No More Learning

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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
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if
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a
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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
34o
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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can. it AND THE DECEMVIRATE
343
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
53::
344
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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345
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
346
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. The strict enforcement of the law of debt-so runs the story-excited the indignation of the farmers at large. When in the year 2 59 the levy was called forth for a dangerous war, the men
bound to serve refused to obey the command. Thereupon the consul Publius Servilius suspended for a time the appli cation of the debtor-laws, and gave orders to liberate the persons already imprisoned for debt as well as prohibited further arrests ; so that the farmers took their places in the ranks and helped to secure the victory. On their return from the field of battle the peace, which had been achieved by their exertions, brought back their prison and their
chains: with merciless rigour the second consul, Appius Claudius,enforced the debtor-laws and his colleague, to whom
Secession to the Sacred Mount.
510. 495. 494.
496.
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THE TRIBUNATE OF THE PLEBS 300K 1!
his former soldiers appealed for aid, dared not offer opposi tion. It seemed as if collegiate rule had been introduced not for the protection of the people, but to facilitate breach of faith and despotism; they endured, however, what could not be changed. But when in the following year the war was renewed, the word of the consul availed no longer. It was not till Manius Valerius was nominated dictator that the farmers submitted, partly from their awe of the higher magisterial authority, partly from their confidence in his friendly feeling to the popular cause-for the Valerii were one of those old patrician clans by whom government was esteemed a privilege and an honour, not a source of gain. The victory was again with the Roman standards ; but when the victors came home and the dictator submitted his proposals of reform to the senate, they were thwarted by its obstinate opposition. The army still stood in its array, as usual, before the gates of the city. When the news arrived, the long threatening storm burst forth; the esprit de car}s and the compact military organization carried even the timid and the indifferent along with the movement. The army abandoned its general and its encampment, and under the leadership of the commanders of the legions-the military tribunes, who were at least in great part plebeians marched in martial order into the district of Crustumeria between the Tiber and the Anio, where it occupied a hill and threatened to establish in this most fertile part of the Roman territory a new plebeian city. This secession showed in a palpable manner even to the most obstinate of the oppressors that such a civil war must end with economic ruin to themselves; and the senate gave way. The die tator negotiated an agreement; the citizens returned within
the city walls; unity was outwardly restored. The people gave Manius Valerius thenceforth the name of "the great ”
called the mount beyond the Anio “the sacred mount. ” There was something mighty and elevating
(maximus)—and
CRAP. H AND THE DECEMVIRATE
349
in such a revolution, undertaken by the multitude itself without definite guidance under generals whom accident
supplied, and accomplished without bloodshed; and with pleasure and pride the citizens recalled its memory. Its consequences were felt for many centuries: it was the origin of the tribunate of the plebs.
In addition to temporary enactments, particularly for new“ remedying the most urgent distress occasioned by debt, fauna‘ and for providing for a number of the rural population by plebeian the founding of various colonies, the dictator carried in “an” constitutional form a law, which he moreover—doubtless
in order to secure amnesty to the burgesses for the breach of their military oath—caused every individual member of the community to swear to, and then had it deposited in a temple under the charge and custody of two magistrates specially appointed from the plebs for the purpose, the two “ house-masters ” (aedz'les). This law placed by the side of the two patrician consuls two plebeian tribunes, who were to be elected by the plebeians assembled in curies. The power of the tribunes was of no avail in opposition to the military imperz'um, that in opposition to the authority of the dictator everywhere or to that of the consuls beyond the city; but confronted, on footing of independence
and equality, the ordinary civil powers which the consuls exercised. There was, however, no partition of powers. The tribunes obtained the right which pertained to the consul against his fellow-consul and all the more against an inferior magistrate (p. 318), namely, the right to cancel any com mand issued by magistrate, as to which the burgess whom affected held himself aggrieved and lodged complaint, through their protest timeously and personally interposed, and likewise of hindering or cancelling at discre tion any proposal made by magistrate to the burgesses, in other words, the right of intercession or the lo-called tribunician veto.
