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The first epoch of the Roman republic is that extending from the overthrow of the kings, about 509 B.C., to the passage of the Licinian Laws in 367 B.C. The history of this century and a half at Rome is primarily the history of internal strife and class antagonisms. During these early days the progress made by the republic toward the expansion of its territories or the extension of its foreign influence was inappreciable.

Rome, during these days, was contending on a position of near equality with the neighboring cities of Latium and Etruria. Twice during this period the independence, perhaps the very existence, of the city was seriously threatened.

The war against the Etruscans, which followed immediately upon the expulsion of the last of the Tarquin kings, resulted so unfavorably to Rome that not only was her territory considerably reduced in size but even the subjugation of Rome itself might probably have been accomplished but for the forbearance of her victorious opponents.

Later, in 390 B.C., the capture and sack of Rome by the Gauls nearly proved the death-blow of the Roman republic. The internal dissensions of this period were mainly responsible for the lack of military success. Although it is true that the history of early Rome, unlike the histories of the various early Grecian states, records few instances where hatred or bitterness arising from political defeat induced a citizen to turn traitor to his country, and although the approach of a foreign foe was generally sufficient to bring about a truce in Roman political hostilities and the union of all factions in the city against the common national enemy, still it must be remembered that the amount of energy possessed by a community is limited. When the all-absorbing questions agitating a people are those relative to internal political contests, the energies of the ablest men of each generation are spent mainly in political contests instead of being exerted for the common welfare of the community.

The influence which the internal dissensions at Rome must have exerted on her military success is shown by a comparison of the military history of the Roman republic prior to 367 B.C. with the wonderful career of conquest which the Roman republic entered into immediately after the passage of the Licinian Act. This act, although producing a partial and temporary cessation of class contests at Rome, nevertheless sufficiently healed the internal wounds of the state to enable it to rapidly advance from a city-republic to a world power.

"The results of this great change were singularly happy and glorious. Two centuries of prosperity, harmony, and victory followed the reconciliation of the orders. Men who remembered Rome engaged in waging petty wars almost within sight of the Capitol lived to see her the mistress of Italy. While the disabilities of the plebeians continued, she was scarcely able to maintain her ground against the Volscians and Hernicans. When those disabilities were removed, she rapidly became more than a match for Carthage and Macedon." (Macaulay.)

The republic created at Rome in the course of the sixth century before Christ was distinctively an undemocratic republic. The benefits to the plebeians resulting from the overthrow of the kingdom were of slight, if any importance. The political power of the state remained almost entirely in the hands of the patricians, and the right to hold office was restricted to the members of this caste. At this time the members of the patrician order were perhaps not very much inferior in numbers to the plebeian order; but the discrepancy between the numbers of the two orders so rapidly increased that by the beginning of the fourth century before Christ the government of Rome had become practically that of an oligarchy.

In the latter days of the republic, in the contest which resulted in the overthrow of the republic, the basic reasons for the struggle were of an economic rather than a political character. In the period now under discussion the political element predominated in the class contests, although various elements of disagreement were to be found existing side by side.

"Three distinct movements agitated the community. The first proceeded from the body of full citizens, and was confined to it; its object was to limit and lessen the life-power of the single president or king; in all such movements at Rome, from the time of the Tarquins to that of the Gracchi, there was no attempt to assert the rights of the individual at the expense of the state, nor to limit the power of the state, but only that of its magistrates. The second was the demand for equality of political privileges, and was the cause of bitter struggles between the full burgesses and those, whether plebeians, freedmen, Latins, or Italians, who keenly resented their political inequality. The third movement was an equally prolific source of trouble in Roman history; it arose from the embittered relations between landholders and those who had either lost possession of their farms, or, as was the case with many small farmers, held possession at the mercy of the capitalist or landlord. These three movements must be clearly grasped, as upon them hinges the internal history of Rome. Although often intertwined and confused with one another, they were, nevertheless, essentially and fundamentally distinct. The natural outcome of the first was the abolition of the monarchy—a result which we find everywhere, alike in Greek and Italian states, and which seems to have been a certain evolution of the form of constitution peculiar to both peoples." (Mommsen.)

