No More Learning

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so far, that in the processes affecting freedom, which were so important for the plebs, the nomination of jury men was withdrawn from the consuls, and the decisions in such cases were pronounced by the “ten-men-judges” destined specially for that purpose (indicts, decemvirr', after wards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.
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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.
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.
364
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:
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THE TRIBUNATE OF THE PLEBS BOOK n
494. the results both of the earlier revolution of 260 and of the 449. latest movement; and the Valerio-Horatian laws of 305 can only be understood as forming a compromise in this
any one who should nominate magistrate on other terms was to expiate the offence with his life. In other respects the
dictator retained his former powers and in particular his oFficial acts could not, like those of the consuls, be cancelled by tribune.
The plenitude of the consular power was further re stricted in so far as the administration of the military chest
was committed to two paymasters (qr/anions) chosen by
the community, who were nominated for the first time in 447. 307. The nomination as well of the two new paymasters for war as of the two administering the city-chest now passed over to the community; the consul retained merely
the conduct of the election instead of the election itself. The assembly in which the paymasters were elected was
a
\\
a
;
it a
it
by
a
it
it.
CRAP. I] AND THE DECEMVIRATE
369
that of the whole patricio-plebeian freeholders, and voted by districts ; an arrangement which likewise involved a con cession to the plebeian farmers, who had far more command of these assemblies than of the centuriate comitia.
A concession of still greater consequence was that which allowed the tribunes to share in the discussions of the senate. To admit the tribunes to the hall where the senate sat, appeared to that body beneath its dignity; so a bench was placed for them at the door that they might from that spot follow its proceedings. The tribunician right of intercession had extended also to the decrees of the senate as a collective body, after the latter had become not merely a deliberative but a decretory board, which probably occurred at first in the case of a plebim'tum that was meant to be binding for the whole community 3 53) ; it was natural that there should thenceforth be conceded to the tribunes a certain participation in the discussions of the senate nouse. In order also to secure the decrees of the senate— with me validity of which indeed that of the most important
was bound up-—from being tampered with or forged, it was enacted that in future they should be deposited not merely under charge of the patrician quaestorss uroam' in the temple of Saturn, but also under that of the pleoeian aediles in the temple of Ceres. Thus this struggle, which was begun in order to get rid of the tribunician power, terminated in the renewed and now definitive sanctioning of its right to annul not only particular acts of administration on the appeal of the person aggrieved, but also any resolution of the constituent powers of the state at pleasure. The persons of the tribunes, and the uninterrupted maintenance of the college at its full number, were once more secured by the most sacred oaths and by every element of reverence that religion could present, and not less by the most formal laws. No attempt to abolish this magistracy was ever from this time forward made in Rome.
VOL. 1 a4
plebim'ta
Union
of the plebeians.
37° THE EQUALIZATION OF THE ORDERS, BOOK 11
CHAPTER III
I'HE EQUALIZATION OF THE ORDERS, AND THE NEW ARISTOCRACY
THE tribunician movements appear to have mainly origin ated in social rather than political discontent, and there is good reason to suppose that some of the wealthy plebeians admitted to the senate were no less opposed to these move ments than the patricians. For they too benefited by the privileges against which the agitation was mainly directed , and although in other respects they found themselves treated as inferior, it probably seemed to them by no means an
time for asserting their claim to participate in the magistracies, when the exclusive financial power of the whole senate was assailed. This explains why during the first fifty years of the republic no step was taken aiming directly at the political equalization of the orders.
But this league between the patricians and the wealthy plebeians by no means bore within itself any guarantee of permanence. Beyond doubt from the very first a portion of the leading plebeian families had attached themselves to the movement-party, partly from a sense of what was due to the fellow-members of their order, partly in- consequence of the natural bond which unites all who are treated as
inferior, and partly because they perceived that concessions to the multitude were inevitable in the issue, and that, it turned to due account, they would result in the abrogation
appropriate
CHAP. m AND THE NEW ARISTOCRACY
31!
of the exclusive rights of the patriciate and would thereby give to the plebeian aristocracy a decisive preponderance in the state. Should this conviction become-as was in evitable—more and more prevalent, and should the plebeian aristocracy at the head of its order take up the struggle with the patrician nobility, it would wield in the tribunate a legalized instrument of civil warfare, and it might, with the weapon of social distress, so fight its battles as to dictate to the nobility the terms of peace and, in the posi tion of mediator between the two parties, compel its own
admission to the offices of state.
