No More Learning

Regarding the development of the fine arts among the
music, and Etruscans and Sabellians our knowledge is little better than song
among the none. 1 We can only notice the fact that in Etruria the Sabellians
and dancers (histri, kirm'ones) and the pipe-players (:ubulones)
Etruscans.
early made a trade of their art, probably earlier even than in Rome, and exhibited themselves in public not only at home, but also in Rome for small remuneration and less honour. It is a circumstance more remarkable that at the Etruscan national festival, in the exhibition of which the whole twelve cities were represented by a federal priest, games were given like those of the Roman city-festival ; we are, however, no longer in a position to answer the
which it suggests, how far the Etruscans were more successful than the Latins in attaining a national form of fine art beyond that of the individual communities. On the other hand a foundation probably was laid in Etruria, even in early times, for that insipid accumulation
question
1 We shall show in due time that the Atcllanae and Fescenninle be longed not to Campanian and Etruscan, but to Latin art.
can. xv ART
301
of learned lumber, particularly of a theological and astro logical nature, by virtue of which afterwards, when amidst the general decay antiquarian dilettantism began to flourish, the Tuscans divided with the Jews, Chaldeans, and Egyptians the honour of being admired as primitive sources of divine wisdom. We know still less, if possible, of Sabellian art; but that of course by no means warrants the inference that it was inferior to that of the neighbouring stocks. On the contrary, it may be conjectured from what we otherwise know of the character of the three chief races of Italy, that in artistic gifts the Samnites approached nearest to the Hellenes and the Etruscans were farthest removed from them; and a sort of confirmation of this hypothesis is fumished by the fact, that the most gifted and most original of the Roman poets, such as Naevius, Ennius, Lucilius, and Horace, belonged to the Samnite lands, whereas Etruria has almost no representatives in Roman literature except the Arretine Maecenas, the most insufferable of all heart withered and affected1 court-poets, and the Volaterran Persius, the true ideal of a conceited and languid, poetry
smitten, youth.
The elements of architecture were, as has been already Earliest
indicated, a primitive common possession of the stocks. Italian or The dwelling-house constitutes the first attempt of structural chitecture. art ; and it was the same among Greeks and Italians.
Built of wood, and covered with a pointed roof of straw or
shingles it formed a square dwelling-chamber, which‘let out the smoke and let in the light by an opening in the roof corresponding with a hole for carrying off the rain in the ground (car/um aea'ium). Under this “ black roof” (atrium) the meals were prepared and consumed; there the house hold gods were worshipped, and the marriage bed and the bier were set out; there the husband received his guests, and the wife sat spinning amid the circle of her maidens. 1 [Literally “ word-crisping," in allusion to the calamirtri Maecznatin]
Earliest
The house had no porch, unless we take as such the un covered space between the house door and the street, which obtained its name vestiéulum, ie. dressing-place, from the circumstance that the Romans were in the habit of going about within doors in their tunics, and only wrapped the toga around them when they went abroad. There was, moreover, no division of apartments except that sleeping and store closets might be provided around the dwelling room ; and still less were there stairs, or stories placed one above another.
Whether, or to what extent, a national Italian architecture arose out of these beginnings can scarcely be determined, for in this field Greek influence, even in the earliest times, had a very powerful effect and almost wholly overgrew such national attempts as possibly had preceded The very oldest Italian architecture with which we are acquainted not much less under the influence of that of Greece than the architecture of the Augustan age. The primitive tombs of Caere and Alsium, and probably the oldest one also of those recently discovered at Praeneste, have been, exactly like the tlmauroi of Orchomenos and Mycenae, roofed over with courses of stone placed one above another, gradually overlapping, and closed by large stone cover. A very ancient building at the city wall of Tusculum was roofed in the same way, and so was originally the well house (tullianum) at the foot of the Capitol, till the top was
down to make room for another building. The gates constructed on the same system are entirely similar in Arpinum and in Mycenae. The tunnel which drains the Alban lake 49) presents the greatest resemblance to that of lake Copais. What are called Cyclopean ring-walls frequently occur in Italy, especially in Etruria, Umbria,
Latium, and Sabina, and decidedly belong in point of design to the most ancient buildings of Italy, although the greater portion of those now extant were probably not
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executed till a much later age, several of them certainly not till the seventh century of the city. They are, just like
those of Greece, sometimes quite roughly formed of large unwrought blocks of rock with smaller stones inserted between them, sometimes disposed in square horizontal courses,1 sometimes composed of polygonal dressed blocks fitting into each other. The selection of one or other of these systems was doubtless ordinarily determined by the material, and accordingly the polygonal masonry does not occur in Rome, where in the most ancient times tufo alone was employed for building. The resemblance in the case of the two former and simpler styles may perhaps be trace able to the similarity of the materials employed and of the object in view in building; but it can hardly be deemed
1 Of this character were the Servian walls. They consisted partly of a strengthening of the hill-slopes by facing them with lining-walls as much as 4 metres thick, partly-in the intervals, above all on the Viminal and Quirinal, where from the Esquiline to the Colline gate there was an absence of natural defence—of an earthen mound, which was finished of on the outside by a similar lining-wall. On these lining-walls rested the breastwork. A trench, according to trustworthy statements of the ancients 30 feet deep and Ioo feet broad, stretched along in front of the wall, for which the earth was taken from this same trench. —The breast work has nowhere been preserved; of the lining-walls extensive remains have recently been brought to light. The blocks of tufo composing them are hewn in longish rectangles, on an average of 60 centimetres (: 2 Roman feet) in height and breadth, while the length varies from 70 centimetres to 3 metres, and they are, without application of mortar. laid together in several rows, alternately with the long and with the narrow side outer most.
The portion of the Servian wall near the Viminal gate, discovered in the year 1862 at the Villa Negroni, rests on a foundation of huge blocks of tufo of 3 to 4 metres in height and breadth, on which was then raised the outer wall from blocks of the same material and of the same size as those elsewhere employed in the wall. The earthen rampart piled up behind appears to have had on the upper surface a breadth extending about 13 metres or fully 40 Roman feet, and the whole wall-defence, in cluding the outer wall of freestone, to have had a breadth of as much as 15 metres or 50 Roman feet. The portions formed of peperino blocks, which are bound with iron clamps, have only been added in connection with subsequent labours of repair. —Essentially similar to the Servian walls are those discovered in the Vigna Nussiner, on the slope of the Palatine towards the side of the Capitol, and at other points of the Palatine, which have been declared by Jordan (Topograplrie, ii. 173), probably ~inh mson. to he mmnants of the citadel-wall of the Palatine Rome.
304
ART looxr
accidental that the artistic polygonal wall-masonry, and the gate with the path leading up to it universally bending to the left and so exposing the unshielded right side of the assailant to the defenders, belong to the Italian fortresses as well as to the Greek. The facts are significant that in that portion of Italy which was not reduced to subjection
by the Hellenes but yet was in lively intercourse with them, the true polygonal masonry was at home, and it is found in Etruria only at Pyrgi and at the towns, not very far distant from of Cosa and Saturnia as the design of the walls of Pyrgi, especially when we take into account the significant name (“towers may just as certainly be ascribed to the Greeks as that of the walls of Tiryns, in them most probably there still stands before our eyes one of the models from which the Italians learned how to build their walls. The temple in fine, which in the period of the empire was called the Tuscanic and was regarded as kind of style co-ordinate with the various Greek temple-structures, not only generally resembled the Greek temple in being an enclosed space (cel/a) usually quadrangular, over which walls and columns raised aloft sloping roof, but was also in details, especially in the column itself and its architectural features, thoroughly dependent on the Greek system. It in accordance with all these facts probable, as credible of itself, that Italian architecture previous to its contact with the Hellenes was confined to wooden huts, abattis, and mounds of earth and stones, and that construction in stone was only adopted
consequence of the example and the better tools of the Greeks. It scarcely to be doubted that the Italians first learned from them the use of iron, and derived from them
the preparation of mortar (ml[e]x, mlecare, from xdkrg), the machine (mackina, lmxawj), the measuring-rod (groma, corruption from 7vu'ipwv, 7wiilsa), and the artificial lattice work (clatbri, xltfi0pov). Accordingly we can scarcely speak
of an architecture peculiarly Italian. Yet in the woodwork
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xv ART
305
of the Italian dwelling-house-alongside of alterations pro duced by Greek influence—various peculiarities may have been retained or even for the first time developed, and these again may have exercised a reflex influence on the building of the Italian temples. The architectural development of the house proceeded in Italy from the Etruscans. The Latin and even the Sabellian still adhered to the hereditary wooden but and to the good old custom of assigning to the god or spirit not a consecrated dwelling, but only a conse crated space, while the Etruscan had already begun artistic ally to transform his dwelling-house, and to erect after the model of the dwelling-house of man a temple also for the god and a sepulchral chamber for the spirit. That the advance to such luxurious structures in Latium first took place under Etruscan influence, is proved by the designation of the oldest style of temple architecture and of the oldest style of house architecture respectively as Tuscanic. 1 As concerns the character of this transference, the Grecian temple probably imitated the general outlines of the tent or dwelling-house ; but it was essentially built of hewn stone and covered with tiles, and the nature of the stone and the baked clay suggested to the Greek the laws of necessity and
The Etruscan on the other hand remained a stranger to the strict Greek distinction between the dwelling of man necessarily erected of wood and the dwelling of the gods necessarily formed of stone. The peculiar character istics of the Tuscan temple—-the outline approaching nearer to a square, the higher gable, the greater breadth of the intervals between the columns, above all, the increased inclination of the roof and the singular projection of the roof-corbels beyond the supporting columns-all arose out of the greater approximation of the temple to the dwelling house, and out of the peculiarities of wooden architecture.
