The reconciliation was now brought about in the following manner. There were to be elected one plebeian and one patrician consul; yet the old consulship was not to be restored as it was before the time of the decemvirs, but there was to be a permanent præfectus urbi as a new curule magistrate, under the name of a prætor urbanus. He was not, however, so called merely in contradistinction to the prætor peregrinus, a point in which I was formerly, like so many others, mistaken. This præfectura urbis had existed already before the institution of the decemvirs, and was to have served in it a different purpose. The patricians had very strong reasons not to allow it now to pass into the hands of the plebeians; because the whole of what was possessed in the ager publicus depended on it. If, for instance, a father left by will four hundred jugera to a son who had four hundred already, a conscientious prætor might take from him the three hundred by which the legal standard was exceeded; but if it was the system of the prætor to keep down the law, he adjudged the possession, without taking any cognizance of the objection that the heir was already possessed ultra modum. Besides which, the right was still in the possession of the pontifices; and therefore, the patricians, who alone had the appointment of the pontiffs, might say, that they alone were qualified for the prætorship. Another function of the prætor, and as important a one, was that of nominating the judex. In questions of meum and tuum, the centumviri were the judges, and they were elected by the tribes; but criminal causes had to be tried before the prætor. Wherever a delictum manifestum was in the case, the culprit was dragged obtorto collo before the tribunal, and the prætor at once decided on the amount of punishment. But if the matter were disputed, the prætor might delegate a judex, and direct him to decide in such or such a manner, according to the issue of the trial. He no doubt had also the right of giving judgment himself; but he could not possibly master alone all the cases that occurred. Now these judges were then, and long afterwards, elected from the senate; and for this reason it was of immense importance for the patricians to keep the prætorship for themselves. And hence we may understand the grand character of the restoration by the Gracchi. For thirty-two years, the patricians retained the prætorship for the members of their own order: but when a great part of the ager publicus had passed into the hands of the plebeians, and the prætor’s functions had likewise changed in consequence, as he had to command armies, and often to act as consul, his office necessarily fell within the reach of the plebeians also. The prætor besides was termed collega consulum; and as the two consuls had together twelve lictors, he had six of them.
It is said moreover that the curule ædiles were now chosen to preside over the public games. The plebeian ædiles refused, we are told, to give expensive games in celebration of the peace; on which some patrician youths took the business upon themselves, and to honour them the new office was created. I have already shown in the first edition of my Roman history, that this opinion is absurd. They were the same as what the old quæstores parricidii had been: they had to do with accusations before the tribunals of the people, with state prosecutions, for instance, for poisoning, sorcery, and such like. This is something quite different from the jurisdiction of the prætors; if a distinct punishment, fixed by law, was not named in the indictment, they adjudged the penalty in proportion to the crime. After the lapse of a year, the plebeians insisted on having a share in this magistracy also; and for a hundred and thirty years, the ædiles were always elected by turns, one year, two patricians, and the other, two plebeians. To the ludi Romani a fourth day was now added for the plebeians: formerly they had games of their own. From the statements which Dionysius, at the end of the seventh book, gives from Fabius concerning the ludi Romani, it is manifest, that the state, until then, gave a great sum yearly to defray the expense; and was compelled only by the disastrous turn of affairs in the first Punic war, to saddle individual citizens with the cost. The ludi were now given at the charge of private persons; and thus the office of the curule ædiles became a liturgy in the Greek acceptation of the word. The ædiles had access to all the places of honour; but they had on the other hand to pay out of their own pocket all the expenses of the games. This was also continued afterwards, although the state had in the meanwhile again acquired great wealth. Even trierarchies came into use at that time, just as at Athens.
That the plebeian ædiles were a general Latin magistracy, is evident from the mention of them in Latin towns: whether the curule ædiles, as such a local magistracy, had already existed before among the patricians; or whether they were newly created, cannot now be made out. People have hitherto pictured to themselves these curule ædiles as a police authority. This indeed they also partly were; and in this respect, they had to compete with those of the plebeians. Yet their proper duty was not confined to the supervision of the corn trade, buildings, and so forth, in which we make no distinction between the patrician and plebeian ones; but it consisted also in conducting, as public accusers, the trials before the people: of this I have pointed out several examples. I suppose that the triumviri capitales were an offshoot of the ædilician power. The ædiles had no lictors, no imperium. How happened it then that these new magistrates were nominated in the comitia tributa? Very likely they were at first to be chosen by the comitia tributa and curiata alternately, and to be acknowledged by the others; but when the lex Mænia made the confirmation by the curies a mere form, this election also was wholly transferred to the tribes. The petty magistracies, triumviri monetales, quatuorviri, and others, were first established after the leges Hortensia et Mænia, when the curies no longer assembled, and the election was to all intents and purposes made over to the tribes. As for the prætor, it cannot be doubted but that he was appointed, like the consuls, by the centuries. The expression is, iisdem auspiciis; but the auspices were taken for the centuries and curies only. Thus the settled points help us on to the explanation of all that is enigmatical in the constitution.
