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The History of Rome (Volumes 1 5) - Theodor Mommsen

T >> Theodor Mommsen >> The History of Rome (Volumes 1 5)

Intercession

The power of the tribunes, therefore, primarily involved the right
of putting a stop to administration and to judicial action at their
pleasure, of enabling a person bound to military service to withhold
himself from the levy with impunity, of preventing or cancelling the
raising of an action and legal execution against the debtor, the
initiation of a criminal process and the arrest of the accused while
the investigation was pending, and other powers of the same sort.
That this legal help might not be frustrated by the absence of the
helpers, it was further ordained that the tribune should not spend
a night out of the city, and that his door must stand open day and
night. Moreover, it lay in the power of the tribunate of the people
through a single word of a single tribune to restrain the adoption
of a resolution by the community, which otherwise by virtue of its
sovereign right might have without ceremony recalled the privileges
conferred by it on the plebs.

But these rights would have been ineffective, if there had not
belonged to the tribune of the people an instantaneously operative
and irresistible power of enforcing them against him who did not
regard them, and especially against the magistrate contravening them.
This was conferred in such a form that the acting in opposition to
the tribune when making use of his right, above all things the laying
hands on his person, which at the Sacred Mount every plebeian, man by
man for himself and his descendants, had sworn to protect now and in
all time to come from all harm, should be a capital crime; and the
exercise of this criminal justice was committed not to the magistrates
of the community but to those of the plebs. The tribune might in
virtue of this his judicial office call to account any burgess,
especially the consul in office, have him seized if he should not
voluntarily submit, place him under arrest during investigation or
allow him to find bail, and then sentence him to death or to a fine.
For this purpose the two plebeian aediles appointed at the same
time were attached to the tribunes as their servants and assistants,
primarily to effect arrest, on which account the same inviolable
character was assured to them also by the collective oath of the
plebeians. Moreover the aediles themselves had judicial powers like
the tribunes, but only for the minor causes that might be settled by
fines. If an appeal was lodged against the decision of tribune or
aedile, it was addressed not to the whole body of the burgesses, with
which the officials of the plebs were not entitled at all to transact
business, but to the whole body of the plebeians, which in this case
met by curies and finally decided by majority of votes.

This procedure certainly savoured of violence rather than of justice,
especially when it was adopted against a non-plebeian, as must in fact
have been ordinarily the case. It was not to be reconciled either
with the letter or the spirit of the constitution that a patrician
should be called to account by authorities who presided not over the
body of burgesses, but over an association formed within it, and that
he should be compelled to appeal, not to the burgesses, but to this
very association. This was originally without question Lynch justice;
but the self-help was doubtless carried into effect from early times
in form of law, and was after the legal recognition of the tribunate
of the plebs regarded as lawfully admissible.

In point of intention this new jurisdiction of the tribunes and the
aediles, and the appellate decision of the plebeian assembly therein
originating, were beyond doubt just as much bound to the laws as the
jurisdiction of the consuls and quaestors and the judgment of the
centuries on appeal; the legal conceptions of crime against the
community(5) and of offences against order(6) were transferred from
the community and its magistrates to the plebs and its champions.
But these conceptions were themselves so little fixed, and their
statutory definition was so difficult and indeed impossible, that
the administration of justice under these categories from its very
nature bore almost inevitably the stamp of arbitrariness. And now
when the very idea of right had become obscured amidst the struggles
of the orders, and when the legal party--leaders on both sides were
furnished with a co-ordinate jurisdiction, this jurisdiction must have
more and more approximated to a mere arbitrary police. It affected
in particular the magistrate. Hitherto the latter according to
Roman state law, so long as he was a magistrate, was amenable to no
jurisdiction at all, and, although after demitting his office he might
have been legally made responsible for each of his acts, the exercise
of this right lay withal in the hands of the members of his own order
and ultimately of the collective community, to which these likewise
belonged. Now in the tribunician jurisdiction there emerged a new
power, which on the one hand might interfere against the supreme
magistrate even during his tenure of office, and on the other hand
was wielded against the noble burgesses exclusively by the non-noble,
and which was the more oppressive that neither the crime nor its
punishment was formally defined by law. In reality through the
co-ordinate jurisdiction of the plebs and the community the estates,
limbs, and lives of the burgesses were abandoned to the arbitrary
pleasure of the party assemblies.