Such a crisis in the position of parties occurred after the
fall of the decemvirate. It had now become perfectly clear that the tribunate of the plebs could never be set aside; the plebeian aristocracy could not do better than seize this powerful lever and employ it for the removal of the political disabilities of their order.
Nothing shows so clearly the defencelessness of the clan Throwing
n'obility when opposed to the united plebs, as the fact that open of marriage
the fundamental principle of the exclusive party—the and of ma invalidity of marriage between patricians and plebeians- gistracies. fell at the first blow scarcely four years after the decem
viral revolution. In the year 309 it was enacted by the 445. Canuleian plebiscite, that a marriage between a patrician
and a plebeian should be valid as a true Roman marriage, and that the children begotten of such a marriage should follow the rank of the father. At the same time it was further carried that, in place of consuls, military tribunes
of these there were at that time, before the division of the army into legions, six, and the number of these magistrates was adjusted accordingly—with consular powers1 and
1 The hypothesis that legally the full imperium belonged to the patri cian, and only the military imperium to the plebeian, consular tribunes, not only provokes various questions to which there is no answer-‘35 to the course followed, for example. in the event of the election falling, as was by law quite possible, wholly on plebeians—but specially conflicts with the fundamental principle of Roman constitutional law, that the imperial“,
tribunes with consular powers.
372 THE EQUALIZATION OF THE ORDERS, BOOK l1
consular duration of office should be elected by the centuries. The proximate cause was of a military nature, as the various wars required a greater number of generals in chief com mand than the consular constitution allowed ; but the change came to be of essential importance for the conflicts of the orders, and it may be that that military object was rather the pretext than the reason for this arrangement. According to the ancient law every burgess or metoikos liable to service might attain the post of an oflicer (p. 1 20), and in virtue of that principle the supreme magistracy, after having been temporarily opened up to the plebeians in the decem virate, was now after a more comprehensive fashion rendered equally accessible to all freeborn burgesses. The question naturally occurs, what interest the aristocracy could have—
that is to say, the right of commanding the burgss in name of the com munity, was functionally indivisible and capable of no other limitation at all than a territorial one. There was a province of urban law and a province of military law, in the latter of which the prouocatia and other regulations of urban law were not applicable; there were magistrates, such as the proconsuls, who were empowered to discharge functions simply in the latter; but there were, in the strict sense of law, no magistrates with merely jurisdictional, as there were none with merely military, imperium. The proconsul was in his province. just like the consul, at once commander in-chief and supreme judge, and was entitled to send to trial actions not only between non-burgesses and soldiers, but also between one burgess and another. Even when, on the institution of the praetorship, the idm. rose of apportioning Special functions to the magixtralus maiorar, this division of powers had more of a practical than of a strictly legal force; the praetor urbanur was primarily indeed the supreme judge, but he could also convoke the centuries, at least for certain cases, and could command an army ; the consul in the city held primarily the supreme administration and the supreme command, but he too acted as a judge in cases of emancipation and adoption-the functional indivisibility of the supreme magistracy was therefore, even in these instances, very strictly adhered to on both sides. Thus the military as well as jurisdictional authority, or, laying aside these abstractions foreign to the Roman law of this period, the absolute magis terial power, must have virtually pertained to the plebeian consular tribunes as well as to the patrician. But it may well be, as Becker supposs (Handb. ii. a, r 37), that, for the same reasons, for which at a subsequent period there was placed alongside of the consnlship common to both orders the praetorship actually reserved for a considerable time for the patricians, even during the consular tribunate the plebeian members ot the college were de facto kept aloof from jurisdiction, and so far the consular tribunate prepared the way for the subsequent actual division of jurisdiction between consuls and praetors.
mm. m AND . . rnn NEW ARISTOCRACY
373
now that it was under the necessity of abandoning its ex clusive possession of the supreme magistracy and of yield ing in the matter-in refusing to the plebeians the title, and conceding to them the consulate under this singular form? 1 But, in the first place, there were associated with the holding of the supreme magistracy various honorary rights, partly personal; partly hereditary; thus the honour of a triumph was regarded as legally dependent on the occupancy of the supreme magistracy, and was never given to an ofl'icer who had not administeged the latter oflice in person; and the descendants of a curule magistrate were at liberty to set up the image'of such an ancestor in the family hall and to exhibit it in public on fitting occasions, while this was not allowed in the case of other ancestors?
