CHAPTER XIV

THE EARLY REPUBLIC

I.

THE SUCCESSORS OF THE KINGS

THE fall of monarchy at Rome is the subject of a famous legend, the details of which this is not the place to discuss, especially since that part of the narrative which concerns the family of the Tarquins conforms to a type which belongs to poetry rather than history. Setting this aside, we find three names associated with the establishment of free institutions in Rome. The first is L. Junius Brutus, whose gentile name was borne in later times by a plebeian family claiming descent from him. He was, according to one version, tribunus celerum, according to another, praefectus urbi, i.e. a deputy left in charge of the city during the absence of Tarquinius Superbus on an expedition against Ardea. The second is P. Valerius, surnamed Publicola on account of the services rendered by him to the cause of popular liberty, a member of one of the most distinguished patrician houses of the Republic, whose story no doubt lost nothing in its telling by the annalist Valerius Antias. The third is M. Horatius Pulvillus, who plays a more modest but probably a more historical part as the dedicator of the temple of Jupiter Capitolinus, which had been built with forced labour by the command of the second Tarquin. Polybius dates the first treaty between Rome and Carthage ‘in the consulship of Brutus and Horatius,* which is evidence for their appearance at the head of the list of supreme magistrates as known to him. In the final form of the legend, however, room had to be found for the other actors, and so we have, as consuls in the Year One of the Republic, first, Brutus and Collatinus, then, on the enforced retirement of the latter, Valerius Publicola, who becomes sole consul when Brutus has been slain in war and passes the laws which guarantee the liberties of the citizen, and is then joined in his office (according to some) by Sp. Lucretius, the father of the heroine of the tragedy of the Rape, and after his death by Horatius, for whom, as we have suggested, a place had to be found on account of his recorded connection with the Capitoline temple.

Whatever view may be taken of the origins of the legend or of the reasons for the introduction of particular names, there can be no question that to the Roman historians it was an accepted fact that upon the abolition of the monarchy a dual magistracy, invested with supreme executive authority, or imperium, was called into being. To this magistracy the name of consul is given both in our narrative sources and in the Fasti; and it is assumed that throughout Republican history two consules were annually appointed, save in the exceptional case of the Decemvirate, created for the purpose of codifying the law, and in the period when (for reasons to be discussed later) the ‘consular power’ was bestowed by a fiction upon a variable number of tribuni militum. From time to time, however, the authority of the consules was overridden by an emergency officer with almost unlimited power under the name of dictator—a practice dating from the very first decade of Republican government. The declaration of a state of emergency was the act of the people; the dictator himself was nominated by the consul1. The first appointment of a dictator was made, according to tradition, either in 501 BC (Livy) or 498 BC (Dionysius), i.e. within about ten years from the expulsion of the Tarquins; but Livy himself admits that there was no certainty regarding either the date or the name of the first dictator; and we may add that many of the early dictatorships recorded in the Fasti or annales are suspect on various grounds.

This traditional version of the origins of the supreme magistracies of the Republic has been criticized by recent writers. De Sanctis2 put forward the theory that the decline of monarchy at Rome was gradual and followed a course somewhat similar to that of the constitutional development of Athens. The priest-king of the Republic, he argued, laying stress on the fact that in official documents such as the Calendar he bears the title rex without qualification, resembles the Athenian and is the direct successor, with limited functions, of the early kings. Beside him, he thinks, the Romans set up annual magistrates, whose function, like that of the Athenian polemarch., was primarily command in war, and this was expressed by the title praetor (‘leader’). There is evidence that this was the original style of the chief magistrate at Rome. In describing the constitutional settlement of 449 BC Livy, in the course of a juristic argument to which we shall return later, states that ‘at that time the judge was not yet called consul, but praetor’; while Zonaras, in his abridgment of Dio Cassius, tells us that the title of consul was used for the first time at that date. This suggests that the term consul was not to be found in the Twelve Tables; it does not occur in the extant fragments, and the title praetor is a likely, though not a certain, restoration in a provision relating to certain claims (vindiciae). Festus (i.e. Verrius Flaccus) expressly says, ‘initio praetores erant qui nunc consules,’ and his explanation of the phrase maximus praetor may be taken to mean that the augural college distinguished consuls and praetors as praetores maiores and minores. Varro  compromises by the statement that ‘ idem dicebantur consules et praetores, quod praeirent populo praetores, quod consulerent senatui consules.’ The Greeks invariably translated praetor by stratigos (which disposes of the theory that the praetor was a judge who ‘went first,’ i.e. dictated formulae  to suitors) and consul at first  by stratigos  ipatos, which has a close, but probably accidental, resemblance to praetor maximus. Finally, the Roman governor who left the city for his province was saluted as praetor ‘at the gate,’ a practice which Festus traces back to the time when Rome and the Latin league supplied commanders to the federal forces in alternate years. On the other hand, the title consul is implied in the consularis potestas conferred on the Decemvirs in 451 BC and military tribunes from 444 BC onwards, and it appeared on the cuirass dedicated by A. Cornelius Cossus , if we accept that document as genuine. The earliest extant inscription in which the word occurs is the epitaph of L. Cornelius Scipio Barbatus (consul 298 BC); and the title was used for the chief magistrate in the colonies of Ariminum and Beneventum, founded in 268 BC.

Those who reject the belief of the Romans that a dual magistracy with coordinate authority was set up on the fall of the monarchy propose various reconstructions of the course of constitutional development. De Sanctis, as we have seen, holds that the powers of the rex were limited by the creation of praetores, and that the functions of these officers were gradually specialized and a gradation of rank established. The praetor set up, according to tradition in 366 BC, to administer justice was in his view one of these magistrates, and the creation of a new officer in that year was wrongly inferred from the fact that the names of such magistrates began to be recorded at that time. This theory of course entails the rejection of the tradition which makes the LicinioSextian laws of 367 BC, leading to the creation of this praetorship, a landmark in the ‘struggle of the orders’; and if our records of that settlement are unworthy of all credence, our reconstruction of the earlier history becomes little else than guess-work.

Others have approached the question from a different angle—that of the comparative study of Italic and Etruscan institutions. To begin with the latter, it seems clear that in Etruria each town was governed by a single chief magistrate with the title of zilax, next in authority to whom was the marunux. The league of twelve cities had a zilath at its head, as well as a marunux. The Latin renderings of these titles are to be noted. At Caere the zilax becomes a dictator, but the federal officer is known in later times as praetor Etruriae. The federal marunux at the same date has become aedilis Etruriae. When we turn to the Latin cities, we find that in some, such as Aricia, Lanuvium and Nomentum, the title of the chief magistrate is dictator, and we may recall the federal dictator Latinus, who, according to Cato, dedicated the grove of Diana at Aricia. Other communities, however, such as the Laurentes Lavinates and Praeneste, were governed by praetores, and the tradition represented by Livy and Dionysius speaks of federal praetores, of whom, according to the former, there were two when the League embarked on its last revolt against Roman supremacy. It may be noted that whereas the annalists speak of a dictator as the successor of the kings of Alba, and a dictator Albanus survived in historical times with priestly functions, Cato in his Origines) mentions a praetor Albanus.

These facts cannot be said to furnish conclusive proof of any theory concerning Roman constitutional development. It may be thought probable that dictator was the recognized title among the Latin peoples for a single supreme magistrate, and that praetor connoted collegial authority; but we cannot safely proceed further to infer, either that the institution of the dictatorship was copied from Etruria, or that it always preceded the praetorship, especially in Rome itself, as some recent writers have held, or again that where we find it in Latium it betrays Roman influence. Nor are we much helped by a consideration of the political institutions 01 other Italic stocks. The Oscan title for the chief magistrate is meddix, and where more than one meddix is found, there seems to be good reason for thinking that the senior (meddix tuticus or ‘magistrate of the community’) enjoyed higher authority; but here again it is not legitimate to argue Etruscan influence. Among the Umbrians the title maro is clearly derived from the Etruscan marunux, yet (if we may judge from the case of Asisium) the magistracy was collegial.

Much has been made of the fact that in some communities we find a college of three aediles. This is so at Tusculum, at three towns which were under Volscian rule before coming under the power of Rome—Fundi, Formiae and Arpinum—and in the Latin colony of Ariminum. The title is clearly Latin, and it is natural to regard it as borrowed from Rome1; but the triple magistracy may be older than the title, and as we find it in pagi as well as in cities, it is suggested that it was a widespread ‘ Italic’ institution. This rests on very slender evidence. We shall presently consider the institution of aediles in Rome, where, as will be seen, they form no part of the patrician constitution.

There is good evidence that the original title of the dictator at Rome was magister populi—‘master of the people’. The term is found in Varro and Festus, and Cicero expressly states that he was so designated in the books of the augurs, from which no doubt the rule ‘consul oriens magistrum populi dicat’ was taken; and throughout Roman history he appointed as his lieutenant and, in his absence, vice-gerent a magister equitum or ‘master of horse.’ This official has been compared with the praetor iuventutis found in certain ‘Latin’ colonies where the chief magistrate appears to have been a dictator, and it is suggested that the earliest form of the Republican constitution may have been based on the authority of the magister populi and his subordinate, the magister equitum, as annual magistrates. This, of course, involves the total rejection of the traditional history with its unbroken series of consuls following on the abolition of the monarchy, and, as a logical consequence, the supposition that the consuls of the early Fasti—possibly down to the time of the Decemvirate—are in reality dictators, with whom the compiler coupled such names of magistri equitum as he could recover from family traditions. This would no doubt make it easy to account for the interpolation of plebeian names in the earlier portion of the list, and also (as Beloch has pointed out) for the curious fact that no two of the first decemvirs belong to the same year in the Fasti. It may further be conceded that grave suspicion attaches to the names of the dictators recorded by tradition as holding office in the fifth century; and it is remarkable that T. Larcius (or Largius), whom most authorities regarded as the first dictator, is represented as actually consul when appointed, whether in 501 or 498 BC. Livy, however, says that there was no agreement as to the date of the first dictatorship, and we may well doubt whether the Romans preserved more than the bare memory that the bearer of an unusual name, which disappears from the Fasti in the early days of the Republic, was the first dictator.

Had the dictatorship been the chief annual magistracy of early Rome, it is hard to believe that no trace of any tradition to this effect would have survived; and the procedure of appointment, the limited (six-monthly) tenure of the office, and its use for the performance of special functions—as for example the driving of the nail in the Capitoline temple, the holding of elections, and the celebration of feriae,—all of which go back to the fourth century, are all consistent with the view that it was from the first an extraordinary magistracy. That it belongs to the early days of the Republic may be inferred from its archaic features—the nomination by the consul at dead of night and the fact that the dictator was forbidden to mount a horse.

The attempts of modern scholars to reconstruct the primitive constitution of the Republic on lines inconsistent with the tradition are thus unconvincing; and without committing ourselves to any details of the record (most of which are obviously legendary), we may take the dual magistracy as it certainly existed in the latter part of the fifth century as our starting-point, and consider its main characteristics. In so doing we must remember that the formulation of constitutional doctrines was the work of much later times, when the jurists sought to make explicit the ideas inherent in the institutions under which they lived; at the same time, their grasp of essentials was firm, and the Roman had a natural gift for basing government on simple principles judiciously applied to circumstances.

II.

