The military tribunate had been considered as a sort of compromise. Among the first were, according to Livy, L. Atilius Longus and T. Cæcilius.[107] For the latter, Dionysius in the eleventh book has Clœlius. We cannot decide in this question, the readings in the eleventh book being all of them of very recent date. If it is Cæcilius, there were two plebeians among their number; and this would account for the violence with which the patricians insisted upon doing away with the military tribunate.
In the same year as the military tribunate (311), the censorship seems to have been instituted. There must have been therefore a common motive for both, which Livy does not see: and the circumstance that the first censors are not found as consuls either in the Fasti or in the libri magistratum, but only in one of the libri lintei, may be accounted for by supposing that the censors were already elected in conformity with the laws of the twelve tables; and that when the patricians by their violent commotions were carrying every thing with a high hand, these magistrates who were neither consuls nor military tribunes,—a fact of which we have only a trace,—acted as consuls, and thus concluded the peace with the Ardeates. Livy could not explain this to himself, nor could Macer have done it. Strange indeed is what Livy mentions, that the military tribunes had been obliged to abdicate because of the tabernaculum vitio captum; and that T. Quinctius as Interrex (or rather, perhaps, as dictator) had chosen the two consuls, L. Papirius Magillanus and L. Sempronius Atratinus, whose names were not, however, recorded in the Fasti. Nevertheless he relates the thing as certain. It is still more strange that in the following year he says of these first censors, that in order to indemnify those quorum de consulatu dubitabatur, ut eo magistratu parum solidum magistratum explerent, they had been elected censors; as if in 312 there could have been any doubt as to what had happened in 311. In the very same way, Livy in the second Punic war mistakes a certain Heraclitus for the philosopher of that name.
As to the nature of these military tribunes, their magistracy is for us a subject of considerable obscurity.[108] Livy says of them, eos juribus et insignibus consularibus usos esse, and they are also called tribuni militares consulari potestate; but Dio Cassius, that acute observer, who himself had sat in the curule chair, says that the military tribunes were inferior to the consuls, and that not one of them had ever been granted a triumph, though many had performed deeds which were worthy of it. This is in perfect accordance with history. We also find that a consul was never appointed Magister Equitum, but that the military tribunes certainly were. From this it seems to be evident that the military tribunes were no magistratus curules, that is to say, none of those magistrates, as Gellius explains it, who were allowed to make use of a carriage (thus we have Juno Curulis, whose image was carried on a car). The consuls drove in carriages to the Curia; the full triumph was termed triumphus curulis, according to the Monumentum Ancyranum on which the number of the triumphi curules of Augustus is given; different from this is the Ovatio.[109]—Moreover, the military tribunes never had any jurisdiction; but originally the censors, and afterwards the Præfectus Urbi had one, the latter probably holding likewise the presidency in the senate. This magistracy also had been abolished by the decemviral legislation; but it now again makes its appearance. The consular power was weakened in this manner, and so it was afterwards by the Licinian law; for when at that time the consulship was divided between patricians and plebeians, the prætorship was separated from it, and established as a distinct magistracy. We may understand how it was, that the plebeians preferred the election of military tribunes, even when they were not taken from their own order: their power was at all events less. According to Livy’s account, it was the senate which decided in every instance, whether consuls or military tribunes were to be elected: it is more probable that it was the curies which determined it. The mistake may have been occasioned by the ambiguous word patres. The military tribunate is also of a wonderfully variable character. Sometimes, but seldom, we find three tribunes; more frequently, four; but from 347 or 348, regularly whenever they occur, six; once, as many as eight, among whom, however, the two censors are included. Of the four, one is generally Præfectus Urbi: so that in reality there are after all only three. The claim of the plebeians to be chosen among the military tribunes is never disputed; but after the first election it is almost always eluded. How this could be done is inconceivable; Livy’s explanation of it is silly. On the one hand, it is quite possible that a compromise was made, and that the patricians said, we consent to the weaker magistracy’s being established, but then it must be filled up from our ranks only; or else in the earlier times the preceding magistrate had the right of not accepting any votes (nomina non accipere) in favour of those who from different reasons were to be rejected; or again, if six military tribunes were elected, the curies afterwards gave the imperium to the patricians only, and denied it to the plebeians. Yet it is incomprehensible in this last case how the plebeians could have allowed it. Unfortunately Dionysius fails us here, who, though he did not himself understand these relations, nevertheless faithfully recorded the facts as he found them: if we had him, the whole of this period would undoubtedly be clearer to us. After the last change, when six military tribunes always occur, we several times find the plebeians in a majority among them; and it is evident that it was then a settled rule that the number of six should always be full, and that without any further distinction between the two orders. This looks very much as if in the change the election had been transferred from the centuries to the tribes. It now depended only upon the honesty of the president whether he received the votes or not. That policy by which Italy became great in the fifteenth and sixteenth centuries, that wretched ideal of states-craft, is now displayed in the Roman history, especially in the division in the college of tribunes. This is one of the causes, which for some time checked the progress of Rome.
