CHAPTER XVI

THE MAKING OF A UNITED STATE

I.

CONSULAR TRIBUNES

WHILE Rome was winning notable victories over her neighbours, in her domestic politics she had failed to achieve a lasting peace. The plebs were not satisfied with the concessions made to them by the settlement of 449 BC. We now enter upon the period in which their efforts were concentrated upon obtaining access to the chief magistracy of the State. Our narratives of the years which follow bear the stamp of later politics and cannot be trusted in detail. The right to a triumph, claimed by Valerius and Horatius, was contested by the Senate which (according to the custom of the later Republic) reserved to itself the privilege of according this distinction; whereupon a tribune L. Icilius, is said to have brought the matter before the populus and established a precedent for the granting of a triumph by the people. In 448 BC the patrician ex-consuls Aternius and Tarpeius are said to have been co-opted as tribunes, a violation of the constitution which provoked the passing of a law by a tribune named L. Trebonius providing that voting by the plebs should continue until the college of ten was at full strength.

The constitutional struggle became acute in 445 BC, when a tribune named C. Canuleius proposed to abolish the prohibition of conubium between patres and plebs and at the same time to throw the consulship open to plebeians; and after a bitter dispute —in which Valerius and Horatius took the side of the plebs—the Senate allowed the first measure to go forward, presumably to the concilium plebis, but in order to defer a surrender on the second point, consented that in place of consuls, three officers (tribuni militum) enjoying the authority of consuls (consulari potestate) should be elected from either social order—whereupon the plebs showed unexampled magnanimity by electing three patricians. Dionysius goes so far as to say that, by the terms of the law, three were to be patrician and three plebeian.

There seems no good reason for rejecting the tradition that the creation of this office was a political compromise; although Livy read in some of his authorities that these officers were set up because the military operations in prospect were on several fronts, and that they then assumed the authority and insignia of consuls. Hence it has been proposed to connect the number of tribuni militum with the growth of the military forces raised by Rome, each tribunus implying a levy (legio) of 1000 men. This was certainly not what the Romans meant when they spoke, like the Emperor Claudius, of ‘the imperium put into commission’.

In one point, however, the traditional version is open to criticism. If the object of the institution was to circumvent the admission of plebeians to the supreme magistracy, why do not the names of plebeians occur earlier and oftener in the recorded lists? According to Livy the first plebeian to obtain a place in the college was P. Licinius Calvus in 400 BC. It is not, however, certain that Livy is right; since (whatever he and Dionysius may say) one of the three first elected, L. Atilius, bears a plebeian name, and so does Q. Antonius Merenda, who served the office in 422 BC, and was evidently akin to the (supposed) plebeian decemvir of 450 BC. An entirely different view is taken by Beloch, who thinks all plebeian names which appear in the Fasti of the period 444—367 BC interpolated, even those included in the four colleges in which plebeians are said to have obtained a majority (400, 399, 396, 379 BC), and by drastic manipulation of the lists arrives at the conclusion that the number of consuls (for this he considers to have been their title) was raised to four in 426 BC and to six in 405 BC. In that case the whole story of the ‘struggle of the orders’ in this phase falls to the ground; and although the colouring is borrowed from the last century of the Republic, the main fact does not seem to be a pure invention.

II.

THE CREATION OF THE CENSORSHIP

One of the most characteristic of Roman institutions dates from the same period as the creation of tribuni militum with consular authority. This was the censorship, which embodies the first serious effort to create an administrative department at Rome. According to the account of Livy it was set up in 443 BC in order to relieve the consuls, who were engaged in almost perpetual warfare, of duties which were scarcely consonant with the dignity of their office. The register of citizens had not, in fact, been made up for many years1; and in order to carry it out, the consuls who had been appointed in the previous year, when a flaw in the election of the tribuni militum had brought about their retirement, and had not held office for their full term, were ‘commissioned to hold a census’; and hence called censors. Doubts have been cast on this story, since Livy assures us that he did not find the names of these consuls—L. Papirius Mugillanus and L. Sempronius Atratinus—‘in the early annals or the rolls of magistrates.’ Licinius Macer, it seems, brought them to light from his libri lintei, a fact which does not inspire us with confidence; and the authenticity of the treaty with Ardea, in which they appeared as representing Rome, is not above suspicion.

It may well be, however, that the names are really those of the first censors, and Livy’s hint that the patricians were not sorry to see an increase in the number of ‘patrician magistrates’ suggests that some compensation was thus given them for the suspension of the consulship. There is no good ground for thinking (with Mommsen) that in 443 BC special commissioners were appointed and that a regular magistracy was not set up until 435, when Livy says that the censors of that year—C. Furius Pacilus and M. Geganius Macerinus—‘approved’ the villa publica in the field of Mars and there held the census for the first time. Five years later we hear from Cicero of a pair of censors who imposed heavy fines in cattle, which were commuted for money on easy terms by the consuls. They are not mentioned in other sources, but the interval of five years was that which in later times —from 209 b.c. onwards, though with exceptions in the period of civil strife—was regarded as normal. Thus Varro speaks of a ‘five-year army’ (exercitus quinquennalis) and the word lustrum, which originally denoted the ‘purifying’ of the numbered host, came to mean the interval between two such acts and in the end a ‘five-year period.’ It is, however, evident from the records that there was no fixed interval in early days. In 433 BC, however, the dictator Marcus Aemilius passed a law fixing the tenure of the office at eighteen months. Livy, who calls the censorship a five-year magistracy in the speech which he puts into the mouth of Aemilius, mistakes the motive of the measure, which was not to reduce the tenure of the office, but to give the censors a sufficient time to perform their ever-growing administrative duties.

The original function of the censors was the registration of citizens and their property—at first only landed property—in order to determine their liability to taxation and military service. Each was placed in the tribe in which his lands were situate, and on these he was assessed to the special war-tax or tributum which was levied when the exigencies of the situation demanded it and sometimes treated as a loan and repaid when the treasury was flourishing. Each was also placed in a centuria, in which he voted in the assembly. This made it possible for the censor to inflict certain penalties for misconduct. He could ‘remove’ the citizen from his tribe, and place him in one of the four city wards, where his vote would count for less in the tribal assembly. He could also ‘make him a tax-payer,’ i.e. erase his name from the roll of his centuria, so that he was a citizen only for the purpose of paying tributum ‘for his caput.’ It was related of the dictator who passed the Lex Aemilia that the censors were so enraged by the slight put upon their office that they ‘removed him from his tribe, rated him at eight times the value of his property, and made him a tax-payer’! It was further the censor’s duty to draw up the list of those liable to cavalry service (equites) for which the highest property qualification must have been required; at any rate Livy tells us that when the cavalry force maintained by the State was found insufficient for military needs during the siege of Veii, those who possessed the census equester were allowed to serve ‘with their own horses.’ Newly enrolled citizens, again, were registered at the discretion of the censors, and this act might have political significance, as for example where the status of freedmen was concerned: and since the rule of collegiality applied as between the censors—though they were not ‘colleagues’ of the consuls and praetors—it was not uncommon for serious differences of opinion to make it impossible for the census to be completed.

It was not unnatural that the magistrates who made up the register of equites should be entrusted with the revision of the Senatorial roll; and this highly important function was assigned to them, as Festus tells us, by a Lex Ovinia of unknown date. The  first allusion which we have to such a revision relates to the census of 312 BC; and it is not a little remarkable that so important a constitutional change should have been made by plebiscitum at that date. Here was a new field for the exercise of those disciplinary powers which were already in use in the registration of citizens: the censor’s will was law and he could strike a senator off the roll without appeal and without being called upon to give account or his action. But here the sound sense of the Romans prevailed, and a ‘ code of honour ’ was gradually built up, which served as a model, as time went on, for the praetors, who punished breaches thereof by the withdrawal of certain civic rights and privileges, known as infamia. Thus the ‘rule’ or ‘care of manners’ (regimen or cura morum) became the most conspicuous feature of an office which had its origin in administrative convenience. It might be justified by the necessity of expelling unclean elements from the host which was about to be purified by the lustrum; it came to find expression in such edicts as that of the censors of 92 BC directed against teachers of Latin oratory.