The overthrow of the monarchy was accomplished quickly and effectively. Unlike the case in most countries, the monarchy once overthrown, there was no attempt for nearly five centuries to reëstablish it. The word "king" was regarded with such hatred that the mere accusation made against any public leader that he was seeking to make himself king was generally sufficient to utterly destroy his influence, even when such charges were unfounded and unsupported by evidence.

The men who established the new form of government created after the expulsion of Tarquinius adopted the theory of political checks and balances which we afterwards find exerting such a strong influence upon the framers of our American Constitution. It was necessary that at least a part of the powers formerly exercised by the king should be intrusted to some official under the new régime. The greatest efforts, however, were made to render it impossible for any Roman official to use the governmental powers granted him in such a manner as to secure for himself the kingly office. The mere provision that the highest official in the government should be elected, rather than succeed to the office by right of descent, was rightly judged to be by itself an insufficient protection against the seizure of supreme power by some Roman tyrant.

A stronger safeguard was found in the division of the highest power in the state between two officials, who later came to be known as consuls. (The officers afterwards known as consuls were for a considerable period known as prætors; after the term consul came into use the name prætor at a still later period was given to the possessor of a new office created shortly after the passage of the Licinian Act.) The kingly power, or that part of it not absolutely abolished or given to the religious officials, was vested jointly in the two consuls, each possessing the full right to exercise all the functions of the office. Under this division of power each consul was considered a most effective check upon any ambition for a crown which might be possessed by the other.

Another safeguard, a safeguard which unfortunately has recently been too much disregarded in the United States, consisted in the short term of office prescribed by the new law, the consuls and other Roman officials being elected for a term of one year only.

While, as has been said, the consuls retained in general all the former powers of the king, still in some respects these powers were curtailed:

1. By the Valerian Law of 509 B.C. each person condemned by the consul to capital or corporal punishment was entitled to an appeal as a matter of right. It had previously been optional with the king whether to grant an appeal.

2. The consuls never possessed the various pecuniary rights of the kings, such as that of having the fields cultivated by the citizens.

3. The quæstors, who had previously been appointed or not by the king himself, as he saw fit, now became regular state officials.

4. The religious duties and powers of the king did not pass to the consul. The highest religious officer of the state, the pontifex maximus, was from this time on elected by the Pontifical College. The various colleges of priests (all of whom had formerly been appointed by the king) now filled up vacancies in their own numbers. Other religious officers were appointed by the pontifex maximus. On account of the close connection between the Roman religion and the Roman government, the pontifex maximus became a strong political power in the city. By the power of this officer and his associates to hold the auspices and regulate the calendar, they were enabled to prevent or permit the holding of the public assemblies, extend or decrease the term of office of public officials, and exercise a greater or less influence on almost every public question or proceeding.

5. The insignia and marks of dignity permitted to the consul were of a less imposing character than those previously granted to the king. While the king had been accompanied by twenty-four lictors, the consul was permitted only twelve, and the axes were taken away. While the king had worn the purple robe, the consul wore merely the ordinary Roman toga with a purple border. The royal chariot of the king did not descend to the consul, who was obliged to travel on foot within the limits of the city.

6. There had been no provision in the Roman law for any redress for a wrong done by the king, but the consul, upon the termination of his year of office, stepped down at once into the mass of the citizens and could at any time be punished for any malfeasance during his official life.

7. An indirect restriction of the powers of the consuls arose from the increased dignity and authority of the Senate. The change in this respect, however, was practical rather than theoretical. According to the strict form of the law the Senate still bore the same relation to the consuls that they had previously borne to the king. The Senate was still nothing more than an advisory body, and all vacancies among the senators were filled by appointments made by the consuls. The increased importance of the Senate arose out of the advantage which an official holding office for life always possesses over a superior officer holding office for only a brief term. In the present day it frequently happens that a political appointee at the head of a department or bureau, with the workings of which he is not familiar, finds himself compelled to rely almost implicitly upon some subordinate official whose working life has been spent in that office.

The short term of a consul and the life term of the members of the Senate thus tended to secure to this body an ever increasing influence. It was seldom that any serious conflict arose between the consul and the Senate. The consuls were men who were already senators or who expected to become such, while of the senators, many had held the office of consul and many more hoped to hold it in the future.

