De Lege Agraria

But now take notice of the diligence of the man, if indeed you think that Rullus contrived this, or that it is a thing which could possibly have occurred to Rullus. Those men who first projected these measures saw, that, if you had the power of making your selection out of the whole people, whatever the matter might be in which good faith, integrity, virtue, and authority were required, you would beyond all question entrust it to Cnaeus Pompeius as the chief manager. In truth, after you had chosen one man out of all the citizens, and appointed him to conduct all your wars against all nations by land and sea, they saw plainly that it was most natural that, when you were appointing decemvirs, whether it was to be looked on as committing a trust to, or conferring an honour on a man, you would commit the business to him, and most reasonable that he should have this compliment paid him.

Therefore, an exception is made by this law, mentioning not youth, nor any legal impediment, nor any command or magistracy, which might be encumbered with obstacles arising either from the business with which it was already loaded, or from the laws. There is not even an exception made in the case of any convicted person, to prevent his being made a decemvir. Cnaeus Pompeius is excepted and disabled from being elected a colleague of Publius Rullus (for I say nothing of the rest). For he has worded the law so that only those who are present can stand for the office; a clause which was never yet found in any other law, not even in the laws concerning those magistrates who are periodically elected. But this clause was inserted, in order that if the law passed you might not be able to give him a colleague who would be a guardian over him, and a check upon his covetousness. Here, since I see that you are moved by the dignity of the man, and by the insult put upon him by this law, I will return to the assertion that I made at the beginning, that a kingly power is being erected, and your liberties entirely taken away by this law.

Did you think, otherwise, that when a few men had cast the eyes of covetousness on all your possessions, they would not in the very first place take care that Cnaeus Pompeius should be removed from all power of protecting your liberty, from all power to promote, from all commission to watch over, and from all means of protecting your interests? They saw, and they see still, that if, through your own imprudence and my negligence, you adopt this law, without understanding its effect, you would afterwards, when you were creating decemvirs, think it expedient to oppose Cnaeus Pompeius as your defence against all defects and wickednesses in the law. And is this a slight argument to you, that these are men by whom dominion and power over everything is sought, when you see that he, whom they see will surely be the protector of your liberty, is the only one to whom that dignity is denied?

Now consider what a power is given to the decemvirs, and how great is its extent. In the first place be gives the decemvirs the honour of a lex curiata. [*](The comitia curiata, at which alone a lex curiata could he passed, was a meeting of the populus of Rome, assembled in its tribes of houses; and no member of the plebs could vote at such a meeting. They met principally for the sake of confirming some ordinance of the senate; a senatus consultum was an indispensable preliminary, and with regard to elections and laws, they had merely the power of confirming or rejecting what the senate had already decreed. The lex curiata (de imperio),which was the same as the auctoritas patrum, was necessary in order to confer upon the dictator, the consuls, and the other magistrates the imperium or military command. The comitia curiata were held by the patrician magistrates, and they voted by their curies. The comitia centuriata were the assembly of the populus and plebs together, and they voted by their centuries by ballot. The comitia tributa were not established till B. C. 491. They were an assembly of the people according to the local tribes into which the Plebs was originally divided. No qualification of birth or property was necessary to enable a them to vote in the comitia tributa. They were summoned by the tribuni plebis, who were also the presiding magistrates in general; but the consuls or praetors might preside if they were convoked for the election of inferior magistrates, such as the quaestor, propraetor, or proconsul. Smith, Dict. Ant. p. 274, v. Comitia, q. v. ) But this is unheard-of and absolutely without precedent, that a magistracy should be conferred by a lex curiata on a man who has not previously received it in some comitia. He orders the law to be brought in by that praetor who is appointed first praetor. But how? In order that these men may receive the decemvirate whom the people has elected. He has forgotten that none have been elected by the common people. Here is a pretty fellow to bind the whole world with laws, who does not recollect in the third clause what is set down in the second! This, too, is quite plain; both what privileges you have received from your ancestors, and what is left to you by this tribune of the people. Our ancestors chose that you should give your votes twice about every magistrate. For as a centuriata lex [*](This and the preceding chapter are exceedingly obscure, and almost unintelligible to us; perhaps also the text is a little corrupt. Manutius says, “An exceedingly difficult passage, which has perplexed men of the greatest ability and learning.” His explanation is as follows: “The ancient Romans had chosen that the people should decide on the election of every magistrate in two comitia; but the magistracies are distinguished into patrician and plebeian; the patrician magistrates are the quaestor, the curule aedile, the praetor, the consul, and the censor; the plebeian are the tribune of the people, the aedile of the people, and others. But there were two comitia first about the patrician magistrates before the plebeian ones were elected, namely the centuriata comitia, and the curiata. I except the censors, who, although they were patrician magistrates, still were elected by one comitia only, the centuriata. But when the plebeian magistrates were elected, then the tributa comitia succeeded to the place of the curiata, for the curiata had nothing to do with the plebeian magistrates. For they were instituted for the sake of the patrician magistrates long before the origin of the plebeian ones. Some one may say, Why were not the centuriata taken away for the same reason, as they were instituted by king Servius when there were not yet any plebeian magistrates? The answer is, In order that there might be some comitia held with proper auspices at which the patrician magistrates might be created, for the auspices were not taken at the tributa comitia. As, therefore, in the case of the patrician magistrates, (with the exception, as I have said before, of the censor,) the people gave their votes first in the centuriata comitia and then in the curiata, before the plebeian magistrates were elected; so, when the plebeian magistrates were elected, the same people voted in the centuriata and tributa comitia.”) was passed for the censors, and a curiata lex for the other patrician magistrates, by this means a decision was come to a second time about the same men, in order that the people might have an opportunity of correcting what they had done, if they repented of the honour they had conferred on any one.

