intimately connected; for, if economic embarrassments
ruined the middle class and broke up the burgesses into a minority of
rich men and a suffering proletariate, such a state of things would at
once annihilate civil equality and in reality destroy the republican
commonwealth. The preservation and increase of the middle class, and
in particular of the farmers, formed therefore for every patriotic
statesman of Rome a problem not merely important, but the most
important of all. The plebeians, moreover, recently called to take
part in the government, greatly indebted as they were for their new
political rights to the proletariate which was suffering and expecting
help at their hands, were politically and morally under special
obligation to attempt its relief by means of government measures,
so far as relief was by such means at all attainable.
The Licinian Agrarian Laws
Let us first consider how far any real relief was contained in that
part of the legislation of 387 which bore upon the question. That
the enactment in favour of the free day-labourers could not possibly
accomplish its object--namely, to check the system of farming on
a large scale and by means of slaves, and to secure to the free
proletarians at least a share of work--is self-evident. In this
matter legislation could afford no relief, without shaking the
foundations of the civil organization of the period in a way that
would reach far beyond its immediate horizon. In the question of the
domains, on the other hand, it was quite possible for legislation to
effect a change; but what was done was manifestly inadequate. The new
domain-arrangement, by granting the right of driving very considerable
flocks and herds upon the public pastures, and that of occupying
domain-land not laid out in pasture up to a maximum fixed on a
high scale, conceded to the wealthy an important and perhaps even
disproportionate prior share in the produce of the domains; and by
the latter regulation conferred upon the domain-tenure, although it
remained in law liable to pay a tenth and revocable at pleasure,
as well as upon the system of occupation itself, somewhat of a legal
sanction. It was a circumstance still more suspicious, that the
new legislation neither supplemented the existing and manifestly
unsatisfactory provisions for the collection of the pasture-money
and the tenth by compulsory measures of a more effective kind, nor
prescribed any thorough revision of the domanial possessions, nor
appointed a magistracy charged with the carrying of the new laws into
effect. The distribution of the existing occupied domain-land partly
among the holders up to a fair maximum, partly among the plebeians
who had no property, in both cases in full ownership; the abolition
in future of the system of occupation; and the institution of
an authority empowered to make immediate distribution of any
future acquisitions of territory, were so clearly demanded by the
circumstances of the case, that it certainly was not through want
of discernment that these comprehensive measures were neglected.
We cannot fail to recollect that it was the plebeian aristocracy,
in other words, a portion of the very class that was practically
privileged in respect to the usufructs of the domains, which proposed
the new arrangement, and that one of its very authors, Gaius Licinius
Stolo, was among the first to be condemned for having exceeded the
agrarian maximum; and we cannot but ask whether the legislators dealt
altogether honourably, and whether they did not on the contrary
designedly evade a solution, really tending to the common benefit,
of the unhappy question of the domains. We do not mean, however, to
express any doubt that the regulations of the Licinian laws, such as
they were, might and did substantially benefit the small farmer and
the day-labourer. It must, moreover, be acknowledged that in the
period immediately succeeding the passing of the law the authorities
watched with at least comparative strictness over the observance of
its rules as to the maximum, and frequently condemned the possessors
of large herds and the occupiers of the domains to heavy fines.
Laws Imposing Taxes--
Laws of Credit
In the system of taxation and of credit also efforts were made with
greater energy at this period than at any before or subsequent to it
to remedy the evils of the national economy, so far as legal measures
could do so. The duty levied in 397 of five per cent on the value of
slaves that were to be manumitted was--irrespective of the fact that
it imposed a check on the undesirable multiplication of freedmen--the
first tax in Rome that was really laid upon the rich. In like manner
efforts were made to remedy the system of credit. The usury laws,
which the Twelve Tables had established,(9) were renewed and gradually
rendered more stringent, so that the maximum of interest was
successively lowered from 10 per cent (enforced in 397) to 5 per cent
(in 407) for the year of twelve months, and at length (412) the taking
of interest was altogether forbidden. The latter foolish law remained
formally in force, but, of course, it was practically inoperative; the
standard rate of interest afterwards usual, viz. 1 per cent per month,
or 12 per cent for the civil common year--which, according to the
value of money in antiquity, was probably at that time nearly the same
as, according to its modern value, a rate of 5 or 6 per cent--must
have been already about this period established as the maximum of
appropriate interest. Any action at law for higher rates must have
been refused, perhaps even judicial claims for repayment may have been
allowed; moreover notorious usurers were not unfrequently summoned
before the bar of the people and readily condemned by the tribes to
heavy fines. Still more important was the alteration of the procedure
in cases of debt by the Poetelian law (428 or 441). On the one hand
it allowed every debtor who declared on oath his solvency to save his
personal freedom by the cession of his property; on the other hand it
abolished the former summary proceedings in execution on a loan-debt,
and laid down the rule that no Roman burgess could be led away to
bondage except upon the sentence of jurymen.
