We pass over the unimportant wars with the Æquians and Sabines, and
over some laws which indeed are of the greatest moment for the study
of antiquity. If we could review in detail the debates on the Lex
Terentilia concerning the equalization of the two orders, it would be
very interesting; but this is impossible, and we can only dwell on
quite detached notices. One of them is this, that a trireme was sent
out from Rome with three envoys to collect the Greek laws, particularly
those of Athens. The credibility of this story has been much discussed.
I now retract the opinion which I expressed in the first edition of
my Roman History. I had considered as little as my predecessors, that
the questions whether the Roman laws have sprung from the Attic ones,
or whether envoys went from Rome to Athens, are quite distinct. If the
question be put in this way,--“Are the Roman laws borrowed from those
of the Athenians?” the answer is a decided “No.” Two laws of Solon
only are quoted in support of it, which are said to be met with in the
Pandects; yet these are not only quite insignificant, but they are also
such as might just as well be borrowed from other codes: we may find
as many detached Germanic laws, which coincide with the Roman ones.
Nor can we know how far the common descent from the Pelasgian stock
may have produced a similarity of laws. All that is distinctive in the
Roman law, is not to be found in the Athenian; and distinctive it is
with regard to the rights of persons and things. Never had the Greeks
the right of paternal authority like the Romans; never the law, that
the wife by her marriage entered into the relation of a daughter and
co-heiress; never the _jus mancipii_, the formality in the purchase.
The difference between property by formal purchase and simple property,
between property and hereditary possession, does not exist in the
Attic law: the Roman law of inheritance, the Roman law of debt; the
Roman system in contracts of borrowing and lending, are quite foreign
to the Athenians; the Roman method of procedure is thoroughly different
from the Attic. The Attic law belongs to a much later time, when the
forms were already very polished; and we behold in Athens a social
body which is deficient in the very features which distinguish the
Romans. And what we also know of the laws of the other Greek nations
has nothing to do with the Romans. If the laws of the states in Magna
Græcia should chance to bear any resemblance to those of Rome, this
is certainly much rather owing to their having sprung from the same
Italian source. Thus in the _tabula Heracleensis_, the law of the _ager
limitatus_ seems to have been similar to that which was in force at
Rome.
For this reason, therefore, the story has been deemed untrue; yet for
all this, the real facts may have been quite different. Every one has
often in his life done things after long consideration which have never
attained their object: the same may happen to a state. The embassy
falls just within the time of Pericles, between the Persian and the
Peloponnesian wars, the period when Athens was most flourishing, and
the fame of that most powerful and enlightened city was certainly
spread far and wide. That the senate at a much later age, in the days
of Cassander, when wishing to set up a bust of the wisest Greek, did
not make choice of Socrates but Pythagoras, was quite in the spirit of
the Italian nation; yet that they selected Alcibiades as the bravest,
proves how familiar Athens was to the minds of the Romans. They may
therefore indeed have sent this embassy not wholly without purpose,
as they seem to have derived advantage from it for their political
constitution.
There is yet this other tradition concerning this legislation, that
a wise Ephesian named Hermodorus, who was staying at Rome, had been
consulted about it by the decemvirs. He is said to have been a friend
of the great Heraclitus, and to have been banished from Ephesus because
he was too wise (ἡμέων μηδεὶς ὀνήϊστος ἔστω). Down to a late period,
there was shown at Rome a _statua palliata_ which was referred to
him. The tradition is old, and Hermodorus was not so renowned that
the Romans should have called him their teacher without good reasons.
He could play the part of adviser, as the object of the legislation
was laid down, which was to do away with the difference between the
two orders, and so far to modify the constitution, that both of these
might as much as possible constitute one whole; then also to effect a
limitation of the _imperium_ of the consuls. For all this the civil
code has no Greek sources whatever. There are points in the Roman law,
of which we know for certain that Solon had already abolished them; and
in the criminal code there are still greater discrepancies.
The plan from the very first, was to appoint a mixed commission for
making laws. In Livy it looks as if the plebeians had entertained the
preposterous idea of appointing the lawgivers exclusively from their
own order, five in number; but Dionysius has the number ten, evidently
therefore there were to be five patricians, and five plebeians. Very
strange again is the statement of Livy that the plebeians had earnestly
requested, that, if it was once intended to have a revision of the
laws, and the patricians did not wish the plebeians to have a share
in it, these would begin alone, and come to an agreement with them
with regard to the fundamental principles only. People were therefore
sensible enough to see, that a mixed commission would only breed the
most bitter quarrels among its members; and that on that account all
had better be chosen from one order, when the main points were once
settled. Nevertheless it is remarkable that all the writers agree
in asserting that the obnoxious laws, the ones which were hostile
to the liberty of the plebeians, were on the two last tables, which
derived their origin from the second set of decemvirs. The ten first
are not attacked; they merely granted isonomy, which had already been
agreed upon, as Appius in Livy says, _se omnia jura summis infimisque
æquasse_. The quite different rights of patricians and plebeians were
made equals; so that with regard to the patricians also, personal
arrest, and personal bail could take place.
Undoubtedly, the ten first decemvirs were all patricians from old
families; _decemviri consulari potestate legibus scribundis_, was
their name according to the consular Fasti which have been recently
discovered. They were appointed in the place of the consuls, the
city præfect, and the quæstors. But, are Livy and Dionysius correct
in stating that the tribunate also was abolished? It is not to be
believed. It would have been madness, if the plebeians had thus given
themselves up with their hands fettered. At the second decemvirate
only, we find them _appellationi invicem cedentes_: we then meet with
C. Julius, who brings a criminal cause before the people. The tribunes
must have said, we are willing that there shall be ten patrician
lawgivers, but the continuance of the _leges sacratæ_ is to us the
guarantee of our rights; for the _leges sacratæ_ referred to the
tribunate. The mistake may easily be accounted for; it arose, because
such was the case under the second tribunate. On this supposition,
that the tribunate was not abolished during the first decemvirate, and
that a general law of the land was the object aimed at, every thing is
clear. All the points about which there might be dispute, were reserved.
Besides drawing up a general code of laws, they were also commissioned
to settle the constitution on the basis of equality between the two
orders. In this constitution which they worked out, the tribunate was
to be done away with, and the supreme authority to be held by men of
both classes. The five last names which Livy mentions in the second
decemvirate, are plebeian, from families which do not occur in the
Fasti before the Licinian laws. Three among them, Dionysius expressly
names as such; with regard to the two others, who, it is stated,
were chosen by Appius and the chief men from the lesser clans, it is
equally evident to any one who knows the Roman houses, and therefore
Livy places them at the bottom of the list. The mistake of Dionysius
arises from his having confounded the two decemvirates. The first
decemvirate represented the _decem primi_ of the senate, chosen by
the centuries from a προβούλευμα of the Patres; the second, on the
contrary, was a συναρχία after the pattern of the archons of Attica,
perhaps even originating in the knowledge of the Athenian laws. The
second election was quite different; the most eminent as well as the
most humble patricians solicited the votes of the plebeians. Here for
the first time we meet with canvassing, and therefore perfect freedom
of election. There were six _Tribuni Militares_, three patricians and
three plebeians, who were intrusted with the real command in war: of
the rest, two are to be considered as invested with the censorial
power, combined with that of the _Præfectus Urbi_, and with the
presidency of the senate; the two others, with the authority of the
quæstors, being also in certain cases charged with military functions.