Times in which successful wars are carried on, as was now the case with Rome until the Gallic invasion, are exceedingly apt to lead subjects to acquiesce in what they otherwise would never have borne with. The name of the state was surrounded with a halo of glory; a great deal of booty was gained, and also many conquests; plebeians as well as patricians felt comfortable; and although the power was not much liked, matters were yet allowed to go on as they were. Rome recovered from the decline into which she had fallen since the Regifugium. Moreover the intermarriage allowed between the two orders, must have exercised a powerful influence: the families on both sides became more closely related; the patrician who, born of a plebeian mother, was in the senate, stood on an equal footing with the plebeians.
A greater, a lasting magistracy, and according to all appearance the first, the lustre of which far outshone that of the military tribunes, was the censorship. If we admit that it was instituted by the twelve tables, we can understand why Cicero also made the censors the first magistrates. He may have copied this from the laws of the twelve tables; only he must have left out something, as there they had yet a greater number of attributes. The consuls are said to have formerly had the functions of the censors; which is very probable from the almost kingly power of the consuls, and it is only to be wondered how they could have got through this immense amount of work. The Greek states also had τιμηταί, Athens alone excepted, and the Siceliote and Italiote towns had them as well; yet nowhere in Greece was their power so extensive as at Rome. According to the Roman law, the censors had to value and assess; accurate lists were kept of properties, of births and deaths, of newly admitted citizens. Yet we are to distinguish between two kinds of lists. The one was of persons, and was arranged according to names; Q. Mucius, for instance, with all his family and rateable property, stood under his name among the Tribus Romilia: his sons wearing the toga virilis may perhaps have had each a distinct caput. The other list was topographical; in it the landed estates were registered according to the districts, for instance, the Tribus Romilia in all its divisions. The ancients wrote on the whole much more than is generally imagined; this was done with a prolixity which was part of the forms of the state. In London, I saw a register of lands belonging to an Indian province,—in the translation, of course, as I do not understand a word of the Indian language,—which had a copiousness of detail of which we can scarcely form an idea. And it was the same among the ancients: the registers of mortgages at Athens were very prolix; and so, even in later ages, were the contracts before the curies at Rome. In the registers of the Roman censors, the division of the hides was very accurately marked down; under the caput of every individual, his descent, tribe, station, property, &c. were entered. Now the censors had also the power of transferring people from one class to the other, as an honour or a disgrace; yet what were the qualities for which they pronounced the ignominia, as it is termed? Every one in Rome was to correspond to the definition of his station; a plebeian was necessarily an agriculturist, either a land-owner or a free day labourer. This rule was laid down positively; and still more strictly in its negative bearing, as no one who carried on a trade or business could be a plebeian. Whoever did so, was forthwith struck out of the list of the tribe; consequently this was not so much a personal ignominia, as a declaration that he had passed from one side to the other. But he who badly cultivated his field was likewise put out of the tribe, that is to say, he was declared to be de facto no husbandman; and so was the eques who kept his horse badly: this is the notatio censoria. Such a person was placed among the burghers of the pale (ærarii), because he was not worthy of holding his property. The ærarian, on the other hand, who distinguished himself, who acquired landed property, was placed as a mark of honour among the plebeians; the plebeian who distinguished himself, was transferred into the centuries of the plebeian knights. Foreigners, however, they could certainly not make citizens: for this there were fixed rules, or else the popular assembly conferred the right of citizenship by means of an extraordinary act. In a state, the changeable elements of which were widely different,—where the Plebes was not an exclusive order, but was allowed to recruit itself; and where there existed among its ranks an aristocratic order of honour, that of the knights, which was not bound to the census; there must be some authority which assigns to every individual his station: for such an order of honour cannot be exclusive and unchangeable, owing to its very nature as an order of honour. One might say, that the decision about it ought to have been left to the people; yet this was not only a circuitous, but also a preposterous arrangement, as in all probability the censors,—who were chosen from the most distinguished persons, and who held their office under the fullest responsibility, whilst moreover one colleague might