THE POWERS OF THE MAGISTRATES

The first feature which claims attention is the concept of imperium, or executive authority, which to the Roman always and before all things meant command in war, actual or potential. If he wished to speak of ‘authority’ in general, he used the word potestas, and this was applied to such magistracies as were created for the performance of specific functions when these became differentiated; and so we find that Festus is careful to distinguish those who are cum imperio, i.e. on whom the people has conferred the imperium by name, from others who are cum potestate because the people has placed them in charge of ‘a piece of business’ (negotium). The imperium, which, it will be remembered, was conferred by a special vote of the assembly of curiae, belonged to all praetores (a college gradually enlarged in number, the two senior members of which were the consuls), to those who temporarily filled the place of the praetores (viz. the dictator and his master of horse and the interred and to the bodies set up when the supreme magistracy was put in commission, such as the Decemvirs and the colleges of tribuni militum consulari potestate of which we shall speak later1. It was not enjoyed by the censors, aediles or other officials with administrative functions, although, for example, Livy, who was loose in his use of constitutional terms, ascribes it to Commissioners entrusted with the establishment of colonies. On the other hand, by means of the fictions of which the Romans learned to make such effective use, it was conferred upon magistrates whose term of office had expired, and ultimately even on persons who had held none of the qualifying offices, in order to furnish military governors for the overseas territories under Roman sway.

As originally conceived, the imperium, though essentially military, carrying with it as it did the supreme command of a nation in arms which was engaged in a constant struggle for existence, was not specialized in function. The holder was empowered to act for the state in every branch of its life. In peace as well as in war he could ‘coerce’ the private citizen. He was the supreme judge in matters civil and criminal, and the development of law consisted in the gradual circumscription of his originally unlimited power. With the aid of his subordinates, he supplied the modest needs of a primitive community for financial and general administration, and was responsible for the census mentioned above together with the registration of the citizens’ property which it entailed.

These tremendous powers, for the wielders of which Cicero, in his ideal Constitutional Statute already quoted, lays down the famous rule Salus populi suprema lex esto, were subject to limitations definitely understood. In the first place, they were conferred by the people for a limited time. For the ordinary magistracies of state this was one year, a rule which was never broken, though the extension of tenure by the fiction of prorogatio, as will be seen, removed the limit as regards command in the field, which might be prolonged ‘for the duration’ of a war, and came in time to be the normal method of filling provincial governorships, while in the decline of the Republic it furnished great military leaders with a basis for almost monarchical power. If the historians are to be trusted, centuries passed before the year of office was made to coincide with that of the calendar: Livy mentions August 1, May 15 and December 13 as the days on which, at various periods, the chief magistrates entered upon office, not to speak of special dates adopted by resolution of the people or brought about by a series of interregna. For the extraordinary office of dictator the term was fixed at six months; and the censors, for reasons of administrative convenience, were allowed eighteen months to complete their task. They, however, did not possess imperium. No steps were at first taken to prohibit re-election to the annual magistracies; but we shall see that in course of time measures were carried to prevent individuals from acquiring undue influence by continuous or frequently repeated tenure of the imperium.

Secondly, the power of the magistrate was limited by the fact that the imperium was held in its plenitude by all upon whom it was conferred in the same grade., i.e. in the early period by both consuls, and later by those praetores who were added to the supreme college. This principle of ‘collegiality’ was a characteristically Roman conception, and its operation was extended to other offices beside those which carried with them the imperium. The conception of a board taking its decisions by a majority vote was foreign to the Romans, though in later times we hear of discussions by the priestly colleges and the ten tribunes leading to joint action; and on the other hand, the powers of the magistrate could be exercised without restraint when a vacancy left him without a colleague. The effect of the doctrine of collegiality was that every magistrate could nullify the act of a colleague by the exercise of his coordinate authority—par maiorve potestas is the phrase used by Cicero; and the tribunes of the plebs, though not magistrates, were by analogy invested with the power of creating a deadlock. It speaks volumes for the political sense of the Romans that the possession of the veto by so many officers of state did not lead to the breakdown of orderly government.

In the third place, the relation of magistrate and people subjected both parties to certain limitations. The sovereignty of the populus was a cardinal principle of the Roman constitution, and no fiction of democratic politicians. All authority exercised by magistrates or commissioners had its source, as Cicero says, in the will of the whole people; and we saw how the imperium of the kings themselves was conferred by a ‘law of the curiae’.  It is, however, unlikely that in the early days of the free state the people claimed or exercised the right to withdraw the authority which they had granted during the holder’s term of office, in spite of the legendary deposition of Collatinus by Junius Brutus in the first year of the Republic. It was left for the revolutionaries of the last century of freedom to ‘abrogate’ the imperium of the magistrate. Moreover, though the populus Romanus Quiritium was a sovereign whose will and command were absolute, the expression of that will and command could only be elicited by the convener of the ordered assembly. The genius of the Romans for Law was shown not only in their grasp of Principles but also in their sense of the importance of Forms. It is worth while to quote two striking passages relating to the expression of the people’s will. Livy relates that the consuls of 186 BC, in addressing a gathering of the people on the ‘Bacchanalian conspiracy,’ said:

“It was the will of our ancestors that even you should not come together casually or heedlessly, unless either the flag had been raised on the citadel and the army had been called out for the purpose of an Assembly (comitia), or the tribunes had issued notice of Meeting (concilium) to the plebs1 or one of the magistrates had summoned you to a Gathering (contio,); and wheresoever a multitude was, there they held that that multitude should have a lawful controller.”

Cicero, in his speech for Flaccus, puts the conditions more precisely:

“Those wise and reverend ancestors of ours refused to allow a Gathering (contio) to have any force; as for the Resolutions of the plebs or the Commands of the people, it was their pleasure that only when the Gathering had been dissolved and its parts distributed in tribes and centuries and marshalled according to ranks, classes and ages, when many days’ notice of the matter had been given and it had been made fully known—then Commands and Prohibitions should be uttered.”

It is to be observed that both historian and orator appeal to the wisdom of the ancestors as the ground of the constitutional forms. The mos maiorum in the last resort, is the Law of the Constitution: and a study of the references to it in Latin literature would show that when Cicero wrote in the de legibus of the Custom of the Ancestors ‘which then [i.e. in early days] had the force of Law,’ he was making a statement capable of a much wider application. The attempt to treat custom and precedent as the sources of binding law may land us in some awkward dilemmas (especially if we are inquisitive as to origins), but this does not alter the fact that a people with a natural gift for orderly government can make them play a part for which written statutes are unfitted.

Custom, then, prescribed that the magistrate who convened an assembly, and he only, should put the vital question, ‘ Is it your will and command, Quirites ? ’ and if the response was ‘ Be it as you ask’ the result was a Lex in the Austinian sense of Law as the command of a Sovereign. Thus the ‘right to transact business with the people’ was one of the most important privileges of the magistrate, who had the framing of all questions and whose initiative could neither be forced nor challenged.

III.

CRIMINAL JURISDICTION: THE RIGHT OF APPEAL

There was, however, one sphere in which the sovereignty of the populus exercised in the manner described, impinged on the imperium. This was in the matter of the punishment of crime. In his first book Livy tells the tale of Horatius, sole survivor of the fight with the Curiatii, who slew his sister on his return from battle and was haled before the king. Tullus thereupon said:

“I appoint two men to pass sentence of perduellio on Horatius according to Law.” He then issued his instructions. “Let the two pass sentence of perduellio. If he appeals from the two, let him contend by appeal; if they win, let one cover his head and hang him with a rope on a barren tree; let him scourge him within or without the pomerium.”

The legend is an expression of the principles of Roman criminal jurisdiction in the form of an archetypal case. These principles are that for a crime against the state sentence is passed, not by the chief magistrate, but by delegates appointed by him, and that by the use of the word ‘ provoco ’ the citizen may lodge an appeal to the sovereign populus, which not only ensures a stay of execution, but converts the judge into a party.

The term perduellio is badly chosen in this instance, for Horatius’ crime is hardly a case of constructive treason. It should properly be called parricidium—a term which, from denoting the murder of a kinsman, soon came to signify man-slaying in general. But this, according to Roman principles, fell within the province of the quaestores parricidii, or ‘trackers of murder,’ officers whose origin was obscure to the Romans of historical times. The name quaestor was also applied to the officials who, under the supervision of the consuls, had the management of the state treasury (aerarium) , the seat of which was in the ancient temple of Saturn. Originally they were two in number, but others were added, in Tacitus’ words, ‘as business increased’; at least one, for example, was attached to the staff of each provincial governor. It is evident both from the conflicting statements and from the eloquent silences of our authorities that no record existed of the institution of either type of quaestor, nor of the relationship between the two. There was a tradition that the office was created by the kings—Junius Gracchanus, as Ulpian tells us, even dated it back to Romulus— and this may well be true. As the duoviri perduellionis pronounced sentence upon crimes directly affecting the life of the state, so the ‘trackers of murder’ dealt with those grave offences which the Romans, at a very early date, removed from the sphere of self-help tempered by composition, and treated as crimes of which the community was bound to take cognizance. Under the Republic these quaestores naturally carried out the behests of the consuls, and since differentiation of function was as yet scarcely conceived of, they added to their duties that of keeping the keys of the public treasury.

We may disregard the legend that the financial quaestores were the creation of Valerius Publicola, or even of a later date, but the statement of Tacitus that the consuls at first nominated their subordinates and that popular election to the office dates from the sixty-third year of the Republic (447 BC) may contain some truth. We may safely disregard the mention of the quaestores parricidii in connection with the trial of Sp. Cassius for attempted tyranny, which would properly be a case of perduellio—the converse of the confusion of crimes in the story of Horatius. But we possess a most interesting document preserved by Varro under the name of Commentarium vetus anquisitionis, which in the form of directions for the conduct of a particular trial prescribes the procedure in criminal cases tried before the people as the result of an appeal by a citizen against a capital sentence. The date of the document is uncertain, but no doubt fairly early; and we see that the quaestor, though he summons the comitia by blast of horn, is obliged to ‘send and ask for auspices’ from one of the higher magistrates. The principle which underlies this procedure is that by custom the holder of the imperium does not himself pronounce sentences which are liable to reversal by the assembly but delegates the function to his subordinate.

It is of course a further question, and not an easy one to answer, what is the basis of the citizen’s right to utter the word ‘provoco’ if his caput, that is, the sum of his rights as a member of the populus (the loss of which deprives the community of a citizen, and in early times means physical death), is threatened by a magisterial sentence? Tradition has it that, whereas the appeal to the populus was allowed by the kings as an act of grace, the first law passed by the assembly of the centuries under the Republic was that proposed by Valerius Publicola, ‘that no magistrate might put to death or scourge a Roman citizen in the face of an appeal.’ That the procedure of provocatio existed in the early days of the Republic is implied in the statement that the Decemvirs were freed from the limitations which it imposed, and that on the restoration of constitutional government in 449 BC a law was passed forbidding for all future time the institution of a similar magistracy. Cicero tells us that the Twelve Tables ‘in many laws’ provided an appeal ‘from every penalty and sentence,’ and from a passage in the de legibus we gather that, according to their provisions, only the ‘ greatest assembly ’ (maximus comitiatus) was competent to pass a judgment affecting the caput of the citizen. In spite of this a third Valerian law was passed in 300 BC which provided what, it seems, had hitherto been lacking, namely, a sanction for the breach of the law by the magistrate. Livy expresses his surprise that this should be couched in the mild terms improbe factum, which seem to imply nothing more than moral censure passed on the consul who defies the law. Mommsen suggested that the words meant that his action was to be deemed ‘invalid,’ and therefore not covered by his privilege of office: since the law had been finally determined before Livy’s time by the three Porcian statutes, the meaning of the terms of the Lex Valeria may have been forgotten. But Mommsen strains the words improbe fieri is used of ‘unconstitutional’ action in a quotation given by Asconius, and we must remember that (as we shall see) the code of honour, built up by the censors, entailed grave consequences in the breach, and also that recourse could always be had by the accused to the auxilium of the tribunes of the plebs.

