NOTE II.

LEX AELIA ET FUFIA.

-The plebeian magistrates originally had not the auspices. By the Lex Publilia, 415 (b. c. 339), probably they obtained them. Lange says they were given them that the patricians might have a religious hold on the plebeians; and such they would have, as the augurs at this time were all patricians. It seems to me that it is more consistent with the religious character of the time and the exclusiveness of the patricians, in the matter of religious rites, to suppose that it was only under pressure that they gave the auspices to the tribunes; besides it is more than likely that we should hear a good deal about the auspices being used for political purposes, if that were the intention with which they had been bestowed. But, as a fact, we hear nothing. In 454 (b. c. 300), by the Lex Ogulnia the plebeians got admission to the College of Augurs. For the next one hundred and fifty years we do not hear of the auspices as having been used by either party against the other. If such had been attempted by the plebeians, the patrician magistrate would, by his edict, have required 'ne quis magistratus minor de caelo servasse velit' (Gell. 13, 15, 1); and, if attempted by the patrician, the tribune would have considered it as a violation of his 'ius cum populo agendi.' So Lange; but, I think, wrongly. The edict referred to above was only issued for the comitia centuriata (Gell. l. c.); there is no evidence that it could be applied to the tributa, though Lange assumes as much. The real reason surely why neither used the auspices for political purposes lay in the fact that the people as a mass were too religious to allow its being done. Though the learned might laugh, the multitude respected the auspices too much to suffer them to be profaned. At any rate, though both parties had the power of obnuntiatio, neither used it.

This slumbering authority, however, was roused into full activity by the Lex Aelia and the Lex Fufia (the latter confirmatory of the former), two plebiscita passed in the interest of the nobles, 601 (b. c. 153). Lange (ii. 315) says strongly that these laws legalized the auspicia as a simply political engine. They guaranteed obnuntiatio to both patrician magistrates and tribunes; but they were specially important to the former, to check the revolutionary measures of the tribunes (subsidia certissima contra tribunicios furores, Cic. Post Red. 11; cf. Vat. 17, Piso 9, and Asconius' note obnuntiatio qua perniciosis legibus resistebatur quam confirmaverat Aelia lex erat sublata'). They possibly-Lange considers certainly, but his evidence (ii. 477) is very random-contained a clause that on days of election no obnuntiatio be permitted (Phil. 2, 81). But at any rate there seems no sufficient reason to doubt that they enacted that the comitia for the elections be finished before those for the passing of laws be allowed (cf. Schol. Bob. 319, Orelli: leges dicit Aeliam et Fufiam quae non sinebant prius aliqua de re ad populum ferri quam comitia haberentur ad designandos magistratus). I am quite aware that Mommsen (St. R. i. 108, note) speaks of this statement of the Scholiast as 'notoriously unsustainable;' but then he thinks we can get no more definite knowledge of these laws than what Asconius tells us in the passage quoted above, and he gives no earthly reason for questioning the statement of the Scholiast. To resume, Cicero (Sest. 56), expressly calls them 'leges de iure et tempore legum rogandarum.' The irregularity of Lurco (Cic. Att. 1, 16, 13) was in proposing his law about bribery at the time of the comitia for elections. It is worthy of note that these laws were passed at the same

time as the arrangement for the entrance of the magistrates into office on Jan. 1, viz. in 601 (b. c. 153), and accordingly simultaneously with the general re-arrangement and settling of the times of the elections. Lange (ii. 478), from whom much of the material of this note is taken, adds a conjecture on how these laws may have differed from one another. He thinks the Lex Aelia guaranteed the right of obnuntiatio to both patrician magistrates and tribunes, with the clause forbidding it at elections; the Lex Fufia ratified the former, and added a clause forbidding, under a fixed penalty, laws being brought forward at the comitia for elections.