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The power of the tribunes, therefore, primarily involved the right of putting a stop to administration and to judicial action at their pleasure, of enabling a person bound to military service to withhold himself from the levy with
of preventing or cancelling the raising of an action and legal execution against the debtor, the initiation of a criminal process and the arrest of the accused while the investigation was pending, and other powers of the same sort. That this legal help might not be frustrated by the absence of the helpers, it was further ordained that the tribune should not spend a night out of the city, and that his door must stand open day and night. Moreover, it lay in the power of the tribunate of the people through a single word of a single tribune to restrain the adoption of a resolution by the community, which otherwise by virtue
of its sovereign right might have without ceremony recalled the privileges conferred by it on the plebs.
But these rights would have been ineffective, if there had not belonged to the tribune of the people an instan taneously operative and irresistible power of enforcing them against him who did not regard them, and especially
the magistrate contravening them. This was conferred in such a form that the acting in opposition to the tribune when making use of his right, above all things the laying hands on his person, which at the Sacred Mount every plebeian, man by man for himself and his descendants, had sworn to protect now and in all time to come from all harm, should be a capital crime; and the exercise of this criminal justice was committed not to the magistrates of the community but to those of the plebs. The tribune might in virtue of this his judicial oflice call to account
any burgess, especially the consul in ofiice, have him seized if he should not voluntarily submit, place him under arrest during investigation or allow him to find bail, and then sentence him to death or to a fine. For this
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THE TRIBUNATE OF THE PLEBS BOOK 1!
impunity,
against
can. it AND THE DECEMVIRATE
351
purpose the two plebeian aediles appointed at the same time were attached to the tribunes as their servants and assistants, primarily to effect arrest, on which account the same inviolable character was assured to them also by the collective oath of the plebeians. Moreover the aediles themselves had judicial powers like the tribunes, but only for the minor causes that might be settled by fines. If an appeal was lodged against the decision of tribune or aedile, it was addressed not to the whole body of the burgesses, with which the officials of the plebs were not entitled at all to transact business, but to the whole body of the plebeians, which in this case met by curies and finally decided by majority of votes.
This procedure certainly savoured of violence rather than of justice, especially when it was adopted against a non-plebeian, as must in fact have been ordinarily the case. It was not to be reconciled either with the letter or the spirit of the constitution that a patrician should be called to account by authorities who presided not over the body of burgesses, but over an association formed within and that he should be compelled to appeal, not to the burgesses, but to this very association. This was originally without question Lynch justice; but the self-help was doubtless carried into effect from early times in form of law, and was after the legal recognition of the tribunate of the plebs regarded as lawfully admissible.
In point of intention this new jurisdiction of the tribunes and the aediles, and the appellate decision of the plebeian assembly therein originating, were beyond doubt just as much bound to the laws as the jurisdiction of the consuls and quaestors and the judgment of the centuries on appeal the legal conceptions of crime against the community (p.
and of offences against order r92) were transferred from the community and its magistrates to the plebs and its champions. But these conceptions were themselves so
94)
(p.
r
;
it,
wish
little fixed, and their statutory definition was so difficult and indeed impossible, that the administration of justice under these categories from its very nature bore almost inevitably the stamp of arbitrariness. And now when the very idea of right had become obscured amidst the struggles of the orders, and when the legal party-leaders on both sides were furnished with a coordinate jurisdiction, this jurisdiction must have more and more approximated to a mere arbitrary police. It affected in particular the magistrate. Hitherto the latter according to Roman state law, so long as he was a magistrate, was amenable to no jurisdiction at all, and, although after demitting his oflice he might have been legally made responsible for each of his acts, the exercise of this right lay withal in the hands of the members of his own order and ultimately of the collective community, to which these likewise belonged. Now in the tribunician jurisdic tion there emerged a new power, which on the one hand might interfere against the supreme magistrate even during his tenure of oflice, and on the other hand was wielded against the noble burgesses exclusively by the non-noble, and which was the more oppressive that neither the crime nor its punishment was formally defined by law. In reality through the co-ordinate jurisdiction of the plebs and the community the estates, limbs, and lives of the burgesses were abandoned to the arbitrary pleasure of the party
assemblies
In civil jurisdiction the plebeian institutions interfered
only so far, that in the processes affecting freedom, which were so important for the plebs, the nomination of jury men was withdrawn from the consuls, and the decisions in such cases were pronounced by the “ten-men-judges” destined specially for that purpose (indicts, decemvirr', after wards decemw'ri litibus iudicandis).
