No More Learning

capital causes; but the tribunes got back, as way was found by which was possible for them to transact business as to such cases with the centuries. Besides they retained, in the right to award fines without limitation and to submit this sentence to the comitia tributa, suflicient means of putting an end to the civic existence of a patrician opponent. Further, was on the proposition of the consuls decreed the centuries that in future every magistrate ——and therefore the dictator among the rest-should be bound at his nomination to allow the right of appeal:
368
THE TRIBUNATE OF THE PLEBS BOOK n
494. the results both of the earlier revolution of 260 and of the 449. latest movement; and the Valerio-Horatian laws of 305 can only be understood as forming a compromise in this
any one who should nominate magistrate on other terms was to expiate the offence with his life. In other respects the
dictator retained his former powers and in particular his oFficial acts could not, like those of the consuls, be cancelled by tribune.
The plenitude of the consular power was further re stricted in so far as the administration of the military chest
was committed to two paymasters (qr/anions) chosen by
the community, who were nominated for the first time in 447. 307. The nomination as well of the two new paymasters for war as of the two administering the city-chest now passed over to the community; the consul retained merely
the conduct of the election instead of the election itself. The assembly in which the paymasters were elected was
a
\\
a
;
it a
it
by
a
it
it.
CRAP. I] AND THE DECEMVIRATE
369
that of the whole patricio-plebeian freeholders, and voted by districts ; an arrangement which likewise involved a con cession to the plebeian farmers, who had far more command of these assemblies than of the centuriate comitia.
A concession of still greater consequence was that which allowed the tribunes to share in the discussions of the senate. To admit the tribunes to the hall where the senate sat, appeared to that body beneath its dignity; so a bench was placed for them at the door that they might from that spot follow its proceedings. The tribunician right of intercession had extended also to the decrees of the senate as a collective body, after the latter had become not merely a deliberative but a decretory board, which probably occurred at first in the case of a plebim'tum that was meant to be binding for the whole community 3 53) ; it was natural that there should thenceforth be conceded to the tribunes a certain participation in the discussions of the senate nouse. In order also to secure the decrees of the senate— with me validity of which indeed that of the most important
was bound up-—from being tampered with or forged, it was enacted that in future they should be deposited not merely under charge of the patrician quaestorss uroam' in the temple of Saturn, but also under that of the pleoeian aediles in the temple of Ceres. Thus this struggle, which was begun in order to get rid of the tribunician power, terminated in the renewed and now definitive sanctioning of its right to annul not only particular acts of administration on the appeal of the person aggrieved, but also any resolution of the constituent powers of the state at pleasure. The persons of the tribunes, and the uninterrupted maintenance of the college at its full number, were once more secured by the most sacred oaths and by every element of reverence that religion could present, and not less by the most formal laws. No attempt to abolish this magistracy was ever from this time forward made in Rome.
VOL. 1 a4
plebim'ta
Union
of the plebeians.
37° THE EQUALIZATION OF THE ORDERS, BOOK 11
CHAPTER III
I'HE EQUALIZATION OF THE ORDERS, AND THE NEW ARISTOCRACY
THE tribunician movements appear to have mainly origin ated 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 move ments 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
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, it turned to due account, they would result in the abrogation
appropriate
CHAP. m AND THE NEW ARISTOCRACY
31!
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 in evitable—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 posi tion 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.
Nothing shows so clearly the defencelessness of the clan Throwing
n'obility when opposed to the united plebs, as the fact that open of marriage
the fundamental principle of the exclusive party—the and of ma invalidity of marriage between patricians and plebeians- gistracies. fell at the first blow scarcely four years after the decem
viral revolution. In the year 309 it was enacted by the 445. 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 powers1 and
1 The hypothesis that legally the full imperium belonged to the patri cian, and only the military imperium to the plebeian, consular tribunes, not only provokes various questions to which there is no answer-‘35 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 imperial“,
tribunes with consular powers.
