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The Conflict of the Orders. The First Stage

  • M. Cary
  • H. H. Scullard

Abstract

The revolution which ended the monarchy at Rome was effected, like all, such movements in the early history of ancient city-states, by the nobles and for the nobles.1 The Roman Republic was therefore first constituted as an aristocracy. About 500 b.c. the patrician gentes, which at that time numbered about fifty, contained less than one-tenth of the free population.2 But their wealth and power of patronage, and their esprit de corps, intensified by the practice of intermarriage, gave them an unchallenged preponderance. They did not indeed dispute the ultimate sovereignty of the people. Under the new constitution the commons were periodically convened in the Comitia Centuriata to ratify important acts of state, and to act as a court (iudicium populi) for capital cases.3 But the decisions of the Comitia (in other than judicial matters) were now made subject to the approval of the Senate as a whole, or more probably of its patrician members alone (patrum auctoritas). The Comitia was further tied by the bonds of client-hip which attached many of its members to the patrician families and debarred them from voting against the wishes of their patrons.

Keywords

Patrician Family Personal Liberty Capital Case Capital Sentence Political Revolution 
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Notes and References

  1. 3.
    The main belief of the ancient sources is that a magistrate held a public preliminary investigation and if he condemned the accused the latter then appealed to the people (iudicium popuh), who either confirmed or rejected the magistrate’s sentence. Some scholars, however, do not believe that the right of appeal (provocatio) was coeval with the establishment of the Republic and suggest that the magistrate referred the question of guilt direct to the popular assembly. W. Kunkel, Untersuchungen zue Entwicklung des römischen Kriminalverfahrens in vorsullanischer Zeit (1962), has more recently argued that only cases concerned with political charges and offences against the State were referred to the iudicia populi and that the ordinary crimes were dealt with by a praetor or a triumvir capitalis.Google Scholar
  2. For a rejection of this view and defence of tradition see A. H. M. Jones, The Criminal Courts of the Roman Republic and Principate (1972), ch. 1.Google Scholar
  3. 5.
    On the fasces see E. S. Staveley, Historia 1956, 103 ff.Google Scholar
  4. Two other men are linked with the story: L. Minucius Augurinus (a consul of 458) who exposed Maelius’s plot, and C. Servilius Ahala who, acting either as a private citizen or (a later tradition) as a Magister Equitum, killed Maelius (on Servilus’s status and other aspects see A. W. Lintott, Historia 1970, 12 ff.). According to the libri lintei (see above, Chap. 6, n. 18) for 440 and 439 Minucius was entered as praefectus (urbi?; later interpreted as pr. annonae). He is said thereafter to have distributed corn and to have been ‘rewarded with a column and statue, together with a gilded ox. This column is depicted on the later coinage of the second half of the second century (Sydenham, CRR, 492, 463; Crawford, RRC, 249/1, 242/1), but it was not set up before the fourth century (cf. Momigliano, Quarto Contrib. 329 ff.). Later Minucii had connexions with the corn-supply (e.g. M. Minucius Rufus, cos, 110, built a porticus Minucia which under the Empire was used for grain-distribution), but while L Minucius’s corn-distribution need not be questioned, his alleged link with Maelius is more doubtfulGoogle Scholar
  5. 17.
    On Sp. Cassius see Ogilvie, Livy, 387 ff., and A. W. Lintott, Historia 1970, 18 ff., who argues that in the earliest form of the story Cassius was executed by his father by right of patria potestas and that a formal trial and condemnation for treason (perduellio) was only invented later.Google Scholar
  6. 22.
    On the early tribunate see G. Niccolini, Il tribunato della plebe (1932). Varro, de Lingua Latina, v. 81, derived them from military tribunes. Ed. Meyer, Kleine Schriften, i. 333 ff., argued that they had been administrative officers of the tribes.Google Scholar
  7. 23.
