# Roman Public Life/Chapter 2

CHAPTER 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, 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, 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. 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, 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.
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, and from this time no power but the people has the right to pronounce the final death sentence within the walls; 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 mile-stone from the city. 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. 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, 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. The "city quaestors" (quaestores urbani), as they were subsequently called to distinguish them from their provincial colleagues, were known as quaestores parricidii 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. The designation parricidii may, however, show that they were employed in such criminal cases as did not directly affect the welfare of the state, 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. 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. 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. 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; 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), 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." 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.
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; 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. 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, 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). 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, 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. 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. 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. 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. 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. 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. 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, a privilege that had probably originated with the assumption that only the conquerors of the land could share in the spoils of war. 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. 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, and the nexus remained a burgess. 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. If there were ​more creditors than one, 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. 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. 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). A plan, carefully thought out in the ​coteries and gatherings that had preceded the campaign, 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. 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, 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.
​ 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 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), 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. 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—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. 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. 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, 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. 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 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, 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. 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. After the tribunes had gained criminal jurisdiction, they assisted them as delegates. 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.
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.
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 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 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.
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). As this was a purely self-regarding ordinance, it probably did not require the consent of Senate and people, 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. 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; they must have been named from the clan settlements and were obviously the first created. It is affirmed by Dionysius 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. 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; 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; 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, 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; 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. 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. 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. 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, 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. 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.
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." Its rhythmical sentences were learnt by heart by school-boys in Cicero's time. 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), 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. The law also facilitated the emancipation of slaves who had purchased their freedom and so helped to create the wealthy freedman class. 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. 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. 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. 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, 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. The same penalty was inflicted on the judex who had accepted bribes; 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. Reference must have been made to criminal procedure since the quaestores parricidii were mentioned in the law.
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" 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), 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) 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. 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. 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. 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. 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, 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." 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, 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.
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. 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; 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. 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. 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. From this time onwards, down to 287, whenever we find plebiscita affecting matters of national interest or creating changes in the constitution, 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." 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. 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. 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." 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. 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). The change, permission for which may have been granted by a special lex, consisted in raising some of the ordinary legionary delegates of the consul to a level with the commanding officer and suppressing the latter. 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. 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. 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, 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. 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, and they enjoyed their insignia. 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. ​If this magistracy was considered inferior in dignity to the consulship and only a "shadow" of that high office, 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.
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; but whether it exercised this function by law, 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. 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, 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, 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. 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, 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. 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. 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, 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—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, 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. When the next year saw the burdens re-imposed, 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, 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. None of the tribunes of 368 seems to have been prepared to offer any effectual resistance to any of the provisions of the law, 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. But, even if we assume that the praetorship was originally confined to the patres—a statement which has with some reason been doubted—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," 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, 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.
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. 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; 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. 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; 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; 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. 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. With respect to the occupa​tion 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." 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. The augural college, which should have consisted of six, was also at this time reduced by some accident to four members. 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. 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—seems from its origin to have been composed wholly of Plebeians. 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. 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.
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). 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; 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. 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. 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; 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. This provision was shortly afterwards (perhaps in 338 B.C.) extended by a lex Maenia to elections. 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, but which seems to have been of a very different and far more definite character. The lawyers 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, and even legal formulae use the words as practically identical. A law could repeal a plebiscite and a plebiscite a law; 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, 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; 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. 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 [Greek: prostatês] 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; 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; 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. 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, 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. 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—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. 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, 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. 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. 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. 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.
The idea of a privileged nobility, which closed its ranks to new men, had become fixed by the date of the second Punic ​war. 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. 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. 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.
* ↑ For the title praetores see Cic. de Leg. iii. 3, 8 "regio imperio duo sunto iique a praeeundo judicando consulendo praetores judices consules appellamino"; for that of judices, Varro L.L. vi. 88, who quotes from the commentarii consulares the formula used in summoning the comitia centuriata, "qui exercitum imperaturus erit, accenso dicito: 'C. Calpurni, voca in licium omnes Quirites huc ad me.' Accensus dicito sic 'Omnes Quirites in licium visite huc ad judices.' 'C. Calpurni,' consul dicito, voca ad conventionem omnes Quirites huc ad me.' Accensus dicito sic 'Omnes Quirites ite ad conventionem huc ad judices.'"
* ↑ See the section on the magistracy (p. 187).
* ↑ This ratification indeed remained. Even though elections were conducted before the centuries, a lex was still passed by the curiae ratifying this election (p. 49); and the patrum auctoritas was still required to sanction each fresh appointment.
* ↑ If it existed before it could have been only in the priestly colleges, but these seem rather advising bodies to the king.
* ↑ From con-salio, i.e. people who leap or dance together, "partners" (in a dance). Momms. Staatsr. ii. p. 77 n. 3; he compares praesul and exul.
* ↑ Liv. ii. 8 (509 B.C.) "Latae deinde leges . . . ante omnes de provocatione adversus magistratus ad populum"; Cic. de Rep. i. 40, 62 "Vides . . . Tarquinio exacto, mira quadam exsultare populum insolentia libertatis; tum annui consules, tum demissi populo fasces, tum provocationes omnium rerum" (i.e. the provocatio became universal instead of being confined to certain spheres).
* ↑ By this time the direct capital jurisdiction of the pontiffs had probably become extinct.
* ↑ Liv. iii. 20 "neque provocationem esse longius ab urbe mille passuum, et tribunos si eo (lake Regillus) veniant, in alia turba Quiritium subjectos fore consulari imperio." But the question between the pomerium and the first mile-stone was in later times still a disputed one (Liv. xxiv. 9).
* ↑ Cic. l.c.
* ↑ p. 63.
