No More Learning

Hitherto in criminal processes as well as in fines and cor poral punishments it had been the province of the king not only to investigate and decide the cause, but also to decide whether the person found guilty should or should not be allowed to appeal for pardon. The Valerian law now (in
310
CHANGE OF THE CONSTITUTION BOOK r!
I509. 245) enacted that the consul must allow the appeal of the condemned, where sentence of capital or corporal punish ment had been pronounced otherwise than by martial law —a regulation which by a later law (of uncertain date, but
‘51. passed before 303) was extended to heavy fines. In token of this right of appeal, when the consul appeared in the capacity of judge and not of general, the consular lictors laid aside the axes which they had previously carried by virtue of the penal jurisdiction belonging to their master. The law however threatened the magistrate, who did not allow due course to the prowcatio, with no other penalty than infamy-which, as matters then stood, was essentially nothing but a moral stain, and at the utmost only had the effect of disqualifying the infamous person from giving testimony. Here too the course followed was based on the same view, that it was in law impossible to diminish the old regal powers, and that the checks imposed upon the holder of the supreme authority in consequence of the revolution had, strictly viewed, only a practical and moral value. When therefore the consul acted within the old regal jurisdiction, he might in so acting perpetrate an injustice, but he committed no crime and consequently was not amenable for what he did to the penal judge.
A limitation similar in its tendency took place in the civil jurisdiction; for probably there was taken from the consuls at the very outset the right of deciding at their discretion a legal dispute between private persons.
The remodelling of the criminal as of civil procedure stood
CRAP. I CHANGE OF THE CONSTITUTION
321
in connection with a general arrangement respecting the Restric
tions on
the delega
83),
transference of magisterial power to deputies or successors.
While the king had been absolutely at liberty to nominate tion of deputies but had never been compelled to do so, the powers. consuls exercised the right of delegating power in an essentially different way. No doubt the rule that, if the supreme magistrate left the city, he had to appoint a warden there for the administration of justice
remained in force also for the consuls, and the collegiate arrangement was not even extended to such delegation;
on the contrary this appointment was laid on the consul
who was the last to leave the city. But the right of dele<
gation for the time when the consuls remained in the city
was probably restricted, upon the very introduction of this
office, by providing that delegation should be prescribed to
the consul for definite cases, but should be prohibited for
all cases in which was not so prescribed. According to
this principle, as we have said, the whole judicial system
was organized. The consul could certainly exercise criminal jurisdiction also as to capital process in the way of submitting his sentence to the community and having thereupon confirmed or rejected; but he never, so far
as we see, exercised this right, perhaps was soon not
allowed to exercise and possibly pronounced criminal judgment only in the case of appeal to the community being for any reason excluded. Direct conflict between the supreme magistrate of the community and the community itself was avoided, and the criminal procedure was organized really such way, that the supreme magistracy remained only in theory competent, but always acted through deputies who were necessary though appointed by himself. Thesewere thetwo-not standing—pronouncers-of-judgment for revolt and high treason (dam/irz’ perduelliom's) and the two standing trackers of murder, the quaestores pam'a'dz'i. Something similar may perhaps have occurred in the regal
VOL. 2!
I
in a
it,
it
a
it
a
(p.
32a
CHANGE OF THE CONSTITUTION 300K 1
period, where the king had himself represented in such processes 19! ); but the standing character of the latter institution, and the collegiate principle carried out in both, belong at any rate to the republic. The latter arrangement became of great importance also, in so far that thereby for the first time alongside of the two standing supreme magistrates were placed two assistants, whom each supreme magistrate nominated at his entrance on oflice, and who in due course also went out with him on his leaving it—whose position thus, like the supreme magistracy itself, was organized accord ing to the principles of a standing oflice, of a collegiate form, and of an annual tenure. This was not indeed as yet the inferior magistracy itself, at least not in the sense which the republic associated with the magisterial position, inas much as the commissioners did not emanate from the choice of the community; but it doubtless became the starting point for the institution of subordinate magistrates, which was afterwards developed in so manifold ways.
In a similar way the decision in civil procedure was withdrawn from the supreme magistracy, inasmuch as the right of the king to transfer an individual process for decision to a deputy was converted into the duty of the consul, after settling the legitimate title of the party and the object of the suit, to refer the disposal of it to a private man to be selected by him and furnished by him with instruc tions.