Of course, in each of these two pairs were also one patrician and one
plebeian. If, therefore, Dionysius had read that there were three
patrician and three plebeian _Tribuni Militares_, he might,--as the
old books were surely written in very obscure language,--have easily
overlooked the circumstance that the other four were likewise equally
divided among the two orders. The three plebeians, acknowledged as such
by Dionysius, are Q. Poetelius, C. Duilius, and Sp. Oppius.
This constitution was intended to last for ever, and it is easy to
see what was the object which its authors had before them, and in
what manner it was secured. From that time, the distinctions between
the older and the younger clans (_gentes majores_ and _minores_),
altogether disappear. These lawgivers took the same view of the state,
as the government. For they reasoned thus:--that, as the state had
become unprosperous since the Publilian law, the question was merely
this, that the decemvirs should have the authority of the tribunes to
bring any matter to discussion. In this manner, the _Plebes_ would
obtain all that it could reasonably ask for: _Plebes_ and _Populus_
would stand each for itself by the side of the other, but should
together form a whole. The _Plebes_ would not then want any more
tribunes, as one might indeed appeal from the patrician to the plebeian
decemvirs. Moreover, it was fair that the patricians and the plebeians
should share the senate, yet that the plebeians should only come in
by degrees, until they had a certain number. The two orders were to
be carefully distinguished; but yet be invested with equal power. The
former law, that the _gentes_ should send their representatives into
the senate, and that when a gens became extinct, the cury, or perhaps
the consuls, had the election,--these last, however, having a power
far more limited than the censors afterwards, were to be replaced by a
new institution. A special authority was to be created, which had to
superintend and to decide on the changes from one step to another in
the scale of civic rank; which should receive the _ærarius_ into the
_Plebes_, and place the plebeian nobles on an equal footing with the
patrician ones. These are the chief points of the second decemviral
legislation: what were the results of these laws, and how little they
answered men’s expectations, is shown by the subsequent history.
Of the statutes of the Twelve Tables concerning the civil law, there
has hardly any thing been preserved. Among the little that we know, is
a decree, which was on one of the two last Tables, that there should
not be any _connubium_ between the _Plebes_ and the _Patres_. This
principle is fraught with such consequences, that the spirit of the
whole legislation may be judged from it. The ordinance is generally
looked upon as an innovation, for instance, by Dionysius, and by Cicero
in the books _De Republica_; but this is all grounded upon the mistaken
belief that this body of laws was entirely new, as if the Romans before
that time had either had no laws at all, or altogether different ones.
No one in the ancient world took it into his head to make quite a new
system of laws; they merely amended those which they had inherited. As
it was now intended to bring the orders nearer to each other, and to
equalise their rights, they surely could not have established such a
separation between them as a new institution. In the middle ages also,
a legislation merely sprung from the will of the lawgiver is scarcely
to be traced anywhere: it is to be found in the laws of the emperor
Frederic II. only, as Savigny has observed. The opinion of the above
mentioned writers is therefore based on nothing but their own fancy;
so that there is no authority for it, but on the contrary its extreme
improbability in every respect is against it.
New, however, is another and most important point, the unlimited right
of disposing by will which was granted by the _leges XII. tabularum_.
This right was bestowed upon every _pater familias_, and it gave to
the later jurists occasion for most important changes: it cannot have
existed from the earlier ages. The consequence of it was a double form
of will, before the curies and _in procinctu_, that is, before the
symbol of the centuries, these representing the _exercitus vocatus_.
Before these the testator declared his will: if it was on the eve of
a battle, the soldier made his declaration before the army itself; if
a patrician wished to dispose of his fortune, the Pontifex maximus
summoned the curies, and these were first to confirm the dispositions
of the will. The reason of this was founded on the respective position
of the parties. If a person left children, then in the earliest times
it may only have been rarely that a will was made; if he remained
childless and there were cousins, the latter inherited, otherwise the
clans; but, if the clan was quite extinct, the cury inherited. Now,
when Plautus says in the Aulularia,[103]
_Nam noster nostræ qui est magister curiæ,_
_Dividere argenti dixit nummos in viros_,
I was formerly of opinion, that this was a mere translation from the
Greek; for, Euclio represents an _ærarius_, and what had he to do
with a cury? But it is rather a Roman state of things: some property
has accrued by death to the cury, and this inheritance is divided
_viritim_.[104] In the same manner, the plebeians may have had
gentilician inheritances, which at last fell in to the tribes; if,
however, there was a will, the _exercitus vocatus_, that is to say
the centuries, had to give their consent, because for making a will
auguries had been requisite, which the tribes of the plebeians had
not. A similar system of inheritance still exists to this day in the
island of Fehmern, where there are two clans with Dittmarsch rights
and customs. If any one belonging to them wishes to make his will, he
is obliged to give the cousins a small sum, as compensation for the
money which would properly be due to them. This has been kept up there,
whilst in Dittmarsch it has become quite obsolete, nor have I anywhere
among all the other clans in Germany found any trace of it; from which
circumstance we may see, how of important general rights only a few
scattered relics will oftentimes remain behind.--The curies might, of
course, originally give a negative answer in the case of such a will;
but when it was laid down in the Twelve Tables, _Paterfamilias uti
legassit super pecunia tutelave suæ rei, ita jus esto_, it is clear
that the consent was only _dicis causa_. This ordinance has had an
immense influence on the Roman manners: yet it was necessary, because
the _connubium_ of the two orders had not been permitted. Even the
child of a plebeian by a patrician woman could not inherit by law,
and therefore it was necessary to have a law of inheritance. When
the prohibition of the _connubium_ was afterwards removed, the free
disposition of property was still allowed, and in the later profligate
ages, it gave rise to the most shameful abuse. That in early times
such a tendency was already perceptible, is proved by the _Lex Furia
testamentaria_, which I have good ground for placing about the year 450.
The law of debt must also have been on one of the two last tables,
as Cicero describes it as thoroughly unfair. It was binding for
plebeians only. Those two tables, we may be sure, consisted chiefly of
exceptions. The most important part of the legislation of the Twelve
Tables, is that _jus publicum_ which was entirely overlooked by the
earlier commentators, who believed them to have been a code of laws
like that of Justinian, only most imperfect and barbarous. But Cicero
and Livy call them expressly _fons omnis publici privatique juris_; and
Cicero, in the examples in his books _de Legibus_ which are taken from
the laws of the Twelve Tables, speaks also of public administration.