* ↑ The quaestores parricidii and aerarii are identified by Zonaras (vii. 13), following Dio. See p. 63. They were called quaestores, [Greek: hoi prôton men tas thanasimous dikas edikazon (whence their title), [Greek: hysteron de kai tên tôn koinôn chrêmatôn dioikêsin elachon]. So Varro (L.L. v. 81), "quaestores a quaerendo, qui conquirerent publicas pecunias et maleficia." The identity of the two offices is denied by Pomponius in Dig. 1, 2, 2, 22 and 23.
* ↑ Quaestores parricidii were mentioned in the Twelve Tables (Pompon. in Dig. 1, 2, 2, 23).
* ↑ Liv. i. 26.
* ↑ They are mentioned in the trial of M. Volscius (459 B.C.) for an ordinary criminal offence (Liv. iii. 24), but also in the public trials of Sp. Cassius in 485 B.C. (Liv. ii. 41; Cic. de Rep. ii. 35, 60), and of Camillus in 396 B.C. (Plin. H.N. xxxiv. 3, 13); but various accounts are given of the procedure in these two trials.
* ↑ Plut. Public. 12 [Greek: tamieion men apedeixe ton tou Kronou naon . . . tamias de tô dêmô dyo tôn neôn edôken apodeixai]. The first quaestors appointed were Publius Veturius and Marcus Minucius. Pomponius (p. 80) puts the creation of the financial quaestors after the first secession of the Plebs; Lydus (de Mag. i. 38) attributes them to the Licinian law of 367.
* ↑ Tac. Ann. xi. 22 "Sed quaestores regibus etiam tum imperantibus instituti sunt, quod lex curiata ostendit ab L. Bruto repetita. Mansitque consulibus potestas deligendi, donec eum quoque honorem populus mandaret. Creatique primum Valerius Potitus et Aemilius Mamercus sexagesimo tertio anno post Tarquinios exactos, ut rem militarem comitarentur" (i.e. 447 B.C.; hence Mommsen, Staatsr. ii. p. 529, thinks the change was due to the Valerio-Horatian laws of 449 B.C.). Plutarch (see note 1) thinks they were elected from the first. The meaning of the passage of Tacitus seems to be that the king nominated his quaestors after his own election, and their appointment was then ratified by the lex curiata. Another explanation is that the lex recited that the kings had appointed quaestors and empowered the consuls to do so. Cf. Ulpian in Dig. 1, 13.
* ↑ Festus p. 246, cited p. 59.
* ↑ Zonaras (vii. 9) makes Servius Tullius introduce Plebeians into the Senate.
* ↑ Liv. ii. 1 "Deinde, quo plus virium in senatu frequentia etiam ordinis faceret, caedibus regis diminutum patrum numerum primoribus equestris gradus lectis ad trecentorum summam explevit: traditumque inde fertur, ut in senatum vocarentur qui patres quique conscripti essent: conscriptos videlicet in novum senatum appellabant lectos"; Festus p. 254 "'Qui patres, qui conscripti': vocati sunt in curiam, quo tempore regibus urbe expulsis P. Valerius consul propter inopiam patriciorum ex plebe adlegit in numerum senatorum C. et LX. et IIII. ut expleret numerum senatorum trecentorum" (for these numbers cf. Plut. Public. 11 [Greek: tous d' engraphentas hyp' autou legousin hekaton kai hexêkonta tessaras genesthai]). So adlecti, Festus p. 7 "adlecti dicebantur apud Romanos, qui propter inopiam ex equestri ordine in senatorum sunt numero adsumpti: nam patres dicuntur qui sunt patricii generis, conscripti qui in senatu sunt scriptis adnotati." Plutarch (Qu. Rom. 58, Rom. 13) makes the added members Plebeians. Tacitus (Ann. xi. 25) wrongly identifies these added members with the minores gentes. (Claudius creates Patricians A.D. 48—"paucis jam reliquis familiis, quas Romulus majorum et L. Brutus minorum gentium appellaverant.")
* ↑ Willems (Le Sénat ii. 39 ff.) makes patres conscripti simply equivalent to "assembled fathers."
* ↑ The first clear instance of a plebeian senator dates from the year 401. Liv. v. 12. P. Licinius Calvus, created military tribune with consular power, was "vir nullis ante honoribus usus, vetus tantum senator et aetate jam gravis." Cf. Liv. iv. 15. Of Sp. Maelius (439 B.C.) it is asked "quem senatorem concoquere civitas vix posset, regem ferret."
* ↑ p. 60.
* ↑ Liv. ii. 18; Festus p. 198; Pompon. in Dig. 1, 2, 2, 18.
* ↑ The title was, perhaps, originally praetor. This would naturally have been the case if Mommsen's theory is right that they were regarded as superior colleagues of the consuls (Staatsr. ii. p. 153). The earliest official title known to us is magister populi, and it was the technical title in the augural books. Cic. de Leg. iii. 3, 9 "isque ave sinistra dictus populi magister esto." Cf. de Rep. i. 40, 63 "Gravioribus vero bellis etiam sine collega omne imperium nostri penes singulos esse voluerunt, quorum ipsum nomen vim suae potestatis indicat. Nam dictator quidem ab eo appellatur quia dicitur; sed in nostris libris vides eum, Laeli, magistrum populi appellari." The later title, dictator, was perhaps adopted in deference to Republican sentiment; Mommsen (Staatsr. ii. p. 145) conjectures, in imitation of the Latin dictator, a constitutional survival of the monarchy. The meaning of the word is wholly uncertain. Ancient guesses say (i.) from dicitur (Cic. de Rep. l.c.); (ii) from dicto audiens (Varro L.L. v. 81 "quoi dicto audientes omnes essent"); (iii.) from dictare (Priscian viii. 14, 78), or (iv.) because they issued edicts (Dionys. v. 73).
