The History of Rome, Book II

Further Dissensions

Now that civil war was organized, it pursued its course. The parties stood face to face as if drawn up for battle, each under its leaders. Restriction of the consular and extension of the tribunician power were the objects contended for on the one side; the annihilation of the tribunate was sought on the other. Legal impunity secured for insubordination, refusal to enter the ranks for the defence of the land, impeachments involving fines and penalties directed specially against magistrates who had violated the rights of the commons or who had simply provoked their displeasure, were the weapons of the plebeians; and to these the patricians opposed violence, concert with the public foes, and occasionally also the dagger of the assassin. Hand-to-hand conflicts took place in the streets, and on both sides the sacredness of the magistrate's person was violated. Many families of burgesses are said to have migrated, and to have sought more peaceful abodes in neighbouring communities; and we may well believe it. The strong patriotism of the people is obvious from the fact, not that they adopted this constitution, but that they endured it, and that the community, notwithstanding the most vehement convulsions, still held together.

Coriolanus

The best-known incident in these conflicts of the orders is the history of Gnaeus Marcius, a brave aristocrat, who derived his surname from the storming of Corioli. Indignant at the refusal of the centuries to entrust to him the consulate in the year 263, he is reported to have proposed, according to one version, the suspension of the sales of corn from the state-stores, till the hungry people should give up the tribunate; according to another version, the direct abolition of the tribunate itself. Impeached by the tribunes so that his life was in peril, it is said that he left the city, but only to return at the head of a Volscian army; that when he was on the point of conquering the city of his fathers for the public foe, the earnest appeal of his mother touched his conscience; and that thus he expiated his first treason by a second, and both by death. How much of this is true cannot be determined; but the story, over which the naive misrepresentations of the Roman annalists have shed a patriotic glory, affords a glimpse of the deep moral and political disgrace of these conflicts between the orders. Of a similar stamp was the surprise of the Capitol by a band of political refugees, led by a Sabine chief, Appius Herdonius, in the year 294; they summoned the slaves to arms, and it was only after a violent conflict, and by the aid of the Tusculans who hastened to render help, that the Roman burgess-force overcame the Catilinarian band. The same character of fanatical exasperation marks other events of this epoch, the historical significance of which can no longer be apprehended in the lying family narratives; such as the predominance of the Fabian clan which furnished one of the two consuls from 269 to 275, and the reaction against it, the emigration of the Fabii from Rome, and their annihilation by the Etruscans on the Cremera (277)Still more odious was the murder of the tribune of the people, Gnaeus Genucius, who had ventured to call two consulars to account, and who on the morning of the day fixed for the impeachment was found dead in bed (281)The immediate effect of this misdeed was the Publilian law (283), one of the most momentous in its consequences with which Roman history has to deal. Two of the most important arrangements—the introduction of the plebeian assembly of tribes, and the placing of the -plebiscitum- on a level, although conditionally, with the formal law sanctioned by the whole community—are to be referred, the former certainly, the latter probably, to the proposal of Volero Publilius the tribune of the people in 283. The plebs had hitherto adopted its resolutions by curies; accordingly in these its separate assemblies, on the one hand, the voting had been by mere number without distinction of wealth or of freehold property, and, on the other hand, in consequence of that standing side by side on the part of the clansmen, which was implied in the very nature of the curial assembly, the clients of the great patrician families had voted with one another in the assembly of the plebeians. These two circumstances had given to the nobility various opportunities of exercising influence on that assembly, and especially of managing the election of tribunes according to their views; and both were henceforth done away by means of the new method of voting according to tribes. Of these, four had been formed under the Servian constitution for the purposes of the levy, embracing town and country alike;²⁴ subsequently-perhaps in the year 259—the Roman territory had been divided into twenty districts, of which the first four embraced the city and its immediate environs, while the other sixteen were formed out of the rural territory on the basis of the clan-cantons of the earliest Roman domain.²⁵ To these was added—probably only in consequence of the Publilian law, and with a view to bring about the inequality, which was desirable for voting purposes, in the total number of the divisions—as a twenty-first tribe the Crustuminian, which derived its name from the place where the plebs had constituted itself as such and had established the tribunate;²⁶ and thenceforth the special assemblies of the plebs took place, no longer by curies, but by tribes. In these divisions, which were based throughout on the possession of land, the voters were exclusively freeholders: but they voted without distinction as to the size of their possession, and just as they dwelt together in villages and hamlets. Consequently, this assembly of the tribes, which otherwise was externally modelled on that of the curies, was in reality an assembly of the independent middle class, from which, on the one hand, the great majority of freedmen and clients were excluded as not being freeholders, and in which, on the other hand, the larger landholders had no such preponderance as in the centuries. This "meeting of the multitude" (-concilium plebis-) was even less a general assembly of the burgesses than the plebeian assembly by curies had been, for it not only, like the latter, excluded all the patricians, but also the plebeians who had no land; but the multitude was powerful enough to carry the point that its decree should have equal legal validity with that adopted by the centuries, in the event of its having been previously approved by the whole senate. That this last regulation had the force of established law before the issuing of the Twelve Tables, is certain; whether it was directly introduced on occasion of the Publilian -plebiscitum-, or whether it had already been called into existence by some other—now forgotten—statute, and was only applied to the Publilian -plebiscitum- cannot be any longer ascertained. In like manner it remains uncertain whether the number of tribunes was raised by this law from two to four, or whether that increase had taken place previously.