In like manner there was left to the consuls the im portant administration of the state-treasure and of the state-archives ; nevertheless probably at once, or at least very early, there were associated with them standing assistants in that duty, namely, those quaestors who, doubtless, had in exercising this function absolutely to obey them, but without whose previous knowledge and co-operation the consuls could not act.
Where on the other hand such directions were not in
CHAP. 1 CHANGE OF THE CONSTITUTION
323
existence, the president of the community in the capital had personally to intervene ; as indeed, for example, at the introductory steps of a process he could not under any circumstances let himself be represented by deputy.
This double restriction of the consular right of delegation subsisted for the government of the city, and primarily for the administration of justice and of the state-chest. As com mander-in-chief, on the other hand, the consul retained the right of handing over all or any of the duties devolving on him. This diversity in the treatment of civil and military delegation explains why in the government of the Roman community proper no delegated magisterial authority (pro magistratu) was possible, nor were purely urban magistrates ever represented by non-magistrates ; and why, on the other hand, military deputies (pro amsule, pro fraeture, pro quaestvre) were excluded from all action within the com munity proper.
The right of nominating asuccessor had not been possessed
NOIBIDIP by the king, but only by the interrex (p. 99). The consul tion of
successor was in this respect placed on a like footing with the latter ;
nevertheless, in the event of his not having exercised the power, the interrex stepped in as before, and the necessary continuity of the oflice subsisted still undiminished under the republican government. The right of nomination, how ever, was materially restricted in favour of the burgesses, as the consul was bound to procure the assent of the burgesses for the successors designated by him, and, in the sequel, to nominate only those whom the community
designated to him. Through this binding right of proposal the nomination of the ordinary supreme magistrates doubt less in a certain sense passed substantially into the hands of the community ; practically, however, there still existed a very considerable distinction between that right of proposal and the right of formal nomination. The consul conducting the election was by no means a mere returning oflicer ; he
Change in the nomi nation of priests.
324
CHANGE OF THE CONSTITUTION BOOK n
could still, ag. by virtue of his old royal prerogative reject particular candidates and disregard the votes tendered for them ; at first he might even limit the choice to a list of candidates proposed by himself; and-what was of still more consequence-when the collegiate consnlship was to be supplemented by the dictator, of whom we shall speak
in so supplementing it the community was not consulted, but on the contrary the consul in that case appointed his colleague with'the same freedom, wherewith the interrex had once appointed the king.
The nomination of the priests, which had been a pre rogative of the kings (p. 81), was not transferred to the consuls ; but the colleges of priests filled up the vacancies in their own ranks, while the Vestals and single priests were nominated by the pontifical college, on which devolved also the exercise of the paternal jurisdiction, so to speak, of the community over the priestesses of Vesta. With a view to the performance of these acts, which could only be properly performed by a single individual, the college probably about this period first nominated a president, the Pontzfix maximur. This separation of the supreme authority in things sacred from the civil power-while . the already mentioned “king for sacrifice” had neither the civil nor the sacred powers of the king, but simply the title, conferred upon him-and the semi-magisterial position of the new high priest, so decidedly contrasting with the character which otherwise marked the priesthood in Rome, form one of the most significant and important peculiarities of this state-revolution, the aim of which was to impose limits on the powers of the magistrates mainly in the interest of the aristocracy.
We have already mentioned that the outward state of the consul was far inferior to that of the regal oflice hedged round as it was with reverence and terror, that the regal name and the priestly consecration were with
immediately,
can. i CHANGE OF THE CONSTITUTION
325
held from him, and that the axe was taken away from his attendants. We have to add that, instead of the purple robe which the king had worn, the consul was distinguished from the ordinary burgess simply by the purple border of his toga, and that, while the king perhaps regularly appeared in public in his chariot, the consul was bound to accommodate himself to the general rule and like every other burgess to go within the city on foot.
