Chapter XIII: Part 13

The law of debt must also have been on one of the two last tables, as Cicero describes it as thoroughly unfair. It was binding for plebeians only. Those two tables, we may be sure, consisted chiefly of exceptions. The most important part of the legislation of the Twelve Tables, is that _jus publicum_ which was entirely overlooked by the earlier commentators, who believed them to have been a code of laws like that of Justinian, only most imperfect and barbarous. But Cicero and Livy call them expressly _fons omnis publici privatique juris_; and Cicero, in the examples in his books _de Legibus_ which are taken from the laws of the Twelve Tables, speaks also of public administration. Yet the Twelve Tables certainly did not touch upon any subject that remained unchanged, as for instance, the whole system of the centuries; of the alterations in the political law which were found in them, we have only a few traces. One of these is the enactment that no _privilegia_ should be issued any more, that is to say, no laws against individuals, nor condemnations of individuals; there must therefore at that time have been methods of proceeding with regard to individuals similar to ostracism at Athens. It is moreover likely that charges were no longer brought by one of the two orders before the other, and that the centuries were looked upon as a grand national court of justice. We have no authority for this; yet, though every story cannot be warranted in detail, thus much on the whole is certain from the events which occurred, that until then accusations were made before the _Plebes_ by the tribunes, and before the curies by the quæstors, but that afterwards such impeachments are no more heard of. Prosecutions before the tribes on account of individual offences are indeed met with; but they are no more connected with the antagonism of the two orders. Probably at that time also the change arose which is afterwards clearly to be perceived, that the clients entered into the tribes; for the plebeian tribes, besides what they were from their particular nature, were also intended to be a general national division, of which we find several hints. Yet it may also have taken place a hundred, or a hundred and twenty years later. If Camillus was condemned by the tribes, it may perhaps be explained in this way, as in his trial his fellow-tribesmen are spoken of. Cicero among the wise laws of the Twelve Tables which he receives in his _Leges_, mentions, with reference to his own tumultuary condemnation by the tribes, that _de capite civis_ could only be judged _per comitiatum maximum_. It cannot indeed be positively asserted, that previous to the legislation of the decemvirs, the centuries had not been called upon to give judgment; I have, however, discovered a formula which belongs to an earlier time, and perhaps refers to trials by the centuries, and something definite may yet be found with regard to this point. If it was so, the practice must have been introduced shortly before the time of the decemvirs; previous to this, the _judicia capitis_ were with the curies and tribes. The trials of Coriolanus and C. Quinctius are not yet held before the centuries. If in after times one still finds an instance of a condemnation by the curies, it is an unlawful act of arbitrary power. The tribunes therefore now bring the charge of a _crimen capitis_ before the centuries, and a mere _multa_ before the tribes; and it often happens in such a case, that the person condemned goes into exile, and loses his right of citizenship. Here the saying of Cicero in his oration _pro Cæcina_ holds good, that exile does not necessarily imply the loss of the right of citizenship; for, exile being no punishment, the loss of the right of citizenship is incurred only by the reception into the foreign state. In this light we must look upon the condemnation of Camillus, if ever he was condemned by the tribes, and not, as is far more probable, by the curies.

In this manner, the sphere of the nation as a whole, was very much enlarged, and instead of distinct appeals to one of the two orders, there are scarcely any appeals but those to the centuries to be met with. The existence of this law is quite enough to prove how wrong they are who believe, that in this the decemvirs had arrogated to themselves the whole of the jurisdiction. They have confounded with it the fact, that now that the old appeal to the orders was done away, one had to appeal from one board to the other. Instances of appeal from the consuls to the people are very seldom met with from henceforth; and even then, they are altogether problematical. It is most likely that the appeal to the tribunal of the assembled commonalty was abolished, and that the tribunes as the direct representatives of the commonalty took its place, and that by a natural development of the constitution; for a resolution of the commonalty at large is after all a mere form.

Other laws also which are mentioned, might be considered as innovations; for instance, that one who is pledged for debt should have equal rights with him that is free.

From the time of the battle at the Regillus, the narratives of Dionysius and Livy are in many years quite in agreement with each other, and there are rarely any discrepancies of importance. The history of the legislation of the decemvirs is also an instance of this harmony. Other accounts, however, few as we have remaining, do not at all tally with them; so that their accordance is not exactly a proof of their historical truth, and we must suppose that both these historians happened to make use of the same sources for that period. The narrative, especially in Livy, is exceedingly fine and highly wrought. It has already been remarked, that probably the intention was to establish the decemvirs as a permanent magistracy, the consulship and tribunate being abolished; and that the decemvirs of the second year were not chosen as lawgivers, but as supreme rulers, although they were authorised to add two more tables. Another supposition which I set forth pretty positively, is this,--that these decemvirs were not elected merely for one year, but for several, perhaps for five. There is a tradition handed down to us, that they did not go out of office on the Ides of May, and this is considered as an usurpation. If it were so, this would be a real δυναστεία in the true Greek acceptation of the word (it is used in contraposition to τυραννίς, a distinction which is foreign to the Roman language, although not without an example in ancient history).[105] According to an invariable principle, it must have been intended in the election of the decemvirs, that those who should be invested with this dignity, should forthwith pass into the senate; but ten persons every year would give too great an increase. It seems much more likely that the fact of their being appointed for longer than one year was overlooked, than that they should arbitrarily have prolonged their tenure of office, which they indeed could hardly have ventured upon doing.

