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

The History of Rome, Book II From the Abolition of the Monarchy in Rome to the Union of Italy · 第 2 / 10 章