The second great sphere of the censors’ activity was connected with the properties of the State and the contracts to which the people was a party. Since their functions in these matters were not part of their original competence they could be and not infrequently were performed by other magistrates, especially the consuls, who were naturally obliged to act from time to time during the intervals when no censors were in office; but normally it was the censors who, according to the common practice of ancient city-states, entered into contracts for the enjoyment of State properties, mines, salt-pans, etc., or rights of fishery or pasturage, and generally for the ingathering of revenues (vectigalia), and it was they who made allocations (ultro tributa) to contractors who executed public works, especially buildings, or made themselves responsible for their upkeep. As watchful guardians of the people’s property it became them to resist encroachments and on occasion to inflict fines.

It has already been mentioned that the quaestors were, according to Tacitus, elected by the people from 447 BC onwards; and since the office did not carry with it the imperium, the patres were not vitally interested in the exclusion of plebeians; and when the number of quaestors was doubled in 421, in order that two might manage the business of the Treasury while two others attended the consuls in the field, plebeians were declared eligible, though not without considerable opposition. The plebeian candidates, however, failed to secure election in the following year, and it was not until 409 that three out of the four places were secured by the plebs who (according to Livy’s account) considered that a way was thus paved for access to the consulship and the triumph.

III.

THE CLIMAX OF THE CONSTITUTIONAL STRUGGLE

The constitutional struggle reached its climax after the Gallic sack. Once more it is difficult to disentangle legend from history, and we must be content with a balance of probabilities. Little need be said of the coup d'état of M. Manlius Capitolinus, the hero of the defence of the Capitol, which is placed by our authorities in 385 BC. According to Livy, Manlius was ‘the first of the patricians to become a partisan of the people,’ who took advantage of the chronic discontents in the matter of land and debt to arouse a sedition; a dictator was appointed (in the first instance to conduct a campaign against the Volsci) who threw Manlius into prison. After his triumph, however, he resigned his office, and Manlius was released; but in the following year sedition broke out afresh, and Manlius was brought to trial before the people by two of the tribunes, and as he escaped condemnation by the centuries assembled in the Campus Martius by pointing to the Capitol which he had saved, the venue was changed, and Manlius was condemned and hurled by the tribunes from the Tarpeian rock. ‘But,’ adds Livy, ‘some authorities have it that he was condemned by duoviri perduellionis specially appointed.’ We may therefore doubt whether authentic records of the trial, which evidently interested students of criminal law, were preserved: and there is a variant of the tradition, found in a fragment of Dio Cassius, according to which Camillus was made dictator for the fourth time in order to deal with the sedition, which is clearly due to a desire to point the contrast between the two saviours of the State. Livy introduces into his story the so-called Senatus consultum ultimum, instructing the consuls to ‘see to it that the Republic take no harm,’ for which the senatorial party of the Gracchan period were only too anxious to find precedent, and this may serve to date his source.

We now come to the agitation by which the plebs at length secured admission to the supreme magistracy. The leading figures are C. Licinius Stolo and L. Sextius, who on their appointment as tribunes in 376 BC came forward with a legislative programme which it took ten years of strife to realize. Two of the three laws associated with their names dealt with the economic problems of land and debt, and will be discussed later: the third provided that the consulate should be restored, and that one consul at least should be a plebeian. According to Livy’s story, Licinius was led to raise the issue by the fact that his wife, the daughter of a patrician, M. Fabius Ambustus, felt herself socially inferior to her sister, who was married to a man of her own rank: the details are not to be trusted, but it is fair to draw the inference that intermarriage between the orders was beginning to weaken the cohesion of the patres.

The Senate, however, secured the veto of the eight colleagues of Licinius and Sextius, which prevented the passing of the three laws; this is a trait borrowed from the history of the later Republic, when it was always easy to find members of the tribunician college ready to block an awkward measure. The agitators retorted by putting a veto on all elections save those of plebeian magistrates —how exactly this could be done is not explained; and then followed what Livy calls a solitudo magistratuum and Diodorus an άναρχία. According to the former authority this lasted for five years, according to the latter for one year only: but the Fasti of the Regia, though unfortunately missing for this period, can be shown to have had space for the names of consular tribunes, and some of these are given in a very corrupt form in the handbook whose author is known as the ‘Chronographer of A.D. 354.’

The struggle was resumed under constitutional forms in 370 BC (when consular tribunes were once more elected), and in the following years, and the number of tribunes opposed to the Licinio-Sextian laws sank to five. At length, in 368 BC, Camillus was appointed dictator in order to quell the agitation: he appointed as his master of horse L. Aemilius Mamercinus. After threatening drastic measures, however, he resigned his office, ‘either,’ says Livy, ‘because he had been irregularly appointed, as some have stated, or because the tribunes proposed to the plebs and the plebs approved a resolution, that should M. Furius perform any act in virtue of his office of dictator, he should be fined 500,000 sesterces.’ Livy prefers the former explanation, and says that P. Manlius Capitolinus was made dictator in his place—not however before a vote on the three laws had been taken in the concilium plebis, which passed those relating to land and debt, but rejected the admission of plebeians to the consulship, a decision which the proposers declined to recognize. The new dictator appointed as his master of horse a plebeian, C. Licinius, who was related to him and had held the office of consular tribune. A compromise seemed to be in sight, but the senatorial die-hards, led by Appius Claudius, a grandson of the decemvir, succeeded in staving off the passage of the Licinio-Sextian laws. The tribunes, however, passed a law increasing the number of commissioners for the regulation of Rites and Ceremonies (sacris faciundis) from two to ten, one-half of whom were plebeians. Consular tribunes were then elected for 367 BC.

The year began with a Gallic inroad, and Camillus was made dictator for the fifth time, with T. Quinctius Poenus as master of horse. After his defeat of the Gauls and the triumph which followed, a final struggle ended in a settlement of the constitutional issue by which both parties were the gainers. The plebs attained its cherished ambition by the election of L. Sextius as the first plebeian consul. On the other hand, a third praetor (without the title of consul) was added to the supreme college, whose function was the administration of justice in Rome and between Roman citizens1; and in pursuance of the Senate’s decree, the dictator held an election for the appointment of two patrician aediles. It should be added that in the following year (366 BC) an arrangement was come to by which these ‘curule’ aediles should be chosen in alternate years from patres and plebs. In 365 BC a pestilence carried off Camillus, ‘the restorer of his fatherland and second founder after Romulus of the Roman stock.’

Such is the account given by Livy of these momentous changes. It has naturally not escaped criticism. The two dictatorships of Camillus are rejected by those who regard all the later notices of his career as accretions to what Mommsen called ‘the most mendacious of Roman legends.’ In particular, the Gallic inroad of 367 BC is rendered suspect by the statement of Polybius that thirty years passed between the battle of the Allia and the next irruption of the Gauls: even Livy doubts the statement (which he found in the Annals of Claudius Quadrigarius) that the single combat at the bridge of the Anio which gave T. Manlius Torquatus his cognomen took place in this campaign and not, as others said, ten years later. But the stubborn fact remains that the name of a plebeian appears for the first time in the Consular Fasti in 366 BC, from which time onwards tribuni militum consulari potestate are no longer heard of. And it is hard to believe that this stronghold of patrician rule could have been carried except as the result of an intense political struggle. The concessions made to the patres by the institution of the praetor qui inter cives ius dicit and the ‘curule’ aediles give no cause for suspicion in themselves. De Sanctis’ suggestion that a third praetor had long been in existence we found unconvincing and the same must be said of Beloch’s view that a college of four plebeian aediles had existed since the fifth century, to which, on account of its growing administrative importance, the patricians sought and obtained admission.

Our information with respect to the internal politics of Rome in the period following the election of the first plebeian consul is unfortunately very meagre. For eleven years the rule that one of the consuls should be a plebeian was strictly observed; but the office was confined to a limited circle. On the patrician side three persons held the consulship twice in the first six years of the period: L. Aemilius Mamercinus, Q. Servilius Ahala and C. Sulpicius Peticus. L. Sextius, the plebeian who first broke the bar, is not heard of again, but two familiae., the Genucii and Licinii, monopolize the representation of the plebs during the same years. Whether the first was a plebeian branch of the patrician family to which, if the record is genuine, the consul of 451 BC and decemvir belonged, or whether the family in question had ‘gone over to the plebs’, we cannot determine. Our authorities, again, are at variance with regard to the Licinii. The consul of 364 BC bears the cognomen Calvus in the Fasti, while Livy identifies him with Stolo, the popular leader: in 361 the position is exactly reversed. It cannot however be argued that these elections point to a coalition between a group of ‘liberal’ patricians and the leaders of the plebeian movement, since Q. Sulpicius Peticus, as we shall find, was evidently a conservative.