These limitations, however, of the plenary power and of the insignia of the magistracy applied in the main only to the ordinary presidency of the community. In extra ordinary cases, alongside of, and in a certain sense instead of, the two presidents chosen by the community there emerged a single one, the master of the army (magister
populr') usually designated as the dz'dator. In the choice of dictator the community exercised no influence at all, but it proceeded solely from the free resolve of one of the consuls for the time being, whose action neither his colleague nor any other authority could hinder. There was no appeal from his sentence any more than from that of the king, unless he chose to allow it. As soon as he ‘was nominated, all the other magistrates were right subject to his authority. On the other hand the duration of the dictator’s oflice was limited in two ways: first, as the oflicial colleague of those consuls, one of whom had nominated him, he might not remain in oflice beyond their legal term ; and secondly, a period of six months was fixed as the absolute maximum for the dura tion of his office. It was a further arrangement peculiar to the dictatorship, that the “master of the army " was bound to nominate for himself immediately a “master of horse” (magr'sler equitum), who acted along with him as a dependent assistant somewhat as did the quaestor along with the consul, and with him retired from ofiice-an arrangement undoubtedly connected with the fact that the
dictator
by
Cmturles and curies.
326
CHANGE OF THE CONSTITUTION BOOK n
dictator, presumably as being the leader of the infantry, was constitutionally prohibited from mounting on horseback. In the light of these regulations the dictatorship is doubtless to be conceived as an institution which arose at the same time with the consulship, and which was designed, especially in the event of war, to obviate for a time the disadvantages of divided power and to revive temporarily the regal authority; for in war more particularly the equality of rights in the consuls could not but appear fraught with danger; and not only positive testimonies, but above all the oldest names given to the magistrate himself and his assistant, as well as the limitation of the oflice to the dura tion of a summer campaign, and the exclusion of the
provocatio, attest the pre-eminently military design of the original dictatorship.
On the whole, therefore, the consuls continued to be, as the kings had been, the supreme administrators, judges, and generals ; and even in a religious point of view it was not the rex sacrorum (who was only nominated that the name might be preserved), but the consul, who offered prayers and sacrifices for the community, and in its name ascertained the will of the gods with the aid of those skilled in sacred lore. Against cases of emergency, more over, a power was retained of reviving at any moment, without previous consultation of the community, the full and unlimited regal authority, so as to set aside the limita tions imposed by the collegiate arrangement and by the special curtailments of jurisdiction. In this way the
of legally retaining and practically restricting the regal authority was solved in genuine Roman fashion with equal acuteness and simplicity by the nameless statesmen who worked out this revolution.
The community thus acquired by the change of con stitution rights of the greatest importance: the right of annually designating its presidents, and that of deciding
problem
CHAP. l CHANGE OF THE CONSTITUTION
327
in the last instance regarding the life or death of the burgess. But the body which acquired these rights could not possibly be the community as it had been hitherto constituted—the patriciate which had practically become an order of nobility. The strength of the nation lay in the “multitude” (plcbs), which already comprehended in large numbers people of note and of wealth. The exclusion of this multitude from the public assembly, although it bore part of the public burdens, might be tolerated as long as that public assembly itself had no very material share in the working of the state machine, and as long as the royal power by the very fact of its high and free position re mained almost equally formidable to the burgesses and to the metoea' and thereby maintained equality of legal redress in the nation. But when the community itself was called regularly to elect and to decide, and the president was practically reduced from its master to its commissioner for a set term, this relation could no longer be maintained as it stood ; least of all when the state had to be remodelled on the morrow of a revolution, which could only have been carried out by the co-operation of the patricians and the metoml An extension of that community was inevitable; and it was accomplished in the most comprehensive manner, inasmuch as the collective plebeiate, that all the non burgesses who were neither slaves nor citizens of extraneous communities living at Rome under the {us imyfiz'tiz', were admitted into the burgess-body. The curiate assembly of the old burgesses, which hitherto had been legally and practically the first authority in the state, was almost totally deprived of its constitutional prerogatives. It was to retain its previous powers only in acts purely formal or in those which affected clan-relations-such as the vow of allegiance to be taken to the consul or to the dictator when they entered on oflice just as previously to the king (p. 81), and the legal dispensations requisite for an arrogat'ia or testa
a
is,
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CHANGE OF THE CONSTITUTION BOOK n
ment-but it was not in future to perform any act of a properly political character. Soon even the plebeians were admitted to the right of voting also in the curies, and by that step the old burgess-body lost the right of meeting and of resolving at all. The curial organization was virtually rooted out, in so far as it was based on the clan-organization and this latter was to be found in its purity exclusively among the old burgesses. When the plebeians were admitted into the curies, they were certainly also allowed to constitute themselves de jure as—what in the earlier period they could only have been de faclo r toy-families and clans; but it is distinctly recorded by tradition and in itself also very conceivable, that only a portion of the plebeians proceeded so far as to constitute gentes, and thus the new curiate assembly, in opposition to its original character, included numerous members who belonged to no clan.
