5

have. Instead of leading to reforms, they seemed only to prove the excellence of the existing institutions the results of which were so satisfactory. All that was done in the way of legislation therefore was limited to improving the old constitution in some subordinate points of detail, and to completing the existing laws, both public and private. The number of republican offices was increased,2 re-election to the censorship was forbidden,3 a law was passed to restrain a man from becoming a candidate to the tribuneship during the lifetime of his father, if the father had held a curule office, the election of the legionary tribunes by the people was regulated, rules were laid down fixing the age at which the different offices of state should be held," lastly, laws were enacted for the restriction of extravagance in dress and living, and to secure public order. The law which Cato succeeded in passing, probably during his consulship, for the purpose of limiting and controlling the excessive demands which the provincial governors were in the habit of making on the people under their authority, was an honest but ineffectual attempt to abolish an inveterate evil, not only ruinous to the subjects of Rome, but dangerous to the republican constitution itself. The same Cato passed a law to re-enact and most probably to extend the provisions of the old Valerian laws, given at the very commencement of the republic for the security of Roman citizens from any excessive severity of magistrates. There were three Porcian laws, devoted to the same object and passed at

8

It may be recognised as a general rule that disastrous wars lead to internal reforms, or at least to attempts at reforms. This is amply proved by ancient and modern history. See, with respect to Carthage, vol. ii. p. 143.

2 The number of quæstors to eight; that of prætors first to two, then to four, finally to six. Above, p. 120.

CHAP.

XVI.

Lex Claudia, 219 B.C.; Lex Oppia, 215 B.C.; Lex Cincia, 204 B.C.; Lex Orchia, 181 B.C.; Lex Fannia, 161 B.C.; Lex Didia, 148 B.C.

Cicero, De Rep. ii. 31, 54: Neque leges Porciæ, quæ tres sunt trium Porciorum, ut scitis, quidquam præter sanctionem attulerunt novi. Liv. x. 9,

BOOK
VI.

The Alian and Fatian

laws.

different times by members of the same family. But they introduced no new principle of rights. Their object was to secure and guarantee the old privileges of Roman citizens and to introduce only such modifications as the altered times required.

Of far greater importance, and an indication of what threatened the democracy, were the Elian and Fufian laws (leges Elia and Fufia), the age of which unfortunately we cannot accurately determine.' They enacted that a popular assembly might be dissolved, or, in other words, the acceptance of any proposed law prevented, if a magistrate announced to the president of the assembly that it was his intention to choose the same time for watching the heavens. Such an announcement (obnun tiatio) was held to be a sufficient cause for interrupting an assembly, not less than the actual appearance of unfavourable signs. This law, although assuming to be of a general character, was specially directed against the tribunes of the people, and was destined to prevent them from calling the people together for the purpose of passing laws which had not met with the approval of the government, i.e. of the senate and the higher magistrates. It was, therefore, to a certain extent, a restoration of the veto which had been contained in the patrum auctoritas, and which had long been abolished.2 Cicero was delighted with this law; he calls it the safest protection from demagogic disturbances, a fort and bulwark for the rest and peace of the state. This is easily explained; for as long 3: Eodem anno [300 B.c.] M. Valerius consul de provocatione legem tulit diligentius sanctam. Tertio ea tum post reges exactos lata est, semper a familia eadem. Causam renovandæ sæpius haud aliam fuisse reor, quam quod plus paucorum opes quam libertas plebis poterant. Porcia tamen lex sola pro tergo civium lata videtur, quod gravi pœna, si quis verberasset necasset ve civem Romanum, sanxit. Valeria lex cum eum qui provocasset virgis cædi securique necari vetuisset, si quis adversus ea fecisset, nihil ultra quam 'improbe factum' adiecit.

On this law see Lange, Röm. Alterth. ii. p. 447.

2 Vol. i. p. 371.

3 Cicero, P. Red. in Sen. 5, 11: Subsidia certissima contra tribunicios furores. In Pisonem, 4, 9: Propugnacula murique tranquillitatis et otii. In Vatin. 7, 18: Lex li et Fufia quæ leges sæpenumero tribunicios furores debilitarunt et represserunt.

