The History of Rome, Book II

Political Value of the Tribunate

But what was gained by a measure which broke up the unity of the state; which subjected the magistrates to a controlling authority unsteady in its action and dependent on all the passions of the moment; which in the hour of peril might have brought the administration to a dead-lock at the bidding of any one of the opposition chiefs elevated to the 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 equitable 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? 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 affirmed 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 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 regularly 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 orifice. 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 consequences, proved to be an expedient by which the state was politically unhinged; and social evils were prolonged by the application of useless palliatives.

Further Dissensions

Now that civil war was organized, it pursued its course. The parties stood face to face as if drawn up for battle, each under its leaders. Restriction of the consular and extension of the tribunician power were the objects contended for on the one side; the annihilation of the tribunate was sought on the other. Legal impunity secured for insubordination, 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. 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 it, and that the community, notwithstanding the most vehement convulsions, still held together.

Coriolanus

The best-known incident in these conflicts of the orders is the history of Gnaeus Marcius, a brave aristocrat, who derived his surname from the storming of Corioli. Indignant at the refusal of the centuries to entrust to him the consulate in the year 263, he is 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 by the tribunes so that his life was in peril, it is said that he left the city, but only to return at the head of a 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 by a second, and both by death. How much of this is true cannot be determined; but the story, over which the naive misrepresentations of the Roman annalists have shed a patriotic glory, affords a glimpse of the deep moral and political disgrace of these conflicts between the orders. Of a similar stamp was the surprise of the Capitol by a band of political refugees, led by a Sabine chief, Appius Herdonius, in the year 294; they summoned the slaves to arms, and it was only after a violent conflict, and by 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 epoch, the historical significance of which can no longer be apprehended in the lying family narratives; such as the predominance of the Fabian clan which furnished one of the two consuls from 269 to 275, and the reaction against it, the emigration of the Fabii from Rome, and their annihilation by the Etruscans on the Cremera (277)Still more odious 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 immediate effect of this misdeed was the Publilian law (283), one 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 -plebiscitum- on a level, although conditionally, with the formal law sanctioned by 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 283. The plebs had hitherto adopted its resolutions by 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 circumstances 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 by 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;[24 - I. VI. Levy Districts] subsequently-perhaps in the year 259—the Roman 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.[25 - I. III. Clan-Villages] 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;[26 - II. II. Secession to the Sacred mount] and thenceforth the special assemblies of the plebs took place, no longer by curies, but by 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 in 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 centuries. This "meeting of the multitude" (-concilium plebis-) was even less a general assembly of the burgesses than the plebeian assembly by curies had been, for it 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, is certain; whether it was directly introduced on occasion of the Publilian -plebiscitum-, or whether it had already been called into existence by some other—now forgotten—statute, and was only applied to the Publilian -plebiscitum- cannot be any longer ascertained. 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.

Agrarian Law of Spurius Cassius

More sagacious in plan than all these party steps was the attempt of Spurius Cassius to break down the financial omnipotence 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 surpassed him in rank and renown. After two triumphs, in his third consulate (268), he submitted to the burgesses a proposal 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 probably 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 tomb against them, until amidst the conflicts to which it led the commonwealth perished.

Decemvirs

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 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 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 -plebiscitum- 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 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 magistrates in room of the consuls (-decemviri consulari imperio legibus scribundls-), and to this office not merely patricians, but plebeians also might be elected. These were here for the first time designated as eligible, though only for an extraordinary office. 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 and other Greek laws; and it was only on its return that the decemvirs were chosen for the year 303. Although they 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 plebeians were chosen—the first non-patrician magistrates that the Roman community had.

Taking a connected view of these measures, we can 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 interference 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 -provocatio- and the possession of the Aventine. The intention seems to have been that the decemvirs should, 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.

