The History of Rome (Mommsen)/Book 2/Chapter 2

by Theodor Mommsen

 

CHAPTER II.

 

THE TRIBUNATE OF THE PLEBS AND THE DECEMVIRATE.

 

Material interests. Under the new organization of the commonwealth the old burgesses had attained by legal means full possession of political power. Governing through the magistracy which had now been reduced to subserve their ends, preponderating in the senate, in sole possession of all high offices and priesthoods, armed with exclusive cognizance of things human and divine and familiar with the whole routine of political procedure, taking the lead in the voting of the great electoral assembly and influential in the commons through the number of devoted adherents attached to the various families, and, lastly, entitled to examine and to reject every decree of the community,—the patricians might long have preserved their practical power, for the very reason that they had at the right time abandoned their claim to be the sole holders of legal authority. It is true that the plebeians could not but be painfully sensible of their political disabilities; but undoubtedly in the first instance the nobility had not much to fear from a purely political opposition, if it understood the art of keeping the multitude, which desired nothing but equitable administration and protection of its material interests, aloof from political strife. In fact, during the first period after the expulsion of the kings, we meet with various measures which were intended, or at any rate seem to have been intended, to gain the favour of the commons for the government of the nobility, especially on economic grounds. The port-dues were reduced; when the price of grain was high large quantities of corn were purchased on account of the state, and the trade in salt was made a state-monopoly, in order to supply the citizens with corn and salt at reasonable prices; lastly, the national festival was prolonged for an additional day. Of the same character was the ordinance which we have already mentioned respecting property-fines (P. 259), which was not merely intended in general to set limits to the dangerous fining-prerogative of the magistrates, but was also especially calculated tor the protection of the man of small means, and that in a significant manner. The magistrate was prohibited from fining the same man on the same day to an extent beyond two sheep and thirty oxen without granting leave to appeal; and the reason of these singular rates can only perhaps be found in the fact, that in the case of the man of small means possessing only some sheep a different maximum appeared necessary from that fixed for the wealthy proprietor of herds of oxen—a considerate regard to the wealth or poverty of the person fined, from which modern legislators might take a lesson.

But these regulations were merely superficial; the main current flowed in the opposite direction. With the change in the constitution there was introduced a comprehensive revolution in the financial and economic relations of Rome. The government of the kings had probably abstained on principle from countenancing the power of capital, and had promoted as far as it could an increase in the number of farms. The new aristocratic government, again, appears to have aimed from the first at the destruction of the middle classes, particularly of the intermediate and smaller holdings of land, and at the development on the one hand of a government of landed and moneyed lords and on the other hand of an agricultural proletariate.

Rising power of the capitalists. The reduction of the port-dues, although upon the whole a popular measure, chiefly benefited the great merchant. But a much greater accession to the power of capital was occasioned by the indirect system of finance-administration. It is difficult to say what were the remote causes that gave rise to it; but, while its origin may probably be referred to the regal period, after the introduction of the consulate the importance of an intervention of private agency must have been greatly increased, partly by the rapid succession of magistrates in Rome, partly by the extension of the financial action of the treasury to such business as the purchase and sale of grain and salt; and thus the foundation must have been laid for that system of farming the finances, the development of which became so momentous and so pernicious for the Roman commonwealth. The state gradually put all its indirect revenues and all its more complicated payments and transactions into the hands of middlemen, who gave or received a stipulated sum, and then farmed the revenue for their own benefit. Of course only considerable capitalists, and, as the state looked strictly to tangible security, in the main only large landholders, could enter into such arrangements: and thus there grew up a class of publicans and contractors, who, in the rapid growth of their opulence, in their power over the state to which they appeared to be servants, and in the preposterous and sterile foundation of their moneyed empire, are completely on a parallel with the speculators on the stock-exchange of the present day.

