The Equalization of the Orders, and the New Aristocracy
Union of the Plebians
The tribunician movements appear to have mainly originated in social
rather than political discontent, and there is good reason to suppose
that some of the wealthy plebeians admitted to the senate were no
less opposed to these movements than the patricians. For they too
benefited by the privileges against which the agitation was mainly
directed; and although in other respects they found themselves treated
as inferior, it probably seemed to them by no means an appropriate
time for asserting their claim to participate in the magistracies,
when the exclusive financial power of the whole senate was assailed.
This explains why during the first fifty years of the republic no step
was taken aiming directly at the political equalization of the orders.
But this league between the patricians and the wealthy plebeians by no
means bore within itself any guarantee of permanence. Beyond doubt
from the very first a portion of the leading plebeian families had
attached themselves to the movement-party, partly from a sense of what
was due to the fellow-members of their order, partly in consequence
of the natural bond which unites all who are treated as inferior,
and partly because they perceived that concessions to the multitude
were inevitable in the issue, and that, if turned to due account,
they would result in the abrogation of the exclusive rights of
the patriciate and would thereby give to the plebeian aristocracy a
decisive preponderance in the state. Should this conviction become
--as was inevitable--more and more prevalent, and should the plebeian
aristocracy at the head of its order take up the struggle with the
patrician nobility, it would wield in the tribunate a legalized
instrument of civil warfare, and it might, with the weapon of social
distress, so fight its battles as to dictate to the nobility the terms
of peace and, in the position of mediator between the two parties,
compel its own admission to the offices of state.
Such a crisis in the position of parties occurred after the fall of
the decemvirate. It had now become perfectly clear that the tribunate
of the plebs could never be set aside; the plebeian aristocracy could
not do better than seize this powerful lever and employ it for the
removal of the political disabilities of their order.
Throwing Open of Marriage and of Magistracies--
Military Tribunes with Consular Powers
Nothing shows so clearly the defencelessness of the clan-nobility
when opposed to the united plebs, as the fact that the fundamental
principle of the exclusive party--the invalidity of marriage between
patricians and plebeians--fell at the first blow scarcely four years
after the decemviral revolution. In the year 309 it was enacted by
the Canuleian plebiscite, that a marriage between a patrician and
a plebeian should be valid as a true Roman marriage, and that the
children begotten of such a marriage should follow the rank of the
father. At the same time it was further carried that, in place of
consuls, military tribunes--of these there were at that time, before
the division of the army into legions, six, and the number of these
magistrates was adjusted accordingly-with consular powers(1) and
consular duration of office should be elected by the centuries.
The proximate cause was of a military nature, as the various wars
required a greater number of generals in chief command than the
consular constitution allowed; but the change came to be of essential
importance for the conflicts of the orders, and it may be that
that military object was rather the pretext than the reason for
this arrangement. According to the ancient law every burgess or
--metoikos-- liable to service might attain the post of an officer,(2)
and in virtue of that principle the supreme magistracy, after having
been temporarily opened up to the plebeians in the decemvirate, was
now after a more comprehensive fashion rendered equally accessible to
all freeborn burgesses. The question naturally occurs, what interest
the aristocracy could have--now that it was under the necessity of
abandoning its exclusive possession of the supreme magistracy and of
yielding in the matter--in refusing to the plebeians the title, and
conceding to them the consulate under this singular form?(3) But,
in the first place, there were associated with the holding of the
supreme magistracy various honorary rights, partly personal, partly
hereditary; thus the honour of a triumph was regarded as legally
dependent on the occupancy of the supreme magistracy, and was never
given to an officer who had not administered the latter office in
person; and the descendants of a curule magistrate were at liberty to
set up the image of such an ancestor in the family hall and to exhibit
it in public on fitting occasions, while this was not allowed in the
case of other ancestors.(4) It is as easy to be explained as it is
difficult to be vindicated, that the governing aristocratic order
should have allowed the government itself to be wrested from their
hands far sooner than the honorary rights associated with it,
especially such as were hereditary; and therefore, when it was obliged
to share the former with the plebeians, it gave to the actual supreme
magistrate the legal standing not of the holder of a curule chair, but
of a simple staff-officer, whose distinction was one purely personal.
Of greater political importance, however, than the refusal of the
-ius imaginum- and of the honour of a triumph was the circumstance,
that the exclusion of the plebeians sitting in the senate from
debate necessarily ceased in respect to those of their number who,
as designated or former consuls, ranked among the senators whose
opinion had to be asked before the rest; so far it was certainly
of great importance for the nobility to admit the plebeian only to
a consular office, and not to the consulate itself.
Opposition of the Patriciate
But notwithstanding these vexatious disabilities the privileges of the
clans, so far as they had a political value, were legally superseded
by the new institution; and, had the Roman nobility been worthy of its
name, it must now have given up the struggle. But it did not. Though
a rational and legal resistance was thenceforth impossible, spiteful
opposition still found a wide field of petty expedients, of chicanery
and intrigue; and, far from honourable or politically prudent as such
resistance was, it was still in a certain sense fruitful of results.
It certainly procured at length for the commons concessions which
could not easily have been wrung from the united Roman aristocracy;
but it also prolonged civil war for another century and enabled
the nobility, in defiance of those laws, practically to retain the
government in their exclusive possession for several generations
longer.
Their Expedients
The expedients of which the nobility availed themselves were as
various as political paltriness could suggest. Instead of deciding
at once the question as to the admission or exclusion of the plebeians
at the elections, they conceded what they were compelled to concede
only with reference to the elections immediately impending. The vain
struggle was thus annually renewed whether patrician consuls or
military tribunes from both orders with consular powers should be
nominated; and among the weapons of the aristocracy this mode of
conquering an opponent by wearying and annoying him proved by no
means the least effective.
Subdivision of the Magistracy--
Censorship
Moreover they broke up the supreme power which had hitherto been
undivided, in order to delay their inevitable defeat by multiplying
the points to be assailed. Thus the adjustment of the budget and of
the burgess--and taxation-rolls, which ordinarily took place every
fourth year and had hitherto been managed by the consuls, was
entrusted as early as the year 319 to two valuators (-censores-),
nominated by the centuries from among the nobles for a period, at
the most, of eighteen months. The new office gradually became the
palladium of the aristocratic party, not so much on account of its
financial influence as on account of the right annexed to it of
filling up the vacancies in the senate and in the equites, and of
removing individuals from the lists of the senate, equites, and
burgesses on occasion of their adjustment. At this epoch, however,
the censorship by no means possessed the great importance and moral
supremacy which afterwards were associated with it.
Quaestorship
But the important change made in the year 333 in respect to the
quaestorship amply compensated for this success of the patrician
party. The patricio-plebeian assembly of the tribes--perhaps taking
up the ground that at least the two military paymasters were in fact
officers rather than civil functionaries, and that so far the plebeian
appeared as well entitled to the quaestorship as to the military
tribuneship--carried the point that plebeian candidates also were
admitted for the quaestorial elections, and thereby acquired for
the first time the privilege of eligibility as well as the right of
election for one of the ordinary magistracies. With justice it was
felt on the one side as a great victory, on the other as a severe
defeat, that thenceforth patrician and plebeian were equally capable
of electing and being elected to the military as well as to the urban
quaestorship.
Attempts at Counterrevolution
The nobility, in spite of the most obstinate resistance, only
sustained loss after loss; and their exasperation increased as their
power decreased. Attempts were doubtless still made directly to
assail the rights secured by agreement to the commons; but such
attempts were not so much the well-calculated manoeuvres of party as
the acts of an impotent thirst for vengeance. Such in particular was
the process against Maelius as reported by the tradition--certainly
not very trustworthy--that has come down to us. Spurius Maelius,
a wealthy plebeian, during a severe dearth (315) sold corn at such
prices as to put to shame and annoy the patrician store-president
(-praefectus annonae-) Gaius Minucius. The latter accused him of
aspiring to kingly power; with what amount of reason we cannot decide,
but it is scarcely credible that a man who had not even filled the
tribunate should have seriously thought of sovereignty. Nevertheless
the authorities took up the matter in earnest, and the cry of "King"
always produced on the multitude in Rome an effect similar to that
of the cry of "Pope" on the masses in England. Titus Quinctius
Capitolinus, who was for the sixth time consul, nominated Lucius
Quinctius Cincinnatus, who was eighty years of age, as dictator
without appeal, in open violation of the solemnly sworn laws.(5)
Maelius, summoned before him, seemed disposed to disregard the
summons; and the dictator's master of the horse, Gaius Servilius
Ahala, slew him with his own hand. The house of the murdered man was
pulled down, the corn from his granaries was distributed gratuitously
to the people, and those who threatened to avenge his death were
secretly made away with. This disgraceful judicial murder--a disgrace
even more to the credulous and blind people than to the malignant
party of young patricians--passed unpunished; but if that party had
hoped by such means to undermine the right of appeal, it violated
the laws and shed innocent blood in vain.