This curtailment of the kingly power and the division of the powers which remained between two consuls of equal rank, while it secured the protection of the citizens from the danger of a new monarchy, strongly hindered vigor and unity of action in the prosecution of any enterprise. There were times, therefore, during the succeeding centuries in the life of Rome, when to meet temporary emergencies a stronger and undivided rule was necessary. To meet this need a new official was created—the dictator—who might be nominated by one of the consuls upon the authorization of the Senate and who, during the term of his office, which could not exceed six months, possessed and exercised almost absolute authority at Rome, and superseded all the other officials in their duties.

The original intention was that such an official should be appointed only in cases of military necessity, but later this office was frequently created to aid the patricians in their contests with the plebeians. Only the patricians were eligible for any of the newly created offices. The Senate was composed exclusively of this order, and it has already been explained, in Chapter II, how, through the expedient of putting more Roman citizens in some centuries than in the others, the patricians were able to control the vote of the majority of the centuries in the comitia centuriata.

It is thus apparent that the mere overthrow of the kings at Rome had accomplished little for the ordinary Roman citizen. In fact, the rule of a single monarch is often more beneficial to the poorer classes of a community than the rule of a favored class. The establishment of a republic, however, had eliminated one political element, and cleared the stage for the contest between the patricians and plebeians.

That the economic condition of the poorer classes in Rome changed for the worse after the institution of the republic is certain. It was for the interest of the early Roman kings to favor and protect the small Roman farmers, both for military and economic reasons. While the permanent interests of the patricians would have been promoted by the encouragement of this class, their temporary selfish interests called for the destruction of the Roman middle class, primarily the middle agricultural class, and the division of all Roman inhabitants into a small aristocracy on the one hand and a large proletariat on the other.

The two forms of exactions which fell the heaviest upon the Roman poorer classes were the barbarous laws against debtors and the dishonest administration of the public leaders. The desperate condition of the debtors at Rome at this time was a result of a number of different causes, including the high rate of interest, the right of the creditor to sell the debtor into slavery if the debt were not paid, the policy of the patrician creditors to demand the last pound of flesh in all their transactions, and the conditions which existed in Rome at this time which compelled many small landowners, against their wish and without any fault of their own, to become borrowers of money.

One harsh feature of this condition was the fact that it was the military service, which as Roman citizens they were compelled to render to the state, that more often than any other cause compelled the plebeians to borrow money and thus ultimately drove them to their ruin. For example, a small Roman farmer, through absence from his home on military service for the state, might lose his crop for the year. To support himself and his family until the next harvest, and to supply the means for the planting of the next year's crop, he would be obliged to borrow money, which, under the exorbitant rates of interest, soon reached an amount out of proportion to the original loan. Perhaps a second campaign would deprive him of the means of returning the loan, and his lands would be taken from him and he himself sold into slavery. As a final blow, the unfortunate plebeian saw the lands which had been won for the state by armies composed of his fellow plebeians reserved entirely for the use of the favored patrician order.

No more pernicious and unfair system could have been evolved than that which governed the management of the Roman public lands in the very first years of the republic. The earlier policy, under the kings, had been to divide the public land of the state into small allotments and to distribute it among those citizens of the state who most needed it. With the republic this policy ceased, and the public lands were nominally retained in the public ownership, but in reality were let out on leases to the patricians and a few favored men among the plebeians.

In theory the state retained the right to take back the land at any time and to receive a rent from the lessee; but in practice both these rights were disregarded. The lands held in this manner by the patricians were soon considered by them as much their own property as those to which they held the legal title, and were devised and pledged by their owners in substantially the same manner as any other land. The collection of the rent was soon abandoned; and not only this, but the land being in theory state land, the lessee (who was supposed to, but did not, pay rent) was not liable to pay taxes on this land.

The final working out of this matter may be summed up by saying that the poorer class of the plebeians furnished most of the soldiers for the campaign, stood most of the expense, suffered nearly all the losses both of life and property, were excluded from any share in the land captured in the war, and as a culmination saw their taxes yearly increased on account of the fact that the patricians, who monopolized the public land, succeeded in dodging the payment of rent and in evading the payment of taxes.