The history now shows us in the second year the decemvirs in possession of every magisterial power. They are stated to have kept a guard of an hundred and twenty lictors (ῥαβδοφόροι), twelve men each. This was in the style of all the Greek oligarchs; these lictors therefore had quite a different meaning from those of the consuls; they are the σωματοφύλακες of the Greek tyrants. Now the decemvirs of Livy and Dionysius are represented as criminal tyrants. This account is, however, to be received with just as much caution as most of the stories of the ancient tyrants; for, the worst monsters of history in most instances did not commit crimes for the sake of outrage, but for quite different purposes. Thus also Cicero tells us, that though the decemvirs did not altogether behave as good citizens, yet one of them, C. Julius, respected the public liberties, and summoned the people to pass judgment on one who was not _reus manifestus_. Among them were Appius Claudius and Sp. Oppius, the presidents of the senate; these exercised the jurisdiction in the city, and they seem also to have possessed the censorial power. Now, it is stated by Livy in a very lively description, that the Forum and the Curia had grown silent, that the senate had been called together but rarely, and that no _comitia_ had been holden. This was quite natural. The tribunes were done away with, there was therefore nobody to harangue the people in the Forum; politics there were none, the constitution being quite new, nor was there any change to be made in the civil law; the senate was convoked but rarely, because the board of the decemvirs could manage most of the affairs alone; the patricians therefore went into the country, and minded their estates, and the city passed all at once into a state of the most unruffled peace. Yet the people was so much used to excitement, that it longed for fresh agitation; there was an uncomfortable feeling abroad, because every thing that had filled the whole mind of the public had now for once ceased to exist. In unsettled times, such a transition is very dangerous; just as when one who is accustomed to the use of strong stimulants, or to gambling, is suddenly obliged to give them up. Thus it was in the year 1648, when the Dutch had concluded the peace of Munster with the Spaniards according to the accounts of contemporary writers, people found the state of things insufferably tedious, and thence arose a wild sort of life, and the differences between William II. and the city of Amsterdam. Every circumstance, be it ever so trifling, was laid hold of on which men might vent their passions. The very same thing occurred in France just after the restoration. When such a temper prevails, the necessary consequence is a very sore feeling between government and people. The Romans became discontented with their new constitution. Even though the decemvirs had not been had, or no one else but Appius Claudius had been such, they could not have been borne with, and the people would not have remained quiet. Much besides may be guessed. The plebeians had been mistaken in the men of their order who had become decemvirs. Just at first indeed, the protection of the tribunes is stated not to have been missed; but gradually these persons thought fit to use their power for their own benefit, and to show the same exclusive spirit as the rest. It is easy to understand that the plebeian Sp. Oppius was decidedly most obnoxious, since he addicted the debtor as much as Ap. Claudius did. Such accusations had until then been brought against patricians only.

