people the reality of directing power, to free it from the tutelage under which it stood, to do away with that mock sovereignty which consisted in endorsing the decrees of the senate, and to invest the assembly in the forum or the field of Mars with the reality of governing power. Their error consisted in the belief that such a change was possible by returning to the simple forms of the old comitia. They overlooked the necessity of remodelling the Roman people itself by giving the popular assemblies a form which would in reality make them represent the people. Failing in this, they only weakened that form of government which was the only one possible in a large and wealthy republic without representative assemblies, and thereby hastened the advent of the monarchy.

CHAP.

VI.

blishment

archy no

part of

In this sense, and in this alone, can it be said that The estaC. Gracchus worked for the realisation of a monarchical of a mongovernment. To establish it directly and for himself was as far from his thoughts as from that of any Roman states- their man before Julius Cæsar. He could conceive of no other schemes. form of government than the republican. He must have seen that the people in their corporate capacity are unable to govern, and that they require a representative to act for them; but he implicitly believed that year after year popular election would place at the disposal of the people such men as himself, who would resign themselves to serve the people without aiming at being their masters, and who would be willing to study and able to discover the popular wants and wishes, and at the bidding of the people to realise them. He thought that a kind of Periclean guardianship of the state might be organized without danger to the permanence of republican institutions. That this was a self-delusion it is easy enough for us to see who have the whole experience of the world's history to teach us. But we can hardly condemn Gracchus because at his time

1 Mommsen's view (Röm. Gesch. ii. p. 117), which is diametrically opposite, amounts to this, that C. Gracchus distinctly aimed at establishing a 'tyrannis' in the form of a tribuneship for life with dictatorial power, or absolute monarchy of the Napoleonic kind. Mommsen is so perfectly convinced of this that he is wroth with all those who have no eyes to see it, or refuse to see it.

BOOK
VII.

Proposed law for rendering

to all

sons de

prived of any office

by the people.

and from his point of view he failed to see the error in his calculation.

The first measure which C. Gracchus proposed to take after he had entered on his office of tribune seems to have ineligible been prompted partly by a feeling of personal hostility offices per- to the enemies of his murdered brother, partly by political considerations. Octavius, the colleague of Tiberius Gracchus in his tribunate, had compelled the latter, by his uncompromising opposition, to violate one of the fundamental principles of the constitution, by obtaining a vote of the people for his deposition from office. This act had always been interpreted by the opposite party as an act of violence, which in truth it was. Caius Gracchus now came forward with a resolution intended to confirm the popular decision against Octavius and, as it were, to remove all doubts of its legality. He proposed that a magistrate removed from his office by the people should become ineligible to any other office. If such a law had been passed and become a part of the constitution, it would have had a most injurious effect. It would have become a means for exercising a kind of ostracism by which any victorious party could have silenced for ever an obnoxious statesman. We are told that C. Gracchus withdrew his proposed law out of deference to the advice of his mother Cornelia, who interceded for Octavius. If this is true, the mother showed more political tact than the son, though perhaps she was chiefly guided by personal feelings of respect for Octavius, whom even his enemies could not accuse of selfish or ignoble motives.

Question

of the discretionary powers of

the senate.

A second proposal of C. Gracchus, which he passed into a law, was equally suggested by the proceedings in his brother's tribunate. It was a re-enactment, perhaps with new and more stringent clauses, of an old principle, one of the corner-stones of individual liberty, which protected the life of a Roman citizen from the summary jurisdiction of the magistrates, and placed it under that of the whole assembled people.' The successive Valerian and The Sempronian law of C. Gracchus is mentioned in connexion with the

1

VI.

Porcian laws had from time to time extended this proud CHAP. privilege of the Roman citizen. In the field alone, and whilst a dictator was at the head of the government, the absolute power of life and death was maintained in the hands of a military commander. But the dictatorship had now been obsolete for a long time, and the senate, in whose hands the nomination of dictators had practically been placed, had lost a powerful engine for the control of the people. Yet it had continued to exercise supreme and unlimited jurisdiction over the allies and subjects of Rome in cases of public danger or urgency by investing the consuls with dictatorial power and appointing commissions to inquire into and punish conspiracies, insurrections, political offences, and in general crimes which endangered the public peace. For the appointment of such criminal commissions the senate was not bound to procure the previous sanction of the people. It was often necessary to act promptly, and it might be necessary to act secretly. The discretionary power of the senate was absolutely necessary, and had been submitted to by the people without jealousy, as far as subjects and allies were concerned.1 But in the case of Tiberius Gracchus the senate had ex

Porcian laws as belonging to the same category of laws enacted to guarantee the personal liberty of Roman citizens. Cicero, Verr. ii. 5, 63, 163: O nomen dulce libertatis! o ius eximium nostræ civitatis! o lex Porcia legesque Semproniæ! It is strange that Cicero in this passage speaks of the Porcian laws in the singular number, though as we know there were three 'leges Porciæ,' whilst he uses the plural number of the single Sempronian law. In another passage (Catil. iv. 5, 10), Cicero mentions legem Semproniam.'