With this co-ordinate jurisdiction there was associated a co-ordinate initiative in legislation. The right
35:
THE ‘TRIBUNATE OF THE PLEBS BOOK U
further
CHAr- II AND THE DECEMVIRATE
353
of assembling the members and of procuring decrees on their part already pertained to the tribunes, in so far as no association at all can be conceived without such a right.
But it was conferred upon them, in a marked way, by legally securing that the autonomous right of the plebs to assemble
and pass resolutions should not be interfered with on the
part of the magistrates of the community or, in fact, of the community itself. At all events it was the necessary pre liminary to the legal recognition of the plebs generally, that
the tribunes could not be hindered from having their succes
sors elected by the assembly of the plebs and from procuring
the confirmation of their criminal sentences by the same body; and this right accordingly was further specially guar anteed to them by the Icilian law (262), which threatened 493. with severe punishment any one who should interrupt the tribune while speaking, or should bid the assembly disperse.
It is evident that under such circumstances the tribune could not well be prevented from taking a vote on other
than the choice of his successor and the con firmation of his sentences. Such “resolves of the multi tude” (pleh’ sa'ta) were not indeed strictly valid decrees of the people; on the contrary, they were at first little more than are the resolutions of our modern public meetings ; but, as the distinction between the comitia of the people and the councils of the multitude was of a formal nature rather than aught else, the validity of these resolves as autonomous determinations of the community was at once claimed at least on the part of the plebeians, and the
Icilian law for instance was immediately carried in this way. Thus was the tribune of the people appointed as a shield and protection for the individual, and as leader and manager for all, provided with unlimited judicial power in criminal proceedings, that in this way he might give emphasis to his command, and lastly even pronounced to be in his person inviolable (sacrosanctus), inasmuch as
proposals
VOL. 1
23
Relation of
whoever laid hands upon him or his servant was not merely regarded as incurring the vengeance of the gods, but was also among men accounted as after legally proven crime,
deserving of death.
The tribunes of the multitude (m'bum'plebzlt) arose out
354
THE TRIBUNATE OF THE PLEBS BOOK rr
the tribune of the military tribunes and derived from them their name; to the
consul. but constitutionally they had no further relation to them. On the contrary, in respect of powers the tribunes of the plebs stood on level with the consuls. The appeal from the consul to the tribune, and the tribune’s right of inter cession in opposition to the consul, were, as has been already said, precisely of the same nature with the appeal from consul to consul and the intercession of the one consul in opposition to the other; and both cases were simply applications of the general principle of law that, where two equal authorities differ, the veto prevails over the command. Moreover the original number (which indeed was soon augmented), and the annual duration of the magistracy, which in the case of the tribunes changed its occupants on the roth of December, were common to the tribunes and the consuls. They shared also the peculiar collegiate arrangement, which placed the full powers of the oflice in the hands of each individual consul and of each individual tribune, and, when collisions occurred within the college, did not count the votes, but gave the
Nay precedence over the Yea; for which reason, when tribune forbade, the veto of the individual was suflicient notwithstanding the opposition of his colleagues, while on the other hand, when he brought an accusation, he could be thwarted by any one of those colleagues. Both consuls and tribunes had full and co-ordinate criminal jurisdiction, although the former exercised indirectly, and the latter directly as the two quaestors were attached to the former, the two aediles were associated with the latter. 1 The
That the plebeian aediles were formed after the model of the patrician
1
;
it
if,
a
a
CHAP- It AND THE DECEMVIRATE
355
consuls were necessarily patricians, the tribunes necessarily plebeians. The former had the ampler power, the latter the more unlimited, for the consul submitted to the pro hibition and the judgment of the tribunes, but the tribune did not submit himself to the consul Thus the tribunician power was a copy of the consular; but it was none the less a contrast to The power of the consuls was essentially positive, that of the tribunes essentially negative. The consuls alone were magistrates of the Roman people, not the tribunes; for the former were elected by the whole burgesses, the latter only by the plebeian association. In token of this the consul appeared in public with the apparel and retinue pertaining to state-officials the tribunes sat on
stool instead of the “chariot seat,” and lacked the oflicial attendants, the purple border, and generally all the insignia of magistracy: even in the senate the tribune had neither presidency nor so much as seat. Thus in this remarkable institution absolute prohibition was in the most stern and abrupt fashion opposed to absolute command; the quarrel was settled by legally recognizing and regulating the dis cord between rich and poor.
