How Important Is The Idea Of Legality To The Lives And Deaths Of The Gracchi?

How important is the idea of legality to the careers and the deaths of the Gracchi?

The difference between a legal action and an illegal action within the Roman world, particularly in the context of Roman politics, is a multifaceted, complex and socially informed question. The most pressing aspect of this complexity are the hierarchies, both formal and informal, which predominate the daily political, judicial and military world of the Roman state. Broadly, we can define legal actions as being ones that do not break any currently enshrined rule in the body of Roman law a body comprised of the edicts passed down over the years by those with the political authority to do so (primarily magistrates and the tribunes). However, purely dividing the actions of the Gracchi and their contemporaries into those that were legal and those that were illegal misrepresents the driving forces behind their careers and their deaths. For a start, the body of law was not a passive, pre-extant and fixed document both of the brothers and other actors during their lifetime could use legislative authority that would allow them to make illegal acts legal, and vice versa. Acting alongside this flexible definition of legality was the concept of custom political actions could be legal, and yet require justification or explanation if they broke with custom to a significant enough degree. The ultimate arbiter of what was acceptable in Roman politics lay with the opinions of the body politic however, evidently the political opinions of the Roman citizenry were divided by intersections of class, legal status, and custom. Therefore, legality is an important concept in considering the life and death of the Gracchi brothers, however it must be considered alongside the customs of Roman politics and the voice of public opinion. Somewhere between these three concepts lies an explanation of the political careers of these two remarkable politicians.

In order to assess the importance of the idea of legality to the careers and deaths of the Gracchi, we will initially examine the ways in which the legality of action helped or hindered their political aims, and the impact it had on the events leading up to their deaths. For the purposes of this essay we will broadly define their aims to be the acquisition of personal political power, and the passing of reforms to reduce inequalities of wealth and status we will consider their deaths to be the ultimate result of these attempts, contingent upon the methods the Gracchi pursued. If we are to truly understand the importance of legality to these men s lives, we must examine the legislation they passed as tribunes. The irony is that the great agrarian bill for which Tiberius fought and died was effectively already law in Roman statute rich Romans who owned estates of greater than 500 acres, whether they had acquired them by means of fictitious personages , or rather held openly in their own names were already acting illegally, the legal reality was simply not being enforced[1]. Enforcement of statute was clearly an issue in Rome, a problem which stemmed from the regular re-election of the officers responsible for enforcing the law, and the deliberately limited number of magistrates with the authority to enforce such laws[2]. We should conceive of a form of backwards regulatory creep , whereby the divided and brief attentions of successive generations of praetors and quaestors, unsupported by a professional civil service, allows technically illegal behaviour to go unpunished and gradually become systemic[3]. Furthermore, these limited offices, particularly those authorised with the power of imperium, were held overwhelmingly by a narrow, but not impenetrable elite, due to the centrality of familial reputation in the accumulation of the political capital necessary to gain political office through popular election. More than half of the consuls in the 2^nd century were either the sons or the grandsons of consuls, and the consulship was the only office whose imperium was ultimate, and could not be overruled by those in higher office[4]. The vested interests of these magistrates inevitably made them less inclined to enforce laws such as the original agrarian act, unless there was a direct and pressing demand for its enforcement from the populous, which would threaten their personal political career. We see this politically pragmatic self-regulation extensively in the legislation applied to and enforced against the most privileged sumptuary legislation such as the Lex Didia served the purpose of perpetuating the moral authority of the politically prominent[5]. The senator Metellus, arguing against the Lex Sempronia, unfavourably compared Tiberius to his father the censor for whom the citizens put out their lights, for fear they might be thought to be indulging immoderately[6] . The irony of this accusation is that Tiberius was campaigning against deep-rooted excesses and inequalities of wealth which were already illegal, and yet his opponents criticise his own superficial excesses, whilst he relies purely on rhetorical arguments, rather than legal ones:

Was it not right that what belonged to all should be shared by all? Did not a citizen always deserve more considerations than a slave? Was not the man who served as a soldier more useful than the man who did not? Was not the man who had a stake in his country more loyal to its common interests?[7]

We are here forced to concede that certainly in terms of the Lex Sempronia, legality is at best a secondary issue the people voted for it because Tiberius rhetoric convinced them they had something to gain, Tiberius seems to have fought for it because he believed it was just, or perhaps because it would guarantee his political success. The senators who fought against him were motivated by economic self interest, however ostensibly they were acting in line with a combination of law and custom the appearance of the legality of action here being more important as a justifier in the court of public opinion than anything else.

In examining the deaths of Tiberius and Caius we must consider the legality of the murder of a tribune. As tribunes of the plebs, both of the Gracchi were granted the right of inviolability over the course of their term in office, a legal privilege supposedly originating with the 5^th century Valerio-Horatian laws[8]. However, the flaws of an examination of this political system purely resting on the legality of action immediately becomes apparent, this law was a product of the struggle of the orders, and can be seen as an expression of the will of the people in protecting their political representatives[9] this law was merely a formalisation of a social and political reality, and could accordingly be broken depending on the context and nature of the action. Technically, Tiberius physical removal of Octavius from the forum broke this formal law of the inviolability, however as his edict for the suspension of Octavius was voted into law, Tiberius was breaking with custom, but his action was not illegal. Plutarch is quick to imply that Tiberius personal servants were enacting the political will of the comitia And so the law was passed and Tiberius ordered one of his freedmen to drag Octavius from the rostra.[10] Here it is important to return to Polybius conception of the Roman constitution, and remember that whilst the three orders all hold each other to account[11], the ultimate legislative sovereignty of the Roman constitution lies with the citizenry hence the specific wording of foreign treaties, presenting the magistrates as executors and the senators as advisors to the ultimate will of the Roman people[12]. So in the case of Octavius, we have an action that breaks both law and custom, made legal by the weight of public opinion, and justified by the oratory of Tiberius, who yet again argued that removing Octavius was right in line with the customs of the tribunacy -

it is not just that a tribune who wrongs the people should retain that inviolable character which is given him for service of the people, since he is destroying the very power which is the source of his own power.[13]