In the five years following 361 BC the personnel changes. The patrician consulships alternate between Fabii and Manlii, while on the plebeian side new names appear in the lists. In 360 BC, C. Poetelius Libo Visolus, in 359 BC, M. Popillius Laenas, in 358 BC, C. Plautius Proculus, and in 357 BC, C. Marcius Rutilus attained the consulship, and it is a remarkable fact that three of these, together with a gentilis of the fourth, C. Plautius Venox, monopolize the plebeian representation down to 340 BC. C. Poetelius, who was consul for the second time in 346, and for the third in 326, is said to have proposed, as tribune of the plebs in 358, a law de ambitu, dealing with abuses in connection with canvassing at elections, especially in the markets and other places of meeting outside Rome; Livy gives no details with regard to the practices forbidden, and his suggestion that it was directed against novi homines, i.e. those belonging to families hitherto unrepresented in the magistrature, sounds like an anachronism, though it is in keeping with Livy’s statement that the Senate approved the measure1. In fact, however, the highest office was confined to a limited number of families. M. Popillius Laenas and C. Marcius Rutilus both held the consulship four times, and the Plautian gens furnished seven consuls in the course of the fourth century. Meanwhile the other high offices of state were gradually attained by plebeians. C. Marcius Rutilus was the first plebeian dictator in 356, the first plebeian censor in 351. His gens was that to which a king of Rome had by tradition belonged, and it is remarkable that at a later date it even supplied a rex sacrorum, from whom the cognomen Rex was derived by his descendants.

On the other hand, the patricians succeeded in nullifying for a time the compromise with regard to the consulship embodied in the Licinio-Sextian law of 367 BC. From 355—343 there were at least six, and possibly seven, occasions upon which two patrician consuls were elected. In the first of these years there was a sharp struggle, eleven interreges being appointed in succession before the tribunes withdrew their opposition. One of these, M. Fabius Ambustus, appealed to the constitutional doctrine laid down in the Twelve Tables, that the last decision taken by the populus should have the force of law, and contended that this should apply to elective as well as legislative acts. It is not certain whether two patricians held office in 354, since the name of M. Popillius appeared, as Livy tells us, in one recension of the Fasti: but no plebeian was consul in 353, 351, 349, 345 or 343. This fact has led Munzer to suggest that a compromise was arrived at similar to that which governed the election of curule aediles from patres and plebs in alternate years; but this supposition is unwarranted. However, C. Marcius Rutilus, who, it will be remembered, had been the first plebeian dictator, attained the censorship in 351 BC, in spite of the fact that two patrician consuls were in office.

In 342 BC, according to Livy’s narrative, a constitutional crisis arose as the result of a mutiny of the Roman troops in Campania. We are not concerned with the details of the story, which was told with some variations by other authorities. The mutiny is counted as a secessio of the plebs by Florus; and the relief of debtors which ended it is discussed elsewhere. As for the grievances of the army, they are said to have been redressed by a lex sacrata militariae an expression which again recalls the earlier secessiones of the plebs. But Livy adds that ‘according to some authorities’ L. Genucius, tribune of the plebs, carried three laws. The first prohibited the lending of money at interest; the second forbade re-election to magistracies until a ten-year interval had elapsed, as well as the cumulation of offices; the third made it lawful for both consuls to be plebeian. It is difficult to criticise these statements in the absence of other evidence; and reasons are given below for accepting the genuineness of the lex fenebris. But the second law, if passed, was certainly not observed, and must be regarded, if historical, as an unsuccessful attempt to break down the domination of the ruling cliques, whether patrician or plebeian. The third law may be looked upon as defining more clearly the qualifications for the supreme magistracy. It is true that it was not until 172 BC that two plebeian consuls actually held office; for when, in 215 BC, M. Claudius Marcellus was elected to the seat rendered vacant by the death of L. Postumius Albinus, and assumed office, he was induced to abdicate because the gods were alleged to have signified their displeasure at the tenure of both consulships by plebeians. On the other hand, it is doubtful whether the election of two patrician consuls took place after 342 BC; for T. Veturius Calvinus, who was consul with Sp. Postumius Albinus in 334 and 321 BC, may (as Mommsen supposed) have belonged to a branch of the Veturian gens which had ‘gone over to the plebs.' It is therefore not to be denied that a law providing that one consul must, and both might, be plebeian, may have been enacted in 342 BC.

The year 339 supplies another landmark in the constitutional struggle. The consuls of the year were Ti. Aemilius Mamercinus and Q. Publilius Philo. The first belonged to a patrician house which, as we saw, was represented in the Fasti of the years immediately following the Licinio-Sextian legislation; it is noteworthy that in the person of Q. Servilius, consul in 342, and perhaps identical with the consul of 365 and 362 BC, the names characteristic of that period begin to recur. The second was presumably descended from the Publilii of earlier Republican history (the first of them appears in the list of tribunes of 471 BC), but was destined to bring far higher distinction upon his gens. He was named as dictator by his patrician colleague, and as such carried three laws, if Livy speaks truly. The first affirmed (or re-affirmed, if we accept the genuineness of the Valerio-Horatian statute of 449) the validity of plebiscita for the whole populus; the significance of this has been discussed above  The second enacted that the patrum auctoritas required to give binding force to the legislative enactments of the assembly of the centuries should be given before the voting took place, and thus reduced the only substantial privilege (except that of appointing the interrex) left to the patrician members of the Senate to a pure formality. By the third it was provided that one censor at least should be plebeian.

Nor did the achievements of Publilius end here. In 337 BC he became the first plebeian praetor; he was censor in 332, when two additional tribes were created; and in 327, when he was consul for the second time, his position as the ‘indispensable man’ brought about a momentous innovation. ‘Pressure was put upon the tribunes, ’ says Livy, ‘ to propose to the people that when Q. Publilius Philo’s term of office as consul came to an end, he should continue to act as consul (pro consule rem gereret) until the operations against the Greeks [i.e. those of Neapolis] were brought to a conclusion. ’ This was the first example of the conferment of acting-rank by vote of the people (hence called prorogatio imperii) in order to extend the term of office of a magistrate. Nothing can be more characteristic of the Roman method of solving practical problems of administration than this legal fiction by which a commander was ‘deemed to be consul’ in order to meet the necessities of warfare without increasing the numbers of the supreme college or sacrificing the principle of the annual magistracy. It will appear in the sequel how that which was in origin an emergency measure became the normal method, not only of conducting warfare in distant theatres, but of administering overseas territories. Furthermore, it will become clear that the assignment of such extended commands fell in practice into the hands of the Senate and became one of the chief sources of its authority. True, the sovereign right of the people to grant such extensions of the annual imperium never fell into desuetude, and was revived in the death-struggle of the Republic. But the language of the historians implies that the Senate was normally responsible for the prorogatio imperii. It is worth noting that Livy (who was careful to observe that the practice began in 327 and to record the procedure employed) writes under the year 307 that ‘the Senate extended the command of Fabius for the following year,’ though in a somewhat later case (in 295 BC) he tells us that ‘L. Volumnius had his command extended for a year in accordance with a decree of the Senate and a resolution of the plebs.’

IV

APPIUS CLAUDIUS

We next come to an episode which loomed large in the narratives of the Roman annalists—the censorship of Appius Claudius ‘the Blind ’, whose memory was kept green by the great works which bore his name, the ‘queen of roads’ connecting Rome with Capua, and the first of the Roman aqueducts, which brought a supply of pure water to Rome from springs near the river Anio, between seven and eight miles from the city. The fullest account of his policy as censor is naturally that given by Livy in the ninth book. According to Livy’s version the plebeian colleague of Appius, C. Plautius, resigned his office owing to the odium aroused by the revision of the Senatorial roll. This function, as has already been mentioned was imposed upon the censors by a plebiscitum carried by one Ovinius, of whom nothing else is known. It has been supposed that this is to be dated shortly before the censorship of Appius Claudius (312 BC), the first in connection with which the lectio senatus is mentioned by historians, but there is no evidence on the point. Appius Claudius, it seems, placed the sons of freedmen on the roll of the Senate, and the consuls of the ensuing year refused to recognize the list drawn up by him, and summoned the senators previously on the roll. There can be no doubt that the enfranchisement of slaves had become a common practice in Rome, for Livy records that in 357 BC a tribal assembly summoned by the consul Cn. Manlius at his camp at Sutrium imposed a tax of 5 per cent, on manumissions. To this enactment the patres gave their sanction in spite of the irregularity of the procedure, the repetition of which was forbidden by a plebiscitum. Almost a century later than the censorship of Appius, Philip V of Macedon, writing to the citizens of Larissa in Thessaly, brings to their notice the liberal policy of the Romans in the matter of extending the full rights of citizenship (including that of holding office) to their manumitted slaves.