The plastic and delineative arts are more recent than Plantain
1 Ratio Mdllitd: cavum aedium Trm'anicum.
VOL I 20
In Italy
306
ART 300:1
architecture; the house must be built before any attempt is made to decorate gable and walls. It is not probable that these arts really gained a place in Italy during the regal period of Rome; it was only in Etruria, where commerce and piracy early gave rise to a great concentration of
riches, that art or handicraft—if the term he preferred— obtained a footing in the earliest times. Greek art, when it acted on Etruria, was still, as its copy shows, at a very primitive stage, and the Etruscans may have learned from the Greeks the art of working in clay and metal at a period not much later than that at which they borrowed from them the alphabet. The silver coins of Populonia, almost the only works that can be with any precision assigned to this period, give no very high idea of Etruscan artistic skill as it then stood; yet the best of the Etruscan works in bronze, to which the later critics of art assigned so high a place, may have belonged to this primitive age; and the Etruscan terra-cottas also cannot have been altogether despicable, for the oldest works in baked clay placed in the Roman temples-the statue of the Capitoline Jupiter, and the four horse chariot on the roof of his temple—were executed in Veii, and the large ornaments of a similar kind placed on the roofs of temples passed generally among the later Romans under the name of “ Tuscanic works. ”
On the other hand, among the Italians-not among the Sabellian stocks merely, but even among the Latins-native sculpture and design were at this period only coming into existence. The most considerable works of art appear to have been executed abroad. We have just mentioned the statues of clay alleged to have been executed in Veii; and very recent excavations have shown that works in bronze made in Etruria, and furnished with Etruscan inscriptions, circulated in Praeneste at least, if not generally throughout Latium. The statue of Diana in the Romano-Latin federal temple on the Aventine, which was considered the oldest
CHAP- XV ART
307'
statue of a divinity in Rome,1 exactly resembled the Massiliot statue of the Ephesian Artemis, and was perhaps manufac tured in Velia or Massilia. The guilds, which from ancient times existed in Rome, of potters, coppersmiths, and gold smiths 249), are almost the only proofs of the existence of native sculpture and design there; respecting the position of their art no longer possible to gain any clear idea.
If we endeavour to obtain historical results from the Artistic re
lations and
endow
cans and Italians.
archives of the tradition and practice of primitive art,
in the first place manifest that Italian art, like the Italian ments of measures and Italian writing, developed itself not under the Etrus
Phoenician, but exclusively under Hellenic influence. There not single one of the aspects of Italian art which has not found its definite model in the art of ancient Greece;
and, so far, the legend fully warranted which traces the manufacture of painted clay figures, beyond doubt the most ancient form of art in Italy, to the three Greek artists, the “moulder,” “fitter,” and “draughtsman,” Eucheir, Diopos, and Eugrammos, although more than doubtful whether this art came directly from Corinth or came directly to Tarquinii. There as little trace of any immediate imi tation of oriental models as there of an independently developed form of art. The Etruscan lapidaries adhered to the form of the beetle or scaraéaeus, which was originally Egyptian but scaraéaei were also used as models for carv ing in Greece in very early times (ag. such beetle-stone, with very ancient Greek inscription, has been found in Aegina), and therefore they may very well have come to the Etruscans through the Greeks. The Italians may have bought from the Phoenician; they learned only from the Greek.
When Varro (up. Augustin. De Ci'u. Dzi, iv. 31 comp. Plutarch Num. affirms that the Romans for more than one hundred and seventy years worshipped the gods without images, he evidently thinking of this primitive piece of carving, which, according to the conventional chronology, was dedicated between 176 and 219, and, beyond doubt, was the first statue of the gods, the consecration of which was mentioned in the authori~ ties which Varro had before him. Comp. above, p. 280.
578, 685.
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To the further question, from what Greek stock the Etruscans in the first instance received their art-models, a categorical answer cannot be given; yet relations of a re markable kind subsist between the Etruscan and the oldest Attic art. The three forms of art, which were practised in Etruria at least in after times very extensively, but in Greece only to an extent very limited, tomb-painting, mirror designing, and graving on stone, have been hitherto met with on Grecian soil only in Athens and Aegina. The Tuscan temple does not correspond exactly either to the Doric or to the Ionic; but in the more important points of distinction, in the course of columns carried round the calla, as well as in the placing of a separate pedestal under each particular column, the Etruscan style follows the more recent Ionic; and it is this same Iono-Attic style of building still pervaded
by a Doric element, which in its general design stands nearest of all the Greek styles to the Tuscan. In the case of Latium there is an almost total absence of any certain traces of intercourse bearing on the history of art. If it was -as is indeed almost self-evident-the general relations of traflic and intercourse that determined also the introduction of models in art, it may be assumed with certainty that the Campanian and Sicilian Hellenes were the instructors of Latium in art, as in the alphabet; and the analogy between the Aventine Diana and the Ephesian Artemis is at least
not inconsistent with such an hypothesis. Of course the older Etruscan art also served as a model for Latium. As to the Sabellian tribes, if Greek architectural and plastic art reached them at all, it must, like the Greek alphabet, have come to them only through the medium of the more western Italian stocks.
in conclusion, we are to form judgment
the artistic endowments of the different Italian nations, we already at this stage perceive—what becomes indeed far more obvious in the later stages of the history of art-that
respecting
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‘309
while the Etruscans attained to the practice of art at an earlier period and produced more massive and rich workman ship, their works are inferior to those of the Latins and Sabellians in appropriateness and utility no less than in spirit and beauty. This certainly is apparent, in the case of our present epoch, only in architecture. The polygonal wall masonry, as appropriate to its object as it was beautiful, was frequent in Latium and in the inland country behind it; while in Etruria it was rare, and not even the walls of Caere are constructed of polygonal blocks. Even in the religious prominence-remarkable also as respects the history of art— assigned to the arch 213) and to the bridge 219) in
Latium, we may be allowed to perceive, as were, an antici pation of the future aqueducts and consular highways of Rome. On the other hand, the Etruscans repeated, and at the same time corrupted, the ornamental architecture of the Greeks: for while they transferred the laws established for building in stone to architecture in wood, they displayed no thorough skill of adaptation, and the lowness of their roof and the wide intervals between their columns gave to their temples, to use the language of an ancient architect, “heavy, mean, straggling, and clumsy appearance. ” The Latins found in the rich stores of Greek art but very little that was congenial to their thoroughly realistic tastes; but what they did adopt they appropriated truly and heartily as their own, and in the development of the polygonal wall architecture perhaps excelled their instructors. Etruscan art
remarkable evidence of accomplishments mechanically acquired and mechanically retained, but as little as the Chinese, an evidence even of genial receptivity. As scholars have long since desisted from the attempt to derive Greek art from that of the Etruscans, so they must, with whatever reluctance, make up their minds to transfer the Etruscans from the first to the lowest place in the history of Italian art.
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POLYBIUS.
CHAPTER I
CHANGE OF THE CONSTITUTION—LIMITATXON OF TH] POWER OF THE MAGISTRATE
THE strict conception of the unity and omnipotence of the state in all matters pertaining to which was the central principle of the Italian constitutions, placed in the hands of the single president nominated for life formidable power, which was felt doubtless by the enemies of the land, but was not less heavily felt by its citizens. Abuse and oppression could not fail to ensue, and, as necessary consequence, efforts were made to lessen that power. It was, however, the grand distinction of the endeavours after reform and the revolutions in Rome, that there was no attempt either to impose limitations on the community as such or even to deprive of corresponding organs of expression—that there never was any endeavour to assert the so-called natural rights of the individual in contra distinction to the community—that, on the contrary, the attack was wholly directed against the form in which the community was represented. From the times of the Tarquins down to those of the Gracchi the cry of the party of progress in Rome was not for limitation of the power of
the state, but for limitation of the power of the magistrates nor amidst that cry was the truth ever forgotten, that the people ought not to govern, but to be governed.
