II. THE GROWTH OF THE REPUBLICAN CONSTITUTION…

II. THE GROWTH OF THE REPUBLICAN CONSTITUTION

The two new magistrates, who were appointed to the headship of the state, were, like the king, armed with the imperium and its united powers of military leadership and jurisdiction. Hence they bore the old titles of praetores and judices,[316] while those designations which denoted a single supremacy in the state, such as dictator or magister populi, were necessarily discarded. The new magistrates were to hold office for a year and then to transmit their power to two successors. But their right of nomination was not final. They were, indeed, free to name as their successors whom they pleased, but this nomination had to be ratified immediately by the people assembled in their centuries; and perhaps they were already expected to submit to this comitia the names of all candidates who offered themselves for this post, although they could certainly decline to receive such names,[317] and nomination, or, as it was sometimes called, creatio, was an essential part of the early consular elections. A new practice, that of direct election, was thus introduced into the Roman constitution, but it was merely an advance on the previous practice of ratifying a nomination.[318] A far newer idea—one which distinguished the consulship from the monarchy, and continued to differentiate it from the dictatorship subsequently created—was that of colleagueship,[319] of two officials exercising exactly the same sphere of competence, with the inevitable effect of collision if agreement could not be secured. Perpetual collision was averted by the simple rule that the dissent of one magistrate rendered null and void the action of his colleague. But if such dissent was not expressed (or not capable of expression through the absence of the colleague) the command of a single magistrate had binding force on the community. His regal competence was not diminished, but only potentially checked, by the presence of a colleague. Colleagueship, considered as the safeguard against abuse of the imperium, grew to be so firmly impressed on popular imagination as the characteristic feature of the new office, that the earlier titles derived from the monarchy gave place to that of consules.[320]

But this limitation was not sufficient. The unrestricted military jurisdiction of the magistrate was felt not to be in harmony with the new régime. A law was passed by P. Valerius, the first of the consuls, allowing an appeal to the people in their centuries against every sentence of a magistrate which was pronounced against the life of a Roman citizen. This lex Valeria (509 B.C.) completed the popular jurisdiction which had been growing up during the monarchy,[321] and from this time no power but the people has the right to pronounce the final death sentence within the walls;[322] outside this sphere the military jurisdiction of the consul can be asserted without appeal—hence the distinction between the imperium at home (domi) and abroad (militiae); the limit between the spheres being originally the pomerium, later the first milestone from the city.[323] Without this limit the axes are borne within the fasces, within it they are laid aside. Tradition adds that it was this final recognition of popular sovereignty which led to the custom of the consul lowering the fasces before the people when he addressed them.[324] It does not appear that this great change was forced on the higher organs of the state by any popular agitation. It is no part of a distinctively plebeian movement. Senate and People, Patricians and Plebeians must have equally accepted as inevitable the doom of a power which had been dwindling to a shadow during the monarchy.

The change from monarchy also witnessed the first attempt to weaken the unity of the executive power. The consuls were given two general assistants, the annually appointed quaestores. We have noticed the tradition which assigns these officials to the regal period,[325] but it is not wholly inconsistent with that which represents them as a part of the new constitution of 509. From being temporary delegates they now became permanent assistants of the consuls. Their sphere was as unlimited as that of the consuls themselves; they were meant simply to obey his behests. But two departments in which they represented the supreme magistracy must have stood out prominently from the first. These were criminal jurisdiction and finance.[326] The “city quaestors” (quaestores urbani), as they were subsequently called to distinguish them from their provincial colleagues, were known as quaestores parricidii[327] and quaestores aerarii. In their first capacity they were delegates whom the magistrate employed in criminal jurisdiction, probably occupying with respect to procedure much the same place as the duoviri in the trial of Horatius.[328] The designation parricidii may, however, show that they were employed in such criminal cases as did not directly affect the welfare of the state,[329] and by their side the duoviri perduellionis reappear at intervals during the early Republic. Their financial functions are generally taken to imply the existence of a state treasury (aerarium). Tradition credits the first consul Valerius Publicola with its institution, and makes the quaestors the guardians of its wealth and probably of its archives.[330] The public chest of Rome must have been a primitive matter enough at a time when coined money was not in general use; but it is not improbable that finance did at this time become a definite department. It could no longer be a purely domestic matter; the lands of the kings had become crown lands of the state; the series of wars into which Rome was plunged must have rendered a constant collection of the war-tax necessary; none would more naturally have been entrusted with the control and disbursement of revenue than the perpetual delegates of the consuls; and the formalism of Roman character would lead us to believe that the consuls had regular modes of acting through their quaestors, and that these officials so far limited the power of their masters. It is not improbable that the quaestors were originally nominated by the consuls without the direct intervention of the people; but this does not exclude some popular ratification of the choice.[331] It was not until about the year 449 that their election was transferred to the newly-constituted comitia of the tribes.

And, as the consuls nominated their delegates, so the regal tradition was continued which gave them the nomination of their council of state, the Senate. In their choice of members they were legally as unfettered as the king had been, and could summon new members or omit to summon those already on the list.[332] So far as law went, the personnel of the Senate might now be changed annually. But custom must have been stronger than law. The body had gained a definiteness in its constitution, based on its representative character and probably on actual life-membership, which could not be easily destroyed, and the consul had a colleague at his side to check any attempt at capricious removal or selection. The short tenure of office must already have made a magistrate unwilling to exercise a power which might be so easily turned against himself in the near future. The discretionary power of the magistrate would have made the choice of Plebeians possible, now that they were possessed of all the essential rights of full citizenship;[333] but it does not appear that this choice could have been often, if ever, exercised. The patrician clans had a close hereditary connexion with the Senate; the interregnum, which was the transmission of auspices by the patres, had long been one of its privileges, and the prejudices of the patrician magistracy would hardly have allowed it to dip into the inferior order for councillors. If there be any truth in the story that, on the abolition of the monarchy, the thinned ranks of the patres were again raised to 300 by the inclusion of persons specially enrolled (adlecti or conscripti),[334] these added members were probably, like their predecessors, patrician. This large increase (placed by some at 164 members) gave rise to a transitory distinction between the older members and the new members, which—expressed in the formula of summons “qui patres, qui conscripti (estis)”—was finally merged in the general appellation of “conscript fathers.”[335] The expression may have originated with the abandonment or modification of some original principle of selection; but, if conscripti be taken to apply wholly to Plebeians, some date later than the commencement of the Republic must be accepted for the origin of the term.[336]

The history, indeed, of the next hundred and fifty years shows that the Senate is the stronghold of patrician prejudice. The power from which the Plebeians try to shake themselves free, is the patrum auctoritas, and the magistracy must soon have yielded to the demands of the new burgesses, had it not been backed up by a patrician council. Yet during the early Republic the Senate was a power distinctly secondary to the magistrates. Its two undoubted prerogatives were the interregnum and the patrum auctoritas. The first was exercised, perhaps, more occasionally even than it had been under the monarchy, for it could not be resorted to if one of the two consuls existed to nominate a successor. The second power, on the other hand, must have become far more formal than it had been in the time of the monarchy. Then it had been little more than the claim of the council to be consulted on important business;[337] now it was put forward as an integral part of the procedure of the state; it was framed after the voting in the assembly had taken place, and no law or election could be valid which had not, after it had passed the people, received this formal consent of the patres. We cannot trace the widening of the other powers of the Senate; but we must assume that it took up a more independent position in face of the consuls than it had done in that of the king. Perhaps the establishment of a treasury and of financial quaestors, who may have been selected from the council, led to its first connexion with finance. The new importance that foreign affairs assumed, in the constant wars in which Rome was engaged with the nations of Italy, must certainly have strengthened its control of this department.

But, on the whole, the earliest period of the history of the Republic is the epoch of the power of the magistracy. The traditions of the monarchy were so little forgotten that eight years after the establishment of the Republic, kingship in a modified form was again restored.[338] In 501 B.C., during a war with the Latins, the consuls nominated an individual with the royal title and powers. It was understood that this magister populi, or, as he was afterwards called, dictator,[339] was to remain in power only so long as the danger lasted; as the danger was originally military, a single campaign of six months was held to be the maximum duration of the office. During this time he was to exercise the full regal imperium, within as well as without the city, and the accompanying military jurisdiction without appeal. He was originally understood to be a purely military official and the commander of the infantry force; the command of the cavalry he entrusted to a magistrate who, on the analogy of the magistracies of the monarchy, was a delegate of his own, and bore the title “master of the horse” (magister equitum).[340] The dictatorship was conceived of as a purely military office, and, though it was occasionally used for other purposes in the later constitution, never lost its primitive character. Although it impeded for a time some of the most characteristic functions of the consuls, it was not a suspension, but a part of, the constitution. A small, struggling, and essentially military society, such as that of early Rome, contemplated martial law as an occasional necessity; there were times when the peril of the state was so great that it was felt that the citizens’ ordinary guarantees of protection should sink into abeyance if they were thought likely to interfere with the safety of the commonwealth. The dictatorship had an internal as well as an external side to its military character; it was even, perhaps, on its earliest institution, meant to control disobedient citizens as well as to oppose the enemy,[341] and was thus to some extent a party weapon in the hands of the Patricians against the refractory Plebs. We shall find that this summary military jurisdiction within the city was subsequently abolished, without much loss to the utility of the institution. Its true merit was the unity of administration which it created, the advantages of which were made more apparent by the clashing powers of the magistrates at a later stage of history. But the experience of the evils of divided authority did not first point out the necessity of the office. The dictatorship was an integral part of the original Republican constitution; the law allowing it was forgotten—perhaps it was the first lex Valeria which secured the appeal against the ordinary magistrates; but the right of the consul to declare martial law, as he did by appointing a dictator, was never questioned as was the parallel right, usurped by the Senate in later times, of arming the consul with military jurisdiction. But, although the nomination of a dictator could not be regarded as a violation of, or even as a break in, the constitution, it was rightly held to be a powerful party weapon in the hands of the patrician magistracy; and the attempts of the Plebs were directed, however unsuccessfully, to limit this mighty power which over-rode all privilege and law.

But the appointment of a dictator was supposed to be due to exceptional circumstances. It is only when we look to the peaceful life of the state, to the administration of law by the magistrate or the expression of popular will in the comitia, that we can estimate the strength of the position held by the patrician families.

The criminal law, which was doubtless during this period becoming more and more secularised and divorced from the direct control of religion, was the monopoly of the official class. A criminal case was an inquiry undertaken solely on the initiative of the magistrate; no question could come before the people until he had investigated it, and was then only submitted in a form prepared by him. In the early popular courts at Rome there was no power of amendment; the people could answer only “Yes” or “No” to the question put before them. We are ignorant of the extent of popular jurisdiction; it is possible that only sentences affecting the caput of a citizen were submitted to the assembly.[342] But there was no real guarantee that even such questions could be forced from the magistrate’s court. The lex Valeria which admitted the provocatio imposed no penalty on the magistrate who violated its provisions; the only hope lay in the veto of his colleague, and, if two consuls were in agreement, they might ride roughshod over the law. The consuls were ostensibly the only guardians of the criminal code; as it is inconceivable that, in an age which made little use of writing, two men selected on very varied grounds could have been regarded as fit expounders of this form of jus, we must, even in the domain of criminal law, go behind them and seek its true source in that formidable body, the college of pontiffs. The learning and activity of this body is known to us, however, chiefly in connexion with the divine or family or, as it would have been called in later times, the civil law. The change from monarchy to aristocracy introduced, in Rome as in Greece, an epoch of religious tyranny. A king, who is the head of the religious as well as of the secular life of the state, may hold the balance between the classes. He is more likely to repress than to encourage his advisers; he may find in popular rights a useful check to religious insolence. But remove the king and substitute an aristocracy like the Patriciate whose members hold supreme office in turn; let there be no distinction between clergy and laity in this body, so that there can be no conflict between the secular and sacred power, which may enable a third power to gain a footing; and let this body have a monopoly of the civil law—and we get unequalled possibilities of judicial tyranny. For two hundred years (509-304) the knowledge of the forms of procedure, the legis actiones, which formed the whole content of the civil law, was open to the patrician pontiffs alone.[343] We are told that, even after the outlined codification and publication of the law in the Twelve Tables, the formularies could only be repeated correctly under the guidance of the college, which for this purpose annually appointed one of its members to “preside over private suits.” It is true that the theory of civil procedure was the same as it had been in the time of the monarchy; the magistrate decided what special rule of process was applicable, and then the case was settled by an arbitrator chosen by the litigants.[344] But the magistrate must often have been unskilled, one of the college must always have stood by his side, and the pontiff so officiating was not merely an adviser to the parties but a witness to the performance. The pontiffs, however, were more than interpreters. They had, as the guardians of fas, their own sphere of law, relics of which survived into the late Republic, and within this sphere they were judges. They had a graduated scale of expiations for sins (piacula); they were the police who protected the sanctity of festal days (feriae), and inflicted spiritual penalties on the magistrate himself who dared to exercise jurisdiction on a day which they had declared holy; they issued and enforced commands which protected sacred places (loci sacri) and burial-grounds.[345] Vows (vota), to be effective, must be prescribed by them, and peculiarly efficacious were those fixed forms of prayer (certae precationes) which they had dictated word for word (de scripto praeire).

Against this phalanx of patrician power what forces could the Plebeians boast?

