The History of Rome, Theodor Mommsen [good english books to read txt] 📗

service in the field before completing his seventeenth or after completing his forty-sixth year. When, in consequence of the occupation of Spain, the service began to become permanent,(13) it seems to have been first legally enacted that any one who had been in the field for six successive years acquired thereby a right to discharge, although this discharge did not protect him from being called out again afterwards. At a later period, perhaps about the beginning of this century, the rule arose, that a service of twenty years in the infantry or ten years in the cavalry gave exemption from further military service.(14) Gracchus renewed the rule—which presumably was often violently infringed—that no burgess should be enlisted in the army before the commencement of his eighteenth year; and also, apparently, restricted the number of campaigns requisite for full exemption from military duty. Besides, the clothing of the soldiers, the value of which had hitherto been deducted from their pay, was henceforward furnished gratuitously by the state.

To this head belongs, moreover, the tendency which is on various occasions apparent in the Gracchan legislation, if not to abolish capital punishment, at any rate to restrict it still further than had been done before—a tendency, which to some extent made itself felt even in military jurisdiction. From the very introduction of the republic the magistrate had lost the right of inflicting capital punishment on the burgess without consulting the community, except under martial law;(15) if this right of appeal by the burgess appears soon after the period of the Gracchi available even in the camp, and the right of the general to inflict capital punishments appears restricted to allies and subjects, the source of the change is probably to be sought in the law of Gaius Gracchus -de provocatione- But the right of the community to inflict or rather to confirm sentence of death was indirectly yet essentially limited by the fact, that Gracchus withdrew the cognizance of those public crimes which most frequently gave occasion to capital sentences—poisoning and murder generally— from the burgesses, and entrusted it to permanent judicial commissions. These could not, like the tribunals of the people, be broken up by the intercession of a tribune, and there not only lay no appeal from them to the community, but their sentences were as little subject to be annulled by the community as those of the long-established civil jurymen. In the burgess-tribunals it had, especially in strictly political processes, no doubt long been the rule that the accused remained at liberty during his trial, and was allowed by surrendering his burgess-rights to save at least life and freedom; for the fine laid on property, as well as the civil condemnation, might still affect even the exiled. But preliminary arrest and complete execution of the sentence remained in such cases at least legally possible, and were still sometimes carried into effect even against persons of rank; for instance, Lucius Hostilius Tubulus, praetor of 612, who was capitally impeached for a heinous crime, was refused the privilege of exile, arrested, and executed. On the other hand the judicial commissions, which originated out of the civil procedure, probably could not at the outset touch the liberty or life of the citizen, but at the most could only pronounce sentence of exile; this, which had hitherto been a mitigation of punishment accorded to one who was found guilty, now became for the first time a formal penalty This involuntary exile however, like the voluntary, left to the person banished his property, so far as it was not exhausted in satisfying claims for compensation and money-fines. Lastly, in the matter of debt Gaius Gracchus made no alteration; but very respectable authorities assert that he held out to those in debt the hope of a diminution or remission of claims—which, if it is correct, must likewise be reckoned among those radically popular measures.

Elevation of the Equestrian Order

While Gracchus thus leaned on the support of the multitude, which partly expected, partly received from him a material improvement of its position, he laboured with equal energy at the ruin of the aristocracy. Perceiving clearly how insecure was the rule of the head of the state built merely on the proletariate, he applied himself above all to split the aristocracy and to draw a part of it over to his interests. The elements of such a rupture were already in existence. The aristocracy of the rich, which had risen as one man against Tiberius Gracchus, consisted in fact of two essentially dissimilar bodies, which may be in some measure compared to the peerage and the city aristocracy of England. The one embraced the practically closed circle of the governing senatorial families who kept aloof from direct speculation and invested their immense capital partly in landed property, partly as sleeping partners in the great associations. The core of the second class was composed of the speculators, who, as managers of these companies, or on their own account, conducted the large mercantile and pecuniary transactions throughout the range of the Roman hegemony. We have already shown(16) how the latter class, especially in the course of the sixth century, gradually took its place by the side of the senatorial aristocracy, and how the legal exclusion of the senators from mercantile pursuits by the Claudian enactment, suggested by Gaius Flaminius the precursor of the Gracchi, drew an outward line of demarcation between the senators and the mercantile and moneyed men. In the present epoch the mercantile aristocracy began, under the name of the -equites-, to exercise a decisive influence in political affairs. This appellation, which originally belonged only to the burgess-cavalry on service, came gradually to be transferred, at any rate in ordinary use, to all those who, as possessors of an estate of at least 400,000 sesterces, were liable to cavalry service in general, and thus comprehended the whole of the upper society, senatorial and non-senatorial, in Rome. But not long before the time of Gaius Gracchus the law had declared a seat in the senate incompatible with service in the cavalry,(17) and the senators were thus eliminated from those qualified to be equites; and accordingly the equestrian order, taken as a whole, might be regarded as representing the aristocracy of speculators in contradistinction to the senate. Nevertheless those members of senatorial families who had not entered the senate, especially the younger members, did not cease to serve as equites and consequently to bear the name; and, in fact, the burgess-cavalry properly so called—that is, the eighteen equestrian centuries—in consequence of being made up by the censors continued to be chiefly filled up from the young senatorial aristocracy.(18)