Sallust, Catil. 29: Itaque quod plerumque in atroci negotio solet, senatus decrevit, darent operam consules, ne quid res publica detrimenti caperet. Ea potestas per senatum more Romano magistratui maxima permittitur, exercitum parare, bellum gerere, coercere omnibus modis socios atque cives, domi militiæque imperium atque iudicium summum habere. Aliter sine populi iussu nullius earum rerum consuli ius est. In this important passage, it is assumed that the right of investing the consuls with dictatorial power by a simple decree of the senate is based on the old constitutional practice, called here 'mos Romanus,' at other times mos maiorum,' and it is implied that by it all laws which restrict the military and judicial power of the magistrates for the protection of citizens from summary jurisdiction, the Valerian, Porcian, and Sempronian laws, are temporarily suspended. The same opinion is expressed by Cæsar, Bell. Civ. i. 7.

BOOK

VII.

Law of C.
Gracchus
affecting

the mur-
derers
of his

brother.

1

tended its right over Roman citizens. They had declared that he was guilty of treason to the state, they had accused him of an attempt to seize monarchical power, and, after they had put him to death without a trial, they had nominated a judicial commission for the punishment of the participators in the alleged conspiracy, and this commission had caused a considerable number of sentences of death to be pronounced and executed.2

Armed with this law, C. Gracchus called in question the legality of the proceedings of the nobility in the suppression of the disturbances ten years before. He proposed a resolution in the assembly of the tribes, to call to account all those persons who, without special authority from the people,3 had inflicted capital punishment on any Roman citizen. His attack was directed especially against the consuls of the year 132 B.C., who had carried the senatorial decree into effect. One of these consuls, Rupilius, was since dead; but the other consul, P. Popillius Lænas, found himself compelled to leave Rome in order to escape condemnation by a popular tribunal.'

Under what pretext a law could be set aside which was passed to guarantee personal liberty to Roman citizens, may be gathered from a passage in Cicero's speech against Catiline (i. 11, 28): nunquam in hac urbe ii, qui a re publica defecerunt, civium iura tenuerunt. With such an interpretation of the law it was only necessary to declare a Roman citizen to be an enemy of his country if it was intended to deprive him of the benefit of the law. Comp. Cicero, Catil. iv. 5, 10: At vero C. Cæsar intelligit legem Semproniam esse de civibus Romanis constitutam: qui autem rei publicæ sit hostis, eum civem esse nullo modo posse: denique ipsum latorem legis Semproniæ iussu populi pœnas rei publicæ dependisse. It is clear that no laws could be framed to guard against sophistry like this.

2 Above, p. 407.

Cicero, P. Rabir. Perduell. 4: ne de capite civium Romanorum iniussu vestro (without authority from the people) iudicaretur.

4 Plutarch, C. Gracch. 4. It has been considered to have been an unfair stretch of the Sempronian law of C. Gracchus, to apply it retrospectively to Popillius Lænas. But as the law was in the main only a re-enactment of older laws which had never been repealed, it seems that the proceedings against Popillius Lænas were justified. Laws with retrospective force are evidently contrary to the principle of right; yet it does not seem that the Romans took any serious objection to them. This is explained from the fact, that the legis lative and the judicial bodies were the same. The people were in their right if they punished an action which they looked upon as a crime, even before they thought it necessary to lay down general rules as to its criminality.

1

VI.

Increasing strength of the opposi

tion shown

It was not without some difficulty that C. Gracchus CHAP. succeeded in passing his law and in driving Popillius Lænas into exile. Though he had employed all his oratorical power when he spoke of the brutal murder of his brother, and of the violation of the sacred law which pro- to C. claimed the inviolability of the tribune, though he had Gracchus. represented in glowing colours the injustice of the illegal commission presided over by Popillius Lænas, he could hardly carry the people with him. His proposal was accepted by the tribes with the majority of only one tribal vote. So powerful had his opponents become that he could hardly reckon on the support of that very people for whose welfare he was struggling. He found that he could not proceed further with his scheme of reform without gaining a firmer footing in that class on whose votes depended the final success of his agitation.

Law regulating the

price of corn for

Roman

within the

He accordingly came forward with a proposal by which he might justly expect to secure the unfailing gratitude of the Roman proletarians. This was that baneful law for the distribution of corn (lex frumentaria) by which it was pro- citizens vided that the Roman citizens dwelling in the city should dwelling be entitled to receive every month from the state certain city. fixed quantities of corn at a valuation fixed considerably below the market price. The way for this fatal innovation had unfortunately been to some extent prepared by previous custom; for it had long been the practice of the Roman government, and had been even considered its duty, in times of general scarcity to mitigate the sufferings of the people by buying up corn at the public expense and conveying it to Rome for distribution among the poor. But these had been extraordinary measures justified by extraordinary circumstances. It had also been the prac

Festus, s. v. Malo cruce and occisitantur. Gell. xi. 13. Plutarch, C. Gracch. 3.

2 Appian, Bell. Civ. i. 21. Plutarch, C. Gracch. 5. Liv. 70. Diodor. xxxv. 25. According to Mommsen's calculation (Röm. Gesch. ii. p. 107) probably five modii every month, each modius for 6 as, or less than threepence, not quite half of a low average market price.