In a later passage Livy explains the election of Cn. Flavius (of whom we shall presently speak) to the curule aedileship as due to the votes of the forensis factio, which had acquired power since Appius, provoked by the scant respect shown to his senatorial roll, had distributed the lower orders (humiles) throughout all the tribes. Diodorus tells us that Appius ‘gave to the citizen the right to be placed in whichever tribe he chose and to register his property wherever he pleased.’ These statements were taken by Mommsen to mean that Appius for the first time took account of property other than land in drawing up his citizen-roll; but that is not what our texts say, nor can we suppose that the inhabitants of the city of Rome—many of them men of considerable wealth—were deprived of voting power unless they possessed land outside the walls. A vote in a ‘city’ tribe, however, naturally counted for less (since the constituency was much larger) than a vote in a ‘rustic’ tribe, and Appius seems to have sought popularity by a scheme of redistribution. His reform was not of long duration, for though it survived the censorship of 307 BC, the censors of 304 BC—more especially Q. Fabius Maximus Rullianus—removed the forensis turba from the registers of the ‘rustic’ tribes, and (says Livy) ‘flung them into four tribes which he [Fabius] called “urban,” thus gaining the title of Maximus which his many victories had failed to earn for him1.’ It is clear that Livy’s authority, who seems to have thought that the ‘urban’ tribes had not previously existed, had a confused notion of the situation.

The censorship of Appius was immediately followed by his election to the consulship. According to Livy, he refused in  310 to lay down his office on the expiry of the eighteen months’ term allowed by the Lex Aemilia, and though a strong protest was made by the tribune P. Sempronius and five of his colleagues, he secured the assistance of three other tribunes and continued to defy the law. According to some annalists, he was still censor when elected in 308 to the consulship for 307, in spite of a tribunician veto on the election. His colleague both in this year and in that of his second consulship (296 BC.) was one L. Volumnius, doubtless one of his henchmen. In 307 Volumnius was given a command in the field against the Sallentini, and while Fabius Maximus prosecuted the war against the Samnites in virtue of his prorogatio imperii , which Appius had strongly opposed, Appius remained in Rome. The later phases of his political career will be noticed in due course.

Amongst the sons of freedmen who benefited by the patronage of Appius Claudius was one Cn. Flavius, ‘the son of Annius, ’ whose career was of especial interest to jurists. It is agreed by all authorities that he was a scriba, i.e. a magistrate’s clerk or registrar; some said that he served Appius Claudius in this capacity. According to others he was on the staff of the curule aediles, and the annalist Piso  told the story that at the comitia for the election of aediles for 304, when votes were cast for Flavius, the aedile presiding refused to permit his candidature, whereupon Flavius resigned his clerkship and was duly elected. Licinius Macer, on the other hand, stated that Flavius had already held the offices of tribune, triumvir nocturnus and triumvir coloniae deducendae. Pliny the Elder, who tells us that the colleague of Flavius was a certain Q. Anicius from Praeneste, and their opponents Poetelius and Domitius, both sons of consuls, adds that Flavius was elected tribune as well as aedile, which so shocked the conservative aristocrats that they cast aside their gold rings and other ornaments. These and other stories show how little reliance can be placed on any statement regarding the political career of Flavius. All authorities however agree in connecting his name with the publication both of the fasti, i.e. the calendar of court-days, and of the legis actiones, or forms of pleading at law. Livy says that ‘he made public the civil law, which had hitherto lain buried in the secret archive oi fat pontifices, and posted up the Calendar on a tablet in the Forum, so that all might know when proceedings could be taken at law’; and Cicero confirms this in an amusing passage of the pro Murena, when he tells of ‘the clerk who picked out the eyes of the crows’ (or, as we should say, ‘cut their claws’). When, however, we examine the statements of our authorities in detail, certain difficulties arise.

To begin with, it did not escape Atticus, on reading the manuscript of Cicero’s de Republica (in which the publication of the fasti was mentioned), that since the Calendar of court-days was included in the Twelve Tables it might seem to be implied that Flavius lived before the decemvirate. Cicero replies that (though this was naturally not the case) ‘it is supposed’ that the table containing the Calendar had been hidden: and that in any case there are ‘not a few authorities’ for his statement about Flavius. Nor do the texts agree as to the source and occasion of his publication. Pliny says that it was by the advice of Appius Claudius that by means of diligent enquiry he drew up his list of court-days and published it, thereby gaining such popularity with the plebs that he was elected curule aedile. Pomponius, on the other hand, in his sketch of constitutional development relates that Appius Claudius reduced the legis actiones to writing and that his clerk Cn. Flavius ‘stole the book and presented it to the people, who were so delighted with the gift that he became tribune of the plebs, senator and curule aedile.’ Livy, on the other hand, seems to have thought that it was as aedile that Flavius published both fasti and ius civile. Perhaps the most that can be inferred from these contradictory accounts is that Flavius was the author of the earliest compendium of Roman legal procedure, a boon to suitors who might easily lose their way in the maze of technicalities characteristic of early law. This ius civile Flavianum, as Pomponius calls it, was superseded by the work of Sex. Aelius Paetus a century or more later, and little was known of it or of the personality of the compiler, about whom legend clustered thickly.

The struggle of the orders was now entering upon its final stage. To the year 300 tradition assigns two measures of great importance. The consul M. Valerius Maximus passed a law confirming the right of appeal to the people against capital sentences, the import of which has already been discussed. A striking victory for the plebs was won when the tribunes Cn. and Q. Ogulnius carried a measure in the teeth of conservative opposition, led by Appius Claudius, throwing the great priestly colleges of pontifices and augures open to the plebs. According to Livy, it was proposed that ‘inasmuch as there were at the time four augurs and four pontifices, and it was desirable to increase the number of priests, four pontifices and five augurs should be added to the number, all from the plebs.' The names of the plebeians appointed in pursuance of the law are given, and there is no reason to doubt their genuineness: the four pontifices (whose cognomina are added) are all consulares of recent standing. Livy seems however to be mistaken in supposing that the number of pontifices was raised to eight: at any rate the lists show that, like the augurs, they were nine in number in the latter part of the third century. The vacancies continued to be filled by co-optation; but the places now filled by plebeians were for the future reserved for the plebs. At the consular elections held in 297 a last attempt was made to secure both seats for patricians. Q. Fabius Maximus was elected on the first vote, and Appius Claudius endeavoured to secure the second place: but Fabius saved the situation by withdrawing his candidature.

The extant narrative of Livy ends in 293, before the ‘struggle of the orders’ was brought to an end. We do not know the date of the Lex Maenia, by which, as a logical corollary of the Publilian law of 339, the patrum auctoritas was made a preliminary formality in elections, but as it is not mentioned in the first decade of Livy, and was not yet passed, according to Cicero, in 299, it must be later than 293 BC

The end of the struggle was now at hand: but before we come to the last act of the drama it will be well to review the economic and political changes of the period which this chapter covers.

V.

FOOD-SUPPLY, PUBLIC LANDS AND COLONIES

It has been seen already that the legislation of the decemvirs brought with it no immediate relief of economic distress, and it is therefore natural that in the years following 450 BC the agitation of the poor was as insistent as it had been since the time of Sp. Cassius. The recorded incidents still fall into three classes, according to their connection with the food-supply, the use of  public land and the law of debt; and of these the first may be briefly dismissed.