This struggle was carried on within the burgess-body.
Political
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CHANGE OF THE CONSTITUTION BOOK ll
Side by side with it another movement developed itself the cry of the non-burgesses for equality of political privileges. Under this head are included the agitations of the plebeians, the Latins, the Italians, and the freedmen, all of whom-whether they may have borne the name of burgesses, as did the plebeians and the freedmen, or not, as was the case with the Latins and Italians-were destitute of, and desired, political equality.
A third distinction was one of a still more general nature; the distinction between the wealthy and the poor, especially such as had been dispossessed or were en dangered in possession. The legal and political relations of Rome led to the rise of a numerous class of farmers— partly small proprietors who were dependent on the mercy of the capitalist, partly small temporary lessees who were dependent on the mercy of the landlord—and in many instances deprived individuals as well as whole communities of the lands which they held, without affecting their personal freedom. By these means the agricultural prole tariate became at an early period so powerful as to have a material influence on the destinies of the community. The urban proletariate did not acquire political importance till a much later epoch.
On these distinctions hinged the internal history of Rome, and, as may be presumed, not less the history totally lost to us—of the other Italian communities. The political movement within the fully-privileged burgess-body, the warfare between the excluded and excluding classes, and the social conflicts between the possessors and the non-possessors of land-variously as they crossed and interlaced, and singular as were the alliances they often produced-were nevertheless essentially and fundamentally distinct.
As the Servian reform, which placed the meloiko: on a rooting of equality in a military point of view with the
can. I CHANGE OF THE CONSTITUTION
315
burgess, appears to have originated from considerations of Abolition an administrative nature rather than from any political zigzag; party-tendency, we may assume that the first of the move- of 111? com ments which led to internal crises and changes of the mummy‘ constitution was that which sought to limit the magistracy.
The earliest achievement of this, the most ancient opposition in Rome, consisted in the abolition of the life-tenure of the presidency of the community; in other words, in the abolition of the monarchy. How necessarily this was the result of the natural development of things, is most strikingly demonstrated by the fact, that the same change of constitution took place in an analogous manner through the whole circuit of the Italo-Grecian world. Not only in Rome, but likewise among the other Latins as well as among the Sabellians, Etruscans, and Apulians-and generally, in all the Italian communities, just as in those of Greece-we find the rulers for life of an earlier epoch superseded in after times by annual magistrates. In the case of the Lucanian canton there is evidence that it had a democratic government in time of peace, and it was only in the event of war that the magistrates appointed a king, that an oflicial similar to the Roman dictator. The Sabellian civic communities, such as those of Capua and Pompeii, in like manner were in later times governed by "community-manager” (mea’ix tutims) changed from year to year, and we may assume that similar institutions existed among the other national and civic communities of Italy. In this light the reasons which led to the substitution of consuls for kings in Rome need no explanation. The organism of the ancient Greek and Italian polity developed of itself by sort of natural necessity the limitation of the life-presidency to a shortened, and for the most part an annual, term. Simple, however, as was the cause of this change, might be brought about in various ways; a resolution might be adopted on the death of one life-ruler
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Expulsion of the Tarqulns from Rome.
not to elect another-a course which the Roman senate is said to have attempted after the death of Romulus; or the ruler might voluntarily abdicate, as is alleged to have been the intention of king Servius Tullius ; or the people might rise in rebellion against a tyrannical ruler, and expel him.
It was in this latter way that the monarchy was termin ated in Rome. For however much the history of the ex pulsion of the last Tarquinius, “the proud,” may have been interwoven with anecdotes and spun out into a romance, it is not in its leading outlines to be called in question. Tradition credibly enough indicates as the causes of the revolt, that the king neglected to consult the senate and to complete its numbers; that he pronounced sentences of capital punishment and confiscation without
advising with his counsellors ; that be accumulated immense stores of grain in his granaries, and exacted from the burgesses military labour and task-work beyond what was due. The exasperation of the people is attested by the formal vow which they made man by man for themselves and for their posterity that thenceforth they would never tolerate a king ; by the blind hatred with which the name of king was ever afterwards regarded in Rome ; and above all by the enactment that the “ king for offering sacrifice” (rex sazrorum or samficulus)—whom they considered it their duty to create that the gods might not miss their accustomed mediator-should be disqualified from holding any further oflice, so that this man became the foremost indeed, but also the most powerless in the Roman common wealth. Along with the last king all the members of his clan were banished-a proof how close at that time gentile ties still were. The Tarquinii thereupon transferred them selves to Caere, perhaps their ancient home 159), where their family tomb has recently been discovered. In the room of the one president holding ot‘n'ce for life two annual
316
CHANGE OF THE CONSTITUTION 300K 1!
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CRAP. 1 CHANGE OF THE CONSTITUTION
311
rulers were now placed at the head of the Roman com
munity.
This is all that can be looked upon as historically
certain in reference to this important event. 1 It is con ceivable that in a great community with extensive dominion like the Roman the royal power, particularly if it had been in the same family for several generations, would be more capable of resistance, and the struggle would thus be keener, than in the smaller states; but there is no certain indication of any interference by foreign states in the struggle. The great war with Etruria—which possibly, moreover, has been placed so close upon the expulsion of the Tarquins only in consequence of chronological confusion in the Roman annals --cannot be regarded as an intervention of Etruria in favour of a countryman who had been injured in Rome, for the very suflicient reason that the Etruscans notwithstanding their complete victory neither restored the Roman monarchy, nor even brought back the Tarquinian family.
If we are left in ignorance of the historical connections Powers of this important event, we are fortunately in possession of of the
consuls. clearer light as to the nature of the change which was made
in the constitution. The royal power was by no means abolished, as is shown by the very fact that, when a vacancy occurred afterwards as before, an “interim king” (r'nz‘errex) was nominated. The. one life-king was simply replaced by
1 The well-known fable for the most part refutes itself. To a consider able extent it has been concocted for the explanation of surnames (Brutur, Poplimla, Scan/01a). But even its apparently historical ingredients are found on closer examination to have been invented. Of this character is the statement that Brutus was captain of the horsemen (tribunus celerum) and in that capacity proposed the decree of the people as to the banishment of the Tarquins ; for, according to the Roman constitution. it is quite im
ible that a. mere oflicer should have had the right to convoke the curies. The whole of this statement has evidently been invented with the view of furnishing a legal basis for the Roman republic ; and very ill invented it is, for in its case the tribunus celzrum is confounded with the entirely different magirter equitum (p. 9of. ), and then the right of convoking the centuries which pertained to the latter by virtue of his praetorian rank is made to apply to the assembly of the curies.
Collegiate arrange ment.
two year-kings, who called themselves generals (praetoras), or judges (iudrkes), or merely colleagues (:omules). 1 The principles of collegiate tenure and of annual duration are those which distinguish the republic from the monarchy, and they first meet us here.
The collegiate principle, from which the third and subsequently most current name of the annual kings was derived, assumed in their case an altogether peculiar form The supreme power was not entrusted to the two magistrates
but each consul possessed and exercised it for himself as fully and wholly as it had been possessed and exercised by the king. This was carried so far that, instead of one of the two colleagues undertaking perhaps the administration of justice, and the other the command of the army, they both administered justice simultaneously in the city just as they both set out together to the army ; in case of collision the matter was decided by a rotation measured by months or days. A certain partition of functions withal, at least in the supreme military command, might doubtless take place from the outset-the one consul for example taking the field against the Aequi, and the other against the Volsci-but it had in no wise binding force, and each of the colleagues was legally at liberty to interfere at
any time in the province of the other. When, therefore, supreme power confronted supreme power and the one colleague forbade what the other enjoined, the consular commands neutralized each other. This peculiarly Latin, if not peculiarly Roman, institution of co-ordinate supreme authorities-which in the Roman commonwealth on the whole approved itself as practicable, but to which it will be difiicult to find a parallel in any other considerable state— manifestly sprang out of the endeavour to retain the regal power in legally undiminished fulness. They were thus
1 Conrules are those who "leap or dance together," as pranul is one who “leaps before," exul, one who "leaps out" (6 éxrea'a'w), imula, a
"leap into," primarily applied to a mass of rock fallen into the sea.
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CHANGE OF THE CONSTITUTION BOOK 11
conjointly,
Cum’. 1 CHANGE OF THE CONSTITUTION
319
led not to break up the royal ofice into parts or to transfer it from an individual to a college, but simply to double it and thereby, if necessary, to neutralize it through its own action.