Public land. The new aspect assumed by the financial administration showed itself first and most palpably in the treatment of the public lands, which almost directly sought to accomplish the material and moral annihilation of the middle classes. The use of the public pasture and of the state-domains generally was from its very nature a privilege of burgesses; beyond doubtit was a contravention of formal law, if the joint-use of the common pasturage was granted to a plebeian. As however, apart from the conversion of the public land into private property by its assignation, the Roman law knew no fixed right on the part of individual burgesses to its use—no right claiming to be equally respected with that of property—it solely depended on the pleasure of the king, so long as the public land remained such, to grant and to define its joint enjoyment; and it is not to be doubted that he frequently made use of this his right, or at least his power, in favour of plebeians. But on the introduction of the republic the principle was again strictly insisted on, that the use of the common pasture belonged in law merely to the burgess optimi juris, or in other words to the patrician; and though the senate still as before allowed exceptions in favour of the wealthy plebeian houses represented in it, the small plebeian landholders and the day-labourers, who were the most in need of the common pasture, had their privilege of joint enjoyment injuriously curtailed. Moreover there had hitherto been paid, in respect of the cattle driven out to graze upon the common pasture, a tax under the name of scriptura, which was moderate enough to make the right of driving out upon that pasture still be regarded as a privilege, and yet yielded no inconsiderable revenue to the public purse. The patrician quæstors were now remiss and indulgent in Levying it, and gradually allowed it to fall into desuetude. Hitherto, particularly when new domains were acquired by conquest, distributions of land were regularly arranged, in which all the poorer burgesses and metœci were provided for; it was only the land which was not suitable for agriculture that was annexed to the common pasture. Such assignations were not wholly given up, and still less were they proposed in favour of the rich; but they became fewer and scantier, and were replaced by the pernicious system of occupation, that is, the cession of domain-lands not in property or under formal lease for a definite term, but in special usufruct, to the first occupant and his heirs-at-law, on such a footing that the state was at any time entitled to resume them, and the occupier had to pay the tenth sheaf or the fifth part of the produce in oil and wine to the exchequer. This was simply the precarium already described (P. 199) applied to the state-domains, and it may have been in use, even in the case of the public land at an earlier period, as a temporary arrangement until its assignation should be carried out. Now, however, not only did this occupation-tenure become permanent, but, as was natural, it was only privileged persons or their favourites who grasped at it, and the tenth and fifth were collected with the same negligence as the grazing-money. A threefold blow was thus struck at the intermediate and smaller landholders: they were deprived of the common usufructs of burgesses; the burden of taxation was increased in consequence of the domain-revenues no longer flowing regularly into the public chest; and those land-distributions were stopped, which had provided a constant outlet for the agricultural proletariate somewhat as a great and well-regulated system of emigration would do at the present day. To those evils was added the farming on a great scale which was probably already beginning to come into vogue, dispossessing the small agrarian clients, and in their stead cultivating the land by rural slaves; a blow which was more difficult to avert and more pernicious than all those political usurpations put together. The burdensome and partly unfortunate wars, and the exorbitant taxes and taskworks to which these gave rise, filled up the measure of their calamities, and generally sufficed either to deprive the possessor directly of his farm and to make him the bondsman, though not the slave, of his creditor-lord, or to reduce him through his encumbrances to the condition of a temporary lessee of his creditor. The capitalists, to whom a new field was here opened of lucrative speculation unattended by trouble or risk, sometimes augmented in this way their landed property; sometimes they left to the farmer, whose person and estate the law of debt placed in their hands, nominal proprietorship and actual possession. The latter course was probably the most common as well as the most pernicious; for while utter ruin might thereby be averted from the individual, this precarious position of the landholder, dependent at all times on the mercy of his creditor—a position in which he knew nothing of property but its burdens—threatened to demoralize and politically to annihilate the whole farmer-class. The intention of the legislator, when instead of mortgaging he prescribed the immediate transfer of the property to the creditor with a view to prevent insolvency and to devolve the burdens of the state on the real holders of the soil (P. 169), was evaded by a rigorous system of personal credit, which might be very suitable for merchants, but ruined the farmers. The free divisibility of the soil had already involved the risk of causing an insolvent agricultural proletariate, and under such circumstances, when all burdens were increasing, and all means of deliverance were foreclosed, distress and despair could not but spread with fearful rapidity among the agricultural middle class.