All the political prerogatives of the public assembly-as well the decision on appeals in criminal causes, which in deed were essentially political processes, as the nomination of magistrates and the adoption or rejection of laws- were transferred to, or were now acquired by, the assembled levy of those bound to military service; so that the centuries now received the rights, as they had previously borne the burdens, of citizens. In this way the small initial movements made by the Servian constitution- such as, in particular, the handing over to the army the right of assenting to the declaration of an aggressive war
such a development that the curies were completely and for ever cast into the shade by the
assembly of the centuries, and people became accustomed to regard the latter as the sovereign people. In this assembly debate took place merely when the presiding magistrate chose himself to speak or bade others do so; of course in cases of appeal both parties had to be heard. A simple majority of the centuries was decisive.
(p.
r2t)-attained
CHAP. 1 CHANGE OF THE CONSTITUTION
339
As in the curiate assembly those who were entitled to vote at all were on a footing of entire equality, and therefore after the admission of all the plebeians into the curies the
result would have been a complete democracy, it may be easily conceived that the decision of political questions continued to be withheld from the curies ; the centuriate assembly placed the preponderating influence, not in the hands of the nobles certainly, but in those of the possessors of property, and the important privilege of priority in voting, which often practically decided the election, placed it in the hands of the equites or, in other words, of the rich.
The senate was not affected by the reform of the consti Senate. tution in the same way as the community. The previously existing college of elders not only continued exclusively patrician, but retained also its essential prerogatives-the
right of appointing the interrex, and of confirming or re jecting the resolutions adopted by the community as consti tutional or unconstitutional. In fact these prerogatives were enhanced by the reform of the constitution, because the appointment of the magistrates also, which fell to be made by election of the community, was thenceforth subject to the confirmation or rejection of the patrician senate.
In cases of appeal alone its confirmation, so far as we know, was never deemed requisite, because in these the matter at stake was the pardon of the guilty and, when this was granted by the sovereign assembly of the people, any cancelling of such an act was wholly out of the question.
But, although by the abolition of the monarchy the constitutional rights of the patrician senate were increased rather than diminished, there yet took place—and that, according to tradition, immediately on the abolition of the monarchy—so far as regards other affairs which fell to be discussed in the senate and admitted of a freer treatment, an enlargement of that body, which brought into it plebeians
33o
CHANGE OF THE CONSTITUTION 5001: II
also, and which in its consequences led to a complete remodelling of the whole. From the earliest times the senate had acted also, although not solely or especially, as a statecouncil ; and, while probably even in the time of the kings it was not regarded as unconstitutional for non senators in this case to take part in the assembly 102), it was now arranged that for such discussions there should be associated with the patrician senate (patres) a number of non-patricians “added to the roll” (mnsmpti). This did not at all put them on a footing of equality; the plebeians in the senate did not become senators, but remained members of the equestrian order, were not designated pains but were even now consm'pti, and had no right to the badge of senatorial dignity, the red shoe
Moreover, they not only remained absolutely excluded from the exercise of the magisterial prerogatives belonging to the senate (auctoritas), but were obliged, even where the question had reference merely to an advice
99).
to rest content with the privilege of being present in silence while the question was put to the patri
cians in turn, and of only indicating their opinion adding to the numbers when the division was taken— voting with the feet (pediéus in sentmliam ire, pedarz'i) as the proud nobility expressed Nevertheless, the plebeians found their way through the new constitution not merely to the Forum, but also to the senate-house, and the first and most diflicult step towards equality of rights was taken in this quarter also.
Otherwise there was no material change in the arrange» ments affecting the senate. Among the patrician members distinction of rank soon came to be recognized, especially in putting the vote: those who were proximately designated
for the supreme magistracy, or who had already administered were entered on the list and were called upon to vote before the rest; and the position of the first of them, the
(consilz‘um),
by
it,
a
(p.
it.
