The Volscians are an Ausonian people, identical with Auruncians. They are said to have come from Campania; yet we know of the Auruncians in Campania that they were Ausonians: Aurunici and Ausonici are the same. Cora and Pometia, Latin colonies, are stated to have gone over to them. They must in that case have driven out the Latin colonists, or it was simply a conquest. This is a point which we cannot decide. But certain it is that the Auruncians were in possession of Cora and Pometia, and advanced as far as into Latium; perhaps they may have been defeated there by the Romans.
SECESSION OF THE PLEBES. LAW OF DEBTORS. INSTITUTION OF THE TRIBUNATE.
Sallust, who, like Thucydides, had prefixed to his history of the times after Sylla, which, alas! is lost, a succinct review of the moral and political history of his nation, preserved to us by St. Augustine, tells us in it, that no longer than the fear of Tarquin lasted, had Rome been governed with fairness and justice; but that, as soon as that fear had been removed, the Patres[89] had ventured upon every sort of arbitrary deeds, and from the severity of the law of usury the Plebes was kept under a yoke of slavery. Livy says likewise, that the Plebes was oppressed, cui summa opera inservitum erat until the ruin of the Tarquins. Until then, salt, which belonged to the publicum, had been sold at a low price; customs had been abolished; the demesnes of the kings had been distributed among the Plebes; and the φιλάνθρωπα δίκαια of Servius Tullius were again enforced. Finally, the old account states that Brutus had filled up the senate, qui imminutus erat, with plebeians. As he was the Tribunus Celerum of the plebeians, and afterwards plebeian consul, he may without doubt have admitted plebeians into the senate, although not in such considerable numbers as is asserted. But this did not last. Plebeian senators cannot have continued to the time of the legislation of the decemvirs; but from what Sallust says, who in the speech of Macer displays an uncommon acquaintance with the old constitution,—and St. Augustine, one of the greatest minds, a man endowed with the clearest penetration, believed him,—that the patricians soli in imperio habitabant, it is evident, that, when tranquillity was restored, they again excluded the plebeians. There are analogous cases in all states, precisely because it is in human nature. Without doubt the banished royal family had left a considerable party behind them, as is wont to happen in all revolutions; or a new one arose, which attached itself to the cause of the refugees, as was the case in the Italian towns of the middle ages. We may think what we like of the battle on the Regillus; we may deem the cohort of the Roman emigrants in the army of the Latins as improbable as it really is; yet we may with certainty believe in the existence of an emigration from Rome in a mass, linked to the royal fugitives, and always keeping up a connexion with the friendly party in the city,—like the φυγάδες in Greece, and as in English history, at the time of the great rebellion when the Stuarts were abroad, the Irish Papists and the Scotch Presbyterians, who were overpowered, and partly driven out of the country by Cromwell, joined the old cavaliers then living away from their homes with the royal family. The same was the case in the French revolution. As long as Tarquin, a man of personal eminence, was living abroad, the patricians hesitated to carry their innovations to extremities; yet they may have annoyed the plebeians; they may have deprived them of the imperia; they may even have expelled them from the senate;—at least they certainly did not fill up the places of those who died, with plebeians. Whenever in Switzerland danger threatened from abroad, the aristocratical cantons were mild to their country districts; otherwise they were harsh and cruel. Immediately after the English revolution of 1688, the liberties of the dissenters were far greater than they were twelve or fifteen years afterwards. What the plebeians lost, cannot be particularized. That the Valerian law of appeal to the tribes had been done away with is not likely; but it was no longer regarded, since it could only be upheld by impeaching the consul who had infringed it, when his year of office was expired: this the plebeian magistrates no more dared to do. Yet the real oppression only began when the fear of the foreigner was taken away.
Whether the law of debt had been changed by Servius Tullius, and Tarquin had abrogated the Servian laws, but Valerius had restored them, is a question with regard to which Dionysius is not to be implicitly believed. Tarquin is said to have utterly destroyed the tablets on which it was inscribed, that he might quite blot it out from the memory of men. This looks very suspicious: they needed only to have been copied once, and all that was done would be of no avail. We may however conclude from that statement that they were not contained in the jus Papirianum: the Plebes would have restored them after the Secession, if they had been deprived of a right so expressly granted. In this case, therefore, one of the plebeian forgeries seems to lie before us.