372 THE EQUALIZATION OF THE ORDERS, BOOK l1
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 com mand 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 oflicer (p. 1 20), and in virtue of that principle the supreme magistracy, after having been temporarily opened up to the plebeians in the decem virate, was now after a more comprehensive fashion rendered equally accessible to all freeborn burgesses. The question naturally occurs, what interest the aristocracy could have—
that is to say, the right of commanding the burgss in name of the com munity, 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 prouocatia 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 idm. rose of apportioning Special functions to the magixtralus maiorar, this division of powers had more of a practical than of a strictly legal force; the praetor urbanur 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 magis terial power, must have virtually pertained to the plebeian consular tribunes as well as to the patrician. But it may well be, as Becker supposs (Handb. ii. a, r 37), that, for the same reasons, for which at a subsequent period there was placed alongside of the consnlship common to both orders the praetorship actually reserved for a considerable time for the patricians, even during the consular tribunate the plebeian members ot 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.
mm. m AND . . rnn NEW ARISTOCRACY
373
now that it was under the necessity of abandoning its ex clusive possession of the supreme magistracy and of yield ing in the matter-in refusing to the plebeians the title, and conceding to them the consulate under this singular form? 1 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 ofl'icer who had not administeged the latter oflice 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?
It is as easy to be explained as it is difi‘icult to be vindi cated, 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
especially such as were hereditary; and therefore, when was obliged to share the former with the plebeians,
gave to the actual supreme magistrate the legal standing not of the holder of curule chair, but of simple staff
The defence, that the aristocracy clung to the exclusion of the ple beians 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 cere mony 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 an mass: at the right time the patriciate. This only may perhaps be alleged by way of excuse for the nobility, that after had neglected the right moment for this purpose at the abolition of the monarchy. was no longer in a position subsequently of itself to retrieve the neglect (p. 333).
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 afi‘irmed 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.
'
it it, 1
it
it
;
a
a
it
Opposition of the patrician:
374 THE EQUALIZATION OF THE ORDERS, BOOK u
officer, whose distinction was one purely personal. Of greater political importance, however, than the refusal of the {us imagr'num 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 oflice, and not to the consulate itself.
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 ex pedients, of chicanery and intrigue; and, far from honour
able or politically prudent as such resistance was, it was still in a certain sense fruitful of results. It certainly pro cured at length for the commons concessions which could not easily have been wrung from the united Roman aris tocracy ; 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.
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 aris l
Their ex pedients.
CRAP. m AND THE NEW ARISTOCRACY
375
tocracy this mode of conquering an opponent by weary ing and annoying him proved by no means the least effective.
Moreover they broke up the supreme power which had Subdivi a” hitherto been undivided, in order to delay their inevitable
defeat by multiplying the points to be assailed. Thus traey.
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 485. (cmwres), nominated by the centuries from among the Censor nobles for a period, at the most, of eighteen months. ‘up’ The new ot‘n-ce gradually became the palladium of the aristocratic party, not so much on account of its financial influence as on account of the right annegdwto- 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.
But the important change made in the year 333 in Qqlemr respect to the quaestorship amply compensated for this Elf 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 oficers 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 candi~ dates 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
Attempts at counter rm olution.
375 THE EQUALIZATION OF THE ORDERS, BOOK II
of electing and being elected to the military as well as to the urban quaestorship.
The nobility, in spite of the most obstinate resistance, only sustained loss after loss; and their exasperation increased as their power decreased. Attempts were doubt less 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 (3r 5) sold corn at such prices as to put to shame and annoy the patrician store-president (praqfedus amumae) 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 Cincinnatus, who was eighty years of age, as dictator without appeal, in open violation of the solemnly sworn laws (p. 368). 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
. . JJ.
Quinctius
CRAP. "I AND THE NEW ARISTOCRACY
377
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.
Electioneering intrigues and priestly trickery proved in Intrigues the hands of the nobility more efiicient than any other of the
nobility. weapons. The extent to which the former must have
prevailed is best seen in the fact that in 322 it appeared 482 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 421. quaestorship and thenceforward continued to be legally recognized, it was only in 34 5 that the first plebeian 409. attained the quaestorship ; in like manner patricians almost exclusively held the military tribunate with consular
373 THE EQUALIZATION OF THE ORDERS, BOOK n
400. 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
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.
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-terri
superseded
The suffering farmers.
442. tories, such as those of the domain of Ardea in 312, of 418. 898. 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
417. 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
“MAP. it: AND THE NEW ARISTOCRACY
379
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 com radeship 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). 884. 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 extend ing 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- 3 58) and of the burning of 400-395.
380 THE EQUALIZATION OF THE ORDERS, BOOK H
890. 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 con tribution, on the state-chest, or in other words, on the
406. 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 oflicially regarded not as taxes but as advances.
