UNIT I: ROMAN HISTORY

SECTION I: ANCIENT HISTORY

Era II: The Republic
Period I: 509-265
(a) The Struggle Between the Orders

245-489 A.U.C.

It is characteristic of Rome that the change from monarchy to republic13 should have been made with the least possible disturbance of existing forms. The title of king was retained, though only as that of a priestly officer (rex sacrorum) to whom some of the religious functions of the former kings were transferred. The two annually elected consuls, or " praetores,"14 were regarded as joint heirs of the full kingly authority, and as holding the "imperium," and the correlative right of auspices, by direct transmission from the founder of the city. They were, it is true, elected or created by a new assembly, by the army of freeholders voting by their classes and centuries (comitia centuriata), and to this body was given also the right of passing laws ; but nevertheless it was still by a vote of the 30 curies (lex curiata) that the supreme authority was formally conferred on the magistrates chosen by the centuries of freeholders, and both the choice of magistrates and the passing of laws still required the sanction of the patrician senators (patrum auctoritas). Nor, lastly, were the legal prerogatives of the senate altered, although it is probable that before long plebeians were admitted to seats, if not to votes, and though its importance was gradually increased by the substitution of an annual magistracy for the life-long rule of a single king. But the abolition of the monarchy brought with it a change of the utmost importance in the actual working of the constitution. Though the distinction between patricians and plebeians was at least as old as the state itself, it is not until the establishment of the republic that it plays any part in the history of Rome. No sooner, however, was the overshadowing authority of the king removed than a struggle commenced between the two orders which lasted for more than two centuries. It was in no sense a struggle between a conquering and a conquered class, or between an exclusive citizen body and an unenfranchised mass outside its pale. Batricians and plebeians were equally citizens of Rome, sprung of the same race and speaking the same tongue. The former were the members of those ancient " gentes" which had possibly been once the " chiefly" families in the small communities which preceded the united state, and which claimed by hereditary right a privileged position in the community. Only patricians could sit in the council of patres, and hence probably the name given to their order. To their representatives the supreme authority reverted on the death of the king; the due transmission of the auspicia and the public worship of the state gods were their special care; and to them alone were known the traditional usages and forms which regulated the life of the people from day to day. To the " plebs " (the multitude, plethos [Gk.]) belonged all who were not members of some patrician gens, whether independent freemen or attached as " clients " to one of the great houses. The plebeian was a citizen, with civil rights and a vote in the assembly of the curies, but he was excluded by ancient custom from all share in the higher honours of the state, and intermarriage with a patrician was not recognized as a properly legal union.

The revolution which expelled the Tarquins gave the patricians, who had mainly assisted in bringing it about, an overwhelming ascendency in the state. The plebs had indeed gained something. Not only is it probable that the strictness of the old tie of clientship had somewhat relaxed, and that the number of the "clientes" was smaller and their dependence on patrician patrons less complete, but the ranks of the plebs had, under the later kings, been swelled by the admission of conquered Latins, and the freeholders among these had with others been enrolled in the Servian tribes, classes, and centuries. The establishment of the republic invested this military levy of freeholders with political ngnus as an assembly, for by their votes the consuls were chosen and laws passed, and it was the plebeian freeholders who formed the main strength of the plebs in the struggle that followed. But these gains were greater in appearance than in reality. The plebeian freeholders commanded only a minority of votes in the comitia centuriata. In their choice of magistrates they were limited to the patrician candidates nominated by patrician presiding magistrates, and their choice required confirmation not only by the older and smaller assembly of the curiae, in which the patricians and their clients predominated, but also by the patrician patres. They could only vote on laws proposed by patrician consuls, and here again the subsequent sanction of the patres was necessary.. The whole procedure of the comitia was in short absolutely in the hands of their patrician presidents, and liable to every sort of interruption and suspension from patrician pontiffs and augurs.