Tiberius ensured that his action in removing Octavius was legal thanks to his passing of the edict, empowering his men with the will of the Roman people. However, the terms in which he is forced to justify and garner support for his actions are more concerned with what is right, and what is in keeping with the spirit of Roman politics than any specific question of legality.

We must consider the legal, customary, and populist aspects of the lives and deaths of the Gracchi within the context of the hierarchies of Roman society and indeed Roman politics. The Roman constitution, and the Gracchi themselves were profoundly wary of the conflicting interests at work in Roman society. As previously discussed, the nobilitas had developed an effective, but hardly total control over the most powerful offices of state[14]. The Roman legal tradition had developed a series of tools in an attempt to combat the potential political misuse of the imperium, which was inferred upon office holders most notably the inviolability of the tribunes, or provocatio, to protect plebs from unfair prosecution. Caius Gracchus had a particular issue with the authority of Roman magistrates, which led him to pass the lex repetundarum protecting

whomever of the allies or of the Latin name or of the foreign nations within the discretion of any [Roman magistrate] whatever money may have been taken, seized, extorted, procured or diverted, he is to have suit and right of prosecution.[15]

This law also created a purely equestrian jury to preside over such cases, and made specific provisos to counter the privileges of the upper classes such as their ability to be called as advocates, in order to prevent them being called as witnesses for the prosecution[16]. The enaction of this law was self evidently a legal act, however again Caius seems to be making a statement about justice that is utterly separate from the issue of its legality primarily thanks to the immense freedom that Tribunes had to declare legislation, meaning that their primary concern was in gaining support for their edicts, and ensuring they would not be vetoed by one of their colleagues. It is this legal method of preventing legislation which is utilised by the senate through Octavius to try and prevent Tiberius Lex Sempronia. We might initially argue that the fact that this law was passed by the consul after Tiberius death is proof that they were more concerned about his popularity than his legislation, however this argument collapses when we remember who was ultimately responsible for the enforcement of this legislation, and what the fate of the previous bill had been. This problem of judicial enforcement in a hierarchical society is addressed through the provisions of the Lex Repetundarum and Caius other reforms[17] - by empowering the equestrians with judicial oversight over their superiors, Caius successfully tries to narrow the gap between the apparent legal situation, the legal reality, and what the people actually wanted from the government of Rome.

To conclude, the idea of legality is important to the careers and deaths of the Gracchi brothers at times it hindered them, and at other times it helped them in achieving their aims. However, legality is not so important that it can be solely considered to the exclusion of other definitions of the social acceptability of political action. This essay has tried to elucidate the weaknesses of the Roman system in addressing illegality, and the importance of custom and public opinion to the Gracchi in the events which defined their lives. At the end of the day, some of the most revolutionary acts of the Gracchi, symbolic of their expressed political ideology, had nothing to do with legality and everything to do with what people expected of them. Facing away from the Curia when addressing the comitia was hardly an illegal act the fact these sons of a censor were running as Tribunes at all was a break with custom, rather than law. It was perhaps what these choices symbolised about their ideologies, and what they were prepared to do in its pursuit, that truly led to their deaths.

[1] Plutarch, Life of Tiberius Gracchus, VIII.4

[2] Astin, A. E. Roman Government and Politics, 200-134 CAH VIII² p 175

[3] Astin, A. E. Roman Government and Politics, 200-134 CAH VIII² p 173

[4] A. N. Sherwin-White, The lex repetundarum and the political ideas of Gaius Gracchus , JRS 72 (1982) p 23

[5] Millar, F. G. B. 1984. The political character of the classical Roman Republic, 200-151 B.C. Journal of Roman Studies 74: 1-19

[6] Plutarch, Life of Tiberius Gracchus, XIV.1

[7] Appian, The Civil Wars 1.6

[8] H lkeskamp, K.-J. 1993. Conquest, competition and consensus: Roman expansion in Italy and the rise of the nobilitas. Historia 42 p 16

[9] Astin, A. E. Roman Government and Politics, 200-134 CAH VIII² p 192

[10] Plutarch, Life of Tiberius Gracchus, XII.4

[11] Polybius, VI.5

[12] Millar, F. G. B. 1984. The political character of the classical Roman Republic, 200-151 B.C. Journal of Roman Studies 74 p 19

[13] Plutarch, Life of Tiberius Gracchus, XV.3

[14] Brunt, P.A. 1982. Nobilitas and novitas. JRS 72 p 15

[15] Lex Repetundarum, Crawford, Roman Statutes no. 1

[16] A. N. Sherwin-White, The lex repetundarum and the political ideas of Gaius Gracchus , JRS 72 (1982) p 26

[17] Plutarch, Life of Caius Gracchus, III.3