What was the origin of the plebeians is a question which has never been satisfactorily settled. According to Mommsen they were originally "clients", that is people who without being actually slaves were in a position of dependence. They might be slaves who had been set free but remained dependent in their "patrons" or former masters; they might be foreigners who had settled at Rome and placed themselves under the protection of a Roman; or, lastly, they might be members of conquered communities allowed to live in de facto freedom but without political rights. This hypothesis of Mommsen's is, however, not much in favour to-day. Many prefer to regard the difference between patricians and plebeians as originally one of race, the plebeians being the original inhabitants conquered by the patricians, who thus stood to them in a relationship something like that existing between the Normans and the English in the period following the conquest. According to others, the relationship was the other way about, the patricians being the original inhabitants and the plebeians foreigners whom they only admitted to the city as inferiors. More probably correct than either hypothesis is the view that there was no racial difference and that the patricians were simply the nobility. It may well be that at Rome, as in other city-states, the greater part of the land got into the hands of a minority of families. The comparative wealth of these families enabled them to live within the city and farm their lands outside through dependents, an advantage which in turn facilitated the arrogation of superior political rights to themselves. But whatever the origin of the distinction, it is one which appears as far back in Roman history as we can go, and in all times of which we know anything for certain the plebeians were citizens –unprivileged citizens, no doubt, but not mere resident foreigners. In spite of contrary views it may be said with some certainty that they not only fought in the Roman army but were members of the popular assembly.
The struggle between the plebeians and the patricians was of a twofold character, partly economic and partly political, and originally it was probably their economic grievances which the plebs found the more serious.
The chief economic questions were those concerning the public land and the law of debt.
- The public land
Not all land was in private ownership; some belonged to the state. This was increased from time to time by successful wars. It might be dealt with in any of three ways, either assigned free to private individuals, as their property (ager assignatus), sold to private individuals, or left open for any citizen who wished to occupy it for agricultural purposes or for use as pasture. It is likely enough that under the kings the plebeians had had their share in these advantages; but the revolution which put an end to the monarchy was an aristocratic revolution, and the patrician government probably never assigned land to plebeians, while the plebeians were not in general wealthy enough to buy it. The occupation system also inured mainly to the advantage of the patricians. Perhaps they alone were by law entitled to occupy, but it any case it would be they and the few rich plebeians alone who could produce the capital necessary to make occupation pay. Slaves, cattle and seed corn would all be necessary, and the expenses would be increased if, as was usual in the case of acquisition by conquest, the land to be occupied lay at some distance from the city. Strictly, the occupation of public land gave no right except at the good pleasure of the state, which exacted a rent in kind and could reclaim the land at any moment; but in fact this right to reclaim was seldom exercised and the land, though not strictly owned by the occupant, descended from father to son, while the rent, which had never been large, was often not exacted by the patrician magistrates from the members of their own order.
- The law of debt
An even more pressing evil for the poor than their practical exclusion from the advantages of the public land was the fearful stringency of the law of debt. The poor man was liable to be taken from his farm to serve in the army and had not, like the rich, slaves who could carry on the work in his absence. He might even, for Rome was not always successful in her wars, return to find that his farm had been ravaged by the enemy. The only thing to do was to apply to some wealthy person for a loan to enable him to start again. Next year the same thing might happen and the load of debt would grow. This would be serious enough in a modern state, but in ancient Rome a man who could not pay his debts could be taken by his creditors and either killed or sold abroad as a slave. Even if the creditors did not proceed to these lengths they could, by threatening to do so, keep the debtor in a condition of abject poverty dependent entirely on their will, and this in fact seems to have been the position of a large number of the plebeians.
In the lands which they had helped to conquer they had no share, and they ran the risk of losing not only their own land but their life or liberty.
The chief political questions were those concerning the magistracy, the validity of resolutions passed by the plebeian assembly and intermarriage between the orders.
- The magistracy
The regular heads of the state were the consuls, and from the consulship plebeians were rigidly excluded. Nor might they be appointed to the dictatorship, which was a temporary revival of the monarchy used in times of emergency when it was necessary to concentrate the whole power of the state in a single person. The only regular magistrates besides the consuls were the quaestors, who were originally simply assistants of the consuls were the quaestors, who were originally simply assistants of the consuls and appointed by them. There was of course no likelihood that the patrician consuls would wish to appoint a plebeian quaestor. The priesthoods too, which were of considerable political importance, were entirely in patrician hands.