That a war broke out with the Æquians and Sabines, was an event of which the decemvirs might indeed have been glad, as they gained by it an opportunity of giving the people employment. We are now told that patriots, L. Valerius Potitus and M. Horatius Barbatus, had got up in the senate, and had required the decemvirs first to resign their power; but that the majority of the senate had decided upon the levy. The speeches which are found in Livy on this occasion, I look upon as empty declamations which have arisen from the belief, that the decemvirs had usurped their office. The enemy had invaded and plundered the country; resistance was necessary; there was no time for deliberation. Also there was nothing more easy than such an enlistment, as there were no more tribunes. Just as little foundation does there seem to be for the story of the assassination of L. Siccius; it looks too poetical. The only fact which we can gather from it is, that two Roman armies took the field, of which the larger host stood on the Algidus against the Æquians. In the meanwhile a crime happened in Rome, of a nature which was quite common in the Greek oligarchies, Appius Claudius having fallen in love with the daughter of a centurion L. Virginius, very likely a relative of the tribune Virginius. That her death, like that of Lucretia, became the cause of the downfall of the decemvirs, is uniformly stated by all the accounts; the story is most ancient, and there is no reason to doubt it. The rape of women and boys is quite a common crime of the tyrants against their subjects. Aristotle and Polybius also tell us explicitly that the overthrow of oligarchies was often brought about by such outrages against female virtue. Appius Claudius suborned a false accuser, one of his clients, to assert that the real mother of Virginia had been his slave, who had sold her to the wife of Virginius, as the latter, being barren, wished to pass off the child as her own; and this he offered to prove by the testimony of false witnesses. Appius was resolved upon adjudging the slave to him; yet this was contrary to the law of the Twelve Tables, for, if the freedom of a Roman citizen was impugned, he could claim to remain in possession of it; only he had to give bail, as the value of the person might be estimated in money. This was called _vindiciæ secundum libertatem_; Appius wanted to give them _contra libertatem_. Upon this, all who were in the Forum flocked together, and adjured him to put off the sentence, at least until the father, who was serving in the field, should be able to return. When the lictor tried to use force, such a number of plebeians filled the market-place, that Appius had not the courage to insist upon his decision, but requested the plaintiff to rest content with the surety until the next court-day; yet in order to prevent any thing that might appear like a conspiracy, the morrow was named for the trial. At the same time, he sent messengers into the camp to have the father detained with the army; but the latter had already been fetched beforehand by the betrothed lover of the maiden, and other kinsmen, and he appeared on the following day in the Forum. The semblance of justice was now abandoned. Had Appius allowed the cause to be tried in due form, the father would have unmasked the lie; and so he said that he was satisfied that the damsel was the slave of the plaintiff, and ordered her to be taken away. Amidst the general dismay at this decision, Virginius collected himself; and while pretending to bid farewell to his daughter, and to put some questions to the nurse, he stabbed her with a knife taken from one of the stalls in the Forum, under a portico, and with the bloody weapon walked unmolested out of the city back into the camp again. Here the soldiers unanimously refused obedience to the decemvirs, the two armies joining. But the accounts contradict each other: some state that they occupied the Sacred Mount, and at the first secession the Aventine; others the reverse. It is to be remarked that the commonalty has now twenty leaders, and is therefore standing again under the guardianship of its tribunes (phylarchs). These elected among themselves two men who were to hold the presidency, and to treat with the authorities, whom the people in the city had abandoned. The _tribuni sacrosancti_ were abolished by the decemviral constitution; but the _tribuni_ had continued as wardens of their tribes. With these at their head, they held out against the senate and the decemvirs in a more decided insurrection than that of forty years before; for at that time they had separated themselves in order to recover their rights, but now they were completely armed as for war. In this contest the decemvirs must needs have succumbed, especially as many patricians evidently fell off from them, although, as Livy correctly remarks, they were for the most part well pleased with the decemviral constitution, as they were freed by it from the tribunician power. Nevertheless there were many, as for instance Valerius and Horatius, who were for the restoration of the old constitution, because they were convinced that the tribunate worked in a very wholesome manner as a check upon the power of the consuls. Thus it was determined to treat with the _Plebes_, and a peace was concluded.

We have yet some remnants of discrepant accounts concerning the downfall of the decemvirs. Quite different from ours is that of Diodorus, which might have been borrowed from Fabius, did it not contain a fact which is rather strange. According to this version, the decision happened much sooner than Livy places it; on the day after the occupation of the Aventine, peace had been already concluded. According to Cicero, the secession lasted for a long time; nor does he know anything of what Livy says about Valerius and Horatius having been the mediators. Valerius he afterwards mentions as consul, and as continually engaged in reconciling all parties. These are signs of a discrepancy in the traditions, although the character of this age was on the whole quite different from what it had been before, and thoroughly historical. There is an account in Cicero that the plebeians went from the Sacred Mount to the Aventine, which is certainly false. They always occupied the Aventine; and the obscure Lex Icilia had also probably reference to this point, that the Aventine should be excluded from the union with Rome, and, as the peculiar seat of the plebeians, be ruled by their own magistrates. We must therefore understand this statement of his to mean, that the army had betaken itself to the _Mons Sacer_, and that it had then marched to the towns, and united with the men of its own order on the Aventine. The Capitol was given up to the armed troops, and the circumstance of this surrender is a marked proof of the difference of the then plebeians from those of forty years before. The plebeians were conquerors to all intents and purposes.

The decemvirs laid down their office. The first election which was now proceeded with, was that of the ten tribunes under the presidency of the _Pontifex Maximus_, which is the strongest possible form of acknowledgment on the part of the patricians; the plebeian magistracy makes its own inviolability part and parcel of the sacred law. By a most remarkable anomaly, they hold the councils in what was in later times the _Circus Flaminius_, which was for the plebeians what the _Circus Maximus_ was for the patricians. This happened in December: since that time the tribunes regularly entered upon their office in that month. In order to settle the affairs of the state, it was resolved to elect again two patrician magistrates; yet not under the former title of prætors, but under that of consuls, as Zonaras tells us. This change of designation proves, that the magistracy was considered as distinct from the former one; it was a less elevated dignity: _prætores_ were “such as took the lead, generals;” _consules_ were only “colleagues,” quite a general name like _decemviri_. This new form of the consulate was not, however, designed to reintroduce the old constitution, and to abolish the decemvirate; but it was merely an extraordinary and temporary measure, a proof of which is the further extension, at this period, of the law which denounced outlawry against him who had offended against tribunes or ædiles, in favour of the tribunes, ædiles, judges, and decemvirs. This law has been much discussed; the mention of the decemvirs in it is a certain fact. The great Antonius Augustinus, bishop of Tarragona,--a man highly distinguished for his knowledge of the old monuments and of the political law, but who, with great historical talent, was unfortunately deficient in grammatical acuteness,--has already seen that the _judices_ here are the _Centumviri_, the judges who were appointed by the _Plebes_, three for each tribe, to decide in all causes concerning Quiritary property. He merely threw out this assertion; I have proved it fully in the latest edition of my History. Even as these _judices_ were said to have meant the consuls, and the inviolability of these were derived from thence, thus also with equal incorrectness, the decemvirs in the law were made out to have been the _decemviri stlitibus judicandis_; yet these were first appointed in the fifth century. It refers without doubt to the former _decemviri consulari potestate_, and indeed to the plebeians among them, as the patricians were already protected by their old laws.

