CHAPTER III

The Equalization of the Orders, and the New Aristocracy

Union of the Plebians

The tribunician movements appear to have mainly originated in social

rather than political discontent, and there is good reason to suppose

that some of the wealthy plebeians admitted to the senate were no

less opposed to these movements than the patricians. For they too

benefited by the privileges against which the agitation was mainly

directed; and although in other respects they found themselves treated

as inferior, it probably seemed to them by no means an appropriate

time for asserting their claim to participate in the magistracies,

when the exclusive financial power of the whole senate was assailed.

This explains why during the first fifty years of the republic no step

was taken aiming directly at the political equalization of the orders.

But this league between the patricians and the wealthy plebeians by no

means bore within itself any guarantee of permanence. Beyond doubt

from the very first a portion of the leading plebeian families had

attached themselves to the movement-party, partly from a sense of what

was due to the fellow-members of their order, partly in consequence

of the natural bond which unites all who are treated as inferior,

and partly because they perceived that concessions to the multitude

were inevitable in the issue, and that, if turned to due account,

they would result in the abrogation of the exclusive rights of

the patriciate and would thereby give to the plebeian aristocracy a

decisive preponderance in the state. Should this conviction become

--as was inevitable--more and more prevalent, and should the plebeian

aristocracy at the head of its order take up the struggle with the

patrician nobility, it would wield in the tribunate a legalized

instrument of civil warfare, and it might, with the weapon of social

distress, so fight its battles as to dictate to the nobility the terms

of peace and, in the position of mediator between the two parties,

compel its own admission to the offices of state.

Such a crisis in the position of parties occurred after the fall of

the decemvirate. It had now become perfectly clear that the tribunate

of the plebs could never be set aside; the plebeian aristocracy could

not do better than seize this powerful lever and employ it for the

removal of the political disabilities of their order.

Throwing Open of Marriage and of Magistracies--

Military Tribunes with Consular Powers

Nothing shows so clearly the defencelessness of the clan-nobility

when opposed to the united plebs, as the fact that the fundamental

principle of the exclusive party--the invalidity of marriage between

patricians and plebeians--fell at the first blow scarcely four years

after the decemviral revolution. In the year 309 it was enacted by

the Canuleian plebiscite, that a marriage between a patrician and

a plebeian should be valid as a true Roman marriage, and that the

children begotten of such a marriage should follow the rank of the

father. At the same time it was further carried that, in place of

consuls, military tribunes--of these there were at that time, before

the division of the army into legions, six, and the number of these

magistrates was adjusted accordingly-with consular powers(1) and

consular duration of office should be elected by the centuries.

The proximate cause was of a military nature, as the various wars

required a greater number of generals in chief command than the

consular constitution allowed; but the change came to be of essential

importance for the conflicts of the orders, and it may be that

that military object was rather the pretext than the reason for

this arrangement. According to the ancient law every burgess or

--metoikos-- liable to service might attain the post of an officer,(2)

and in virtue of that principle the supreme magistracy, after having

been temporarily opened up to the plebeians in the decemvirate, was

now after a more comprehensive fashion rendered equally accessible to

all freeborn burgesses. The question naturally occurs, what interest

the aristocracy could have--now that it was under the necessity of

abandoning its exclusive possession of the supreme magistracy and of

yielding in the matter--in refusing to the plebeians the title, and

conceding to them the consulate under this singular form?(3) But,

in the first place, there were associated with the holding of the

supreme magistracy various honorary rights, partly personal, partly

hereditary; thus the honour of a triumph was regarded as legally

dependent on the occupancy of the supreme magistracy, and was never

given to an officer who had not administered the latter office in

person; and the descendants of a curule magistrate were at liberty to

set up the image of such an ancestor in the family hall and to exhibit

it in public on fitting occasions, while this was not allowed in the

case of other ancestors.(4) It is as easy to be explained as it is

difficult to be vindicated, that the governing aristocratic order

should have allowed the government itself to be wrested from their

hands far sooner than the honorary rights associated with it,

especially such as were hereditary; and therefore, when it was obliged

to share the former with the plebeians, it gave to the actual supreme

magistrate the legal standing not of the holder of a curule chair, but

of a simple staff-officer, whose distinction was one purely personal.

Of greater political importance, however, than the refusal of the

-ius imaginum- and of the honour of a triumph was the circumstance,

that the exclusion of the plebeians sitting in the senate from

debate necessarily ceased in respect to those of their number who,

as designated or former consuls, ranked among the senators whose

opinion had to be asked before the rest; so far it was certainly

of great importance for the nobility to admit the plebeian only to

a consular office, and not to the consulate itself.

Opposition of the Patriciate

But notwithstanding these vexatious disabilities the privileges of the

clans, so far as they had a political value, were legally superseded

by the new institution; and, had the Roman nobility been worthy of its

name, it must now have given up the struggle. But it did not. Though

a rational and legal resistance was thenceforth impossible, spiteful

opposition still found a wide field of petty expedients, of chicanery

and intrigue; and, far from honourable or politically prudent as such

resistance was, it was still in a certain sense fruitful of results.

It certainly procured at length for the commons concessions which

could not easily have been wrung from the united Roman aristocracy;

but it also prolonged civil war for another century and enabled

the nobility, in defiance of those laws, practically to retain the

government in their exclusive possession for several generations

longer.