It is as easy to be explained as it is difi‘icult to be vindi cated, that the governing aristocratic order should have allowed the government itself to be wrested from their hands far sooner than the honorary rights associated with
especially such as were hereditary; and therefore, when was obliged to share the former with the plebeians,
gave to the actual supreme magistrate the legal standing not of the holder of curule chair, but of simple staff
The defence, that the aristocracy clung to the exclusion of the ple beians from religious prejudice, mistakes the fundamental character of the Roman religion, and imports into antiquity the modern distinction between church and state. The admittance of a non-burgess to a. religious cere mony of the citizens could not indeed but appear sinful to the orthodox Roman but even the most rigid orthodoxy never doubted that admittance to civic communion, which absolutely and solely depended on the state, involved also full religious equality. All such scruples of conscience, the honesty of which in themselves we do not mean to doubt, were precluded, when once they granted to the plebeians an mass: at the right time the patriciate. This only may perhaps be alleged by way of excuse for the nobility, that after had neglected the right moment for this purpose at the abolition of the monarchy. was no longer in a position subsequently of itself to retrieve the neglect (p. 333).
Whether this distinction between these "curule houses" and the other families embraced within the patriciate was ever of serious political importance, cannot with certainty be either afi‘irmed or denied; and as little do we know whether at this epoch there really was any considerable number of patrician families that were not yet curule.
'
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it
it
;
a
a
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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. But it did not. Though a rational and legal resistance was thenceforth impossible, spiteful opposition still found a wide field of petty ex pedients, of chicanery and intrigue; and, far from honour
able or politically prudent as such resistance was, it was still in a certain sense fruitful of results. It certainly pro cured at length for the commons concessions which could not easily have been wrung from the united Roman aris tocracy ; but it also prolonged civil war for another century and enabled the nobility, in defiance of those laws, practically to retain the government in their exclusive possession for several generations longer.
The expedients of which the nobility availed themselves were as various as political paltriness could suggest. Instead of deciding at once the question as to the admission or exclusion of the plebeians at the elections, they conceded what they were compelled to concede only with reference to the elections immediately impending. The vain struggle was thus annually renewed whether patrician consuls or military tribunes from both orders with consular powers
should be nominated ; and among the weapons of the aris l
Their ex pedients.
CRAP. m AND THE NEW ARISTOCRACY
375
tocracy this mode of conquering an opponent by weary ing and annoying him proved by no means the least effective.
Moreover they broke up the supreme power which had Subdivi a” hitherto been undivided, in order to delay their inevitable
defeat by multiplying the points to be assailed. Thus traey.
the adjustment of the budget and of the burgess- and taxation-rolls, which ordinarily took place every fourth year
and had hitherto been managed by the consuls, was entrusted as early as the year 319 to two valuators 485. (cmwres), nominated by the centuries from among the Censor nobles for a period, at the most, of eighteen months. ‘up’ The new ot‘n-ce gradually became the palladium of the aristocratic party, not so much on account of its financial influence as on account of the right annegdwto- it of filling
up the vacancies in the senate and in the equites, and of removing individuals from the lists of the senate, equites,
and burgesses on occasion of their adjustment. At this epoch, however, the censorship by no means possessed the
great importance and moral supremacy which afterwards
were associated with it.
But the important change made in the year 333 in Qqlemr respect to the quaestorship amply compensated for this Elf success of the patrician party. The patricio-plebeian
assembly of the tribes-perhaps taking up the ground that
at least the two military paymasters were in fact oficers rather than civil functionaries, and that so far the plebeian appeared as well entitled to the quaestorship as to the military tribuneship-carried the point that plebeian candi~ dates also were admitted for the quaestorial elections, and thereby acquired for the first time the privilege of eligibility as well as the right of election for one of the ordinary magistracies. With justice it was felt on the one side as a great victory, on the other as a severe defeat, that thenceforth patrician and plebeian were equally capable
Attempts at counter rm olution.
375 THE EQUALIZATION OF THE ORDERS, BOOK II
of electing and being elected to the military as well as to the urban quaestorship.