INVASION OF THE SENNONIAN GAULS. LEAGUE WITH THE LATINS AND HERNICANS. CHANGES IN THE DOMESTIC AFFAIRS OF ROME.
According to Joannes Lydus, that is to say, according to Gracchanus, at the end of the commotions, the government remained for some time under the sway of the tribunes. This is highly probable. The fact that Varro in his memoir to Pompeius, de Senatu habendo, mentions the triumviri rei publicæ constituendæ among those who had the right of calling the senate together, is very strong evidence for it. It may also have been with reference to that earlier magistracy, that the later triumvirs called themselves by the very same name. Nor is it at all unlikely that the first military tribunes were likewise designated in the old accounts as triumviri rei publicæ constituendæ.
When the Licinian laws had been carried, and the first plebeian consul elected, every thing was nearly on the point of being undone again; inasmuch as the patricians refused their confirmation to the plebeian consul. After a great deal of trouble, matters were made up: the patricians yielded, and acknowledged the plebeian consul L. Sextius. Thus was brought to a conclusion this moderate, legal, and necessary revolution, of which the stages were somewhat like the normal changes in the bodily constitution of one who is growing up out of childhood into early manhood. That the peace was a hollow one, is not to be wondered at: the patricians yielded to necessity; but with the fixed intention to get back by force, at the very first opportunity, all that they had lost. About twelve years later, 339 according to Cato’s chronology, which Livy also follows,[125] the struggle was renewed. The patricians succeeded in engrossing again the second place of the consulate; and they kept up this contest until 413, during which they usurped the consulship more than a third of the time. At last they were obliged with shame to give in, and in the course of the struggle to yield to claims which the plebeians would not have urged with such violence, had the treaty been honestly observed.
The beginning of this period is marked by few incidents. Livy’s statement, that no wars had been waged lest the plebeian consuls should have an opportunity of gathering laurels, can only be a mere supposition. The whole of men’s attention was bent on domestic affairs; and it is but natural, that the immense number of arrangements at home which followed from the Licinian law, should have entirely absorbed it. Surveys of the whole of the ager publicus had to be made; a commission was engaged in regulating the matter of the debts, and a great deal of other business was lying on hand. The general allotment of land to the plebeians is to be considered as the cause of the rebuilding of the city. We do not easily find in history such a speedy recovery: Rome seems to have become young again, although there are wars nearly every year. The debts still partly continued, and the right of the nexum was not done away with; but it became less oppressive by degrees. The changes extended further than what we know; the treasury of the patricians now became in all likelihood the general exchequer of the country. These were also quiet times abroad: the Latins, separated from Rome, lived in peace; single towns only, like Tibur and Præneste, were hostile, rather from mistrust than from any special reasons. The people of Tarquinii were the only enemy who threatened Rome. But from afar a new foe made his appearance—the Sennonian Gauls, in the year 393, thirty years after the first invasion. What has been mentioned of earlier inroads of the Gauls, is contradicted by Polybius, who records all their expeditions, and speaks of this one as being the first after the destruction of Rome. It seems that the Gauls, after the taking of Rome, had retired into Apulia, and there had concluded a treaty with Dionysius of Syracuse: they then returned to their abodes in what is now-a-days the Romagna, and the territory of Urbino. Yet there was a new migration over the Alps, which forced its way as far as the Anio. Here was said to have been the single combat of Manlius Torquatus, who took from the Gaul his golden chain: this appears to be historically authenticated, and we have no grounds for deeming it a fable. A great battle was not fought there: the Romans, who were in readiness to receive the enemy, were now fully awake, and on their guard. The Gauls then took up a strong position: they seized upon the Alban Mount and the heights of Latium, and from thence they wasted the Latin country, roving beyond Tivoli[126] as far as Campania, even to Apulia, as is stated in one account. They must therefore have overcome the Samnites, and passed through their long and narrow territory, as afterwards the Romans did also.