Combina
Under such circumstances, when the plebeian aris
tion of the tocracy saw itself practically excluded by the opposition of plebeian
aristocracy the nobility and the indifference of the commons from
and the farmers against the nobility.
Licinio Sextian laws.
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
CHAP- 111 AND THE NEW ARISTOCRACY
381
was to be increased to ten (duom'ri, afterwards damviri ran faa'undir, 3o) fourthly, as respected the domains, to allow no burgess to maintain upon the common pasture more than 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 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 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, was characteristically conceived, could only be accomplished by the legal exclusion of the nobles from the place of second consul. They were designed, as consequence, to eman cipate the plebeian members of the senate from the sub ordinate position which they occupied as silent by-sitters (p. 330), 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 (pp. 330, 374). They were intended, moreover, to withdraw from the nobles the exclusive possession of spiritual dignities; and in carrying out this purpose for reasons sufliciently 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 worship that was originally foreign. They were in tended, in fine, to procure share in the common usufructs of burgesses for the poorer commons, alleviation for the suffering debtors, and employment for the day-labourers
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a
it
is ;
a
a
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p. 2
;
38:
THE EQUALIZATION OF THE ORDERS, BOOK n
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
887. 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 plat form, 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 legisla tion 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
can. in AND THE NEW ARISTOCRACY
383
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 34s, 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.
In like manner the aristocracy simply injured itself by Praetor the attempt which it made, on the passing of the Licinian ship‘ 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
In like manner the supervision of the market curule and the judicial police-duties connected with as well as ‘edfleship' 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 juris
diction “aediles of the judgment seat”
But the curule aedileship became immediately so far 2:32:55? ! ’ accessible to the plebeians, that was held by patricians and trades and
praetor.
Moreover the dictatorship was thrown open to plebeians in 398, as the mastership of the horse had 356, already been in the year before the Licinian laws (386) 363. both the censorships were thrown open in 403, and the 351,
plebeians alternately.
in 417; and about the same time (415) the 887. 339. nobility were by law excluded from one of the censorships,
praetorship
(atdiles (um/es). complete
I
;
it
it,
384 THE EQUALIZATION OF THE ORDERS, 300K II
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
S80. 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 patricianisrn. Of as little avail were the complaints which the patrician presi dents 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 consnlship, 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 un constitutional—a right, however, which in all probability it rarely ventured to exercise-was withdrawn from it by the
'89. 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 before hand. 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 oflices of the
CHAP- I" AND THE NEW ARISTOCRACY
385
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, 800. 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.
The two hundred years’ strife was brought at length to Equiva
a close by the law of the dictator Q. Hortensius (465, 468) trig;
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.
plebis
286.
The struggle between the Roman clans and commons The_latu' was thus substantially at an end. While the nobility still glimm' preserved out of its comprehensive privileges the de fizdo possession of one of the consulships and one of the censor
ships, 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 con
verted 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 vol. I 2 5
386 THE EQUALIZATION OF THE ORDERS, BOOK II
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 over look 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
296. 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 ex pelled from the circle of noble dames and was refused admission to the common festival of Chastity ; and in con- sequence 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 them selves entirely aloof from this miserable policy of peevish ness; but it left behind on both sides a feeling of
The social
discontent, and, while the struggle of the commons against the clans was in itself a political and even moral necessity, these convulsive efi'orts 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.
Nevertheless one object of the compromise concluded
dis- [367. by the two portions of the plebs in 387, the abolition of the tress, and
the at tempts to relieve it.
patriciate, had in all material points been
attained. The question next arises, how far the same can be affirmed of the two positive objects aimed at in the
completely
CHAP. "I AND THE NEW ARISTOCRACY
387
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 common wealth. 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.
Let us first consider how far any real relief was contained The Licin~ in that part of the legislation of 387 which bore upon the 32mg" question. That the enactment in favour of the free day- laws. 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
for legislation to effect a change; but what was done was manifestly inadequate. The new domain-arrange
ment, 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
possible
388 THE EQUALIZATION OF THE ORDERS, 300K I!
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 arrange ment, and that one of its very authors, Gaius Licinius 512010, 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
CHAP- m AND THE NEW ARISTOCRACY
389
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.
