THE AGRARIAN LAW. SP. CASSIUS. EMIGRATION OF THE FABII. THE PUBLILIAN ROGATIONS.
The ancient nations, when they waged war, held on the whole a different principle of right from what we do. We look upon war as a duel between the genii of two states,—between two ideal states: the individual is not affected by it as to his person, his liberty, and his property; the law of war intends him to be injured as little as possible, he is never to be the immediate object of hostility, he is only to be placed in jeopardy when it cannot be helped. But among the ancients, the hostilities were common to every one that belonged to the state; and whilst with us the conquered state indeed loses its right to the land, but every individual remains as he was, just as if there had been no war, these had quite different views on the subject. It was not only in wars of extermination that they took away the whole property of the vanquished, and made them slaves; in the common wars also the goods and chattels of the inhabitants were forfeited. Even when a place surrendered voluntarily, these with their wives and children fell into the hands of the conquerors, as we see from the forms of dedition. The conqueror in the latter case did not make them slaves; yet they were bondmen, and the whole of their landed property became the prize of the victor. If such a place had suffered but little, and it still seemed worth while to preserve it, there were sent thither from Rome three hundred colonists, one from each Gens, and these were a φρουρά, a φυλακή. They got each of them a garden of two jugera; without doubt they had the whole, or at least the greater part of the public demesne, and a third of the district as arable land, two-thirds being left to the old inhabitants. These are the original colonies. In other instances no colonies were sent, it not being deemed requisite to take occupation of the place. Sometimes the inhabitants were cast out, at other times they were allowed to remain, and a tax was laid upon them, generally the tithe; yet they then held their tenures as it were on sufferance, being always removable at pleasure. In countries which had been devastated by war, or from which the inhabitants had been driven out, the Romans used to act according to a law quite peculiar to themselves, for which there is no parallel whatever in the Greek institutions.
This jus agrarium is of so much the greater importance for me as it first led me to critical researches on Roman history, whilst before that I had occupied myself more with Greek antiquities. When as a youth I read Plutarch’s parallels and Appian, the system of the lex agraria was quite a riddle to me. It was thought to have really been a violation of property, which it was to limit to a certain standard, so that he who had more than five hundred jugera was deprived of the surplus, by which means an increase of the plebeian holdings was created at the expense of the patrician proprietors. This exposition of the law in such an extreme sense met with much applause. From Machiavell, as he lived in a revolutionary age, and in his opinion the end sanctified the means; and not less from Montesquieu on the other hand, who looked upon the repetition of the past as a thing which was out of the question, since in his time a revolution was still as far off as possible. His example shows how bold speculative minds may become in relations which are unknown to them, and which seem impossible. At that time, revolutionary ideas, in an apparently quite innocent manner, were generally current, even among men who in the revolution itself went over to the extreme opposite side.
As Plutarch and Appian expressly state that the law applied to the γῆ δημοσία only, it was evident that something else must have been meant by it. The first who thought here of the ager publicus was Heyne, in a programme the occasion for which was taken from the revolutionary confiscations; yet the question, What then was the ager publicus? was not cleared up, as Heyne so often had a general notion of the truth which he but rarely worked out. Afterwards also, the historical writers who treated of the Gracchi were still completely in the dark with regard to it. Once upon a time, when I did not yet see my way into these riddles, I asked the great F. A. Wolf his opinion on it. Yet he, with all the distinguished qualities of his mind, had this fault, that he sought to have the credit of knowing every thing, and then gave himself the air of not wishing to commit himself. He too did not know how to get over this difficulty. I was brought to the subject by chance. In Holstein at that time bondage was abolished. Instead of the peasants, serfs as well as freemen, having hereditary abodes on the estates as formerly, their possessions were taken from them, and changed into tenant farms, whilst they themselves were arbitrarily transferred to small and worse farms. This was quite abominable. Even where there were no serfs, the same measures were now to be enforced. I called to Heaven against this injustice, and came to raise the question,—“What right have they to do this?” On this occasion I was led to inquire into the nature of tenure at will, and traced it among various nations; and this gave me the key to the Roman jus agrarium.
The general notion of the Italian nations was this, that there is an indissoluble relation between the land and the right of citizenship; that every kind of ownership in the soil is derived from the state alone. The soil is merely the substratum on which the preconceived idea of the civil organization rests. There is a great similarity in this to the feudal system. According to strict feudal law, there is no land whatever but what has a liege-lord. All fiefs derive from the prince as the lord paramount, and then follow the mesne tenures. In point of fact, this idea has never indeed been carried out in its full meaning. Another analogous case is in the East, especially in the East Indies, where we find the sovereign the real owner of the soil, and the peasant’s tenure to be only at will (precario). Thus also among the Italian nations, all right of property in the soil is from the soil.