But these political disabilities did not constitute the main grievance of the plebs in the early years of the republic. What they fought for was protection for their lives and liberties, and the object of attack was the despotic authority of the patrician magistrates. The consuls wielded the full "imperium" of the kings, and against this "consular authority" the plebeian, though a citizen, had no protection and no appeal, and matters were only worse when for the two consuls was substituted in some emergency a single, all-powerful, irresponsible dictator. In Rome, as in Greece, the first efforts of the people were directed against the arbitrary powers of the executive magistrate.

Lex Valeria de provocatione

The history of this struggle between the orders opens with a concession made to the plebs by one of the consuls themselves, a concession possibly due to a desire to secure the allegiance of the plebeian freeholders, who formed the backbone of the army. In the very first year of the republic, according to the received chronology, P. Valerius Poplicola carried in the comitia centuriata his famous law of appeal. It enacted that no magistrate, saving only a dictator, should execute a capital sentence upon any Roman citizen unless the sentence had been confirmed on appeal by the assembly of the centuries. But, though the " right of appeal" granted by this law was justly regarded in later times as the greatest safeguard of a Roman's liberties, it was by no means at first so effective a protection as it afterwards became. For not only was the operation of the law limited to the bounds of the city, so that the consul in the field or on the march was left as absolute as before, but no security was provided for its observance even within the city by consuls resolved to disregard it.

The First Secession and the Tribunate

It was by their own efforts that the plebeians first first obtained any real protection against magisterial despotism. The traditional accounts of the first secession are confused and contradictory, 6 but its causes and results are tolerably clear. The seceders were the plebeian legionaries recently returned from a victorious campaign. Indignant at the delay of the promised reforms, they ignored the order given them to march afresh against Volsci and Aequi, and instead entrenched themselves on a hill across the Anio, some three miles from Rome, and known afterwards as the Mons Sacer. The frightened patricians came to terms, and a solemn agreement (lex sacrata) was concluded between the orders, by which it was provided that henceforth the plebeians should have annual magistrates of their own (tribuni plebis), members of their own order, who should be authorized to protect them against the consuls, and a curse was invoked upon the man who should injure or impede the tribune in the performance of his duties. The number of tribunes was at first two, then five, and before 449 B.C. it had been raised to ten. The fact that the institution of the tribunate of the plebs was the one result of the first secession is strong evidence that the object of the seceders was not economic or agrarian reform but protection against the consuls. The tribunate gave them this protection in a form which has no parallel in history. The tribune was not, and, strictly speaking, never became, a magistrate of the Roman people. His one proper prerogative was that of granting protection to the oppressed plebeian against a patrician officer. This prerogative (jus auxilii) was secured to the tribunes, not by the ordinary constitution, but by a special compact between the orders, and was protected by the ancient oath (vetus jusjurandum), which invoked a curse upon the violator of a tribune. This exceptional and anomalous right the tribunes could only exercise in person, within the limits of the "pomoerium," and against individual acts of magisterial oppression. It was only gradually that it expanded into the later wide power of interference with the whole machinery of government, and was supplemented by the legislative and judicial powers which rendered the tribunate of the last century B.C. so formidable, and the "tribunitia potestas" so essential an element in the authority of the emperors.

Lex Publilia

But from the first the tribunes were for the plebs not only protectors but leaders, under whom they organized themselves in opposition to the patricians. The tribunes convened assemblies of the plebs (concilia plebis), and carried resolutions on questions of interest to the order. This incipient plebeian organization was materially advanced by the Publilian law of 471 B.C., which appears to have formally recognized as lawful the plebeian concilia, and established also the tribune's right "cum plebe agere," i.e., to propose and carry resolutions in them. These assemblies were " tributa," or, in other words, the voting in them took place not by curies or centuries but by tribes. In them, lastly, after the Publilian law, if not before, the tribunes were annually elected. By this law the foundations were laid both of the powerful "comitia tributa" of later days and also of the legislative and judicial prerogatives of the tribunes. The patricians maintained indeed that resolutions (plebiscita) carried by tribunes in the concilia plebis were not binding on their order, but the moral weight of such resolutions, whether they affirmed a general principle or pronounced sentence of condemnation on some single patrician, was no doubt considerable.