It was these conditions which brought about the remarkable spectacle of what may be well designated the first recorded strike in history—a strike in the Roman army. In 495 B.C. the Roman citizens were summoned to take the field for another military campaign. They refused to obey. One of the consuls, Publius Servilius, however, induced them to make the campaign by suspending some of the laws bearing most heavily upon the poor and by releasing all persons in prison for debt. But hardly had the army returned from a victorious campaign than the other consul, Appius Claudius, as a reward for their victory began to enforce the debtor laws with extraordinary severity.

Once more, in the following year, the plebeians were induced to take the field, mainly on account of the popularity of the dictator appointed for the management of this campaign, Marius Valerius, and his promise that upon the termination of the campaign permanent reforms would be made in the law. Again the Roman army was victorious, and again the patricians broke faith with the plebeians and refused to carry out their promised reforms.

The next scene in this conflict is one almost without parallel, either in ancient or modern history. The plebeians, disgusted by the selfishness and perfidy of the patricians, determined to abandon Rome to the patrician order and to found a new city for themselves upon the "Sacred Mount," a hill situated between the Tiber and the Anio. The patricians, thunderstruck by this unexpected movement, and being far more in need of the plebeians than the plebeians were of them, immediately made sufficient concessions to the plebeians to induce them to return to Rome.

Some of the concessions made at this time related to temporary provisions for relief of debtors; but the great innovation was that which established the office of tribune. The character of the office of tribune is absolutely unique in the political history of the world. The tribunes, elected by the people in the comitia tributa, were plebeian officers who were at first without any constructive part in the carrying on of the Roman government and whose sole duty at the outset was to protect the members of the plebeian order from the oppression of the patrician officials. This protection was exercised mainly through the use of the veto power given to the tribunes. Under this power the tribunes had the right at any time to put a stop to any act either by any of the public assemblies, by the Senate, or by any of the magistrates. It was a power which, if exercised to its fullest extent, could put a stop to the very carrying on of the government.

It speaks much for the moderation of the Roman tribunes that through all the centuries of the Roman republic little serious inconvenience was experienced from the use of this power. With few and unimportant exceptions, it was exercised only in cases where the welfare of the plebeians as a class, or of some particular plebeian, demanded it.

The creation of the office of tribune was merely one more example of that system of checks and balances which played so prominent a part in the framing of the government after the expulsion of the king—a system of checks and balances so strikingly resembling that in our Federal Constitution. The tribunes were introduced as a protection for the plebeians and an additional restraint upon the magistrates.

While at first the power and duties of the tribunes were entirely of a negative nature, they gradually acquired an authority of a positive character. The tribunes generally presided over the comitia tributa and took the lead in securing the passage of laws by that body. In addition they acquired judicial powers, and in cases where a plebeian had been wronged they could summon any citizen, even the consuls, before them, and might impose even the death penalty. The persons of the tribunes were declared inviolable, and any one who attacked them was thought to be accursed. The number of the tribunes was at first two, but was later increased to five and still later to ten.

The second great victory won by the plebeians was in the passage of the Publilian Law in 471 B.C. This law was proposed by the tribune Valerius Publilius, and was brought about by the murder of the tribune Gnæus Genucius. The main object of this law was the protection of the plebeian assembly and the plebeian officers, but its exact details are unknown. It is believed by some that the comitia tributa really came into existence with this law, and that previously the plebeians had voted by curies. The law limited to plebeian freeholders the right to vote in a plebeian assembly, and excluded nearly all the freedmen and clients who were under the influence of the patricians as well as the patricians themselves. It is possible also that the increase in the number of the tribunes from two to five was made by this law. In 462 B.C. an unsuccessful attempt was made to abolish the office of tribune; in 457 B.C. came the increase from five tribunes to ten.

