Chapter X: Part 10

The general law of debt, as it is found in the East, among the Greeks, among the northern nations, as well as among the Romans, is this, that the borrower could pledge himself and his family for the debt. According to Plutarch, in his life of Solon, there were at Athens nearly a thousand bondmen for debt, who, if they were not able to pay, were sold to the foreigner. Among the Romans personal arrest existed in its sternest form. People either liquidated their debts by personal servitude, or else they alienated their property for a certain time, or in case of severe distress for life, or else they also sold themselves,--by which likewise the children, who were still _in patria potestate_, came _per æs et libram_ into the _mancipium_ of the buyer,--yet with the condition that they might be redeemed. This bondage lasted until they emancipated themselves again _per æs et libram_. Our personal arrest of insolvent debtors is the still remaining half of this ancient right, which ceases to have any meaning, owing to the other half having been done away with by milder manners. The German also could in olden times give up his freehold and his person to another, whose bondman he then became. In order to escape the addiction, the borrower could eventually sell his property as a security; yet he was bound in conscience to redeem it after a certain time. The _Fides_ answered for it that the creditor also would not withhold from the debtor the opportunity of redeeming himself, even when his person and his family were concerned. For this reason the _Fides_ was a goddess of such importance among the Romans: as under such strict forms of law, people would have utterly been ruined without her. If a debtor did not discharge his debt, he was forfeited to his creditor, being _fiduciarius_ in his _mancipium_; yet the latter could not directly _manum injicere_, an addiction of the prætor being wanted for that purpose. He had to _in jure vindicare_ him with the words, _Hunc ego hominem meum esse aio ex jure Quiritium_; and without doubt the five witnesses and the _libripens_, before whom the contract had been concluded, were to be present. The prætor then gave a respite; and if after its expiration payment was not made, and the debtor therefore was not able to prove the _liberatio per æs et libram_, the ὑπερήμενος was addicted to the creditor. In the old Attic law, it was just the same; yet Solon had without doubt abolished it, and introduced in its stead the Attic law of mortgage, from which the later Roman one is derived. For the _equites_ in their important money transactions tried to evade the strict debtor’s law, by causing them to be managed by foreigners who were not subject to the Roman laws. Thence arose the laws concerning the _chirographa_ and _centesima_, a discount business for so short a date was not done in Rome at all. The _Addictus_ was termed _nexus_, because of his being _nexu vinctus_. _Nexus_, or _nexum_ every transaction was originally called, which by _traditio_ and by weighing out of money was done in the presence of witnesses, a thing afterwards usual only in fictitious sales, and then significative of a right of mortgage, by which in case of neglect of payment a definite right of property was secured to the creditor. Frequently also people were allowed to discharge their debt by work. An industrious workman might advantageously dispose of his labour in times when there was a great demand for it; if, for instance, a man, who had pledged himself, had a son who was still in his full strength; the father sold him to the creditor; and when the son had discharged the debt by his work, he became again free of the _mancipium_ of his master. Yet the interest accumulated at such a usurious rate, that it became very difficult for a debtor who was poor to redeem himself; though, if he worked as a _nexus_, he at least paid the interest. During such a period of labour the master had full authority over him as over a slave. That those who thus worked in payment of debts were a numerous class, is expressly asserted by writers.

But there was yet another way in which bondage for debt arose. One might also become a debtor without contract; as for instance, by neglecting to pay a legacy, or should a tradesman work for me, and I do not pay him; and again, if I commit a crime, I am bound in Roman law to make amends to the injured party according to a fixed estimate, _obligatio ex delicto_. All these relations constitute a second class of liabilities, and in these cases there was addiction without _nexus_, as was laid down in the twelve tables. The prætor sentences the thief to give me double what he has stolen; and if the man does not pay it by the appointed day, he addicts him to me as a bondman for debt. In the same manner, if I sue any one for a purchase and he cannot deny the debt (_æs confessum_), I demand his _addictio_ for a certain time. This was a _vinculum fidei_, an intimidation, so that the debtor, of course, strained every nerve to pay. To this only did the expression _vinculum fidei_ refer, not to the _nexum_; as vindication was here allowed, and there was no question about the fulfilment of a contract. When a Roman was _in nexu_, having sold himself to another in the event of his not paying, as the Merchant of Venice did to Shylock, he had to pay the taxes on his freehold all the same, however heavily incumbered it might be; for _nexo solutoque idem jus esto_, was the law of the twelve tables. But quite different is the case of the addictus, who is the creditor’s own, and has no personal rights. Thus we have the solution of the enigma in the accounts given in our books, that debtors who had sold themselves (that is to say, _nexi_) served notwithstanding in the legions.[91] Livy does not enter into this subject, because he was not conscious of the difficulty: Dionysius indeed remarks it, but he is embarrassed by it.

