Читать книгу Roman Public Life - A. H. J. Greenidge - Страница 37

Two other laws aimed at giving a legal existence to the plebeian community. One gave a legal sanction to the sacrosanctitas of the plebeian magistrates by enacting that any one who injured them should be sacer to the whole community.[420] Another gave a more binding character to the formal resolutions passed at the concilium of the Plebs. Its import is obscure, but there can be no doubt that it marks an important stage in the validity of plebiscita. We are told that it was meant to settle the controverted question whether resolutions of the Plebs were binding on Patricians;[421] and that it did this by enacting that “whatsoever the Plebs commanded by its tribes should bind the people (ut, quod tributim plebes jussisset, populum teneret).” It is possible that our authority has misunderstood the purport of this law, but hardly likely that the misconception is so great as that imagined by some modern theorists. It is certain that there is no implication that plebiscita had from this time the force of leges; it was agreed that the resolutions of the Plebs did not gain the force of Acts of Parliament until more than 160 years later. Recent attempts to interpret the Valerio-Horatian law have been based on the supposition that it was concerned with some mode in which a plebiscitum might become a lex, that it facilitated the transformation of a resolution of the Plebs into a binding law of the Populus, through an intermediary channel, consuls or Senate.[422] The wording of the law (hardly so remote from its original as has been supposed) scarcely gives a warrant for this view; it speaks only of giving a “binding character” to such resolutions. It must be remembered that at this time the plebeian community was not really bound by the resolutions of its own concilium, for this was not a legally recognised corporation. The Valerio-Horatian law may have made it such, a corporate body passing resolutions binding on all its members. But a law which is valid for a corporation is valid for those outside the corporation. The ordinances, it is true, which have this binding force must refer immediately only to the affairs of the community which dictates them. This was the case with plebiscita now. All self-regarding ordinances of the Plebs bound the Plebeians in the first degree, the Patricians, if it infringed existing rights, in the second degree. All plebiscita of a wider scope must still have been mere petitions to the consuls.[423] We can hardly conceive that the law discriminated accurately between what was possible to the Plebs and what was not; it was sufficient to recognise the already established maxim that corporations could frame their own rules dum ne quid ex publica lege corrumpant.[424] From this time onwards, down to 287, whenever we find plebiscita affecting matters of national interest or creating changes in the constitution,[425] we must assume that they were brought by the magistrates before the people to be ratified as laws; although doubtless the undefined limits of plebeian prerogative were often exceeded.

The first great utterance of the Plebs, which followed the Valerio-Horatian law, was one of this character, for it attached a criminal (and therefore a public) penalty to a derogation of duty to the Plebeians. On the proposal of M. Duilius, the tribune, the Plebs resolved that “any one who left the Plebs without tribunes or created a (plebeian) magistrate without appeal should be scourged and executed.”[426] It was a mode by which the Plebs tried to guard itself from any possible surrender of its liberties such as that which had created the decemvirate.

The Plebs, thus secured in its original privileges, recognised as a corporate body, and feeling, as a result of the Twelve Tables, that its law was in the main the law of the state, began to aim at something more than protection. From this time begins the continuous struggle for the complete equalisation of the two orders. It was opened by the tribune Canuleius in the year 445. He rightly held that social must precede political equality, and proposed in the assembly of the Plebs that marriage should be permitted between Patricians and Plebeians.[427] The only reasonable objection which the consuls, representing the feeling of the Patriciate, could bring forward against the measure, was the time-worn pretext that was said to have influenced the decemvirs in inserting the prohibition in their code, viz. that the Plebeians had no auspices, and that the disappearance of a pure race would mean a break in the chain which connected the state with heaven.[428] But the pretext expressed the real fears of the Patriciate. Intermarriage between the orders would break down the religious barrier which guarded the consulship; this was the prize for which the Plebs was striving. In fact a suggestion, emanating from the tribunes at the beginning of the year, had already assumed the form of a rogatio to the effect that “the people should have power to choose consuls at its pleasure either from the Plebs or from the patres.”[429] Over the marriage question the usual contest ensued, and with the usual result. The consuls led the opposition as long as they could; at last the Senate was beaten, the magistrates were forced to bring the question before the people, and marriage between the orders was legalised.[430] The tribunes followed up their victory by pressing their measure for the opening of the consulship. It was felt that open resistance would be useless; and a device was resorted to which illustrates the Roman genius for adaptability, for dignified political chicanery, and for satisfying at the same time the demands of reason and prejudice. The immediate evil felt was the irruption of the Plebeians into supreme office; but there must have been for some time a growing sense that the executive machinery of the state was by no means equal to the demands made on it. The two consuls were at once military leaders, the sole administrators of the higher civil and criminal jurisdiction, and the sole officials entrusted with the duty of registering and distributing burdens over the citizens. Such a combination of functions could not continue to exist with the widening of Rome’s political horizon, and the first attempt was now made at a division of the military, judicial, and registrative duties of the supreme magistrate.