Clodius, in his tribunate, 696 (b. c. 58), brought forward an enactment that de caelo servare should not be allowed on any day set apart for comitia, whether these were for elections or for the passing of laws. The practical result of this enactment was, that it was allowable to bring motions before the people on all dies fasti, and so it annulled the Leges Aelia et Fufia. This law does not seem to have been acknowledged by the optiIt was not very strictly observed during the anarchy towards the end of the Republic, and sometimes we find obnuntiationes in accordance with the Leges Aelia et Fufia, and again disregard of same (Sest. 78, 79, 83; Phil. 1, 25); and even obnuntiationes in violation of all law, as e. g. against tributa (Cic. Att. iv. 3. 3, 4), and centuriata (Q. Fr. iii. 3, 2), assemblies for elections. The summit of the confusion was reached by the conduct of Antonius in the election of Dolabella (Phil. 2, 83).

mates.

The confiscations of land by Sulla were of the most extensive nature; it was not individuals only they touched, but whole communities, e. g. Praenestines, Volaterrans, Arretines (Cic. Att. i. 19, 4). In fact, the confiscation was so very extensive that much of the land remained unoccupied even after he had made assignations to his soldiers (Cic. Agr. 3, 12). On these lands Sulla settled his soldiers in large masses, but he also located a considerable number in the municipal towns alongside of the inhabitants. His aim was totam Italiam suis praesidiis obsidere atque occupare, as Cicero (Agr. 2, 75) says was the design of Rullus (Marq. i. 111, note 2); and also to break up the larger estates and augment the number of small proprietors (Mommsen, R. H. 3, 357). This latter is proved by the stringent provision forbidding the sale of the sortes assigBut he failed completely.

natae.

This was in 673 (b. c. 81). In 688 (b. c. 66), when Cicero is arguing against the Agrarian Law of Rullus, he states that the latifundia were again numerous, that the Praenestine land, for example, was occupied by a few landholders (Agr. 2, 78). And such might have been expected. Soldiers who had no ties of family nor any inclination for agriculture would sell their lands notwithstanding the law; and the confiscated but unassigned land above alluded to, in the absence of a strong government, would be encroached upon by the nearest landholders. These two kinds of illegal proprietors,

Encroachment is one of the ways latifundia increased in Italy and increase in England. It may be traced even in

*

our own day see De Laveleye, Primitive Property, chapter xviii. (English Trans.)

viz. those who bought from the soldiers, and those who encroached on unassigned land, are the Sullani possessores,* or Sullani homines that we meet with in Cicero.

Such was the state of agrarian matters till after the restoration of the tribunate in 684 (b. c. 70). The first attempted legislation was the law of Rullus; for we need not do more than mention the mysterious Lex Plotia. The proletariat at Rome was swelled by the mass both of those proscribed by Sulla and also by the Sullan soldiers, who had flocked thither after selling their lands, and was becoming dangerous owing to its desperate and needy character. Rullus proposed (it appears in so many words) that this city population should be drained off (exhauriendam, Agr. 2. 70) in colonies to be founded in Italy on the Campanian land and on land purchased at State expense; for there was to be no confiscation, not even of the Sullan possessions.' The money was to be got by the sale of all Italian and extra-Italian domain land, and by the booty and revenues accruing from the new conquests of Pompeius. The provinces also were to be considerably taxed. Decemviri, with an enormous staff, were to be appointed for five years with special judicial powers and a special imperium to carry out the provisions of the law. The nobility opposed the measure with all their might. Cicero made three speeches against it; and it was eventually given up by Rullus. Whether it was a crude but honest attempt to remedy a crying evil, † as Mr. Froude (Caesar, p. 128) seems to think; or a mere blind for the purpose of the democrats, and Caesar in particular, getting a strong power to counterpoise that of Pompeius, as Mommsen (R. H. iv. 171) and Lange (iii. 238-9)-I think rightly-hold, is not to be discussed here. Suffice to say the law failed; and things went on in their old way.