A certain amount of voting power in the comitia was all that they possessed. But this voting power, except on certain established points—the declaration of war and, when the law was observed, criminal jurisdiction—was very ineffective, for the assembly was wholly dependent for its summons and expression of opinion on the patrician consuls, and liable to interruption from the pious scruples of patrician augurs; and we have already seen how even the choice of magistrates could be hampered by the formalities which still conditioned the election.[346] But, even had these adverse circumstances been avoided, the voting power of the Plebeians was small. The comitia centuriata contained chiefly the propertied—for the most part the landed—class; and even in this assembly the two first classes and the knights, which would have consisted mainly of Patricians, had a majority of votes (118 out of 193). The small farmers and the artisans commanded but 74 or 75 votes; the great mass of the Proletariate was either wholly unrepresented or could dispose of but a single vote. It is important to inquire whether these classes excluded from the centuries were represented elsewhere, or whether there was an assembly possessing any real power in which Patricians and Plebeians were alike represented.

It has been proved beyond a doubt that at some period during the first three centuries of the Republic Plebeians came to be included in the comitia curiata.[347] The change was the result of two circumstances; firstly, the perfect equality of private rights between the members of the two orders—adrogation and adoption, both of which followed the possession of a familia, and in many cases gentilitas, being common to both—which rendered it impossible to draw distinctions amongst the curiales; and secondly, the reactionary influence of the centuriate assembly, which emphasised the idea that Patricians and Plebeians together made up the Populus.

Such a change must have been gradual; but, when it had occurred, the admission of the Plebeians made this assembly thoroughly democratic in form, for a vote in this comitia depended neither on land or wealth, but simply on personal membership of a curia, which was common to all the citizens. But it is the very comparison of such a body with the thoroughly timocratic organisation of the comitia centuriata which leads us to believe that, at the time when the Plebeians were admitted, the curiae had ceased to be a power. The condition reached by the comitia curiata in historical times will be described elsewhere. Its most distinctive right—the lex curiata—had perhaps been a real power in the hands of the Patricians, as long as they were its sole members, although their preponderance in the comitia centuriata would have made a conflict between these two bodies unlikely; but there probably never was a time when the masses of the Plebs gathered curiatim upset the verdict of the Patricians and wealthy Plebeians assembled centuriatim.

When we consider this situation, it is not surprising that the leading features of the first period of development of the Roman constitution (494-287 B.C.) were an attempt to limit the power of the magistrates, and a struggle of the Plebs for equality with the Patriciate. The two struggles do not run on parallel lines but are interwoven at every point, since the magistracy represented the Patriciate. Nor do they represent merely an effort to weaken or to obtain political privilege; in their earlier stages the motive of the Plebs is not ambition, but defence. Their first efforts have the negative object of the protection of rights, not the positive design of an attempt to share in a political power which was closed to their order.

Tradition represents the earliest social struggles of the Plebs as centring round two questions—the possession of the public land, and the law of debtor and creditor. They were no doubt closely connected, for assignment of land meant relief of debt, but the agitation that gathered round the public land was directed by individuals, was merely occasional, and led to no permanent results; it is less a part of constitutional than of political history, and its true nature is obscured by the fact that we cannot say how far the annalists have transferred to this early period the circumstances of the agrarian agitation of a later day. But the early mode of assignment of the public land deserves consideration; for, as one of the undoubted grievances of the Plebs, it may have been one of the motives that led to the first great political reform. Land conquered from the enemy was sometimes assigned to poorer citizens in small allotments by the state (ager assignatus); in later times it was sometimes sold by the state through its quaestors (ager quaestorius); and in both these cases it became private property. But, in the early Republic, the custom was growing up of leaving a great portion of conquered land—especially such as was fit only for pasturage or had been devastated in war—as state domain (ager publicus), and of allowing it to be held in usufruct (occupatio) by squatters who paid to the state for their privilege a proportion of the produce (vectigal), a tithe or a fifth. Large portions of such ager publicus had probably been originally a part of the king’s domains, and had been held by his clients, who would, of course, have been members of the lower class of the Plebs. But under the new conditions of things it was all the property of the state; and the theory was started, or confirmed, that in this case Patricians alone could be its occupants,[348] a privilege that had probably originated with the assumption that only the conquerors of the land could share in the spoils of war.[349] This privilege—comprehensible but legally absurd in that it involved the theory that clients of the state must belong to a particular order—could no longer be upheld on the same grounds, for Plebeians now marched to battle and could justly claim a share in the prizes of war. But the maintenance of this principle, even if justly carried out, could not have wholly solved the social problem. The Proletariate, who had no share in winning the prize, would have still been justly excluded; but it would at least have benefited the small plebeian farmer, and perhaps it was he that had most need of benefit.

For the small independent landholder was in a hopeless plight—far more hopeless than that of the client or emancipated slave who could claim his lord’s protection. His condition was due to the law of debtor and creditor—one, it seems, that was unknown to the old patrician community, and had originated within the plebeian order, but which the Patriciate, by adopting plebeian forms of law, could use with terrible force against its inventors. The original procedure was one of the manifold forms of nexum, or binding obligation created by the copper and the scales (per aes et libram). A man who borrowed was allowed to sell his perpetual services to his creditor conditionally—the condition being the non-repayment of the debt within a given time.[350] When the prescribed period had elapsed, the debtor and his whole familia passed into the power of his purchaser; he became his bondsman (nexus) until the debt was paid by his labour. As in such circumstances the debt was never likely to be liquidated, the small farmer became a mere dependent member of the household of the rich landowner, leaning on his mercy and subject to his caprice. No judicial process was necessary to create the condition. The simple proof (perhaps given before a magistrate) of the witnesses to the contract was all that was required. The enslavement of the citizen was, it is true, forbidden by Roman public law,[351] and the nexus remained a burgess.[352] But a very thin line separated such a condition from one of actual slavery.

It is probable that in early times plebeian law recognised no debt except that created by the nexal contract. But as Roman commerce extended it was impossible to observe this limitation; refinements of procedure extended this penalty to debts incurred by the patrician form of mere verbal promise (stipulatio, sponsio). The form of procedure in this case is known to us from the Twelve Tables. If the debt was confessed or proved before a court, an interval of thirty days was given to the debtor wherein to pay; at the end of this period he was arrested by the creditor (manus injectio) and brought before the consul, by whom, if no champion (vindex) presented himself to contest the debt, he was bound over (addictus) to the creditor. The latter could take him home and put him in bonds, but must give him a pound of corn a day. Another interval of sixty days followed, within which the prisoner was presented to the magistrate on three court days (nundinae). On the last his fate was sealed. He was no longer in the condition even of the nexus. His creditor might put him to death or sell him as a slave beyond the Tiber.[353] If there were more creditors than one,[354] they might divide the debtor’s body into equal portions; and the Twelve Tables gave immunity to the creditor who took more than his fair share of the flesh. This death-penalty was doubtless a humane alternative to perpetual imprisonment. Even if it did not submit the penalty, as a capital one, to appeal (provocatio), the danger, which could be brought home to relatives and friends by gradual mutilation, disfiguring but not fatal, must have roused their efforts to effect a ransom. It was the application of this law of debt, perhaps in even a harsher and more primitive form, that called forth the first resistance from the Plebs. The perpetual struggle for existence in which Rome was now engaged kept her armies constantly in the field, and the small farmer on service, who had no slaves, had to let his farm go to ruin in his absence and to mortgage his body when he returned.[355] The most obvious remedy was a general strike against the military levy; and this was attempted. Already in 495 a riot had been raised in Rome, which was only appeased by the promises of a popular consul, Servilius, that the nexi should be released for service, and that no one should seize goods or pledges from a soldier while he was in the field. The liberated citizens scattered the Volsci and Aurunci; their reward was a more rigorous enforcement of the law of debt by the other consul Appius. Servilius was appealed to, but would not use his right of veto against his colleague. It was plain that no one could rely on a consul’s auxilium being used on behalf of the Plebs.[356] A fierce stand against the conscription was now made by the desperate Plebeians; the patrician answer was the appointment of a dictator. Again the army took the field against the Volscians and the Sabines; but, when victory was assured, the legions were not disbanded, and a pretext was found for another campaign. On the march from Rome the plebeian contingents suddenly turned aside to a hill in the territory of Crustumerium, which, from the oath taken on its summit, was thenceforth called the “Mount of Curses” (sacer mons).[357] A plan, carefully thought out in the coteries and gatherings that had preceded the campaign,[358] was now carried into effect. The Plebs had already gathered in informal meetings (concilia) to discuss their grievances. All that they lacked to become a corporation which might rival that of the Populus, was to have at their head magistrates with great and recognised powers. They were now met in battle array to carry out this resolve; and it was not unnatural that the two plebeian magistrates whom they chose to rival the power of the consuls should bear the military appellation of tribunes.[359] It was made a condition of reconciliation with the patrician state which they had quitted, that these officers should have the power of suspending the decree of the consuls when levelled against a member of the Plebs. But, since little confidence was to be reposed in the government, the Plebs bound themselves by an oath, similar to that taken on the expulsion of the king, to destroy any one who offered injury or insult to their magistrates. The recognition of these new magistrates, with the powers their appointment involved, was effected by a lex centuriata perhaps passed in the very year of the secession (494 B.C.). The office of the tribuni plebis or plebei was modelled as closely as possible on that of the consuls. They were originally two in number, and had, with reference to each other, the mutual power of veto which the collegiate principle implied. They were from the first magistrates of the Plebs, hence none but Plebeians were eligible,[360] and they must from the first have been elected by an assembly of the Plebs. This assembly, however, did not perpetuate its original military character, and the unit of voting naturally selected for the city-gatherings at which the tribunes were appointed was the curia, to which Plebeians had for some time belonged. This assembly of the Plebs was known as the concilium plebis curiatim.[361]

With respect to power the tribunate has, from its origin, a double character. It possesses a negative control of the whole people (generally in the person of its magistrate) exercised in defence of the Plebs, and a positive authority within the plebeian community. The first power asserts itself in the right of veto, the second is shown in the power of eliciting resolutions (scita plebei or plebiscita) from the plebeian concilium. The first power, that of offering assistance (auxilium) to any Plebeian[362] who feels himself aggrieved by the decree of the magistrate, and suspending this decree by the exercise of the “veto,” was the raison d’être of the tribunate. The tribune was created to meet the consular imperium (contra consulare imperium),[363] and the fact that he could only exercise this power in person imposed on him certain obligations. The tribune might not stay a night without the walls, and the doors of his house were open day and night.[364] It was doubtless through the insufficiency of these presidents of the Plebs to cope with the demands for their assistance that their number was raised first to four (471 B.C.), and before the year 449 B.C. to ten[365]—changes which were ratified by the centuries and the Senate.

But a negative control over the magistrates of the state must be wholly ineffective unless there be some means of enforcing this control. Had the tribunes possessed no coercive power, the consul, in carrying out the law of debt or in summoning Plebeians for the levy, would simply have set their veto aside. We should have expected that such breaches of the law would have been guarded against by judicial prosecution before the courts of the community. But this was not consistent with the Roman idea of magistracy. Each magistrate had, to a greater or less degree, the power of enforcing his own decrees (coercitio), limited only by the right of appeal or the veto of his colleague; and this power could not be denied to the tribune. A logical consequence of his right of veto was that he could exercise this coercitio against the consuls themselves; the sanctity of his person (guaranteed by the Plebs and accepted by the Populus) rendered resistance hopeless; and all the weapons of the coercitio—arrest, imprisonment, fines, stripes, and death—were at the disposal of the champion of the Plebs.

Coercitio implies summary jurisdiction; and the infliction of fines beyond a certain limit, scourging, or death subjected a magistrate to the provocatio, and therefore made him a partner in a trial before a popular assembly. Hence the judicial power of the tribune, also a necessary consequence of his power of veto. Undoubtedly when the office was created this consequence was not foreseen. When it was found to be a necessary accompaniment of the tribunician power, tradition tells us that it was questioned by the Patricians. The historically worthless but typical trial of C. Marcius Coriolanus in 491 B.C. elicited a protest that the jus of the tribunes extended only to Plebeians.[366] The protest was idle, for the jus auxilii could not exist without the jus poenae against its violators. The violation of plebeian rights which was thus met by tribunician coercion and jurisdiction, was always an infringement of the safety or dignity of the tribune himself. Even the infliction of wrong on an individual through the violation of the tribune’s decree was a wrong done to the Plebs through him; it was not held to affect the rest of the community; hence the not unnatural belief of our annalists that, when the tribune pronounced a sentence against which there was an appeal, he brought the matter before the assembly of the Plebs.

This right of reference implies the power known as the jus agendi cum plebe. It was a power that could not have been contemplated on the establishment of the tribunate, but it proved a necessary consequence of the auxilium. Its acquirement meant a new infringement of the rights of patrician magistrates; for the summoning of the Plebs meant the calling away of a large portion of the Populus from the consuls. Two summonses of two assemblies containing the same individuals by different magistrates meant an inevitable conflict of authority, and the tribunician right of transacting business with the Plebs could not be secured but by a definite guarantee against consular interference. This guarantee was given, tradition says, by a resolution of the Plebs itself, passed in 492 B.C., two years after the institution of the tribunate, under the presidency of the tribune Sp. Icilius.[367] The date is probably too early, and the resolution must have been subsequently ratified by a lex of the centuries. It enacted that when the tribune addressed the Plebs no one should speak against or interrupt him; that the tribune should fine the offender and demand securities. If securities were not forthcoming, the offender should be punished with death and his property confiscated to the gods. If the fine were disputed the judgment should rest with the people. Whether by “people” here was meant Populus or Plebs, it was doubtless on this law that the plebeian assembly based its jurisdiction in the case of injury or insult being offered to its magistrate.