To effect this object, and at the same time to make a concession to the Plebs, it was decided to replace the consulship by the office of military tribune with consular power (tribunus militum consulari potestate).[431] The change, permission for which may have been granted by a special lex,[432] consisted in raising some of the ordinary legionary delegates of the consul to a level with the commanding officer and suppressing the latter.[433] These extraordinary officials were elected at the comitia centuriata under the presidency of one of the chief magistrates, whether consul or consular tribune, for the time being. The normal number, six, was no doubt suggested by the six tribunes of the old legio or army. But this full number was not always appointed. The question how many military tribunes should be created for a given year depended on the exigencies of the state. Sometimes three were elected, sometimes four, at other times six, a number which seems never to have been exceeded.[434] It rested formally with the magistrate who guided the elections, practically perhaps with the Senate, to determine how many of these officers should be appointed for any given year. As military posts below the supreme command had long been opened to the Plebs, it goes without saying that Plebeians were eligible to the consular tribunate; their admission, in fact, had been one of the motives of the change.[435] Yet the patrician element was almost exclusively present in the earlier years of this magistracy, and to the end of the office it largely preponderated. Even if we reject the account that it was not until forty-five years after the institution of the consular tribunate (400 B.C.) that a Plebeian was actually elected to this post,[436] it is a significant fact that while purely patrician colleges are found, there is no instance of one composed exclusively of Plebeians. This fact may be simply a demonstration of the aristocratic character of elective office, and shows that the masses preferred the safety of the state to the advancement of their own order; for military skill and experience, and even knowledge of law, were still chiefly to be sought in the ranks of the patres.[437] Gradually, however, the Plebs became familiarised with power and displayed greater trust in the leaders of their own order. The year 400 does in any case mark a turning point in the history of the office. After it we find more Plebeians elected; in 399 and 396 they form a majority of the college, and events were tending to the demand, which was soon to be made, that a place in the supreme magistracy should be reserved for candidates who represented a majority of the citizens.

The power exercised by the consular tribunes was, briefly, that of the consuls; they had the same jus, imperium, and potestas,[438] and they enjoyed their insignia.[439] They presided over the elections for their successors, and took the auspices on these occasions, the recognition of a Plebeian’s right to consult the people auspicato breaking down the last barriers of religious prejudice.[440] If this magistracy was considered inferior in dignity to the consulship and only a “shadow” of that high office,[441] it must have been only because it was shared by more colleagues, and from a conviction of its occasional character. Yet it was noted as a curious fact that, from constitutional reasons unknown even to the early annalists, no consular tribune had ever enjoyed a triumph.[442]

It must not be supposed that the consulship was in any way abolished by this exceptional magistracy; it was simply kept in suspense during certain years. Each year it was decided afresh whether consuls or military tribunes should be appointed. Tradition represents the decision as resting with the Senate;[443] but whether it exercised this function by law,[444] or merely as the advising body of the magistrate who was to hold the election, is unknown. This discretionary power shows that the tribunate was regarded as an exceptional office; but its military and political convenience caused it practically to replace the consulship during the years when it was in vogue. The period of the military tribunate is one of seventy-seven years, extending from 444 to 367. These years show twenty-two consular collegia, and fifty-one of military tribunes.[445] The stop-gap lasted for half a century, and the compromise was maintained until in 367 a final settlement of the plebeian claim was reached.

Meanwhile the consulship had been modified in yet another way—one which was detrimental to the power of the office, but was meant to preserve influence to the Patriciate. In the institution of the censorship we find at work the same double motive which had influenced the government in creating the consular tribunate—the sense that two men could not manage all the business of a growing state, and the desire not to share with the Plebeians the unimpaired powers of the supreme office.