But what was gained measure which broke up the Political
value
of the
quaestors in the same way as the plebeian tribunes after the model of the patrician consuls, evident both as regards their criminal functions (in which the distinction between the two magistracies seems to have lain in
their tendencies only, not in their powers) and as regards their charge of
the archives. The temple of Ceres was to the aediles what the temple of Saturn was to the quaestors, and from the former they derived their name. Significant in this respect the enactment of the law of 305 (Liv. iii. 55l. 449. that the decrees of the senate should be delivered over to the aediles there
(p. 369), whereas, as well known, according to the ancient-and sub sequently after the settlement of the struggles between the orders, again preponderant-practice those decrees were committed to the quaestors for preservation in the temple of Saturn.
unity of the state which subjected the magistrates to con
trolling authority unsteady in its action and dependent on tribunate. all the passions of the moment; which in the hour of peril
might have brought the administration to deadlock at the
bidding of any one of the opposition chiefs elevated to the
is
is is
it.
a
;
a
by a
a
a
;
356
THE TRIBUNATE OF THE PLEBS 800K I!
rival throne ; and which, by investing all the magistrates with co-ordinate jurisdiction in the administration of criminal law, as it were formally transferred that administration from the domain of law to that of politics and corrupted it for all time coming? It is true indeed that the tribunate, if it did not directly contribute to the political equalization of the orders, served as a powerful weapon in the hands of the plebeians when these soon afterwards desired admission to the offices of state. But this was not the real design of the tribunate.
It was a concession wrung not from the politically privileged order, but from the rich landlords and capitalists; it was designed to ensure to the commons equit able administration of law, and to promote a more judicious administration of finance. This design it did not, and could not, fulfil. The tribune might put a stop to particular iniquities, to individual instances of crying hardship; but the fault lay not in the unfair working of a righteous law, but in a law which was itself unrighteous, and how could the tribune regularly obstruct the ordinary course of justice i’ Could he have done so, it would have served little to remedy the evil, unless the sources of impoverishment were stopped—the perverse taxation, the wretched system of credit, and the pernicious occupation of the domain-lands. But such measures were not attempted, evidently because the wealthy plebeians themselves had no less interest in these abuses than the patricians. So this singular magistracy was instituted, which presented to the commons an obvious and available aid, and yet could not possibly carry out the necessary economic reform. It was no proof of political wisdom, but a wretched compromise between
the wealthy aristocracy and the leaderless multitude. It has been aflirmed that the tribunate of the people preserved Rome from tyranny. Were it true, it would be of little moment: a change in the form of the state is not in itself an evil for a people; on the contrary, it was a misfortune
can. rr AND THE DECEMVIRATE
357
for the Romans that monarchy was introduced too late, after the physical and mental energies of the nation were exhausted. But the assertion is not even correct; as is shown by the circumstance that the Italian states remained as regularly free from tyrants as the Hellenic states re gularly witnessed their emergence. The reason lies simply in the fact that tyranny is everywhere the result of universal suffrage, and that the Italians excluded the burgesses who had no land from their public assemblies longer than the Greeks did: when Rome departed from this course, monarchy did not fail to emerge, and was in fact associated with this very tribunician oflice. That the tribunate had its use, in pointing out legitimate paths of opposition and
averting many a wrong, no one will fail to acknowledge; but it is equally evident that, where it did prove useful, it was employed for very different objects from those for which it had been established. The bold experiment of allowing the leaders of the opposition a constitutional veto, and of investing them with power to assert it regardless of the con sequences, proved to be an expedient by which the state was politically unhinged ; and social evils were prolonged by the application of useless palliatives.
Now that civil war was organized, it pursued its course. Further The parties stood face to face as if drawn up for battle, dissensions. each under its leaders. Restriction of the consular and
extension of the tribunician power were the objects con
tended for on the one side ; the annihilation of the tribunate
was sought on the other. Legal impunity secured for in subordination, refusal to enter the ranks for the defence of
the land, impeachments involving fines and penalties
directed specially against magistrates who had violated the
rights of the commons or who had simply provoked their displeasure, were the weapons of the plebeians ; and to these
the patricians opposed violence, concert with the public
foes, and occasionally also the dagger of the assassin.