Their Expedients

The expedients of which the nobility availed themselves were as

various as political paltriness could suggest. Instead of deciding

at once the question as to the admission or exclusion of the plebeians

at the elections, they conceded what they were compelled to concede

only with reference to the elections immediately impending. The vain

struggle was thus annually renewed whether patrician consuls or

military tribunes from both orders with consular powers should be

nominated; and among the weapons of the aristocracy this mode of

conquering an opponent by wearying and annoying him proved by no

means the least effective.

Subdivision of the Magistracy--

Censorship

Moreover they broke up the supreme power which had hitherto been

undivided, in order to delay their inevitable defeat by multiplying

the points to be assailed. Thus the adjustment of the budget and of

the burgess--and taxation-rolls, which ordinarily took place every

fourth year and had hitherto been managed by the consuls, was

entrusted as early as the year 319 to two valuators (-censores-),

nominated by the centuries from among the nobles for a period, at

the most, of eighteen months. The new office gradually became the

palladium of the aristocratic party, not so much on account of its

financial influence as on account of the right annexed to it of

filling up the vacancies in the senate and in the equites, and of

removing individuals from the lists of the senate, equites, and

burgesses on occasion of their adjustment. At this epoch, however,

the censorship by no means possessed the great importance and moral

supremacy which afterwards were associated with it.

Quaestorship

But the important change made in the year 333 in respect to the

quaestorship amply compensated for this success of the patrician

party. The patricio-plebeian assembly of the tribes--perhaps taking

up the ground that at least the two military paymasters were in fact

officers rather than civil functionaries, and that so far the plebeian

appeared as well entitled to the quaestorship as to the military

tribuneship--carried the point that plebeian candidates also were

admitted for the quaestorial elections, and thereby acquired for

the first time the privilege of eligibility as well as the right of

election for one of the ordinary magistracies. With justice it was

felt on the one side as a great victory, on the other as a severe

defeat, that thenceforth patrician and plebeian were equally capable

of electing and being elected to the military as well as to the urban

quaestorship.

Attempts at Counterrevolution

The nobility, in spite of the most obstinate resistance, only

sustained loss after loss; and their exasperation increased as their

power decreased. Attempts were doubtless still made directly to

assail the rights secured by agreement to the commons; but such

attempts were not so much the well-calculated manoeuvres of party as

the acts of an impotent thirst for vengeance. Such in particular was

the process against Maelius as reported by the tradition--certainly

not very trustworthy--that has come down to us. Spurius Maelius,

a wealthy plebeian, during a severe dearth (315) sold corn at such

prices as to put to shame and annoy the patrician store-president

(-praefectus annonae-) Gaius Minucius. The latter accused him of

aspiring to kingly power; with what amount of reason we cannot decide,

but it is scarcely credible that a man who had not even filled the

tribunate should have seriously thought of sovereignty. Nevertheless

the authorities took up the matter in earnest, and the cry of "King"

always produced on the multitude in Rome an effect similar to that

of the cry of "Pope" on the masses in England. Titus Quinctius

Capitolinus, who was for the sixth time consul, nominated Lucius

Quinctius Cincinnatus, who was eighty years of age, as dictator

without appeal, in open violation of the solemnly sworn laws.(5)

Maelius, summoned before him, seemed disposed to disregard the

summons; and the dictator's master of the horse, Gaius Servilius

Ahala, slew him with his own hand. The house of the murdered man was

pulled down, the corn from his granaries was distributed gratuitously

to the people, and those who threatened to avenge his death were

secretly made away with. This disgraceful judicial murder--a disgrace

even more to the credulous and blind people than to the malignant

party of young patricians--passed unpunished; but if that party had

hoped by such means to undermine the right of appeal, it violated

the laws and shed innocent blood in vain.

Intrigues of the Nobility

Electioneering intrigues and priestly trickery proved in the hands

of the nobility more efficient than any other weapons. The extent

to which the former must have prevailed is best seen in the fact

that in 322 it appeared necessary to issue a special law against

electioneering practices, which of course was of little avail. When

the voters could not be influenced by corruption or threatening, the

presiding magistrates stretched their powers--admitting, for example,

so many plebeian candidates that the votes of the opposition were

thrown away amongst them, or omitting from the list of candidates

those whom the majority were disposed to choose. If in spite of all

this an obnoxious election was carried, the priests were consulted

whether no vitiating circumstance had occurred in the auspices or

other religious ceremonies on the occasion; and some such flaw they

seldom failed to discover. Taking no thought as to the consequences

and unmindful of the wise example of their ancestors, the people

allowed the principle to be established that the opinion of the

skilled colleges of priests as to omens of birds, portents, and the

like was legally binding on the magistrate, and thus put it into their

power to cancel any state-act--whether the consecration of a temple

or any other act of administration, whether law or election--on the

ground of religious informality. In this way it became possible that,

although the eligibility of plebeians had been established by law

already in 333 for the quaestorship and thenceforward continued to

be legally recognized, it was only in 345 that the first plebeian

attained the quaestorship; in like manner patricians almost

exclusively held the military tribunate with consular powers down

to 354. It was apparent that the legal abolition of the privileges of

the nobles had by no means really and practically placed the plebeian

aristocracy on a footing of equality with the clan-nobility. Many

causes contributed to this result: the tenacious opposition of the

nobility far more easily allowed itself to be theoretically superseded

in a moment of excitement, than to be permanently kept down in the

annually recurring elections; but the main cause was the inward

disunion between the chiefs of the plebeian aristocracy and the mass

of the farmers. The middle class, whose votes were decisive in the

comitia, did not feel itself specially called on to advance the

interests of genteel non-patricians, so long as its own demands were

disregarded by the plebeian no less than by the patrician aristocracy.