CH-AP- r CHANGE OF THE CONSTITUTION
331
foreman of the senate (girincq): seuatus), soon became a highly coveted place of honour. The consul in ofi‘ice, on the other hand, no more ranked as a member of senate than did the king, and therefore in taking the votes did not include his own. The selection of the members-both of the narrower patrician senate and of those merely added to the roll-fell to be made by the consuls just as formerly by the kings j but the nature of the case implied that, while the king had still perhaps some measure of regard to the representation of the several clans in the senate, this con sideration was of no account so far as concerned the plebeians, among whom the clan-organization was but im perfectly developed, and consequently the relation of the senate to that organization in general fell more and more into abeyance. We have no information that the electing consuls were restricted from admitting more than a definite number of plebeians to the senate; nor was there need for such a regulation, because the consuls themselves belonged to the nobility. On the other hand probably from the outset the consul was in virtue of his very position practi cally far less free, and far more bound by the opinions of his order and by custom, in the appointment of senators than the king. The rule in particular, that the holding of the consulship should necessarily be followed by admission to the senate for life, as was probably the case at this time, the consul was not yet member of at the time of his election, must have in all probability very early acquired consuetudinary force. In like manner seems to have become early the custom not to fill up the senators’ places immediately on their falling vacant, but to revise and complete the roll of the senate on occasion of the census, consequently, as rule, every fourth year; which also involved not unimportant restriction on the authority entrusted with the selection. The whole number of the senators remained as before, and in this the cam-mptz’ were
a
a
it
it
if, a
Couc vative character of the revolution.
also included ; from which fact we are probably entitled to infer the numerical falling off of the patriciate. 1
We thus see that in the Roman commonwealth, even on the conversion of the monarchy into a republic, the old was as far as possible retained. So far as a revolution in a state can be conservative at all, this one was so ; not one of the constituent elements of the commonwealth was really over thrown by This circumstance indicates the character of the whole movement. The expulsion of the Tarquins was not, as the pitiful and deeply -falsified accounts of represent, the work of people carried away by sympathy and enthusiasm for liberty, but the work of two great political parties already engaged in conflict, and clearly aware that their conflict would steadily continue-the old burgesses and the metom'—who, like the English Whigs and Tories in r688, were for moment united by the common danger which threatened to convert the common wealth into the arbitrary government of despot, and differed again as soon as the danger was over. The old burgesses could not get rid of the monarchy without the co operation of the new burgesses; but the new burgesses were far from being sufliciently strong to wrest the power out of the hands of the former at one blow. Compromises of this sort are necessarily limited to the smallest measure of mutual concessions obtained by tedious bargaining; and they leave the future to decide which of the constituent elements shall eventually preponderate, and whether they will work harmoniously together or counteract one another. To look therefore merely to the direct innovations, possibly to the mere change in the duration of the supreme magistracy, altogether to mistake the broad import of the first Roman revolution: its indirect effects were by far the
That the first consuls admitted to the senate r64 plebeians, hardly to be regarded as a historical fact, but rather as a proof that the later Roman archaeologists were unable to point out more than :36 ‘ester of the Roman nobility (Rim. Fan-ck. 121).
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CHANGE OF THE CONSTITUTION I00! I1
i.
1
is
is
it.
a
a
a
it
CRAP. I CHANGE OF THE CONSTITUTION
333
most important, and vaster doubtless than even its authors anticipated
This, in short, was the time when the Roman burgess- '11,, my
body
in the later sense of the term originated. The “mm plebeians had hitherto been metom', who were subjected to
their share of taxes and burdens, but who were nevertheless
in the eye of the law really nothing but tolerated aliens,
between whose position and that of foreigners proper it
may have seemed hardly necessary to draw a definite line
of distinction. They were now enrolled in the lists as
burgesses liable to military service, and, although they were
still far from being on a footing of legal equality—although
the old burgesses still remained exclusively entitled to
perform the acts of authority constitutionally pertaining to
the council of elders, and exclusively eligible to the civil magistracies and priesthoods, nay even by preference
entitled to participate in the usufructs of burgesses, such as
the joint use of the public pasture-yet the first and most
difficult step towards complete equalization was
from the time when the plebeians no longer served merely
in the common levy, but also voted in the common assembly
and in the common council when its opinion was asked,
and the head and back of the poorest metoikos were as well
protected by the right of appeal as those of the noblest of
the old burgesses.