Agrarian Agitation

It is at any rate certain that the passing of the Publilian law was followed by increased activity on the part of the tribunes. The attack on the consular authority was continued, and combined with it we have a persistent effort made to secure for the plebs their fair share of the common lands of the state (agri publici). The main object, however, of this early agrarian agitation was not economic but politica . Membership in a tribe was now more than ever important for a plebeian, as giving a vote not only in the comitia centuriata but also in the plebeian "concilia," and membership in a tribe was possible as yet only for freeholders. To increase the number of freeholders became therefore a matter of importance, and the simplest mode of increasing the number of freeholders was for the state to create freeholds on the common lands. But such a policy met with bitter opposition from the patricians, who had long enjoyed a virtual monopoly of these lands, and had excluded the plebeians even from those more recently acquired tracts which they had helped to win by their swords. Against this patrician monopoly the tribunes unceasingly protested, from a few years after the first secession down to 465 B.C. In that year a compromise was effected by the colonization of Antium, which had been taken the year before, and the plebeians obtained land without any disturbance of patrician occupiers. Eleven years later the common lands on the Aventine were reclaimed and assigned to plebeians by a lex Icilia.

The Decemvirate

But this agrarian agitation, though destined subsequently to play an important part in the history, was for the time far less fruitful in results than that which was directed against the consular authority.





The proposal of C. Terentilius Arsa (460 B.C.) to appoint a plebeian commission to draw up laws restricting the powers of the consuls was resolutely opposed by the patricians, but after ten years of bitter party strife a compromise was effected. A commission of ten patricians was appointed, who should frame and publish a code of law binding equally on both the orders. These decemviri were to be the sole and supreme magistrates for the year, and the law of appeal was suspended in their favour.12 The code which they promulgated, the famous XII. Tables, owed little of its importance to any novelties or improvements contained in its provisions. For the most part it seems merely to have reaffirmed existing usages and laws (see ROMAN LAW). But it substituted a public, written law, binding on all citizens of Rome, for an unwritten usage, the knowledge of which was confined to a few patricians, and which had been administered by this minority in their own interests. With the publication of the code the proper work of the decemvirs was finished; nevertheless for the next year a fresh decemvirate was elected, and it is conceivable that the intention was permanently to substitute government by an irresponsible patrician " council of ten " for the old constitution. However this may have been, the tyranny of the decemvirs themselves was fatal to the continuance of their power. We are told of a second secession of the plebs, this time to the Janiculum, and of negotiations with the senate, the result of which was the enforced abdication of the decemvirs. The plebs joyfully chose for themselves tribunes, and in the comitia centuriata two consuls were created.

Valerio-Horatian Laws

But this restoration of the old regime was accompanied by legislation which made it an important crisis in the history of the struggle between the orders. With the fall of the decemvirate this struggle enters upon a new phase. The tribunes appear as at once more powerful and more strictly constitutional magistrates; the plebeian " concilia" take their place as formal comitia by the side of the older assemblies; and finally this improved machinery is used not simply in self-defence against patrician oppression but to obtain complete political equality. This change was no doubt due in part to circumstances outside legislation, above all to the expansion of the Roman state, which swelled the numbers and added to the social importance of the plebs as compared with the dwindling forces of the close corporation of patrician gentes. Still the legislation of 449 clearly involved more than a restoration of the old form of government. The Valerio-Horatian laws, besides reaffirming the right of appeal and the inviolability of the tribunes, improved the position of the plebeian assemblies by enacting that " plebiscita " passed in them, and, as seems probable, approved by the patres, should be binding on patricians as well as plebeians. By this law the tribunes obtained a recognized initiative in legislation. Henceforth the desired reforms were introduced and carried by tribunes in what were now styled " comitia tributa," and, if sanctioned by the patres, became laws of the state. From this period, too, must be dated the legalization at any rate of the tribune's right to impeach any citizen before the assembly of the tribes. Henceforward there is no question of the tribune's right to propose to the plebs to impose a fine, or of the validity of the sentence when passed. The efficiency of these new weapons of attack was amply proved by the subsequent course of the struggle.

