A History of the Roman World

by Scullard, H. H.

  When once the principle of equality of office had been established, the plebeians soon reached all the magistracies; a plebeian was dictator in 356 and censor in 351. But the number of plebeian families which held the consulship was small: the Genucii and Licinii were the chief representatives before 361, the Poetelii, Popillii, Plautii and Marcii in the following few years. Sometimes there were apparently no suitable plebeian candidates, or else they were shouldered out by their rivals, since on six or seven occasions between 355–343 two patrician consuls were elected.6 In consequence some legislation was carried in 342, resulting from a mutiny of the army in Campania and from the initiative of a tribune, backed perhaps by a secession. A lex sacrata militaris forbade the degradation of a military tribune and the forcible discharge of a soldier, thus checking the power of the consul on active service. L. Genucius is said to have passed laws (1) prohibiting the taking of interest, (2) forbidding the holding of the same office twice within ten years, and (3) declaring that both consuls might legally be plebeians. Of these measures the first is reasonable; the second, if genuine, was certainly not observed; the third is possible as a theoretical ruling; it was not till 172 BC that two plebeians held the consulship together, yet it is unlikely that two patricians did so after 342.

  More important than these Leges Genuciae were the Leges Publiliae of 339. The consul Q. Publilius Philo, who later had a distinguished career, becoming the first plebeian praetor in 337 and the first consul to have his magistracy extended by a prorogatio imperii in 326 (p. 120), was named dictator by his colleague in 339. In the Comitia Centuriata he carried three laws in favour of the plebeians; two of them strengthened the popular sovereignty. These concessions were obtained perhaps because of the severity of the Latin revolt which emphasized the value of the Roman people on the field of battle. The measures were: (1) That one of the censors must be a plebeian; this ended the patrician monopoly of an office which had been created partly to evade the consequences of admitting the plebeians to the consulship. (2) That the sanction of the patres must be given beforehand to all laws proposed by a magistrate in the Comitia Centuriata. Before this enactment the only exclusive rights left to the patricians were the occupancy of a few priesthoods, the appointment of an interrex, and the patrum auctoritas by which they decided on the form of a law. By this last privilege they could block a law passed in the Comitia Centuriata on the ground of its faulty form; but by Philo’s enactment faults could be corrected before submission to the Comitia and so the power of the patres was weakened. Yet as a magistrate proposing a law now had to discuss it before the Senate, the influence of that body as a whole increased over the magistrates, as it decreased over the people. The patres, however, had been robbed of a useful political weapon. (3) That plebiscita should be binding on the whole populus. This was a reassertion of one of the clauses of the Valerio-Horatian laws of 449, if the latter are considered genuine. It is not, however, probable that plebiscita were recognized as having the force of laws (leges) without some limiting clause until 287.7 But the Publilian legislation was another landmark in the history of the orders, and during the fifty years which followed the Gallic invasion the equalization of the orders had been almost completed.

  3. SOCIAL AND POLITICAL ADJUSTMENTS

  Before reaching calmer waters the ship of state encountered further squalls, arising partly from a radical social readjustment which had begun with the Licinian-Sextian legislation. These laws had in practice abolished the outstanding political differences between the orders, and the patricians were forced to hand over the helm to a new nobility, composed partly of themselves and partly of plebeians. But while this exclusive body absorbed many of the older plebeians, there grew up in the place of the latter a new populace in Rome with fresh demands. The old contrast between patricians and plebeians gave place to a coalition of the moderates of both parties, while at one extremity there remained a small right wing of patricians, at the other an urban proletariat.

  The creation of this new patricio-plebeian nobility was caused by the decline of the patricians, whose gentes were steadily decreasing in number, and by the increasing political influence and numbers of the plebeians, which were due to the large annexations of territory, the extension of Roman citizenship in Italy, the attraction of the capital and the value of the plebeians in war. Their leaders gradually fused with the more moderate patricians and formed a new caste during the second half of the fourth and the beginning of the third centuries. Outstanding figures were the patrician P. Valerius Publicola and Q. Fabius Rullianus, and the plebeian Q. Publilius Philo, P. Decius Mus and his son, C. Marcius Rutilus and M’. Curius Dentatus. The number of plebeian families to attain to the consulship varied at different times: when the office was first opened to them it was monopolized by a few; during the decade after 340 eight new gentes were admitted to the charmed circle, but then the numbers lessened until the last decade of the century when more novi homines were successful. It is uncertain to what extent families from Latin and Campanian cities shared this privilege of office: Tusculum gave Rome the Fulvii and Ti. Coruncanius and indeed more consular families than any other municipality.8 Many Latins doubtless settled in Rome, where they enjoyed the rights of commercium and intermarriage and where by residence they could claim full citizenship. But a large number of them probably belonged to the poorer classes and had little prospect of or desire for office, and many, being landless, would be enrolled in one of the four urban tribes where their voting power was restricted since the constituency was larger than those of the rustic tribes.