These events had again the most fortunate consequences for the Romans, as had been the case with the Volscian war, a hundred years before. They themselves, as well as the Latins and Hernicans, now came to the conviction, that their division exposed them to great danger. Between the Romans and Latins, there was no hostility; between the Hernicans and Romans there was open war, in which the Romans may have taken the strong town of Ferentinum: it ended in the return to the old relation. False is the story that the Hernicans surrendered; for so late as half a century afterwards, they received one-third of the booty, or an equivalent in money, until C. Marcius conquered them. Latins and Hernicans united with Rome, and a new state was now formed which Livy mentions in two places,[127] without, however, being aware of the circumstances connected with it. The Latins were to all appearance no more a compact state: to restore themselves to the condition in which they were before, was impossible; very many of their towns had been destroyed by the Volscians and Æquians, or by the Gauls. But now, the Volscians, their former enemies, were likewise split into several states:—the Antiates seem to have kept by themselves, but other towns of them united with Latium; they had urgent reasons for annexing themselves, as they were hard pressed by the Samnites, who were making conquests on the upper Liris, and had taken Fregellæ, and become masters of Casinum. Thus a new Latin political league was formed, which was joined by the Latin colonies and part of the Volscians; for with regard to the Latin colonies the Romans seem to have renounced every claim to hegemony: Sutrium and Nepete, which lay on the left bank of the Tiber, entered likewise into the confederacy. Forty-seven peoples shared in the sacrifice on the Alban mount; but that was in those times when Latium, as a powerful state, stood by the side of Rome. As a counterpoise to Latium, another part of the Volscians seems to have been admitted to the rights of full Roman citizenship; for two new tribes are formed, which had their abode near the Volscian frontier; just as in the treaty of Sp. Cassius, the Latins yielded to the Romans the Crustuminian territory. Thus the year 397 is remarkable for Rome’s having renewed the old relations with Latium and the Hernicans. Festus, in the article Prætor ad portam, which is borrowed from Cincius, speaks as if the Romans, since the fall of Alba, had always been on a footing of equality with the Latins. This was the case from the peace of Sp. Cassius to the year 290, and from 397 to the consulate of Decius Mus; but the intervening period is overlooked. Cincius has certainly stated what was correct, and indeed has only been misunderstood by Verrius Flaccus. A very broad distinction is here to be made between the different times: I was mistaken in this respect for many years.[128] A Roman and a Latin imperator held by turns, for a year, each the chief command of the combined army: they offered their sacrifice in Rome on the Capitol, and were there greeted at the gate.
The new league of the three states had undoubtedly sprung from the fear of the Gauls, who, although they did not make their appearance that year on the Tiber, were still very near. It would serve no purpose to tell in detail how the contest was carried on. It was a dreadful time for the Romans. The struggle with the Gauls lasted until 406 and 407; and Latium and Campania, especially, had to suffer for twelve or thirteen years from the continual devastation of the Gauls. Once the enemy was seen before the Colline gate: the Romans stood their ground against them, or at least it was a drawn battle. It was on the same spot where Sylla afterwards defeated the Samnites, and which is now within the city. It is a prolongation of the Quirinal into table land: on the left, there is a deep valley; beyond the table ground, there are other hills, on which the city-wall now stands. It was there, without doubt, that the Gauls and the Samnites posted themselves.
One of the changes, occasioned by the establishing of the new Latin league, is this: that, as the older Latium had, according to Cato (in Priscian), a dictator, this new Latium had also for its chiefs two prætors, as Livy expressly mentions. A league between the Samnites and Romans, which is likewise to be found in Livy, belongs to this, or to a somewhat later period: that, however, before that time, such relations had already existed between the Samnites and the Romans, may be surmised, but cannot be asserted with certainty, inasmuch as a notice of Festus, under the head of Numerius, is too vague. As early as the battle at the Cremera, according to that quotation, one of the Fabii, who was sent as a hostage to the Gauls, was married to the daughter of a Samnite of Beneventum; but without a treaty no connubium took place. It is yet possible that this relation was instituted between Sabines and Romans alone, and that it was extended by the Sabines to their Samnite colonies. The motive of the league was a double one; partly the threats of the Gauls, and in this case it is to be placed between the second and the third Gallic inroads, those to the Anio and the Alban mount; and partly, according to a highly probable supposition, jealousy against Latium. The latter state, when joined by the Volscians and Æquians, was so powerful, that Rome had cause to be jealous. The Latins bordered immediately upon the Samnites, and these tried to spread themselves out on the upper Liris; so that a league between the Romans and Samnites was very natural, whereas Rome and Latium were allied indeed, but did not trust one another. A league of this kind must not of necessity be understood to mean one of mutual assistance; it is not at all to be looked upon as such. It is rather a treaty, than an alliance; and in fact there was in such leagues of the ancients an honest clause, wherein the contracting parties, on both sides, prescribed to each other the bounds of their intended encroachments upon other nations. Such was the league of Rome with Carthage; that of the Carthaginians under Hasdrubal with Spain; and likewise of Rome with the Ætolians. It is mere declamation, when in moral disquisitions the division of countries in the new world, as laid down by Pope Alexander VI., between Spain and Portugal, has so often been reviled: it was nothing else but such a line of demarcation for eventual conquests. Even thus was a limit afterwards drawn in the first actual peace between the Romans and the Samnites, and it was its want of precision which occasioned the second war.