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 freed
men-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 364), were renewed and gradu
ally rendered more stringent, so that the maximum of
interest was successively lowered from 10 per cent (en
forced in 397) to per cent (in 407) for the year of twelve 857. 347. months, and at length (412) the taking of interest was 342. altogether forbidden. The latter foolish law remained
formally in force, but, of course,,it was practically in
operative; the standard rate of interest afterwards usual,
viz. 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, rate of or 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
Laws imposing taxes.
857.
Laws of credit.
a
5 6
I
5
(p.
39° THE EQUALIZATION OF THE ORDERS, BOOK I!
826 or 813. (428 or 44r). On the one hand it allowed every debtor who declared on oath his solvency to save his personal free dom 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 regu late the relations of credit and to provide advances from
852. the state-chest in 402, by the fixing of legal payment by 847. instalments in 407, and above all by the dangerous popular 287. 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 (p. 385), restored peace to the community. It how- ever, very unjust to reproach these earnest attempts to check the impoverishment of the middle class with their
The belief that useless to employ partial and palliative means against radical evils, because they only remedy them in part, an article of faith never preached unsuccessfully baseness to simplicity, but 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 perilous and critical position; that various endeavours were made
by those in power to remedy by prohibitory laws and
inadequacy.
it
it is
by
a
it is
by
is
is,
CHAP. 111 AND THE NEW ARISTOCRACY
39l
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.
A more effectual relief than any which the government Influence
was willing or able to give was derived by the middle of the ex tension of
classes from the political successes of the Roman com the Roman
munity and the gradual consolidation of the Roman dominion in elevat
sovereignty over Italy. The numerous and large colonies ing the which it was necessary to found for the securing of that farmer
clams. sovereignty, the greater part of which were sent forth in the
fifth century, furnished a portion of the agricultural pro letariate with farms of their own, while the efllux 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;
Civic equality. 867.
392 THE EQUALIZATION OF THE 0RD RS, BOOK 11
finally, the glorious victories and their I ighty 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.
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 bur gesses 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
can. m AND THE NEW ARISTOCRACY
393
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.
In regard however to this imposing republican equality New
we must not overlook the fact that it was to a considerable aristocracy 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 con
sideration 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
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 was no longer hindrance unalterable in law, but one, not indeed insurmountable, but yet diificult 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 genuine farmer-commonwealth, in which the rich holder of 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 sway that man without means far sooner rose
a
a a
a
it
a
it.
New oppo lition.
394 THE EQUALIZATION OF THE ORDERS, BOOK 1!
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 oflice of the state; nevertheless it was a rare. exception when a man from the lower ranks of the popu lation reached such a position,1 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.
Every aristocratic government of itself calls forth a cor responding opposition party; and as the formal equaliza tion 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 the opposition also continued to exist and in all respects
similar course. As 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
pursued
of the small farmers; and as the new aris tocracy attached itself to the patriciate, so the first move ments 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
290. 275. were Manius Curius (consul 464, 479, 480 censor 481)
274. 273. and Gaius Fabricius (consul 472, 476, 481; censor 479); 282. 278.
278. 275. both of them men without ancestral lineage and without wealth, both summoned—in opposition to the aristocratic
of restricting re-election to the highest office of
The statements as to the poverty of the consulars of this period, which play so great 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 pauper burial. The method also of explaining surnames by etymological guesswork, which has imported so many absurdities into
Roman history, has furnished its quota to this belief (Serrama).
particularly
principle
a
l a
a
;
it
it,
CKAP- m AND THE NEW ARISTOCRACY
395
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 con sulate on account of his recognized ability as a general. The breach was already formed; but the adversaries still shook hands across it.
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 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
The new govern ment.
The bur gess-body.
Its com position.
396 THE EQUALIZATION OF THE ORDERS, BOOK I!
voting by centuries : a regulation introduced as regards the
patricio-plebeian assembly by the Valerio-Horatian law of “9. 339. 305 368) and extended by the Publilian law of 415, but enacted as regards the plebeian separate assembly by
l
l
887. 241.
287. the Hortensian law about 467 (p. 385). 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,
812. 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 censor
804. ship of 450 not to set it aside entirely, but to confine it
within such limits that the real power in the 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
burgess
can. in AND THE NEW ARISTOCRACY
397
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 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 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 unfortunately, in state allowing slavery, an indispensable necessity. 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.