gained
One consequence of this amalgamation of the patricians and plebeians in a new corporation of Roman burgesses was the conversion of the old burgesses into a clan-nobility, which was incapable of receiving additions or even of filling up its own ranks, since the nobles no longer pos sessed the right of passing decrees in common
and the adoption of new families into the nobility by decree of the community appeared still less admissible. Under the kings the ranks of the Roman nobility had not been thus closed, and the admission of new clans was no very
assembly
334
CHANGE OF THE CONSTITUTION nooK 1
rare occurrence: now this genuine characteristic of patri cianism made its appearance as the sure herald of the speedy loss of its political privileges and of its exclusive estimation in the community. The exclusion of the plebeians from all public magistracies and public priesthoods-while they were admissible to the position of oflicers and senators— and the maintenance, with perverse obstinacy, of the legal impossibility of marriage between old burgesses and plebeians, further impressed on the patriciate from the out set the stamp of an exclusive and wrongly privileged aristocracy.
A second consequence of the new union of the burgesses must have been a more definite regulation of the right of settlement, with reference both to the Latin confederates and to other states. It became necessary—not so much on account of the right of suffrage in the centuries (which indeed belonged only to the freeholder) as on account of the right of appeal, which was intended to be conceded to the plebeian, but not to the foreigner dwelling for a time or even permanently in Rome—to express more precisely the conditions of the acquisition of plebeian rights, and to mark 05 the enlarged burgess-body in its turn from those who were now the non-burgesses. To this epoch therefore we may trace back—in the views and feelings of the people -both the invidiousness of the distinction between
patricians and plebeians, and the strict and haughty line of demarcation between rives Romam' and aliens. But the former civic distinction was in its nature transient, while the latter political one was permanent; and the sense of political unity and rising greatness, which was thus im planted in the heart of the nation, was expansive enough first to undermine and then to carry away with its mighty current those paltry distinctions.
It was at this period, moreover, that law and edict were
leparated.
The distinction indeed had its foundation in
can. I CHANGE OF THE CONSTITUTION
335
the essential character of the Roman state; for even the regal power in Rome was subordinate, not superior, to the law of the land. But the profound and practical veneration, which the Romans, like every other people of political capacity, cherished for the principle of authority, gave birth to the remarkable rule of Roman constitutional and private law, that every command of the magistrate not based upon a law was at least valid during his tenure of oflice, although it expired with that tenure. It is evident that in this view, so long as the presidents were nominated for life, the dis tinction between law and edict must have practically been almost lost sight of, and the legislative activity of the public assembly could acquire no development. On the other hand it obtained a wide field of action after the presidents were changed annually ; and the fact was now by no means void of practical importance, that, if the consul in deciding a process committed a legal informality, his successor could institute a fresh trial of the cause.
It was at this period, finally, that the provinces of civil Civil and and military authority were separated. In the former the “Mm law ruled, in the latter the axe: the former was governed
by the constitutional checks of the right of appeal and of regulated delegation; in the latter the general held an
absolute sway like the king. 1 It was an established prin
ciple, that the general and the army as such should not
under ordinary circumstances enter the city proper. That
organic and permanently operative enactments could only
be made under the authority of the civil power, was
implied in the spirit, if not in the letter, of the constitution.
Instances indeed occasionally occurred where the general, disregarding this principle, convoked his forces in the camp
1 It may not be'superfluous to remark, that the iudicium legitinnml, as well as that quad imperio confinetur, rested on the imperium of the directing magistrate, and the distinction only consisted in the circumstance that the impcrium was in the former case limited by the Jar. while in the latter it was free.
ment of I) patrician
as a burgess assembly, nor was a decree passed under such circumstances legally void ; but custom disapproved of such a proceeding, and it soon fell into disuse as though it had been forbidden. The distinction between Quirites and soldiers became more and more deeply rooted in the minds of the burgesses.