We read in Appian a statement, of which it is evident that it has not sprung from his own intellectual resources, but that it is an extract from the history of the Gracchi by Posidonius, who was not inferior to Polybius, and whom he uses as his chief authority for that period, as he did Dionysius before, and then Polybius, Fabius, and at last, in all probability, Rutilius. Now, if we see it mentioned by him, that the ager publicus was partly turned into colonies and demesnes, and partly sold or let on lease (the latter notice is found in Plutarch only), we may ask ourselves, How was it possible that difficulties should have arisen on this subject? The Roman republic had only to lay down the law, that no one should possess more than a certain number of lots, and all the evil consequences were prevented. The fact is that Appian and Plutarch misunderstood the ambiguous expression of their predecessor. There is no question of any letting on lease; but a tax was laid on the estates, the tithe (decuma), from corn; the fifth (quinta), from fruit; and from every thing else in proportion. If, then, the corn was taken in kind, the state was obliged to establish great storehouses; for the cattle it had to pay the pasturage; so that of course the revenue was different in different years. A new system was therefore adopted of letting out the revenue from those taxes to publicani. The political forms of the Romans have almost always an analogy in the Greek constitutions, and so has often the civil law; but with regard to the jus agrarium the Romans stand alone. The Greek state made conquests and founded colonies, but the possessio agri publici is unknown to that people: in one instance only does any thing like it happen. We see from Xenophon’s Anabasis that he devoted an estate at Scillus to the Artemis of Ephesus; and that the temple did not cause the estate to be let on lease, but received the tithe from it, and that this was farmed. As the victim was never offered as ὁλόκαυστον, but a part of it only was burnt in honour of the god; thus of such an estate, not the whole proceeds, but a part only, was offered as a gift. According to the system of Roman law, the state did not keep as much as possible of what was publicum for itself; but it proclaimed that every Romanus Quiris who wished to cultivate a part of the conquered country, might take it. This was called occupatio agri publici. At first, those who were patricians, as the oldest citizens, might take a plot wherever they liked. This was for the most part waste land, become desolate in the war, on the hostile frontier, and therefore there was no great competition for it. From the very first, the obligation was imposed of paying the decumæ and quintæ. It was this revenue which was farmed, and this has always been overlooked. The terms agrum locare and agrum vendere are synonymous, and mean neither more nor less than fructus agri vendere, agrum fruendum locare. One really had the possession of such an estate very much as if it were one’s own, so that a third party could not claim it; just like the tenant at will, from whom the landlord may under certain conditions take his farm, but who enjoys perfect protection against any one else. This was secured among the Romans by the possessory interdicts, so that this possession might also become hereditary. But the state, on the other hand, might at any time interfere, and say, “Now I want to establish a colony here, or to divide the land viritim, the occupant has therefore notice to quit;” and in that case the latter had no auctoritas whatever against the state. From this it is evident that the state could always dispose of the ager publicus, so that, for instance, no more than a certain number of jugera came into the possession of a single person; for others would thus have been excluded from it, and the excessive influence of an individual, from the immense number of his clients, might have become dangerous to the whole community.
This is the great difference between property and a mere possessio. The possessio was given by the prætor in the edict by which one was called upon to take it; the prætorian right of inheritance rests wholly and entirely upon this ground: the prætor gives possessionem bonorum secundum tabulas. Property, one might leave by will as one liked; but possession (occupancy) one could only transfer to another by a sale before witnesses according to a fair arrangement, and he who had received it, proved the legal acceptance, and armed himself with his interdictum possessorium; he had witnesses of his having got possession neque vi, neque clam, neque precario. But how was it when the possessor died? By his will he could utterly disinherit his children, and leave what he had in property to the most unworthy person, without the prætor in the earlier times being able to interfere; but the prætor could do so when the tenure was that of possession, and as being the source of possession, he decided in the latter case according to a principle quite different from that which applied to the former, as the chancellor of England does in Equity. Even those who entertain unfavourable views of the Plebes and the tribunes, as for instance Livy and Dionysius, cannot deny that the patricians were usurpatores agri publici; yet these might according to the letter of the law rightly make their claims, and it is moreover not impossible that they appeared to have been perfectly honest. It is in general a great result of historical research, that one learns to judge fairly, and can see that there are good men in the most opposite parties; that the distinctions of party do not constitute the worth of man. Thus it was with regard to the patricians. When Livy and Dionysius, although against the Plebes, state that the ager publicus had been occupied per injuriam ὑπὸ τῶν ἀναιδεστάτων πατρικίων, their remarks are unjust; a fact which can only be understood by going back to the origin of the matter.