* ↑ Pompon. in Dig. 1, 2, 2, 19 "Et his dictatoribus magistri equitum injungebantur sic, quo modo regibus tribuni celerum: quod officium fere tale erat, quale hodie praefectorum praetorio, magistratus tamen habebantur legitimi."
* ↑ Cic. de Leg. iii. 3, 9 "Ast quando duellum gravius, discordiae civium escunt, oenus, ne amplius sex menses, si senatus creverit, idem juris, quod duo consules, teneto"; Imp. Claudius Oratio i. 28 "Quid nunc commemorem dictaturae hoc ipso consulari imperium valentius repertum apud majores nostros quo in asperioribus bellis aut in civili motu difficiliore uterentur?"
* ↑ Cicero (de Rep. ii. 31, 53) gives as the tenor of the first Valerian law "ne quis magistratus civem Romanum adversus provocationem necaret neve verberaret." Dionysius (v. 19) adds [Greek: zêmioun eis chrêmata] to [Greek: apokteinein ê mastigoun], and Plutarch (Publ. 11) seems to give it the same wide scope. He also thinks that Valerius fixed the multa suprema (l.c.), i.e. the largest fine the magistrate could impose without appeal. These statements may, however, be deductions from the later provocatio.
* ↑ Pompon. in Dig. 1, 2, 2 (§ 3) "exactis deinde regibus . . . omnes leges hae exoleverunt iterumque coepit populus Romanus incerto magis jure et consuetudine aliqua uti quam per latam legem, idque prope quinquaginta (MSS. "viginti") annis passus est." After the Twelve Tables (§ 6) "ex his legibus . . . actiones compositae sunt, quibus inter se homines disceptarent: quas actiones ne populus prout vellet institueret, certas sollemnesque esse voluerunt . . . Omnium tamen harum et interpretandi scientia et actiones apud collegium pontificum erant, ex quibus constituebatur, quis quoquo anno praeesset privatis."
* ↑ p. 64.
* ↑ The later praetorian interdicts (de locis sacris, de mortuo inferendo) are really within the domain of fas and must at one time have been enforced by the pontiffs.
* ↑ p. 78.
* ↑ Mommsen Staatsr. iii. p. 93.
* ↑ p. 35.
* ↑ The privilege could not have been based on quiritarian ownership, since this tenure was precarious.
* ↑ The contract of nexum was in fact a conditioned mancipation, like a testament, the nuncupatio being made by the vendor, who perhaps purchased with a single coin (nummo uno), as in the later mancipationes fiduciae causa (Bruns Fontes).
* ↑ Except as a penal measure ordained by the state. The furem manifestum according to Gellius (xx. 1), "in servitutem tradit" (lex); he is more correctly described as addictus by Gaius (iii. 189). The incensus might be sold as a slave (Cic. pro. Caecin. 34, 99). Later a free man who collusively allowed himself to be sold as a slave, in order to share the purchase money with the vendor, was adjudged a slave as a punishment for his fraud (Dig. 40, 13, 3; Inst. 1, 3, 4; Cod. 7, 18, 1).
* ↑ p. 24.
* ↑ Gell. xx. 1 "Aeris confessi rebusque jure judicatis triginta dies justi sunto. Post deinde manus injectio esto, in jus ducito. Ni judicatum facit aut quis endo eo in jure vindicit, secum ducito, vincito aut nervo aut compedibus. . . . Si volet suo vivito. Ni suo vivit, qui eum vinctum habebit, libras farris endo dies dato. Si volet plus dato." The addictus like the nexus did not become a slave, but still retained his position in his census and in his tribe (Quinctil. Decl. 311).
* ↑ In the case of a nexal contract there could not be more creditors than one. A man could not, by the nature of the case, mancipate himself to several people at once.
* ↑ Liv. ii. 23 "Fremebant se, foris pro libertate et imperio dimicantes, domi a civibus captos et oppressos esse; tutioremque in bello quam in pace, et inter hostes quam inter cives, libertatem plebis esse."
* ↑ ib. 27.
* ↑ Dionys. vi. 45.
* ↑ Liv. ii. 28. The senators complain "nunc in mille curias contionesque (cum alia in Esquiliis, alia in Aventino fiant concilia) dispersam et dissipatam esse rem publicam."
* ↑ Varro L.L. v. 81 "tribuni plebei, quod ex tribunis militum primum tribuni plebei facti, qui plebem defenderent, in secessione Crustumerina."
* ↑ The principle of cooptation was said to have been recognised in the carmen rogationis of the tribunate, and in this case it was held that Patricians were eligible. Liv. iii. 65 (449 B.C.) "Novi tribuni plebis in cooptandis collegis patrum voluntatem foverunt. Duos etiam patricios consularesque, Sp. Tarpeium et A. Aternium, cooptavere." But, with the disuse of this principle, the plebeian qualification was observed.
* ↑ Cic. ap. Ascon. in Cornel. p. 76 "Tanta igitur in illis virtus fuit, ut anno xvi. post reges exactos propter nimiam dominationem potentium secederent, . . . duos tribunos crearent. . . . Itaque auspicato postero anno tr. pl. comitiis curiatis creati sunt," (For the number two Ascon. in loc. quotes Tuditanus and Atticus.) Cicero apparently understands by this the mixed assembly of the curiae; and so does Livy (ii. 56, on the lex Publilia transferring the elections of the tribunes to the tribes), "quae patriciis omnem potestatem per clientium suffragia creandi, quos vellent, tribunos auferret."
* ↑ It must have been so restricted at first. Later (as we shall see in dealing with the intercession) the auxilium was extended to the whole people.
* ↑ Cic. de Rep. ii. 33, 58 "contra consulare imperium tribuni plebis . . . constituti."