As regards the termination of their tenure of office, the earlier interregnum of five days furnished a legal precedent. 666% The ordinary presidents of the community were bound not
to remain in oflice longer than a year reckoned from the
day of their entering on their functions ; 1 and they ceased dejure to be magistrates upon the expiry of the year, just
as the interrex on the expiry of the five days. Through
this set termination of the supreme office the practical irresponsibility of the king was lost in the case of the consul.
It is true that the king was always in the Roman common wealth subject, and not superior, to the law; but, as according to the Roman view the supreme judge could not
be prosecuted at his own bar, the king might doubtless have
committed a crime, but there was for him no tribunal and no punishment. The consul, again, if he had committed murder or treason, was protected by his oflice, but only so long as it lasted; on his retirement he was liable to the ordinary penal jurisdiction like any other burgess.
To these leading changes, affecting the principles of the constitution, other restrictions were added of a subordinate and more external character, some of which nevertheless produced a deep effect. The privilege of the king to have his fields tilled by task-work of the burgesses, and the special relation of clientship in which the metoea' as a body must
1 The day of entering on oflice did not coincide with the beginning of the year (rst March), and was not at all fixed. The day of retiring was regulated by it, except when a consul was elected expressly in room of one who had dnopped out (mmul . tufictur); in which case the substitute succeeded to the rights and consequently to the term of him whom he re‘ placed. But these supplementary consuls in the earlier period only occurred when merely one of the consuls had dropped out : pairs of supplementary consuls are not found until the later ages of the republic. Ordinarily, therefore, the oflicial year of a consul consisted of unequal portions of two civil years.
Term d
Right of
have stood to the king, ceased of themselves with the life tenure of the oflice.
Hitherto in criminal processes as well as in fines and cor poral punishments it had been the province of the king not only to investigate and decide the cause, but also to decide whether the person found guilty should or should not be allowed to appeal for pardon. The Valerian law now (in
310
CHANGE OF THE CONSTITUTION BOOK r!
I509. 245) enacted that the consul must allow the appeal of the condemned, where sentence of capital or corporal punish ment had been pronounced otherwise than by martial law —a regulation which by a later law (of uncertain date, but
‘51. passed before 303) was extended to heavy fines. In token of this right of appeal, when the consul appeared in the capacity of judge and not of general, the consular lictors laid aside the axes which they had previously carried by virtue of the penal jurisdiction belonging to their master. The law however threatened the magistrate, who did not allow due course to the prowcatio, with no other penalty than infamy-which, as matters then stood, was essentially nothing but a moral stain, and at the utmost only had the effect of disqualifying the infamous person from giving testimony. Here too the course followed was based on the same view, that it was in law impossible to diminish the old regal powers, and that the checks imposed upon the holder of the supreme authority in consequence of the revolution had, strictly viewed, only a practical and moral value. When therefore the consul acted within the old regal jurisdiction, he might in so acting perpetrate an injustice, but he committed no crime and consequently was not amenable for what he did to the penal judge.
A limitation similar in its tendency took place in the civil jurisdiction; for probably there was taken from the consuls at the very outset the right of deciding at their discretion a legal dispute between private persons.
The remodelling of the criminal as of civil procedure stood
CRAP. I CHANGE OF THE CONSTITUTION
321
in connection with a general arrangement respecting the Restric
tions on
the delega
83),
transference of magisterial power to deputies or successors.
While the king had been absolutely at liberty to nominate tion of deputies but had never been compelled to do so, the powers. consuls exercised the right of delegating power in an essentially different way. No doubt the rule that, if the supreme magistrate left the city, he had to appoint a warden there for the administration of justice
remained in force also for the consuls, and the collegiate arrangement was not even extended to such delegation;
on the contrary this appointment was laid on the consul
who was the last to leave the city. But the right of dele<
gation for the time when the consuls remained in the city
was probably restricted, upon the very introduction of this
office, by providing that delegation should be prescribed to
the consul for definite cases, but should be prohibited for
all cases in which was not so prescribed. According to
this principle, as we have said, the whole judicial system
was organized. The consul could certainly exercise criminal jurisdiction also as to capital process in the way of submitting his sentence to the community and having thereupon confirmed or rejected; but he never, so far
as we see, exercised this right, perhaps was soon not
allowed to exercise and possibly pronounced criminal judgment only in the case of appeal to the community being for any reason excluded. Direct conflict between the supreme magistrate of the community and the community itself was avoided, and the criminal procedure was organized really such way, that the supreme magistracy remained only in theory competent, but always acted through deputies who were necessary though appointed by himself. Thesewere thetwo-not standing—pronouncers-of-judgment for revolt and high treason (dam/irz’ perduelliom's) and the two standing trackers of murder, the quaestores pam'a'dz'i. Something similar may perhaps have occurred in the regal
VOL. 2!
I
in a
it,
it
a
it
a
(p.
32a
CHANGE OF THE CONSTITUTION 300K 1
period, where the king had himself represented in such processes 19! ); but the standing character of the latter institution, and the collegiate principle carried out in both, belong at any rate to the republic. The latter arrangement became of great importance also, in so far that thereby for the first time alongside of the two standing supreme magistrates were placed two assistants, whom each supreme magistrate nominated at his entrance on oflice, and who in due course also went out with him on his leaving it—whose position thus, like the supreme magistracy itself, was organized accord ing to the principles of a standing oflice, of a collegiate form, and of an annual tenure. This was not indeed as yet the inferior magistracy itself, at least not in the sense which the republic associated with the magisterial position, inas much as the commissioners did not emanate from the choice of the community; but it doubtless became the starting point for the institution of subordinate magistrates, which was afterwards developed in so manifold ways.
In a similar way the decision in civil procedure was withdrawn from the supreme magistracy, inasmuch as the right of the king to transfer an individual process for decision to a deputy was converted into the duty of the consul, after settling the legitimate title of the party and the object of the suit, to refer the disposal of it to a private man to be selected by him and furnished by him with instruc tions.
In like manner there was left to the consuls the im portant administration of the state-treasure and of the state-archives ; nevertheless probably at once, or at least very early, there were associated with them standing assistants in that duty, namely, those quaestors who, doubtless, had in exercising this function absolutely to obey them, but without whose previous knowledge and co-operation the consuls could not act.
Where on the other hand such directions were not in
CHAP. 1 CHANGE OF THE CONSTITUTION
323
existence, the president of the community in the capital had personally to intervene ; as indeed, for example, at the introductory steps of a process he could not under any circumstances let himself be represented by deputy.
This double restriction of the consular right of delegation subsisted for the government of the city, and primarily for the administration of justice and of the state-chest. As com mander-in-chief, on the other hand, the consul retained the right of handing over all or any of the duties devolving on him. This diversity in the treatment of civil and military delegation explains why in the government of the Roman community proper no delegated magisterial authority (pro magistratu) was possible, nor were purely urban magistrates ever represented by non-magistrates ; and why, on the other hand, military deputies (pro amsule, pro fraeture, pro quaestvre) were excluded from all action within the com munity proper.
The right of nominating asuccessor had not been possessed
NOIBIDIP by the king, but only by the interrex (p. 99). The consul tion of
successor was in this respect placed on a like footing with the latter ;
nevertheless, in the event of his not having exercised the power, the interrex stepped in as before, and the necessary continuity of the oflice subsisted still undiminished under the republican government. The right of nomination, how ever, was materially restricted in favour of the burgesses, as the consul was bound to procure the assent of the burgesses for the successors designated by him, and, in the sequel, to nominate only those whom the community
designated to him. Through this binding right of proposal the nomination of the ordinary supreme magistrates doubt less in a certain sense passed substantially into the hands of the community ; practically, however, there still existed a very considerable distinction between that right of proposal and the right of formal nomination. The consul conducting the election was by no means a mere returning oflicer ; he
Change in the nomi nation of priests.
324
CHANGE OF THE CONSTITUTION BOOK n
could still, ag. by virtue of his old royal prerogative reject particular candidates and disregard the votes tendered for them ; at first he might even limit the choice to a list of candidates proposed by himself; and-what was of still more consequence-when the collegiate consnlship was to be supplemented by the dictator, of whom we shall speak
in so supplementing it the community was not consulted, but on the contrary the consul in that case appointed his colleague with'the same freedom, wherewith the interrex had once appointed the king.