Continued Distress
It is plain that all these expedients might perhaps in some respects
mitigate, but could not remove, the existing economic disorders.
The continuance of the distress is shown by the appointment of a
bank-commission to regulate the relations of credit and to provide
advances from the state-chest in 402, by the fixing of legal payment
by instalments in 407, and above all by the dangerous popular
insurrection about 467, when the people, unable to obtain new
facilities for the payment of debts, marched out to the Janiculum,
and nothing but a seasonable attack by external enemies, and the
concessions contained in the Hortensian law,(10) restored peace to
the community. It is, however, very unjust to reproach these earnest
attempts to check the impoverishment of the middle class with their
inadequacy. The belief that it is useless to employ partial and
palliative means against radical evils, because they only remedy
them in part, is an article of faith never preached unsuccessfully
by baseness to simplicity, but it is none the less absurd. On the
contrary, we may ask whether the vile spirit of demagogism had not
even thus early laid hold of this matter, and whether expedients were
really needed so violent and dangerous as, for example, the deduction
of the interest paid from the capital. Our documents do not enable
us to decide the question of right or wrong in the case. But we
recognize clearly enough that the middle class of freeholders
still continued economically in a perilous and critical position;
that various endeavours were made by those in power to remedy it by
prohibitory laws and by respites, but of course in vain; and that the
aristocratic ruling class continued to be too weak in point of control
over its members, and too much entangled in the selfish interests of
its order, to relieve the middle class by the only effectual means at
the disposal of the government--the entire and unreserved abolition
of the system of occupying the state-lands--and by that course to free
the government from the reproach of turning to its own advantage the
oppressed position of the governed.
Influence of the Extension of the Roman Dominion in Elevating the
Farmer-Class
A more effectual relief than any which the government was willing
or able to give was derived by the middle classes from the political
successes of the Roman community and the gradual consolidation of the
Roman sovereignty over Italy. The numerous and large colonies which
it was necessary to found for the securing of that sovereignty, the
greater part of which were sent forth in the fifth century, furnished
a portion of the agricultural proletariate with farms of their own,
while the efflux gave relief to such as remained at home. The
increase of the indirect and extraordinary sources of revenue, and
the flourishing condition of the Roman finances in general, rendered
it but seldom necessary to levy any contribution from the farmers in
the form of a forced loan. While the earlier small holdings were
probably lost beyond recovery, the rising average of Roman prosperity
must have converted the former larger landholders into farmers, and
in so far added new members to the middle class. People of rank
sought principally to secure the large newly-acquired districts for
occupation; the mass of wealth which flowed to Rome through war and
commerce must have reduced the rate of interest; the increase in the
population of the capital benefited the farmer throughout Latium;
a wise system of incorporation united a number of neighbouring and
formerly subject communities with the Roman state, and thereby
strengthened especially the middle class; finally, the glorious
victories and their mighty results silenced faction. If the distress
of the farmers was by no means removed and still less were its sources
stopped, it yet admits of no doubt that at the close of this period
the Roman middle class was on the whole in a far less oppressed
condition than in the first century after the expulsion of the kings.
Civic Equality
Lastly civic equality was in a certain sense undoubtedly attained
or rather restored by the reform of 387, and the development of its
legitimate consequences. As formerly, when the patricians still in
fact formed the burgesses, these had stood upon a footing of absolute
equality in rights and duties, so now in the enlarged burgess-body
there existed in the eye of the law no arbitrary distinctions.
The gradations to which differences of age, sagacity, cultivation, and
wealth necessarily give rise in civil society, naturally also pervaded
the sphere of public life; but the spirit animating the burgesses and
the policy of the government uniformly operated so as to render these
differences as little conspicuous as possible. The whole system of
Rome tended to train up her burgesses on an average as sound and
capable, but not to bring into prominence the gifts of genius. The
growth of culture among the Romans did not at all keep pace with the
development of the power of their community, and it was instinctively
repressed rather than promoted by those in power. That there should
be rich and poor, could not be prevented; but (as in a genuine
community of farmers) the farmer as well as the day-labourer
personally guided the plough, and even for the rich the good economic
rule held good that they should live with uniform frugality and above
all should hoard no unproductive capital at home--excepting the
salt-cellar and the sacrificial ladle, no silver articles were at
this period seen in any Roman house. Nor was this of little moment.