When the tribunate was restored, the patricians might say, “You were in the right; the power, which the former prætors had, was too great, and therefore we shared the decemvirate with you. But now that you have again your tribunes, the power which you would gain, would be excessive; and therefore you must leave the decemvirate to us alone.” This the plebeians did not choose to do; and thus the negotiations for the restoration of the decemvirate came to a stand still. The consular power was retained, yet with a considerable modification. According to trustworthy accounts, the assembly of the electors, down to the year 269, was in possession of an unfettered and real elective franchise. From that time, first by usurpation and then by compromise, the change was introduced that one consul was previously to be chosen by the senate and confirmed by the curies, and the other to be elected by the centuries. At this period, the election of the centuries was again perfectly free, with the reservation of its being confirmed by the curies,--as was the case with all other acts of the centuries,--very likely a consequence of the legislation of the decemvirs.

The tribunes also had their authority altered in an essential point. Formerly in that board the majority of votes decided; now, according to Dionysius, the right was established by virtue of which the protest of one tribune might paralyse the influence of the whole college, which is equivalent to an appeal to the tribes. The principle was applied to them, _vetantis major potestas_. According to Livy this right had existed already before; yet it is probable that at least it was now first acknowledged, as the relation of the tribunes to the commonalty was changed. They were no more the deputies, but the representatives of their order; which in fact was a corruption of the right, though the evil consequences of it only became manifest some generations afterwards. In this point also the government gave a signal proof of adroitness; for they might always hope to find some one in the board who would side with them. Cicero says, that the tribunate of the people preserved Rome from a revolution; that unless tribunes had been granted to the people, the kings must needs have been retained. The centuries had now gotten a right of jurisdiction; yet according to the sacred law, the _comitia centuriata_ had auspices, as the gods were asked with regard to the matters which were to be discussed, whether it was their pleasure that they should. Since the tribunes might now prosecute before the centuries, it also follows that they must have been empowered to hold auspices (_de cœlo observare_). To this the statement in Zonaras refers, that the tribunes had received permission to observe auspices. According to a notice in Diodorus, outlawry was denounced against any one who should be the occasion of the _Plebes’_ remaining without tribune.--It is quite a phenomenon that at the close of the year two patricians are found among the tribunes: either these are patricians who have joined the _Plebes_, or the patricians set forth the thoroughly sound principle, that the tribunes of the people, owing to their action upon the machinery of the state, were no longer a magistracy of a part of the nation, but of the whole. That at this period many patricians went over to the _Plebes_ is expressly asserted; yet the other version is also very probable. From this time, we often find the patricians mentioned as fellow-tribesmen of the plebeians. At the discussion of the project for the separation of the _Plebes_ and their settling at Veii, the senators are said to have gone about _prensantes suos quisque tribules_. In like manner we are told that Mamercus Æmilius, about fifteen years after the time of the Decemvirs, had been struck from the list of his tribe, and placed among the _ærarii_. Camillus also appeals to his _tribules_; yet this may perhaps have meant his patrician clansmen. That afterwards, in Cicero’s days, all the patricians were in the tribes is well known. Cæsar belonged to the _Tribus Fabia_; Sulpicius, to the _Lemonia_. After the war of Hannibal, C. Claudius says in Livy, that to strike one from the list of all the five and thirty tribes, was to deprive him of the right of citizenship. M. Livius expels his colleague Claudius from the tribes. The number of these examples might easily be enlarged. In the earlier times, there were patrician and plebeian tribes; in the later, the Ramnes, Tities and Luceres are no more spoken of: they only make their appearance still as the _sex suffragia_ in the centuries. The whole Roman nation was now thrown together into the same tribes. The same was done at Athens, when the ten _phylæ_ of the _Demos_ became the only ones, and the four old mixed tribes were broken up. I believed formerly that this was to be attributed to the decemviral legislation; yet, if we bear in mind how carefully the decemvirs otherwise distinguish between the two orders, we cannot possibly suppose, that in this respect they should have aimed at their fusion. We must place it at a somewhat later period, and we are led to decide upon the time of the second censors; it was therefore soon after the decemvirs. In the fragments of Dio Cassius it is mentioned, that the patricians had preferred the plebeian order on account of its greater power, and had passed over to it. Greater power at that time the _Plebes_ had not; but it had greater strength, and it was easy to foresee what it would attain to. It was for many a more pleasing position to be in the ranks of those who were advancing, than of those who stood still.