- The validity of resolutions passed by the plebeian assembly
The plebs from very early times met together in an assambly (concilium plebis) and passed resolutions (plebiscita). It was one of their objects to obtain for these resolutions the force of law.
- Intermarriage
There was no conubium between the orders; that is to say, a marriage between a patrician was not recognised as lawful, and the children of a patrician and a plebeian was not recognised as lawful, and the children of a patrician father by a plebeian mother would be plebeians. The prohibition of intermarriage was of political, not merely social importance, because it emphasised the patrician contention that the plebeians were too basely born to be admitted to the magistracies.
The struggles in connection with the economic and the political questions are closely interwoven. There were, of course, rich plebeians who did not suffer under the economic grievances of their poorer brethren, but they realised that it was only by making common cause with the rest of their order that they could obtain the political concessions in which they sought was completely achieved, but palliatives, at best, were provided for the poverty of the lower classes, which a wise use of the public land might have effectively remedied.
The details of the struggle belong for the most part to the period of traditional history, and what is said by the historians is, at least in part, mythical. The difficulties of reconstruction are increased by a tendency to read far back into the mythical past reforms which, in fact, took place comparatively late. Thus we frequently find references to a series of laws apparently all enacting the same thing, and only two explanations seem possible; either the earlier laws were not carried into effect, or they never existed, except in imagination. For instance, the rule that no Roman citizen might be punished capitally without appeal (provocatio) to the assembly is referred to no less than three leges Valeriae of 509, 449 and 300 B.C. respectively (1). It is, to say the least of it, strange that it should in each case be a member of the same clan who secured the passing of these laws and the probability is that only the last ever really existed (2).
In spite of these difficulties certain facts emerge. The first step taken by the plebeians was to band themselves together into a corporation, to hold meetings and to elect officers of their own, these officers being known as tribuni. According to tradition their institution goes back to 494 B.C. in which year is supposed to have taken place the "First Secession of the Plebs", that is, the plebs left the city in a body and only returned on being granted certain concessions. These concessions are said to have been the recognition of the plebs as a corporation and the granting of specified powers to the tribunes (originally five, and after 457 B.C. ten in number). These officers were given (a) the right of convening the assembly of the plebs (concilium plebis) and eliciting resolutions from them. These resolutions, however, were mere self-regarding ordinances and bound no one outside the corporation. (b) Intercessio, i.e. the right to veto any magisterial act, including such acts as bringing a bill before the assembly. (c) Auxilium, i.e. the right to protect the plebeians, especially against punishment by the magistrates.
The tribunes undoubtedly had these powers later; but it more than unlikely that they possessed such weapons –in particular, the formidable intercessio– from the first.
Strife continued in the succeeding years which saw some plebeian successes, such e.g. as the lex Icilia (traditional date 456 B.C.), a law passed under tribunician pressure which distributed the land on the Aventine Hill to poor citizens; but the next important movement is that in favour of codification which resulted in the enactment of the XII Tables. The story is that as early as in 462 tribune, C. Terentilius Arsa, proposed that five men should be elected to draw up a code of law which should bind the consuls in the exercise of their judicial powers. The patricians successfully opposed the project for eight years, but then they were forced to give way. They managed, however, to delay matters by sending an embassy to Greece to study the code of Solon, the famous Athenian lawgiver (3). In 451, after the return of the embassy, ten men (instead of the five originally proposed) were elected as chief magistrates instead of consuls (decemviri consulari imperio legibus scribundis), the ordinary constitution, including the appointment of tribunes, being temporarily suspended. Although plebeians were declared eligible for this position, the influence of the aristocracy was so great that only patricians were elected to the first board. The decemviri drew up their code and brought it before the assembly for ratification, after which the laws were inscribed on ten bronze tablets and set up in the market-place. As, however, the work was not considered complete another board of ten was elected for the following year (450), and two further tablets of laws were drafted. On this second board there were some plebeians, who were thus the first members of their order to hold a magistracy of the Roman people. At this point history fades more and more into myth. The new decemviri are said to have behaved tyrannically and to have refused to lay down their office although their work was done. Popular indignation was aroused especially against one of them, Appius Claudius, who being enamoured of a certain Virginia, instigated a dependent of his own to claim her as a slave, and then, in his capacity as magistrate, gave interim possession to the claimant instead of allowing, as the law required, that a person whose liberty was questioned should remain in freedom until the case was decided. The girl's father then slew her to avoid her dishonour and led a "Second Secession of the Plebs" which resulted in the overthrow of the decemviri and the restoration of the constitution. The two draft tablets were, however, put before the assembly and passed, thus bringing the number up to twelve.