It must be added that the right of appeal was limited to the city of Rome, where magistrate and citizen were alike ‘at home’ (domi): beyond the pomerium, or more probably the ‘ first milestone,’ the magistrate was ‘on active service’ (militiae), and Cicero lays down explicitly ‘there shall be no appeal from him who exercises command in the field.’This is not the place to discuss the controversial question of the date at which Roman citizens outside the city were rendered immune from the axe and rods of the imperator Cicero may not be expressing the law of his own day, but approving that of an earlier time. That he is right for the Early Republic we may not doubt. Lastly, Festus tells us plainly that in early times the magister populi, commonly called dictator, was free from the limitation of provocation but that this was imposed at a later date: it is commonly assumed that the Lex Valeria of 300 b.c. brought about the change.

IV. THE EARLY REPUBLICAN SENATE

But besides the limitations imposed upon the power of the magistrate by the Law of the Constitution, there was a check which the ‘custom of the ancestors’ made equally effective. This was the necessity of ‘taking advice’ before embarking upon action in behalf of the state. We have already mentioned the Council of Elders, or Senate, which dated back to the Regal period, and discussed the question whether it was in any sense representative of the gentes. But it was not until Republican times that it became the principal organ of government and the deliberative body by which Roman policy was shaped. It was the supreme example of a consilium or ‘body of advisers,’ such as the general commanding in the field found in his staff, or the paterfamilias in his family council. At the present stage we can do little more than approach the question how this body was formed in the early Republic—a question to which our authorities do not give a very satisfactory answer. It is agreed that upon the expulsion of the Tarquins the ranks of the Senate, depleted by the executions of the tyrant, were refilled by what might be called a ‘creation of peers ; but although the details are circumstantial, the authorities differ on important points. In the first place, it was in dispute whether L. Junius Brutus or P. Valerius Publicola was the author of the change; Livy names the first, Festus and Plutarch the second. The latter authorities say that the new senators numbered 164; Livy does not give a precise figure, but says that the tale of senators was made up to 300, and this was certainly regarded as the normal number down to the time of Sulla. The story arose, it seems, from an attempt to explain the formula ‘qui patres qui conscripti’ usedin summoning the senators to meet, where ‘patres’ is evidently used in the sense of ‘patrician senators’ explained above. It is natural therefore that the democratic tradition should make the new members plebeians—the effect being to create at once a plebeian majority in the earliest Republican Senate! Livy, it is true, says that they were chosen ‘ex equestri ordine’; but what meaning he attached, or could have attached to this phrase it would be hard to say. A trace of a different tradition is to be found in the statement of Tacitus that L. Junius Brutus created the fresh batch of patricians known as minores gentes.

In any case, the creation of new senators is represented as the work of one of the first consuls of the Republic; and the constitutional doctrine was plain—that in early times the supreme magistrate, like the kings before him, had exercised his free choice in selecting the publicum consilium. Festus states this positively in discussing the expression praeteriti senatores used of those ‘passed over’ on the revision of the roll. After the expulsion of the kings, he says, the consuls and the tribuni militum consulari potestate selected those most closely allied with them, at first patricians, then plebeians also, until the tribunician law of Ovinius was passed, by which it was provided that the censors should enrol in the Senate the best men in every rank. This measure will best be discussed in connection with the first recorded revision of the senatorial roll by censors; in the meanwhile it need only be noted that in the narratives of the struggle of the orders the Senate figures as the stronghold of patrician conservatism, and that the first allusion to a plebeian senator in our authorities is found in Livy’s narrative under 401 BC, where he speaks of the election as tribunus militum consulari potestate of one P. Licinius Calvus, ‘who had held no previous office, but was a senator of old standing.’ It is indeed evident that in the post-decemviral period, when the rise of the plebs was making progress, its leaders must have found a place in the Senate.

To the patrician members—patres in the technical sense—certain privileges were reserved throughout the history of the Republic. Reference has been made to these above. When the term of office of the supreme magistrates expired, and no successor had been duly elected, an interregnum followed, and the patres appointed an interrex, or if necessary a series of interreges (for no interrex could hold office for more than five days) to conduct elections. What was of far greater importance in the earlier days of the Republic, the patres ratified all acts of the assembly, whether in legislation or in elections, and without the patrum auctoritas such acts were invalid. The reduction of this act to a pure formality was a landmark in the progress of democracy at Rome.

The authority exerted by the Senate over the conduct of government furnished the supreme example of the respect of the Romans for the mos maiorum. The first section of the Handbook of Senatorial Procedure compiled by Varro for Pompey was devoted to the determination of those who had the privilege more maiorum of convening the Senate. In his speech for Cornelius, as we learn from the quotations of Asconius, Cicero examined at length the conditions under which the Senate, more maiorum, took upon itself to quash laws passed by the Assembly either directly or by instruction to the consuls to secure their repeal or amendment. There was, however, no method by which the Senate could compel the magistrate to take its advice against his will; in matters of procedure a new precedent might be made, and we hear that Varro in the Handbook above quoted speaks of a novus mos recently introduced with respect to the order in which the opinions of senators were invited by the chairman. In the formula of advice tendered to the consuls, says Donatus, the phrase ‘ if it shall seem good to them’ (‘si eis videatur’) was introduced. This advice, however, came in practice to have a binding force second only to that of law.

V. PLEBEIAN INSTITUTIONS: TRIBUNES: CONCILIUM PLEBIS

The nascent Republic was soon brought face to face with a grave political issue, the solution of which was characteristically Roman and unique in the history of political experiment. This arose from the claim of the plebs to a share in the government, which had hitherto been exclusively patrician. We find in historical times a dual system of magistracies and of assemblies, corresponding with the populus and the plebs, and in careful writers and official documents distinctions of terminology are meticulously observed. The officers of the plebs—tribuni and aediles—have the genitive plebi(s) added to their title, and this qualification also serves to distinguish the aediles of the plebs from those set up at a later date as magistrates of the Roman people. The assemblies of the populus were styled comitia, those of the plebs concilia. The people issued commands and prohibitions—iubere ac vetare are the words applied to their utterances, which alone were Laws (leges) in the fullest sense of the word. The plebs could in strict parlance only pass resolutions (sciscere) and these were properly described as plebiscita.

The theory has been advanced that the distinction between comitia and concilium was due to the subtlety of the later constitutional lawyers. Its most precise expression is to be found in a definition cited from Laelius Felix, a jurist who lived under Hadrian, by Aulus Gellius. In his commentary on the Digest of the Civil Law by Q. Mucius Scaevola Laelius wrote: “He who orders, not the whole people, but a part thereof, to be present, must give notice, not of comitia but of a concilium. But the tribunes neither summon the patricians nor can they bring any business before them. And so measures passed on the proposal of tribunes are not, strictly speaking “leges” but “plebiscita,” and these enactments were not binding on patricians until Q. Hortensius as dictator (287 BC) carried a law that all citizens (Quirites} should be bound by the law (ius) laid down by the plebs.” This is clear enough, and so we find that in a fragmentary law found at Bantia, which may perhaps belong to 101 BC, we get the expression ‘whatever magistrate shall hold comitia or concilium, and the phrase comitiatus et concilia is used by Cicero in the de legibus. We may therefore take it that the distinction was current in the second century BC in formal documents, and perpetuated the eternal severance of populus from plebs, the whole from the part. The parallel expression lex plebive scitum is regular in the texts of Republican laws. It is easy to show that in ordinary parlance and in loose writing the distinction was not strictly observed. There was a strong tendency to use comitia in the sense of ‘elections,’ whether conducted by populus or plebs—the word is even applied to elective assemblies in non-Roman communities; while concilium, as the general word for a gathering, might be, and sometimes was, applied to the assemblies of the whole people. But even Livy, who is very lax in his use of terms, can, if the occasion demands it, express himself with due formality, as is shown by the passage cited above). We may therefore conclude that the distinction is ancient, and reflects a real and acknowledged dualism in the Roman state.

What then was the origin of this remarkable dualism? There was no doubt on this point in the minds of the Romans. It came into being, so they believed, as the result of the ‘ struggle of the orders,’ the vicissitudes of which filled the first two centuries of Republican history. This movement, which was only ended by the concession to the plebs in assembly of a sovereignty co-ordinate with that of the populus, is represented by our historians as inspired in the main by economic motives—land-hunger and the intolerable pressure of debt. We have to be very cautious in accepting the highly-coloured version of events which fills the pages of Livy and Dionysius, and the economic conditions of early Rome, in their bearing on the question at issue, are discussed below. Briefly, it may be said that the struggle was not brought about by the efforts of a non-citizen class to obtain a footing in the community—plebs and patres were alike elves Romani—nor was it in essence a class-war between ‘haves’ and ‘have-nots’; in the main it would appear to have been a movement on the part of the richer plebeians directed towards the attainment of political privilege, but there were without doubt economic grounds for discontent in early Rome, and the leaders of the movement were ready enough to use them in order to gain support and inspire enthusiasm.

The method employed by the agitators was the secessio, a ‘general strike’ of the plebs, which marched out to some point outside the city and withdrew from the life of the community, setting up its own assembly and electing its own officers. Tradition tells of three secessiones—in 494, 449 and 287 BC. The last is unquestionably historical; and scepticism need not be carried so far as to suppose that others are ‘projections’ of the latest into the past. Unfortunately there is but a small measure of agreement among our authorities in the details given with regard to the earliest secessio and the creation of the college of tribuni, Varro has the mysterious statement that tribunes of the plebs were so-called because the tribuni militum were turned into defenders of the plebs in the secessio Crustumerina. Crustumerium, an ancient town whose territory formed the tribus Clustumina, can scarcely have been incorporated in the ager Romanus at so early a date, but without knowing more of the authorities followed by Varro we can offer no explanation. Those who reproduced the common form of the legend disagreed as to the spot at which the plebs held its assembly: Piso placed it on the Aventine, but most writers spoke of the ‘ Mons Sacer,’ a transparent designation of the scene where the plebs swore the tremendous oath to slay any who should violate the sanctity of their officers. There were grave discrepancies, too, with regard to the number of tribunes created in the original secessio and the steps by which it was raised to the ten of historical times. Cicero, in an antiquarian digression which he inserted in the lost speech Pro Cornelio delivered in 65 BC, after alluding to the first secession, and the appointment of two tribunes, goes on to say that ‘in the following year ten tribunes were appointed in the comitia curiata after auspices had been taken.’ The learned note of Asconius on this passage is worth quoting at length, as showing that no reliable tradition was preserved.

“Some (he says) record that not two (as Cicero has it) but five tribunes were appointed, one from each of the [Servian] classes. But others give the number as two, in agreement with Cicero; amongst these are [Sempronius] Tuditanus and Atticus, as well as our friend Livy, who also (like Tuditanus) adds that three others were appointed by them as their colleagues. The names of the two first appointed are given as L. Sicinius L. f. Velutus and L. Albinius C. f. Paterculus.”