The decemvirs were brought to justice; Appius Claudius and Sp. Oppius died in prison. The latter was of plebeian extraction, a proof that we need not regard the plebeians as the holders of particular virtues. Wherever a state is divided into factions, the strong party abuses its might, so that our interest turns to the weaker one. Sp. Oppius was perhaps one of those who formerly had talked a great deal against tyranny, and now he had become a tyrant himself. Appius was capitally impeached by L. Virginius (Aulus Virginius is certainly a mistake of the transcriber, as the copyists had in their mind the former tribune of that name): L. Virginius as avenger of the blood of his daughter had been appointed tribune. He wished, by virtue of his tribunitian authority, to have Appius cast into prison. Livy’s account of this leads us to a remarkable point. It is indeed a generally received opinion, that every Roman citizen had the right of saving himself from the punishment of death by exile. If such had been the case, one might well have wondered why capital punishments should indeed have been instituted at all, of which notwithstanding the old Roman laws have so great a number. Yet these facts are to be looked upon quite in another light. The views of the ancients with regard to criminal law are very different from ours, and perhaps more so than with regard to any other object in life. According to our notions, a man has also a right to be tried who has been caught in the very act; it is considered as an obligation of the prisoner to deny his guilt, and to allow himself to be convicted by evidence; the lawyers may defend him, and endeavour to lead the judge into error. Of this the ancients had no idea. If any one was taxed with having committed a _delictum_, the deposition of the witnesses was sufficient to have him instantly arrested and dragged before the magistrate; if it was no _delictum manifestum_, and he was a plebeian, then he applied to the tribune and gave bail. Should he thus manage to get free, he might leave his sureties in the lurch and go into exile. But if, on the contrary, he had been caught in a _delictum manifestum in flagranti_, and the _testes locupletes_ asserted that they had been present, thereby identifying his person, no trial was allowed; but he was, _obtorto collo_, his toga drawn over his head, conducted before the magistrate, who then at once gave judgment. If it did not happen to be a court-day, the culprit was in the meanwhile put into prison. Yet if any body committed a crime worthy of death, but not, however, of a kind in which it would have been possible to catch him _in flagranti_, the plaintiff had still a remedy in law by which the defendant was brought into prison.[106] Thus, for instance, in the case of Appius Claudius, the charge against him was a crime punishable by death; he had deprived a citizen of liberty. For this offence, Virginius prosecuted him; and would not allow him to give bail, lest by this means he should escape. The prosecutor could then offer to the accused a _sponsio_, a sort of wager, which consisted on the part of the prosecutor of a sum of money (_sacramentum_) staked against the personal liberty of his opponent. The prosecutor said, Thou hast deprived a citizen of his liberty; the defendant denied it: if the judge, elected for this purpose, decided for the prosecutor, no further judgment was needed, but the culprit was at once taken before the magistrate and executed; if he decided against the prosecutor, the latter lost the _sacramentum_. But, if the defendant would have nothing to do with the _sponsio_, he was thrown into prison. The question now was, whether the prosecutor should be obliged to drop the charge, or to accept bail. The passages which prove this are to be found in Livy and Cicero. It was only until the court-day that the culprit remained in prison, which accounts for the _Carcer_ being so exceedingly small. The staying there, as also its darkness, was already a foretaste of death: he who entered it was lost. Cicero says, _carcerem vindicem nefariorum ac manifestorum scelerum majores esse voluerunt_; either his neck was broken there, or he was led out and executed. The Greek custom with regard to imprisonment was much nearer our own.

Yet one remark remains to be added. If one had a charge against a _filius familias_, the father was judge; in causes against the clients, the patron.

Another part of the Roman criminal law which is likewise utterly at variance with ours, is that which takes cognizance of political delinquencies. For many of them no penalty was fixed, as in such cases it was the decided opinion of the ancients, and held by them as a general rule, that the state ought to look to its own preservation (_salus publica suprema lex esto_). They were well aware that offences against the state might, when taken severally, have the most varied shades: the same act outwardly may either spring from error, or it may be the offshoot of the darkest crime, and it is therefore impossible to assign a distinct penalty for every single case. Hence the Greeks and Romans had for all the _judicia publica_ this most important right, that the prosecutor could sue for a certain penalty in proportion to the matter in question, even though a different degree of punishment might have been inflicted for the same act in another instance. The same privilege was applicable, it seems, even to _judicia privata_, whenever the criminal code was insufficient; instead of which, in modern times, the foolish notion was entertained that punishment must only proceed from a distinct law, a wretched opinion which has really got the upperhand every where. The ancients held just the opposite principle. The boy who tortured an animal was doomed to die by the popular assembly of the Athenians, although the laws contained nothing for the protection of animals. Hence a man might also be condemned to death, provided that he had committed an act which was contrary to the general feeling of honour.

Until then the patricians had indeed claimed for themselves the privilege of not being liable to be imprisoned at all; for we are told that Appius Claudius had called the _Carcer_ the _domicilium plebis_. Virginius showed himself generous, and granted to Appius a respite that he might deprive himself of life. Yet Sp. Oppius was executed, because his crime was of another kind, and not merely against an individual who might act with mildness. For that he had ordered an old soldier, who had served twenty-seven years, to be scourged; and that the man had come forward as his prosecutor, is evidently a fiction. Twenty-eight years was the time of effective service for a soldier; and here an old soldier is now brought in, who was in the last year of his military obligation, evidently as a general representation of tyranny. The other decemvirs went into voluntary exile, and their goods were confiscated. One of them was Q. Fabius, the ancestor of what was afterwards the _Gens Fabia_. The tribune Duilius now proclaimed an amnesty for all those who had committed any offence in this unfortunate time. This incident is of great importance for the history of the Roman method of procedure. I have already, on a former occasion, explicitly stated my opinion about it; but since the discovery of Gaius, the case has become much clearer.