Intrigues of the Nobility
Electioneering intrigues and priestly trickery proved in the hands
of the nobility more efficient than any other weapons. The extent
to which the former must have prevailed is best seen in the fact
that in 322 it appeared necessary to issue a special law against
electioneering practices, which of course was of little avail. When
the voters could not be influenced by corruption or threatening, the
presiding magistrates stretched their powers--admitting, for example,
so many plebeian candidates that the votes of the opposition were
thrown away amongst them, or omitting from the list of candidates
those whom the majority were disposed to choose. If in spite of all
this an obnoxious election was carried, the priests were consulted
whether no vitiating circumstance had occurred in the auspices or
other religious ceremonies on the occasion; and some such flaw they
seldom failed to discover. Taking no thought as to the consequences
and unmindful of the wise example of their ancestors, the people
allowed the principle to be established that the opinion of the
skilled colleges of priests as to omens of birds, portents, and the
like was legally binding on the magistrate, and thus put it into their
power to cancel any state-act--whether the consecration of a temple
or any other act of administration, whether law or election--on the
ground of religious informality. In this way it became possible that,
although the eligibility of plebeians had been established by law
already in 333 for the quaestorship and thenceforward continued to
be legally recognized, it was only in 345 that the first plebeian
attained the quaestorship; in like manner patricians almost
exclusively held the military tribunate with consular powers down
to 354. It was apparent that the legal abolition of the privileges of
the nobles had by no means really and practically placed the plebeian
aristocracy on a footing of equality with the clan-nobility. Many
causes contributed to this result: the tenacious opposition of the
nobility far more easily allowed itself to be theoretically superseded
in a moment of excitement, than to be permanently kept down in the
annually recurring elections; but the main cause was the inward
disunion between the chiefs of the plebeian aristocracy and the mass
of the farmers. The middle class, whose votes were decisive in the
comitia, did not feel itself specially called on to advance the
interests of genteel non-patricians, so long as its own demands were
disregarded by the plebeian no less than by the patrician aristocracy.
The Suffering Farmers
During these political struggles social questions had lain on the
whole dormant, or were discussed at any rate with less energy. After
the plebeian aristocracy had gained possession of the tribunate for
its own ends, no serious notice was taken either of the question of
the domains or of a reform in the system of credit; although there was
no lack either of newly acquired lands or of impoverished or decaying
farmers. Instances indeed of assignations took place, particularly in
the recently conquered border-territories, such as those of the domain
of Ardea in 312, of Labici in 336, and of Veii in 361--more however on
military grounds than for the relief of the farmer, and by no means to
an adequate extent. Individual tribunes doubtless attempted to revive
the law of Cassius--for instance Spurius Maecilius and Spurius
Metilius instituted in the year 337 a proposal for the distribution
of the whole state-lands--but they were thwarted, in a manner
characteristic of the existing state of parties, by the opposition
of their own colleagues or in other words of the plebeian aristocracy.
Some of the patricians also attempted to remedy the common distress;
but with no better success than had formerly attended Spurius Cassius.
A patrician like Cassius and like him distinguished by military renown
and personal valour, Marcus Manlius, the saviour of the Capitol during
the Gallic siege, is said to have come forward as the champion of
the oppressed people, with whom he was connected by the ties of
comradeship in war and of bitter hatred towards his rival, the
celebrated general and leader of the optimate party, Marcus Furius
Camillus. When a brave officer was about to be led away to a debtor's
prison, Manlius interceded for him and released him with his own
money; at the same time he offered his lands to sale, declaring
loudly that, as long as he possessed a foot's breadth of land, such
iniquities should not occur. This was more than enough to unite the
whole government party, patricians as well as plebeians, against the
dangerous innovator. The trial for high treason, the charge of having
meditated a renewal of the monarchy, wrought on the blind multitude
with the insidious charm which belongs to stereotyped party-phrases.
They themselves condemned him to death, and his renown availed him
nothing save that it was deemed expedient to assemble the people for
the bloody assize at a spot whence the voters could not see the rock
of the citadel--the dumb monitor which might remind them how their
fatherland had been saved from the extremity of danger by the hands of
the very man whom they were now consigning to the executioner (370).
While the attempts at reformation were thus arrested in the bud,
the social disorders became still more crying; for on the one
hand the domain-possessions were ever extending in consequence of
successful wars, and on the other hand debt and impoverishment were
ever spreading more widely among the farmers, particularly from the
effects of the severe war with Veii (348-358) and of the burning of
the capital in the Gallic invasion (364). It is true that, when in
the Veientine war it became necessary to prolong the term of service
of the soldiers and to keep them under arms not--as hitherto at the
utmost--only during summer, but also throughout the winter, and when
the farmers, foreseeing their utter economic ruin, were on the point
of refusing their consent to the declaration of war, the senate
resolved on making an important concession. It charged the pay, which
hitherto the tribes had defrayed by contribution, on the state-chest,
or in other words, on the produce of the indirect revenues and the
domains (348). It was only in the event of the state-chest being at
the moment empty that a general contribution (-tributum-) was imposed
on account of the pay; and in that case it was considered as a forced
loan and was afterwards repaid by the community. The arrangement was
equitable and wise; but, as it was not placed upon the essential
foundation of turning the domains to proper account for the benefit
of the exchequer, there were added to the increased burden of service
frequent contributions, which were none the less ruinous to the man
of small means that they were officially regarded not as taxes
but as advances.
Combination of the Plebian Aristocracy and the Farmers against the
Nobility--
Licinio-Sextian Laws
Under such circumstances, when the plebeian aristocracy saw itself
practically excluded by the opposition of the nobility and the
indifference of the commons from equality of political rights,
and the suffering farmers were powerless as opposed to the close
aristocracy, it was natural that they should help each other by a
compromise. With this view the tribunes of the people, Gaius Licinius
and Lucius Sextius, submitted to the commons proposals to the
following effect: first, to abolish the consular tribunate; secondly,
to lay it down as a rule that at least one of the consuls should be
a plebeian; thirdly, to open up to the plebeians admission to one
of the three great colleges of priests--that of the custodiers of
oracles, whose number was to be increased to ten (-duoviri-,
afterwards -decemviri sacris faciundis-(6)); fourthly, as respected
the domains, to allow no burgess to maintain upon the common pasture
more than a hundred oxen and five hundred sheep, or to hold more than
five hundred -jugera- (about 300 acres) of the domain lands left free
for occupation; fifthly, to oblige the landlords to employ in the
labours of the field a number of free labourers proportioned to that
of their rural slaves; and lastly, to procure alleviation for debtors
by deduction of the interest which had been paid from the capital,
and by the arrangement of set terms for the payment of arrears.
The tendency of these enactments is obvious. They were designed
to deprive the nobles of their exclusive possession of the curule
magistracies and of the hereditary distinctions of nobility therewith
associated; which, it was characteristically conceived, could only be
accomplished by the legal exclusion of the nobles from the place of
second consul. They were designed, as a consequence, to emancipate
the plebeian members of the senate from the subordinate position which
they occupied as silent by-sitters,(7) in so far as those of them at
least who had filled the consulate thereby acquired a title to deliver
their opinion with the patrician consulars before the other patrician
senators.(8) They were intended, moreover, to withdraw from the
nobles the exclusive possession of spiritual dignities; and in
carrying out this purpose for reasons sufficiently obvious the old
Latin priesthoods of the augurs and Pontifices were left to the old
burgesses, but these were obliged to open up to the new burgesses the
third great college of more recent origin and belonging to a worship
that was originally foreign. They were intended, in fine, to procure
a share in the common usufructs of burgesses for the poorer commons,
alleviation for the suffering debtors, and employment for the
day-labourers that were destitute of work. Abolition of privileges,
civil equality, social reform--these were the three great ideas, of
which it was the design of this movement to secure the recognition.
Vainly the patricians exerted all the means at their command in
opposition to these legislative proposals; even the dictatorship and
the old military hero Camillus were able only to delay, not to avert
their accomplishment. Willingly would the people have separated the
proposals; of what moment to it were the consulate and custodiership
of oracles, if only the burden of debt were lightened and the public
lands were free! But it was not for nothing that the plebeian
nobility had adopted the popular cause; it included the proposals in
one single project of law, and after a long struggle--it is said of
eleven years--the senate at length gave its consent and they passed
in the year 387.