The nobility, in spite of the most obstinate resistance, only sustained loss after loss; and their exasperation increased as their power decreased. Attempts were doubt less still made directly to assail the rights secured by agreement to the commons; but such attempts were not so much the well-calculated manoeuvres of party as the acts of an impotent thirst for vengeance Such in particular was the process against Maelius as reported by the tradition-certainly not very trustworthy-that has come down to us. Spurius Maelius, a wealthy plebeian, during a severe dearth (3r 5) sold corn at such prices as to put to shame and annoy the patrician store-president (praqfedus amumae) Gaius Minucius. The latter accused him of aspiring to kingly power; with what amount of reason we cannot decide, but it is scarcely credible that a man who had not even filled the tribunate should have seriously thought of sovereignty. Nevertheless the authorities took up the matter in earnest, and the cry of “King” always produced on the multitude in Rome an effect similar to that of the cry of “Pope” on the
masses in England. Titus Quinctius Capitolinus, who was
for the sixth time consul, nominated Lucius Cincinnatus, who was eighty years of age, as dictator without appeal, in open violation of the solemnly sworn laws (p. 368). Maelius, summoned before him, seemed disposed to disregard the summons; and the dictator's master of the horse, Gaius Servilius Ahala, slew him with his own hand. The house of the murdered man was pulled down, the corn from his granaries was distributed gratuitously to the people, and those who threatened to avenge his death were secretly made away with. This disgraceful judicial murder-a disgrace even more to the credulous and blind people than to the malignant party
. . JJ.
Quinctius
CRAP. "I AND THE NEW ARISTOCRACY
377
of young patricians-passed unpunished ; but if that party had hoped by such means to undermine the right of appeal, it violated the laws and shed innocent blood in vain.
Electioneering intrigues and priestly trickery proved in Intrigues the hands of the nobility more efiicient than any other of the
nobility. weapons. The extent to which the former must have
prevailed is best seen in the fact that in 322 it appeared 482 necessary to issue a special law against electioneering practices, which of course was of little avail. When the voters could not be influenced by corruption or threatening,
the presiding magistrates stretched their powers-admitting, for example, so many plebeian candidates that the votes of the opposition were thrown away amongst them, or omitting from the list of candidates those whom the majority were disposed to choose. If in spite of all this an obnoxious election was carried, the priests were consulted whether no vitiating circumstance had occurred in the auspices or other religious ceremonies on the occasion; and some such flaw they seldom failed to discover. Taking no thought as to the consequences and unmindful of the wise example of their ancestors, the people allowed the principle to be established that the opinion of the skilled colleges of priests as to omens of birds, portents, and the like was legally binding on the magistrate, and thus put it into their power to cancel
any state-act—whether the consecration of a temple or
any other act of administration, whether law or election
on the ground of religious informality. In this way it became possible that, although the eligibility of plebeians
had been established by law already in 333 for the 421. quaestorship and thenceforward continued to be legally recognized, it was only in 34 5 that the first plebeian 409. attained the quaestorship ; in like manner patricians almost exclusively held the military tribunate with consular
373 THE EQUALIZATION OF THE ORDERS, BOOK n
400. powers down to 354. It was apparent that the legal abolition of the privileges of the nobles had by no means really and practically placed the plebeian aristocracy on a footing of equality with the clan-nobility. Many causes contributed to this result: the tenacious opposition of the nobility far more easily allowed itself to be theoretically
in a moment of excitement, than to be permanently kept down in the annually recurring elections; but the main cause was the inward disunion between the chiefs of the plebeian aristocracy and the mass of the farmers. The middle class, whose votes were decisive in the comitia, did not feel itself specially called on to advance the interests of genteel non-patricians, so long as its own demands were disregarded by the plebeian no less than by the patrician aristocracy.
During these political struggles social questions had lain on the whole dormant, or were discussed at any rate with less energy. After the plebeian aristocracy had gained possession of the tribunate for its own ends, no serious notice was taken either of the question of the domains or of a reform in the system of credit ; although there was no lack either of newly acquired lands or of impoverished or decaying farmers. Instances indeed of assignations took place, particularly in the recently conquered border-terri
superseded
The suffering farmers.