LEX HORATIA VALERIA. FURTHER CHANGES IN THE CONSTITUTION. MILITARY TRIBUNATE. CENSORSHIP. SP. MÆLIUS. VICTORY OF A. POSTUMIUS TUBERTUS OVER THE VOLSCIANS AND ÆQUIANS. CONQUEST OF FIDENÆ AND VEII.

At first the patricians were in great dismay, and they confirmed all the laws proposed. Among them is that which gave the _plebiscita_ general validity (_ut quod tributim plebes jussisset populum teneret_). This law is one of the greatest riddles in Roman history; and it cannot be solved with any historical certainty, although I have formed for myself an hypothesis on the subject, of the truth of which I am perfectly convinced. The law is thus given in Livy; afterwards in the eighth book he says of the second Publilian law, _ut plebiscita omnes Quirites tenerent_; and in like manner, Pliny and Lælius Felix in Gellius quote the law of Hortensius which is to be placed a hundred and sixty years later; Gaius says concerning the latter, _ut plebiscita populum tenerent_. When we now consider these three laws,--as to the Publilian, Livy alone mentions it,--they seem all of them to say the same thing. Is this really the case; or was the enactment only revived from time to time, because of its having fallen into oblivion? If we investigate the character of these laws according to their several ages, we see that the meaning of each was a distinct one, and that the import of the _plebiscita_ was differently interpreted at different periods. The result of my researches is this, that Livy in his mention of the _lex Valeria Horatia_, was certainly not accurate, because he did not himself clearly see his way, and the generally known Hortensian law was present to his mind. The law may have been something to this effect,--_quæ plebs tributim jusserit_, QUARUM RERUM PATRES AUCTORES FACTI SINT, _ut populum tenerent_; for, from that time the course of the legislation was frequently this, that when the tribunes had gotten a proposition adopted by the commonalty, they laid it before the curies, who immediately put it to the vote; which was an abridgment of the proper order of business, according to which the laws approved by the senate had first to go to the centuries, and then only to the curies. In the new system, the asking the leave of the senate and the passing through the centuries were done away with. This was a great change, as now the discussion might originate with the _Plebes_ itself. That, however, the _plebiscita_ without the approval of the curies had no legal force, is evident, especially from the struggle on the occasion of the Licinian laws; wherefore at that time already, _leges_ may be spoken of with reference to the resolutions of the _Plebes_, for as soon as the curies had sanctioned them, they were _leges_. Whenever the _Plebes_ and the curies were not kept asunder by class-interests, every matter was carried. It is also to be borne in mind, that this law was enacted, not by a tribunician, but by a consular rogation. The _lex Publilia_ had been rendered superfluous by the decemviral legislation, as in this there were no _comitia tributa_.

The later Publilian law of the dictator Q. Publilius Philo, has quite a different intention. By it the sanction of the curies to a resolution which had been carried in the tribes, was declared superfluous, as this course was too circuitous, and the senate after all had the right of proposing. His law, _ut plebiscita omnem populum tenerent_, must on the other hand run thus,--_ut plebiscita_ QUÆ SENATU AUCTORE FACTA SINT, _omnes Quirites tenerent_; for from henceforth it happens with regard to many enactments concerning the administration, that the senate commissions the consuls to arrange with the tribunes about making proposals to the tribes which they were to approve of; yet this was only with reference to administrative ordinances (ψηφίσματα), (for instance, whether an extraordinary _imperium_ should be given to any one), and not to legislative ones (νόμοι). This was a useful simplification: on certain days only, from religious reasons, might the curies and centuries be convoked; the tribes on the contrary might assemble, and did assemble, every day, they were not restricted by the _dies nefasti_. People saw more and more that the form of general assemblies was a mere semblance, and too much depending on accident: it is but fancy to think of votes being the expression of personal will; impulse, the force of example, does every thing. Clearer and clearer became the conviction, that the more the state increased, the more necessary it was to have a settled government; and thus what the Romans had to do, was to find out forms, which might check the arbitrary sway of the men in power, and secure publicity. In this especially the Romans differ from the Greeks, that they confidently gave themselves up to the personal guidance of individuals, which was never the case at Athens.

