Italy and the Italian islands, from the earliest ages to the present time (Volume 1) online

gested the idea of providing for the protection of that
class in future, b}^ the mterposition of authorized dele-
gates. Temporary relief was obtained for the insolvent
debtors, though without any alteration of the bankrupt
law : and the privileged order agreed to the permanent
institution of Tribunes of the Commons, who were to
be plebeians, elected annually in the convention of
the curias, and confirmed by the senate.t The mode of
election was most unsatisfactory ; but the principle
was gained ; the patricians likewise were for some time
afraid to use their advantage, and when they at length
made an attempt, the plebeians extorted an alteration
in the form of the appointment.

By the original conception of the office, the Tribunes
appear to have had only the right of interposing for
the immediate protection of the persons of commoners
against palpable violations of the law : but their duties
were speedily extended so as to comprehend the defence



* jViebuhr, vol ii. p. 129-154. According to Niebuhr's theory,
the plebeians had in strict law no right either to claim individually
possession of these lands, or to object to the non-payment of the
tithe on them. The lands belonged to the " populus," i. e. to the
patricians ; and the profits of them went to the "populus," i. e. not
into the treasury of the state, but into the common chest of the
patrician body. The moral iniquity of the system is the same in
either view.

t Niebuhr maintains that they were elected by the centuries, and
confirmed by the-curiae : vol. i. p. 607.



TILL THE FALL OF THE ROMAN REPUBLIC. 63

of their whole body against illegal acts. They had the
right of putting, by their veto, a temporary stop to the
proceedings, either of any magistrate, or of any council
of the state. Their functions were shielded by a strict
personal inviolability : an attack on a tribune, or mo-
lestation offered to him in the discharge of his duty,
was treason to the state, involving ipso facto outlawry.
They likewise soon claimed and exercised the right of in-
troducing proposals for new laws, even in those national
meetings of which they were not presidents."'

Within three years after the institution of the tri-
bunate, the plebeians (a. u. 263), by an act of injustice
and revenge, gained a prerogative which in time altered
the whole constitution of Rome. Coriolanus, a patrician,
insulted the commons in his place in the senate. The
tribunes, whose office entitled them to be present in that
assembly, though not as yet to vote or speak, witnessed
the affront, and summoned the offender to answer before
a court of which we have not yet made mention, —
the Comitia Tributa, or Convention of the Tribes.
Questions of some difficulty arise regarding it. It al-
ways was an assembly whose members were arranged
without any regard to property, and were divided
neither into curiae nor centuries, but into tribes, a local
division like parishes. Every person had a vote in
his tribe, and every tribe a vote in the convention,
the order in which the tribes should vote being deter-
mmed by lot. The tribunes of the commons cited the
meeting, and were officially its presidents : and (a most



* Niebuhr's idea of the tribunate is this : — That the division into
tribes by Servius Tullius (which has not yet been mentioned in
the text), was a division of the plebeians only, not of the whole
people ; that, as indeed older writers have pointed out, each plebeian
tribe had its elective president, called a tribune; and that the Tri-
buni Plebis were just these ancient functionaries, who now for the
first time received the right of appearance as officers of the general
body politic. He also maintains, that the Comitia Tributa, which
â– we shall immediately meet with, were nothing more than the old
ordinary meetings of these plebeian tribes. — Niebuhr, vol. i.
p. 398-424, and p. 601-609.



64 THE POLITICAL HISTORY OF ITALY

important feature) it did not require the religious sanc-
tion of the patrician priests to constitute it.