The law of debt produced a revolution. Had the senate and the patricians understood how to act wisely, and divided the opposite party, a thing so easily done in free states, the patricians were superior to the plebeians, not indeed in numbers, but in many other respects. For the patricians had almost exclusively the clientship. Livy and Dionysius have many passages from which it is evident how numerous the clients were during the first centuries; that the patricians distributed the demesne in many little hides of land among them; and that they kept them entirely in their power. These clients were not in the tribes; but they were connected through their patrons with the curies: hereditary landed property they only possessed by the special permission of their masters, what we would now call a quit rent. Thus they were absolutely dependent on the patricians. But the plebeians consisted of altogether different elements, of Latin knights, rich men, and a host of quite poor people: they were either proprietors or day-labourers. These different elements might very easily have been divided; the principal men were ambitious of offices and of political consideration; the common people, on the contrary, did not care at all whether their chiefs were admissible to consular dignity or not, but so much the more did they for other things. In the absence of patriotism and justice, the patricians must have been able easily to sever the mass from the principal plebeians. But they were as covetous as they were ambitious, and thus pressed doubly upon the people. The whole of the demesne was in their occupation. Had they assigned small possessions to the poor, or given them a right of ownership, then they would have gained them over; and separated them from the rest. Yet as they had the money trade entirely in their own hands, they deemed themselves sufficiently secure. The money trade no doubt was so managed, that the banking business was transacted by foreigners or freedmen under the patronage of a patrician, as in Athens by Pasion, who was a Metic, and paid an Athenian for lending his name to the firm.[90] As in Athens the Trapezitæ, in medieval Italy the Lombards, in our days the Jews, all of whom have no real home, carry on the money trade. And thus the poor plebeian often applied for loans to his neighbour, yet more generally he was obliged to go to town, and to fetch the money from the Trapezitæ.
The expression persona in law is derived from the fact that a foreigner could not appear in court. It is a mask: another had to represent him. That the peregrinus afterwards could himself sue and be sued, and that a special prætor peregrinus was appointed, was not done on account of the vast amount of business, but for political reasons. The patricians themselves would not have possessed such great moneyed resources: yet the foreigners who came to Rome had to commit themselves to their patronage, the same as the clients, for which, of course, the patrician was paid a commission. Now and then perhaps the patricians may have done business on their own account. Taken in this point of view, it was not after all such a sordid usury as is generally presumed.
The patricians and plebeians had quite different civil rights, as they had come together out of different states: the twelve tables, besides settling the political groundwork, first introduced one uniform civil law. Among our (German) forefathers also, there was not a geographical, but a personal distinction of rights. In Italy, the homebred population down to the twelfth century had Roman, whilst the German had Lombard and Salic law; but when the old municipalities were abolished and the elements of society were in the process of amalgamation, people first began to issue their decrees in common, they weaned themselves more and more from the old native institutions, and thus by degrees arose the statute law of the Italian towns, such as every city possesses. The patricians had a liberal law of debt, the plebeians a strict one; they had it also among themselves, but to them it only became dangerous as far as it was between them and the patricians. As soon as it is possible to run into debt, the number of small proprietors decreases from century to century. If we compare the division of the land at Tivoli in the fifteenth century with the present one, we see that at that time there were fifty times more owners of the soil than there are now.