The Suffering Farmers

During these political struggles social questions had lain on the

whole dormant, or were discussed at any rate with less energy. After

the plebeian aristocracy had gained possession of the tribunate for

its own ends, no serious notice was taken either of the question of

the domains or of a reform in the system of credit; although there was

no lack either of newly acquired lands or of impoverished or decaying

farmers. Instances indeed of assignations took place, particularly in

the recently conquered border-territories, such as those of the domain

of Ardea in 312, of Labici in 336, and of Veii in 361--more however on

military grounds than for the relief of the farmer, and by no means to

an adequate extent. Individual tribunes doubtless attempted to revive

the law of Cassius--for instance Spurius Maecilius and Spurius

Metilius instituted in the year 337 a proposal for the distribution

of the whole state-lands--but they were thwarted, in a manner

characteristic of the existing state of parties, by the opposition

of their own colleagues or in other words of the plebeian aristocracy.

Some of the patricians also attempted to remedy the common distress;

but with no better success than had formerly attended Spurius Cassius.

A patrician like Cassius and like him distinguished by military renown

and personal valour, Marcus Manlius, the saviour of the Capitol during

the Gallic siege, is said to have come forward as the champion of

the oppressed people, with whom he was connected by the ties of

comradeship in war and of bitter hatred towards his rival, the

celebrated general and leader of the optimate party, Marcus Furius

Camillus. When a brave officer was about to be led away to a debtor's

prison, Manlius interceded for him and released him with his own

money; at the same time he offered his lands to sale, declaring

loudly that, as long as he possessed a foot's breadth of land, such

iniquities should not occur. This was more than enough to unite the

whole government party, patricians as well as plebeians, against the

dangerous innovator. The trial for high treason, the charge of having

meditated a renewal of the monarchy, wrought on the blind multitude

with the insidious charm which belongs to stereotyped party-phrases.

They themselves condemned him to death, and his renown availed him

nothing save that it was deemed expedient to assemble the people for

the bloody assize at a spot whence the voters could not see the rock

of the citadel--the dumb monitor which might remind them how their

fatherland had been saved from the extremity of danger by the hands of

the very man whom they were now consigning to the executioner (370).

While the attempts at reformation were thus arrested in the bud,

the social disorders became still more crying; for on the one

hand the domain-possessions were ever extending in consequence of

successful wars, and on the other hand debt and impoverishment were

ever spreading more widely among the farmers, particularly from the

effects of the severe war with Veii (348-358) and of the burning of

the capital in the Gallic invasion (364). It is true that, when in

the Veientine war it became necessary to prolong the term of service

of the soldiers and to keep them under arms not--as hitherto at the

utmost--only during summer, but also throughout the winter, and when

the farmers, foreseeing their utter economic ruin, were on the point

of refusing their consent to the declaration of war, the senate

resolved on making an important concession. It charged the pay, which

hitherto the tribes had defrayed by contribution, on the state-chest,

or in other words, on the produce of the indirect revenues and the

domains (348). It was only in the event of the state-chest being at

the moment empty that a general contribution (-tributum-) was imposed

on account of the pay; and in that case it was considered as a forced

loan and was afterwards repaid by the community. The arrangement was

equitable and wise; but, as it was not placed upon the essential

foundation of turning the domains to proper account for the benefit

of the exchequer, there were added to the increased burden of service

frequent contributions, which were none the less ruinous to the man

of small means that they were officially regarded not as taxes

but as advances.

Combination of the Plebian Aristocracy and the Farmers against the

Nobility--

Licinio-Sextian Laws

Under such circumstances, when the plebeian aristocracy saw itself

practically excluded by the opposition of the nobility and the

indifference of the commons from equality of political rights,

and the suffering farmers were powerless as opposed to the close

aristocracy, it was natural that they should help each other by a

compromise. With this view the tribunes of the people, Gaius Licinius

and Lucius Sextius, submitted to the commons proposals to the

following effect: first, to abolish the consular tribunate; secondly,

to lay it down as a rule that at least one of the consuls should be

a plebeian; thirdly, to open up to the plebeians admission to one

of the three great colleges of priests--that of the custodiers of

oracles, whose number was to be increased to ten (-duoviri-,

afterwards -decemviri sacris faciundis-(6)); fourthly, as respected

the domains, to allow no burgess to maintain upon the common pasture

more than a hundred oxen and five hundred sheep, or to hold more than

five hundred -jugera- (about 300 acres) of the domain lands left free

for occupation; fifthly, to oblige the landlords to employ in the

labours of the field a number of free labourers proportioned to that

of their rural slaves; and lastly, to procure alleviation for debtors

by deduction of the interest which had been paid from the capital,

and by the arrangement of set terms for the payment of arrears.