In a certain measure, this system was just as necessary as our strict rules of exchange; yet its abuse was unavoidable, as the rich man is not always kind-hearted, but is often harsh, and will abide by the law in its utmost rigour. This idolizing of mammon reigned in Rome, and the tyranny of positive law was often very oppressive. Besides which, the right was all on one side. When a patrician got into difficulties, his kinsmen or dependants had to get him out of them; the plebeians were forced in most cases to borrow money from the patricians. Now the fate of an addicted plebeian was one in which there might be much variety. He might find a mild master who allowed him to buy his freedom by work, or else a hard one who would shut him up in the _ergastulum_, put him in chains, and treat him cruelly, that his friends might be obliged to pay for his release.

This was the state of these relations about the year 260. All at once an extraordinary general distress arose, like the one nearly a hundred years later, after the Gallic calamity. Before that time we find nothing at all resembling it. The reason for this must have been the war of Porsena, from which we may draw the inference that it ought to be placed much later than we find it in Livy. The distress caused commotions among the people, of the breaking out of which Livy’s account may be tolerably well founded. An old warrior, covered with scars, falls into the hands of his creditors, because his house had been burnt down and his property carried off; he escapes from the dungeon in which he has been most barbarously treated by his master, and shows himself in the market-place, starving, clothed in rags, and disfigured with stripes. This sight gives rise to a general uproar, and the _Plebes_ renounce the rule of their tyrants. Livy’s account of the way in which the tumult spreads wider and wider is a model of beautiful writing, being taken from the very nature of man; yet its details do not contain any real tradition, but it is to be looked upon as an historical romance. When the senate and the consuls had now arrived at the terrible conviction that the commonalty could not be ruled when once it did not choose to obey, either the report was spread that the Volscians were at hand, or they actually advanced when they heard of the dissensions in Rome. The senate resolved upon raising an army. According to the original law, the senate had no authority by itself to declare war; but it brought the motion before the curies, and these had to give it their approval. According to Servius’ laws, the motion ought to have gone to the centuries also; but this was no more thought of; the annalists mention only the senate. The latter decreed that an army should be raised. As the burthen of the service on foot lay on the Plebes only, its _juniores_ were summoned by tribes (_nominatim citabantur_); to answer to the summons was termed _nomen dare_; to refuse, _nomen abnuere_. This conscription remained unchanged in all essential points to the latest times of the republic. But when the _Plebes_ refused to serve, it did not answer (_non respondebat_): such a silence is the most awful that can be. Since this now happened, the consuls knew not which way to turn. A loud outcry arose, that people would not be so foolish as to shed their blood for their tyrant-masters; that the whole gain of the war fell to the lot of the patricians; that the booty was shared among them, and that it passed into the _publicum_ (the chest of the patricians), not into the _ærarium_; that the plebeian became poorer and poorer, and that he was obliged to pledge himself and his to the patrician, and to serve him as a bondman. Among the patricians a split began to show itself. Livy tells us, that the _minores natu_ among the _patres_ were foremost in the fray;--probably this ought to be the _minores_, who are the Luceres, as it is impossible to think of young patricians at that time as members of the senate, which in reality was a γερουσία. The consuls (A. 259) belonged to opposite parties; Appius Claudius representing the interest of the most furious oligarchs, Servilius being moderate. In the danger which was threatening, one could only succeed by mildness: every attempt to raise an army by force disgracefully failed. Servilius had himself authorized by the senate to arrange matters. He issued a proclamation calling upon all those who had been pledged for debt to present themselves, and he gave them security as long as they should be in the field, and for their children and dependants as well. Numbers now crowded to the standards, and with the army thus formed, Servilius went out to war, and returned victorious. He had promised to do his utmost with the senate to make them cancel the contracts for debt; but the senate did not grant any thing, and the army was dismissed. Appius Claudius undertook the jurisdiction, and, without paying any regard to the word of the consul, addicted all those who had been in the field to their creditors, or obliged them to enter into a _nexum_. The rest of the year was passed in the greatest commotion. The consuls who came next, A. Virginius and T. Vetusius (A. 260), were both of them men of moderate views;--a proof that the election lay still with the centuries, as the curies would have chosen the most violent oligarchs. Yet they were not able to do any thing either with the senate or their own order. It was again attempted to raise an army, and the difficulties were the same as before. The consuls were reproached with cowardice; others who wanted to strike terror into the people, had to think of saving their lives instead. Real danger there was only on market days; the _Plebes_ consisting of peasants who lived in the country. In Italy tillage requires extraordinary care. The land must be weeded several times during summer; the Romans plough the fallow ground five, six, or seven times; they weed the fields, and weed them again, until the corn is grown about three inches high. It is incredible how much work this requires; the peasant therefore is busy the whole of the year, and has no time to go about idle. In the city there were usually only those plebeians who were townsmen. The patricians were therefore safe: they had strong men among them, and a great number of clients, whereas the plebeians in the four _tribus urbanæ_ were certainly the minority. Thus the fact may also be accounted for, that the patricians were able to rule the plebeians even without regular troops. The houses (Geschlechter) also of the German towns had for a long time the commonalties in their power, although the latter were superior to them in numbers. Had the plebeians been a rabble, the patricians would all of them have been soon slain by them.