Now, because you have preserved the comitia centuriata and tributa, the curiata have remained only for the sake of the auspices. But this tribune of the people, because he saw that no man could possibly have any authority conferred on him without the authority of the burghers [*](The Latin terms are populus and plebs. For the best account of the populus to be found in a small space, see Smith's Dict. Ant. p. 726, v. Patricii; and consult the same admirable book, p. 765, v. Plebes, or plebs. The word potestas, which I have translated “authority,” means strictly only civil authority, in opposition to imperium, military command.) or of the commonalty, confirmed that authority which he proposed to give by the curiata comitia, with which you have nothing to do, and took away the comitia tributa which belonged to you. So, though your ancestors intended you to decide at two comitia about each magistrate, this man, so attached to the interests of the people, did not leave the people the power of even one comitia.

But just note the scrupulousness and the diligence of the man. He saw, and was thoroughly aware, that without a lex curiata the decemvirs could not have authority, since they were elected by only nine tribes. So he directs that there should be a lex curiata passed about them, and orders the praetor to propose it. How ridiculous such a contrivance was, it is no business of mine to say. For he orders that “he who has been elected first praetor, shall propose a lex curiata; but if he be able to propose it, then the last praetor shall do it.” So that he seems either to have been playing the fool in this business, or else to have been aiming at something I know not what. But, however, let us pass over this, which is either so perverse, or so ridiculous, or so malicious and cunning, as to be unintelligible, and return to the scrupulousness of the man.He sees that nothing can be done by the decemvirs except by a lex curiata.

What was to happen afterwards, if a lex curiata were not passed? Remark the ingenuity of the man. “Then,” says he, “the decemvirs shall be in the same condition as those who are appointed in the strictest accordance with the law.” If this can be brought about, that, in this city which is far superior to all other states in its rights of liberty, any one may be able to obtain either military command or civil authority without the sanction of any comitia, then what is the necessity for ordering in the third chapter that some one shall propose a lex curiata, when in the fourth chapter you permit men to have the same rights without a lex curiata, which they would have if they were elected by the burghers according to the strictest form of law? Kings are being appointed, O Romans, not decemvirs; and they are starting with such beginnings and on such foundations, that the whole of your rights, and powers, and liberties are destroyed not only from the moment that they begin to act, but from the moment that they are appointed.

But remark how carefully he preserves the rights of the tribunitian power. The consuls are often interrupted in proposing a lex curiata, by the intercession of the tribunes of the people. Not that we complain that the tribunes should have this power; only, if any one uses it in a random and inconsiderate manner, we form our own opinion. But this tribune of the people, by his lex curiata, which the praetor is to bring forward, takes away the power of intercession. And while he is made to be blamed for causing the tribunitian power to be diminished by his instrumentality, he is also to be laughed at, because a consul, if he be not invested with the authority by a lex curiata, has no power to interfere in military affairs; and yet he gives this man whom he prohibits from interceding, the very same power, even if the veto be interposed, as if a lex curiata had been passed. So that I am at a loss to understand either why he prohibits the intercession, or why he thinks that any one will intercede; as the intercession will only prove the folly of the intercessor, and will not hinder the business.

Let there then be decemvirs, appointed neither by the genuine comitia,—that is to say, by the votes of the people,—nor by that comitia convened in appearance, to keep up an ancient custom, by the thirty lictors for the sake of the auspices. [*](“In after times, when the comitia curiata were little more than a matter of form, their suffrages were represented by the thirty lictors of the curiae, whose duty it was to summon the curiae when the meetings actually took place.”—Smith, Dict. Ant. p. 273 a, v. Comitia.) See now, also, how much greater honours he confers on these men who have received no authority from you, than we have received, to whom you have given the most ample authority, He orders the decemvirs, [*](The Latin has, “decemviri pullarii”. Pullarius was the officer appointed to feed and take care of the sacred chickens that were kept for the purpose of taking the auspices; and much was inferred from the way in which they took their food, or perhaps refused it.) who have the care of the auspices, to take auspices for the sake of conducting the colonies. “According,” says he, “to the same right which the triumvirs had by the Sempronian law.” Do you venture, O Rullus, even to make mention of the Sempronian law? and does not that law itself remind you that these triumvirs have been created by the suffrages of the tribes? And while you are

Besides all this, he gives them authority praetorian in name, but kingly in reality. He describes their power, as a power for five years; but he makes it perpetual. For he strengthens it with such bulwarks and defences that it will be quite impossible to deprive them of it against their own consent. Then he adorns them with apparitors, and secretaries, and clerks, and criers, and architects; besides that, with mules, and tents, and centuries, [*](There is, no doubt, some corruption here in the text.) and all sorts of furniture; he draws money for their expenses from the treasury; he supplies them with more money from the allies; he appoints them two hundred surveyors from the equestrian body every year as their personal attendants, and also as ministers and satellites of their power. You have now, O Romans, the form and very appearance of tyrants; you see all the ensigns of power, but not yet the power itself. For, perhaps, some one may say, “Well, what harm do all those men, secretary, lictor, crier, and chicken-feeder do me?” I will tell you. These things are of such a nature that the man who has them without their being conferred by your vote, must seem either a monarch with intolerable power, or if he assumes them as a private individual, a madman.

Just see what great authority they are invested with, and you will say that it is not the insanity of private individuals, but the immoderate arrogance of kings. First of all, they are entrusted with boundless power of acquiring enormous sums of money out of your revenues, not by farming them but by alienating them. In the next place, they are allowed to pursue an inquiry into the conduct of every country and of every nation, without any bench of judges; to punish without any right of appeal being allowed; and to condemn without there being any means of procuring a reversal of their sentence.