Until then the patricians had indeed claimed for themselves the privilege of not being liable to be imprisoned at all; for we are told that Appius Claudius had called the Carcer the domicilium plebis. Virginius showed himself generous, and granted to Appius a respite that he might deprive himself of life. Yet Sp. Oppius was executed, because his crime was of another kind, and not merely against an individual who might act with mildness. For that he had ordered an old soldier, who had served twenty-seven years, to be scourged; and that the man had come forward as his prosecutor, is evidently a fiction. Twenty-eight years was the time of effective service for a soldier; and here an old soldier is now brought in, who was in the last year of his military obligation, evidently as a general representation of tyranny. The other decemvirs went into voluntary exile, and their goods were confiscated. One of them was Q. Fabius, the ancestor of what was afterwards the Gens Fabia. The tribune Duilius now proclaimed an amnesty for all those who had committed any offence in this unfortunate time. This incident is of great importance for the history of the Roman method of procedure. I have already, on a former occasion, explicitly stated my opinion about it; but since the discovery of Gaius, the case has become much clearer.
LEX HORATIA VALERIA. FURTHER CHANGES IN THE CONSTITUTION. MILITARY TRIBUNATE. CENSORSHIP. SP. MÆLIUS. VICTORY OF A. POSTUMIUS TUBERTUS OVER THE VOLSCIANS AND ÆQUIANS. CONQUEST OF FIDENÆ AND VEII.
At first the patricians were in great dismay, and they confirmed all the laws proposed. Among them is that which gave the plebiscita general validity (ut quod tributim plebes jussisset populum teneret). This law is one of the greatest riddles in Roman history; and it cannot be solved with any historical certainty, although I have formed for myself an hypothesis on the subject, of the truth of which I am perfectly convinced. The law is thus given in Livy; afterwards in the eighth book he says of the second Publilian law, ut plebiscita omnes Quirites tenerent; and in like manner, Pliny and Lælius Felix in Gellius quote the law of Hortensius which is to be placed a hundred and sixty years later; Gaius says concerning the latter, ut plebiscita populum tenerent. When we now consider these three laws,—as to the Publilian, Livy alone mentions it,—they seem all of them to say the same thing. Is this really the case; or was the enactment only revived from time to time, because of its having fallen into oblivion? If we investigate the character of these laws according to their several ages, we see that the meaning of each was a distinct one, and that the import of the plebiscita was differently interpreted at different periods. The result of my researches is this, that Livy in his mention of the lex Valeria Horatia, was certainly not accurate, because he did not himself clearly see his way, and the generally known Hortensian law was present to his mind. The law may have been something to this effect,—quæ plebs tributim jusserit, QUARUM RERUM PATRES AUCTORES FACTI SINT, ut populum tenerent; for, from that time the course of the legislation was frequently this, that when the tribunes had gotten a proposition adopted by the commonalty, they laid it before the curies, who immediately put it to the vote; which was an abridgment of the proper order of business, according to which the laws approved by the senate had first to go to the centuries, and then only to the curies. In the new system, the asking the leave of the senate and the passing through the centuries were done away with. This was a great change, as now the discussion might originate with the Plebes itself. That, however, the plebiscita without the approval of the curies had no legal force, is evident, especially from the struggle on the occasion of the Licinian laws; wherefore at that time already, leges may be spoken of with reference to the resolutions of the Plebes, for as soon as the curies had sanctioned them, they were leges. Whenever the Plebes and the curies were not kept asunder by class-interests, every matter was carried. It is also to be borne in mind, that this law was enacted, not by a tribunician, but by a consular rogation. The lex Publilia had been rendered superfluous by the decemviral legislation, as in this there were no comitia tributa.
The later Publilian law of the dictator Q. Publilius Philo, has quite a different intention. By it the sanction of the curies to a resolution which had been carried in the tribes, was declared superfluous, as this course was too circuitous, and the senate after all had the right of proposing. His law, ut plebiscita omnem populum tenerent, must on the other hand run thus,—ut plebiscita QUÆ SENATU AUCTORE FACTA SINT, omnes Quirites tenerent; for from henceforth it happens with regard to many enactments concerning the administration, that the senate commissions the consuls to arrange with the tribunes about making proposals to the tribes which they were to approve of; yet this was only with reference to administrative ordinances (ψηφίσματα), (for instance, whether an extraordinary imperium should be given to any one), and not to legislative ones (νόμοι). This was a useful simplification: on certain days only, from religious reasons, might the curies and centuries be convoked; the tribes on the contrary might assemble, and did assemble, every day, they were not restricted by the dies nefasti. People saw more and more that the form of general assemblies was a mere semblance, and too much depending on accident: it is but fancy to think of votes being the expression of personal will; impulse, the force of example, does every thing. Clearer and clearer became the conviction, that the more the state increased, the more necessary it was to have a settled government; and thus what the Romans had to do, was to find out forms, which might check the arbitrary sway of the men in power, and secure publicity. In this especially the Romans differ from the Greeks, that they confidently gave themselves up to the personal guidance of individuals, which was never the case at Athens.