Political Abolition of the Patriciate
With the election of the first non-patrician consul--the choice fell
on one of the authors of this reform, the late tribune of the people,
Lucius Sextius Lateranus--the clan-aristocracy ceased both in fact and
in law to be numbered among the political institutions of Rome. When
after the final passing of these laws the former champion of the
clans, Marcus Furius Camillus, founded a sanctuary of Concord at the
foot of the Capitol--upon an elevated platform, where the senate was
wont frequently to meet, above the old meeting-place of the burgesses,
the Comitium--we gladly cherish the belief that he recognized in the
legislation thus completed the close of a dissension only too long
continued. The religious consecration of the new concord of the
community was the last public act of the old warrior and statesman,
and a worthy termination of his long and glorious career. He was
not wholly mistaken; the more judicious portion of the clans
evidently from this time forward looked upon their exclusive political
privileges as lost, and were content to share the government with the
plebeian aristocracy. In the majority, however, the patrician spirit
proved true to its incorrigible character. On the strength of the
privilege which the champions of legitimacy have at all times claimed
of obeying the laws only when these coincide with their party
interests, the Roman nobles on various occasions ventured, in open
violation of the stipulated arrangement, to nominate two patrician
consuls. But, when by way of answer to an election of that sort for
the year 411 the community in the year following formally resolved
to allow both consular positions to be filled by non-patricians, they
understood the implied threat, and still doubtless desired, but never
again ventured, to touch the second consular place.
Praetorship--
Curule Aedileship--
Complete Opening Up of Magistracies and Priesthoods
In like manner the aristocracy simply injured itself by the attempt
which it made, on the passing of the Licinian laws, to save at least
some remnant of its ancient privileges by means of a system of
political clipping and paring. Under the pretext that the nobility
were exclusively cognizant of law, the administration of justice was
detached from the consulate when the latter had to be thrown open
to the plebeians; and for this purpose there was nominated a special
third consul, or, as he was commonly called, a praetor. In like
manner the supervision of the market and the judicial police-duties
connected with it, as well as the celebration of the city-festival,
were assigned to two newly nominated aediles, who--by way of
distinction from the plebeian aediles--were named from their standing
jurisdiction "aediles of the judgment seat" (-aediles curules-).
But the curule aedileship became immediately so far accessible to
the plebeians, that it was held by patricians and plebeians
alternately. Moreover the dictatorship was thrown open to plebeians
in 398, as the mastership of the horse had already been in the year
before the Licinian laws (386); both the censorships were thrown open
in 403, and the praetorship in 417; and about the same time (415) the
nobility were by law excluded from one of the censorships, as they
had previously been from one of the consulships. It was to no purpose
that once more a patrician augur detected secret flaws, hidden from
the eyes of the uninitiated, in the election of a plebeian dictator
(427), and that the patrician censor did not up to the close of our
present period (474) permit his colleague to present the solemn
sacrifice with which the census closed; such chicanery served merely
to show the ill humour of patricianism. Of as little avail were the
complaints which the patrician presidents of the senate would not fail
to raise regarding the participation of the plebeians in its debates;
it became a settled rule that no longer the patrician members,
but those who had attained to one of the three supreme ordinary
magistracies--the consulship, praetorship, and curule aedileship
--should be summoned to give their opinion in this order and without
distinction of class, while the senators who had held none of these
offices still even now took part merely in the division. The right,
in fine, of the patrician senate to reject a decree of the community
as unconstitutional--a right, however, which in all probability it
rarely ventured to exercise--was withdrawn from it by the Publilian
law of 415 and by the Maenian law which was not passed before the
middle of the fifth century, in so far that it had to bring forward
its constitutional objections, if it had any such, when the list
of candidates was exhibited or the project of law was brought in;
which practically amounted to a regular announcement of its consent
beforehand. In this character, as a purely formal right, the
confirmation of the decrees of the people still continued in
the hands of the nobility down to the last age of the republic.
The clans retained, as may naturally be conceived, their religious
privileges longer. Indeed, several of these, which were destitute
of political importance, were never interfered with, such as their
exclusive eligibility to the offices of the three supreme -flamines-
and that of -rex sacrorum- as well as to the membership of the
colleges of Salii. On the other hand the two colleges of Pontifices
and of augurs, with which a considerable influence over the courts
and the comitia were associated, were too important to remain in the
exclusive possession of the patricians. The Ogulnian law of 454
accordingly threw these also open to plebeians, by increasing the
number both of the pontifices and of the augurs from six to nine, and
equally distributing the stalls in the two colleges between patricians
and plebeians.
Equivalence of Law and Plebiscitum
The two hundred years' strife was brought at length to: a close by the
law of the dictator Q. Hortensius (465, 468) which was occasioned by a
dangerous popular insurrection, and which declared that the decrees of
the plebs should stand on an absolute footing of equality--instead of
their earlier conditional equivalence--with those of the whole
community. So greatly had the state of things been changed that
that portion of the burgesses which had once possessed exclusively
the right of voting was thenceforth, under the usual form of taking
votes binding for the whole burgess-body, no longer so much as asked
the question.
The Later Patricianism
The struggle between the Roman clans and commons was thus
substantially at an end. While the nobility still preserved out
of its comprehensive privileges the -de facto- possession of one of
the consulships and one of the censorships, it was excluded by law
from the tribunate, the plebeian aedileship, the second consulship
and censorship, and from participation in the votes of the plebs
which were legally equivalent to votes of the whole body of burgesses.
As a righteous retribution for its perverse and stubborn resistance,
the patriciate had seen its former privileges converted into so many
disabilities. The Roman clan-nobility, however, by no means
disappeared because it had become an empty name. The less the
significance and power of the nobility, the more purely and
exclusively the patrician spirit developed itself. The haughtiness
of the "Ramnians" survived the last of their class-privileges for
centuries; after they had steadfastly striven "to rescue the consulate
from the plebeian filth" and had at length become reluctantly
convinced of the impossibility of such an achievement, they continued
at least rudely and spitefully to display their aristocratic spirit.
To understand rightly the history of Rome in the fifth and sixth
centuries, we must never overlook this sulking patricianism; it could
indeed do little more than irritate itself and others, but this it
did to the best of its ability. Some years after the passing of the
Ogulnian law (458) a characteristic instance of this sort occurred.
A patrician matron, who was married to a leading plebeian that had
attained to the highest dignities of the state, was on account of this
misalliance expelled from the circle of noble dames and was refused
admission to the common festival of Chastity; and in consequence of
that exclusion separate patrician and plebeian goddesses of Chastity
were thenceforward worshipped in Rome. Doubtless caprices of this
sort were of very little moment, and the better portion of the
clans kept themselves entirely aloof from this miserable policy of
peevishness; but it left behind on both sides a feeling of discontent,
and, while the struggle of the commons against the clans was in itself
a political and even moral necessity, these convulsive efforts to
prolong the strife--the aimless combats of the rear-guard after the
battle had been decided, as well as the empty squabbles as to rank
and standing--needlessly irritated and disturbed the public and
private life of the Roman community.
The Social Distress, and the Attempt to Relieve It
Nevertheless one object of the compromise concluded by the two
portions of the plebs in 387, the abolition of the patriciate, had
in all material points been completely attained. The question next
arises, how far the same can be affirmed of the two positive objects
aimed at in the compromise?--whether the new order of things in
reality checked social distress and established political equality?
The two were intimately connected; for, if economic embarrassments
ruined the middle class and broke up the burgesses into a minority of
rich men and a suffering proletariate, such a state of things would at
once annihilate civil equality and in reality destroy the republican
commonwealth. The preservation and increase of the middle class, and
in particular of the farmers, formed therefore for every patriotic
statesman of Rome a problem not merely important, but the most
important of all. The plebeians, moreover, recently called to take
part in the government, greatly indebted as they were for their new
political rights to the proletariate which was suffering and expecting
help at their hands, were politically and morally under special
obligation to attempt its relief by means of government measures,
so far as relief was by such means at all attainable.
