A History of the Roman World (67 page)
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Authors: H. H. Scullard
2
E
ARLY PLEBEIAN CONSULS
? The general problem of the Fasti and their reliability is discussed elsewhere (ch. xix), but we must face here the question of the apparently plebeian names in the early Fasti. At one time they were totally rejected even by many who believed that in other respects the lists might be more or less reliable: the ground of the rejection was the belief that no plebeian could have held the consulship at this time of patrician privilege, and that therefore their presence was due either to later interpolation arising from family pride (to have ancestors who ‘came over with the Normans’) or else that they were in fact names of patrician
gentes
who later died out and then reappeared as plebeians. In more recent years many have been prepared to grant them greater credibility, based partly on the assumption that the political distinction between patricians and plebeians had not reached its peak so early (see, e.g., A. Bernardi,
Rendicont. Istituto Lombardo
, lxxix (1945–6), 1 ff.; H. Last’s paper in
JRS
, 1945, 30 ff. was important as emphasizing the late closing of the patrician ranks). A
neat solution would be to suppose that these consuls were
conscripti
, neither patricians nor plebeians, if the theory of A. Momigliano could be accepted: see above, ch. ii, n. 34. The difficulty of disentangling the patrician or plebeian status of certain families at different periods of history is examined by I. Shatzman,
Cl. Qu.
, 1973, 65 ff., in regard to the Veturii in the context of the early Fasti.
The Fasti give 12 plebeian consuls for 509–486, none in the years 485–470 (when the Fabii dominated the scene with consulships in seven consecutive years, and no Etruscan names appear), one in 469, none again until 461, and five in the 450s; then the Decemvirate interposed. The early years of the Republic were obviously very disturbed with the intervention of Porsenna and with pro- and anti-Etruscan groups no doubt in competition (not to mention the effect of external Latin threats on internal politics). Thus J. Heurgon (
Rise of
R., 164 f.) would explain the Fasti as representing a compromise which resulted from an alliance between plebeians and some of the Etruscans
vis-à-vis
the patricians, Whatever may be thought of this, once the new Republic began to settle down the patricians clearly strengthened their hold upon the supreme magistracy, at any rate until 461, whether or not plebeians had any legal claim to it.
3
P
ROVOCATIO
. According to Livy (ii, 8, 2) P. Valerius Publico la carried a law in 509 which established the right of appeal (
provocatio
) from the magistrates to the people (
iudicium populi
, i.e. the Comitia Centuriata acting as a court of law in capital cases). But since similar laws were said to have been passed later (Twelve Tables, 450; Valerian-Horatian laws, 449: Lex Valeria of 300) many scholars believe that the right was not established as early as 509. The procedure was that a victim of a magistrate’s
coercitio
appealed to the people which either confirmed or rejected the magistrate’s sentence. Some suggest that the magistrate at first did not pass judgement but referred the question of guilt direct to the popular assembly, while W. Kunkel (
Untersuchungen zur Entwicklung des röm. Kriminalverfahrens
(1962) has argued that only political offences against the state were referred to the
iudicia populi
and that ordinary crimes were handled by a praetor or a
triumvir capitalis
. A. H. M. Jones (
The Criminal Courts of the Roman Republic
(1972), ch. i) has defended the traditional viewpoint. For the various laws
de provocatione
see E. S. Staveley,
Historia
(1955), 412 ff.
4
I
MPERIUM
. On the nature of
imperium
see E. S. Staveley,
Historia
, 1956, 107 ff.
5
R
EX SACRORUM
. See A. Momigliano,
Quarto Contrib
, 395 ff.,
Quinto Contrib.
, 309 ff. The
reges sacrorum
, found in other Latin towns (Tusculum, Lavinium, Velitrae, and perhaps Alba), may have been established there at the time when they were losing their kings, as at Rome. The word
rex
was found on a
bucchero
vase found in the Regia in recent excavations. The
rex
was chosen by the Pontifex Maximus in the second century
BC
(Livy, xl, 42), yet he retained precedence in processions where the pontifex maximus took only fifth place, and pontifical decisions in 270 were still dated by the name of the
rex
(this also suggests that years in the regal period had been numbered as regnal years, as happened at Caere where the Pyrgi inscription refers to the third year of Thefarias; cf. Momigliano, op. cit.).