442. tories, such as those of the domain of Ardea in 312, of 418. 898. Labici in 336, and of Veii in 361—-more however on military grounds than for the relief of the farmer, and by
no means to an adequate extent. Individual tribunes doubtless attempted to revive the law of Cassius-for instance Spurius Maecilius and Spurius Metilius instituted
417. in the year 337 a proposal for the distribution of the whole state-lands—but they were thwarted, in a manner characteristic of the existing state of parties, by the opposition of their own colleagues or in other words of the plebeian aristocracy. Some of the patricians also
“MAP. it: AND THE NEW ARISTOCRACY
379
attempted to remedy the common distress; but with no better success than had formerly attended Spurius Cassius. ‘A patrician like Cassius and like him distinguished by military renown and personal valour, Marcus Manlius, the saviour of the Capitol during the Gallic siege, is said to have come forward as the champion of the oppressed
people, with whom he was connected by the ties of com radeship in war and of bitter hatred towards his rival, the celebrated general and leader of the optimate party, Marcus Furius Camillus. When a brave officer was about to be led away to a debtor's prison, Manlius interceded for him and released him with his own money; at the same time he offered his lands to sale, declaring loudly that, as long as he possessed a foot’s breadth of land, such iniquities should not occur. This was more than enough to unite the whole government party, patricians as well as plebeians, against the dangerous innovator. The trial for high treason, the charge of having meditated a renewal of the monarchy, wrought on the blind multitude with the insidious charm which belongs to stereotyped party phrases. They themselves condemned him to death, and his renown availed him nothing save that it was deemed expedient to assemble the people for the bloody assize at a spot whence the voters could not see the rock of the citadel-—the dumb monitor which might remind them how their fatherland had been saved from the extremity of danger by the hands of the very man whom
they were now consigning to the executioner (370). 884. While the attempts at reformation were thus arrested in
the bud, the social disorders became still more crying; for
on the one hand the domain-possessions were ever extend ing in consequence of successful wars, and on the other hand debt and impoverishment were ever spreading more
widely among the farmers, particularly from the effects of
the severe war with Veii (348- 3 58) and of the burning of 400-395.
380 THE EQUALIZATION OF THE ORDERS, BOOK H
890. the capital in the Gallic invasion (364). It is true that, when in the Veientine war it became necessary to prolong the term of service of the soldiers and to keep them under arms not—as hitherto at the utmost—only during summer, but also throughout the winter, and when the farmers, foreseeing their utter economic ruin, were on the point of refusing their consent to the declaration of war, the senate resolved on making an important concession. It charged the pay, which hitherto the tribes had defrayed by con tribution, on the state-chest, or in other words, on the
406. produce of the indirect revenues and the domains (348). It was only in the event of the state-chest being at the moment empty that a general contribution (tributum) was imposed on account of the pay; and in that case it was considered as a forced loan and was afterwards repaid by the community. The arrangement was equitable and wise; but, as it was not placed upon the essential foundation of turning the domains to proper account for the benefit of the exchequer, there were added to the increased burden of service frequent contributions, which were none the less ruinous to the man of small means that they were oflicially regarded not as taxes but as advances.
Combina
Under such circumstances, when the plebeian aris
tion of the tocracy saw itself practically excluded by the opposition of plebeian
aristocracy the nobility and the indifference of the commons from
and the farmers against the nobility.
Licinio Sextian laws.
equality of political rights, and the suffering farmers were powerless as opposed to the close aristocracy, it was natural that they should help each other by a compromise. With this view the tribunes of the people, Gaius Licinius and Lucius Sextius, submitted to the commons proposals to the following effect: first, to abolish the consular tribunate; secondly, to lay it down as a rule that at least one of the consuls should be a plebeian ; thirdly, to open up to the plebeians admission to one of the three great colleges of priests-that of the custodiers of oracles, whose number
CHAP- 111 AND THE NEW ARISTOCRACY
381
was to be increased to ten (duom'ri, afterwards damviri ran faa'undir, 3o) fourthly, as respected the domains, to allow no burgess to maintain upon the common pasture more than hundred oxen and five hundred sheep, or to hold more than five hundred jugera (about 300 acres) of
the domain lands left free for occupation fifthly, to oblige the landlords to employ in the labours of the field number of free labourers proportioned to that of their rural slaves; and lastly, to procure alleviation for debtors by deduction of the interest which had been paid from the capital, and by the arrangement of set terms for the payment of arrears.