In civil jurisdiction the plebeian institutions interfered only so
far, that in the processes affecting freedom, which were so important
for the plebs, the nomination of jurymen was withdrawn from the
consuls, and the decisions in such cases were pronounced by the
"ten-men-judges" destined specially for that purpose (-iudices-,
-decemviri-, afterwards -decemviri litibus iudicandis-).

Legislation

With this co-ordinate jurisdiction there was further associated a
co-ordinate initiative in legislation. The right of assembling the
members and of procuring decrees on their part already pertained to
the tribunes, in so far as no association at all can be conceived
without such a right. But it was conferred upon them, in a marked
way, by legally securing that the autonomous right of the plebs to
assemble and pass resolutions should not be interfered with on the
part of the magistrates of the community or, in fact, of the community
itself. At all events it was the necessary preliminary to the legal
recognition of the plebs generally, that the tribunes could not be
hindered from having their successors elected by the assembly of the
plebs and from procuring the confirmation of their criminal sentences
by the same body; and this right accordingly was further specially
guaranteed to them by the Icilian law (262), which threatened with
severe punishment any one who should interrupt the tribune while
speaking, or should bid the assembly disperse. It is evident that
under such circumstances the tribune could not well be prevented from
taking a vote on other proposals than the choice of his successor and
the confirmation of his sentences. Such "resolves of the multitude"
(-plebi scita-) were not indeed strictly valid decrees of the
people; on the contrary, they were at first little more than are
the resolutions of our modern public meetings; but, as the distinction
between the comitia of the people and the councils of the multitude
was of a formal nature rather than aught else, the validity of these
resolves as autonomous determinations of the community was at once
claimed at least on the part of the plebeians, and the Icilian law for
instance was immediately carried in this way. Thus was the tribune of
the people appointed as a shield and protection for the individual,
and as leader and manager for all, provided with unlimited judicial
power in criminal proceedings, that in this way he might give emphasis
to his command, and lastly even pronounced to be in his person
inviolable (-sacrosanctus-), inasmuch as whoever laid hands upon
him or his servant was not merely regarded as incurring the vengeance
of the gods, but was also among men accounted as if, after legally
proven crime, deserving of death.

Relation of the Tribune to the Consul

The tribunes of the multitude (-tribuni plebis-) arose out
of the military tribunes and derived from them their name; but
constitutionally they had no further relation to them. On the
contrary, in respect of powers the tribunes of the plebs stood on a
level with the consuls. The appeal from the consul to the tribune,
and the tribune's right of intercession in opposition to the consul,
were, as has been already said, precisely of the same nature with the
appeal from consul to consul and the intercession of the one consul in
opposition to the other; and both cases were simply applications of
the general principle of law that, where two equal authorities differ,
the veto prevails over the command. Moreover the original number
(which indeed was soon augmented), and the annual duration of the
magistracy, which in the case of the tribunes changed its occupants
on the 10th of December, were common to the tribunes and the consuls.
They shared also the peculiar collegiate arrangement, which placed the
full powers of the office in the hands of each individual consul and
of each individual tribune, and, when collisions occurred within the
college, did not count the votes, but gave the Nay precedence over
the Yea; for which reason, when a tribune forbade, the veto of the
individual was sufficient notwithstanding the opposition of his
colleagues, while on the other hand, when he brought an accusation,
he could be thwarted by any one of those colleagues. Both consuls and
tribunes had full and co-ordinate criminal jurisdiction, although the
former exercised it indirectly, and the latter directly; as the two
quaestors were attached to the former, the two aediles were associated
with the latter.(7) The consuls were necessarily patricians, the
tribunes necessarily plebeians. The former had the ampler power, the
latter the more unlimited, for the consul submitted to the prohibition
and the judgment of the tribunes, but the tribune did not submit
himself to the consul. Thus the tribunician power was a copy of the
consular; but it was none the less a contrast to it. The power of
the consuls was essentially positive, that of the tribunes essentially
negative. The consuls alone were magistrates of the Roman people, not
the tribunes; for the former were elected by the whole burgesses, the
latter only by the plebeian association. In token of this the consul
appeared in public with the apparel and retinue pertaining to state-
officials; the tribunes sat on a stool instead of the "chariot seat,"
and lacked the official attendants, the purple border, and generally
all the insignia of magistracy: even in the senate the tribune had
neither presidency nor so much as a seat. Thus in this remarkable
institution absolute prohibition was in the most stern and abrupt
fashion opposed to absolute command; the quarrel was settled by
legally recognizing and regulating the discord between rich and poor.