Canola-nus.
Hand-to-hand conflicts took place in the streets, and on both sides the sacredness of the magistrate’s person was violated. Many families of burgesses are said to have migrated, and to have sought more peaceful abodes in neighbouring communities; and we may well believe it. The strong patriotism of the people is obvious from the fact, not that they adopted this constitution, but that they endured and that the community, notwithstanding the most vehement convulsions, still held together.
The best-known incident in these conflicts of the orders the history of Gnaeus Marcius, brave aristocrat, who
derived his surname from the storming of Corioli. In
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THE TRIBUNATE OF THE PLEBS BOOK 11
dignant at the refusal of the centuries to entrust to him the ‘91. consulate in the year 263, he reported to have proposed,
according to one version, the suspension of the sales of corn from the state-stores, till the hungry people should give up the tribunate according to another version, the direct abolition of the tribunate itself. Impeached the tribunes so that his life was in peril, said that he left the city, but only to return at the head of Volscian army; that when he was on the point of conquering the city of his fathers for the public foe, the earnest appeal of his mother touched his conscience and that thus he expiated his first treason second, and both death. How much of this
true cannot be determined; but the story, over which the naive misrepresentations of the Roman annalists have shed patriotic glory, affords glimpse of the deep moral and
political disgrace of these conflicts between the orders. Of similar stamp was the surprise of the Capitol by a band of political refugees, led Sabine chief, Appius Herdonius, ‘60. in the year 294; they summoned the slaves to arms, and was only after violent conflict, and the aid of the
Tusculans who hastened to render help, that the Roman burgess-force overcame the Catilinarian band. The same character of fanatical exasperation marks other events of this
it a a is
is
a
;
by
a a
;
by
by a
it,
by
is aa
it is
by
CHAP- ll AND THE DECEMVIRATE
359
epoch, the historical significance of which can no longer be apprehended in the lying family narratives ; such as the pre dominance of the Fabian clan which furnished one of the
two consuls from 269 to 2 75, and the reaction against the 485-479. emigration of the Fabii from Rome, and their annihilation
by the Etruscans on the Cremera (277). Still more odious 477. was the murder of the tribune of the people, Gnaeus Genucius, who had ventured to call two consulars to account, and who on the morning of the day fixed for the impeachment was found dead in bed (281). The imme 473. diate effect of this misdeed was the Publilian law (28 one 471. of the most momentous in its consequences with which Roman history has to deal. Two of the most important arrangements—the introduction of the plebeian assembly
of tribes, and the placing of the plebisa'tum on level, although conditionally, with the formal law sanctioned the whole community—are to be referred, the former certainly,
the latter probably, to the proposal of Volero Publilius the tribune of the people in 28 The plebs had hitherto 471. adopted its resolutions curies; accordingly in these its separate assemblies, on the one hand, the voting had been
by mere number without distinction of wealth or of freehold property, and, on the other hand, in consequence of that standing side by side on the part of the clansmen, which was implied in the very nature of the curial assembly, the clients
of the great patrician families had voted with one another
in the assembly of the plebeians. These two circum stances had given to the nobility various opportunities of exercising influence on that assembly, and especially of managing the election of tribunes according to their views
and both were henceforth done away means of the new method of voting according to tribes. Of these, four had been formed under the Servian constitution for the purposes
of the levy, embracing town and country alike 117); subsequently-perhaps in the year 259-the Roman 495.
(p.
;
a by
3),
it,
by
by 3.