Agrarian Law of Spurius Cassius

More sagacious in plan than all these party steps was the attempt of Spurius Cassius to break down the financial omnipotence of the rich, and so to put a stop to the true source of the evil. He was a patrician, and none in his order surpassed him in rank and renown. After two triumphs, in his third consulate (268), he submitted to the burgesses a proposal to have the public domain measured and to lease part of it for the benefit of the public treasury, while a further portion was to be distributed among the necessitous. In other words, he attempted to wrest the control of the public lands from the senate, and, with the support of the burgesses, to put an end to the selfish system of occupation. He probably imagined that his personal distinction, and the equity and wisdom of the measure, might carry it even amidst that stormy sea of passion and of weakness. But he was mistaken. The nobles rose as one man; the rich plebeians took part with them; the commons were displeased because Spurius Cassius desired, in accordance with federal rights and equity, to give to the Latin confederates their share in the assignation. Cassius had to die. There is some truth in the charge that he had usurped regal power, for he had indeed endeavoured like the kings to protect the free commons against his own order. His law was buried along with him; but its spectre thenceforward incessantly haunted the eyes of the rich, and again and again it rose from the tomb against them, until amidst the conflicts to which it led the commonwealth perished.

Decemvirs

A further attempt was made to get rid of the tribunician power by securing to the plebeians equality of rights in a more regular and more effectual way. The tribune of the people, Gaius Terentilius Arsa, proposed in 292 the nomination of a commission of five men to prepare a general code of law by which the consuls should in future be bound in exercising their judicial powers. But the senate refused to sanction this proposal, and ten years elapsed ere it was carried into effect—years of vehement strife between the orders, and variously agitated moreover by wars and internal troubles. With equal obstinacy the party of the nobles hindered the concession of the law in the senate, and the plebs nominated again and again the same men as tribunes. Attempts were made to obviate the attack by other concessions. In the year 297 an increase of the tribunes from four to ten was sanctioned—a very dubious gain; and in the following year, by an Icilian -plebiscitum- which was admitted among the sworn privileges of the plebs, the Aventine, which had hitherto been a temple-grove and uninhabited, was distributed among the poorer burgesses as sites for buildings in heritable occupancy. The plebs took what was offered to them, but never ceased to insist in their demand for a legal code. At length, in the year 300, a compromise was effected; the senate in substance gave way. The preparation of a legal code was resolved upon; for that purpose, as an extraordinary measure, the centuries were to choose ten men who were at the same time to act as supreme magistrates in room of the consuls (-decemviri consulari imperio legibus scribundls-), and to this office not merely patricians, but plebeians also might be elected. These were here for the first time designated as eligible, though only for an extraordinary office. This was a great step in the progress towards full political equality; and it was not too dearly purchased, when the tribunate of the people as well as the right of appeal were suspended while the decemvirate lasted, and the decemvirs were simply bound not to infringe the sworn liberties of the community. Previously however an embassy was sent to Greece to bring home the laws of Solon and other Greek laws; and it was only on its return that the decemvirs were chosen for the year 303. Although they were at liberty to elect plebeians, the choice fell on patricians alone—so powerful was the nobility still—and it was only when a second election became necessary for 304, that some plebeians were chosen—the first non-patrician magistrates that the Roman community had.

Taking a connected view of these measures, we can scarcely attribute to them any other design than that of substituting for tribunician intercession a limitation of the consular powers by written law. On both sides there must have been a conviction that things could not remain as they were, and the perpetuation of anarchy, while it ruined the commonwealth, was in reality of no benefit to any one. People in earnest could not but discern that the interference of the tribunes in administration and their action as prosecutors had an absolutely pernicious effect; and the only real gain which the tribunate brought to the plebeians was the protection which it afforded against a partial administration of justice, by operating as a sort of court of cassation to check the caprice of the magistrate. Beyond doubt, when the plebeians desired a written code, the patricians replied that in that event the legal protection of tribunes would be superfluous; and upon this there appears to have been concession by both sides. Perhaps there was never anything definitely expressed as to what was to be done after the drawing up of the code; but that the plebs definitely renounced the tribunate is not to be doubted, since it was brought by the decemvirate into such a position that it could not get back the tribunate otherwise than by illegal means. The promise given to the plebs that its sworn liberties should not be touched, may be referred to the rights of the plebeians independent of the tribunate, such as the -provocatio- and the possession of the Aventine. The intention seems to have been that the decemvirs should, on their retiring, propose to the people to re-elect the consuls who should now judge no longer according to their arbitrary pleasure but according to written law.