The tendency of these enactments is obvious. They were designed

to deprive the nobles of their exclusive possession of the curule

magistracies and of the hereditary distinctions of nobility therewith

associated; which, it was characteristically conceived, could only be

accomplished by the legal exclusion of the nobles from the place of

second consul. They were designed, as a consequence, to emancipate

the plebeian members of the senate from the subordinate position which

they occupied as silent by-sitters,(7) in so far as those of them at

least who had filled the consulate thereby acquired a title to deliver

their opinion with the patrician consulars before the other patrician

senators.(8) They were intended, moreover, to withdraw from the

nobles the exclusive possession of spiritual dignities; and in

carrying out this purpose for reasons sufficiently obvious the old

Latin priesthoods of the augurs and Pontifices were left to the old

burgesses, but these were obliged to open up to the new burgesses the

third great college of more recent origin and belonging to a worship

that was originally foreign. They were intended, in fine, to procure

a share in the common usufructs of burgesses for the poorer commons,

alleviation for the suffering debtors, and employment for the

day-labourers that were destitute of work. Abolition of privileges,

civil equality, social reform--these were the three great ideas, of

which it was the design of this movement to secure the recognition.

Vainly the patricians exerted all the means at their command in

opposition to these legislative proposals; even the dictatorship and

the old military hero Camillus were able only to delay, not to avert

their accomplishment. Willingly would the people have separated the

proposals; of what moment to it were the consulate and custodiership

of oracles, if only the burden of debt were lightened and the public

lands were free! But it was not for nothing that the plebeian

nobility had adopted the popular cause; it included the proposals in

one single project of law, and after a long struggle--it is said of

eleven years--the senate at length gave its consent and they passed

in the year 387.

Political Abolition of the Patriciate

With the election of the first non-patrician consul--the choice fell

on one of the authors of this reform, the late tribune of the people,

Lucius Sextius Lateranus--the clan-aristocracy ceased both in fact and

in law to be numbered among the political institutions of Rome. When

after the final passing of these laws the former champion of the

clans, Marcus Furius Camillus, founded a sanctuary of Concord at the

foot of the Capitol--upon an elevated platform, where the senate was

wont frequently to meet, above the old meeting-place of the burgesses,

the Comitium--we gladly cherish the belief that he recognized in the

legislation thus completed the close of a dissension only too long

continued. The religious consecration of the new concord of the

community was the last public act of the old warrior and statesman,

and a worthy termination of his long and glorious career. He was

not wholly mistaken; the more judicious portion of the clans

evidently from this time forward looked upon their exclusive political

privileges as lost, and were content to share the government with the

plebeian aristocracy. In the majority, however, the patrician spirit

proved true to its incorrigible character. On the strength of the

privilege which the champions of legitimacy have at all times claimed

of obeying the laws only when these coincide with their party

interests, the Roman nobles on various occasions ventured, in open

violation of the stipulated arrangement, to nominate two patrician

consuls. But, when by way of answer to an election of that sort for

the year 411 the community in the year following formally resolved

to allow both consular positions to be filled by non-patricians, they

understood the implied threat, and still doubtless desired, but never

again ventured, to touch the second consular place.

Praetorship--

Curule Aedileship--

Complete Opening Up of Magistracies and Priesthoods

In like manner the aristocracy simply injured itself by the attempt

which it made, on the passing of the Licinian laws, to save at least

some remnant of its ancient privileges by means of a system of

political clipping and paring. Under the pretext that the nobility

were exclusively cognizant of law, the administration of justice was

detached from the consulate when the latter had to be thrown open

to the plebeians; and for this purpose there was nominated a special

third consul, or, as he was commonly called, a praetor. In like

manner the supervision of the market and the judicial police-duties

connected with it, as well as the celebration of the city-festival,

were assigned to two newly nominated aediles, who--by way of

distinction from the plebeian aediles--were named from their standing

jurisdiction "aediles of the judgment seat" (-aediles curules-).

But the curule aedileship became immediately so far accessible to

the plebeians, that it was held by patricians and plebeians

alternately. Moreover the dictatorship was thrown open to plebeians

in 398, as the mastership of the horse had already been in the year

before the Licinian laws (386); both the censorships were thrown open

in 403, and the praetorship in 417; and about the same time (415) the

nobility were by law excluded from one of the censorships, as they

had previously been from one of the consulships. It was to no purpose

that once more a patrician augur detected secret flaws, hidden from

the eyes of the uninitiated, in the election of a plebeian dictator

(427), and that the patrician censor did not up to the close of our

present period (474) permit his colleague to present the solemn

sacrifice with which the census closed; such chicanery served merely

to show the ill humour of patricianism. Of as little avail were the

complaints which the patrician presidents of the senate would not fail

to raise regarding the participation of the plebeians in its debates;

it became a settled rule that no longer the patrician members,

but those who had attained to one of the three supreme ordinary

magistracies--the consulship, praetorship, and curule aedileship

--should be summoned to give their opinion in this order and without

distinction of class, while the senators who had held none of these

offices still even now took part merely in the division. The right,

in fine, of the patrician senate to reject a decree of the community

as unconstitutional--a right, however, which in all probability it

rarely ventured to exercise--was withdrawn from it by the Publilian

law of 415 and by the Maenian law which was not passed before the

middle of the fifth century, in so far that it had to bring forward

its constitutional objections, if it had any such, when the list

of candidates was exhibited or the project of law was brought in;

which practically amounted to a regular announcement of its consent

beforehand. In this character, as a purely formal right, the

confirmation of the decrees of the people still continued in

the hands of the nobility down to the last age of the republic.