Livy, it should be added, does not agree that Sicinius, the leader of the secession was one of the two first-named, but places him among the co-opted members of the college. Dionysius couples Sicinius with the shadowy figure of L. Junius Brutus, who is said to have adopted his cognomen by way of aping the First Consul.

The next stage in the development is marked by the ‘law’ said to have been passed in 471 BC by Publilius Volero, which transferred the election of tribunes from the assembly of the curiae to that of the tribes—comitia tributa, according to Livy. Tribal assemblies will be dealt with presently: in the meantime it should be noted that whereas Piso believed that the number of tribunes was now raised from two to five, Diodorus says that ‘four tribunes were now for the first time elected.’ It is not at all clear that he means that no such officers had previously existed, and as his notice of the secession of 494 BC (if it ever existed) is lost, it would be highly unsafe to infer either that the tribunate was created by this enactment or that the four tribunes represented the city tribes. The full tale of ten was made up, according to Livy and Dionysius, in 459 BC. Diodorus is silent. Cicero (as we saw) probably assigned the increase in number to 493 BC, and it is implied in a fragment of Dio Cassius prior to 458 BC. Suspended during the government of the decemvirs, the tribunate was restored in 449 BC; and Livy tells us that the election of ten tribunes took place on the Aventine under the presidency of the pontifex maximus, whose name is given as M. Furius by Livy, but as M. Papirius by Asconius; Cicero merely says that the pontifex held the election ‘since there was no magistrate.’

The above details have been set out at length by way of exception, in order to make two points clear: the first, that no reliable or consistent record of the constitutional changes of the fifth century BC existed at Rome, the second (which is less obvious), that attempts were made by constitutionalists, to whom it was repugnant to admit a revolutionary origin for Roman institutions, to show that the tribunes had on occasion been elected with all the forms prescribed by religion and under the presidency of the chief priest of the state.

This tendency is shown in other ways. Nothing is more characteristic of the institution of the tribunate than the inviolability or ‘sacrosanctity’ of the holders of that office. It is stated by Livy in his account of the restoration of constitutional government in 449 BC that a law was then passed providing that any who did violence to the tribunes and aediles of the plebs (amongst others) should be sacer Iovi, i.e. an outlaw, and this was, according to one view, the basis of their claim to sacrosanctity; but this was strenuously denied, and the inviolability of the officers of the plebs was based on the oath sworn by that body to slay any man who should lay violent hands upon them. There is a further question with regard to the sacratae leges, which are naturally explained as laws to the violation of which the sanction of outlawry was attached. These two were connected by a tradition, which Festus mentions, with the secessio of the Mons Sacer: but the list includes some which were enactments of the populus, if genuine, such as the original Valerian law on provocatio.

We have thus to be cautious in dealing with the often conflicting statements of our authorities: but it is reasonable to believe that in the main the Romans were right in their account of the origin of the plebeian institutions from a revolutionary act which set up a State within the State. This corporation modelled its organization upon that of the Roman people. In the first place it adopted the group-vote. We may recall the fact that the creation of twenty-one tribes is dated by Livy to the year preceding the first secessio. We cannot say that there is a causal connection between the two events: it certainly cannot have been the intention of the patrician rulers of Rome to make it easy for the plebs to set up a system of political grouping on a purely local basis, free from the religious associations of the curiae and the military discipline (and timocratic arrangement) of the exercitus urbanus. But it was the obvious method, and we shall do well to reject the notion that the election of tribunes was first made in the comitia curiata.

In course of time the convenience of tribal grouping led to the establishment, alongside of the concilium plebis tributum, of comitia tributa populi. The direct evidence for the existence of such an assembly, though very clear, is for the most part of much later date. The preambles of extant laws, for example, show that consuls put rogationes before an assembly of the populus voting by tribes, in 58 BC, for instance, Cicero’s bitter enemies Gabinius and Piso held such comitia ‘in front of the temple of Castor’; in 9 BC the assembly met ‘in the Forum in front of the Rostra.’ None of the three main functions of a Roman assembly—legislation, elections, and trials on appeal—were outside its competence. The first was, in most important matters, reserved for the comitia of the centuries; an early example, however, of legislation by tribes is found in 357 BC, when the comitia populi tributa imposed a tax on the manumission of slaves. This body certainly elected the ‘minor magistrates,’ i.e. those who did not possess the imperium, and it is just possible that it was first called into being when the quaestorship was thrown open (447 BC). In its judicial capacity it was restricted to the hearing of appeals against fines levied by the aediles .

The plebs also followed the practice of the populus in restricting the initiative in its assembly to its own magistrates. Its resolutions were elicited by rogatio, like the leges of the people; and the right of transacting business with the plebs belonged only to the tribunes and aediles. In the last-named officers we may probably see another example of the modelling of the institutions of the plebs on those of the people: for the two aediles who (according to all our authorities) were coeval with the tribunes seem to have borne the same relation to them as the quaestors did to the consuls. The name was explained by the fact that the aediles were wardens of the temple of Ceres, Liber and Libera, in which the plebs kept its archives, and there is no valid reason for rejecting this view. According to Livy a law of 449 BC provided that copies of the Senate’s decrees should be deposited with the aediles. Other functions were afterwards conferred upon these officials, who thus came to play an important part in the municipal administration of Rome.

VI. THE DEMANDS OF THE PLEBS: AUXILIUM

What were the primary aims of the uprising of the plebs and the formation of a State within the State? Leaving out of sight the economic motives discussed elsewhere, we may say that there were three—to secure protection for the plebeian against the arbitrary exercise of the imperium, to obtain a clear statement of the Law and of the procedure by which its remedies for wrong might be obtained, and (in the minds of the leaders) to obtain a share in the government of the State and especially in the imperium.

To ensure the first the inviolable tribune was authorized to ‘bring succour’ to any citizen who might call upon him. To this end the door of his house remained open by night and day. Never abrogated throughout the history of the Republic, this ‘succour,’ though at first (we are told) indignantly rejected by the patricians, came to be a constitutional guarantee of personal liberty, and being used to secure freedom from personal arrest to those accused of crime, it helped (together with the right to go into voluntary exile) to bring about the practical abolition of the death penalty, which is such a surprising feature of Republican criminal law. More than this, there was gradually developed out of the right to inhibit the action of the magistrate against the private citizen a general power of veto (intercessio), which became one of the most effective elements in the system of checks and counter-checks provided by the Roman constitution. This was in fact an extension of the principle of collegiality explained above, though it would not be correct to say that the tribune had a maior potestas as against the consul.

If we were to believe the historians, we should have to admit that the plebeian assembly of tribes also acted as a High Court of Justice in the same way as the comitia centuriata in capital cases tried on appeal, at any rate until the Decemviral code had restricted that function to the comitiatus maximus. But the legends in which this doctrine is embodied are more than suspect. The stories of Coriolanus, whose condemnation in 491 BC was, according to Dionysius, the first act of the assembly of tribes, and of Kaeso Quinctius in 461 BC, which was evidently cited as archetypal for the practice of allowing sureties (vades) for the attendance of the accused, cannot be treated as historical. We have other cases where the penalty proposed is not capital, but pecuniary. The traditions with regard to fines (multae) are conflicting. The right to fine is part of the power of coercion inherent in the imperium, but according to our sources it was limited by legislation at a very early date. According to Plutarch, it was Valerius Publicola, the author of the first Law of Appeal, who imposed a limit on the power of the magistrate in this respect: and Gellius implies that a limit expressed in terms of cattle was commuted for a money equivalent by the Lex Aternia Tarpeia of 454 BC. But the more general view was that it was this law which fixed the multa suprema, and that the money commutation dates from a Lex Julia Papiria of 430 BC. On the other hand Festus mentions the fine of two sheep and thirty oxen as fixed by a Lex Menenia Sestia in 452, and a later Lex Tarpeia which converted it into terms of money. We have  already seen that Aternius and Tarpeius are of very doubtful authenticity. Their law, according to Dionysius, applied to all magistrates, including those of the plebs; and we do undoubtedly find that in historical times these officers inflict heavy fines and, if these exceed the maximum permitted to the magistrate by way of coercitio, allow an appeal to the tribal assembly of the plebs, the procedure being the same as in the capital trials before the people. This privilege, then, was undoubtedly permitted to the magistrates of the plebs: but the populus reserved for itself the last word if the caput of the citizen was at stake. We may, however, anticipate later conditions by stating here that in the middle Republic it was the regular practice in cases of treason, not to revive the institution of duoviri perduellionis spoken of above, but to allow and indeed request the tribunes of the plebs to conduct the prosecution, for which purpose they were obliged to “borrow a day of the comitia centuriata”.

There could be no better example than this of the political genius of the Romans. Looked at from one point of view the plebeian institutions were revolution made permanent—in spite of all the efforts of constitutional purists to fit them into a scheme of orderly development. But this ceased to have significance as time went on: for it was the habit of the Romans to allow institutions apparently discordant to find their modus vivendi, and, as conditions changed, to turn them to practical account in unexpected ways. The dealings of the populus with the plebs are the most striking instance of this, and when the adjustments were made, revolution was indeed made permanent, but—as will be seen later—it was revolution domesticated.

VII. THE DECEMVIRATE AND THE TWELVE TABLES

The agitation of the plebs for the codification of the law is narrated with much detail by our annalistic historians. According to Livy and Dionysius the movement began in 462 BC when a tribune named C. Terentilius Harsa promulgated a law providing for the establishment of a commission of five ‘to frame laws concerning the imperium of the consuls,’ but was dissuaded from proceeding further by his colleagues, acting on the request of the Senate. In the following year the proposal was again put forward, the principal part in the agitation being borne by a tribune named A. Verginius; this time, says Dionysius, a commission of ten was proposed, with power to legislate on the whole field of public and private law. The struggle over these proposals lasted for several years, in the course of which the plebs secured the passing of the law converting the Aventine into state-property and that of Aternius and Tarpeius limiting the powers of the magistrate in the matter of fines, to which allusion has already been made.

At length, in 454 BC, three commissioners, Sp. Postumius Albus, A. Manlius, and P. Sulpicius Camerinus, were sent to Greece to examine the laws of Solon and other codes (those of Magna Graecia are mentioned by Dionysius) as a preliminary step. In 452 BC they returned, and a Commission of Ten (decemviri) was set up to take the place of the magistrates of the year, with freedom from the limitation which was involved in the right of appeal. The names of the ten accordingly appear in our Fasti as those of the chief magistrates of the year in place of the consuls. They included the consuls already designated for the year 451 BC, Appius Claudius and T. Genucius (or, as Diodorus has it, T. Minucius), one of those of the previous year, P. Sestius, who had supported the measure setting up the Decemvirate, the three commissioners sent to Greece, and others, ‘all of whom,’ says Dionysius, ‘had served the office of consul.’ This is in fact the case; for the names of all appear in the Fasti of previous years except that of T. Genucius, and the ‘Minucius’ of Diodorus’ list may be correct. All the decemvirs were, according to our authorities, patrician, and this again is true, except for Genucius. The Minucii, on the other hand, claimed to have been patrician under the early Republic; but, as we have already noted, their transitio ad plebem is suspicious, as is also the fact that the cognomen of Augurinus, which is borne both by them and by the Genucii, is obviously derived from the election of a member of each family to the augurate when thrown open to the plebs by the Lex Ogulnia in 300 BC. Efforts have been made to discredit the authenticity of other names in the list, but the arguments adduced are unconvincing. Had we nothing before us but the remains of the Code and the list in the Fasti, it would be hard to find reasons for rejecting the tradition.