On these points there is no dispute : the difficulty oc-
curs on the question who were the constituent members.*
It is clear, that on this occasion, and for a considerable
time afterwards, the assemblies bearing that name were
composed exclusively of plebeians, and probably of those
only who were not clients. The truth seems to be, that
the step taken by the tribunes was in itself not only ille-
gal, but grossly unfair. They knew that whether they
attempted the impeachment in the curiae or in the cen-
turies, the auspices as well as the prerogative of the patri-
cian presidents would be turned against them, and, in the
centuries, the influence of wealth. It is possible that they
may already have begun to assemble their constituents,
of course without any consecration or formal constitution
of the meeting : and they now proposed to try the proud
senator before a court composed in this way, to which
they gave a show of legality, by naming and dividing it
according to the tribes, the only recognised classification
of the people distinct from those of the other assemblies.
It was indeed somewhat startling, that the plaintiffs should
propose to sit as judges in their own cause : and perhaps
the tribunes may have pretended that their new conven-
tion was to comprehend all classes of the citizens. But they
were perfectly certain that it would in fact be com-
posed of plebeians only, and probably of none who were
not free. The patricians durst not sit in the ncAV assem-
bly, or acknowledge its legality as a national institution,
unless they chose to repudiate the principles on which
their political supremacy was founded. If they had
consented to attend its meetings, they would thus
have acknowledged the right of the tribunes to impeach,
which was an unprecedented and dangerous innovation ;
they would have recognised the right of plebeians, as yet
excluded from every office of state, to summon and preside



• Compare Wachsmuth, p. 300-309, and Beaufort,
p. 18b (Ed. 1766), with Niebuhr, vol. i. p. 307, et se^i.



TILL THE FALL OF THE ROMAN REPUBLIC. 65

in national assemblies ; and they would have admitted
the legality of sucli meetings, though not constituted by
those religious rites which were so powerful an engine
of their own political monopoly. They resolved, there-
fore, to sacritice one man rather than the privileges of
their order, or the convenient insolvency laws : and, care-
fully abstaining from taking part in the proceedings,
they allowed the 2)lebeians to convene their irregular
assembly, and pass what invalid resolutions or sentence
they pleased.

The commons, however, held their own act a prece-
dent, and followed it. A law of the consul Spurius Cassius
(a. u. 267), for remedying the abuses in the occupation
of the public lands, was eluded, and its mover was mur-
dered by his fellow-nobles. At last (a. u. 281), the
tribune Genucius impeached the last year's consuls before
the convention of the tribes for not enforcing the law of
Spurius. This double danger called for prompt action ;
and the tribune was found dead in his bed on the morn-
ing m which the trial should have come on.*

The very next 3'ear, the tribune Volero moved, in the
convention of the centuries, a law for amending the
election of the Tribunitial College, by transferring it to
the convention of the tribes. The patricians violently
resisted the attempt, the consequences of which they
clearly saw. It was evaded till the year after (a. u. 283),
when he again moved the law, and the senate, finding
opposition hopeless, consented to it in terrified silence.t

Mention is made of another very important statute, also
passed in Volero's second tribuneship, declaring that the
convention of the tribes had a right to deliberate on all
matters touching the common weal. The terms of the
enactment, as reported, do not amount to an assertion of
legislative powers, but only to a recognition of the right

* Livy says (lib. ii. cap. 54) that the senators openly boasted of
the assassination, and that it was reckoned among them an honour
to be suspected of having had a share in it.

t Patresad ultimumdimicationis rati remventuram — Lex silentio
perfertur. Liv. lib. ii. cap. 56, 57.

VOL. I. i>



66 THE POLITICAL HISTORY OF ITALY

to meet and pass resolutions, analogous to our British
privilege of petitioning parliament ;* but the measure
indicates to us, and ought to have given warning to the
patricians, that the plebeians now looked far beyond the
redress of personal wrongs. Indeed these two laws of
Volero placed the commons in a most advantageous posi-
tion. The peculiar form in which their meetings were
held was authoritatively recognised as legal, and they en-
joyed a free election of their bench of presidents. It is
possible that from this time the patricians, with the view
of weakening the strength of their adversaries, may
have allowed their clients to attend in the electoral
meetings of the tribes, though they did not as yet acknow-
ledge the legality of their deliberative proceedings.

But they were soon compelled to recognise these also.
In the year of the city 298, the tribune Icilius carried in
the tribes a resolution for assigning the ground of the
Aventine Hill to the poor plebeians. This vote was laid
before the senate, who refused to entertain it even as a
petition, maintaining that the second law of Volero,
though it allowed the commons to deliberate on questions
of public policy, did not compel the higher council to
take any notice of their resolutions. After a bitter
struggle, the senators consented to take the vote into
consideration, and allowed the tribunes to speak in their
house in support of it. Both concessions were held to be
precedents.