even impugn the acts of the other,—would be much fairer than the whole people, had it been called upon to make the selection. The senate also needed a careful supervision to fill up its vacancies, and to secure its respectability. It was indeed originally an assembly of the clans, every one of which had its representative senator; but when the clans began to dwindle away, there were taken from the whole order three hundred,—an hundred from each tribe; so that in consequence of the extinction of the clans, one clan might often number several votes, and another become altogether weak or degenerate. Afterwards the lex Ovinia Tribunicia[110] was passed, in which it is enacted that from the whole order, without regard to the gentes, the most worthy should be chosen. If it dates from the first times of the censorship, it proves that in those days the senate still consisted only of patricians, and that from all the three tribes the most worthy were taken. The statement that by Brutus, or Valerius Poplicola, plebeians had, under the name of conscripti, been already introduced into the senate, is either a fable, or it must be considered as quite a temporary arrangement. About the time of the migration of the commonalty, and likewise at the actual period itself, not a single plebeian could have been in the senate: towards the middle of the fourth century we can trace it for the first time. The senate now became a number of men chosen by the people, inasmuch as the magistrates were granted the privilege of voting in the senate, and the right of being elected into it on the publication of the new list; a right which also extended to the quæstors. Now, when in the year 346 the quæstorship was thrown open to both orders, I see in this the first occasion on which plebeians were admitted into the senate; and as from henceforth eight quæstors were appointed every year, the arbitrary sway of the censors must have been entirely put an end to. They might indeed exclude the plebeians; but as the senate consisted of no more than three hundred, and the censors, at the end of every lustrum, always saw forty men before them who had a claim to be elected into the senate, it is manifest that the senate could soon have become rather a plebeian than a patrician assembly. The power of the censors therefore declined in the course of time, like that of all the magistrates, with the exception of the tribunes: at first, only a censor could check the resolutions of his colleague; afterwards, the tribunes also took upon themselves to interfere with the determinations of the censors. It was formerly thought impossible that the censors should have had such a power as was granted them by the Lex Ovinia, or it was deemed detestable; yet they really had in the beginning an immense discretionary power. But, as in after times it was no more the two orders exclusively, but government and people who stood opposed against each other, the people set limits to the government, and the censors were also deprived of their arbitrary sway. To the patricians the censorial power had no reference; nor, with the then existing notions of the auspices, could any body become a patrician by adoption, though indeed this was done in after times.
Here the question now arises, were the censors authorized to exercise their power also with regard to morals? were they allowed to strike a bad man from the lists with a nota censoria? This I formerly denied, except it were perhaps in cases of downright infamy; yet in the newly discovered excerpta from Dionysius of Halicarnassus, a passage was found, which undeniably speaks of the right of the censor to take cognisance of any moral turpitude which could not be reached by the law; as for instance, heartlessness to parents, wives, or children, harshness towards slaves or neighbours. In fact, Dionysius in his time no more knew the censorship in its ancient state; yet he certainly gives us reason to believe that when he describes it, he rather sets before us the censorship of bygone times, than that of his own, which was generally known. It is therefore probable that the power of the censor had this great extent, the limits of which are still to be traced from the existing materials. The censorship of Gellius and Lentulus in Cicero’s days, was somewhat irregular.[111] Whether at that period already some tribes were minus honestæ, and others honestiores, cannot be decided. That afterwards the tribus urbanæ, particularly the Esquilina, were looked down upon, while the Crustumina stood high, is certain; yet it would be silly to suppose that this was also the case in the earlier ages.
The censors were at first elected for five years (a lustrum); and thus, in the true spirit of its system, it seems to have been the object of the decemviral legislation with regard to all the magistrates, to apply cooling remedies against the political fever, as elections always excite the passions most. Whether Mam. Æmilius really limited the censorial power to eighteen months, and was therefore branded by his successor with the ignominia; or whether this is an account contained in the books of the censors, which refers an existing law to one particular person, cannot be decided: certain it is, that such books of the censors existed.