The clans retained, as may naturally be conceived, their religious

privileges longer. Indeed, several of these, which were destitute

of political importance, were never interfered with, such as their

exclusive eligibility to the offices of the three supreme -flamines-

and that of -rex sacrorum- as well as to the membership of the

colleges of Salii. On the other hand the two colleges of Pontifices

and of augurs, with which a considerable influence over the courts

and the comitia were associated, were too important to remain in the

exclusive possession of the patricians. The Ogulnian law of 454

accordingly threw these also open to plebeians, by increasing the

number both of the pontifices and of the augurs from six to nine, and

equally distributing the stalls in the two colleges between patricians

and plebeians.

Equivalence of Law and Plebiscitum

The two hundred years' strife was brought at length to: a close by the

law of the dictator Q. Hortensius (465, 468) which was occasioned by a

dangerous popular insurrection, and which declared that the decrees of

the plebs should stand on an absolute footing of equality--instead of

their earlier conditional equivalence--with those of the whole

community. So greatly had the state of things been changed that

that portion of the burgesses which had once possessed exclusively

the right of voting was thenceforth, under the usual form of taking

votes binding for the whole burgess-body, no longer so much as asked

the question.

The Later Patricianism

The struggle between the Roman clans and commons was thus

substantially at an end. While the nobility still preserved out

of its comprehensive privileges the -de facto- possession of one of

the consulships and one of the censorships, it was excluded by law

from the tribunate, the plebeian aedileship, the second consulship

and censorship, and from participation in the votes of the plebs

which were legally equivalent to votes of the whole body of burgesses.

As a righteous retribution for its perverse and stubborn resistance,

the patriciate had seen its former privileges converted into so many

disabilities. The Roman clan-nobility, however, by no means

disappeared because it had become an empty name. The less the

significance and power of the nobility, the more purely and

exclusively the patrician spirit developed itself. The haughtiness

of the "Ramnians" survived the last of their class-privileges for

centuries; after they had steadfastly striven "to rescue the consulate

from the plebeian filth" and had at length become reluctantly

convinced of the impossibility of such an achievement, they continued

at least rudely and spitefully to display their aristocratic spirit.

To understand rightly the history of Rome in the fifth and sixth

centuries, we must never overlook this sulking patricianism; it could

indeed do little more than irritate itself and others, but this it

did to the best of its ability. Some years after the passing of the

Ogulnian law (458) a characteristic instance of this sort occurred.

A patrician matron, who was married to a leading plebeian that had

attained to the highest dignities of the state, was on account of this

misalliance expelled from the circle of noble dames and was refused

admission to the common festival of Chastity; and in consequence of

that exclusion separate patrician and plebeian goddesses of Chastity

were thenceforward worshipped in Rome. Doubtless caprices of this

sort were of very little moment, and the better portion of the

clans kept themselves entirely aloof from this miserable policy of

peevishness; but it left behind on both sides a feeling of discontent,

and, while the struggle of the commons against the clans was in itself

a political and even moral necessity, these convulsive efforts to

prolong the strife--the aimless combats of the rear-guard after the

battle had been decided, as well as the empty squabbles as to rank

and standing--needlessly irritated and disturbed the public and

private life of the Roman community.

The Social Distress, and the Attempt to Relieve It

Nevertheless one object of the compromise concluded by the two

portions of the plebs in 387, the abolition of the patriciate, had

in all material points been completely attained. The question next

arises, how far the same can be affirmed of the two positive objects

aimed at in the compromise?--whether the new order of things in

reality checked social distress and established political equality?

The two were intimately connected; for, if economic embarrassments

ruined the middle class and broke up the burgesses into a minority of

rich men and a suffering proletariate, such a state of things would at

once annihilate civil equality and in reality destroy the republican

commonwealth. The preservation and increase of the middle class, and

in particular of the farmers, formed therefore for every patriotic

statesman of Rome a problem not merely important, but the most

important of all. The plebeians, moreover, recently called to take

part in the government, greatly indebted as they were for their new

political rights to the proletariate which was suffering and expecting

help at their hands, were politically and morally under special

obligation to attempt its relief by means of government measures,

so far as relief was by such means at all attainable.

The Licinian Agrarian Laws

Let us first consider how far any real relief was contained in that

part of the legislation of 387 which bore upon the question. That

the enactment in favour of the free day-labourers could not possibly

accomplish its object--namely, to check the system of farming on

a large scale and by means of slaves, and to secure to the free

proletarians at least a share of work--is self-evident. In this

matter legislation could afford no relief, without shaking the

foundations of the civil organization of the period in a way that

would reach far beyond its immediate horizon. In the question of the

domains, on the other hand, it was quite possible for legislation to

effect a change; but what was done was manifestly inadequate. The new

domain-arrangement, by granting the right of driving very considerable

flocks and herds upon the public pastures, and that of occupying

domain-land not laid out in pasture up to a maximum fixed on a

high scale, conceded to the wealthy an important and perhaps even

disproportionate prior share in the produce of the domains; and by

the latter regulation conferred upon the domain-tenure, although it

remained in law liable to pay a tenth and revocable at pleasure,

as well as upon the system of occupation itself, somewhat of a legal

sanction. It was a circumstance still more suspicious, that the

new legislation neither supplemented the existing and manifestly

unsatisfactory provisions for the collection of the pasture-money

and the tenth by compulsory measures of a more effective kind, nor

prescribed any thorough revision of the domanial possessions, nor

appointed a magistracy charged with the carrying of the new laws into

effect. The distribution of the existing occupied domain-land partly

among the holders up to a fair maximum, partly among the plebeians

who had no property, in both cases in full ownership; the abolition

in future of the system of occupation; and the institution of

an authority empowered to make immediate distribution of any

future acquisitions of territory, were so clearly demanded by the

circumstances of the case, that it certainly was not through want

of discernment that these comprehensive measures were neglected.