The next material step was produced by a motion
v.'hich had already been introduced by the tribune
Terentillus Arsa, for the appointment of a commission
to draw up a set of rules for determining the powers
of the consuls. Violent disputes ensued, and the pro-
posal was altered into that of a general revision of the
whole law, both public and private. For this purpose,
the Ten Commissioners forming the First Decemvirate,
were selected (a. u. 302) exclusively from the patrician
order : and as they had not completed the task within

* Niebuhr, voL ii. p. 217- Wachsmuth, p, 331-342. Dionys.
flalic. lib. ix. cap. 43.



TILL THE FALL OP THE ROMAN REPUBLIC. 67

their year, a new Commission was elected, half patrician
half plebeian. The fruit of the decemvirates was the fa-
mous Code of the Twelve Tables, of whose contents, so
far as they related to the public law, we know almost
nothing. It is even a disputed point whether any of their
constitutional enactments survived the forcible dissolution
of the second decemvirate. The whole history of these
commissions, indeed, is extremely perplexing : but by an
anomaly to which there are several parallels in ancient
times, they received, besides full power to legislate, an
appointment as sole magistrates of the republic. The
second body of commissioners, headed by Appius Clau-
dius, forcibly retained office after then- year had expked :
the citizen-soldiers took their favourite revenge, by first
refusing to enlist, and then allowing themselves to be
beaten : the murder of Siccius Dentatus, their leader,
was followed by the tragical story of Virginia : the ple-
beians for the second time left the city ; and the consular
government was restored.

The patrician Valerius, surnamed Poplicola, one of the
consuls for the next year (a. u. 805), besides formally re-
cognising the old right of appeal to the people against cri-
minal sentences pronounced by the officers of state, carried
likewise in a meeting of the centuries a measure as to the
proceedings of the tribes, extending the effect of the law of
283 and the precedent of 298. This new statute declared
resolutions of the plebeians in the tribes to be of equal
force with those of the whole community in the centu-
ries ; that is, it declared that the Convention of the Tribes
was a branch of the legislature, and that its resolutions
acquired the force of law on being approved by the
senate.* The patricians reluctantly agreed to this new
act ; and the convention of the tribes, besides the distinct
recognition of its constitutional status, now possessed,
through its presidents, the tribunes, the important pri-
vilege of the initiative.

* Ut, quod tributim plebs jussisset, populum teneret. Livii His-
toriar. lib. iii. cap. 55. There is much reason to believe, that till
416 this law was frequently evaded.



DO THE POLITICAL HISTORY OF ITALY

The plebeians, as a body, had now hardly any farther
political right to demand ; but personally they continued
excluded from all the functions of the executive, because
the patricians still alleged that tbey lay under a religious
disqualification for these offices, from their not possessing
the Sacerdotal character, which was essential to the dis-
charge of certain duties incumbent on the principal mem-
bers of the government. The commons were already re-
solved to extort from the nobles the privilege of being
eligible to office ; but it cost them a struggle of nearly
ninety years. The tribunes began the attack (a. u. 308),
by a motion in the senate, for a law to have one of the
Consuls elected from each order ; and by another, which
they had better have let alone, for giving full legal effect
to marriages between patricians and plebeians. The aris-
tocracy dreaded the proposal as to the consulship, and a
compromise was effected. The office, meantime, was su-
perseded by an annual board called Consular Military
Tribunes, eligible from either order, and possessing the
usual powers of the consuls, but not their rank or per-
sonal privileges. The concession seems to have been
understood on both sides as only temporary : and it is
likely that the senate retained the power of determining
annually, whether the magistrates for the ensuing year
should be consuls or consular tribunes ; while the lists
show, that till the abolition of the consular tribunate, this
form of administration was only chosen on occasions of
popular excitement, and that during forty years after its
institution the commons were only once able to procure
a place in the board for one of their o^vn order. The
influence of the nobility on the elections was strength-
ened by a novel expedient, apparently adopted in the
hope of neutralizing the plebeian efforts ; namely, the
appointment of patrician Censors, two officers elected
by the centuries for a fixed period, to superintend the
national revenues and works, to assess the public burdens,
and to prepare the rolls both for the payment of taxes and
for admission into the senate and centuries. It is sus-
pected, on plausible grounds, that the judicial powers of



