These various theories have been mentioned in order to give some indication of the direction of recent enquiries, rather than to suggest their success. A most useful guide to some of this work, together with a sane and balanced assessment of it, is given by E. S. Staveley, ‘The Constitution of the Roman Republic, 1940–1954’, Historia, 1956, 74 ff, especially 90 ff.
A major chronological problem which affects both the beginning and end of the monarchy remains to be mentioned. As we have seen, the distinguished Swedish archaeologist, E. Gjerstad, has established the main lines of the growth of the city: a pre-urban period (divided on the evidence of pottery into four periods, 800–750, 750–700, 700–625, 625–575), followed by the epoch of the Archaic city (Early, 575–530, Middle, 530–500, Late, 500–450). These results seem to many to support the traditional literary evidence to a remarkable degree: thus the pre-urban period corresponds with the Latin kings, the Early and Middle Archaic with the Etruscan kings, and the Late Archaic with the gradual decline of Etruscan influences after the explusion of the Tarquins. However (unfortunately, as it will seem to many) Gjerstad has accepted the view of Hanell in putting the end of the monarchy well into the fifth century, in fact to the mid-century and the time of the Decemvirate. In brief, Etruscan rule in Rome was c. 530–450 rather than c. 616–510. This theory, apart from the difficulties of correlating archaeological evidence with constitutional changes, involves transferring to the regal period many events which tradition assigned to the early Republic, e.g. the struggle of the orders and the treaty of Cassius. Dislocation and the telescoping of events on this scale seem unacceptable and indeed quite unnecessary, since the archaeological evidence does not appear to be at essential variance with the literary tradition.
Gjerstad’s views are of course expounded at length in his great work, Early Rome; shorter statements in his Legends and Facts of Early Roman History (1962) and in ch. i of Entretiens Hardt, xiii (1966). For criticism see M. Pallottino, St. Etr., 1963, 19 ff.; A. Momigliano, Rivista Storica Italiana, 1961, 802 ff.; 1963, 882 ff., JRS, 1963, 95 ff. (= Terzo Contrib., 661 ff., 545 ff.); R. M. Ogilvie, Cl. Rev., 1964, 85 ff; F. de Martino, Aufstieg NRW, I ii, 1972, 217 ff.
III THE NEW REPUBLIC AND THE STRUGGLE OF THE ORDERS
1 THE FIRST CONSULS. Tradition associates no less than five consuls with the first year of the Republic, fitting them all in by means of violent deaths or forced retirements. It is more probable that they were connected by popular legend with the birth of liberty and that subsequently their names were included in the Fasti, than that their names were originally in the early Fasti and that later legends were devised to connect them with the establishing of the Republic. It is difficult to assert, but arbitrary to deny their historicity. Three names perhaps may be removed: L. Tarquinius Collatinus as a ‘doublet’ of the king; Sp. Lucretius because of his connection with Lucretia; P. Valerius Publicola as a reduplication of another Valerius who also held office with a Horatius in 449 BC (legends connected with Valerius were designed partly to explain the name Publicola and partly to glorify the Valerian gens which later numbered among its members a very unreliable annalist, Valerius Antias). Of the two remaining names M. Horatius Pulvillus, who consecrated the Temple of Jupiter Capitolinus built by Tarquin, may be a ‘doublet’ of the consul of 449, invented in order that a Republican magistrate might share the glory with the hated tyrant. But since Polybius dates the first treaty between Rome and Carthage ‘in the consulship of Brutus and Horatius’, the magistracy of Horatius, if invented, was invented early. Similarly, attempts to dispose of Junius Brutus have not been totally successful: to turn him into some kind of divinity because of the similarity of his name with Juno is absurd, while the fact that the Junii were later a plebeian family does not preclude an original patrician stock. In addition to the reduction of the five consuls to two, another point in the traditional account needs correcting: their original title probably was praetor (prae-itor, a leader; στϱατηγός in Greek writers); since they called their colleagues together they were named praetores consules, and later, when another praetor was established to administer justice, the adjective consules was used as a noun to distinguish them from the new praetor. But though the traditional account is encrusted with legend and has been written in the light of later developments, it need not for that reason be completely rejected. An important archaic inscription from Satricum has just been published by C. de Simone, Archelogia laziale, i, 1978, 95 ff. It appears to date from c. 500 BC, and after eleven letters whose meaning is obscure, it runs ‘Popliosio Valesiosio suodales Mamartei’, and may mean something like ‘the sodales (i.e. the members of a priestly college) of Publius Valerius dedicated this to Mars’ (the god’s name being in the Oscan form). It must apply to a member of the Valerian gens: could it be Publius Valerius Poplicola, consul in the first years of the Republic (another was consul in 475)?