From 451 to 450 B.C. the regular system of government at Rome was interrupted by the election and rule of the decemvirs. The episode of these decemvirs has an important place in Roman history; but (as is the case with all events in Roman history in the fifth century before Christ) our knowledge of these men, of their work, and of their overthrow is very uncertain. The election of these officials was primarily brought about by the recognized necessity for a reform and codification of the Roman laws. If the duties of these men had been limited to the preparation of such code, its character and position would not have been unsimilar to that of numerous other bodies of men appointed for a similar purpose in many countries and in all ages. But the peculiarity about the work of the decemvirs lies in the fact that upon their appointment all the ordinary Roman offices were discontinued and the entire judicial and executive administration of the state passed into the hands of the decemvirs.

During their first year of office the decemvirs drew up ten tables of laws, so called because the laws were engraved upon tables of copper and stood up in the Forum on the rostra in front of the Senate house.

According to the legends (for the Roman historical records of this century are little more than such), it had originally been intended to intrust the decemvirs with power only for a single year, but their work being incomplete at the expiration of the first year, they were chosen for a second year. It is uncertain whether the decemvirs for the second year were exactly the same men as those for the first year. According to some reports some of the decemvirs of the second year were plebeians, while none of those originally elected belonged to that order.

During their second year of office the decemvirs prepared two more tables of laws, and these, with the ten tables prepared during the preceding year, constituted the famous "Law of the Twelve Tables," the first Roman code of which we have any knowledge. Only fragmentary extracts from these tables have come down to us, but these fragments furnish us with such an insight into early Roman laws, institutions, and customs that they are here inserted:

THE TWELVE TABLES

Table I

THE SUMMONS BEFORE THE MAGISTRATE

1. If the plaintiff summon a man to appear before the magistrate and he refuse to go, the plaintiff shall first call witnesses and arrest him.

2. If the defendant attempt evasion or flight, the plaintiff shall take him by force.

3. If the defendant be prevented by illness or old age, let him who summons him before the magistrate furnish a beast of burden, but he need not send a covered carriage for him unless he choose.

4. For a wealthy defendant only a wealthy man may go bail; any one who chooses may go bail for a poor citizen of the lowest class.

5. In case the contestants come to an agreement, the magistrate shall announce the fact.

6. In case they come to no agreement, they shall before noon enter the case in the comitium or forum.

7. To the party present in the afternoon the magistrate shall award the suit.

9. Sunset shall terminate the proceedings.

10 … sureties and sub-sureties. …

Table II

JUDICIAL PROCEDURE

2. A serious illness or a legal appointment with an alien … should one of these occur to the judge, arbiter, or either party to the suit, the appointed trial must be postponed.

3. If the witnesses of either party fail to appear, that party shall go and serve a verbal notice at his door on three days.

Table III

EXECUTION FOLLOWING CONFESSION OR JUDGMENT

1. A debtor, either by confession or judgment, shall have thirty days' grace.

2. At the expiration of this period the plaintiff shall serve a formal summons upon the defendant, and bring him before the magistrate.

3. If the debt be not paid, or if no one become surety, the plaintiff shall lead him away, and bind him with shackles and fetters of not less than fifteen pounds' weight, and heavier at his discretion.

4. If the debtor wish, he may live at his own expense; if not, he in whose custody he may be shall furnish him a pound of meal a day, more at his discretion.

6. On the third market day the creditors, if there are several, shall divide the property. If one take more or less, no guilt shall attach to him.

Table IV

PATERNAL RIGHTS

3. If a father shall thrice sell his son, the son shall be free from the paternal authority.

Table V

INHERITANCE AND TUTELAGE

3. What has been appointed in regard to the property or tutelage shall be binding in law.

4. If a man die intestate, having no natural heirs, his property shall pass to the nearest agnate.

5. If there be no agnate, the gentiles shall succeed.

7 … if one be hopelessly insane, his agnates and gentiles shall have authority over him and his property … in case there be none to take charge. …

8 … from that estate … into that estate.

Table VI

OWNERSHIP AND POSSESSION

1. Whenever a party shall negotiate a nexum or transfer by mancipatio, according to the formal statement so let the law be.