But the right of acting with the Plebs, which was thus guaranteed to the tribune, had another and more positive aspect. It might be used to elicit formal resolutions passed by the whole plebeian concilium in their own interests, and to give this body the character of a guild which, within certain limits, could pass rules binding on all its members. So long as the resolutions of this body were purely self-regarding, did not infringe on the public law, and were voluntarily accepted by all the members, they did not need formal ratification by any higher authority. But sometimes resolutions were passed which the Plebs was incapable of carrying into effect; in this case they were mere petitions to the only recognised legislative power, the consuls presiding over the comitia centuriata. We have an instance of this procedure, dated within forty years of the establishment of the tribunate, which shows how far-reaching the demands of this concilium might be. In 456 B.C. the tribune Icilius elicited from this assembly a resolution to the effect that the Aventine, until that time state property,[368] should be assigned to the Plebs. With this petition he approached the consuls and the Senate, and requested them to gain the consent of the comitia centuriata in due form of law.[369] The same procedure must be imagined for any plebiscita, which refer to matters affecting the whole community, down to the year 287, when, as we shall see, these resolutions of the Plebs were first raised to a level with the laws. In framing its resolutions the Plebs was as dependent on the tribune as the comitia was on the consuls; the rogatio of the magistrate could only be answered by the “Yes” or “No” of the burgesses. Its elective proceedings were similar to those of the whole people. The tribune, before he quitted office, nominated successors and submitted their names to the Plebs. The differences were that the voting was by curiae and not by centuries, that the patrum auctoritas had here no place, and that the formal taking of the auspices was not necessary to the validity of the proceedings, although doubtless the tribunes employed their right of taking private auspices[370] to give a sanctity to the act of the Plebs.

In one further and less important respect was this community of the Plebs modelled on the larger community of the Populus. In the year when the tribunate was established, the magistrates of the Plebs were given two assistants,[371] who bore the same relation to them as the two quaestors did to the consuls. Their functions were as undefined as those of the quaestors; but, when the powers of the tribunate were slightly better established, these delegates seem, like their prototypes, to have been concerned mainly with criminal jurisdiction and finance. They also kept the archives of the Plebs in the temple of Ceres, and it was thought that it was from this that their name aediles (possibly not their original title) was derived.[372] They served the tribunes in the exercise of their coercitio, seizing the offender or inflicting the death penalty. We find them performing this function in the trial of Coriolanus.[373] After the tribunes had gained criminal jurisdiction, they assisted them as delegates.[374] Their original financial functions are somewhat indefinable; but such functions are suggested by their office at the temple of Ceres and the archives which they guarded there—functions which find exact parallels in those of the quaestors at the temple of Saturn. It may have been one of their duties to exercise some supervision over the forced labour (operae) of the Plebeians, and this may have led to an early connexion with the repair of roads and buildings. Their police functions, their supervision of the market, above all their maintenance of the state religion amongst the masses, can hardly be referred to this early period.[375]

The aediles may originally have been nominated by their superiors; but election by the concilium of the Plebs, under the presidency of a tribune, is the only form of their appointment which is known to us. The office was legalised with the tribunate, and its holder possessed the same personal sanctity as the tribune, conferred first by oath and then by law.[376]

For the power of these plebeian magistrates rests wholly on a superstitious belief, consciously applied to fill up a gap in the public law. It might have been thought that magistrates elected by a large body of the citizens, whose powers were recognised by public law, would have been sufficiently protected by their position. But the Romans were slaves to legal formulae. The Plebs was not the community, nor even at first a legalised corporation within the city; the tribunes were, therefore, not magistrates of the state, and wore none of the insignia of office; they had not the imperium and the auspicia, and therefore could not be protected by the law of treason (perduellio), which avenged wrongs done to the state in the person of its magistrate. A substitute must be found in a religious sanction. Perhaps Rome is the only state that has definitely invested the demagogue or “champion of the people” with a halo of sanctity. This was first given him by the people whom he championed. The Plebs on the Mons Sacer had sworn an oath to destroy any one who destroyed their tribune—an oath which they perpetuated to their descendants. The sanctity of the tribunes, therefore, had originally no valid religious ground, for the Populus had not pronounced such an offender to be sacer, nor had the oath been taken by a magistrate on behalf of the whole community. It was simply a proclamation by a section of the people of the infringement of rights which they held would justify a revolution; and the declaration was accepted by the Roman state when it recognised the tribunate. But the inviolability of plebeian magistrates did not gain legal recognition until the reinstitution of the office in 449 B.C. Then the violator of the majesty of the tribune was made a sacer homo[377] in its later sense of “an outlaw” for the whole community, and the aediles and the plebeian decemviri were protected by the same ban. Yet the Roman jurists held that this law did not give sacrosanctitas, at least to the tribune; that was given by the “ancient oath” of the Plebs; the law only announced a penalty which might be carried out by any member of the community. This view was of importance, because it recognised the capital jurisdiction of the Plebs in all cases where their magistrates had been injured; and, although subsequent practice was unfavourable to this jurisdiction, its legality cannot be questioned. The tribune was himself the defender of his own personal inviolability and that of his fellow-officers; for it was he who summarily inflicted the punishment or proposed the penalty to the concilium. The crime of infringing plebeian liberties could not originally have borne a definite name; in later times it was brought under the vague conception of majestas, “the infringement of the greatness of the state.” The penalty might be a capital one, while the acts construed as infringement might be very slight indeed. Physical compulsion, blows, an attempt at murder were all obvious cases; but forcible resistance to a tribune’s will[378] came under this head, and, after the law which guaranteed the right of meeting to the Plebs, any act, whether of magistrates or individuals, which interrupted a meeting of the Plebs summoned by a tribune.[379]

In fact, during the earliest years of the struggles of the Plebs, the rights of the corporation are represented only by the powers of the tribune, through whom alone it claimed official recognition; and thus from 494 to the epoch of the decemviral legislation (451) the tribunate is engaged in efforts to gain a better representation of the plebeian community, and to secure an equality in the administration of the law, which should render the clumsy negative system of the constant interposition of their auxilium less necessary.

The first attempt seems to have been to some extent secured by the plebiscitum passed by Publilius Volero in 471, which enacted that the concilium of the Plebs, instead of meeting as before by curiae, should now meet by tribes (tributim).[380] As this was a purely self-regarding ordinance, it probably did not require the consent of Senate and people,[381] and we are told that it was looked on with disfavour by the Patricians. The grounds of their objections are not easily fathomed, nor is the gain to the Plebs brought about by the change particularly clear.[382] The number of the tribes at this time is unknown, but it was probably twenty-one. This growth had been brought about by an abandonment of the Servian principle. After the Roman territory, lost in great part during the earliest years of the Republic, had been regained, a wholly new subdivision of the ager Romanus had been adopted. The four Servian tribes were confined to the ring-wall of the city, and the land without the walls was now separated into tribus, which were called the country (rusticae) as opposed to the city tribes (tribus urbanae). Sixteen of these country tribes bear the names of patrician gentes;[383] they must have been named from the clan settlements and were obviously the first created. It is affirmed by Dionysius[384] that, at the time of the trial of Coriolanus (491 B.C.), the number of the tribes was twenty-one; but it has been conjectured with some plausibility that the twenty-first was added in this very year 471, when the tribe was first used for voting purposes, in order to create an inequality of votes, and that it bears its local name (Clustumina or Crustumina) in memory of the secession of the Plebs to the Sacred Mount.[385] The Plebs may have petitioned the consuls to add one more to the divisions of the state; for it was they alone who could effect the change, the creation of a tribe being an administrative act which none but the magistrates of the community could carry out.

These tribes were, like the earlier ones, local, and although there is no evidence for the view that landholders alone were included in them, yet the seventeen country tribes would naturally consist for the most part of peasant proprietors, and would, therefore, be a better organ for plebeian sentiment than the curiae, throughout which the landless plebeian clients might still be the representatives of their patrician lords.

This change soon produced an unexpected consequence. At some period between the passing of the Publilian law and the enactment of the Twelve Tables, the new plebeian practice was adopted as a basis for gatherings of the whole people. The Populus began to meet by tribes, and to form a comitia tributa. The Twelve Tables prove that this body early gained judicial competence;[386] but the history of the great change which placed a democratic assembly of the Populus by the side of the timocratic comitia centuriata is wholly unknown to us. It is probable that the original power of this new parliament was not extensive, and it may have been confined originally to the hearing of minor judicial appeals from the magistrates. About twenty years later it was found convenient to entrust the election of quaestors to the new assembly. Its attractiveness lay in the ease and rapidity with which the people might be summoned to meet by tribes within the walls, as compared with the stately formalities of the gathering of the army in the Campus.

The second great movement of the tribunate was an attempt to secure an equal administration of the law.

In the year 462 the tribune C. Terentilius Arsa made a proposal to the concilium of the Plebs that a commission of five should be appointed to clear up the forms of legal procedure, and by this means to fix limits to the judicial caprice of the consuls;[387] and in the next year a resolution of the whole college of tribunes was framed to this effect. It was obviously a measure which demanded the sanction of the Populus, and this it was for many years impossible to obtain. Even apart from the fact that the tribunes apparently intended their commission to consist wholly of Plebeians, it was felt to be a proposal that was revolutionary in the extreme; for it was nothing less than the demand for a code, for a written system of rules which should replace the elastic principles of justice, which were one of the mainstays of patrician power, and which would vulgarise the awful sanctity of the consulate and the pontifical college. It must also have been felt that codification must mean a compromise—some recognition of plebeian claims which would weaken the position of the ruling caste. Hence a stout opposition on the part of magistrates and Senate, and the bill, if it passed the concilium plebis at all,[388] was not allowed to go a step further. But the Plebs persisted in its efforts, and its answer to patrician opposition was to return year after year the same tribunes, formulating the same demands. In 458 B.C. the college approached the consuls on the subject, and asked them to formulate their objections to the bill;[389] for the moment there was the hope of an agreement, but at the end of the year the consent required was again refused. Three years more of agitation followed, and then it was felt that the original proposal must be abandoned. The tribunes expressed their willingness for the initiative to be taken by the patrician magistrates, and for a joint commission to be appointed. Meanwhile the years of discussion had caused the original proposal to assume larger dimensions. Reform which should bear a wholly non-party character was suggested in place of a mere codification. Information of the Greek Codes was to be gathered by a commission of three—a suggestion which was valuable in many ways; it was useful for purposes of delay, it gave an appearance of learning and thoroughness to the work, and perhaps some such basis was felt to be absolutely necessary for framing rules on points which the very indefinite Roman procedure had never considered. The return of the envoys in 452, after an absence of three years, renewed the demands of the tribunes for the instant prosecution of the work. A controversy between the orders as to the constitution of the commission ended in a compromise. Plebeians might be admitted; but, as a matter of fact, the patrician influence was so strong that the first board elected by the comitia centuriata appears to have consisted wholly of members of that order.[390] The appointment of the commission was a complete abrogation of the constitution. The consulship was abolished; the Plebs gave up their tribunate, some have thought in perpetuity, misled by the hope that the publication of the law would render such a check on the consular power unnecessary, and as a part of the compromise with the Patricians, and stipulated only that certain privileges which they had already gained by law should not be abrogated.[391] The provisional government appointed for the year 451 took the form of a board of ten men with consular power but not subject to the law of appeal.[392] The work was done within the year, and the code posted up on ten tablets (tabulae) and published to the masses. The people were summoned and told that the commission had created equal rights for all,[393] and the whole body of law was passed as a lex by the comitia centuriata. But at the end of the year it was declared that the work was not quite complete. Again the constitution was suspended, and a new board of ten appointed, this time inclusive of Plebeians.[394] Two new sections were added, thus bringing up the number of the tabulae to twelve; these also were confirmed by the centuries, and after the government of the “wicked ten” had abused its power and fallen, were published with the rest of the code by the consuls of 448.[395]

Although the law of the Twelve Tables (lex duodecim tabularum) was for the most part a codification of existing rules, it marks a distinct advance in the recognition of plebeian rights, and thus was of the utmost political importance in framing rules for the whole state the question before the commissioners was whether the customary law embodied in the code should be that which prevailed in the patrician, or that which held good in the plebeian community. In almost every important particular plebeian law was preferred. The reason was not any regard for plebeian rights (the decemvirs re-enacted the rule forbidding marriage between the orders), but the simplicity and the capacity for universality of this law. The code is not a hap-hazard collection, but a scientific compilation; the aim was a “levelling” of the law, an arbitrament between classes, such as had often formed the task of the Greek legislator; and in effecting this object the commissioners showed more wisdom than any Greek legislator of whom we hear. The idea of legislating for a class, or the still more foolish idea of perfect logical adjustment, are strikingly absent. The code is thoroughly Roman in its caution and good sense, its respect for the past, which it disregards only when old custom violates the rules of common sense, and its judicious contempt for symmetry. Such a code as this might be changed in detail, but was never likely to be repealed. It remained the “fountain of all public and private law,” and justly, for, according to Tacitus, it was the “consummation of equal right.”[396] Its rhythmical sentences were learnt by heart by school-boys in Cicero’s time.[397] Elaborate commentaries were written on it by the republican lawyer Aelius, and the imperial jurist Gaius, and by Labeo, who stands at the meeting-point between the two régimes; and in the sixth century A.D. Justinian, in the old age of the world, still respects many of the provisions which date from the infancy of Roman legislation.

The Twelve Tables contained the “whole body of Roman law” (corpus omnis Romani juris),[398] not in the sense that they were a complete and detailed system, but in the sense that they pronounced on all important or disputed points in all departments of law, private, criminal, and public.

The ordinances of private law embraced regulations as to marriage and family relations, testamentary disposition, inheritance, debt, and usury. The marriage recognised was the consensual contract of the Plebeians strengthened by usus. Emancipation was recognised as a consequence of the threefold sale of a son, and a form of adoption, probably already in use in the plebeian community, was thus made universal.[399] The law also facilitated the emancipation of slaves who had purchased their freedom and so helped to create the wealthy freedman class.[400] Perfect freedom of testamentary disposition, in accordance with the plebeian form of testament per aes et libram, was recognised; while in intestate inheritance and in guardianship the rights of the agnati, common to the Plebeians, were recognised as prior to those of the gentiles; sometimes peculiar to the Patricians.[401] The freedom of contract, guaranteed by the Tables, implied the old harsh law of debt; but the penalty was defined, the procedure carefully described, and every loophole of escape offered to the debtor.[402] At the same time usury was severely punished; ten per cent (unciarium fenus) was recognised as the legal rate of interest, and the usurer who exceeded it was punished more severely than the thief and compelled to restore fourfold.[403] The rules of procedure for all civil actions were laid down, such as the summons of parties and witnesses and the length of the trial. But the law did not reveal the forms of action; these were still hidden with the pontiffs.