Relations of the social question to the question between the orders. The distinction between rich and poor, which arose out of these relations, by no means coincided with that between the gentes and the plebeians. If far the greater part of the patricians were wealthy landholders, opulent and consider able families were, of course, not wanting among the plebeians; and as the senate, which even then perhaps consisted in greater part of plebeians, had assumed the superintendence of the finances to the exclusion even of the patrician magistrates, it is easy to see that all those economic advantages, to obtain which the political privileges of the nobility were abused, would go to benefit the wealthy collectively; and the pressure fell the more heavily upon the commons, since those who were the ablest and the most capable of resistance were by their admission to the senate transferred from the class of the oppressed to the ranks of the oppressors.

But this state of things prevented the political position of the aristocracy from being permanently tenable. Had it possessed the self-control to govern justly and to protect the middle class (as individual consuls from its ranks endeavoured, but from the reduced position of the magistracy were unable effectually, to do), it might have long maintained itself in the sole possession of the offices of state. Had it been willing to admit the wealthy and respectable plebeians to full equality of rights, by connecting, perhaps, the acquisition of the patriciate with admission into the senate, both might long have governed and speculated with impunity. But neither of these courses was adopted; the narrowness of mind and short-sightedness of policy, which are the proper and inalienable privileges of all genuine patricianism, were true to their character also in Rome, and tore the powerful commonwealth asunder in useless, aimless, and inglorious strife.

Secession to the Sacred Mount. The immediate crisis however proceeded not from those who resented their disabilities as an order, but from the distress of the farmers. The annals as now arranged, place the political revolution in the year 244 ^[510], the social in the years 259 ^[495] and 260 ^[494]; they certainly appear to have been close upon each other, but the interval was probably longer. The strict enforcement of the law of debt—so runs the story—excited the indignation of the farmers at large. When in the year 259 ^[495] the levy was called forth for a dangerous war, the men bound to serve refused to obey the command; so that the consul Publius Servilius suspended for a time the application of the debtor-laws, and gave orders to liberate the persons already imprisoned for debt, as well as prohibited further incarcerations. The farmers took their places in the ranks and helped to secure the victory. On their return from the field of battle, the peace, which had been achieved by their exertions, brought back their prison and their chains: with merciless rigour the second consul, Appius Claudius, enforced the debtor-laws, and his colleague, to whom his former soldiers appealed for aid, dared not offer opposition. It seemed as if collegiate rule had been introduced not for the protection of the people, but to facilitate breach of faith and despotism; they endured, however, what could not be changed. But when in the following year the war was renewed, the consul's word availed no longer. It was not till Manius Valerius was nominated dictator that the farmers gave way, partly from their awe of the higher magisterial authority, partly from their confidence in his friendly feeling to the popular cause—for the Valerii belonged to one of those ancient and noble gentes by whom government was esteemed a privilege and an honour, not a source of gain. The victory was again with the Roman standards; but when the victors came home and the dictator submitted his proposals of reform to the senate, they were thwarted by its obstinate opposition. The army still stood in its array, as usual, before the gates of the city. When the news arrived, the long impending storm burst forth; the esprit de corps and the compactness of military organization carried even the timid and the indifferent along with the movement. The army abandoned its general and its encampment, and led by the commanders of the legions—the military tribunes who were, at least chiefly, plebeians—marched in martial order into the district of Crustumeria between the Tiber and the Anio, where it occupied a hill and threatened to establish in this, the most fertile part of the Roman territory, a new plebeian city. This secession showed in a palpable manner, even to the most obstinate of the oppressors, that such a civil war must end with economic ruin to themselves also, and the senate gave way. The dictator negotiated an agreement; the citizens returned within the city walls; unity was outwardly restored. The people gave Manius Valerius thenceforth the name of "the great" (Maximus), and called the mount beyond the Anio "the sacred" mount. There was indeed something mighty and elevating in such a revolution, undertaken by the multitude itself without definite guidance under generals whom accident supplied, and accomplished without bloodshed; and with pleasure and pride the citizens recalled its memory. Its consequences were felt for many centuries: it was the origin of the tribunate of the plebs.