5. Whoever in presence of the magistrates shall join issue by manuum consertio. …

7. A beam built into a house or vine trellis shall not be removed.

9. When the vines have been pruned, until the grapes are removed. …

Table VII

LAW CONCERNING REAL PROPERTY

5. If parties get into dispute about boundaries. …

7. They shall pave the way. If they do not pave the way with stones a man may drive where he pleases.

8. If water from rain gutters cause damage. …

Table VIII

ON TORTS

1. Whoever shall chant a magic spell. …

2. If a man maim another, and does not compromise with him, there shall be retaliation in kind.

3. If with the fist or club a man break a bone of a freeman, the penalty shall be three hundred asses; if of a slave, one hundred and fifty asses.

4. If he does any injury to another, twenty-five asses; if he sing a satirical song let him be beaten.

5 … if he shall have inflicted a loss … he shall make it good.

6. Whoever shall blight the crops of another by incantation … nor shalt thou win over to thyself another's grain. …

12. If a thief be caught stealing by night and he be slain, the homicide shall be lawful.

13. If in the daytime the thief defend himself with a weapon, one may kill him.

15 … with a leather girdle about his naked body, and a platter in his hand. …

16. If a man contend at law about a theft not detected in the act. …

21. If a patron cheat his client, he shall become infamous.

22. He who has been summoned as a witness or acts as libripens, and shall refuse to give his testimony, shall be accounted infamous, and shall be incapable of acting subsequently as witness.

24. If a weapon slip from a man's hand without his intention of hurling it. …

Table IX

(No fragments of this table are extant.)

Table X

SACRED LAW

1. They shall not inter or burn a dead man within the city.

2 … more than this a man shall not do … ; a man shall not smooth the wood for the funeral pyre with an ax.

4. Women shall not lacerate their faces, nor indulge in immoderate wailing for the dead.

5. They shall not collect the bones of a dead man for a second interment.

7. Whoever wins a crown, either in person or by his slaves or animals, or has received it for valor. …

8 … he shall not add gold … ; but gold used in joining the teeth. … This may be burned or buried with the dead without incurring any penalty.

Table XI

(No fragments of this table are extant.)

Table XII

SUPPLEMENTARY LAWS

2. If a slave has committed theft, or has done damage. …

3. If either party shall have won a suit concerning property by foul means, at the discretion of the opponent … the magistrate shall fix the damage at twice the profits arising from the interim possession.

The decemvirs were forcibly overthrown before the close of their second year in office. The stories as to the cause are not only conflicting but diametrically so. According to one historical theory, the rebellion against the decemvirs began among the plebeians on account of the oppression which they suffered from the hands of these men; while, on the other hand, it is believed by many historians that the decemvirs were overthrown by the patricians because they were giving too many concessions to the plebeians. Whatever the cause, the power of the decemvirs was taken from them and all the former Roman officials and assemblies were reëstablished, with the old powers and jurisdictions. The "Law of the Twelve Tables," which the decemvirs had drawn up, however, remained for centuries as the great basis of Roman law.

Five years after the deposition of the decemvirs the tribune Canuleius secured the passage by the comitia tributa of the Canuleian Law, which marked another milestone passed by the plebeians in their march toward equality before the law.

Two great concessions were given by this act, one in the field of private and the other in the field of public law. The law which had existed from the earliest days in Rome, and which had been incorporated in the "Law of the Twelve Tables," prohibiting intermarriage between plebeians and patricians, was abolished. It was also provided that any year the people, instead of electing consuls, might elect military tribunes, who should possess all the powers, although not all the dignities, of the consuls. Either patricians or plebeians could be elected to the office of military tribunes.

The election of military tribunes was authorized by law many years before any such officials were elected in Rome; but the fear that the consular power might sometime fall into the hands of a plebeian induced the patricians in 443 B.C. to secure the passage of a law for the creation of new officials who should possess some of the powers previously held by the consul and who must be chosen from the patrician order.

These new officials, called censors, were to be two in number and were to be elected every five years. At first these officials held office until the time arrived for the election of their successors, but later their term of office was limited to one year and a half, there thus being three and one half years out of every five-year period when this office was in abeyance.

The most important duty given to the censors at the outset seems to have been the authority of filling vacancies in the Senate as it became necessary to keep the number up to the required three hundred. Up to this time this power of appointing senators had been exercised by the consul. As time went on, however, the powers of this office rapidly increased until at length it became the highest post of honor at Rome, the men elected censors being almost invariably former consuls or military tribunes.