In criminal matters the Twelve Tables recognise the old principle of self-help; a limb was to be given for a limb; but for minor wrongs compensation was allowed, and twenty-five asses were full reparation for a common assault. But there are survivals of the old religious penalties; the man who destroyed standing corn was hanged as an offering to Ceres,[404] and the involuntary homicide could expiate his guilt with the piaculum of a ram. The law was heavy on the abuse of freedom of speech; for death was the penalty for incantations or libels against a citizen.[405] The same penalty was inflicted on the judex who had accepted bribes;[406] while for perduellio in the form of “rousing an enemy against the state or handing over a citizen to the enemy” the death penalty was also enjoined.[407] Reference must have been made to criminal procedure since the quaestores parricidii were mentioned in the law.[408]

The principle of the constitution which guaranteed a fair trial to the citizen was upheld; for we have the statement of Cicero that the Twelve Tables granted the provocatio “from every kind of court and punishment”[409] In two other particulars they limited the jurisdiction of the people. It was maintained that no law or criminal sentence (for this took the form of a lex) should be directed against a private individual (privilegia ne inroganto), and it was laid down that no capital sentence could be passed except “by the greatest of the comitia” (nisi per maximum comitiatum),[410] i.e. by the assembly of the centuries. Later interpretation held that this clause struck a blow at the capital jurisdiction of the concilium plebis; it is, however, doubtful how far this extraordinary jurisdiction, resting on a religious sanction, could be affected by a law which, as we shall see, never treated the Plebs as a political corporation at all. Another important constitutional provision of this code was one which granted the right of free association. The Twelve Tables, while severely prohibiting secret gatherings (coetus nocturni)[411] which had presumably treasonable designs, permitted the free formation of guilds (collegia or sodalicia). Such colleges were to require no special charter; the rules which they made for their own guidance should be valid, provided they were no infringement of the public law.[412] Lastly, the code guaranteed the sovereignty of the popular assembly by declaring that its last enactment should be final, without setting limits to the sphere of its legislative activity.[413] This was a token of the Roman conviction that there should be no finality in law. The Twelve Tables themselves were not guarded against repeal. It was a forecast of further development following the course of the old, of a constitution whose stages were marked by elasticity and growth, not by rigidity and revolution.

The new law does not appear to have made mention of the Plebs and its tribunes, for they were hardly a part of the constitution; and yet, in the crisis that followed the fall of the decemvirate, the question that gathered round these ignored powers was great enough to obscure every other issue.

The Plebs might have been satisfied with the compromise, had it not been for the unfortunate attempt at despotism made by the second board of decemvirs. It is impossible to believe that this usurpation was really countenanced by the Patriciate, and that they aimed at staving off indefinitely the inevitable assaults of the Plebeians on the magistracy by indefinitely perpetuating this rule of ten annual commissioners without appeal; but they tolerated their rule, and backed up their excuses for not retiring, until two acts of tyranny raised mutinies in both the Roman camps. The plebeian soldiers cast off their allegiance to the ruling board, and first, under military leaders of their own choosing, occupied the Aventine; they then, accompanied by the majority of the unarmed Plebeians of Rome, wended their way a second time to the Mons Sacer (449 B.C.). The Senate in alarm sent two of its members, Valerius and Horatius, who were of good repute among the Plebs, to ask their wishes. The answer was: amnesty for the breach of military discipline involved in the secession; the restoration of the provocatio (which meant the dissolution of the decemvirate) and of the tribunician power.[414] The demands had not increased since the first secession; protection was all that the Plebeians yet demanded.

Everything was granted; the decemviri were forced by the Senate to an unwilling abdication; the tribunate was re-established, and, as no plebeian magistrate existed, the unusual step was taken of having the election conducted by the pontifex maximus.[415] A resolution was then elicited from the Plebs by the tribune Duilius that consuls should be created subject to the right of appeal. It was accepted by the Senate,[416] who appointed an interrex. The comitia of the centuries returned Valerius and Horatius. Under the guidance of the consuls the assembly proceeded to pass a series of laws (the leges Valeriae Horatiae) which more than satisfied the demands of the Plebs. One guaranteed the perpetuity of the provocatio by the enactment that “no one should in future create a magistrate from whom there was no appeal; any one who created such a magistrate should be protected by no law sacred or profane and might be slain with impunity.”[417] The law was evidently called out by the unlimited power of the decemvirate which had just been abolished; it did more than merely affirm the first lex Valeria,[418] for it rendered the creation of an absolute judicial power by the rogatio of a magistrate a capital offence, even when this proposal had been accepted by the people. But the scope of the appeal was not extended; the “creation” of a magistrate referred to election sanctioned by the people, and did not, therefore, affect the right of the consul to nominate a dictator from whom there was no appeal; nor did it extend the limits of the appeal beyond the original boundaries—the pomerium or, at the utmost, the first milestone from the city.[419]

Two other laws aimed at giving a legal existence to the plebeian community. One gave a legal sanction to the sacrosanctitas of the plebeian magistrates by enacting that any one who injured them should be sacer to the whole community.[420] Another gave a more binding character to the formal resolutions passed at the concilium of the Plebs. Its import is obscure, but there can be no doubt that it marks an important stage in the validity of plebiscita. We are told that it was meant to settle the controverted question whether resolutions of the Plebs were binding on Patricians;[421] and that it did this by enacting that “whatsoever the Plebs commanded by its tribes should bind the people (ut, quod tributim plebes jussisset, populum teneret).” It is possible that our authority has misunderstood the purport of this law, but hardly likely that the misconception is so great as that imagined by some modern theorists. It is certain that there is no implication that plebiscita had from this time the force of leges; it was agreed that the resolutions of the Plebs did not gain the force of Acts of Parliament until more than 160 years later. Recent attempts to interpret the Valerio-Horatian law have been based on the supposition that it was concerned with some mode in which a plebiscitum might become a lex, that it facilitated the transformation of a resolution of the Plebs into a binding law of the Populus, through an intermediary channel, consuls or Senate.[422] The wording of the law (hardly so remote from its original as has been supposed) scarcely gives a warrant for this view; it speaks only of giving a “binding character” to such resolutions. It must be remembered that at this time the plebeian community was not really bound by the resolutions of its own concilium, for this was not a legally recognised corporation. The Valerio-Horatian law may have made it such, a corporate body passing resolutions binding on all its members. But a law which is valid for a corporation is valid for those outside the corporation. The ordinances, it is true, which have this binding force must refer immediately only to the affairs of the community which dictates them. This was the case with plebiscita now. All self-regarding ordinances of the Plebs bound the Plebeians in the first degree, the Patricians, if it infringed existing rights, in the second degree. All plebiscita of a wider scope must still have been mere petitions to the consuls.[423] We can hardly conceive that the law discriminated accurately between what was possible to the Plebs and what was not; it was sufficient to recognise the already established maxim that corporations could frame their own rules dum ne quid ex publica lege corrumpant.[424] From this time onwards, down to 287, whenever we find plebiscita affecting matters of national interest or creating changes in the constitution,[425] we must assume that they were brought by the magistrates before the people to be ratified as laws; although doubtless the undefined limits of plebeian prerogative were often exceeded.

The first great utterance of the Plebs, which followed the Valerio-Horatian law, was one of this character, for it attached a criminal (and therefore a public) penalty to a derogation of duty to the Plebeians. On the proposal of M. Duilius, the tribune, the Plebs resolved that “any one who left the Plebs without tribunes or created a (plebeian) magistrate without appeal should be scourged and executed.”[426] It was a mode by which the Plebs tried to guard itself from any possible surrender of its liberties such as that which had created the decemvirate.

The Plebs, thus secured in its original privileges, recognised as a corporate body, and feeling, as a result of the Twelve Tables, that its law was in the main the law of the state, began to aim at something more than protection. From this time begins the continuous struggle for the complete equalisation of the two orders. It was opened by the tribune Canuleius in the year 445. He rightly held that social must precede political equality, and proposed in the assembly of the Plebs that marriage should be permitted between Patricians and Plebeians.[427] The only reasonable objection which the consuls, representing the feeling of the Patriciate, could bring forward against the measure, was the time-worn pretext that was said to have influenced the decemvirs in inserting the prohibition in their code, viz. that the Plebeians had no auspices, and that the disappearance of a pure race would mean a break in the chain which connected the state with heaven.[428] But the pretext expressed the real fears of the Patriciate. Intermarriage between the orders would break down the religious barrier which guarded the consulship; this was the prize for which the Plebs was striving. In fact a suggestion, emanating from the tribunes at the beginning of the year, had already assumed the form of a rogatio to the effect that “the people should have power to choose consuls at its pleasure either from the Plebs or from the patres.”[429] Over the marriage question the usual contest ensued, and with the usual result. The consuls led the opposition as long as they could; at last the Senate was beaten, the magistrates were forced to bring the question before the people, and marriage between the orders was legalised.[430] The tribunes followed up their victory by pressing their measure for the opening of the consulship. It was felt that open resistance would be useless; and a device was resorted to which illustrates the Roman genius for adaptability, for dignified political chicanery, and for satisfying at the same time the demands of reason and prejudice. The immediate evil felt was the irruption of the Plebeians into supreme office; but there must have been for some time a growing sense that the executive machinery of the state was by no means equal to the demands made on it. The two consuls were at once military leaders, the sole administrators of the higher civil and criminal jurisdiction, and the sole officials entrusted with the duty of registering and distributing burdens over the citizens. Such a combination of functions could not continue to exist with the widening of Rome’s political horizon, and the first attempt was now made at a division of the military, judicial, and registrative duties of the supreme magistrate.

To effect this object, and at the same time to make a concession to the Plebs, it was decided to replace the consulship by the office of military tribune with consular power (tribunus militum consulari potestate).[431] The change, permission for which may have been granted by a special lex,[432] consisted in raising some of the ordinary legionary delegates of the consul to a level with the commanding officer and suppressing the latter.[433] These extraordinary officials were elected at the comitia centuriata under the presidency of one of the chief magistrates, whether consul or consular tribune, for the time being. The normal number, six, was no doubt suggested by the six tribunes of the old legio or army. But this full number was not always appointed. The question how many military tribunes should be created for a given year depended on the exigencies of the state. Sometimes three were elected, sometimes four, at other times six, a number which seems never to have been exceeded.[434] It rested formally with the magistrate who guided the elections, practically perhaps with the Senate, to determine how many of these officers should be appointed for any given year. As military posts below the supreme command had long been opened to the Plebs, it goes without saying that Plebeians were eligible to the consular tribunate; their admission, in fact, had been one of the motives of the change.[435] Yet the patrician element was almost exclusively present in the earlier years of this magistracy, and to the end of the office it largely preponderated. Even if we reject the account that it was not until forty-five years after the institution of the consular tribunate (400 B.C.) that a Plebeian was actually elected to this post,[436] it is a significant fact that while purely patrician colleges are found, there is no instance of one composed exclusively of Plebeians. This fact may be simply a demonstration of the aristocratic character of elective office, and shows that the masses preferred the safety of the state to the advancement of their own order; for military skill and experience, and even knowledge of law, were still chiefly to be sought in the ranks of the patres.[437] Gradually, however, the Plebs became familiarised with power and displayed greater trust in the leaders of their own order. The year 400 does in any case mark a turning point in the history of the office. After it we find more Plebeians elected; in 399 and 396 they form a majority of the college, and events were tending to the demand, which was soon to be made, that a place in the supreme magistracy should be reserved for candidates who represented a majority of the citizens.

The power exercised by the consular tribunes was, briefly, that of the consuls; they had the same jus, imperium, and potestas,[438] and they enjoyed their insignia.[439] They presided over the elections for their successors, and took the auspices on these occasions, the recognition of a Plebeian’s right to consult the people auspicato breaking down the last barriers of religious prejudice.[440] If this magistracy was considered inferior in dignity to the consulship and only a “shadow” of that high office,[441] it must have been only because it was shared by more colleagues, and from a conviction of its occasional character. Yet it was noted as a curious fact that, from constitutional reasons unknown even to the early annalists, no consular tribune had ever enjoyed a triumph.[442]

It must not be supposed that the consulship was in any way abolished by this exceptional magistracy; it was simply kept in suspense during certain years. Each year it was decided afresh whether consuls or military tribunes should be appointed. Tradition represents the decision as resting with the Senate;[443] but whether it exercised this function by law,[444] or merely as the advising body of the magistrate who was to hold the election, is unknown. This discretionary power shows that the tribunate was regarded as an exceptional office; but its military and political convenience caused it practically to replace the consulship during the years when it was in vogue. The period of the military tribunate is one of seventy-seven years, extending from 444 to 367. These years show twenty-two consular collegia, and fifty-one of military tribunes.[445] The stop-gap lasted for half a century, and the compromise was maintained until in 367 a final settlement of the plebeian claim was reached.

Meanwhile the consulship had been modified in yet another way—one which was detrimental to the power of the office, but was meant to preserve influence to the Patriciate. In the institution of the censorship we find at work the same double motive which had influenced the government in creating the consular tribunate—the sense that two men could not manage all the business of a growing state, and the desire not to share with the Plebeians the unimpaired powers of the supreme office.