The Licinian Agrarian Laws
Let us first consider how far any real relief was contained in that
part of the legislation of 387 which bore upon the question. That
the enactment in favour of the free day-labourers could not possibly
accomplish its object--namely, to check the system of farming on
a large scale and by means of slaves, and to secure to the free
proletarians at least a share of work--is self-evident. In this
matter legislation could afford no relief, without shaking the
foundations of the civil organization of the period in a way that
would reach far beyond its immediate horizon. In the question of the
domains, on the other hand, it was quite possible for legislation to
effect a change; but what was done was manifestly inadequate. The new
domain-arrangement, by granting the right of driving very considerable
flocks and herds upon the public pastures, and that of occupying
domain-land not laid out in pasture up to a maximum fixed on a
high scale, conceded to the wealthy an important and perhaps even
disproportionate prior share in the produce of the domains; and by
the latter regulation conferred upon the domain-tenure, although it
remained in law liable to pay a tenth and revocable at pleasure,
as well as upon the system of occupation itself, somewhat of a legal
sanction. It was a circumstance still more suspicious, that the
new legislation neither supplemented the existing and manifestly
unsatisfactory provisions for the collection of the pasture-money
and the tenth by compulsory measures of a more effective kind, nor
prescribed any thorough revision of the domanial possessions, nor
appointed a magistracy charged with the carrying of the new laws into
effect. The distribution of the existing occupied domain-land partly
among the holders up to a fair maximum, partly among the plebeians
who had no property, in both cases in full ownership; the abolition
in future of the system of occupation; and the institution of
an authority empowered to make immediate distribution of any
future acquisitions of territory, were so clearly demanded by the
circumstances of the case, that it certainly was not through want
of discernment that these comprehensive measures were neglected.
We cannot fail to recollect that it was the plebeian aristocracy,
in other words, a portion of the very class that was practically
privileged in respect to the usufructs of the domains, which proposed
the new arrangement, and that one of its very authors, Gaius Licinius
Stolo, was among the first to be condemned for having exceeded the
agrarian maximum; and we cannot but ask whether the legislators dealt
altogether honourably, and whether they did not on the contrary
designedly evade a solution, really tending to the common benefit,
of the unhappy question of the domains. We do not mean, however, to
express any doubt that the regulations of the Licinian laws, such as
they were, might and did substantially benefit the small farmer and
the day-labourer. It must, moreover, be acknowledged that in the
period immediately succeeding the passing of the law the authorities
watched with at least comparative strictness over the observance of
its rules as to the maximum, and frequently condemned the possessors
of large herds and the occupiers of the domains to heavy fines.
Laws Imposing Taxes--
Laws of Credit
In the system of taxation and of credit also efforts were made with
greater energy at this period than at any before or subsequent to it
to remedy the evils of the national economy, so far as legal measures
could do so. The duty levied in 397 of five per cent on the value of
slaves that were to be manumitted was--irrespective of the fact that
it imposed a check on the undesirable multiplication of freedmen--the
first tax in Rome that was really laid upon the rich. In like manner
efforts were made to remedy the system of credit. The usury laws,
which the Twelve Tables had established,(9) were renewed and gradually
rendered more stringent, so that the maximum of interest was
successively lowered from 10 per cent (enforced in 397) to 5 per cent
(in 407) for the year of twelve months, and at length (412) the taking
of interest was altogether forbidden. The latter foolish law remained
formally in force, but, of course, it was practically inoperative; the
standard rate of interest afterwards usual, viz. 1 per cent per month,
or 12 per cent for the civil common year--which, according to the
value of money in antiquity, was probably at that time nearly the same
as, according to its modern value, a rate of 5 or 6 per cent--must
have been already about this period established as the maximum of
appropriate interest. Any action at law for higher rates must have
been refused, perhaps even judicial claims for repayment may have been
allowed; moreover notorious usurers were not unfrequently summoned
before the bar of the people and readily condemned by the tribes to
heavy fines. Still more important was the alteration of the procedure
in cases of debt by the Poetelian law (428 or 441). On the one hand
it allowed every debtor who declared on oath his solvency to save his
personal freedom by the cession of his property; on the other hand it
abolished the former summary proceedings in execution on a loan-debt,
and laid down the rule that no Roman burgess could be led away to
bondage except upon the sentence of jurymen.
Continued Distress
It is plain that all these expedients might perhaps in some respects
mitigate, but could not remove, the existing economic disorders.
The continuance of the distress is shown by the appointment of a
bank-commission to regulate the relations of credit and to provide
advances from the state-chest in 402, by the fixing of legal payment
by instalments in 407, and above all by the dangerous popular
insurrection about 467, when the people, unable to obtain new
facilities for the payment of debts, marched out to the Janiculum,
and nothing but a seasonable attack by external enemies, and the
concessions contained in the Hortensian law,(10) restored peace to
the community. It is, however, very unjust to reproach these earnest
attempts to check the impoverishment of the middle class with their
inadequacy. The belief that it is useless to employ partial and
palliative means against radical evils, because they only remedy
them in part, is an article of faith never preached unsuccessfully
by baseness to simplicity, but it is none the less absurd. On the
contrary, we may ask whether the vile spirit of demagogism had not
even thus early laid hold of this matter, and whether expedients were
really needed so violent and dangerous as, for example, the deduction
of the interest paid from the capital. Our documents do not enable
us to decide the question of right or wrong in the case. But we
recognize clearly enough that the middle class of freeholders
still continued economically in a perilous and critical position;
that various endeavours were made by those in power to remedy it by
prohibitory laws and by respites, but of course in vain; and that the
aristocratic ruling class continued to be too weak in point of control
over its members, and too much entangled in the selfish interests of
its order, to relieve the middle class by the only effectual means at
the disposal of the government--the entire and unreserved abolition
of the system of occupying the state-lands--and by that course to free
the government from the reproach of turning to its own advantage the
oppressed position of the governed.
Influence of the Extension of the Roman Dominion in Elevating the
Farmer-Class
A more effectual relief than any which the government was willing
or able to give was derived by the middle classes from the political
successes of the Roman community and the gradual consolidation of the
Roman sovereignty over Italy. The numerous and large colonies which
it was necessary to found for the securing of that sovereignty, the
greater part of which were sent forth in the fifth century, furnished
a portion of the agricultural proletariate with farms of their own,
while the efflux gave relief to such as remained at home. The
increase of the indirect and extraordinary sources of revenue, and
the flourishing condition of the Roman finances in general, rendered
it but seldom necessary to levy any contribution from the farmers in
the form of a forced loan. While the earlier small holdings were
probably lost beyond recovery, the rising average of Roman prosperity
must have converted the former larger landholders into farmers, and
in so far added new members to the middle class. People of rank
sought principally to secure the large newly-acquired districts for
occupation; the mass of wealth which flowed to Rome through war and
commerce must have reduced the rate of interest; the increase in the
population of the capital benefited the farmer throughout Latium;
a wise system of incorporation united a number of neighbouring and
formerly subject communities with the Roman state, and thereby
strengthened especially the middle class; finally, the glorious
victories and their mighty results silenced faction. If the distress
of the farmers was by no means removed and still less were its sources
stopped, it yet admits of no doubt that at the close of this period
the Roman middle class was on the whole in a far less oppressed
condition than in the first century after the expulsion of the kings.
Civic Equality
Lastly civic equality was in a certain sense undoubtedly attained
or rather restored by the reform of 387, and the development of its
legitimate consequences. As formerly, when the patricians still in
fact formed the burgesses, these had stood upon a footing of absolute
equality in rights and duties, so now in the enlarged burgess-body
there existed in the eye of the law no arbitrary distinctions.
The gradations to which differences of age, sagacity, cultivation, and
wealth necessarily give rise in civil society, naturally also pervaded
the sphere of public life; but the spirit animating the burgesses and
the policy of the government uniformly operated so as to render these
differences as little conspicuous as possible. The whole system of
Rome tended to train up her burgesses on an average as sound and
capable, but not to bring into prominence the gifts of genius. The
growth of culture among the Romans did not at all keep pace with the
development of the power of their community, and it was instinctively
repressed rather than promoted by those in power. That there should
be rich and poor, could not be prevented; but (as in a genuine
community of farmers) the farmer as well as the day-labourer
personally guided the plough, and even for the rich the good economic
rule held good that they should live with uniform frugality and above
all should hoard no unproductive capital at home--excepting the
salt-cellar and the sacrificial ladle, no silver articles were at
this period seen in any Roman house. Nor was this of little moment.
In the mighty successes which the Roman community externally achieved
during the century from the last Veientine down to the Pyrrhic war we
perceive that the patriciate has now given place to the farmers; that
the fall of the highborn Fabian would have been not more and not less
lamented by the whole community than the fall of the plebeian Decian
was lamented alike by plebeians and patricians; that the consulate did
not of itself fall even to the wealthiest aristocrat; and that a poor
husbandman from Sabina, Manius Curius, could conquer king Pyrrhus in
the field of battle and chase him out of Italy, without ceasing to be
a simple Sabine farmer and to cultivate in person his own bread-corn.