Lastly, the Hortensian law again has quite a different object. It establishes a true democracy, inasmuch as it lays down the rule that in legislative measures,--for with regard to administrative ones, the second Publilian law remained in force,--a previous resolution of the senate was not necessary, but the _Plebes_ could pass any decree: at the same time, the power of the curies was taken away. This is a decided victory of the democracy. The administrative measures were decrees for particular cases, nor could any thing of this kind be brought before the _Plebes_ without a previous resolution of the senate, even so late as the end of the sixth century (570); but for actual laws the resolution of the _Plebes_ was sufficient. By this means, the older body of citizens lost its power of regeneration, the equilibrium was destroyed, and the scale was turned in favour of the democratic side. The curies were bound already by the _lex Publilia_ of the year 417, before a convocation of the centuries to declare after a certain form that they sanctioned whatever was going to be decreed. It was a misfortune for the state that the curies did not regenerate themselves; yet as long as the resolutions were still made in the centuries, this mattered nothing. But by the _lex Hortensia_, by which the whole weight was given to the tribes, all the wholesome relations between the different elements of the state were broken, and the balance utterly destroyed. In the _first_ stage therefore, the _plebiscita_ are mere bye-laws which have no reference to general affairs; for instance, resolutions at the death of a person of consequence concerning his burial, &c., or a poll tax. In the _second_, by virtue of the older Publilian law, the _Plebes_ declared itself competent to pass resolutions on general affairs, which were, however, to be taken into consideration by the consul, to be laid before the senate, and by the latter to be brought before the centuries and curies. In the _third_ stage, according to the Valerian law, a _plebiscitum_ was just as valid as a resolution of the centuries: it went at once to the curies, and received their sanction. And _fourthly_, by the later Publilian law, the _plebiscita_ could do for the confirmation of resolutions of the senate which, in pressing circumstances, when one could not wait for the next _dies comitialis_, were brought by the consul to the tribunes. It was sufficient that the tribunes proclaimed a concilium: the _dies nefasti_ only affected curule magistrates and the _Populus_. For instance, let us suppose that an army was in the field at the conclusion of the year, and that a decree of the senate had first to be brought to the centuries, and then to be ratified by the curies; in such a case a shorter course was taken. The consuls were ordered _ut cum tribunis plebis agerent, quam primum fieri posset ad plebem ferrent_. This does not occur before the Publilian law. _Lastly_ and _fifthly_, by the _lex Hortensia_ the _Plebes_ took upon itself the authority for an independent and inherent legislation.

The consuls now took the field against the Æquians and Sabines, and returned after splendid victories, having also probably concluded a lasting peace with the Sabines. The patricians had in the meanwhile again taken courage, and those men of their order, who in the general confusion had sincerely wished for the best, were now the object of their hatred; and therefore the senate refused them a triumph on their return. Now for the first time the paramount power of the tribunes was displayed. They stepped in, and granted the triumph on their own responsibility: their legal authority for doing so may fairly be called in question. The consuls accepted the triumph; if they had been disturbed in it the tribunes would have assisted them. This incident shows what exasperation then filled men’s minds. In the following year, it rose to such a height that, as we are told by Livy, the heads of the patricians assembled and discussed the proposal to rid themselves of their antagonists by a massacre: but this mad design was not carried out.

The events which now take place are shrouded in darkness; the piety of posterity has thrown a veil over them. People had emerged from the irksome tranquillity of the decemvirate; but the constitution had not yet recovered its equilibrium, and there was still a contest for the possession of the government. The plebeians either wished the consulship to be divided between the two orders, or the form of the decemviral rule to be restored. The next year, the patricians showed themselves somewhat more yielding. The criminal judges, until then a patrician magistracy, were for the first time elected by the centuries; the choice fell upon the two consuls of the last year, Valerius and Horatius, which was certainly not accidental. Many of the ancients are mistaken with regard to this point; for instance, Tacitus, Plutarch, even Ulpian, but not so Gaius. There were in fact two kinds of quæstors, the public accusers (_Quæstores parricidii_), who impeached political offenders before the curies, and the six _Quæstores Classici_, who in works on antiquities are all along confounded with the former: Tacitus refers to the latter what ought to be referred to the former. He says that the quæstors had formerly been chosen by the kings, and then by the consuls, as was evident from a _lex curiata_ of Brutus. But this law Tacitus cannot possibly have seen; for the _Quæstores parricidii_ are synonymous with the _Duumviri perduellionis_, and it is these who were always elected by the curies, or rather by the Ramnes and Tities whom they represented. That Poplicola caused also the _Treasurers_ to be elected, is possible; but the two, who were formerly elected by the curies, and now, as Tacitus says, sixty-three years after the expulsion of the kings, and consequently in the second year after the abolition of the decemvirate, by the centuries, were the old _Quæstores parricidii_, who continued until they were changed into the _Ædiles Curules_. Nine tribunes then made the proposal to leave the offices of censor and quæstor to the patricians, and, either to divide the consulship, or to introduce military tribunes with consular power; one only of their colleagues was of a different opinion. Perhaps to this is to be referred the incident mentioned before, that the _Populus_ had once condemned nine tribunes to be burned alive, and that a traitor among the tribunes, P. Mucius, had ensured the carrying out of this sentence. Without doubt the _Populus_ means the curies, who had again usurped this power. Among the nine tribunes was probably a son or grandson of Sp. Cassius, who had renounced his order, and perished in the attempt to revenge his father.

It was the general wish to re-elect the consuls and tribunes; the consuls declined it, and Duilius, who had been delegated by his colleagues to represent them, refused in the name of the tribunate also to accept any votes. This had evil consequences. A division was caused, and the tribunes who wished to remain in office, had indeed so much influence upon their partisans, that they abstained from voting; so that five tribunes only were elected, who had themselves to elect their colleagues. It is stated that they likewise elected two patricians, which is a proof in favour of our assertion that the tribes had acquired a double character, that is, that they also become a general national division.