  In contrast to the new nobility was the steadily increasing urban population, which included these poorer Latins and indeed all the humbler artisans that were attracted to the capital. Many half-citizens (cives sine suffragio) and strangers would take up residence in Rome, as economic conditions and the growth of small industries increased the importance of the city. A large part of this urban populace consisted of freedmen. The manumission of slaves was becoming common, especially as many were prisoners of war who were often as civilized as their masters. As early as 357 a government tax of 5 per cent was levied on manumission and, although a freedman (libertus) could not officially be enfranchised, his sons (libertini) could, and the liberti were doubtless often able to circumvent the law. As most of the libertini would be engaged in industry rather than in possession of land, they too would be included in the four urban tribes; possession of land, which was not a necessary qualification for registration on the citizen-roll and the tribes, probably alone entitled a man to registration in a rustic tribe.

  The first attempt to improve the position of this urban population was made by Appius Claudius, one of the outstanding personalities of early Rome, at a time when the Romans needed to mobilize their resources against the Samnites and Etruscans. The censorship of Appius in 312 was memorable for his public works and political independence. He improved the water supply by building the first of the Roman aqueducts, which brought water from the Sabine Hills to the increasing population of the city, and he constructed one of the great military roads, with which Rome secured her hold on Italy, the Via Appia between Rome and Capua. (He later built a temple to Bellona, the goddess of war, in the Campus Martius, where the Senate often met, especially to receive victorious generals and foreign ambassadors.) Though a patrician, he attempted to win over the landless urban population by distributing these humiles throughout all the tribes (i.e. rustic as well as urban), and by allowing each man to register his property where he chose. This reform gave the landless (but not necessarily poor) population an advantage over the landholders of the rustic tribes, who might not always be able to leave their farms and come to Rome in sufficient numbers to assert their will in public business, whereas previously they had easily been able to outvote the four urban tribes. Appius’ measure won him the support of the proletariat and the extreme patricians at the expense of the new nobility. He is said to have given further offence to the nobility in revising the list of the Senate, a right
which recently had been transferred to the censors from the consuls by a lex Ovinia. He admitted the sons of freedmen to the Senate, but they were promptly rejected by the consuls of the next year, if they were in fact ever admitted. But now that the curule magistracies were open to them and they had a voice in the assemblies they might reach the Senate through a magistracy: for instance, Cn. Flavius, aedile in 304, was the son of a freedman. The reform of Appius provoked considerable opposition and it was repealed by the censors of 304, Q. Fabius Maximus Rullianus and P. Decius Mus, leaders of the new nobility.9 The proletarians and libertini were again confined to the four urban tribes, and landed property came back into its own. Appius’ career, which seems more typical of a Cleisthenes or Pericles than an early Roman statesman, was checked for the moment, though he crossed swords with the new nobility more than once in the first decade of the next century.

  Cn. Flavius, a magistrate’s clerk (scriba) and the son of a freedman, who was elected aedile in 304, published a legal handbook of phrases and forms of procedure (legis actiones) and posted up in the Forum a calendar of the dies fasti and nefasti, showing the court days. The traditional account presents many difficulties, since inter alia the calendar already had been included in the Twelve Tables. According to Pliny, Flavius was acting with the help of Appius; but Pomponius relates that Flavius stole the book of legis actiones from Appius, who had composed it, and presented it to the people who promptly elected him tribune, senator and curule aedile. Though the law was common to both orders, magistrates could often block proceedings on technical grounds, through their more intimate, if not exclusive, knowledge of the precise and intricate phraseology. Perhaps by publishing for the first time, or more probably by making widely known these forms of procedure, the ius civile Flavianum marks a real step in the equalization of the orders.

  In the year 300 the struggle of the orders entered its penultimate phase. The consul M. Valerius Maximus passed a law which defined and confirmed the right of appeal to the people against a capital sentence; the judicial and coercive powers of the magistrates in the city were checked. At the same time two tribunes, Cn. and Q. Ogulnius, despite the opposition of Appius Claudius, carried a law to enlarge the priestly colleges and throw them open to plebeians. The number of pontiffs was raised from five (probably) to nine by the inclusion of four plebeians; and the four patrician augurs received five plebeian colleagues. Thus the plebeians won a majority in the lesser of the colleges, and later even in the college of pontiffs, where they were assigned another post some time between 292 and 218. Thus the plebs had won their way into the very heart of the camp of the patricians, who retained the monopoly only of the offices of interrex, rex sacrorum and flamen. Some time after 293 a Lex Maenia extended the clause of the Publilian law of 339 which decreed that the sanction of the patres must be given beforehand to legislative enactments; such preliminary sanction was now made necessary in elections, so that the privileges of the patrician members of the Senate were reduced to pure formality.

  About 287, at the end of the Samnite wars, the final scene of the drama was enacted. Unfortunately our knowledge of it is small in comparison with its importance. Troubles arising from debt provoked the last secession of the plebs, who withdrew over the Tiber to the Janiculum. A plebeian, Q. Hortensius, was appointed dictator and carried a law that the resolutions of the plebeian assembly (plebiscita) should have the force of law and be binding on the whole community. Thus the right first claimed by Valerius and Horatius more than a hundred and fifty years earlier was at last conceded. The Lex Hortensia has been called the final triumph of democracy at Rome. The people were sovereign. At the time when the Romans were completing the unification of Italy, the struggle of the orders was ended.

