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.