* ↑ Gell. xiii. 12 "(tribunis) jus abnoctandi ademptum, quoniam, ut vim fieri vetarent, adsiduitate eorum et praesentium oculis opus erat." Cf. iii. 2. Plut. Qu. Rom. 81 [Greek: hothen oud' oikias autou kleiesthai nenomistai thyran, alla kai nyktôr aneôge kai meth' hêmeran, ôsper limên kai kataphygê tois deomenois
* ↑ For the increase to four see Diodor. xi. 68 (471 B.C. in connexion with the lex Publilia); other accounts represent the original number as five (Ascon. l.c. p. 93, and Livy ii. 33; two elected, three coopted; cf. note on p. 93). The increase to ten is assigned by Livy and Dionysius to 457 B.C. (Livy iii. 30; the tribunes allowed the levy "non sine pactione tamen ut . . . decem deinde tribuni plebis crearentur. Expressit hoc necessitas patribus"; cf. Dionys. x. 30).
* ↑ Liv. ii. 35 "contemptim primo Marcius audiebat minas tribunicias; auxilii, non poenae, jus datum illi potestati; plebisque, non patrum, tribunos esse." Coriolanus was probably impeached before the Plebs as a hostis tribuniciae potestatis in consequence of his advice that the tribunate should be abrogated (Liv. ii. 34). See Rein Criminalrecht p. 484. Cf. Liv. ii. 56 (471 B.C.; the tribune seizes some nobiles who would not yield to his viator) "Consul Appius negare jus esse tribuno in quemquam, nisi in plebeium; non enim populi, sed plebis, eum magistratum esse."
* ↑ Dionys. vii. 17 [Greek: dêmarchou gnômên agoreuontos en dêmô mêdeis legetô mêden enantion mêde mesolabeitô ton logon. ean de tis para tauta poiêsê, didotô tois dêmarchois engyêtas aitêtheis eis ektisin hês an epithôsin autô zêmias.] Any one who does not give securities ([Greek: engyêtai]) is to be punished with death [Greek: kai ta chrêmat' autou hiera estô. tôn d' amphisbêtountôn pros tautas tas zêmias hai kriseis estôsan epi tou dêmou]. Cf. vi. 16, and Cic. pro Sest. 37, 79 "Fretus sanctitate tribunatus, cum se non modo contra vim et ferrum, sed etiam contra verba atque interfationem legibus sacratis esse armatum putaret."
* ↑ p. 66 note 5.
* ↑ Dionys. x. 31, 32; see Mr. Strachan-Davidson in Smith Dict. of Antiq. s.v. plebiscitum.
* ↑ p. 39.
* ↑ Dionys. vi. 90 [Greek: andras ek tôn dêmotikôn duo kath' hekaston eniauton apodeiknynai tous hypêretêsontas tois dêmarchois hosôn an deôntai kai dikas, has an epitrepsôntai ekeinoi, krinountas hierôn te kai dêmosiôn topôn kai tês kata tên agoran euetêrias epimelêsomenous]: Gell. xvii. 21 "tribunos et aediles tum primum per seditionem sibi plebes creavit"; Pompon. in Dig. 1, 2, 2, 21 "Itemque ut essent qui aedibus praeessent, in quibus omnia scita sua plebs deferebat, duos ex plebe constituerunt, qui etiam aediles appellati sunt."
* ↑ Dionysius (l.c.) suggests that they originally bore another title. Pomponius (l.c.) derives the name from their office in the temple of Ceres; Varro from their care of the repair of aedes both sacred and private (Varro L.L. v. 81 "aedilis, qui aedes sacras et privatas procuraret"), a derivation which Mommsen (Staatsr. ii. p. 480) favours. Their relation to the aediles of the Latin towns is wholly uncertain. Mommsen (ib. p. 474) holds strongly to the view that the Latin aedileship was borrowed from the Roman. For a different view cf. Ohnesseit Ztschr. der Savigny-stiftung 1883, pp. 200 sq.
* ↑ Plut. Coriol. 18 (the tribune Sicinnius) [Greek: prosetaxe tois agoranomois anagagontas auton epi tên akran euthys ôsai kata tês hypokeimenês pharangos]. So later in the trial of P. Scipio. Liv. xxix. 20; xxxviii. 52.
* ↑ Liv. iii. 31 (456 B.C.; the consuls sell booty taken from the Aequi) "itaque ergo, ut magistratu abiere . . . dies dicta est, Romilio ab C. Calvio Cicerone, tribuno plebis, Veturio ab L. Alieno, aedile plebis."
* ↑ Yet Livy attributes both to the fifth century; they perform police-duties in the year 463 (Liv. iii. 6), and are entrusted with the care of the state religion in 428 (Liv. iv. 30).
* ↑ Livy, however (iii. 55, cited note 2), represents the sacrosanctitas of the aediles as being based only on law.
* ↑ Dionys. vi. 89. The sacrosanctitas of the tribune is guaranteed [Greek: nomô te kai horkô]. Cf. App. B.C. ii. 108 [Greek: hê tôn dêmarchôn archê hiera kai asylos ên ek nomou kai horkou palaiou]. For these two grounds of inviolability see Liv. iii. 55 (restoration of tribunate in 449) "et cum religione inviolatos eos, tum lege etiam fecerunt, sanciendo 'ut qui tribunis plebis, aedilibus, judicibus, decemviris nocuisset, ejus caput Jovi sacrum esset, familia ad aedem Cereris, Liberi Liberaeque venum iret.' Hac lege juris interpretes negant quemquam sacrosanctum esse; sed eum, qui eorum cuiquam nocuerit, sacrum sanciri. Itaque aedilem prendi ducique a majoribus magistratibus: quod etsi non jure fiat (noceri enim ei, cui hac lege non liceat) tamen argumentum esse, non haberi pro sacro sanctoque aedilem: tribunos vetere jurejurando plebis, cum primum eam potestatem creavit, sacrosanctos esse" (cf. Liv. ii. 33 "sacratam legem latam" on the Mons Sacer).