Only the original Roman citizen of the three old tribes, that is to say, the patrician, could, according to the earliest law, be admitted to the possessio. He got from the prætor as much as he thought he could cultivate, no limits whatever being fixed; and for this he had nothing to pay, but only to invest his capital in making the land productive. The Plebes now grew up at the side of this order. These were the real strength of Rome: they furnished the whole of the infantry; their blood was shed in the wars; and they achieved the conquests. It was therefore undoubtedly also the right of the Plebes to have their share in these conquests: the Populus, however, continued to look upon these as their own property. Servius Tullius had already ordered that no more unlimited grants should be made, but that a part of the conquered land should remain with the state, and that the rest should be divided among the Plebes as their freeholds. According to the rules of the augural system, squares were made, and then lots were numbered, and tickets issued to all those who were to have a share: each of these tickets represented a square (centuria). This is called assignatio. Such is the law of Servius Tullius, which is inseparably connected with the constitution of the Plebes. From Sallust’s expressions, we are to suppose that after the expulsion of the kings the Servian institutions were restored. Yet they were again done away by the patricians. Only the ager regius was as yet divided; afterwards every thing remained with the patricians, who likewise dispensed themselves from paying the tithes. The tribunes were anything but mutinous; they only wished as the natural advocates of their order to make good its right. Perhaps the plebeians felt particularly aggrieved by the Etruscan war, as they had to sustain the deficiency of the lost third.
Sp. Cassius was the first who brought in an agrarian law, first in the senate, then in the curies, and lastly in the centuries; or else perhaps, first in the centuries, and then in the curies. It was his proposition, to restore the Servian law; to re-establish the tithes and fifths; to sell part of the conquered country, and to mete out the remainder and assign it to the Plebes. This is all that we know of the lex Cassia. All the rest of Dionysius’ statement, as I positively assert after mature consideration, bears evident traces of having been taken from a writer of the second half of the seventh century, and is invented with great ignorance of the old state of things. The senatus-consultum of which he speaks has not the slightest authenticity. The law for the division of the land is so closely connected with the whole fate of the plebeians, that there is every likelihood that it was already mooted in the peace on the Mons Sacer; under Cassius it is fully brought out. According to all appearance, it was carried; as the Lex agraria, down to the time of the decemvirs, is spoken of as a right of which the Plebes were in possession, but which was not kept as they were promised. Thus Cassius stands out as a remarkable man; in Cicero he is mentioned as being well known, and yet there is very little said about him.
It is historical that Sp. Cassius was executed in the following year for high treason, and that from his estate (ex Cassiana familia) a votive-gift was offered in the temple of Tellus on the Carinæ. It was probably in order to remove from this deed the appearance of crying injustice, that the tale of his having been judged by his father was invented. Dionysius already is justly startled at the fact that Cassius, who at that time had no less than thrice been invested with the consulship, should have been put to death by his father. The leges annales were indeed not yet then in force; but nevertheless it is incredible that one who had been thrice consul, and had triumphed, should have still remained under his father’s rule. Another tradition gives a milder version, which is followed by Dionysius and Cicero de Republica. The father of Sp. Cassius is said to have declared before the court that he considered his son as guilty, and on this the latter was executed. The truth is that the public accusers (Rüge Herrn), the quæstores parricidii impeach Cassius before the curies; and the curies, as the community to which he belongs, cause him to be executed. This is intelligible: he had most grievously offended his order, and therefore they are only too glad to wreak their vengeance upon him. Dionysius is perplexed with the account; Livy gets over the difficulty. According to him, it is the Plebes, which condemns Cassius, as the tribunes are envious of him:—as if these had at that time already been able to bring forward any proposition of the kind! A question which has before now been mooted by the ancients, is whether he was guilty or not. Dionysius believes him guilty; Dio Cassius holds him to have been innocent; the all-seeing God alone can decide on it. What he did was done with the clearest right; yet the same act may have sprung from the best or from the most perverse intentions, and he may either have wished to further the welfare of the state, or he may have aspired to the royal dignity. To suspect such a design twenty-five years after the expulsion of the kings, was by no means so absurd as when, seventy years later, Sp. Mælius was charged with it. Cassius was no common man, otherwise he would not in those times have been thrice consul, which was then a thing quite unheard of: no one besides had been invested so often with that dignity but P. Valerius Poplicola, and with regard to him also the Fasti are very indistinct. The manner in which Cassius concluded his leagues betokens a great soul. It is therefore quite possible that he entertained the purest intentions of wisdom and justice; for Rome’s position in consequence of the spread of the Volscians was not free from danger, and it was necessary to keep together, and to concentrate all her forces. Guilty or innocent, a great man he was, and detestable the faction which condemned him. With him his clan disappears from among the patricians. Very strange is what Dionysius says about his having had children, and that a question thereupon had risen of executing them also; but that they were spared, and ever since the children of criminals likewise. This looks like a quotation from the law books relative to the establishment of a new juridical institution; yet it may be something quite different. We shall afterwards find a son of Sp. Cassius, and in a place where we should certainly have least expected to have met with him. In all likelihood, the stern judge, L. Cassius Longinus, 640, as also the murderer of Julius Cæsar, are sprung from his stock: it is no wonder that this family went over to the Plebes. The condemnation of Sp. Cassius by a Fabius lays the foundation of that greatness of the Fabian house, of which no other instance is to be discovered in the Roman Fasti. During seven years (269-275), we always find a Fabius consul; as in the beginning of the republic the Valerii were for five years. The conclusion therefore is quite natural, that the Fabii were at that time in possession of a rightful claim, and that the second tribe, that of the Tities, was represented by them.