It had been the custom for the king, and subsequently for the consuls, to make an estimate, at certain intervals of time, of the effective military strength of the state. This was originally a registration of all the patrician burgesses; but, after the Servian reforms, it became a numbering of all the citizens, for the purpose of discovering those liable to military service, the class in which they should be enrolled, and, in case of tribute being imposed, the liability of each household to the property-tax (tributum). For these purposes it was sufficient for the heads of families (patres familiarum) to be summoned and questioned. Their answers formed the record, in accordance with which military and financial burdens were imposed, and political influence in the comitia centuriata was determined. The recognition of citizenship itself was dependent on this enrolment, for it is probable that from the earliest times membership of a tribe was the symbol of the possession of civic rights; while now the fact that the tribe was the basis of the concilium plebis and the comitia tributa gave a vote to every one enrolled in one of the tribus. The importance which the census had assumed was not compatible with the consular performance of its duties. The judicial and military functions of the annual magistrates interfered both with its regularity and its completeness, and the temporary suspension of the consulship offered a chance of vesting these duties in other magistrates. In the year 443 B.C. two new officials, called censores, were created,[446] who were to be elected by the comitia of the centuries. The office was to be confined to the Patriciate, possibly because it was felt that the solemn ceremony of purification (lustratio) which closed the census could not adequately be performed by plebeian hands. No one as yet dreamed of the future greatness of the office; its beginnings were small,[447] and the tribunes offered no opposition to the law which established an office which was to become the greatest of political prizes.

The censorship, though a standing, was in a certain sense an occasional office, for the tenure of power by the censors could never have been coterminous with the interval between each census—an interval usually of five years. The original tenure is unknown; possibly the censor was supposed to continue in office until his duties were fulfilled. It was not until the year 434 B.C. that the censorship was limited to a definite term of a year and a half by a lex Aemilia, proposed by the dictator Mamercus Aemilius.[448] The censors’ duties were as wide as the ramifications of the census. His primary function was that of registration, but one of the meanings of registration was the imposition of pecuniary burdens on individuals; hence the censor’s first connexion with finance. Another consequence of registration was of still greater import. Qualifications of character must always have been considered a necessary condition for the performance of even the meanest public functions at Rome. Admission to the centuries and to the tribes, and therefore the exercise of the active rights of voting and serving in the army, was possible only to one not stained by crime. The secular ground, one quite sufficient for a self-respecting community, was perhaps assisted by the religious idea that no impure man should be present at the mystic ceremony of purification. Such a testing of character could have been performed only in the most cursory way by the consuls. But now that a magistracy had been appointed which had leisure for a rigorous scrutiny, it was inevitable that the rule of manners (regimen morum) should in time overshadow every other aspect of the censor’s office, and that this dual papacy should become the most dignified and dreaded organ of the state.

Beyond the establishment of the consular tribunate, the censorship and the transference of the election of quaestors to the newly created comitia tributa,[449] the years 449 to 377 are not marked by any great constitutional changes. They were years of compromise but not of settlement; the restlessness of the reforming party was stayed by the constant pressure of war. It could not accuse the military policy of the governing class, which led its armies to victory and made all needful concessions to plebeian talent. It was the epoch of wars with the Aequians, Volscians, and Etruscans, of the siege of Veii, in which Rome made her first great territorial conquest, and of the Celtic migrations, which laid Rome in ashes, but made her the bulwark of the central Italian nations against northern invasions, and gave her strength to remodel and reform the Latin coalition of which she was the immediate head. Occasional discontent was at this, as at every other period, excited by the need of land distributions and the pressure of debt. Sp. Maelius fell in 439 and M. Manlius in 384; but the government, though it would not have its hand forced, was not wholly unwilling to make concessions to poverty. The citizen troops on foreign service were given pay in 406, and the land conquered from Veii was some years later allotted amongst the Plebs. While the discontent of the poor was thus kept in check, the government could afford to make harmless and unavoidable concessions to Plebeians of higher rank. In 421 the number of quaestors was raised from two to four; for, owing to the prolonged absence of armies, it was thought fit that a special quaestor should be assigned to each consul in the field.[450] The tribunes demanded that a fixed proportion of these places should be reserved for Plebeians. This was refused, but the compromise was arrived at that any of the four places might be filled from the Plebs, a concession which was unavoidable, for the absurdity of admitting Plebeians to the highest rank in the state and excluding them from this subordinate duty must have been felt. The permission did not, however, take effect until twelve years later (409 B.C.); but then Plebeians were returned for three out of four vacancies at the comitia of the tribes.[451] The first regular elective magistracy, however limited its powers and dignity, had now been won for the Plebeians.