Lex Canuleia

Only a few years after the Valerio-Horatian legislation came the lex Canuleia (445 B.C.), by which mixed marriages between patricians and plebeians were declared lawful, and the social exclusiveness of the patriciate broken down.

Lex Licinae Sextiae

In the same year with this measure, and like it in the interests primarily of the wealthier plebeians, a vigorous attack commenced on the patrician monopoly of the consulate, and round this stronghold of patrician ascendency the conflict raged until the passing of the Licinian laws in 367. The original proposal of Canuleius in 445 that the people should be allowed to elect a plebeian consul was evaded by a compromise. The senate resolved that for the next year, in the stead of consuls, six military tribunes with consular powers should be elected, and that the new office should be open to patricians and plebeians alike. The consulship was thus for the time saved from pollution, as the patricians phrased it, but the growing strength of the plebs is shown by the fact that in fifty years out of the seventy-eight between 444 and 366 they succeeded in obtaining the election of consular tribunes rather than of consuls. A good omen for their ultimate success was a victory they won in connexion with the inferior office of the quatstorship. Down to the time of the decemvirate the quasstors had been nominated by the consuls, but in 447 their appointment was transferred to the plebeian " comitia tributa," and in 421 a plebeian first became eligible to the office. Despite, however, these discouragements, the patricians fought on. Each year they strove to secure the creation of consuls rather than consular tribunes, and failing this strained every nerve to secure for their own order at least f a majority among the latter. Even the institution of the censorship (435), though rendered desirable by the increasing importance and complexity of the census, was, it is probable, due in part to their desire to discount beforehand the threatened loss of the consulship by diminishing its powers.6 Other causes, too, helped to protract the struggle. Between the wealthier plebeians, who were ambitious of high office, and the poorer, whose minds were set rather on allotments of land, there was a division of interest of which the patricians were not slow to take advantage, and to ting must be added the pressure of war. The death struggle with Veii and the sack of Rome by the Gauls absorbed for the time all the energies of the community. In 377, however, two of the tribunes, C. Licinius Stolo and L. Sextius, came forward with proposals which united all sections of the plebs in their support. Their proposals were as follows :6—(1) that consuls and not consular tribunes be elected; (2) that one consul at least should be a plebeian; (3) that the priestly college, which had the charge of the Sibylline books, should consist of ten members instead of two, and that of these half should be plebeians; (4) that no single citizen should hold in occupation more than 500 acres of the common lands, or pasture upon them more than 100 head of cattle and 500 sheep; (5) that all landowners should employ a certain amount of free as well as slave labour on their estates; (6) that interest already paid on debts should be deducted from the principal, and the remainder paid off in three years. The three last proposals were obviously intended to meet the demands of the poorer plebeians, and to secure their support for the first half of the scheme. Ten years of bitter conflict followed, but at last, in 367 B.C, the Licinian rogations became law, and one of their authors, L. Sextius, was created the first plebeian consul. For the moment it was some consolation to the patricians that they not only succeeded in detaching from the consulship the administration of civil law, which was entrusted to a separate officer, "praetor urbanus," to be elected by the comitia of the centuries, with an understanding apparently that he should be a patrician, but also obtained the institution of two additional a?diles ("aediles curules"), who were in like manner to be members of their own order." With the opening of the consulship, however, the issue of the long contest was virtually decided, and the next eighty years witnessed a rapid succession of plebeian victories.

Opening of the Magistracies

Now that a plebeian consul might preside at the elections, the main difficulty in the way of the nomination and election of plebeian candidates was removed. The proposed patrician monopoly of the new curule Aedileship was almost instantly abandoned. In 356 the first plebeian was made dictator, in 350 the censorship, and in 337 the praetorship were filled for the first time by plebeians, and lastly, in 300, by the lex Ogulnia, even the sacred colleges of the pontiffs and augurs, the old strongholds of patrician supremacy, were thrown open to the plebs.8 The patricians lost also the control they had exercised so long over the action of the people in assembly. The " patrum auctoritas," the sanction given or refused by the patrician senators to laws and to elections, had hitherto been a powerful weapon in their hands.