In spite of the obviously legendary character of much of this story, some points are fairly clear. The compilation of the XII Tables was an episode in the struggle of the orders, and constituted a victory for the plebs. Obviously the law had not only been administered by patrician magistrates but had been unknown in a large measure to the general public. The plebeians wanted a code, so that, if a plebeian were wronged by a patrician magistrate, he could point definitely to the provision in the code which the magistrate had broken. It is likely enough that the code was intended to be a substitute for the tribunician power. The main use of the tribunes lay in their function of auxilium, i.e. they could stop the magistrates from treating plebeians unjustly, but his method of preventing injustice is one of the clumsiest ever invented. First a magistrate is appointed and then another person –the representative of a particular class– to interfere with the magistrate in the interests of that class. The class representative is given the power of bringing the whole of the state machinery to a standstill by his veto (intercessio), and there is thus a constant element of anarchy in the state. That the tribunes were an anarchical institution had been shown by the fifty odd years of strife since their institution. Very probably it was intended by codification to substitute for the personal protection of the tribunes the more regular protection by definite law, with which the plebeians might be expected to content themselves, as members of their own order could be on the commission which was to draw up the code. But if this was the intention, the violent end of the decemvirate frustrated it. The restored constitution included the appointment of tribunes, and there was never another attempt to abolish them. Indeed when the struggle between the orders was over, they became, as we shall see, an important instrument of senatorial government.
In addiction to the restoration of the constitution, the plebs, by their secession, obtained certain concessions which were embodied in several leges Valeriae Horatiae, passed by the new consuls for 449. Of these the most important were one de provocatione and another which is represented as giving to resolutions of the concilium plebis the force of law. A few years later, in 445, by two leges Canuleiae, the prohibition of marriage between the orders (which had been repeated in the XII Tables) was removed and a compromise was arranged with regard to the admission of plebeians to the magistracy.
Instead of consuls there might now be elected military tribunes (who must not be confused with the tribunes of the plebs) with consular power, it being left to the senate to decide each year which form the highest office in the state should take (4). From the consulship plebeians were still excluded, but they might be elected military tribunes. In the succeeding seventy-eight years during which the compromise on the subject of the admission of plebeians, the arrangement was probably designed to meet the need for an increased number of magistrates with imperium, caused by the numerous wars of this period and the increase of judicial work, all of which had previously fallen to the consuls.
The next important moment comes with the passing of the leges Liciniae Sextiae in 367. The intervening years were a period of continuous strife during which the richer plebeians continued to use the economic grievances of the poor as an instrument for keeping agitation for political concessions alive. The patricians, on the other hand, though the main position had been lost by the admission of plebeians to the military tribunate, continued to dispute their remaining privileges inch by inch. One victory which they won (in 443) was the establishment of a new high office confined to patricians, the censorship. Two censors were henceforward elected every four or five years to take over certain duties hitherto performed by the consuls, especially the drawing up of the census, the official list of the Roman people for purposes of military service and taxation. On the other hand in 421 plebeians became eligible for the quaestorship. Something too, but not much, was done to alleviate the distress of the poor by laws assigning portions of conquered territory to citizens. In 377 began the agitation by the tribunes Licinius and Sextius for the enactment of a programme of reform which included both economic and political measures. It took ten years of violent unrest before they succeeded, but in 367 their proposals become law. The measures passed were as follows:
- Economic
+ No citizen to "occupy" more than 500 jugera of public land or keep more than 100 oxen or 500 sheep on the common pasture.