One of the drawbacks of a free government is the extreme difficulty of retrieving a fault which has been once committed. The efforts of rulers to amend it are rarely acknowledged by the people. An independent prince may do so without weakening his authority, and without any danger to himself. But the case is different in republics. If the people were good-natured and conscientious enough to hold out the hand of reconciliation, it would do. But it is not so. If a government wishes to make amends to those whom it has injured, the first step which these take is to revenge themselves. This must excuse the Romans who were in power,—especially if Sp. Cassius fell an innocent victim,—when they were guilty of another arbitrary act, and after his death once more changed the constitution in their own favour. The government could not now stop short; and least of all, if it was conscious of guilt. If it had let the constitution remain as it was, it had to expect, that in the free election of the centuries for the consulship the plebeians would only have allowed patricians who were like Sp. Cassius to get it. They were therefore obliged to do what Dionysius so strangely describes, when he tells us that the Plebes had withdrawn from the elections, and that these were now conducted by the principal men alone. As if under the Servian constitution any other but the principal men could ever have turned the scale! The fact is quite different. I state it as it is; the proofs I will not adduce here.
In the year after Cassius’ death, or even in the same year, when consuls were to be elected, the election was no more held by the centuries; but the senate nominated the candidates, and the curies confirmed them. Yet owing to this there arose the most violent contention between the Plebes headed by the tribunes and the consuls. For though the tribunes at that time were still confirmed by the curies, yet the wrong was so glaring, that even the meekest could not have borne it. And hence the character of the tribunate is now suddenly changed. Up to that time no traces are found of tribunician commotions. The honour of the order was too deeply wounded: on one side the agrarian law had not been carried out; on the other, unlawfully elected consuls were in power. The tribune Ti. Pontificius therefore puts a veto to the levy, on the ground that the people ought not to serve under an illegal government. The old annals would hardly have recorded his name, if his resistance had not been the first made by a tribune. The enlistment was then carried on by force, be it, that open defiance was now bidden to the tribunes, and that those who did not answer were seized and punished; or that the consuls ordered the houses of those living in the country to be set on fire, and their cattle to be driven away; or finally, that they transferred the place of enlistment from the town to the country, whither the power of the tribunes did not reach. An army being raised in this manner, the despair of the plebeians went so far that they would rather let themselves be killed by the enemy like victims, than fight in behalf of their tyrants. This fermentation lasted for two years, and at length it came to such a height, that the senate, as if by a free act of grace, consented to give up to the Plebes the election of one consul by the centuries, perhaps without a senatus-consultum. The consequence of which was, that the consul whom the centuries had chosen, met with no resistance from the plebeians; whilst, on the other hand, they in every possible way opposed the other. Meanwhile the times were so bad, the neighbouring nations also growing more and more bold against Rome, that the tribunes themselves saw, that one ought rather to put up with a wrong, than to let the commonwealth go to ruin. The Plebes therefore in the following year (272) conceded to the senate and the curies the election of one of the consuls. Yet on that occasion it must also have wrung from them the right, that the tribunes no more needed to be confirmed by the curies. Publilius could never have become a tribune, if this change had not already taken place before his law was passed. According to the traditions, there must even at that time have been as many as five tribunes.