* ↑ Resistance to the will of a magistratus populi is not perduellio in later Roman law, but rather vis. But resistance to the tribune is always majestas.
* ↑ Dionys. vii. 17. See p. 96.
* ↑ Liv. ii 56 (Publilius Volero) "rogationem tulit ad populum, ut plebei magistratus tributis comitiis fierent" (followed by the words cited on p. 94).
* ↑ This is Livy's view (l.c.), "nec, quae una vis ad resistendum erat, ut intercederet aliquis ex collegio . . . adduci posset."
* ↑ The ground of objection given by Livy (ii. 56, cited p. 94) rests on the belief that the tribunes had been formerly elected by the comitia curiata.
* ↑ Aemilia, [Camilia], Claudia, Cornelia, Fabia, [Galeria], Horatia, [Lemonia], Menenia, Papiria, [Pollia], [Pupinia], Romulia or Romilia, Sergia, [Voltinia], Voturia or Veturia (from Momms. Staatsr. iii. p. 168; the names he encloses in brackets are those to which there are no extant patrician gentes to correspond).
* ↑ Dionys. vii. 64.
* ↑ Momms. Staatsr. iii. p. 153.
* ↑ See Appendix.
* ↑ Livy (iii. 9) says, "ut vviri creentur legibus de imperio consulari scribendis." Even if this expression is due to a misunderstanding of the title of the decemvirs, "consulari imperio legibus scribendis" (Momms. Staatsr. ii. p. 702), it no doubt expresses a fact. For the nature and object of the decemvirate see Pompon. in Dig. 1, 2, 2, 4 (of the appointment of the decemvirs) "datumque est eis jus eo anno in civitate summum, uti leges et corrigerent, si opus esset, et interpretarentur neque provocatio ab eis sicut a reliquis magistratibus fieret"; ib. (of the publication of the laws) "quas in tabulas eboreas perscriptas pro rostris composuerunt, ut possint leges apertius percipi." Cf. Dionys. x. 1, 60.
* ↑ Livy (iii. 11, 26, and 29) seems to speak of the law not being allowed to pass the Plebs; but then he does not recognise the two stages of legislation. See p. 97.
* ↑ Liv. iii. 31.
* ↑ ib. 33; cf. Momms. Staatsr. ii. p. 714.
* ↑ Liv. iii. 32 "postremo concessum patribus, modo ne lex Icilia de Aventino, aliaeque sacratae leges abrogarentur." As to the sacratae leges, the aedileship would have gone with the tribunate; and there was nothing more to be protected by the leges sacratae.
* ↑ Their title was Decemviri consulari imperio legibus scribendis (Capitoline Fasti). Cf. Liv. iii. 32 ("placet creari xviros sine provocatione, et ne quis eo anno alius magistratus esset") and Pompon. in Dig. (cited p. 102).
* ↑ Liv. iii. 34 "se . . . omnibus, summis infimisque jura aequasse."
* ↑ Dionys. x. 58; Liv. iii. 35.
* ↑ Liv. iii. 57. The accounts of the material of the "Tables" vary. Livy (l.c.) says "in aes incisas in publico proposuerunt"; Pomponius (in Dig., cited p. 102) says "in tabulas eboreas perscriptas" (perhaps roboreas or aereas, Kipp, Quellenkunde des R.R. p. 8). It is possible that they were of wood.
* ↑ Liv. iii. 34 "fons omnis publici privatique est juris"; Tac. Ann. iii. 27 "creatique decemviri et accitis quae usquam egregia compositae duodecim tabulae, finis aequi juris."
* ↑ Cic. de Leg. ii. 23, 59 "Discebamus enim pueri XII, ut carmen necessarium; quas jam nemo discit."
* ↑ Liv. iii. 34.
* ↑ p. 19.
* ↑ Ulpian Reg. ii. 4.
* ↑ p. 10.
* ↑ p. 91.
* ↑ Cato R.R. praef.
* ↑ Plin. H.N. xviii. 3, 12.
* ↑ Cic. de Rep. iv. 12.
* ↑ Gell. xx. 1.
* ↑ Marcian in Dig. 48, 4, 3 "Lex duodecim tabularum jubet eum, qui hostem concitaverit quive civem hosti tradiderit, capite puniri."
* ↑ Pompon. in Dig. 1, 2, 2, 23. See p. 80.
* ↑ Cic. de Rep. ii. 31, 54 "ab omni judicio poenaque provocari licere indicant XII Tabulae compluribus legibus."
* ↑ Cic. de Leg. iii. 4, 11.
* ↑ Decl. in Catil. 19.
* ↑ This rule is said to have been taken from a law of Solon's (Gaius in Dig. 47, 22, 4). Other traces of Greek influence are perhaps to be found in the sumptuary regulations, especially those about funerals, and perhaps in the prohibition of interment within the city. Gaius finds also a Solonian parallel to the actio finium regundorum ordained by the law (Dig. 10, 1, 13).
* ↑ Liv. vii. 17 "in duodecim tabulis legem esse, ut quodcumque postremum populus jussisset, id jus ratumque esset."
* ↑ Liv. iii. 53.
* ↑ ib. 54 "ibi extemplo, pontifice maximo comitia habente, tribunos plebis creaverunt."
* ↑ ib. "Confestim de consulibus creandis cum provocatione M. Duilius rogationem pertulit." Such a resolution would not need confirmation by the people, as, after the fall of the decemvirs, an interregnum would naturally ensue; and this was a matter for the Senate. But Livy also represents the tribune as (in accordance with a senatus consultum) passing the act of amnesty, iii. 54 "Tribunatu inito, L. Icilius extemplo plebem rogavit, et plebs scivit, ne cui fraudi esset secessio ab decemviris facta." In later Roman law amnesty resides with the Senate.