The tale of famines during the second half of the fifth century, and of the measures taken to meet them, contains only a single episode of interest: this is the affair in which Sp. Maelius plays the leading part. The story ran that in 440 BC food became so scarce that the plebs was moved to a memorable step: either in this year or the next a certain L. Minucius was appointed praefectus annonae. It was even alleged that his tenure of this office was recorded in the libri lintei. But though he sent missions far and wide in search of corn, his efforts were rewarded with a success so slight that a rich plebeian named Spurius Maelius saw an opportunity for personal aggrandizement, and seized it by making public distribution of corn which he had acquired in one way and another with his own resources. The result of this was to bring down on Maelius the suspicion of aiming at a tyranny, and he was finally killed in the public interest by C. Servilius Ahala. The circumstances wherein Maelius met his death, which are variously recounted, are as doubtful as the evidence for his life; but it is Minucius who calls for closest notice. In the early Empire the distribution of corn to the populace of Rome took place in the Porticus Minucia; and from this it would be tempting to infer that L. Minucius, the praefectus annonae of the fifth century, was an invention based on the association of the Porticus Minucia with the food-supply. But this is not the case. The Porticus is not known to have been used for the service of the annona before the principate of Claudius: it was not even built until 106 or thereabouts, when M. Minucius Rufus triumphed over the Scordisci: and yet L. Minucius is already associated with Sp. Maelius in dealing with the famine of 440/439 by Cincius Alimentus, who wrote before the end of the third century BC. Thus the most obvious method of proving the praefectura annonae attributed to L. Minucius to be an invention of the annalists completely fails; and the other proofs which have been attempted are scarcely more successful. Sp. Maelius was certainly connected with the area called ‘ Aequimelium ’ at the foot of the Capitoline above the Vicus Iugarius; but the view that Maelius and Minucius were brought together as actors in a single scene of history because a column or statue, known to have been erected to Minucius, stood near the Aequimelium is far from cogent. The monument is said once by Livy and twice by Pliny to have been set up ‘outside the Porta Trigemina’; and though the site of this gate cannot be identified with certainty, in no case can the statue and the Aequimelium have been less than a quarter of a mile apart. Thus, however much a fiction Sp. Maelius may be, the story of L. Minucius seems to have withstood the efforts so far made to demonstrate its falsity; and in that case it deserves notice as a reminder that tales of difficulties with the food-supply in fifth-century Rome cannot all be brushed aside without consideration. Local shortages were familiar in almost every period of the Empire, and there is no reason to doubt that they were known in Italy of the early Republic. The remaining crises of the fifth and fourth centuries need only the briefest mention. When the famines of 433 and 4113, like the affair of 491, are made the occasion of missions to buy grain from Etruria, the ager Pomptinus, Cumae or Sicily, the details may be doubted, though the incidents to which they are attached may well be historical. And the same may be said of the troubles in 299, when the situation was supposed to have been saved by one of the Fabii, alleged by Licinius Macer and Aelius Tubero—wrongly, as it would seem—to have been Q. Fabius Maximus Rullianus himself.

Of the fruitless complaints about the ager publicus which abound in narratives of the later fifth century the majority may be ignored; but it is perhaps worth while to notice the occasion in 424 when, according to Livy, it was proposed to raise money for military pay by the exaction of a rent from possessores. For the rest it is enough to say that, as was to be expected, plebeian demands were loudly heard when fresh land was made available by the advance against the Aequi, by the conquest of Veii and by the final victories against the Volscians ascribed to Camillus. The attempt of Schwegler to bring the tribunician demands for allotments of public land into chronological relation with the military successes which gave Rome her territorial gains, and his suggestion that the subject of debate after the fall of Veii was not a proposal to move the whole Roman people thither so much as a plan to establish large numbers of the plebs on Veientane territory, are perhaps somewhat speculative. But it is not to be denied that a long-deferred satisfaction of the demand for allotments was brought by the rapid expansion of the ager Romanus which may be said to have begun with the battle of the Algidus. To the year 393 Livy assigns a decision of the Senate whereby part of the region taken from Veii was to be distributed to the poor in plots of seven iugera. Diodorus, indeed, suggests four iugera as the normal grant, and this is probable: a figure so high as seven is perhaps more appropriate to the third century. But there is no reason to doubt that the decision, whatever precisely it may have been, was taken and also carried into effect. About a later proposal, on the other hand, to deal with the ager Pomptinus in the same way, Livy is less confident. Though he mentions demands for its distribution in 388 and 387 and believes that quinqueviri Pomptino agro dividendo were appointed in 383, he only records that they were prevented from acting at the time and says nothing about a later resumption of their operations. But whatever may be the truth about this, it is clear that with the fourth century there came a change in the prospects of the plebs. Their demand for a share in the land which had long been public had failed; but when new acquisitions were made, their fortunes improved. Even in the fifth century they may occasionally have profited from colonial foundations, and after the fall of Veii not only was the policy of colonization continued but allotments to individuals were sometimes made as well. At length the poor seem to have established their claim to a share in the public land, and in these circumstances it is intelligible that the regulation of tenure took a place even more prominent than before in the programme of the plebeian reformers.

Among the measures ascribed to C. Licinius Stolo and L. Sextius Sextinus, none has provoked fiercer controversy than that whereby they are said to have fixed a limit to the amount of ager publicus which any individual might hold. Two of our authorities —Plutarch and Appian—allege that Tiberius Gracchus in 133 re-enacted a law which forbade a citizen to occupy more than five hundred iugera of public land; but neither of them gives a clue to its authorship, and for their opinion of its date there is no better evidence than the implication, probably to be found in the opening sentences of Appian, that it belonged to a time after the Roman conquest of Italy. Such a law is mentioned already by Cato. The rest of our informants, of whom Varro is the earliest and Livy the most familiar, include the measure among the rogations of Licinius Stolo and L. Sextius and thereby place it in the first half of the fourth century. The arguments wherewith Niese sought to show that the law cannot have been passed before the end of the First Punic War are of very varied value, and the weaker of them would be negligible without the support of the more cogent. His view, for instance, that the accounts of Plutarch and Appian should be preferred to that of Livy because they are derived from Posidonius rests on a theory of the common source used by these two writers which was always doubtful and which should now be definitely given up. The one apparently serious objection which he urged against the traditional date is that to set a limit of five hundred iugera to holdings of public land implies the existence of public land in quantities far larger than can be admitted at any time in the fourth century. It is assumed that, when it was found necessary to pass the law, there must have been many holdings of dimensions greater than those to be allowed for the future, and even more of smaller size; and it is then alleged that holdings on this scale demand an amount of public land which was never reached before the conquest of Italy. The case, however, is by no means convincing. At the outset it may be suggested that a prohibitory law is no evidence that the abuse against which it is directed has been frequent in the recent past: if holdings of public land were confined for the future to five hundred iugera at most, the fact does not justify the conclusion that holdings of larger size than this were already numerous. Again, the assumption that during the regal period and the fifth century Rome had acquired no more than a negligible amount of territory which remained public is not only improbable but directly opposed to the unanimous evidence of tradition: tradition at least is clear that in the fifth century grants of land to colonies and to individual citizens were not on a scale which would account for the whole of the land which Rome appropriated from her neighbours. But it is by an examination of details that the weakness of Niese’s case can best be shown; and of these a single example will suffice. The territory won by the conquest of Veii amounted to more than two hundred thousand acres, which in plots of seven iugera would provide for about forty-five thousand allottees; and if Diodorus is right in confining the grants to four iugera each, the number of possible recipients would rise to something like eighty thousand. Even the lower of these figures is vastly in excess of the highest which they can seriously be believed to have attained. If then, as the evidence suggests, less than half the available territory sufficed for the purpose of these grants, it is clear that, when they had been made and when the needs of the surviving Veientane population had been met, in all probability there was still enough land left over as ager publicus of the Roman people for its proper use soon to become an object of legislation. It is not to be denied that the great increase of public land, which subsequently served as the main investment for the capital of the rich, came with the second half of the fourth century; but there is no good reason to doubt that by the time of the Licinian-Sextian legislation Rome already disposed of public land enough to make its control a matter of public interest.

Thus the law may be accepted; and it must be noticed as a measure which fostered the prosperity of the poor at the expense of the richer classes, among whom were to be found the great plebeians whose admission to curule office was the outstanding result of the struggle of the orders. But the details narrated of its passage cannot be stressed. Though its application in 298 is wholly plausible, the story that Licinius himself was convicted of violating his own law is based on a motif so common in the records of early legislators that episodes in which it appears must all be treated with suspicion. But the most serious doubt concerns the precise limit set to holdings of public land. Five hundred iugera, with a possible increase in certain cases, was the amount allowed by Tiberius Gracchus, and it is conceivable that from the Gracchan law this figure has been transferred to the enactment of 367. Even in the fourth century holdings of this extent, though large, are not incredible; but it should perhaps be noticed that the weaker manuscripts of one late authority contain just a suggestion that one hundred iugera was the original allowance, and not five. On such evidence, however, no conclusion can be based. A measure setting limits to tenancies of public land may be included with some confidence in the legislation of 367, but the nature of our information makes it imprudent to lay stress on the recorded details.