During this period the Volscian wars continued, yet they may not have been of great importance, so that the Latins and Hernicans could by themselves make head against them. But another war weighed upon Rome alone,—that against the Veientines. Veientine wars are already mentioned under all the kings beginning with Romulus; but they are quite apocryphal. Veii, according to the latest researches, was about one German mile (5 Engl.) in circumference, as was Rome in the days of Servius Tullius. That there should have been two such large towns so near each other, almost within two or three German miles, is very remarkable: it shows how strong the opposition must have been in those times between the Latins and the Etruscans. The incidents of the war are diffusely told by Livy and Dionysius; and very prettily indeed by the former, who deemed it all to be true. A long and severe war against the Veientines may be held to be authentic. The details are found in Livy; there is nothing improbable in them, and the story of the death of Cn. Manlius, that vain attempt to elude Fate, has quite the colouring of antiquity. If the accounts of this fight be compared with those of the battle at the lake Regillus, a marked difference will be found. The many narratives of it are most likely taken from the laudations of the Fabian family, which were a tissue of repetitions, like the panegyrical λόγοι ἐπιτάφιοι. I believe that the plebeians always refused obedience to the consul elected by the patricians. The Fabii doubted also this time whether the plebeians would obey their orders; yet when the latter were filled with ardour for the fray, their co-operation decided the battle, and the Fabii were thus reconciled to them. With this reconciliation all the relations changed. Of the chiefs of the Fabii, who are mentioned as three brothers (they may have been clansmen), one had been slain; the two others who remained at the head of their house, had their eyes opened to the fact that the oligarchs had brought the state into a wretched condition. The Veientines were beaten; but the war still lasted, and although the Latins and Hernicans had been called into the field, the Volscians spread more and more. What was therefore most requisite was union. For this reason the Fabii themselves declared that the agrarian law must be granted; and in consequence from henceforth no Fabius became patrician consul, while on the other hand, the plebeians now elected Cæso Fabius, their former enemy, to be their consul. The most frightful commotion arose; the Fabii were looked upon by their own order as traitors. When their propositions are rejected, they leave the city, three hundred and six of them, and found on the Cremera a settlement of their clan and of several thousand plebeians who had joined them. This must have been a settlement of a peculiar kind; a colony it was not, as it had arisen per secessionem: it was a political emigration; for the Fabii were at feud with their order, and therefore established for themselves an abode distinct from Rome.[95] It is therefore stated that only one single Fabius, who as a child had been left sick in Rome, had remained behind. Perizonius has sifted this matter before now with able criticism, and has shown how preposterous it is, that three hundred and six strong men should all but one have been childless. This child we again meet with a few years afterwards as already consul. The probability is this, that the number 306 is not indeed symbolical; nor did it comprehend, as Livy has it, merely warriors, nay, leaders only, but the whole of the Gens Fabia engaged in the settlement, women and children included. If we take them to have been three hundred and six men able to bear arms, we should be obliged to estimate the number of the patricians at something beyond all belief. That they had a vast number of clients is not to be doubted; and the circumstance that these emigrated with them, is a remarkable evidence of the nature of the clientship.[96]
The destruction of the Fabii at the Cremera is a positive fact; but the accounts of it are different, one being poetical, and the other annalistic. According to the poetical version of the story, the Fabii, relying on the peace concluded with the Etruscans, had gone from the Cremera to Rome, in order to offer a sacrum gentilicium in the city, a rite which indeed had to be performed at Rome, and at which all the gentiles had to be present; and as they were not aware that the Veientines intended any hostility, they had marched without their arms. But the Veientines called on the allies of their race, and beset the road on which the Fabii were travelling; and these were surrounded by thousands, who did not, however, venture to attack them at close quarters, but struck them down from a distance with slings and arrows. The gentilician Sacrum is doubtless the statum sacrificium of the Fabian gens on the Quirinal, which is mentioned in the Gallic calamity.[97]
The other account is this, that the Fabii had been enticed by means of herds which were grazing in the neighbourhood, to go farther and farther; and that they had then been slain in a woodland glade by the countless host of the Etruscans. Nothing more is said about the clients; but the stronghold on the banks of the Cremera is taken by the Veientines. One might feel inclined to see some treason in this, even that the rulers of Rome had betrayed them into the hands of the Etruscans: one of the Roman consuls, T. Menenius, is said to have been near, and to have been afterwards capitally arraigned on that account. Yet this is hardly to be supposed. If the consul behaved with treachery, we can only see in it a private hatred of his own. The same consul was defeated: he fled to Rome, and the fugitives came into the town without even being able to maintain the Janiculum. The garrison of that place escaped with them; the other consul Horatius appeared just in time to ward off the greatest danger, and it was all they could do to break up the bridge. There was yet a wall, it is true, extending from the Capitol to the Aventine, which protected the city on that side of the river; but it was necessary to break up the bridge, in order to isolate the suburb. The Veientines were now masters of the whole field; they encamped on the Janiculum, crossed the river and pillaged the whole of the Roman territory on the left bank of the Tiber. This was in the midst of summer, the first of August being the period of the change of consuls, in which the new ones entered into office. The enemy had unexpectedly passed over the river on rafts; and thus the harvest may also have been to a great extent destroyed, the farm-houses burnt down, and man and beast have fallen into the hands of the enemy. The distress in the city was extreme. The Roman armies were encamped before the town, and the Veientines pressed upon them hard; on which, in despair, they resolved to venture on a piece of daring which must end either in the ruin of Rome, or in its deliverance. They crossed the river, and defeated the Etruscans; part of them stormed the Janiculum, others made an attack higher up the river. They indeed suffered an immense loss in men, but they drove off the enemy by this means. In this story, as we have remarked before, there is a striking similarity to that of the wars of Porsena. A year after, an armistice was concluded for forty years of ten months, which was also actually kept.