* ↑ Liv. iii. 55 "ne quis ullum magistratum sine provocatione crearet, qui creasset, eum jus fasque esset occidi: neve ea caedes capitalis noxae haberetur."
* ↑ p. 79.
* ↑ p. 79.
* ↑ p. 99.
* ↑ Liv. iii. 55 "omnium primum, cum velut in controverso jure esset, tenerenturne patres plebiscitis, legem centuriatis comitiis tulere 'ut quod,'" etc. Cf. Dionys. xi. 45.
* ↑ Mr. Strachan-Davidson in Smith Dict. of Antiq. s.v. plebiscitum, and English Historical Review Nos. 2 and 19.
* ↑ p. 97.
* ↑ p. 107.
* ↑ Types of such laws between 449 and 287 B.C. are the lex Terentilia (462), Canuleia (445), Licinia (367), Ogulnia (300).
* ↑ Liv. iii. 55 "M. Duilius deinde tribunus plebis plebem rogavit, plebesque scivit: 'qui plebem sine tribunis reliquisset, quique magistratum sine provocatione creasset, tergo ac capita puniretur.'"
* ↑ Liv. iv. 1 "de conubio patrum et plebis C. Canuleius tribunus plebis rogationem promulgavit."
* ↑ See p. 39 and cf. Liv. iv. 6; the consuls (in a contio) gave as the official reason "quod nemo plebeius auspicia haberet; ideoque decemviros conubium diremisse, ne incerta prole auspicia turbarentur."
* ↑ Liv. iv. 1 "et mentio, primo sensim inlata a tribunis, ut alterum ex plebe consulem liceret fieri, eo processit deinde, ut rogationem novem tribuni promulgarent, 'ut populo potestas esset, seu de plebe, seu de patribus vellet, consules faciendi.'"
* ↑ The situation at the beginning of the year thus is described by Livy (iv. 2), "eodem tempore et consules senatum in tribunum, et tribunus populum in consules incitabat." At last (Liv. iv. 6) "victi tandem patres, ut de conubio ferretur, consensere."
* ↑ Liv. iv. 6.
* ↑ ib. 35.
* ↑ Claudius in Tab. Lugd. "quid (commemorem) in pluris distributum consulare imperium tribunosque militum consulari imperio appellatos, qui seni et saepe octoni crearentur."
* ↑ Livy sometimes speaks of eight (v. 1, vi. 27); cf. Tab. Lugd. cited note 3. It is probable that this number includes the six tribunes and the two censors (Momms. Staatsr. ii. p. 184); e.g. Livy gives eight for the year 403, the Fasti Capitol. for the same year (351 A.U.C. C.I.L. i. p. 428) six and two censors.
* ↑ Pompon. in Dig. 1, 2, 2, 25 "cum . . . plebs contenderet cum patribus et vellet ex suo quoque corpora consules creare, et patres recusarent, factum est ut tribuni militum crearentur partim ex plebe, partim ex patribus consulari potestate."
* ↑ Liv. v. 12. This is maintained to be an error by Mommsen, Röm. Forsch. i. 66; Staatsr. ii. p. 188. He holds that in 445 B.C. one L. Atilius Longus was a Plebeian, and that in 400, 399, 396 the Plebeians had a majority. Livy's view is upheld by Willems Le Sénat i. 58-60.
* ↑ If it be taken to prove that the preponderance of voting power in the comitia centuriata was still on the side of the Patricians, it would throw a valuable side-light on the relative economic position of the two orders.
* ↑ Imperium (Tab. Lugd. quoted p. 112); potestas (Liv. iv. 6); jus (Tac. Ann. i. 1).
* ↑ Liv. iv. 7 "et imperio et insignibus consularibus usos."
* ↑ ib. v. 13, 52.
* ↑ "Proconsularis imago" (Liv. v. 2).
* ↑ Zonar. vii. 19.
* ↑ Liv. iv. 55 "pervincunt, ut senatus consultum fiat de tribunis militum creandis"; iv. 12 "cum . . . obtinuisset, ut consulerentur patres, consulum an tribunorum placeret comitia haberi." Dionysius (xi. 60) represents the people as being consulted too.
* ↑ i.e. in accordance with the law, if there was one, establishing the office.
* ↑ Momms. Staatsr. ii. p. 191.
* ↑ Liv. iv. 8 "ortum autem initium est rei, quod in populo, per multos annos incenso, neque differri census poterat, neque consulibus, cum tot populorum bella imminerent, operae erat id negotium agere." Cf. Dionys. xi. 63.
* ↑ Liv. l.c. "Idem hic annus censurae initium fuit, rei a parva origine ortae."
* ↑ Liv. iv. 24. Mommsen indeed thinks (Staatsr. ii. p. 349) that this lex Aemilia first made the censorship an independent magistracy with a fixed tenure. It was probably an independent magistracy before, but with no fixed tenure. Hence the belief that the censors originally held office for five years, the period of the lustrum (Liv. l.c., cf. ix. 34).
* ↑ pp. 81, 102.
* ↑ Liv. iv. 43 (discord between the Patres and the Plebs) "exorta est, coepta ab duplicando quaestorum numero . . . praeter duos urbanos quaestores duo ut consulibus ad ministeria belli praesto essent." The tribunes demanded "ut pars quaestorum . . . ex plebe fieret." The compromise arrived at was that "quattuor quaestores promiscue de plebe ac patribus libero suffragio populi fierent."