Grants of land, however, and admission to some share at least in the possession of ager publicus were not the only means by which a livelihood was found for the needy citizens of Rome. The old policy of colonization was continued, and with a vigour far greater than before. The precise nature of the political relationship which Rome established between these colonies and herself must remain uncertain; but it should be said that the evidence is by no means conclusive in favour of the theory that down to the re-occupation of Antium in 338 all these foundations—with the possible exception of Ostia, if Ostia be earlier than this—enjoyed Latin rights and were not part of the Roman body politic. It may at any rate be noticed that this is not the view of tradition. The impression given by Livy, Dionysius and Velleius is that in some cases at least, even in the fifth century, Rome posted small bodies of her own citizens in places of strategic value, and that these garrisons retained their Roman citizenship as much as did the inhabitants of the so-called maritime colonies of which Antium was the first. And this impression is strengthened by the way in which certain of the earlier foundations finally emerge into the full light of history as coloniae cilium Romanorum without any clear evidence being preserved to show that their status had been changed. The issue is one which cannot be decided with confidence, and for the present purpose its decision is unnecessary; but it is probably not far from the truth to say that the colonies of which notices abound in our authorities for the early history of Republican Rome were foundations of varied types. Some may have been outlying fractions of the Roman State and others independent communities, recruited in part from non-Roman sources, which were related to Rome in the same way as cities belonging to the Latin League. Whatever their status, however, two facts are clear. One is that in the founding of these colonies the initiative was in many cases Roman, and the other that colonies of all kinds alike served to ease the economic difficulties of the city and its more immediate neighbourhood by drawing off part of the surplus population.

The details of Rome’s colonizing activities and the chronological difficulties caused by the frequent disagreement of our authorities bear most closely on the military history of the time1. Here it is enough to say that, after the garrisoning of Ardea in 442 —if that be historical—colonies are recorded during the eastern offensive which opened about 423 and again in the fifteen years which follow the fall of Veii. With the occupation of Setia, which is put by Velleius eight years after the Gallic raid on Rome, there comes a lull for almost half a century until a period of widespread settlement opens with the re-founding of Antium in 338 and the planting of two thousand five hundred men in the Campanian city of Cales in 334. Thenceforward colonies are freely founded, and the foundations continue until the period with which this chapter has to deal ends with the dispatch of settlers to Hadria and Sena Gallica, near ‘the coasts of Picenum and Umbria, at some dates between 290 and 283. By this time colonial foundations were to be found at intervals throughout a quadrilateral enclosed by lines running from Sena Gallica to Nepete, thence by way of Pontia and the surrounding islands to Saticula in Samnium, due west of Beneventum, and so through the Apulian city of Venusia back to the Adriatic coast. The effect of the drain caused by these numerous foundations on the economic problem at Rome is difficult to estimate: the number of settlers sent to the various sites is by no means always recorded, and even when the number is known it has to be remembered that settlers were recruited from other sources than the body of Roman citizens. Nevertheless a certain amount of evidence exists in Livy and Dionysius, and from this it may be conjectured without undue rashness that between the decemviral legislation and the dictatorship of Q. Hortensius colonies provided new homes and a means of livelihood for something like fifty thousand people. Not all of these had been Roman citizens before their migration: but the part played by Rome in setting the colonies afoot suggests that the contribution made to their manning by Rome herself was at least large enough for the consequent loss of population to have had a notable effect on the problem of the lacklands and their poverty in the region round the city, where their difficulties were most acute.

VI.

DEBT AND THE NEXUM

There remain to be discussed the troubles of those who stayed at home—troubles which are revealed in agitations against the law of debt. The advent of a Roman coinage in the second half of the fourth century is heralded by a crescendo of complaint about the current rate of interest and the severity of the penalties imposed on the insolvent. Though its general suggestions are plausible enough, no information of value is to be had from the story of M. Manlius Capitolinus and his championship of the poor against the demands of their creditors; nor again is it necessary to do more than mention the abortive activities which Livy records of the censors Sp. Servilius Priscus and Q. Cloelius Siculus in 378. But with the legislation of Licinius Stolo and his colleague Sextius Sextinus a serious issue is raised. The measures which composed the programme of this pair are our surest clue to the demands of the plebs during the first three decades of the fourth century; and when it is alleged that they introduced a proposal to deduct from the outstanding amount of a debt such interest as had been already paid and to spread the payment of what remained over a period of three years, the tradition has to be examined with care. The objections urged against the story are two. First there is the weakness of the evidence, which is known to have been exposed to corruption, and which even in its final form lays far less stress on this particular proposal than on any of the others ascribed to the same occasion. But it must be observed that debt was a subject on which legislative action of undoubted authenticity was taken several times in the half-century which follows, so that the intervention of the plebeian leaders in this matter would not be inappropriate in the period to which it is assigned. And the small meed of fame which the measure achieved is easily intelligible. The measure was in the nature of a Seisachtheia. It lightened the burdens of people who were in debt at the time when it was passed, but it was not a law of permanent application designed to change the law of lending in perpetuity; and there is no need to suppose that a concession of such ephemeral value would bulk large in the minds of later generations. The second objection—that the proposal is too violent in its disregard for the rights of property to be credible in a society which had yet to learn the lengths to which revolution may go—is scarcely more serious. The institution of the mutuum —a simple transfer of property on the one condition that the property or its equivalent shall be transferred back by the receiver to the lender at some future time—is a reminder that, among the Romans, loans and interest were not inseparably connected: a mutuum was a gratuitous loan, and interest could only be ensured by a separate contract which is clearly alien to the original form of mutuum itself. Thus it need by no means be assumed that a reduction of interest, especially at a time when rates of interest were high, was open to the same objections as could be brought against proposals to tamper with the principal, and in these circumstances the somewhat drastic character of the measure under consideration are not enough to prove it an invention. The tradition cannot be rejected; and if it is sound, though the relief given by the reformers was limited in its application, their concern with debt is not to be ignored as evidence for the nature of the grievances felt by their supporters.

There follows a period of frequent legislation on debt, provoked in all probability by the approaching introduction of a coinage. According to our authorities, in 357 the maximum rate of interest was fixed—or, if Tacitus is right about the provisions of the decemvirs, was fixed again—at ‘unciarium fenus ’ by the plebiscite of M. Duillius and L. Menenius1, and ten years later not only was this reduced by half, but debtors were again given three years in which to pay. Whether the details of the narrative are true or not, the existence of these or similar laws is confirmed by casual references to prosecutions for their infringement. Besides this, there should be noticed the elaborate attempt made in 352 to ease the difficulties of the situation by appointing a board of five to advance money from the Treasury to such debtors as seemed to be in trouble, not through irretrievable insolvency, but merely owing to the violence of the pressure put upon them by creditors: in effect the State, which was prepared to be more lenient than the private usurer, took over such loans as were not wholly bad. Though it is perhaps surprising at so early a date, this establishment of quinqueviri mensarii cannot be disproved; but there is much less to be said for another measure which has sometimes been ascribed to the same year, 352. The jurist Gaius mentions a lex Marcia which allowed debtors the right of manus iniectio against creditors who essayed to charge interest at a rate higher than the legal maximum; but the context in which Gaius refers to this enactment combines with such scanty knowledge as we have of the history of procedure in cases of the kind concerned to make it highly unlikely that Lange was right in connecting it with C. Marcius Rutilus and the quinqueviral board.

Only two other incidents need be noticed, but both are important. At the end of his somewhat unconvincing story about the mutiny of the Roman army in Campania Livy records that according to certain authorities one of its results was the passing of three measures in the interests of the plebs. Two of them concern the constitution, but the third is a flat prohibition of loans and usury. The tribune to whom they are ascribed is L. Genucius, a member of a house whose traditional history is brought under some suspicion by the frequency with which Genucii are shown among the first plebeian holders of offices hitherto reserved for the patricians. But the constitutional changes ascribed to 342 BC cannot be proved fictitious, and there is at least a certain amount of evidence to suggest that the lex fenebris was an expedient of the kind to which Rome might resort at a time when progress which was leading to the introduction of currency was making the plight of the poor even more grievous than it had been before. Besides the statement of Cato mentioned already  and the words of Livy here under consideration, there are passages of Tacitus and Appian which make it plain that Romans believed there to have been a time when lending at usury was absolutely forbidden; and to this it may be added that Tacitus supports Livy in placing the enactment of this veto in the second half of the fourth century. In these circumstances it is probably prudent to accept Livy’s story as it stands, and to neglect the large variety of alternative interpretations which have been put upon his description of the law by modern critics. But it is not to be supposed that the measure was of enduring validity. It may be regarded as a desperate remedy adopted by a community still strange to the working of currency, and as one bound to be repealed or evaded as soon as knowledge had made a small advance. Certainly it was no more in the interests of potential borrowers than of people with money to lend that loans should be made so far impossible as they inevitably must be if no interest may be charged.