as such a law was in force, the nobility were free from anxiety. Every attempt of a quarrelsome, revolutionary spirit could be nipped in the bud. But it is matter of surprise that the machinery which the Elian and Fufian laws set in motion was not found to be rusty and out of gear in the second century before our era. The 'obnuntiatio,' one would think, would be of no use and effect in an age which no longer respected the old religious scruples. In the older times, when religion still held the minds of the people in awe, it was not used openly as a political weapon, but only occasionally employed to assist in gaining political ends, whereas now, in the age of universal scepticism, a rule was made, according to which, under the pretext of religious objections, the governing party could pursue purely political motives. It is not probable that the nobility were often in a position to make use of the weapon offered them in the shape of the Ælian and Fufian laws. We should certainly have been informed of it, and moreover the inevitable result would have been what took place in Cicero's time, namely that the weapon which had received too keen an edge would soon have become blunt. There was, moreover, hardly ever occasion for it up to the time of the Gracchi. If, therefore, it took any effect before this time, it was probably as a warning, or against agitators who were too insignificant to obtain for themselves the honour of a name in the annals.

CHAP.

XVI.

changes in

Whilst formal legislation did but little to alter the Gradual fundamental outlines of the constitution, a gradual change constituwas nevertheless effected by the imperceptible influence of tional practice. progressive national life. That the existing laws and constitutional practices should be gradually accommodated to the wants of a larger state, of a spreading dominion and of the uncontested rule of the nobility, was inevitable. Among these silent changes is to be reckoned the gradual disappearance of the dictatorship. The power of these magistrates too nearly resembled that of a king to be looked upon favourably by the aristocracy. In spite of the

1 Abore, p. 85.

BOOK

VI.

Extension

of military commands

term of

office.

unceasing wars, therefore, which frequently made it appear necessary to unite the various branches of the administration in the hands of one man, the dictatorship by which this object could have been easily obtained was allowed to drop.

A danger to the constitution greater than that of the dictatorship might justly be apprehended from the military beyond the commands extended beyond the year of office. These extensions or prorogations, however, could not like the dictatorship be dispensed with. The great and constantly increasing distances from Rome at which war had to be carried on, the difficulty of successfully prosecuting the military undertakings of one general by a second or third successor to the command, often caused the danger to be overlooked with which official power resting long in the hands of the same person necessarily threatened the republic. Thus it happened that, especially in the Hannibalic war, the Scipios, Marcellus, and Valerius Lævinus held commands for lengthened periods. But after the conclusion of that war, the opposite practice seems to have been pursued in Spain, Liguria, and in the East, not for the benefit of the military operations, but at least in the interest of the nobility, who, in spite of occasional difficulties with refractory generals, managed on the whole to maintain the authority of the senate over single families, and that of the civil over the military power.

Origin of the Social

war.

The most important reformatory movements of the entire period were effected without acts of formal legislation, merely by the official practice of the executive magistrates. These magistrates, acting of course not as independent legislators, but with the consent and sanction of the senate, or rather by order of the senate, and with the subsequent approval of the people expressed or implied, introduced reforms of great weight and importance, simply by adopting new rules in the administration of their respective departments. This was the case especially in the periodical recasting of the list of citizens by the censors. We have already seen that we must ascribe to the latter

the reforms in the constitution of centuries as well as in the assemblies of tribes. All these innovations must be looked upon not as measures resolved upon by the censors upon their own responsibility, but as reforms maturely considered in the senate, adopted by the majority in that body, shaped so as to suit the circumstances of the time, and finally confirmed and consecrated by the solemn religious ceremony of the lustrum' which gave them the sanction of the gods. To organize the body of citizens in their tribes and classes was the most important of all measures of reform. The two great parties which had at all times divided the state, though sometimes their enmity seemed interrupted by long periods of truce, came at last into direct collision, when the reception of the whole of Italy into the body of Roman citizens could no longer be postponed. The question could not be settled by discussion and compromise. The passions of both parties were roused, and the Social war, the most terrible of all that ever visited Italy, determined the last reform of the comitia tributa, by opening the thirty-five Roman tribes to all the Italian allies.

CHAP.
XVI.

Private like public law was developed not so much by Growing power of means of formal legislation as by the magistrates, who the senate. with the approval of the senate and the people, the two principal factors of public life, issued the so-called prætorian edicts or rules of law by which they declared that they would be guided in their decisions. All the changes thus effected in the principles and practices of the constitution were made in one direction; they tended to increase the power and the authority of the senate as the organ of the nobility. Whilst the co-operation of the people, which was theoretically indispensable, sank steadily to a mere formality, the actual decisions in all important questions were more and more left to the senate, which from a merely deliberating and consulting body thus became practically supreme. But the senate was in point of fact only a committee of the nobility. The rule of the 1 Above, pp. 17, 35 ff. 2 Above, p. 121. Above, chap. ii.