The tendency of these enactments obvious. They were designed to deprive the nobles of their exclusive possession of the curule magistracies and of the hereditary distinctions of nobility therewith associated; which, was characteristically conceived, could only be accomplished by the legal exclusion of the nobles from the place of second consul. They were designed, as consequence, to eman cipate the plebeian members of the senate from the sub ordinate position which they occupied as silent by-sitters (p. 330), in so far as those of them at least who had filled the consulate thereby acquired a title to deliver their opinion with the patrician consulars before the other patrician senators (pp. 330, 374). They were intended, moreover, to withdraw from the nobles the exclusive possession of spiritual dignities; and in carrying out this purpose for reasons sufliciently obvious the old Latin priesthoods of the augurs and pontifices were left to the old burgesses, but these were obliged to open up to the new burgesses the third great college of more recent origin and belonging to worship that was originally foreign. They were in tended, in fine, to procure share in the common usufructs of burgesses for the poorer commons, alleviation for the suffering debtors, and employment for the day-labourers
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is ;
a
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;
38:
THE EQUALIZATION OF THE ORDERS, BOOK n
that were destitute of work. Abolition of privileges, civil equality, social reform—these were the three great ideas, of which it was the design of this movement to secure the recognition. Vainly the patricians exerted all the means at their command in opposition to these legislative proposals ; even the dictatorship and the old military hero Camillus were able only to delay, not to avert their accomplishment. Willingly would the people have separated the proposals; of what moment to it were the consulate and custodiership of oracles, if only the burden of debt were lightened and the public lands were free! But it was not for nothing that the plebeian nobility had adopted the popular cause; it included the proposals in one single project of law, and after a long struggle-it is said of eleven years-the senate
887. at length gave its consent and they passed in the year 387.
Political abolition of the patriciate.
With the election of the first non-patrician consul-the choice fell on one of the authors of this reform, the late tribune of the people, Lucius Sextius Lateranus-the clan aristocracy ceased both in fact and in law to be numbered among the political institutions of Rome. When after the final passing of these laws the former champion of the clans, Marcus Furius Camillus, founded a sanctuary of Concord at the foot of the Capitol-—upon an elevated plat form, where the senate was wont frequently to meet, above the old meeting~place of the burgesses, the Comitium-we gladly cherish the belief that he recognized in the legisla tion thus completed the close of a dissension only too long continued. The religious consecration of the new concord
of the community was the last public act of the old warrior and statesman, and a worthy termination of his long and glorious career. He was not wholly mistaken; the more judicious portion of the clans evidently from this time forward looked upon their exclusive political privileges as lost, and were content to share the government with the plebeian aristocracy. In the majority, however, the patrician
can. in AND THE NEW ARISTOCRACY
383
spirit proved true to its incorrigible character. On the strength of the privilege which the champions of legitimacy have at all times claimed of obeying the laws only when these coincide with their party interests, the Roman nobles
on various occasions ventured, in open violation of the stipulated arrangement, to nominate two patrician consuls. But, when by way of answer to an election of that sort for
the year 411 the community in the year following formally 34s, resolved to allow both consular positions to be filled by non‘ patricians, they understood the implied threat, and still doubtless desired, but never again ventured, to touch the second consular place.
In like manner the aristocracy simply injured itself by Praetor the attempt which it made, on the passing of the Licinian ship‘ laws, to save at least some remnant of its ancient privileges
by means of a system of political clipping and paring.
Under the pretext that the nobility were exclusively cognizant of law, the administration of justice was detached
from the consulate when the latter had to be thrown open
to the plebeians ; and for this purpose there was nominated
a special third consul, or, as he was commonly called, a
In like manner the supervision of the market curule and the judicial police-duties connected with as well as ‘edfleship' the celebration of the city-festival, were assigned to two
newly nominated aediles, who—by way of distinction from
the plebeian aediles-were named from their standing juris
diction “aediles of the judgment seat”
But the curule aedileship became immediately so far 2:32:55? ! ’ accessible to the plebeians, that was held by patricians and trades and
praetor.