The nomination of the priests, which had been a pre rogative of the kings (p. 81), was not transferred to the consuls ; but the colleges of priests filled up the vacancies in their own ranks, while the Vestals and single priests were nominated by the pontifical college, on which devolved also the exercise of the paternal jurisdiction, so to speak, of the community over the priestesses of Vesta. With a view to the performance of these acts, which could only be properly performed by a single individual, the college probably about this period first nominated a president, the Pontzfix maximur. This separation of the supreme authority in things sacred from the civil power-while . the already mentioned “king for sacrifice” had neither the civil nor the sacred powers of the king, but simply the title, conferred upon him-and the semi-magisterial position of the new high priest, so decidedly contrasting with the character which otherwise marked the priesthood in Rome, form one of the most significant and important peculiarities of this state-revolution, the aim of which was to impose limits on the powers of the magistrates mainly in the interest of the aristocracy.
We have already mentioned that the outward state of the consul was far inferior to that of the regal oflice hedged round as it was with reverence and terror, that the regal name and the priestly consecration were with
immediately,
can. i CHANGE OF THE CONSTITUTION
325
held from him, and that the axe was taken away from his attendants. We have to add that, instead of the purple robe which the king had worn, the consul was distinguished from the ordinary burgess simply by the purple border of his toga, and that, while the king perhaps regularly appeared in public in his chariot, the consul was bound to accommodate himself to the general rule and like every other burgess to go within the city on foot.
These limitations, however, of the plenary power and of the insignia of the magistracy applied in the main only to the ordinary presidency of the community. In extra ordinary cases, alongside of, and in a certain sense instead of, the two presidents chosen by the community there emerged a single one, the master of the army (magister
populr') usually designated as the dz'dator. In the choice of dictator the community exercised no influence at all, but it proceeded solely from the free resolve of one of the consuls for the time being, whose action neither his colleague nor any other authority could hinder. There was no appeal from his sentence any more than from that of the king, unless he chose to allow it. As soon as he ‘was nominated, all the other magistrates were right subject to his authority. On the other hand the duration of the dictator’s oflice was limited in two ways: first, as the oflicial colleague of those consuls, one of whom had nominated him, he might not remain in oflice beyond their legal term ; and secondly, a period of six months was fixed as the absolute maximum for the dura tion of his office. It was a further arrangement peculiar to the dictatorship, that the “master of the army " was bound to nominate for himself immediately a “master of horse” (magr'sler equitum), who acted along with him as a dependent assistant somewhat as did the quaestor along with the consul, and with him retired from ofiice-an arrangement undoubtedly connected with the fact that the
dictator
by
Cmturles and curies.
326
CHANGE OF THE CONSTITUTION BOOK n
dictator, presumably as being the leader of the infantry, was constitutionally prohibited from mounting on horseback. In the light of these regulations the dictatorship is doubtless to be conceived as an institution which arose at the same time with the consulship, and which was designed, especially in the event of war, to obviate for a time the disadvantages of divided power and to revive temporarily the regal authority; for in war more particularly the equality of rights in the consuls could not but appear fraught with danger; and not only positive testimonies, but above all the oldest names given to the magistrate himself and his assistant, as well as the limitation of the oflice to the dura tion of a summer campaign, and the exclusion of the
provocatio, attest the pre-eminently military design of the original dictatorship.
On the whole, therefore, the consuls continued to be, as the kings had been, the supreme administrators, judges, and generals ; and even in a religious point of view it was not the rex sacrorum (who was only nominated that the name might be preserved), but the consul, who offered prayers and sacrifices for the community, and in its name ascertained the will of the gods with the aid of those skilled in sacred lore. Against cases of emergency, more over, a power was retained of reviving at any moment, without previous consultation of the community, the full and unlimited regal authority, so as to set aside the limita tions imposed by the collegiate arrangement and by the special curtailments of jurisdiction. In this way the
of legally retaining and practically restricting the regal authority was solved in genuine Roman fashion with equal acuteness and simplicity by the nameless statesmen who worked out this revolution.
The community thus acquired by the change of con stitution rights of the greatest importance: the right of annually designating its presidents, and that of deciding
problem
CHAP. l CHANGE OF THE CONSTITUTION
327
in the last instance regarding the life or death of the burgess. But the body which acquired these rights could not possibly be the community as it had been hitherto constituted—the patriciate which had practically become an order of nobility. The strength of the nation lay in the “multitude” (plcbs), which already comprehended in large numbers people of note and of wealth. The exclusion of this multitude from the public assembly, although it bore part of the public burdens, might be tolerated as long as that public assembly itself had no very material share in the working of the state machine, and as long as the royal power by the very fact of its high and free position re mained almost equally formidable to the burgesses and to the metoea' and thereby maintained equality of legal redress in the nation. But when the community itself was called regularly to elect and to decide, and the president was practically reduced from its master to its commissioner for a set term, this relation could no longer be maintained as it stood ; least of all when the state had to be remodelled on the morrow of a revolution, which could only have been carried out by the co-operation of the patricians and the metoml An extension of that community was inevitable; and it was accomplished in the most comprehensive manner, inasmuch as the collective plebeiate, that all the non burgesses who were neither slaves nor citizens of extraneous communities living at Rome under the {us imyfiz'tiz', were admitted into the burgess-body. The curiate assembly of the old burgesses, which hitherto had been legally and practically the first authority in the state, was almost totally deprived of its constitutional prerogatives. It was to retain its previous powers only in acts purely formal or in those which affected clan-relations-such as the vow of allegiance to be taken to the consul or to the dictator when they entered on oflice just as previously to the king (p. 81), and the legal dispensations requisite for an arrogat'ia or testa
a
is,
328
CHANGE OF THE CONSTITUTION BOOK n
ment-but it was not in future to perform any act of a properly political character. Soon even the plebeians were admitted to the right of voting also in the curies, and by that step the old burgess-body lost the right of meeting and of resolving at all. The curial organization was virtually rooted out, in so far as it was based on the clan-organization and this latter was to be found in its purity exclusively among the old burgesses. When the plebeians were admitted into the curies, they were certainly also allowed to constitute themselves de jure as—what in the earlier period they could only have been de faclo r toy-families and clans; but it is distinctly recorded by tradition and in itself also very conceivable, that only a portion of the plebeians proceeded so far as to constitute gentes, and thus the new curiate assembly, in opposition to its original character, included numerous members who belonged to no clan.
All the political prerogatives of the public assembly-as well the decision on appeals in criminal causes, which in deed were essentially political processes, as the nomination of magistrates and the adoption or rejection of laws- were transferred to, or were now acquired by, the assembled levy of those bound to military service; so that the centuries now received the rights, as they had previously borne the burdens, of citizens. In this way the small initial movements made by the Servian constitution- such as, in particular, the handing over to the army the right of assenting to the declaration of an aggressive war
such a development that the curies were completely and for ever cast into the shade by the
assembly of the centuries, and people became accustomed to regard the latter as the sovereign people. In this assembly debate took place merely when the presiding magistrate chose himself to speak or bade others do so; of course in cases of appeal both parties had to be heard. A simple majority of the centuries was decisive.
(p.
r2t)-attained
CHAP. 1 CHANGE OF THE CONSTITUTION
339
As in the curiate assembly those who were entitled to vote at all were on a footing of entire equality, and therefore after the admission of all the plebeians into the curies the
result would have been a complete democracy, it may be easily conceived that the decision of political questions continued to be withheld from the curies ; the centuriate assembly placed the preponderating influence, not in the hands of the nobles certainly, but in those of the possessors of property, and the important privilege of priority in voting, which often practically decided the election, placed it in the hands of the equites or, in other words, of the rich.
The senate was not affected by the reform of the consti Senate. tution in the same way as the community. The previously existing college of elders not only continued exclusively patrician, but retained also its essential prerogatives-the
right of appointing the interrex, and of confirming or re jecting the resolutions adopted by the community as consti tutional or unconstitutional. In fact these prerogatives were enhanced by the reform of the constitution, because the appointment of the magistrates also, which fell to be made by election of the community, was thenceforth subject to the confirmation or rejection of the patrician senate.
In cases of appeal alone its confirmation, so far as we know, was never deemed requisite, because in these the matter at stake was the pardon of the guilty and, when this was granted by the sovereign assembly of the people, any cancelling of such an act was wholly out of the question.