360
THE TRIBUNATE OF THE PLEBS BOOK n
territory had been divided into twenty districts, of which the first four embraced the city and its immediate environs, while the other sixteen were formed out of the rural territory on the basis of the clan-cantons of the earliest Roman domain 45). To these was added—probably only in consequence of the Publilian law, and with a view to bring about the inequality, which was desirable for voting purposes, in the total number of the divisions-as a twenty-first tribe the Crustuminian, which derived its name from the place where the plebs had constituted itself as such and had established the tribunate 348) and thenceforth the special assemblies of the plebs took place, no longer by curies, but tribes. In these divisions, which were based throughout on the possession of land, the voters were exclusively freeholders: but they voted without distinction as to the size of their possession, and just as they dwelt together in villages and hamlets. Consequently, this assembly of the tribes, which otherwise was externally modelled on that of the curies, was reality an assembly of the independent middle class, from which, on the one hand, the great majority of freedmen and clients were excluded as not being freeholders, and in which, on the other hand, the larger landholders had no such preponderance as in the cen turies. This “meeting of the multitude ” (tom'lium plebis) was even less general assembly of the burgesses than the plebeian assembly by curies had been, for not only, like the latter, excluded all the patricians, but also the plebeians who
had no land but the multitude was powerful enough to carry the point that its decree should have equal legal validity with that adopted by the centuries, in the event of its having been previously approved by the whole senate. That this last regulation had the force of established law before the issuing of the Twelve Tables, certain; whether was directly
introduced on occasion of the Publilian plebim'mm, or whether had already been called into existence by some
it
is
it
;
a
by
it
in
(p. ;
can. ti AND THE DECEMVIRATE
361
other-now forgotten -—statute, and was only applied to the
Publilian plebzkdlum, cannot be
In like manner it remains uncertain whether the number of tribunes was raised by this law from two to four, or whether that increase had taken place previously.
More sagacious in plan than all these party steps was the attempt of Spurius Cassius to break down the financial omni potence of the rich, and so to put a stop to the true source of the evil. He was a patrician, and none in his order sur passed him in rank and renown. After two triumphs, in his third consulate (268), he submitted to the burgesses a pro posal to have the public domain measured and to lease part of it for the benefit of the public treasury, while a further portion was to be distributed among the necessitous. In other words, he attempted to wrest the control of the public lands from the senate, and, with the support of the burgesses, to put an end to the selfish system of occupation. He prob‘ ably imagined that his personal distinction, and the equity and wisdom of the measure, might carry it even amidst that stormy sea of passion and of weakness. But he was mistaken. The nobles rose as one man ; the rich plebeians took part with them ; the commons were displeased because Spurius Cassius desired, in accordance with federal rights and equity, to give to the Latin confederates their share in the assignation. Cassius had to die. There is some truth in the charge that he had usurped regal power, for he had indeed endeavoured like the kings to protect the free
commons against his own order. His law was buried along with him ; but its spectre thenceforward incessantly haunted the eyes of the rich, and again and again it rose from the
. omb against them, until amidst the conflicts to which it led the commonwealth perished.
A further attempt was made to get rid of the tribunician power by securing to the plebeians equality of rights in a more regular and more effectual way. The tribune of the
any longer ascertained.
Agrarian law of Spurius Cassius.
486.
Decemvln.
362
THE TRIBUNATE OF THE PLEBS BOOK 11
462. people, Gaius Terentilius Arsa, proposed in 292 the nomination of a commission of five men to prepare a general code of law by which the consuls should in future be bound in exercising their judicial powers. But the senate refused to sanction this proposal, and ten years elapsed ere it was carried into effect—years of vehement strife between the orders, and variously agitated moreover by wars and internal troubles. With equal obstinacy the party of the nobles hindered the concession of the law in the senate, and the
plebs nominated again and again the same men as tribunes.
Attempts were made to obviate the attack by other 457. concessions. In the year 297 an increase of the tribunes from four to ten was sanctioned-a very dubious gain ; and in the following year, by an Icilian plebim'tum which was
admitted among the sworn privileges of the plebs, the Aventine, which had hitherto been a temple-grove and uninhabited, was distributed among the poorer burgesses as sites for buildings in heritable occupancy. . The plebs took what was offered to them, but never ceased to insist in their
454. demand for a legal code. At length, in the year 300, a compromise was effected ; the senate in substance gave way. The preparation of a legal code was resolved upon ; for that purpose, as an extraordinary measure, the centuries were to choose ten men who were at the same time to act as supreme
in room of the consuls (decemm'n' comulari imperio legz'bus sarz'bundis), and to this oflice not merely patricians, but plebeians also might be elected. These were here for the first time designated as eligible, though only for an extraordinary oflice. This was a great step in the progress towards full political equality; and it was not too dearly purchased, when the tribunate of the people as well as the right of appeal were suspended while the decemvirate lasted, and the decemvirs were simply bound not to infringe the sworn liberties of the community. Previously however an
embassy was sent to Greece to bring home the laws of Solon
magistrates
CHAP- 11 AND THE DECEMVIRATE
_ 363
and other Greek laws ; and it was only on its return that the decemvirs were chosen for the year 303. Although they 451 were at liberty to elect plebeians, the choice fell on patricians alone-so powerful was the nobility still—and it was only when a second election became necessary for 304, that some 450. plebeians were chosen—the first non-patrician magistrates
'
scarcely attribute to them any other design than that of substituting for tribunician intercession a limitation of the consular powers by written law. On both sides there must have been a conviction that things could not remain as they were, and the perpetuation of anarchy, while it ruined the commonwealth, was in reality of no benefit to any one.