New Aristocracy
In regard however to this imposing republican equality we must not
overlook the fact that it was to a considerable extent only formal,
and that an aristocracy of a very decided stamp grew out of it or
rather was contained in it from the very first. The non-patrician
families of wealth and consideration had long ago separated from the
plebs, and leagued themselves with the patriciate in the participation
of senatorial rights and in the prosecution of a policy distinct from
that of the plebs and very often counteracting it. The Licinian laws
abrogated the legal distinctions within the ranks of the aristocracy,
and changed the character of the barrier which excluded the plebeian
from the government, so that it was no longer a hindrance unalterable
in law, but one, not indeed insurmountable, but yet difficult to be
surmounted in practice. In both ways fresh blood was mingled with
the ruling order in Rome; but in itself the government still remained,
as before, aristocratic. In this respect the Roman community was a
genuine farmer-commonwealth, in which the rich holder of a whole hide
was little distinguished externally from the poor cottager and held
intercourse with him on equal terms, but aristocracy nevertheless
exercised so all-powerful a sway that a man without means far sooner
rose to be master of the burgesses in the city than mayor in his own
village. It was a very great and valuable gain, that under the new
legislation even the poorest burgess might fill the highest office
of the state; nevertheless it was a rare exception when a man from
the lower ranks of the population reached such a position,(11) and
not only so, but probably it was, at least towards the close of
this period, possible only by means of an election carried by
the opposition.
New Opposition
Every aristocratic government of itself calls forth a corresponding
opposition party; and as the formal equalization of the orders only
modified the aristocracy, and the new ruling order not only succeeded
the old patriciate but engrafted itself on it and intimately coalesced
with it, the opposition also continued to exist and in all respects
pursued a similar course. As it was now no longer the plebeian
burgesses as such, but the common people, that were treated as
inferior, the new opposition professed from the first to be the
representative of the lower classes and particularly of the small
farmers; and as the new aristocracy attached itself to the patriciate,
so the first movements of this new opposition were interwoven with the
final struggles against the privileges of the patricians. The first
names in the series of these new Roman popular leaders were Manius
Curius (consul 464, 479, 480; censor 481) and Gaius Fabricius (consul
472, 476, 481; censor 479); both of them men without ancestral lineage
and without wealth, both summoned--in opposition to the aristocratic
principle of restricting re-election to the highest office of the
state--thrice by the votes of the burgesses to the chief magistracy,
both, as tribunes, consuls, and censors, opponents of patrician
privileges and defenders of the small farmer-class against the
incipient arrogance of the leading houses. The future parties were
already marked out; but the interests of party were still suspended
on both sides in presence of the interests of the commonweal. The
patrician Appius Claudius and the farmer Manius Curius--vehement in
their personal antagonism--jointly by wise counsel and vigorous action
conquered king Pyrrhus; and while Gaius Fabricius as censor inflicted
penalties on Publius Cornelius Rufinus for his aristocratic sentiments
and aristocratic habits, this did not prevent him from supporting the
claim of Rufinus to a second consulate on account of his recognized
ability as a general. The breach was already formed; but the
adversaries still shook hands across it.
The New Government
The termination of the struggles between the old and new burgesses,
the various and comparatively successful endeavours to relieve the
middle class, and the germs--already making their appearance amidst
the newly acquired civic equality--of the formation of a new
aristocratic and a new democratic party, have thus been passed
in review. It remains that we describe the shape which the new
government assumed amidst these changes, and the positions in which
after the political abolition of the nobility the three elements of
the republican commonwealth--the burgesses, the magistrates, and
the senate--stood towards each other.
The Burgess-Body--
Its Composition
The burgesses in their ordinary assemblies continued as hitherto to
be the highest authority in the commonwealth and the legal sovereign.
But it was settled by law that--apart from the matters committed once
for all to the decision of the centuries, such as the election of
consuls and censors--voting by districts should be just as valid
as voting by centuries: a regulation introduced as regards the
patricio-plebeian assembly by the Valerio-Horatian law of 305(12) and
extended by the Publilian law of 415, but enacted as regards the
plebeian separate assembly by the Hortensian law about 467.(13) We have
already noticed that the same individuals, on the whole, were entitled
to vote in both assemblies, but that--apart from the exclusion of
the patricians from the plebeian separate assembly--in the general
assembly of the districts all entitled to vote were on a footing of
equality, while in the centuriate comitia the working of the suffrage
was graduated with reference to the means of the voters, and in so
far, therefore, the change was certainly a levelling and democratic
innovation. It was a circumstance of far greater importance that,
towards the end of this period, the primitive freehold basis of the
right of suffrage began for the first time to be called in question.
Appius Claudius, the boldest innovator known in Roman history, in his
censorship in 442 without consulting the senate or people so adjusted
the burgess-roll, that a man who had no land was received into
whatever tribe he chose and then according to his means into the
corresponding century. But this alteration was too far in advance
of the spirit of the age to obtain full acceptance. One of the
immediate successors of Appius, Quintus Fabius Rullianus, the famous
conqueror of the Samnites, undertook in his censorship of 450 not to
set it aside entirely, but to confine it within such limits that the
real power in the burgess-assemblies should continue to be vested in
the holders of land and of wealth. He assigned those who had no land
collectively to the four city tribes, which were now made to rank not
as the first but as the last. The rural tribes, on the other hand,
the number of which gradually increased between 367 and 513 from
seventeen to thirty-one--thus forming a majority, greatly
preponderating from the first and ever increasing in preponderance,
of the voting-divisions--were reserved by law for the whole of the
burgesses who were freeholders. In the centuries the equalization of
the freeholders and non-freeholders remained as Appius had introduced
it. In this manner provision was made for the preponderance of the
freeholders in the comitia of the tribes, while for the centuriate
comitia in themselves the wealthy already turned the scale. By this
wise and moderate arrangement on the part of a man who for his warlike
feats and still more for this peaceful achievement justly received the
surname of the Great (-Maximus-), on the one hand the duty of bearing
arms was extended, as was fitting, also to the non-freehold burgesses;
on the other hand care was taken that their influence, especially
that of those who had once been slaves and who were for the most part
without property in land, should be subjected to that check which
is unfortunately, in a state allowing slavery, an indispensable
necessity. A peculiar moral jurisdiction, moreover, which gradually
came to be associated with the census and the making up of the
burgess-roll, excluded from the burgess-body all individuals
notoriously unworthy, and guarded the full moral and political
purity of citizenship.
Increasing Powers of the Burgesses
The powers of the comitia exhibited during this period a tendency to
enlarge their range, but in a manner very gradual. The increase in
the number of magistrates to be elected by the people falls, to some
extent, under this head; it is an especially significant fact that
from 392 the military tribunes of one legion, and from 443 four
tribunes in each of the first four legions respectively, were
nominated no longer by the general, but by the burgesses. During this
period the burgesses did not on the whole interfere in administration;
only their right of declaring war was, as was reasonable, emphatically
maintained, and held to extend also to cases in which a prolonged
armistice concluded instead of a peace expired and what was not in
law but in fact a new war began (327). In other instances a question
of administration was hardly submitted to the people except when the
governing authorities fell into collision and one of them referred
the matter to the people--as when the leaders of the moderate party
among the nobility, Lucius Valerius and Marcus Horatius, in 305, and
the first plebeian dictator, Gaius Marcius Rutilus, in 398, were not
allowed by the senate to receive the triumphs they had earned; when
the consuls of 459 could not agree as to their respective provinces of
jurisdiction; and when the senate, in 364, resolved to give up to the
Gauls an ambassador who had forgotten his duty, and a consular tribune
carried the matter to the community. This was the first occasion on
which a decree of the senate was annulled by the people; and heavily
the community atoned for it. Sometimes in difficult cases the
government left the decision to the people, as first, when Caere sued
for peace, after the people had declared war against it but before
war had actually begun (401); and at a subsequent period, when the
senate hesitated to reject unceremoniously the humble entreaty of
the Samnites for peace (436). It is not till towards the close of
this epoch that we find a considerably extended intervention of the
-comitia tributa- in affairs of administration, particularly through
the practice of consulting it as to the conclusion of peace and of
alliances: this extension probably dates from the Hortensian law
of 467.
Decreasing Importance of the Burgess-Body
But notwithstanding these enlargements of the powers of the
burgess-assemblies, their practical influence on state affairs began,
particularly towards the close of this period, to wane. First of all,
the extension of the bounds of Rome deprived her primary assembly of
its true basis. As an assembly of the freeholders of the community,
it formerly might very well meet in sufficiently full numbers, and
might very well know its own wishes, even without discussion; but the
Roman burgess-body had now become less a civic community than a state.