6
P
ATRICIAN NUMBERS K
. J. Beloch,
Röm. Gesch.
, 221, reckons the patricians as less than one-tenth of the free population of Rome
c.
500
BC
.
7
D
ICTATORSHIP
. On its origin and the various modern theories about this see E. S. Staveley,
Historia
, 1956, 101 ff.
8
G
REEK POTTERY
. See E. Gjerstad,
Early Rome
, (1966), 514 ff. Athenian trade with the Etruscan cities also declined, but not to the same extent as that with Rome.
9
U
SURY
. According to Tacitus (
Ann.
, vi, 16, 3) the decemvirs in 451
BC
fixed the minimum rate of interest at
unciarium fenus
, which if the interest was annual amounted to 8½ per cent, if monthly to 100 per cent. Livy, however, assigns the law to 357
BC
. A passage in
Cato (
de agri cultura, ad. init.
) may imply that he thought that loans at usury were forbidden in early Rome.
10
N
EXUM
. Details are obscure, partly because the system was abolished towards the end of the fourth century. It was very difficult for the bondsman (
nexus
) to escape from his condition, which was permanent until a third party could be found to buy back the bondsman from the creditor and so release him. See M. I. Finley,
Revue d’ Histoire du Droit
(1965), 159 ff. and Ogilvie,
Livy
, 296 ff. Cf. also A. Watson,
Rome of the XII Tables
(1976), ch. ix.
11
F
OOD SHORTAGES AND DISEASE
. Corn shortages are recorded for the years 508, 496, 492, 486, 477, 476, 456, 453, 440, 433 and 411. Despite some possible inaccuracies the main record is likely to be true, since Cato tells us (frg. 77P) that corn shortages were registered in the
annales
, i.e. the Tabula Pontificum. In the 490s the cult of the corn goddess Ceres, whose centres were at Cumae and Sicily, was established at Rome, while trade with western Sicily, which was under Punic control, will have been helped by Rome’s treaty with Carthage. The account of a Roman embassy sent to Sicily in 491–0 (Dion. Halic, vii, 1–2) may well be reliable, since it probably derives from a Greek source independent of the Roman tradition. See Ogilvie,
Livy
, 256 f., 291, 321.
Epidemics are recorded in 490, 466, 463, 453, in six years in the 430s, and in 428, 412, 411, 399, 392, and 390 (malaria, anthrax?); for references and discussion see Ogilvie,
Livy
, 394 f.
12
M
AELIUS, SERVILIUS AND MINUCIUS
. The story of Maelius is quite probably historical since it antedates the troubles arising from the corn supply in the time of Gaius Gracchus: it was recorded by Cincius
c.
200
BC
. Servilius acted either as a private citizen or (according to a later tradition) as a Magister Equitum: see A. W. Lintott,
Historia
, 1970, 12 ff. Minucius was
praefectus
(?
urbi
) in 440 and 439 according to the
Libri Lintei
(these were early lists of magistrates, written on linen and kept in the temple of Juno Moneta: see R. M. Ogilvie,
JRS
(1958), 40 ff.). He was later honoured with a column and statue for a subsequent distribution of corn: the column is depicted on
denarii
of
c.
134
BC
(Crawford,
RRC
(1974), 242–43), but was not set up before the fourth century (Momigliano,
Quarto Contrib.
, 329 ff.). A later Minucius (M. Minucius Rufus, consul in 110) built a porticus Minucius which was used for corn distributions in the Roman Empire. Thus both Maelius and Minucius may be accepted as historical figures, though the connection between them is not beyond doubt. See Ogilvie,
Livy
, 550 f.
13
SP.
CASSIUS
. For an analysis of his story see Ogilvie,
Livy
, 337 ff. A. W. Lintott,
Historia
, 1970, 18 ff. argues that in the original story Cassius was put to death by his father by virtue of the latter’s
patria potestas
, and that his formal trial and conviction for treason (
perduellio
) was a later form.