Plebeian tribunes, and plebeian ædiles. In addition to temporary enactments, particularly for remedying the most pressing cases of debtors' distress, and for providing for a number of the rural population by the founding of various colonies, the dictator carried in constitutional form a law, which he moreover (doubtless in order to secure amnesty to the burgesses for the breach of their military oath) caused every individual member of the community to swear to, and then had it deposited in a temple under the charge and custody of two magistrates specially appointed from the plebs for the purpose, the two "house-masters" (ædiles). This law placed by the side of the two patrician consuls two plebeian tribunes, whom the curies had to elect. The power of the tribunes was of no avail in opposition to the military imperium, that is, in opposition to the authority of the dictator everywhere, or to that of the consuls beyond the city; but it stood on a footing of equality with the ordinary civil powers of office which the consuls exercised. The arrangement was such, however, that there was no partition of powers between them. The tribunes obtained on the one hand the right to cancel any command issued by a magistrate, by which the burgess whom it affected considered himself aggrieved, through a protest duly and personally tendered; and on the other hand the prerogative of pronouncing criminal sentences without limit and of defending them, if an appeal took place, before the assembled people. To these there was very soon attached the further prerogative of addressing the people in general and of initiating projects of law.

Intercession. The power of the tribunes therefore primarily involved the right of putting a stop at their pleasure to acts of administration and to the execution of the law, of enabling a person bound to military service to withhold himself from the levy with impunity, of preventing or cancelling the arrest of the condemned debtor or his imprisonment during investigation, and other powers of the same sort. That this redress in law might not be frustrated by the absence of a helper, it was further ordained that the tribune should not spend a night out of the city, and that his door must stand open day and night. The tribunes however could not prohibit the judge from pronouncing his sentence, the senate from adopting its decree, or the centuries from giving their votes.

Jurisdiction. In virtue of their judicial office they could by their messengers summon before them any burgess (even the consul in office), have him seized if he should refuse to come, imprison him during investigation or allow him to find bail, and then adjudge him to death or to a fine. For this purpose the two plebeian ædiles, who were appointed at the same time, were attached to the tribunes as their attendants and assistants, and so were also the "ten men for judicial procedure" (judices decemviri, afterwards decemviri litibus judicandis). The jurisdiction of the latter is not known; the ædiles had judicial powers like the tribunes, but principally in minor causes that might be settled by fines. As the tribunes had not the military imperium, without which the centuries could not be convoked, and as it appeared absolutely necessary to render the former, when in consequence of an appeal being entered they had to defend their judgment before the people, independent of the patrician magistrates, a new mode of voting was introduced on their account, viz., by tribes or wards. The four former wards, which embraced town and country, were not suitable for this purpose, because they were too large and their number was even. Accordingly the territory was divided in 259 ^[495] into twenty-one new districts, the first four of which were the ancient wards now restricted to the city and its immediate environs; sixteen others were formed from the rural territory on the basis of the clan-districts of the earliest Roman domain (P. 38), and the last, the Crustuminian, derived its name from the place whither the plebeians had retired. The voters in the centuries and the tribes were substantially the same—the collective body of freeholders; but the distinction between large and small holdings of land, as well as the right of precedence in voting that belonged to the nobility, were ignored in the latter, and the presidency of the tribunes gave to that assembly still more decidedly an oppositional character.