We cannot fail to recollect that it was the plebeian aristocracy,

in other words, a portion of the very class that was practically

privileged in respect to the usufructs of the domains, which proposed

the new arrangement, and that one of its very authors, Gaius Licinius

Stolo, was among the first to be condemned for having exceeded the

agrarian maximum; and we cannot but ask whether the legislators dealt

altogether honourably, and whether they did not on the contrary

designedly evade a solution, really tending to the common benefit,

of the unhappy question of the domains. We do not mean, however, to

express any doubt that the regulations of the Licinian laws, such as

they were, might and did substantially benefit the small farmer and

the day-labourer. It must, moreover, be acknowledged that in the

period immediately succeeding the passing of the law the authorities

watched with at least comparative strictness over the observance of

its rules as to the maximum, and frequently condemned the possessors

of large herds and the occupiers of the domains to heavy fines.

Laws Imposing Taxes--

Laws of Credit

In the system of taxation and of credit also efforts were made with

greater energy at this period than at any before or subsequent to it

to remedy the evils of the national economy, so far as legal measures

could do so. The duty levied in 397 of five per cent on the value of

slaves that were to be manumitted was--irrespective of the fact that

it imposed a check on the undesirable multiplication of freedmen--the

first tax in Rome that was really laid upon the rich. In like manner

efforts were made to remedy the system of credit. The usury laws,

which the Twelve Tables had established,(9) were renewed and gradually

rendered more stringent, so that the maximum of interest was

successively lowered from 10 per cent (enforced in 397) to 5 per cent

(in 407) for the year of twelve months, and at length (412) the taking

of interest was altogether forbidden. The latter foolish law remained

formally in force, but, of course, it was practically inoperative; the

standard rate of interest afterwards usual, viz. 1 per cent per month,

or 12 per cent for the civil common year--which, according to the

value of money in antiquity, was probably at that time nearly the same

as, according to its modern value, a rate of 5 or 6 per cent--must

have been already about this period established as the maximum of

appropriate interest. Any action at law for higher rates must have

been refused, perhaps even judicial claims for repayment may have been

allowed; moreover notorious usurers were not unfrequently summoned

before the bar of the people and readily condemned by the tribes to

heavy fines. Still more important was the alteration of the procedure

in cases of debt by the Poetelian law (428 or 441). On the one hand

it allowed every debtor who declared on oath his solvency to save his

personal freedom by the cession of his property; on the other hand it

abolished the former summary proceedings in execution on a loan-debt,

and laid down the rule that no Roman burgess could be led away to

bondage except upon the sentence of jurymen.

Continued Distress

It is plain that all these expedients might perhaps in some respects

mitigate, but could not remove, the existing economic disorders.

The continuance of the distress is shown by the appointment of a

bank-commission to regulate the relations of credit and to provide

advances from the state-chest in 402, by the fixing of legal payment

by instalments in 407, and above all by the dangerous popular

insurrection about 467, when the people, unable to obtain new

facilities for the payment of debts, marched out to the Janiculum,

and nothing but a seasonable attack by external enemies, and the

concessions contained in the Hortensian law,(10) restored peace to

the community. It is, however, very unjust to reproach these earnest

attempts to check the impoverishment of the middle class with their

inadequacy. The belief that it is useless to employ partial and

palliative means against radical evils, because they only remedy

them in part, is an article of faith never preached unsuccessfully

by baseness to simplicity, but it is none the less absurd. On the

contrary, we may ask whether the vile spirit of demagogism had not

even thus early laid hold of this matter, and whether expedients were

really needed so violent and dangerous as, for example, the deduction

of the interest paid from the capital. Our documents do not enable

us to decide the question of right or wrong in the case. But we

recognize clearly enough that the middle class of freeholders

still continued economically in a perilous and critical position;

that various endeavours were made by those in power to remedy it by

prohibitory laws and by respites, but of course in vain; and that the

aristocratic ruling class continued to be too weak in point of control

over its members, and too much entangled in the selfish interests of

its order, to relieve the middle class by the only effectual means at

the disposal of the government--the entire and unreserved abolition

of the system of occupying the state-lands--and by that course to free

the government from the reproach of turning to its own advantage the

oppressed position of the governed.

Influence of the Extension of the Roman Dominion in Elevating the

Farmer-Class

A more effectual relief than any which the government was willing

or able to give was derived by the middle classes from the political

successes of the Roman community and the gradual consolidation of the

Roman sovereignty over Italy. The numerous and large colonies which

it was necessary to found for the securing of that sovereignty, the

greater part of which were sent forth in the fifth century, furnished

a portion of the agricultural proletariate with farms of their own,

while the efflux gave relief to such as remained at home. The

increase of the indirect and extraordinary sources of revenue, and

the flourishing condition of the Roman finances in general, rendered

it but seldom necessary to levy any contribution from the farmers in

the form of a forced loan. While the earlier small holdings were

probably lost beyond recovery, the rising average of Roman prosperity

must have converted the former larger landholders into farmers, and

in so far added new members to the middle class. People of rank

sought principally to secure the large newly-acquired districts for

occupation; the mass of wealth which flowed to Rome through war and

commerce must have reduced the rate of interest; the increase in the

population of the capital benefited the farmer throughout Latium;

a wise system of incorporation united a number of neighbouring and

formerly subject communities with the Roman state, and thereby

strengthened especially the middle class; finally, the glorious

victories and their mighty results silenced faction. If the distress

of the farmers was by no means removed and still less were its sources

stopped, it yet admits of no doubt that at the close of this period

the Roman middle class was on the whole in a far less oppressed

condition than in the first century after the expulsion of the kings.