Legislation of the Twelve Tables

The plan, if it should stand, was a wise one; all depended on whether men's minds exasperated on either side with passion would accept that peaceful adjustment. The decemvirs of the year 303 submitted their law to the people, and it was confirmed by them, engraven on ten tables of copper, and affixed in the Forum to the rostra in front of the senate-house. But as a supplement appeared necessary, decemvirs were again nominated in the year 304, who added two more tables. Thus originated the first and only Roman code, the law of the Twelve Tables. It proceeded from a compromise between parties, and for that very reason could not well have contained any changes in the existing law of a comprehensive nature, going beyond the regulation of secondary matters and of the mere adaptation of means and ends. Even in the system of credit no further alleviation was introduced than the establishment of a—probably low—maximum of interest (10 per cent) and the threatening of heavy penalties against the usurer-penalties, characteristically enough, far heavier than those of the thief; the harsh procedure in actions of debt remained at least in its leading features unaltered. Still less, as may easily be conceived, were changes contemplated in the rights of the orders. On the contrary the legal distinction between burgesses liable to be taxed and those who were without estate, and the invalidity of marriage between patricians and plebeians, were confirmed anew in the law of the city. In like manner, with a view to restrict the caprice of the magistrate and to protect the burgess, it was expressly enacted that the later law should uniformly have precedence over the earlier, and that no decree of the people should be issued against a single burgess. The most remarkable feature was the exclusion of appeal to the -comitia tributa- in capital causes, while the privilege of appeal to the centuries was guaranteed; which admits of explanation from the circumstance that the penal jurisdiction was in fact usurped by the plebs and its presidents,²⁷ and with the tribunate there necessarily fell the tribunician capital process, while it was perhaps the intention to retain the aedilician process of fine (-multa-). The essential political significance of the measure resided far less in the contents of the legislation than in the formal obligation now laid upon the consuls to administer justice according to these forms of process and these rules of law, and in the public exhibition of the code, by which the administration of justice was subjected to the control of publicity and the consul was compelled to dispense equal and truly common justice to all.

Fall of the Decemvirs

The end of the decemvirate is involved in much obscurity. It only remained—so runs the story—for the decemvirs to publish the last two tables, and then to give place to the ordinary magistracy. But they delayed to do so: under the pretext that the laws were not yet ready, they themselves prolonged their magistracy after the expiry of their official year—which was so far possible, as under Roman constitutional law the magistracy called in an extraordinary way to the revision of the constitution could not become legally bound by the term set for its ending. The moderate section of the aristocracy, with the Valerii and Horatii at their head, are said to have attempted in the senate to compel the abdication of the decemvirate; but the head of the decemvirs Appius Claudius, originally a rigid aristocrat, but now changing into a demagogue and a tyrant, gained the ascendancy in the senate, and the people submitted. The levy of two armies was accomplished without opposition, and war was begun against the Volscians as well as against the Sabines. Thereupon the former tribune of the people, Lucius Siccius Dentatus, the bravest man in Rome, who had fought in a hundred and twenty battles and had forty-five honourable scars to show, was found dead in front of the camp, foully murdered, as it was said, at the instigation of the decemvirs. A revolution was fermenting in men's minds; and its outbreak was hastened by the unjust sentence pronounced by Appius in the process as to the freedom of the daughter of the centurion Lucius Verginius, the bride of the former tribune of the people Lucius Icilius—a sentence which wrested the maiden from her relatives with a view to make her non-free and beyond the pale of the law, and induced her father himself to plunge his knife into the heart of his daughter in the open Forum, to rescue her from certain shame. While the people in amazement at the unprecedented deed surrounded the dead body of the fair maiden, the decemvir commanded his lictors to bring the father and then the bridegroom before his tribunal, in order to render to him, from whose decision there lay no appeal, immediate account for their rebellion against his authority. The cup was now full. Protected by the furious multitude, the father and the bridegroom of the maiden made their escape from the lictors of the despot, and while the senate trembled and wavered in Rome, the pair presented themselves, with numerous witnesses of the fearful deed, in the two camps. The unparalleled tale was told; the eyes of all were opened to the gap which the absence of tribunician protection had made in the security of law; and what the fathers had done their sons repeated. Once more the armies abandoned their leaders: they marched in warlike order through the city, and proceeded once more to the Sacred Mount, where they again nominated their own tribunes. Still the decemvirs refused to lay down their power; then the army with its tribunes appeared in the city, and encamped on the Aventine. Now at length, when civil war was imminent and the conflict in the streets might hourly begin, the decemvirs renounced their usurped and dishonoured power; and the consuls Lucius Valerius and Marcus Horatius negotiated a second compromise, by which the tribunate of the plebs was again established. The impeachment of the decemvirs terminated in the two most guilty, Appius Claudius and Spurius Oppius, committing suicide in prison, while the other eight went into exile and the state confiscated their property. The prudent and moderate tribune of the plebs, Marcus Duilius, prevented further judicial prosecutions by a seasonable use of his veto.