This new jurisdiction of the tribunes and ædiles, and the appellate decisions of the comitia tributa thence arising, were meant beyond doubt to be as much governed by the laws as the jurisdiction of the consuls and quæstors and the judgments of the centuries on appeal. The legal conceptions however of crimes against the community (P. 158), and of offences against order (P. 159), were themselves so little fixed, and their statutory definition 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 at this epoch, when the very idea of right had become obscured amidst the struggles of the orders, and when the recognized party leaders on both sides were furnished with co-ordinate jurisdiction, that jurisdiction must have more and more approximated to the character of mere arbitrary police. It struck more especially at the magistrate. By right the magistrate, according to Roman state-law, so long as he was in office, was amenable to no jurisdiction at all, and even after demitting his office he was not responsible for acts performed in his character and within his province as a magistrate; even on introduction of the provocatio there had been no attempt to depart from these principles (P. 260). But now the tribunician power became practically a control exercised over every magistrate, sometimes immediately, sometimes in the sequel, and a control the more oppressive that neither the crime nor its punishment was formally constituted by law. In fact, by means of the co-ordinate jurisdiction of the tribunes and consuls, the estates, limbs, and lives of the burgesses were left to be dealt with at the pleasure or caprice of party-assemblies.

Legislation. With this parallel jurisdiction there was further associated a parallelism in the right of initiating legislation. As the tribunes had to address the people in defending their sentences in cases of penal procedure, it was natural that they should come to hold assemblies of the people for other purposes also, and that they should address such assemblies or allow others to address them—a right that was specially guaranteed by the Icilian law (262 ^[492]), which threatened 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 proposals as well as on the confirmation of his sentences. Such "resolves of the multitude" (plebi scita) were not indeed strictly valid decrees of the people; on the contrary they were at first little more than resolutions, such as are adopted at our modern popular meetings; but as the distinction between the comitia centuriata and the comitia tributa was of a formal nature rather than aught else, the validity of these autonomic determinations of the community was at once asserted, at least on the part of the plebeians, and the Icilian law for instance was immediately carried in this way.

Thus were the tribunes of the people appointed as a shield and protection for individuals, and as leaders and managers for the collective body, provided with unlimited judicial power in criminal proceedings that in this way they might add emphasis to their commands, and lastly even pronounced to be in their persons inviolable (sacrosancti). The people man by man swore for themselves and their children to defend the tribunes; and whoever laid hands upon them was regarded not merely as forfeited to the vengeance of the gods, but also as outlawed and proscribed among men.

The tribunes of the multitude (tribuni plebis) originated Relation of the tribune to the consul. from the military tribunes, and derived from them their name; but constitutionally they had no further relation to them. On the contrary, in respect of powers the tribunes of the plebs stood upon a level with the consuls. The appeal from the consul to the tribune, and the tribune's right of intercession in opposition to the consul, were 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 in a collision between two equal authorities he who forbids takes precedence of him who enjoins. Moreover the original number (which indeed was soon augmented), the annual duration of the magistracy, which in the case of the tribunes changed its occupants on the 10th of December, and their irremoveable tenure of office, were common to the tribunes and the consuls. They shared also the peculiar collegiate arrangement, which placed the full powers of the magistracy 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 made the Nay take precedence of the Yea; for which reason, when a tribune forbade, the veto of the individual was sufficient 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 parallel criminal jurisdiction; and in its exercise, as the two quæstors were attached to the former, the two ædiles were associated with the latter.^[1] The consuls were necessarily patricians, the tribunes necessarily plebeians; both were elected by the whole burgesses, but the former as leaders of the army were chosen by the centuries, the latter, who had not the imperium, by the non-military comitia curiata. The former had the ampler power, the latter the more unlimited, for the consul submitted to the prohibition and the judgment of the tribune, 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 it. The power of the consuls was essentially positive, that of the tribunes essentially negative. Therefore the consuls alone were magistrates, that is, commanders, and they alone appeared in public with the apparel and retinue pertaining to state-officials; the tribune was not a magistrate, and in token thereof he sat on a stool instead of a "chariot seat," and he wanted the official attendants, the purple border, and generally all the insignia of magistracy: even in the senate the tribune had neither seat nor vote. Thus, in this remarkable institution, absolute prohibition was in the most stern and abrupt fashion opposed to absolute command; the quarrel was adjusted, forsooth, by the legal recognition and organization of discord between rich and poor.