Civic Equality

Lastly civic equality was in a certain sense undoubtedly attained

or rather restored by the reform of 387, and the development of its

legitimate consequences. As formerly, when the patricians still in

fact formed the burgesses, these had stood upon a footing of absolute

equality in rights and duties, so now in the enlarged burgess-body

there existed in the eye of the law no arbitrary distinctions.

The gradations to which differences of age, sagacity, cultivation, and

wealth necessarily give rise in civil society, naturally also pervaded

the sphere of public life; but the spirit animating the burgesses and

the policy of the government uniformly operated so as to render these

differences as little conspicuous as possible. The whole system of

Rome tended to train up her burgesses on an average as sound and

capable, but not to bring into prominence the gifts of genius. The

growth of culture among the Romans did not at all keep pace with the

development of the power of their community, and it was instinctively

repressed rather than promoted by those in power. That there should

be rich and poor, could not be prevented; but (as in a genuine

community of farmers) the farmer as well as the day-labourer

personally guided the plough, and even for the rich the good economic

rule held good that they should live with uniform frugality and above

all should hoard no unproductive capital at home--excepting the

salt-cellar and the sacrificial ladle, no silver articles were at

this period seen in any Roman house. Nor was this of little moment.

In the mighty successes which the Roman community externally achieved

during the century from the last Veientine down to the Pyrrhic war we

perceive that the patriciate has now given place to the farmers; that

the fall of the highborn Fabian would have been not more and not less

lamented by the whole community than the fall of the plebeian Decian

was lamented alike by plebeians and patricians; that the consulate did

not of itself fall even to the wealthiest aristocrat; and that a poor

husbandman from Sabina, Manius Curius, could conquer king Pyrrhus in

the field of battle and chase him out of Italy, without ceasing to be

a simple Sabine farmer and to cultivate in person his own bread-corn.

New Aristocracy

In regard however to this imposing republican equality we must not

overlook the fact that it was to a considerable extent only formal,

and that an aristocracy of a very decided stamp grew out of it or

rather was contained in it from the very first. The non-patrician

families of wealth and consideration had long ago separated from the

plebs, and leagued themselves with the patriciate in the participation

of senatorial rights and in the prosecution of a policy distinct from

that of the plebs and very often counteracting it. The Licinian laws

abrogated the legal distinctions within the ranks of the aristocracy,

and changed the character of the barrier which excluded the plebeian

from the government, so that it was no longer a hindrance unalterable

in law, but one, not indeed insurmountable, but yet difficult to be

surmounted in practice. In both ways fresh blood was mingled with

the ruling order in Rome; but in itself the government still remained,

as before, aristocratic. In this respect the Roman community was a

genuine farmer-commonwealth, in which the rich holder of a whole hide

was little distinguished externally from the poor cottager and held

intercourse with him on equal terms, but aristocracy nevertheless

exercised so all-powerful a sway that a man without means far sooner

rose to be master of the burgesses in the city than mayor in his own

village. It was a very great and valuable gain, that under the new

legislation even the poorest burgess might fill the highest office

of the state; nevertheless it was a rare exception when a man from

the lower ranks of the population reached such a position,(11) and

not only so, but probably it was, at least towards the close of

this period, possible only by means of an election carried by

the opposition.

New Opposition

Every aristocratic government of itself calls forth a corresponding

opposition party; and as the formal equalization of the orders only

modified the aristocracy, and the new ruling order not only succeeded

the old patriciate but engrafted itself on it and intimately coalesced

with it, the opposition also continued to exist and in all respects

pursued a similar course. As it was now no longer the plebeian

burgesses as such, but the common people, that were treated as

inferior, the new opposition professed from the first to be the

representative of the lower classes and particularly of the small

farmers; and as the new aristocracy attached itself to the patriciate,

so the first movements of this new opposition were interwoven with the

final struggles against the privileges of the patricians. The first

names in the series of these new Roman popular leaders were Manius

Curius (consul 464, 479, 480; censor 481) and Gaius Fabricius (consul

472, 476, 481; censor 479); both of them men without ancestral lineage

and without wealth, both summoned--in opposition to the aristocratic

principle of restricting re-election to the highest office of the

state--thrice by the votes of the burgesses to the chief magistracy,

both, as tribunes, consuls, and censors, opponents of patrician

privileges and defenders of the small farmer-class against the

incipient arrogance of the leading houses. The future parties were

already marked out; but the interests of party were still suspended

on both sides in presence of the interests of the commonweal. The

patrician Appius Claudius and the farmer Manius Curius--vehement in

their personal antagonism--jointly by wise counsel and vigorous action

conquered king Pyrrhus; and while Gaius Fabricius as censor inflicted

penalties on Publius Cornelius Rufinus for his aristocratic sentiments

and aristocratic habits, this did not prevent him from supporting the

claim of Rufinus to a second consulate on account of his recognized

ability as a general. The breach was already formed; but the

adversaries still shook hands across it.