In the mighty successes which the Roman community externally achieved
during the century from the last Veientine down to the Pyrrhic war we
perceive that the patriciate has now given place to the farmers; that
the fall of the highborn Fabian would have been not more and not less
lamented by the whole community than the fall of the plebeian Decian
was lamented alike by plebeians and patricians; that the consulate did
not of itself fall even to the wealthiest aristocrat; and that a poor
husbandman from Sabina, Manius Curius, could conquer king Pyrrhus in
the field of battle and chase him out of Italy, without ceasing to be
a simple Sabine farmer and to cultivate in person his own bread-corn.
New Aristocracy
In regard however to this imposing republican equality we must not
overlook the fact that it was to a considerable extent only formal,
and that an aristocracy of a very decided stamp grew out of it or
rather was contained in it from the very first. The non-patrician
families of wealth and consideration had long ago separated from the
plebs, and leagued themselves with the patriciate in the participation
of senatorial rights and in the prosecution of a policy distinct from
that of the plebs and very often counteracting it. The Licinian laws
abrogated the legal distinctions within the ranks of the aristocracy,
and changed the character of the barrier which excluded the plebeian
from the government, so that it was no longer a hindrance unalterable
in law, but one, not indeed insurmountable, but yet difficult to be
surmounted in practice. In both ways fresh blood was mingled with
the ruling order in Rome; but in itself the government still remained,
as before, aristocratic. In this respect the Roman community was a
genuine farmer-commonwealth, in which the rich holder of a whole hide
was little distinguished externally from the poor cottager and held
intercourse with him on equal terms, but aristocracy nevertheless
exercised so all-powerful a sway that a man without means far sooner
rose to be master of the burgesses in the city than mayor in his own
village. It was a very great and valuable gain, that under the new
legislation even the poorest burgess might fill the highest office
of the state; nevertheless it was a rare exception when a man from
the lower ranks of the population reached such a position,(11) and
not only so, but probably it was, at least towards the close of
this period, possible only by means of an election carried by
the opposition.
New Opposition
Every aristocratic government of itself calls forth a corresponding
opposition party; and as the formal equalization of the orders only
modified the aristocracy, and the new ruling order not only succeeded
the old patriciate but engrafted itself on it and intimately coalesced
with it, the opposition also continued to exist and in all respects
pursued a similar course. As it was now no longer the plebeian
burgesses as such, but the common people, that were treated as
inferior, the new opposition professed from the first to be the
representative of the lower classes and particularly of the small
farmers; and as the new aristocracy attached itself to the patriciate,
so the first movements of this new opposition were interwoven with the
final struggles against the privileges of the patricians. The first
names in the series of these new Roman popular leaders were Manius
Curius (consul 464, 479, 480; censor 481) and Gaius Fabricius (consul
472, 476, 481; censor 479); both of them men without ancestral lineage
and without wealth, both summoned--in opposition to the aristocratic
principle of restricting re-election to the highest office of the
state--thrice by the votes of the burgesses to the chief magistracy,
both, as tribunes, consuls, and censors, opponents of patrician
privileges and defenders of the small farmer-class against the
incipient arrogance of the leading houses. The future parties were
already marked out; but the interests of party were still suspended
on both sides in presence of the interests of the commonweal. The
patrician Appius Claudius and the farmer Manius Curius--vehement in
their personal antagonism--jointly by wise counsel and vigorous action
conquered king Pyrrhus; and while Gaius Fabricius as censor inflicted
penalties on Publius Cornelius Rufinus for his aristocratic sentiments
and aristocratic habits, this did not prevent him from supporting the
claim of Rufinus to a second consulate on account of his recognized
ability as a general. The breach was already formed; but the
adversaries still shook hands across it.
The New Government
The termination of the struggles between the old and new burgesses,
the various and comparatively successful endeavours to relieve the
middle class, and the germs--already making their appearance amidst
the newly acquired civic equality--of the formation of a new
aristocratic and a new democratic party, have thus been passed
in review. It remains that we describe the shape which the new
government assumed amidst these changes, and the positions in which
after the political abolition of the nobility the three elements of
the republican commonwealth--the burgesses, the magistrates, and
the senate--stood towards each other.
The Burgess-Body--
Its Composition
The burgesses in their ordinary assemblies continued as hitherto to
be the highest authority in the commonwealth and the legal sovereign.