The fact that those dwelling together voted also with each other, no
doubt, introduced into the Roman comitia, at least when the voting
was by tribes, a sort of inward connection and into the voting now
and then energy and independence; but under ordinary circumstances
the composition of the comitia and their decision were left dependent
on the person who presided or on accident, or were committed to the
hands of the burgesses domiciled in the capital. It is, therefore,
quite easy to understand how the assemblies of the burgesses, which
had great practical importance during the first two centuries of
the republic, gradually became a mere instrument in the hands of
the presiding magistrate, and in truth a very dangerous instrument,
because the magistrates called to preside were so numerous, and
every resolution of the community was regarded as the ultimate legal
expression of the will of the people. But the enlargement of the
constitutional rights of the burgesses was not of much moment,
inasmuch as these were less than formerly capable of a will and action
of their own, and there was as yet no demagogism, in the proper sense
of that term, in Rome. Had any such demagogic spirit existed, it
would have attempted not to extend the powers of the burgesses, but to
remove the restrictions on political debate in their presence; whereas
throughout this whole period there was undeviating acquiescence in the
old maxims, that the magistrate alone could convoke the burgesses,
and that he was entitled to exclude all debate and all proposal
of amendments. At the time this incipient breaking up of the
constitution made itself felt chiefly in the circumstance that
the primary assemblies assumed an essentially passive attitude,
and did not on the whole interfere in government either to help
or to hinder it.
The Magistrates. Partition and Weakening of the Consular Powers
As regards the power of the magistrates, its diminution, although not
the direct design of the struggles between the old and new burgesses,
was doubtless one of their most important results. At the beginning
of the struggle between the orders or, in other words, of the strife
for the possession of the consular power, the consulate was still
the one and indivisible, essentially regal, magistracy; and the
consul, like the king in former times, still had the appointment
of all subordinate functionaries left to his own free choice.
At the termination of that contest its most important functions
--jurisdiction, street-police, election of senators and equites,
the census and financial administration --were separated from the
consulship and transferred to magistrates, who like the consul
were nominated by the community and occupied a position far more
co-ordinate than subordinate. The consulate, formerly the single
ordinary magistracy of the state, was now no longer even absolutely
the first. In the new arrangement as to the ranking and usual order
of succession of the public offices the consulate stood indeed above
the praetorship, aedileship, and quaestorship, but beneath the
censorship, which--in addition to the most important financial duties
--was charged with the adjustment of the rolls of burgesses, equites,
and senators, and thereby wielded a wholly arbitrary moral control
over the entire community and every individual burgess, the humblest
as well as the most prominent. The conception of limited magisterial
power or special function, which seemed to the original Roman state-law
irreconcilable with the conception of supreme office, gradually
gained a footing and mutilated and destroyed the earlier idea of the
one and indivisible -imperium-. A first step was already taken in
this direction by the institution of the standing collateral offices,
particularly the quaestorship;(14) it was completely carried out by
the Licinian laws (387), which prescribed the functions of the three
supreme magistrates, and assigned administration and the conduct of
war to the two first, and the management of justice to the third. But
the change did not stop here. The consuls, although they were in law
wholly and everywhere co-ordinate, naturally from the earliest times
divided between them in practice the different departments of duty
(-provinciae-). Originally this was done simply by mutual concert, or
in default of it by casting lots; but by degrees the other constituent
authorities in the commonwealth interfered with this practical
definition of functions. It became usual for the senate to define
annually the spheres of duty; and, while it did not directly
distribute them among the co-ordinate magistrates, it exercised
decided influence on the personal distribution by advice and request.
In an extreme case the senate doubtless obtained a decree of the
community, definitively to settle the question of distribution;(15)
the government, however, very seldom employed this dangerous
expedient. Further, the most important affairs, such as the
concluding of peace, were withdrawn from the consuls, and they
were in such matters obliged to have recourse to the senate and
to act according to its instructions. Lastly, in cases of extremity
the senate could at any time suspend the consuls from office; for,
according to an usage never established by law but never violated
in practice, the creation of a dictatorship depended simply upon
the resolution of the senate, and the fixing of the person to be
nominated, although constitutionally vested in the nominating
consul, really under ordinary circumstances lay with the senate.
Limitation of the Dictatorship
The old unity and plenary legal power of the -imperium- were retained
longer in the case of the dictatorship than in that of the consulship.
Although of course as an extraordinary magistracy it had in reality
from the first its special functions, it had in law far less of a
special character than the consulate. But it also was gradually
affected by the new idea of definite powers and functions introduced
into the legal life of Rome. In 391 we first meet with a dictator
expressly nominated from theological scruples for the mere
accomplishment of a religious ceremony; and though that dictator
himself, doubtless in formal accordance with the constitution,
treated the restriction of his powers as null and took the command
of the army in spite of it, such an opposition on the part of the
magistrate was not repeated on occasion of the subsequent similarly
restricted nominations, which occurred in 403 and thenceforward very
frequently. On the contrary, the dictators thenceforth accounted
themselves bound by their powers as specially defined.
Restriction as to the Accumulation and the Reoccupation of Offices
Lastly, further seriously felt restrictions of the magistracy were
involved in the prohibition issued in 412 against the accumulation
of the ordinary curule offices, and in the enactment of the same date,
that the same person should not again administer the same office under
ordinary circumstances before an interval of ten years had elapsed, as
well as in the subsequent regulation that the office which practically
was the highest, the censorship, should not be held a second time
at all (489). But the government was still strong enough not to be
afraid of its instruments or to desist purposely on that account
from employing those who were the most serviceable. Brave officers
were very frequently released from these rules,(16) and cases still
occurred like those of Quintus Fabius Rullianus, who was five times
consul in twenty-eight years, and of Marcus Valerius Corvus (384-483)
who, after he had filled six consulships, the first in his twenty-third,
the last in his seventy-second year, and had been throughout three
generations the protector of his countrymen and the terror
of the foe, descended to the grave at the age of a hundred.
The Tribunate of the People as an Instrument of Government
While the Roman magistrate was thus more and more completely and
definitely transformed from the absolute lord into the limited
commissioner and administrator of the community, the old
counter-magistracy, the tribunate of the people, was undergoing at
the same time a similar transformation internal rather than external.
It served a double purpose in the commonwealth. It had been from
the beginning intended to protect the humble and the weak by a
somewhat revolutionary assistance (-auxilium-) against the overbearing
violence of the magistrates; it had subsequently been employed to get
rid of the legal disabilities of the commons and the privileges of the
gentile nobility. The latter end was attained. The original object
was not only in itself a democratic ideal rather than a political
possibility, but it was also quite as obnoxious to the plebeian
aristocracy into whose hands the tribunate necessarily fell, and
quite as incompatible with the new organization which originated
in the equalization of the orders and had if possible a still more
decided aristocratic hue than that which preceded it, as it was
obnoxious to the gentile nobility and incompatible with the patrician
consular constitution. But instead of abolishing the tribunate, they
preferred to convert it from a weapon of opposition into an instrument
of government, and now introduced the tribunes of the people, who were
originally excluded from all share in administration and were neither
magistrates nor members of the senate, into the class of governing
authorities.