Yet the Twelve Tables certainly did not touch upon any subject that
remained unchanged, as for instance, the whole system of the centuries;
of the alterations in the political law which were found in them,
we have only a few traces. One of these is the enactment that no
_privilegia_ should be issued any more, that is to say, no laws against
individuals, nor condemnations of individuals; there must therefore at
that time have been methods of proceeding with regard to individuals
similar to ostracism at Athens. It is moreover likely that charges were
no longer brought by one of the two orders before the other, and that
the centuries were looked upon as a grand national court of justice. We
have no authority for this; yet, though every story cannot be warranted
in detail, thus much on the whole is certain from the events which
occurred, that until then accusations were made before the _Plebes_
by the tribunes, and before the curies by the quæstors, but that
afterwards such impeachments are no more heard of. Prosecutions before
the tribes on account of individual offences are indeed met with; but
they are no more connected with the antagonism of the two orders.
Probably at that time also the change arose which is afterwards clearly
to be perceived, that the clients entered into the tribes; for the
plebeian tribes, besides what they were from their particular nature,
were also intended to be a general national division, of which we find
several hints. Yet it may also have taken place a hundred, or a hundred
and twenty years later. If Camillus was condemned by the tribes, it may
perhaps be explained in this way, as in his trial his fellow-tribesmen
are spoken of. Cicero among the wise laws of the Twelve Tables which he
receives in his _Leges_, mentions, with reference to his own tumultuary
condemnation by the tribes, that _de capite civis_ could only be judged
_per comitiatum maximum_. It cannot indeed be positively asserted,
that previous to the legislation of the decemvirs, the centuries had
not been called upon to give judgment; I have, however, discovered
a formula which belongs to an earlier time, and perhaps refers to
trials by the centuries, and something definite may yet be found
with regard to this point. If it was so, the practice must have been
introduced shortly before the time of the decemvirs; previous to this,
the _judicia capitis_ were with the curies and tribes. The trials of
Coriolanus and C. Quinctius are not yet held before the centuries.
If in after times one still finds an instance of a condemnation by
the curies, it is an unlawful act of arbitrary power. The tribunes
therefore now bring the charge of a _crimen capitis_ before the
centuries, and a mere _multa_ before the tribes; and it often happens
in such a case, that the person condemned goes into exile, and loses
his right of citizenship. Here the saying of Cicero in his oration
_pro Cæcina_ holds good, that exile does not necessarily imply the loss
of the right of citizenship; for, exile being no punishment, the loss
of the right of citizenship is incurred only by the reception into the
foreign state. In this light we must look upon the condemnation of
Camillus, if ever he was condemned by the tribes, and not, as is far
more probable, by the curies.
In this manner, the sphere of the nation as a whole, was very much
enlarged, and instead of distinct appeals to one of the two orders,
there are scarcely any appeals but those to the centuries to be met
with. The existence of this law is quite enough to prove how wrong they
are who believe, that in this the decemvirs had arrogated to themselves
the whole of the jurisdiction. They have confounded with it the fact,
that now that the old appeal to the orders was done away, one had
to appeal from one board to the other. Instances of appeal from the
consuls to the people are very seldom met with from henceforth; and
even then, they are altogether problematical. It is most likely that
the appeal to the tribunal of the assembled commonalty was abolished,
and that the tribunes as the direct representatives of the commonalty
took its place, and that by a natural development of the constitution;
for a resolution of the commonalty at large is after all a mere form.
Other laws also which are mentioned, might be considered as
innovations; for instance, that one who is pledged for debt should have
equal rights with him that is free.
From the time of the battle at the Regillus, the narratives of
Dionysius and Livy are in many years quite in agreement with each
other, and there are rarely any discrepancies of importance. The
history of the legislation of the decemvirs is also an instance of
this harmony. Other accounts, however, few as we have remaining, do
not at all tally with them; so that their accordance is not exactly a
proof of their historical truth, and we must suppose that both these
historians happened to make use of the same sources for that period.
The narrative, especially in Livy, is exceedingly fine and highly
wrought. It has already been remarked, that probably the intention was
to establish the decemvirs as a permanent magistracy, the consulship
and tribunate being abolished; and that the decemvirs of the second
year were not chosen as lawgivers, but as supreme rulers, although they
were authorised to add two more tables. Another supposition which I
set forth pretty positively, is this,--that these decemvirs were not
elected merely for one year, but for several, perhaps for five. There
is a tradition handed down to us, that they did not go out of office on
the Ides of May, and this is considered as an usurpation. If it were
so, this would be a real δυναστεία in the true Greek acceptation of the
word (it is used in contraposition to τυραννίς, a distinction which
is foreign to the Roman language, although not without an example in
ancient history).[105] According to an invariable principle, it must
have been intended in the election of the decemvirs, that those who
should be invested with this dignity, should forthwith pass into the
senate; but ten persons every year would give too great an increase.
It seems much more likely that the fact of their being appointed for
longer than one year was overlooked, than that they should arbitrarily
have prolonged their tenure of office, which they indeed could hardly
have ventured upon doing.
The history now shows us in the second year the decemvirs in possession
of every magisterial power. They are stated to have kept a guard of
an hundred and twenty lictors (ῥαβδοφόροι), twelve men each. This
was in the style of all the Greek oligarchs; these lictors therefore
had quite a different meaning from those of the consuls; they are
the σωματοφύλακες of the Greek tyrants. Now the decemvirs of Livy
and Dionysius are represented as criminal tyrants. This account is,
however, to be received with just as much caution as most of the
stories of the ancient tyrants; for, the worst monsters of history
in most instances did not commit crimes for the sake of outrage, but
for quite different purposes. Thus also Cicero tells us, that though
the decemvirs did not altogether behave as good citizens, yet one
of them, C. Julius, respected the public liberties, and summoned
the people to pass judgment on one who was not _reus manifestus_.