* ↑ ib. 54. The Plebs, indignant at the election of consuls in place of military tribunes, "eum dolorem quaestoriis comitiis simul ostendit, et ulta est, tunc primum plebeiis quaestoribus creatis: ita ut, in quattuor creandis, uni patricio K. Fabio Ambusto relinqueretur locus." For the election at the comitia tributa see p. 102.
* ↑ p. 83 note 2.
* ↑ Liv. iv. 25. The principes plebis, in despair at the choice of the military tribunate always falling on Patricians, came to the conclusion that it was "ambitione artibusque" of the Patricians. Hence a tribunician measure "ne cui album in vestimentum addere petitionis liceret causa." After great resistance "vicere tribuni ut legem perferrent."
* ↑ "Principes plebis" (Liv. l.c.).
* ↑ ib. vi. 31 "conditiones impositae patribus, ne quis, quoad bellatum esset, tributum daret, aut jus de pecunia credita diceret."
* ↑ ib. 35 "omnium igitur simul rerum, quarum immodica cupido inter mortales est, agri, pecuniae, honorum, discrimine proposito, conterriti patres, etc."
* ↑ Liv. vi. 37 "Novam rogationem promulgant, ut pro duumviris sacris faciundis decemviri creentur; ita ut pars ex plebe, pars ex patribus fiat."
* ↑ ib. 38. His statements are inconsistent. He speaks of the college as being unanimous, and yet of intercessio being used at the meeting.
* ↑ Liv. vi. 42 "concessum . . . a plebe nobilitati de praetore uno, qui jus in urbe diceret, ex patribus creando," probably by a clause introduced into the Licinian rogations when they were submitted by the consul to the Populus (see p. 97). The true motive is given by Pomponius in Dig. 1, 2, 2, 27, "Cum consules avocarentur bellis finitimis neque esset, qui in urbe jus reddere posset, factum est ut praetor quoque crearetur, qui urbanus appellatus est, quod in urbe jus redderet."
* ↑ Mommsen (Staatsr. ii. p. 204) doubts it, chiefly on the ground that no law is mentioned as opening the office to Plebeians thirty years later. Probably the same doubt hung over the praetorship as over the second place in the consulship, i.e. whether the Licinian law, by reserving one consulship to the Plebs, had left the other posts open to both orders or not.
* ↑ Liv. vii. 1 "collegam consulibus atque iisdem auspiciis creatum." Cf. Gell. xiii. 15.
* ↑ An instance of the exercise of a consular veto over a judicial decision of a praetor in 77 B.C. is preserved by Valerius Maximus (vii. 7, 6).
* ↑ Liv. viii. 15 "eodem anno Q. Publilius Philo praetor primus de plebe, adversante Sulpicio consule, qui negabat rationem ejus se habiturum, est factus; senatu, cum in summis imperiis id non obtinuisset, minus in praetura intendente."
* ↑ p. 98.
* ↑ Liv. vi. 42 "Factum senatus consultum, ut duo viros aediles ex patribus dictator populum rogaret."
* ↑ ib. vii. 1 (366 B.C.) "verecundia inde imposita est senatui ex patribus jubendi aediles curules creari. primo, ut alternis annis ex plebe fierent, convenerat; [this was the rule in 213 (Polyb. x. 4)]. postea promiscuum fuit" [Mommsen (Staatsr. ii. p. 482) thinks as late as the last century of the Republic].
* ↑ ib. 17 "dictator C. Marcius Rutilus primus de plebe dictus"; he appointed a plebeian master of the horse.
* ↑ ib. 22. The same C. Marcius Rutilus "professus censuram se petere" was elected.
* ↑ ib. viii. 12 "ut alter utique ex plebe . . . censor crearetur."
* ↑ ib. Ep. 59 "Q. Pompeius et Q. Metellus, tunc primum utrique ex plebe facti, censores lustrum condiderunt."
* ↑ Liv. vii. 42. The law was proposed by the tribune L. Genucius. It was not, however, until the year 172 B.C. that both consuls were plebeian (Liv. xlii. 9; Fast. Cap. C.I.L. i. 1 p. 25).
* ↑ p. 52.
* ↑ Livy (x. 6) marvels at the fact; he thinks that it must have been accidental ("morte duorum"), since the augural college should have consisted of three or of a multiple of three. Cicero (de Rep. ii. 9, 16) says that Romulus coopted (cooptavit) one from each of the three tribes; they were therefore four; that Numa added two (ib. ii. 14, 26). This makes six, which Livy (l.c.) thinks the normal number at the time of the passing of the Ogulnian law.
* ↑ Liv. x. 6. These numbers remained unaltered until the time of Sulla (81 B.C.), who raised the colleges of pontiffs and augurs to fifteen (Liv. Ep. 89). A sixteenth was added to both colleges by Julius Caesar (Dio Cass. xlii. 51).
* ↑ Liv. xxxiii. 42. The number was afterwards increased to seven, from which time the college was known as that of the VIIviri epulones.
* ↑ Marquardt Staatsverw. iii. p. 333.
* ↑ Liv. iii. 32 "augur (mortuus est) C. Horatius Pulvillus; in cujus locum C. Veturium eo cupidius, quia damnatus a plebe erat, augures legere." The pontifex maximus was early an exception to this rule; see the comitia sacerdotum in the section dealing with the people.
* ↑ Cic. de Leg. Agr. ii. 7, 18; Vell. ii. 12.
* ↑ Liv. viii. 12.
* ↑ p. 109.
* ↑ Mr. Strachan-Davidson conjectures that the law of Publilius Philo "may have struck out the intervening consultation of the Senate, and may have required the consul to bring the petition of the Plebs at once before the Populus" (Smith Dict. of Antiq. s.v. plebiscitum, ii. p. 439).
* ↑ p. 83.