It had been the custom for the king, and subsequently for the consuls, to make an estimate, at certain intervals of time, of the effective military strength of the state. This was originally a registration of all the patrician burgesses; but, after the Servian reforms, it became a numbering of all the citizens, for the purpose of discovering those liable to military service, the class in which they should be enrolled, and, in case of tribute being imposed, the liability of each household to the property-tax (tributum). For these purposes it was sufficient for the heads of families (patres familiarum) to be summoned and questioned. Their answers formed the record, in accordance with which military and financial burdens were imposed, and political influence in the comitia centuriata was determined. The recognition of citizenship itself was dependent on this enrolment, for it is probable that from the earliest times membership of a tribe was the symbol of the possession of civic rights; while now the fact that the tribe was the basis of the concilium plebis and the comitia tributa gave a vote to every one enrolled in one of the tribus. The importance which the census had assumed was not compatible with the consular performance of its duties. The judicial and military functions of the annual magistrates interfered both with its regularity and its completeness, and the temporary suspension of the consulship offered a chance of vesting these duties in other magistrates. In the year 443 B.C. two new officials, called censores, were created,[446] who were to be elected by the comitia of the centuries. The office was to be confined to the Patriciate, possibly because it was felt that the solemn ceremony of purification (lustratio) which closed the census could not adequately be performed by plebeian hands. No one as yet dreamed of the future greatness of the office; its beginnings were small,[447] and the tribunes offered no opposition to the law which established an office which was to become the greatest of political prizes.

The censorship, though a standing, was in a certain sense an occasional office, for the tenure of power by the censors could never have been coterminous with the interval between each census—an interval usually of five years. The original tenure is unknown; possibly the censor was supposed to continue in office until his duties were fulfilled. It was not until the year 434 B.C. that the censorship was limited to a definite term of a year and a half by a lex Aemilia, proposed by the dictator Mamercus Aemilius.[448] The censors’ duties were as wide as the ramifications of the census. His primary function was that of registration, but one of the meanings of registration was the imposition of pecuniary burdens on individuals; hence the censor’s first connexion with finance. Another consequence of registration was of still greater import. Qualifications of character must always have been considered a necessary condition for the performance of even the meanest public functions at Rome. Admission to the centuries and to the tribes, and therefore the exercise of the active rights of voting and serving in the army, was possible only to one not stained by crime. The secular ground, one quite sufficient for a self-respecting community, was perhaps assisted by the religious idea that no impure man should be present at the mystic ceremony of purification. Such a testing of character could have been performed only in the most cursory way by the consuls. But now that a magistracy had been appointed which had leisure for a rigorous scrutiny, it was inevitable that the rule of manners (regimen morum) should in time overshadow every other aspect of the censor’s office, and that this dual papacy should become the most dignified and dreaded organ of the state.

Beyond the establishment of the consular tribunate, the censorship and the transference of the election of quaestors to the newly created comitia tributa,[449] the years 449 to 377 are not marked by any great constitutional changes. They were years of compromise but not of settlement; the restlessness of the reforming party was stayed by the constant pressure of war. It could not accuse the military policy of the governing class, which led its armies to victory and made all needful concessions to plebeian talent. It was the epoch of wars with the Aequians, Volscians, and Etruscans, of the siege of Veii, in which Rome made her first great territorial conquest, and of the Celtic migrations, which laid Rome in ashes, but made her the bulwark of the central Italian nations against northern invasions, and gave her strength to remodel and reform the Latin coalition of which she was the immediate head. Occasional discontent was at this, as at every other period, excited by the need of land distributions and the pressure of debt. Sp. Maelius fell in 439 and M. Manlius in 384; but the government, though it would not have its hand forced, was not wholly unwilling to make concessions to poverty. The citizen troops on foreign service were given pay in 406, and the land conquered from Veii was some years later allotted amongst the Plebs. While the discontent of the poor was thus kept in check, the government could afford to make harmless and unavoidable concessions to Plebeians of higher rank. In 421 the number of quaestors was raised from two to four; for, owing to the prolonged absence of armies, it was thought fit that a special quaestor should be assigned to each consul in the field.[450] The tribunes demanded that a fixed proportion of these places should be reserved for Plebeians. This was refused, but the compromise was arrived at that any of the four places might be filled from the Plebs, a concession which was unavoidable, for the absurdity of admitting Plebeians to the highest rank in the state and excluding them from this subordinate duty must have been felt. The permission did not, however, take effect until twelve years later (409 B.C.); but then Plebeians were returned for three out of four vacancies at the comitia of the tribes.[451] The first regular elective magistracy, however limited its powers and dignity, had now been won for the Plebeians.

Meanwhile the provisional government drifted on. It won military successes; it was gradually building up a hegemony in Italy. But the effect of war now, as at an earlier period, was ruinous to those to whom this government had to look for support. In spite of the palliative measures of pay for the army and occasional land distribution, a large portion of the yeoman farmers were again in a pitiable state. We cannot now speak of the social grievances of Plebeians as a whole; those members of the Plebs who began to occupy the benches of the Senate,[452] and who aspired to the military tribunate or quaestorship, were as wealthy as their patrician compeers. The race for office was keen between the members of the two orders. The Patrician had now to beg for his place on the curule chair. The first law against canvassing (ambitus) was passed in 432; it prohibited a candidate from whitening his toga with chalk before the elections[453]—a primitive measure, but one which shows that the plebeian electorate had at last become a power. But though isolated members of the Plebs were soaring into the upper regions, the mass of this body still consisted of bankrupt agriculturists. The situation which they regarded as desperate was, apart from the harsh law of debt, the normal condition of a modern proletariate. But the ideal of the ancient citizen was higher than our own; they wished to be proprietors of freehold land or of land held on an undisturbed tenure from the state.

This discontent was the opportunity of the richer Plebeians,[454] who wished to secure perfect political equality between the orders. In 378 loud cries were raised against the capitalists; a war with the Volsci gave the tribunes the chance of impeding the military levy, and some temporary concessions to debtors were unwillingly wrung from the government.[455] When the next year saw the burdens reimposed, two ambitious Plebeians, L. Sextius and C. Licinius Stolo, came forward with the proposition that the only sure way of permanently remedying the evils of the lower class was by securing one of the places in the consulship to members of their own order. They formulated a programme which was an attractive jumble of social and political measures. The plebiscitum which they promulgated promised a temporary relief from debt, proposed a limit to the amount of public land which any individual might possess, and declared that the military tribunate should be abolished, the consulship should be restored, and that one of the two consuls must henceforth be a Plebeian. This comprehensive measure, which attacked land, capital, and office,[456] was easily met. The two tribunes stood alone, and their eight colleagues were without difficulty induced to put their veto on the revolutionary measure. But it was soon shown that, if the veto might be used against the interest of the Plebs, the negative powers of the tribunes might be employed, with as much legality and as little justification, to paralyse the life of the state. The two tribunes, in virtue of the paramount authority which their sacrosanctitas had in the course of years secured to them, forbade the election of any magistrate of the people. For five years successively Licinius and Sextius were re-elected tribunes; during the whole of this period (375-371) the only magistrates appointed were the plebeian aediles and tribunes, and the state was without a head. A war with Velitrae led the tribunes to relax their anarchical edict for the year 370. But the long stand had reduced the number of vetoing tribunes to five. Another clause was now added to the original proposals to the effect that the two duumviri sacris faciundis, the keepers of the sacred books, the storehouse which furnished political intrigue with its surest weapons, should be raised to ten, and that half of these decemviri should be Plebeians.[457] None of the tribunes of 368 seems to have been prepared to offer any effectual resistance to any of the provisions of the law,[458] and the Patricians, driven from their first stronghold, took refuge in a dictator. It was a sign that they had lost the game, for the dictatorship could not be perpetuated. But it required the most strenuous exertions of the leaders of the Plebs to keep their followers up to the level of their original demands. The spiritless commons who had failed to elect members of their own order, consular tribunes and quaestors, when it had been in their power to do so, were for dividing the proposals, passing the social measures at once and leaving the question of the consulship for a future time. But Licinius and Sextius were not prepared to be social leaders without reward. The only division to which they subjected the complicated measure was to carry in 368 the clause sharing the new decemvirate with the Plebeians; the other clauses were postponed. In the next year, 367 B.C., they were tribunes for the tenth time. The opposition was worn out, and the Licinio-Sextian laws were passed in their original form. The greatest of plebeian victories had been won; from this time the Plebs is really the dominant element in the state. It was of little consequence that it did not assert its omnipotence for some years yet; all that it desired further was bound to come. As the magistracy was far more powerful than the people at Rome, the body that exercised the whole of the highest prohibitive power through the tribunate, and monopolised half of the highest positive authority in the consulship, was bound to be supreme. Even the purely patrician privilege of the patrum auctoritas was no great disturbance to this power. It became more a matter of form, the more the plebeian element entered into the Senate.

The Licinian laws had the unexpected effect of adding two new magistracies to the state. These were known as the Praetorship and the Curule Aedileship. The institution of the former office was a constitutional change of the first magnitude, being nothing less than the addition of a third colleague to the consuls. It is represented as having been a part of the compromise between the orders, the Plebeians allowing a third purely patrician magistracy to be created in exchange for the confiscated consulship.[459] But, even if we assume that the praetorship was originally confined to the patres—a statement which has with some reason been doubted[460]—it was necessity rather than ambition which directed the creation of the office. The impossibility of the consul’s paying adequate attention to duties of jurisdiction had been one of the motives which led to the establishment of the consular tribunate. Now that the consulship was permanently restored, provision had to be made for the permanent severance of civil jurisdiction from that office. As jurisdiction implied the imperium, and all the possessors of this regal prerogative were necessarily colleagues, the praetor was a colleague of the consuls. He was created, as the phrase ran, “under the same auspices,”[461] and therefore by the same assembly and under the same formalities of election. He bore the early title of the consuls, which, in spite of its inappropriateness to his usual peaceful duties, came to cling to him exclusively. But, though he was needed chiefly for purposes of jurisdiction, one branch of the imperium could not be singled out to the exclusion of the others. The praetor possesses all the aspects of the supreme power, the capacity for command in war, for initiating legislation, for summoning and transacting business with the Senate. How these powers were harmonised with, and subordinated to, the similar powers of the consuls, will be described elsewhere. The main business of the original praetor did not clash with that of his colleagues, for, though in theory perhaps the consul never did lose his control of civil jurisdiction,[462] practice decided against his interference with it, and the praetor was for more than 120 years (366-242) the sole civil magistrate of Rome. At the close of this period a second praetor was appointed, whose duty it was to decide cases between foreigners (peregrini) and between Roman citizens and foreigners—an addition rendered necessary by the growth of Rome’s territory and business, and which has no further political significance.

The praetorship, if it ever was a patrician preserve, did not long remain such. Thirty years after its institution (337 B.C.) a Plebeian, Q. Publilius Philo, successfully contested the post. The objections of the presiding magistrate, whether based on law or custom, were overruled and Plebeians declared eligible for the office.[463]

The appointment, simultaneously with the praetor, of two additional aediles, secured nothing for the Patricians, but a great deal for the state. The military duties which prevented the consul from administering justice and attending to registration, also hindered him from devoting himself to the minutiae of police and market regulations. It was an anomaly that these duties, so far as they fell to the lot of any special officials, should be in the hands of two plebeian assistants of the tribune.[464] It was from them that the two new magistrates borrowed their names, and the similarity of title and functions had the happy result of fusing into one corporation the plebeian officials and the new magistrates of the community. The latter were known in later times as aediles curules, from the curule chair which they had in common with the magistrates vested with the imperium. The Patriciate is said to have been the original condition of eligibility to the office;[465] but this was very soon abandoned in favour of the practice that the curule aediles should be chosen in alternate years from Patricians and Plebeians.[466] Later still—at what period is uncertain—the magistracy was annually accessible to members of both orders.

The accession of Plebeians to the consulship had been the key of the position; it had broken down the last pretended religious scruple, and a few years saw the patrician defences of every office overthrown. The year 356 witnessed the first plebeian dictator;[467] no law appears to have been required to secure the Plebs admission to this office, the qualification for the consulship being considered ipso jure to open a passage to the dictatorship. In 351 a Plebeian was first admitted to the censorship;[468] but mere admissibility was not enough, and in 339 one of the laws passed by the plebeian dictator, Q. Publilius Philo, reserved one of the two places in the censorship for members of his order.[469] How difficult it would have been for the Plebs to secure this office, apart from such a regulation, is shown by the fact that the first exclusively plebeian censorship dates only from the year 131 B.C.[470] With respect to the occupation of both of the consular places by Plebeians, a doubt seems to have existed of its legality, which was removed in 342 by a plebiscitum passed into law which declared “uti liceret consules ambos plebeios creari.”[471] We have already noticed their capture of the praetorship in 337 B.C.