But, although by the abolition of the monarchy the constitutional rights of the patrician senate were increased rather than diminished, there yet took place—and that, according to tradition, immediately on the abolition of the monarchy—so far as regards other affairs which fell to be discussed in the senate and admitted of a freer treatment, an enlargement of that body, which brought into it plebeians
33o
CHANGE OF THE CONSTITUTION 5001: II
also, and which in its consequences led to a complete remodelling of the whole. From the earliest times the senate had acted also, although not solely or especially, as a statecouncil ; and, while probably even in the time of the kings it was not regarded as unconstitutional for non senators in this case to take part in the assembly 102), it was now arranged that for such discussions there should be associated with the patrician senate (patres) a number of non-patricians “added to the roll” (mnsmpti). This did not at all put them on a footing of equality; the plebeians in the senate did not become senators, but remained members of the equestrian order, were not designated pains but were even now consm'pti, and had no right to the badge of senatorial dignity, the red shoe
Moreover, they not only remained absolutely excluded from the exercise of the magisterial prerogatives belonging to the senate (auctoritas), but were obliged, even where the question had reference merely to an advice
99).
to rest content with the privilege of being present in silence while the question was put to the patri
cians in turn, and of only indicating their opinion adding to the numbers when the division was taken— voting with the feet (pediéus in sentmliam ire, pedarz'i) as the proud nobility expressed Nevertheless, the plebeians found their way through the new constitution not merely to the Forum, but also to the senate-house, and the first and most diflicult step towards equality of rights was taken in this quarter also.
Otherwise there was no material change in the arrange» ments affecting the senate. Among the patrician members distinction of rank soon came to be recognized, especially in putting the vote: those who were proximately designated
for the supreme magistracy, or who had already administered were entered on the list and were called upon to vote before the rest; and the position of the first of them, the
(consilz‘um),
by
it,
a
(p.
it.
CH-AP- r CHANGE OF THE CONSTITUTION
331
foreman of the senate (girincq): seuatus), soon became a highly coveted place of honour. The consul in ofi‘ice, on the other hand, no more ranked as a member of senate than did the king, and therefore in taking the votes did not include his own. The selection of the members-both of the narrower patrician senate and of those merely added to the roll-fell to be made by the consuls just as formerly by the kings j but the nature of the case implied that, while the king had still perhaps some measure of regard to the representation of the several clans in the senate, this con sideration was of no account so far as concerned the plebeians, among whom the clan-organization was but im perfectly developed, and consequently the relation of the senate to that organization in general fell more and more into abeyance. We have no information that the electing consuls were restricted from admitting more than a definite number of plebeians to the senate; nor was there need for such a regulation, because the consuls themselves belonged to the nobility. On the other hand probably from the outset the consul was in virtue of his very position practi cally far less free, and far more bound by the opinions of his order and by custom, in the appointment of senators than the king. The rule in particular, that the holding of the consulship should necessarily be followed by admission to the senate for life, as was probably the case at this time, the consul was not yet member of at the time of his election, must have in all probability very early acquired consuetudinary force. In like manner seems to have become early the custom not to fill up the senators’ places immediately on their falling vacant, but to revise and complete the roll of the senate on occasion of the census, consequently, as rule, every fourth year; which also involved not unimportant restriction on the authority entrusted with the selection. The whole number of the senators remained as before, and in this the cam-mptz’ were
a
a
it
it
if, a
Couc vative character of the revolution.
also included ; from which fact we are probably entitled to infer the numerical falling off of the patriciate. 1
We thus see that in the Roman commonwealth, even on the conversion of the monarchy into a republic, the old was as far as possible retained. So far as a revolution in a state can be conservative at all, this one was so ; not one of the constituent elements of the commonwealth was really over thrown by This circumstance indicates the character of the whole movement. The expulsion of the Tarquins was not, as the pitiful and deeply -falsified accounts of represent, the work of people carried away by sympathy and enthusiasm for liberty, but the work of two great political parties already engaged in conflict, and clearly aware that their conflict would steadily continue-the old burgesses and the metom'—who, like the English Whigs and Tories in r688, were for moment united by the common danger which threatened to convert the common wealth into the arbitrary government of despot, and differed again as soon as the danger was over. The old burgesses could not get rid of the monarchy without the co operation of the new burgesses; but the new burgesses were far from being sufliciently strong to wrest the power out of the hands of the former at one blow. Compromises of this sort are necessarily limited to the smallest measure of mutual concessions obtained by tedious bargaining; and they leave the future to decide which of the constituent elements shall eventually preponderate, and whether they will work harmoniously together or counteract one another. To look therefore merely to the direct innovations, possibly to the mere change in the duration of the supreme magistracy, altogether to mistake the broad import of the first Roman revolution: its indirect effects were by far the
That the first consuls admitted to the senate r64 plebeians, hardly to be regarded as a historical fact, but rather as a proof that the later Roman archaeologists were unable to point out more than :36 ‘ester of the Roman nobility (Rim. Fan-ck. 121).
332
CHANGE OF THE CONSTITUTION I00! I1
i.
1
is
is
it.
a
a
a
it
CRAP. I CHANGE OF THE CONSTITUTION
333
most important, and vaster doubtless than even its authors anticipated
This, in short, was the time when the Roman burgess- '11,, my
body
in the later sense of the term originated. The “mm plebeians had hitherto been metom', who were subjected to
their share of taxes and burdens, but who were nevertheless
in the eye of the law really nothing but tolerated aliens,
between whose position and that of foreigners proper it
may have seemed hardly necessary to draw a definite line
of distinction. They were now enrolled in the lists as
burgesses liable to military service, and, although they were
still far from being on a footing of legal equality—although
the old burgesses still remained exclusively entitled to
perform the acts of authority constitutionally pertaining to
the council of elders, and exclusively eligible to the civil magistracies and priesthoods, nay even by preference
entitled to participate in the usufructs of burgesses, such as
the joint use of the public pasture-yet the first and most
difficult step towards complete equalization was
from the time when the plebeians no longer served merely
in the common levy, but also voted in the common assembly
and in the common council when its opinion was asked,
and the head and back of the poorest metoikos were as well
protected by the right of appeal as those of the noblest of
the old burgesses.
gained
One consequence of this amalgamation of the patricians and plebeians in a new corporation of Roman burgesses was the conversion of the old burgesses into a clan-nobility, which was incapable of receiving additions or even of filling up its own ranks, since the nobles no longer pos sessed the right of passing decrees in common
and the adoption of new families into the nobility by decree of the community appeared still less admissible. Under the kings the ranks of the Roman nobility had not been thus closed, and the admission of new clans was no very
assembly
334
CHANGE OF THE CONSTITUTION nooK 1
rare occurrence: now this genuine characteristic of patri cianism made its appearance as the sure herald of the speedy loss of its political privileges and of its exclusive estimation in the community. The exclusion of the plebeians from all public magistracies and public priesthoods-while they were admissible to the position of oflicers and senators— and the maintenance, with perverse obstinacy, of the legal impossibility of marriage between old burgesses and plebeians, further impressed on the patriciate from the out set the stamp of an exclusive and wrongly privileged aristocracy.
A second consequence of the new union of the burgesses must have been a more definite regulation of the right of settlement, with reference both to the Latin confederates and to other states. It became necessary—not so much on account of the right of suffrage in the centuries (which indeed belonged only to the freeholder) as on account of the right of appeal, which was intended to be conceded to the plebeian, but not to the foreigner dwelling for a time or even permanently in Rome—to express more precisely the conditions of the acquisition of plebeian rights, and to mark 05 the enlarged burgess-body in its turn from those who were now the non-burgesses. To this epoch therefore we may trace back—in the views and feelings of the people -both the invidiousness of the distinction between
patricians and plebeians, and the strict and haughty line of demarcation between rives Romam' and aliens. But the former civic distinction was in its nature transient, while the latter political one was permanent; and the sense of political unity and rising greatness, which was thus im planted in the heart of the nation, was expansive enough first to undermine and then to carry away with its mighty current those paltry distinctions.
It was at this period, moreover, that law and edict were
leparated.
The distinction indeed had its foundation in
can. I CHANGE OF THE CONSTITUTION
335
the essential character of the Roman state; for even the regal power in Rome was subordinate, not superior, to the law of the land. But the profound and practical veneration, which the Romans, like every other people of political capacity, cherished for the principle of authority, gave birth to the remarkable rule of Roman constitutional and private law, that every command of the magistrate not based upon a law was at least valid during his tenure of oflice, although it expired with that tenure. It is evident that in this view, so long as the presidents were nominated for life, the dis tinction between law and edict must have practically been almost lost sight of, and the legislative activity of the public assembly could acquire no development. On the other hand it obtained a wide field of action after the presidents were changed annually ; and the fact was now by no means void of practical importance, that, if the consul in deciding a process committed a legal informality, his successor could institute a fresh trial of the cause.
It was at this period, finally, that the provinces of civil Civil and and military authority were separated. In the former the “Mm law ruled, in the latter the axe: the former was governed
by the constitutional checks of the right of appeal and of regulated delegation; in the latter the general held an
absolute sway like the king. 1 It was an established prin
ciple, that the general and the army as such should not
under ordinary circumstances enter the city proper. That
organic and permanently operative enactments could only
be made under the authority of the civil power, was
implied in the spirit, if not in the letter, of the constitution.