Among them were Appius Claudius and Sp. Oppius, the presidents of
the senate; these exercised the jurisdiction in the city, and they
seem also to have possessed the censorial power. Now, it is stated by
Livy in a very lively description, that the Forum and the Curia had
grown silent, that the senate had been called together but rarely,
and that no _comitia_ had been holden. This was quite natural. The
tribunes were done away with, there was therefore nobody to harangue
the people in the Forum; politics there were none, the constitution
being quite new, nor was there any change to be made in the civil law;
the senate was convoked but rarely, because the board of the decemvirs
could manage most of the affairs alone; the patricians therefore
went into the country, and minded their estates, and the city passed
all at once into a state of the most unruffled peace. Yet the people
was so much used to excitement, that it longed for fresh agitation;
there was an uncomfortable feeling abroad, because every thing that
had filled the whole mind of the public had now for once ceased to
exist. In unsettled times, such a transition is very dangerous; just
as when one who is accustomed to the use of strong stimulants, or
to gambling, is suddenly obliged to give them up. Thus it was in the
year 1648, when the Dutch had concluded the peace of Munster with the
Spaniards according to the accounts of contemporary writers, people
found the state of things insufferably tedious, and thence arose a
wild sort of life, and the differences between William II. and the
city of Amsterdam. Every circumstance, be it ever so trifling, was
laid hold of on which men might vent their passions. The very same
thing occurred in France just after the restoration. When such a temper
prevails, the necessary consequence is a very sore feeling between
government and people. The Romans became discontented with their new
constitution. Even though the decemvirs had not been had, or no one
else but Appius Claudius had been such, they could not have been borne
with, and the people would not have remained quiet. Much besides may
be guessed. The plebeians had been mistaken in the men of their order
who had become decemvirs. Just at first indeed, the protection of the
tribunes is stated not to have been missed; but gradually these persons
thought fit to use their power for their own benefit, and to show the
same exclusive spirit as the rest. It is easy to understand that the
plebeian Sp. Oppius was decidedly most obnoxious, since he addicted the
debtor as much as Ap. Claudius did. Such accusations had until then
been brought against patricians only.
That a war broke out with the Æquians and Sabines, was an event of
which the decemvirs might indeed have been glad, as they gained by it
an opportunity of giving the people employment. We are now told that
patriots, L. Valerius Potitus and M. Horatius Barbatus, had got up in
the senate, and had required the decemvirs first to resign their power;
but that the majority of the senate had decided upon the levy. The
speeches which are found in Livy on this occasion, I look upon as empty
declamations which have arisen from the belief, that the decemvirs had
usurped their office. The enemy had invaded and plundered the country;
resistance was necessary; there was no time for deliberation. Also
there was nothing more easy than such an enlistment, as there were no
more tribunes. Just as little foundation does there seem to be for the
story of the assassination of L. Siccius; it looks too poetical. The
only fact which we can gather from it is, that two Roman armies took
the field, of which the larger host stood on the Algidus against the
Æquians. In the meanwhile a crime happened in Rome, of a nature which
was quite common in the Greek oligarchies, Appius Claudius having
fallen in love with the daughter of a centurion L. Virginius, very
likely a relative of the tribune Virginius. That her death, like that
of Lucretia, became the cause of the downfall of the decemvirs, is
uniformly stated by all the accounts; the story is most ancient, and
there is no reason to doubt it. The rape of women and boys is quite
a common crime of the tyrants against their subjects. Aristotle and
Polybius also tell us explicitly that the overthrow of oligarchies was
often brought about by such outrages against female virtue. Appius
Claudius suborned a false accuser, one of his clients, to assert that
the real mother of Virginia had been his slave, who had sold her to
the wife of Virginius, as the latter, being barren, wished to pass off
the child as her own; and this he offered to prove by the testimony
of false witnesses. Appius was resolved upon adjudging the slave to
him; yet this was contrary to the law of the Twelve Tables, for, if
the freedom of a Roman citizen was impugned, he could claim to remain
in possession of it; only he had to give bail, as the value of the
person might be estimated in money. This was called _vindiciæ secundum
libertatem_; Appius wanted to give them _contra libertatem_. Upon this,
all who were in the Forum flocked together, and adjured him to put off
the sentence, at least until the father, who was serving in the field,
should be able to return. When the lictor tried to use force, such a
number of plebeians filled the market-place, that Appius had not the
courage to insist upon his decision, but requested the plaintiff to
rest content with the surety until the next court-day; yet in order
to prevent any thing that might appear like a conspiracy, the morrow
was named for the trial. At the same time, he sent messengers into the
camp to have the father detained with the army; but the latter had
already been fetched beforehand by the betrothed lover of the maiden,
and other kinsmen, and he appeared on the following day in the Forum.
The semblance of justice was now abandoned. Had Appius allowed the
cause to be tried in due form, the father would have unmasked the
lie; and so he said that he was satisfied that the damsel was the
slave of the plaintiff, and ordered her to be taken away. Amidst the
general dismay at this decision, Virginius collected himself; and
while pretending to bid farewell to his daughter, and to put some
questions to the nurse, he stabbed her with a knife taken from one of
the stalls in the Forum, under a portico, and with the bloody weapon
walked unmolested out of the city back into the camp again. Here the
soldiers unanimously refused obedience to the decemvirs, the two armies
joining. But the accounts contradict each other: some state that they
occupied the Sacred Mount, and at the first secession the Aventine;
others the reverse. It is to be remarked that the commonalty has now
twenty leaders, and is therefore standing again under the guardianship
of its tribunes (phylarchs). These elected among themselves two men
who were to hold the presidency, and to treat with the authorities,
whom the people in the city had abandoned. The _tribuni sacrosancti_
were abolished by the decemviral constitution; but the _tribuni_
had continued as wardens of their tribes. With these at their head,
they held out against the senate and the decemvirs in a more decided
insurrection than that of forty years before; for at that time they had
separated themselves in order to recover their rights, but now they
were completely armed as for war. In this contest the decemvirs must
needs have succumbed, especially as many patricians evidently fell off
from them, although, as Livy correctly remarks, they were for the most
part well pleased with the decemviral constitution, as they were freed
by it from the tribunician power. Nevertheless there were many, as for
instance Valerius and Horatius, who were for the restoration of the old
constitution, because they were convinced that the tribunate worked in
a very wholesome manner as a check upon the power of the consuls. Thus
it was determined to treat with the _Plebes_, and a peace was concluded.
We have yet some remnants of discrepant accounts concerning the
downfall of the decemvirs. Quite different from ours is that of
Diodorus, which might have been borrowed from Fabius, did it not
contain a fact which is rather strange. According to this version, the
decision happened much sooner than Livy places it; on the day after
the occupation of the Aventine, peace had been already concluded.
According to Cicero, the secession lasted for a long time; nor does
he know anything of what Livy says about Valerius and Horatius having
been the mediators. Valerius he afterwards mentions as consul, and as
continually engaged in reconciling all parties. These are signs of
a discrepancy in the traditions, although the character of this age
was on the whole quite different from what it had been before, and
thoroughly historical. There is an account in Cicero that the plebeians
went from the Sacred Mount to the Aventine, which is certainly false.
They always occupied the Aventine; and the obscure Lex Icilia had also
probably reference to this point, that the Aventine should be excluded
from the union with Rome, and, as the peculiar seat of the plebeians,
be ruled by their own magistrates. We must therefore understand this
statement of his to mean, that the army had betaken itself to the _Mons
Sacer_, and that it had then marched to the towns, and united with the
men of its own order on the Aventine. The Capitol was given up to
the armed troops, and the circumstance of this surrender is a marked
proof of the difference of the then plebeians from those of forty years
before. The plebeians were conquerors to all intents and purposes.