Meanwhile the provisional government drifted on. It won military successes; it was gradually building up a hegemony in Italy. But the effect of war now, as at an earlier period, was ruinous to those to whom this government had to look for support. In spite of the palliative measures of pay for the army and occasional land distribution, a large portion of the yeoman farmers were again in a pitiable state. We cannot now speak of the social grievances of Plebeians as a whole; those members of the Plebs who began to occupy the benches of the Senate,[452] and who aspired to the military tribunate or quaestorship, were as wealthy as their patrician compeers. The race for office was keen between the members of the two orders. The Patrician had now to beg for his place on the curule chair. The first law against canvassing (ambitus) was passed in 432; it prohibited a candidate from whitening his toga with chalk before the elections[453]—a primitive measure, but one which shows that the plebeian electorate had at last become a power. But though isolated members of the Plebs were soaring into the upper regions, the mass of this body still consisted of bankrupt agriculturists. The situation which they regarded as desperate was, apart from the harsh law of debt, the normal condition of a modern proletariate. But the ideal of the ancient citizen was higher than our own; they wished to be proprietors of freehold land or of land held on an undisturbed tenure from the state.

This discontent was the opportunity of the richer Plebeians,[454] who wished to secure perfect political equality between the orders. In 378 loud cries were raised against the capitalists; a war with the Volsci gave the tribunes the chance of impeding the military levy, and some temporary concessions to debtors were unwillingly wrung from the government.[455] When the next year saw the burdens reimposed, two ambitious Plebeians, L. Sextius and C. Licinius Stolo, came forward with the proposition that the only sure way of permanently remedying the evils of the lower class was by securing one of the places in the consulship to members of their own order. They formulated a programme which was an attractive jumble of social and political measures. The plebiscitum which they promulgated promised a temporary relief from debt, proposed a limit to the amount of public land which any individual might possess, and declared that the military tribunate should be abolished, the consulship should be restored, and that one of the two consuls must henceforth be a Plebeian. This comprehensive measure, which attacked land, capital, and office,[456] was easily met. The two tribunes stood alone, and their eight colleagues were without difficulty induced to put their veto on the revolutionary measure. But it was soon shown that, if the veto might be used against the interest of the Plebs, the negative powers of the tribunes might be employed, with as much legality and as little justification, to paralyse the life of the state. The two tribunes, in virtue of the paramount authority which their sacrosanctitas had in the course of years secured to them, forbade the election of any magistrate of the people. For five years successively Licinius and Sextius were re-elected tribunes; during the whole of this period (375-371) the only magistrates appointed were the plebeian aediles and tribunes, and the state was without a head. A war with Velitrae led the tribunes to relax their anarchical edict for the year 370. But the long stand had reduced the number of vetoing tribunes to five. Another clause was now added to the original proposals to the effect that the two duumviri sacris faciundis, the keepers of the sacred books, the storehouse which furnished political intrigue with its surest weapons, should be raised to ten, and that half of these decemviri should be Plebeians.[457] None of the tribunes of 368 seems to have been prepared to offer any effectual resistance to any of the provisions of the law,[458] and the Patricians, driven from their first stronghold, took refuge in a dictator. It was a sign that they had lost the game, for the dictatorship could not be perpetuated. But it required the most strenuous exertions of the leaders of the Plebs to keep their followers up to the level of their original demands. The spiritless commons who had failed to elect members of their own order, consular tribunes and quaestors, when it had been in their power to do so, were for dividing the proposals, passing the social measures at once and leaving the question of the consulship for a future time. But Licinius and Sextius were not prepared to be social leaders without reward. The only division to which they subjected the complicated measure was to carry in 368 the clause sharing the new decemvirate with the Plebeians; the other clauses were postponed. In the next year, 367 B.C., they were tribunes for the tenth time. The opposition was worn out, and the Licinio-Sextian laws were passed in their original form. The greatest of plebeian victories had been won; from this time the Plebs is really the dominant element in the state. It was of little consequence that it did not assert its omnipotence for some years yet; all that it desired further was bound to come. As the magistracy was far more powerful than the people at Rome, the body that exercised the whole of the highest prohibitive power through the tribunate, and monopolised half of the highest positive authority in the consulship, was bound to be supreme. Even the purely patrician privilege of the patrum auctoritas was no great disturbance to this power. It became more a matter of form, the more the plebeian element entered into the Senate.