Legislation of the Twelve Tables

The plan, if it should stand, was a wise one; all depended on whether men's minds exasperated on either side with passion would accept that peaceful adjustment. 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 affixed in the Forum to the rostra in front of the senate-house. But as a supplement appeared 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 proceeded 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 (10 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 confirmed anew in the law of the city. In like manner, with a view to restrict the caprice of the magistrate and to protect 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 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,[27 - II. II. Intercession] 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.

Fall of the Decemvirs

The end of the decemvirate is involved in much obscurity. 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 official year—which was so far possible, as under Roman constitutional law the magistracy called in an extraordinary 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 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 of the 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 decemvir 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 bridegroom 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 decemvirs 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 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 confiscated 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 circumstances, the great crisis out of which the Twelve Tables arose cannot possibly have ended in such romantic adventures, 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 sufficiently 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 office 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 the results both of the earlier revolution of 260 and of the latest movement; and the Valerio-Horatian laws of 305 can only be understood as forming a compromise in this conflict.

The Valerio-Horatian Laws

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 it. Through the code indeed the tribes lost their usurped jurisdiction in capital causes; but the tribunes got it back, as a way was found by which it 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-, a sufficient means of putting an end to the civic existence of a patrician opponent. Further, it was on the proposition of the consuls decreed by 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: any one who should nominate a 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 a tribune.

The plenitude of the consular power was further restricted in so far as the administration of the military chest was committed to two paymasters (-quaestores-) chosen by the community, who were nominated for the first time in 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 that of the whole patricio-plebeian freeholders, and voted by districts; an arrangement which likewise involved a concession 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 -plebiscitum- that was meant to be binding for the whole community;[28 - II. II. Legislation] it was natural that there should thenceforth be conceded to the tribunes a certain participation in the discussions of the senate-house. In order also to secure the decrees of the senate— with the validity of which indeed that of the most important -plebiscita- 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 -quaestores urbani- in the temple of Saturn, but also under that of the plebian 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.

CHAPTER III

The Equalization of the Orders, and the New Aristocracy

Union of the Plebians

The tribunician movements appear to have mainly originated 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 movements 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 appropriate 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, if turned to due account, they would result in the abrogation 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 inevitable—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 position 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.

Throwing Open of Marriage and of Magistracies—

Military Tribunes with Consular Powers

Nothing shows so clearly the defencelessness of the clan-nobility when opposed to the united plebs, as the fact that the fundamental principle of the exclusive party—the invalidity of marriage between patricians and plebeians—fell at the first blow scarcely four years after the decemviral revolution. In the year 309 it was enacted by the 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 powers[29 - The hypothesis that legally the full -imperium- belonged to the patrician, and only the military -imperium- to the plebeian, consular tribunes, not only provokes various questions to which there is no answer—as 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 -imperium-, that is to say, the right of commanding the burgess in name of the community, 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 -provocatio- 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 idea rose of apportioning special functions to the -magistratus maiores-, this division of powers had more of a practical than of a strictly legal force; the -praetor urbanus- 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 magisterial power, must have virtually pertained to the plebeian consular tribunes as well as to the patrician. But it may well be, as Becker supposes (Handb. ii. 2, 137), that, for the same reasons, for which at a subsequent period there was placed alongside of the consulship common to both orders the praetorship actually reserved for a considerable time for the patricians, even during the consular tribunate the plebeian members of 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.] and 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 command 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 officer,[30 - I. VI. Political Effects of the Servian Military Organization] and in virtue of that principle the supreme magistracy, after having been temporarily opened up to the plebeians in the decemvirate, was now after a more comprehensive fashion rendered equally accessible to all freeborn burgesses. The question naturally occurs, what interest the aristocracy could have—now that it was under the necessity of abandoning its exclusive possession of the supreme magistracy and of yielding in the matter—in refusing to the plebeians the title, and conceding to them the consulate under this singular form?[31 - The defence, that the aristocracy clung to the exclusion of the plebeians 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 ceremony 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 -en masse- at the right time the patriciate. This only may perhaps be alleged by way of excuse for the nobility, that after it had neglected the right moment for this purpose at the abolition of the monarchy, it was no longer in a position subsequently of itself to retrieve the neglect (II. I. The New Community).] 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 officer who had not administered the latter office 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.[32 - 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 affirmed or denied; and as little do we know whether at this epoch there really was any considerable number of patrician families that were not yet curule.] It is as easy to be explained as it is difficult to be vindicated, 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 it, especially such as were hereditary; and therefore, when it was obliged to share the former with the plebeians, it gave to the actual supreme magistrate the legal standing not of the holder of a curule chair, but of a simple staff-officer, whose distinction was one purely personal. Of greater political importance, however, than the refusal of the -ius imaginum- 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 office, and not to the consulate itself.