When the attempt proved again unsuccessful, some proposed to carry out the concessions of Servilius, and to abide by them; but Appius said, that the resistance ought to be put down, and a dictator therefore elected. It had been one of the objects of the institution of the dictatorship, to be enabled to evade the limitations placed upon the power of the consuls, not only by the appeal to the curies, but also by that to the tribes, which Valerius had established. Appius wanted the dictator to seize every one who refused to serve, and to have him put to death. This mad project could not but have caused the most dreadful commotion. The assembly passed an insane resolution, but the good genius of Rome guided them to choose as dictator the most moderate man, M. Valerius,--thus he is called by all the authorities, less correctly by Dionysius alone Manius Valerius, which is a mere figment, devised because Marcus was said to have been killed at the Regillus,--a clansman, or, according to our narratives, a brother of P. Valerius Poplicola. He renews the edict of Servilius, and, whilst the Volscians, Æquians, and Sabines were in arms, raises an army without difficulty. That it is stated to have consisted of ten legions, can only excite our smile. To each consul he gave a part of the army; he took one likewise himself, and returned victorious. He now demanded of the senate the fulfilment of his promises; and declared, that the law should not be departed from. Valerius resigned his dignity. Now there were still both of the consular armies, or at least one of them under arms, the return of which the patricians did not wish to allow; for as long as there was an army in the camp, its services might be commanded. Dionysius expressly tells us, that the consuls, owing to a Lex Valeria, held absolute sway, extending from one mile beyond Rome by virtue of their _imperium_, and that consequently they might punish by martial law anybody who was _obnoxius_ to them, without needing the decision of a military tribunal. For this reason the senate did not wish to allow the army to return. This was an atrocious policy, since the army must some time or other be dismissed, and the whole safety therefore of the senate only rested in the conscientiousness of the _Plebes_, the oath being so sacred to the Romans. But the rebellion actually broke out in the camp, though with great moderation. It is related, that the soldiers had wished at first to slay the consul, that they might be relieved from their oath, which was only sworn to him personally. Yet they merely renounced their allegiance; made L. Sicinius Bellutus their leader; passed the Anio in arms; and encamped three or four miles from thence on a hill which was afterwards consecrated, and therefore called the _mons sacer_. Thus a whole population withdrew from the city, and there remained behind the patricians and their slaves, besides the wives and children of the emigrants. The patricians did not, however, seize upon these as hostages; whilst, on the other hand, the plebeians also practised no further hostility, but kept themselves from all devastation, and foraged in the neighbouring country only to supply their immediate wants. The patricians now acted like human beings. As long as their authority was not put in jeopardy, there was nothing which they dared not do, and so in every instance until the Lex Hortensia; yet their power once being broken, they became dispirited, and each new contest ends only in disgrace. They had thought that the plebeians would have no courage; they ever said among themselves, This time they will lay down their arms, one has only to overawe them. One feels giddy at the sight of madness like this; and yet, so long as the world lasts, it will ever be renewed. When the plebeians had raised their standard, the scales fell from their eyes. Within the town the _Plebes_ had only two quarters,[92] the Aventine with the Vallis Murcia, and the Esquiline, both of them very strong, and provided with gates, certainly guarded by armed men. The plebeians might therefore have taken possession of Rome without any resistance, as their friends would have opened the gates to them. They would, however, have been obliged to take the other hills, all of which were fortified, and the forum by storm; which would have been their country’s ruin, since the other nations would not have kept quiet. The conduct of the _Patres_ therefore appears mad, and it is inconceivable that the _Plebes_, when once in arms, did not go further: in Florence the Guelphs and Ghibelines fought against each other in the streets. A key to this seems to be found in the fact that the Latins were at peace, and that therefore with their help the senate was able to make head against the _Plebes_. It ought to be borne in mind that in confederate republics similarity of constitution has no influence whatever on the mutual support: democratically governed nations protect the governments of aristocratical ones. In the great insurrection of Lucerne and Berne, in the year 1657, the democratical cantons came to the assistance of the oligarchical governments against the peasants. This explains also how it was that the senate could hold out under such circumstances. There are allusions to it from the annals still extant in Dionysius. Appius says, that the Latins, if isopolity were granted them, would assist them against the _Plebes_.