14
T
HE FIRST SECESSION
. The historicity of this movement is defended by Ogilvie,
Livy
, 309 ff.
15
L
EX PUBLILIA
. In view of the importance of what was enacted in 471, Publilius Volero may well be a historical character, although some have seen in him only a doublet of Publilius Philo, dictator in 339. Livy ii, 56, 2 says that the right to elect plebeian magistrates was given to the Comitia Tributa; this should probably be the Concilium Plebis. Perhaps the concessions attributed to Publilius were the result of a secession.
16
C
OMITIA TRIBUTA POPULI
. The existence of this Comitia, as distinct from the purely plebeian Concilium Plebis Tributum, was first shown by Mommsen. For the evidence see A. H. J. Greenidge,
Roman Public Life
(1901), 443 ff; E. S. Staveley,
Athenaeum
, 1955, 3 ff. Some scholars, however, maintain that there was only one tribal assembly, from which the patricians were excluded: they are therefore forced to postulate that the patricians were admitted at some unrecorded date, perhaps in 287.
17 T
HE TRIBUNES
. See G. Niccolini,
Il tribunato della plebe
(1932). According to Varro (
de ling. Lat.
, v, 91) they derived from the military tribunes, but E. Meyer (
Kleine Schriften
, i, 333 ff.) argued that they had been administrative officers of the tribes.
18
T
HE DECEMVIRS
. The problems involved are discussed by Ogilvie,
Livy
, 451 ff. Cicero (
de rep.
, ii, 61 ff.) and Dionysius state that the decemvirs remained in office for three years. Cicero tells nothing of the fierce struggle that led up to their establishment. On Appius and the plebeians see De Sanctis,
SR
, ii, 47 ff.
19
T
HE TWELVE TABLES
. Their authenticity has withstood the attacks of modern scholars, e.g. of E. Pais (
Ricerche sulla storia e sul diritto pubblico di Roma
, i (1915)) who assigned them to the end of the fourth century, and of E. Lambert (
Revue hist., de droit franc. et étranger
, 1902) who placed them at the beginning of the second. The original tables, set up in the Roman Forum, have of course perished, but the code has been partially reassembled from quotations in ancient writers. These fragments are collected in Riccobono,
Fontes
, 23 ff., and elsewhere; for a translation see Lewis-Reinhold,
Rn. Civ.
, i, 102 ff.; for discussion, H. F. Jolowicz,
A Historical Introduction to the Study of Roman Law
, edn 2, (1972), chs vii–xii, F. Wiencker, ‘Die XII Tafeln in ihrem Jahrhundert’,
Entretiens Hardt
, xiii (1966), 293 ff. See also A. Watson,
Rome of the XII Tables
(1976), which deals with the law of persons and property.
20
T
HE VALERIO-HORATIAN LAWS
. According to Livy (iii, 55) these laws (a) restored the right of appeal, (b) gave
plebiscita
the force of law, (c) reaffirmed the sacrosanctity of the tribunes:
- (a)
provocatio
: since the right of appeal (cf. p. 466 n. 3 above) is said already to have been restored by the Twelve Tables, its inclusion in the Leges Valeriae-Horatiae may be an anticipation of the Lex Valeria of 300. E. S. Staveley may well be correct in his analysis of these various laws (
Historia
, 1955, 412 ff.): the right was not granted in 509, and although its possible use was conceded in the Twelve Tables by the patricians in order to check indiscriminate use of tribunician
ius auxilii
, no magistrate was
compelled
to grant an appeal against his
coercitio
until the Lex Valeria of 300
BC
. A. W. Lintott (
Aufstieg NRW
, II, i (1972), 226 ff.) has surveyed the history of
provocatio
from the beginning to the principate. He considers that it arose from self-help when a private individual, assailed in some way called aloud on his fellow-citizens to bear witness and give help; in later times such an appeal to the self-help of the plebs was usually made through its spokesmen, the tribunes. The first law to afford support to
provocatio
as such was that of 300. - (b)
plebiscita
: this second measure is the most controversial of the three, because if it was true it would have given the plebs legal power to realize their aims and to end the struggle. Livy’s words are ‘
ut quod tributim plebs iussisset, populum teneret
’ (55); i.e. what was voted by the plebs should be binding on the whole people. But he also says that the law of Publilius Philo of 339
BC
laid it down ‘
ut plebiscita omnes Quirites tenerent
’ (viii, 12), while according to Gellius (xv, 27) the Lex Hortensia of 287 decreed ‘