But the story does not end here. The Commission of Ten issued a code inscribed on Ten Tables, and these laws, according to Livy, who breathes the spirit of legal purism, were submitted to the assembly of the centuries for ratification; but their work was not complete, and they brought about the election of a second commission, of which Appius Claudius was again the principal member. These again appear in the Capitoline Fasti, and although there was a slight discrepancy in the lists, it is quite clear that plebeians were included; Dionysius, in fact, notes the names of three, Poetelius, Duillius and Oppius, and, as T. Antonius Merenda bears a plebeian name and M. Rabuleius that of one of the tribuni plebis of 488 BC, it is more than likely that the list was invented on the assumption that five patricians and five plebeians were elected.

Unfortunately the conduct of the Second Ten was not such as might have been expected of a body so constituted. They added ‘two tables of unjust laws,’ as Cicero calls them, including that which prohibited the contraction of a valid marriage (connubium) between patres and plebs; and their oppressive rule was brought to an end by a revolution which arose out of the unjust judgment delivered by Appius Claudius in the case of the maiden Verginia, slain by her father’s hand according to one of the most famous of all legends. There was a secessio of the plebs modelled on that of 494 BC. The Senate dispatched three envoys to negotiate, but their offices were refused; the plebs was, however, induced to return by L. Valerius Potitus and M. Horatius Barbatus, and constitutional government was restored after the decemvirs had abdicated. Livy’s account of the proceedings is precise. In a concilium plebis held in the ‘Flaminian meadows’ (the site of the circus Flaminius of later times), over which the pontifex maximus presided, ten tribunes were first of all elected; and one of these, M. Duillius, then proposed the restoration of the consulship and of the right of provocatio. An interrex was then appointed, and Valerius and Horatius were elected consuls. With the legislative acts which followed we shall deal presently.

The motives of such precision have been analysed in a previous section, and statements like those just quoted scarcely claim greater credence than the legend of Verginia. Can we use our other authorities—Cicero and Diodorus—to reach a less garbled tradition? Cicero gives us, in the de Republica, a brief account of the decemvirate. He represents the decemvirs as retaining office for a third year, in which Dionysius alone amongst our authorities agrees with him; and this is not in itself probable. He also omits the name of Appius Claudius—though he gives that of D. Verginius as the father of the maiden: from a brief note by Asconius on his speech for Cornelius delivered in 65 BC it appears that he there gave no names, ‘because,’ as his commentator aptly says, ‘it is a matter of common knowledge that the decemvir was Appius Claudius, and the father of the maiden L. Verginius.’ Yet it has been seriously argued by Niese that names were first invented for the villain and hero of the piece after 65 BC, and by Eduard Meyer that at that date Cicero had not yet read the annals of Valerius Antias and Licinius Macer in which they were introduced.

But there is a more serious omission in Cicero’s narrative. Not a word is said with regard to the law of Terentilius Harsa, the years of democratic agitation which followed, or the embassy to Greece. Cicero writes as follows with regard to the institution of the Decemvirate:

“while the Senate was at the height of its power and the people endured and obeyed, a plan was tried, by which the consuls and tribunes of the plebs resigned their offices, in order that Ten Commissioners with the highest authority, not subject to the right of appeal, might be set up, who should enjoy the supreme imperium and codify the law.”

The omission of any reference to the embassy to Athens need not be taken as a proof that Cicero had not heard of it; from the de legibus we learn that he was familiar with what was a commonplace in antiquity—the derivation of certain of the laws of the Twelve Tables from the code of Solon. But it cannot be denied that his conception of the Decemvirate as the orderly creation of a patrician Senate is very different from that of the political annalists.

Do we find a trace of a similar version, which ignored the acute phase of the ‘struggle of the orders’ leading up to the Decemvirate, in Diodorus ? It would be hazardous to infer this from the fact that he has no notices of political events at Rome in the years preceding 451 BC, since he has no such notices of any kind in the eleventh book (which begins in 486 BC) except those relating to Spurius Cassius’ coup d'état in 485 BC and the election of four tribunes in 471 BC. He therefore gives us no help; his statement that the last two tables were set up by Valerius and .Horatius in 449 BC is due to a misunderstanding, and his account of the constitutional restoration is, as will appear, more than suspect.

We shall not, therefore, derive much positive result from the analysis of our sources, and must ask ourselves the question, what may be inferred from the Code itself as to its place in Roman History? We shall not here dwell upon the content of those of its provisions which do not bear directly upon constitutional development and the struggle of patres and plebs, except to note the strange mixture of archaic provisions, such as the lex talionis (‘if one breaks another’s limb and fails to compound with him, let limb be given for limb’) and the prohibition of ‘charming away’ a neighbour’s standing corn, with the recognition of plebeian customs such as freedom of testamentary disposition and marriage by cohabitation ripening in a year’s time into prescriptive ownership (usus) which, however, could be deferred by the wife’s three nights’ absence. Nor is this the place to speak of the ‘methods of pleading at law’ (legis actiones) and the regulation of procedure, always a matter of primary importance in early law, which is concerned to substitute formalities for unregulated self-help; these matters were naturally given their place in the opening chapters of the Code. Our purpose is rather to determine the place of the Decemviral legislation in the political history of the Republic.

VIII.

THE ROME OF THE TWELVE TABLES

The surviving fragments of the Twelve Tables must be accepted as our primary authority for the opening phase of the struggle between the rival orders at Rome. Their evidence, indeed, for a variety of reasons, has to be treated with caution. It is a matter of comparatively trifling importance that the familiar arrangement of the extant material depends, in all cases other than those in which a quotation is assigned by ancient authority to one or other of the Tables, on the somewhat hazardous assumptions of Dirksen about the methods followed by Gaius in arranging his commentary on the Code. But more serious than this are other facts and possibilities. Some of our information about the terms of the legislation is derived from passages which preserve the words, not of the laws themselves, but of a commentator thereon. Elsewhere there is suspicion, more or less strong, that glosses have intruded into otherwise sound quotations. And yet again— whether the explanation be found in a re-writing of the Tables after the Gallic sack of Rome or not—it is difficult to doubt that some of the quotations come from versions of the laws which expressed their meaning in the language of a period later than the turn of the fifth century. But on the other hand the high antiquity of the uncorrupted core is proved by its use of words whereof the meaning was a matter of speculation by the end of the Second Punic War; and though glosses may be detected and modernization of the text admitted here and there, the main body of the fragments and the general setting in which tradition places the Decemviral legislation have resisted criticism with success. The attempt of Pais to assign the laws to the ius Flavianum broadcast by Cn. Flavius at the end of the fourth century and that of Lambert to father them on Sextus Aelius Paetus Catus at the beginning of the second may be said definitely to have failed. In this matter the sanity of modern civilians has rendered the study of Roman history a service comparable to that which the legal training of his youth enabled Mommsen to perform in the days when Niebuhr and his school were being carried away by the early successes of their critical method.

With such qualifications the surviving remains of the Decemviral laws may be used as contemporary evidence for Roman history in the middle of the fifth century BC. Their help is essential in answering questions of detail about the condition of the Roman people when the struggle between patres and plebs had been in progress for forty years, but their help must be invoked as well in the solution of a more serious problem still—the problem of the nature of the struggle. Even the most callous critic of tradition must admit that the final successes of the plebs found expression, at least in part, in enactments of a kind which may be described as constitutional. The magistracy was opened to people who had been excluded so long as office remained a patrician preserve, and in general some greater say in the direction of public affairs was given to that section of the population which did not aspire to office at all. But the extent to which the agitation of the plebs drew its strength from economic grievances is a more controversial subject, and a decision between the divergent views taken in the last hundred years calls for a glance not merely at the Twelve Tables but at such evidence as may be gleaned from other sources for the social and economic condition of the Roman people in the fifth century.

During the period of the later kings Rome had learnt from Etruria lessons in the arts of civilization: there had been a rapid cultural advance, of which the outstanding monument was the earliest temple of Juppiter Optimus Maximus. But it is difficult to believe that such public works as this were due to a general increase of wealth produced either by industry or commerce. Buildings of any pretension are not known to have been numerous, and such as are recognized by tradition cannot be regarded as enough to imply resources greater than might be available in an agricultural state of the dimensions attained by Rome. There is, indeed, evidence for industry: the story of the guilds whose formation is ascribed to Numa—the goldsmiths, carpenters, dyers, leather-workers, tanners, bronze-smiths and potters—may be historical or not, but it is at least plausible in its suggestion that these trades were practised in the city’s earliest days. Yet this is not to call Rome industrial. Domestic production of the manufactured necessities of life does not involve an increase of wealth through industry unless the manufactures are carried on for export; and evidence for Roman exports is to seek. For various reasons at various times Rome has never from its foundation until today been an industrial city. Even in periods like that of the Gracchi, when production for export would have solved a most urgent problem, industry failed to appear; and the explanation of its absence in the second century BC goes some way towards disproving its presence in the sixth. For international trade Rome was badly placed. She owed something to her position on the Tiber; but that position was valuable far more for its control of a crossing of the river than for the access which the river provided to the sea. The elaborate arrangements described in the eighth book of the Aeneid whereby Father Tiber made easy the progress of Aeneas to the site of Rome are sufficient reminder that only by courtesy could the Tiber be called a navigable stream. The silting at the mouth, which it was left for the Emperors Claudius and Trajan to evade, made the estuary of little value as a harbour; and the rapidity of the current rendered the journey to Rome from the sea a laborious business even for river barges. When the problem of feeding the urban population made it essential to bring corn up the river, the difficulties were tackled and overcome. But though passing traders doubtless paid Rome an occasional call, the familiar pictures of sea-going merchantmen engaged in general trade sailing regularly up and down the Tiber and using a port beneath the Aventine may safely be dismissed as works of the imagination.

Once the theory of maritime commerce in early Rome has been recognized as an assumption, the remaining evidence for industrial production needs no long discussion. First and most striking is the testimony of the earliest treaty between Rome and Carthage. Carthage, as might be expected, is insistent on her commercial domination in those regions which she controlled: Rome, on the other hand, is interested in nothing but her political supremacy. The difference between the attitudes of the two contracting powers is marked, and the conclusion which it indicates is that Rome in her earliest republican days was indifferent to those considerations of marketing which must affect every community with a right to be called industrial. The information to be derived from the first treaty with Carthage is confirmed by the evidence of archaeology; and the archaeological remains, besides helping to disprove the view that Rome at this time was the scene of manufacture for export, throw light on another possible source of such wealth as Rome could boast. Though maritime trade may be ruled out, Rome might still have made profit out of traffic across the Tiber. The connections, already mentioned, which seem to have existed between Caere and Praeneste in the seventh century suggest a way of communication which joined Etruria with the Trerus valley and the south; and it has been seen that, before Rome fell under Etruscan control, this route probably found its way across the Tiber at Fidenae. With the extension of Etruscan authority to Rome, traffic presumably began to pass more freely through the city. It is not wholly impossible that the portoria mentioned in the earliest days of the Republic were levied to some extent on goods moving between Campania and the Etruscan towns; but it must be added that such revenues as Rome may have derived from customs-dues certainly came in far larger measure from the salt-way which ran by Rome from the pans by the Tiber mouth to the inland parts of Italy. The service of the archaeological evidence is to show that, whether Rome established a position as entrepôt between the regions north and south of the Tiber or not, the volume of trade during the fifth century was so small that revenues derived from the passage of goods through Roman territory cannot have played any noticeable part in the general economy of the State. 