According to Dionysius, the secession lasted four months, from August to December; and this he proves from the circumstance, that the tribune always entered upon their office on the 10th of December. There was likewise a tradition that on the Ides of September the dictator had knocked in the _clavus_, and that consequently about that time there had been no consuls at Rome. Yet the troubles are said to have broken out under the consuls Virginius and Vetusius; these consuls then, so Dionysius concludes, must have resigned their office at the end of August, and the insurrection have lasted four months. Had the succession of the tribunes never been interrupted at all, there would have been no difficulty whatever as to the same rule having applied to the time of their inauguration from the first, as that which was afterwards followed; but Dionysius overlooks the fact, that during the decemvirate the tribunate had ceased to exist, so that the tribunes hardly entered upon their office on the same day as before, but rather as soon as they were allowed to meet again. The consuls were inaugurated on the first of August, and it seems certain that the peace between the two orders was concluded by the new consuls Vetusius and Virginius. The secession cannot have lasted longer than about a fortnight: the city could not have held out in this condition; a famine would have broken out if the legions had occupied the fields. The rapidity of Livy’s narrative allows us to suppose a short duration only.

The patricians saw too late that they had driven matters to extremity, and that they must give way. They had to make very lowering concessions as to the form, and to send envoys. The list of the ten envoys which Dionysius gives, is certainly authentic, and taken from the _libri augurales_: forgery must have been carried on to a great extent if such statements were not genuine. The end of the secession is only explicable when we have a clear insight into the relations owing to which the ruling power could not only defend itself in the city, but also dispose of the confederates; for, these had sworn fealty to the Roman state, that is to say, to the senate and the _Populus_; so that numbers do not by any means turn the scale between the two orders. A peace was concluded in due form by _fetiales_, as between two free nations. The patricians sent ambassadors and conducted the negotiation, with great humiliation as to the formalities, yet with a prudence which is worthy of admiration. It was their aim to get off as cheaply as possible after the faults which they had made. They could only manage to retrieve matters, either by strengthening themselves from abroad with the aid of the allies, or by dividing the _Plebes_. For the latter purpose, two ways lay open to them. They might draw to their own side the chief plebeians, but in that case they would have lessened their own power; or they might separate the mass of the people from its leaders. The second was an infallible device. The plebeians were granted remission of debts for the insolvent debtors; the Addicti were freed, and the Nexum dissolved, without any general rule being made with regard to the law of debt: of course an amnesty also was stipulated. The remission of debts was no great loss for the creditors, as the interest had long outgrown the capital. A hundred and fifty years afterwards the rate of interest was lowered to ten per cent.; at that time it may have been about fifty per cent. A similar course was pursued by Sully.