Moreover the dictatorship was thrown open to plebeians in 398, as the mastership of the horse had 356, already been in the year before the Licinian laws (386) 363. both the censorships were thrown open in 403, and the 351,
plebeians alternately.
in 417; and about the same time (415) the 887. 339. nobility were by law excluded from one of the censorships,
praetorship
(atdiles (um/es). complete
I
;
it
it,
384 THE EQUALIZATION OF THE ORDERS, 300K II
as they had previously been from one of the consulships. It was to no purpose that once more a patrician augur detected secret flaws, hidden from the eyes of the uninitiated, in the election of a plebeian dictator (427), and that the patrician censor did not up to the close of our present
S80. period (474) permit his colleague to present the solemn sacrifice with which the census closed; such chicanery served merely to show the ill humour of patricianisrn. Of as little avail were the complaints which the patrician presi dents of the senate would not fail to raise regarding the participation of the plebeians in its debates; it became a settled rule that no longer the patrician members, but those who had attained to one of the three supreme ordinary magistracies-the consnlship, praetorship, and curule aedileship-should be summoned to give their opinion in this order and without distinction of class, while the senators who had held none of these offices still even now took part merely in the division. The right, in fine, of the
patrician senate to reject a decree of the community as un constitutional—a right, however, which in all probability it rarely ventured to exercise-was withdrawn from it by the
'89. Publilian law of 415 and by the Maenian law which was not passed before the middle of the fifth century, in so far that it had to bring forward its constitutional objections, if it had any such, when the list of candidates was exhibited or the project of law was brought in; which practically
amounted to a regular announcement of its consent before hand. In this character, as a purely formal right, the confirmation of the decrees of the people still continued in the hands of the nobility down to the last age of the
republic.
The clans retained, as may naturally be conceived, their
religious privileges longer. Indeed, several of these, which were destitute of political importance, were never interfered with, such as their exclusive eligibility to the oflices of the
CHAP- I" AND THE NEW ARISTOCRACY
385
three supreme flamines and that of rex sacrorum as well as
to the membership of the colleges of Salii. On the other hand the two colleges of pontifices and of augurs, with which a considerable influence over the courts and the comitia were associated, were too important to remain in
the exclusive possession of the patricians. The Ogulnian
law of 454 accordingly threw these also open to plebeians, 800. by increasing the number both of the pontifices and of the augurs from six to nine, and equally distributing the stalls
in the two colleges between patricians and plebeians.
The two hundred years’ strife was brought at length to Equiva
a close by the law of the dictator Q. Hortensius (465, 468) trig;
which was occasioned by a dangerous popular insurrection, and which declared that the decrees of the plebs should stand on an absolute footing of equality—instead of their earlier conditional equivalence-with those of the whole community. So greatly had the state of things been changed that that portion of the burgesses which had once possessed exclusively the right of voting was thenceforth, under the usual form of taking votes binding for the whole burgess-body, no longer so much as asked the question.
plebis
286.
The struggle between the Roman clans and commons The_latu' was thus substantially at an end. While the nobility still glimm' preserved out of its comprehensive privileges the de fizdo possession of one of the consulships and one of the censor
ships, it was excluded by law from the tribunate, the
plebeian aedileship, the second consulship and censorship,
and from participation in the votes of the plebs which were
legally equivalent to votes of the whole body of burgesses.
As a righteous retribution for its perverse and stubborn resistance, the patriciate had seen its former privileges con
verted into so many disabilities. The Roman clan-nobility,
however, by no means disappeared because it had . become
an empty name. The less the significance and power of
the nobility, the more purely and exclusively the patrician vol. I 2 5
386 THE EQUALIZATION OF THE ORDERS, BOOK II
spirit developed itself. The haughtiness of the “ Ramnians ” survived the last of their class-privileges for centuries ; after they had steadfastly striven “to rescue the consulate from the plebeian filth” and had at length become reluctantly convinced of the impossibility of such an achievement, they continued at least rudely and spitefully to display their aristocratic spirit. To understand rightly the history of
Rome in the fifth and sixth centuries, we must never over look this sulking patricianism ; it could indeed do little more than irritate itself and others, but this it did to the best of its ability. Some years after the passing of the
296. Ogulnian law (458) a characteristic instance of this sort occurred. A patrician matron, who was married to a leading plebeian that had attained to the highest dignities of the state, was on account of this misalliance ex pelled from the circle of noble dames and was refused admission to the common festival of Chastity ; and in con- sequence of that exclusion separate patrician and plebeian goddesses of Chastity were thenceforward worshipped in Rome. Doubtless caprices of this sort were of very little moment, and the better portion of the clans kept them selves entirely aloof from this miserable policy of peevish ness; but it left behind on both sides a feeling of
The social
discontent, and, while the struggle of the commons against the clans was in itself a political and even moral necessity, these convulsive efi'orts to prolong the strife-the aimless combats of the rear-guard after the battle had been decided, as well as the empty squabbles as to rank and standing needlessly irritated and disturbed the public and private life of the Roman community.