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 an official control 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 to be admitted 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 insure to the commons equitable administration of law, and to promote a more proper 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 put a stop to 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 correct; as is shown by the circumstance that the Italian states remained as regularly free from tyrants as the Hellenic states regularly witnessed their rise. The reason lies simply in the fact that tyranny is everywhere the result of universal suffrage, and that the Italians excluded the citizens 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 its emergence was associated with this very tribunician office. 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; annihilation of the tribunate on the other. Legal impunity secured for insubordination, refusal to enter 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—weapons which the patricians met by violence, by concert with the public foes, occasionally also by the the assassin. Hand-to-hand conflicts took place 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. We have an evidence of the strong civic spirit of the people in the fact, not that it embraced such a constitution, but that it 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 Gaius Marcius, a brave aristocrat, who derived his surname from the storming of Corioli. Indignant at the refusal of the centuries to intrust to him the consulate in the year 263 ^[491], 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 abandon 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, only however 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 naïve 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 ^[460]; they summoned the slaves to arms, and it was only after a violent conflict, and by the aid of the Tusculans who had hastened to its 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 narrations; such as the ascendancy of the Fabian gens which furnished one of the two consuls from 269 ^[485] to 275 ^[479], and the reaction against it—the emigration of the Fabii from Home, and their annihilation by the Etruscans on the Cremera (277 ^[477]). It was perhaps in connection with this quarrel, that the right hitherto belonging to the magistrate of proposing his successor was withdrawn, at least as regarded the one consul (about 273 ^[481]). Still more odious was the murder of the tribune of the people, Gnæus Genucius, who had ventured to call two consulars to account for their administration, and who on the morning of the day fixed for the impeachment was found dead in his bed (281 ^[473]). The immediate effect of this was the Publilian law (283 ^[471]), which was carried indeed only as a plebiscitum, but which the aristocracy did not venture to dispute. Whether it was this law that first increased the number of the tribunes from two to five, or whether that increase had already taken place before it passed, cannot be ascertained. At any rate it transferred the election of the tribunes from the curies to the tribes; and the circumstance that the same assembly, which the tribunes were entitled to convoke, was vested with the right of electing them, brought to them a further accession of power.

Agrarian law of Spurius Cassius. More important in its consequences, and more sagacious in plan, than all these party manœuvres 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 ^[486]), he submitted to the comitia 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 his measures, might carry them even through 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 dissatisfied because Spurius Cassius desired, in accordance with federal rights and equity, to give to the Latin confederates their share in this assignation. Cassius had to die. There was some truth in the charge that he had usurped regal power, for he had 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, till the conflicts to which it led destroyed the commonwealth.

Decemvirs. A further attempt was made to get rid of the tribunician power by securing to the commons equality of rights in a more regular and more effectual way. The tribune of the people, Gaius Terentilius Arsa, proposed a commission of five men to prepare a code of public laws by which the consuls should in future be bound in exercising their judicial powers. Tenyears elapsed ere this proposal was carried into effect—years of vehement strife between the orders, and agitated by wars without as well as by troubles within. With equal obstinacy,the governing party obstructed the passing of the law, and the commons nominated again and again the same men as tribunes. Attempts were made to evade the attack by other concessions. In the year 297 ^[457] an increase of the tribunes from five 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 commons, the Aventine, which had hitherto been a temple-grove and uninhabited, was distributed among the poorer burgesses for building-sites in heritable occupancy. The commons took what was offered to them, but never ceased to insist on their demand for a legal code. At length, in the year 300, a compromise was effected; the preparation of a legal code was resolved upon, and as a preliminary step an embassy was despatched to Greece to bring home the laws of Solon and other Greek codes. On its return there were elected from the nobility,^[2] for the year 303 ^[451], "ten men for drawing up a code of law," who at the same time acted as supreme magistrates in room of the consuls (decemviri consulari imperio legibus scribundis); the tribunate of the people and the right of appeal were suspended, and the decemvirs were simply bound not to infringe the sworn liberties of the commons.