TILL THE FALL OF THE ROMAN REPUBLIC. 69

the consuls were also for a time transferred to the
censors.*

From this point we trace no efficient attempt of the
commons to gain the magistracies, till 378, when the tri-
bune Licinius Stolo introduced his three celebrated mea-
sures, wliich he was not able to carry till 387. By his
first law the Consulate was permanently re-established
as the highest office of the state ; both orders of citizens
were declared eligible ; and, with a very necessary pre-
caution, it was provided, that one of the Consuls must
always be a Plebeian. The nobles were only able to
get the judicial functions of these magistrates finally
separated from the office, and committed to the praetors,
who at first were patricians.t

The other two statutes of Licinius related to the Bank-
ruptcy Law and the Public Domain. During the period
which has been last considered, the grievances of the
poorer plebeians, in regard to both of these matters, were
repeatedly brought forward, and excited several danger-
ous commotions. In the course of the fourth century of
Rome, at least two eminent citizens expiated with their
lives the crime of defending the poor against oppression.
Spurius Mselius, a powerful commoner, was the first
victim ; and the second was the patrician Marcus ]\Ian-
lius, who, after having saved the Capitol from the Gauls,
was judicially murdered, on a pretence of his aiming at
the sovereignty, but truly for having protested for years
against the insolvency laws and their abuse. The his-
torians of the republic, and especially Li vy, the strenuous
partisan of the aristocracy, would have us to believe,
that both suffered deservedly ; and their fame has been
overshadowed by that of their celebrated destroyers.
For the dictator, by whose command Spurius was slain,
was the venerable Cincinnatus ; and Manlius was killed,
under a decree of the senate, " ne respublica," by the
consular tribunes for the year, at the head of whom



• Niebuhr, vol. ii. : On the Censorship and Consular Tribunes,
t Livii Histor. lib. vi. cap. 35-42; lib. vii. cap. I.



70 THE POLITICAL HISTORY OF ITALY

was Camillus. We cannot now determine the motives
either of Spurius or Manlius ; but nothing can be more
certain than that the acts for which they died were
patriotic and just.

Licinius was more fortunate. For the first of the two
evils Avhich he endeavoured to remove, it was indeed dif-
ficult to find a remedy ; since a mere prospective altera-
tion of the insolvency law would not have satisfied the
wishes of the complainers, while a statute to extinguish
all existing debts would have involved an injustice pal-
pable even to the Romans, in spite of their characteristic
hatred of usury. His temporary law, by which all interest
already paid to creditors was imputed towards extinc-
tion of the principal, on condition that the balance should
be paid up by equal instalments in three years, probably
answered its immediate purpose. It however left the
sore to fester in the heart of the state, notwithstanding
the successive statutes to regulate the currency ; and
the distress of the lower classes generated a reckless
spirit which powerfully contributed to the deterioration
of the national character.

The Licinian law as to the Public Domain, was one of
those which from their subject were called Agrarian, a
term which has sometimes been misunderstood.* None
of the measures brought forward at Rome under this
name contemplated any interference with private pro-
perty, or its restriction to any fixed amount. They
referred solely to the Public Domain, and to no portions
even of that except such as were occupied by indivi-
duals on sufferance, in the manner which has been
already explained. As new districts were successively

* See Heyne, Leges Agrariae pestiferae et execrabiles (Opus-
eiila Academica, torn. iv. p. 350-373), a discourse written in 1793
against the agrarian propositions brought forward in the French
republic. The track of inquiry which Heyne indicated was pro-
secuted by Heeren in 1794, in his Geschichte der Revolution der
Gracchen (Kleine Historische Schriften, vol. i. 1803). The
difficulties which still encumbered the subject have been cleared
up by Niebuhr, in his Sections (vol. ii.) on the Public Lands, the
Early Assignments, and the Law of Spurius.