The remaining episode marks perhaps the greatest success won by the poor in their struggle against the moneylenders. By a lex Poetelia, or Poetelia Papiria, the nexum was so deeply changed that it soon fell into disuse. The date of this reform is doubtful. Livy mentions it under the year 326, the consulship of C. Poetelius III and L. Papirius Mugillanus (or Cursor); but it has been thought that Varro, in a passage which is highly corrupt, refers it to the rather dubious dictatorship of the younger C. Poetelius in 313. Whatever the precise year of its passage, this law was clearly of the first importance. It did not, indeed, abolish nexum outright; but it is generally agreed to have insisted that judgment should be obtained in all cases before execution was carried out. The age of self-help was over, and its end is recorded by tradition precisely at the point where its end is to be expected. At a time when the State was trying to regulate the rate of interest, it was manifestly undesirable that creditors should retain the right of taking remedy for default without the cognizance of a magistrate. But in addition to this there is much to be said for the proposal of Pais6 to accept in its natural meaning Livy’s statement that thenceforward the property and not the person of a borrower was to be the security for his debt. What exactly happened the evidence does not allow us to determine. Certainly personal execution was not completely abolished; for there were circumstances wherein it was possible even in the classical age. But it is not unlikely that the lex Poetelia took a final step in the direction of allowing borrowers to give their whole property in security for their debts.

In the century and a half which followed the Decemviral legislation the poor had improved their lot to an extent of which they might be proud. Poverty and debt were still indeed present, and the economic structure of Roman society had not been fundamentally changed. Rome remained an agricultural community, untouched as yet by that commercial revival which reveals itself, for instance, at Praeneste towards the end of the fourth century. But the resources of the State had grown. Land was more plentiful, and the increase of the ager publicus was already beginning to produce wider differences of wealth by allowing the rich to acquire large holdings and so to become richer still. Yet at the same time the demands of the poor for a consideration of their claims had not been ignored. Allotments had been distributed; room had been made on the ager publicus for the humbler tenant; colonies had been freely founded; and the troubles of debtors had found champions whose efforts were not unrewarded. When the struggle of the orders at long last reached its end, the poor could count their gains with a certain satisfaction. Nevertheless their troubles were not over, and the only issue to which the struggle brought a final settlement was different—the issue raised by the claims of rich plebeians to the high offices of State.

VII.

 THE NEW NOBILITY

Turning to the political sphere, we see that the struggles, internal and external, of the fourth century, had brought about profound changes in the Roman state. There is no need here to recapitulate the successive steps by which the plebs had won access to all the magistracies, and to those priestly colleges which had a political significance. What we must note is the change in the personnel of the ruling order, and the emergence of a new plebeian aristocracy. We have already shown how a small group of families for a long time monopolized the representation of the plebs in the supreme college; from 340 onwards the circle was rapidly enlarged. In the first decade of this period representatives of eight new gentes won their way to the consulship; several of these bear names which recur throughout Republican history, though two of the most important, C. Maenius and the far greater soldier and statesman, Q. Publilius Philo, both of whom were impeached in 314 in connection with the ‘conspiracy of Capua’ and acquitted, left no successors in the Fasti. After 331 the influx of novi homines slackened, but a good soldier could still win through to the consulship; the Fulvii had their first consul in 322 and C. Junius Bubulcus, thrice consul and dictator, came into office first in 317. P. Decius Mus, son of the consul of 340, held the first of his four consulships in 312. He was evidently no political opponent of the patrician aristocracy, and was a colleague of Q. Fabius Maximus Rullianus in three consulships and the censorship. From 307, however, until the close of the fourth century, a number of fresh names appear in the lists, and in the early years of the third, besides members of the recently ennobled houses, we find (293 BC) Sp. Carvilius, of whom Velleius records that though of equestrian origin he rose, like Cato and Mummius, to be consul, triumphator and censor, and (290 BC) M. Curius Dentatus, who celebrated two of his four triumphs at the expense of Samnites and Sabines. It was, in fact, impossible to exclude from a share in the government a class which was not merely growing in wealth, but was also capable of furnishing efficient commanders in the constant warfare waged by the Romans. We cannot, it is true, place implicit reliance upon the list of triumphs; for example, that of Q. Publilius Philo in 326 is probably fictitious. Still less credence is due to triumphs not recorded in the Fasti, such as that of P. Decius Mus in 312. When all deductions are made, however, the achievements of the ‘new’ men are worthy to be placed beside those of the Fabii, Valerii or Papirii. Thus the Senate was gradually transformed into a body representative of the community in which patres and plebs shared a common devotion to the ‘public cause’ (res publica).

At this point the question arises whether at this early date the ruling class had already received substantial reinforcement from the communities drawn into Rome’s orbit during the period of expansion. In one instance this is undisputed. The Fulvii were a Tusculan family, and in 322 L. Fulvius Curvus attained the consulship, and according to a tradition recorded by Livy and accepted by the compiler of the Acta Triumphorum, celebrated a triumph over the Samnites. This fact, real or supposed, was embellished by later tradition, so that we read in the Natural History of the Elder Pliny that Fulvius was “consul of the rebellious Tusculans and, having changed sides, was immediately invested with the same office by the Roman people, and was the only man who, in the same year in which he was an enemy, triumphed at Rome over those whose consul he had been.” Setting this legend aside, we may note that the Fulvii retained the place which they had secured in the governing order: another Fulvius triumphed in 305 and 299, a third in 298. Nor were they the only representatives of that town who sought their fortunes in Rome. According to Cicero, Tusculum could boast of more ‘ consular families ’ than any other municipium, including that of the Juventii, one of whose members, as he tells us in a later passage, was one of the first plebeians to be elected aedile. From Tusculum, too, came Ti. Coruncanius, the first plebeian pontifex maximus, and although his consulship belongs to 280 BC, his career no doubt began in our period. In the pro Sulla Cicero couples with Coruncanius M’. Curius Dentatus in a list of municipales who rose to fame in Rome. We have already mentioned Q. Anicius, the aedile of 304 BC, as a native of Praeneste; and doubtless if we were more fully informed with regard to the holders of offices of lower grade than the consulship, we should find abundant evidence that the expansion of the citizen body brought in its train an infiltration of fresh elements into the governing class.

We cannot, however, go farther than this, and subscribe to the view of Munzer, that a number of families from Latin or Campanian cities were encouraged, largely by the patronage of leading Roman gentes such as the Fabii, to seek their fortune in Rome and rose to the highest office. To take but one example, the Plautii are not proved to be of Tiburtine origin by the fact that an imposing tomb below Tivoli belonged to the family in Imperial times. Munzer himself points out that the Ficoroni cista bearing the inscription Novios Plautios med Romai fecid is ‘one of the finest products of Praenestine art’ and that the name is common on the gravestones of Praeneste. The case for tracing the Atilii to a Campanian origin is equally weak.

Outside the circle of those who possessed the civitas, whether complete or limited, stood the holders of what are termed ‘ Latin rights.’ Under the later Republic the ‘Latin name’ (nomen Latinum) is applied to a privileged group of allies (socii) of Rome. This group includes several communities in addition to the members of the old Latin League, dissolved in 338 BC. That league had planted colonies as outposts on its frontiers, where it was faced by hostile neighbours, and Rome, with her genius for adapting institutions to meet new needs, had continued the policy and established what were called ‘Latin colonies,’ i.e. colonies whose status was assimilated to that of the original members of the League (and its colonies), thus divorcing the term ‘Latin’ from its ethnic significance and giving to it an abstract, juridical meaning as connoting a bundle of rights which might be conferred on communities or even on individuals and might or might not be enjoyed in their entirety. Thus (to say nothing of later refinements) we hear of prisci Latini, the ‘old Latin’ communities of the foedus Cassianum, and Latini coloniarii, ‘Latins of colonial status,’ amongst whom (as will be shown in the sequel) there were grades of privilege.