The general law of debt, as it is found in the East, among the Greeks, among the northern nations, as well as among the Romans, is this, that the borrower could pledge himself and his family for the debt. According to Plutarch, in his life of Solon, there were at Athens nearly a thousand bondmen for debt, who, if they were not able to pay, were sold to the foreigner. Among the Romans personal arrest existed in its sternest form. People either liquidated their debts by personal servitude, or else they alienated their property for a certain time, or in case of severe distress for life, or else they also sold themselves,—by which likewise the children, who were still in patria potestate, came per æs et libram into the mancipium of the buyer,—yet with the condition that they might be redeemed. This bondage lasted until they emancipated themselves again per æs et libram. Our personal arrest of insolvent debtors is the still remaining half of this ancient right, which ceases to have any meaning, owing to the other half having been done away with by milder manners. The German also could in olden times give up his freehold and his person to another, whose bondman he then became. In order to escape the addiction, the borrower could eventually sell his property as a security; yet he was bound in conscience to redeem it after a certain time. The Fides answered for it that the creditor also would not withhold from the debtor the opportunity of redeeming himself, even when his person and his family were concerned. For this reason the Fides was a goddess of such importance among the Romans: as under such strict forms of law, people would have utterly been ruined without her. If a debtor did not discharge his debt, he was forfeited to his creditor, being fiduciarius in his mancipium; yet the latter could not directly manum injicere, an addiction of the prætor being wanted for that purpose. He had to in jure vindicare him with the words, Hunc ego hominem meum esse aio ex jure Quiritium; and without doubt the five witnesses and the libripens, before whom the contract had been concluded, were to be present. The prætor then gave a respite; and if after its expiration payment was not made, and the debtor therefore was not able to prove the liberatio per æs et libram, the ὑπερήμενος was addicted to the creditor. In the old Attic law, it was just the same; yet Solon had without doubt abolished it, and introduced in its stead the Attic law of mortgage, from which the later Roman one is derived. For the equites in their important money transactions tried to evade the strict debtor’s law, by causing them to be managed by foreigners who were not subject to the Roman laws. Thence arose the laws concerning the chirographa and centesima, a discount business for so short a date was not done in Rome at all. The Addictus was termed nexus, because of his being nexu vinctus. Nexus, or nexum every transaction was originally called, which by traditio and by weighing out of money was done in the presence of witnesses, a thing afterwards usual only in fictitious sales, and then significative of a right of mortgage, by which in case of neglect of payment a definite right of property was secured to the creditor. Frequently also people were allowed to discharge their debt by work. An industrious workman might advantageously dispose of his labour in times when there was a great demand for it; if, for instance, a man, who had pledged himself, had a son who was still in his full strength; the father sold him to the creditor; and when the son had discharged the debt by his work, he became again free of the mancipium of his master. Yet the interest accumulated at such a usurious rate, that it became very difficult for a debtor who was poor to redeem himself; though, if he worked as a nexus, he at least paid the interest. During such a period of labour the master had full authority over him as over a slave. That those who thus worked in payment of debts were a numerous class, is expressly asserted by writers.
But there was yet another way in which bondage for debt arose. One might also become a debtor without contract; as for instance, by neglecting to pay a legacy, or should a tradesman work for me, and I do not pay him; and again, if I commit a crime, I am bound in Roman law to make amends to the injured party according to a fixed estimate, obligatio ex delicto. All these relations constitute a second class of liabilities, and in these cases there was addiction without nexus, as was laid down in the twelve tables. The prætor sentences the thief to give me double what he has stolen; and if the man does not pay it by the appointed day, he addicts him to me as a bondman for debt. In the same manner, if I sue any one for a purchase and he cannot deny the debt (æs confessum), I demand his addictio for a certain time. This was a vinculum fidei, an intimidation, so that the debtor, of course, strained every nerve to pay. To this only did the expression vinculum fidei refer, not to the nexum; as vindication was here allowed, and there was no question about the fulfilment of a contract. When a Roman was in nexu, having sold himself to another in the event of his not paying, as the Merchant of Venice did to Shylock, he had to pay the taxes on his freehold all the same, however heavily incumbered it might be; for nexo solutoque idem jus esto, was the law of the twelve tables. But quite different is the case of the addictus, who is the creditor’s own, and has no personal rights. Thus we have the solution of the enigma in the accounts given in our books, that debtors who had sold themselves (that is to say, nexi) served notwithstanding in the legions.[91] Livy does not enter into this subject, because he was not conscious of the difficulty: Dionysius indeed remarks it, but he is embarrassed by it.
In a certain measure, this system was just as necessary as our strict rules of exchange; yet its abuse was unavoidable, as the rich man is not always kind-hearted, but is often harsh, and will abide by the law in its utmost rigour. This idolizing of mammon reigned in Rome, and the tyranny of positive law was often very oppressive. Besides which, the right was all on one side. When a patrician got into difficulties, his kinsmen or dependants had to get him out of them; the plebeians were forced in most cases to borrow money from the patricians. Now the fate of an addicted plebeian was one in which there might be much variety. He might find a mild master who allowed him to buy his freedom by work, or else a hard one who would shut him up in the ergastulum, put him in chains, and treat him cruelly, that his friends might be obliged to pay for his release.