+ Landlords must employ a certain proportion of free labourers. The object of this provision was to provide employment for the growing number of citizens who were thrown out of work by the increase of large estates which their owners found it more economical to cultivate by means of slaves.
+ Debtors are relieved by subtracting interest already paid from the capital and making arrangements for balances to be paid in instalments. This was, of course, a measure which could have only a temporary effect. The law of debt was not altered.
- Political
+ The military tribunate with consular power is abolished and in future ONE OF THE CONSULS MUST BE A PLEBEIAN. The election of patricians to the first decemvirate and the small number of plebeian military tribunes had shown the necessity of reserving a place in the consulate for plebeians.
+ The keepers of the oracles, of whom there are now to be ten (x viri sacris faciundis), are to be half patrician and half plebeian.
This first admission of plebeians to the priestly colleges is important politically, for the interpretation of oracles might seriously influence affairs of state.
The same year in which the leges Liciniae Sextiae were passed saw the establishment of two new magistracies, the praetorship and the curule aedileship. The abolition of the military tribunate had again reduced the number of magistrates with imperium to two. The creation of the praetorship raised it to three. The new magistrate was intended to take over the judicial work of the consuls, and his office is therefore, for the study of Roman law, the most important magistracy of all. Livy represents the praetorship as originally confined to patricians and its institution therefore as a compromise, but, at any rate, it did not long remain a patrician preserve, for in 337 we know that a plebeian was elected to the office.
With the reservation of one consulship to their order the plebeians had gained their chief point, and the opening of other offices to them followed in due course. In 351 a plebeian was first elected censor and in 339 a lex Publilia reserved one censorship to the plebeians. In 300, by a lex Ogulnia, the pontificate, the most important of the priestly colleges from a political point of view, was thrown open to the plebs, and therewith the struggle as regards offices was over. The last act of the whole struggle was the lex Hortensia of 287, whereby the resolutions of the concilium plebis were given the force of law. The details of this matter, which is of great importance, will be discussed later when we deal with the popular assemblies.
The result of the plebeian victory was that the political importance of the distinction between patricians and plebeians disappeared. But Rome did not become democratic. The old aristocracy was replaced by a new one, often described as an aristocracy of office, which consisted of the patrician families, now comparatively few in number, with the addiction of those plebeian families which had gained sufficient wealth and influence to be elected to the higher magistracies. A man was considered a nobleman if one of his ancestors had held a curule office (5). But there was a great difference between the new nobility and the old; the privileges of the patricians had been secured to them by law, those of the new aristocracy were purely the result of practice. In law there was nothing to prevent the assembly from electing to office a person who could point to no curule magistrates in his family tree, and sometimes the assembly made use of this power (6). Generally, however, only members of the old established families, patrician or plebeian, had sufficient influence to secure election, and the feeling of the assembly appears to have been that it was best to continue entrusting the government to men in whose family government had become a tradition.
The poor, it must be admitted, did not benefit much by the admission of rich plebeians to share in the political privileges of the patricians. The limits imposed by the leges Liciniae Sextiae on the occupation of public land were not enforced for any length of time, and the provision for free labourers remained without much effect. On the other hand, independent circumstances, especially the increase of land available for colonies and the general growth of wealth which was due to Rome's conquests, did undoubtedly tend to better the material condition of the lower classes. Of the modification of the law of debt we shall to speak later.
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(1) To say nothing of the leges Porciae.
(2) Laws were called after the name of the magistrate who proposed them; hence a lex Valeria is necessarily one passed by a member of the gens Valeria.
(3) The date of Solon's legislation was probably 594-593 B.C.
(4) Technically it was a matter for the magistrate who presided over the elections to decide, but we can hardly suppose that he would take such an important decision without reference to the senate.
(5) Dictatorship, consulship, praetorship, censorship, curule aedileship.
(6) As in the case of Cicero, consul 63 B.C., who was a novus homo.
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- The republican constitution
+ The republican constitution: Elements
+ The assemblies of the people
+ Characteristics and procedure of roman assemblies
+ The Senate
+ The consulate
+ The praetorship
+ The aedileship
+ The quaestorship
+ The censorship
+ The tribunate
+ The dictatorship
+ The minor magistrates
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 7 - 16.