Political Value of the Tribunate

But what was gained by a measure which broke up the unity of the
state; which subjected the magistrates to a controlling authority
unsteady in its action and dependent on all the passions of
the moment; which in the hour of peril might have brought the
administration to a dead-lock at the bidding of any one of the
opposition chiefs elevated to the rival throne; and which, by
investing all the magistrates with co-ordinate jurisdiction in
the administration of criminal law, as it were formally transferred
that administration from the domain of law to that of politics
and corrupted it for all time coming? It is true indeed that the
tribunate, if it did not directly contribute to the political
equalization of the orders, served as a powerful weapon in the hands
of the plebeians when these soon afterwards desired admission to the
offices of state. But this was not the real design of the tribunate.
It was a concession wrung not from the politically privileged order,
but from the rich landlords and capitalists; it was designed to ensure
to the commons equitable administration of law, and to promote a more
judicious administration of finance. This design it did not, and
could not, fulfil. The tribune might put a stop to particular
iniquities, to individual instances of crying hardship; but the fault
lay not in the unfair working of a righteous law, but in a law which
was itself unrighteous, and how could the tribune regularly obstruct
the ordinary course of justice? Could he have done so, it would have
served little to remedy the evil, unless the sources of impoverishment
were stopped--the perverse taxation, the wretched system of credit,
and the pernicious occupation of the domain-lands. But such measures
were not attempted, evidently because the wealthy plebeians themselves
had no less interest in these abuses than the patricians. So this
singular magistracy was instituted, which presented to the commons an
obvious and available aid, and yet could not possibly carry out the
necessary economic reform. It was no proof of political wisdom, but a
wretched compromise between the wealthy aristocracy and the leaderless
multitude. It has been affirmed that the tribunate of the people
preserved Rome from tyranny. Were it true, it would be of little
moment: a change in the form of the state is not in itself an evil
for a people; on the contrary, it was a misfortune for the Romans
that monarchy was introduced too late, after the physical and mental
energies of the nation were exhausted. But the assertion is not
even correct; as is shown by the circumstance that the Italian states
remained as regularly free from tyrants as the Hellenic states
regularly witnessed their emergence. The reason lies simply in the
fact that tyranny is everywhere the result of universal suffrage,
and that the Italians excluded the burgesses who had no land from
their public assemblies longer than the Greeks did: when Rome departed
from this course, monarchy did not fail to emerge, and was in fact
associated with this very tribunician orifice. That the tribunate had
its use, in pointing out legitimate paths of opposition and averting
many a wrong, no one will fail to acknowledge; but it is equally
evident that, where it did prove useful, it was employed for very
different objects from those for which it had been established.
The bold experiment of allowing the leaders of the opposition a
constitutional veto, and of investing them with power to assert it
regardless of the consequences, proved to be an expedient by which
the state was politically unhinged; and social evils were prolonged
by the application of useless palliatives.

Further Dissensions

Now that civil war was organized, it pursued its course. The parties
stood face to face as if drawn up for battle, each under its leaders.
Restriction of the consular and extension of the tribunician power
were the objects contended for on the one side; the annihilation of
the tribunate was sought on the other. Legal impunity secured for
insubordination, refusal to enter the ranks for the defence of the
land, impeachments involving fines and penalties directed specially
against magistrates who had violated the rights of the commons or
who had simply provoked their displeasure, were the weapons of the
plebeians; and to these the patricians opposed violence, concert with
the public foes, and occasionally also the dagger of the assassin.
Hand-to-hand conflicts took place in the streets, and on both sides
the sacredness of the magistrate's person was violated. Many families
of burgesses are said to have migrated, and to have sought more
peaceful abodes in neighbouring communities; and we may well believe
it. The strong patriotism of the people is obvious from the fact,
not that they adopted this constitution, but that they endured it,
and that the community, notwithstanding the most vehement convulsions,
still held together.