Even in the Etruscan age at Rome, when public works were being undertaken on a scale of some pretensions, neither Rome nor Latium in general shows signs of having been more than remotely affected by the flourishing transmarine commerce which had developed in Etruria and Campania. The finds of imported articles are scarce, and their scarceness justifies two definite conclusions. The first is that Roman industrial production was too slight in bulk to leave that margin for export without which imports cannot be attracted in return; and the second that the volume of trade in articles of foreign manufacture which passed through Rome across the Tiber was too small for it to be possible to see in this trade an explanation of Rome’s rise to greatness. But there is more than this. At the end of the sixth century stagnation seems to have come over the commerce of Latium. Intercourse with the external world was broken off and was not resumed for two hundred years. Whatever part industry and commerce may have played in the economy of the region down to the fall of the kingship at Rome, during the first two centuries of the Republic Latium depended on its resources in land; and on agriculture, combined with a limited use of pasturage, its inhabitants had in the main to subsist until the revenues won from empire wrought a certain change.

It need not be supposed that the end of the monarchy brought with it any serious cultural set-back at Rome. The traces of foreign imports in Latium during the sixth century are so slight that at most it was only an incipient trade which the young Republic lost. And not all the gains of the Etruscan age were surrendered. In building, at least, the Republic did something to carry on the traditions of the kings. The regal period left monuments like the temple of Diana on the Aventine and the Capitoline temple itself: but against these the fifth century could set the temple of Saturn, which seems at least to have been completed, if not begun, in Republican times1, and the temple of the Castores, said to have been dedicated in 4 842. In both of these cases the archaeological evidence for the date is in general agreement with that of the literary authorities. To them must be added the temple of Ceres, Liber and Libera on the Aventine, the opening of which is placed by tradition in 493 BC. The temples of Ceres and of the Castores have an interest of their own, as evidence for the presence of Greek influence at Rome early in the fifth century. Ceres herself is Italian, but the identification of the three deities housed in her temple with Demeter, Dionysus and Persephone and the fact that the building itself was decorated by two Greek artists—Damophilus and Gorgasus—betrays the hand of Greece, which is certainly also to be seen behind the arrival of the Dioscuri. But such signs, which are by no means alone, that the foundation of the Republic did not withdraw Rome from the influence of Greek culture in southern Italy do not prove that Greeks were brought to Rome by attractions of a commercial kind: the chief value of these monuments is as a reminder that in the art of building at least the young Republic could bear comparison with the monarchy in its greatest days. But though there is no foundation for the tale that fifth-century Rome forgot the arts which she had acquired in the sixth, in face of the undeniable reduction of imports almost to the vanishing point it cannot be maintained that the economic history of the early Republic is a history of industry and commerce. The story is rather one of the way in which Rome exploited her resources in land.

The picture outlined by the surviving fragments of the Twelve Tables is one of an agricultural community. In Dirksen’s arrangement of the remains the evidence for the occupation of the people whose custom was converted into law by the decemvirs is to be found more particularly in the seventh and in the eighth Tables, where provisions are made to meet the problems of a rustic population, living apparently in tuguria (cottages) and concerning itself with the production, among other things, of corn and wine. The usual difficulties of the countryside—boundaries, surface-water, the upkeep of roads and the like—find recognition; but most noticeable of all is the series of enactments against damage to a neighbour’s crops by trespass, arson or by the use of charms. Though the law of the Twelve Tables is clearly the law of a city-state, the society in which it was produced had its main interests in the land. Such is the conclusion to be drawn from the contemporary evidence, and it is round the land that annalistic tradition centres the economic life of fifth-century Rome.

IX.

LAND-TENURE AND THE DEMAND FOR LAND AT ROME

The history of land-tenure at Rome is a subject of great obscurity, but it is one which is not made more lucid by rejecting the beliefs of the Romans themselves. According to the theory which seems to have prevailed in classical times, Romulus divided the territory at his disposal into three parts, of which one was reserved for public purposes, such as the maintenance of the king and the public cults, one became common land, and the third was divided among the curiae. Without pressing the meanings of terms which came to acquire a precise and technical significance, it may be said that of these sections the first can be called ager publicus, the second compascua and the third ager privatus. Questions then immediately arise. First it must be asked with what truth a phrase like ager privatus, which implies private ownership, can be used in connection with the early history of Rome at all. It has been said already that the Romans themselves believed private ownership of land to have been one of their most primitive institutions, and that in this they were probably right. But private ownership in this connection must perhaps be given a somewhat special sense. Whatever other conclusions may be drawn from the fact that mancipatio is the Latin for conveyance and that mancipatio per aes et libram was its oldest form, one is that the Romans had passed through a period in which chattels alone, as opposed to property in land and buildings, were capable of alienation. That this was true of the time when the ancestors of the Romans were still nomadic is obvious; but there are indications that the customary rules of property did not change at once when the people began to lead a settled life. Though Varro and Pliny do not agree, this much seems to have been recognized by Cicero, who refrains from making private property in land a Romulian institution; and Cicero’s view is supported by what is known of the later law about gentile claims to the reversion in cases of intestate succession. It must be remembered that the provision, probably included in the Tables, for the acquisition of property in land by prescription after usus for two years shows that by the middle of the fifth century the advance towards purely private ownership had gone far; but a possible conclusion to which our evidence may point is that the paterfamilias, though for most purposes related to his land as owner to property, was still affected by the customs of the recent past, in which he had so far been only a trustee for his successors that he was unable to alienate the estate, because it belonged not so much to him as to his family in the first place and, more remotely, to his gens. If this were so, the consequences would be important. At Rome, as in Solonian Athens1, the difficulties of debtors would be aggravated by the fact that the customary law belonged to an age in which land could not be conveyed and therefore could not be mortgaged.

It is now time to ask what fraction of the ager Romanus was held in private or quasi-private ownership. The brief account of Dionysius is valuable rather for its description of the classes into which land was divided than for any suggestion it contains about the extent of each. Nevertheless there is evidence enough to make it probable that the amount of land held as family property was not a large section of the whole. The Romans of classical times believed that the heredium of their ancestors had been a plot of two iugera, which meant approximately an acre and a third or a square on a side of eighty yards. This allotment appears in Plutarch’s tale of the Claudian settlement at Rome, and Livy records that, when Bola was colonized in 4i8 and Tarracina in 329, the settlers received two iugera each. It is true that the whole story of the heredium in early Rome has by some been rejected as a false inference from the grants of land made to colonists like these, but it is perhaps more reasonable to see in such colonial arrangements confirmation of the view that at some time or other they had prevailed in Rome. If the repeated statements about the size of the heredium may be accepted, the dimensions call for further notice. In Italy during the fifth century BC methods of agriculture were not more advanced than those employed in Victorian England; yet the area of the heredium was less than half that of the allotments offered by the land reformers at the General Election of 1886. By itself a strip of two iugera was certainly too small to support a family, and in these circumstances it seems necessary to assume that tradition is right in admitting the existence of commons and state-lands on which the holders of these exiguous hereditaments also had certain claims. The commons were presumably open as pasture for their beasts, and of ager publicus leased by the community they might be tenants.

Such seem to be the elements of the situation in which the economic discontents of the fifth century were heard. It has been seen already that the origins at least of the centuriate organization are properly placed by our authorities in the regal age, and since this organization implies that plebeians as well as patricians were free citizens capable of owning land, the struggle of the orders cannot be regarded as a struggle for the emancipation of serfs. The relations of client and patron have been discussed elsewhere: here it is only necessary to recall that, whatever they may have been in detail, they were relations between citizen and citizen, however rich one party may have been and however poor the other. But although even the humblest plebeians were able to hold land, it by no means follows that all of them had the opportunity; nor again can it be assumed that the more fortunate, who had a patch to boast of as their own, were always allowed access to the common land without whose aid they could scarcely hope to make a living. In the story of the coming of the Claudii to Rome Plutarch relates that, while the mass were given two iugera each, Publicola assigned twenty-five to their leader, Attius Clausus. The suggestion that the good and great owned twelve times as much as their more humble neighbours is not to be regarded as an exaggeration. Thanks to their political predominance, the patres could apparently do very much as they pleased. While the estates of the more lowly citizens were kept to the minimum dimensions, the patricians acquired acres which in those days seemed broad. And then again, when rights to use common land were at stake or when it was a question of finding tenants for such ager publicus as existed in the fifth century, it was the interests of the patricians alone which were considered. Nonius Marcellus preserves a quotation in which Cassius Hemina records that people were ejected from ager publicus because they were plebeians; and though it is impossible to defend the frequent use of this passage to prove that the patricians claimed a legal right to exclude all but their own class from the public land, the historian is probably correct when he implies that in fact this was the end which the oligarchs used their influence to attain3. It is not, of course, to be argued either that every member of the unprivileged classes found his family property restricted to the minimum dimensions, or that plebeians were wholly excluded from other kinds of land; but the masses had not enough to meet their needs. Lack of land was a grievance, and the grievance provoked an agitation of which the course must now be noticed.

In the century of revolution which opened with the tribunate of Ti. Gracchus, politicians whose programmes needed land for their execution were in the habit of turning first to the ager publicus, and it is to the ager publicus that champions of the plebs in the fifth century are made to look. The details of their activities as recorded by the post-Gracchan annalists are certainly taken to some extent from the agrarian history of the later Republic; but it is difficult to believe that the whole of an elaborate and plausible narrative, spread over a long series of years, is without any foundation in fact. The extent of ager publicus in regal Rome cannot even roughly be determined, nor can it be said what fraction of Roman territory fell into this class. When the age of Roman expansion came, conquest was the chief source from which public land was derived: it was a habit of the Romans, when they had defeated a people in war, to deprive them of territory up to about a third of the whole, and though such acquisitions by no means always remained public land, it was to appropriations of this kind that the growth of the ager publicus was due. In earlier days, however, when conquered neighbours were often merged in the Roman body politic, they were apparently allowed to keep their land and the ager publicus was not increased. But, in spite of this, it does not follow that our authorities are wrong in supposing that public land was known even before successful military operations began to bear fruit.

The story opens with the rogatio ascribed to Sp. Cassius Vecellinus in his third consulship, traditionally placed in 486 BC. Whether Cassius was three times consul or not may be doubted; and in any case no claim need be made for the precise accuracy of the date. But attempts to disprove his existence altogether or to move him into the fourth century have not achieved success, and Cassius himself may be accepted with some confidence as an historical figure of the early Republic. About the details of his agrarian programme Livy and Dionysius are not agreed, and the accounts of both are rendered highly suspect by the improbable circumstances in which the Latins and Hernici are introduced. No more definite conclusion can be drawn with any plausibility than that Cassius proposed to meet the demand for land by making allotments to individuals from the ager publicus. To this it may be added that the measure introduced by Cassius failed to become law. After his account of the rogatio Livy goes on to describe the debacle in which the career of Cassius came to its inglorious end, and he fails to record any tangible result of the agrarian campaign; but Dionysius preserves a tale that the Senate only stopped the agitation of Cassius and his friends by submitting to the people a proposal of its own to appoint ten commissioners who should review the whole question of the ager publicus and decide what parts should be leased to tenants and what should be given as allotments to needy members of the plebs. Like many other features in the story, the terms of this resolution are influenced by the history of the Gracchan age, but the suggestion that some step was taken by the patres is not improbable. If it is wrong altogether to reject the almost continuous agitation of which our authorities make the third consulship of Cassius the start, it is important to notice the form in which the subsequent demands are put; and the form—more clearly in Dionysius, but to some extent in Livy as well—is that of a complaint that the patricians are refusing to take certain steps to which they stood committed. Though Schwegler has been widely and heavily criticized for his assertion that—perhaps in a modified form—the rogatio of Cassius actually became law, it can at least be argued on his behalf that the narratives of the succeeding years imply what Dionysius explicitly records—that some nominal success, if no more, was won by the lacklands at the outset of their open agitation.