While in jurisdiction they stood from the beginning on an equality
with the consuls and in the early stages of the conflicts between the
orders acquired like the consuls the right of initiating legislation,
they now received--we know not exactly when, but presumably at or soon
after the final equalization of the orders--a position of equality
with the consuls as confronting the practically governing authority,
the senate. Hitherto they had been present at the proceedings of the
senate, sitting on a bench at the door; now they obtained, like the
other magistrates and by their side, a place in the senate itself and
the right to interpose their word in its discussions. If they were
precluded from the right of voting, this was simply an application of
the general principle of Roman state-law, that those only should give
counsel who were not called to act; in accordance with which the whole
of the acting magistrates possessed during their year of office only a
seat, not a vote, in the council of the state.(17) But concession did
not rest here. The tribunes received the distinctive prerogative of
supreme magistracy, which among the ordinary magistrates belonged
only to the consuls and praetors besides--the right of convoking the
senate, of consulting it, and of procuring decrees from it.(18) This
was only as it should be; the heads of the plebeian aristocracy
could not but be placed on an equality with those of the patrician
aristocracy in the senate, when once the government had passed
from the clan-nobility to the united aristocracy. Now that this
opposition-college, originally excluded from all share in the public
administration, became--particularly with reference to strictly urban
affairs--a second supreme executive and one of the most usual and most
serviceable instruments of the government, or in other words of the
senate, for managing the burgesses and especially for checking the
excesses of the magistrates, it was certainly, as respected its
original character, absorbed and politically annihilated; but this
course was really enjoined by necessity. Clearly as the defects of
the Roman aristocracy were apparent, and decidedly as the steady
growth of aristocratic ascendency was connected with the practical
setting aside of the tribunate, none can fail to see that government
could not be long carried on with an authority which was not only
aimless and virtually calculated to put off the suffering proletariate
with a deceitful prospect of relief, but was at the same time
decidedly revolutionary and possessed of a--strictly speaking
--anarchical prerogative of obstruction to the authority of the
magistrates and even of the state itself. But that faith in an ideal,
which is the foundation of all the power and of all the impotence
of democracy, had come to be closely associated in the minds of the
Romans with the tribunate of the plebs; and we do not need to
recall the case of Cola Rienzi in order to perceive that, however
unsubstantial might be the advantage thence arising to the multitude,
it could not be abolished without a formidable convulsion of the
state. Accordingly with genuine political prudence they contented
themselves with reducing it to a nullity under forms that should
attract as little attention as possible. The mere name of this
essentially revolutionary magistracy was still retained within
the aristocratically governed commonwealth--an incongruity for the
present, and for the future, in the hands of a coming revolutionary
party, a sharp and dangerous weapon. For the moment, however, and for
a long time to come the aristocracy was so absolutely powerful and
so completely possessed control over the tribunate, that no trace at
all is to be met with of a collegiate opposition on the part of
the tribunes to the senate; and the government overcame the forlorn
movements of opposition that now and then proceeded from individual
tribunes, always without difficulty, and ordinarily by means of
the tribunate itself.
The Senate. Its Composition
In reality it was the senate that governed the commonwealth, and did
so almost without opposition after the equalization of the orders.
Its very composition had undergone a change. The free prerogative of
the chief magistrates in this matter, as it had been exercised after
the setting aside of the old clan-representation,(19) had been already
subjected to very material restrictions on the abolition of the
presidency for life.(20)
A further step towards the emancipation of the senate from the power
of the magistrates took place, when the adjustment of the senatorial
lists was transferred from the supreme magistrates to subordinate
functionaries--from the consuls to the censors.(21) Certainly,
whether immediately at that time or soon afterwards, the right of
the magistrate entrusted with the preparation of the list to omit
from it individual senators on account of a stain attaching to them
and thereby to exclude them from the senate was, if not introduced,
at least more precisely defined,(22) and in this way the foundations
were laid of that peculiar jurisdiction over morals on which the high
repute of the censors was chiefly based.(23) But censures of that
sort--especially since the two censors had to be at one on the matter
--might doubtless serve to remove particular persons who did not
contribute to the credit of the assembly or were hostile to the spirit
prevailing there, but could not bring the body itself into dependence
on the magistracy.
But the right of the magistrates to constitute the senate according
to their judgment was decidedly restricted by the Ovinian law, which
was passed about the middle of this period, probably soon after the
Licinian laws. That law at once conferred a seat and vote in the
senate provisionally on every one who had been curule aedile, praetor,
or consul, and bound the next censors either formally to inscribe
these expectants in the senatorial roll, or at any rate to exclude
them from the roll only for such reasons as sufficed for the rejection
of an actual senator. The number of those, however, who had been
magistrates was far from sufficing to keep the senate up to the normal
number of three hundred; and below that point it could not be allowed
to fall, especially as the list of senators was at the same time that
of jurymen. Considerable room was thus always left for the exercise
of the censorial right of election; but those senators who were chosen
not in consequence of having held office, but by selection on the part
of the censor--frequently burgesses who had filled a non-curule public
office, or distinguished themselves by personal valour, who had killed
an enemy in battle or saved the life of a burgess--took part in
voting, but not in debate.(24) The main body of the senate, and
that portion of it into whose hands government and administration
were concentrated, was thus according to the Ovinian law substantially
based no longer on the arbitrary will of a magistrate, but indirectly
on election by the people. The Roman state in this way made some
approach to, although it did not reach, the great institution of
modern times, representative popular government, while the aggregate
of the non-debating senators furnished--what it is so necessary and
yet so difficult to get in governing corporations--a compact mass
of members capable of forming and entitled to pronounce an opinion,
but voting in silence.
Powers of the Senate
The powers of the senate underwent scarcely any change in form. The
senate carefully avoided giving a handle to opposition or to ambition
by unpopular changes, or manifest violations, of the constitution; it
permitted, though it did nor promote, the enlargement in a democratic
direction of the power of the burgesses. But while the burgesses
acquired the semblance, the senate acquired the substance of power
--a decisive influence over legislation and the official elections,
and the whole control of the state.
Its Influence in Legislation
Every new project of law was subjected to a preliminary deliberation
in the senate, and scarcely ever did a magistrate venture to lay a
proposal before the community without or in opposition to the senate's
opinion. If he did so, the senate had--in the intercessory powers of
the magistrates and the annulling powers of the priests--an ample set
of means at hand to nip in the bud, or subsequently to get rid of,
obnoxious proposals; and in case of extremity it had in its hands
as the supreme administrative authority not only the executing, but
the power of refusing to execute, the decrees of the community. The
senate further with tacit consent of the community claimed the right
in urgent cases of absolving from the laws, under the reservation that
the community should ratify the proceeding--a reservation which from
the first was of little moment, and became by degrees so entirely a
form that in later times they did not even take the trouble to propose
the ratifying decree.
Influence on the Elections
As to the elections, they passed, so far as they depended on the
magistrates and were of political importance, practically into the
hands of the senate. In this way it acquired, as has been mentioned
already,(25) the right to appoint the dictator. Great regard had
certainly to be shown to the community; the right of bestowing the
public magistracies could not be withdrawn from it; but, as has
likewise been already observed, care was taken that this election of
magistrates should not be constructed into the conferring of definite
functions, especially of the posts of supreme command when war was
imminent. Moreover the newly introduced idea of special functions on
the one hand, and on the other the right practically conceded to the
senate of dispensation from the laws, gave to it an important share
in official appointments. Of the influence which the senate exercised
in settling the official spheres of the consuls in particular, we have
already spoken.(26) One of the most important applications of the
dispensing right was the dispensation of the magistrate from the legal
term of his tenure of office--a dispensation which, as contrary to the
fundamental laws of the community, might not according to Roman state-law
be granted in the precincts of the city proper, but beyond these
was at least so far valid that the consul or praetor, whose term was
prolonged, continued after its expiry to discharge his functions
"in a consul's or praetor's stead" (-pro consule- -pro praetore-).
Of course this important right of extending the term of office
--essentially on a par with the right of nomination--belonged by
law to the community alone, and at the beginning was in fact exercised
by it; but in 447, and regularly thenceforward, the command of the
commander-in-chief was prolonged by mere decree of the senate. To this
was added, in fine, the preponderating and skilfully concerted influence
of the aristocracy over the elections, which guided them ordinarily,
although not always, to the choice of candidates agreeable to
the government.
Senatorial Government
Finally as regards administration, war, peace and alliances, the
founding of colonies, the assignation of lands, building, in fact
every matter of permanent and general importance, and in particular
the whole system of finance, depended absolutely on the senate.
It was the senate which annually issued general instructions to the
magistrates, settling their spheres of duty and limiting the troops
and moneys to be placed at the disposal of each; and recourse was
had to its counsel in every case of importance. The keepers of the
state-chest could make no payment to any magistrate with the exception
of the consul, or to any private person, unless authorized by a previous
decree of the senate. In the management, however, of current affairs
and in the details of judicial and military administration the supreme
governing corporation did not interfere; the Roman aristocracy had too
much political judgment and tact to desire to convert the control of
the commonwealth into a guardianship over the individual official,
or to turn the instrument into a machine.