People in earnest could not but discern that the inter ference of the tribunes in administration and their action as prosecutors had an absolutely pernicious effect ; and the only real gain which the tribunate brought to the plebeians was the protection which it afforded against a partial administration of justice, by operating as a sort of court of cassation to check the caprice of the magistrate. Beyond doubt, when the plebeians desired a written code, the patricians replied that in that event the legal protection of tribunes would be superfluous ; and upon this there appears to have been concession by both sides. Perhaps there was
never anything definitely expressed as to what was to be done after the drawing up of the code; but that the plebs definitely renounced the tribunate is not to be doubted, since it was brought by the decemvirate into such a position that it could not get back the tribunate otherwise than by illegal means. The promise given to the plebs that its sworn liberties should not be touched, may be referred to the rights of the plebeians independent of the tribunate, such as the provomtzb and the possession of the Aventine. The intention seems to have been that the decemvirs should,
that the Roman community had.
Taking a connected view of these measures, we can
tion of the Twelve Table.
on their retiring, propose to the people to re-elect the consuls who should now judge no longer according to their arbitrary pleasure but according to written law.
The plan, if it should stand, was a wise one; all de pended on whether men's minds exasperated on either side with passion would accept that peaceful adjustment.
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THE TRIBUNATE OF THE PLEBS BOOK u
451. The decemvirs of the year 303 submitted their law to the people, and it was confirmed by them, engraven on ten tables of copper, and aflixed in the Forum to the rostra in front of the senate-house. But as a supplement appeared
450. necessary, decemvirs were again nominated in the year 304, who added two more tables. Thus originated the first and only Roman code, the law of the Twelve Tables. It pro ceeded from a compromise between parties, and for that very reason could not well have contained any changes in the existing law of a comprehensive nature, going beyond the regulation of secondary matters and of the mere adaptation of means and ends. Even in the system of credit no further alleviation was introduced than the establishment of a—probably low—maximum of interest (to per cent) and the threatening of heavy penalties against the usurer-penalties, characteristically enough, far heavier than those of the thief; the harsh procedure in actions of debt remained at least in its leading features unaltered. Still less, as may easily be conceived, were changes contemplated in the rights of the orders. On the
contrary the legal distinction between burgesses liable to be taxed and those who were without estate, and the invalidity of marriage between patricians and plebeians, were con firmed anew in the law of the city. In like manner, with a. view to restrict the caprice of the magistrate and to pro tect the burgess, it was expressly enacted that the later law should uniformly have precedence over the earlier, and that no decree of the people should be issued against a single burgess. The most remarkable feature was the exclusion
.
CHAP- ll AND THE DECEMVIRATE
365
of appeal to the comitia tributa in capital causes, while the privilege of appeal to the centuries was guaranteed; which admits of explanation from the circumstance that the penal jurisdiction was in fact usurped by the plebs and its presidents 350), and with the tribunate there necessarily fell the tribunician capital process, while it was perhaps the intention to retain the aedilician process of fine (multa). The essential political significance of the measure resided far less in the contents of the legislation than in the formal obligation now laid upon the consuls to-administer justice according to these forms of process and these rules of law, and in the public exhibition of the code, by which the administration of justice was subjected to the control of publicity and the consul was compelled to dispense equal and truly common justice to all.