  4. THE MAGISTRATES AND SENATE

  The Republican constitution was now unified. The plebs had constructed a state of their own within the patrician state, and without a revolution the two had been fused into one. There was naturally much overlapping of function: for instance, there were four assemblies, the aedileship was duplicated and the tribunes of the plebs did not fit easily into the magisterial picture, but thanks to the Roman genius for adaptation, tempered by traditionalism, the constitution was co-ordinated. When setting up new institutions the Romans preferred to modify rather than to abolish the old, which had religious as well as secular sanctions; practices which were at first adopted for emergencies were then tacitly assumed to be authoritative. Guided less by political theory than by the need to overcome everyday difficulties, the Romans had built an edifice which could always be modified; it was not a cast-iron structure like some of the written constitutions of the Greeks that could only be changed by revolution. Previous enactments could be repealed by subsequent legislation, as they can in England in contrast with the United States of America, where certain fundamental rules cannot be abrogated. (There were, however, certain restrictions, e.g. the Twelve Tables established that laws should lay down general principles, by forbidding a law to be passed against an individual: privilegia ne inroganto. Forbidden privilegia would cover an English Act of Attainder, as that by which Henry VIII disposed of Thomas Cromwell.) The Roman constitution endured because it was internally flexible and adapted the substance while retaining the form. This flexibility can be traced, for example, in the fundamental changes in the nature of the tribunate or quaestorship or in the growth of the power of the Senate with its theoretical inability to legislate. ‘The reason for the superiority of the constitution of our city to that of other states’, Cato is reported to have said (Cicero, de rep. ii, 1, 2), ‘is that the latter almost always had their laws and institutions from one legislator. But our Republic was not made by the genius of one man, but of many, nor in the life of one, but through many centuries and generations.’ Polybius writes (vi, 10, 13) in the same strain that the Romans did not achieve their constitution ‘by mere thinking, but after many struggles and difficulties, always choosing the best course after actual experience of misfortune’.

  There had been three main tendencies at work in the early Republic: the struggle for political equalization, the devolution of power among an increasing number of magistrates, and the extension of the power of the Senate. Amid the constant clash of interests three great organs of the state had been evolved: the magistrates, the Senate and the assemblies. That they worked in harmony was a triumph of compromise and common sense. We must next consider them separately. At the fall of the monarchy the king’s power had passed mainly to the two consuls (or praetors) who had been forced to share it in the course of time with an increasing number of magistrates. These had been created partly in a vain attempt by the patricians to retain a monoploy of government, partly because the growing needs of an expanding state necessitated the sharing of responsibility. The most characteristic feature of the magistracy is perhaps that it was simply an honos: no salary was paid to an official. This determined its nature, for only the well-to-do propertied classes could attain to it. The plebeians might win the right of entry into the patrician preserves, but only their richer representatives could go in. In theory the magistrates were elected by the whole citizen body, but this electorate was so scattered that the elections were often easily manipulated in favour of a given class; as early as 358 a tribune, C. Poetelius, tried to regulate electioneering propaganda outside Rome (Livy, vii, 15, 12). Thus there had grown up the new nobility of rich landowners who handed down from generation to generation the tradition of office within their own families, and it became more difficult for a novus homo who belonged to a family outside the governing circle to win his way to a magistracy. Hence a steady level of efficiency was maintained, but few men of outstanding genius were produced. The early Roman magistrates seem types rather than individuals.

  A remarkable feature of the magistracy is the fewness of the offices. Each year there were two consuls, primarily for military affairs, one praetor for jurisdiction, two quaestors for the Treasury and two to accompany the consuls, two curule and two plebeian aediles for p
olicing the city; there were ten plebeian tribunes who at first tended to hinder rather than assist the work of government but who were later worked into the scheme; there were decemviri stlitibus iudicandis, later at any rate judges in suits which involved liberty and citizenship; at intervals two censors were appointed to revise the list of citizens and of senators, to supervise public behaviour and to let out state contracts; finally, in an emergency a dictator might be appointed. Thus the higher administrative magistrates, excluding the tribunes, numbered only eleven or at the most fourteen. They were assisted sometimes by a board of technical advisers of senatorial rank (consilium), and by numerous subordinates, such as lictors, clerks (scribae), messengers (viatores) and heralds (praecones). Later other appointments were made: the four prefects (quattuorviri) to whom the praetors delegated the administration of justice in Campania in 318; the police officers, triumviri capitales, appointed about 290, who exercised a summary jurisdiction over petty offenders; and the duoviri navales chosen by popular election in 311. But a more important method of dealing with the paucity of magistrates than that of allowing them to delegate authority or of establishing minor magistracies was the prorogatio imperii whereby a consul or praetor after his year of office was allowed to act pro consule or pro praetore. First established in 326 to meet specific military needs, this practical device later became a normal part of constitutional procedure, and from such small beginnings there grew the basis of the military commands that eventually undermined the Republic.