We can gather something by inference of the personal privileges enjoyed by the members of the old Latin League. The foedus Cassianum provided for the trial of suits arising out of contracts made between members of the League in the forum contractus, in other words, the citizen of a Latin town could sue and be sued in the courts of the other allied cities. When the League was dissolved, the Romans deprived its members of commercia and conubia ‘amongst themselves,’ which is rightly taken to imply that they retained these ties with Rome. It appears from Cicero that the ‘Latin colonists’ of less privileged status (and therefore a fortiori those in the enjoyment of full Latin rights) could enter into obligations in the Roman form of nexum and could enjoy the benefits of the Roman law of succession. It may fairly be concluded that in early times the Latin right entitled the possessor to use the forms of the Roman civil law, which was the true significance of commercium . Conubium means the right to contract a Roman marriage, the issue of which will be Roman citizens, and subject to the patria potestas of the father; and it is a natural corollary that the adoption of Latin by Roman or of Roman by Latin was allowed.

There were, however, other Latin rights besides those which flowed from admission to the benefits of the ius civile. In early times the members of the League possessed the mutual privilege of exchanging their domicile for that of an allied city (ius migrandi), and it was only the abuse of this right, which was inevitable as the citizenship of Rome became increasingly attractive, that caused the Romans to restrict it by law and to substitute for it other avenues to Roman civitas in later foundations.

Finally, the Latin who came to Rome enjoyed a certain limited voting power in the assemblies of the tribes. Before a vote was taken, an urn was brought in and lots were cast for a tribe in which the Latins present cast their votes; and this curious formality persisted throughout Republican history because a usage grew up according to which the intercessio of the tribune might be exerted at this point in the proceedings, but no later1. Dionysius, it is true, goes much farther than this, and represents the Latins and Hernici as crowding in to Rome to vote ; but his mind was (as so often) confused by Greek analogies, for he was in the habit of using the term isopoliteia to describe the relation of the Latin communities to Rome; and this institution, in its developed form, implied the capacity of the individual for exercising full personal and political rights in the allied community.

Thus ‘Latinitas,’ to use the abstract term coined in the age of Cicero, became a convenient stepping-stone to the acquisition of full Roman citizenship; and the accident of its origin from membership in a league was responsible for the anomaly that the Latin communities, even the colonies planted by Rome and mainly peopled by her own citizens, were technically independent and sovereign states, unlike those possessing the civitas sine suffragio.

VIII.

THE MACHINERY OF GOVERNMENT

We would gladly know more of the process by which the Romans laid the foundations of an administrative system, which the growth of their city made increasingly needful. We have already mentioned the fact that the aediles of the plebs played an increasingly important part in municipal administration; and the admission of patricians to the college when the ‘curule’ aedileship was instituted in 366 implied the recognition of the fact. We cannot, it is true, attach much weight to the legend that in 463, when a pestilence was raging, the care of the city was entrusted to the aediles of the plebs; but there may be some truth in the story that in the rebuilding of the city after the Gallic sack the aediles enforced the execution of work towards which the state gave financial assistance. Mommsen suggests that after 366 the office was remodelled on the analogy of the agoranomia in Greek states; and to this we must trace Cicero’s definition of its functions in the de legibus as the ‘care of the city, the corn-supply, the temples and the games.’ Food-control in time of famine is assigned to the aediles in the story (apocryphal in itself) of Q. Fabius Maximus’ measures in 299 BC: the other functions, as making up the traditional competence of the aedileship, are enumerated by Cicero in his allusion to his own tenure of the office. It is more important, in relation to the period under review, to note the position assigned to the aediles in the punishment of certain offences by fine, against which an appeal lay to the -plebs in assembly. These sometimes fall within the sphere of public morals, but the most significant cases relate to the enforcement of the laws against usury and those concerning public land. In 344 and 304 we hear of the prosecution of money-lenders (in the latter year by Cn. Flavius); and offenders against the Licinio-Sextian agrarian law, whether by occupatio or by unlawfully pasturing cattle on public lands, are dealt with in the same way. The aediles plebis are specifically mentioned in one case; and, if Mommsen is right, the Popillius who prosecuted Licinius Stolo under his own act held the same office; but the story seems to be a legend of a well-known type.

As was explained above, the plebs did not, at any rate after the Decemviral legislation, claim to sit in judgment on appeal from its own magistrates in capital cases; but a practice grew up by which the tribunes initiated proceedings—usually by the infliction of a heavy fine—against magistrates or other official persons for political offences, and ‘ borrowed auspices ’ from a consul or praetor in order that the assembly of the centuries might pronounce a verdict on appeal1. Such, amongst others, were the cases of M. Postumius, tribunus militum, who was fined 10,000 asses for misconduct in the war with Veii in 423, of C. Sempronius, consul in 423, prosecuted and fined in 420, L. Manlius, dictator in 363, prosecuted by a tribune Q. Pomponius in 362 for his oppressive conduct of the dilectus, and L. Postumius Megellus, consul in 291, prosecuted by two tribunes and fined for defiance of the Senate in his conduct of the war in Samnium. The last case is remarkable because it shows the tribunes acting in the interests of the Senate and foreshadows the changed position of the tribunate in the Middle Republic, which will be more fully discussed in the sequel, being the natural consequence of the process by which the Senate was converted into a council representative of both orders.

Some attempt was made to relieve the regular magistrates of their administrative duties by the appointment of special commissioners: thus in 311 BC duoviri navales were appointed to take charge of the small Roman fleet. From time to time duoviri aedi dedicandae were elected when new temples were built, and the claim of the plebs to have a say in these matters seems to have been admitted at an early date; Livy records that in 304, by the advice of the Senate, it was proposed to the people that no temple or altar should be set up without the authority of the Senate or of a majority of the tribunes, and Cicero cites a vetus lex tribunicia of unknown date, proposed by one of the plebeian Papirii, which forbade the consecratio of temple, land or altar ‘without the command of the pleb.’ Of still greater importance were the commissioners for the allotment of land and foundation of colonies, usually three in number. In the narrative of Livy we hear of them first in connection with the legendary foundation of a colony at Antium in 467, and the practice was invariable in historical times: the names of the commissioners are rarely given, but we find a plebeian, Kaeso Duillius, amongst the tresviri coloniae deducendae for the settlement of Cales.

The plebs, therefore, had by the close of our period won access for its members to the highest office and taken its share of the burdens of public administration. The plebeians formed an ever-increasing majority of the citizen body, as fresh tribes were established on conquered lands and colonies founded which made an outlet for the surplus population of the city, or communities such as Tusculum and some of the Latin towns were merged in the Roman state. Still, however, the patres claimed that they preserved the continuity of the Roman Republic with the state of the Kings, especially as the depositaries of religious tradition, though this was rendered nugatory by the admission of the plebeians to the priestly colleges and the reduction of the privileges of the patrician members of the Senate to empty forms. The plebs therefore determined to secure finally the recognition of their tribal assemblies as law-making bodies coordinate in sovereignty with the populus Romanus. It is much to be regretted that the narrative of Livy is wanting for the last act in the drama. In 287, as it would appear (though the exact date is uncertain), the question of debt led to a fresh crisis, and was ended by a secession this time to the Janiculum, and the appointment of a plebeian dictator, Q. Hortensius, who belonged to a wholly undistinguished gens, represented in early tradition only by a tribune of 422 BC. What measures he took for the relief of debtors we are not told; but all historians and jurists agree that he carried a law which finally disposed of the question at issue between patres and plebs regarding the law-making power by giving to the resolutions of the plebs validity for all Quirites.

The solution of the problem was characteristically Roman. It cannot be called logical, for logic demands a single sovereign in a single state. It was eminently practical in the sense that it gave formal recognition to that which practice had proved workable and (to the vast majority of citizens) desirable. It was not too drastic, for it left the ancient organs of the state untouched, and left them to find their modus vivendi with those of more recent creation. The Roman was always confident that his institutions could be adapted to the new ends which the course of history constantly reveals; and the following chapters will show that he was justified in his belief. Thus he steered clear of the reefs of stasis which wrecked so many a Greek state, and was rendered free to achieve that work of unification in Italy which even the genius of Athens could never bring about in Greece.

CHAPTER XVII

THE GALLIC WARS OF ROME