A lasting result was the institution of the office of the _Tribuni Plebis_. These tribunes were no innovation in themselves. At the restoration of the tribunate after the second secession, the commonalty had twenty chiefs, viz. one for each tribe; among these two are invested with the power. The tribes in fact make up two decuries, and for each of these there is a chief; just as in the senate there were ten decuries, each of which had a _primus_, all of whom together constituted the board of the _decem primi_. Symmetrical arrangements every where recur in the old institutions, wherefore we may by induction from a known quantity arrive at the unknown. Thus, when we read that the first tribunes had been two, who made choice of three more to join them; it is certain that those two were the foremen of the existing twenty or twenty-one tribunes, who in a new state of things merely rose to a higher sphere of official functions. The difference without doubt was this, that the old tribunes were elected by the several tribes (as the phylarchs in the Greek states were by each phyle); the new ones, on the contrary, by the whole commonalty. C. Licinius and L. Albinius are mentioned as the two first tribunes; Sicinius, the general of the _Plebes_ at the secession, is one of the three who were chosen in addition. The plebeians were not able to recover their good right which the Servian constitution had given them; they had to be content with defending themselves against oppression. Their magistracy was therefore _auxilii ferendi gratia_; the tribunes by an oath were declared inviolable (_corpora sacrosancta_), so that they might step in between the holders of power and those who were aggrieved and protect the latter. Before that, owing to the spirit of caste and the pride of office among the patricians, the tribune who impeached a consul, would have in vain incurred the peril of the prosecution, as there was another consul with equal pretensions, and all the patricians sided with him;--indeed the consul would have caused the tribune who appealed against him to the commonalty, to be arrested and chastised. Whoever henceforth laid hand on a tribune, was proscribed as an outlaw; and if the consul did not put the outlawry in force against him, the tribune might after the expiration of his period of office, summon him before the tribunal of the curies, or even perhaps of the tribes. The tribunes were perhaps scarcely a magistracy in the commonalty, certainly not in the state. Justus Lipsius, an ingenious and very learned man, with whom as a philologist I am not worthy to be compared, has by his authority, great as he is as a grammarian, done much mischief with regard to Roman antiquities. Whenever a magistracy, or a military arrangement is mentioned, he, and all those who follow in his wake, never distinguish between the different ages. A tribune at the end of the third century is by no means like a tribune of Cicero’s time. It is just the same in Roman topography; a clear-headed man like Sarti does not put all the buildings in Rome of the different ages side by side, as the common herd do. People fancied that the tribunes had the Veto, and likewise the self-same privilege which they got afterwards, of proposing resolutions; but the first tribunes are perhaps to be looked upon in no other light but that of an ambassador in a foreign state, who is to protect the subjects of his sovereign. The patricians had until now wielded their power without any check; the plebeians had no share in the administration: and therefore a magistracy became necessary which might come forward as protectors against public authorities as well as against individuals, whenever any members of their order had to complain of ill usage. Their houses were therefore open by day and night, and they were not allowed to absent themselves from the city: like a physician they were always to be in readiness to give help. This is a grand idea, quite peculiar to Rome; there is nothing analogous to it in Greek antiquity. Besides this the tribunes had the right of calling together their commonalty, and of making propositions;--yet there are very few traces indeed of this in the earlier times. The resolutions which the tribunes moved among the _Plebes_ were mere bye-laws, rules at pleasure, _plebiscita_; whilst, on the other hand, those of the patricians were called _leges_. To this allusion is made in a passage of Livy, where the Etruscans say, that the Romans were now two peoples, each of them _suis magistratibus, suis legibus_, a notice of the importance of which Livy was entirely unconscious. He does not in general alter the materials which he finds; but he merely drops part of them. The _plebiscita_ had as yet no authority whatever over the whole community; after more than twenty years they could only be considered as an opinion offered by an assembly of states, which might pass into a law (283). The only real magistracy among the plebeians were the ædiles, a name which among the Latins also was borne by the local magistrates. In all likelihood, these were judges in the disputes of the plebeians among themselves; whereas the tribunes were no judges in the earlier times, though perhaps there may have been an appeal to them from the ædiles. No change was probably made at that time in the civil law.

These prerogatives of the tribunes are still very insignificant and humble, being either merely negative, or else administrative in a narrow sphere, and least of all legislative. I do not believe that they had the right of moving any change of the civil law in favour of their own order. Strange to say, the election of the tribunes was now committed to the centuries, although it ought far more naturally to have remained with the tribes. From this also we see, how small the advantages were which the _Plebes_ obtained by the first secession; for the patricians had great influence in the centuries by means of their clients: about ten years afterwards, they had formed, owing to this mode of election, a party among the tribunes. The statement that they were elected by the curies is a palpable falsehood; yet there is thus much of truth in it, that they were to be confirmed by the curies in order that no obnoxious people might be chosen; just as the curule magistrates were by the centuries. It is the same as when the English government claimed a veto in the election of the Irish [Roman Catholic] bishops. This relation, according to Livy, ceases already before the passing of the Publilian law. Piso thinks that before the Publilian law, by which the election was transferred to the tribes, there had been only two tribunes. I believe that the number five is of later date; yet I do not deem it likely that it should have first come in with the Publilian law: for as this number corresponds to the five classes, how should it have come into use, when it was no more the classes, but the tribes which had had to elect? It seems to me highly probable, that under the pretext of a fair compromise, the patricians still managed also to gain an advantage for themselves. I explain from this the perplexing circumstance that ten years later we find the curies in possession of the consular election instead of the centuries. The plebeians by concession only get the election to one office for the centuries; the other remains with the curies until the restoration of the consulship after the time of the decemvirs. Perhaps a grant of land was made besides, and very likely the promise was given to restore the old system of the _ager publicus_. The result of the secession was therefore by no means such a decided victory of the plebeians over the patricians, as is stated by our historians. A firm groundwork was indeed gained, which they afterwards knew how to make use of; yet the fruits were only to be reaped by dint of hard exertions.

The compromise between the two orders was now concluded in form like a peace, and also with sacrifice, by a _senatus-consultum_ and a decree of the curies on the one side and by a resolution of the plebeians in arms on the other. They called down curses on themselves if they should do anything to break the vow; and yet the patricians did all they could to shake off the yoke. The deputies of the _Plebes_, and the Decem Primi of the senate, made an offering in common; order returned; things became better; yet, of course, the seeds of new commotions and agitations were still sown for a long time to come. I have called this settlement “a peace.” This word is used elsewhere on similar occasions: the Magna Charta in Lüttich, the union between the burghers and the commonalty, was likewise called _la paix de Fexhe_. In German there is for such an agreement the fine expression _eine Richtung_ (a righting).