After these events, the importance of the tribunate manifests itself in a peculiar way. The tribunes summon the consuls of the past year before the people; not, as our writers represent it, before the Plebes, for as yet it was much too powerless to sit in judgment on the sovereign magistrates; nor even before the centuries, which also were in fact chiefly plebeian. But it was either not the tribunes at all, but on the contrary, the quæstors; or what was much more likely, a great change had taken place, so that the tribunes insisted upon the right of prosecuting the consuls before their own community, the Populus, because those whose proper duty it was, had forborne to do it. On the conviction of the defendants, which ended in a moderate fine, they proceeded to impeach the consuls, their successors. These were acquitted; but the exasperation rose higher and higher. The tribunes had brought their charge before the body of the citizens for matters which it was authorized to judge; it was majestas populi Romani imminuta re male gesta, therefore a crimen majestatis. Now they went still farther. They summoned before the body of the Plebes every one of the consuls, who had been in office since Sp. Cassius, for not having satisfied the people with regard to the lex agraria; according to the old Italian principle that when two nations were bound together by a treaty, the complaint of its breach was to be made before the injured people. It is at variance with our ideas, that any one should be judge in his own cause; yet it is every where the case among the old Italian nations, so that the Romans even held the principle of giving up to allied nations citizens who had wronged them. Of this we have instances in the giving up of Mancinus to the Numantines; of Postumius and his companions to the Samnites after the defeat of Caudium; of Fabius who had aggrieved the envoys of Apollonia. This dedition of those qui in noxa sunt is generally demanded when a rerum repetitio occurs. The Greeks did not hold this principle. There is, on the one hand, a very generous notion at the bottom of it, that the oath taken before judging the cause, would give sufficient protection; and on the other, an idea which was also entertained by the ancient Germans. With our forefathers, every member of a house was to bear witness for his clansmen when called upon to do so (consacramentales), which is based on the noble idea of faith and loyalty. A member of one’s own class one cannot judge, but only defend, a principle which, it is true, has been dreadfully abused. It is wonderful how impartial the tribunals at Rome often were. The case also became less difficult owing to the circumstance that the accused, until the passing of the sentence, was at liberty to go away from Rome, and to betake himself to some town allied by isopolity, as there were many. In Cære, for instance, one could demand to be received as a citizen. The origin of that right was in the Roman books dated as far back as T. Tatius, who refused to give up to the people of Lavinium his kinsmen, by whom they had been aggrieved; for which he was murdered. Afterwards, the Romans bring those who had wronged the Lavinians, and the latter the murderers of T. Tatius, mutually before each other’s tribunal.
