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