2 EARLY PLEBEIAN CONSULS? The general problem of the Fasti and their reliability is discussed elsewhere (ch. xix), but we must face here the question of the apparently plebeian names in the early Fasti. At one time they were totally rejected even by many who believed that in other respects the lists might be more or less reliable: the ground of the rejection was the belief that no plebeian could have held the consulship at this time of patrician privilege, and that therefore their presence was due either to later interpolation arising from family pride (to have ancestors who ‘came over with the Normans’) or else that they were in fact names of patrician gentes who later died out and then reappeared as plebeians. In more recent years many have been prepared to grant them greater credibility, based partly on the assumption that the political distinction between patricians and plebeians had not reached its peak so early (see, e.g., A. Bernardi, Rendicont. Istituto Lombardo, lxxix (1945–6), 1 ff.; H. Last’s paper in JRS, 1945, 30 ff. was important as emphasizing the late closing of the patrician ranks). A neat solution would be to suppose that these consuls were conscripti, neither patricians nor plebeians, if the theory of A. Momigliano could be accepted: see above, ch. ii, n. 34. The difficulty of disentangling the patrician or plebeian status of certain families at different periods of history is examined by I. Shatzman, Cl. Qu., 1973, 65 ff., in regard to the Veturii in the context of the early Fasti.
The Fasti give 12 plebeian consuls for 509–486, none in the years 485–470 (when the Fabii dominated the scene with consulships in seven consecutive years, and no Etruscan names appear), one in 469, none again until 461, and five in the 450s; then the Decemvirate interposed. The early years of the Republic were obviously very disturbed with the intervention of Porsenna and with pro- and anti-Etruscan groups no doubt in competition (not to mention the effect of external Latin threats on internal politics). Thus J. Heurgon (Rise of R., 164 f.) would explain the Fasti as representing a compromise which resulted from an alliance between plebeians and some of the Etruscans vis-à-vis the patricians, Whatever may be thought of this, once the new Republic began to settle down the patricians clearly strengthened their hold upon the supreme magistracy, at any rate until 461, whether or not plebeians had any legal claim to it.
3 PROVOCATIO. According to Livy (ii, 8, 2) P. Valerius Publico la carried a law in 509 which established the right of appeal (provocatio) from the magistrates to the people (iudicium populi, i.e. the Comitia Centuriata acting as a court of law in capital cases). But since similar laws were said to have been passed later (Twelve Tables, 450; Valerian-Horatian laws, 449: Lex Valeria of 300) many scholars believe that the right was not established as early as 509. The procedure was that a victim of a magistrate’s coercitio appealed to the people which either confirmed or rejected the magistrate’s sentence. Some suggest that the magistrate at first did not pass judgement but referred the question of guilt direct to the popular assembly, while W. Kunkel (Untersuchungen zur Entwicklung des röm. Kriminalverfahrens (1962) has argued that only political offences against the state were referred to the iudicia populi and that ordinary crimes were handled by a praetor or a triumv
ir capitalis. A. H. M. Jones (The Criminal Courts of the Roman Republic (1972), ch. i) has defended the traditional viewpoint. For the various laws de provocatione see E. S. Staveley, Historia (1955), 412 ff.
4 IMPERIUM. On the nature of imperium see E. S. Staveley, Historia, 1956, 107 ff.
5 REX SACRORUM. See A. Momigliano, Quarto Contrib, 395 ff., Quinto Contrib., 309 ff. The reges sacrorum, found in other Latin towns (Tusculum, Lavinium, Velitrae, and perhaps Alba), may have been established there at the time when they were losing their kings, as at Rome. The word rex was found on a bucchero vase found in the Regia in recent excavations. The rex was chosen by the Pontifex Maximus in the second century BC (Livy, xl, 42), yet he retained precedence in processions where the pontifex maximus took only fifth place, and pontifical decisions in 270 were still dated by the name of the rex (this also suggests that years in the regal period had been numbered as regnal years, as happened at Caere where the Pyrgi inscription refers to the third year of Thefarias; cf. Momigliano, op. cit.).
6 PATRICIAN NUMBERS K. J. Beloch, Röm. Gesch., 221, reckons the patricians as less than one-tenth of the free population of Rome c. 500 BC.
7 DICTATORSHIP. On its origin and the various modern theories about this see E. S. Staveley, Historia, 1956, 101 ff.
8 GREEK POTTERY. See E. Gjerstad, Early Rome, (1966), 514 ff. Athenian trade with the Etruscan cities also declined, but not to the same extent as that with Rome.
9 USURY. According to Tacitus (Ann., vi, 16, 3) the decemvirs in 451 BC fixed the minimum rate of interest at unciarium fenus, which if the interest was annual amounted to 8½ per cent, if monthly to 100 per cent. Livy, however, assigns the law to 357 BC. A passage in Cato (de agri cultura, ad. init.) may imply that he thought that loans at usury were forbidden in early Rome.