The decemvirs laid down their office. The first election which was
now proceeded with, was that of the ten tribunes under the presidency
of the _Pontifex Maximus_, which is the strongest possible form of
acknowledgment on the part of the patricians; the plebeian magistracy
makes its own inviolability part and parcel of the sacred law. By a
most remarkable anomaly, they hold the councils in what was in later
times the _Circus Flaminius_, which was for the plebeians what the
_Circus Maximus_ was for the patricians. This happened in December:
since that time the tribunes regularly entered upon their office
in that month. In order to settle the affairs of the state, it was
resolved to elect again two patrician magistrates; yet not under
the former title of prætors, but under that of consuls, as Zonaras
tells us. This change of designation proves, that the magistracy was
considered as distinct from the former one; it was a less elevated
dignity: _prætores_ were “such as took the lead, generals;” _consules_
were only “colleagues,” quite a general name like _decemviri_. This
new form of the consulate was not, however, designed to reintroduce
the old constitution, and to abolish the decemvirate; but it was
merely an extraordinary and temporary measure, a proof of which is
the further extension, at this period, of the law which denounced
outlawry against him who had offended against tribunes or ædiles, in
favour of the tribunes, ædiles, judges, and decemvirs. This law has
been much discussed; the mention of the decemvirs in it is a certain
fact. The great Antonius Augustinus, bishop of Tarragona,--a man
highly distinguished for his knowledge of the old monuments and of the
political law, but who, with great historical talent, was unfortunately
deficient in grammatical acuteness,--has already seen that the
_judices_ here are the _Centumviri_, the judges who were appointed by
the _Plebes_, three for each tribe, to decide in all causes concerning
Quiritary property. He merely threw out this assertion; I have proved
it fully in the latest edition of my History. Even as these _judices_
were said to have meant the consuls, and the inviolability of these
were derived from thence, thus also with equal incorrectness, the
decemvirs in the law were made out to have been the _decemviri
stlitibus judicandis_; yet these were first appointed in the fifth
century. It refers without doubt to the former _decemviri consulari
potestate_, and indeed to the plebeians among them, as the patricians
were already protected by their old laws.
When the tribunate was restored, the patricians might say, “You were
in the right; the power, which the former prætors had, was too great,
and therefore we shared the decemvirate with you. But now that you
have again your tribunes, the power which you would gain, would be
excessive; and therefore you must leave the decemvirate to us alone.”
This the plebeians did not choose to do; and thus the negotiations for
the restoration of the decemvirate came to a stand still. The consular
power was retained, yet with a considerable modification. According to
trustworthy accounts, the assembly of the electors, down to the year
269, was in possession of an unfettered and real elective franchise.
From that time, first by usurpation and then by compromise, the change
was introduced that one consul was previously to be chosen by the
senate and confirmed by the curies, and the other to be elected by the
centuries. At this period, the election of the centuries was again
perfectly free, with the reservation of its being confirmed by the
curies,--as was the case with all other acts of the centuries,--very
likely a consequence of the legislation of the decemvirs.
The tribunes also had their authority altered in an essential point.
Formerly in that board the majority of votes decided; now, according
to Dionysius, the right was established by virtue of which the protest
of one tribune might paralyse the influence of the whole college, which
is equivalent to an appeal to the tribes. The principle was applied
to them, _vetantis major potestas_. According to Livy this right had
existed already before; yet it is probable that at least it was now
first acknowledged, as the relation of the tribunes to the commonalty
was changed. They were no more the deputies, but the representatives
of their order; which in fact was a corruption of the right, though
the evil consequences of it only became manifest some generations
afterwards. In this point also the government gave a signal proof of
adroitness; for they might always hope to find some one in the board
who would side with them. Cicero says, that the tribunate of the
people preserved Rome from a revolution; that unless tribunes had been
granted to the people, the kings must needs have been retained. The
centuries had now gotten a right of jurisdiction; yet according to the
sacred law, the _comitia centuriata_ had auspices, as the gods were
asked with regard to the matters which were to be discussed, whether
it was their pleasure that they should. Since the tribunes might now
prosecute before the centuries, it also follows that they must have
been empowered to hold auspices (_de cœlo observare_). To this the
statement in Zonaras refers, that the tribunes had received permission
to observe auspices. According to a notice in Diodorus, outlawry was
denounced against any one who should be the occasion of the _Plebes’_
remaining without tribune.--It is quite a phenomenon that at the
close of the year two patricians are found among the tribunes: either
these are patricians who have joined the _Plebes_, or the patricians
set forth the thoroughly sound principle, that the tribunes of the
people, owing to their action upon the machinery of the state, were
no longer a magistracy of a part of the nation, but of the whole.
That at this period many patricians went over to the _Plebes_ is
expressly asserted; yet the other version is also very probable. From
this time, we often find the patricians mentioned as fellow-tribesmen
of the plebeians. At the discussion of the project for the separation
of the _Plebes_ and their settling at Veii, the senators are said to
have gone about _prensantes suos quisque tribules_. In like manner we
are told that Mamercus Æmilius, about fifteen years after the time of
the Decemvirs, had been struck from the list of his tribe, and placed
among the _ærarii_. Camillus also appeals to his _tribules_; yet this
may perhaps have meant his patrician clansmen. That afterwards, in
Cicero’s days, all the patricians were in the tribes is well known.
Cæsar belonged to the _Tribus Fabia_; Sulpicius, to the _Lemonia_.
After the war of Hannibal, C. Claudius says in Livy, that to strike one
from the list of all the five and thirty tribes, was to deprive him of
the right of citizenship. M. Livius expels his colleague Claudius from
the tribes. The number of these examples might easily be enlarged. In
the earlier times, there were patrician and plebeian tribes; in the
later, the Ramnes, Tities and Luceres are no more spoken of: they only
make their appearance still as the _sex suffragia_ in the centuries.
The whole Roman nation was now thrown together into the same tribes.
The same was done at Athens, when the ten _phylæ_ of the _Demos_ became
the only ones, and the four old mixed tribes were broken up. I believed
formerly that this was to be attributed to the decemviral legislation;
yet, if we bear in mind how carefully the decemvirs otherwise
distinguish between the two orders, we cannot possibly suppose, that
in this respect they should have aimed at their fusion. We must place
it at a somewhat later period, and we are led to decide upon the time
of the second censors; it was therefore soon after the decemvirs. In
the fragments of Dio Cassius it is mentioned, that the patricians had
preferred the plebeian order on account of its greater power, and had
passed over to it. Greater power at that time the _Plebes_ had not;
but it had greater strength, and it was easy to foresee what it would
attain to. It was for many a more pleasing position to be in the ranks
of those who were advancing, than of those who stood still.