Coriolanus

The best-known incident in these conflicts of the orders is the
history of Gnaeus Marcius, a brave aristocrat, who derived his
surname from the storming of Corioli. Indignant at the refusal of
the centuries to entrust to him the consulate in the year 263, he is
reported to have proposed, according to one version, the suspension of
the sales of corn from the state-stores, till the hungry people should
give up the tribunate; according to another version, the direct
abolition of the tribunate itself. Impeached by the tribunes so that
his life was in peril, it is said that he left the city, but only to
return at the head of a Volscian army; that when he was on the point
of conquering the city of his fathers for the public foe, the earnest
appeal of his mother touched his conscience; and that thus he expiated
his first treason by a second, and both by death. How much of this
is true cannot be determined; but the story, over which the naive
misrepresentations of the Roman annalists have shed a patriotic glory,
affords a glimpse of the deep moral and political disgrace of these
conflicts between the orders. Of a similar stamp was the surprise
of the Capitol by a band of political refugees, led by a Sabine chief,
Appius Herdonius, in the year 294; they summoned the slaves to arms,
and it was only after a violent conflict, and by the aid of the
Tusculans who hastened to render help, that the Roman burgess-force
overcame the Catilinarian band. The same character of fanatical
exasperation marks other events of this epoch, the historical
significance of which can no longer be apprehended in the lying
family narratives; such as the predominance of the Fabian clan which
furnished one of the two consuls from 269 to 275, and the reaction
against it, the emigration of the Fabii from Rome, and their
annihilation by the Etruscans on the Cremera (277). Still more odious
was the murder of the tribune of the people, Gnaeus Genucius, who had
ventured to call two consulars to account, and who on the morning of
the day fixed for the impeachment was found dead in bed (281). The
immediate effect of this misdeed was the Publilian law (283), one of
the most momentous in its consequences with which Roman history has to
deal. Two of the most important arrangements--the introduction of the
plebeian assembly of tribes, and the placing of the -plebiscitum- on
a level, although conditionally, with the formal law sanctioned by the
whole community--are to be referred, the former certainly, the latter
probably, to the proposal of Volero Publilius the tribune of the
people in 283. The plebs had hitherto adopted its resolutions by
curies; accordingly in these its separate assemblies, on the one hand,
the voting had been by mere number without distinction of wealth or
of freehold property, and, on the other hand, in consequence of that
standing side by side on the part of the clansmen, which was implied
in the very nature of the curial assembly, the clients of the great
patrician families had voted with one another in the assembly of the
plebeians. These two circumstances had given to the nobility various
opportunities of exercising influence on that assembly, and especially
of managing the election of tribunes according to their views; and
both were henceforth done away by means of the new method of voting
according to tribes. Of these, four had been formed under the Servian
constitution for the purposes of the levy, embracing town and country
alike;(8) subsequently-perhaps in the year 259--the Roman territory
had been divided into twenty districts, of which the first four
embraced the city and its immediate environs, while the other sixteen
were formed out of the rural territory on the basis of the clan-cantons
of the earliest Roman domain.(9) To these was added--probably
only in consequence of the Publilian law, and with a view to bring
about the inequality, which was desirable for voting purposes, in
the total number of the divisions--as a twenty-first tribe the
Crustuminian, which derived its name from the place where the plebs
had constituted itself as such and had established the tribunate;(10)
and thenceforth the special assemblies of the plebs took place, no
longer by curies, but by tribes. In these divisions, which were based
throughout on the possession of land, the voters were exclusively
freeholders: but they voted without distinction as to the size of
their possession, and just as they dwelt together in villages and
hamlets. Consequently, this assembly of the tribes, which otherwise
was externally modelled on that of the curies, was in reality an
assembly of the independent middle class, from which, on the one hand,
the great majority of freedmen and clients were excluded as not being
freeholders, and in which, on the other hand, the larger landholders
had no such preponderance as in the centuries. This "meeting of the
multitude" (-concilium plebis-) was even less a general assembly of
the burgesses than the plebeian assembly by curies had been, for it
not only, like the latter, excluded all the patricians, but also the
plebeians who had no land; but the multitude was powerful enough to
carry the point that its decree should have equal legal validity
with that adopted by the centuries, in the event of its having been
previously approved by the whole senate. That this last regulation
had the force of established law before the issuing of the Twelve
Tables, is certain; whether it was directly introduced on occasion
of the Publilian -plebiscitum-, or whether it had already been called
into existence by some other--now forgotten--statute, and was only
applied to the Publilian -plebiscitum- cannot be any longer
ascertained. In like manner it remains uncertain whether the number
of tribunes was raised by this law from two to four, or whether that
increase had taken place previously.