10 NEXUM. Details are obscure, partly because the system was abolished towards the end of the fourth century. It was very difficult for the bondsman (nexus) to escape from his condition, which was permanent until a third party could be found to buy back the bondsman from the creditor and so release him. See M. I. Finley, Revue d’ Histoire du Droit (1965), 159 ff. and Ogilvie, Livy, 296 ff. Cf. also A. Watson, Rome of the XII Tables (1976), ch. ix.
11 FOOD SHORTAGES AND DISEASE. Corn shortages are recorded for the years 508, 496, 492, 486, 477, 476, 456, 453, 440, 433 and 411. Despite some possible inaccuracies the main record is likely to be true, since Cato tells us (frg. 77P) that corn shortages were registered in the annales, i.e. the Tabula Pontificum. In the 490s the cult of the corn goddess Ceres, whose centres were at Cumae and Sicily, was established at Rome, while trade with western Sicily, which was under Punic control, will have been helped by Rome’s treaty with Carthage. The account of a Roman embassy sent to Sicily in 491–0 (Dion. Halic, vii, 1–2) may well be reliable, since it probably derives from a Greek source independent of the Roman tradition. See Ogilvie, Livy, 256 f., 291, 321.
Epidemics are recorded in 490, 466, 463, 453, in six years in the 430s, and in 428, 412, 411, 399, 392, and 390 (malaria, anthrax?); for references and discussion see Ogilvie, Livy, 394 f.
12 MAELIUS, SERVILIUS AND MINUCIUS. The story of Maelius is quite probably historical since it antedates the troubles arising from the corn supply in the time of Gaius Gracchus: it was recorded by Cincius c. 200 BC. Servilius acted either as a private citizen or (according to a later tradition) as a Magister Equitum: see A. W. Lintott, Historia, 1970, 12 ff. Minucius was praefectus (? urbi) in 440 and 439 according to the Libri Lintei (these were early lists of magistrates, written on linen and kept in the temple of Juno Moneta: see R. M. Ogilvie, JRS (1958), 40 ff.). He was later honoured with a column and statue for a subsequent distribution of corn: the column is depicted on denarii of c. 134 BC (Crawford, RRC (1974), 242–43), but was not set up before the fourth century (Momigliano, Quarto Contrib., 329 ff.). A later Minucius (M. Minucius Rufus, consul in 110) built a porticus Minucius which was used for corn distributions in the Roman Empire. Thus both Maelius and Minucius may be accepted as historical figures, though the connection between them is not beyond doubt. See Ogilvie, Livy, 550 f.
13 SP. CASSIUS. For an analysis of his story see Ogilvie, Livy, 337 ff. A. W. Lintott, Historia, 1970, 18 ff. argues that in the original story Cassius was put to death by his father by virtue of the latter’s patria potestas, and that his formal trial and conviction for treason (perduellio) was a later form.
14 THE FIRST SECESSION. The historicity of this movement is defended by Ogilvie, Livy, 309 ff.
15 LEX PUBLILIA. In view of the importance of what was enacted in 471, Publilius Volero may well be a historical character, although some have seen in him only a doublet of Publilius Philo, dictator in 339. Livy ii, 56, 2 says that the right to elect plebeian magistrates was given to the Comitia Tributa; this should probably be the Concilium Plebis. Perhaps the concessions attributed to Publilius were the result of a secession.
16 COMITIA TRIBUTA POPULI. The existence of this Comitia, as distinct from the purely plebeian Concilium Plebis Tributum, was first shown by Mommsen. For the evidence see A. H. J. Greenidge, Roman Public Life (1901), 443 ff; E. S. Staveley, Athenaeum, 1955, 3 ff. Some scholars, however, maintain that there was only one tribal assembly, from which the patricians were excluded: they are therefore forced to postulate that the patricians were admitted at some unrecorded date, perhaps in 287.
17 THE TRIBUNES. See G. Niccolini, Il tribunato della plebe (1932). According to Varro (de ling. Lat., v, 91) they derived from the military tribunes, but E. Meyer (Kleine Schriften, i, 333 ff.) argued that they had been administrative officers of the tribes.
18 THE DECEMVIRS. The problems involved are discussed by Ogilvie, Livy, 451 ff. Cicero (de rep., ii, 61 ff.) and Dionysius state that the decemvirs remained in office for three years. Cicero tells nothing of the fierce struggle that led up to their establishment. On Appius and the plebeians see De Sanctis, SR, ii, 47 ff.