A remarkable change which dates from this time, is the repeal of the prohibition of intermarriage between patricians and plebeians. This prohibition, as we know, had been sanctioned by usage since the very earliest times, and had been first made an enactment in the twelve tables only; such a custom generally first becomes galling by being received among the written laws; and thus the storm was raised from which the _plebiscitum Canuleium_ sprang. This is usually considered as a great victory of the plebeians: the patricians, so it is said, at last yielded it in compensation for other rights which they reserved to themselves; Livy looks upon it as a degradation of the ruling order. If we take the matter as it really was, it is evident that the existence of such a prohibition did harm to no one more than to the patricians themselves. Mixed marriages from both orders must surely have been common at all times, and they were binding in conscience; yet the son of a patrician-plebeian marriage never had any gentilician rights, and was counted among the plebeians; the consequence of which was that the patricians were fast dwindling away. Wherever the nobles are limited to marriages within their own class, their order becomes quite powerless in the course of time. Rehberg mentions, that of the members of the States of the duchy of Bremen, in whose case sixteen quarters were required, one-third had become extinct within fifty years. If the plebeians had meant mischief against the patricians, they ought to have insisted with all their might upon the prohibition of intermarriage being kept up: but for the Canuleian law, the patricians would have lost their position in the state a hundred years sooner. We do not know, whether the thing was granted as a favour to the patricians or the plebeians; this is one of those cases in which no probable hypothesis can be formed; even absurdity is sometimes quite possible.

Afterwards there appear for once three military tribunes instead of the consuls. Dionysius says that it had been resolved to satisfy the _Plebes_ by the institution of military tribunes, three of whom were to be patricians and three plebeians. But there were only three, one of whom was a plebeian. Livy foolishly takes them all for patricians; he thinks that the plebeians had wanted indeed to possess the right, yet that afterwards they had looked upon themselves as unworthy of exercising it, and had elected patricians only. He speaks of the plebeians as if they had been unutterably stupid. This is the confused notion of a man who with all his genius was, after all, no more than a rhetorician. What is most likely, is that it was agreed upon to drop the name of consul altogether, as the two orders were indeed no longer distinct, and to leave the elections free and open to both parties; but that in the meanwhile all sorts of artifices were nevertheless employed to turn the scale in favour of the patricians. In the earlier times, for instance, the clients of the patricians were not in the tribes; like the patricians, they had to withdraw when the voting began; and whoever was not in the tribes, was either not in the centuries at all, or voted in them only with the craftsmen and the _capite censi_. Yet from henceforth every mention of cases in which _Plebes_ and clients were opposed, entirely ceases; and this ought to lead us to observe how trustworthy our accounts are. Could a forger of a later age have so accurately discriminated between the positions as implied by the law? A fabulist is always an unlearned man, and even a learned one would have made here some mistake. The clients now appear in the tribes, and therefore in the centuries likewise, as is expressly mentioned, and as we may also partly see from the circumstances themselves. The discussions of the Plebes now take quite a different character; they lose all their violence, the struggle of two hostile masses against each other, is at once entirely at an end. The checks which the plebeians meet with in the elections, &c., arise no more from any resistance from without, but they are from within the body itself. Whilst formerly the boards of the tribunes showed themselves unanimous, they are now divided; some of the members are even in the interest of the senate, and only single tribunes yet make such motions as those which formerly proceeded from the whole college. These are proofs of the fusion of the orders having been completed.

The military tribunate had been considered as a sort of compromise. Among the first were, according to Livy, L. Atilius Longus and T. Cæcilius.[107] For the latter, Dionysius in the eleventh book has Clœlius. We cannot decide in this question, the readings in the eleventh book being all of them of very recent date. If it is Cæcilius, there were two plebeians among their number; and this would account for the violence with which the patricians insisted upon doing away with the military tribunate.

In the same year as the military tribunate (311), the censorship seems to have been instituted. There must have been therefore a common motive for both, which Livy does not see: and the circumstance that the first censors are not found as consuls either in the Fasti or in the _libri magistratum_, but only in one of the _libri lintei_, may be accounted for by supposing that the censors were already elected in conformity with the laws of the twelve tables; and that when the patricians by their violent commotions were carrying every thing with a high hand, these magistrates who were neither consuls nor military tribunes,--a fact of which we have only a trace,--acted as consuls, and thus concluded the peace with the Ardeates. Livy could not explain this to himself, nor could Macer have done it. Strange indeed is what Livy mentions, that the military tribunes had been obliged to abdicate because of the _tabernaculum vitio captum_; and that T. Quinctius as _Interrex_ (or rather, perhaps, as dictator) had chosen the two consuls, L. Papirius Magillanus and L. Sempronius Atratinus, whose names were not, however, recorded in the Fasti. Nevertheless he relates the thing as certain. It is still more strange that in the following year he says of these first censors, that in order to indemnify those _quorum de consulatu dubitabatur, ut eo magistratu parum solidum magistratum explerent_, they had been elected censors; as if in 312 there could have been any doubt as to what had happened in 311. In the very same way, Livy in the second Punic war mistakes a certain Heraclitus for the philosopher of that name.