* ↑ The only evidence that they were is furnished by Livy's account of a lex Manlia of 357 B.C. (Willems Droit Public p. 183). See Liv. vii. 16 (Manlius the consul) "legem, novo exemplo ad Sutrium in castris tributim de vicesima eorum, qui manumitterentur, tulit. Patres, quia ea lege haud parvum vectigal inopi aerario additum esset, auctores fuerunt."
* ↑ ib. viii. 12 "ut legum, quae comitiis centuriatis ferrentur, ante initum suffragium patres auctores fierent."
* ↑ Cic. Brut. 14, 55. Cf. Liv. i. 17 "hodie . . . in legibus magistratibusque rogandis usurpatur idem jus (the patrum auctoritas), vi adempta."
* ↑ Laelius Felix ap. Gell. 15, 27 "(plebi scitis) ante patricii non tenebantur, donec Q. Hortensius dictator legem tulit, ut eo jure quod plebs statuisset, omnes quirites tenerentur"; Plin. H.N. xvi. 10, 37 "ut quod ea (plebs) jussisset, omnes quirites teneret."
* ↑ Gaius i. 3 "olim patricii dicebant plebi scitis se non teneri, quia sine auctoritate eorum facta essent; sed postea lex Hortensia lata est, qua cautum est, ut plebi scita universum populum tenerent, itaque eo modo legibus exaequata sunt"; Pompon. in Dig. 1, 2, 2, 8 "pro legibus placuit et ea (plebiscita) observari lege Hortensia: et ita factum est, ut inter plebis scita et legem species constituendi interesset, potestas autem eadem esset."
* ↑ Pompon. l.c.
* ↑ The lex Agraria of 111 B.C. (Bruns Fontes) thus refers to a lex Sempronia of 123 B.C., "[ex] lege plebeive scito, quod C. Sempronius Ti. f. tr. pl. rogavit." Cf. lex Rubria (ib.) "ex lege Rubria seive id pl. sc. est."
* ↑ Thus Cicero, exiled by a plebiscitum, was restored by a lex centuriata. See the section on the people.
* ↑ Of the many instances one of the most remarkable is to be found in Sall. Jug. 84, "Marius . . . cupientissima plebe consul factus, postquam ei provinciam Numidiam populus jussit." Here plebs should be populus and populus, plebs.
* ↑ "Legislative" is here used in the modern sense. At Rome a judicial and elective act of the people was equally a lex.
* ↑ At least in 304 B.C. they had no right of relatio with the Senate (Liv. ix. 46).
* ↑ Gaius iv. 23.
* ↑ Varro L.L. viii. 105 "Hoc (the condition of nexum) C. Poetilio Libone Visolo dictatore (313 B.C.) sublatum ne fieret; et omnes, qui bonam copiam jurarunt, ne essent nexi dissoluti." Livy (viii. 28), who attributes the measure to 326 B.C., makes it a universal release of nexi: "jussique consoles ferre ad populum, ne quis, nisi qui noxam meruisset, donec poenam lueret, in compedibus aut in nervo teneretur: pecuniae creditae bona debitoris, non corpus obnoxium esset."
* ↑ Liv. ix. 46 "Cn. Flavius . . . patre libertino . . . civile jus, repositum in penetralibus pontificum, evulgavit, fastosque circa forum in albo proposuit, ut quando lege agi posset, sciretur"; Pompon. in Dig. 1, 2, 2, 7 "postea cum Appius Claudius composuisset (for "proposuisset") et ad formam redegisset has actiones, Cn. Flavius scriba ejus libertini filius subreptum librum populo tradidit . . . hic liber, qui actiones continet, appellator jus civile Flavianum."
* ↑ Pompon. l.c. §§ 37, 38. Gaius Scipio Nasica was given a house for consultations. The first professor, Ti. Coruncanius ("qui primus profiteri coepit," circ. 280 B.C.), was also the first plebeian pontifex maximus.
* ↑ Polyb. vi. 53.
* ↑ Cic. in Verr. v. 14, 36 "togam praetextam, sellam curulem, jus imaginis ad memoriam posteritatemque prodendae."
* ↑ In other words, images of other than curule ancestors might be set up in the atrium.
* ↑ p. 22.
* ↑ Sallust. Jug. 95 (of Sulla) "gentis patriciae nobilis fuit, familia prope jam exstincta majorum ignavia."
* ↑ Cic. pro Mur. 7. 16; Ascon. in Scaurian. p. 22.
* ↑ Dionys. vii. 71.
* ↑ Cf. Cic. de Off. ii. 17, 58 "Vitanda tamen suspicio est avaritiae. Mamerco, homini divitissimo, praetermissio aedilitatis consulatus repulsam attulit."
* ↑ Liv. xxii. 34 (of the election of Varro, 217 B.C.) "Patres summa ope obstabant, ne se insectando sibi aequari adsuescerent homines."
* ↑ Sallust. Jug. 63 "consulatum nobilitas inter se per manus tradebat; novus nemo tam clarus neque tam egregiis factis erat, quin indignus illo honore, et is quasi pollutus, haberetur."
* ↑ Cic. pro Domo 14, 38 "Ita populus Romanus brevi tempore, neque regem sacrorum, neque flamines, neque salios habebit, nec ex parte dimidia reliquos sacerdotes, neque auctores centuriatorum et curiatorum comitiorum: auspiciaque populi Romani, si magistratus patricii creati non sint, intereant necesse est, cum interrex nullus sit, quod et ipsum patricium esse et a patriciis prodi necesse est." The passage is closely followed by Livy vi. 41, in the speech against the Licinio-Sextian laws, with which he credits Appius Claudius. We meet with other archaic survivals in connexion with the Senate—the distinction, e.g., between the "greater and lesser gentes" (p. 12) was never lost, and the chief of the Senate, the first member on the list, was always chosen from the gentes majores (see p. 12).