Of the thirty years which follow the death of Sp. Cassius thirteen are recorded to have seen proposals that his policy should be carried into effect. The incidents narrated are too trivial to call for notice in detail, and only the outstanding features need be mentioned. Already in 485 the plebs began to use its most powerful weapon—the refusal of military service; and by 479 BC their demands had so far commended themselves to reasonable opinion that they won support from some of the great patricians, of whom K. Fabius Vibulanus was the first. But in spite of its increasing strength the movement failed to produce a change in the uses to which ager publicus was put. There was no general distribution of public land in allotments to the plebs and the most familiar of their successes was one which is scarcely relevant to the agrarian history of fifth-century Rome. Tradition assigns to 456 BC the law about the Aventine which is associated with the name of the tribune L. Icilius. According to Dionysius this measure, which was passed as a lex centuriata in spite of its tribunician origin, was preserved down to his own time in the temple of  Diana; and though he does not claim to have seen the text with his own eyes, it is not likely that he made the grave mistakes which have been alleged about the date of an extant monument. Nevertheless the traditional date of the law cannot be claimed as exact: it is enough to say that at some time about the middle of the fifth century the Aventine was turned over to the plebs. But whenever Icilius propounded the measure which bears his name, its passage did little, if anything, to satisfy plebeian claims for agricultural land. Down to imperial times, when it became a fashionable quarter for the well-to-do, the Aventine was the home of the humbler classes, and it was as building land that the hill must have been welcomed by the plebs when it was assigned to their use by this so-called Icilian rogation.

X.

EARLY ROMAN COLONIZATION

Tradition thus fails to ascribe even the smallest success to the plebeian agitation for the distribution of ager publicus. Grants of land to individuals were a feature of later history, and it is perhaps the familiarity of this method in Gracchan times which accounts for its prominence in the traditional narratives of the fifth century. But though the demands for land may not have been met by allotments in the Gracchan style, they were not allowed to go wholly unsatisfied. Early Rome adopted the device on which Gaius Gracchus fell back—the device of founding colonies wherein surplus population could be planted in numbers comparatively large. The foundation of colonies seems to have been a recognized method of finding work for idle hands from the earliest days of the Republic, though its use became more frequent in the fourth century. Colonization served a double purpose. The colonists were sometimes sent out ‘praesidii causa,’ to act as garrison in a Roman stronghold, but a colony—in the fifth century b.c. no less than in the second—was also valuable as an outlet for citizens whom Rome could spare. The economic side of colonial foundations justifies tradition in connecting them with the agitation for allotments from the ager publicus. Land assigned to a colony—at least if the colony was a Roman foundation—was land which otherwise would presumably have remained public and so have been subjected to that exploitation by the patres against which the long-drawn protest was being made. Whatever may be the value of his authority, Livy is wholly plausible when he says that in 467 BC Q. Fabius M. f. Vibulanus staved off the regular demands for a distribution of public land by an alternative suggestion that a colony should, be sent to Antium— ‘ita sine querellis possessorum plebem in agros ituram, ciuitatem in concordia fore.’

Not all, however, of the Roman colonies alleged to have been established by the middle of the fifth century can be accepted as historical. Some, like those at Ostia under King Ancus and at Fidenae at the end of the sixth century, are probably mere anticipations of later history: others, like Norba2, were perhaps the work of the Latin League and not of Rome. But though the versions of Livy and Dionysius call for criticism, and though it must be remembered that colonies of Roman citizens could not be founded beyond the limits of Roman territory, at a time when colonies were being manned by cities of the Latin League it is wholly natural that, whatever their political status , colonies should have been started by Rome as well. Political conditions in the fifth century were too unstable for outlying garrisons always to hold their posts successfully, and the capture of a place by Rome in the fourth century is no reason for denying that she had held it in the fifth. The fighting against Velitrae after the Gallic invasion does not disprove the story that Velitrae received a colony in 494, nor can the settlement at Antium in 467 be rejected merely because the city was captured in 346. In the fifty years which followed the end of the monarchy Rome was small and her outposts were neither numerous nor widely flung; but their existence is recorded and cannot safely be denied. And if such garrisons were to be found, however much military considerations may have been responsible for their dispatch, the demands which they made on the population of Rome justify their mention in connection with the social and economic problems of the age.

XI.

THE FOOD-SUPPLY

The tales about the outcry for a distribution of public land imply not only a selfish exploitation by the patres of the resources of the State but also the presence of a population so large that, if some people had as much land as they would like, others had to be content with even less than was adequate to meet their barest needs. This implication that in the fifth century, as in earlier times, the number of inhabitants to the square mile in the Roman region was high finds some support in the records of tradition about the corn supply. The poverty of the humbler classes in a community which had no large export trade wherewith to pay for imported food is revealed, not only by the complaints about the burden of debt which will shortly be discussed, but also in stories that on several occasions it became necessary for Rome to buy corn from abroad. Systems whereby the rich made themselves responsible for the feeding of the poor, or which recognized that the maintenance of the masses was an obligation of the State, were a Hellenistic development of the third century BC, and it is not to be suggested that Rome in the early years of the Republic had adopted an arrangement like that of the later distribution of corn. But no government, however oligarchical, can afford to hold its hand when a crisis arrives in which the territory under its control does not contain enough food to keep the population alive. There need be no question of permanent allowances to the poor or of distribution at prices below the economic figure; but the duty of seeing that citizens do not starve for lack of food upon the market is one which a government cannot shirk. When certain details derived from later history have been discounted, what remains in the narratives of Livy and Dionysius is an unobjectionable account of state intervention to make up deficiencies of food produced at home by purchases from peoples abroad who had food to spare.

The distribution of corn attributed to Servius Tullius may be neglected as probably no more than one of the many measures ascribed to that king for no better reason than the fact that he came to be regarded as the first father of the poor. But tales of famines in the fifth century and of measures taken to relieve them cannot be wholly ignored. The subject is one of a kind about which Cato suggests that records had been kept in the annals of the pontifices maximi, and the stories themselves are appropriate to the age in which they are put. Though the chronology is too weak for any stress to be laid on the coincidence of famines and wars, it is easy to believe that an agricultural community engaged in almost constant military operations might often find its food supply—which was never too large—brought dangerously low by invasion or by the interference of army service with work upon the land. The value of the traditional accounts must be mentioned again in connection with events which follow the, Decemviral legislation; and here it will be enough to notice such earlier incidents as are evidence, not only for the danger of starvation in Rome, but for the directions in which Rome turned when foreign corn was needed to make good the deficiencies of the domestic supply. During the disturbances which marked the first years of the Republic economic as well as political help is said to have come from Cumae, and with Cumae the fertile region of Pometia is joined. But more notable and more familiar than this is the crisis connected with the exile of Coriolanus, when corn is alleged to have been sought so far afield as Sicily2. It is true that this affair is the occasion on which Dionysius of Halicarnassus reveals a gross mistake made by the later annalists, who asserted that Dionysius I of Syracuse was the benefactor whom the Roman people had to thank for a service rendered sixty years before his birth; but the blunder belongs to an obvious embellishment of the tale and does not destroy its value as evidence for Roman relations with Sicily in the fifth century.

XII.

THE LAW OF DEBT

There remains one other feature of the economic situation to be discussed—a feature which brings us back to the Twelve Tables. This is the prevalence of debt and the demand for a reduction or cancellation of interest. According to Tacitus, it was enacted by the decemvirs that no one should practise usury at higher rates than ‘unciarium fenus.’ The meaning of this phrase is interest amounting to one-twelfth of the principal, and it is probable that such interest was monthly: the result is an annual rate of 100 per cent. The passage, however, raises difficulties, some of which are grave; but the difficulties are not enough to justify the condemnation of Tacitus as wholly wrong. It must be admitted that words open to such diverse interpretations as ‘fenus unciarium’ here cannot be quoted from the Tables but are merely used by Tacitus in giving his own description of the rule which the Tables contained. Yet even if the words purported to be a quotation, they could not be rejected out of hand on the ground that they implied a system of coined money and that coinage was not introduced at Rome till more than a hundred years later. For, though ‘uncia’ in course of time did indeed become a denomination of currency, the ounce was originally a measure of weight, and weight was a standard of value. The long survival of mancipation ‘per aes et libram’ implies that this method of counting the payment had been a feature of every sale over a period of time long enough to prevent its abandonment even when the advent of coined money had made it an anachronism.

If this period only ended in the second half of the fourth century, it may be assumed that Rome of the decemvirate was still weighing out lumps of aes rude whenever it had business to transact, and to a society in this stage the phrase ‘fenus unciarium’—or something which Tacitus might describe in these words—is not inappropriate. But a more serious objection to the account given by Tacitus comes from Livy, who attributes a ‘rogatio de unciario fenore’ to the tribunes M. Duillius and L. Menenius1 and so suggests that the law assigned by Tacitus to the Twelve Tables was in fact only passed in 357 BC—a date made plausible by the undoubted concern of Roman legislators with the debt problem in the years which immediately follow. The suspicion that Tacitus has made a mistake in his chronology is strengthened by Cato’s famous announcement—which reads like a reference to the Tables themselves—that the ancestors of the Roman people held it as a custom and enacted it in their laws that a thief should be mulcted in twice the amount concerned and a usurer in four times. If it only refers to a usurer who tries to charge interest at a higher rate than the highest allowed by law, the passage is not incompatible with the evidence of Tacitus; but it must be admitted that the context gives the impression that Cato believed there to have been laws at Rome which absolutely forbade loans at usury. In the circumstances it seems impossible to accept the view of Tacitus with confidence, and complaints against unconscionable rates of interest cannot be counted among the protests of the plebs in the first half of the fifth century.

Rates of interest, however, are a comparatively minor grievance in a crisis caused by debt, especially at a time before currency was in use: in the better-known Athenian history of the Solonian age the grievance is not even mentioned. There the cry was for cancellation of debts and for the enfranchisement of debtors who had been enslaved; and at the time of the first secession this is alleged to have been the cry in Rome as well1. But our knowledge of the troubles between borrowers and lenders rests on more solid foundations than tales like those about Valerius Volusus, Menenius Agrippa and Sp. Cassius. The frequent references in our authorities to the ‘nexi,’ the debtors with whose plight the story is concerned, become credible when the grammarian Cincius and Cicero combine to show that the Tables themselves contained regulations about the legal relation called ‘nexum.’ The paucity of our information on the law of early Rome makes nexum a subject of much uncertainty, but it may be said in general that nexum was a contract whereby one party received a loan, probably at the cost of submitting himself to the pronouncement by the other party of a formula which entitled the lender in case of default to seize the person of the borrower without judgment.