The powers of the comitia exhibited during this period Increasing
tendency to enlarge their range, but manner very 5:33“ gradual. The increase in the number of magistrates to be gesses elected by the people falls, to some extent, under this head
an especially significant fact that from 392 the military 362. tribunes of one legion, and from 443 four tribunes in each 311. of the first four legions respectively, were nominated no longer by the general, but by the burgesses. During this
the burgesses did not on the whole interfere administration; only their right of declaring war was, as was reasonable, emphatically maintained, and held to extend also to cases in which prolonged armistice concluded
period
a
;
in ;
a is
it
in a
Aa
a
is
it.
Decreasing
of the burgess body.
398 THE EQUALIZATION OF THE ORDERS, BOOK H
instead of a peace expired and what was not in law but in 427. 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
449. and Marcus Horatius, in 305, and the first plebeian 356. dictator, Gaius Marcius Rutilus, in 398, were not allowed
by the senate to receive the triumphs they had earned, 295. when the consuls of 459 could not agree as to their respective provinces of jurisdiction; and when the senate,
890. 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 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 but before war had actually begun
853. (401); and at subsequent period, when the senate hesitated to reject unceremoniously the humble entreaty of 818. the Samnites for peace (436). not till towards the
close of this epoch that we find considerably extended intervention of the comitia lributa in affairs of administration, particularly through the practice of consulting as to the conclusion of peace and of alliances: this extension
287. probably dates from the Hortensian law of 467.
But notwithstanding these enlargements of the powers importance 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, formerly might very well meet in sufliciently full numbers, and might very well know its own wishes, even without
it
it
a
It is
a
it
it.
can. in AND THE NEW ARISTOCRACY
399
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 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 mere instru ment in the hands of the presiding magistrate, and in truth
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 consti tutional rights of the burgesses was not of much moment, inasmuch as these were less than formerly capable of will and action of their own, and there was as yet no demagog ism, in the proper sense of that term, in Rome. Had any such demagogic spirit existed, 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.
As regards the power of the magistrates, its diminution,
it
a
a
a
is,
400 THE EQUALIZATION OF THE ORDERS, BOOK I1
The magis- although not the direct design of the struggles between the
trates. Partition and weak ening of the consular powers.
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 appoint ment 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 oflices the consulate stood indeed above the praetorship, aedile ship, 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 oflice, gradually gained a footing and mutilated and destroyed the earlier idea of the one and indivisible im
perium. A first step was already taken in this direction by the institution of the standing collateral oflices, particu larly the quaestorship 322) was completely carried out
367, by the Licinian laws (387), which prescribed the functions of the three supreme magistrates, and assigned administration
(p.
; it
can. 111 AND THE NEW ARISTOCRACY
4or
and the conduct of war to the two first, and the manage ment 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 (prow'na'ae). 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 common wealth 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 coordinate 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 (p. 398) ; 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
oflice; 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 consti tutionally vested in the nominating consul, really under ordinary circumstances lay with the senate.
The old unity and plenary legal power of the imperium Limitation were retained longer in the case of the dictatorship than in of the die
that of the consulship. Although of course as an extra ordinary 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
v01. 1 26
tatorship.
868.
40: THE EQUALIZATION OF THE ORDERS, BOOK 1]
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 accord ance with the constitution, treated the restriction of his powers as null and took the command of the army in spite of 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 thence forward very frequently. On the contrary, the dictators thenceforth accounted themselves bound by their powers as specially defined.
Lastly, further seriously felt restrictions of the magistracy
351.
Restric
tions as to were involved in the prohibition issued in 412 against the the [342.
accumula accumulation of the ordinary curule offices, and in the tion and
enactment of the same date, that the same person should occupation not again administer the same oflice under ordinary circum
stances before an interval of ten years had elapsed, as well as in the subsequent regulation that the oflice which practically was the highest, the censorship, should not be
265. held 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 oflicers were frequently released from these rules,1 and cases still
the re
of offices.
842.
820-311.
very
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 return to office, especially after three or four years, was a common occurrence, afterwards intervals of ten years and more were as frequent. Exceptions, howeva, 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 no certain instance of the com. bination of two of the three ordinary curule (Liv. xxxix. 39, oflices (the consulate. praetorship, and curule aedileship), but instances occur of other combinations, such as of the curule aedileship and the Oflice of master of the horse (Liv. xxiii. 24, 3o) of the praetorship and censorship (Fast. Cap. a. 501); of the praetorship and the dictatorship (Liv. viii.