The Licinian laws had the unexpected effect of adding two new magistracies to the state. These were known as the Praetorship and the Curule Aedileship. The institution of the former office was a constitutional change of the first magnitude, being nothing less than the addition of a third colleague to the consuls. It is represented as having been a part of the compromise between the orders, the Plebeians allowing a third purely patrician magistracy to be created in exchange for the confiscated consulship.[459] But, even if we assume that the praetorship was originally confined to the patres—a statement which has with some reason been doubted[460]—it was necessity rather than ambition which directed the creation of the office. The impossibility of the consul’s paying adequate attention to duties of jurisdiction had been one of the motives which led to the establishment of the consular tribunate. Now that the consulship was permanently restored, provision had to be made for the permanent severance of civil jurisdiction from that office. As jurisdiction implied the imperium, and all the possessors of this regal prerogative were necessarily colleagues, the praetor was a colleague of the consuls. He was created, as the phrase ran, “under the same auspices,”[461] and therefore by the same assembly and under the same formalities of election. He bore the early title of the consuls, which, in spite of its inappropriateness to his usual peaceful duties, came to cling to him exclusively. But, though he was needed chiefly for purposes of jurisdiction, one branch of the imperium could not be singled out to the exclusion of the others. The praetor possesses all the aspects of the supreme power, the capacity for command in war, for initiating legislation, for summoning and transacting business with the Senate. How these powers were harmonised with, and subordinated to, the similar powers of the consuls, will be described elsewhere. The main business of the original praetor did not clash with that of his colleagues, for, though in theory perhaps the consul never did lose his control of civil jurisdiction,[462] practice decided against his interference with it, and the praetor was for more than 120 years (366-242) the sole civil magistrate of Rome. At the close of this period a second praetor was appointed, whose duty it was to decide cases between foreigners (peregrini) and between Roman citizens and foreigners—an addition rendered necessary by the growth of Rome’s territory and business, and which has no further political significance.

The praetorship, if it ever was a patrician preserve, did not long remain such. Thirty years after its institution (337 B.C.) a Plebeian, Q. Publilius Philo, successfully contested the post. The objections of the presiding magistrate, whether based on law or custom, were overruled and Plebeians declared eligible for the office.[463]

The appointment, simultaneously with the praetor, of two additional aediles, secured nothing for the Patricians, but a great deal for the state. The military duties which prevented the consul from administering justice and attending to registration, also hindered him from devoting himself to the minutiae of police and market regulations. It was an anomaly that these duties, so far as they fell to the lot of any special officials, should be in the hands of two plebeian assistants of the tribune.[464] It was from them that the two new magistrates borrowed their names, and the similarity of title and functions had the happy result of fusing into one corporation the plebeian officials and the new magistrates of the community. The latter were known in later times as aediles curules, from the curule chair which they had in common with the magistrates vested with the imperium. The Patriciate is said to have been the original condition of eligibility to the office;[465] but this was very soon abandoned in favour of the practice that the curule aediles should be chosen in alternate years from Patricians and Plebeians.[466] Later still—at what period is uncertain—the magistracy was annually accessible to members of both orders.

The accession of Plebeians to the consulship had been the key of the position; it had broken down the last pretended religious scruple, and a few years saw the patrician defences of every office overthrown. The year 356 witnessed the first plebeian dictator;[467] no law appears to have been required to secure the Plebs admission to this office, the qualification for the consulship being considered ipso jure to open a passage to the dictatorship. In 351 a Plebeian was first admitted to the censorship;[468] but mere admissibility was not enough, and in 339 one of the laws passed by the plebeian dictator, Q. Publilius Philo, reserved one of the two places in the censorship for members of his order.[469] How difficult it would have been for the Plebs to secure this office, apart from such a regulation, is shown by the fact that the first exclusively plebeian censorship dates only from the year 131 B.C.[470] With respect to the occupation of both of the consular places by Plebeians, a doubt seems to have existed of its legality, which was removed in 342 by a plebiscitum passed into law which declared “uti liceret consules ambos plebeios creari.”[471] We have already noticed their capture of the praetorship in 337 B.C.