19 THE TWELVE TABLES. Their authenticity has withstood the attacks of modern scholars, e.g. of E. Pais (Ricerche sulla storia e sul diritto pubblico di Roma, i (1915)) who assigned them to the end of the fourth century, and of E. Lambert (Revue hist., de droit franc. et étranger, 1902) who placed them at the beginning of the second. The original tables, set up in the Roman Forum, have of course perished, but the code has been partially reassembled from quotations in ancient writers. These fragments are collected in Riccobono, Fontes, 23 ff., and elsewhere; for a translation see Lewis-Reinhold, Rn. Civ., i, 102 ff.; for discussion, H. F. Jolowicz, A Historical Introduction to the Study of Roman Law, edn 2, (1972), chs vii–xii, F. Wiencker, ‘Die XII Tafeln in ihrem Jahrhundert’, Entretiens Hardt, xiii (1966), 293 ff. See also A. Watson, Rome of the XII Tables (1976), which deals with the law of persons and property.
20 THE VALERIO-HORATIAN LAWS. According to Livy (iii, 55) these laws (a) restored the right of appeal, (b) gave plebiscita the force of law, (c) reaffirmed the sacrosanctity of the tribunes:
(a) provocatio: since the right of appeal (cf. p. 466 n. 3 above) is said already to have been restored by the Twelve Tables, its inclusion in the Leges Valeriae-Horatiae may be an anticipation of the Lex Valeria of 300. E. S. Staveley may well be correct in his analysis of these various laws (Historia, 1955, 412 ff.): the right was not granted in 509, and although its possible use was conceded in the Twelve Tables by the patricians in order to check indiscriminate use of tribunician ius auxilii, no magistrate was compelled to grant an appeal against his coercitio until the Lex Valeria of 300 BC. A. W. Lintott (Aufstieg NRW, II, i (1972), 226 ff.) has surveyed the history of provocatio from the beginning to the principate. He considers that it arose from self-help when a private individual, assailed in some way called aloud on his fellow-citizens to bear witness and give help; in later times such an appeal to the self-help of the plebs was usually made through its spokesmen, the tribunes. The first law to afford support to provocatio as such was that of 300.
(b) plebiscita: this second measure is the most controversial of the three,
because if it was true it would have given the plebs legal power to realize their aims and to end the struggle. Livy’s words are ‘ut quod tributim plebs iussisset, populum teneret’ (55); i.e. what was voted by the plebs should be binding on the whole people. But he also says that the law of Publilius Philo of 339 BC laid it down ‘ut plebiscita omnes Quirites tenerent’ (viii, 12), while according to Gellius (xv, 27) the Lex Hortensia of 287 decreed ‘ut eo iure, quod plebs statuisset, omnes Quirites tenerentur’: that is, the same law was enacted three times. Many of the theories evolved to meet the difficulty are scarcely tenable. Clearly such an important law would not have continually fallen into disuse so as to require re-enacting; nor is it practical to suppose that the plebs gained power in some matters in 445, in others in 339, and in all in 287. Another suggestion is that some limiting conditions may have been omitted, for instance, that the plebs might pass resolutions which could go before the Comitia Centuriata if first approved by the Senate; that the auctoritas patrum was dispensed with in 339, and that in 287 reference to the Comitia was made unnecessary. According to Mommsen Livy mistook his authority and populus is meant instead of plebs; the reference then is not to the Concilium Plebis but to the Comitia Tributa which he supposes was established in 449. Since there is no evidence for any of these views De Sanctis and others regard the law of 449 as a quite unhistorical anticipation of the later law. The objection to this last view, which is by far the simplest, is that certain important laws (the Lex Canuleia of 445, the Licinio-Sextian rogations of 367 and the Leges Genuciae of 342) were passed by the plebs before 339 BC. It has therefore been suggested (by Sir H. Stuart Jones, CAH, vii, 484) that a law of 449 did give validity to plebiscita, which the patricians long contended were not binding on them because enacted without their consent, and disregarded de facto. Alternatively it is possible that no law was passed in 449 to this effect, but that the plebs asserted their right to issue binding laws and that the other authorities were forced by circumstances to pass through the usual channels the subsequent legislation which had originated with the expressed will of the people: in that case later historians might regard the measures as legally binding plebiscita, when in fact they were only resolutions of the people which were made law by the whole state; that is, they were not laws per se. E. S. Staveley’s view (Athenaeum (1955), 3 ff.) is that in 449 all measures carried by a tribal system of vote, i.e. plebiscita in the Concilium Plebis and leges in the Comitia Populi Tributa, were made valid, subject only to the auctoritas patrum, and that this patrician right to veto legislation was cancelled in regard to (i) the Comitia Tributa by the Lex Publilia of 339, and (ii) the Concilium Plebis by the Lex Hortensia of 287.
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