Roman Public Life

by A. H. J. Greenidge

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

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

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

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

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

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

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

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

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