[42] The allusion is to a memorable event in the Samnite war. The consuls Spurius Postumius Albinus and Titus Veturius Calvinus B.C. 321, with their army, were caught by the Samnites in the pass called Furculæ Caudinæ, and they were compelled, in order to save themselves, to submit to the ignominy of passing under the yoke. The Roman senate rejected the terms which had been agreed on between the consuls and the officers of the army on the one side, and the Samnites on the other. It was not a treaty (fœdus) as Livius shows, for such a treaty could not be made without the consent of the Populus nor without the proper religious ceremonies. (Liv. 9, c. 5.) The senate, upon the proposition of Postumius himself, sent to the Samnites all the persons who were parties to the agreement and offered to surrender them, but the Samnites would not receive them and they upbraided the Romans for want of good faith.
Mancinus also supported the proposition for his own surrender to the Numantines, and he was offered to them in due form by the officer called the Pater Patratus, but the Numantines declined accepting him. (Cicero, De Officiis, iii. 30.) The principle that a general could not formally make a treaty, and that all treaties required the sanction of the senate or in earlier times perhaps of the patrician body in their assembly, appears to be well established. Those who made the treaty with a Roman general might not know this constitutional rule, but the principle on which the Romans acted in such cases was sound, and the censure that has been directed against them as to their conduct in such transactions, proceeds from ignorance of the Roman constitution and of the nature of the power which a sovereign state delegates to its ministers. Delegated power or authority never authorises the persons to whom it is delegated to do an act which is inconsistent with the constitution or fundamental principles on which the sovereign power is based.
Mancinus returned to Rome and ventured to appear in the senate, but a question was raised as to his right to be there, for it was argued that a man who had been so surrendered ceased to be a citizen and could not recover his civic rights by the fiction of postliminium, as a man who had escaped from the enemy could. (Cicero, De Oratore, 40.) But the subtlety of the Romans found a solution of the difficulty in the case of Mancinus: there can be no surrender, if there is nobody to receive the surrender; therefore Mancinus was not surrendered; therefore he was capable of recovering his civil rights. (Cicero, Topica 1.)
[43] The war of Numantia was prolonged to their disgrace, as the Romans considered it, and they at last elected Scipio consul B.C. 134, and sent him to Spain. He took Numantia after a siege of fifteen months, and totally destroyed it, B.C. 133, the same year in which his brother-in-law Tiberius Gracchus lost his life. (Velleius Paterc. ii. 4.) Caius Gracchus, the brother of Tiberius, served under Scipio at Numantia, and also Jugurtha, afterwards king of the Numidians, and Caius Marius, the conqueror of Jugurtha.
[44] Plutarch’s account of the Roman public land is brief and not satisfactory. A clearer statement, which differs from Plutarch’s in some respects, is given by Appian. (Civil Wars, i. 7, &c.) The Roman territory (Romanus Ager) was originally confined to a small circuit, as we see from the history of the early wars of Rome. Even Aricia (La Riccia) about fifteen miles south-east of Rome, was a city of the Latin confederation in the reign of Tarquinius Superbus. (Liv. 1, c. 50.) The Romans extended their territory by conquest, and they thus acquired large tracts of land in Italy, which were made the property of the state under the name of Ager Publicus. This public land was enjoyed originally by the patricians, and perhaps by them only, on payment of a certain rent to the treasury (Ærarium). The rents of the public land were a large part of the public income, and intended to defray a portion of the public expenditure. The plebs soon began to lay claim to a share in these lands, and a division of some tracts was made among the plebeians in the reign of Servius Tullius. The lands divided among the plebeians were given to them in ownership. The tracts of public land which were enjoyed by the patricians on the terms above mentioned, were considered, as they, in fact, were, public property; and the interest of the patricians in such lands was called a possession (possessio). Those who enjoyed the public land as a possessio were said to possess it (possidere), and they were called possessores, a term which often occurs in the first six books of Livius, and which Plutarch has attempted to translate by a Greek word (κτηματικοί). It is likely enough that the patricians abused their right to the use of the land by not always paying the rent; as we may collect from the passages in Dionysius (Antiq. Rom. viii. 70, 73, ix. 51, x. 36). Their enjoyment of extensive tracts also prevented the public land from being distributed among the plebeians to the extent that they wished. The disputes between the two orders in the state, the aristocracy or nobles and the plebeians, or, as Livius generally calls them, the patres and the plebs; (the padri and the plebe of Machiavelli, Discorsi, &c.), about the public land, commenced with the agitation of Spurius Cassius, B.C. 486, the history of which is given by Livius in his Second Book (c. 41). The contest was continued at intervals to B.C. 366, when a law was passed which is commonly called one of the Licinian Rogations, which forbade any man to have a possession in the public lands to the amount of more than 500 jugera. This is the law to which Plutarch alludes.
The extent and difficulty of the subject of the public land makes it impossible to examine it fully in a note. I propose to treat of it at length in an appendix in a future volume.
[45] The words in Plutarch literally signify “barbarian prisons,” but I have used the word ergastula, which was the Roman name, though it is a word of Greek origin, and signifies “working-places.” The ergastula were places generally under ground and lighted from above: they were used both as places to work in and as lodging-places for slaves who cultivated the fields in chains. (Plinius, N.H. 18, c. 3; Floras, iii. 19.) They were also places of punishment for refractory slaves. The object of these places of confinement was also to prevent slaves from running away, and rising in insurrection. The slaves were placed at night in separate cells to prevent all communication between them. When the slaves broke out in rebellion in Sicily under Eunus, who is mentioned by Plutarch (Sulla, c. 36), the ergastula were broken open, and a servile army of above sixty thousand men was raised. The Roman master had full power over his slave, who was merely viewed as an animal; and these ergastula, being in the country and out of sight, would give a cruel master full opportunity of exercising his tyranny. They were abolished by the Emperor Hadrian (Spartianus, Hadrianus, 18).
[46] C. Lælius, the father, was an intimate friend of Scipio Africanus the Elder. C. Lælius, the son, the Wise or the Prudent, was also an intimate friend of the younger Africanus. Cicero’s treatise on Friendship is entitled Lælius in honour of Lælius the Prudent.
[47] Tiberius Gracchus was elected Tribune B.C. 133, and he lost his life the same year.
[48] Cicero (Brutus, c. 27) calls the Greek Diophanes a teacher of Tiberius Gracchus. Blossius is mentioned by Cicero (Lælius, c. 11) as one of those who urged Tiberius to his measures of reform. Antipater of Tarsus was a Stoic. The two sons of Cornelia had a learned education and were acquainted with the language and philosophy of the Greeks, and it is probable that the moral and political speculations with which they thus became familiar, and their associating with Greeks, had considerable influence on their political opinions. Tiberius Gracchus the father was also well enough acquainted with Greek to speak the language. His oration to the Rhodians was spoken in Greek.