There was but one more fort, but that a strong one, which the plebeian principes had to storm. This was the circle of the priestly colleges. The two religious guilds of paramount political importance, apart from the decemvirate (sacris faciundis) to which Plebeians had been already admitted, were those of the pontiffs and augurs. The pontifical college, which in the monarchy had consisted of five members, was now composed of four, the place occupied by the expelled king having never apparently been filled up.[472] The augural college, which should have consisted of six, was also at this time reduced by some accident to four members.[473] In the year 300 B.C. two tribunes, Q. and Cn. Ogulnius, brought forward a bill for raising the number of the augurs to nine, and that of the pontiffs to eight, the added numbers in either case to be taken from the Plebs.[474] The measure was understood to be primarily in the interest of the noble Plebeians, already in possession of curule office and triumphal ornaments, but it did to a large extent assist the rights of the Plebs as a corporation; for the religious veto henceforth, though it might be used by the nobility against the interests of the lower orders, could not be employed by the Patricians to check plebeian measures. The bill, which became law, established the religious equality of the two orders, so far as religion was a political force. It is true that, as we shall see, the Plebs were always excluded from certain non-political priesthoods; but, on the other hand, one of the religious colleges of national importance established in later times—the triumviri epulones, created in 196 B.C. for preparing the epulum Jovis and banquets given in honour of the other gods[475]—seems from its origin to have been composed wholly of Plebeians.[476] The change, however, though indirectly favourable to the Plebeians, was not of a democratic character; the priesthoods were kept within a few distinguished families through the principle of appointment. The method was that of cooptation, which we find existing in 453 B.C.[477] It was not until the last century of the Republic that the lex Domitia (104 B.C.) ventured to give the election, not indeed to the Populus, but to a special assembly composed of seventeen out of the thirty-five tribes chosen by lot, and even then the forms of nomination by the head of the college, and of cooptation by its members, were scrupulously observed.[478]

In sketching the invasion of office and honours by the plebeian nobles we have ventured to anticipate somewhat the chronological sequence of events. The commons, too, had during this period their share of political emancipation. Thirty-nine years before the Ogulnian law something had been done by legislation to increase the independence of the Plebs as a corporation, and to free the assemblies of the Populus from the legal control of the Patricians. In 339 B.C. a plebeian dictator, Q. Publilius Philo, carried a law making plebiscita binding on the people (ut plebiscita omnes Quirites tenerent).[479] The meaning of this law was clearly not understood by our authority. Its pretended wording is almost identical with that of the Valerio-Horatian measures;[480] but what was done on that occasion did not need repetition, and the object of the Publilian law must have been to secure more immediate legal validity to such measures passed by the Plebs as did not refer to that corporation alone—to make, in fact, the stages of transition from plebiscitum to lex a matter of formal and not of real importance.[481] Another law passed by the same dictator had reference to the patrum auctoritas. We have seen what this power had become, probably from the dawn of the Republic.[482] It was a claim by the patrician members of the Senate to accept or reject any measure of the Populus, when assembled by curies or by centuries. It never affected plebiscita, and we know too little of the comitia tributa to say whether the measures of that body were submitted to it or not;[483] the hampering of the comitia curiata was by this time of no importance, and the lex Publilia confined itself to the application of the auctoritas to the centuries. By this law it was enacted that the consent to laws passed by the comitia centuriata should be given before the voting commenced.[484] This provision was shortly afterwards (perhaps in 338 B.C.) extended by a lex Maenia to elections.[485] It is evident that neither of these provisions could have made the auctoritas nugatory, for it was not more difficult for a section of the Senate to decline to submit a question to the people than to reject it when passed. The provisions may, however, be a sign that the auctoritas was becoming a mere form; but its formal character was due to the rapidly increasing preponderance of Plebeians in the Senate.

But though the popular assemblies were thus free from patrician control, and the magistrates, subject only to the self-imposed limitation of taking advice from the Senate, could elicit any utterance they pleased from the comitia, there was one grave defect in the existing system of legislation which called for remedy. The plebeian magistracy, which circumstances had raised to a pre-eminence above all other powers, had not the freedom of the other magistrates. The rogationes of the tribunes, when accepted by the Plebs, still required some further sanction to become laws. This anomaly might have been remedied in one of two ways; either by giving the tribune the right of summoning and presiding over meetings of the people, making him in fact a magistrate of the community, and thus abolishing all distinction between Populus and Plebs, or removing the impediments which still hampered tribunician legislation in the concilium plebis. The conservatism of the Roman character, and perhaps the class feeling reviving again at the beginning of the third century in consequence of a renewed outbreak of the Plebs, caused the latter course to be adopted. In the year 287 the commons, oppressed by debt, again seceded—this time to the Janiculum. The plebeian dictator appointed to effect a settlement met social grievances by a political concession. He passed a law which most of our authorities represent as verbally identical with the Valerio-Horatian and Publilian laws,[486] but which seems to have been of a very different and far more definite character. The lawyers[487] regard the lex Hortensia as the measure which gave decrees of the Plebs the full force of laws. Henceforth there is between lex and plebiscitum merely a difference of form and name; their potestas is the same,[488] and even legal formulae use the words as practically identical.[489] A law could repeal a plebiscite and a plebiscite a law;[490] in the case of a conflict between the two, the rule of the Twelve Tables held good that the later repealed the earlier ordinance. It is not, therefore, surprising to find that in the annalists, even those with pretensions to accuracy, Populus and Plebs are used indifferently,[491] and it is only at times by carefully noting who is the presiding magistrate on the particular occasion, that we can determine whether the ordinance he elicits is a decree of the comitia or the concilium. The difference in the legislative powers of the two assemblies came in course of time to be little more than a difference in magisterial right;[492] while the comitia of the centuries and tribes were presided over by magistrates with the imperium, the concilium of the Plebs could be summoned and addressed only by plebeian magistrates. Yet the past history of the various assemblies was decisive as to their elective and judicial functions, and practice tended still further to fix the scope of the powers of each. But at the time of the lex Hortensia the difference between the two parliamentary sovereigns—the Populus and the Plebs—was even more marked; for the Patricians, excluded from the concilium, were still a considerable body, and the tribune had not yet become, like the magistrates with imperium, quite a servant of the Senate.[493] The Hortensian law had at the time a political significance which it afterwards lost; but it had a hidden import which was of vital consequence for the history of the state. By perpetuating the Plebs as a separate corporation it preserved the tribunate in all its primitive majesty, and thus maintained the power subsequently to be used as an instrument of senatorial and monarchical rule.

The tendencies of plebeian emancipation were almost all in favour of the upper classes; that it never was a democratic movement or one led by democratically-minded men is most strikingly evidenced by the utter indifference shown by the leaders to the economic evils under which the masses laboured, and which they used as instruments to further their ambition. Solon abolished slavery for debt at a single stroke; to the Roman it is a sacred thing, an expression of Romana fides; while the Greek προστάτης struggled for others, the Roman patron fought for himself. But continued pressure caused some tentative efforts to be made in the latter half of the fourth century to mitigate the curse of debt. A lex Marcia of 352 B.C. gave the debtor the right of summary arrest (manus injectio) of the usurer, to recover the fourfold penalty for the illegal interest;[494] while in 326 an attempt was made to give the future masters of the world the mastery over their bodies. In 313 a lex Poetilia was passed forbidding the imprisonment of nexi who could swear that they had reasonable hopes of ultimately satisfying their creditors;[495] it therefore abolished most contracts on the security of the person; although the addictio and imprisonment of debtors by order of the court continued through the Republic and into the Empire. But if the harshness of the law was one evil, ignorance of its forms was another almost equally great. An accident supplied the remedy. The pontiff Appius Claudius had reduced the forms of action to writing; but the book meant for the guidance of the pontiffs was immediately revealed to the profane eyes of the people by his clerk, one Cn. Flavius, a freedman’s son. The fraudulent secretary also posted up a tablet containing a list of court days (dies fasti) on which the legis actio was possible.[496] The penetralia of the pontifical college had now become the property of the masses, and although the chief pontiffs still furnished for centuries the highest names to Roman law, they professed the science openly,[497] and secular teaching soon tore the veil from the hidden features of jurisprudence.

But, apart from these minor benefits, the mass of the Plebeians did not share to any very large extent in the triumph of their order. The true reason of the individual Roman being thus thrust into the background can only be given by a review of the causes, soon to be treated, which moulded both the theory and practice of the developed Roman constitution. It must suffice here to trace the painfully inadequate results which were secured by these centuries of agitation by a glance at the distribution of power in the Roman state, at the date of the war with Pyrrhus, or the outbreak of the struggle with Carthage.

The old nobility had relaxed its exclusive hold of office, but only to give room for the still firmer grasp of a new. This was an aristocracy of mixed origin, composed indifferently of the leading patrician and plebeian families. The test of nobilitas was the capacity to point to ancestors who had held office which carried with it the right to sit on the curule chair. Its outward sign was the possession of the so-called jus imaginum. The imagines themselves were portrait-masks in wax, modelled from the face of the dead, and their primary use was for the purpose of funeral ceremonies. The original was moulded to be placed on the face of the deceased, and so to perpetuate his life in another world; but a copy was kept to give verisimilitude to his fictitious resurrection, which the burial of one of his descendants demanded. At such funerals actors were hired to represent the mighty dead; they wore their imagines, and were adorned with the insignia of the offices which these had filled in life, with the toga praetexta of the consul or praetor, the purple robe or the toga picta of the censor, and they sat on curule chairs round the Forum to listen to the orator who reminded them of their own great deeds.[498] As such a public funeral in the Forum was a concession of the state, the prospective right of having one’s mask exhibited, which constituted the jus imaginum, was a strictly legal privilege. It was possessed by all those who had been in possession of the toga praetexta and the sella curulis[499]—the dictator, master of the horse, consul, censor, praetor, and curule aedile. But, even apart from the occasions of such solemn mummery, the imago was a sign of the rank of its possessor. When not funereally employed it was suspended on a bust in the wings of the central hall (atrium) of the noble’s house. Beneath each portrait ran an inscription (titulus or elogium), which gave the names and deeds of the person represented. The portraits were joined by lines along the walls which showed the stemma or family tree. It is possible that this display in the atrium was looked on as a public exhibition, and it may originally have been limited by law; but in later times it seems best to conclude that the funerary exhibition alone was the subject of the specific jus.[500] But this outward token of nobility, which at Rome took the place of the modern title of honour, was of importance as emphasising the distinction between the nobiles and the ignobiles, in drawing the plebeian aristocracy closer to the patrician, which before the date of the Licinian laws had been in exclusive possession of this right, and in asserting the hereditary claim to office which the Roman electorate was only too ready to recognise. The acceptance of the claim was less dangerous than it is in most modern states, since primogeniture was not recognised in the transmission of honours,[501] and it was the capable and not the elder son whom the vote of the comitia raised to the curule chair. The claim too might become dimmed by disuse, and the Plebeian whose immediate ancestors had held high rank showed a brighter scutcheon than the Patrician who was connected with a noble stemma by ignoble links.[502] But the Patriciate itself conferred a kind of nobility, and one that, whatever its basis, might have been justified by office, for there could have been few members of the order who could not point to curule ancestors in the past. Although the Plebeian who first secured curule office, and thus ceased to be ignobilis, was called a novus homo, the designation seems never to have been applied to the member of a patrician gens.[503] Nobility, if once secured, could never be lost; but the hereditary claim to the suffrage of the electors was of little avail if unaccompanied by exceptional merit or by wealth. The claims of the latter were in fact given a kind of legal recognition by the rule established about the time of the first Punic war, that the cost of the public games should not be defrayed exclusively by the treasury.[504] The aedileship, whether curule or plebeian, was, as we shall see, not an obligatory step in the ascending scale of the magistracies; but, as it was held before the praetorship and the consulship, it is obvious that the brilliant display given to the people by the occupant of this office would often render fruitless the efforts of his less fortunate competitors, and that this legitimised bribery would exclude from office both the poorer nobiles and the struggling novus homo.[505]

The idea of a privileged nobility, which closed its ranks to new men, had become fixed by the date of the second Punic war.[506] By the close of that war the old stock had reached its maturity and had begun to decline; and, although men like Cato or Cicero might force themselves to the front by pertinacity and ability, or the belief in privilege might be rudely shaken by the people’s thrusting into the coterie a Varro or a Marius, the aristocrats came to look on the introduction of new blood as a pollution to the order.[507] Time, which purifies all things, had made the slave-blood of the successful Plebeian as blue as that of the descendant of kings by whom he sat.

But, in spite of this unholy alliance of the ancient foes, the distinction between the orders never was abolished. In Cicero’s time the separate rights of the Patricians could still be enumerated and defended by the orator. Besides the shadowy and ineffective powers of the patrum auctoritas and the interregnum, they possessed half the places in the great priestly colleges, which were shared between the orders, and certain priests—the Rex Sacrorum, the three great Flamines and the Salii—were chosen exclusively from their ranks.[508] The place of the Patriciate in the theory of the constitution—as illustrated by the auctoritas and the interregnum—is, as we shall see, very great indeed; but this theoretical importance conferred very little power, and the Plebeians, with their exclusive magistracies closed to the patres, with one place reserved for them in the consulship and censorship and the other accessible to their order, had won in the long race for honours.

Chapter III

THE CLASSES OF THE POPULATION AND THE THEORY OF THE CONSTITUTION IN THE DEVELOPED REPUBLIC

§ 1. The Classes of the Population

By the date of the lex Hortensia (287 B.C.) the Republican constitution had, in all essential points (considered as the constitution of a city-state), completed its growth; but, before we proceed to examine the theory and practice of the developed polity, it is necessary to pause and inquire what changes these centuries of Republican development had made in the status of the citizen, and in that of the other classes of the city, who shared partially in, or were excluded from, his rights, and what modifications had been undergone by the few main legal rules which mark the outline of their social environment.

The merging of Patricians and Plebeians into one community created the necessity for a universal conception of citizenship applicable to the whole body which possessed active political rights, while the growing practice of granting partial civic rights to the members of certain Italian communities led to the distinction between the fully-privileged and the partially-privileged citizen. The former is the civis optimo jure, the latter the civis non optimo jure. It is only of the former that we shall speak here; the consideration of the latter will be more appropriately deferred to that portion of our work which treats of the Italian confederation.

The normal mode of the acquisition of citizenship was naturally birth, either from two citizens or from a citizen and a foreigner. The question of the necessity of the marriage of the parents for the full citizenship of the children we shall soon consider; the primary question that presents itself to a nation is that of the allegiance of the child who is the product of a citizen and a foreigner. In such a case the older principle of Roman law (an instance probably of a universal principle of Italian law) was that, where conubium existed between the parents, the children followed the status of the father; where conubium did not exist, nature dictated that they should follow the condition of the mother.[509] But an arbitrary exception to this principle was made at an unknown date in Roman law by a lex Minicia which enacted that, in case of unions without conubium between a Roman and a foreigner, the children should follow the status of the less privileged parent; the child of a civis Romana by a peregrinus was, therefore, himself a peregrinus.