But it was settled by law that--apart from the matters committed once
for all to the decision of the centuries, such as the election of
consuls and censors--voting by districts should be just as valid
as voting by centuries: a regulation introduced as regards the
patricio-plebeian assembly by the Valerio-Horatian law of 305(12) and
extended by the Publilian law of 415, but enacted as regards the
plebeian separate assembly by the Hortensian law about 467.(13) We have
already noticed that the same individuals, on the whole, were entitled
to vote in both assemblies, but that--apart from the exclusion of
the patricians from the plebeian separate assembly--in the general
assembly of the districts all entitled to vote were on a footing of
equality, while in the centuriate comitia the working of the suffrage
was graduated with reference to the means of the voters, and in so
far, therefore, the change was certainly a levelling and democratic
innovation. It was a circumstance of far greater importance that,
towards the end of this period, the primitive freehold basis of the
right of suffrage began for the first time to be called in question.
Appius Claudius, the boldest innovator known in Roman history, in his
censorship in 442 without consulting the senate or people so adjusted
the burgess-roll, that a man who had no land was received into
whatever tribe he chose and then according to his means into the
corresponding century. But this alteration was too far in advance
of the spirit of the age to obtain full acceptance. One of the
immediate successors of Appius, Quintus Fabius Rullianus, the famous
conqueror of the Samnites, undertook in his censorship of 450 not to
set it aside entirely, but to confine it within such limits that the
real power in the burgess-assemblies should continue to be vested in
the holders of land and of wealth. He assigned those who had no land
collectively to the four city tribes, which were now made to rank not
as the first but as the last. The rural tribes, on the other hand,
the number of which gradually increased between 367 and 513 from
seventeen to thirty-one--thus forming a majority, greatly
preponderating from the first and ever increasing in preponderance,
of the voting-divisions--were reserved by law for the whole of the
burgesses who were freeholders. In the centuries the equalization of
the freeholders and non-freeholders remained as Appius had introduced
it. In this manner provision was made for the preponderance of the
freeholders in the comitia of the tribes, while for the centuriate
comitia in themselves the wealthy already turned the scale. By this
wise and moderate arrangement on the part of a man who for his warlike
feats and still more for this peaceful achievement justly received the
surname of the Great (-Maximus-), on the one hand the duty of bearing
arms was extended, as was fitting, also to the non-freehold burgesses;
on the other hand care was taken that their influence, especially
that of those who had once been slaves and who were for the most part
without property in land, should be subjected to that check which
is unfortunately, in a state allowing slavery, an indispensable
necessity. A peculiar moral jurisdiction, moreover, which gradually
came to be associated with the census and the making up of the
burgess-roll, excluded from the burgess-body all individuals
notoriously unworthy, and guarded the full moral and political
purity of citizenship.
Increasing Powers of the Burgesses
The powers of the comitia exhibited during this period a tendency to
enlarge their range, but in a manner very gradual. The increase in
the number of magistrates to be elected by the people falls, to some
extent, under this head; it is an especially significant fact that
from 392 the military tribunes of one legion, and from 443 four
tribunes in each of the first four legions respectively, were
nominated no longer by the general, but by the burgesses. During this
period the burgesses did not on the whole interfere in administration;
only their right of declaring war was, as was reasonable, emphatically
maintained, and held to extend also to cases in which a prolonged
armistice concluded instead of a peace expired and what was not in
law but in fact a new war began (327). In other instances a question
of administration was hardly submitted to the people except when the
governing authorities fell into collision and one of them referred
the matter to the people--as when the leaders of the moderate party
among the nobility, Lucius Valerius and Marcus Horatius, in 305, and
the first plebeian dictator, Gaius Marcius Rutilus, in 398, were not
allowed by the senate to receive the triumphs they had earned; when
the consuls of 459 could not agree as to their respective provinces of
jurisdiction; and when the senate, in 364, resolved to give up to the
Gauls an ambassador who had forgotten his duty, and a consular tribune
carried the matter to the community. This was the first occasion on
which a decree of the senate was annulled by the people; and heavily
the community atoned for it. Sometimes in difficult cases the
government left the decision to the people, as first, when Caere sued
for peace, after the people had declared war against it but before
war had actually begun (401); and at a subsequent period, when the
senate hesitated to reject unceremoniously the humble entreaty of
the Samnites for peace (436). It is not till towards the close of
this epoch that we find a considerably extended intervention of the
-comitia tributa- in affairs of administration, particularly through
the practice of consulting it as to the conclusion of peace and of
alliances: this extension probably dates from the Hortensian law
of 467.
Decreasing Importance of the Burgess-Body