The New Government

The termination of the struggles between the old and new burgesses,

the various and comparatively successful endeavours to relieve the

middle class, and the germs--already making their appearance amidst

the newly acquired civic equality--of the formation of a new

aristocratic and a new democratic party, have thus been passed

in review. It remains that we describe the shape which the new

government assumed amidst these changes, and the positions in which

after the political abolition of the nobility the three elements of

the republican commonwealth--the burgesses, the magistrates, and

the senate--stood towards each other.

The Burgess-Body--

Its Composition

The burgesses in their ordinary assemblies continued as hitherto to

be the highest authority in the commonwealth and the legal sovereign.

But it was settled by law that--apart from the matters committed once

for all to the decision of the centuries, such as the election of

consuls and censors--voting by districts should be just as valid

as voting by centuries: a regulation introduced as regards the

patricio-plebeian assembly by the Valerio-Horatian law of 305(12) and

extended by the Publilian law of 415, but enacted as regards the

plebeian separate assembly by the Hortensian law about 467.(13) We have

already noticed that the same individuals, on the whole, were entitled

to vote in both assemblies, but that--apart from the exclusion of

the patricians from the plebeian separate assembly--in the general

assembly of the districts all entitled to vote were on a footing of

equality, while in the centuriate comitia the working of the suffrage

was graduated with reference to the means of the voters, and in so

far, therefore, the change was certainly a levelling and democratic

innovation. It was a circumstance of far greater importance that,

towards the end of this period, the primitive freehold basis of the

right of suffrage began for the first time to be called in question.

Appius Claudius, the boldest innovator known in Roman history, in his

censorship in 442 without consulting the senate or people so adjusted

the burgess-roll, that a man who had no land was received into

whatever tribe he chose and then according to his means into the

corresponding century. But this alteration was too far in advance

of the spirit of the age to obtain full acceptance. One of the

immediate successors of Appius, Quintus Fabius Rullianus, the famous

conqueror of the Samnites, undertook in his censorship of 450 not to

set it aside entirely, but to confine it within such limits that the

real power in the burgess-assemblies should continue to be vested in

the holders of land and of wealth. He assigned those who had no land

collectively to the four city tribes, which were now made to rank not

as the first but as the last. The rural tribes, on the other hand,

the number of which gradually increased between 367 and 513 from

seventeen to thirty-one--thus forming a majority, greatly

preponderating from the first and ever increasing in preponderance,

of the voting-divisions--were reserved by law for the whole of the

burgesses who were freeholders. In the centuries the equalization of

the freeholders and non-freeholders remained as Appius had introduced

it. In this manner provision was made for the preponderance of the

freeholders in the comitia of the tribes, while for the centuriate

comitia in themselves the wealthy already turned the scale. By this

wise and moderate arrangement on the part of a man who for his warlike

feats and still more for this peaceful achievement justly received the

surname of the Great (-Maximus-), on the one hand the duty of bearing

arms was extended, as was fitting, also to the non-freehold burgesses;

on the other hand care was taken that their influence, especially

that of those who had once been slaves and who were for the most part

without property in land, should be subjected to that check which

is unfortunately, in a state allowing slavery, an indispensable

necessity. A peculiar moral jurisdiction, moreover, which gradually

came to be associated with the census and the making up of the

burgess-roll, excluded from the burgess-body all individuals

notoriously unworthy, and guarded the full moral and political

purity of citizenship.

Increasing Powers of the Burgesses

The powers of the comitia exhibited during this period a tendency to

enlarge their range, but in a manner very gradual. The increase in

the number of magistrates to be elected by the people falls, to some

extent, under this head; it is an especially significant fact that

from 392 the military tribunes of one legion, and from 443 four

tribunes in each of the first four legions respectively, were

nominated no longer by the general, but by the burgesses. During this

period the burgesses did not on the whole interfere in administration;

only their right of declaring war was, as was reasonable, emphatically

maintained, and held to extend also to cases in which a prolonged

armistice concluded instead of a peace expired and what was not in

law but in fact a new war began (327). In other instances a question

of administration was hardly submitted to the people except when the

governing authorities fell into collision and one of them referred

the matter to the people--as when the leaders of the moderate party

among the nobility, Lucius Valerius and Marcus Horatius, in 305, and

the first plebeian dictator, Gaius Marcius Rutilus, in 398, were not

allowed by the senate to receive the triumphs they had earned; when

the consuls of 459 could not agree as to their respective provinces of

jurisdiction; and when the senate, in 364, resolved to give up to the

Gauls an ambassador who had forgotten his duty, and a consular tribune

carried the matter to the community. This was the first occasion on

which a decree of the senate was annulled by the people; and heavily

the community atoned for it. Sometimes in difficult cases the

government left the decision to the people, as first, when Caere sued

for peace, after the people had declared war against it but before

war had actually begun (401); and at a subsequent period, when the

senate hesitated to reject unceremoniously the humble entreaty of

the Samnites for peace (436). It is not till towards the close of

this epoch that we find a considerably extended intervention of the

-comitia tributa- in affairs of administration, particularly through

the practice of consulting it as to the conclusion of peace and of

alliances: this extension probably dates from the Hortensian law

of 467.

Decreasing Importance of the Burgess-Body

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

The History of Rome, Book II From the Abolition of the Monarchy in Rome to the Union of Italy · 第 3 / 10 章