A tribune of the people, Cn. Genucius, of a family already then important, had appointed the charge against the former consuls in trinundinum; and here the Plebes itself was to judge. Its right, according to the treaty solemnly sworn on the Sacred Mount, was by no means doubtful, as little indeed as the issue of the trial. The patricians, as the rage of faction was at its height, now found their readiest expedient in an atrocious crime, in the murder of Genucius; and thus the impeachment was put an end to. Dionysius justly remarks, that if the perpetrators had contented themselves with this enormity, the panic which they had spread might have sufficed. The tribunes were thoroughly alarmed: their sacred office had been violated; as their houses were to be open day and night, no precaution could guard them against such foul play, against the intrusion of disguised assassins;—the bravest man shrinks from such a danger. The assassins of Genucius were not discovered; every one was paralysed with terror. The patricians were in high glee at what they had done; and they thought to make use of the first moment of fear for levying an army, adding insult and outrage to crime. It was their intention to enlist the most illustrious plebeians, and to execute them in the field, or to let them fall a prey to the enemy. But they overshot themselves in their overbearing insolence: for in their exultation they could not wait, and they caused a distinguished plebeian, Volero Publilius, who had before been a centurion, to be summoned, and wanted to enrol him as a common soldier. Among the plebeians, as well as among the patricians, there were distinguished families, there were rich and poor: to the former class the Publilii belonged. Publilius refused; the consuls sent their lictors to drag him obtorto collo before their tribunal, to strip him, and to flog him servili modo. The toga was a very wide garment, of one piece, in the form of a semicircle, on which nothing was sewn; the Romans entirely wrapped themselves up in it. Now, if one was to be taken before the authorities, the beadles flung the ends of the toga round his head, and thus dragged him before the magistrate, often throttling him so tight about the neck that the blood flowed from his mouth and nose. A man who was thus dragged away, tried to defend himself by drawing the end of the toga to himself and pressing his arm against it, on which the lictor would take a knife, and slit the toga: he had then a place where he might lay hold on the prisoner and pull him away. This was called vestem scindere. Yet the beadles were very shy of having recourse to this means. Volero Publilius was resolute: he flung the lictors aside, threw himself among the Plebes, and called upon the tribunes for help. The tribunes were silent. Then he turned to those of his own order, and a crowd collected fast, and easily kept the lictors at bay. The young patricians hastened to the spot, and an affray took place, in which the tyrants after a short time were driven from the forum. The day after, the consuls again attempted to make a levy with equally bad success; and they were obliged to give it up for the whole of the year: the murder of Genucius had made matters much worse. In the following year, Volero Publilius was elected tribune; a proof that the confirmation by the curies was no more requisite.
An ordinary man would have brought the consuls of the bygone year before the tribunal of the Plebes; yet this would have been but a pitiful revenge. Publilius considered that the thorough exasperation of the commonalty might be made use of to gain permanent rights for it; and for this reason, contrary to the general expectation, he took a step which he ought not to have taken, but which became the beginning of a new order of things. He promulgated an address to the people, declaring that they had a right to deliberate on matters of state at the motion of the tribune; and, moreover, that the tribunes ought no longer to be elected by the centuries, but by the tribes. In these rogations, which are much more explicitly given in Dionysius and Dio Cassius (in the abstract of Zonaras), we only miss one circumstance, which was that such resolutions of the tribes were to be confirmed by the senate and the curies; for it could not possibly be, that the Lex Publilia should already put forth the claims of the Lex Hortensia. But this is evident from the examples themselves.
This was now the order of business. The tribunes made their proposals of laws on a market-day. For, the people, Populus as well as Plebes, could not legally transact business on every day; the curies and the centuries only on the dies comitiales; the tribes only on the nundina; by the Lex Hortensia, it was first allowed to assemble also the centuries on the nundines. The special expressions are, populus jubet, plebs sciscit; but it was never said, plebs jubet, or populiscitum. The Plebes in former times assembled in the Forum, afterwards in the Area Capitolina: the Populus in the Comitium, or in a grove outside the Pomœrium, the Æsculetum or Lucus Petelinus. In the concilium plebis, they voted tabellis; in the concilium of the curies, viva voce. In the concilium populi, no previous notice needed to be given. Nothing could be taken to the Plebes direct from the senate; the latter could only commission the consuls to confer with the tribunes about any thing: the curies on the other hand could do no business without a senatus-consultum, and in their assemblies nothing could be brought forward without a curule magistrate or an interrex: in the assemblies of the Plebes these did not even dare to show themselves.[98] If the tribunes wished to propose a law for deliberation to the commons, they set it up in the forum in albo, in trinundinum, that is to say, to be decided upon after fifteen days, the first nundines being included with them. A concio advocata could take place at any time: the forum was full every day; the tribune might mount the rostra and harangue the people, and also allow others to speak, especially those who wished to make themselves heard against his proposal (edocere plebem). Yet this deliberation is only a preliminary, not a decisive one; as when, for instance, the English Parliament goes into committee, or the French Chambers deliberate in the bureaux: different from it is that which takes place on the day of voting. Every resolution, as well of the Populus as of the Plebes, was to be carried before sunset; otherwise the day was lost. Auspices were valid for the Plebes only in later times; as for the Populus, a flash of lightning, or a similar phenomenon, broke up the assembly (dies diffisus). If the tribune had announced the rogation in albo fifteen days before the decisive debate