The exceptional modes by which citizens were created were (i.) state-conferment of the civitas on peregrini or of full civitas on cives non optimo jure, and (ii.) the manumission of slaves.

(i.) State-conferment of the civitas was only an exceptional measure in so far as it required a special legislative act.[510] The extraordinary liberality of Rome in this respect, never equalled in the life of the ancient city-state—a liberality which spread the name of Roman citizen first over Italy and then over the greater part of the civilised globe—was not an outcome of any suddenly adopted policy, but persisted from the birth of the city[511] to the world-embracing edict of Caracalla (212 A.D.). A few figures are sufficient to represent the extent of the increase effected by this means. The male citizens who appeared on the census rolls were, at the close of the first Punic war (240 B.C.), 260,000; in 124 they had risen to 394,726; in 85, after the incorporation of the greater part of Italy, to 963,000.[512] Under Augustus (28 and 8 B.C. and 14 A.D.) the figures were 4,063,000, 4,233,000, and 4,937,000; and the census of Claudius (47 A.D.) gave a return of 5,984,072 civium capita.[513]

This gift of citizenship was, in the Republic, conferred exclusively by a decree of the people (jussu populi). Such decrees might be either of a standing or a particular character; they might confer the gift immediately on the recipients or through intermediary delegates. Standing rules are mainly such as governed the condition of the dependencies of Rome. We shall find that the rights of Latin colonies provided facilities for the attainment of citizenship; the criminal laws sometimes gave a foreigner the gift of civitas as a reward for successful prosecution;[514] and, after the fall of the Republic, the enlistment of legionaries from the provinces was one of the most fertile sources from which the citizen body was recruited. Particular conferments, if not made directly by the people, might be effected through the Senate acting as its delegate,[515] or through commissioners charged with the founding of colonies. These were generally the specially-appointed IIIviri coloniae deducendae; and in all such cases of delegation the power was conferred by a lex.[516] In the last century of the Republic we find the custom growing up of permitting by special enactment such powers to generals in the field. Marius in the Cimbric war had the gift of citizenship in his hands, and a lex Cornelia Gellia granted a similar power to Pompeius during his Spanish campaigns.[517] This was the stepping stone to the right possessed by the sole commander-in-chief, the Princeps, to confer the citizenship at his pleasure.

(ii.) Any perfectly valid form of manumission conferred citizenship on slaves. Every form was undertaken at the initiative of the master, but for it to be perfectly sound (manumissio justa)[518] he must observe certain rules of law. The most usual form was the manumissio vindicta. It was one of the many fictitious forms of the old capture of property (vindicatio), the primitive Roman method of recovery. A man of straw, called the adsertor in libertatem, appeared before any magistrate, who could claim the conduct of the legis actio[519] declared the slave to be free, and touched his head with a staff (vindicta).[520] The master yielded, and this cession of his rights (in jure cessio) was followed by the declaration of the magistrate that the slave was free.[521]

The second form was the enrolment on the register of citizens by the censor, when the census was in progress, at the request of the master (manumissio censu). It was the false declaration of the master that the man was free which gave validity to this form.[522]

The third and later form was manumission by testament (manumissio testamento), by which the master either commanded the freedom of the slave in his will, or left it as a trust to his heir.[523]

The comparative inconvenience of these forms had led to other simpler modes of manumission—by announcement of the freedom before friends (inter amicos), or through a letter to the slave bidding him live as a freeman (per epistolam), or even by inviting him to dine as a freeman at his master’s table (per mensam).[524] Manumission effected in this informal way, though protected by the civil courts, did not confer the political rights of citizenship.

The citizen who was made such by manumission was a libertinus; all others were, at the close of the Republic, free-born (ingenui). The distinction conferred by ingenuitas was, as we shall see, an important one, since this condition was a requisite for the army, the magistracy, and the higher orders (ordines) of the state. But the conception of “free birth,” though a simple one at the end of the Republic, is one that has had a history, and ingenuitas did not at all times bear the same meaning. At the end of the fourth century B.C. an ingenuus was one who was sprung, not merely from free but from free-born ancestors, for the term libertinus—always its antithesis—was used to cover, not merely the manumitted slave, but his descendant in the first degree.[525] Before the close of the Republic the son of a freedman or of a freed-woman was ingenuus, the only condition being “birth in a state of freedom.”[526] The status of the mother alone was taken into consideration, that of the father being neglected, and the condition of marriage, which could not be taken into account if one of the parents was unfree, was necessarily not required.

Legal marriage must in early times have been a condition of ingenuitas in the plebeian, as it certainly was in the ancient patrician community. But before the close of the Republic this condition too was disregarded, and illegitimate children (spurii filii) were placed on a level, as regards honours and offices, with those born from wedlock.[527] It was one of the many triumphs of the law of nature over the law of the state.

The rights (jura) of the citizen in the developed Republic were those which we have enumerated as belonging to the free Plebeian of the monarchy,[528] with most of the exclusively patrician privileges added. They included the rights of marriage and of commerce, with their consequences, the patria potestas and the right of making testaments, and in addition, the power of occupying domain land and the rights of suffrage and of office. The Patricians still possessed some minor privileges,[529] and the old theory was still upheld which reserved the auspicia for the patres. But, with Plebeians in possession of the imperium, this doctrine was maintained by the fiction which gave the occupant of a “popular” and, as it still continued to be called, “patrician” magistracy the patrician auspicatio.

The duties of the citizen are certain services which he owes to the state, which are paid either by his personal labour or by his property.

The name for these duties (moenera, munera, connected with munire, to “fortify”) shows that they were connected with the military defence of the city. Originally most of such burdens were probably defrayed by the personal labour of the citizens.[530] Even the financial burdens which afterwards pressed on property (munera patrimonii) were largely defrayed by their enforced toil (operae).[531] In the municipal legislation of the close of the Republic we find the services of the citizens demanded for imposts such as the repair of roads and walls (munitio), which are in modern times covered by rates.[532] But the tributum, at whatever time it was first imposed, came to satisfy most of the necessities formerly met by this enforced labour. Other public needs were, in the Republic, met by contracts concluded by the censor, of which we shall speak in connexion with that office. A clear distinction could now be drawn between the great burden on property—the tribute—and the great burden on the person—military service.[533]

The tribute was, from the time of the Servian census, imposed on the property which formed the basis of the classes—originally, therefore, on res mancipi;[534] later it was levied on all property and was paid by all registered citizens who were sui juris, the aes hordearium and equestre for the support of the knights being still paid by children and women who were also sui juris.[535] The lowest property taxed was, as we have seen, one of 1500 asses.[536] The taxation was not, however, like military service, graduated according to the classes, but was collected uniformly, usually at a rate of one as in the 1000 (⅒ per cent). The tribute was an extraordinary tax and was imposed, like military service, only when the necessities of the state demanded it, practically when there was no reserve fund in the aerarium. The state regarded it as a loan rather than as its due, and sometimes considered itself bound, when its finances were more flourishing, to return the money to the contributors.[537] The vast revenues accruing to the state as a result of the third Macedonian war in 167 B.C. caused the cessation of the tribute,[538] and no further direct tax was collected at Rome until at the end of the third century A.D. it was reimposed by Diocletian and Maximian. Tribute was, indeed, inconsistent with Rome’s imperial position. It had been meant to defray the cost of the legions, but, with the creation of the empire, each province defrayed the expenses of its own military occupation.

Service in the legions (militia) was in theory a burden; exemptions from it were occasionally granted as though it were a troublesome duty,[539] and the citizen who did not present himself for the conscription was sold as a slave[540] across the Tiber.[541] But the treatment of the levy and the feeling of the citizens raised this burden (munus) into a privilege (honor); it was for this reason that free birth was always required as a qualification for a legionary, and that the ranks were never tainted by the admission of men of servile blood. The Servian census was still the scale by which military service was measured, both in the legio and in the select corps of citizen cavalry (equites). The legal duration of service throughout the greater part of the Republic was sixteen, or at the most twenty yearly campaigns (stipendia) for the foot soldier, and ten campaigns for the knight. The performance of the munera of tribute and military service required a third duty, which was the condition of both. This was the presence of the citizen who was sui juris at the census for the purpose of registration. All who neglected this duty (the incensi) could be sold as slaves across the Tiber.[542]

The concepts of the individual as the subject of rights, of their tenure and of their infringement, gave rise to a gradually developed theory of the jura with which the citizen was invested, and the mode in which they might be lost, which plays a large part in the speculations of the jurists. It attached itself to the primitive idea of a capitis deminutio, the lessening of status caused by the loss of family rights.[543] Gradually jurisprudence evolved the idea of a caput or personality possessed by every individual independent of citizenship, an idea running parallel with the conception of a law of the civilised world (jus gentium) independent of the jus civile. From this point of view loss of citizenship could be spoken of as a capitis deminutio. There was besides an infringement of personality greater even than the loss of citizenship of which the natural man might be the victim. This was the loss of freedom. These two great derogations of caput were spoken of as magna capitis deminutio;[544] but finally a more precise classification gave the following three grades of loss of status:[545]—

(i.) Capitis deminutio maxima was the loss of civitas and libertas, consequent on a man’s becoming a prisoner of the enemy. With the loss of freedom, political and therefore private rights[546] ceased ipso jure to exist. The obligations of international law might also produce this condition; the Roman general who concluded a treaty with the enemy, which the people would not accept, was handed over as a scapegoat for the broken faith of the community[547] (deditus), and similar treatment was meted out to one who had violated the sanctity of envoys,[548] or to a general who had made war with a state in alliance with Rome.[549] This loss of status was also produced by the civil law, in so far as it enjoined slavery as a penal measure—e.g. in the case of the incensi or of those who shirked military service[550]—or permitted the sale of the debtor or of the child into a foreign land.[551]

(ii.) Capitis deminutio media (or minor[552]) was the loss of civitas alone.

This might be voluntarily incurred by the assumption of the citizenship of another town, for the principle of the older Roman law was that a man might not be a member of two independent communities.[553] The exile from Rome which followed condemnation for a criminal offence was of this type of rejection of citizenship, for the exile was always assumed to be a voluntary act. Enforced abstention from the Roman civitas, which necessitated a continuance in exile, was produced by the decree of outlawry (aquae et ignis interdictio)[554] often passed by the people against an individual who was in voluntary banishment for a crime.

(iii.) Capitis deminutio minima—originally a loss of family rights—was improperly construed by the later jurists as a change of family status.[555] Its applications have been already considered.[556]

There were means of recovering the status lost in either of these three modes. The loss of familia in its original sense[557] might be recovered by emancipation; the loss of civitas, if enforced by the state, by a special act repealing this disability (the restitutio in integrum of the criminal law). Libertas could be regained by the exercise of a right known as the jus postliminii. The return, unintentional or premeditated, of the captive within the limits of his own country destroyed the state of bondage, and restored the ingenuitas and the rights of the former prisoner. Although described as a legal fiction[558] it was a direct consequence of the simple principle that a Roman could not be enslaved on Roman soil.

The Roman family had been subjected to many modifications since we last considered it.[559] The patria potestas, indeed, existed in all its old rigour, and the power of life and death over the children still found occasional expression; but the unity of the family had been largely dissolved by the laxity of the marriage tie. A modification of the usus marriage had come into vogue, which recognised the consent of the parties, without the prescriptive tenure by which the potestas was asserted, as the only bond—one, therefore, dissoluble at any moment by rejection on the part of the husband or by mutual consent. The wife remained a member of her father’s familia, and if she was sui juris, retained her own property; for the tutelage of women was out of accordance with the spirit of the age, and, though not abolished, was evaded by cunningly contrived legal fictions.[560] Never, perhaps, have women been freer from social trammels and legal bonds than they were in the last century and a half of the Republic, and one of the features of their independence was an indirect, but very powerful, influence on politics.

But the greatest change in Roman society was due to the growth of a slave population, which, in the city and that part of Italy which formed the Roman domain, reduced the free citizens to a minority.

The rules of the jus gentium—which in this instance, as in many others, is pure international law—permitted the captive to be enslaved until such time as he set foot again in his native land, if this country of his were an independent state.[561] This principle, applied to the victorious wars of Rome, had flooded Italy with specimens of various nationalities which were applied to various uses. These prisoners of war were, as a rule, immediately transferred from the ownership of the state to that of private individuals. They were sold by the quaestors,[562] often in the camp,[563] and the slave-dealer tracked the footsteps of a successful general.[564] War alone might have provided all that were needed for the most luxurious community, if we may judge from the result of the second conquest of Macedon, which swept 150,000 Epirot captives into Italy,[565] and from the consequences of the campaigns of Caesar and Lucullus. But it was supplemented by a brisk slave trade, which after the fall of Corinth and Carthage (146 B.C.) centred at Delos, and which at the close of the Republic had reached such dimensions that, during the reign of the Cilician pirates, 10,000 slaves are said to have been imported and sold there in the course of a single day.[566] It was chiefly from the latter source that the versatile natives of the East were brought, Phrygians, Mysians, Lydians, Lycians, Paphlagonians, the Hellenised members of the “nations born to slavery,” who, while professing to interpret, often guided and controlled, the wills of their slower Roman masters.