Nevertheless one object of the compromise concluded
dis- [367. by the two portions of the plebs in 387, the abolition of the tress, and
the at tempts to relieve it.
patriciate, had in all material points been
attained. The question next arises, how far the same can be affirmed of the two positive objects aimed at in the
completely
CHAP. "I AND THE NEW ARISTOCRACY
387
compromise ? —whether the new order of things in reality checked social distress and established political equality? The two were intimately connected ; for, if economic embarrassments ruined the middle class and broke up the burgesses into a minority of rich men and a suffering proletariate, such a state of things would at once annihilate civil equality and in reality destroy the republican common wealth. The preservation and increase of the middle class, and in particular of the farmers, formed therefore for every patriotic statesman of Rome a problem not merely important, but the most important of all. The plebeians, moreover, recently called to take part in the government, greatly indebted as they were for their new political rights to the proletariate which was suffering and expecting help at their hands, were politically and morally under special obligation to attempt its relief by means of government measures, so far as relief was by such means at all attainable.
Let us first consider how far any real relief was contained The Licin~ in that part of the legislation of 387 which bore upon the 32mg" question. That the enactment in favour of the free day- laws. labourers could not possibly accomplish its object-namely,
to check the system of farming on a large scale and by
means of slaves, and to secure to the free proletarians at
least a share of work-is self-evident. In this matter legislation could afford no relief, without shaking the foundations of the civil organization of the period in a way
that would reach far beyond its immediate horizon. In the
question of the domains, on the other hand, it was quite
for legislation to effect a change; but what was done was manifestly inadequate. The new domain-arrange
ment, by granting the right of driving very considerable flocks and herds upon the public pastures, and that of occupying domain-land not laid out in pasture up to a maximum fixed on a high scale, conceded to the wealthy an important and perhaps even disproportionate prior share
possible
388 THE EQUALIZATION OF THE ORDERS, 300K I!
in the produce of the domains ; and by the latter regulation conferred upon the domain-tenure, although it remained in law liable to pay a tenth and revocable at pleasure, as well as upon the system of occupation itself, somewhat of a. legal sanction. It was a circumstance still more suspicious, that the new legislation neither supplemented the existing and manifestly unsatisfactory provisions for the collection of the pasture-money and the tenth by compulsory measures of a more effective kind, nor prescribed any thorough revision of the domanial possessions, nor appointed a magistracy charged with the carrying of the new laws into effect. The distribution of the existing occupied domain land partly among the holders up to a fair maximum, partly among the plebeians who had no property, in both cases in full ownership; the abolition in future of the system of occupation; and the institution of an authority empowered to make immediate distribution of any future acquisitions of territory, were so clearly demanded by the circumstances of the case, that it certainly was not through
want of discernment that these comprehensive measures were neglected. We cannot fail to recollect that it was the plebeian aristocracy, in other words, a portion of the very class that was practically privileged in respect to the usufructs of the domains, which proposed the new arrange ment, and that one of its very authors, Gaius Licinius 512010, was among the first to be condemned for having exceeded the agrarian maximum; and we cannot but ask whether the legislators dealt altogether honourably, and whether they did not on the contrary designedly evade a solution, really tending to the common benefit, of the unhappy question of the domains. We do not mean, however, to express any doubt that the regulations of the Licinian laws, such as they were, might and did substantially benefit the small farmer and the day-labourer. It must, moreover, be acknowledged that in the period immediately succeeding
CHAP- m AND THE NEW ARISTOCRACY
389
the passing of the law the authorities watched with at least comparative strictness over the observance of its rules as to the maximum, and frequently condemned the possessors of large herds and the occupiers of the domains to heavy fines.
In the system of taxation and of credit also efforts were
made with greater energy at this period than at any before
or subsequent to it to remedy the evils of the national
economy, so far as legal measures could do so. The duty
levied in 397 of five per cent on the value of slaves that
were to be manumitted was—irrespective of the fact that it
imposed a check on the undesirable multiplication of freed
men-the first tax in Rome that was really laid upon the
rich.