In the economic history of Rome nexum is important as an institution whereby debt led to slavery and also as one which suggests that mortgage played only a small part in the life of the age to which nexum belongs. The remedy of the creditor is against the body of the defaulting debtor: about distraint on his property there is something approaching silence. The explanation of this remains obscure. If it were suggested that encumbered property is a feature which only appears in a later age, the suggestion would be supported by what is known of securities in early Rome. The history of security is one in which the position of the pledger steadily improves. At first he retains neither dominium nor possessio of the pledge: in the end he may even retain both. Thus at an early stage in the development the lack of references to mortgage might have been due to the virtual alienation of their property by debtors before they reached the point at which it became necessary to enter on a nexum. But against this account serious objections may be urged. If it were true, by whatever means—legal or illegal—lenders had appropriated their debtors’ land, there would have been a situation incapable of relief without a restoration of expropriated farms of the kind which in Athenian history is ascribed to Solon. Yet at Rome, though the troubles of the debtors lasted long, they seem finally to have ended without any such drastic treatment as this. And again there is an indication in the Tables that a debtor might reach almost the last extremity and still be a man of property—a situation difficult to envisage if property of all kinds could be mortgaged. For these reasons it is not wholly impossible that the smallness of the part played by land in these transactions may be due to a partial survival of family ownership which prevented real property from being given as security for debt.

Whatever may be the truth about the debtor’s land, it is clear that the remedy of the creditors at any rate in the last resort was against their persons, and that the severity of the remedy was chief among the causes of complaint. Defaulters came wholly into the power of their creditors, who apparently might exact their labour from them or sell them abroad into slavery or even put them to death. The Romans themselves even believed that joint creditors might divide the corpse of the debtor, though they admitted that no case was recorded in which this barbarous right had been exercised. But even if, as is perhaps conceivable, the meaning of the Tables in this detail was misunderstood, the plight of the insolvent debtor remains grievous enough to account for the agitation against the hardness of his lot which is described by the historians and confirmed by the Decemviral legislation.

Thus Rome of the early fifth century seems to have been an agricultural community, settled in a land still perhaps famous for its timber but dependent for its living on what could be extracted from the soil. The age was one of frequent wars which, whether they were waged within the Roman territory or without, contrived to interrupt the work of a population so dense that without continuous labour not even a bare subsistence could be assured, and the result of interrupted labour was distress. The food supply of the community as a whole ran short, the poor were forced to seek assistance from the rich, and finally the difficulties were aggravated by the oligarchic exploitation of those resources in land which were at the disposal of the government. Thus the ground was ready for a class-war. The grievances of the poor against the rich were enough to start a fight, and there is no reason to doubt that these grievances played their part in stirring up the plebs. But, as in later times, so in the earliest history of the Republic the leaders of the masses profited more than the masses themselves. Almost from the outset the struggle took a constitutional turn, and the most signal success it brought to the unprivileged was no economic triumph but merely the opening of high office to the great plebeians. Doubtless to the many the Decemviral legislation was a gain. Customary rules were formulated and defined, and in procedure a long step was taken from the primitive practice of self-help to something like a system of justice administered by the State. In the matter of debt itself the rights of the creditor were set out, and the debtor who is iudicatus, by his appearance beside the nexus liable to manus iniectio without judgment, seems to indicate a growing readiness of the community to intervene. But though the condition of the humbler citizens was gradually improved, their fortunes are only incidental to the struggle of the orders. The thread which runs through the tale and gives it continuity is the long-sustained effort of the plebs to limit the imperium and to break down the patrician monopoly of its use.

XIII.

THE VALERIO-HORATIAN LAWS

We must now consider to what extent the legislation of 449 BC gave satisfaction to the political aspirations of the plebs. If we were to read the account of the settlement as given by Diodorus in one of the few passages in which he deals at length with Roman affairs, without previous knowledge, we should naturally assume that it embraced three cardinal measures: (a) that ten tribunes should be chosen with the highest authority of all magistrates within the city, to be as it were the guardians of the liberty of the citizens; (b) that one of the consuls of the year should always be patrician, and one chosen from the plebs; (c) that the tribunes of the year, before going out of office, should appoint an equal number to serve for the ensuing year, on pain of being burnt alive. It is impossible to say from what source this strange version is derived. Its author appears to have thought that tribunes had not previously existed, and Diodorus forgot that he had mentioned them in his entry for 471 B. The second law is an anticipation of 367 BC, and the third a confused reminiscence of the legend of the novem combusti, connected in one version with Sp. Cassius regarded as a tribune.

Livy’s account is much more circumstantial. The laws passed by Valerius and Horatius were three: (a) giving to plebiscita the force of leges; (b) restoring the right of appeal (provocation) which the decemvirs had brought to nought, and providing against the creation of a magistracy not subject thereto; (c) restoring the sacrosanctity of the tribunes ‘by repeating certain ancient ceremonies after a long interval of time’ and adding the legal sanction that ‘if any man should do hurt to tribunes, aediles, or iudices decemviri, his caput should be devoted to Jupiter and his goods sold by the temple of Ceres, Liber and Libera—i.e. the temple which served as an archive for the decrees of the plebs. This last text must be of fairly early date, since, as Livy makes clear, its explanation was disputed—both as regards the ground of sacrosanctity and the meaning of indices decemviri. Some hold that consuls and praetors were included under this title: but we can see that it refers to the board known in later times as decemviri stlitibus iudicandis, which decided cases where the libertas of an individual was in question—such cases in fact as those of Verginia in the legend of the Decemvirate. The consuls, according to Livy, further instituted the practice of depositing copies of the Senate’s decrees with the aediles of the plebs, and a tribune, M. Duillius, passed a plebiscitnm prescribing the death penalty for him who should ‘leave the plebs without tribunes or set up a magistracy not subject to provocatio.

We are not in a position to say how much historical truth is contained in this account: the right of provocation, it will be remembered, was guaranteed by the Twelve Tables and did not need further enactment. But the plebs evidently regarded the Consulate of Valerius and Horatius as a landmark in the history of its rise; and we can believe that the Roman people at this date accorded recognition—though not as yet sovereignty—to the new corporation, and gave its officials a definite place in the constitution.

In this respect the most remarkable feature of the settlement was the law which made the decrees of the plebs binding on the patricians. Nothing could be more explicit than the statement of Livy on this point:

“Seeing that it was, so to speak, a disputed point of law whether the patres were bound by resolutions of the plebs, they [the consuls] passed a law in the assembly of the centuries, to the effect that commands uttered by the plebs in their tribes should be binding on the people; which law furnished the proposals of tribunes with a weapon of keenest edge.”

Dionysius adds the Sanction which fulminates sentence of death and confiscation of goods against all who should undo or contravene this enactment.

It is impossible to accept these statements without careful examination. If true, they would imply that as early as 449 BC the Roman people delegated the legislative power without reserve to the corporation of the plebs, which would then have been able to realize the whole of its aims without let or hindrance. In fact more than a century and a half of political strife lay between the plebs and the fulfilment of its aspirations. It was universally agreed that in 287 BC, as the result of the last secession (to the Janiculum), a plebeian dictator, Q. Hortensius, carried a law to the effect that ‘what the plebs should command should bind all Quirites.’ The terms of the law are given in almost the same words by Pliny the Elder1 and Laelius Felix; Gaius says that the patres formerly declared that they were not bound by plebiscita because they had been made without their ratification, but that by the Lex Hortensia plebiscita were ‘made of equal force with leges, which is expressed by Pomponius in the words “it thus came about that the difference between plebiscita and leges rested in the form of enactment, their force being the same”. The jurists were of course only concerned with the Law of the Constitution as finally established, and it was no part of their task to trace the history of the question. But in Livy we find a law making plebiscita binding on the whole people attributed not only to Valerius and Horatius in 449 BC, but also to the first plebeian dictator, Q. Publilius Philo, in 339. He is credited by the historian with two measures, (a) that plebiscita should bind all Quirites, (b) that the patres should ratify measures proposed in the comitia centuriata before the vote was taken. Of the significance of the second law we have already spoken; there is no reason to dispute the truth of Livy’s statement. The first, however, is identical in purport with the laws of 449 and 287, and this triple enactment of the sovereignty of the plebs has naturally exercised the minds of modern historians, who have propounded various solutions of the problem.

It has been suggested that the accounts which we possess of the two earlier laws are incomplete, and that some limiting condition has been omitted, e.g. that the resolutions of the plebs, with or without the approval of the Senate, must go forward to the assembly of the centuries for confirmation; or that the auctoritas patrum was required at first, that it was then reduced to a formality, and finally abolished; in other words, that the first law merely recognized the right of the plebs to pass ordinances binding upon itself, and that the conditions under which they might become applicable to the populus were altered and that finally all restrictions were done away with. In that case it is clear that our authorities misunderstood the purport of the earlier laws.

Others have maintained that Livy was wrong in referring to decrees of the plebs, and that the enactments of 449 and 339 BC dealt with the powers of the comitia tributa populi. For what it is worth, we have the testimony of Dionysius that patricians took part in ‘tribal assemblies’, but were outvoted by the plebeians and the poor. But Dionysius, who was not capable of grasping the subtleties of Roman Constitutional Law, was not very clear as to the distinction between comitia populi and concilium plebis. In an earlier passage he distinguishes the comitia curiata with probouleuma and auspices, from the tribal assembly with neither; we may perhaps excuse the translation of patrum auctoritas by probouleuma on the ground that in his own time it was given in advance; but the tribal comitia certainly had auspices, since Julius Caesar took them in 45 BC for the election of quaestors.

There is, however, some reason for thinking that its decrees were not subject to the patrum auctoritas; for there is an argument expressed in almost identical language, suggesting a common source, which Livy puts into the mouth of Appius Claudius, opposing the Licinio-Sextian laws in 367 BC, and which Cicero himself uses in the speech de domo sua. Both are speaking rhetorically of the dire consequences which will follow, in the first case, if the highest magistracy is thrown open to the plebs, in the second, if the practice of transitio ad plebem becomes common. “Soon” it is urged, “there will be no patres to give auctoritas to the decrees of the comitia curiata and centuriata”. It seems to be implied that the tribal assembly, which in later times met indifferently as comitia and concilium, according to the office of its president for the day, was not subject to the auctoritas patrum. But nothing could be clearer than the importance attached to the distinction between populus and plebs in Livy’s account of the laws, and it does not seem possible to refer them to anything but a strictly plebeian body.

Radical critics naturally reject the Valerio-Horatian law as a fiction of the democratic annalists, for whom 449 BC was a landmark in the history of popular liberties. But we have to face the fact that laws of fundamental importance, such as the lex Canuleia permitting conubium between the orders (445 BC), the Licinio-Sextian rogations of 367, and the Leges Genuciae of 342, were passed by the plebs before 339 BC. It may therefore be best to admit that in 449 a law was passed giving validity to the resolutions of the plebs, which the patricians long contended were not binding on them because enacted without their consent, and (as long as they could) disregarded de facto: thus, as we shall see, the provision that one consul must be plebeian and the law that the office might not be held twice were in practice disobeyed. Not until 287 BC was the controversum ius finally made plain by agreed legislation

CHAPTER XV

ROME AND HER NEIGHBOURS IN THE FIFTH CENTURY BC