That this new government of the senate amidst all its retention
of existing forms involved a complete revolutionizing of the old
commonwealth, is clear. That the free action of the burgesses should
be arrested and benumbed; that the magistrates should be reduced to
be the presidents of its sittings and its executive commissioners;
that a corporation for the mere tendering of advice should seize the
inheritance of both the authorities sanctioned by the constitution
and should become, although under very modest forms, the central
government of the state--these were steps of revolution and
usurpation. Nevertheless, if any revolution or any usurpation appears
justified before the bar of history by exclusive ability to govern,
even its rigorous judgment must acknowledge that this corporation
timeously comprehended and worthily fulfilled its great task. Called
to power not by the empty accident of birth, but substantially by the
free choice of the nation; confirmed every fifth year by the stern
moral judgment of the worthiest men; holding office for life, and so
not dependent on the expiration of its commission or on the varying
opinion of the people; having its ranks close and united ever after
the equalization of the orders; embracing in it all the political
intelligence and practical statesmanship that the people possessed;
absolute in dealing with all financial questions and in the guidance
of foreign policy; having complete power over the executive by virtue
of its brief duration and of the tribunician intercession which was
at the service of the senate after the termination of the quarrels
between the orders--the Roman senate was the noblest organ of the
nation, and in consistency and political sagacity, in unanimity and
patriotism, in grasp of power and unwavering courage, the foremost
political corporation of all times--still even now an "assembly of
kings," which knew well how to combine despotic energy with republican
self-devotion. Never was a state represented in its external
relations more firmly and worthily than Rome in its best times by
its senate. In matters of internal administration it certainly
cannot be concealed that the moneyed and landed aristocracy, which
was especially represented in the senate, acted with partiality in
affairs that bore upon its peculiar interests, and that the sagacity
and energy of the body were often in such cases employed far from
beneficially to the state. Nevertheless the great principle
established amidst severe conflicts, that all Roman burgesses were
equal in the eye of the law as respected rights and duties, and the
opening up of a political career (or in other words, of admission
to the senate) to every one, which was the result of that principle,
concurred with the brilliance of military and political successes in
preserving the harmony of the state and of the nation, and relieved
the distinction of classes from that bitterness and malignity which
marked the struggle of the patricians and plebeians. And, as the
fortunate turn taken by external politics had the effect of giving the
rich for more than a century ample space for themselves and rendered
it unnecessary that they should oppress the middle class, the Roman
people was enabled by means of its senate to carry out for a longer
term than is usually granted to a people the grandest of all human
undertakings--a wise and happy self-government.
Notes for Book II Chapter III
1. The hypothesis that legally the full -imperium- belonged to the
patrician, and only the military -imperium- to the plebeian, consular
tribunes, not only provokes various questions to which there is no
answer--as to the course followed, for example, in the event of the
election falling, as was by law quite possible, wholly on plebeians
--but specially conflicts with the fundamental principle of Roman
constitutional law, that the -imperium-, that is to say, the right
of commanding the burgess in name of the community, was functionally
indivisible and capable of no other limitation at all than a
territorial one. There was a province of urban law and a province
of military law, in the latter of which the -provocatio- and other
regulations of urban law were not applicable; there were magistrates,
such as the proconsuls, who were empowered to discharge functions
simply in the latter; but there were, in the strict sense of law,
no magistrates with merely jurisdictional, as there were none with
merely military, -imperium-. The proconsul was in his province, just
like the consul, at once commander-in-chief and supreme judge, and was
entitled to send to trial actions not only between non-burgesses and
soldiers, but also between one burgess and another. Even when, on the
institution of the praetorship, the idea rose of apportioning special
functions to the -magistratus maiores-, this division of powers had
more of a practical than of a strictly legal force; the -praetor
urbanus- was primarily indeed the supreme judge, but he could also
convoke the centuries, at least for certain cases, and could
command an army; the consul in the city held primarily the supreme
administration and the supreme command, but he too acted as a judge
in cases of emancipation and adoption--the functional indivisibility
of the supreme magistracy was therefore, even in these instances,
very strictly adhered to on both sides. Thus the military as well as
jurisdictional authority, or, laying aside these abstractions foreign
to the Roman law of this period, the absolute magisterial power, must
have virtually pertained to the plebeian consular tribunes as well as
to the patrician. But it may well be, as Becker supposes (Handb. ii.
2, 137), that, for the same reasons, for which at a subsequent period
there was placed alongside of the consulship common to both orders
the praetorship actually reserved for a considerable time for the
patricians, even during the consular tribunate the plebeian members
of the college were -de facto- kept aloof from jurisdiction, and so
far the consular tribunate prepared the way for the subsequent actual
division of jurisdiction between consuls and praetors.
2. I. VI. Political Effects of the Servian Military Organization
3. The defence, that the aristocracy clung to the exclusion of
the plebeians from religious prejudice, mistakes the fundamental
character of the Roman religion, and imports into antiquity the modern
distinction between church and state. The admittance of a non-burgess
to a religious ceremony of the citizens could not indeed but appear
sinful to the orthodox Roman; but even the most rigid orthodoxy never
doubted that admittance to civic communion, which absolutely and
solely depended on the state, involved also full religious equality.
All such scruples of conscience, the honesty of which in themselves
we do not mean to doubt, were precluded, when once they granted to the
plebeians -en masse- at the right time the patriciate. This only may
perhaps be alleged by way of excuse for the nobility, that after it
had neglected the right moment for this purpose at the abolition of
the monarchy, it was no longer in a position subsequently of itself
to retrieve the neglect (II. I. The New Community).
4. Whether this distinction between these "curule houses" and the
other families embraced within the patriciate was ever of serious
political importance, cannot with certainty be either affirmed or
denied; and as little do we know whether at this epoch there really
was any considerable number of patrician families that were not yet
curule.
5. II. II. The Valerio-Horatian Laws
6. I. XII. Foreign Worships
7. II. I. Senate,
8. II. I. Senate, II. III. Opposition of the Patriciate
9. II. II. Legislation of the Twelve Tables
10. II. III. Equivalence Law and Plebiscitum
11. The statements as to the poverty of the consulars of this period,
which play so great a part in the moral anecdote-books of a later age,
mainly rest on a misunderstanding on the one hand of the old frugal
economy--which might very well consist with considerable prosperity
--and on the other hand of the beautiful old custom of burying men who
had deserved well of the state from the proceeds of penny collections
--which was far from being a pauper burial. The method also of
explaining surnames by etymological guess-work, which has imported
so many absurdities into Roman history, has furnished its quota to
this belief (-Serranus-).
12. II. II. The Valerio-Horatian Laws
13. II. III. Equivalence Law and Plebiscitum
14. II. I. Restrictions on the Delegation of Powers
15. II. III. Increasing Powers of the Burgesses
16. Any one who compares the consular Fasti before and after 412
will have no doubt as to the existence of the above-mentioned law
respecting re-election to the consulate; for, while before that year
a return to office, especially after three or four years, was a
common occurrence, afterwards intervals of ten years and more were
as frequent. Exceptions, however, occur in very great numbers,
particularly during the severe years of war 434-443. On the other
hand, the principle of not allowing a plurality of offices was
strictly adhered to. There is no certain instance of the combination
of two of the three ordinary curule (Liv. xxxix. 39, 4) offices (the
consulate, praetorship, and curule aedileship), but instances occur
of other combinations, such as of the curule aedileship and the office
of master of the horse (Liv. xxiii. 24, 30); of the praetorship
and censorship (Fast. Cap. a. 501); of the praetorship and the
dictatorship (Liv. viii. 12); of the consulate and the dictatorship
(Liv. viii. 12).
17. II. I. Senate
18. Hence despatches intended for the senate were addressed to
Consuls, Praetors, Tribunes of the Plebs, and Senate (Cicero, ad
Fam. xv. 2, et al.)
19. I. V. The Senate
20. II. I. Senate
21. II. III. Censorship
22. This prerogative and the similar ones with reference to the
equestrian and burgess-lists were perhaps not formally and legally
assigned to the censors, but were always practically implied in
their powers. It was the community, not the censor, that conferred
burgess-rights; but the person, to whom the latter in making up the
list of persons entitled to vote did not assign a place or assigned an
inferior one, did not lose his burgess-right, but could not exercise
the privileges of a burgess, or could only exercise them in the
inferior place, till the preparation of a new list. The same was the
case with the senate; the person omitted by the censor from his list
ceased to attend the senate, as long as the list in question remained
valid--unless the presiding magistrate should reject it and reinstate
the earlier list. Evidently therefore the important question in this
respect was not so much what was the legal liberty of the censors,
as how far their authority availed with those magistrates who had to
summon according to their lists. Hence it is easy to understand
how this prerogative gradually rose in importance, and how with the
increasing consolidation of the nobility such erasures assumed
virtually the form of judicial decisions and were virtually respected
as such. As to the adjustment of the senatorial list undoubtedly the
enactment of the Ovinian -plebiscitum- exercised a material share of
influence--that the censors should admit to the senate "the best men
out of all classes."
23. II. III. The Burgess-Body. Its Composition
24. II. III. Complete Opening Up of Magistracies and Priesthoods
25. II. III. Restrictions as to the Accumulation and the Reoccupation
of Offices
26. II. III. Partition and Weakening of Consular Powers