The decemvirs were brought to justice; Appius Claudius and Sp. Oppius
died in prison. The latter was of plebeian extraction, a proof that we
need not regard the plebeians as the holders of particular virtues.
Wherever a state is divided into factions, the strong party abuses
its might, so that our interest turns to the weaker one. Sp. Oppius
was perhaps one of those who formerly had talked a great deal against
tyranny, and now he had become a tyrant himself. Appius was capitally
impeached by L. Virginius (Aulus Virginius is certainly a mistake of
the transcriber, as the copyists had in their mind the former tribune
of that name): L. Virginius as avenger of the blood of his daughter
had been appointed tribune. He wished, by virtue of his tribunitian
authority, to have Appius cast into prison. Livy’s account of this
leads us to a remarkable point. It is indeed a generally received
opinion, that every Roman citizen had the right of saving himself from
the punishment of death by exile. If such had been the case, one might
well have wondered why capital punishments should indeed have been
instituted at all, of which notwithstanding the old Roman laws have so
great a number. Yet these facts are to be looked upon quite in another
light. The views of the ancients with regard to criminal law are very
different from ours, and perhaps more so than with regard to any other
object in life. According to our notions, a man has also a right to
be tried who has been caught in the very act; it is considered as an
obligation of the prisoner to deny his guilt, and to allow himself to
be convicted by evidence; the lawyers may defend him, and endeavour to
lead the judge into error. Of this the ancients had no idea. If any one
was taxed with having committed a _delictum_, the deposition of the
witnesses was sufficient to have him instantly arrested and dragged
before the magistrate; if it was no _delictum manifestum_, and he was a
plebeian, then he applied to the tribune and gave bail. Should he thus
manage to get free, he might leave his sureties in the lurch and go
into exile. But if, on the contrary, he had been caught in a _delictum
manifestum in flagranti_, and the _testes locupletes_ asserted that
they had been present, thereby identifying his person, no trial was
allowed; but he was, _obtorto collo_, his toga drawn over his head,
conducted before the magistrate, who then at once gave judgment. If
it did not happen to be a court-day, the culprit was in the meanwhile
put into prison. Yet if any body committed a crime worthy of death,
but not, however, of a kind in which it would have been possible to
catch him _in flagranti_, the plaintiff had still a remedy in law by
which the defendant was brought into prison.[106] Thus, for instance,
in the case of Appius Claudius, the charge against him was a crime
punishable by death; he had deprived a citizen of liberty. For this
offence, Virginius prosecuted him; and would not allow him to give
bail, lest by this means he should escape. The prosecutor could then
offer to the accused a _sponsio_, a sort of wager, which consisted on
the part of the prosecutor of a sum of money (_sacramentum_) staked
against the personal liberty of his opponent. The prosecutor said,
Thou hast deprived a citizen of his liberty; the defendant denied it:
if the judge, elected for this purpose, decided for the prosecutor, no
further judgment was needed, but the culprit was at once taken before
the magistrate and executed; if he decided against the prosecutor, the
latter lost the _sacramentum_. But, if the defendant would have nothing
to do with the _sponsio_, he was thrown into prison. The question now
was, whether the prosecutor should be obliged to drop the charge, or to
accept bail. The passages which prove this are to be found in Livy and
Cicero. It was only until the court-day that the culprit remained in
prison, which accounts for the _Carcer_ being so exceedingly small. The
staying there, as also its darkness, was already a foretaste of death:
he who entered it was lost. Cicero says, _carcerem vindicem nefariorum
ac manifestorum scelerum majores esse voluerunt_; either his neck was
broken there, or he was led out and executed. The Greek custom with
regard to imprisonment was much nearer our own.
Yet one remark remains to be added. If one had a charge against a
_filius familias_, the father was judge; in causes against the clients,
the patron.
Another part of the Roman criminal law which is likewise utterly
at variance with ours, is that which takes cognizance of political
delinquencies. For many of them no penalty was fixed, as in such cases
it was the decided opinion of the ancients, and held by them as a
general rule, that the state ought to look to its own preservation
(_salus publica suprema lex esto_). They were well aware that offences
against the state might, when taken severally, have the most varied
shades: the same act outwardly may either spring from error, or it may
be the offshoot of the darkest crime, and it is therefore impossible
to assign a distinct penalty for every single case. Hence the Greeks
and Romans had for all the _judicia publica_ this most important right,
that the prosecutor could sue for a certain penalty in proportion to
the matter in question, even though a different degree of punishment
might have been inflicted for the same act in another instance. The
same privilege was applicable, it seems, even to _judicia privata_,
whenever the criminal code was insufficient; instead of which, in
modern times, the foolish notion was entertained that punishment must
only proceed from a distinct law, a wretched opinion which has really
got the upperhand every where. The ancients held just the opposite
principle. The boy who tortured an animal was doomed to die by the
popular assembly of the Athenians, although the laws contained nothing
for the protection of animals. Hence a man might also be condemned to
death, provided that he had committed an act which was contrary to the
general feeling of honour.
Until then the patricians had indeed claimed for themselves the
privilege of not being liable to be imprisoned at all; for we are told
that Appius Claudius had called the _Carcer_ the _domicilium plebis_.
Virginius showed himself generous, and granted to Appius a respite that
he might deprive himself of life. Yet Sp. Oppius was executed, because
his crime was of another kind, and not merely against an individual who
might act with mildness. For that he had ordered an old soldier, who
had served twenty-seven years, to be scourged; and that the man had
come forward as his prosecutor, is evidently a fiction. Twenty-eight
years was the time of effective service for a soldier; and here an old
soldier is now brought in, who was in the last year of his military
obligation, evidently as a general representation of tyranny. The other
decemvirs went into voluntary exile, and their goods were confiscated.
One of them was Q. Fabius, the ancestor of what was afterwards the
_Gens Fabia_. The tribune Duilius now proclaimed an amnesty for all
those who had committed any offence in this unfortunate time. This
incident is of great importance for the history of the Roman method of
procedure. I have already, on a former occasion, explicitly stated my
opinion about it; but since the discovery of Gaius, the case has become
much clearer.
LEX HORATIA VALERIA. FURTHER CHANGES IN THE CONSTITUTION. MILITARY
TRIBUNATE. CENSORSHIP. SP. MÆLIUS. VICTORY OF A. POSTUMIUS TUBERTUS
OVER THE VOLSCIANS AND ÆQUIANS. CONQUEST OF FIDENÆ AND VEII.
At first the patricians were in great dismay, and they confirmed all
the laws proposed. Among them is that which gave the _plebiscita_
general validity (_ut quod tributim plebes jussisset populum teneret_).