    Livy, ii. 56, says that the right to elect plebeian magistrates was given to the Comitia Tributa Populi. This was a different body from the Concilium Plebis; it was a meeting of patricians and plebeians alike and it was not created probably until 447 B.c. (see p. 68). On the early development of these two assemblies see E. S. Stavelely, Athenaeum 1955, 3 ff.Google Scholar
  8. 25.
    The twelve bronze (perhaps originally wooden) tablets on which the laws were exhibited in the Forum have of course perished. But the code has been partly reconstructed from quotations preserved in ancient writers. These fragments are collected in Riccobono, Fontes, 23 ff., among other collections. They are translated in Lewis-Rheinhold, R. Civ. i. 102 ff. For a fuller discussion see H. F. Jolowicz, A Historicallntroduction to the Study of Roman Law3 (1972), chs vii—xii. See also F. Weiacker, ‘Die XII. Tafeln in ihrem Jahrhundert’, Entretiens Hardt, xiii, 293 ff., who shows (309 f.) how the funerary and sumptuary laws agree precisely with mid-fifth-century conditions.Google Scholar
  9. 26.
    Aulus Gellius, xx. 1.48 (‘partes secanto’), thinks it applies to the body, though he adds that he has never heard of anyone being dissected (cf. Quintilian, Inst. Or. 3. 6.84). For the view that it refers (at least in historical times) to the debtor’s property see M. Radin, Al Phil. 1922, 32 ff.Google Scholar
  10. 28.
    On the Valerio-Horatian laws see Scullard, Hist. Rom. World, appendix 6 (brief discussion); Ogilvie, Livy, 497 ff.; E. S. Staveley, Athenaeum 1955, 3 ff., Historia 1955, 412 ff.Google Scholar
  11. 29.
    On the distinction between these assemblies, see E. S. Staveley, Athenaeum 1955, 3 ff.Google Scholar
  12. 30.
    See E. S. Staveley, ‘Tribal Legislation before the Lex Hortensia’, Athenaeum 1955, 3 ff.Google Scholar
  13. 31.
    Provocatio: in 509, Cic. de Republica, ii. 53, Digest, i. 2.2.16, Livy, ii. 8.2., Dionys. Halic. v. 19, Plutarch, Poplicola, ii; in the Twelve Tables, Cic. de Republica, ii. 54; in 449 Livy, iii. 55.5, Cic. deRepublica, ii. 54. The issues are too complicated for detailed discussion here; see E. S. Staveley, ‘Provocatio during the Fifth and Fourth Centuries B.C.’, Historia 1955, 412 ff. It may be that the law of 509 should be rejected. That of 449 may have established a formal procedure of provocatio by which the magistrate was allowed but not compelled to grant appeals from his coercitio; if he refused he might of course be persuaded to change his mind under threat from a tribune to extend his auxilium to the victim. Kunkel (see n. 3 above) believes that when the Twelve Tables provided ‘de capite civis nisi per maximum comitiatum… ne ferunto’, this had nothing to do with the right of provocatio. On the other handGoogle Scholar
  14. Kunkel’s view has been rejected by A. H. M. Jones (The Criminal Courts of the Republic and Principate, 1972, ch. 1), who defends a lex de provocatione of 509 and the traditional view.Google Scholar
  15. See further R. A. Baumann, Historia 1973, 34 ff., and A. W. Linton, Austieg NR W, 1. ii. 226 ff.Google Scholar
  16. 32.
    Much has been written on the military tribunes, but little general agreement reached on the primary purpose of their creation. See E. S. Staveley, JRS 1953, 30 ff.;Google Scholar
  17. F. E. Adcock, JRS 1957, 9 ff.;Google Scholar
  18. A. Boddington, Historia 1959, 365 ff.;Google Scholar
  19. R. Sealey, Latomus, 1959, 521 ff.Google Scholar
  20. 33.
    On the censorship see J. Suolathi, The Roman Censors (Helsinki, 1963). It is to this period 450–445 that many scholars (cf. Cary, Hist. 80 ff.) would assign the ‘Servian’ reform, the creation of the Comitia Centuriata, the reform of the army with the introduction of hoplite tactics, and the establishment of the dictatorship. A more traditional assessment of the evidence, however, has been made in this present book. But while the view that the basis of the reform dates from the regal period is retained, it is still possible to believe that the system of classes and centuries was extended at the time of the creation of the censorshipGoogle Scholar

Copyright information

© The representatives of the estate of the late M. Cary and H. H. Scullard 1975

Authors and Affiliations

  • M. Cary
    • 1
  • H. H. Scullard
    • 1
  1. 1.University of LondonUK

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