TILL THE FALL OF TUE ROMAN REPUBLIC. 71

conquered, and the possession of them by the patricians
and their vassal tenantry grow inveterate, the abuse be-
came more glaring, and, at the same time, more difficult
of redress. The law of Licinius, aided by the accom-
panying reforms, appears for some time to have greatly
ameliorated the condition of the poor. It had reference
both to the public lands which might thereafter be
acquired by the state, and to those which it had already
conquered. In regard to all these, it enacted, tliat no Ro-
man should be allowed to possess on the title of sufferance
more than 500 jugera, or about 280 English acres ; that
on those tracts which were reserved as common pastures,
no one should graze more than a fixed number of cattle ;
that, both for the arable ground and the pasturages, the
customary tithes and other dues should be strictly levied ;
and that the revenue thus arising t-o the exchequer should
be publicly farmed out. Of the territory which the
state had already acquired, every citizen who occupied
any portion of it by sufferance, was allowed to retain 500
jugera, but all he possessed beyond that extent was
to be taken from him ; and the land so seized was divided
among the poorer class, in allotments of seven jugera,
or about four acres, to each." We know that the ple-
beians, or some of them, thenceforth contrived to obtain
large portions of the domain, on the same footing on
which such estates were formerly monopolized by the
patricians : for Licinius himself was in a few years con-
victed of violating his own law, by possessing more than
the prescribed amount.

From the mstitution of the tribunate to the time of
this inconsistent reformer, we can trace no constitutional
change unfavourable to the commons, except the dismem-
berment of the consular functions, and certain alterations
on the college of the plebeian tribunes. This board, the
original number of which is uncertain, was, probably
about the year 297, increased to ten members. At



• Niebuhr, vol. iii. (untranslated), Romische Geschichte ;
Dritter Theil ; Berlin. 1832; p. 13-23.



72 THE POLITICAL HISTORY OF ITALY

first a majority decided on all steps to be taken, and
neither the minority nor single members could act in
contravention of the resolutions so fixed. There was,
however, introduced, between the years 839 and 860,'^ a
dangerous rule, which subsisted till the dissolution of the
republic ; namely, that any one tribune might, by his veto,
stop the proceedings of the magistrates, the senate, or
national conventions, and even of his own colleagues.

But the hereditary aristocracy was already disarmed by
the enactment of the Licinian laws : and the subsequent
changes of the constitution proceeded with rapidity. In
401, the commoners established their eligibility to the
omnipotent office of Dictator. In 40C, they gained ad-
mission to the Censorship, and, ten years afterwards, the
exclusive right to one of the two places at that board.
In 420 the Prsetorship followed ; and as the Quaestor-
ship had been already gained, they were now eligible to
all places of civil trust a-nd honour.

In 416, the plebeian dictator Publilius Philo, whose
office enabled him to overcome the resistance of the
patricians, carried in the centuries, and forced the senate
to confimi, two remarkable laws. The First of these either
simply renewed the Valerian law of 805, constituting the
Convention of the Tribes a legislative body, or, at most,
it fortified the principle of that measure by some new
arrangement. But the Second Publilian law amounted to
a radical change in the constitution. It annihilated at a
blow the whole control which the senate had held over
the Legislative functions of the Convention of the Centu-
ries, leaving to it nothing but its veto on the electoral
votes of that assembly. Instead of preparing the legisla-
tive resolutions, and at pleasure allowing or forbidding
them to be proposed to the people, the senate was by the
new statute compelled, whenever such a resolution waa
regularly laid before it, to pronounce, as matter of course,
an edict permitting it to be moved in the convention ; and
instead of the old rule, which gave the senate a second

* Niebuhr, vol. ii. p. 435.



TILL THE FALL OF THE ROMAN REPUBLIC. 7^

veto on all such measures after the centuries had ap-
proved of them, it was enacted that the legislative acts
of the convention should have tlie force of law without
being- sent back at all to the upper house.*

The first fruit of this perilous innovation was a good
measure, the Ptetelian law of 420, which abolished im-
prisonment and bondage for debt.t

In 454, the amalgamation of the two orders was com-
pleted by the removal of the religious disqualifications of
the plebeians, who were now admitted into the two great
Collegesof the Priesthood, thatof the Pontiffs, the supreme
ecclesiastical council, and that of the Augurs, in whose
hands lay the auspices. These boards were at this stage
equally divided between the two classes of citizens,
but their members were self-elected. [j] The plebeians, of
course, entered the priestly colleges m profound ignorance
of the mysteries of the craft ; but they seem to have been
apt pupils in political slight-of-hand, for, in the same ge-
neration, the commoner Titus Coruncanius was the great-
est authority in the laws ecclesiastical as well as civil. §