There was but one more fort, but that a strong one, which the plebeian principes had to storm. This was the circle of the priestly colleges. The two religious guilds of paramount political importance, apart from the decemvirate (sacris faciundis) to which Plebeians had been already admitted, were those of the pontiffs and augurs. The pontifical college, which in the monarchy had consisted of five members, was now composed of four, the place occupied by the expelled king having never apparently been filled up.[472] The augural college, which should have consisted of six, was also at this time reduced by some accident to four members.[473] In the year 300 B.C. two tribunes, Q. and Cn. Ogulnius, brought forward a bill for raising the number of the augurs to nine, and that of the pontiffs to eight, the added numbers in either case to be taken from the Plebs.[474] The measure was understood to be primarily in the interest of the noble Plebeians, already in possession of curule office and triumphal ornaments, but it did to a large extent assist the rights of the Plebs as a corporation; for the religious veto henceforth, though it might be used by the nobility against the interests of the lower orders, could not be employed by the Patricians to check plebeian measures. The bill, which became law, established the religious equality of the two orders, so far as religion was a political force. It is true that, as we shall see, the Plebs were always excluded from certain non-political priesthoods; but, on the other hand, one of the religious colleges of national importance established in later times—the triumviri epulones, created in 196 B.C. for preparing the epulum Jovis and banquets given in honour of the other gods[475]—seems from its origin to have been composed wholly of Plebeians.[476] The change, however, though indirectly favourable to the Plebeians, was not of a democratic character; the priesthoods were kept within a few distinguished families through the principle of appointment. The method was that of cooptation, which we find existing in 453 B.C.[477] It was not until the last century of the Republic that the lex Domitia (104 B.C.) ventured to give the election, not indeed to the Populus, but to a special assembly composed of seventeen out of the thirty-five tribes chosen by lot, and even then the forms of nomination by the head of the college, and of cooptation by its members, were scrupulously observed.[478]

In sketching the invasion of office and honours by the plebeian nobles we have ventured to anticipate somewhat the chronological sequence of events. The commons, too, had during this period their share of political emancipation. Thirty-nine years before the Ogulnian law something had been done by legislation to increase the independence of the Plebs as a corporation, and to free the assemblies of the Populus from the legal control of the Patricians. In 339 B.C. a plebeian dictator, Q. Publilius Philo, carried a law making plebiscita binding on the people (ut plebiscita omnes Quirites tenerent).[479] The meaning of this law was clearly not understood by our authority. Its pretended wording is almost identical with that of the Valerio-Horatian measures;[480] but what was done on that occasion did not need repetition, and the object of the Publilian law must have been to secure more immediate legal validity to such measures passed by the Plebs as did not refer to that corporation alone—to make, in fact, the stages of transition from plebiscitum to lex a matter of formal and not of real importance.[481] Another law passed by the same dictator had reference to the patrum auctoritas. We have seen what this power had become, probably from the dawn of the Republic.[482] It was a claim by the patrician members of the Senate to accept or reject any measure of the Populus, when assembled by curies or by centuries. It never affected plebiscita, and we know too little of the comitia tributa to say whether the measures of that body were submitted to it or not;[483] the hampering of the comitia curiata was by this time of no importance, and the lex Publilia confined itself to the application of the auctoritas to the centuries. By this law it was enacted that the consent to laws passed by the comitia centuriata should be given before the voting commenced.[484] This provision was shortly afterwards (perhaps in 338 B.C.) extended by a lex Maenia to elections.[485] It is evident that neither of these provisions could have made the auctoritas nugatory, for it was not more difficult for a section of the Senate to decline to submit a question to the people than to reject it when passed. The provisions may, however, be a sign that the auctoritas was becoming a mere form; but its formal character was due to the rapidly increasing preponderance of Plebeians in the Senate.