Не

When Pompeius returned from the East he wanted land for his soldiers. found some difficulty in getting a measure on the point brought forward; but in 694 (b. c. 60) the tribune L. Flavius proposed a law which Cicero (Att. i. 18, 6) characterizes assane levis eadem fere quae fuit Plotia.' It provided for the soldiers of Pompeius, but at the same time gave grants of land to a considerable number of the poor plebeians. This latter clause was probably inserted in order to get the law more easily carried. The illegal possessions of the Sullan men' were to be confiscated (probably without compensation), and the revenues won by Pompeius utilized for the purchase of other lands. The former proposal Cicero opposed; the latter he supported (Cic. Att. i. 19, 4). The Senate opposed the whole law most strenuously, fearing that some new power was being sought by Pompeius: there was the usual constitutional hubbub, the consul thrown into prison by the tribune, and so forth; and the law was dropped.

It was Caesar who provided for the soldiers of Pompeius. In his consulship, 695 (b. c. 59), he proposed a law which guaranteed all existing possessions, and enacted that the Campanian land should be divided among 20,000 soldiers and poor citizens, who

70 b. c., sees the similarity in its being directed against the Sullan possessions :" Lange (iii. 115) placing it in 665 (b.c. 89), in providing land for soldiers of the allies. Nothing is really known about the Lex Plotia; but of the two theories, possibly Zumpt's is least likely to be wrong. Levis may mean worthless,' i. e. 'impracticable,' outside the range of practical politics, as assaults on the 'Sullan possessions' seemed to be. Caesar, in his law next year, did not touch them.

had each three or more children. If more land was wanted (and the Campanian land would hold only 5000 settlers if they got 10 iugera apiece, Cic. Att. ii. 16, 1), it was to be purchased with the money Pompeius brought home at the value rated in the last census. The colonists were forbidden to alienate their lands for twenty years. A commission of twenty was to be appointed, of which Caesar was not one, to carry the law into effect; and of this twenty there was a smaller section of five of predominant influence * (Cic. Att. ii. 7, 4). Every senator was to swear to the law; and every candidate for the ensuing year, in his candidatorial speech (Cic. Att. ii. 18, 2), was to solemnly declare that he would make no proposal about the occupation of the Campanian land in opposition to Caesar's laws ('laws' in the plural; for though the general law settled the main principles of the colonization, yet each colony would have a law of its own, settling its special details). Such was the proposal of Caesar. It was rejected by the Senate, but carried by the people against violent opposition from the nobles; while both parties, in their usual riotous and unseemly manner, caricatured constitu tional procedure.

A word in conclusion. There is one point touching such laws as this that readers ought not to forget the callous heartlessness of the legislators and the people, who could dispossess, for mere party motives, a steady, industrious, rent-paying population like that which occupied the Campanian territory (Cic. Agr. ii. 84), and give their land to soldiers and a city rabble-classes which were eminently unfit for the dull, hard work of agriculture, and which had already often been tried thereat, and ever found wanting. The ancient Romans did indeed what they would with their own; and from the beginning of their history to the end, in their relations with their subjects, acted by no higher law than that of simple selfishness.

NOTE IV.

PEDARII.

(Abridged mainly from Lange, ii. 401-415, § 114, Die Verhandlungen des Senats. GELLIUS gives a whole chapter to a discussion on the pedarii, iii. 18.)