This order of the equites—that is to say, substantially, of the wealthy merchants—in various ways came roughly into contact with the governing senate. There was a natural antipathy between the genteel aristocrats and the men to whom money had brought rank. The ruling lords, especially the better class of them, stood just as much aloof from speculations, as the men of material interests were indifferent to political questions and coterie-feuds. The two classes had already frequently come into sharp collision, particularly in the provinces; for, though in general the provincials had far more reason than the Roman capitalists had to complain of the partiality of the Roman magistrates, yet the ruling lords of the senate did not lend countenance to the greedy and unjust doings of the moneyed men, at the expense of the subjects, so thoroughly and absolutely as those capitalists desired. In spite of their concord in opposing a common foe such as was Tiberius Gracchus, a deep gulf lay between the nobility and the moneyed aristocracy; and Gaius, more adroit than his brother, enlarged it till the alliance was broken up and the mercantile class ranged itself on his side.

Insignia of the Equites

That the external privileges, through which afterwards the men of equestrian census were distinguished from the rest of the multitude— the golden finger-ring instead of the ordinary ring of iron or copper, and the separate and better place at the burgess-festivals—were first conferred on the equites by Gaius Gracchus, is not certain, but is not improbable. For they emerged at any rate about this period, and, as the extension of these hitherto mainly senatorial privileges(19) to the equestrian order which he brought into prominence was quite in the style of Gracchus, so it was in very truth his aim to impress on the equites the stamp of an order, similarly close and privileged, intermediate between the senatorial aristocracy and the common multitude; and this same aim was more promoted by those class-insignia, trifling though they were in themselves and though many qualified to be equites might not avail themselves of them, than by many an ordinance far more intrinsically important. But the party of material interests, though it by no means despised such honours, was yet not to be gained through these alone. Gracchus perceived well that it would doubtless duly fall to the highest bidder, but that it needed a high and substantial bidding; and so he offered to it the revenues of Asia and the jury courts.

Taxation of Asia

The system of Roman financial administration, under which the indirect taxes as well as the domain-revenues were levied by means of middlemen, in itself granted to the Roman capitalist-class the most extensive advantages at the expense of those liable to taxation. But the direct taxes consisted either, as in most provinces, of fixed sums of money payable by the communities—which of itself excluded the intervention of Roman capitalists—or, as in Sicily and Sardinia, of a ground-tenth, the levying of which for each particular community was leased in the provinces themselves, so that wealthy provincials regularly, and the tributary communities themselves very frequently, farmed the tenth of their districts and thereby kept at a distance the dangerous Roman middlemen. Six years before, when the province of Asia had fallen to the Romans, the senate had organized it substantially according to the first system.(20) Gaius Gracchus(21) overturned this arrangement by a decree of the people, and not only burdened the province, which had hitherto been almost free from taxation, with the most extensive indirect and direct taxes, particularly the ground-tenth, but also enacted that these taxes should be exposed to auction for the province as a whole and in Rome— a rule which practically excluded the provincials from participation, and called into existence in the body of middlemen for the -decumae-, -scriptura-, and -vectigalia- of the province of Asia an association of capitalists of colossal magnitude. A significant indication, moreover, of the endeavour of Gracchus to make the order of capitalists independent of the senate was the enactment, that the entire or partial remission of the stipulated rent was no longer, as hitherto, to be granted by the senate at discretion, but was under definite contingencies to be accorded by law.

Jury Courts

While a gold mine was thus opened for the mercantile class, and the members of the new partnership constituted a great financial power imposing even for the government—a "senate of merchants"-a definite sphere of public action was at the same time assigned to them in the jury courts. The field of the criminal procedure, which by right came before the burgesses, was among the Romans from the first very narrow, and was, as we have already stated,(22) still further narrowed by Gracchus; most processes—both such as related to public crimes, and civil causes—were decided either by single jurymen [-indices-], or by commissions partly permanent, partly extraordinary. Hitherto both the former and the latter had been exclusively taken from the senate; Gracchus transferred the functions of jurymen—both in strictly civil processes, and in the case of the standing and temporary commissions— to the equestrian order, directing a new list of jurymen to be annually formed after the analogy of the equestrian centuries from all persons of equestrian rating, and excluding the senators directly, and the young men of senatorial families by the fixing of a certain limit of age, from such judicial functions.(23) It is not improbable that the selection of jurymen was chiefly made to fall on the same men who played the leading part in the great mercantile associations, particularly those farming the revenues in Asia and elsewhere, just because these had a very close personal interest in sitting in the courts; and, if the lists of jurymen and the societies of -publicani- thus coincided as regards their chiefs, we can all the better understand the significance of the counter-senate thus constituted. The substantial effect of this was, that, while hitherto there had been only two authorities in the state—the government as the administering and controlling, and the burgesses as the legislative, authority—and the courts had been divided between them, now the moneyed aristocracy was not only united into a compact and privileged class on the solid basis of material interests, but also, as a judicial and controlling power, formed part of the state and took