But though the popular assemblies were thus free from patrician control, and the magistrates, subject only to the self-imposed limitation of taking advice from the Senate, could elicit any utterance they pleased from the comitia, there was one grave defect in the existing system of legislation which called for remedy. The plebeian magistracy, which circumstances had raised to a pre-eminence above all other powers, had not the freedom of the other magistrates. The rogationes of the tribunes, when accepted by the Plebs, still required some further sanction to become laws. This anomaly might have been remedied in one of two ways; either by giving the tribune the right of summoning and presiding over meetings of the people, making him in fact a magistrate of the community, and thus abolishing all distinction between Populus and Plebs, or removing the impediments which still hampered tribunician legislation in the concilium plebis. The conservatism of the Roman character, and perhaps the class feeling reviving again at the beginning of the third century in consequence of a renewed outbreak of the Plebs, caused the latter course to be adopted. In the year 287 the commons, oppressed by debt, again seceded—this time to the Janiculum. The plebeian dictator appointed to effect a settlement met social grievances by a political concession. He passed a law which most of our authorities represent as verbally identical with the Valerio-Horatian and Publilian laws,[486] but which seems to have been of a very different and far more definite character. The lawyers[487] regard the lex Hortensia as the measure which gave decrees of the Plebs the full force of laws. Henceforth there is between lex and plebiscitum merely a difference of form and name; their potestas is the same,[488] and even legal formulae use the words as practically identical.[489] A law could repeal a plebiscite and a plebiscite a law;[490] in the case of a conflict between the two, the rule of the Twelve Tables held good that the later repealed the earlier ordinance. It is not, therefore, surprising to find that in the annalists, even those with pretensions to accuracy, Populus and Plebs are used indifferently,[491] and it is only at times by carefully noting who is the presiding magistrate on the particular occasion, that we can determine whether the ordinance he elicits is a decree of the comitia or the concilium. The difference in the legislative powers of the two assemblies came in course of time to be little more than a difference in magisterial right;[492] while the comitia of the centuries and tribes were presided over by magistrates with the imperium, the concilium of the Plebs could be summoned and addressed only by plebeian magistrates. Yet the past history of the various assemblies was decisive as to their elective and judicial functions, and practice tended still further to fix the scope of the powers of each. But at the time of the lex Hortensia the difference between the two parliamentary sovereigns—the Populus and the Plebs—was even more marked; for the Patricians, excluded from the concilium, were still a considerable body, and the tribune had not yet become, like the magistrates with imperium, quite a servant of the Senate.[493] The Hortensian law had at the time a political significance which it afterwards lost; but it had a hidden import which was of vital consequence for the history of the state. By perpetuating the Plebs as a separate corporation it preserved the tribunate in all its primitive majesty, and thus maintained the power subsequently to be used as an instrument of senatorial and monarchical rule.

The tendencies of plebeian emancipation were almost all in favour of the upper classes; that it never was a democratic movement or one led by democratically-minded men is most strikingly evidenced by the utter indifference shown by the leaders to the economic evils under which the masses laboured, and which they used as instruments to further their ambition. Solon abolished slavery for debt at a single stroke; to the Roman it is a sacred thing, an expression of Romana fides; while the Greek προστάτης struggled for others, the Roman patron fought for himself. But continued pressure caused some tentative efforts to be made in the latter half of the fourth century to mitigate the curse of debt. A lex Marcia of 352 B.C. gave the debtor the right of summary arrest (manus injectio) of the usurer, to recover the fourfold penalty for the illegal interest;[494] while in 326 an attempt was made to give the future masters of the world the mastery over their bodies. In 313 a lex Poetilia was passed forbidding the imprisonment of nexi who could swear that they had reasonable hopes of ultimately satisfying their creditors;[495] it therefore abolished most contracts on the security of the person; although the addictio and imprisonment of debtors by order of the court continued through the Republic and into the Empire. But if the harshness of the law was one evil, ignorance of its forms was another almost equally great. An accident supplied the remedy. The pontiff Appius Claudius had reduced the forms of action to writing; but the book meant for the guidance of the pontiffs was immediately revealed to the profane eyes of the people by his clerk, one Cn. Flavius, a freedman’s son. The fraudulent secretary also posted up a tablet containing a list of court days (dies fasti) on which the legis actio was possible.[496] The penetralia of the pontifical college had now become the property of the masses, and although the chief pontiffs still furnished for centuries the highest names to Roman law, they professed the science openly,[497] and secular teaching soon tore the veil from the hidden features of jurisprudence.

But, apart from these minor benefits, the mass of the Plebeians did not share to any very large extent in the triumph of their order. The true reason of the individual Roman being thus thrust into the background can only be given by a review of the causes, soon to be treated, which moulded both the theory and practice of the developed Roman constitution. It must suffice here to trace the painfully inadequate results which were secured by these centuries of agitation by a glance at the distribution of power in the Roman state, at the date of the war with Pyrrhus, or the outbreak of the struggle with Carthage.