Lastly, the Hortensian law again has quite a different object. It establishes a true democracy, inasmuch as it lays down the rule that in legislative measures,—for with regard to administrative ones, the second Publilian law remained in force,—a previous resolution of the senate was not necessary, but the Plebes could pass any decree: at the same time, the power of the curies was taken away. This is a decided victory of the democracy. The administrative measures were decrees for particular cases, nor could any thing of this kind be brought before the Plebes without a previous resolution of the senate, even so late as the end of the sixth century (570); but for actual laws the resolution of the Plebes was sufficient. By this means, the older body of citizens lost its power of regeneration, the equilibrium was destroyed, and the scale was turned in favour of the democratic side. The curies were bound already by the lex Publilia of the year 417, before a convocation of the centuries to declare after a certain form that they sanctioned whatever was going to be decreed. It was a misfortune for the state that the curies did not regenerate themselves; yet as long as the resolutions were still made in the centuries, this mattered nothing. But by the lex Hortensia, by which the whole weight was given to the tribes, all the wholesome relations between the different elements of the state were broken, and the balance utterly destroyed. In the first stage therefore, the plebiscita are mere bye-laws which have no reference to general affairs; for instance, resolutions at the death of a person of consequence concerning his burial, &c., or a poll tax. In the second, by virtue of the older Publilian law, the Plebes declared itself competent to pass resolutions on general affairs, which were, however, to be taken into consideration by the consul, to be laid before the senate, and by the latter to be brought before the centuries and curies. In the third stage, according to the Valerian law, a plebiscitum was just as valid as a resolution of the centuries: it went at once to the curies, and received their sanction. And fourthly, by the later Publilian law, the plebiscita could do for the confirmation of resolutions of the senate which, in pressing circumstances, when one could not wait for the next dies comitialis, were brought by the consul to the tribunes. It was sufficient that the tribunes proclaimed a concilium: the dies nefasti only affected curule magistrates and the Populus. For instance, let us suppose that an army was in the field at the conclusion of the year, and that a decree of the senate had first to be brought to the centuries, and then to be ratified by the curies; in such a case a shorter course was taken. The consuls were ordered ut cum tribunis plebis agerent, quam primum fieri posset ad plebem ferrent. This does not occur before the Publilian law. Lastly and fifthly, by the lex Hortensia the Plebes took upon itself the authority for an independent and inherent legislation.
The consuls now took the field against the Æquians and Sabines, and returned after splendid victories, having also probably concluded a lasting peace with the Sabines. The patricians had in the meanwhile again taken courage, and those men of their order, who in the general confusion had sincerely wished for the best, were now the object of their hatred; and therefore the senate refused them a triumph on their return. Now for the first time the paramount power of the tribunes was displayed. They stepped in, and granted the triumph on their own responsibility: their legal authority for doing so may fairly be called in question. The consuls accepted the triumph; if they had been disturbed in it the tribunes would have assisted them. This incident shows what exasperation then filled men’s minds. In the following year, it rose to such a height that, as we are told by Livy, the heads of the patricians assembled and discussed the proposal to rid themselves of their antagonists by a massacre: but this mad design was not carried out.
The events which now take place are shrouded in darkness; the piety of posterity has thrown a veil over them. People had emerged from the irksome tranquillity of the decemvirate; but the constitution had not yet recovered its equilibrium, and there was still a contest for the possession of the government. The plebeians either wished the consulship to be divided between the two orders, or the form of the decemviral rule to be restored. The next year, the patricians showed themselves somewhat more yielding. The criminal judges, until then a patrician magistracy, were for the first time elected by the centuries; the choice fell upon the two consuls of the last year, Valerius and Horatius, which was certainly not accidental. Many of the ancients are mistaken with regard to this point; for instance, Tacitus, Plutarch, even Ulpian, but not so Gaius. There were in fact two kinds of quæstors, the public accusers (Quæstores parricidii), who impeached political offenders before the curies, and the six Quæstores Classici, who in works on antiquities are all along confounded with the former: Tacitus refers to the latter what ought to be referred to the former. He says that the quæstors had formerly been chosen by the kings, and then by the consuls, as was evident from a lex curiata of Brutus. But this law Tacitus cannot possibly have seen; for the Quæstores parricidii are synonymous with the Duumviri perduellionis, and it is these who were always elected by the curies, or rather by the Ramnes and Tities whom they represented. That Poplicola caused also the Treasurers to be elected, is possible; but the two, who were formerly elected by the curies, and now, as Tacitus says, sixty-three years after the expulsion of the kings, and consequently in the second year after the abolition of the decemvirate, by the centuries, were the old Quæstores parricidii, who continued until they were changed into the Ædiles Curules. Nine tribunes then made the proposal to leave the offices of censor and quæstor to the patricians, and, either to divide the consulship, or to introduce military tribunes with consular power; one only of their colleagues was of a different opinion. Perhaps to this is to be referred the incident mentioned before, that the Populus had once condemned nine tribunes to be burned alive, and that a traitor among the tribunes, P. Mucius, had ensured the carrying out of this sentence. Without doubt the Populus means the curies, who had again usurped this power. Among the nine tribunes was probably a son or grandson of Sp. Cassius, who had renounced his order, and perished in the attempt to revenge his father.