ut eo iure, quod plebs statuisset, omnes Quirites tenerentur
’: that is, the same law was enacted three times. Many of the theories evolved to meet the difficulty are scarcely tenable. Clearly such an important law would not have continually fallen into disuse so as to require re-enacting; nor is it practical to suppose that the plebs gained power in some matters in 445, in others in 339, and in all in 287. Another suggestion is that some limiting conditions may have been omitted, for instance, that the plebs might pass resolutions which could go before the Comitia Centuriata if first approved by the Senate; that the
auctoritas patrum
was dispensed with in 339, and that in 287 reference to the Comitia was made unnecessary. According to Mommsen Livy mistook his authority and
populus
is meant instead of
plebs
; the reference then is not to the
Concilium Plebis but to the Comitia Tributa which he supposes was established in 449. Since there is no evidence for any of these views De Sanctis and others regard the law of 449 as a quite unhistorical anticipation of the later law. The objection to this last view, which is by far the simplest, is that certain important laws (the Lex Canuleia of 445, the Licinio-Sextian rogations of 367 and the Leges Genuciae of 342) were passed by the plebs before 339
BC
. It has therefore been suggested (by Sir H. Stuart Jones,
CAH
, vii, 484) that a law of 449 did give validity to
plebiscita
, which the patricians long contended were not binding on them because enacted without their consent, and disregarded
de facto
. Alternatively it is possible that no law was passed in 449 to this effect, but that the plebs asserted their right to issue binding laws and that the other authorities were forced by circumstances to pass through the usual channels the subsequent legislation which had originated with the expressed will of the people: in that case later historians might regard the measures as legally binding
plebiscita
, when in fact they were only resolutions of the people which were made law by the whole state; that is, they were not laws
per se
. E. S. Staveley’s view (
Athenaeum
(1955), 3 ff.) is that in 449 all measures carried by a tribal system of vote, i.e.
plebiscita
in the Concilium Plebis and
leges
in the Comitia Populi Tributa, were made valid, subject only to the
auctoritas patrum
, and that this patrician right to veto legislation was cancelled in regard to (i) the Comitia Tributa by the Lex Publilia of 339, and (ii) the Concilium Plebis by the Lex Hortensia of 287. - (c)
The tribunate
: according to Livy’s third law the
caput
of any man who harmed the tribunes or aediles should be devoted to the gods and his goods confiscated and sold at the temple of Ceres, Liber and Libera. This view, which affirms the sacrosanctity of the plebeian officers in law, may derive from a tradition designed to explain away the revolutionary character of the tribunate. Nevertheless, it is quite possible that the tribune’s rights, which hitherto had been based on a
lex sacrata
sworn by the plebs, were now confirmed by law. Diodorus (xii, 25) records that one of the provisions of the Valerio-Horatian laws was that ten tribunes should be chosen annually to guard the liberty of the citizens. (He adds that one of the consuls must be a plebeian and that the tribunes on pain of being burnt alive must appoint their successors before going out of office. The former clause is an anticipation of fourth-century conditions; the latter is a plebeian agreement, not a legal pact between plebeians and patricians.) Though Diodorus is obviously wrong in supposing the tribunes were first created in 449 (he has indeed already referred to their existence in 471) and though the date when their number was raised to ten is uncertain (Livy put it at 457, but 449 is quite possible), he may be right in supposing that the patricians in 449 first recognized in law the tribunate which they had long been forced to recognize in fact. This would help to explain why the Valerio-Horatian laws were regarded as a milestone on the plebeian advance to success. Otherwise, especially for those who reject the view that they legalized
plebiscita
, their importance would seem obscure. Such a concession may well have been won as the result of a secession.