Opposition of the Patriciate

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 expedients, of chicanery and intrigue; and, far from honourable or politically prudent as such resistance was, it was still in a certain sense fruitful of results. It certainly procured at length for the commons concessions which could not easily have been wrung from the united Roman aristocracy; 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.

Their Expedients

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 aristocracy this mode of conquering an opponent by wearying and annoying him proved by no means the least effective.

Subdivision of the Magistracy—

Censorship

Moreover they broke up the supreme power which had hitherto been undivided, in order to delay their inevitable defeat by multiplying the points to be assailed. Thus 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 (-censores-), nominated by the centuries from among the nobles for a period, at the most, of eighteen months. The new office gradually became the palladium of the aristocratic party, not so much on account of its financial influence as on account of the right annexed to 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.

Quaestorship

But the important change made in the year 333 in respect to the quaestorship amply compensated for this 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 officers 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 candidates 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 of electing and being elected to the military as well as to the urban quaestorship.

Attempts at Counterrevolution

The nobility, in spite of the most obstinate resistance, only sustained loss after loss; and their exasperation increased as their power decreased. Attempts were doubtless 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 (315) sold corn at such prices as to put to shame and annoy the patrician store-president (-praefectus annonae-) 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 Quinctius Cincinnatus, who was eighty years of age, as dictator without appeal, in open violation of the solemnly sworn laws.[33 - II. II. The Valerio-Horatian Laws] 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 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.

Intrigues of the Nobility

Electioneering intrigues and priestly trickery proved in the hands of the nobility more efficient than any other weapons. The extent to which the former must have prevailed is best seen in the fact that in 322 it appeared 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 quaestorship and thenceforward continued to be legally recognized, it was only in 345 that the first plebeian attained the quaestorship; in like manner patricians almost exclusively held the military tribunate with consular 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 superseded 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.

The Suffering Farmers

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-territories, such as those of the domain of Ardea in 312, of 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 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 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 comradeship 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).

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 extending 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 (348-358) and of the burning of 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 contribution, on the state-chest, or in other words, on the 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 officially regarded not as taxes but as advances.

Combination of the Plebian Aristocracy and the Farmers against the Nobility—

Licinio-Sextian Laws

Under such circumstances, when the plebeian aristocracy saw itself practically excluded by the opposition of the nobility and the indifference of the commons from 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 was to be increased to ten (-duoviri-, afterwards -decemviri sacris faciundis-[34 - I. XII. Foreign Worships]); fourthly, as respected the domains, to allow no burgess to maintain upon the common pasture more than a 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 a 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 is 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, it was characteristically conceived, could only be accomplished by the legal exclusion of the nobles from the place of second consul. They were designed, as a consequence, to emancipate the plebeian members of the senate from the subordinate position which they occupied as silent by-sitters,[35 - II. I. Senate,] 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.[36 - II. I. Senate, II. III. Opposition of the Patriciate] They were intended, moreover, to withdraw from the nobles the exclusive possession of spiritual dignities; and in carrying out this purpose for reasons sufficiently 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 a worship that was originally foreign. They were intended, in fine, to procure a share in the common usufructs of burgesses for the poorer commons, alleviation for the suffering debtors, and employment for the day-labourers 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 at length gave its consent and they passed in the year 387.

Political Abolition of the Patriciate