So runs the story as recorded by the pen of the Roman aristocrats; but, even leaving out of view the accessory circumstances, the great crisis out of which the Twelve Tables arose cannot possibly have ended in such romantic adventures, and in political issues so incomprehensible. The decemvirate was, after the abolition of the monarchy and the institution of the tribunate of the people, the third great victory of the plebs; and the exasperation of the opposite party against the institution and against its head Appius Claudius is sufficiently intelligible. The plebeians had through its means secured the right of eligibility to the highest magistracy of the community and a general code of law; and it was not they that had reason to rebel against the new magistracy, and to restore the purely patrician consular government by force of arms. This end can only have been pursued by the party of the nobility, and if the patricio-plebeian decemvirs made the attempt to maintain themselves in office beyond their time, the nobility were certainly the first to enter the lists against them; on which occasion doubtless the nobles would not neglect to urge that the stipulated rights of the plebs should be curtailed and the tribunate, in particular, should be taken from it. If the nobility thereupon succeeded in setting aside the decemvirs, it is certainly conceivable that after their fall the plebs should once more assemble in arms with a view to secure the results both of the earlier revolution of 260 and of the latest movement; and the Valerio-Horatian laws of 305 can only be understood as forming a compromise in this conflict.

The Valerio-Horatian Laws

The compromise, as was natural, proved very favourable to the plebeians, and again imposed severely felt restrictions on the power of the nobility. As a matter of course the tribunate of the people was restored, the code of law wrung from the aristocracy was definitively retained, and the consuls were obliged to judge according to it. Through the code indeed the tribes lost their usurped jurisdiction in capital causes; but the tribunes got it back, as a way was found by which it was possible for them to transact business as to such cases with the centuries. Besides they retained, in the right to award fines without limitation and to submit this sentence to the -comitia tributa-, a sufficient means of putting an end to the civic existence of a patrician opponent. Further, it was on the proposition of the consuls decreed by the centuries that in future every magistrate—and therefore the dictator among the rest—should be bound at his nomination to allow the right of appeal: any one who should nominate a magistrate on other terms was to expiate the offence with his life. In other respects the dictator retained his former powers; and in particular his official acts could not, like those of the consuls, be cancelled by a tribune.

The plenitude of the consular power was further restricted in so far as the administration of the military chest was committed to two paymasters (-quaestores-) chosen by the community, who were nominated for the first time in 307. The nomination as well of the two new paymasters for war as of the two administering the city-chest now passed over to the community; the consul retained merely the conduct of the election instead of the election itself. The assembly in which the paymasters were elected was that of the whole patricio-plebeian freeholders, and voted by districts; an arrangement which likewise involved a concession to the plebeian farmers, who had far more command of these assemblies than of the centuriate -comitia-.

A concession of still greater consequence was that which allowed the tribunes to share in the discussions of the senate. To admit the tribunes to the hall where the senate sat, appeared to that body beneath its dignity; so a bench was placed for them at the door that they might from that spot follow its proceedings. The tribunician right of intercession had extended also to the decrees of the senate as a collective body, after the latter had become not merely a deliberative but a decretory board, which probably occurred at first in the case of a -plebiscitum- that was meant to be binding for the whole community;²⁸ it was natural that there should thenceforth be conceded to the tribunes a certain participation in the discussions of the senate-house. In order also to secure the decrees of the senate— with the validity of which indeed that of the most important -plebiscita- was bound up—from being tampered with or forged, it was enacted that in future they should be deposited not merely under charge of the patrician -quaestores urbani- in the temple of Saturn, but also under that of the plebian aediles in the temple of Ceres. Thus this struggle, which was begun in order to get rid of the tribunician power, terminated in the renewed and now definitive sanctioning of its right to annul not only particular acts of administration on the appeal of the person aggrieved, but also any resolution of the constituent powers of the state at pleasure. The persons of the tribunes, and the uninterrupted maintenance of the college at its full number, were once more secured by the most sacred oaths and by every element of reverence that religion could present, and not less by the most formal laws. No attempt to abolish this magistracy was ever from this time forward made in Rome.