It was the general wish to re-elect the consuls and tribunes; the consuls declined it, and Duilius, who had been delegated by his colleagues to represent them, refused in the name of the tribunate also to accept any votes. This had evil consequences. A division was caused, and the tribunes who wished to remain in office, had indeed so much influence upon their partisans, that they abstained from voting; so that five tribunes only were elected, who had themselves to elect their colleagues. It is stated that they likewise elected two patricians, which is a proof in favour of our assertion that the tribes had acquired a double character, that is, that they also become a general national division.
A remarkable change which dates from this time, is the repeal of the prohibition of intermarriage between patricians and plebeians. This prohibition, as we know, had been sanctioned by usage since the very earliest times, and had been first made an enactment in the twelve tables only; such a custom generally first becomes galling by being received among the written laws; and thus the storm was raised from which the plebiscitum Canuleium sprang. This is usually considered as a great victory of the plebeians: the patricians, so it is said, at last yielded it in compensation for other rights which they reserved to themselves; Livy looks upon it as a degradation of the ruling order. If we take the matter as it really was, it is evident that the existence of such a prohibition did harm to no one more than to the patricians themselves. Mixed marriages from both orders must surely have been common at all times, and they were binding in conscience; yet the son of a patrician-plebeian marriage never had any gentilician rights, and was counted among the plebeians; the consequence of which was that the patricians were fast dwindling away. Wherever the nobles are limited to marriages within their own class, their order becomes quite powerless in the course of time. Rehberg mentions, that of the members of the States of the duchy of Bremen, in whose case sixteen quarters were required, one-third had become extinct within fifty years. If the plebeians had meant mischief against the patricians, they ought to have insisted with all their might upon the prohibition of intermarriage being kept up: but for the Canuleian law, the patricians would have lost their position in the state a hundred years sooner. We do not know, whether the thing was granted as a favour to the patricians or the plebeians; this is one of those cases in which no probable hypothesis can be formed; even absurdity is sometimes quite possible.
Afterwards there appear for once three military tribunes instead of the consuls. Dionysius says that it had been resolved to satisfy the Plebes by the institution of military tribunes, three of whom were to be patricians and three plebeians. But there were only three, one of whom was a plebeian. Livy foolishly takes them all for patricians; he thinks that the plebeians had wanted indeed to possess the right, yet that afterwards they had looked upon themselves as unworthy of exercising it, and had elected patricians only. He speaks of the plebeians as if they had been unutterably stupid. This is the confused notion of a man who with all his genius was, after all, no more than a rhetorician. What is most likely, is that it was agreed upon to drop the name of consul altogether, as the two orders were indeed no longer distinct, and to leave the elections free and open to both parties; but that in the meanwhile all sorts of artifices were nevertheless employed to turn the scale in favour of the patricians. In the earlier times, for instance, the clients of the patricians were not in the tribes; like the patricians, they had to withdraw when the voting began; and whoever was not in the tribes, was either not in the centuries at all, or voted in them only with the craftsmen and the capite censi. Yet from henceforth every mention of cases in which Plebes and clients were opposed, entirely ceases; and this ought to lead us to observe how trustworthy our accounts are. Could a forger of a later age have so accurately discriminated between the positions as implied by the law? A fabulist is always an unlearned man, and even a learned one would have made here some mistake. The clients now appear in the tribes, and therefore in the centuries likewise, as is expressly mentioned, and as we may also partly see from the circumstances themselves. The discussions of the Plebes now take quite a different character; they lose all their violence, the struggle of two hostile masses against each other, is at once entirely at an end. The checks which the plebeians meet with in the elections, &c., arise no more from any resistance from without, but they are from within the body itself. Whilst formerly the boards of the tribunes showed themselves unanimous, they are now divided; some of the members are even in the interest of the senate, and only single tribunes yet make such motions as those which formerly proceeded from the whole college. These are proofs of the fusion of the orders having been completed.