Instances indeed occasionally occurred where the general, disregarding this principle, convoked his forces in the camp
1 It may not be'superfluous to remark, that the iudicium legitinnml, as well as that quad imperio confinetur, rested on the imperium of the directing magistrate, and the distinction only consisted in the circumstance that the impcrium was in the former case limited by the Jar. while in the latter it was free.
ment of I) patrician
as a burgess assembly, nor was a decree passed under such circumstances legally void ; but custom disapproved of such a proceeding, and it soon fell into disuse as though it had been forbidden. The distinction between Quirites and soldiers became more and more deeply rooted in the minds of the burgesses.
Time however was required for the development of these consequences of the new republicanism ; vividly as posterity felt its effects, the revolution probably appeared to the con temporary world at first in a different light. The non-bur gesses indeed gained by it burgess-rights, and the new bur gess-body acquired in the comitia :enturiata comprehensive prerogatives; but the right of rejection on the part of the patrician senate, which in firm and serried ranks confronted the conu'tia as if it were an Upper House, legally hampered their freedom of movement precisely in the most important matters, and although not in a position to thwart the serious will of the collective body, could yet practically delay and cripple If the nobility in giving up their claim to be the sole embodiment of the community did not seem to have lost much, they had in other respects decidedly gained. The king, true, was patrician as well as the consul, and the right of nominating the members of the senate belonged to the latter as to the former; but while his exceptional position raised the former no less above the patricians than above the plebeians, and while cases might easily occur in which he would be obliged to lean upon the support of the multitude even against the nobility, the consul—ruling for brief term, but before and after that term simply one of the nobility, and obeying tomorrow the noble fellow-burgess whom he had commanded to-day-by no means occupied position aloof from his order, and the spirit of the noble in him must have been far more power
ful than that of the magistrate. Indeed, at any time way of exception patrician disinclined to the rule of the
336
CHANGE OF THE CONSTITUTION BOOK n
a
aa it is
if
by
a
it.
can. i CHANGE OF THE CONSTITUTION
337
nobility was called to the government, his oflicial authority was paralyzed partly by the priestly colleges, which were pervaded by an intense aristocratic spirit, partly by his colleague, and was easily suspended by the dictatorship; and, what was of still more moment, he wanted the first element of political power, time. The president of a commonwealth, whatever plenary authority may be conceded to him, will never gain possession of political power, if he does not continue for some considerable time at the head of affairs; for a necessary condition of every dominion is duration. Consequently the senate appointed for life inevitably acquired-and that by virtue chiefly of its title to advise the magistrate in all points, so that we speak not of the narrower patrician, but of the enlarged patricio plebeian, senate-so great an influence as contrasted with the annual rulers, that their legal relations became precisely inverted; the senate substantially assumed to itself the powers of government, and the former ruler sank into a president acting as its chairman and executing its decrees. In the case of every proposal to be submitted to the com munity for acceptance or rejection the practice of previously consulting the whole senate and obtaining its approval, while not constitutionally necessary, was consecrated by use and wont ; and it was not lightly or willingly departed from. The same course was followed in the case of important state-treaties, of the management and distribution of the public lands, and generally of every act the effects of which extended beyond the official year; and nothing was left to the consul but the transaction of current business, the initial steps in civil processes, and the command in war. Especially important in its consequences was the change in virtue of which neither the consul, nor even the otherwise absolute dictator, was permitted to touch the public treasure except with the consent and by the will of the senate.
The senate made it obligatory on the consuls to commit VOL. I 22
The plebeian widen.
338
CHANGE OF THE CONSTITUTION BOOK u
the administration of the public chest, which the king had managed or might at any rate have managed himself, to two standing subordinate magistrates, who were nominated no doubt by the consuls and had to obey them, but were, as may easily be conceived, much more dependent than the consuls themselves on the senate 32 It thus drew into its own hands the management of finance; and this right of sanctioning the expenditure of money on the part of the Roman senate may be placed on parallel in its effects with the right of sanctioning taxation in the constitutional monarchies of the present day.
The consequences followed as matter of course. The first and most essential condition of all aristocratic govern ment that the plenary power of the state be vested not in an individual but in corporation. Now a preponderantly aristocratic corporation, the senate, had appropriated to itself the government, and at the same time the executive power not only remained in the hands of the nobility, but was also entirely subject to the governing corporation. It
true that considerable number of men not belonging to the nobility sat in the senate; but as they were incap able of holding magistracies or even of taking part in the debates, and thus were excluded from all practical share in the government, they necessarily played subordinate
in the senate, and were moreover kept in pecuniary de pendence on the corporation through the economically
important privilege of using the public pasture. The gradually recognized right of the patrician consuls to revise and modify the senatorial list at least every fourth year, ineffective as presumably was over against the nobility, might very well be employed in their interest, and an obnoxious plebeian might by means of be kept out of the senate or even be removed from its ranks.
It therefore quite true that the immediate effect of the revolution was to establish the aristocratic government. It
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CHAP- 1 CHANGE OF THE CONSTITUTION
339
IS not, however, the whole truth. While the majority of contemporaries probably thought that the revolution had
brought upon the plebeians only a more rigid despotism, we who come afterwards discern in that very revolution the germs of young liberty. What the patricians gained was gained at the expense not of the community, but of the magistrate’s power. It is true that the community gained only a few narrowly restricted rights, which were far less
practical and palpable than the acquisitions of the nobility, and which not one in a thousand probably had the wisdom to value; but they formed a pledge and earnest of the future. Hitherto the metom' had been politically nothing, the old burgesses had been everything ; now that the former were embraced in the community, the old burgesses were overcome; for, however much might still be wanting to full civil equality,'it is the first breach, not the occupation of the last post, that decides the fall of the fortress. With justice therefore the Roman community dated its political existence from the beginning of the consulate.
While however the republican revolution may, notwith standing the aristocratic rule which in the first instance it established, be justly called a victory of the former metom' or the plebs, the revolution even in this respect bore by no means the character which we are accustomed in the present day to designate as democratic. Pure personal merit without the support of birth and wealth could perhaps gain influence and consideration more easily under the regal government than under that of the patriciate. Then admission to the patriciate was not in law foreclosed; now the highest object of plebeian ambition was to be admitted into the dumb appendage of the senate. The nature of the case implied that the governing aristocratic order, so far as it admitted plebeians at all, would grant the right of occupying seats in the senate not absolutely to the best men, but chiefly to the heads of the wealthy and
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CHANGE OF THE CONSTITUTION aoox u
notable plebeian families; and the families thus admitted jealously guarded the possession of the senatorial stalls. While a complete legal equality therefore had subsisted within the old burgess-body, the new burgessbody or former metom' came to be in this way divided from the first into a number of privileged families and a multitude kept in a position of inferiority. But the power of the com munity now according to the centuriate organization came into the hands of that class which since the Servian reform of the army and of taxation had borne mainly the burdens of the state, namely the freeholders, and indeed not so much into the hands of the great proprietors or into those of the small cottagers, as into those of the intermediate class of farmers-an arrangement in which the seniors were still so far privileged that, although less numerous, they had as many voting-divisions as the juniors. While in this way the axe was laid to the root of the old burgess-body and their clan-nobility, and the basis of a new burgess-body was laid, the preponderance in the latter rested on the possession of land and on age, and the first beginnings were already visible of a new aristocracy based primarily on the actual consideration in which the families were held-—the future nobility. There could be no clearer indication of the fundamentally conservative character of the Roman commonwealth than the fact, that the revolution which gave birth to the republic laid down at the same time the primary outlines of a new organization of the state, which was in like manner conservative and in like manner aristocratic.
CHAP- it THE TRIBUNATE OF THE PLEBS
341
CHAPTER II
THE 'rnmuru'rn or THE PLEBS AND THE mzcnmvmn'rn
UNDER the new organization of the commonwealth the old Material burgesses had attained by legal means to the full possession mm“ of political power. Governing through the magistracy
which had been reduced to be their servant, preponderating
in the senate, in sole possession of all public oflices and priesthoods, armed with exclusive cognizance of things human and divine and familiar with the whole routine of political procedure, influential in the public assembly through the large number of pliant adherents attached to the several families, and, lastly, entitled to examine and to reject every decree of the community,-the patricians might have long preserved their practical power, just because they had at the right time abandoned their claim to sole legal authority. It is true that the plebeians could not but be painfully sensible of their political disabilities; but un doubtedly in the first instance the nobility had not much to fear from a purely political opposition, if it understood the art of keeping the multitude, which desired nothing but equitable administration and protection of its material interests, aloof from political strife. In fact during the first period after the expulsion of the kings we meet with various measures which were intended, or at any rate seemed to be intended, to gain the favour of the commons for the government of the nobility especially on economic grounds.