Time however was required for the development of these consequences of the new republicanism ; vividly as posterity felt its effects, the revolution probably appeared to the con temporary world at first in a different light. The non-bur gesses indeed gained by it burgess-rights, and the new bur gess-body acquired in the comitia :enturiata comprehensive prerogatives; but the right of rejection on the part of the patrician senate, which in firm and serried ranks confronted the conu'tia as if it were an Upper House, legally hampered their freedom of movement precisely in the most important matters, and although not in a position to thwart the serious will of the collective body, could yet practically delay and cripple If the nobility in giving up their claim to be the sole embodiment of the community did not seem to have lost much, they had in other respects decidedly gained. The king, true, was patrician as well as the consul, and the right of nominating the members of the senate belonged to the latter as to the former; but while his exceptional position raised the former no less above the patricians than above the plebeians, and while cases might easily occur in which he would be obliged to lean upon the support of the multitude even against the nobility, the consul—ruling for brief term, but before and after that term simply one of the nobility, and obeying tomorrow the noble fellow-burgess whom he had commanded to-day-by no means occupied position aloof from his order, and the spirit of the noble in him must have been far more power
ful than that of the magistrate. Indeed, at any time way of exception patrician disinclined to the rule of the
336
CHANGE OF THE CONSTITUTION BOOK n
a
aa it is
if
by
a
it.
can. i CHANGE OF THE CONSTITUTION
337
nobility was called to the government, his oflicial authority was paralyzed partly by the priestly colleges, which were pervaded by an intense aristocratic spirit, partly by his colleague, and was easily suspended by the dictatorship; and, what was of still more moment, he wanted the first element of political power, time. The president of a commonwealth, whatever plenary authority may be conceded to him, will never gain possession of political power, if he does not continue for some considerable time at the head of affairs; for a necessary condition of every dominion is duration. Consequently the senate appointed for life inevitably acquired-and that by virtue chiefly of its title to advise the magistrate in all points, so that we speak not of the narrower patrician, but of the enlarged patricio plebeian, senate-so great an influence as contrasted with the annual rulers, that their legal relations became precisely inverted; the senate substantially assumed to itself the powers of government, and the former ruler sank into a president acting as its chairman and executing its decrees. In the case of every proposal to be submitted to the com munity for acceptance or rejection the practice of previously consulting the whole senate and obtaining its approval, while not constitutionally necessary, was consecrated by use and wont ; and it was not lightly or willingly departed from. The same course was followed in the case of important state-treaties, of the management and distribution of the public lands, and generally of every act the effects of which extended beyond the official year; and nothing was left to the consul but the transaction of current business, the initial steps in civil processes, and the command in war. Especially important in its consequences was the change in virtue of which neither the consul, nor even the otherwise absolute dictator, was permitted to touch the public treasure except with the consent and by the will of the senate.
The senate made it obligatory on the consuls to commit VOL. I 22
The plebeian widen.
338
CHANGE OF THE CONSTITUTION BOOK u
the administration of the public chest, which the king had managed or might at any rate have managed himself, to two standing subordinate magistrates, who were nominated no doubt by the consuls and had to obey them, but were, as may easily be conceived, much more dependent than the consuls themselves on the senate 32 It thus drew into its own hands the management of finance; and this right of sanctioning the expenditure of money on the part of the Roman senate may be placed on parallel in its effects with the right of sanctioning taxation in the constitutional monarchies of the present day.
The consequences followed as matter of course. The first and most essential condition of all aristocratic govern ment that the plenary power of the state be vested not in an individual but in corporation. Now a preponderantly aristocratic corporation, the senate, had appropriated to itself the government, and at the same time the executive power not only remained in the hands of the nobility, but was also entirely subject to the governing corporation. It
true that considerable number of men not belonging to the nobility sat in the senate; but as they were incap able of holding magistracies or even of taking part in the debates, and thus were excluded from all practical share in the government, they necessarily played subordinate
in the senate, and were moreover kept in pecuniary de pendence on the corporation through the economically
important privilege of using the public pasture. The gradually recognized right of the patrician consuls to revise and modify the senatorial list at least every fourth year, ineffective as presumably was over against the nobility, might very well be employed in their interest, and an obnoxious plebeian might by means of be kept out of the senate or even be removed from its ranks.
It therefore quite true that the immediate effect of the revolution was to establish the aristocratic government. It
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it
it
a
2).
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(p. a
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.
34:
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.
aa
(p.
a
it
a
a
a
a
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
belonged
a
is
it
it,
it
a
it,
can. rr AND THE DECEMVIRATE
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.
348
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.
a
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it
a
a
it
Interces
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
35o
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
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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.
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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
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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.
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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.