The Latins were now rewarded for what they had done for the senate, as Dionysius particularly mentions from the excellent record on which his narrative is based. They receive isopolity (_jus municipii_) in its first meaning by the treaty of Sp. Cassius, of which we have spoken before.

WARS WITH THE VOLSCIANS AND ÆQUIANS. LEAGUE WITH THE HERNICANS.

Immediately after this gleam of light, the same darkness comes upon us as before, for some time only the Fasti remain to us. In Livy here follows the story of Coriolanus.

If in a book a sheet is misplaced, it ought to be set right unless we would have the writer talk nonsense. The case is the same when an historical fact is placed in a wrong time. I see no reason why I should not believe that a Siceliote king in a famine had sent corn to Rome; yet the tyrants of Sicily first make their appearance some Olympiads later than the period assigned for the story of Coriolanus. I believe that Coriolanus was first of all brought to trial by the _Plebes_; yet the latter would not indeed have ventured upon such a thing before the Publilian law. The Romans also could not have quarrelled under Sp. Cassius about the distribution of the _ager publicus_, if the Volscians had advanced as far as Lavinium. I believe moreover, that a L. Junius Brutus established the heavy penalties against the interruption of the tribunes when they addressed the people; but he who placed this history in the year 262, could not have believed any thing of all this. For this reason I maintain that it does not belong to this epoch, but that it can only have happened after the passing of the Publilian law. Cn. or C. Marcius may perhaps have stood his ground in the war against the Antiates; but he cannot have conquered Corioli, as it takes part that very same year in the league of the Latin towns. We must either reject the whole story as a romance, or date it from quite a different period. A further combination was attempted with regard to it. The temple of _Fortuna muliebris_ in the Via Latina, between the fourth and the fifth milestones, happened to be on the same spot where Coriolanus encamped as an exile, and the reconciliation took place. Now the supplication of the mother and the matrons, which may be historical, was connected with the name of the _Fortuna muliebris_; and it was believed that this temple, the time of the building of which was known, had been erected in consequence of that event. Yet _Fortuna muliebris_ corresponds with _Fortuna virilis_, who had a temple in Rome, a male and a female deity, as _Tellus_ and _Tellumo_. The same contraposition is also exhibited in _animus_ and _anima_.[93]

Livy says that he would not be astonished if his readers felt tired of the wars of the Volscians and Æquians. And indeed every one has this feeling from the time when he first became acquainted with Livy. The narrative spoils the elegance of the first decade. What has made these wars so peculiarly troublesome to him, is the circumstance that he does not distinguish between them, nor divide them into periods. With the exception of what remains in Dionysius on the subject, he is the only source we have, and so it is difficult for us to get a general view of the events. The first period reaches down to the last years of the decennium from 280 to 290. Its beginning is shrouded in great darkness; the conquests of Tarquin the Proud are very vague. Afterwards we find the Volscians under the name of Auruncians invading the Latin territory; then follow a number of petty wars to about 290; in the last years we see the Volscians in possession of Antium, though they soon lose it again. In the second period the tables are turned: the Æquians take an energetic part in the war of the Volscians; Latium is entirely crushed; the war takes a very unfortunate turn for the Romans, Latins and Hernicans. This lasts to about 296, when the Romans make peace with the Volscians properly so called, and the danger is warded off. In the third period, the Romans carry on the war singlehanded against the Æquians: it has lost its dangerous character, and is on both sides carried on very languidly. Then follows another Volscian war against the Ecetrans, leagued with the Æquians. This fourth period is ushered in by the great victory of A. Postumius Tubertus (324); from which time the Romans keep advancing until the war with the Gauls, conquering many Volscian towns, and weakening the Æquians. In the Gallic war the Æquians also may have suffered much. Afterwards,--and this is the fifth period,--the wars begin anew, but their character is quite different. The Æquians are insignificant foes, and the Volscians amalgamated with the Latins, fighting like them for their own independence.

I will not go through these wars. No memory is capable of retaining them; and they are also deficient in authenticity, and that because the historian, weary of them, has read and written them in too great a hurry. After the Latin league, the enemy make a fierce onslaught, without, however, conquering much. Circeii in the time of Sp. Cassius is still a Latin town.