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THE TRIBUNATE OF THE PLEBS BOOK n
The portdues were reduced; when the price of grain was high, large quantities of corn were purchased on account of the state, and the trade in salt was made a state-monopoly, in order to supply the citizens with corn and salt at reason able prices; lastly, the national festival was prolonged for an additional day. Of the same character was the ordinance which we have already mentioned respecting property fines
320), which was not merely intended in general to set limits to the dangerous fining-prerogative of the magistrates, but was also, in significant manner, calculated for the especial protection of the man of small means. The magistrate was prohibited from fining the same man on the same day to an extent beyond two sheep or beyond thirty oxen, without granting leave to appeal; and the reason of these singular rates can only perhaps be found in the fact, that in the case of the man of small means possessing only
few sheep different maximum appeared necessary from that fixed for the wealthy proprietor of herds of oxen-—a considerate regard to the wealth or poverty of the person fined, from which modern legislators might take lesson.
But these regulations were merely superficial; the main current flowed in the opposite direction. With the change in the constitution there was introduced comprehensive revolution in the financial and economic relations of Rome. The government of the kings had probably abstained on principle from enhancing the power of capital, and had promoted as far as could an increase in the number of farms. The new aristocratic government, again, appears to have aimed from the first at the destruction of the middle classes, particularly of the intermediate and smaller holdings of land, and at the development of domination of landed and moneyed lords on the one hand, and of an agricultural proletariate on the other.
The reduction of the port-dues, although upon the whole popular measure, chiefly benefited the great merchant.
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But a much greater accession to the power of capital was Rum;
supplied by the indirect system of finance-administration.
It is diflicult to say what were the remote causes that gave capitalists. rise to it: but, while its origin may probably be referred to
the regal period, after the introduction of the consulate the importance of the intervention of private agency must have
been greatly increased, partly by the rapid succession of magistrates in Rome, partly by the extension of the financial
action of the treasury to such matters as the purchase and
sale of grain and salt; and thus the foundation must have
been laid for that system of farming the finances, the development of which became so momentous and so pernicious for the Roman commonwealth. The state
gradually put all its indirect revenues and all its more complicated payments and transactions into the hands of middlemen, who gave or received a round sum and then managed the matter for their own benefit. Of course only considerable capitalists and, as the state looked strictly to tangible security, in the main only large landholders, could enter into such engagements: and thus there grew up a class of tax-farmers and contractors, who, in the rapid growth of their wealth, in their power over the state to which they appeared to be servants, and in the absurd and sterile basis of their moneyed dominion, quite admit of comparison with the speculators on the stock exchange of
the present day.
The concentrated aspect assumed by the administration Public
of finance showed itself first and most palpably in the had‘ treatment of the public lands, which tended almost directly
to accomplish the material and moral annihilation of the middle classes. The use of the public pasture and of the state-domains generally was from its very nature a privilege
of burgesses; formal law excluded the plebeian from the joint use of the common pasture. As however, apart from the conversion of the public land into private property or
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run TRIBUNATE or THE PLEBS nooK it
its assignation, Roman law knew no fixed rights ofusufruct on the part of individual burgesses to be respected like those of property, it depended solely on the pleasure of the king, so long as the public land remained such, to grant and to define its joint enjoyment; and it is not to be doubted that be frequently made use of his right, or at least his power, as to this matter in favour of plebeians. But on the introduction of the republic the principle was again strictly insisted on, that the use of the common pasture
in law merely to the burgess of best right, or in other words to the patrician; and, though the senate still as before allowed exceptions in favour of the wealthy plebeian houses represented in the small plebeian land holders and the day-labourers, who stood most in need of the common pasture, had its joint enjoyment injuriously withheld from them. Moreover there had hitherto been paid for the cattle driven out on the common pasture grazing-tax, which was moderate enough to make the right of using that pasture still be regarded as a privilege, and yet yielded no inconsiderable revenue to the public purse. The patrician quaestors were now remiss and indulgent in levying and gradually allowed to fall into desuetude. Hitherto, particularly when new domains were acquired by conquest, allocations of land had been regularly arranged, in which all the poorer burgesses and metaea' were provided for; was only the land which was not suitable for agriculture that was annexed to the common pasture. The ruling class did not venture wholly to give up such assigna tions, and still less to propose them merely in favour of
the rich; but they became fewer and scantier, and were replaced by the pernicious system of occupation—that to say, the cession of domain-lands, not in property or under formal lease for definite term, but in special usufruct until further notice, to the first occupant and his heirs-at law, so that the state was at any time entitled to resume
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them, and the occupier had to pay the tenth sheaf, or in oil and wine the fifth part of the produce, to the exchequer. This was simply the precarium already described (p. 245) applied to the state-domains, and may have been already in use as to the public land at an earlier period, particularly as a temporary arrangement until its assignation should be carried out. Now, however, not only did this occupation tenure become permanent, but, as was natural, none but privileged persons or their favourites participated, and the tenth and fifth were collected with the same negligence as the grazing-money. A threefold blow was thus struck at the intermediate and smaller landholders: they were de prived of the common usufructs of burgesses ; the burden of taxation was increased in consequence of the domain revenues no longer flowing regularly into the public chest; and those land-allocations were stopped, which had pro vided a constant outlet for the agricultural proletariate somewhat as a great and well-regulated system of emigration
‘ would do at the present day. To these evils was added the farming on a large scale, which was probably already beginning to come into vogue, dispossessing the small agrarian clients, and in their stead cultivating the estates by rural slaves; a blow, which was more diflicult to avert and perhaps more pernicious than all those political usurpations put together. The burdensome and partly unfortunate wars, and the exorbitant taxes and task-works to which these gave rise, filled up the measure of calamity, so as either to deprive the possessor directly of his farm and to make him the bondsman if not the slave of his creditor-lord, or to re duce him through encumbrances practically to the condition of a temporary lessee of his creditor. The capitalists, to whom a new field was here opened of lucrative speculation unattended by trouble or risk, sometimes augmented in this way their landed property ; sometimes they left to the farmer, whose person and estate the law of debt placed in
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THE TRIBUNATE OF THE PLEBS B001: ll
their hands, nominal proprietorship and actual possession. The latter course was probably the most common as well as the most pernicious; for while utter ruin might thereby be averted from the individual, this precarious position of the farmer, dependent at all times on the mercy of his creditor —a position in which he knew nothing of property but its burdens-threatened to demoralise and politically to anni hilate the whole farmer-class. The intention of the legislator, when instead of mortgaging be prescribed the immediate transfer of the property to the creditor with a view to prevent insolvency and to devolve the burdens of the state on the real holders of the soil (p. 204), was evaded by the rigorous system of personal credit, which might be very suitable for merchants, but ruined the farmers. The free divisibility of the soil always involved the risk of an insol vent agricultural proletariate ; and under such circumstances, when all burdens were increasing and all means of deliverance were foreclosed, distress and despair could not but spread
with fearful rapidity among the agricultural middle class. The distinction between rich and poor, which arose out of these relations, by no means coincided with that between the clans and the plebeians. If far the greater part of the
patricians were wealthy landholders, opulent and con the orders. siderable families were, of course, not wanting among the
plebeians; and as the senate, which even then perhaps consisted in greater part of plebeians, had assumed the superintendence of the finances to the exclusion even of the patrician magistrates, it was natural that all those economic advantages, for which the political privileges of the nobility were abused, should go to the benefit of the wealthy collectively ; and the pressure fell the more heavily upon the commons, since those who were the ablest and the most capable of resistance were by their admission to the senate transferred from the class of the oppressed to the ranks of the oppressors.
Relation! of the social ques tion to the question between
can. it AND THE DECEMVIRATE
347
But this state of things prevented the political position of the aristocracy from being permanently tenable. Had it possessed the selfcontrol to govern justly and to protect the middle class-as individual consuls from its ranks endea voured, but from the reduced position of the magistracy were unable efi'ectually, to do——it might have long maintained itself in sole possession of the offices of state. Had it been willing to admit the wealthy and respectable plebeians to full equality of rights-possibly by connecting the acquisition of the patriciate with admission into the senate—both might long have governed and speculated with impunity. But neither of these courses was adopted; the narrowness of mind and short-sightedness, which are the proper and inalienable privileges ‘of all genuine patricianism, were true to their character also in Rome, and rent the powerful com monwealth asunder in useless, aimless, and inglorious strife.
The immediate crisis however proceeded not from those who felt the disabilities of their order, but from the distress of the farmers. The rectified annals place the political re volution in the year 244, the social in the years 2 59 and 260 j they certainly appear to have followed close upon each other, but the interval was probably longer.