The presiding magistrate used to begin the proceedings with reading out the subject for debate (senatum consulere or referre ad senatum). He then asked the opinions of the individual senators (per exquisitas sententias), unless the matter was so simple that it required no debate, and might be settled by a division straight off (per discessionem). The magistrate asked the first senator, e. g. 'Dic Sp. Postumi, de ea re quid censes?' Who that first senator should be was left to the discretion of the magistrate: but, according to usage, it was either the princeps senatus or one of the consuls elect: he then proceeded through the consulares censorii praetorii, &c., in due order (Att. xii. 21). The senator first asked rose and spoke to his opinion (sententiam dicere). The next was asked. He also could speak to his opinion; or merely say, 'Spurio Postumio assentior.' This was verbo assentiri. These alternatives were open to all the senators in regular order. All had the right to be asked as well as to vote: but the debate was

A similar sub-section of five promulgated in 710 (b. c. 44) the celebrated Lex Mamilia Roscia Peducaea Alliena Fabia,

which is now (Mommsen, Eph. Epig. ii. 119) conclusively proved to belong to the time of Julius Caesar.

generally exhausted long before all were run through. When the debate seemed carried on for a sufficiently long time, the magistrate put the question once more; and the division (discessio) took place. This seems the only meaning of discessio in procedure in the Senate. All the senators were said pedibus ire in sententiam of so and so.

After such preliminary observations, we may be able to understand who the pedarii were, and why they were so called. They were not so called because they went on foot to the senate-house, while the curule magistrates went in chariots (currus); but because, as a rule, they contented themselves pedibus in alienam sententiam eundo, and with that only; whereas the curule magistrates were asked and expressed their opinions previous to the division, but none the less also pedibus ierunt in sententiam (Gell. iii. 18, 2; Liv. xxvii. 34, 7). Still, at times, a pedarius did give his vote dicendo (Tac. An. iii. 63): so the fact that the quaestorii both could give their opinion dicendo and were also pedarii (Gell. iii. 18) is not a contradiction. [A man may be a 'silent member' in our House of Commons, and yet occasionally speak.] It was only as a rule that the pedarii did not speak : (1) as the subject would be well nigh threshed out before it came to them; (2) they would probably not wish to obstruct; (3) they gave an indication of their opinion previous to division by clustering round one of the main supporters of that opinion (Cic. Q. Fr. ii. 1, 3; Vopisc. Aurel. 20; Pliny, Epp. ii. 11, 21, 22). In short, the distinction of the speaking senators and the pedarii was one of fact and custom, not a legal one.

Hofmann holds that from the time of the Lex Ovinia (about 388, b. c. 366), the noncurule magistrates were a legal class called pedarii; and that from the time of Sulla that class embraced all who had not been quaestors. They could neither sententiam dicere nor verbo assentiri; the presiding magistrate could not ask their opinion; they could only vote. Lange (ii. 375) opposes this view. It mainly rests, he says, on the passage of Gellius (iii. 18), which is confused enough. He argues: (1) We know from Dionysius (vi. 69; vii. 47; xi. 21, 58) that all the senators could vote. (2) In Cic. Att. i. 19, 9, we find a Setum carried by the pedarii against the consulars (? higher magistrates): to make their number sufficient, we must suppose they included the quaestorii. [This matter, however, was not an important one: no doubt many of the higher magistrates were not present; the exact numbers present not being known, it is too vague to be taken as the support of a theory.] (3) It would be against the idea of a senator that he could not express his opinion: suppose no one had set forth the opinion he entertained? (4) If there was a class which the magistrate could not order to speak, the magistrate's potestas would be thereby infringed; and he who had the power to force the consulars to speak must, of necessity, have had the same power over the inferior members. [3° and 4° are rather too a priori to carry much weight.]

To one point in Lange's statement I wish to take exception. He says the pedarii used to give evidence of their opinion by clustering around the main supporter of one of the points at issue. The passages he adduces do not, I think, prove that. Q. Fr. ii. 1, 3, only proves that there was a feeling in the senate that the vote would go one way till Clodius stood up. Vopisc. Aurel. xx. only gives us a picture of a vote being arrived at in a confused manner, some applauding, some dividing, some stretching out their hands. Pliny Epp. ii. 11, 21-2, seems fairly capable of being regarded as support to his view; but it really refers, I think, to the clustering together that takes place in every assembly immediately prior to the actually going to different sides, while the question is being finally put.