Their use was twofold; they were either labourers in the workshop and the field, or domestic members of the villa or the palace, and their presence in either capacity was fraught with important political consequences for Rome. Their cultivation of the mechanical arts and crafts made the Roman noble’s household self-sufficient[567] and the competition of the free artisan almost a hopeless task. In the country they were gradually replacing both the free labourer and the yeoman farmer. The advantage of cheap labour, which could not be snatched from the master’s hands by the needs of distant wars, was at an early period recognised by the nobles in the cultivation of their vast estates.[568] After the acquisition of the province of Sicily, which supplied cheap food to Rome, slave labour on the large estates became an economic necessity; for it was the only condition on which corn could now be productively grown. The lot of the plantation slave, unknown to his master and exposed to the mercies of the overseer, was a shameful parody of the earlier domestic servitude. Yet the state did nothing. The slave possessed no rights, as in the time when he, perhaps, required none. In the case of domestic slavery, the moral influence of an intellectually superior race was often an adequate substitute for the absence of rights, and a further solatium was found in the door of emancipation which was ever open to the favourite. The Roman was not ungrateful, and he recognised that it was the slave who made him an individual power in the world. The unequalled administrative capacity of men like C. Gracchus, Crassus, Caesar, and Pompeius, which has found no parallel in the modern world, was largely due to their absolute command of men of perhaps less originative power, but often of greater capacity for combination and detail than they.

Usefulness to the master was in fact the end to which the changes in the law relating to servitude were directed. The slave might benefit his lord by a contract entered into with a third party, but could not make his condition worse.[569] The dominus could sue on the contract, although the slave having no legal personality could conclude only a natural obligation (naturalis obligatio), but he was not liable for the losses. To protect third parties, however, and to give the necessary legal credit to this useful agency, the praetor gradually established a series of quasi-liabilities for the master, which were really in his interest; for without them slave-agency would have become impossible. Thus, if the master had countenanced the slave’s contract, he was liable (actio quod jussu); if the slave had embarked his peculium in trade with the master’s knowledge, this property, though in strict law not his own, could be claimed by the creditors, after the slave’s debts to the master had been deducted (actio tributoria). Finally, any liability incurred by the peculium could be recovered by creditors, the master’s right of deducting his own claims against it being preserved (actio de peculio), and any material advantage derived by the master from the contract of a slave was taken into consideration and the property of the dominus made liable to that extent (actio de in rem verso).[570] The slave, in fact, as having no personality of his own, is the best of agents, and the theory of agency, which the law of Rome has bequeathed to us, is one of the most perfect and permanent results of her system of slavery.

Apart from these relations to his master the slave was still ignored by law. He could not give evidence in court except under torture.[571] In case wrongs were done him, it was not he but his master that demanded reparation;[572] while his lord himself was the judge of the delicts which he had committed against himself or the household.[573] That for crimes against others the slave was tried by the ordinary process of criminal law was a concession to society rather than to the wrongdoer, and the sense of insecurity of the free population amidst their far more numerous dependants was expressed in the atrocious law that the murder of a Roman in his own house should be avenged by the death of the whole familia that were sleeping beneath the roof at the moment of the commission of the crime.[574]

The state itself owned slaves who were known as servi publici. Some were in the service of temples or of colleges of priests. Others were at the disposal of magistrates, such as the censors or aediles,[575] for the minor duties of attendance and police. Their agency in contracts was doubtless as useful to the state as that of private slaves was to individuals. Such an agent (actor publicus) was kept by the treasury for the acquisition of property,[576] which, as his peculium, fell under the dominium of the state.

We have seen that manumission in due form made a citizen of a slave. The libertini, therefore, are not a third class in the state, and only demand a separate treatment in so far as their grant of freedom was conditioned by the performance of certain duties to their former masters, and in so far as the lack of free birth (ingenuitas) entailed certain political disabilities.

The relation of the libertus[577] to his former master, who now became his patronus, was to some extent modelled on that of the ancient client to his lord. The freedman owed his manumitter reverence and obedience (obsequium);[578] he could not prosecute, or appear as a witness against him, in the criminal courts,[579] and he required the permission of the praetor to bring even a civil action against his former master or that master’s near relatives.[580] The patron’s right of succession to the freedman’s estate if he died intestate and without heirs,[581] if it was not a family right, was justified by the fact that the capital with which the freedman started life must have been generally the gift of the master, whether it took the form of a peculium or not. This circumstance must have been also felt to justify manumission on the condition of continuing to perform certain services to the dominus. But the privilege of imposing such conditions was abused, and had to be limited by the edict of a praetor Rutilius,[582] which practically confined them to the performance of certain personal services (operae). The fact that the freedman was still regarded as an appendage of the familia was most clearly shown by the criminal jurisdiction—even extending to capital punishment—exercised over him by the head of the family even at the close of the Republic.[583]

The political position of the libertini was probably better at the beginning than at the end of the Republic. Under the Servian régime they were, with all other citizens, members of the tribes; whether they were at first members of the centuries depends on the question whether free birth was always a requisite for military service, and this is a point on which evidence entirely fails us;[584] but when the comitia centuriata had ceased to be a military and become a purely political institution, there is no reason to assume their exclusion. They would have been members of the comitia tributa and concilium plebis from the earliest institution of these two bodies. The freedmen (rarely landowners and usually mechanics) belonged in the main to the four old city tribes. This accident had become a legal prescription by the year 312 B.C. In that year the revolutionary census of App. Claudius, which we shall describe elsewhere,[585] spread them over all the tribes,[586] and probably, according to their census, over all the centuries. In 304 B.C. the old arrangement, which limited the freedman’s vote, was reverted to.[587] The censors of 169 went further and restricted them all to a single tribe.[588] The conflict required the intervention of law, and it was probably the lex Aemilia (of M. Aemilius Scaurus, consul in 115 B.C.) which re-established the old principle of restriction to the urban tribes.[589] But the question of the freedman’s vote became a battle-cry in the last century of the Republic. In 88 B.C. the democratic tribune Sulpicius passed a law which gave the libertinus the tribe of his patron.[590] It was repealed by the optimates; but the second triumph of the democrats in 84 B.C. again restored the law,[591] until Sulla’s ascendency finally established the limitation to the four city tribes.

The freedmen were excused the burden, because not thought worthy of the honour, of regular military service in the legions.[592] The same prejudice did not apply to the fleet, and for this service libertini were freely employed.[593] The lack of free birth was also a ground of exclusion from the magistracy, and therefore from the Senate, to which this was the stepping-stone.[594]

§ 2. The Theory of the Constitution

The Roman constitution had lost none of its complexity by growth. The accretions of ages had changed a curious but comparatively simple type of polity into a jumble of constitutional law and custom, through which even the keen eye of the Roman jurist could not pierce, and which even his capacity for fictitious interpretation and the invention of compromises could not reduce to a system. The lack of logic, which is the usual accompaniment of a conservatism not thorough-going enough to be consistent, produced a machine the results of which appeared for a time to be eminently satisfactory. It conquered the world, and succeeded for a time in governing it with some show of decency and a fair measure of success. Had the equilibrium been maintained in practice as in theory, mixed constitutions would have had the most assured claim to the respect and acceptance of the world. But as the knots which the jurist could not untie were cut by the sword, and the constitution reverted to a type far simpler even than that of its origin, we must assume a weakness in the mixed system, which might not have rendered it inadequate as the government of a city state or even of Italy, but certainly rendered it incapable of imperial rule. The test was a severe one, and the constitution which could not answer the strain need not be wholly condemned. For empire is a mere excrescence on the life of a state, a test neither of its goodness nor of its vitality. A pure treatment of the Roman constitution will neglect, as far as possible, this abnormal growth, and, although much of its structure was the result of war,[595] will be able to show that its essential peculiarities were not the effect of conquest.

The Roman state was still a limited sovereignty of the people; so limited, indeed, that the people, i.e. the patricio-plebeian populus Romanus, was dependent, not merely for the expression of its will, but even for its existence, on the life of its supreme magistrates. In the practice of the Republic down to its closing days, the cessation of the consulate, by the non-election or the death of its occupants, caused the suspension of the life of the state. The people could not meet except under the shadow of the higher imperium or auspicia—those of lesser patrician magistrates were of no avail; for the praetor, though technically a colleague of the consuls,[596] could not hold the consular elections[597]—and the city was in a state of suspended animation until the auspicia in all their purity should be restored, were it but to a single man. The auspices, meanwhile, have returned to the “fathers,”[598] and it is they only who can restore them. The first fundamental element, therefore, in the theory of the Roman constitution, however absurd it may seem, is that ultimate sovereignty rests with the patrician members of the Senate.[599] How this theory was put into practice, and what modifications the practice had undergone since the time of the monarchy, may be seen by examining the procedure consequent on a Republican interregnum.

The conditions requisite for an interregnum were the non-existence of consuls, or magistrates with consular power, or a dictator. The retirement of all the other so-called patrician magistrates, i.e. magistratus populi, was another necessary preliminary, for the auspices could not return to the patres so long as they were held, whether as majora or minora auspicia,[600] by a patrician magistrate.[601] Hence, when a sudden occasion arose for the appointment of an interrex, it was the duty of the Senate to give notice to the patrician magistrates and to request them to retire from office.[602] The plebeian magistrates still remained in the exercise of their functions.

It was, in the later Republic, the Senate which took all further necessary action. In the early Republic there was no possibility of its being summoned, and the patrician senators met at their own discretion to appoint the interrex. But after the tribune, who was still in office, had gained the right of transacting business with the Senate, it was he who put the question, and the Senate who suggested that the patricii should meet for the purpose. From this time onwards the electors felt no obligation to meet except on the suggestion of the Senate.[603]

The collegiate principle of the regal interregnum and the use of the lot[604] had both disappeared; the agreement of the patrician senators took the form of the election (creatio)[605] of a single interrex (prodere interregem). This magistrate nominated his successor, as the consul nominated the dictator,[606] each succeeding interrex holding office for five days. There was no limit to the number that might be created, the interreges varying from the minimum of two to the known maximum of fourteen;[607] but there must be at least two, the first being incapable of holding the consular election, probably because he was regarded as having received the auspicia irregularly. The qualifications for the interrex were, that he should be a Patrician[608] and a senator, and the instances seem to show that he was invariably chosen from the past holders of curule office.[609] The first interrex was no doubt guided by the wishes of the Senate, or of the patres, in the choice of his nominee, and the whole list may have been prepared before his appointment. With the creation of the highest regular patrician office, i.e. with the election of a single consul, the interregnum necessarily came to an end and the interrex retired.

The reappointment of a chief magistrate called the people into life again; and, as a rule, it perpetuated itself by perpetuating the magistracy. There was, indeed, one large section of the people which had a continuity of existence as a corporation—this was the concilium of the Plebs with its presidents, the tribunes. From the year 287 this concilium was an independent legislative sovereign, and nothing more clearly marks the theoretical dualism of popular sovereignty at Rome than the fact that one parliament could continue to exist while the other, the comitia in its various shapes, was dormant. The division of executive, judicial, even of deliberative power, is not uncommon in governments of the mixed type; the division of unlimited legislative authority is rarer and nowhere so clearly marked as in Rome; for an act of parliament did not require the co-operation of the two assemblies—the separate fiat of each had the force of law.[610] It is true that in practice this fundamental dualism was not acutely felt, for the individual elements of the Populus and the Plebs were to all intents and purposes the same. We may emphasise the practical similarity and the theoretical difference best by glancing at the two assemblies of the tribes. Except in elective matters they differed hardly at all in the sphere of their competence—each was a legislative and judicial assembly. But they were under the presidency of magistrates of different kinds, and this caused a slight difference in their constitution. When the tribunes of the Plebs summoned the people by tribes, the members of the few patrician families did not attend; when the consul or praetor summoned the people by tribes, the Patricians could be present.[611] A fundamental distinction in theory here produces little effect in practice.

While this dual sovereignty—harmless except for its incidental effect of the preservation of the tribunate—was a result of the course taken by the evolution of plebeian privileges, a far more serious consequence was produced by what we noticed as the second leading idea in the Roman constitution’s period of growth,[612] the weakening of the magistracy. This weakening—partly the result of a struggle for freedom, partly of accidental circumstances such as the distractions of war—from the first assumed a form which prevented Rome from ever expanding into a democracy. The early Greek states adopted the system of weakening the sole magistracy, first by dividing its functions amongst several holders, and then, when this was not sufficient, by deliberately taking powers from them and giving them to carefully organised popular bodies. In Rome the principle of division was not wholly unknown; thus the censorship and praetorship take over some of the functions of the consulate, but the principle of wholesale transference was entirely absent; even the usurpation of capital jurisdiction by the people was modified by the condition that they could meet only on the summons of a magistrate. The principle of weakening adopted at Rome was that of the increase of the number of magistrates, without any essential alteration of the character of the magistracy. The increase was effected partly by a consistent application of the principle of colleagueship, partly by the setting up of new powers in conflict with the old. The result was chaos. In the developed constitution there were twenty annual magistrates—ten tribunes, two consuls, eight praetors—each armed with the power of passing valid acts of parliament, and of vetoing the resolutions of his colleagues and inferiors. It is true that there was a legal subordination amongst them; the consul was inferior to the tribune, the praetor to the consul; and the rigorous application of law would have reduced the Roman constitution to an oligarchy of ten. As a matter of fact, the tribunate was too early enlisted on the side of the nobility to think of pressing its powers; dissension reigned within the college, and the history of the collective magistracy was one of perpetual conflict and therefore of weakness. In this weakness the people shared, for they were wholly dependent on the magistracy. In shaking the authority of their representatives they had shaken their own; and certain radical defects in the popular organisation, which we shall discuss when we consider the assemblies more in detail, added to their incapacity to rule. Since the guidance of magistrates and of people was equally impossible, and central government must reside somewhere, its fitting place was not unnaturally sought in the single experienced, permanent, and deliberative body in the state, the Senate.[613] The assumption of the reins of government by a power, which as an independent authority was not contemplated in the original constitution, necessarily gave rise to a body of constitutional custom by the side of the older constitutional law. The applications of this new code can only be estimated by a more detailed treatment of the three factors of government—the magistracy, the people, and the Senate.