The old nobility had relaxed its exclusive hold of office, but only to give room for the still firmer grasp of a new. This was an aristocracy of mixed origin, composed indifferently of the leading patrician and plebeian families. The test of nobilitas was the capacity to point to ancestors who had held office which carried with it the right to sit on the curule chair. Its outward sign was the possession of the so-called jus imaginum. The imagines themselves were portrait-masks in wax, modelled from the face of the dead, and their primary use was for the purpose of funeral ceremonies. The original was moulded to be placed on the face of the deceased, and so to perpetuate his life in another world; but a copy was kept to give verisimilitude to his fictitious resurrection, which the burial of one of his descendants demanded. At such funerals actors were hired to represent the mighty dead; they wore their imagines, and were adorned with the insignia of the offices which these had filled in life, with the toga praetexta of the consul or praetor, the purple robe or the toga picta of the censor, and they sat on curule chairs round the Forum to listen to the orator who reminded them of their own great deeds.[498] As such a public funeral in the Forum was a concession of the state, the prospective right of having one’s mask exhibited, which constituted the jus imaginum, was a strictly legal privilege. It was possessed by all those who had been in possession of the toga praetexta and the sella curulis[499]—the dictator, master of the horse, consul, censor, praetor, and curule aedile. But, even apart from the occasions of such solemn mummery, the imago was a sign of the rank of its possessor. When not funereally employed it was suspended on a bust in the wings of the central hall (atrium) of the noble’s house. Beneath each portrait ran an inscription (titulus or elogium), which gave the names and deeds of the person represented. The portraits were joined by lines along the walls which showed the stemma or family tree. It is possible that this display in the atrium was looked on as a public exhibition, and it may originally have been limited by law; but in later times it seems best to conclude that the funerary exhibition alone was the subject of the specific jus.[500] But this outward token of nobility, which at Rome took the place of the modern title of honour, was of importance as emphasising the distinction between the nobiles and the ignobiles, in drawing the plebeian aristocracy closer to the patrician, which before the date of the Licinian laws had been in exclusive possession of this right, and in asserting the hereditary claim to office which the Roman electorate was only too ready to recognise. The acceptance of the claim was less dangerous than it is in most modern states, since primogeniture was not recognised in the transmission of honours,[501] and it was the capable and not the elder son whom the vote of the comitia raised to the curule chair. The claim too might become dimmed by disuse, and the Plebeian whose immediate ancestors had held high rank showed a brighter scutcheon than the Patrician who was connected with a noble stemma by ignoble links.[502] But the Patriciate itself conferred a kind of nobility, and one that, whatever its basis, might have been justified by office, for there could have been few members of the order who could not point to curule ancestors in the past. Although the Plebeian who first secured curule office, and thus ceased to be ignobilis, was called a novus homo, the designation seems never to have been applied to the member of a patrician gens.[503] Nobility, if once secured, could never be lost; but the hereditary claim to the suffrage of the electors was of little avail if unaccompanied by exceptional merit or by wealth. The claims of the latter were in fact given a kind of legal recognition by the rule established about the time of the first Punic war, that the cost of the public games should not be defrayed exclusively by the treasury.[504] The aedileship, whether curule or plebeian, was, as we shall see, not an obligatory step in the ascending scale of the magistracies; but, as it was held before the praetorship and the consulship, it is obvious that the brilliant display given to the people by the occupant of this office would often render fruitless the efforts of his less fortunate competitors, and that this legitimised bribery would exclude from office both the poorer nobiles and the struggling novus homo.[505]

The idea of a privileged nobility, which closed its ranks to new men, had become fixed by the date of the second Punic war.[506] By the close of that war the old stock had reached its maturity and had begun to decline; and, although men like Cato or Cicero might force themselves to the front by pertinacity and ability, or the belief in privilege might be rudely shaken by the people’s thrusting into the coterie a Varro or a Marius, the aristocrats came to look on the introduction of new blood as a pollution to the order.[507] Time, which purifies all things, had made the slave-blood of the successful Plebeian as blue as that of the descendant of kings by whom he sat.

But, in spite of this unholy alliance of the ancient foes, the distinction between the orders never was abolished. In Cicero’s time the separate rights of the Patricians could still be enumerated and defended by the orator. Besides the shadowy and ineffective powers of the patrum auctoritas and the interregnum, they possessed half the places in the great priestly colleges, which were shared between the orders, and certain priests—the Rex Sacrorum, the three great Flamines and the Salii—were chosen exclusively from their ranks.[508] The place of the Patriciate in the theory of the constitution—as illustrated by the auctoritas and the interregnum—is, as we shall see, very great indeed; but this theoretical importance conferred very little power, and the Plebeians, with their exclusive magistracies closed to the patres, with one place reserved for them in the consulship and censorship and the other accessible to their order, had won in the long race for honours.