An event of relatively great importance for the Romans was the league with the Hernicans (267). Isopolity must already have existed early, if it be true, that under Tarquin the Proud these had a share in the festival of Jupiter Latiaris. A Roman tradition even mentions them as allies of Tullus Hostilius. After the humiliation of Rome by the Etruscans, they must, like the Latins, and the Tyrrhenian towns on the sea coast, have set themselves free. The league restored the relations in a manner very advantageous for them. Romans, Latins, and Hernicans were to be quite on the same footing; the booty, as well in money as in land, was divided in equal shares; if a colony were sent out, the colonists were taken from all the three. Whether the annalists have rightly understood the matter,--Livy and Dionysius differ very much from each other,--or whether they merely took it for granted that whenever a peace is concluded, it must have been preceded by a war, cannot be decided. Yet I am inclined to believe that the league was brought about by mutual necessity, as both were hemmed in by the Volscians and Æquians, and the fortified towns of the Hernicans were of great consequence to the Romans: a war would at least have been very absurd. The Hernicans dwelt in five towns, Anagnia, Alatrum, Ferentina, Frusino, and Verulæ, remarkable for their Cyclopian fortifications, and extending from the West to the East. According to the statements in Servius and the Veronese scholiast on Virgil, whom Mai has incorrectly edited, the Hernicans were a people sprung from the Marsians and Sabines; their name is said to be derived from _hernæ_, which in the Sabine language meant a rock, (Arndt compares to it the German _Firn_[94]), so that they were mountaineers. But it is strange that a people should in its own language have borne a mere epithet as its name, especially as the Marsians, Marrucinians, and Pelignians dwelt on much higher mountains. The Sabine descent of the Hernicans is therefore somewhat suspicious; it might, however, be maintained, even if the derivation of the name were a mere subtlety. Another difficulty is this: if they have come forth from the Marsians, they must have broken through the Æquians, which is altogether unlikely; and besides, in the sequel they have no connexion whatever with the Marsians. Julius Hyginus declares them to have been Pelasgians.

The Hernicans are remarkable in history. They kept off the Romans with brilliant courage; the alliance with them is historically certain. It was a joint league with the Romans and Latins, and therefore they received the third part of the booty. Nevertheless Roman antiquaries would have it, and Dionysius has allowed himself to be deceived by them, that the Romans had exclusively the supremacy; that therefore they had had two-thirds, and the Latins one-third of the booty; and that of those two-thirds the Romans had generously given half to the Hernicans. Yet when Romans and Latins conclude together an alliance with that brave people, it is no more than reasonable that each of them should have given up a sixth. Rome, according to Dionysius’ own version, had by no means the supremacy over the Latins. These relations must afterwards have been dissolved by some compromise. At a later period, by insisting upon their privileges the Hernicans brought on their own ruin.

Spurius Cassius is by far the most distinguished man of that age. In the times which are now quite dark, the most remarkable events are connected with his name; first the alliance with the Sabines (252),--without doubt accompanied by isopolity, to judge from the rolls of the census,--then this league with the Hernicans. In this alliance, Rome is placed in quite a different position from what it had been in the former one; just as the relations of Athens to its allies are changed about Ol. 100, after the battle at Naxos. When Athens established its second naval supremacy, the towns were far from being as dependent as formerly; and Demosthenes, when he founded his great league, with all the wisdom of an enlightened statesman no more demands that Athens should have the rule, but merely that it should be the life and the soul of the confederacy. For this, traitors to their country like Æschines, taxed him with having degraded it, inasmuch as the messenger of Athens was of no more weight than that of an Eubœan town. They wanted, so they falsely said, to see the sovereignty of Athens. Yet the question at that time was merely this, to preserve their freedom against Philip; and therefore Demosthenes readily concluded peace with any town that wished for it, and took the lead only by the power of his intellect. The same position is gained for Rome by Cassius; and this very fact shows him to have been a great man, with a clear head and a sound judgment. The Etruscan war had crushed the dominion of Rome on the right bank of the Tiber; the Volscians and Æquians were both of them advancing; the towns on the coasts were lost; it was necessary to arrange matters, not as one wished, but as one could. This the so-called historians of later days wanted to disguise from themselves, owing to their blinded partiality for their own native country. Livy--and the writers in whose wake Dionysius followed, were full of senseless veneration for the greatness of their forefathers. Rome, they thought, could never have been small. Indeed at that time also, there may have been people like Æschines, and fools, who thought Cassius a traitor, because he accommodated himself to circumstances.

Cassius in his third consulship, after the league with the Hernicans, wished to be just to the _Plebes_ also. This leads us to the important agrarian law.

THE AGRARIAN LAW. SP. CASSIUS. EMIGRATION OF THE FABII. THE PUBLILIAN ROGATIONS.