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 that the perpetuation of anarchy, while it ruined the commonwealth, could in reality benefit no one. Sensible people 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 commons 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 thus there appears to have been yielding on both sides. It is not clear (and perhaps no definite arrangement was entered into on the point) what was to be done after the preparation of the code was completed; but the intention probably was, that the decemvirs should on their retiring propose to the people to abandon the tribunician power and to leave themselves in the hands of the consuls, whose sentences would no longer rest upon their arbitrary pleasure, but on the written law.

Legislation of the Twelve Tables. The plan, judged thus rightly, 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 ^[451] 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 ^[450], who added two more tables. Thus originated the first and only legal code of Rome, the law of the Twelve Tables. It proceeded from a compromise between parties, and for that very reason could not well include any changes of the existing law more comprehensive than mere regulations of police or enactments adapted to existing circumstances. 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 distinction between freeholders and non-freeholders, 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 the right of appeal to the comitia tributa in capital causes, while the privilege of appeal to the centuries was guaranteed; which only admits of explanation on the hypothesis, that it was intended to abolish the tribunician powers and by consequence the tribunician criminal procedure also (P. 281). The real political significance of the measure resided less in the contents of its legislation than in the formal obligation now laid upon the consuls to administer justice according to its forms of procedure and its rules of law, and in the public exhibition of the book of the law, 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 laws of the city were thus completed. It only remained for the decemvirs to publish the two last tables, and then to give place to the ordinary magistracy. But they delayed to do so: under the pretext that the laws were not ready, they themselves prolonged their magistracy after expiry of their official year—a step quite possible under Roman constitutional law, since even a magistrate appointed for a term only ceased to be magistrate by formally demoting his office. What the motive for this course was, it is difficult to say;^[3] but it would seem not to have been on personal grounds merely that the decemvirs were induced to perpetrate this breach of the law. In all probability the aristocratic party were apprehensive that when the consuls were restored the renewal of the tribunician college also would be demanded, and waited at least for a favourable moment to revive the consulate without the limitations of the Valerian laws. 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, a passionate champion of the strict aristocratic party, gained over the greater portion of the senators, 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. But now a 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 a process as to the freedom of the daughter of the centurion Lucius Virginius, the bride of the former tribune 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 the 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 unheard-of deed surrounded the dead body of the fair maiden, the decemvir commanded his lictors to bring the father and also 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 now was 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 vacillated in Home, 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 discern the perilous chasm which the withdrawal of tribunician protection had left in the security of law; and what the fathers had done their sons repeated. Once more the armies abandoned their leaders: they marched in war-like order through the city, and proceeded once more to the Sacred Mount, where they again nominated their own tribunes. Still the decemvirs refused to resign their power; and the army appeared with its tribunes in the city, and encamped on the Aventine. Then 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 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.

Restoration of the tribunate. So runs the story, which as usual depicts the occasions, while it leaves unnoticed the causes, of events. It can hardly have been the mere individual atrocities of particular decemvirs that provoked the renewal of the tribunician power. By the suppression of that power the plebeians were deprived of the only political position accessible to them; it is conceivable that their leaders never meant perhaps really to abandon it, and that they would at least embrace the first opportunity to show to the people that the dead letter of the law was by no means to be compared with the tribune's arm. The arrogance of the aristocracy, which had perversely selected its most zealous champions as decemvirs, met them half way; and thus the folly of the rival parties tore the plan of union asunder like a gossamer web.