This law is one of the greatest riddles in Roman history; and it
cannot be solved with any historical certainty, although I have formed
for myself an hypothesis on the subject, of the truth of which I am
perfectly convinced. The law is thus given in Livy; afterwards in the
eighth book he says of the second Publilian law, _ut plebiscita omnes
Quirites tenerent_; and in like manner, Pliny and Lælius Felix in
Gellius quote the law of Hortensius which is to be placed a hundred and
sixty years later; Gaius says concerning the latter, _ut plebiscita
populum tenerent_. When we now consider these three laws,--as to the
Publilian, Livy alone mentions it,--they seem all of them to say the
same thing. Is this really the case; or was the enactment only revived
from time to time, because of its having fallen into oblivion? If we
investigate the character of these laws according to their several
ages, we see that the meaning of each was a distinct one, and that the
import of the _plebiscita_ was differently interpreted at different
periods. The result of my researches is this, that Livy in his mention
of the _lex Valeria Horatia_, was certainly not accurate, because he
did not himself clearly see his way, and the generally known Hortensian
law was present to his mind. The law may have been something to this
effect,--_quæ plebs tributim jusserit_, QUARUM RERUM PATRES AUCTORES
FACTI SINT, _ut populum tenerent_; for, from that time the course
of the legislation was frequently this, that when the tribunes had
gotten a proposition adopted by the commonalty, they laid it before the
curies, who immediately put it to the vote; which was an abridgment
of the proper order of business, according to which the laws approved
by the senate had first to go to the centuries, and then only to the
curies. In the new system, the asking the leave of the senate and the
passing through the centuries were done away with. This was a great
change, as now the discussion might originate with the _Plebes_ itself.
That, however, the _plebiscita_ without the approval of the curies
had no legal force, is evident, especially from the struggle on the
occasion of the Licinian laws; wherefore at that time already, _leges_
may be spoken of with reference to the resolutions of the _Plebes_, for
as soon as the curies had sanctioned them, they were _leges_. Whenever
the _Plebes_ and the curies were not kept asunder by class-interests,
every matter was carried. It is also to be borne in mind, that this law
was enacted, not by a tribunician, but by a consular rogation. The _lex
Publilia_ had been rendered superfluous by the decemviral legislation,
as in this there were no _comitia tributa_.
The later Publilian law of the dictator Q. Publilius Philo, has quite a
different intention. By it the sanction of the curies to a resolution
which had been carried in the tribes, was declared superfluous, as
this course was too circuitous, and the senate after all had the
right of proposing. His law, _ut plebiscita omnem populum tenerent_,
must on the other hand run thus,--_ut plebiscita_ QUÆ SENATU AUCTORE
FACTA SINT, _omnes Quirites tenerent_; for from henceforth it happens
with regard to many enactments concerning the administration, that
the senate commissions the consuls to arrange with the tribunes about
making proposals to the tribes which they were to approve of; yet this
was only with reference to administrative ordinances (ψηφίσματα),
(for instance, whether an extraordinary _imperium_ should be given
to any one), and not to legislative ones (νόμοι). This was a useful
simplification: on certain days only, from religious reasons, might
the curies and centuries be convoked; the tribes on the contrary might
assemble, and did assemble, every day, they were not restricted by
the _dies nefasti_. People saw more and more that the form of general
assemblies was a mere semblance, and too much depending on accident: it
is but fancy to think of votes being the expression of personal will;
impulse, the force of example, does every thing. Clearer and clearer
became the conviction, that the more the state increased, the more
necessary it was to have a settled government; and thus what the Romans
had to do, was to find out forms, which might check the arbitrary sway
of the men in power, and secure publicity. In this especially the
Romans differ from the Greeks, that they confidently gave themselves up
to the personal guidance of individuals, which was never the case at
Athens.
Lastly, the Hortensian law again has quite a different object. It
establishes a true democracy, inasmuch as it lays down the rule that
in legislative measures,--for with regard to administrative ones,
the second Publilian law remained in force,--a previous resolution
of the senate was not necessary, but the _Plebes_ could pass any
decree: at the same time, the power of the curies was taken away. This
is a decided victory of the democracy. The administrative measures
were decrees for particular cases, nor could any thing of this kind
be brought before the _Plebes_ without a previous resolution of the
senate, even so late as the end of the sixth century (570); but for
actual laws the resolution of the _Plebes_ was sufficient. By this
means, the older body of citizens lost its power of regeneration,
the equilibrium was destroyed, and the scale was turned in favour
of the democratic side. The curies were bound already by the _lex
Publilia_ of the year 417, before a convocation of the centuries to
declare after a certain form that they sanctioned whatever was going
to be decreed. It was a misfortune for the state that the curies
did not regenerate themselves; yet as long as the resolutions were
still made in the centuries, this mattered nothing. But by the _lex
Hortensia_, by which the whole weight was given to the tribes, all
the wholesome relations between the different elements of the state
were broken, and the balance utterly destroyed. In the _first_ stage
therefore, the _plebiscita_ are mere bye-laws which have no reference
to general affairs; for instance, resolutions at the death of a
person of consequence concerning his burial, &c., or a poll tax. In
the _second_, by virtue of the older Publilian law, the _Plebes_
declared itself competent to pass resolutions on general affairs,
which were, however, to be taken into consideration by the consul,
to be laid before the senate, and by the latter to be brought before
the centuries and curies. In the _third_ stage, according to the
Valerian law, a _plebiscitum_ was just as valid as a resolution of the
centuries: it went at once to the curies, and received their sanction.
And _fourthly_, by the later Publilian law, the _plebiscita_ could do
for the confirmation of resolutions of the senate which, in pressing
circumstances, when one could not wait for the next _dies comitialis_,
were brought by the consul to the tribunes. It was sufficient that
the tribunes proclaimed a concilium: the _dies nefasti_ only affected
curule magistrates and the _Populus_. For instance, let us suppose
that an army was in the field at the conclusion of the year, and that
a decree of the senate had first to be brought to the centuries, and
then to be ratified by the curies; in such a case a shorter course was
taken. The consuls were ordered _ut cum tribunis plebis agerent, quam
primum fieri posset ad plebem ferrent_. This does not occur before
the Publilian law. _Lastly_ and _fifthly_, by the _lex Hortensia_ the
_Plebes_ took upon itself the authority for an independent and inherent
legislation.
The consuls now took the field against the Æquians and Sabines, and
returned after splendid victories, having also probably concluded a
lasting peace with the Sabines. The patricians had in the meanwhile
again taken courage, and those men of their order, who in the general
confusion had sincerely wished for the best, were now the object of
their hatred; and therefore the senate refused them a triumph on their
return. Now for the first time the paramount power of the tribunes
was displayed. They stepped in, and granted the triumph on their own
responsibility: their legal authority for doing so may fairly be
called in question. The consuls accepted the triumph; if they had been
disturbed in it the tribunes would have assisted them. This incident
shows what exasperation then filled men’s minds. In the following year,
it rose to such a height that, as we are told by Livy, the heads of the
patricians assembled and discussed the proposal to rid themselves of
their antagonists by a massacre: but this mad design was not carried
out.