The end of the decemvirate is involved in much
It only remained—so runs the story—for the decemvirs to publish the last two tables, and then to give place to the ordinary magistracy. But they delayed to do so: under the pretext that the laws were not yet ready, they themselves prolonged their magistracy after the expiry of their ofi‘icial year-which was so far possible, as under Roman constitutional law the magistracy called in an extra ordinary way to the revision of the constitution could not become legally bound by the term set for its ending. The moderate section of the aristocracy, with the Valerii and Horatii at their head, are said to have attempted in the senate to compel the abdication of the decemvirate; but the head of the decemvirs Appius Claudius, originally a rigid aristocrat, but now changing into a demagogue and a tyrant, gained the ascendancy in the senate, and the people submitted. The levy of two armies was accomplished without opposition, and war was begun against the Volscians as well as against the Sabines. Thereupon the former tribune of the people, Lucius Siccius Dentatus, the bravest
Fall of the decemvirs.
obscurity.
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THE TRIBUNATF. OF THE PLEBS BOOK 11
man in Rome, who had fought in a hundred and twenty battles and had forty-five honourable scars to show, was found dead in front ofthe camp, foully murdered, as it was said, at the instigation of the decemvirs. A revolution was fermenting in men’s minds ; and its outbreak was hastened by the unjust sentence pronounced by Appius in the process as to the freedom of the daughter of the centurion Lucius Verginius, the bride of the former tribune of the people Lucius Icilius-a sentence which wrested the maiden from her relatives with a view to make her non-free and beyond the pale of the law, and induced her father himself to plunge his knife into the heart of his daughter in the
open Forum, to rescue her from certain shame. While the people in amazement at the unprecedented deed surrounded the dead body of the fair maiden, the decernvir commanded his lictors to bring the father and then the bridegroom before his tribunal, in order to render to him, from whose decision there lay no appeal, immediate account for their rebellion against his authority. The cup was now full. Protected by the furious multitude, the father and the bride groom of the maiden made their escape from the lictors of the despot, and while the senate trembled and wavered in
Rome, the pair presented themselves, with numerous witnesses of the fearful deed, in the two camps. The unparalleled tale was told ; the eyes of all were opened to the gap which the absence of tribunician protection had made in the security of law; and what the fathers had done their sons repeated. Once more the armies abandoned their leaders: they marched in warlike order through the city, and proceeded once more to the Sacred Mount, where they again nominated their own tribunes. Still the de cemvirs refused to lay down their power; then the army with its tribunes appeared in the city, and encamped on the Aventine. Now at length, when civil war was imminent
and the conflict in the streets might hourly begin, the
CRAP. I! AND THE DECEMVIRATE
367
decemvirs renounced their usurped and dishonoured power; and the consuls Lucius Valerius and Marcus Horatius negotiated a second compromise, by which the tribunate of the plebs was again established. The impeachment of the decemvirs terminated in the two most guilty, Appius Claudius and Spurius Oppius, committing suicide in prison, while the other eight went into exile and the state con fiscated their property. The prudent and moderate tribune of the plebs, Marcus Duilius, prevented further judicial
'prosecutions by a seasonable use of his veto.
So runs the story as recorded by the pen of the Roman
aristocrats ; but, even leaving out of view the accessory cir cumstances, the great crisis out of which the Twelve Tables arose cannot possibly have ended in such romantic adven tures, and in political issues so incomprehensible. The decemvirate was, after the abolition of the monarchy and the institution of the tribunate of the people, the third great victory of the plebs ; and the exasperation of the opposite party against the institution and against its head Appius Claudius is sufi-iciently intelligible. The plebeians had through its means secured the right of eligibility to the highest magistracy of the community and a general code of law; and it was not they that had reason to rebel against the new magistracy, and to restore the purely patrician consular government by force of arms. This end can only have been pursued by the party of the nobility, and if the patricio-plebeian decemvirs made the attempt to maintain themselves in oflice beyond their time, the nobility were certainly the first to enter the lists against them ; on which occasion doubtless the nobles would not neglect to urge that the stipulated rights of the plebs should be curtailed and the tribunate, in particular, should be taken from it. If the nobility thereupon succeeded in setting aside the decemvirs, it is certainly conceivable that after their fall the plebs should once more assemble in arms with a view to secure
Valerio
Horatian laws.
conflict.
The compromise, as was natural, proved very favourable
to the plebeians, and again imposed severely felt restrictions on the power of the nobility. As a matter of course the tribunate of the people was restored, the code of law wrung from the aristocracy was definitively retained, and ‘the consuls were obliged to judge according to Through -the code indeed the tribes lost their usurped jurisdiction in! 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
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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.
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it
;
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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.