The new compromise naturally proved very favourable to the plebeians, and imposed severely felt restrictions on the powers of the nobility. The code of law wrung from the aristocracy, the two last tables of which were published as a supplement, was, as a matter of course, adhered to and enforced, and the consuls were obliged to judge accordingly. Under that arrangement indeed the tribes lost jurisdiction in capital causes; but as an ample compensation for that loss, it was enacted that in future every magistrate (and therefore the dictator among the rest) should be bound at his nomination to allow the right of appeal: if any one should nominate a magistrate on other terms, he 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 tribunes retained, in the right absolutely to pronounce sentences of money-fines and to submit their sentences to the comitia tributa, a sufficient means of driving an opponent out of the pale of the commonwealth. A new feature was the conceding to the tribunes and their comitia an influence over administration and finance. The administration of the military chest was withdrawn from the consuls and committed to two paymasters (quæstores), who were nominated for the first time in 307 ^[447] by the tribunes in their comitia, but from the ranks of the aristocracy. These quæstorial elections were the first plebiscita which had undisputed force of law, and on that account, accordingly, the right of taking the auspices was granted to the tribunes. A concession of still greater consequence was the granting to the tribunes a deliberative voice in 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. But the tribunes could not be prevented from now opposing any decree of the senate that displeased them; and the new principle became established, although only gradually, that any resolution of the senate or of the public assembly might be arrested by the intercession of a tribune. Lastly, to secure the decrees of the senate from being tampered with or forged, it was enacted that in future they should be deposited, not merely under charge of the patrician quæstores urbani in the temple of Saturn, but also under the charge of the plebeian ædiles in the temple of Ceres. Thus the struggle, which was begun in order to get rid of the tribunician power, terminated in the definitive completion of its title 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 personal safety of the tribunes, and the uninterrupted maintenance of the college at its full number, were secured by the most sacred oaths and by every element of reverence that religion could present. No attempt to abolish this magistracy was ever from this time forward made in Rome.

 

1. That the plebeian ædiles were formed after the model of the patrician quæstors in the same way as the plebeian tribunes after the model of the patrician consuls is 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 ædiles what the temple of Saturn was to the quæstors, and from the former they derived their name. Significant in this respect is the enactment of the law of 305 ^[449] (Liv. iii. 55), that the decrees of the senate should be delivered over to the ædiles there, whereas, as is well known, according to the ancient (and after the settlement of the struggles between the orders the exclusively retained) practice, those decrees were committed to the quæstors for preservation in the temple of Saturn. That the plebs also for a time had a chest of its own, and that the ædiles managed it, is possible, and, from the way in which the latter dealt with the multæ paid to them, even probable; but it cannot be certainly proved.
2. It is to be observed, however, that the decemvirate consulari potestate, like the kindred military tribunate consulari potestate, was in all probability legally open both to patricians and plebeians. That it was so is not only indicated by the demand of the tribunes (Liv. in. 31): communiter legum latores et ex plebe et ex patribus crearent, and by the remark (iii. 32): admiscerenturne plebei, controversia aliquamdiu fuit, but is very decisively proved in the case of the second decemviral college by the names of the five last decemvirs, who unquestionably belonged to plebeian gentes. Livy is decidedly wrong in saying (iv. 3, 17) that the decemvirs were omnes ex patribus.
3. The representation that we have given in the text is based upon the view taken by the ancient authorities; but there must in all probability have been another view which represented Appius Claudius as leaning upon the support of the plebs, and attempting with their help to acquire monarchical power. If one half of the second decemviral college consisted of plebeians (and there are few facts connected with this epoch so well accredited as this is), and the plebs had thus for the first time attained possession of the powers of the supreme magistracy, that very circumstance alone sufficiently shows that the decemvirate had ceased to be an instrument of the ruling aristocracy. This view is confirmed by what Livy relates regarding the canvassing of Appius Claudius for the second decemvirate (iii. 35): ipse medius inter tribunicios Duellios Iciliosque in foro volitare, per illos se plebei venditare, and by the censure of the two tables issued by the second set of decemvirs as "unjust laws (iniquarum legum, Cic. de Rep. ii. 37), which in the mouth of Cicero simply means "anti-conservative." The publication of the calendar, which was prescribed by one of these tables, certainly presents this character (see my Röm. Chronol. p. 39). Lastly, on this hypothesis the facts present a better concatenation of cause and effect; for in that case it was not the plebs alone, but also and indeed still more the nobility, that rose in rebellion against the new Tarquinius, and after the two in conceit had overthrown him, the plebs once more claimed their tribunate, and the nobility their consulate. As, however, no connected and well-accredited narrative of this incident can be given, it seemed inexpedient to deviate from the common view, by representing Appius in the character not of a bulwark of the aristocratic party but of a precursor of Cæsar.