Agrarian Law of Spurius Cassius

More sagacious in plan than all these party steps was the attempt
of Spurius Cassius to break down the financial omnipotence of the
rich, and so to put a stop to the true source of the evil. He was
a patrician, and none in his order surpassed him in rank and renown.
After two triumphs, in his third consulate (268), he submitted to the
burgesses a proposal to have the public domain measured and to lease
part of it for the benefit of the public treasury, while a further
portion was to be distributed among the necessitous. In other words,
he attempted to wrest the control of the public lands from the senate,
and, with the support of the burgesses, to put an end to the selfish
system of occupation. He probably imagined that his personal
distinction, and the equity and wisdom of the measure, might carry
it even amidst that stormy sea of passion and of weakness. But he
was mistaken. The nobles rose as one man; the rich plebeians took
part with them; the commons were displeased because Spurius Cassius
desired, in accordance with federal rights and equity, to give to
the Latin confederates their share in the assignation. Cassius had
to die. There is some truth in the charge that he had usurped regal
power, for he had indeed endeavoured like the kings to protect the
free commons against his own order. His law was buried along with
him; but its spectre thenceforward incessantly haunted the eyes of
the rich, and again and again it rose from the tomb against them,
until amidst the conflicts to which it led the commonwealth perished.

Decemvirs

A further attempt was made to get rid of the tribunician power by
securing to the plebeians equality of rights in a more regular and
more effectual way. The tribune of the people, Gaius Terentilius
Arsa, proposed in 292 the nomination of a commission of five men to
prepare a general code of law by which the consuls should in future be
bound in exercising their judicial powers. But the senate refused to
sanction this proposal, and ten years elapsed ere it was carried into
effect--years of vehement strife between the orders, and variously
agitated moreover by wars and internal troubles. With equal obstinacy
the party of the nobles hindered the concession of the law in the
senate, and the plebs nominated again and again the same men as
tribunes. Attempts were made to obviate the attack by other
concessions. In the year 297 an increase of the tribunes from four to
ten was sanctioned--a very dubious gain; and in the following year, by
an Icilian -plebiscitum- which was admitted among the sworn privileges
of the plebs, the Aventine, which had hitherto been a temple-grove and
uninhabited, was distributed among the poorer burgesses as sites for
buildings in heritable occupancy. The plebs took what was offered
to them, but never ceased to insist in their demand for a legal code.
At length, in the year 300, a compromise was effected; the senate in
substance gave way. The preparation of a legal code was resolved
upon; for that purpose, as an extraordinary measure, the centuries
were to choose ten men who were at the same time to act as supreme
magistrates in room of the consuls (-decemviri consulari imperio
legibus scribundls-), and to this office not merely patricians, but
plebeians also might be elected. These were here for the first time
designated as eligible, though only for an extraordinary office. This
was a great step in the progress towards full political equality; and
it was not too dearly purchased, when the tribunate of the people as
well as the right of appeal were suspended while the decemvirate
lasted, and the decemvirs were simply bound not to infringe the sworn
liberties of the community. Previously however an embassy was sent
to Greece to bring home the laws of Solon and other Greek laws; and
it was only on its return that the decemvirs were chosen for the year
303. Although they were at liberty to elect plebeians, the choice
fell on patricians alone--so powerful was the nobility still--and
it was only when a second election became necessary for 304, that
some plebeians were chosen--the first non-patrician magistrates that
the Roman community had.