The ancient nations, when they waged war, held on the whole a different principle of right from what we do. We look upon war as a duel between the genii of two states,--between two ideal states: the individual is not affected by it as to his person, his liberty, and his property; the law of war intends him to be injured as little as possible, he is never to be the immediate object of hostility, he is only to be placed in jeopardy when it cannot be helped. But among the ancients, the hostilities were common to every one that belonged to the state; and whilst with us the conquered state indeed loses its right to the land, but every individual remains as he was, just as if there had been no war, these had quite different views on the subject. It was not only in wars of extermination that they took away the whole property of the vanquished, and made them slaves; in the common wars also the goods and chattels of the inhabitants were forfeited. Even when a place surrendered voluntarily, these with their wives and children fell into the hands of the conquerors, as we see from the forms of dedition. The conqueror in the latter case did not make them slaves; yet they were bondmen, and the whole of their landed property became the prize of the victor. If such a place had suffered but little, and it still seemed worth while to preserve it, there were sent thither from Rome three hundred colonists, one from each _Gens_, and these were a φρουρά, a φυλακή. They got each of them a garden of two _jugera_; without doubt they had the whole, or at least the greater part of the public demesne, and a third of the district as arable land, two-thirds being left to the old inhabitants. These are the original colonies. In other instances no colonies were sent, it not being deemed requisite to take occupation of the place. Sometimes the inhabitants were cast out, at other times they were allowed to remain, and a tax was laid upon them, generally the tithe; yet they then held their tenures as it were on sufferance, being always removable at pleasure. In countries which had been devastated by war, or from which the inhabitants had been driven out, the Romans used to act according to a law quite peculiar to themselves, for which there is no parallel whatever in the Greek institutions.

This _jus agrarium_ is of so much the greater importance for me as it first led me to critical researches on Roman history, whilst before that I had occupied myself more with Greek antiquities. When as a youth I read Plutarch’s parallels and Appian, the system of the _lex agraria_ was quite a riddle to me. It was thought to have really been a violation of property, which it was to limit to a certain standard, so that he who had more than five hundred _jugera_ was deprived of the surplus, by which means an increase of the plebeian holdings was created at the expense of the patrician proprietors. This exposition of the law in such an extreme sense met with much applause. From Machiavell, as he lived in a revolutionary age, and in his opinion the end sanctified the means; and not less from Montesquieu on the other hand, who looked upon the repetition of the past as a thing which was out of the question, since in his time a revolution was still as far off as possible. His example shows how bold speculative minds may become in relations which are unknown to them, and which seem impossible. At that time, revolutionary ideas, in an apparently quite innocent manner, were generally current, even among men who in the revolution itself went over to the extreme opposite side.

As Plutarch and Appian expressly state that the law applied to the γῆ δημοσία only, it was evident that something else must have been meant by it. The first who thought here of the _ager publicus_ was Heyne, in a programme the occasion for which was taken from the revolutionary confiscations; yet the question, What then was the _ager publicus_? was not cleared up, as Heyne so often had a general notion of the truth which he but rarely worked out. Afterwards also, the historical writers who treated of the Gracchi were still completely in the dark with regard to it. Once upon a time, when I did not yet see my way into these riddles, I asked the great F. A. Wolf his opinion on it. Yet he, with all the distinguished qualities of his mind, had this fault, that he sought to have the credit of knowing every thing, and then gave himself the air of not wishing to commit himself. He too did not know how to get over this difficulty. I was brought to the subject by chance. In Holstein at that time bondage was abolished. Instead of the peasants, serfs as well as freemen, having hereditary abodes on the estates as formerly, their possessions were taken from them, and changed into tenant farms, whilst they themselves were arbitrarily transferred to small and worse farms. This was quite abominable. Even where there were no serfs, the same measures were now to be enforced. I called to Heaven against this injustice, and came to raise the question,--“What right have they to do this?” On this occasion I was led to inquire into the nature of tenure at will, and traced it among various nations; and this gave me the key to the Roman _jus agrarium_.

The general notion of the Italian nations was this, that there is an indissoluble relation between the land and the right of citizenship; that every kind of ownership in the soil is derived from the state alone. The soil is merely the substratum on which the preconceived idea of the civil organization rests. There is a great similarity in this to the feudal system. According to strict feudal law, there is no land whatever but what has a liege-lord. All fiefs derive from the prince as the lord paramount, and then follow the mesne tenures. In point of fact, this idea has never indeed been carried out in its full meaning. Another analogous case is in the East, especially in the East Indies, where we find the sovereign the real owner of the soil, and the peasant’s tenure to be only at will (_precario_). Thus also among the Italian nations, all right of property in the soil is from the soil.