The events which now take place are shrouded in darkness; the piety
of posterity has thrown a veil over them. People had emerged from
the irksome tranquillity of the decemvirate; but the constitution
had not yet recovered its equilibrium, and there was still a contest
for the possession of the government. The plebeians either wished
the consulship to be divided between the two orders, or the form of
the decemviral rule to be restored. The next year, the patricians
showed themselves somewhat more yielding. The criminal judges, until
then a patrician magistracy, were for the first time elected by the
centuries; the choice fell upon the two consuls of the last year,
Valerius and Horatius, which was certainly not accidental. Many of
the ancients are mistaken with regard to this point; for instance,
Tacitus, Plutarch, even Ulpian, but not so Gaius. There were in fact
two kinds of quæstors, the public accusers (_Quæstores parricidii_),
who impeached political offenders before the curies, and the six
_Quæstores Classici_, who in works on antiquities are all along
confounded with the former: Tacitus refers to the latter what ought
to be referred to the former. He says that the quæstors had formerly
been chosen by the kings, and then by the consuls, as was evident
from a _lex curiata_ of Brutus. But this law Tacitus cannot possibly
have seen; for the _Quæstores parricidii_ are synonymous with the
_Duumviri perduellionis_, and it is these who were always elected by
the curies, or rather by the Ramnes and Tities whom they represented.
That Poplicola caused also the _Treasurers_ to be elected, is possible;
but the two, who were formerly elected by the curies, and now, as
Tacitus says, sixty-three years after the expulsion of the kings, and
consequently in the second year after the abolition of the decemvirate,
by the centuries, were the old _Quæstores parricidii_, who continued
until they were changed into the _Ædiles Curules_. Nine tribunes then
made the proposal to leave the offices of censor and quæstor to the
patricians, and, either to divide the consulship, or to introduce
military tribunes with consular power; one only of their colleagues was
of a different opinion. Perhaps to this is to be referred the incident
mentioned before, that the _Populus_ had once condemned nine tribunes
to be burned alive, and that a traitor among the tribunes, P. Mucius,
had ensured the carrying out of this sentence. Without doubt the
_Populus_ means the curies, who had again usurped this power. Among the
nine tribunes was probably a son or grandson of Sp. Cassius, who had
renounced his order, and perished in the attempt to revenge his father.
It was the general wish to re-elect the consuls and tribunes; the
consuls declined it, and Duilius, who had been delegated by his
colleagues to represent them, refused in the name of the tribunate also
to accept any votes. This had evil consequences. A division was caused,
and the tribunes who wished to remain in office, had indeed so much
influence upon their partisans, that they abstained from voting; so
that five tribunes only were elected, who had themselves to elect their
colleagues. It is stated that they likewise elected two patricians,
which is a proof in favour of our assertion that the tribes had
acquired a double character, that is, that they also become a general
national division.
A remarkable change which dates from this time, is the repeal of the
prohibition of intermarriage between patricians and plebeians. This
prohibition, as we know, had been sanctioned by usage since the very
earliest times, and had been first made an enactment in the twelve
tables only; such a custom generally first becomes galling by being
received among the written laws; and thus the storm was raised from
which the _plebiscitum Canuleium_ sprang. This is usually considered
as a great victory of the plebeians: the patricians, so it is said, at
last yielded it in compensation for other rights which they reserved to
themselves; Livy looks upon it as a degradation of the ruling order. If
we take the matter as it really was, it is evident that the existence
of such a prohibition did harm to no one more than to the patricians
themselves. Mixed marriages from both orders must surely have been
common at all times, and they were binding in conscience; yet the son
of a patrician-plebeian marriage never had any gentilician rights,
and was counted among the plebeians; the consequence of which was
that the patricians were fast dwindling away. Wherever the nobles are
limited to marriages within their own class, their order becomes quite
powerless in the course of time. Rehberg mentions, that of the members
of the States of the duchy of Bremen, in whose case sixteen quarters
were required, one-third had become extinct within fifty years. If the
plebeians had meant mischief against the patricians, they ought to have
insisted with all their might upon the prohibition of intermarriage
being kept up: but for the Canuleian law, the patricians would have
lost their position in the state a hundred years sooner. We do not
know, whether the thing was granted as a favour to the patricians
or the plebeians; this is one of those cases in which no probable
hypothesis can be formed; even absurdity is sometimes quite possible.
Afterwards there appear for once three military tribunes instead of
the consuls. Dionysius says that it had been resolved to satisfy the
_Plebes_ by the institution of military tribunes, three of whom were
to be patricians and three plebeians. But there were only three, one
of whom was a plebeian. Livy foolishly takes them all for patricians;
he thinks that the plebeians had wanted indeed to possess the right,
yet that afterwards they had looked upon themselves as unworthy of
exercising it, and had elected patricians only. He speaks of the
plebeians as if they had been unutterably stupid. This is the confused
notion of a man who with all his genius was, after all, no more than a
rhetorician. What is most likely, is that it was agreed upon to drop
the name of consul altogether, as the two orders were indeed no longer
distinct, and to leave the elections free and open to both parties; but
that in the meanwhile all sorts of artifices were nevertheless employed
to turn the scale in favour of the patricians. In the earlier times,
for instance, the clients of the patricians were not in the tribes;
like the patricians, they had to withdraw when the voting began; and
whoever was not in the tribes, was either not in the centuries at all,
or voted in them only with the craftsmen and the _capite censi_. Yet
from henceforth every mention of cases in which _Plebes_ and clients
were opposed, entirely ceases; and this ought to lead us to observe how
trustworthy our accounts are. Could a forger of a later age have so
accurately discriminated between the positions as implied by the law?
A fabulist is always an unlearned man, and even a learned one would
have made here some mistake. The clients now appear in the tribes,
and therefore in the centuries likewise, as is expressly mentioned,
and as we may also partly see from the circumstances themselves. The
discussions of the Plebes now take quite a different character; they
lose all their violence, the struggle of two hostile masses against
each other, is at once entirely at an end. The checks which the
plebeians meet with in the elections, &c., arise no more from any
resistance from without, but they are from within the body itself.
Whilst formerly the boards of the tribunes showed themselves unanimous,
they are now divided; some of the members are even in the interest of
the senate, and only single tribunes yet make such motions as those
which formerly proceeded from the whole college. These are proofs of
the fusion of the orders having been completed.
The military tribunate had been considered as a sort of compromise.
Among the first were, according to Livy, L. Atilius Longus and T.
Cæcilius.[107] For the latter, Dionysius in the eleventh book has
Clœlius. We cannot decide in this question, the readings in the
eleventh book being all of them of very recent date. If it is Cæcilius,
there were two plebeians among their number; and this would account for
the violence with which the patricians insisted upon doing away with
the military tribunate.