came on, we generally imagine the affair to have been more tumultuous than it was. People assembled early in the morning; the discussion lasted the whole day; one after another stood up to speak for and against; the opponents tried eximere diem, that the measure might not be passed before sunset; the sunset was seen from the steps of the Curia Hostilia,[99] and the suprema tempestas proclaimed. The tribune had now to wait again eight days, and to make a fresh announcement in trinum nundinum. This form must have been used from the very earliest times in all the resolutions of the Plebes; for plebiscita[100] there have been as long as the Plebes existed. But if, on the contrary, one wished to go to the vote, the discussion was then closed, and the tribune bade the patricians and the clients withdraw. The rostra stood between the comitium and the forum, and to the former the Populus retired. Hereupon ropes were drawn dividing the forum into a certain number of squares; into each of these a tribe entered, and every tribe then voted by itself under the direction of its tribune. When it was now settled that such a resolution was passed by the tribes, the patricians by law might throw it out, just as the Upper House and the King may a bill of the Lower One; yet if the latter is earnestly and decidedly bent upon having it carried, its rejection would be quite impossible, as it would give the signal for the dissolution of the state. They did not wish things to go so far; they therefore tried to defeat a motion of this kind before hand. Yet what was gained by its having miscarried to-day, when it might again be brought forward on the morrow? A very great deal; in fact, three weeks’ time, within which perhaps a war might arise, which would prevent it all. Nay, they might drag it on through a whole year; only the evil in that case grew worse and worse, and the struggle yet fiercer. This is the folly of all oligarchs, which they continually repeat. The patricians were so infatuated as not to see, that, if they gained over a sufficiently strong party in the Plebes itself against the measure, it would to all intents and purposes be the same as if the resolution had been actually carried, and then rejected; and yet that odium would not be excited. In the end, the patricians never show the courage of letting matters come to a crisis; but they yield with an ill grace, reserving to themselves their old rights, from which they will never abate unless driven to it by sheer force.
The great importance of the Publilian law is this, that the tribunes now obtain the initiative. Hitherto it had entirely depended upon the senate and the patricians whether a law should be discussed or not. The consul first made a motion in the senate; the latter decided on it, and then it came to the curies, or to the curies and centuries. But if the tribunes were now free to propose a matter for debate in their own community, they could by this means generally bring any subject to discussion which needed it. There were points, many of them of the highest importance, which urgently required change, and, but for the Publilian rogation, never could have been mooted in a legal manner. The Publilian laws were therefore beneficial, and yet I do not at all blame the then holders of power for not acknowledging this: the fury only with which they opposed them, was as blameable as it was ruinous. By the manner of their resistance, the charge of illegality in point of form, under which indeed the proposals of Publilius lay, was thrown on the opposite side. The senate needed not have deliberated at all in such a plebiscitum; yet when the tribunes requested the Populus to leave the Forum, the patricians refused to withdraw, and, spreading with their clients over the whole of the forum, so that the plebeians could not come to give their votes, they drove away the beadles who carried the urns, threw out the voting tablets, and did many other things of the same kind. When this had been tried more than once, there was at last a fight, in which the patricians and their consul Appius Claudius were driven from the market-place. The consequence of this was a general panic among the patricians. Yet matters did not stop there, but the Plebes put themselves in possession of the Capitol, though without abusing their victory; for, the oppressed party frequently restrains itself after having conquered: they only needed their victory that they might carry their resolutions. Although Appius even now exerted all his influence to make the senate withhold its sanction, yet the senators saw the danger too well, and assented to the law. Livy refers this law merely to the election of the tribunes; Dionysius and Dio Cassius in Zonaras contain the more correct view. Livy, however, at the conclusion of his narrative, in touching upon some points, presupposes all the rest.
If the patricians had been wise, they ought to have been rejoiced at the result; at least, nobody could have deemed it to be a misfortune. From such a law it is not possible to retrograde; but instead of seeing this, the patricians were ever trying to undo what had been done, and to take revenge. The plebeians still continued to refuse obedience to the consul whom they had not elected. This was the plight in which Appius Claudius found himself, when he led an army against the Volscians. He began on the march ruthlessly to punish the soldiers for the most trifling offences,—to torture them—even, as Dionysius from old traditions very credibly relates. The plebeians opposed to him a dogged resistance, and let themselves rather be punished, than obey him. Immediately before the battle they resolved upon flight, and they fled into the camp, although the Volscians did not the less for this pursue and slay them: they even left the camp, and did not stop until they had reached the Roman territory. On this, Appius now did what might seem to us incredible, if it were not accounted for by the influence of the allies, the Hernicans and Latins, who were under his command. He decimated the army, and led the decimated troops back to Rome. For this he was impeached the year after by the tribunes before the Plebes. Livy’s masterly narrative of it we may consider as derived from an actual eye-witness of the event. Appius displays the greatest insolence and pride before the Plebes, disdaining to soothe it by prayers; even the tribunes allow themselves to be overawed by him. The two historians agree in stating that the tribunes granted him a respite that he might die by his own hand; and that he made use of it before the dawn of the following day, to save himself from a shameful death.
Hereupon the home dissensions are at rest for a while, and the foreign wars acquire considerable importance.