Publilian Laws

But in 339 a law of Q. Publilius Philo, a plebeian dictator, enacted that this sanction should be given beforehand to all laws ;9 and by a lex Maenia, carried apparently some fifty years later, the same rule was extended to elections. Henceforward the " patrum auctoritas" sank into a meaningless form, though as such it still survived in the time of Livy. A second Publilian law affirmed afresh the validity of "plebiscita," i.e., of measures carried in the plebeian comitia tributa.

Lex Hortensia

Apparently, however, their validity was still left subject to some conditions, for in 287 a lex Hortensia, carried by another plebeian dictator, was found necessary finally to settle the question.10 From 287 onwards it is certain that measures passed by the plebs, voting by their tribes, had the full force of laws without any further conditions whatsoever. The legislative independence of the plebeian assembly was secured, and with this crowning victory ended the long struggle between the orders.





Footnotes

The present writer has adopted the view of the " patrum auctoritas "taken by Mommsen (Forsch., i.). Others identify it with the " lex curiata," or at least closely connect the two.
! Here again the present writer has in the main followed Mommsen, as against Schwegler, Ihne, Zoller, and others.
Of. "aedilis," " aedilicius," &c.; Cic. Be Hep., ii. 12; Livy, i. 8. For a full discussion of other views, see Soltau, 179 sq. ; Christensen, Hermes, ix. 196.
For the "clientela," see Mommsen (Forsch., i.) and Schwegler
5 Livy, ii. 8, lex Valeria de provocatione; Cic. De Rep., ii. 31;
cf. Livy, iii. 20. 6 Schwegler, ii. 226 sq.
Schwegler, ii. 251, note ; Livy, i. 33.


Cic. Z>e Rep., ii. 34, "contra consulare imperium creati."
Livy, iii. 55. 3 Festus, 318; Appian, B. C, i. 138.
4 Gell., xiii. 12, "ut injuria quae coram fieret arceretur."
5 Livy, ii. 56, 60 ; Dionys., ix. 41 ; Schwegler, ii. 541 ; Soltau, 493.
Mommsen, Forsch., i. 185.
Mommsen, Forsch., i. 185.
It is impossible to accept Mommsen's theory of a patricio-plebeian comitia tributa, as distinct from the plebeian assembly by tribes.
Cic. Z>e Rep., ii. 34, "contra consulare imperium creati."
" Proletarii" were not admitted before the decemvirate, and
according to Mommsen not until 310 B.C. There were now twenty-
one tribes, seventeen having been added shortly after the establish-
ment of the republic. Livy, ii. 21; Soltau, 481.

10 Livy, iii. 31; Dionys., x. 31. The Aventine was said to have been
previously common woodland.
11 Livy, iii. 9. 12 Livy, iii. 32.

Livy, iii. 55, " quum veluti in controverso jure esset, tenerenturne patres plebiseitis legem comitiis centuriatis tulere, ut quod tributini plebs jussisset populum teneret, qua lege tribuniciis rogationibus telum acerrimum datum est." What were the precise conditions under which a " plebiscitum " became law, and what was the exact effect of the lex Publilia of 339 and the lex Hortensia of 287, can only be conjectured. One of the two last can hardly hare been more than a reaffirmation of a previous law.
After the decemvirate. the tribunes no longer pronounce capital
sentences. They propose fines, which are confirmed by the comitia tributa. 3 Livy, iv. 7; cf. cf. Mommsen, Staaisrecht, ii. 165.
Livy, iv. 43 ; Mommsen, StaatsrecU, ii. 497-

6 Livy, vi. 35, 42 ; Appian, B. C, i. 8.
7 Livy, vi. 42. 8 Livy, vii. 17, 22 ; viii. 15; ix. 6.
9 Livy, viii. 12, "ut . . . ante initum suffragium patres auctores fierent," cf. Livy, i. 17. For the "lex Maenia," see Cic,Brut., 14; Soltau, 112.
10 Plin., N. II, xvi. 10 ; Gell., xv. 27 ; Gaius, i. 3, "plebiscita
lege Hortensia non minus valere quam leges."


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