In the year 315, a famine and terrible scarcity broke out in Rome. Many Romans drowned themselves in the Tiber not to perish by hunger. On the whole, the price of corn in those times was endlessly fluctuating, just as in the middle ages; which gave rise to forestalling and regrating, especially as in Italy grain may be kept for such a long time under ground. The distress came quite unexpectedly, and therefore a præfectura annonæ was established, which seems to have been a temporary magistracy. L. Minucius Augurinus was invested with this office. He did all he could to bring down the prices; he ordered the existing stores to be thrown open for sale at a compulsory rate, and had purchases made among the neighbouring people; yet his purveyances not only went on too slowly, but also the means which he employed did not answer: real help was only afforded by a rich plebeian knight, Sp. Mælius. This man had great quantities of grain bought up on his own account in Etruria and the country of the Volscians, and distributed it all among the poor. Any one who had done so much good, might in the ancient republics easily be suspected of having been actuated by questionable motives. Mælius therefore was charged with having attempted to gain over the people, that by their aid he might establish a tyranny. Minucius is said to have reported to the senate that many plebeians assembled in Mælius’ house, and that arms were conveyed thither. No one can now presume to decide whether this charge was well founded or not; at all events, such a conspiracy would have been madness in a man who was distinguished for nothing but his wealth, and who must have had the tribunes against him as well as the patricians. However this may be, he was looked upon as the head of a party; and in order to crush him, the senate and the curies appointed L. Quinctius Cincinnatus as dictator, who took Servilius Ahala for his master of horse. Cincinnatus, having occupied during the night the Capitol and the other strongholds, on the following morning set up his curule throne in the Forum, and summoned Mælius by Ahala before his tribunal. Mælius foresaw his fate: as no tribune could protect him against the dictator, he refused to appear, and mingled with the crowd of the plebeians. Then Servilius Ahala seized hold of him and stabbed him. This act is much admired by the ancients; but its merit is very problematical, as it may have been mere murder. The Præfectus Annonæ, according to a very plausible account, is said to have separated himself from the Patres, gone over to the Plebes, and to have been appointed as the eleventh tribune; and then within a few weeks to have entirely succeeded in bringing down the prices; which is a proof that the distress was rather an artificial one. The corn from the magazines of Sp. Mælius was confiscated, and distributed among the people. Servilius Ahala, as we are told by Cicero, was impeached by the Plebes as a murderer, and withdrew into exile: whether he was recalled afterwards, is unknown to us. This gives the whole affair an ugly look. Mælius’ house was pulled down; the Æquimælium, the place where it had stood, was under the walls of the Capitol, and is now entirely buried in the rubbish which forms a mound at the foot of the hill. This is a point of some importance for the understanding of Roman topography.[112]
When the Valerian laws, as we have seen before, so far limited the old right of the consuls to enforce obedience, that any one sentenced by them to receive corporal punishment might appeal to his community, they were yet to be allowed a certain sphere of jurisdiction without appeal: otherwise their authority would have been reduced to a mere nothing. That power extended to fines, the fixing of which is also ascribed to Valerius. Yet this is not likely, as there is too positive an evidence in the law of the consuls Tarpeius and Aternius, passed by the centuries, in which the multa was estimated in heads of cattle, as Cicero de Republica expressly tells us. This would not have been possible, if the Valerian law had already fixed the limitation; or else the rulers must afterwards again have seized upon the absolute authority. On the whole, all that is mentioned of the Valerii is not to be trusted, as Valerius Antias, who reckoned himself of the Valerian house, invented a good deal about it, and the Valerii moreover were rather vain of their popularity. That law fixed two sheep and thirty oxen as the highest multa, with regard to which Gellius makes a very heedless statement; for he says that sheep were at that time so rare, that two of them were estimated as equal to thirty beeves, though he himself immediately afterwards informs us that a sheep was worth ten, and an ox a hundred asses. The explanation of the fact is simply this,—that the consuls were obliged to increase the amount of the fine only by degrees, that the way might always be left open for a return to obedience: he who did not make his appearance on the first day, was mulcted of a sheep; on the following day, of two; then of an ox; and so on. We know from Cicero of another circumstance besides, which proves to us how little other accounts are to be relied on. Only twenty-five years later, the value of these payments was fixed in money, and that at a moderate estimation. Cicero justly looks upon this as denoting a progress of individual liberty.
The number of the treasurers or masters of the exchequer, whose election was indeed formerly made by the king or the curies, but afterwards assigned by Poplicola to the centuries, was raised from two to four, to be taken alike from patricians and plebeians. At first the patricians still hinder the carrying out of this clause; but at a later period the plebeians make good their right. This progress was not a mere point of honour, but it was a reality; it was closely connected with the dearest interests of the Plebes, as they now shared in the administration of the common exchequer, which was no more Publicum but Ærarium. By this means, as we have already remarked, the senate was now opened to the plebeians also, and they could be degraded from it by the power of the censors only.